Planned Parenthood Great Nw. v. Cameron

1

PLANNED PARENTHOOD GREAT NORTHWEST, HAWAII, ALASKA, INDIANA, AND KENTUCKY, INC., ON BEHALF OF ITSELF, ITS STAFF, AND ITS PATIENTS, Plaintiff and EMW WOMEN'S SURGICAL CENTER, P.S.C., ON BEHALF OF ITSELF, ITS STAFF, AND ITS PATIENTS; ERNEST W. MARSHALL, M.D., ON BEHALF OF HIMSELF AND HIS PATIENTS, Intervenor Plaintiffs v. DANIEL CAMERON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE COMMONWEALTH OF KENTUCKY; ERIC FRIEDLANDER, IN HIS OFFICIAL CAPACITY AS SECRETARY OF KENTUCKY'S CABINET FOR HEALTH AND FAMILY SERVICES; MICHAEL S. RODMAN, IN HIS OFFICIAL CAPACITY AS EXCECUTIVE DIRECTOR OF THE KENTUCKY BOARD OF MEDICAL LICENSURE; AND THOMAS B. WINE, IN HIS OFFICIAL CAPACITY AS COMMONWEALTH'S ATTORNEY FOR THE 30TH JUDICIAL CIRCUIT OF KENTUCKY Defendants

Civil Action No. 3:22-cv-198-RGJ

United States District Court, W.D. Kentucky, Louisville Division

May 26, 2022

MEMORANDUM OPINION & ORDER

REBECCA GRADY JENNINGS DISTRICT JUDGE

Defendant Attorney General Daniel Cameron (“Attorney General”) moves the Court to stay its May 19, 2022 Memorandum Opinion and Preliminary Injunction [DE 65] (“Preliminary Injunction”) pending appeal.^[1] For the reasons below, the Attorney General's Emergency Motion for Stay Pending Appeal (“Motion”) [DE 67] is DENIED.

I. PROCEDURAL BACKGROUND^[2]

On March 29, 2022, the Kentucky Legislature passed House Bill 3 the Humanity in Healthcare Act of 2022 (“HB 3”). [DE 3 at 110]. HB 3 revises Kentucky's existing abortion regulations to create new requirements, including a new regulatory regime for abortion-inducing medication, new reporting, new informed consent requirements, new registration requirements, and new requirements for disposition of fetal remains. Id. HB 3 also bans abortions after 15 weeks. Id. §§ 27(2), 34. Penalties for violating HB 3 include a Class D felony, fines of up to $1 million, and revocation of physician and facility licenses. Id. § 28(6). HB 3 directs Kentucky's Cabinet for Health and Family Services (“Cabinet”) to promulgate regulations, forms, and programs for compliance with the law's mandates within 60 days of the effective date. Id. § 13(1).

On April 8, Governor Andy Beshear vetoed HB 3. [DE 3 at 113]. On April 13, the Kentucky Legislature voted to override Governor Beshear's veto. [DE 1 at 3]. HB 3 contains an emergency clause, causing it to become effective April 13, 2022. HB 3, § 39.

The next day, on Thursday, April 14, Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, and Kentucky, Inc., (“Planned Parenthood”) filed its Complaint, asserting four claims^[3] and seeking emergency relief. [DE 1, DE 3]. Simultaneous with its Complaint, Planned Parenthood filed a Motion for Temporary Restraining Order and Preliminary Injunction [DE 3].

This motion put forth the declaration of Rebecca Gibron (“Gibron Declaration”) that absent injunctive relief, Planned Parenthood would cease providing abortion services as providers could not risk the penalties of non-compliance with HB 3, and that it had services scheduled for April 22 that would need to be cancelled as a result. [DE 3-1, Gibron Decl. at 133-34]. Also on April 14, Planned Parenthood moved the Court to reassign the case, asserting that it is “nearly identical with a related case, ” EMW Women's Surgical Center, P.S.C., et al. v. Eric Friedlander, et al., Case No. 3:19-cv-00178-DJH-RSE (“EMW Case”) already pending in this district. [DE 6 at 149].

On April 15, the Court denied Planned Parenthood's motion to reassign, holding the cases were not “nearly identical” and the interests of justice did not support reassignment. [DE 12]. On that same date the Court entered an order notifying Defendants that the motion for temporary restraining order required an expeditious ruling, and thus, any response needed to be filed by noon on April 19. [DE 13].

On April 19, the Attorney General responded to Planned Parenthood's motion for temporary restraining order.^[4] [DE 21]. Also on April 19, Planned Parenthood replied. [DE 22].

On April 21, the Court issued a Memorandum Opinion & Temporary Restraining Order (“TRO”) restraining Defendants from enforcing HB 3 for a period not to exceed 14 days from the date of entry as required by Federal Rule of Civil Procedure (“FRCP”) 65(b)(2).^[5] [DE 27].

On April 25, EMW Women's Surgical Center and Dr. Ernest W. Marshall (“EMW” and together with Planned Parenthood, “Plaintiffs”) moved to intervene and for clarification of the Court's TRO. [DE 28]. EMW is the only other abortion provider in Kentucky besides Planned Parenthood, but unlike Planned Parenthood, EMW does provide abortions after 15 weeks. [DE 28 at 263].

On April 26, the Court granted EMW's motion to intervene as it was made less than two weeks after this action began and the day after EMW's motion to supplement its complaint with a challenge to HB 3's 15-week ban in the EMW Case was denied. [DE 32]. The Court denied EMW's motion for clarification as moot, reiterating that HB 3 was enjoined in its entirety. Id.

Also on April 26, the Court ordered the preliminary injunction hearing be set for Monday, May 2 at 10:00 a.m. [DE 30]. The Court made clear in its text order that “[f]or the preliminary injunction hearing, the Court expects both sides to explain in detail and designate by section and line the provisions of House Bill 3 they believe can and cannot be complied with before the rules are promulgated and the forms are created by the Cabinet. The parties will also be required to submit proposed findings of fact and conclusions of law after the hearing.” [Id.].

On April 28, EMW filed a Motion for Preliminary Injunction to enjoin HB 3. [DE 38].

On April 29, the Attorney General responded to Planned Parenthood's motion for temporary restraining order [DE 39] and attached a color-coded exhibit chart asserting which of HB 3's provisions the Attorney General believed were capable of compliance. [DE 39-1].

On May 1, the Attorney General filed a response to EMW's motion for preliminary injunction [DE 41] and attached the declaration of Robin Pierucci (“Pierucci Declaration”) discussing whether fetuses are pain-capable at 15 weeks. [DE 41-1]. On that same day, Planned Parenthood replied in support of its motion for temporary restraining order [DE 42], attaching as an exhibit a duplicate of the Attorney General's color-coded chart with an additional column that included Planned Parenthood's response to whether compliance with each provision of HB 3 was possible [DE 42-1]. Also attached to the reply were a copy of the existing abortion reporting form [DE 42-2], a copy of the existing abortion prescription reporting form [DE 42-3], and a copy of the existing cremation authorization form [DE 42-4].

On May 2, EMW replied in support of its motion for preliminary injunction. [DE 43].

The same day, the Court held a three-and-a-half-hour hearing on Plaintiffs' motions for preliminary injunctions. [DE 51].

Based on the issues raised and discussions at the hearing, the Court requested the parties to submit proposed findings of fact and conclusions of law including affidavits supporting any facts relevant to their positions. [DE 51, Hrg. Tr. at 657-58]. The Court allowed for staggered responsive pleadings so that the Attorney General could review Plaintiffs' submissions of facts and affidavits and have an opportunity to contest any facts or affidavits submitted. [Id. at 788-90]. On May 3, the Court entered an order setting forth what was discussed at the hearing and ordering that (1) the official transcript of the hearing be filed by noon on May 4, (2) Plaintiffs submit their briefs by Friday, May 6, (3) Defendants respond by Thursday, May 12, and (4) Plaintiffs file any reply by Monday, May 16. [DE 48].

On May 4, for good cause shown and in order to consider the impending briefing, the Court extended and modified the TRO for another 14 days, to expire May 19.^[6] [DE 49]. Also that same date, at the Court's request, the Cabinet for Health and Family Services (“Cabinet”) filed a status report stating the Cabinet's position on the promulgation of forms and programs required under HB 3. [DE 53].

On Friday, May 6, Plaintiffs filed their findings of fact and conclusions of law [DE 54] and three corresponding sworn declarations: the Miller Declaration [DE 55], the Marshall Declaration [DE 56], and the Lemasters Declaration [DE 57; DE 62] setting forth facts supporting their positions on compliance.

On Thursday, May 12, the Attorney General responded [DE 63], and attached a separate findings of fact and conclusions of law [DE 63-1], as well as several articles, Hospital Miscarriage Ceremonies [DE 63-2], Hospital Deceased Infants [DE 62-3], Archdiocese of Louisville Cemeteries [63-4], Calvary Cemetery, Lexington [63-5], and Paducah cemetery for unborn children set to expand [63-6]. Other than the Perucci Declaration submitted earlier in the record, the Attorney General did not submit any declarations or affidavits.

On May 16, the Plaintiffs submitted their reply in support of their proposed findings of fact and conclusions of law. [DE 63]. Plaintiffs' reply did not contain any new facts or affidavits. Id.

On Thursday May 19, as the temporary restraining order was set to expire, the Court issued its Preliminary Injunction [DE 65] enjoining Defendants from enforcing or otherwise requiring compliance with the specific provisions^[7] of HB 3 until the Cabinet creates a means for compliance. [DE 65 at 1289-90]. The Court also enjoined the Defendants from enforcing Sections 27, 33(2), (4), and (6), and 34 and stayed any related litigation on these sections pending the Supreme Court's decision in Dobbs v. Jackson Women's Health, 945 F.3d 265 (5th Cir. 2019). [Id.] That same day, the Attorney General filed a notice of his appeal to the ...