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explaining that the Alabama state’s attorney "in his oral representations on the record, took the position that the March 27 order requires the postponement of any abortion that is not medically necessary to protect the life or health of the mother"
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CIVIL ACTION NO. 2:19cv365-MHT (WO)
03-30-2020
Yashica ROBINSON, M.D., et al., on behalf of themselves, their patients, physicians, clinic administrators, and staff, Plaintiffs, v. Steven MARSHALL, in his official capacity as Alabama Attorney General, et al., Defendants.
Susan Lambiase, Planned Parenthood Federation of America, Alexa Kolbi-Molinas, Pro Hac Vice, Meagan Marlis Burrows, Pro Hac Vice, New York, NY, Randall Charles Marshall, ACLU of Alabama Foundation, Inc., Brock Boone, Montgomery, AL, Carrie Y. Flaxman, Planned Parenthood Federation of America, Washington, DC, for Plaintiffs. Alexander Barrett Bowdre, Brad A. Chynoweth, Brenton Merrill Smith, Edmund Gerard LaCour, Jr., James William Davis, Alabama Atty. General Office, Dana Helton Billingsley, Phillip Brian Hale, Alabama Department of Public Health, Montgomery, AL, for Defendants.
Susan Lambiase, Planned Parenthood Federation of America, Alexa Kolbi-Molinas, Pro Hac Vice, Meagan Marlis Burrows, Pro Hac Vice, New York, NY, Randall Charles Marshall, ACLU of Alabama Foundation, Inc., Brock Boone, Montgomery, AL, Carrie Y. Flaxman, Planned Parenthood Federation of America, Washington, DC, for Plaintiffs.
Alexander Barrett Bowdre, Brad A. Chynoweth, Brenton Merrill Smith, Edmund Gerard LaCour, Jr., James William Davis, Alabama Atty. General Office, Dana Helton Billingsley, Phillip Brian Hale, Alabama Department of Public Health, Montgomery, AL, for Defendants.
TEMPORARY RESTRAINING ORDER
Myron H. Thompson, UNITED STATES DISTRICT JUDGE Plaintiffs Yashica Robinson, M.D., Alabama Women's Center, Reproductive Health Services, and West Alabama Women's Center have moved for an ex parte temporary restraining order ("TRO") pursuant to Rule 65(b)(1) of the Federal Rules of Civil Procedure. They seek to enjoin enforcement of the State Public Health Officer's "Order of the State Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19", published on March 27, 2020. Emergency oral argument, with counsel for both plaintiffs and defendants, was held on the motion today. For the reasons described below, plaintiffs' motion for a temporary restraining order will be granted.
I. Legal Standard
To demonstrate that a temporary restraining order is warranted, plaintiffs must show: (1) that there is a substantial likelihood of success on the merits of their suit; (2) that they will suffer irreparable harm absent injunctive relief; (3) that the harm to plaintiffs absent an injunction would outweigh the harm to the defendants from an injunction; and (4) that an injunction is in the public interest. See Ingram v. Ault , 50 F.3d 898, 900 (11th Cir. 1995).
II. Background
On March 27, 2020, responding to the COVID-19 pandemic, Alabama's State Health Officer issued an order suspending certain public gatherings. The March 27 order was promulgated by the State Health Officer pursuant to his authority to direct that conditions prejudicial to health in public places be abated, see Ala. Code § 22-2-2(4), and it is in full force until at least 5:00 p.m. on April 17, 2020.
The State Health Officer had issued a number of previous orders, but plaintiffs were assured that the earlier orders would not be enforced against providers of abortions. No such assurance was provided regarding the most recent order.
Among many other prohibitions, the March 27 order mandates that "all dental, medical, or surgical procedures shall be postponed until further notice," subject to exceptions for procedures necessary to treat an "emergency medical condition," necessary to "avoid serious harm from an underlying condition or disease," or "necessary as part of a patient's ongoing and active treatment." While the order itself is arguably not clear, the State's attorney, in his oral representations on the record, took the position that the March 27 order requires the postponement of any abortion that is not medically necessary to protect the life or health of the mother. This is extremely broad, and includes not only procedural abortions, but also those which are obtained through simply taking medication--the method by which the vast majority of abortions in Alabama are conducted.
Prior to today's hearing, plaintiffs sought clarification regarding the application of the order to abortion, which the State declined to provide.
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Plaintiffs moved for a temporary restraining order and a preliminary injunction, seeking to enjoin enforcement of the March 27 order as it relates to the provision of abortions in Alabama. III. Discussion
A. Substantial Likelihood of Success on the Merits
Plaintiffs have established a likelihood of success on the merits of their claim that the March 27 order violates their patients' right to privacy under the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment to the United States Constitution protects a woman's right to terminate her pregnancy. See Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833, 871, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion). A State may regulate abortion to further its legitimate interests, but only if the laws in question do not pose an "undue burden" to a woman's right to end her pregnancy. Casey , 505 U.S. at 876–79, 112 S.Ct. 2791 (plurality opinion). "An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Id. at 878, 112 S.Ct. 2791.
In evaluating regulations of pre-viability abortion, courts must "consider[ ] the burdens a law imposes on abortion access together with the benefits those laws confer." Whole Woman's Health v. Hellerstedt , ––– U.S. ––––, 136 S. Ct. 2292, 2309, 195 L.Ed.2d 665 (2016). In contrast, in evaluating a ban on pre-viability abortion, no state interest can prevail: "Before viability, the State's interests are not strong enough to support a prohibition of abortion...." Casey , 505 U.S. at 846, 112 S.Ct. 2791 (opinion of the Court).
Put simply, "the court must determine whether, examining the regulation in its real-world context, the obstacle is more significant than is warranted by the State's justifications for the regulation." Planned Parenthood Se., Inc. v. Strange , 9 F. Supp. 3d 1272, 1287 (M.D. Ala. 2014) (Thompson, J.). Here, plaintiffs have demonstrated a likelihood of success on the merits. As interpreted by the State's attorney, the March 27 order implements a blanket postponement of all abortions, medication or procedural, that are not necessary to preserve the life or health of the mother. Because Alabama law imposes time limits on when women can obtain abortions, the March 27 order is likely to fully prevent some women from exercising their right to obtain an abortion. And for those women who, despite the mandatory postponement, are able to vindicate their right, the required delay may pose an undue burden that is not justified by the State's purported rationales.
Defendants argued orally that the undue-burden framework is inapplicable to the March 27 order. Rather, they suggest, the March 27 order's constitutionality rests upon the State's broad emergency powers. Given the risks of immediate harm described below, the court opts not to delay the restraining order to accommodate further briefing. However, the court will give defendants until 5:00 p.m. on April 1 to present these arguments in full, and will then take them up at the hearing regarding a preliminary injunction. In the meantime, based on the current record, the court finds that plaintiffs have shown a likelihood of success on the merits.
B. Irreparable Harm
Plaintiffs have also demonstrated imminent, irreparable harm to their patients. Plaintiffs' patients will be delayed in, and in some cases permanently prevented from, exercising their right to privacy--a denial of which constitutes "irreparable injury." See Ne. Fla. Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, Fla. , 896 F.2d 1283, 1285 (11th Cir. 1990). Indeed, a "delay in obtaining an abortion can result in the progression of a pregnancy to a stage at which an abortion would be less safe, and eventually illegal." Planned Parenthood of Wisconsin, Inc. v. Van Hollen , 738 F.3d 786, 796 (7th Cir. 2013).
Plaintiffs have further demonstrated that their provision of abortions would risk violating the dictates of the March 27 order, as it is understood by the State, and that they must either stop providing abortions or risk criminal penalties, licensure sanctions, or both. The March 27 order's limited medical exceptions do not alleviate these harms. Indeed, even with these exceptions, providers performing abortions that they deem medically necessary risk subjecting themselves to "the tender mercies of a prosecutor's discretion and the vagaries of a jury's decision" regarding the exceptions' applicability. W. Alabama Women's Ctr. v. Williamson , 900 F.3d 1310, 1329 (11th Cir. 2018), cert. denied sub nom. Harris v. W. Alabama Women's Ctr. , ––– U.S. ––––, 139 S. Ct. 2606, 204 L.Ed.2d 1159 (2019). In light of the fraught choice that the March 27 order presents, plaintiffs have clearly demonstrated a risk of irreparable harm.
C. The Balance of Hardships
Plaintiffs have also demonstrated that their imminent injuries outweigh the harm that a temporary restraining order might cause to defendants. Plaintiffs allege, at minimum, a temporary denial of their constitutional rights; for some women, the March 27 order likely would entirely prevent them from terminating their pregnancy. In contrast, the State's interest in immediate enforcement of the March 27 order--a broad mandate aimed primarily at preventing large social gatherings--against abortion providers does not, based on the current record, outweigh plaintiffs' concerns. Again, the court will consider defendants' arguments regarding the State's emergency powers when it takes up the matter in full at the forthcoming hearing. Further, the court is swiftly setting this motion for a preliminary injunction hearing, where it will hear both sides in detail. Until then, however, the balance of equities favors a temporary restraining order to preserve the status quo.
D. The Public Interest
Finally, the court finds that a temporary restraining order serves the public interest, including by temporarily maintaining the status quo until the court can fully resolve the issues on the merits. Despite the serious conditions described by defendants and the dire need for medical equipment across the United States, the benefits of some potential increase in the availability of equipment (some of which may be ill-suited to the task of disease containment) do not outweigh the serious, and, in some cases, permanent, harms imposed by the denial of an individual's right to privacy. A temporary restraining order therefore serves the public interest.
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Accordingly, it is ORDERED that plaintiffs' motion for a temporary restraining order (doc. no. 73) is granted. Defendants, their agents, and anyone acting in concert with them are TEMPORARILY RESTRAINED from enforcing, threatening to enforce, or otherwise requiring evidence of compliance with the March 27 order against or from abortion providers, clinics, and their staff. This temporary restraining order shall expire on April 13, 2020, at 5:00 p.m., unless extended by the court for good cause shown or by agreement of the parties.
It is further ORDERED that the security requirement of Fed. R. Civ. P. 65(c) is waived and that this injunctive relief is effective upon service. It is further ORDERED that defendants are to submit their response to plaintiffs' motion for a preliminary injunction by 5:00 p.m. on Wednesday, April 1, 2020. Plaintiffs will then have until 5:00 p.m. on April 3, 2020, to reply. The court will immediately begin to reconsider the temporary restraining order in light of defendants' responses.
Attachment
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on December 1, 2013, the fee to file an appeal is $505.00
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291 : Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre , 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States , 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945) ). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b) ; Perez-Priego v. Alachua County Clerk of Court , 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc. , 240 F.3d 1326, 1327-28 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims , a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop , 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co. , 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988) ; LaChance v. Duffy's Draft House, Inc. , 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a) : Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson , 786 F.2d 1465, 1472-73 (11th Cir. 1986) ;
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 : The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949) ; Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc. , 890 F.2d 371, 376 (11th Cir. 1989) ; Gillespie v. United States Steel Corp. , 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett , 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1) : A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3) : "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4) : If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6) : Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the
judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c) : If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal : Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e. , authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).