JUDGE JOHN W. deGRAVELLES, UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA
Before the Court is Plaintiffs' Application for Temporary Restraining Order and Motion for Preliminary Injunction ("Application"), filed by five persons: June Medical Services LLC, d/b/a Hope Medical Group for Women ("Hope" or "Hope Clinic); Bossier City Medical Suite ("Bossier" or "Bossier Clinic"); Choice Inc., of Texas, d/b/a Causeway Medical Clinic ("Choice" or "Causeway") (collectively, "Plaintiff Clinics"); including two natural persons, Doctor Doe 1 ("Doe 1")
The hearing on the Motion for Preliminary Injunction was held from June 22, 2015, through June 29, 2015. (Docs. 163-64, 166, 169, 174.) At the hearing, the Court received evidence in the form of live witness testimony, exhibits, stipulations, and designated deposition testimony agreed by Plaintiffs and Defendant (collectively, "Parties") to be received in lieu of
Defendant presented live testimony at trial from the following witnesses:
A record of the exhibits admitted into evidence was filed. (Doc. 165.) A record of the deposition testimony designated by the Parties and offered into evidence was also docketed. (Doc. 168.
In making the following findings of fact and conclusions of law, the Court has considered the record as a whole. The Court has observed the demeanor of witnesses and has carefully weighed their testimony and credibility in determining the facts of this case and drawing conclusions from those facts. All findings of fact contained herein that are more appropriately considered conclusions of law are to be so deemed.
After having considered the evidence, briefing, and record as a whole, for the reasons which follow, Defendant's Motion for Reconsideration, (Doc. 144), is DENIED. The active admitting privileges requirement of Section A(2)(a) of Act 620 is found to be a violation of the substantive
Furthermore, because applications for "active admitting privileges"
1. Plaintiffs are:
2. Kliebert, the Secretary of DHH.
4. Act 620 has been codified at an amended Section 40:1299.35.2. LA. R.S. § 40:1299.35.2. Section A(2)(a) requires every doctor who performs abortions in Louisiana to have "active admitting privileges" at a hospital within 30 miles of the facility where abortions are performed. Id. § 40:1299.35.2A(2)(a). While the Act contains other requirements, this provision is the only one being challenged. (Doc 5-1 at 8 n.1.) Act 620 was signed into law by the Governor of Louisiana, the Honorable Piyush "Bobby" Jindal ("Jindal" or "Governor"), on June 12, 2014. (Doc. 138 at 2; see also, e.g., H.B. 388, 2014 Leg., Reg. Sess. (La. 2014) (signed by Governor, June 12, 2014).) Its effective date was set as September 1, 2014. (See, e.g., Doc. 5-1 at 8; Doc. 5-2 at 6.)
5. Hope, Bossier, and Choice are three of five licensed abortion clinics in Louisiana. (See, e.g., Doc. 109 at 4-5; Doc. 14 ¶ 10 at 3.) They are located in Shreveport, Bossier City, and Metairie, respectively. (Doc. 109 at 4-5; see also, e.g., Doc. 14 ¶¶ 11-13 at 3-4.) Does 1 and 2 are two of six physicians performing abortions in Louisiana. (Doc. 109 at 5; see also, e.g., Doc. 14 ¶¶ 14-15 at 4.) Doe 1 performs abortions at Hope; Doe 2 performs abortions at Bossier and Choice. (Doc. 109 at 5; see also, e.g., Doc. 14 ¶¶ 14-15 at 4.)
6. The Court issued the TRO on August 31, 2014, enjoining enforcement of Act 620 "until a hearing is held for the purpose of determining whether a preliminary injunction should issue." (Doc. 31 at 18.) Per this order, Plaintiffs were expected to continue seeking admitting privileges at the relevant hospitals. (Id. at 1-2.) Thus, the Act would be allowed to take effect, but the Plaintiffs would not be subject to its penalties and sanctions for practicing without the relevant admitting privileges during the application process. (Id. at 2, 18.) The Plaintiff Clinics were allowed to operate lawfully while the Plaintiff Doctors continued their efforts to obtain privileges. (Id.)
7. On September 19, 2014, three other plaintiffs-Women's Health Care Center, Inc. ("Women's Health" or "Women's Clinic"); Delta Clinic of Baton Rouge, Inc. ("Delta"); Doctor John Doe 5 ("Doe 5"); and Doctor John Doe 6 ("Doe 6") (collectively, "Women's Health Plaintiffs")-filed the Complaint for Declaratory and Injunctive Relief, thereby initiating a separate case, and a Motion for Preliminary Injunction. (Docs. 1, 5, No. 3:14-cv-00597-JWD-RLB.) On that same day, these parties tendered a motion to consolidate their case with this earlier proceeding. (Doc. 2, No. 3:14-cv-00597-JWD-RLB.) By this Court's order, these two cases were consolidated on September 24, 2014. (Doc. 8, No. 3:14-cv-00597-JWD-RLB.)
8. All the Parties agreed in briefs and orally at a status conference held on September 30, 2014, that significant discovery would need to be done to prepare for the hearing; therefore, the Court set the preliminary injunction hearing for March 30, 2015. (Doc. 45.) A Joint Proposed Scheduling Order was submitted by the Parties on October 8, 2014, (Doc. 49), and adopted as
9. On November 3, 2014, following the addition of the Women's Health Plaintiffs, this Court issued the Order Clarifying Temporary Restraining Order of August 31, 2014. (Doc. 57.) For the reasons given therein, the Court ruled: "It was and is the intention of this Court that the TRO remain in effect as to all parties before it until the end of the Preliminary Injunction Hearing." (Id. at 6.)
10. On December 5, 2014, the Women's Health Plaintiffs filed the Motion for Voluntary Dismissal. (Doc. 70.) With the consent of the Parties, the Court dismissed this suit without prejudice on December 14, 2014. (Doc. 77.) In light of that dismissal, the Court on January 15, 2015, issued the Second Order Clarifying Temporary Restraining Order of August 31, 2014. (Doc. 84.) In this order, for reasons explained therein, this Court ruled that "the TRO of August 31, 2014 (Doc. 31) remains in force until the Preliminary Injunction hearing on March 30, 2015 or as otherwise modified by this Court." (Id. at 4.)
11. On February 16, 2015, Defendants filed the Motion for Partial Summary Judgment ("Partial MSJ"), (Doc. 87), which was opposed, (Doc. 104). On February 24, 2015, Defendants filed an Unopposed Motion to Set Oral Argument on Motion for Partial Summary Judgment (Doc. 90.) On March 3, 2015, the Court granted that motion, (Doc. 92), and oral argument was set and heard on March 19, 2015, (Docs. 128, 137).
12. On May 12, 2015, the Partial MSJ was granted in part, finding that under binding Fifth Circuit jurisprudence, the admitting privileges requirement of Act 620 is rationally related to a legitimate State interest. (Doc. 138 at 125.) In all other respects, the motion was denied. (Id.)
13. Based on a stipulation reached among the Parties, the Joint Motion to Dismiss Defendant Mark Dawson was filed on March 17, 2015, (Doc. 110), and granted the same day, (Doc. 111). On March 20, 2015, the Parties conferred with the Court and agreed to a continuance of the hearing on the preliminary injunction until the week of June 22, 2015. (Doc. 129.) The Parties agreed that the TRO would remain in effect until the completion of the trial and ruling on the merits of the preliminary injunction. (Id.)
14. On April 1, 2015, oral argument was heard on motions in limine filed by the Parties. (Docs. 136, 151.) In the ruling issued that same day, the Court denied Plaintiffs' Motion in Limine to Preclude Expert Testimony of Dr. Tumulesh Solanky, (Doc. 96), and Defendant's Motion to Exclude Expert Testimony of Sheila Katz, Ph.D., (Doc. 99). (Doc. 136.) Plaintiffs' Motion in Limine to Preclude Expert Testimony of Dr. McMillan, (Doc. 97), was denied as moot. (Doc. 136.) Because of their connection to the Partial MSJ, Defendant's Motion in Limine to Exclude Irrelevant Evidence ("Defendant's Motion in Limine"), (Doc. 95), and Plaintiffs' Motion in Limine to Preclude Evidence of DHH Deficiency Reports and Related Evidence, (Doc. 98), were taken under advisement. (Doc. 136.) These two motions were ultimately denied. (Docs. 139, 140.)
15. On June 11, 2015, Defendant filed the Motion to Reconsider Rulings on Summary Judgment and Motion in Limine. (Doc. 144.) Plaintiffs submitted their response in opposition on June 16, 2015. (Doc. 150.) Because this was submitted for consideration only six days before trial, the motion was taken under advisement and deferred to trial.
16. Trial on the Motion for Preliminary Injunction began on June 22, 2015, and
17. In broad terms,
18. Plaintiffs argue that a preliminary injunction should issue enjoining the enforcement of Act 620 because Plaintiffs are likely to succeed at trial, (Doc. 196 at 67-85); absent an injunction, irreparable harm will occur, (Id. at 85-86); the balance of hardships weighs in Plaintiffs' favor, (Id. at 86-87); and finally, granting the preliminary injunction will not adversely affect the public interest, (Id.).
19. Defendant counters broadly that Act 620 places no substantial burden on a woman's right to seek an abortion in Louisiana, (See, e.g., Doc. 200 at 59-66), and that the Act serves a valid purpose, (See, e.g., id. at 66-74). Further, Defendant argues that this Court has already ruled that Act 620 serves a valid state interest and has a rational basis. (See, e.g., id. at 6-7.)
20. Defendant argues that Plaintiffs have failed to carry their burden that they are likely to succeed at trial and further, urge that no irreparable harm will occur by allowing the enforcement of Act 620. (See, e.g., id. at 88-90.)
21. Finally, Defendant contends that the balance of hardships weighs in her favor and that the enforcement of Act 620 will not adversely affect the public interest. (Id.)
22. Four main issues of fact were tried at the June hearing:
23. Whether these factual issues and their resolution are relevant under the applicable legal standard, and whether they play a role in this Court's ruling, is discussed in the Conclusions of Law section. See infra Parts XI-XII.
24. According to DHH, approximately 10,000 women obtain abortions in Louisiana annually. (DX 148 ¶ 11.)
25. Nationally, approximately 42% of women who have abortions fall below the federal poverty level, and another 27% fall below 200% of that level. (JX 124 at 480; Doc. 191 at 190-91.)
26. Under Louisiana law, a patient must receive state-mandated counseling and an ultrasound at least 24 hours before an abortion. (JX 109 ¶ 18; JX 116 ¶ 11; JX 117 ¶ 8.)
27. Due to this notification and waiting period, patients who wish to obtain an abortion must make two trips to the clinic: the first to receive the ultrasound and state-mandated counseling, and the second to obtain the sought abortion. (JX 109 ¶ 19.)
28. There are currently five women's reproductive health clinics in Louisiana that provide abortion services. (E.g., Doc. 109 at 4; JX 109 ¶ 13.)
29. Hope is a women's reproductive health clinic located in Shreveport, Louisiana, that has been operating since 1980 and offers abortion services. (Doc. 109 at 4; see also Doc. 14 ¶ 11 at 5.) Hope is a licensed abortion clinic suing on its own behalf and on behalf of its physicians, staff and patients. (Doc. 14 ¶ 11 at 5; Doc. 190 at 14.)
30. Hope provides medication abortions through eight weeks and surgical abortions through 16 weeks, six days LMP.
31. 69% of Hope's patients are Louisiana residents, but the remainder travel from outside the state to Hope. (JX, 116 ¶ 10; Doc. 190 at 19, 34.)
32. Bossier is a women's reproductive health clinic that has been operating in Bossier City since 1980 and provides first and second trimester abortions. (Doc. 109 at 4; Doc. 14 ¶ 12.) Bossier is a licensed abortion clinic and a plaintiff suing on its own behalf and on behalf of its physicians, staff, and patients. (Doc. 14 ¶ 12.)
34. Bossier employs one doctor, Doe 2, who performs first and second trimester surgical procedures as well as medication abortions. (Doc. 191 at 21; JX 117 ¶ 5.) Doe 2 is the only doctor in Louisiana who performs abortions after 16 weeks, six days LMP. (JX 187 ¶ 4; Doc. 191 at 21-22.)
35. Bossier's patients are primarily from Louisiana, but also travel to the clinic from surrounding states. (Doc. 191 at 20.)
36. Causeway is a women's reproductive health clinic located in Metairie, Louisiana, and has provided abortion and reproductive health services since 1999. (Doc. 109 at 2-5; Doc. 14 ¶ 13.) Causeway is a licensed abortion clinic suing on its own behalf and that of its physicians, staff, and patients. (Doc. 14 ¶ 14).
37. Causeway offers surgical abortions through 21 weeks, six days LMP, and does not offer medication abortions. (JX 117 ¶ 4.)
38. Causeway employs two doctors who perform abortions, Does 2 and 4. (See, e.g., Doc. 168-5 at 8.) Doe 2 performs approximately 25% of the abortions provided at Causeway, and Doe 4 performs the remaining 75%. (JX 117 ¶ 5.)
39. Women's Health is a women's reproductive health care clinic located in New Orleans, Louisiana, and has provided abortion and women's reproductive health services since 2001. (Doc. 109 at 5; JX 168 ¶ 1; JX 110 ¶ 1.)
40. Women's Health employs two doctors who perform abortions, Does 5 and 6. (JX 110 ¶ 3; JX 168 ¶ 4.) Doe 5 performs approximately 40% of the abortions provided at Women's Clinic, and Doe 6 performs the remaining 60%. (JX 110 ¶ 3; JX 168 ¶ 4.)
41. Women's Health provides surgical abortions for women through 16 weeks and medication abortions through eight weeks. (Doc. 168-4 at 19.
42. Delta is a women's reproductive health care clinic located in Baton Rouge, and has provided abortion and women's reproductive health services since 2001. (Doc. 109 at 5.)
43. Delta employs one doctor who performs abortions, Doe 5. (JX 110 ¶ 35.)
44. Delta provides surgical abortions for women through 16 weeks LMP, and medication abortions through eight weeks. (Doc. 168-4 at 13-14, 19.)
45. The northern part of Louisiana is served by Hope in Shreveport and by Bossier Clinic in Bossier City. (Doc. 191 at 17; Doc. 190 at 110.) The southern part of this state is served by Causeway in Metairie,
46. There are currently six doctors who perform all abortions in Louisiana. (Doc. 109 at 4; see also, e.g., JX 109 ¶ 14.)
47. Doe 1 is a board-certified physician in Family Medicine and Addiction Medicine and is one of two clinic physicians at Hope. (Doc. 109 at 5).
48. Doe 1 has over 10 years of experience, seven of those as an abortion provider. (Doc. 190 at 139-40; Doc. 14 ¶ 14.) He provides medication abortions through eight weeks and surgical abortions through 13 weeks, six days LMP. (Doc. 192 at 21; Doc. 190 at 132.)
49. Doe 1 was trained to provide abortion services by Doe 3, the medical director of the Hope Clinic, where they both work. (Doc. 192 at 140-41.)
50. Despite beginning his efforts to get admitting privileges at a nearby hospital in July 2014, (Id. at 52), Doe 1 still does not have active admitting privileges at a hospital within 30 miles of Hope Clinic. (Doc. 190 at 21.) The efforts of all six doctors to gain active admitting privileges and the results of those efforts are reviewed in more detail in another section of this Ruling. See infra Part VIII.
51. Doe 2 is a board-certified obstetrician-gynecologist and is one of two clinic physicians at Causeway and the only clinic physician at Bossier who provides abortion services. (Doc. 109 at 5.) He is the medical director of Causeway and Bossier. (Id.)
52. Doe 2 has been performing abortions since 1980. (Doc. 191 at 13-14.) Doe 2 performs medication abortions through eight weeks and surgical abortions up through the state's legal limit of 21 weeks, six days LMP. (Doc. 191 at 22-23, 55-56; JX 187 ¶ 4.) He performs medication and surgical abortions at Bossier Clinic, but only surgical abortions at Causeway Clinic. (Id. at 21-23.) Last year, Doe 2 performed approximately 550 abortions at Bossier and 450 abortions at Causeway Clinic. (Id. at 17-18.)
53. Doe 2 performs first and second trimester surgical abortions through 21 weeks, six days LMP, and is the only one of two physicians in Louisiana to offer abortion after 16 weeks, six days LMP. (Id. at 21-22.)
54. Doe 2 has been unsuccessful in getting active admitting privileges within 30 miles of Bossier and has been able to obtain only limited privileges, which do not meet the requirements of Act 620, within 30 miles of Causeway. (See, e.g., id.)
55. Doe 3 is a board-certified obstetrician-gynecologist and one of two clinic physicians at Hope. (Doc. 109 at 5.) He is also the medical director at Hope. (Id.)
56. Doe 3 has been licensed to practice medicine in Louisiana since 1976. (Doc. 190 at 109.) In addition to his abortion practice, he has an active general OB/GYN practice, where he delivers babies and routinely performs gynecological surgery including hysterectomies, laparoscopies, and dilation and curettages ("D&Cs"). (Id. at 110.)
57. Doe 3 is the chief medical officer of Hope Clinic, where he has worked since 1981. (Doc. 190 at 108, 117, 21.) He provides
58. Doe 3 performs abortions at Hope Clinic on Thursday afternoons and all day on Saturday. He sees approximately 20 to 30 abortion patients a week. (Id. at 117-18, 153.) On occasion, he will cover for Doe 1 and will see more patients in those instances. (Id.)
59. Doe 3 currently has admitting privileges at Willis-Knighton Hospital in Bossier ("WKB") and at Christus Highland Medical Center in Bossier ("Christus"), both of which are within 30 miles of Hope Clinic. (Id. at 21-22, 120, 148-49.) Doe 3's current privileges at Christus require him to admit approximately 50 patients per year. (Id. at 150-52; JX 59.)
60. Doe 3 has his current admitting privileges because he regularly admits patients to the hospital as part of his private OB/GYN practice, not because of his work at Hope Clinic. (Id. at 124, 147.)
61. Doe 4 is a board-certified obstetrician-gynecologist and one of two clinic physicians at Causeway. (Doc. 109 at 5.)
62. Doe 4 obtained his license to practice medicine in Maryland in 1959 and has been practicing medicine for 56 years and in Louisiana since 1965. (Doc. 168-5 at 5-6.) He served as an assistant professor or assistant instructor in obstetrics and gynecology for seventeen years at Earl K. Long Hospital. (Id. at 12.)
63. When Doe 4 maintained a full OB/GYN practice, he had admitting privileges at four hospitals in the Baton Rouge area. (Id. at 6.) He was required to have admitting privileges to do OB/GYN surgery and, in his words, "to deliver babies." (Id.) The existence of these privileges did not benefit his pregnancy termination patients because, to his knowledge, none of his abortion patients experienced any problem and required hospital admission. (Id. at 19-20.)
64. Doe 4 performs abortions at Causeway in Metairie. (Doc. 109 at 5; see also, e.g., Doc. 168-5 at 8.) He does not currently have and has been unable to get admitting privileges at a hospital within 30 miles of Causeway. (Doc. 191 at 18; see also, e.g., Doc. 168-5 at 16.)
65. Doe 5 is a board certified obstetrician-gynecologist. (Doc. 109 at 5; see also Doc. 168-6 at 4-5.) He is one of two clinic physicians at Women's Clinic and the only clinic physician at Delta Clinic. (Doc. 109 at 5; see also Doc. 168-6 at 4, 13-14, 22.)
66. Doe 5 has been licensed to practice medicine in Louisiana since 2005. (Doc. 168-6 at 5.) He provides surgical abortions at Delta Clinic and Women's Health through 16 weeks LMP. (Id. at 20; see also JX 110 ¶ 1.)
67. Doe 5 has been successful in getting active admitting privileges within 30 miles of Women's Health in New Orleans but has been unsuccessful in his efforts to get active admitting privileges within 30 miles of Delta in Baton Rouge. (Doc. 168-6 at 11-13; see also, e.g., JX 109 ¶¶ 33-34; JX 110 ¶¶ 15-19.)
68. Doe 6 is a board certified obstetrician-gynecologist and one of two clinic physicians at Women's Health. (Doc. 109 at 5; see also Doc. 168-4 at 13.)
69. Doe 6 has been practicing medicine for 48 years. (JX 109 ¶ 8.) He is currently the medical director of Women's Clinic and
70. Doe 6 has been unsuccessful in his efforts to get active admitting privileges within 30 miles of Women's. (Id. ¶¶ 23-26.)
71. In order to perform abortions legally in Louisiana, Act 620 requires an abortion doctor to have "active admitting privileges" at a hospital within 30 miles of the facility where he or she performs abortions. LA. R.S. § 40:1299.35.2A(2)(A). To have "active admitting privileges" the physician must be a "member in good standing of the medical staff" of a hospital "with the ability to admit a patient and to provide diagnostic and surgical services to such patient...." Id. The phrase "member in good standing of the medical staff" is not separately defined. (Cf. Doc. 193 at 12.)
72. Thus, how a physician may obtain "medical staff" and "active admitting" privileges from a Louisiana hospital is critical in determining the effect, if any, that Act 620 has on abortion providers and, in turn, the women that they serve.
73. The expert testimony regarding hospital admitting privileges came primarily from two experts-Pressman, Plaintiffs' expert, (Doc. 195 at 11-96), and Marier, Defendant's (Doc. 193 at 4-124)-and, to a lesser extent, from the other physicians, including Does 1, 2, 3, 4, 5, and 6, who testified. See supra Part I. On the issue of admitting privileges and hospital credentialing, the Court found both Pressman and Marier to be generally well qualified.
74. Additional information about the credentialing process and the specific requirements of various hospitals came from certain hospital by-laws introduced into evidence. (See, e.g., JX 46, 48, 67, 72, 76, 78-79, 81, 138, 140-43.)
75. Credentialing is a process that hospitals employ to determine what doctors will be allowed to perform what tasks within that hospital. (Doc. 193 at 11; see also, e.g., Doc. 195 at 23-27; Doc. 168-5 at 24.)
76. Part of this process involves the hospital's granting or denying "admitting privileges." (See, e.g., Doc. 193 at 20; Doc. 195 at 17, 23-25.) These privileges govern whether or not a physician is authorized to admit and treat a patient at that hospital and what care, services and treatment the physician is authorized to provide. (See, e.g., Doc. 193 at 20-21; Doc. 195 at 23, 25-26.)
77. Admitting privileges are related to but not the same as being on the "medical staff" of a hospital. (Doc. 193 at 11; Doc. 195 at 25-26.)
78. There is no requirement that a physician have admitting privileges or be on the medical staff at a hospital in order to practice medicine. (See, e.g., Doc. 195 at 26.) Many physicians who do not have a hospital based practice, i.e. do not intend to admit and treat their patients in a hospital setting, have neither as there is no need for staff or admitting privileges under those circumstances. (See, e.g., Doc. 175 at 75; Doc. 192 at 41-42; Doc. 195 at 75.)
79. There is no state or federal statute which governs the rules for the granting or denial of hospital admitting privileges in Louisiana.
80. Specifically, there is no state or federal statute which defines or sets uniform standards for the categories of admitting privileges a hospital may grant. (Doc. 193 at 11-12.) Like other rules, these are therefore set by each hospital's by-laws. (Id.; see also, e.g., Doc. 195 at 28; JX 81 at 1798.) To make matters more confusing, the terms used to describe those categories (e.g. "active admitting privileges", "courtesy admitting privileges", "clinical admitting privileges") vary from hospital to hospital. (See, e.g., Doc. 190 at 167; Doc. 191 at 104; Doc. 193 at 11-12; Doc. 195 at 28.)
81. Similarly, terms like "medical staff", "active staff", "courtesy staff", "clinical staff" vary among hospitals. (Doc. 191 at 35; Doc. 193 at 12; Doc. 195 at 28; cf. JX 79 at 1707-12.)
82. For example, at some hospitals, an "active" staff appointment does not, alone, automatically entitle the physician to admit patients. (See, e.g., JX 46 at 185; JX 79 at 1673; JX 141 at 3259-60.)
83. Because of the varying definitions given to the categories of admitting privileges and the varying requirements for the attainment of same, whether a physician has been given "active admitting privileges" or is a "member in good standing on the medical staff" within the meaning of Act 620 entirely depends upon the specific definition, requirements and restrictions imposed by a given hospital in a given circumstance. (See, e.g., Doc. 193 at 12.)
84. Unlike some states,
86. A hospital's failure to act on an application by either approving or denying it may result in the hospital considering the application withdrawn. (See, e.g., Doc. 195 at 93; JX 71 at 1279.) In this additional respect, a hospital's failure to act is, in effect, a de facto denial of the application.
87. While a physician's competency is a factor in assessing an applicant for admitting privileges, it is only one factor that hospitals consider in whether to grant privileges. (See, e.g., Doc. 190 at 158-59; Doc. 195 at 25-26; Doc. 192 at 50-51; Doc. 168-5 at 17; Doc. 168-6 at 12; JX 110 ¶ 10; JX 168 ¶¶ 11-13, 17; PX 183.)
88. Defendant argues: "When Louisiana hospitals decide whether to grant a physician staff membership, privileges to admit patients, or privileges to perform particular procedures, hospital by-laws indicate that they may make such determinations based on the physician's prior and current practice, and indicia of the physician's clinical competence."
89. The Court finds that this is only partly true because both by virtue of by-laws and how privileges applications are handled in actual practice, hospitals may deny privileges or decline to consider an application for privileges for myriad reasons unrelated to competency. Examples include the physician's expected usage of the hospital and intent to admit and treat patients there, the number of patients the physician has treated in the hospital in the recent past, the needs of the hospital, the mission of the hospital, or the business model of the hospital. Furthermore, hospitals may grant privileges only to physicians employed by and on the staff of the hospital. And university-affiliated hospitals may grant privileges only to faculty members. These possible variances in causes and justification for any particular denial are attested to by this case's evidentiary submissions and testimony. (See, e.g., Doc. 195 at 25-26; Doc. 190 at 123, 168-70; Doc. 193 at 82-83; JX 109 ¶¶ 27-28; JX 110 ¶ 10; JX 168 ¶¶ 11-13, 17; Doc. 168-5 at 6, 23.)
91. When they had full OB/GYN practices delivering babies and performing gynecological surgery, Does 2, 4, and 6 had no problem obtaining and maintaining admitting privileges at a number of hospitals. (See, e.g., Doc. 168-5 at 6-8; JX 109 ¶ 30.) However, under Act 620, for reasons unrelated to competency, they are now unable to secure active admitting privileges. (See, e.g., Doc. 191 at 24-26; Doc. 168-5 at 16-17; JX 109 ¶¶ 23, 30, 31-34.)
92. Another example of a non-competency based application criteria is that some hospitals require the physician seeking privileges to live and/or practice within a certain distance of the hospital. (JX 83 at 1865; JX 139-a at 2925; JX 79 at 1679-83.) Does 2 and 5 travel significant distances from their respective homes to provide abortion services and would not be able to meet this criteria for hospitals within 30 miles of some or all of the clinics where they provide abortions. (Doc. 191 at 20-21; Doc. 168-6 at 4, 11-13; JX 109 ¶¶ 31-36.)
93. Defendant argues that "[t]here is no evidence suggesting that, in making the determinations about staff membership or privileges, Louisiana hospitals discriminate against physicians based on whether they provide elective abortions." (Doc. 200 ¶ 115 at 38 (citing Marier's testimony, as it appears on Doc. 193 at 83-86).) In his testimony, however, Marier only acknowledged that he personally knew of no hospitals which refused to extend privileges to a doctor "simply because he or she performs an abortion." (Doc. 193 at 83-85.) Regardless, to the extent Marier's testimony can be so construed, the Court finds his testimony on this point to be not credible and contradicted by an abundance of evidence introduced at the hearing demonstrating that hospitals can and do deny privileges for reasons directly related to a physician's status as an abortion provider. (See, e.g., Doc. 168-6 at 12; Doc. 190 at 53; JX 109 ¶¶ 28, 30, 39.)
94. For instance, Doe 1 contacted the director of the Family Medicine Department at University Health Hospital in Shreveport ("University" or "University Health")
95. When Doe 1 did not get the application forms and inquired, he was told by the director of the department that he would not be offered a position because "there was some objection from certain staff about [Doe 1] coming to work there because of where [he] work[ed], at Hope Medical." (Id. at 45-46.)
97. There is no Louisiana statute which prohibits a Louisiana hospital or those individuals charged with credentialing responsibilities from declining an application for admitting privileges based on the applicant's status as an abortion provider.
98. Section 40:1299.32 provides: "No hospital, clinic or other facility or institution of any kind shall be held civilly or criminally liable, discriminated against, or in any way prejudiced or damaged because of any refusal to permit or accommodate the performance of any abortion in said facility or under its auspices." LA. R.S. § 40:1299.32.
99. The Court was surprised that Defendant's credentialing expert, Marier, was unaware of this provision, but Marier agreed that, by virtue of this provision, "a hospital, if it chooses to, may discriminate against any abortion provider with no consequence under Louisiana law." (Doc. 193 at 84.)
100. Section 40:1299.33(C) states: "No hospital, clinic, or other medical or health facility, whether public or private, shall ever be denied government assistance or be otherwise discriminated against or otherwise be pressured in any way for refusing to permit facilities, staff or employees to be used in any way for the purpose of performing any abortion." LA. R.S. § 40:1299.33(C).
101. While Doe 2 ultimately received limited privileges at Tulane, the negotiations that led to these privileges being granted clearly demonstrate that Doe 2's status as an abortion provider was a central issue in the decision making process over whether to grant him privileges and the limitations those privileges would have. (See JX 161-81; see infra Part VIII.)
102. There are ways in which the hospital staff's and/or the general public's hostility to abortion and abortion providers can be injected into the credentialing process. For instance, many applications for privileges require references from at least two physicians who recently have observed
103. Other hospitals' admitting privileges applications require the applying physician to identify another physician on staff who will "cover" his or her patients if the applying physician is unavailable, frequently called a "covering physician." (JX 78 at 1539; JX 79 at 1677; JX 138 at 2855; JX 83 at 1866.) As summarized below, the evidence shows that opposition to abortion can present a major, if not insurmountable hurdle, for an applicant getting the required covering physician.
104. For example, Doe 5 has applied for admitting privileges at three hospitals in the Baton Rouge area: Woman's Hospital in April or May of 2014 and Lane Regional Medical Center and Baton Rouge General Medical Center in July of 2014. (Doc. 168-6 at 11.) Doe 5 has been unable to find a local physician who is willing to provide coverage for him when he is not in Baton Rouge, which all three hospitals require. (JX 109 ¶¶ 32-33; JX 110; Doc. 51; Doc. 168-6 at 11-12.)
105. Some other non-competency based admitting privileges requirements create a particular obstacle for abortion providers whose practice is not hospital based, who do not admit patients to a hospital as a part of their practice, and who do not perform surgeries at a hospital.
106. As one example, hospitals often grant admitting privileges to a physician because the physician plans to provide services in the hospital. (See, e.g., Doc. 195 at 24-25; Doc. 193 at 66.) In general, hospital admitting privileges are not provided to physicians who never intend to provide services in a hospital. (Doc. 195 at 23-25, 27, 74-75; Doc. 193 at 66-67.)
107. Thus, in connection with the applications of Does 1 and 2 at Willis-Knighton Medical Center ("WKMC"), Willis-Knighton South ("WKS"), and Willis-Knighton Pierremont Health Center ("WKP") in Shreveport, (JX 53, 144), the Willis-Knighton Health System ("Willis-Knighton"), which runs these three (as well as other) entities, has required these doctors to submit data on hospital admissions, patient management and consultations of patients in the past 12 months in a hospital. (Doc. 192 at 75-76; JX 128; JX 89 at 1950.)
108. Because their abortion practice is not hospital based, neither doctor can possibly comply with that requirement. In the case of Doe 1, since he formally responded to a hospital's request for more information regarding his history of admitting patients during the preceding twelve months, saying he had no such information, he has never again heard from the hospital — there being neither a denial nor an approval of his application. (Doc. 192 at 75-78.)
109. Even if these Does and similar practitioners somehow got admitting privileges, it is unlikely they would be able to keep them. If over a period of two to three years, a physician has not admitted any patients to the hospital, a hospital credentialing committee is likely to understand that this physician no longer requires admitting privileges. (See, e.g., Doc. 195 at 91.) Because, by all accounts, abortion complications are rare, (See, e.g., Doc. 168-5 at 14, 16, 20-21; Doc. 193 at 81-82; Doc. 195 at 38-39), an abortion provider is unlikely to have a consistent need to admit patients.
110. Furthermore, surgical privileges are meant for providers who plan to perform surgeries at the hospital. (Doc. 195 at 95-96.)
111. For the reasons outlined above, the Court finds that the Louisiana practice of credentialing, i.e. a hospital's consideration of and acting (or not acting) upon applications for admitting privileges, creates particular hardships and obstacles for abortion providers.
112. The efforts made by Does 1-6 to comply with the admitting privileges requirement of Act 620, and the result of those efforts, is reviewed in another section of this Ruling. See infra Part VIII.
113. The evidence is overwhelming that in Louisiana, abortion providers, the clinics where they work and the staff of these clinics, are subjected to violence, threats of violence, harassment and danger.
114. Defendant offered no evidence to counter Plaintiffs' evidence on this point. Rather, Defendant makes two arguments: first, some of the Plaintiffs' evidence on this point is hearsay, and second, the violence is "legally irrelevant" to the undue burden analysis. (Doc. 201 at 14-15.) The issue of legal relevance is addressed in the Conclusions of Law section of this Ruling. See infra Parts XI-XII.
115. Defendant objects to the testimony and exhibits cited in Plaintiffs' proposed findings and conclusions (Doc. 196 ¶¶ 79, 84, 87, 89), as hearsay. However, almost all of this testimony was not objected to by Defendant at the time it was introduced. Moreover, in some instances, this testimony came in by way of exhibits offered jointly by the Parties or in questions asked by counsel for the Defendant.
116. But even if the objected-to evidence were excluded, there is a mountain of uncontradicted and un-objected to evidence supporting this conclusion, some of which is summarized below.
117. In addition to the harassment and violence, as was discussed briefly in the previous section and will be discussed in more detail in the section reviewing the doctors' efforts to gain admitting privileges, the personal and/or religious feelings against abortion by the public, some members of the medical profession and hospital administrators has had a negative effect on the doctors' efforts to gain admitting privileges. (See, e.g., Doc. 168-6 at 12; Doc. 190 at 53; Doc. 191 at 24-26; Doc. 192 at 45-46; JX 109 ¶¶ 28, 30, 39.)
118. Indeed, after reviewing Plaintiffs' motion to allow the Plaintiff doctors to use pseudonyms as well as their supporting affidavits, the United States Magistrate
119. Also recognizing these legitimate safety concerns, Defendant joined with Plaintiffs in a Joint Consent Motion Regarding Confidential Trial Procedures, (Doc. 158), granted on June 23, 2015, (Doc. 161). These procedures included allowing Does 1-3 to testify from behind a screen.
120. The security concerns even went beyond the Parties, however. A request for anonymity was made on behalf of a hospital which had granted privileges to Doe 5 and the non-party doctors who assisted in the privileges request. No objection was made by any party and the Court ordered this hospital to be called "Hospital C" and the doctor involved for that hospital," Dr. C." (Id.) Other doctors involved in granting the limited privileges to Doe 2 were ordered to be called "Dr. A" and "Dr. B." (Id.)
121. In order to insure the use of the pseudonyms and protect the identities of Plaintiff doctors as well as certain non-party doctors and hospitals, the Plaintiffs and Defendant filed a joint motion to redact portions of the trial transcript, which the Court granted. (Doc. 180.) By their filings in this case, therefore, Defendant and Plaintiffs have implicitly acknowledged the charged emotions generated by this particular issue within and outside this state.
122. The evidence, in turn, leaves no question about the dangers and hostility regularly endured by Plaintiffs.
123. Each of Louisiana's five clinics experiences frequent demonstrations by anti-abortion activists. (Doc. 190 at 24, 108; Doc. 191 at 13; JX 109 ¶¶ 10-12; JX 117 ¶ 6; JX 112 ¶ 2; JX 113 ¶ 2; Doc. 168-6 at 25.) These demonstrations require some clinics to have additional security on site. (Doc. 190 at 23.)
124. Hope Clinic in Shreveport has been the subject of three violent attacks: once by a man wielding a sledgehammer, once by an arsonist who threw a Molotov cocktail at the clinic, and once by having a hole drilled through the wall and butyric acid poured through it. (Doc. 190 at 23; JX 116 ¶ 8.)
125. In the fall of 2014, following passage of the Act, anti-abortion activists attempted to interfere with Doe 5's admitting privileges application at Woman's Hospital in Baton Rouge by sending threatening letters to the hospital. (JX 110 ¶ 14; JX 109 ¶ 29.) Woman's Hospital also had to remove anti-abortion activists from its medical staff offices due to the activists' disruptive conduct. (JX 110 ¶ 14.)
126. When Doe 5 worked as a hospital employed physician, protests outside the hospital caused the hospital administration to give him an ultimatum: quit performing abortions or resign from the hospital staff. (JX 110 ¶ 21; see also Doc. 168-6 at 23-24.) In his words, he "was therefore forced to stop working at the hospital so that ... [he] could continue providing services at Women's Clinic and Delta Clinic." (JX 110 ¶ 21; see also JX 109 ¶ 30.)
127. After Doe 5 recently acquired privileges at a local hospital (Hospital C),
128. Anti-abortion activists picketed the school of the children of a doctor formerly affiliated with Delta, after which that doctor quit. (Doc. 168-4 at 23-24.)
129. A physician quit working at Causeway after receiving harassing telephone calls at his private practice and anti-abortion activists demonstrated outside the hospital where he worked. (Doc. 168-8 at 8.)
130. Doe 1 works at Hope-but he does so in fear of violence. (Doc. 192 at 78-79.)
131. Doe 2 has received threatening phone calls, has been followed into restaurants and accosted, and has been shouted at with profanity and told that he was going to hell. (Doc. 191 at 12-13.)
132. Doe 2 was forced to leave a private practice when the practice's malpractice insurer refused to cover him if he continued to perform elective pregnancy terminations. (Id. at 16-17.)
133. Doe 3 has been threatened as a result of his work at Hope Clinic. (JX 113 ¶ 3.) Last year, anti-abortion activists from outside Louisiana left fliers on neighbors' mailboxes calling him an abortionist and saying they wanted to convert him to Jesus. (Doc 190 at 108-09.) Local police have had to patrol his neighborhood and search his house before he entered. (JX 113 ¶ 4.)
134. These individuals also approached Doe 3's regular medical practice patients as they tried to enter his office, requiring the building security officers to escort the activists off the premises. (Id. ¶ 3.) These individuals told Doe 3's patients that he killed babies and that they should not see him. (Doc. 190 at 109.)
135. Doe 3 fears that, if the other Louisiana abortion providers are not able to obtain admitting privileges, he will become an even greater target for anti-abortion violence. (JX 113 ¶¶ 6-7.) He specifically testified that "all [these individuals] have to do is eliminate [him] as they have Dr. Tiller and some of the other abortion providers around the country" to eliminate abortion entirely in northern Louisiana. (Doc. 190 at 174.)
136. Doe 3 also explicitly emphasized that he is concerned that such individuals could "cause a lot of other ... problems that would affect [his] ability to perform the rest of [his] practice." (Id. at 174-75; cf. JX 113 ¶¶ 6-7.)
137. Doe 3 has difficulty arranging coverage for his OB/GYN practice because other OB/GYN doctors in the Shreveport area refuse to cover his practice as a result of his work at Hope. (Doc. 190 at 111-13.)
138. As a result of his fears, and the demands of his private OB/GYN practice, Doe 3 has testified that if he is the last physician performing abortion in either the entire state or in the northern part of the state, he will not continue to perform abortions. (Id. at 174-76.)
139. Anti-abortion activists have picketed the homes — and neighbors' homes — of Does 5 and 6, also distributing threatening flyers. (Doc. 168-6 at 24; JX 109 ¶ 11.)
140. Anti-abortion activists have targeted at least one physician who agreed to provide emergency care for abortion complications, even though he did not provide abortions himself. (Doc. 168-6 at 11, 24-25; JX 110 ¶ 20.)
141. The challenged statute is Act 620. LA. R.S. § 40:1299.35.2.
143. On June 12, 2014, Governor Bobby Jindal signed Act 620 into law, with an effective date of September 1, 2014. (See, e.g., Doc. 109 at 4.)
144. Act 620 provides that every physician who performs or induces an abortion shall "have active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services." LA. R.S. § 40:1299.35.2A(1).
145. The Act defines "active admitting privileges" to mean that "the physician is a member in good standing of the medical staff of a hospital that is currently licensed by the department, with the ability to admit a patient and to provide diagnostic and surgical services to such patient...." Id. § 40:1299.35.2A(2)(a).
146. Regulations connected to the Act and promulgated after the commencement of this litigation by DHH use the same definition of "active admitting privileges." LA. ADMIN CODE tit. 46, § 4401.
147. The Act provides that any outpatient abortion facility that knowingly or negligently provides abortions through a physician who does not satisfy the Act is subject to denial, revocation, or non-renewal of its license by DHH. LA. R.S. § 40:1299.35.2A(1).
148. The Act provides that a physician who fails to comply with the admitting privileges requirement can be fined $4,000 per violation. Id. § 40:1299.35.2A(2)(c).
149. In addition, discipline by the Board is made an enforcement provision in Act 620. Id. § 40:1299.35.2.1E. The Board has the authority to take disciplinary action against any physician. Id. § 37:1261 et seq. The Board has the authority to investigate physicians for violations of law, such as Act 620. Id. § 40:1299.35.2E. By violating this law, physicians could be subjected to fines or other sanctions, including the suspension or revocation of the physician's license to practice medicine. (Doc. 168-10 at 12, 14-15; see also Doc. 31 at 4 n.4.)
150. The Louisiana legislature has codified a statement of opposition to legalized abortion, stating:
LA. R.S. § 40:1299.35.0; see also State v. Aguillard, 567 So.2d 674, 676 (La.Ct.App. 1990) (observing that "the Louisiana legislature has expressed its disfavor for abortion" with this provision).
151. Consistent with this explicit statement of legislative intent, as shown below, Louisiana has enacted other laws that place restrictions on women seeking abortion in the state, and doctors and clinics who perform abortions.
152. In 2006, the Louisiana legislature passed a "trigger" ban — banning abortion with only a limited exception to save a woman's life — to take immediate effect should Roe v. Wade be overturned or a constitutional amendment be adopted to allow states to ban abortion. S.B. 33, 2006 Leg., Reg. Sess. (La. 2006) (codified as LA. R.S. §§ 40:1299.30, 14.87). The trigger ban carries a criminal penalty of up to 10 years' imprisonment "at hard labor" for a physician performing an abortion. LA. R.S. §§ 40:1299.30D, 14:87D(1).
153. Another law mandates that every woman undergo an ultrasound before an abortion, even when not medically necessary, and that she be required to listen to an oral description of the ultrasound image. Id. §§ 40:1299.35.2B-D, 40:1299.35.6, 40:1299.35.12.
154. Louisiana requires a two-trip, 24-hour waiting period for women, and further mandates that a physician — and not another medical professional — give certain state-mandated information designed to discourage abortion to his patient; violation of this provision carries criminal penalties. Id. §§ 40:1299.35.2D(2), 40:1299.35.6, 40:1299.35.19.
155. The Louisiana legislature prohibits public funding of abortion for victims of rape or incest unless the victim reports the act to law enforcement and certifies a statement of rape or incest that is witnessed by the physician. Id. §§ 40.1299.34.5, 40:1299.35.7.
156. Physicians who provide for the "elective termination of an uncomplicated viable pregnancy" are expressly excluded from malpractice reform provisions afforded to all other health care practitioners under the state's medical malpractice protection laws. Id. §§ 40.1299.31-39A, 40:1299.41(K).
157. The legislature has passed laws prohibiting insurance coverage of abortion in state exchanges under the Affordable Care Act. Id. § 22:1014. Louisiana does not allow women to obtain insurance coverage for abortion even when a woman's life is endangered or when the pregnancy is a result of rape or incest. Id.
158. The Louisiana legislature permits hospitals to refuse to accommodate the performance of abortions. Id. § 40:1299.31-33.
159. Louisiana has no law which prohibits a hospital from discriminating against a physician applying for privileges there based on that physician's status as an abortion provider. Compare TEX. OCC. CODE § 103.002(b).
160. The effect of Act 620 is thus significantly different from admitting privileges requirements in states where physicians are protected from discrimination. See, e.g., Cole, 790 F.3d at 563; see also Abbott II, 748 F.3d at 598 n. 13.
161. Act 620 was modeled after similar laws which have had the result of closing abortion clinics in other states. On May 5,
162. Evidence received demonstrates the coordination among advocacy groups, Jackson, and DHH employees regarding efforts to restrict abortion. (See, e.g., Doc. 191 at 199-202, 211-13, 215-16, 220-21; JX 3, 6-16.)
163. In a press release regarding Act 620 released on March 7, 2014, Jindal declared his position that Act 620 was a reform that would "build upon the work... done to make Louisiana the most prolife state in the nation." (PX 174 at 1; Doc. 191 at 224-27.) Jindal stated:
(PX 174 at 1.)
164. Indirectly referencing the legislation just summarized, Jackson is quoted in this press release as saying that Act 620 "will build on our past work to protect life in our state." (Id. at 2.)
165. Similarly, in her testimony before the Louisiana House Committee in support of Act 620, Kliebert testified that Act 620 would strengthen DHH's ability to protect "unborn children." (Doc. 191; JX 140 at 1.)
166. The talking points prepared for Secretary Kliebert by Representative Jackson's office stated that DHH was "firmly committed to working with Representative Jackson and the Legislature to continue to work to protect the safety and well-being of Louisiana [women] and the most vulnerable among us, unborn children." (Doc. 191 at 222-23; see also JX 24 at 2-4.)
167. Act 620 (at the time known as HB 388) was considered by the House Health and Welfare Committee on March 9, 2014, and the Senate Health and Welfare Committee
168. More specifically, the House and Senate Committees heard testimony that the proposed statute was intended to safeguard the health and safety of women undergoing abortions in outpatient clinics in Louisiana. (Id.)
169. For example, the House and Senate Committees heard testimony that:
170. Additionally, the House and Senate Committees also heard testimony that, unlike physicians performing surgical procedures in ambulatory surgical centers in Louisiana, physicians performing abortions in outpatient clinics had not previously been required to have any kind of hospital privileges. The committees heard testimony explaining that the proposed statute was designed to close that loophole and
171. For example, the House and Senate Committees heard testimony that:
172. The full House and Senate heard statements in support of HB 388 explaining that it was intended to protect "the safety of women" and ensure that "every physician performing any surgery, including abortions, does so in a prudent manner and with the best interest of each woman's health in mind," (Id. at 34-35), and also that it was intended to safeguard "the lives and safety of pregnant women who may experience short-term risk[s] of abortion, which can include hemorrhaging, uterine perforation, or infection," (Id. at 48).
173. The full House was informed that the proposed law tracked the Texas admitting-privileges law, HB 2, which had been upheld as constitutional by the U.S. Fifth Circuit Court of Appeals a week earlier. (Id. at 34-35 (referring to Abbott II).)
174. The Senate approved one amendment to the proposed statute, concerning the definition of admitting privileges, and rejected another amendment that would have eliminated the 30-mile radius requirement. (Id. at 69-70.)
175. The proposed statute passed both chambers, with 85 House members and 34 Senators voting in favor, and 88 House members concurring in the Senate amendment. See
176. The evidence introduced to show the purpose of Act 620 came in several forms. The Plaintiffs offered: (1) press releases, public statement, emails, and similar evidence produced by public officials, lobbyists, advocacy groups and others involved or interested in the drafting and passage of Act 620; (2) the testimony of some of those involved in these communications; (3) Louisiana's legislatively stated "longstanding policy ... to protect the
177. In support of her position, Defendant offered: (1) the text and legislative history of the Act, including testimony considered during the legislature's deliberations, and (2) expert testimony at trial purporting to show that the admitting privileges requirement is needed because of potential complications from abortions and that the Act is medically necessary and beneficial for the health and safety of a woman undergoing an abortion.
178. The Court carefully considered all the evidence introduced on this issue and makes the following findings of fact:
179. The relevance and weight of these factual findings in the context of the prevailing Fifth Circuit test is discussed in more detail in this Ruling's final substantive sections. See infra Parts X-XI.
180. For over a year prior to his trial testimony on June 24, 2015, Doe 1 has been trying, in various ways, to gain active admitting privileges at a hospital within 30 miles of Hope where he performs abortions and thereby comply with Act 620. (Doc. 192 at 42-44.)
181. The Court finds that Doe 1 is a well qualified physician and a credible witness. (See, e.g., Doc. 192 at 7-14; JX 111 ¶ 1; 116 ¶ 5.)
182. The Court finds that despite his good faith efforts to comply with Act 620, Doe 1 has failed to get active admitting privileges at five different hospitals for reasons unrelated to his competence. (See, e.g., JX 116 ¶ 27.)
183. Doe 1 has attempted to get privileges at five separate nearby hospitals and, despite his efforts and his qualifications, has not been given active admitting privileges at any of these hospitals, including University Health, Minden, North Caddo Regional ("North Caddo"), Christus, and Willis-Knighton. (See, e.g., Doc. 192 at 47-51.)
184. Doe 1 contacted the director of the Family Medicine Department at University Health in Shreveport where he had done his residency in family medicine. Doe 1 was initially told that he would be offered a job as a faculty member teaching sports medicine which would "take care of the admitting privileges thing." Doe 1 was told that the application forms for admitting privileges would be forwarded to him. (Id. at 45; see also JX 186 ¶ 7.)
185. When Doe did not get the application forms and inquired, he was told by the director of the department that he would not be offered a position because "there was some objection from certain staff about [Doe 1] coming to work there because of where [he] work[ed], at Hope Medical." (Doc. 192 at 44-45; see also JX 186 ¶ 7.)
186. The director suggested that he try with the OB/GYN Department but when that route was explored, Doe 1 was advised by email that it would be "inappropriate" to have a family medicine doctor on the OB/GYN staff. (Doc. 192 at 47.)
187. Based on these communications, Doe 1 did not file a formal application for admitting privileges to University. (Id.)
189. Doe 1 filed a formal application for privileges at Minden. (JX 50; Doc. 192 at 50-51.) Minden's Medical Staff Coordinator wrote to Doe 1 declining his application: "Since we do not have a need for a satellite primary care physician at this time, I am returning your application and check." (JX 50 at 318; see also Doc. 192 at 50-51).
190. While the Court, like Doe 1, does not understand the meaning of the stated reason for declining the application, it is clear that the denial of privileges is unrelated to the qualifications and competence of Doe 1. (See Doc. 192 at 51.)
191. Doe 1's efforts to get admitting privileges at Christus reads like a chapter in Franz Kafka's The Trial. (See, e.g., JX 71; Doc. 192 at 52-66.)
192. Doe 1 submitted his application for courtesy privileges to Christus on July 25, 2014, on a form provided by Christus. (JX 132 at 2772; JX 116 ¶ 23; Doc. 192 at 52.) Courtesy privileges gives a physician with such privileges the ability to admit patients. (Doc. 192 at 52-53.)
193. On August 25, 2014, Christus asked for additional information, (JX 71 at 1254; see also Doc. 192 at 54-55), which he provided on September 17, 2014, (JX 71 at 1267; JX 133; Doc. 192 at 55-56).
194. Via a letter dated October 14, 2014, yet more information was sought from Doe 1 by Christus, (JX 71 at 1268; see also, e.g., Doc. 192 at 58-59), which he supplied on October 20, 2014, (JX 71 at 1273; Doc. 192 at 59-60), and October 25, 2014, (JX 134 at 2802-03).
195. When Pittman called Christus to make an appointment for Doe 1 to get an identification badge, also a requirement of the application process, an appointment was refused because, Pittman was told, Doe 1 had submitted the wrong kind of application and that he should be submitting a "non-staff care giver" application. (Doc. 192 at 62; cf. JX 71 at 1268, 1270, 1276.)
196. On December 17, 2014, Doe 1 then received a letter stating that his application was incomplete because Doe 1 hadn't gotten the badge (the same badge Christus would not give him an appointment to get) and because more than 90 days had elapsed since his application was submitted, the application was "deemed withdrawn." (JX 71 at 1279; Doc 192 at 63.)
197. In a follow up conversation initiated by Doe 1 and in a subsequent email from Christus, Doe 1 was told that he needed to file an application for non-staff care giver privileges, a type of privilege that would not allow him to admit patients and therefore would not qualify as "active admitting privileges" under Act 620. (JX 190 at 3662; Doc. 192 at 63-66.)
198. While there was never a formal denial of Doe's application, Christus's delays and failure to formally act, as outlined above, constitutes a de facto denial of his application for the privileges required by Act 620.
199. Doe 1's experience was similar when he applied for courtesy privileges at Willis-Knighton beginning on June 15, 2014. (JX 53; JX 116 ¶ 27; Doc. 192 at 67-78.) These privileges would have allowed Doe 1 to admit patients. (Doc. 192 at 68-69.)
200. Because of his Board Certification in addiction medicine and because Willis-Knighton
201. Doe 1's application was denied because he had not undergone a residency program in addiction medicine, despite his board certification in addiction medicine and even though there was no residency program available when he got his board certification. (JX 51 at 508; Doc. 192 at 72-73.)
202. On February 1, 2015, Doe 1 resubmitted an application, this time as a Family Practice specialist. (JX 97 at 2069-2117; Doc. 192 at 73-74.)
203. On March 11, 2015, Willis-Knighton requested information regarding documentation of "hospital admissions and management of patients 18 years old of age or older in the past 12 months." (JX 128; Doc. 192 at 75-76.)
204. On March 24, 2015, Doe 1 provided the requested information. (JX 189; Doc. 192 at 77-78.) Because of the nature of his practice, he had not admitted any patients in the last 12 months, but he did provide detailed information about his training and procedures done during that same time period. (Id.)
205. Despite the lapse of more than eight months since his second application and more than five months since he provided the information requested in support of that application, Willis-Knighton has neither approved nor denied his application. (See, e.g., id. at 78.) Under these circumstances, the Court finds that this application has been de facto denied.
206. Currently, Doe 2 performs abortions at Bossier and Causeway Clinics. (Doc. 191 at 17; JX 112 at 2216.)
207. The Court finds Doe 2 to be a well qualified and competent physician and a credible witness. (Id. at 13-17; JX 112 ¶ 1; see also infra.)
208. Doe 2 does not currently have active admitting privileges at a hospital within 30 miles of Bossier Clinic. (Doc. 191 at 19.)
209. Doe 2 has been unsuccessful in his good faith efforts to get admitting active admitting privileges within 30 miles of the Bossier Clinic. (See, e.g., Doc. 191.)
210. Doe 2 worked as an Assistant Clinical Professor of Medicine at LSU Medical School, now known as University Health, at various times for approximately 18 years total, leaving LSU in 2004. (Id. at 14-15.)
211. While he was on staff at University and during the years in which he engaged in a general OB/GYN practice, Doe 2 had admitting privileges at various hospitals. (Id. at 24, 95.)
212. When he left the University staff in 2004, Doe 2 was given consulting privileges, which allow him to consult but not to admit patients. (Doc. 191 at 23-24, 84-88; JX 79 at 1708-09; JX 185.)
213. Following the passage of Act 620, Doe 2 attempted to upgrade his privileges at University to allow him to admit patients in order to comply with the requirements of the Act. (Doc. 191 at 24-25.)
214. When he spoke to Dr. Lynne Groome ("Groome"), the head of the OB/GYN Department at University, about upgrading his privileges, he was told this would not happen because of his abortion practice. (Id. at 25-26; cf. JX 116 ¶ 27.)
(Id. at 25-26.)
216. During the summer of 2014, Doe 2 also applied for privileges at WKB. (Id. at 26-27.)
217. On August 11, 2014, the Department of OB/GYN and Pediatrics Performance Peer Review Panel ("PPRP") at WKB wrote to Doe 2 asking for additional information: "In order for the Panel to sufficiently assess your clinical competence, you will need to submit documentation, which should include operative notes and outcomes, of cases performed within the last 12 months for the specific procedures you are requesting on the privilege request form." (JX 144 at 3445-46; see also, e.g., Doc. 191 at 29.)
218. After Doe 2 made information regarding his prior outpatient operations available to WKB, (Doc. 191 at 30), he received another letter from WKB dated November 19, 2014, stating in pertinent part:
(JX 89 at 1950; see also Doc. 191 at 30-31.)
219. Because of the nature of his non-hospital based practice, Doe 2 was and is unable to provide the requested information. (See, e.g., Doc. 191 at 29-31.) Thus, while Defendant is correct in arguing that Doe 2's application has not been formally denied, (Doc. 201 at 11), Doe 2's application cannot and will never be approved according to WKP's own letter, (JX 89; see also, e.g., JX 144 at 3445-46).
220. As explained by Doe 2, "You know, they haven't formally denied me.... I'm in a Catch-22 basically. I can't provide information I don't have." (Doc. 191 at 79-80.)
221. This situation mirrors Doe 1's experience with three other Willis-Knighton-branded entities. Specifically, the Court also notes that although Doe 1, in response to a similar letter from WK Medical Center, WK South, and WK Pierremont, (JX 128), formally responded showing he had not had any hospital admissions in the last 12 months, (JX 189 at 3579; Doc. 192 at 77-78), WK still has not denied or approved his application, (Doc. 192 at 78).
222. The Court finds that, under these circumstances, Doe 2's inability to gain
223. While Defendant argues that Willis-Knighton's inaction is related to Dr. Doe 2's competence because, due to the nature of his practice, he cannot demonstrate "current clinical competence" (Doc. 201 at 11), the Court is not persuaded. The reality is different. Doe 2, a Board Certified OB/GYN who spent many years as an Assistant Clinical Professor at LSU Medical School and who, by Willis-Knighton's admission, has demonstrated his ability regarding outpatient surgeries, is in what he correctly describes a "Catch-22" created by a combination of the Act's requirement and the nature of his practice as an abortion provider.
224. Because Doe 2 also practices at Causeway Clinic in Metairie, he applied for admitting privileges at Tulane, within 30 miles of Causeway. (See, e.g., Doc. 191 at 32-35, 230; JC 180.)
225. While Defendant has argued that the admitting privileges requirement is only about insuring competency of doctors who perform abortions and the process of gaining admitting privileges is neutral and devoid of considerations of the political, religious and social hostility against abortion, the email exchanges between Doe 2 and Dr. A at Tulane demonstrate a very different reality, even in a metropolitan, university-based hospital. (JX 169-78;
226. In this exchange, Dr. A first feels the need to discuss Doe 2's request for privileges "with our lobbyists." (JX 169.) Because Doe 2 is a "low/no provider" in hospitals in the New Orleans area, Dr. A states: "This is truly a rock and a hard place." (JX 172.) When Doe 2 expresses frustration with the lack of success in the application process, Dr. A states: "This is just ridiculous. I can't believe the state has come to this." (JX 174; cf. JX 170.) Dr. A continues: "I am working on an approach where you would get admitting privileges only for your patients ...." (JX 175.) When a proposed solution is found and Doe 2 expresses doubt that this will meet the requirements of the law, Dr. A responds: "Technically, you will have admitting privileges. Isn't that what the law says?" (JX 177). When discussing the need for a covering physician, Dr. A clarifies some of the problems surrounding Doe 2's application: "There were a few faculty who were not comfortable with covering; they were also concerned that `Tulane as back up for an abortion clinic might not help our referrals.' Given this concern, Dr. B will cover for you formally." (JX 178.)
227. When privileges were finally granted by Tulane, Doe 2 was notified by Dr. A that the proposed privileges would have "the following limitations: `Admissions of patients from the physician's clinical practice with complications of first and second trimester abortions with referral of those patients to an attending physician on the Tulane staff credentialed for OB/Gyn privileges who has agreed to provide for such care for the physician's patients.'" (JX 181; see also Doc. 191 at 57, 60-61.)
228. Consistent with this email, Tulane's formal grant circumscribed Doe 2's privileges in these terms: "Admission of patients from the physician's clinical practice... with referral of those patients to an attending physician on staff at [Tulane Medical Center] credentialed for Ob/Gyn privileges who has agreed to provide care for the physician's patients at TMS." (JX 183 at 3652-3; see also Doc. 191 at 33, 55-58.)
230. Defendant has filed an affidavit in which she states that the admitting privileges granted to Dr. Doe 2 by Tulane "are sufficient to comply with the Act." (JX 191 at 3668; see also Doc. 196 at 20; Doc. 200 at 48.)
231. Plaintiffs argue:
(Doc. 196 ¶ 47 at 20 (citing to Doc. 193 at 123; Doc. 191 at 38-40).)
232. Plaintiff further argues:
(Id. ¶ 48 at 20 (citing Doc. 191 at 38-40; JX 191).)
233. Defendant makes two counters:
(Doc. 201 ¶ 47 at 12.)
234. Defendant further argues:
(Id. ¶ 48 at 12.)
235. In light of Defendant's argument, so as to resolve this dispute and determine whether Doe 2 has "active admitting privileges" at Tulane, the Court must first determine whether it is bound by the interpretation given by Defendant and, if not, compare the privileges granted by Tulane with Act 620's definition of "active admitting privileges."
236. Whatever discretion the Secretary may have in a law's enforcement, no deference is owed to an opinion contrary to the law's unambiguous and plain meaning. See, e.g., Util. Air Regulatory Grp. v. EPA, ___ U.S. ___, 134 S.Ct. 2427,
237. If the relevant statute is ambiguous, however, at least some deference is owed. See Nat'l Cable & Telecommc'ns Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 2699, 162 L.Ed.2d 820 (2005). But such deference is only accorded if the statute is truly "ambiguous" regarding the precise "question at issue" and if the agency's interpretation is a "reasonable" and hence "permissible construction of the statute" at hand. Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir.2012); see also, e.g., Siwe v. Holder, 742 F.3d 603, 607 n. 27 (5th Cir.2014) (citing id.); United States v. Baptiste, 34 F.Supp.3d 662, 670 (W.D.Tex. 2014) (same). Thus, even if the pertinent statute is ambiguous, an agency's interpretation may be denied "controlling weight" if "arbitrary, capricious, or manifestly contrary to the statute." Rodriguez-Avalos v. Holder, 788 F.3d 444, 449 (5th Cir.2015) (quoting Orellana-Monson, 685 F.3d at 517).
238. Critically, as federal courts are bound to "interpret a state statute as that state's courts would construe it," A Woman's Choice-East Side Women's Clinic v. Newman, 305 F.3d 684, 696 (7th Cir.2002), the same type of measured deference is afforded to agency interpretations by this state's courts. Compare Silva-Trevino v. Holder, 742 F.3d 197, 199-200 (5th Cir.2014), with Zeringue v. State Dep't of Public Safety, 467 So.2d 1358, 1361 (La.Ct.App.1985). Like their federal counterparts, Louisiana state agencies are "entitled to deference regarding ... interpretation and construction of the rules and regulations that ... [they] promulgate[]." Women's & Children's Hosp. v. State, 2007 1157 (La.App. 1 Cir. 02/08/08); 984 So.2d 760, 768-69; see also Oakville Cmty. Action Grp. v. La. Dep't of Envtl. Quality, 2005 1365 (La.App. 1 Cir. 5/5/06); 935 So.2d 175, 186 (La.Ct.App.2006) ("A state agency is charged with interpreting its own rules and regulations and great deference must be given to the agency's interpretation.")
239. However, as with Chevron, the statute itself must be ambiguous for such respect to be accorded. Clark v. Bd. of Comm'rs, 422 So.2d 247, 251 (La.Ct. App.1982) ("[A]lthough an agency's interpretation of a statute under which it operates is entitled to some deference, such
240. Moreover, again as with a federal statute, "agency[] interpretations" lose any persuasive value, forfeiting any right to judicial deference, if "arbitrary, capricious or manifestly contrary to its rules and regulation." In re Recovery I, 93-0441 (La.App. 1 Cir. 04/08/94); 635 So.2d 690, 696; see also, e.g., Doctors Hosp. of Augusta v. Dep't of Health & Hosps., 2013 1762 (La.App. 1 Cir. 09/17/14); 2014 La.App. Unpub. LEXIS 481, at *19-20, 2014 WL 4658202, at *7 (refusing to accord any deference to an interpretation by the same agency here, deeming it "an abuse of discretion" that effectively rewrote the relevant statute); Bowers v. Firefighters' Ret. Sys., 2008-1268 (La. 03/17/09); 6 So.3d 173, 176 ("Under the arbitrary and capricious standard, an agency decision is entitled to deference in its interpretation of its own rules and regulations; however,
241. The Court finds that Defendant's interpretation of Act 620 is contradicted by its plain language. Expressly and unambiguously, the statute defines "active admitting privileges" to include "the ability to admit a patient and to provide diagnostic and surgical services to such patient consistent with the requirements of Paragraph (A)(1) of this Subsection [requiring a physician performing abortions to be licensed and have completed or be enrolled in an OB/GYN or family residency program]." LA. R.S. § 40:1299.35.2A(2)(a).
242. Because the validity of Defendant's interpretation arose during trial, the Court asked the following question to Marier, Defendant's expert witness, a physician who helped draft Act 620, (Doc. 193 at 94): "And I understood you to say that the doctor, in order to meet Act 620 would have to — would not have to be able to perform all diagnostic and surgical services, but would have to perform some diagnostic and surgical services. Did I understand that correctly?" (Doc. 193 at 123 (emphasis added).) To this question, Marier answered: "Yes. Yes, Your Honor." (Id.)
243. Because Doe 2's privileges are limited to "admission of patients" with the obligation to refer his patient to a "Tulane staff Ob/Gyn" for surgery and other kinds of treatment as well as diagnostic services, this arrangement does not allow Doe 2 to perform any (let alone "some") diagnostic, surgical or other kinds of treatment himself. Regardless of that fact that Tulane has chosen to label him an "admitting physician," (JX 184), he cannot "provide diagnostic and surgical services," and Act 620 expressly defines "active admitting privileges" as encompassing the ability to do so, LA. R.S. § 40:1299.35.2A(2)(a). Hence, Doe 2's privileges do not and cannot meet the plain language of Act 620.
244. Here, as Defendant's own expert testified and as the statute's plain meaning
245. The Court also notes that the Defendant's interpretation allowing (and, in the case of Dr. Doe 2 and Tulane, requiring) the abortion provider to turn over the actual care of the patient to another doctor, flies in the face of one of Act 620's main purposes and purported medical benefits: "continuity of care," the ability of a the abortion provider to treat his patient in the hospital if admission to the hospital is necessary. (See, e.g., Doc. 193 at 21-23; Doc. 200 ¶¶ 91 at 98-101.)
246. While Defendant is correct that Secretary Kliebert is the person charged with enforcing this provision, it is also true that the Secretary of DHH often changes every few years.
247. It is also true that the new Secretary may disagree with her predecessor and reverse course on her current interpretation of Act 620.
248. The Court finds that Doe 2 has legitimate concerns about relying on the declaration of Defendant to practice as an abortion provider if Act 620 were to go into effect.
249. More importantly, the Court finds that Doe 2 does not have active admitting privileges within the meaning of Act 620 at a hospital within 30 miles of Causeway Clinic.
250. Doe 3 currently has admitting privileges at the WKB and Christus, both of which are within 30 miles of Hope Clinic where he performs abortions. (Doc. 190 at 21-22, 120, 148-49; JX 188 ¶ 6; JX 116 ¶ 18.)
251. The Court finds that Doe 3 is a well qualified physician and a credible witness. (See, e.g., JX 188 ¶ 1; Doc. 190 at 109-11.)
253. Doe 3 has had admitting privileges at Christus since the 1990's and at WKB since late 1997 or early 1998. (Doc. 190 at 120-21.)
254. Doe 3 uses his admitting privileges primarily in connection with his busy obstetrics practice delivering babies and, to a lesser extent to his private practice in gynecology, not because of his work at Hope Clinic. (Id. at 124, 147; see also JX 188 ¶ 7.)
255. As a result of his fears of violence and harassment, Doe 3 has credibly testified that if he is the last physician performing abortion in either the entire state or in the northern part of the state, he will not continue to perform abortions. (Doc. 190 at 174-76; see also, e.g., JX 188 ¶¶ 10-11.)
256. Doe 4 performs abortions only at Causeway in Metairie. (See, e.g., JX 114 ¶ 1; Doc. 168-5 at 8.)
257. He does not currently have admitting privileges at a hospital within 30 miles of that clinic. (Doc. 191 at 18.)
258. Doe 4 testified by deposition, (Doc. 168-5), and so the Court did not have the opportunity to directly measure his demeanor. However, the Court finds that Doe 4 is a well qualified physician, (See, e.g., JX 114 ¶ 1; Doc. 168-5 at 5-6, 9, 12), and that his testimony is credible and consistent with the other testifying doctors who perform abortions.
259. On August 6, 2014, Dr. John Doe 4 applied for admitting privileges at Ochsner-Kenner Medical Center ("Ochsner"). (JX 57 at 762-808; see also Doc. 168-5 at 16-17.)
260. Doe 4 chose to apply to Ochsner because he knew a physician there who agreed to provide coverage for him. (Doc. 168-5 at 17.) Ochsner was the only hospital where Doe 4 knew a physician who would cover for him and who met the hospital's criteria to be a covering physician. (Id. at 85, 109-10.)
261. Ochsner requested additional information, which Doe 4 provided, (JX 98 at 2118; Doc. 121 at 3-4; JX 60 at 824), but he has not received a response at this time. (Doc. 168-5 at 17.)
262. Doe 4 did not apply for admitting privileges at Touro Infirmary or LSU New Orleans because both hospitals required Doe 4 to find an OB/GYN to cover for him, which Doe 4 has been unable to do. (Id. at 23.)
263. The Court finds that, despite a good faith effort to gain admitting privileges at a hospital within 30 miles of where he performs abortions, and given the fact that it has been well over a year since he applied for privileges with no response, the Court finds that Doe 4's inability to meet the requirements of Act 620 is unrelated to his competence and his request for privileges has been de facto denied.
264. Doe 5 performs abortions at two facilities: Woman Health's in New Orleans and Delta in Baton Rouge. (See, e.g., Doc. 168-6 at 4; JX 109 ¶ 7.)
265. Like Doe 4, Doe 5 testified by deposition, and this Court hence did not have the opportunity to directly measure his demeanor. However, in reviewing his deposition and related documentation, (See, e.g., Doc. 168-6; JX 109), the Court finds the testimony to be credible and consistent with the other testifying doctors who perform abortions.
267. On July 24, 2014, Doe 5 received admitting privileges at Hospital C, which is within 30 miles of Women's Clinic where he performs abortions. (Doc. 168-4 at 25-26; Doc. 168-6 at 11; JX 109 ¶ 34.)
268. The Parties have stipulated that Doe 5's privileges at Hospital C are "active admitting privileges" as defined in Act 620. (Doc. 176; Doc. 168-4 at 26; Doc. 168-6 at 11-13.)
269. Doe 5 does not currently have admitting privileges at a hospital within 30 miles of Delta in Baton Rouge. (See, e.g., Doc. 168-6 at 22; JX 109 ¶ 23.)
270. Doe 5 has applied for admitting privileges at three hospitals in the Baton Rouge area: Woman's Hospital in April or May of 2014 and Lane Regional Medical Center and Baton Rouge General Medical Center in July of 2014. (Doc. 168-6 at 11; JX 109 ¶¶ 32-33.)
271. Doe 5 has been unable to find a local physician who is willing to provide coverage for him when he is not in Baton Rouge, which all three hospitals require. (JX 109 ¶¶ 32-33; Doc. 51; Doc. 168-6 at 11-12.)
272. The Court finds that Doe 5, despite good faith efforts to meet the requirements of Act 620, has been unable to do so in the Baton Rouge area for a period of well over a year for reasons unrelated to his competence. Under these circumstances, while his applications have not been finally acted upon and are therefore technically "pending," the Court finds that they have been de facto denied.
273. Doe 6 is a Board Certified OB/GYN with 48 years of experience who is the Medical Director of Woman's Clinic in New Orleans and Delta Clinic in Baton Rouge. (JX 168 ¶ 1; see also JX 109 ¶ 8.)
274. Doe 6 provided his testimony by declaration, (JX 168), and so the Court did not have the opportunity to directly measure his demeanor. However, in reviewing his Declaration, the Court finds the testimony to be credible and consistent with the other testifying doctors who perform abortions in Louisiana.
275. While Doe 6 is Medical Director at both Women's and Delta, "[d]ue to [his] age and the demands of traveling back and forth between New Orleans and Baton Rouge, along with [his] private gynecology practice in New Orleans, [he is] no longer able to provide abortion[s] in Baton Rouge." (JX 168 ¶ 3; see also JX 109 ¶ 8.)
276. As a result, Doe 6 ceased performing abortions at Delta in Baton Rouge in April of 2012, leaving only Doe 5 performing abortions at that facility. (JX 168 ¶ 3; see also JX 109 ¶ 9.)
277. Doe 6 does not currently have admitting privileges at a hospital within 30 miles of Women's Clinic or Delta Clinic. (JX 168 ¶¶ 15, 21.)
278. From approximately 1973 to 2005, when he had an OB/GYN practice, Doe 6 had admitting privileges at various hospitals in New Orleans. (Id. ¶ 13.) As his private practice became solely a gynecology practice, and due to the low rate of abortion complications, he was unable to meet the hospitals' requirements to admit a minimum number of patients each year. (Id.) Doe 6 also did not need admitting privileges because he was not admitting patients to the hospital. (Id.) Consequently, when his admitting privileges expired, he did not apply to renew them. (Id.)
280. Prior to September 1, 2014, Doe 6 applied for admitting privileges at East Jefferson Hospital in New Orleans, which is within 30 miles of Women's Clinic. (JX 109 ¶¶ 31-33; JX 168 ¶ 15.) On September 17, 2014, East Jefferson requested additional information, which he then provided. (Doc. 51 at 2.) Since that time, no action has been taken. (Id.; see also, e.g., JX 168 ¶ 15.) That application, now pending for over a year, is considered by the Court to have been de facto denied.
281. Doe 6 testified that he did not apply to other hospitals within 30 miles of Women's Clinic because, due to the nature of his practice as an abortion provider, he did not admit a sufficient number of patients to receive active admitting privileges. (JX 168 ¶ 11.)
282. On September 17, 2015, the Court requested that Plaintiffs update the Court on or before September 24, 2015, on the status of the admitting privileges of the doctors and, if there were any changes, to provide the details of same. (Doc. 206.)
283. By letter of September 25, 2015, the Plaintiffs informed the Court and Defendants that, after making inquiries, they were unaware of any material changes in the status of the applications of Does 1-6. (Doc. 209.)
284. At a telephone status conference of September 28, 2015, this letter was received into evidence without objection as JX 193. (Doc. 210.)
285. The number and location of doctors and clinics providing abortions varies widely from state to state. The effect of an admitting privileges requirement on those providers and the concomitant effect on women's right to an abortion has also varied state to state.
286. Before the passage of Act 620, doctors performing abortions in Louisiana were not required to and, for their practices, did not need to have admitting privileges at any hospital, let alone a nearby hospital, in order to safely provide services
287. As summarized above, at the time Act 620 was passed, only one of the six doctors performing abortions, Doe 3, had admitting privileges at a hospital and he maintained these admitting privileges for years in order to facilitate his general OB/GYN practice which was and is unrelated to that portion of his practice performing abortions at Hope.
288. Since the passage of Act 620, all five remaining doctors have attempted in good faith to comply with Act 620. All five have attempted to get admitting privileges at a hospital within 30 miles of where they perform abortions. All five have made formal applications to at least one nearby hospital and three of the five doctors have filed applications at multiple hospitals within thirty miles.
289. Two of the doctors, Does 2 and 5, perform abortions in two separate cities and thus, each had to apply at hospitals in two different locales.
290. Based on a careful review of the evidence, the Court finds that, notwithstanding the good faith efforts of Does 1, 2, 4, 5 and 6 to comply with the Act by getting active admitting privileges at a hospital within 30 miles of where they perform abortions, they have had very limited success for reasons related to Act 620 and not related to their competence.
291. The five doctors have filed thirteen separate formal applications at nearby hospitals. In only one of those cases-Doe 5 at Hospital C
292. Of the thirteen formal applications filed, only one has been frankly denied, the application of Doe 1 at Minden.
293. The remaining ten applications have never been finally acted upon because the doctor applying, given the nature of his practice as an abortion provider, either cannot provide the information required or the information has been provided and the application remains in limbo for undisclosed reasons. In almost every instance, more than a year has passed since the original applications were filed.
294. Defendant argues that where these applications are "pending," the applications have not been denied and therefore Plaintiffs have failed to prove that Act 620 has caused the failure of these doctors to get admitting privileges.
295. The Court disagrees. Because Louisiana has no statutorily prescribed time limit within which a hospital must act on a physician's application, see supra Part V.D. a hospital can effectively deny the application by simply not acting upon it. Given the length of time involved in these applications, the Court finds that this is precisely what has occurred here.
296. Doe 3 has been threatened as a result of his work at Hope Clinic. (See, e.g., JX 113 ¶ 3.) Last year, anti-abortion activists from outside Louisiana left fliers on neighbors' mailboxes calling him an abortionist and saying they wanted to convert
297. These individuals also approached Doe 3's regular medical practice patients as they tried to enter his office, requiring the building security officers to escort the activists off the premises. (Doc. 190 at 109; see also JX 113 ¶ 3.) These individuals told Doe 3's patients that he killed babies and that they should not see him. (Doc. 190 at 109.)
298. Doe 3, the only abortion doctor who had privileges at the time Act 620 was passed, (See, e.g., JX 116 ¶ 18), fears that, if the other Louisiana abortion providers are not able to obtain admitting privileges, he will become an even greater target for anti-abortion violence. (See, e.g., JX 113 ¶¶ 3-7.) He specifically testified that "all [these individuals] have to do is eliminate [him] as they have Dr. Tiller and some of the other abortion providers around the country" to eliminate abortion entirely in Northern Louisiana. (Doc. 190 at 174-75.)
299. Doe 3 is also concerned that such individuals could "cause a lot of other ... problems that would affect [his] ability to perform the rest of [his] practice." (Id. at 174-75; cf. JX 113 ¶ 8.)
300. Doe 3 has difficulty arranging coverage for his OB/GYN practice because other OB/GYN doctors in the Shreveport area refuse to cover his practice as a result of his work at Hope Clinic performing abortions. (Doc. 190 at 111-13.)
301. Dr. Doe 3 testified that, as a result of his fears, and the demands of his private OB/GYN practice, if he is the last physician performing abortion in either the entire state or in the northern part of the state, he will not continue to perform abortions. (Id. at 174-76; see also JX 116 ¶ 19.) The Court finds his testimony credible and supported by the weight of other evidence in the record.
302. To summarize,
303. The Court finds that the inability of Does 1, 4 and 6 to get active admitting privileges at any hospital is directly related to the requirements of Act 620 as they apply in concert with existing Louisiana law and the Louisiana rules and practices for getting admitting privileges.
304. The Court finds that the inability of Doe 2 to get active admitting privileges within 30 miles of Bossier and only limited privileges (not "active admitting privileges") within 30 miles of Causeway as well as Doe 5's inability to get active admitting privileges within 30 miles of the Delta are also directly attributable to the requirements of Act 620 as they apply in concert with the rules and practices for getting admitting privileges in Louisiana.
305. If Act 620 were to be enforced, four of the six doctors-Doe 1, 2, 4, and 6-would not meet the requirements of Act 620. If Doe 3 quits the abortion practice, as he has testified he will, Louisiana would be left with one provider and one clinic. As is analyzed in more detail below, this would result in a substantial number of Louisiana women being denied access to an abortion in this state.
306. If Act 620 were to be enforced, four of the five clinics-Hope, Bossier, Delta, and Causeway — would have no abortion provider, with the one remaining clinic (Woman's) without one of the two doctors that normally serves its patients.
307. Women's Clinic would have only Doe 5 to handle not only all patients at that facility but the patients at the other four. According to Cochran, the Administrator at Women's Health, Doe 6 provided 60% of the abortion services at this center. As she testified, "[e]ven if Dr. Doe 5 were to commit all of his time to serving patients at Women's Clinic, I do not see how we could serve all of the patients who [would] be coming to our doors once Delta Clinic closes ...." (JX 109 ¶ 37.)
308. Furthermore, since Women's Health would be the only clinic to serve all the women of Louisiana, it clearly could not perform that task as a logistical matter. Doe 5 performed a total approximately 2,950 abortions in the year 2013 at Delta and Women's. (JX 110 ¶ 7.) Given the 9,976 abortions performed in Louisiana in that same year,
309. Given that the total number of women of reproductive age in Louisiana is 938,719 according to Defendant expert
310. Even if one were to conclude that Doe 3 will not quit or that his quitting is legally irrelevant, Act 620's will nonetheless result in the inability of a substantial number of Louisiana to obtain an abortion in this state. Just the loss of Doe 1 on Hope would be, according to Pittman, Hope's administrator, "devastating" to its operations and viability. (Doc 190 at 29.)
311. Doe 3 sees about 20 to 30 abortion patients per week, or roughly 1,000 to 1,500 per year. (Id. at 118.) This would leave roughly 5,500 Louisiana women seeking an abortion (or 55%) without the ability to get one. When one uses women of reproductive age as the denominator, the percentage of Louisiana women unable to get an abortion is still over 99%.
312. Even if one additionally assumes that Defendant's interpretation of Doe 2's privileges at Tulane is correct, so that he meets the requirements of Act 620 at Tulane, the Act's negative impact upon a woman's right to abortion in Louisiana would still be significant. Doe 2 performed a total of approximately 1,000 abortions last year at the two clinics where he worked. (Doc. 191 at 17-18.) Thus, if you combine his procedures with those of Does 3 and 5, there would still be some 4,500 women seeking an abortion (or about 45% of women seeking an abortion in a given year) who would otherwise be able to get abortion and who could not do so upon Act 620's enforcement. Utilizing the women of reproductive age as the denominator, that percentage would rise to over 99%.
313. Even if Doe 3 continued to practice and Doe 2's limited privileges at Tulane met the requirements of Act 620, two of Louisiana's five abortion clinics-Bossier and Delta-would be without an abortion provider.
314. The remaining three-Hope, Causeway and Woman's-would each be without one of the two providers who normally perform abortions, an insufficient number to service the patients in the region, let alone the number of patients who might come from other parts of the state because of similar insufficient capacity.
315. Analyzed regionally, if Act 620 were to be enforced, the Baton Rouge and Shreveport areas would have no facility, and the New Orleans area would have only one provider, rather than the two who currently work there. If, as Defendant argues, Doe 3's quitting is legally irrelevant and the Defendant's interpretation of Doe 2's privileges at Tulane is correct, Baton Rouge would be left with no facility, Shreveport with one (Hope) and New Orleans with two (Causeway and Woman's). But each remaining facility would have only half the previous number of providers.
316. Abortion clinics in Louisiana routinely make efforts to recruit doctors to work at the clinics, such as placing advertisements throughout the state and working with reproductive health specialists to identify potential candidates. (Doc. 190 at 22, 24-25, 33, 87; Doc. 168-8 at 7-8.)
317. The anticipated admitting privileges requirement of Act 620 has made it difficult to recruit new doctors. (Doc. 190 at 24.) In Pittman's words, "It definitely has." (Id.)
319. In addition, doctors who appear to be good candidates consistently express reluctance to be hired in Louisiana because of the numerous restrictions placed on abortion providers by Louisiana's existing laws and regulations. (See id. at 22-25.)
320. For the same reasons that Does 1, 2, 4, 5, and 6 have had difficulties getting active admitting privileges, reasons unrelated to their competence, the Court finds that it is unlikely that the effected clinics will be able to comply with the Act by recruiting new physicians who have or can obtain admitting privileges. A significant contributing factor to that inability is Act 620 and the difficulties it creates for a doctor with an abortion practice gaining active admitting privileges in the context of Louisiana's admitting privileges rules and practices.
321. The Court finds that the enforcement of Act 620 and the concomitant effect on restricted access to abortion doctors and clinics would result in delays in care, causing a higher risk of complications, as well as a likely increase in self-performed, unlicensed and unsafe abortions. (See, e.g., id. at 222-24; Doc. 191 at 157-62.)
322. Plaintiffs challenge Act 620 as unconstitutional on three broad grounds. First, under the rational review prong of the Casey test, Act 620 does not serve a legitimate state interest. (Doc. 102 at 5-7; Doc. 196 ¶¶ 322-34). Second, the effect of Act 620 is to place an undue burden on the right of Louisiana women to have an abortion. (Doc. 102 at 7-16; Doc. 196 ¶¶ 297-307). And third, the purpose of Act 620 is to create a substantial obstacle to a Louisiana woman's right to an abortion. (Doc. 102 at 16-19; Doc. 196 ¶¶ 308-21).
323. In her Partial MSJ, (Doc. 87), Motion for Reconsideration, (Doc. 144), and post-trial briefs, (Docs. 200-01), Defendant argues that three issues should be eliminated as a matter of law: (1) whether Act 620 serves a legitimate state interest under the Casey rational review test; (2) whether Act 620 imposes a medically unreasonable requirement; and (3) whether Act 620 has the improper purpose of placing an undue burden on abortion access in Louisiana.
324. The essence of Defendant's argument is that all three issues were decided as a matter of law in five recent Fifth Circuit decisions which are binding on this Court and require the granting of Defendant's motion for partial summary judgment. These decisions include: Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406 (5th Cir.2013) ("Abbott I"); Abbott II, 748 F.3d 583; Currier, 760 F.3d 448; Whole Woman's Health v. Lakey, 769 F.3d 285 (5th Cir.2014) ("Lakey"), vacated in part, ___ U.S. ___, 135 S.Ct. 399, 190 L.Ed.2d 247 (2014); and Cole, 790 F.3d 563. Further, in the alternative, Defendant argues that Plaintiffs failed on the merits to offer admissible and relevant evidence in support of their position that Act 620 has an improper purpose.
325. In addition, Defendant argues that the above cited cases set the legal
326. The essence of Plaintiffs' response is that: (1) Currier, Abbott I and II, Lakey, and Cole do not bind this Court on rational review because that analysis is fact-specific and must be evaluated in the context of this specific statute as applied in this specific state; (2) that the medical need and reasonableness of Act 620 are relevant to the issue of the statute's alleged undue burden; and (3) that medical need and reasonableness of Act 620 are relevant to the statute's purpose, an issue related to but separate from rational basis or the statute's effect, and one not addressed in these Fifth Circuit cases or at least not addressed in the context of the specific facts of this case.
327. Both sides agree that the question of whether the effect of Act 620 is to create an undue burden was properly ripe for the preliminary injunction hearing. Plaintiffs argue that, under the proper standard, Plaintiffs have shown both improper purpose and undue burden. Defendant argues they have proven neither.
328. "[F]or more than 40 years, it has been settled constitutional law that the Fourteenth Amendment protects a woman's basic right to choose an abortion." Currier, 760 F.3d at 453 (citing Roe, 410 U.S. 113, 93 S.Ct. 705).
329. The test to be applied in this circuit to determine the constitutionality of a law which arguably restricts a woman's right to an abortion is set out in five recent cases: Currier, Abbott I, Abbott II, Lakey and Cole. All five cases dealt, in part, with an admitting privileges requirement very similar to Act 620 as written and enacted. Compare LA. R.S. § 40:1299.35.2, with, e.g., H.B. 2, 83d Legis., 2d Spec. Sess. (Tex. 2013); H.B. 1390, 2012 Legis., Reg. Sess. (Miss. 2012).
330. In order to be deemed unconstitutional, a statute restricting a woman's right to abortion must fail at least one of two different tests: the "rational basis" test or the "undue burden" test. Currier, 760 F.3d at 453 ("In addition to creating no undue burden, an abortion restriction must pass a rational basis test." (relying in part on Gonzales v. Carhart, 550 U.S. 124, 158, 127 S.Ct. 1610, 1633, 167 L.Ed.2d 480 (2007) ("Carhart")); see also Cole, 790 F.3d at 576, 576 (citing the "trio of widely-known Supreme Court decisions [which] provide[] the framework for ruling on the constitutionality" of an abortion law — Roe, Casey, and Gonzales — and distinguishing between the rational basis and undue burden tests).
331. In making this dual analysis, the Court must use a "two-step approach," first making a rational basis inquiry followed by an analysis of whether the statute creates at undue burden. Lakey, 769 F.3d at 293, 297.
332. "The first-step of the analysis of an abortion regulation ... is rational basis review, not empirical basis review." Abbott II, 748 F.3d at 596 (emphasis in original) (citing Carhart, 550 U.S. at 158, 127 S.Ct. 1610).
334. Crucially, while the Parties introduced a great deal of evidence on the effects of Act 620, that evidence is not relevant in the rational basis review. "[T]here is `never a role for evidentiary proceedings' under rational basis review." Abbott II, 748 F.3d at 596 (quoting Nat'l Paint & Coatings Ass'n v. City of Chicago, 45 F.3d 1124, 1127 (7th Cir.1995)). "[L]egislative choice is not subject to courtroom fact-finding." Id. at 594 (quoting F.C.C. v. Beach Commnc'ns, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 2102, 124 L.Ed.2d 211, (1993) (citing cases)). In applying this part of the test, a district court is not to relitigate the facts that led to the passage of the law. Id. (citing Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993)).
335. Rather, "the rational basis test seeks only to determine whether there is any conceivable basis for the enactment." Id. (citing Beach Commc'ns, 508 U.S. at 313, 113 S.Ct. 2096). "A law `based on rational speculation unsupported by evidence or empirical data' satisfies rational basis review." Id. (emphasis added) (quoting Beach Commc'ns, 508 U.S. at 315, 113 S.Ct. 2096).
336. Even if the law regulating abortion has a rational basis, it can still be unconstitutional if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Casey, 505 U.S. at 877, 112 S.Ct. 2791; see also, e.g., Lakey, 769 F.3d at 294; Cole, 790 F.3d at 572, 576.
337. Whether the law's "purpose" is to create an undue burden, or its "effect" does so unintentionally, are two different inquiries and are to be considered separately. See Lakey, 769 F.3d at 294 (emphasizing that this inquiry looks to whether the provision has " either the purpose or effect' of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus" (emphasis in original)); cf. Jane L. v. Bangerter, 102 F.3d 1112, 1116 n. 5 (10th Cir.1996) (commenting that "[n]either the district court nor the [s]tate has focused on the fact that under Casey, a law is invalid if either its purpose or effect is to place a substantial obstacle in the path of a woman seeking to abort a nonviable fetus").
338. Unlike the rational basis test, proof is not only allowed, but is required, in order to satisfy the two prongs of the undue burden test. Lakey, 769 F.3d at 294-95 (reversing the district court's
339. Therefore, two issues central to the undue burden test are (1) what kind of evidence is admissible to satisfy the purpose and effect prongs and (2) by what standard is this evidence to be measured in determining if the plaintiffs have met their burden?
340. As a threshold matter, the Court observes that the answer to these two questions is dramatically different depending on the circuit in which the issue is considered. In utilizing this measure, some require the regulation to be examined in a "real-world context." Planned Parenthood Se., Inc. v. Strange, 33 F.Supp.3d 1330, 1337 (M.D.Ala.2014) ("Strange"); see also Planned Parenthood of Wis., Inc. v. Van Hollen, 94 F.Supp.3d 949, 963 & n. 14 (W.D.Wis.2015) ("Van Hollen") (specifically rejecting the conclusion that the Fifth Circuit's reasoning in Abbott II is consistent with Casey and emphasizing that the Seventh Circuit, as well as the Ninth, favor "balancing of benefits and burdens"), aff'd, 806 F.3d 908 (7th Cir.2015). As explained by one court, this kind of "careful, fact-specific analysis" focuses on "how the restrictions would impede women's ability to have an abortion, in light of the circumstances in their lives." Strange, 33 F.Supp.3d at 1338 (quoting the earlier Planned Parenthood Se., Inc. v. Strange, 9 F.Supp.3d 1272, 1285 (M.D.Ala.2014)); see also, e.g., Planned Parenthood of Heartland, Inc. v. Iowa Bd. of Med., 865 N.W.2d 252, 268-69 (Iowa 2015) (holding undue burden test must be "context-specific"); Planned Parenthood of Ariz., Inc. v. Humble, 753 F.3d 905, 914 (9th Cir.2014) (criticizing the Fifth and Sixth Circuit approaches for not being context-specific).
341. Under this approach, "real-world" factors must be considered by the court, including the role of poverty in creating increased obstacles for poor women who seek abortions, and the negative effects of violence against abortion providers on the granting of admitting privileges and recruiting of doctors. See, e.g., Strange, 33 F.Supp.3d at 1351-53, 1356-58; Van Hollen, 94 F.Supp.3d at 965, 976.
342. Under the Fifth Circuit approach, however, poverty related issues, e.g. increased challenges for poor women to get an abortion far from their home caused by lack of availability of child care, unreliability of transportation, unavailability of time off from work, etc., cannot be considered in the undue burden analysis because these issues were not caused by or related to the admitting privileges requirement. See Cole, 790 F.3d at 589.
343. Similarly, the Fifth Circuit has found "fear [of] anti-abortion violence" to be unrelated to the abortion regulation at issue; such fears are therefore legally irrelevant. Abbott II, 748 F.3d at 599.
344. This Court, therefore, has not considered the evidence presented on these "real world" issues in reaching its decision.
345. A second major difference in the approach taken by the circuits in applying
346. The Fifth Circuit has specifically rejected this balancing or weighing test: "[O]ur circuit does not incorporate a balancing analysis into the undue burden analysis." Lakey, 769 F.3d at 305; accord, e.g., Abbott II, 748 F.3d at 593-94; Cole, 790 F.3d at 587 n. 33; see also, e.g., Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 513 (6th Cir.2012) (Moore, J., dissenting in part) (noting that "a `substantial obstacle' has never been defined as a total obstacle" and that "in evaluating the impact of restrictions, rarely do courts rely exclusively on percentages"); Greenville Women's Clinic v. Bryant, 222 F.3d 157, 170 (4th Cir.2000) ("In making this undue-burden assessment, the Supreme Court has repeatedly emphasized that the focus must be aimed more directly at the ability to make a decision to have an abortion as distinct from the financial cost of procuring an abortion." (emphasis in original)).
347. Rather, the Fifth Circuit has adopted another test which is detailed below. This Court has used the Fifth Circuit test in reaching its decision.
348. Casey suggests that one challenging the statute's purpose must show that the statute "serve[s] no purpose other than to make abortions more difficult." 505 U.S. at 901, 112 S.Ct. 2791; accord Cole, 790 F.3d at 585-86; see also Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 1866-67, 138 L.Ed.2d 162 (1997) (per curium) (stressing that "[w]e do not assume unconstitutional legislative intent even when statutes produce harmful results" and faulting plaintiff for not offering at least "some evidence of that improper purpose" (emphasis in original)).
349. While Defendant argues that evidence of the purpose prong should be limited to the statute's text and official legislative history, (Doc. 87-1 at 18-22), the Court disagrees. In Okpalobi v. Foster, the Fifth Circuit found that a district court is "not to accept the government's proffered purpose if it is a mere `sham.'" 190 F.3d 337, 354-56 (5th Cir.1999) (quoting Edwards v. Aguillard, 482 U.S. 578, 586-87, 107 S.Ct. 2573, 2579, 96 L.Ed.2d 510 (1987) (specifying the requirements for a law's analysis under the Constitution's Establishment Clause)), superceded on other grounds, 244 F.3d 405 (5th Cir.2001); see also, e.g., Croft v. Perry, 624 F.3d 157, 166 (5th Cir.2010) ("[W]e do review to ensure that the alleged secular purpose is the actual purpose[.]"); cf. Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 841 (10th Cir.2014) ("[T]he Supreme Court has considered legislative motive or purpose in assessing whether a statute is valid under the Establishment Clause and the Equal Protection Clause."). As stated by the Supreme Court in its most recent abortion case, a court should not "place dispositive weight on [legislative] factual findings ... where constitutional rights are at stake." Carhart, 550 U.S. at 165, 127 S.Ct. 1610; see also Latta v. Otter, 771 F.3d 456, 469 (9th Cir.2014) ("Unsupported legislative conclusions as to whether particular policies will have societal effects of the sort at issue in this case — determinations which often, as here, implicate
350. Therefore, in searching for a law's purpose as a part of the undue burden analysis, a court can look to "various types of evidence, including the language of the challenged act, its legislative history, and the social and historical context of the legislation or other legislation concerning the same subject matter as the challenged measure." Okpalobi, 190 F.3d at 354-56; see also, e.g., Roy G. Speece, Jr., The Purpose Prong of Casey's Undue Burden Test and Its Impact on the Constitutionality of Abortion Insurance Restrictions in the Affordable Care Act or Its Progeny, 33 WHITTIER L. REV. 77, 99 (2011) where, reviewing Okpalobi and other cases, the author lists a "broad array of factors" considered by courts to determine purpose, including "a bill's social and historical context").
351. However, the Fifth Circuit in Cole ruled that evidence that the statute has no health benefits does not prove that the statute "must have had an invalid purpose." 790 F.3d at 585 (quoting Mazurek, 520 U.S. at 973, 117 S.Ct. 1865). Furthermore, evidence that shows "medical and scientific uncertainty" about the statute's health benefits, "does not lead to the conclusion that a law is unconstitutional." Id. (citing Carhart, 550 U.S. at 163, 127 S.Ct. 1610).
352. Under the Fifth Circuit standard, an abortion regulation satisfies the purpose prong unless the regulation serves "no purpose other than to make abortions more difficult." Id. at 586 (quoting Casey, 505 U.S. at 901, 112 S.Ct. 2791); see also, e.g., Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 607 (6th Cir.2006) (quoting this same language from Casey).
353. In order for the plaintiffs to prevail under Fifth Circuit jurisprudence, they must prove, "at a minimum," that a "
354. This test begs two critical questions: what is a "large fraction"? And what is a "substantial obstacle"?
355. The Fifth Circuit has not provided a definition of the term "large fraction." Rather, its guidance comes by how that term has been applied.
357. In Cole, the Court found that neither 16.7% nor 7.4% of Texas women of reproductive age constituted a large fraction. Id. at 588. Abbott II found that 10% did not. See 748 F.3d at 598. Lakey found that 17% was insufficient. 769 F.3d at 298 & n. 13. Currier involved the closure of Mississippi's only abortion clinic, resulting in 100% of Mississippi women being adversely affected. 760 F.3d at 458-59. This was found sufficient. Thus, this Court has no specific mandate from the Fifth Circuit as to what percentage between 17% and 100% qualifies as a "large fraction."
358. In Casey, the Court also used the phrase "significant number" in describing the number of women who must be unduly burdened in order to render the statute unconstitutional. 505 U.S. at 894, 112 S.Ct. 2791 ("The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion.").
359. If the law results in the inability of all women of a given state to get an abortion within that state, the law has created a substantial obstacle, and the law is unconstitutional, even if those women can get an abortion in an adjoining state. See Currier, 760 F.3d at 457-58 (so holding, but cautioning that "[n]othing in this opinion should be read to hold that any law or regulation that has the effect of closing all abortion clinics in a state would inevitably fail the undue burden analysis"). Cole creates an exception to that rule where the out of state abortion facility is in
360. In measuring "substantial obstacle", the recent Fifth Circuit cases have primarily considered the increased travel distance required for a woman to get an abortion caused by the closure or anticipated closure of abortion facilities within the state. For instance, the court in Cole focused on "women who would face travel distances (one way) of over 150 miles in light of Abbott II's holding that `an increase of travel of less than 150 miles for some women is not an undue burden under Casey.'" Cole, 790 F.3d at 588 (quoting Abbott II, 748 F.3d at 598).
361. However, Cole "recognize[d] that any statement of `how far is too far' will involve some imprecision." Id. at 594. Cole also suggested that "no distance, standing alone, could be too far." Id. at 594 (citing Abbott II, 748 F.3d at 598 (so reading Casey)). In holding the ambulatory surgical center provision unconstitutional as applied to a clinic in McAllen, Texas, Cole held that the 235 mile distance to the nearest clinic, combined with the "difficulties" and "practical concerns"
362. Fifth Circuit jurisprudence does not allow this Court to consider the poverty of many Louisiana women and its effect in creating additional burdens and obstacles to utilizing an abortion facility farther away from their home. Cole, 790 F.3d 589 (citing Lakey, 769 F.3d at 299, and Abbott I, 734 F.3d at 415 (holding that "obstacle[s] that are unrelated to the hospital-admitting-privileges requirement" are irrelevant to the undue-burden inquiry in a facial challenge)).
363. This same jurisprudence, moreover, does not allow the Court to consider the very real violence and threats of violence towards abortion providers and its effect in the decision of Doe 3 to quit his abortion practice if Act 620 becomes effective. Abbott II, 748 F.3d at 599. Nor can the Court consider the very real difficulties this violence creates on the ability of abortion clinics to recruit new doctors. Id.
364. Plaintiffs argue that Act 620 does not further a valid state interest. (Doc. 196 ¶¶ 322-27; Doc. 202 ¶¶ 153-57.) This issue was disposed of in the Court's earlier ruling on Defendant's Partial MSJ. (Doc. 138.)
365. In particular, this Court there held:
(Doc. 138 at 17.)
366. In Cole, the Fifth Circuit reaffirmed its position on this issue, as summarized by this Court. 790 F.3d at 584.
367. Therefore, this Court holds (again) that Act 620 passes rational basis review.
368. Plaintiffs argue that the true purpose of Act 620 is to eliminate or unduly burden Louisiana women's access to abortions by imposing a medically meaningless requirement that most, if not all, abortion doctors can not meet for reasons which are unrelated to their competency. Thus, Plaintiffs argue, the statute violates the purpose prong of the undue burden test and is unconstitutional.
369. Plaintiffs argue that the Court is not required to accept at face value Act 620's official purpose as stated in the legislation and that its true and improper purpose was proven at trial by a) public statements by the Governor and the author of the bill which demonstrate that the true purpose of the legislation is to eliminate, not regulate, abortion; b) evidence that those participating in the drafting of the bill are associated with groups dedicated to the elimination of abortion; c) evidence that Act 620 is medically unnecessary and unreasonable; and, finally, d) evidence that any limited medical benefits brought by the Act are far outweighed by the burden that it places on a woman's right to an abortion.
370. Defendant argues that (1) the Act's legislative history, including the medical testimony received by the Legislature, shows that the true purpose of the bill is to further the health and safety of women undergoing an abortion; (2) the intention of individual legislators or lobbyists is legally irrelevant to the bill's purpose and cannot be considered by this Court; (3) the evidence at trial proved that the bill was medically necessary, beneficial and reasonable; (4) even if there is a legitimate debate about the Act's medical necessity and reasonableness, this "medical uncertainty" cannot render the Act unconstitutional and (5) Fifth Circuit jurisprudence forecloses this Court from weighing the Act's benefits against its harms.
371. The Court's factual findings on these issues have been summarized above. See supra Parts V-IX.
372. The rule in the Fifth Circuit, which this Court is bound to follow, is where there is medical and scientific uncertainty about the need or benefits of an abortion restricting law, Plaintiffs have failed to meet their burden in establishing an improper purpose. The Court is not permitted to weigh the benefits of the law against its burdens. It is only where the sole purpose of the law is an improper one,
373. The Court finds that Act 620 will have the effect of placing an undue burden on (i.e. placing a substantial obstacle in the path of) a large fraction of Louisiana women of reproductive age seeking an abortion.
374. As summarized in the Findings of Fact, see supra Parts V-IX, Act 620 will have the effect of making abortions unavailable to approximately 55% of women seeking abortion in Louisiana and over 99% of women of reproductive age. The Court concludes that either percentage is a large fraction and a significant number.
375. Even if one were to assume that Doe 2's privileges at Tulane meet the requirements of Act 620, which this Court finds is not the case, see supra Part VIII.B, this undue burden would still exist. Under this scenario, the reduced number of abortion providers would result in some 45% of women seeking abortions — and over 99% of Louisiana women of reproductive age — being unable to get an abortion at a Louisiana facility. The Court concludes that either percentage is a large fraction and a significant number.
376. In addition to the increased distance some women would have to travel to find a facility with the capacity to perform their abortion, there are the practical concerns and difficulties of increased risk of complications caused by delays in care, as well as a likely increase in self-performed, unlicensed and unsafe abortions. (Doc. 190 at 223-24.)
377. Defendant argues that Act 620 is not unconstitutional because any undue burden that it has created is not caused by or related to the statute.
378. In order for an undue burden or substantial obstacle to render a law unconstitutional, that burden or obstacle must be created by or related to the statute in question, in this case, the admitting privileges requirement. K. P. v. LeBlanc, 729 F.3d 427, 442 (5th Cir.2013) (relying on, among others, Harris v. McRae, 448 U.S. 297, 316, 100 S.Ct. 2671, 2688, 65 L.Ed.2d 784 (1980)); accord, e.g., Collins v. Hoke, 705 F.2d 959, 962 (8th Cir.1983) (quoting and applying Harris, 448 U.S. at 316, 100 S.Ct. 2701); W. Va. Ass'n of Cmty. Health Ctrs. v. Sullivan, 737 F.Supp. 929, 944 (S.D.W.Va.1990) (same).
379. Consequently, a facial challenge can be sustained only if "the law itself imposes an undue burden on at least a large fraction of women." Cole, 790 F.3d at 589 (quoting Lakey, 769 F.3d at 299; Abbott I, 734 F.3d at 415; Harris, 448 U.S. at 316, 100 S.Ct. 2671; and Maher v. Roe, 432 U.S. 464, 474, 97 S.Ct. 2376, 2382-83, 53 L.Ed.2d 484 (1977)).
380. Where the relevant obstacle was "neither created nor in any way affected by the ... regulation," then it is not the law itself which imposes the burden. Maher, 432 U.S. at 474, 97 S.Ct. 2376 (emphasis added). Stated another way, "although government may not place obstacles in the path of a woman's exercise [of her right], it need not remove those not of its own creation." Harris, 448 U.S. at 316, 100 S.Ct. 2671 (quoting Maher, 432 U.S. at 474, 97 S.Ct. 2376).
381. In this case, Act 620 requires abortion doctors to get "active admitting privileges," including being admitted as a member in good standing of the medical staff, at a nearby hospital. LA. R.S. § 40:1299.35.2; see also supra Part VI. However, the Act does not set the criteria necessary for obtaining those privileges and there is no state law or other uniform standard that sets these criteria. See supra
382. The Act therefore anticipates and relies upon existing private hospital's varying by-laws' admitting privileges requirements as allowed under Louisiana law. It delegates to private hospitals the duty of granting (or withholding) active admitting privileges and thereby utilizes by-laws and private hospital credentialing committees as instruments for the implementation of the Act. Unquestionably then, the admitting privileges law and practices existing in Louisiana before Act 620 are "related to" Act 620. As is discussed in detail above, it is the two working in concert that has created the inability of Doe 1, 2, 4, 5 (in Baton Rouge), and 6 to get the kind of active admitting privileges which the Act itself mandates. See supra Parts V.D, IX.
383. While not raised by Plaintiffs in this case, another court has held that a law essentially identical to Act 620 denied due process "based on the State delegating decisionmaking over the plaintiffs' right to their chosen profession to private entities, namely hospitals, without adequate oversight or a mechanism to waive or appeal the hospitals' denial of admitting privileges.... "Van Hollen, 94 F.Supp.3d at 954.
384. Specifically, the district court in Van Hollen held that a hospital's business needs did not further any legitimate state interest nor did the requirement of some hospitals that the applying doctor show a record of in-patient care. Id. at 963-64. Necessarily, this Court holds, based on the law of this circuit, that Act 620 furthers a legitimate state interest. Nevertheless, Van Hollen's logic bolsters its own decision that the effective discrimination against abortion providers growing out of the admitting privileges requirements of Louisiana hospitals (especially in the absence of the protection against discrimination provided under other state laws) are related to and caused by Act 620.
385. As already noted, see supra Part VIII.B, in interpreting a state or federal statute, courts traditionally focus not only on "the language itself [and] the specific context in which the language is used [but also] the broader context of the statute as a whole." Robinson, 519 U.S. at 341, 117 S.Ct. 843; see also, e.g., Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 486-87 (5th Cir.2013) (citing id.).
386. An analysis of the statute's broader context is, in turn, informed by another cardinal rule of statutory construction: Congress, and by implication, any state legislature is "presumed to know the [existing] law, including judicial interpretation of that law, when it legislates." Day v. Persels & Assocs., LLC, 729 F.3d 1309, 1332 (11th Cir.2013); see also, e.g., Wiersum v. U.S. Bank, N.A., 785 F.3d 483, 488 n. 5 (11th Cir.2015); cf. Hernandez-Miranda v. Empresas Diaz Masso, Inc., 651 F.3d 167, 175 (1st Cir.2011) ("The understanding of a term employed by Congress is ordinarily determined at the time of enactment."); ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 322-26 (2012) (outlining the prior-construction canon).
387. In effect, therefore, courts customarily impute to the legislature an awareness of any legal strictures relevant to a particular enactment's application. See, e.g., Cannon v. Univ. of Chicago, 441 U.S. 677, 696-97, 99 S.Ct. 1946, 1957-58, 60 L.Ed.2d 560 (1979); see also, e.g., Johnson v. Hous. Auth. of Jefferson Parish, 442 F.3d 356, 362 n. 33 (5th Cir.2006) ("It is always appropriate to assume that our elected representatives, like other citizens, know the law." (internal quotation marks omitted) (citing id.)); Trigon. Ins. Co. v. United States, 215 F.Supp.2d 687, 698
388. In other words, statutory interpretation does not take place in a vacuum, and any reasonable understanding of the statute's effect requires awareness of the preexisting legal regime.
389. As discussed above, see supra Parts V, IX, the Court finds that Louisiana's credentialing process and the criteria found in some hospital by-laws work to preclude or, at least greatly discourage, the granting of privileges to abortion providers, including the following:
390. Indeed, the Court finds that, since Act 620 was enacted, these specific aspects of how Louisiana hospitals grant, deny, or withhold hospital admitting privileges, have played a significant contributing role in Louisiana's abortion providers not being given privileges or being given only limited privileges. See supra Parts V-VI, IX.
391. The Court therefore finds that Act 620, acting in concert with existing Louisiana law on abortion and Louisiana law and practice as it pertains to hospital admitting privileges, is facially unconstitutional in placing an undue burden on the right of a large fraction of Louisiana women to an abortion.
392. As explained above, see supra Part II, Defendant moved for partial summary judgment, (Doc. 87), which was opposed, (Doc. 104). In the Partial MSJ, Defendant maintained that Act 620 met both the rational basis and the purpose prong of the undue burden test as a matter of law. (Doc. 87 at 7 (summarizing Defendant's argument).) The Court granted the motion as to rational basis but held there were questions of fact which precluded the granting of the motion as it pertained to the purpose prong. (Doc. 138.)
394. Based on the intervening Cole case, Defendant moved for reconsideration of that part of the summary judgment ruling that dealt with the purpose prong and the Court's rulings denying Defendant's Motion in Limine. (Doc. 144.) This request was also opposed. (Doc. 150.) Because of the complexity of the issue and the proximity of the upcoming trial date, the matter was taken under advisement and deferred to trial.
395. Set forth in Federal Rule of Civil Procedure 56, FED. R. CIV. P. 56, the standard for deciding a summary judgment is well known and was set forth in the Court's original ruling. (Doc. 138 at 8-9.) It is the standard used in the current motion.
396. Cole holds that where there is conflicting medical testimony regarding the medical need for and reasonableness of the law, the law meets the purpose prong. 790 F.3d at 585. However, this narrow and tailored legal conclusion does not mean that medical testimony on these issues is not relevant and admissible. Thus, while this Court ultimately held that Act 620 meets the purpose prong, this was only after a consideration of the evidence on this issue.
397. Similarly, while this Court found that emails and public statements of those involved in drafting and supporting the legislation was not sufficient to establish Act 620's purpose as unconstitutionally illicit, the evidence was nonetheless relevant. See Okpalobi, 190 F.3d at 355-56 (stating that involvement of an anti-abortion group in the drafting of the legislation is insufficient by itself, but not inadmissable, to show the statute's purpose).
398. In light of these distinctions, with the substantive law applied by this Court left unchanged after Cole and with no newly discovered evidence having been presented, the Court therefore denies Defendant's Motion for Reconsideration. See, e.g., Waltman v. Int'l Paper Co., 875 F.2d 468, 473-75 (5th Cir.1989) (commentating that Rule 59(e) motions "serve the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence" (internal quotation marks omitted) (citing Keene Corp. v. Int'l Fidelity Ins. Co., 561 F.Supp. 656, 665 (N.D.Ill.1982))); see also Circuit City Stores, Inc. v. Mantor, 417 F.3d 1060, 1064 n. 1 (9th Cir.2005) ("A Rule 59(e) motion is appropriate if the district court: (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." (internal quotation marks omitted)).
399. "[T]he burden of proving the unconstitutionality of abortion regulations falls squarely on the plaintiffs." Abbott II, 748 F.3d at 597.
400. The four prerequisites which Plaintiffs must show are: (1) they are substantially likely to succeed on the merits; (2) absent the injunction, there is a significant risk of irreparable harm; (3) the balance of hardships weighs in their favor; and (4) granting the preliminary injunction will not adversely affect the public interest. See, e.g., Opulent Life Church v. City of Holly Springs, Miss. 697 F.3d 279, 288 (5th Cir.2012); Hoover v. Morales, 164 F.3d 221, 224 (5th Cir.1998); Vaughn v. St. Helena Parish Police Jury, 192 F.Supp.2d 562,
401. A preliminary injunction is "an extraordinary and drastic remedy which should not be granted unless the movant clearly carries the burden of persuasion on all four (4) pre-requisites[.]" Ledet v. Fischer, 548 F.Supp. 775, 784 (M.D.La.1982) (citations omitted); accord Kliebert, 141 F.Supp.3d 604, 634-36, 2015 U.S. Dist. LEXIS 146988, at *71-73, 2015 WL 6551836, at *21-22; see also, e.g., Anderson v. Jackson, 556 F.3d 351, 360 (5th Cir.2009) (emphasizing that the movant must "clearly carr[y]" burden to obtain "extraordinary and drastic remedy" of preliminary injunction and quoting the four elements as formulated in Canal Auth. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974)).
402. This heavy burden applies when plaintiffs seek to enjoin regulations that may impact abortion access. See Mazurek, 520 U.S. at 972, 117 S.Ct. 1865 ("`[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'") (quoting 11A CHARLES WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2948 (2nd ed. 1995))).
403. There is a substantial threat that, were Act 620 to be enforced, irreparable injury would result to the Plaintiffs and their patients.
404. As explained in detail above, see supra Part XII, the Act will violate the constitutional right of Louisiana women to abortion. This is, by definition, irreparable harm. Deerfield Med. Ctr. v. Deerfield Beach, 661 F.2d 328, 338 (5th Cir.1981) (holding that the fact that if a woman's right to an abortion is "`either threatened or in fact being impaired' ... mandates a finding of irreparable injury") (citing to Elrod v. Burns, 427 U.S. 347, 373-74, 96 S.Ct. 2673, 2689-90, 49 L.Ed.2d 547 (1976))).
405. Likewise, the severely restricted access to abortion care by a large fraction of Louisiana women caused by Act 620, and the resulting unreasonable and dangerous delays in scheduling abortion procedures, constitute irreparable harm for Louisiana women seeking abortions. See Jackson Women's Health Org. v. Currier, 940 F.Supp.2d 416, 424 (S.D.Miss.2013), aff'd in part, 760 F.3d 448.
406. Many Louisiana women will also face irreparable harms from the burdens associated with increased travel distances in reaching an abortion clinic with sufficient capacity to perform their abortions. These burdens include the risks from delays in treatment including the increased risk of self-performed, unlicensed and unsafe abortions.
407. The Court therefore finds that Plaintiffs have shown that the failure to grant the injunction will likely result in irreparable injury.
408. Plaintiffs have shown that the injury threatened by enforcement of Act 620 outweighs any damage the injunction may cause Defendant. While Plaintiff has given clear evidence of harm, Defendant, by contrast, has not shown that any damage would result from the issuance of a preliminary injunction. A preliminary injunction will preserve the status quo, and permit the clinics and physicians to continue to provide safe, needed abortion care to their patients. The substantial injury threatened by enforcement of the Act — namely irreparable harm to women and the violation of their constitutional
409. A preliminary injunction is also in the public interest. The public interest is not served by allowing an unconstitutional law to take effect. Currier, 940 F.Supp.2d at 424 ("[T]he 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."); see also, e.g., Nobby Lobby, Inc. v. Dallas, 970 F.2d 82, 93 (5th Cir.1992) ("[T]he public interest always is served when public officials act within the bounds of the law and respect the rights of the citizens they serve") (citing Nobby Lobby, Inc. v. Dallas, 767 F.Supp. 801, 821 (N.D.Tex.1991))).
410. Without an injunction, Louisiana women will suffer significantly reduced access to constitutionally protected abortion services, which will likely have serious health consequences.
411. The Court concludes that Plaintiffs have demonstrated that the threatened injury of Act 620 outweighs any damages the injunction may cause Defendant, and that the injunction will not disserve the public interest.
For the reasons stated above, IT IS ORDERED that
