Planned Parenthood Sw. Ohio Region v. Dewine, s. 17-3866/3867

931 F.3d 530

PLANNED PARENTHOOD SOUTHWEST OHIO REGION; Planned Parenthood of Greater Ohio; Preterm ; Timothy Kress, Plaintiffs-Appellees,

v.Mike DEWINE (17-3866) ; Joseph Deters (17-3867), Defendants-Appellants.

Nos. 17-3866/3867

United States Court of Appeals, Sixth Circuit.

Argued: October 16, 2018

Decided and Filed: July 25, 2019

Rehearing En Banc Denied August 2019^*

ARGUED: Hannah C. Wilson, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant Mike DeWine. Jennifer L. Branch, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for Appellees. ON BRIEF: Eric E. Murphy, Stephen P. Carney, Tiffany L. Carwile, Bridget C. Coontz, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant Mike DeWine. Roger E. Friedmann, Michael G. Florez, HAMILTON COUNTY PROSECUTOR’S OFFICE, Cincinnati, Ohio, for Appellant Joseph Deters. Jennifer L. Branch, Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for Appellees.

Before: MERRITT, DAUGHTREY, and STRANCH, Circuit Judges.

MARTHA CRAIG DAUGHTREY, Circuit Judge.

Planned Parenthood brought this challenge to an Ohio statute that regulates the use and prescription of mifepristone for the medical induction of abortion. Based on the likelihood of success of one of its claims, Planned Parenthood obtained a preliminary injunction, which this court eventually narrowed to an as-applied injunction and which restrained enforcement of the law for almost 12 years. Before a final adjudication of the merits of that claim, however, actions by the Food and Drug Administration (FDA), a non-party in this case, mooted the dispute. Planned Parenthood sought and was awarded attorneys’ fees and costs for the work it did in litigating the preliminary injunction. Defendants Michael Dewine, the Attorney General of Ohio, and Joseph Deters, the Hamilton County Prosecuting Attorney and representative of a defendant class of all prosecuting attorneys in Ohio, appeal the district court’s fee award. They argue that Planned Parenthood does not properly qualify as a "prevailing party" because its relief was narrow, temporary, and preliminary; that the district court erred in refusing to apply a blanket fee reduction based on Planned Parenthood’s degree of success; and that the district court erred in applying 2016 rates rather than 2006 rates in calculating the award. We conclude that the district court properly engaged in a contextual, case-specific review and appropriately determined that Planned Parenthood prevailed in this litigation because its relief, albeit preliminary, was based on the merits of its claim, provided a benefit to the plaintiffs, and was sufficiently lasting. Furthermore, the district court properly considered the law and the aims of 42 U.S.C. § 1988 and adequately explained its rationale for refusing to apply a blanket fee reduction and for using 2016 rates to calculate the award. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2004, the Ohio General Assembly enacted Ohio Revised Code § 2919.123, which regulates the use and prescription of mifepristone (also known as RU-486). Mifepristone is a drug commonly used in conjunction with another drug, misoprostol, to induce abortion in the first trimester without the need for the patient to undergo surgery. In 2000, the FDA approved the use of mifepristone to end a pregnancy based on a dosage protocol that used 600 milligrams of the drug and could be prescribed through 49 days following a woman’s last menstrual period (LMP). However, following FDA approval, physicians prescribing mifepristone began relying on a newer, evidence-based protocol that allowed the drug’s usage through 63 days post-LMP and prescribed only 200 milligrams of the drug.

Though physician reliance on evidenced-based, "off-label" protocols is standard medical practice and is often protected in certain areas of state law, including in Ohio, see, e.g., Ohio Rev. Code § 1751.66(A), with regard to mifepristone, the state saw fit to limit physicians’ prescribing options. To that end, the Ohio legislature passed the mifepristone statute, which criminalizes uses of mifepristone not "in accordance with all provisions of federal law that govern the use of RU-486 (mifepristone) for inducing abortions." Ohio Rev. Code § 2919.123(A). Further, the statute defines "federal law" as including "any drug approval letter of the food and drug administration of the United States." Ohio Rev. Code § 2919.123(F)(1).

On August 2, 2004, slightly over a month before the statute was scheduled to take effect, Planned Parenthood Cincinnati Region, two additional Planned Parenthood clinics, and one other reproductive healthcare provider not affiliated with Planned Parenthood¹ brought suit against the governor of Ohio, the attorney general of Ohio, and a defendant class of the state’s prosecuting attorneys in their official capacities. Planned Parenthood challenged the statute pursuant to 42 U.S.C. § 1983 on behalf of themselves and their patients.

Planned Parenthood’s complaint alleged four claims: the statute was unconstitutional due to vagueness; it violated individuals’ bodily autonomy; it imposed an undue burden on patients’ right to abortion; and it violated due process because it lacked an exception to protect the health or life of the woman. With regard to the health-or-life-exception claim, Planned Parenthood argued that certain medical conditions render induced abortion via medication (rather than surgery) safer and thus necessary for particular patients through 63 days post-LMP. Planned Parenthood sought declaratory relief as well as a preliminary injunction and a permanent injunction preventing enforcement of the statute. The same day, Planned Parenthood filed a motion and a supporting memorandum of law seeking a preliminary injunction. The state opposed the motions and filed its own motion to dismiss Planned Parenthood’s complaint.

Following a two-day evidentiary hearing, the district court denied the state’s motion to dismiss and granted Planned Parenthood’s motion for a preliminary injunction on September 22, 2004, the day before the statute was to go into effect. The district court enjoined the statute in full, holding that, due to its lack of a health-or-life exception, the plaintiffs "ha[d] a substantial likelihood of success on the merits that the [statute] violates the Due Process Clause and is unconstitutional." Planned Parenthood Cincinnati Region v. Taft , 337 F. Supp. 2d 1040, 1047 (S.D. Ohio 2004). The district court also found that the equities balanced in Planned Parenthood’s favor, largely due to its substantial likelihood of success on the merits of its health-or-life-exception claim. The district court did not address Planned Parenthood’s other claims.

On February 24, 2006, we affirmed the district court’s order in part, and on April 13, 2006, we issued an amended decision but still found "no basis for overturning the district court’s determination that [Planned Parenthood] had established a strong likelihood of succeeding on the merits of their claim that the [statute] is unconstitutional because it lacks a health or life exception." Planned Parenthood Cincinnati Region v. Taft , 444 F.3d 502, 518 (6th Cir. 2006). However, we affirmed the injunction only "insofar as it prohibits unconstitutional applications of the [statute]" and vacated the injunction to the extent that its application was overbroad. Id. at 517–18. We then remanded the case for reconsideration of the scope of the injunction in light of legislative intent and Planned Parenthood’s other claims. Id.

Following that ruling, Planned Parenthood filed a consolidated motion in the district court seeking summary judgment on their vagueness claim or, in the alternative, a renewed preliminary injunction of the statute in its entirety based on the plaintiffs’ remaining constitutional claims. On September 27, 2006, the district court granted Planned Parenthood’s motion and permanently enjoined the statute in its entirety. The state appealed.

On December 1, 2006, prior to resolution of the state’s appeal, Planned Parenthood filed a motion seeking $475,886.77 in attorneys’ fees for work done through November 30, 2006.² This total included a ten-percent fee reduction to acknowledge and offset the possibility of duplicated efforts. On February 1, 2007, the state filed a motion to stay the fee-motion proceedings, and the district court granted the stay.

Following the district court’s stay of Planned Parenthood’s attorneys’ fees application, litigation continued. In June 2008, we sua sponte certified two questions to the Supreme Court of Ohio regarding interpretation of the statute. Planned Parenthood of Cincinnati Region v. Strickland , 531 F.3d 406, 412 (6th Cir. 2008) ( Strickland I ). We first asked the Court to determine whether the statute "mandate[s] that physicians in Ohio who perform abortions using mifepristone do so in compliance with the forty-nine-day gestational limit described in the FDA approval letter[.]" Second, we asked whether the statute "mandate[s] that physicians in Ohio who perform abortions using mifepristone do so in compliance with the treatment protocols and dosage indications described in the drug’s final printed labeling[.]" Id. Our decision in Strickland I expressly stated that the injunction restraining all enforcement of the statute would remain in place pending the Ohio Supreme Court’s review and a further order from the Sixth Circuit. Id. at 414.

On July 1, 2009, the Supreme Court of Ohio issued its opinion addressing the certified questions, confirming that the statute requires physicians to adhere to the FDA’s drug-approval letter and final printed label. Thus, it required physicians using mifepristone to induce abortion to prescribe a 600 milligram dose and to do so only through 49 days post-LMP.

Cordray v. Planned Parenthood Cincinnati Region , 122 Ohio St.3d 361, 911 N.E.2d 871, 877–79 (2009). According to the Ohio Supreme Court,...