Jackson Women's Health Org. v. Currier, 3:18-CV-171-CWR-FKB

349 F.Supp.3d 536

JACKSON WOMEN'S HEALTH ORGANIZATION, on Behalf of Itself and Its Patients, et al., Plaintiffs,

v.Mary CURRIER, in Her Official Capacity as State Health Officer of the Mississippi Department of Health, et al., Defendants.

No. 3:18-CV-171-CWR-FKB

United States District Court, S.D. Mississippi.

Signed November 20, 2018

Aaron S. Delaney, Pro Hac Vice, Alexia D. Korberg, Pro Hac Vice, Claudia L. Hammerman, Pro Hac Vice, Crystal M. Johnson, Pro Hac Vice, Caitlin Grusauskas, Pro Hac Vice, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, Christine Parker, Pro Hac Vice, Hillary Schneller, Pro Hac Vice, Julie Rikelman, Pro Hac Vice, Leah Wiederhorn, Pro Hac Vice, New York, NY, Robert B. McDuff, The Law Office of Robert McDuff, Beth L. Orlansky, Jackson, MS, Roberto J. Gonzalez, Pro Hac Vice, Paul, Weiss, Rifkind, Whatron & Garrison, LLP, Washington, DC, for Plaintiffs.

Paul E. Barnes-State Gov., Wilson D. Minor-State Gov., Mississippi Attorney General's Office, Robert E. Sanders, Young Wells Williams Simmons, PA, Gerald A. Mumford, The Mumford Law Firm, PLLC, Pieter Teeuwissen, Simon & Teeuwissen, PLLC, LaShundra B. Jackson-Winters-City Gov., Office of the City Attorney, Jackson, MS, for Defendants.

ORDER GRANTING PERMANENT INJUNCTION

Before Carlton W. Reeves, District Judge.

In March 2018, Mississippi enacted House Bill 1510, one of the most restrictive abortion laws in the country. Plaintiffs filed suit to challenge this law.

There is a lone legal question presented: does H.B. 1510 infringe on the Fourteenth Amendment due process rights of women? It does, unequivocally.

I. Procedural Background

On March 19, 2018, Mississippi enacted H.B. 1510, which is titled "An Act to ... Prohibit Abortions After 15 Weeks' Gestation." The Act can be summarized by § 1.4(b):

Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform, induce, or attempt to perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.

Gestational age is measured by "the time that has elapsed since the first day of the woman's last menstrual period."¹ The two exceptions are limited to narrow circumstances. A "medical emergency" exists only when necessary to save the woman's life or because the woman is facing "a serious risk of substantial and irreversible impairment of a major bodily function."² "Severe fetal abnormality" exists only when the fetus cannot survive outside the womb, no matter the fetus' age.³ If doctors perform abortions outside of the parameters of the Act, they shall have their medical license suspended or revoked and may be subject to an additional civil penalty or fine.⁴

On the day the Act was signed into law, Jackson Women's Health Organization ("JWHO"), the sole facility providing abortion services in Mississippi, and one of its board-certified doctors, Dr. Sacheen Carr-Ellis, filed suit challenging the 15-week ban and requesting a temporary restraining order ("TRO"). The plaintiffs named as defendants the officers of the state responsible for overseeing healthcare and healthcare licensing. An abortion was scheduled for the next day. The Court entered the TRO.

Plaintiffs later amended their complaint, dropping the equal protection challenge to the Act and adding five separate challenges to Mississippi's other abortion laws. The Court bifurcated the claims into two parts; Part I deals with the 15-week ban, and Part II deals with the other challenges to Mississippi's abortion regulations. In the interim, the Court extended the TRO a number of times with the final extension due to expire on November 26, 2018.⁵

Plaintiffs filed for summary judgment on Part I on August 24, 2018. That motion is now fully briefed. The familiar standard applies.⁶

II. Viability is the Controlling Constitutional Precedent

"Liberty finds no refuge in a jurisprudence of doubt."⁷ Roe v. Wade is controlling law.⁸ As the Fifth Circuit said four years ago, it is "important to keep in mind that for more than forty years, it has been settled constitutional law that the Fourteenth Amendment protects a woman's basic right to choose an abortion."⁹

The Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey affirmed the central holding of Roe : "Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure."¹⁰ Courts across the country, including this one, are required to follow Casey's holding that "viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions."¹¹

III. Undisputed Facts

As this Court previously noted in applying Casey and limiting the scope of discovery in this case, "[g]iven the Supreme Court's viability framework, the ban's lawfulness hinges on a single question: whether the 15-week mark is before or after viability."¹²

Viability is not the same for every pregnancy. It is a determination that must be made by a trained medical professional on a case-by-case basis.¹³ The established medical consensus, however, is that viability typically begins between 23 to 24 weeks lmp.¹⁴

The evidence in this case is consistent with the medical consensus. Plaintiffs direct the Court to the affidavits of two board-certified obstetrician/gynecologists who both agree that a fetus is not viable at 15 weeks lmp.¹⁵ In fact, the Mississippi Department of Health's own position has long been that a fetus at 15 weeks lmp has "no chance of survival outside of the womb."¹⁶ The State concedes established medical fact and acknowledges it has been "unable to identify any medical research or data that shows a fetus has reached the ‘point of viability’ at 15 weeks LMP."¹⁷

The consequences of the Act are also undisputed. JWHO provides abortion services until 16 weeks lmp. Dr. Carr-Ellis states in her affidavit that the Act presents her with "an impossible choice: to face potential civil penalties and loss of [her] Mississippi medical license for continuing to safely provide abortion care or to stop providing [her] patients the care they seek and deserve."¹⁸ Generally, once per week the clinic provides an abortion to at least one woman after 14 weeks 6 days lmp.¹⁹ If the Act is allowed to take effect, Dr. Carr-Ellis contends, those patients seeking abortions after 14 weeks 6 days lmp "will either be forced to carry their pregnancy to term against their will or have to leave the state to obtain care."²⁰

The record is clear: States may not ban abortions prior to viability; 15 weeks lmp is prior to viability; and plaintiffs provide abortion services to Mississippi residents after 15 weeks lmp. As the facts establish, the Act is unlawful.

IV. The State's Arguments Disregard Controlling Constitutional Precedent

So, why are we here? Because the State of Mississippi contends that every court who ruled on a case such as this "misinterpreted or misapplied prior Supreme Court abortion precedent."²¹

The State argues that because the Act is only a "regulation," which includes exceptions and was passed in furtherance of the State's legitimate interest in protecting the health of women,²² the Act does not place an undue burden on a woman's right to choose.²³

The State is wrong on the law. The Casey court confirmed that the "State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child" and it may regulate abortions in pursuit of those legitimate interests.²⁴ Those regulations are constitutional only if they do not place an undue burden on a woman's right to choose an abortion.²⁵ But "this ‘undue burden’/‘substantial obstacle’ mode of analysis has no place where, as here, the state is forbidding certain women from choosing pre-viability abortions rather than specifying the conditions under which such abortions are to be allowed."²⁶ There is no legitimate state interest strong enough, prior to viability, to justify a ban on abortions.²⁷

The State's characterization is also wrong. The Act's full title is "An Act to be Known As the Gestational Age Act; To Prohibit Abortions After 15 Weeks' Gestation."²⁸ "Ban" and "prohibit" are synonyms.²⁹ This Act is a ban. It is not a regulation.

Given what Casey says about pre-viability bans, bans do not fare well in court. In Edwards v. Beck , the State of Arkansas, attempting to defend a ban on abortions after 12 weeks, made the exact same argument as the State of Mississippi does here.³⁰ The Eighth Circuit rejected the argument and held that "[w]hether or not exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability."³¹ As the Fifth Circuit explicitly stated in ruling that Louisiana's ban on abortions, which also included certain exceptions, was unconstitutional: "The [Supreme] Court held that before viability, a State's interests are not strong enough to support a prohibition of abortion. Thus, the [state] statute is clearly unconstitutional under Casey. "³²

Pivoting, Mississippi then asks the Court to totally disregard the Casey framework. The State argues this Court should unilaterally adopt a new line of reasoning and look to "fetal pain" instead of viability as a justifiable basis for the ban.³³ The State suggests that Gonzales v. Carhart allows for the adoption of this new framework.

Wrong again. To be absolutely clear, Gonzales does not replace Casey with a new standard.³⁴ Gonzales upheld the ban of a particular type of abortion procedure when other avenues for pre-viability abortions still existed.³⁵ In contrast, after 15 weeks women in Mississippi would be left with no other options.³⁶

The State, of course, has the right to pass leg...