June Med. Servs., LLC v. Gee

306 F.Supp.3d 886

JUNE MEDICAL SERVICES, LLC, et al.

v.Rebekah GEE, et al.

CIVIL ACTION NO.: 17–00404–BAJ–RLB

United States District Court, M.D. Louisiana.

Signed March 29, 2018

Filed March 30, 2018

Charles M. Samuel, III, Rittenberg, Samuel & Phillips, LLC, New Orleans, LA, Amanda M. Bartlett, Holly S. Wintermute, Shannon Rose Selden, DeBevoise & Plimpton, LLP, Caroline Sacerdote, David Brown, Zoe Levine, Jenny, Ma, Center for Reproductive Health, New York, NY, Anna Moody, DeBevoise & Plimpton, LLP, Washington, DC, for June Medical Services, LLC, et al.

Elizabeth Baker Murrill, Office of Attorney General, Baton Rouge, LA, S. Kyle Duncan, Stephen S. Schwartz, Schaerr Duncan LLP, Washington, DC, for Rebekah Gee, et al.

RULING AND ORDER

BRIAN A. JACKSON, CHIEF JUDGE

Before the Court is the Motion to Dismiss (Doc. 22) filed by Defendants, Secretary Rebekah Gee and District Attorney James E. Stewart, Sr., in their official capacities. Plaintiffs filed an opposition to this motion (Doc. 32), to which Defendants replied (Doc. 35). The Court held oral arguments on January 30, 2018. (See Doc. 56). For the following reasons, the motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

According to Plaintiffs, access to abortion has withered in Louisiana since 2001. Eight abortion clinics have closed, and only three remain. (Doc. 1 ¶¶ 191, 201–02). Today, there are approximately 312,000 reproductive-aged women for each clinic in the State, one of the lowest ratios in the entire nation. (Id. at ¶ 203). While access to this constitutionally protected right has steadily declined, the number of laws governing abortions and abortion providers have drastically increased.

First passed in 2001, the Outpatient Abortion Facility Licensing Laws ("OAFLL")¹ govern the personnel, internal policies, facility, reporting, recordkeeping, and licensing of clinics that perform abortion services. (Id. at ¶¶ 4, 50). The Louisiana Legislature substantially revised OAFLL in 2010, and major regulations have been enacted pursuant to the statute, most notably in 2012, 2013, 2015, 2016 and 2017. (Id. at ¶¶ 53, 61, 71, 74–75, 77, & 87). Today, OAFLL and its accompanying regulations place over 1,000 individual requirements on outpatient abortion clinics. (Id. at ¶ 23). Importantly, one of these laws allows for the warrantless inspection of abortion clinics. (Id. at ¶ 103). OAFLL also empowers the secretary of the Louisiana Department of Health ("LDH")² to suspend immediately a clinic's license for any violation of OAFLL, its regulations, or any other federal or State law or regulation. (Id. at ¶ 101).

In addition to OAFLL, which regulates abortion clinics, Louisiana has passed several statutes that purportedly govern the safety of doctors that perform abortions and their patients. (Id. at ¶ 26). Plaintiffs challenge twelve specific statutory provisions in their complaint: La. Rev. Stat. § 14:32.9 (criminalizing abortions by non-licensed physicians); § 14:32.9.1 (criminalizing dismemberment abortion); § 40:1061.10(A)(1) (setting qualifications for physicians who perform abortions); § 40:1061.10(D)(1) (requiring that the physician performing the abortion to also perform the mandatory pre-abortion ultrasound); § 40:1061.11 (requiring that the physician who prescribes abortion drugs be in the room when they are first administered); § 40:1061.16(B) (requiring the provision of printed materials to women at least seventy-two hours prior to an abortion); § 40:1061.16(C) (mandating that the printed materials be provided individually, in a private room, and that the abortion clinic keep records concerning women who receive the materials); § 40:1061.17(B) (setting forth informed consent requirements that allegedly include false or misleading information); § 40:1061.17(C)(8) (requiring a "prominent link" to LDH's abortion alternatives and informed consent website on abortion clinics' webpages); § 40:1061.17(G) (requiring physicians to report all women who receive informed consent information to the State); § 40:1061.19 (mandating the retention of certain records); and, § 40:1061.21 (reporting requirements for all abortions performed).

Plaintiffs in this case are June Medical Services, LLC d/b/a Hope Medical Group for Women ("Clinic Plaintiff")—on behalf of its patients, physicians, and staff—and six doctors who perform abortions ("Doctor Plaintiffs").³ (Id. at ¶¶ 13–17). They challenge the Louisiana abortion laws—as applied—on three grounds. First, Plaintiffs claim that the challenged laws and regulations violate their substantive due process rights by placing an undue burden on women seeking an abortion. Second, Plaintiffs claim that the State's power to suspend immediately a clinic's license for any violation of state or federal law violates their procedural due process rights. Third, Plaintiffs allege that the warrantless search provision violates their Fourth Amendment right to privacy.

II. LEGAL STANDARD

A. Ripeness

Under Federal Rule of Civil Procedure 12(b)(1), "a claim is ‘properly dismissed for lack of subject-matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate’ the claim." In re FEMA Trailer Formaldehyde Prods. Liab. Litig. , 668 F.3d 281, 286 (5th Cir. 2012) (quoting Home Builders Ass'n v. City of Madison , 143 F.3d 1006, 1010 (5th Cir. 1998) ). In order to "prevent a court without jurisdiction from prematurely dismissing a case with prejudice," a court should consider a Rule 12(b)(1) motion for lack of subject-matter jurisdiction before addressing any motions that concern the merits of a case. Id. at 286–87 (citing Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001) ). A motion to dismiss under Rule 12(b)(1) is analyzed under the same standard as a motion to dismiss under Rule 12(b)(6). Benton v. United States , 960 F.2d 19, 21 (5th Cir. 1992).

Article III of the United States Constitution grants federal courts the subject matter jurisdiction "to decide only actual cases or controversies." Choice Inc. of Texas v. Greenstein , 691 F.3d 710, 715 (5th Cir. 2012). "The justiciability doctrines of standing, mootness, political question, and ripeness ‘all originate in Article III's "case" or "controversy" language.’ " Id. at 715 (quoting DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) ). To determine whether a claim is ripe, the court must "balance ‘(1) the fitness of the issues for judicial decision, and (2) the hardship to the parties of withholding court consideration.’ " Planned Parenthood of Gulf Coast, Inc. v. Gee , 862 F.3d 445, 456 (2017) (quoting Texas v. United States , 497 F.3d 491, 498 (5th Cir. 2007) ). When only legal questions remain, a case is generally ripe for adjudication. Id. "[E]ven where an issue presents purely legal questions," however, "the plaintiff must show some hardship in order to establish ripeness." Cent. & S.W. Servs., Inc. v. EPA , 220 F.3d 683, 690 (5th Cir. 2000). The type of hardship necessary to confer standing includes "legal harms, such as the harmful creation of legal rights or obligations; practical harms on the interests advanced by the party seeking relief; and the harm of being ‘force[d] ... to modify [one's] behavior in order to avoid future adverse consequences.’ " Texas , 497 F.3d at 499 (quoting Oh.Forestry Ass'n v. Sierra Club , 523 U.S. 726, 734, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) ).

B. Failure to State a Claim

When reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court must "accept all well-pleaded facts as true and view those facts in the light most favorable to the plaintiff." Hines v. Alldredge , 783 F.3d 197, 200–01 (5th Cir. 2015) (quoting True v. Robles , 571 F.3d 412, 417 (5th Cir. 2009) ). Even so, a complaint must be "plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937. Although the complaint need not set out "detailed factual allegations," it must set forth something "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

III. DISCUSSION

A. Substantive Due Process

1. Cumulative Effects Challenge

Women have a long-established right "to choose to have an abortion before viability and to obtain it without undue interference from the State." Planned Parenthood of Se. Pa. v. Casey , 505 U.S. 833, 846, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (affirming the essential holding of Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ). An undue burden "exists if a regulation's ‘purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’ " Gonzales v. Carhart (Carhart II) , 550 U.S. 124, 146, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (quoting Casey , 505 U.S. at 878, 112 S.Ct. 2791 ). This is true even if the State is seeking to further a legitimate governmental interest in assuring that abortions are performed safely. See Whole Woman's Health v. Hellerstedt , ––– U.S. ––––, 136 S.Ct. 2292, 2309, 195 L.Ed.2d 665 (2016). "The rule announced in Casey ... requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer." Id. At the motion to dismiss stage, Plaintiffs must plausibly plead that the law has the purpose or effect of creating an undue burden on a woman's right to seek an abortion. See Carhart II , 550 U.S. at 146, 127 S.Ct. 1610.

De...