S. Wind Women's Ctr. LLC v. Stitt

455 F.Supp.3d 1219

SOUTH WIND WOMEN'S CENTER LLC, d/b/a Trust Women Oklahoma City, on behalf of itself, its physicians and staff, and its patients, et al., Plaintiffs,

v.J. Kevin STITT in his official capacity as Governor of Oklahoma et al., Defendants.

Case No. CIV-20-277-G

United States District Court, W.D. Oklahoma.

Signed April 20, 2020

J. Blake Patton, Walding & Patton PLLC, Oklahoma City, OK, Alyssa C. Clark, Kathryn E. Barrett, Linda C. Goldstein, Samantha N. Rosa, Dechert LLP, Ezra U. Cukor, Jiaman Wang, Kirby B. Tyrrell, Travis J. Tu, Center for Reproductive Rights, New York, NY, for Plaintiffs.

Bryan G. Cleveland, Mithun S. Mansinghani, Zachary P. West, Attorney General's Office, Oklahoma City, OK, for Defendants.

PRELIMINARY INJUNCTION

CHARLES B. GOODWIN, United States District Judge

This matter is before the Court on Plaintiffs'¹ Motion for Preliminary Injunction (Doc. No. 16). Following the submission of that Motion, Defendants² filed a Response (Doc. No. 54) and Supplement (Doc. No. 82) thereto, Plaintiffs filed a Reply (Doc. No. 84) and Supplements (Doc. Nos. 86, 87) thereto, and Defendants filed a Surreply (Doc. No. 96). Further, Plaintiffs and Defendants submitted proposed findings of fact and conclusions of law (Doc. Nos. 92, 93) and responses to each other's respective proposals (Doc. Nos. 100, 101). Finally, as directed by the Court, Defendants filed a Supplemental Brief (Doc. No. 102) addressing the effect of the executive order and guidance issued by the Governor of Oklahoma on April 16, 2020. In addition to the evidence and argument submitted by the parties in the briefs detailed above, the Court on April 3, 2020, held a telephonic hearing on the initial question of whether a temporary restraining order should issue and, on April 20, 2020, held a telephonic hearing on the question of whether a preliminary injunction should issue.³

This case presents an issue that has long been a source of struggle for the courts: the proper use of the judicial power in reviewing laws and executive orders or actions taken in response to a public health emergency. There is no dispute that the State of Oklahoma—like governments across the globe—is facing a health crisis in the COVID-19 pandemic that requires, and will continue for an indeterminate time to require, emergency measures. In this effort to secure the health and safety of the public, the State has broad power to act and even, temporarily, impose requirements that intrude upon the liberty of its citizens. "[T]he rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand." Jacobson v. Massachusetts , 197 U.S. 11, 29, 25 S.Ct. 358, 49 L.Ed. 643 (1905). That power is not unfettered, however, and courts should carefully guard against "unreasonable," "arbitrary," or "oppressive" exercises of it. Id. at 27, 38, 25 S.Ct. 358. The court's duty, then, is narrow but essential: it must not "usurp the functions of another branch of government" by substituting its opinion for that of the officers tasked with responding to an emergency, see id. at 26, 28, 30, 25 S.Ct. 358, but neither may it permit "a plain, palpable invasion of rights" or any action for which "the means prescribed by the state ... has no real or substantial relation to the protection of the public health and the public safety," id. at 31, 25 S.Ct. 358.

The right at issue here is access to abortion. The Supreme Court has held (and the parties do not dispute, at least for purposes of this action) that the Fourteenth Amendment to the United States Constitution establishes a fundamental right of a woman to "mak[e] the ultimate decision to terminate her pregnancy before viability." Planned Parenthood of Se. Pa. v. Casey , 505 U.S. 833, 879, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality op.). This holding prohibits outright bans on abortion prior to viability and shields the right of access to abortion from any "undue burden" caused by state regulation. See Whole Woman's Health v. Hellerstedt , ––– U.S. ––––, 136 S. Ct. 2292, 2310, 195 L.Ed.2d 665 (2016) ("[T]he standard that this Court laid out in Casey ... asks courts to consider whether any burden imposed on abortion access is ‘undue.’ "). In applying Casey 's undue burden rule, courts must "consider the burdens a law imposes on abortion access together with the benefits those laws confer." Id. at 2309.

Plaintiffs contend that executive orders issued by the Governor of Oklahoma impose a complete ban on nonemergency abortion procedures in the State of Oklahoma, violating the Fourteenth Amendment's guarantees of due process and equal protection. See Compl. ¶¶ 65-70 (Doc. No. 1). Plaintiffs seek entry of a preliminary injunction barring enforcement of those executive orders as applied to previability abortions. See Pls.' Mot. Prelim. Inj. (Doc. No. 16) at 22-33.

I.

At the April 3, 2020 telephonic hearing on Plaintiffs' request for a temporary restraining order, the Court discussed with counsel the procedures to be employed in determining the Motion for Preliminary Injunction. The parties stipulated that the Court may consider the Motion based on the evidence submitted with the briefing of that Motion and need not conduct any additional evidentiary hearing. Specifically, the parties agreed that the Court may accept the submitted affidavit testimony and documentary exhibits as evidence and waived the right to call or cross-examine any affiant (or other witness) at a hearing. At the April 20, 2020 telephonic hearing, the Court heard further argument from counsel for both Plaintiffs and Defendants.

Upon careful consideration of the evidence and argument submitted by the parties, the Court makes the following findings of fact:

1. In Oklahoma, nonemergency abortions are prohibited when "the probable postfertilization age of the woman's unborn child is twenty (20) or more weeks." Okla. Stat. tit. 63, § 1-745.5(A).

2. Plaintiffs in this action are providers of abortion services in Oklahoma. Compl. ¶¶ 9-11. Although each Plaintiff's services vary, one or more of them provide abortion through administration of two pills ("medication" or "chemical" abortion) up to 10 or 11 weeks from the pregnant person's last menstrual period (i.e., eight or nine weeks postfertilization) and provide abortion through cervical suction and/or instruments ("procedural" or "surgical" abortion) up to 21.6 weeks from the last menstrual period (i.e., 19.6 weeks postfertilization). See Pls.' Mot. Prelim. Inj. at 13-15; id. Ex. 5, Burns Decl. ¶ 11 (Doc. No. 16-5); id. Ex. 6, Burkhart Decl. ¶ 2 (Doc. No. 16-6); id. Ex. 7, Hill Decl. ¶ 8 (Doc. No. 16-7).

3. The coronavirus known as COVID-19 ("COVID-19") has caused a global pandemic and public health crisis that is expected to test the limits of this country's healthcare system. On March 13, 2020, President Donald J. Trump declared that the COVID-19 outbreak in the United States constitutes a national emergency.⁴

4. On March 15, 2020, the Governor of Oklahoma issued Executive Order No. 2020-07. See EO 2020-07, https://www.sos.ok.gov/documents/executive/1913.pdf. In EO 2020-07, the Governor declared a state of emergency in all 77 counties in Oklahoma "caused by the impending threat of COVID-19 to the people of this State and the public's peace, health, and safety." Id. at 1.

5. On March 24, 2020, the Governor issued an amended version of EO 2020-07, which directed at Paragraph 18: "Oklahomans and medical providers in Oklahoma shall postpone all elective surgeries, minor medical procedures, and non-emergency dental procedures until April 7, 2020." Compl. Ex. 1, EO 2020-07 (4th Am.) ¶ 18 (Doc. No. 1-1); see also Compl. ¶¶ 1-2.

6. Generally, EO 2020-07 did not specify which surgeries and procedures fall within Paragraph 18's prohibition against elective surgeries and minor medical procedures or prescribe how that determination is to be made. See EO 2020-07 (4th Am.), ¶ 18. As to abortion procedures, the Governor on March 27, 2020, stated in a Press Release that the postponement referenced in the Executive Order applied to "any type of abortion services as defined in 63 O.S. § 1-730(A)(1) [that] are not a medical emergency as defined in 63 O.S. § 1-738.1 [A] or otherwise necessary to prevent serious health risks to the unborn child's mother." Compl. Ex. 2, Press Release at 1 (Doc. No. 1-2).⁵

7. The stated purpose and benefit of EO 2020-07's requirement of postponement of "all elective surgeries" and "minor medical procedures" is to protect the public's health by preventing "(1) close interpersonal contact [in order to slow the rate of spread of the virus], (2) depletion of medical PPE [personal protective equipment], and (3) activities that will increase the use of hospital beds, staff, and other resources." Defs.' Resp. (Doc. No. 54) at 26-27; see also id. at 23-38; accord Defs.' Suppl. Br. (Doc. No. 102) at 4-5.

8. EO 2020-07 states that it was issued pursuant to, among other things, the Oklahoma Emergency Management Act of 2003 ("OEMA," Okla. Stat. tit. 63, §§ 683.1 et seq. ). See EO 2020-07, at 1. Pursuant to the OEMA, the Governor is authorized to "[m]ake, amend, and rescind the necessary orders and rules to carry out the provisions of the [OEMA] within the limits of authority conferred upon the Governor [pursuant to the OEMA], with due consideration of the emergency management plans of the federal government." Okla. Stat. tit. 63, § 683.8(D)(1).

9. On March 26, 2020, the Oklahoma Attorney General stated that "violation of an executive order can be a misdemeanor." Press Release, Attorney General Hunter Clarifies Governor's Executive Order Regarding Law Enforcement Action for Non-Compliance (Mar. 26, 2020), http://www.oag.ok.gov/attorney-general-hunter-clarifies-governors-executive-order-regarding-law-enforcement-action-for-non-compliance. The OEMA provides that willful violation...