Bryant v. Woodall

363 F.Supp.3d 611

Amy BRYANT, M.D., Beverly Gray, M.D., Elizabeth Deans, M.D., and Planned Parenthood South Atlantic, Plaintiffs,

v.Jim WOODALL, Roger Echols, Eleanor E. Greene, and Rick Brajer,¹ each in their Official Capacity, Defendants.

1:16CV1368

United States District Court, M.D. North Carolina.

Signed March 25, 2019

Caroline M. Sacerdote, Genevieve E. Scott, Julie Rikelman, Center For Reproductive Rights, Andrew D. Beck, American Civil Liberties Union Foundation, Maithreyi Ratakonda, Planned Parenthood Federation of America, New York, NY, Irena Como, Christopher A. Brook, American Civil Liberties Union of North Carolina, Raleigh, NC, Alice J. Clapman, Carrie Y. Flaxman, Planned Parenthood Federation of America, Washington, DC, for Plaintiffs.

Isham Faison Hicks, N. C. Department of Justice, Raleigh, NC, for Defendants.

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

This matter is before this court for review of the Memorandum Opinion, Order, and Recommendation ("Recommendation") filed on August 24, 2018, by the Magistrate Judge in accordance with 28 U.S.C. § 636(b). (Doc. 71.) In the Recommendation, the Magistrate Judge recommends that Plaintiffs' Second Motion for Summary Judgment (Doc. 44) be denied and that this action be dismissed for want of subject-matter jurisdiction due to Plaintiffs' lack of standing. The Recommendation was served on the parties to this action on August 24, 2018 (Doc. 72). Plaintiffs have filed objections, (Doc. 73), to the Recommendation. Pursuant to this court's order, (Doc. 74), Plaintiffs filed a Supplemental Memorandum in support of their objections to the Recommendation, (Doc. 75), Defendants responded, (Doc. 76), and Plaintiffs replied, (Doc. 82).

Following de novo review, this court agrees with the Recommendation as the record existed before the Magistrate Judge and, further, agrees with the Magistrate Judge that Plaintiffs failed to establish standing on that record. However, on the record and briefing submitted following issuance of the Recommendation, this court finds that Plaintiffs have established standing to challenge the twenty-week abortion ban set forth in N.C. Gen. Stat. § 14-45.1 and related statutes. This court further finds that Plaintiffs' second motion for summary judgment should be granted and that N.C. Gen. Stat. § 14-45.1(a) should be enjoined.

As noted above, this court agrees with the Magistrate Judge's Recommendation on the record before that court. It bears noting that, in the opinion of this court, Plaintiffs' counsel in this matter completely failed to heed the admonition of the Magistrate Judge as to concerns of standing and instead attempted to proceed on a theory that Plaintiffs have standing as a matter of law. (See (Doc. 66) at 9 ("Put simply, the standing of abortion providers – like Plaintiffs – to challenge criminal statutes – like the ban – ‘is not open to question.’ ").)² As this court made clear in its request for supplemental briefing, (see Suppl. Briefing Order (Doc. 74) ), this court is not aware of any automatic right of standing to challenge an abortion regulation and "imaginary or speculative" fears of prosecution are insufficient to confer standing. Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

The Magistrate Judge quite clearly expressed a sound concern over the parties' failure to address standing – specifically, whether Plaintiffs could establish a credible threat of prosecution. As a result, that court requested further briefing on the issue. (See Doc. 65 at 3-5.) Rather than respond to the Magistrate Judge's request, Plaintiffs persisted in relying upon an argument that standing "is not open to question," (Doc. 66 at 9), and that "[d]ecades of black letter law establish that physicians, like Plaintiffs, who challenge criminal laws that prevent them from providing abortion care to patients have Article III standing." (Doc. 73 at 6-7.) Plaintiffs' arguments were neither responsive nor persuasive to the issues identified by the Magistrate Judge.

It was only after this court requested supplemental briefing on the issues identified by the Magistrate Judge, (Suppl. Briefing Order (Doc. 74) ), and offered to allow Plaintiffs to "submit the case based solely upon their current position," (id. at 7-8), that Plaintiffs fully addressed the issues critical to standing.

In light of the foregoing, it appears to this court that there has been unnecessary delay and judicial resources have been wasted to some degree because Plaintiffs' counsel have been unwilling or unable to address the issue of standing as necessary in this case. This court has considered whether the Recommendation should be adopted and the case dismissed in light of the failure of Plaintiffs to establish standing before the Magistrate Judge. "The party invoking federal jurisdiction bears the burden of establishing" the three elements of standing, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), and Plaintiffs failed to do so before the Magistrate Judge. However,

as part of its obligation to determine de novo any issue to which proper objection is made, a district court is required to consider all arguments directed to that issue, regardless of whether they were raised before the magistrate. By definition, de novo review entails consideration of an issue as if it had not been decided previously.

United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992) (footnote omitted). After further consideration, this court will evaluate the supplemental briefing and enter an opinion which ultimately amounts to a complete de novo review and analysis. Notwithstanding the new review and analysis, this court is concerned by the conduct of Plaintiffs' counsel of the briefing in this case. Plaintiffs request an award of "their reasonable costs and attorney's fees pursuant to 42 U.S.C. § 1988." (Complaint ("Compl.") (Doc. 1) ¶ 57). Counsel are hereby advised that, in light of the conduct summarized above, should Plaintiffs petition for attorney's fees, this court will carefully scrutinize any billing during the time between the Magistrate Judge's request for supplemental briefing and this court's request for supplemental briefing. Plaintiffs may face a heavy burden to receive an award for attorney's fees incurred during that time period.

I. FACTUAL BACKGROUND

The relevant facts are recounted in detail in the Recommendation and this court will provide only a brief summary here.

North Carolina has banned abortion by statute for over one hundred years. See 1881 N.C. Sess. Laws 351. N.C. Gen. Stat. §§ 14–44 and 14–45 criminalize abortion generally and remain on the statute books.³ N.C. Gen. Stat. § 14–45.1(a) was amended in 1973 to provide that, notwithstanding this general ban, "it shall not be unlawful" to perform an abortion before the twenty-week point of a pregnancy. See 1973 N.C. Sess. Laws 711 (H.B. 615). This framework contains certain statutory exceptions, including an exception permitting abortion after twenty weeks in the case of "a medical emergency." See N.C. Gen. Stat. § 14-45.1(b). The parties have not identified any prosecutions for performing an abortion in violation of the criminal statutes during the forty-five-year history of the current statutory framework.⁴

The North Carolina legislature amended N.C. Gen. Stat. § 14-45.1, effective in 2016. See 2015 N.C. Sess. Laws 2015-62 (H.B. 465). The pre-amendment version of N.C. Gen. Stat. § 14-45.1 permitted an abortion after the twentieth week of pregnancy when there was "substantial risk that the continuance of the pregnancy would threaten the life or gravely impair the health of the woman."⁵ See id. The amended version of the statute permits an abortion after the twentieth week of pregnancy "if there existed a medical emergency as defined by G.S. 90-21.81(5)." See id.; N.C. Gen. Stat. § 14-45.1(b). N.C. Gen. Stat. § 90-21.81(5) defines a "medical emergency" as:

A condition which, in reasonable medical judgment, so complicates the medical condition of the pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions. For purposes of this definition, no condition shall be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function.

II. PROCEDURAL HISTORY

Plaintiffs filed their complaint in this case on November 30, 2016, (Compl. (Doc. 1) ), and initially moved for summary judgment on December 14, 2016, (Doc. 13). The Magistrate Judge then granted Defendants' Rule 56(d) motion for limited discovery to respond to Plaintiffs' allegations, (Doc. 31), and this court affirmed that ruling, (Doc. 36). Plaintiffs again moved for summary judgment, (Doc. 44), and Defendants opposed that motion. (Defs.' Resp. to Pls.' Second Mot. for Summ. J. ("Defs.' Resp. Br.") (Doc. 52).)

During discovery, Plaintiffs each responded to interrogatories and document requests from Defendants. (See Docs. 53-1 through 53-4.) Plaintiffs deposed Defendants' expert witnesses, Martin J. McCaffrey, M.D., (Deposition of Martin J. McCaffrey ("McCaffrey Dep.") (Doc. 53-5) ), and John M. Thorp, Jr., M.D., (Deposition of John M. Thorp, Jr. ("Thorp Dep.") (Doc. 59-1).) In addition, certain amici curiae filed a brief opposing Plaintiffs' second motion for summary judgment.⁶ (Doc. 50–1.)

III. STANDARD OF REVIEW ON MAGISTRATE JUDGE'S RECOMMENDATION

This court is required to make "a de novo determination of those portions of the [Magistrate Judge's] report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This court "may accept, reject, or modify, in whole or in part, the findings or recommendations...