Emw Women's Surgical Ctr. v. Friedlander

960 F.3d 785

EMW WOMEN'S SURGICAL CENTER, P.S.C., on behalf of itself, its staff, and its patients; Ashlee Bergin, M.D., M.P.H. and Tanya Franklin, M.D., M.S.P.H., on behalf of themselves and their patients, Plaintiffs-Appellees,

v.Eric FRIEDLANDER, in his official capacity as Acting Secretary of Kentucky's Cabinet for Health and Family Services, Defendant-Appellant.

No. 19-5516

United States Court of Appeals, Sixth Circuit.

Argued: January 29, 2020

Decided and Filed: June 2, 2020

OPINION

CLAY, Circuit Judge.

This case asks whether a state can require patients to undergo a procedure to end potential fetal life before they may receive an abortion performed through the method most common in the second trimester of pregnancy—dilation and evacuation. Kentucky House Bill 454 does just that. Plaintiffs, Kentucky's sole abortion clinic and two of its doctors, argue that House Bill 454 violates patients’ constitutional right to abortion access prior to fetal viability because the burdens the law imposes significantly outweigh its benefits. Defendant Eric Friedlander, the Acting Secretary of Kentucky's Cabinet for Health and Family Services, disagrees. He contends that Kentucky may constitutionally require patients to undergo such a procedure because it is a reasonable alternative to the standard dilation and evacuation abortion. The district court agreed with Plaintiffs and permanently enjoined Kentucky from enforcing House Bill 454.

For the reasons set forth below, we AFFIRM the district court's judgment.

BACKGROUND

Factual Background

In the first trimester of pregnancy, a physician may perform an abortion through two methods. She may offer medication to induce a process like miscarriage, or she may perform a surgical abortion, using suction to remove the contents of the uterus intact. But these methods are only effective in the initial weeks of pregnancy. Starting around fifteen weeks of pregnancy, measured from the time of the individual's last menstrual period ("LMP"), physicians must use the dilation and evacuation ("D&E") method. D&E is the standard method used in the second trimester, accounting for 95% of second-trimester abortions performed nationwide. To perform a D&E, a physician first dilates the patient's cervix, and then uses instruments and suction to remove the contents of the uterus. At this stage of pregnancy, the fetus has grown larger than the cervical opening, and so fetal tissue separates as the physician draws it through that narrow opening.

This leads us to Kentucky's House Bill 454 ("H.B. 454" or "the Act"), which was signed into law on April 10, 2018. H.B. 454 provides, in relevant part:

No person shall intentionally perform or induce or attempt to perform or induce an abortion on a pregnant woman ... [t]hat will result in the bodily dismemberment, crushing, or human vivisection of the unborn child ... [w]hen the probable post-fertilization age of the unborn child is eleven (11) weeks or greater [ (i.e. , thirteen (13) weeks or greater as measured since the last menstrual period) ]¹ ....

(H.B. 454, R. 43-1 at PageID #244.) "[B]odily dismemberment, crushing, or human vivisection" includes:

a procedure in which a person, with the purpose of causing the death of an unborn child, dismembers the living unborn child and extracts portions, pieces, or limbs of the unborn child from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that ... slices, crushes, or grasps ... any portion, piece, or limb of the unborn child's body to cut or separate the portion, piece, or limb from the body.

(Id. at ##243–44.) While H.B. 454 does not use the words "dilation and evacuation" or "D&E," the parties agree that it references the standard D&E. Because fetal tissue separates as physicians remove it from the uterus during the standard D&E, H.B. 454 forbids D&E abortions when performed on "living unborn" fetuses—or, in clinical terms, prior to "fetal demise."

H.B. 454 does not identify any workaround for physicians who seek to perform or patients who seek a D&E after thirteen weeks. The Act does not suggest that physicians should or must induce fetal demise prior to performing a D&E. Specifically, it does not discuss any procedures for inducing fetal demise.

H.B. 454 provides for a single exception to this prohibition: physicians may perform a D&E prior to fetal demise in a "medical emergency." (Id. at #244.) A "medical emergency" is a situation that a physician deems to "so complicate[ ] the medical condition of a pregnant female as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create a serious risk of substantial and irreversible impairment of a major bodily function." (Id. ); Ky. Rev. Stat. § 311.720(9).

Violation of H.B. 454 is a Class D felony, (H.B. 454, R. 43-1 at PageID #247), for which providers may receive up to five years of imprisonment, Ky. Rev. Stat. § 532.060(2)(d), and adverse licensing and disciplinary action, id. , §§ 311.565, 311.606.

Procedural Background

On the day H.B. 454 was signed, Plaintiffs EMW Women's Surgical Center ("EMW") and its two obstetrician-gynecologists, Dr. Ashlee Bergin and Dr. Tanya Franklin, brought suit against various Kentucky officials to challenge it. EMW is Kentucky's only licensed outpatient abortion facility, and Dr. Bergin and Dr. Franklin are the only doctors providing surgical abortions at EMW. Plaintiffs argued that H.B. 454 is facially unconstitutional because it effectively bans the most common second-trimester abortion procedure—the D&E—and therefore imposes an undue burden on the right to elect abortion prior to viability, in violation of the Fourteenth Amendment. Plaintiffs moved for a temporary restraining order and a preliminary injunction shortly thereafter.

The parties entered a joint consent order, under which the Commonwealth defendants agreed that they would not take steps to enforce H.B. 454 until the district court ruled upon Plaintiffs’ motions. The court later ordered the parties to continue following the terms of the consent order until the case was tried on the merits.

Aside from then-Secretary of Kentucky's Cabinet for Health and Family Services, Adam Meier, and Commonwealth Attorney Thomas B. Wine, all of the defendants were voluntarily dismissed prior to trial. The district court heard Plaintiffs’ case in a five-day bench trial in November 2018.

Before the court, Plaintiffs presented their argument as to H.B. 454's unconstitutionality. Defendants Meier and Wine, for their part, argued that H.B. 454 did not ban D&E abortions, but simply required individuals seeking a D&E abortion after thirteen weeks to first undergo a procedure to induce fetal demise. They identified three possible methods of inducing fetal demise: by injecting digoxin into the fetus or amniotic sac, by injecting potassium chloride into the fetal heart, or by cutting the umbilical cord in utero. Plaintiffs responded that none of these three procedures was a feasible workaround to H.B. 454. Both parties presented substantial expert testimony and evidence about the safety, efficacy, and feasibility of each of these procedures.

On May 8, 2019, the district court entered judgment for Plaintiffs and an order permanently enjoining the enforcement of H.B. 454. EMW Women's Surgical Ctr., P.S.C. v. Meier , 373 F. Supp. 3d 807, 826 (W.D. Ky. 2019). At bottom, the district court found that H.B. 454 imposed an undue burden on one's right to elect an abortion prior to viability, in violation of the Fourteenth Amendment. Id. In particular, it concluded that none of the three identified procedures was a feasible option for inducing fetal demise and, therefore, H.B. 454 effectively banned D&E abortions. Id. at 823.

This timely appeal followed. Former defendant Commonwealth Attorney Wine did not join this appeal. Due to the recent change in administration from prior Kentucky Governor Matt Bevin to current Governor Andy Beshear, now-Acting Secretary of Kentucky's Cabinet for Health and Family Services Eric Friedlander ("the Secretary") has replaced Adam Meier as the named Defendant-Appellant in this case. See Fed. R. Civ. P. 25(d) ("An action does not abate when a public officer who is a party in an official capacity ... ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party.").

DISCUSSION

Kentucky is not the first state to pass legislation requiring fetal demise prior to the performance of a D&E. At least ten other states have passed similar laws. See, e.g. , Ala. Code § 26-23G-1 et seq. ; Ark. Code. Ann. § 20-16-1801 et seq. ; Ind. Code §§ 16-34-2-7(a), 16-18-2-96.4 ; Kan. Stat. Ann. § 65-6741 et seq. ; Okla. Stat. Ann. § 1-737.7 et seq. ; La. Stat. Ann. § 1061.1.1 et seq. ; Miss. Code Ann. § 41-41-151 et seq. ; Ohio Rev. Code § 2919.15(B) ; Tex. Health & Safety Code Ann. § 171.151 et seq. ; W. Va. Code Ann. § 16-2O-1 et seq . In nearly every state, plaintiffs have challenged those laws as unduly burdening the right to elect abortion before viability, as Plaintiffs have done here. And in every challenge brought to date, the court has enjoined the law, finding that it indeed unduly burdens that right. See, e.g. , W. Ala. Women's Ctr. v. Williamson , 900 F.3d 1310, 1327, 1329–30 (11th Cir. 2018) (affirming permanent injunction of Ala. Code § 26-23G-1 et seq. ), cert denied sub nom. Harris v. W. Ala. Women's Ctr. , ––– U.S. ––––, 139 S. Ct. 2606, 204 L.Ed.2d 1159 (2019); Bernard v. Individual Members of Ind. Med. Licensing Bd. , 392 F. Supp. 3d 935, 962, 964 (S.D. Ind. 2019) (preliminarily enjoining Ind. Code §§ 16-34-2-7(a), 16-18-2-96.4 ); Planned Parenthood of Sw. Ohio Region v. Yost , 375 F. Supp. 3d 848, 869, 872 (S.D. Ohio 2019) (preliminarily enjoining Ohio Rev. Code § 2919.15(B) ); Whole Woman's Health v. Paxton , 280 F. Supp. 3d 938, 953–54 (W.D. Tex. 2017) (permanently enjoining Tex. Health & Safety Code Ann. § 171.151 et seq. ); Hopkins v....