KATHRYN H. VRATIL, District Judge.
On June 20, 2013, plaintiffs Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc. ("Planned Parenthood") and Dr. Orrin Moore filed suit against Kansas state officials, challenging the constitutionality of certain provisions of recently enacted H.B. 2253, 85th Leg., Reg. Sess. (Kan. 2013) (the "Act"). This matter is before the Court on Plaintiffs' Motion For A Preliminary Injunction And Temporary Restraining Order (Doc. #9) filed June 24, 2013.
On June 26, 2013, the Court held a hearing on plaintiffs' motion. All parties appeared through counsel. Given the abbreviated time between the filing of the motion and the hearing, the Court did not focus on the label but referred generically
Current Kan. Stat. Ann. § 65-6709 provides that "[n]o abortion shall be performed or induced without the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced," and sets forth requirements for voluntary and informed consent. On April 19, 2013, the Governor signed H.B. 2253 (the "Act") into law. See Ex. A to Complaint (Doc. #1). Section 14 of the Act amends Section 6709 to require, as a condition of informed consent, that
Act § 14 (to be codified at Kan. Stat. Ann. § 65-6709(l)) ("the website provision") (Ex. A at 10).
Act § 14 (to be codified at Kan. Stat. Ann. § 65-6709(b)(6)) ("the fetal pain provision") (Ex. A at 8-9).
Under existing Kansas statutes, a physician who performs an abortion without a woman's valid consent, as required by Kan. Stat. Ann. § 65-6709, commits unprofessional conduct and faces significant
Planned Parenthood, a not-for-profit corporation, provides abortion services at its licensed ambulatory surgical center in Overland Park, Kansas. Plaintiff Orrin Moore, M.D. is a Board Certified obstetrician and gynecologist licensed to practice medicine in Kansas. Dr. Moore is the Medical Director of Planned Parenthood and its primary abortion care provider.
Approximately 90 per cent of abortions performed at Planned Parenthood terminate a pregnancy in the first trimester, i.e. through 13 weeks LMP.
Planned Parenthood maintains a public website
Plaintiffs filed this action under 42 U.S.C. § 1983, challenging provisions of the Act and of existing law under the First and Fourteenth Amendments. First, plaintiffs contend that by compelling Planned Parenthood to unwillingly place on its public website a hyperlink to a government website, and deliver a scripted government message endorsing information on the government's website, the Act
Plaintiffs seek injunctive relief which enjoins defendants from (1) enforcing the two challenged provisions in Section 14 of the Act and (2) taking any action for violations of the challenged provisions.
Defendants respond that plaintiffs have failed to make the requisite clear showing of any of the traditional requirements for the extraordinary equitable relief of a temporary restraining order.
To obtain a preliminary injunction, plaintiffs must show (1) a substantial likelihood that they will prevail on the merits, (2) they will suffer irreparable injury unless the motion is granted; (3) the threatened injury outweighs whatever damage the proposed injunction may cause the opposing parties; and (4) the injunction, if issued, would not be adverse to the public interest.
Federal Rule of Civil Procedure 65 addresses procedural issues with respect to temporary restraining orders and preliminary injunctions. While a temporary restraining order may issue without notice and expires within 14 days unless extended by the court or by consent of the restrained party, a preliminary injunction cannot issue without notice and usually remains in effect until a final determination on the merits. See Fed.R.Civ.P. 65(b)(2), (a)(1). Accordingly, where adequate notice was not at issue and defendants were afforded and availed themselves of the opportunity to be heard, the Court construes the hearing on June 26th as a preliminary injunction hearing.
Plaintiffs asserts that the Act's requirement that a physician provide a woman seeking an abortion information relating to the capacity of a fetus to feel pain at a specific gestational age violates Dr. Moore's First Amendment rights against compelled speech.
"The First Amendment, as applied to state and local governments
In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 884, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion), the Supreme Court held that "a requirement that a doctor give a woman certain information as part of obtaining her consent to an abortion" implicates a physician's First Amendment right not to speak, "but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State." The Supreme Court found no violation of the physician's right not to speak, where physicians were merely required to give "truthful, nonmisleading information" relevant to the patient's decision to have an abortion, id. at 882, 112 S.Ct. 2791, and it did not address whether the requirements were narrowly tailored to serve a compelling state interest. Id. In Casey, the Supreme Court deemed relevant not only information about the medical risks of abortion, but also information that child's father would be liable for child support and that other organizations offered alternatives to abortion. Id. at 881, 902-03, 112 S.Ct. 2791. The Court found such information relevant because it "furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed." Id. at 882-83, 112 S.Ct. 2791 (fact that information might cause woman to choose childbirth over abortion did not render provisions unconstitutional).
In Gonzales v. Carhart, 550 U.S. 124, 157, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007), the Supreme Court reaffirmed that in the context of abortion "it is clear the State has a significant role to play in regulating the medical profession" and that "[t]he government may use its voice and
Plaintiffs assert that the state cannot constitutionally require Dr. Moore to provide patients information about the capacity of a fetus to feel pain at 20 weeks from fertilization. At this point in the litigation, plaintiffs do not assert that such a statement would be inaccurate. Rather, they point to Dr. Moore's affidavit that he provides abortions only up to 19 weeks and 6 days post-fertilization. Moore Decl. ¶ 8. Plaintiffs assert that because he does not perform abortions at the gestational age at which the Act implies a fetus may experience pain, such information is not relevant to his patients' decision to have abortions; thus, compelling him to provide such information violates his First Amendment rights.
In Planned Parenthood of Indiana v. Commissioner of Indiana Department of Health, 794 F.Supp.2d 892, 921 (S.D.Ind. 2011), rev'd in part on other grounds, 699 F.3d 962 (7th Cir.2012), the district court enjoined enforcement of a requirement that an abortion provider who provided only first trimester abortions inform all patients that a fetus can feel pain at or before 20 weeks post-fertilization. There, the record contained no evidence to support a finding that even a minority view within the scientific community contended that the perception of pain was possible during the first trimester of pregnancy. The court found that because plaintiffs exclusively performed abortions in the first trimester, requiring them to state that "objective scientific information shows that a fetus can feel pain at or before twenty weeks of postfertilization age" could be false, misleading and irrelevant.
By contrast, Dr. Moore provides abortions for patients at gestation of up to nearly 20 weeks. Further, at this point in the litigation, it is an unresolved question of fact whether "objective scientific information shows that a fetus can feel pain at or before twenty weeks of postfertilization." Therefore, plaintiffs have not made a substantial showing of a substantial likelihood of success on the merits with regard to the fetal pain requirement.
Plaintiffs satisfy the irreparable harm requirement by demonstrating "a significant risk that [they] will experience harm that cannot be compensated after the fact by monetary damages." RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1209 (10th Cir.2009) (citing Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1258 (10th Cir. 2003)). Purely speculative harm will not suffice, but "[a] plaintiff who can show a significant risk of irreparable harm" satisfies the burden. Id.
In determining whether plaintiffs have made the requisite showing, the Court determines "whether such harm is likely to occur before the district court rules on the merits." Flowers, 321 F.3d at 1260; see Winter v. Nat'l Res. Defense Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (plaintiffs seeking preliminary relief must demonstrate that
Plaintiffs point out that generally, when a plaintiff alleges deprivation of First Amendment rights, courts do not require more in the showing of irreparable harm. Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir.2001); ACLU v. Johnson, 194 F.3d 1149, 1163 (10th Cir.1999) (curtailment of constitutionally protected speech is sufficient showing of irreparable injury); Bey v. Douglas Cnty. Corr. Facility, 540 F.Supp.2d 1194, 1197 (D.Kan.2008) (when plaintiff alleges deprivation of First Amendment rights, courts do not require more for irreparable harm). This issue is moot because plaintiffs have not shown a substantial likelihood that plaintiffs will prevail on the merits.
Plaintiffs argue that defendants will suffer no measurable harm if the Court grants an injunction. They point out that plaintiffs already inform abortion patients about the state materials, and assert that defendants cannot show that the current requirements do not adequately protect women seeking abortions. Plaintiffs further argue that defendants can have no valid interest in enforcing an unconstitutional law, while denial of the injunction would deprive plaintiffs of their constitutional rights, and cause immediate and irreparable harm. See Johnson, 194 F.3d at 1163 (threatened injury to plaintiffs' constitutionally protected speech outweighed whatever damage preliminary injunction might cause to defendants' inability to enforce what appeared to be unconstitutional statute); Quinly, 446 F.Supp.2d at 1237 (no injury to municipality prevented from enforcing unconstitutional statute).
Defendants respond that the State has an interest in the enforcement of any statute. Defendants argue that plaintiffs cannot make a clear, unequivocal showing that their alleged injury outweighs the significant harms to the interests of the State of Kansas if the law were to be enjoined. The Court agrees.
Plaintiffs argue that granting an injunction in this case will serve the public interest. Vindicating First Amendment freedoms is clearly in the public interest. Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir.2005); see also Elam Constr., Inc. v. Reg'l Transp. Dist., 129 F.3d 1343, 1347 (10th Cir.1997) (public interest also favors plaintiffs' assertion of First Amendment rights). Additionally, the public more generally has an interest in protecting constitutional rights. See Mease v. City of Shawnee, 266 F.Supp.2d 1270, 1275 (D.Kan.2003) (citing Adams v. Baker, 919 F.Supp. 1496, 1505 (D.Kan.1996)); see also U.S. Chamber of Commerce v. Edmondson, 594 F.3d 742, 771 (10th Cir.2010).
Defendants assert that the public has a strong interest in resolving the relevant policy questions through the democratic process and that "[w]e should not forget that `legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.'" Maher v. Roe, 432 U.S. 464, 479-80, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) (quoting Justice Holmes in Mo., Kan. & Tex. Ry. Co. v. May, 194 U.S. 267,
Plaintiffs contend that the website provision of the Act violates Planned Parenthood's First Amendment rights because it compels Planned Parenthood to unwillingly place on its public website a hyperlink to a government website, and to deliver a scripted government message endorsing information on the government website. Specifically, Planned Parenthood objects to the requirement that it endorse the state materials by declaring on its website homepage that certain information on the state website is "objective, nonjudgmental, and scientifically accurate."
The Supreme Court has extended the "reasoning of compelled-speech cases to certain instances in which individuals are compelled not to speak, but to subsidize a private message with which they disagree." Cressman, 719 F.3d at 1151-52 (citing Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 557, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005)). It also has struck down content-based government requirements that burden free speech rights. See Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., ___ U.S. ___, 133 S.Ct. 2321, 2332, 186 L.Ed.2d 398 (2013) (requirement that funding recipients involuntarily adopt and endorse government policy of opposing prostitution violates First Amendment); Riley v. Nat'l Fed'n of the
As the Tenth Circuit recently pointed out in Cressman, ideological speech is not the only form of forbidden compelled speech. 719 F.3d at 1152-53; see Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 61, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (like compelled statements of opinion, compelled statements of fact subject to First Amendment scrutiny); Hurley, 515 U.S. at 573, 115 S.Ct. 2338 (compelled speech doctrine applies to statements of fact the speaker would rather avoid); Riley, 487 U.S. at 797-98, 108 S.Ct. 2667 (like compelled statements of opinion, compelled statements of fact burden protected speech); cf. Axson-Flynn v. Johnson, 356 F.3d 1277, 1281-1284 n. 4 (10th Cir.2004) (university theater student alleged First Amendment violation when required to utter swear words as part of script). The constitutional harm of compelled speech — being forced to speak rather than to remain silent — "occurs regardless of whether the speech is ideological." Cressman, 719 F.3d at 1152.
Plaintiffs note that a webpage conveys information "to the outside world" about the owner of the webpage, and through the use of links on the website "communicate[s] an important message about itself." Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 331 (1st Cir.2009). Plaintiffs assert that Planned Parenthood has an important stake in controlling the message it distributes on its webpage, and strongly objects to being required to lend its imprimatur to information it does not agree with and believes is inaccurate. Plaintiffs assert that the website provision is a content-based regulation that is subject to "exacting First Amendment scrutiny" which demands that the regulation be narrowly tailored to achieve a compelling state interest. Riley, 487 U.S. at 798, 108 S.Ct. 2667.
Plaintiffs argue that the requirement that Planned Parenthood place a message on its homepage which essentially endorses the information on the KDHE website is not narrowly tailored to achieve a compelling state interest. Rather, they argue, the requirement is similar to that in Wooley, in which the Supreme Court found unconstitutional a requirement that drivers carry a state motto on their license plates. See 430 U.S. at 715, 97 S.Ct. 1428. Wooley may be distinguishable, however, because here, the required statement that the state website contains accurate information about fetal development does not necessarily carry an ideological message.
Clearly, plaintiffs' claim regarding the website provision implicates complex First Amendment issues which, due to the press of time, neither the parties nor the Court have yet to adequately address. Even if the Constitution permits the required speech as to patients, the requirement appears overbroad in the context of other visitors to the website. The Court assumes, without deciding, that plaintiffs have met their burden to set forth a showing of a substantial likelihood of success on the merits of this issue.
Plaintiffs again point out that generally when a plaintiff alleges the deprivation of First Amendment rights, courts do not require more in the showing of irreparable harm. Kikumura, 242 F.3d at 963; Bey, 540 F.Supp.2d at 1197 (when plaintiff alleges deprivation of First Amendment rights, courts do not require more as to irreparable harm). Defendants argue that plaintiffs cannot show irreparable harm because they can provide an explanation that certain information on the website is required by law or even a disclaimer that plaintiffs disagree with the statement or the KDHE website. The Court does not find defendants' argument on this point particularly persuasive.
Recent developments in a pending state court case bear directly on the issue of irreparable harm. On June 28, 2013, the Shawnee County, Kansas District Court issued a temporary injunction which enjoins state officials and their agents from enforcing the website provision of Act.
Plaintiffs argue that defendants will suffer no measurable harm if the Court grants an injunction and that defendants have no valid interest in enforcing an unconstitutional law. Plaintiffs assert that denial of the injunction would deprive them of their First Amendment rights and cause immediate harm. See Johnson, 194 F.3d at 1163. Again, because the Shawnee County District Court has enjoined state officials from enforcing the website provision
Plaintiffs argue that vindicating First Amendment freedoms is clearly in the public interest. Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir.2005); see also Edmondson, 594 F.3d at 771 (state has no interest in enforcing law that is likely unconstitutional). Plaintiffs also argue that the public has an interest in Planned Parenthood and its physicians maintaining their practice and continuing to serve the hundreds of women who seek its abortion services each month. Again, because defendants are currently enjoined from enforcing the website provision of the Act, at this time the statute does not pose a threat to Planned Parenthood's continued provision of services. This factor weighs against an injunction.
Plaintiffs argue that the fetal pain provision effectively prohibits a physician from performing an abortion unless the physician provides a woman irrelevant, misleading, and untruthful information which implies that a fetus can feel pain at a gestational age at which none of plaintiffs' patients are seeking an abortion. Plaintiffs therefore assert that as applied to plaintiffs' patients, this provision is an undue burden on their constitutional right to have an abortion.
Prior to the viability of her fetus, a woman has a constitutional right to choose to terminate her pregnancy. Casey, 505 U.S. at 870, 112 S.Ct. 2791. Meanwhile, states have a legitimate and important interest in protecting the potential of human life — an interest recognized in Roe v. Wade that "has been given too little acknowledgment and implementation by the [Supreme] Court in its subsequent cases." Casey, 505 U.S. at 871, 112 S.Ct. 2791. At any stage of pregnancy, a state may further that interest by enacting rules and regulations to ensure that the choice
Before viability, a state regulation is invalid if it has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion. Id. at 877, 112 S.Ct. 2791. Informed consent requirements prior to an abortion may be permissible only if they mandate the disclosure of "truthful and not misleading" information. Id. at 882, 112 S.Ct. 2791. The state may express in a variety of ways its respect for life, including life of the unborn, provided that its requirements "inform the woman's free choice, not hinder it." Id. at 877, 112 S.Ct. 2791. Procedures that "amount in practical terms to a substantial obstacle to a woman seeking an abortion" are an undue burden and therefore constitutionally prohibited. Id. at 884, 112 S.Ct. 2791. As set out above, Casey held that if the State requires a woman to receive information as a condition of exercising her right to an abortion, the information cannot be untruthful or misleading, and must be relevant to her decision. Id. at 882, 112 S.Ct. 2791.
In the context of plaintiffs' free speech claims, the Court has noted that the question whether the challenged provision requires physicians to provide patients misleading, untruthful and/or irrelevant information is a question of fact. On this record, the Court finds that plaintiffs have not shown a substantial likelihood of success on the merits as to their patients' rights under the Fourteenth Amendment.
Plaintiffs note that courts have found that a violation of Fourteenth Amendment rights constitutes irreparable injury. See Planned Parenthood of Kansas, Inc. v. City of Wichita, 729 F.Supp. 1282, 1291 (D.Kan. 1990) (irreparable injury due to threat to important constitutional rights of plaintiffs and their clients); Adams v. Baker, 919 F.Supp. 1496, 1505 (D.Kan.1996) (deprivation of a constitutional right itself irreparable harm). Here, however, the Court does not find a substantial showing of violation of the Fourteenth Amendment.
Defendants note that to the extent that Dr. Moore's patients may be confused or misled by fetal pain information, physicians are required to answer their patients' questions. See Kan. Stat. Ann. § 65-6709. Defendants contend that physicians can provide patient-specific information that may clear up any confusion. Thus, they assert that harm is at best speculative, and easily avoidable by talking with patients and providing written materials of their choice. As with plaintiffs' speech claim regarding the fetal pain provision, the Court finds that plaintiffs have not shown irreparable injury.
Plaintiffs argue that defendants will suffer no measurable harm if the Court grants an injunction, that plaintiffs already inform abortion patients about the state materials, and that defendants cannot show that the current requirements do not adequately protect women seeking abortions. Plaintiffs further argue that defendants can have no valid interest in enforcing an unconstitutional law, while denial of the injunction would deprive their patients of constitutional rights. See Quinly, 446 F.Supp.2d at 1237 (no injury to municipality prevented from enforcing unconstitutional statute); Homans, 264 F.3d at 1244-45.
Defendants counter that the state has an interest in enforcing a valid statute. Defendants
As with their other claims, plaintiffs argue that granting an injunction will serve the public interest because the public more generally "has an interest in protecting constitutional rights." See Edmondson, 594 F.3d at 771 (no state interest in enforcing law that is likely unconstitutional). Defendants again assert that the public has a strong interest in resolving the relevant policy questions through the democratic process. See Maher, 432 U.S. at 479-80, 97 S.Ct. 2376. For the same reasons set forth as to plaintiffs' First Amendment claim regarding fetal pain, the Court finds that this factor weighs against an injunction.
Courts recognize that in the abortion context, the physician-patient relationship satisfies the "close relationship" prong of this test. Singleton v. Wulff, 428 U.S. 106, 118, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (generally appropriate to allow physician to assert rights of women patients as against governmental interference with abortion decision). Aid for Women cites a number of other cases that agree with this assessment. 441 F.3d at 1112-13. The court also asks whether the patient's ability to protect her own legal interests is genuinely hindered. Singleton points out two issues facing patients who choose to have abortions: a chilling effect from the patient's desire to protect the privacy of her decision and an imminent technical mootness to each individual patient's claim. 428 U.S. at 117, 96 S.Ct. 2868. These observations apply to plaintiffs' claims here.
