Emw Women's Surgical Ctr. v. Beshear

920 F.3d 421

EMW WOMEN'S SURGICAL CENTER, P.S.C., on behalf of itself, its staff, and its patients; Ernest Marshall, M.D., on behalf of himself and his patients; Ashley Bergin, M.D., on behalf of herself and her patients; Tanya Franklin, M.D., on behalf of herself and her patients, Plaintiffs-Appellees,

v.Andrew G. BESHEAR, Attorney General (17-6183); Adam Meier, in his capacity as Secretary of the Cabinet of Health and Family Services (17-6151), Defendants-Appellants.

Nos. 17-6151/6183

United States Court of Appeals, Sixth Circuit.

Argued: July 25, 2018

Decided and Filed: April 4, 2019

JOHN K. BUSH, Circuit Judge.

Under Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), a woman has the right to choose to have an abortion. To inform that choice, the Commonwealth of Kentucky directs a doctor, before performing an abortion, to auscultate (or make audible) the fetal heartbeat, perform an ultrasound, and display and describe the ultrasound images to the patient. This appeal principally concerns whether those requirements violate the doctor's First Amendment rights.

"The Ultrasound Informed Consent Act," also known as "House Bill 2" or "H.B. 2,"¹ is challenged by Plaintiffs-Appellees EMW Women's Surgical Center, P.S.C. and its associated physicians (collectively, "EMW") under the First Amendment, as incorporated against the States by the Fourteenth Amendment. EMW prevailed in the district court, which, in granting the complaint's first claim for relief under the First Amendment, applied heightened scrutiny to invalidate the statute and permanently enjoin enforcement of H.B. 2. See EMW Women's Surgical Ctr., P.S.C. v. Beshear , 283 F.Supp.3d 629 (W.D. Ky. 2017). Our court then denied the motion of then-Defendant-Appellant Vickie Glisson, who was Secretary of the Cabinet for Health and Family Services, to stay the injunction pending appeal. See EMW Women's Surgical Ctr., P.S.C. v. Beshear , No. 17-6151 (6th Cir. Dec. 8, 2017) (order). However, neither our court nor the district court had the benefit of the Supreme Court's recent decision in National Institute of Family & Life Advocates v. Becerra , ––– U.S. ––––, 138 S.Ct. 2361, 201 L.Ed.2d 835 (2018) (" NIFLA ").

In NIFLA the Court clarified that no heightened First Amendment scrutiny should apply to informed-consent statutes like the abortion-informed-consent statute at issue in Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion).² See NIFLA , 138 S.Ct. at 2373. Thus, even though an abortion-informed-consent law compels a doctor's disclosure of certain information, it should be upheld so long as the disclosure is truthful, non-misleading, and relevant to an abortion. See Casey , 505 U.S. at 882, 112 S.Ct. 2791 ; Tex. Med. Providers Performing Abortion Servs. v. Lakey , 667 F.3d 570, 576 (5th Cir. 2012) ; Planned Parenthood Minn., N.D., S.D. v. Rounds , 530 F.3d 724, 734–35 (8th Cir. 2008) (en banc).

Because H.B. 2, like the statute in Casey , requires the disclosure of truthful, nonmisleading, and relevant information about an abortion, we hold that it does not violate a doctor's right to free speech under the First Amendment. See NIFLA , 138 S.Ct. at 2373 ; Casey , 505 U.S. at 882–84, 112 S.Ct. 2791. We also hold that the Attorney General, Defendant-Appellant Andrew Beshear, is not a proper party to this case.

I.

H.B. 2 directs a doctor, prior to performing an abortion, to perform an ultrasound; display the ultrasound images for the patient; and explain, in the doctor's own words, what is being depicted by the images—for example, pointing out organs and whether the patient is pregnant with twins. KRS § 311.727. There is no requirement that the patient view the images or listen to the doctor's description. The doctor also must auscultate the fetal heartbeat but may turn off the volume of the auscultation if the patient so requests. Id. Failure to comply with these requirements can result in the doctor being fined and referred to Kentucky's medical-licensing board. KRS § 311.990(34). But H.B. 2 does not penalize a doctor if the patient requested that the heartbeat sound be turned off or chose not to look at the ultrasound images. KRS § 311.727(3). Nor does H.B. 2 penalize a doctor if she or he exercises discretion to advise a patient that she need not listen to or view the disclosures, or if the doctor makes any other statement, including advising the patient to have an abortion. Finally, a doctor need not make any disclosure from H.B. 2 at all if an abortion is medically necessary or in the case of a medical emergency. KRS § 311.727(5).

EMW sued General Beshear, Secretary Glisson, and Michael S. Rodman, who is Executive Director of the Kentucky Board of Medical Licensure. The parties cross-moved for summary judgment on the complaint's first claim for relief, styled "First Amendment Rights of Physicians." The district court ruled in favor of EMW and, as noted, permanently enjoined enforcement of H.B. 2. Executive Director Rodman does not appeal, but Secretary Meier, as Secretary Glisson's successor, seeks reversal of the judgment. General Beshear also defends H.B. 2 on appeal but argues that he is not a proper party to this case. We address first whether H.B. 2 violates doctors' First Amendment rights, then whether General Beshear is appropriately in this suit.

II.

We engage in de novo review of the district court's summary judgment. McKay v. Federspiel , 823 F.3d 862, 866 (6th Cir. 2016). "[W]here, as here, the parties filed cross-motions for summary judgment, ‘the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.’ " Id. at 866 (quoting Taft Broad. Co. v. United States , 929 F.2d 240, 248 (6th Cir. 1991) ). A moving party may obtain summary judgment only if it "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

No material facts are in dispute here, so this matter turns on a pure question of law: does H.B. 2 compel a doctor's speech in violation of the First Amendment?

The First Amendment, applicable to the States through the Fourteenth Amendment, see, e.g. , Gitlow v. New York , 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), provides, in pertinent part, that "Congress shall make no law ... abridging the freedom of speech," U.S. Const. amend. I. This constitutional guarantee, the Supreme Court has held, applies not only when government restricts speech, see, e.g. , Reed v. Town of Gilbert , ––– U.S. ––––, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015), but also when it compels speech, see, e.g. , NIFLA , 138 S.Ct. at 2371. When laws, whether restrictive or compulsive, "target speech based on its communicative content," they generally "are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." NIFLA , 138 S.Ct. at 2371 (quoting Reed , 135 S.Ct. at 2226 ). Such content-based restrictions have been declared unconstitutional in compelled-speech cases such as West Virginia State Board of Education v. Barnette , 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), which struck down a requirement that students salute the United States flag; Wooley v. Maynard , 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), which invalidated a law requiring a state motto "Live Free or Die" on license plates; and Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston , 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995), which held that a State could not force parade organizers to include a group that would convey a message contrary to the organizers' views.

Heightened scrutiny generally applies to content-based regulation of any speaker, including a physician or other professional. See NIFLA , 138 S.Ct. at 2371–72. But, as the Supreme Court noted in NIFLA , there is "less protection for professional speech in two circumstances": first, for "some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech’ ";³ second, for regulation of "professional conduct, even though that conduct incidentally involves speech," id. at 2372 (citing Casey , 505 U.S. at 884, 112 S.Ct. 2791 ). The second exception is at issue here because H.B. 2 regulates doctors' conduct: performing abortions.⁴

We review H.B. 2 against the backdrop of thirty-five years of evolving Supreme Court precedent concerning the constitutionality of abortion-informed-consent statutes. In the 1980s, the Court invalidated some aspects of these laws. For example, in City of Akron v. Akron Center for Reproductive Health, Inc. , 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (" Akron I "), and Thornburgh v. AmericanCollege of Obstetricians & Gynecologists , 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), the Court struck down state laws requiring abortion doctors to provide patients with information about the development of unborn life⁵ and alternatives to abortion. In Akron I , the Court "invalidated an ordinance which required that a woman seeking an abortion be provided by her physician with specific information ‘designed to influence the woman's informed choice between abortion or childbirth.’ " Casey , 505 U.S. at 881, 112 S.Ct. 2791 (quoting Akron I , 462 U.S. at 444, 103 S.Ct. 2481 ). The required disclosure included the statement that "the unborn child is a human life from the moment of conception." Akron I , 462 U.S. at 444, 103 S.Ct. 2481. That this "information was designed to dissuade the woman from having an abortion," Casey , 505 U.S. at 882, 112 S.Ct. 2791, was one of ...