Summit Medical Center of Alabama, Inc. v. Riley

284 F.Supp.2d 1350

SUMMIT MEDICAL CENTER OF ALABAMA, INC., New Women's Health Care; Beacon Women's Center; on behalf of themselves and their patients seeking abortions, Plaintiffs, v. Bob RILEY, in his official capacity as Governor for the State of Alabama and his agents and successors; Bill Pryor, in his official capacity as Attorney General for the State of Alabama and his agents and successors; Donald Williamson, M.D., in his official capacity as State Health Officer for the Alabama Department of Public Health and his agents and successors; and Ellen Brooks, in her official capacity as Montgomery District Attorney, Defendants.

No. CIV.A. 02-A-1064-N.

United States District Court, M.D. Alabama, Northern Division.

September 15, 2003.

COPYRIGHT MATERIAL OMITTED

M. Wayne Sabel, Sabel & Sabel, P.C., Montgomery, AL, David A. Gespass, Gespass & Johnson, Birmingham, AL, Linda A. Rosenthal, Angela Hooton, Center for Reproductive Rights, New York City, for plaintiffs.

William H. Pryor, Jr., Attorney General, Charles B. Campbell, Office of the Attorney General, Montgomery, AL, A. Eric Johnston, Birmingham, AL, Patricia E. Ivie, John R. Wible, Alabama Department of Public Health, William D. Dill, Office of the Attorney General, Troy R. King, Office of the Governor, Montgomery, AL, for defendants.

MEMORANDUM OPINION AND ORDER

ALBRITTON, Chief Judge.

I. INTRODUCTION

This cause is before the court on a Motion to Alter or Amend Order on Summary Judgment filed by the Defendants on August 8, 2003 (Doc. # 100).

On July 23, 2003, the court issued a Memorandum Opinion and Order (Doc. # 99) in which, inter alia, the court granted partial summary judgment in favor of the Plaintiffs, concluding that the last sentence of Alabama Code section 26-23A-5(c) violates the First Amendment to the United States Constitution to the extent that it may be applied to providers of abortions. See Summit Medical Center of Alabama, Inc. v. Riley, 274 F.Supp.2d 1262, 1283 (M.D.Ala.2003). Pursuant to Federal Rule of Civil Procedure 59(e), the Defendants have filed a motion requesting that the court reconsider its decision.

II. MOTION TO RECONSIDER STANDARD

District courts are necessarily afforded substantial discretion in ruling on motions for reconsideration. Mincey v. Head, 206 F.3d 1106, 1137 (11th Cir.2000) ("The decision whether to alter or amend a judgment pursuant to Rule 59(e) is committed to the sound discretion of the district judge.") (internal quotations omitted). "Because litigants cannot be repeatedly called upon to backtrack through the paths of litigation, reconsideration of a previous order is an extraordinary remedy to be employed sparingly." Groover v. Michelin N. Am., Inc., 90 F.Supp.2d 1236, 1256 (M.D.Ala.2000) (internal quotations omitted). Accordingly, "[m]otions to amend should not be used to raise arguments which could, and should, have been made before the judgment was issued." O'Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir.1992); see Am. Home Assurance Co. v. Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1239 (11th Cir.1985) ("There is a significant difference between pointing out errors in a court's decision on grounds that have already been urged before the court and raising altogether new arguments on a motion to amend; if accepted, the latter essentially affords a litigant `two bites at the apple.'"). Instead, courts have recognized three grounds justifying reconsideration: 1) an intervening change in controlling law; 2) the availability of new evidence; and 3) the need to correct clear error or manifest injustice. See Groover, 90 F.Supp.2d at 1256.

III. FACTS AND PROCEDURAL HISTORY

The State of Alabama adopted The Woman's Right to Know Act ("Act") on April 17, 2002. See Ala.Code §§ 26-23A-1 to 13. Its purpose is "to ensure that every woman considering an abortion receives complete information on the procedure, risks, and her alternatives." Id. at § 26-23A-2(b). Among other things, the Act requires the Alabama Department of Public Health ("ADPH") to create an informational brochure containing the following information:

(1) Geographically indexed printed materials designed to inform the woman of public and private agencies and services available to provide medical and financial assistance to a woman through pregnancy, prenatal care, upon childbirth, and while her child is dependent. The materials shall include a comprehensive list of the agencies, a description of the services offered, and the telephone numbers and addresses of the agencies.

(2) The printed materials shall include a list of adoption agencies geographically indexed and that the law permits adoptive parents to pay the cost of prenatal care, childbirth and neonatal care.

(3) Printed materials that inform the pregnant woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term. It shall include color photographs of the developing child at each of the two-week gestational increments, a clear description of the unborn child's development, any relevant information on the possibility of the unborn child's survival, and dimensions of the unborn child. The materials shall be realistic, clear, objective, non-judgmental, and designed to convey only accurate scientific information about the unborn child at the various gestational ages.

(4) The materials shall contain objective information describing the methods of abortion procedures commonly employed and the medical risks of each, and the medical risks associated with carrying a child to term.

(5) The printed materials shall list the support obligations of the father of a child who is born alive.

(6) The printed materials shall state that it is unlawful for any individual to coerce a woman to undergo an abortion, that any physician who performs an abortion upon a woman without her informed consent may be liable to her for damages in a civil action at law.

(7) The material shall include the following statement: "There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or place him or her for adoption. The State of Alabama strongly urges you to contact those agencies before making a final decision about abortion. The law requires that your physician or his or her agent give you the opportunity to call agencies like these before you undergo an abortion."

Id. at § 26-23A-5(a). These materials "shall be in a bound booklet, shall contain large clear photographs, and shall be printed in a typeface large enough to be clearly legible." Id. at § 26-23A-5(b). Under the Act, a physician or qualified person¹ must provide a copy of the information booklet to a woman seeking an abortion at least 24 hours prior to the abortion procedure. Id. at § 26-23A-4(a).

In addition to the information booklet, the Act requires ADPH to create a video tape detailing much of the information in the printed materials as well as a consent form in order for the patient to verify that she gives informed consent pursuant to the Act. Id. at §§ 26-23A-(6)(a), (c). Unlike the mandatory printed materials, however, the Act does not require patients to view the video tape if they do not want to do so. See id. §§ 26-23A-4(b)(5), 4(d) (stating that a woman gives informed consent if she acknowledges on the consent form that she had the opportunity to view the video tape).

The Act states that ADPH "may charge a reasonable fee based on the cost of producing the materials and video tape." Id. at § 26-23A-(5)(c). According to a letter dated September 18, 2002, ADPH informed the Plaintiffs that the printed information packages may be purchased at a cost of $4.00 each, plus $6.00 shipping and handling. See Memorandum in Support of Plaintiffs' Motion for Summary Judgment (Doc. # 70), Exhibit B. As a service to large volume consumers, however, ADPH stated that it will waive the shipping and handling fees on orders that are received between certain specified dates each year. Id. ADPH also expressed its intent to charge the Plaintiffs $50 for each copy of the video tape. Id.

In their Amended Class Action Complaint, the Plaintiffs' Tenth Claim alleged that the Act's compelled distribution and payment provisions violate the First Amendment because they force abortion providers "to pay money for mandatory speech they do not wish to endorse let alone purchase." Amended Class Action Complaint, ¶ 99. Both the Plaintiffs and Defendants filed cross motions for summary judgment on this claim (Docs. # 69 & 71). After considering the arguments presented, the court granted each party's motion in part. With respect to the compelled distribution provision of the Act, § 26-23A-4(a), the court granted summary judgment in favor of the Defendants, concluding that this section does not run afoul of the First Amendment. See Riley, 274 F.Supp.2d at 1283. As to the Act's compelled payment provision, § 26-23A-5(c), the court granted summary judgment in favor of the Plaintiffs, concluding that this section violates the First Amendment. Id.

IV. DISCUSSION

The Defendants' Motion to Alter or Amend Order on Summary Judgment is directed toward the court's conclusion that the Act's compelled payment provision violates the First Amendment. In support of their motion, the Defendants assert two arguments. First, the Defendants contend that the court failed to view the Act's compelled payment provision within the context of the State's broader regulatory scheme for abortion. The Defendants conclude that by taking a narrow view of the Act's context, the court incorrectly applied United States v. United Foods, Inc., 533 U.S. 405, 121 S.Ct. 2334, 150 L.Ed.2d 438 (2001). Second, the Defendants argue that the court failed to consider whether the State's informational materials are immune from First Amendment scrutiny under the "government speech" do...