Bryant v. Woodall

1 F.4th 280

Amy BRYANT, M.D., on behalf of herself and her patients seeking abortions; Beverly Gray, M.D., on behalf of herself and her patients seeking abortions; Elizabeth Deans, M.D., on behalf of herself and her patients seeking abortions; Planned Parenthood South Atlantic, on behalf of itself, its staff, and its patients seeking abortions, Plaintiffs – Appellees,

v.Jim WOODALL, in his official capacity as District Attorney ("DA") for Prosecutorial District ("PD") 15B; Satana Deberry, in her official capacity as DA for PD 16; Eleanor E. Greene, in her official capacity as President of the North Carolina Medical Board ; Mandy K. Cohen, in her official capacity as Secretary of the North Carolina Department of Health and Human Services ; and their employees, agents, and successors, Defendants – Appellants.

State of West Virginia ; State of Alabama ; State of Alaska ; State of Arizona; State of Arkansas; State of Indiana; State of Kansas; State of Kentucky, by and through Governor Matthew G. Bevin; State of Louisiana ; State of Missouri; State of Montana; State of Nebraska; State of North Dakota; State of Ohio; State of Oklahoma; State of South Carolina; State of Texas ; State of Utah; Governor Phil Bryant, of the State of Mississippi; The National Catholic Bioethics Center; American Association of Pro-Life Obstetricians and Gynecologists; Christian Medical & Dental Associations; American College of Pediatricians, Amici Supporting Appellant.

Lawyers’ Committee for Civil Rights Under Law, Amicus Supporting Appellee.

No. 19-1685

United States Court of Appeals, Fourth Circuit.

Argued: May 6, 2021

Decided: June 16, 2021

Amended: June 23, 2021

ARGUED: Michael T. Wood, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. Genevieve Elizabeth Scott, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York, for Appellees. ON BRIEF: I. Faison Hicks, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. Andrew Beck, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellees. Beverly Gray, M.D., and Elizabeth Deans, M.D. Julie Rikelman, Caroline Sacerdote, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York, for Appellee Amy Bryant, M.D., M.S.C.R. Maithreyi Ratakonda, New York, New York, Carrie Y. Flaxman, PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, D.C., for Appellee Planned Parenthood South Atlantic. Irena Como, ACLU OF NORTH CAROLINA, Raleigh, North Carolina, for Appellees. Kevin H. Theriot, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for Amici The National Catholic Bioethics Center, Christian Medical & Dental Associations, American Association of Pro-Life Obstetricians & Gynecologists, and American College of Pediatricians. Patrick Morrisey, Attorney General, Lindsay S. See, Solicitor General, Thomas T. Lampman, Assistant Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Amicus State of West Virginia. Steve Marshall, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ALABAMA, Montgomery, Alabama, for Amicus State of Alabama. Kevin Clarkson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ALASKA, Anchorage, Alaska, for Amicus State of Alaska. Mark Brnovich, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARIZONA, Phoenix, Arizona, for Amicus State of Arizona. Leslie Rutledge, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARKANSAS, Little Rock, Arkansas, for Amicus State of Arkansas. Curtis T. Hill, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF INDIANA, Indianapolis, Indiana, for Amicus State of Indiana. Derek Schmidt, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF KANSAS, Topeka, Kansas, for Amicus State of Kansas. Matthew G. Bevin, Governor, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for Amicus Commonwealth of Kentucky. Jeff Landry, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF LOUISIANA, Baton Rouge, Louisiana, for Amicus State of Louisiana. Phil Bryant, Governor, OFFICE OF THE GOVERNOR, Jackson, Mississippi, for Amicus State of Mississippi. Eric Schmitt, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MISSOURI, Jefferson City, Missouri, for Amicus State of Missouri. Tim Fox, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MONTANA, Helena, Montana, for Amicus State of Montana. Doug Peterson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEBRASKA, Lincoln, Nebraska, for Amicus State of Nebraska. Wayne Stenehjem, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NORTH DAKOTA, Bismarck, North Dakota, for Amicus State of North Dakota. Dave Yost, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Amicus State of Ohio. Mike Hunter, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF OKLAHOMA, Oklahoma City, Oklahoma, for Amicus State of Oklahoma. Alan Wilson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Amicus State of South Carolina. Ken Paxton, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF TEXAS, Austin, Texas, for Amicus State of Texas. Sean Reyes, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF UTAH, Salt Lake City, Utah, for Amicus State of Utah. Jon Greenbaum, Kristen Clarke, Dariely Rodriguez, Edward Caspar, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington, D.C., for Amicus Lawyers’ Committee for Civil Rights Under Law.

Before MOTZ, DIAZ, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Diaz and Judge Richardson joined.

DIANA GRIBBON MOTZ, Circuit Judge:

North Carolina abortion providers ("the Providers") brought this action to challenge as unconstitutional the State's criminalization of previability abortions. The State officials responsible for enforcement of the challenged statutes, N.C. Gen. Stat. § 14-44 and § 14-45, and the exceptions thereto, § 14-45.1(a)–(b), do not defend the constitutionality of these provisions on appeal. Rather, the State's sole contention is that the Providers do not have standing to bring this suit because they do not face a credible threat of prosecution for violation of the challenged provisions. Like the district court, we disagree. Accordingly, we affirm the judgment of the district court.

I.

North Carolina criminalizes the procurement or administration of abortion as a felony, and has done so for the past 140 years. N.C. Gen. Stat. §§ 14-44, 14-45 ; 1881 N.C. Sess. Laws 584. In 1967, the State enacted an exception to the abortion ban to permit abortions performed in the case of a medical emergency. 1967 N.C. Sess. Laws 394; see also N.C. Gen. Stat. § 14-45.1(b). Following the Supreme Court's 1973 decision in Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the State enacted another exception to its abortion ban to permit abortions performed before the twentieth week of pregnancy. 1973 N.C. Sess. Laws 1057–58; see also N.C. Gen. Stat. § 14-45.1(a).

In 2015, the North Carolina legislature amended both the twenty-week exception, codified at § 14-45.1(a), and the medical emergency exception, codified at § 14-45.1(b). 2015 N.C. Sess. Laws 135 ("2015 amendments"). The 2015 amendments modify § 14-45.1(a) to restrict the type of doctors permitted to perform abortions "during the first 20 weeks of a woman's pregnancy" to "qualified physician[s]," which the amendments define. Id. at 143.

The amendments to § 14-45.1(b) narrow the definition of a "medical emergency." Id . Prior to the amendments, the State permitted abortions where there was a "substantial risk that the continuance of the pregnancy would threaten the life or gravely impair the health of the woman." Id . The amended version of the statute permits an abortion only where one is "necess[ary] ... to avert [the pregnant woman's] 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." N.C. Gen. Stat. § 90-21.81(5) ; see id. at § 14-45.1(b). The revised medical emergency exception does not permit an abortion based upon "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." Id. at § 90-21.81(5).

The 2015 amendments also extend from 24 to 72 hours the waiting period women must observe before obtaining an abortion. The 2015 amendments further include a new requirement that the Department of Health and Human Services ("the Department") annually inspect abortion clinics, and a mandate that abortion providers record and report to the Department certain information, including fetal measurements and ultrasound images. 2015 N.C. Sess. Laws 143–44.

North Carolina has not prosecuted any abortion providers under § 14-44 or § 14-45 since the 1973 amendments.

In 2016, the Providers brought suit on behalf of themselves and their patients against the State officials responsible for enforcing the challenged statutes ("the State"). The Providers challenge "the statutes criminalizing abortion, N.C. Gen. Stat. §§ 14-44 and 14-45, and the exceptions, § 14-45.1(a) – (b)," as violative of their patients’ Fourteenth Amendment due process rights. The Providers moved for summary judgment, and the district court ordered supplemental briefing to address the Providers’ standing in light of North Carolina's failure to prosecute pursuant to the challenged statutes.

Upon receipt of this briefing, in a careful opinion, the district court held that the Providers had established a credible threat of prosecution sufficient to confer standing. Bryant v. Woodall , 363 F. Supp. 3d 611, 617–627 (M.D.N.C. 2019). Then, finding that the challenged statutes and exceptions prohibit some previability abortions in violation of the requirements of Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833, 872–74, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)...