June Med. Servs. LLC v. Gee

280 F.Supp.3d 849

JUNE MEDICAL SERVICES LLC, et al.

v.Rebekah GEE, et al.

CIVIL ACTION NO.: 16–00444–BAJ–RLB

United States District Court, M.D. Louisiana.

Signed November 15, 2017

Filed November 16, 2017

Charles M. Samuel, III, William E. Rittenberg, Rittenberg, Samuel & Phillips, LLC, New Orleans, LA, David Scannell, Dimitra Doufekias, Morrison & Foerster LLP, Washington, DC, David Brown, Janet Crepps, Molly Duane, Zoe Levine, New York, NY, for June Medical Services LLC, et al.

Elizabeth Baker Murrill, Office of Attorney General, Angelique Duhon Freel, Jeffrey Michael Wale, Louisiana Department of Justice, 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

Pursuant to the Court's Scheduling Order (Doc. 21), Defendants were permitted to file three separate motions to dismiss that addressed distinct sets of issues relating to the Louisiana Legislature's 2016 regulations on abortion. Before the Court are Defendants' First Motion for Partial Dismissal RE: H.B. 606, H.B. 1019, and H.B. 488 (Doc 27); Second Motion for Partial Dismissal RE: S.B. 33, H.B. 815, and H.B. 38 (Doc. 40); and Third Motion for Partial Dismissal RE: H.B. 1081 and Cumulative Impact Claim (Doc. 58). Defendants seek dismissal of Plaintiffs' claims that challenge certain laws enacted by the Louisiana Legislature during the 2016 Regular Legislative Session that place restrictions on abortion providers, patients, doctors, state and local government agencies, as well as private businesses that contract with the state. Plaintiffs in this suit are June Medical Services, LLC ("Clinic Plaintiff"),¹ which brings suit on behalf of its patients, physicians, and staff, and Drs. John Doe 1, John Doe 2, and John Doe 3 ("Doctor Plaintiffs"), who bring suit individually and on behalf of their patients. (Doc. 22 at pp. 1–2). Plaintiffs filed memoranda in opposition to the Motions, (see Docs. 38, 47, 63), and Defendants filed reply memoranda in support of the Motions, (see Docs. 39, 65). The Court conducted hearings on June 16, 2017, and October 2, 2017. (See Docs. 60, 79). For the reasons that follow, Defendants' Motions are GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

During the 2016 Regular Legislative Session, the Louisiana Legislature enacted several laws that address the provision of abortion services within the state: House Bill 606, enacted as Act 304 ("H.B. 606"); House Bill 1019, enacted as Act 563 ("H.B. 1019"); House Bill 488, enacted as Act 98 ("H.B. 488"); Senate Bill 33, enacted as Act 196 ("S.B. 33"); House Bill 815, enacted as Act 593 ("H.B. 815"); House Bill 386, enacted as Act 97 ("H.B. 386"); and House Bill 1081, enacted as Act 264 ("H.B. 1081"). Plaintiffs challenge the legislation both individually and collectively.

A. H.B. 606

H.B. 606 prohibits any "institution, board, commission, department, agency, official, or employee of the state, or of any local political subdivision thereof," from "contract[ing] with, award[ing] any grant to, or otherwise bestow[ing] any funding upon, an entity or organization that performs abortions, or that contracts with an entity or organization that performs abortions, in th[e] state." (Doc. 22–7 at p. 2, ll. 17–20; id. at p. 3, l. 1). This prohibition applies "to state funds, federal funds, and any other funds that may be used for purposes of contracting for services, providing reimbursements, or grant issuance." (Id. at p. 3, ll. 2–3). The statute specifically provides that this prohibition "shall not be construed to restrict funding to an entity that may perform the following types of abortions, exclusively ": (1) "[a]n abortion [that] is medically necessary to prevent the death of the mother," (2) "[a]n abortion in a case when the mother is a victim of rape or incest," or (3) "[a]n abortion performed when the pregnancy is diagnosed as medically futile." (Id. at p. 3, ll. 4–10) (emphasis added).

Clinic Plaintiff alleges that H.B. 606 "threatens abortion clinics' contracts with government entities," as well as "their business relationships with all of their vendors" because H.B. 606 "forces every entity in the State of Louisiana into the Hobson's choice of being eligible [either] to do business with, or receive funds from, the entire state and local public sector ... or ... to contract with abortion clinics." (Doc. 22 at ¶¶ 107–08). Setting aside the effects that Clinic Plaintiff alleges will result from H.B. 606's prohibition of awarding state contracts to entities that contract with abortion providers, Clinic Plaintiff asserts that H.B. 606 facially prohibits it from "contracting for essential services" from government entities. (Id. at ¶ 110). According to Clinic Plaintiff, the effect of H.B. 606 will be that "all [of] Louisiana's abortion clinics will close," thereby depriving women in Louisiana of "access to legal abortion" in the State. (Id. at ¶ 109). Additionally, Clinic Plaintiff alleges that "H.B. 606 imposes a legal stigma on abortion clinics, isolating them by singling them out to Louisiana businesses as uniquely unqualified entities with whom to contract." (Id. at ¶ 111).

B. H.B. 1019

H.B. 1019 makes it unlawful "for any person to intentionally perform or attempt to perform an abortion of an unborn child of twenty or more weeks post-fertilization age" when that person has "knowledge that the pregnant woman is seeking the abortion solely because the unborn child has been diagnosed with either a genetic abnormality or a potential for a genetic abnormality." (Doc. 22–2 at p. 3, ll. 10–15). Further, the statute requires that all women seeking an abortion first be provided an informational document regarding fetal genetic abnormalities: H.B. 1019 makes it unlawful

for a person to intentionally perform or attempt to perform an abortion of an unborn child of less than twenty weeks post-fertilization age without first providing the pregnant woman with an informational document including resources, programs, and services for pregnant women who have a diagnosis of fetal genetic abnormality and resources, programs, and services for infants and children born with disabilities.

(Id. at p. 3, ll. 16–21). The statute directs the Louisiana Department of Health and Hospitals ("DHH") to develop this informational document. Pursuant to the statute, neither of these provisions shall apply "whenever the abortion is necessary [sic] to save the life of the mother." (Id. at p. 4, ll. 3–4).

Plaintiffs challenge both the ban and the informational document. (Doc. 22 at ¶¶ 172–74). In reference to the prohibition on abortions performed after the fetus has reached a gestational age of twenty weeks when a physician has reason to believe that the woman is seeking the abortion due to actual or potential genetic abnormalities of the fetus, Plaintiffs allege that H.B. 1019 "criminalizes pre-viability abortion based solely on the reason [that] the woman is seeking the abortion." (Id. at ¶ 63). Regarding the requirement that all women seeking an abortion be given an informational document containing information about fetal genetic abnormalities, Plaintiffs assert that "[f]or the great majority of women seeking abortions, who have not had a diagnosis of fetal genetic abnormality, or whose pregnancy is medically futile, this information is irrelevant to their decision." (Id. at ¶ 71).

C. H.B. 488

Pursuant to H.B. 488, in order to lawfully perform an abortion in the State of Louisiana, a physician must be "board-certified in obstetrics and gynecology or family medicine or enrolled in a residency program for obstetrics and gynecology or family medicine." (Doc. 22–6 at p. 2, ll. 12–14). If the physician is "enrolled in a residency program for obstetrics and gynecology or family medicine," then that physician must be "under the direct supervision of a physician who is board-certified in obstetrics and gynecology or family medicine." (Id. at p. 2, ll. 13–16). Direct supervision , for purposes of the statute, means that "the physician must be present in the hospital, on the campus, or in the outpatient facility, and immediately available to furnish assistance and direction throughout the performance of the procedure," but "[t]he physician need not be present in the room when the procedure is performed in order to maintain direct supervision." (Id. at p. 3, ll. 4–8). Under prior law, a physician could perform an abortion as long as he or she had "enrolled in or ha[d] completed a residency ... in obstetrics and gynecology or family medicine"; board certification in those disciplines was not required. (Id. at p. 2, ll. 12–13).

Plaintiffs allege that "H.B. 488 limits, without medical justification, the pool of physicians eligible to perform abortion and thus makes it even more difficult for women to obtain abortion[s] in their own communities." (Doc. 22 at ¶ 102). Additionally, Plaintiffs assert that H.B. 488 "also limits, without medical justification, the pool of physicians the Clinic Plaintiff[ ] may hire to perform abortions." (Id. ). According to Plaintiffs, H.B. 488 "reduces women's access to abortions in Louisiana by exacerbating the current shortage of physicians providing abortions in Louisiana, and it threatens the ongoing viability of Clinic Plaintiff[ ] by limiting [its] ability to replace departing physicians and to hire new ones." (Id. ).

D. S.B. 33

S.B. 33 prohibits any person from "knowingly and for money[—]including but not limited to fees for storage or handling, any payments for reimbursement, repayments, or compensation, or any other consideration[—][b]uy[ing], sell[ing], receiv[ing], or otherwise transfer[ing] or acquir[ing] a fetal organ or body part resulting from an induced abortion [or] [t]ransport[ing] with the intent to sell or otherwise transfer a fetal organ or body part resulting from an induced abortion." (Doc. 22–4 at p. 2, ll. 10–16). The provision also makes it unlawful for any person to "[t]ransport a fetal...