JACKSON WOMEN'S HEALTH ORGANIZATION, et al., Plaintiffs
v.
Mary CURRIER, M.D., M.P.H, et al., Defendants.
v.
Mary CURRIER, M.D., M.P.H, et al., Defendants.
P. Roger Googe, Jr., Benjamin G. Bryant, Office of the Attorney General, Jackson, MS, for Defendants.
ORDER
DANIEL P. JORDAN III, District Judge.
*1
This
matter is before the Court on Plaintiffs' Motion for Preliminary
Injunction [5]. Having conducted oral argument and having fully
considered the parties' submissions, the Court finds that the
injunctive relief provided in its previously entered TRO should be
modified. The key issue at this early stage is whether Plaintiffs have
demonstrated irreparable harm justifying preliminary injunctive relief
pending final resolution of the case. This Order protects Plaintiffs
from the limited irreparable harm they have asserted, but allows Mississippi House Bill 1390
(“the Act”) to take effect, at least for now. The Order requires
Plaintiffs to continue to seek admitting privileges—as they said they
would—and enjoins Defendants from exposing Plaintiffs to criminal or
civil penalties for continued operation—something Defendants have no
immediate plans to pursue. The motion will therefore be granted in part.
I. Facts and Procedural History
The
Act requires that all physicians associated with abortion clinics have
admitting and staff privileges at a local hospital and be board
certified in obstetrics and gynecology. At the time the Act was passed,
Jackson Women's Health Organization (“JWHO” or “the Clinic”) was the
only abortion clinic in the State of Mississippi, and only one of its
doctors had such privileges. That remains the case, and the one doctor
with privileges has a regular, private OB/GYN practice and does not
provide the majority of abortions. The two doctors providing the
majority of the Clinic's services do not have admitting or staff
privileges, though they have sought such privileges since the passage
of the Act.
Plaintiffs
previously sought a TRO to block the July 1, 2012, effective date of
the Act. But before that date arrived, the State took several actions
to address Plaintiffs' concerns, to include renewing the Clinic's
license and offering assurances that Plaintiffs would not be prosecuted
for any violations of the Act at this time. Plaintiffs nevertheless
argued that irreparable injury would occur and they were granted a TRO
on July 1, 2012. Extensive briefing and oral argument followed. The
parties agreed to forego an evidentiary hearing and rely on the
affidavits and other record evidence. The Court has personal and
subject matter jurisdiction.
II. Analysis
This
case is before the Court on a motion for preliminary injunction. To
obtain such relief, the moving party must establish four elements:
(1)
substantial likelihood of success on the merits; (2) substantial threat
that plaintiff will suffer irreparable injury; (3) injury outweighs any
harm the injunction might cause the defendant; and (4) injunction is in
the public interest.
Women's Med. Ctr. of Nw. Houston v. Bell, 248 F.3d 411, 419 n.15 (5th Cir.2001). The key issue before the Court at this time is the second element—irreparable injury.
The
case presents in a somewhat unusual posture. As an initial point, we do
not yet know whether the Clinic will be able to comply with the Act.
Presently, it does not, but under section 41–75–16 of the Mississippi Code,
it must be given “a reasonable time, under the particular circumstances
not to exceed six (6) months from the date [newly-enacted licensing
requirements] are duly adopted, within which to comply with such rules
and regulations and minimum standards.” According to Defendants, the
“duly adopted” date is the date the administrative rules promulgated
under the Act took effect, which was July 11, 2012. Thus, it is
certainly possible that when the Clinic's deadline to comply finally
arrives it will be in full compliance. Or, it may not be. This begs the
question whether any alleged harm constitutes irreparable injury at this time.
*2
The
“decision regarding irreparable injury to the plaintiff must not be
based on the ultimate issue of the constitutionality of the statute.”
Manning v. Hunt, 119 F.3d 254, 264 (4th Cir.1997). Even if
an act is unconstitutional, it will not be preliminarily enjoined
unless the plaintiff proves an irreparable harm. This standard was
summarized in United States v. Emerson:
a
preliminary injunction will not be issued simply to prevent the
possibility of some remote future injury. A presently existing actual
threat must be shown. However, the injury need not have been inflicted
when application is made or be certain to occur; a strong threat of
irreparable injury before trial is an adequate basis.
270 F.3d 203, 262 (5th Cir.2001). In Holland America Insurance Co. v. Succession of Roy, the court noted that “[s]peculative injury is not sufficient; there must be more than an unfounded fear on the part of the applicant.” 777 F.2d 992, 997 (5th Cir.1985). On the other hand, cases like Humana, Inc. v. Jacobson hold that “it is not necessary to demonstrate that harm is inevitable.... The plaintiff need show only a significant threat of injury from the impending action, that the injury is imminent, and that money damages would not fully repair the harm.” 804 F.2d 1390, 1394 (5th Cir.1986). Humana is distinguishable in some respects, but it at least stands for the proposition that an imminent threat of deprivation is sufficient. So the question is whether there now exists enough of a threat to justify injunctive relief pending final resolution.
In
this case, the State has acted to remove most of the threats originally
challenged in the Complaint. It has, for example, renewed JWHO's
license for another year. It has also obtained assurances from various
officials that Defendants will not be prosecuted at this time. These
actions undeniably removed most of the more tangible threats Plaintiffs
originally feared. But they continue to argue irreparable injury in two
ways.
First,
Plaintiffs contend that merely subjecting them to the administrative
process of enforcing the Act will cause irreparable harm. The Court is
not persuaded. As noted above, the Clinic will be given “reasonable
time” to comply with the new law. Miss.Code Ann. § 41–75–16.
During that time, there will be no burden on the Plaintiffs whatsoever
because they have already completed—or nearly completed—the application
process. Thus, they have nothing to do but sit back and wait. And
because Plaintiffs could obtain privileges, it is simply too
speculative to say that they will at some point be forced to defend
their lack of compliance through the administrative process outlined in
Mississippi Code section 41–75–11.
If that day comes, then the issue can be revisited as the threat may
become imminent. As for now, Plaintiffs conceded at the hearing that
they should be required to continue the application process. FN1
FN1. The Court cited Deerfield Medical Center v. City of Deerfield Beach in its TRO regarding the threat of the administrative process, but required additional briefing as to whether Deerfield supported a finding of irreparable injury here. 661 F .3d 328, 338 (5th Cir.1981). Plaintiffs' defense of their position on that point was not persuasive, and Deerfield is distinguishable because the plaintiff there had already been denied the right to operate.
Plaintiffs'
second and primary contention is that they face the uncertainty of
criminal or civil prosecution for operating the Clinic out of
compliance with state law. Thus, according to them, they must choose
between incurring that risk or shutting down. In Concerned Citizens of Vicksburg v. Sills, the court noted that
injunctive relief can be appropriate to avoid placing a plaintiff
“between the Scylla of intentionally flouting state law and the
Charybdis of foregoing what (they believe) to be constitutionally
protected activity in order to avoid being enmeshed in (another)
criminal proceeding.” 567 F.2d 646, 651 (5th Cir.1978) (citing
Wooley v. Maynard, 430 U.S. 705, 710 (1977), quoting
Steffel v.. Thompson, 415 U.S. 452, 462 (1974)).
*3
If
Plaintiffs were truly faced with criminal prosecution for acts
occurring during the administrative process, then they would present a
sufficiently imminent irreparable injury because JWHO is the sole
abortion clinic—and essentially the only abortion provider—in the
state. Without delving too deeply into the analysis at this point,
where a state has a “rational basis to act, and it does not impose an undue burden, [it] may use its regulatory power” to control the manner in which abortions are provided.
Gonzales v. Carhart, 550 U.S. 124, 158 (2007) (emphasis
added). An undue burden “exists if a regulation's ‘purpose or effect is
to place a substantial obstacle in the path of a woman seeking an
abortion before the fetus attains viability.’ “
Id. at 146 (quoting
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878 (1992)). Cases such as
Mazurek v. Armstrong have asked whether the law would require a woman to travel to a different clinic to obtain an abortion. 520 U.S. 968, 974 (1997).
And here that is clearly the case. So if these two doctors stop
performing abortions for non-speculative fear of prosecution, it would
create an “undue burden” and irreparable harm. See
Jackson Women's Health Org. Inc. v. Amy, 330 F.Supp.2d 820, 823 (S.D.Miss.2004) (enjoining regulation that would have effect of closing JHWO).
Defendants
essentially agree that the harm would be irreparable if the doctors
faced a credible threat of prosecution or closure but argue that the
risk here is not immediate enough, observing that various officials
have agreed not to prosecute until the administrative process
concludes. Plaintiffs obviously disagree, and observe certain
undisputed facts. First, if the Act is allowed to take effect, they
will not yet meet the new qualifications for licensing. Second, the
statutes provide both civil and criminal sanctions for operating out of
compliance. Third, the statutes have never been interpreted. And
fourth, Defendants have never rebutted, despite several opportunities,
Plaintiffs' concern that the officials' assurances to abstain from
prosecution until later would not preclude future prosecution for
operating the Clinic while Plaintiffs seek admitting and staff
privileges.
Looking
first to the statutory framework, it seems that some of the Plaintiffs'
concerns are not credible. When the State finds the Clinic in
non-compliance, it will give notice within 10 days and give the Clinic
10 days to propose a “Plan of Correction” outlining how and when it
will correct the deficiencies. Under section 41–75–16,
the Clinic must be given a “reasonable time, under the particular
circumstances not to exceed six (6) months from [July 11, 2012], within
which to comply with [the Act.]” If at the end of that period, the
doctors still do not have admitting privileges, then the State will
officially notify JWHO of its intent to revoke the license and initiate
the administrative revocation proceedings. The procedure to revoke
JWHO's license is governed by section 41–75–11 of the Mississippi Code,
which provides for a hearing and appellate process which would take at
least 60 days to complete. Plaintiffs' ability to operate the Clinic
would continue through any appeal of the final revocation decision of
the Department of Health because the statutory section allowing for an
appeal specifically provides that “[p]ending final disposition of the
matter, the status quo of the applicant or licensee shall be preserved,
except as the court otherwise orders in the public interest.” Miss.Code Ann. § 41–75–23.
*4
Finally,
section 41–75–26 criminalizes operation of an abortion clinic out of
compliance with the licensing requirements and provides a civil remedy
for injunctive relief against violations of the abortion licensing law:
any
violation of any provision of this chapter regarding abortion
facilities or of the rules, regulations and standards promulgated in
furtherance thereof ... shall be punishable by a fine not to exceed One
Thousand Dollars ($1,000.00) for each such offense. Each day of
continuing violation shall be considered a separate offense.
While this statute could be interpreted to permit prosecution or civil litigation over any knowing operation of an abortion facility that fails to comply with applicable standards even while corrective action is sought, the statute must be read together with the other sections pertaining to licensing requirements governing abortion facilities. See United States v. Rodriguez, 60 F.3d 193, 196 (5th Cir.1995) (noting in pari materia rule of statutory construction which “allows [the Court] to consider all statutes that relate to the same topic; therefore, if a thing in a subsequent statute comes within the reason of a former statute, [the Court] transpose[s] the former statute's meaning to the thing in the subsequent statute”).
When
read in harmony, the relevant statutes contemplate (1) that abortion
facilities are given a period of time within which to comply with
newly-adopted licensing standards and (2) “the status quo of the
applicant or licensee shall be preserved” during that process—i.e., it
shall retain its license and be able to continue to operate lawfully
pending final disposition of an appeal of a revocation decision. Miss.Code Ann. §§ 41–75–16, 41–75–23.
The Court reads these provisions together to mean that no prosecution
or civil proceeding may be maintained for operating an abortion
facility out of compliance with the licensing standards while the state
administrative and appeal process are ongoing. If this were not the
case, the maintenance of the status quo during an appeal would be
meaningless.
But
that does not necessarily resolve the issue because ambiguity remains
as to whether Plaintiffs could face sanctions for current practices
after the administrative process concludes. Granted, Defendant Smith
has stated that “a clinic's violation of licensure requirements does
not become subject to criminal or civil penalty until” the
administrative process runs its course. Def. Smith's Resp. [15] a 1–2.
He offers no further explanation, but seemingly relies on section 41–75–23, which protects Plaintiffs by maintaining the status quo pending final disposition of the matter. But section 41–75–23 also states that the status quo shall be preserved “except as the court otherwise orders in the public interest.” Miss.Code Ann. § 41–75–23.
As
used in this context, a state court could, based on the “public
interest” exception in the statute, revoke the status quo and thereby
subject Plaintiffs to criminal and civil liability for having operated
out of compliance. “Public interest” is vague in this context. See
Women's Med. Ctr. of Nw. Houston, 248 F.3d at 422
(“Especially in the context of abortion, a constitutionally protected
right that has been a traditional target of hostility, standardless
laws and regulations such as these open the door to potentially
arbitrary and discriminatory enforcement.”).
*5
And
the possibility of a “public interest” exception to the protection
section 41–25–23 provides lends additional credence to Plaintiffs'
argument that the Defendants, while saying they will not prosecute now,
have never promised to abstain from future prosecution for the days of
non-compliance that will begin when the Act takes effect. Defendants
had an opportunity to extinguish that argument in their supplemental
response but did not. When the issue was raised again at the hearing,
Defendants' counsel merely stated, “I would almost venture to say that
there's no intent on prosecuting any of these doctors and taking their
license away.” FN2
Given the highly charged political context of this case and the
ambiguity still present, the Court finds that there would be a chilling
effect on the Plaintiffs' willingness to continue operating the Clinic
until they obtained necessary privileges. Therefore, an irreparable
injury currently exists.FN3
FN2. It should be noted as well that there is no record evidence that Defendant Smith would not prosecute. Although he made that assurance in a response filed by counsel, there was no affidavit provided due to the emergency nature of the motion for TRO, and Smith did not personally appear at the hearing.
FN3. Plaintiffs also make peripheral reference to the possibility that disciplinary penalties may at some future time be levied against the doctors and nurses who staff the Clinic for their actions in continuing to provide abortions while pursuing compliance with the Act. See, e.g., Pls.' Supplemental Mem. [19] at 5 (referencing “the prospect of criminal and disciplinary penalties”) (emphasis added). They have, however, produced no record evidence, despite many opportunities to do so, showing a credible threat of disciplinary action that is not entirely speculative. See Holland Am. Ins. Co., 777 F.2d at 997 (“Speculative injury is not sufficient; there must be more than an unfounded fear on the part of the applicant.”). Plaintiffs have also failed to demonstrate that they face a legitimate threat of any negative repercussions for having operated as sections 41–75–16 and 41–75–23 allow them to do. That said, if circumstances change and the threat of disciplinary proceedings or penalties materialize, the Court's order can at that time be modified to reflect a then-substantial threat of irreparable harm.
As
for the other factors for injunctive relief, the Court finds that there
exists a substantial likelihood of success on the merits and that the
threatened injury—the closure of the state's only clinic creating a
substantial obstacle to the right to choose—outweighs any harm that
will result if the injunction is granted. This is especially true in
light of the Defendants' promises that they have no intention to pursue
civil or criminal sanctions at this time. Finally, the grant of an
injunction will not disserve the public interest, an element that is
generally met when an injunction is designed to avoid constitutional
deprivations. A preliminary injunction should therefore be entered.
Such a finding does not, however, necessitate enjoining the entire Act at this time. In
Ayotte v. Planned Parenthood of N. New England, the Court
observed that “when confronting a constitutional flaw in a statute, we
try to limit the solution to the problem. We prefer, for example, to
enjoin only the unconstitutional applications of a statute while
leaving other applications in force.” 546 U.S. 320, 328–29 (2006)
(citations omitted). Undertaking this task requires the Court to
consider three “interrelated principles”: (1) “we try not to nullify
more of a legislature's work than is necessary”; (2) the Court should
not rewrite state law; and (3) the Court should not strike portions of
the law if the State would prefer that the entire statute fail.
Id. at 329–30.
In
this case, the Defendants stated that if injunctive relief is provided,
they would want an order requiring Plaintiffs to continue their efforts
to comply with the Act. Plaintiffs likewise agreed that they should be
required to continue that process. Accordingly, the Court enjoins
Defendants from (1) seeking to employ the judicial override found in section 41–75–23
in order to initiate criminal or civil penalties for operating the
clinic without the privileges the Act requires and (2) later enforcing
those penalties for operating without privileges while engaged in the
administrative process.
III. Conclusion
*6
For
these reasons, the motion for preliminary injunction [5] is granted in
part. The Act will be allowed to take effect, but Plaintiffs will not
be subject to the risk of criminal or civil penalties at this time or
in the future for operating without the relevant privileges during the
administrative process. This will maintain the status quo in this
litigation because the Defendants will be precluded from taking action
that they do not now contemplate while Plaintiffs will be permitted to
operate lawfully while continuing their efforts to obtain privileges as
they said they would.FN4
FN4. Defendants observe that enjoining the entire Act would actually alter the status quo because Plaintiffs would be disincentivized to continue seeking privileges, and their success or failure in obtaining privileges could impact the ultimate analysis.
Finally,
it should be observed that this case presents a fluid situation. As
noted, we do not yet know whether the Clinic will obtain admitting and
staff privileges. As both parties stated during the hearing, the
resolution of that issue will impact the ultimate issues in this case.
Should changed circumstances warrant further or different preliminary
injunctive relief before this matter proceeds to trial, this Order
would not prevent any party from seeking such other relief.
Jackson Women's Health Organization v. Currier
Slip Copy, 2012 WL 2886715 (S.D.Miss.)
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