Reprod. Health Servs. of Planned Parenthood of the St. Louis Region, Inc. v. Parson

1 F.4th 552

REPRODUCTIVE HEALTH SERVICES OF PLANNED PARENTHOOD OF THE ST. LOUIS REGION, INC., et al, Plaintiffs - Appellees

v.Governor Michael L. PARSON, et al, Defendants - Appellants

Nos. 19-2882

19-3134

United States Court of Appeals, Eighth Circuit.

Submitted: September 24, 2020

Filed: June 9, 2021

Rehearing En Banc Granted, Opinion Vacated July 13, 2021

Andrew Beck, American Civil Liberties Union Foundation, New York, NY, Craig Aaron Benson, Jane B. O'Brien, Amanda J. Sterling, Paul & Weiss, Washington, DC, Claudia Hammerman, Daniel J. Klein, Melina Maria Meneguin Layerenza, Allison C. Penfield, Paul & Weiss, New York, NY, Susan Lambiase, Planned Parenthood Federation of America, New York, NY, Julie A. Murray, Planned Parenthood Federation of America, Washington, DC, Jamie Kathryn Lansford, Arthur Benson, Law Office of Arthur Benson II, Kansas City, MO, Omri E. Praiss, Anthony E. Rothert, Jessie M. Steffan, American Civil Liberties Union of Missouri, Saint Louis, MO, Gillian R. Wilcox, ACLU of Missouri Foundation, Kansas City, MO, for Plaintiffs - Appellees.

Emily Ann Dodge, Dean John Sauer, Justin D. Smith, Attorney General's Office, Jefferson City, MO, for Defendants-Appellants.

Samuel David Green, Lancaster, CA, Kevin Theriot, Alliance Defending Freedom, Scottsdale, AZ, for Amicus on Behalf of Appellant(s) Alliance Defending Freedom.

Susan J. Kohlmann, Jenner & Block, New York, NY, for Amicus on Behalf of Appellee(s) Constitutional Law Scholars

David J. Strom, American Federation of Teachers, Washington, DC, for Amicus on Behalf of Appellee(s) American Federation of Teachers.

Judith E. Rivlin, American Federation of State, County and Municipal Employees, Washington, DC, for Amicus on Behalf of Appellee(s) American Federation of State, County and Municipal Employees.

Nicole Berner, Deputy General Counsel, John M. D'Elia, Dorothy Singletary, Monica Jin Joo Wilk, Service Employees International Union, Legal Department, Washington, DC, Claire Prestel, James & Hoffman, Washington, DC, for Amici on Behalf of Appellee(s) Physician Women for Democratic Principals, Service Employees' International Union, Shout Your Abortion.

Joshua Seth Lipshutz, Attorney, Greta B. Williams, Gibson & Dunn, Washington, DC, Katherine Michelle Marquart, Orin Snyder, Gibson & Dunn, New York, NY, for Amicus on Behalf of Appellee(s) Reproductive Justice Organizations.

Kimberly A. Parker, Wilmer & Cutler, Washington, DC, Alan E. Schoenfeld, Wilmer & Cutler, New York, NY, for Amici on Behalf of Appellee(s) American College of Obstetricians and Gynecologists, American Medical Association, American Academy of Family Physicians, American College of Osteopathic Obstetricians and Gynecologists, American College of Physicians, American Society for Reproductive Medicine, North American Society for Pediatric and Adolescent Gynecology, Society for Maternal- Fetal Medicine.

Karli Eisenberg, Deputy Attorney General, Attorney General's Office, Healthcare Rights and Access, Sacramento, CA, for Amici on Behalf of Appellee(s) State of California, State of Illinois, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Maine, State of Maryland, State of Massachusetts, State of Minnesota, State of Nevada, State of New Mexico, State of New York, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington, District of Columbia.

Before KELLY, WOLLMAN, and STRAS, Circuit Judges.

KELLY, Circuit Judge.

Missouri Governor Michael L. Parson and various other state officials (collectively, Missouri) appeal the district court's¹ grant of a preliminary injunction enjoining the enforcement of several abortion-related provisions of Missouri House Bill 126 (HB 126). We affirm.

I.

Reproductive Health Services of Planned Parenthood of the St. Louis Region and its Chief Medical Officer Dr. Colleen P. McNicholas (together, RHS) provide reproductive healthcare—including pre-viability abortions—in St. Louis, Missouri. On July 30, 2019, RHS filed suit on behalf of themselves, as well as their patients, physicians, and staff, challenging the constitutionality of several provisions of HB 126. At issue here are the "Gestational Age Provisions," Mo. Rev. Stat. §§ 188.056-.058, . 375, and the "Down Syndrome Provision," id. § 188.038, all of which were scheduled to go into effect on August 28, 2019.

The first Gestational Age Provision provides, in relevant part, that "no abortion shall be performed or induced upon a woman at eight weeks gestational age or later, except in cases of medical emergency." Id. § 188.056.1. Sections 188.057, 188.058, and 188.375 are nearly identical to this first provision, except that they apply to abortions performed at or after 14, 18, and 20 weeks gestational age, respectively. See id. §§ 188.057-.058, .375. A provider who violates any of the Gestational Age Provisions faces criminal prosecution and professional discipline. Id. §§ 188.056-.058, . 375.

The Down Syndrome Provision prohibits abortions if the provider "knows that the woman is seeking the abortion solely because of a prenatal diagnosis, test, or screening indicating Down [s]yndrome or the potential of Down [s]yndrome in an unborn child." Id. § 188.038.2.² A provider who violates the Down Syndrome Provision is subject to a number of civil penalties, including professional discipline. Id. § 188.038.4.

RHS filed a motion for preliminary injunction, asserting that these provisions would effectively prohibit RHS from providing pre-viability abortion care in Missouri. The district court determined that both the Gestational Age Provisions and the Down Syndrome Provision banned—rather than merely regulated—pre-viability abortions and found that RHS was "highly likely" to succeed on the merits as to all these provisions.

The district court then found that the balance of equities favored a preliminary injunction as to the Gestational Age Provisions, but not the Down Syndrome Provision. The court explained that, in contrast to the Gestational Age Provisions, the record did not show that enforcement of the Down Syndrome Provision would actually harm anyone in the months leading up to final judgment. Missouri appealed.³ In the meantime, RHS filed a motion for reconsideration (or in the alternative, a renewed motion for preliminary injunction) of the district court's denial of injunctive relief as to the Down Syndrome Provision. In support, RHS submitted additional evidence—namely, a supplemental declaration from Dr. McNicholas discussing, in part, three patients she treated in the preceding 12 months who sought abortions after receiving a fetal diagnosis of Down syndrome.

The district court granted RHS's motion for reconsideration and modified its preliminary injunction to include the Down Syndrome Provision. Both orders granting preliminary injunctive relief are now before this court. See Reprod. Health Servs. of Planned Parenthood of St. Louis Region, Inc. v. Parson (RHS I ), 389 F. Supp. 3d 631 (W.D. Mo. 2019) ; Reprod. Health Servs. of Planned Parenthood of St. Louis Region, Inc. v. Parson (RHS II ), 408 F. Supp. 3d 1049 (W.D. Mo. 2019).

II.

A.

As a preliminary matter, Missouri argues that RHS lacks both individual and third-party standing. To establish standing under Article III of the U.S. Constitution, a plaintiff must show "(1) injury in fact, (2) a causal connection between that injury and the challenged conduct, and (3) the likelihood that a favorable decision by the court will redress the alleged injury." Young Am. Corp. v. Affiliated Comput. Servs. (ACS), Inc., 424 F.3d 840, 843 (8th Cir. 2005) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). But as RHS points out, "[e]ven in cases in which the plaintiff sues to enforce another person's rights, the injury-in-fact requirement turns on the plaintiff ’s personal stake in the controversy." This is because Article III requires plaintiffs to have a "sufficiently concrete interest in the outcome of [the] suit to make it a case or controversy." Sec'y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 955 n.5, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) (alteration in original) (quoting Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) ). Generally, physicians have Article III standing to challenge abortion laws that subject them to governmental sanctions. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 903-04, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion); Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).

Here, the Gestational Age Provisions and the Down Syndrome Provision directly target physician conduct. Because these provisions put physicians at risk of civil and criminal sanctions, RHS has the requisite personal stake to establish individual standing under Article III. Moreover, RHS also has standing to sue on behalf of its patients. See June Med. Servs. L.L.C. v. Russo, ––– U.S. ––––, 140 S. Ct. 2103, 2118-19, 207 L.Ed.2d 566 (2020) (plurality opinion). The Supreme Court has "generally permitted plaintiffs to assert third-party rights in cases where the enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights." Id. (cleaned up). This is in part because the " ‘threatened imposition of governmental sanctions’ for noncompliance ... assures us that the plaintiffs have every incentive to ‘resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function.’ " Id. at 2119 (quoting Craig v. Boren, 429 U.S. 190, 195, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) ); see also Singleton, 428 U.S. at 117, 96 S.Ct. 2868 (explaining that abortion providers can also show third-party standing based on the "closeness of [their] relationship" with their patients, as well as on the risk of "imminent mootness" that might pose...