Jackson Women's Health Org. v. Dobbs

945 F.3d 265

JACKSON WOMEN'S HEALTH ORGANIZATION, on behalf of itself and its patients; Sacheen Carr-Ellis, M.D., M.P.H., on behalf of herself and her patients, Plaintiffs - Appellees

v.Thomas E. DOBBS, M.D., M.P.H., in his official capacity as State Health Officer of the Mississippi Department of Health; Kenneth Cleveland, M.D., in his official capacity as Executive Director of the Mississippi State Board of Medical Licensure, Defendants - Appellants

No. 18-60868

United States Court of Appeals, Fifth Circuit.

FILED December 13, 2019

Hillary Schneller, Center for Reproductive Rights, New York, NY, Aaron Sean Delaney, Caitlin Grusauskas, Claudia Hammerman, Alexia Korberg, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, NY, Crystal Johnson Geise, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., Washington, DC, Robert Bruce McDuff, Esq., Jackson, MS, Beth Levine Orlansky, Mississippi Center for Justice, Jackson, MS, Julie Rikelman, Esq., Center for Reproductive Rights, New York, NY, for Plaintiffs-Appellees JACKSON WOMEN'S HEALTH ORGANIZATION, on behalf of itself and its patients, SACHEEN CARR-ELLIS, M.D., M.P.H., on behalf of herself and her patients.

Paul Eldridge Barnes, Esq., Wilson Douglas Minor, Esq., Assistant Attorney General, Office of the Attorney General for the State of Mississippi, Jackson, MS, Wilson Douglas Minor, Esq., Assistant Attorney General, for Defendants-Appellants THOMAS E. DOBBS, M.D., M.P.H., in his official capacity as State Health Officer of the Mississippi Department of Health, KENNETH CLEVELAND, M.D., in his official capacity as Executive Director of the Mississippi State Board of Medical Licensure.

John J. Bursch, Bursch Law, P.L.L.C., Caledonia, MI, for Amicus Curiae MISSISSIPPI GOVERNOR PHIL BRYANT.

Kyle Douglas Hawkins, Beth Ellen Klusmann, Esq., Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Amici Curiae STATE OF TEXAS, STATE OF LOUISIANA.

Christian Janet Strickland, Schwartz, Orgler & Jordan, P.L.L.C., Biloxi, MS, Stephen James Carmody, Esq., Brunini, Grantham, Grower & Hewes, P.L.L.C., Jackson, MS, for Amici Curiae ROMAN CATHOLIC DIOCESE OF BILOXI, MISSISSIPPI, ROMAN CATHOLIC DIOCESE OF JACKSON, MISSISSIPPI.

Karli Eisenberg, Office of the Attorney General, Sacramento, CA, for Amici Curiae STATE OF COLORADO, STATE OF CONNECTICUT, STATE OF DELAWARE, STATE OF HAWAII, STATE OF ILLINOIS, STATE OF IOWA, STATE OF MAINE, STATE OF MARYLAND, STATE OF MASSACHUSETTS, STATE OF MICHIGAN, STATE OF MINNESOTA, STATE OF NEVADA, STATE OF NEW MEXICO, STATE OF NEW YORK, STATE OF OREGON, STATE OF PENNSYLVANIA, STATE OF RHODE ISLAND, STATE OF VERMONT, STATE OF VIRGINIA, STATE OF WASHINGTON, DISTRICT OF COLUMBIA.

Stuart Sarnoff, O'Melveny & Myers, L.L.P., New York, NY, for Amicus Curiae CONSTITUTIONAL LAW SCHOLARS.

Janice Mac Avoy, Alexis Casamassima, Alexis Fallon, Fried, Frank, Harris, Shriver & Jacobson, L.L.P., New York, NY, for Amicus Curiae SOCIETY FOR MATERNAL-FETAL MEDICINE.

Claude Szyfer, Stroock, Stroock & Lavan, L.L.P., New York, NY, for Amici Curiae ACCESS TO REPRODUCTIVE CARE-SOUTHEAST, BLACK WOMEN'S HEALTH IMPERATIVE, FEMINIST WOMEN'S HEALTH CENTER, IN YOUR OWN VOICE: NATIONAL BLACK WOMEN'S REPRODUCTIVE JUSTICE AGENDA, LIFT LOUISIANA, MISSISSIPPI IN ACTION, NATIONAL ASIAN PACIFIC AMERICAN WOMEN'S FORUM, NEW ORLEANS ABORTION FUND, SISTERLOVE, INCORPORATED, SISTERSONG, SPARK REPRODUCTIVE JUSTICE NOW!, INCORPORATED, WOMEN WITH A VISION.

Priscilla Joyce Smith, Esq., Yale Law School, Brooklyn, NY, for Amicus Curiae INFORMATION SOCIETY PROJECT AT YALE LAW SCHOOL.

Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge.

This case concerns a Mississippi law that prohibits abortions, with limited exceptions, after 15 weeks’ gestational age. The central question before us is whether this law is an unconstitutional ban on pre-viability abortions. In an unbroken line dating to Roe v. Wade , the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban. Thus, we affirm the district court’s invalidation of the law, as well as its discovery rulings and its award of permanent injunctive relief.

I.

On March 19, 2018, Mississippi enacted House Bill 1510, entitled the "Gestational Age Act" ("the Act").¹ The Act provides that, in most cases, an abortion cannot be performed until a physician first determines and documents a fetus’s probable gestational age.² Then,

[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not 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.³

The legislature found that most abortions performed after 15 weeks’ gestation are dilation and evacuation procedures and that "the intentional commitment of such acts ... is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession." It also found that developments in medical knowledge of prenatal development have shown that, for example, the abilities to open and close fingers and sense outside stimulations develop at 12 weeks’ gestation. Finally, it found that abortion carries risks to maternal health that increase with gestational age, and it noted that Mississippi has legitimate interests in protecting women’s health.

On the day the Act was signed into law, Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors, Dr. Sacheen Carr-Ellis (collectively "the Clinic"), filed suit challenging the Act and requesting an emergency temporary restraining order. The next day, the district court held a hearing and issued a temporary restraining order.⁴

The district court also granted the Clinic’s motion to limit discovery to the issue of viability. It determined that the Act "is effectively a ban on all elective abortions after 15 weeks," and "[g]iven the Supreme Court’s viability framework, that ban’s lawfulness hinges on a single question: whether the 15-week mark is before or after viability." Under this view, Mississippi’s asserted state interests were irrelevant and the State’s discovery was aimed at rejecting the Supreme Court’s viability framework, not at defending the Act within that framework.

The State served extensive written discovery requests, which the Clinic opposed to the extent they reached beyond the viability question. The State also designated Dr. Maureen Condic as an expert in neurological embryology and fetal development. On the Clinic’s motion, the district court excluded Dr. Condic’s expert report because the State had conceded that it pertained to the issue of fetal pain and not to viability.⁵

Discovery concluded and the Clinic moved for summary judgment. The Clinic submitted evidence that viability is medically impossible at 15 weeks LMP. The State conceded that it had identified no medical evidence that a fetus would be viable at 15 weeks. It also conceded that the Act bans abortions for some women prior to viability. Still, the State opposed summary judgment because the Act "merely limits the time frame" in which women must decide to have an abortion and because the Supreme Court has left unanswered whether Mississippi’s asserted state interests can justify the Act.

The district court granted summary judgment to the Clinic. The Act was unconstitutional, the court held, because "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."⁶ As summarized by the district court, "[t]he 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."⁷ Finally, rejecting the State’s argument that the Clinic could only seek an injunction up to 16 weeks LMP (since the Clinic does not provide abortions after that point), the district court permanently enjoined the Act in all applications.⁸

II.

This Court reviews a grant of summary judgment de novo, applying the same standard as the district court.⁹ Summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."¹⁰ A district court’s decision to limit discovery is reviewed for abuse of discretion,¹¹ as is a district court’s tailoring of injunctive relief.¹²

III.

The State raises five main arguments on appeal: (1) the Supreme Court’s decision in Gonzales v. Carhart preserves the possibility that a "state’s interest in protecting unborn life can justify a pre-viability restriction on abortion";¹³ (2) the district court abused its discretion by restricting discovery, thus stymying the State’s effort to develop the record; (3) the district court failed to defer to the legislature’s findings; (4) the Act imposes no undue burden, as it only shrinks by one week the window in which women can elect to have abortions; and (5) the Clinic lacked standing to challenge the Act’s application after 16 weeks, the point at which the Clinic stops providing abortions under its own procedures.

These issues collapse to three: whether the summary-judgment order properly applies the Supreme Court’s abortion jurisprudence, whether limiting discovery to viability was an abuse of discretion, and whether the scope of injunctive relief was proper.

A.

In Roe v. Wade , the Supreme Court held that the right to privacy "is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy."¹⁴ Casey "reaffirm[ed]" Roe ’s "recognition of the right of the woman to...