Planned Parenthood Sw. Ohio Region v. DeWine

64 F.Supp.3d 1060

PLANNED PARENTHOOD SOUTHWEST OHIO REGION, et al., Plaintiffs

v.Mike DEWINE, et al., Defendants.

Case No. 1:04–cv–493.

United States District Court, S.D. Ohio, Western Division.

Filed Dec. 2, 2014.

Alphonse Adam Gerhardstein, Jennifer Lynn Branch, Gerhardstein & Branch Co. LPA, Cincinnati, OH, Nicole G. Berner, Planned Parenthood Federation of America, Helene T. Krasnoff, Washington, DC, Jeffrey M. Gamso, Gamso, Helmick & Hoolahan, Toledo, OH, Roger K. Evans, Planned Parenthood Federation of America, New York, NY, for Plaintiff.

Michael Gerard Florez, Roger Edward Friedmann, Cincinnati, OH, Erick D. Gale, Ohio Supreme Court, Bridget C. Coontz, Ryan L. Richardson, Ohio Attorney General's Office, Columbus, OH, for Defendants.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS (Doc. 184.)

SUSAN J. DLOTT, Chief Judge.

This matter is before the Court on Defendant Mike DeWine's Motion to Dismiss, Plaintiffs' Response in opposition, and Defendant's Reply. (Doc. 184, 190, 191.) For the reasons that follow, the Motion to Dismiss is DENIED.

I. BACKGROUND

The facts and issues in this case are well-detailed in the Court's previous orders and will not be reiterated here except as needed for the opinion. In brief, this case involves the constitutionality of Ohio Revised Code § 2919.123, a 2004 state law that bars Ohio physicians from administering or prescribing mifepristone (RU–486) to induce an abortion unless the drug is provided to a patient “in accordance with all provisions of federal law that govern the use of RU–486.” The Act defines “federal law” as “any law, rule, or regulation of the United States or any drug approval letter of the [FDA] that governs or regulates the use of RU–486 (mifepristone) for the purpose of inducing abortions.” O.R.C. § 2919.123(F)(1). The Supreme Court of Ohio has interpreted the Act to mean that “pursuant to R.C. 2919.123, a physician may provide mifepristone for the purpose of inducing an abortion only through the patient's 49th day of pregnancy and only by using the dosage indications and treatment protocols expressly approved by the FDA in the drug's final printed labeling as incorporated by the drug approval letter.” Cordray v. Planned Parenthood Cincinnati Region, 122 Ohio St.3d 361, 911 N.E.2d 871, 879 (2009).

The FDA approved mifepristone for use in the United States in September of 2000 based on clinical trials submitted to the FDA in 1996. The treatment regimen specified by the final printed labeling and approval letter calls for the administration of 600 mg of mifepristone orally, followed by the oral ingestion of 0.4 mg of misoprostol two days later, and limits the administration of mifepristone through seven weeks or for the first forty-nine days following the woman's last menstrual period (“LMP”). Clinical trials subsequently led to the development of an evidence-based protocol calling for a lower dosage of mifepristone that can safely be administered through sixty-three days following the LMP. However, under the Act, any physician employing the evidence-based protocol—also referred to as an off-label mifepristone abortion—is subject to criminal prosecution and disciplinary action, including suspension or revocation of their medical license. O.R.C. § 2919.123(E). The Act contains no exception to protect the health or the life of the patient.

Prior to the Act's enforcement, Plaintiffs and/or their predecessors—physicians and organizations providing abortions to their patients—brought this action pursuant to 42 U.S.C. § 1983 to obtain declaratory relief that the Act is unconstitutional and injunctive relief barring its enforcement. Specifically, Plaintiffs challenged the constitutionality of the statute on the grounds that it (1) is unconstitutionally vague, (2) violates a patient's right to bodily integrity by compelling surgery in circumstances where medical abortion would otherwise be desired or appropriate treatment, (3) lacks the constitutionally-mandated exception to allow otherwise restricted practices where they are necessary to preserve a women's health or life, and (4) imposes an undue burden on a patient's right to choose abortion by prohibiting a safe and common method of pre-viability abortion. Three of Plaintiffs' claims have been litigated to final judgment in Defendants' favor.

The only claim remaining in this action is whether the Act is unconstitutional due to its failure to include an exception to its restrictions where necessary to protect a woman's life or health. The Court previously granted Plaintiffs' motion for a preliminary injunction on their life/health exception claim, which remains in effect to the extent that enforcement of the Act “prohibits off-label mifepristone abortions that are ‘necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’ ” (Order Clarifying the Scope of the Preliminary Injunction 7, Doc. 158 at PageID 2619.) Plaintiffs maintain that for women with specified medical conditions, including some of Plaintiffs' patients, the Act subjects them to significant health risks. Specifically, Plaintiffs contend that surgical abortions are difficult if not impossible for women with particular medical conditions and “[i]f these woman cannot avail themselves of an alternative evidence-based regimen of mifepristone medication after 49 days LMP, their only alternative is to undergo an invasive medical procedure that carries significantly more risk to their health or lives, or to forgo abortion and carry an unwanted pregnancy.” (Doc. 179 at PageID 2783.) Plaintiffs claim the Act is unconstitutional as applied to these women and seek relief in the form of a permanent injunction enjoining Defendants from enforcing the Act where necessary in appropriate medical judgment for the preservation or life of the woman.

II. DEFENDANT'S MOTION TO DISMISS

Defendant has filed a Motion to Dismiss this action for lack of subject matter jurisdiction and for failure to state a claim on which relief may be granted, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) respectively. As discussed below, the Court finds Defendant's motion to be without merit.

A. Subject Matter Jurisdiction

Defendant first argues that the Second Amended Complaint should be dismissed pursuant to Fed. R. Civ. Pro. 12(b)(1) because the Court lacks subject matter jurisdiction. It is Defendant's position that Plaintiffs lack standing to bring the life/health exception claim and that the complaint is not ripe for review.

1. Standing

Defendant contends that the complaint should be dismissed because, as Defendant sees it, the speculative and hypothetical nature of Plaintiffs' allegations deprives them of standing to bring the claim. Specifically, Defendant claims that Plaintiffs' theory of harm impermissibly “relies on a highly attenuated chain of possibilities.” (Doc. 184 at PageID 2794–95 (citing Clapper v. Amnesty Int'l USA, 568 U.S. ––––, 133 S.Ct. 1138, 1148, 185 L.Ed.2d 264 (2013) ).)

Article III, § 2 of the Constitution limits the federal judicial power to the adjudication of cases and controversies. One component of the case-or-controversy requirement is standing, which requires a plaintiff to satisfy three elements. “First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations and quotation marks omitted). Second, a causal connection must exist between the injury and the disputed conduct. In other words, the injury must be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) ). Finally, it must be likely that the injury will be redressed by a favorable decision. Id.

The Court has previously determined that Dr. Kade—the former medical director of the Planned Parenthood affiliate in Cincinnati and Plaintiff Dr. Kress's predecessor in this action—had standing to challenge the Act on behalf of herself and her patients. The Court reasoned that as the director of Planned Parenthood Dr. Kade administered off-label medical abortions with mifepristone in a manner prohibited by the Act and that Dr. Kade faced prosecution if she continued her practice. On this basis, the Court found that she had standing to bring a pre-enforcement challenge. Observing the consistency with which courts have held that physicians whose conduct is regulated by an abortion statute have standing to challenge those statutes on behalf of their patients, the Court also found that Dr. Kade had standing to enforce her patients' rights.

Nevertheless, Defendant cites Clapper v. Amnesty Int'l USA, 568 U.S. ––––, 133 S.Ct. 1138, 1148, 185 L.Ed.2d 264 (2013), for the proposition that Plaintiffs' theory of harm impermissibly “relies on a highly attenuated chain of possibilities.” In Clapper, the Supreme Court considered a pre-enforcement challenge to provisions of the Foreign Intelligence Surveillance Act, which authorizes the surveillance of non-United States individuals reasonably believed to be located outside the United States to acquire foreign intelligence information. The respondents in that case—attorneys and organizations whose work allegedly requires them to engage in communications with individuals targeted by the act—argued that they could establish standing based upon the “objectively reasonable likelihood that their communications with their foreign contacts will be intercepted under [50 U.S.C.] § 1881a at some point in the future.” Id. at 1143. The Supreme Court held that the respondents failed to establish injury in fact, finding that respondents' theory of harm rested on a highly attenuated chain of...