Choice Inc. of Texas v. Bruce Greenstein

DENNIS, Before CLEMENT and OWEN, Judges. Circuit OWEN, Judge: Circuit Plaintiffs of the Lou- sued the Department Hospitals isiana of Health and (the Secretary Department), or the chal- lenging constitutionality of Louisiana’s merits, hearing Act 490. Prior to grants also the Secre- Secretary’s mo- license.3 granted district court dismiss, tary authority deny, the claims new refuse to re- holding tion to new, affirm the district if the ripe. applicant or revoke license were We “any to dismiss the claims be- or court’s decision licensee violates other federal have failed to regulation.”4 right cause Plaintiffs show state law or While withholding from appeal (suspending will result suspensive to file a at this time. judgment) consideration of the with the office execution retained, Act Secretary of the 490 does

I prior provision grant- not include the right appeal suspensively ed a to a A court for trial de novo.5 Act 490 district enacted in amended Loui- Act Secretary provide thir- requires still Facility Li- Outpatient siana’s Abortion re- ty days denying, written notice before censing Specifically, Law of 2001. renew, fusing revoking or a license.6 by removing 40:2175.6 a amended Section Secretary to Act 490 also authorizes the procedure provision provided that the an in some suspension issue immediate denial, of an suspension, or revocation circumstances: (OAF) facility license outpatient abortion ... an [Secretary may issue im [T]he hospitals.1 be the same as that for a if an mediate license provides: The revised section investigation survey or determines that [Secretary [Department The applicant is in or licensee violation license, may deny may a refuse to renew Part, any provision of this in violation of license, existing or revoke an by promulgated [Depart the rules license, survey investigation if an or de- ment, any inor violation of other federal applicant termines that the or licensee is regulation, or state law or and the [SJec Part, any provision in violation of of this retary determines that the violation or licensing promul- in violation of the rules pose violations an imminent or imme gated by [Department, or in viola- health, welfare, diate threat to the or any tion of other federal or state law or safety patient.7 client regulation.2 Secretary give must written notice of Previously, Secretary deny, could sus- suspension, suspen- an immediate and the pend, finding revoke license after upon receipt sion becomes effective of such comply,” a “substantial failure but notice.8 If the issues an imme- only requires Act 490 a determination that suspension, right has a “violation” for diate the licensee has the there been the Secre- (not renew, tary deny, appeal suspending refuse to or revoke a to file a devolutive 40:2175.6(G) (codified § Compare 1. 2010 La. Acts 490 5. La.Rev.Stat. La.Rev.Stat. Ann. (2008), 40:2110(B)-(C), (Supp.2012)). § § 40:2175.6 and id. with La.Rev. Ann. 40:2175.6(G) (Supp.2012). § Stat. Ann. 40:2175.6(G) § (Supp. 2. La.Rev.Stat. Ann. 2012). 40:2175.6(G) Compare § 6. La.Rev.Stat. Ann. (2008), 40:2110(A), § and id. with La.Rev. 40:2175.6(G) Compare § 3. La.Rev.Stat. Ann. 40:2175.6(G)(1) (Supp.2012). § Stat. Ann. (2008), 40:2110(A), § and id. with La.Rev. 40:2175.6(G) (Supp.2012). § Ann. Stat. 40:2175.6(H) (Supp. § 7. La.Rev.Stat. Ann. 2012) added). (emphasis 40:2175.6(G) § Compare La.Rev.Stat. Ann. (2008), 40:2110(A), § and id. with La.Rev. 40:2175.6(H). 40:2175.6(G) § (Supp.2012). Stat. Ann. judgment), give or the licensee cause fails to OAFs fair notice execution of in district court.9 injunctive relief can seek encourages the conditions of licensure and relief, injunctive the licensee To obtain enforcement; arbitrary discriminatory convincing evi- prove “by clear must rights it violates the OAFs’ under the [Secretary's decision dence that Equal Protection treating Clause them long- arbitrary capricious.”10 No was differently from all other medical facilities any requirement that the licen- er is there regulated by Department without to show com- “given opportunity see so; doing basis for it violates the OAFs’ for the requirements with all lawful pliance because it rights process deprives due retention of the license.”11 liberty property them of and interests in Finally, provision, Act 490 added a new unreasonable, arbitrary, capricious an provides: which impermissible manner and invests an de- If a license is revoked or renewal of a subjective in gree discretion the Secre- than for license is denied other cessation tary; and it violates the fundamental status, non-operational or or business right pregnancy guaranteed to terminate a in lieu of an if the license is surrendered by the by impos- Fourteenth Amendment action, owner, officer, mem- adverse ing a substantial obstacle in the ber, director, path of or manager, administrator may prohibited of the licensee be from patients seeking to obtain pre-viability managing, directing, operat- owning, abortions. clinic in

ing outpatient another abortion challenging In Choice does not of Louisiana.12 the state rely solely changes statutory on the in B language previously described. Choice also notes that the other two in OAFs in are petitioners The this case Choice Louisiana, Texas; Suite, Hope Group Medical for City Bossier Medical Wom- Inc. of Inc; Inc.; Rouge, Delta Clinic of Baton (Hope) Gentilly en Medical Clinic for Medical, L.L.C.; and Midtown Women’s (Gentilly), party neither a Women to this Center, Inc., five of the seven Health Care litigation, currently subject are to revoca- Louisiana, Doe, licensed OAFs and John proceedings. particular, tion In Choice re- M.D., physician provides who against lies on the enforcement action services at some of those facilities. We Hope challenge Department’s imple- collectively parties will refer these mentation of Act 490. The thrust of Although Act 490 has not “Choice.” been argument Depart- is that Choice’s Choice, against pre- enforced it filed a policy, pursu- ment’s actions evince a new Act 490’s enforcement consti- Department ant to which the no longer will court, tutionality seeking federal district provide alleged OAF with notice declaratory injunctive judgment re- an opportunity deficiencies and to correct lief. Choice raised four constitutional suspending revoking them before to Act 490: it is unconstitu- challenges OAF’s license. tional under the Due Process Clause be- 40:2175.6(H)(l)-(2). 40:2175.6(1) (Supp. § § 9. Id. La.Rev.Stat. 12. Ann. 2012). 40:2175.6(H)(2). § 49:961(C) Compare § La.Rev.Stat. Ann. (2003), 40:2175.6(H) with La.Rev.Stat. Ann. (Supp.2012). II

C grant A court’s of a district the merits of Choice’s hearing Prior to 12(b)(1) for lack of sub motion to dismiss claims, granted court the Sec- the district jurisdiction de ject matter is reviewed Considering to dismiss. retary’s motion novo,13 jurisdic specifically, and more 12(b)(1) lack to dismiss for motion ripeness legal question tional issue of is a subject jurisdiction, matter the district plain for which review is de novo.14 The ripe, not held that the claims were tiff, jurisdiction, party asserting as the not suf- determining that Choice “[would] proof.15 assessing the burden of bears hardship” and that “the any significant fer jurisdiction, accept the district court is to fit decision at [were] issues allegations and facts set forth as true hard- respect time.” present With complaint.16 Additionally, in the “the dis court determined ship, the district mat empowered trict court is to consider “nothing requires [Choice] in Act 490 dispute.”17 ters of fact which conduct; instead, it alters the alter [its] consequently has the district court detecting and address- State’s conduct power subject for lack of mat dismiss Additionally, violations.” ing jurisdiction any sepa ter one of three although that Act 490 broadened the noted (2) alone; complaint rate bases: universe of laws the violation of which by complaint supplemented undis in could result an adverse licensure deci- record; puted facts evidenced in the sion, “legally obligated was to ad- Choice by un complaint supplemented regulations to those statutes and not- here disputed plus facts the court’s resolution withstanding respect Act 490.” With disputed of facts.18 decision, judicial for the court con- fitness subject motion to dismiss for lack of “[A] yet that Act had to be enforced cluded 490 jurisdiction granted only matter should be “in such a ‘Draconian’ fashion” as feared if appears plaintiff certain that the can- Choice, by pure speculation and that “it is any in prove support set of facts of his say day that one be sub- [Choice] claim that entitle plaintiff to re- ject provisions to the in Act 490 of which lief.”19 Furthermore, the court complaints].” [it] ac- Department’s viewed enforcement III against “too Hope tion isolated” as- A sist the evaluation of Choice’s claims. appeals, arguing

Choice now that the dis- Article III of the United States analysis. provides trict in its that federal ripeness court erred Constitution courts States, Bd., 547, (5th 13. Partners Inc. v. United 650 F.3d Tex. Med. 627 F.3d 553 Cir. Life 2010)). (5th Cir.2011). 1029 Houston, Lopez City Ramming, (citing 17. 14. v. 617 F.3d 339 281 F.3d at 161 William of Tucker, (5th Cir.2010). (5th son v. 645 F.2d 413 Cir. 1981)). Partners, 1029; 15. 650 F.3d at see also Life States, Williamson, 413; Ramming United 281 F.3d 18. 645 F.2d see also Wol Sebelius, (5th Cir.2001) (''[T]he (5th plaintiff constantly cott v. 635 F.3d Cir. jurisdiction proof bears burden of 2011). exist.”). does in fact Ramming, (citing Home 281 F.3d Partners, Miss., City (citing F.3d at Inc. v. Madi Builders Ass’n Life of son, 1998)). Physicians Surgeons, Am. & Inc. v. 143 F.3d Cir. Ass’n of only actual cases B power have the to decide justiciability The doc or controversies.20 “The Court has found mootness, standing, political trines of harms, to inhere in hardship such as Ar originate “all question, ripeness legal rights the harmful creation of ‘controversy’ language ticle Ill’s ‘case’ or obligations; practical harms on the inter ”21 doctrine also is ripeness .... The relief; party seeking ests advanced “ for prudential drawn ‘from reasons re the harm of being ‘force[d] ”22 jurisdiction.’ fusing modify to exercise behavior in order to avoid [one’s] ”28 future consequences.’ adverse its ripeness doctrine’s “basic rationale is to court, briefing to this Choice relies on the courts, prevent through avoidance of in arguing last these harms adjudication, entangling from premature dismissing district court erred in claims its disagreements themselves abstract lack ripeness, asserting that “[t]he ;>23 complaint plainly supports finding “A court should dismiss a case change Plaintiffs have been forced to their ‘ripeness’ for lack of when the case is Policy conduct as result the Act and hypothetical.”24 key abstract or “The con attempt order to to avoid the severe new are ‘the fitness of the issues for siderations penalties that can arise from the new hardship decision and the to the broader, ill-defined, set of standards” parties withholding court consideration.’imposed on OAFs. We conclude that the “A if generally ripe ”2 case is district court in holding did not err ones; remaining questions purely legal are Choice failed to show that will withholding result from if consider conversely, ripe a case is not further ation at this time. development required.”26 factual is How ever, presents purely “even where issue Relying primarily on Roark & Hardee legal questions, plaintiff must show Austin,29 LP v. City argues Choice of hardship in ripen some order to establish satisfy it can the hardship-prong of the Thus, we if ess.”27 must first determine ripeness inquiry because it has been hardship Choice has shown that will result operate heightened “forced to in a of state if court consideration is withheld at this vigilance” in which it required to “under time. all steps possible try predict take to to Ill, 583, 588-89, Party 20. Const, Gilligan, U.S. v. 406 U.S. 92 art. 2. 1716, (1972)). S.Ct. 32 L.Ed.2d 317 Cuno, DaimlerChrysler Corp. v. 547 U.S. 332, 352, 1854, 126 S.Ct. 164 L.Ed.2d 589 Labs., 149, (quoting Abbott 387 U.S. at (2006). 1507). 87 S.Ct. Hospitality Dep’t 22. Nat'l Park Ass’n v. Inte of Orleans, rior, 803, 808, 2026, (citing 26. New 833 F.2d at 587 538 U.S. 123 S.Ct. 155 Thomas, 581-82, 3325). (quoting 473 U.S. at L.Ed.2d 1017 Reno v. 105 S.Ct. Catho Servs., Inc., 43, 18, lic Soc. 57 n. 113 2485, (1993)). S.Ct. 125 L.Ed.2d 38 Servs., EPA, 27. Cent. & S.W. v. Inc. 220 F.3d 683, (5th Cir.2000). Gardner, 136, 148, 23. Abbott Labs. v. 387 U.S. (1967). 87 S.Ct. L.Ed.2d States, 28. Texas v. United 497 F.3d (5th Cir.2007) (quoting Forestry Ohio v. Ass’n Serv., 24. New Orleans Pub. Inc. v. Council of Club, 726, 734, Sierra 523 U.S. Orleans, New 833 F.2d Cir. (1998)). 140 L.Ed.2d 921 1987) (citing Agric. Thomas Union Carbide Co., 568, 581-82, Prods. (1985); (5th Cir.2008). 87 L.Ed.2d 409 Socialist Labor 29. 522 F.3d 533 a Department which laws the will enforce central feature of cases in which the them, try hardship prong ripeness inquiry interpret and how it will was held to be satisfied on compliance expecta- come into with those modification-of-be- Roark, grounds, havior sup- closure.” In its absence here tions order avoid ports our conclusion that Choice will not plaintiffs this court held that suffer if court hardship consideration is hardship if the court suffer denied review withheld this time.32 a city making ordinance it a misdemean- operator public or for an owner or of a rely pres- The dissent does not on the place necessary steps to fail to take the ence or absence of such a dilemma. In- prevent stop person another from smok- stead, accepts argu- the dissent Choice’s Roark, however, ing.30 plaintiffs ment that it modify has been forced to its faced different situation than that faced behavior Act 490’s enactment because has by Choice. operate heightened forced it to “in a state vigilance,” explaining that coer- “[t]he Roark, challenged

In ordinance im- impact already cive of Act 490 is imposing new, posed obligation affirmative on attempting the burden of operators public places, owners and adjust practices their business in response which created a critical dilemma—a choice being uniquely exposed exceptionally complying thought between with a law in- penalties severe for even minor violations continuing valid or to act in a manner state or federal regulation.”33 law or believed to be lawful but which could re- depicts While the dissent the “coercive sult in future if consequences adverse self-evident, impact” of Act 490 as we note in question law were later upheld.31 With single that Choice has not identified con- regard to Act there is no such dilem- example crete how has been forced to new, ma. Act imposes no affirmative modify its behavior as a result of Act 490. OAFs; obligation on OAFs are required to comply existing with applicable state court, briefing its to this and during regulations regard- federal statutes or oral argument, argued Choice that it satis- less of Act 490’s existence. There is no fies the prong pro- because the dilemma an because OAF does not seek to challenging cess for an suspen- immediate continue to act in a manner believed to be sion might render it insolvent before its 490; that would violate Act appeal actions can be heard. Act 490 limits the lawful violating already Act 490 are by may means which a licensee challenge unlawful. presence Secretary’s of such a dilemma has been the decision to issue an imme- Roark, statutory 30. 522 F.3d at requirements, 545. meets the but which clearly regulation” does not meet the and potentially facing costly (explaining See id. at 545-46 more criminal and that the penalties); necessary-steps provision civil see was a new restric- also Texas United States, (5th Cir.2007) (“If placed F.3d tion that the ordinance on owners or operators challenge public places describing Texas cannot the Procedures in and the this lawsuit, plaintiffs' the State appli- constitutional is forced to choose one of its cation). options: participate two undesirable in an allegedly process invalid a eliminates Gardner, procedural safeguard promised by Congress, 32. See Abbott Labs. v. 152-53, process hope (1967) or eschew the with the of invali- 18 L.Ed.2d 681 future, dating approv- (relying it in the which risks the by the dilemma created the manu- gaming procedures al of in which the being state facturers forced to choose between input.”). had complying no regulation incurring with the and compliance the continuing associated costs or "they good to act ain manner believe in faith 33.Infra preliminary injunction based on its a licensee is limited consti- suspension: diate tutional in to avoid appeal being a devolutive with claims order filing either it Secretary filing litigates or closed while them.35 The stan- the office court, requirements pre- in dard for issuance of a injunctive relief in state district by liminary injunction apply “prove the licensee must because which case challenging not the convincing evidence that the Choice would Secre- clear and arbitrary tary’s legal require- ... was determination that the [Secretary’s decision a ments for issuance of an immediate capricious.”34 If an OAF files devol- sus- in have It pension remains been satisfied. would be appeal, utive effect, preventing challenging constitutionality of Act 490 closing business Thus, during ap- itself. we are not convinced that generating it from revenue injunc- if If an OAF seeks an Choice will suffer court consid- peals process. operation in eration is withheld at this time. tion so that remain satisfy appeals process, it must during clearly The dissent asserts that we have heightened standard. by failing appreciate erred what it con- imposes heightened legal Act 490 siders be “obvious harms.”36 The While dissent, legal by to chal- two harms identified standard when licensee seeks rely in lenge Secretary’s upon ap- determination which Choice did not its briefs, requirements pellate for issuance of an are not as clear as the legal dis- suspension have been satisfied sent makes them out to be. The immediate dissent case, specific heightened repeat in a Act 490’s cites three court decisions that lan- apply guage indicating might standard does not to the constitu- what constitute le- harm, gal cases, in tional claims that Choice has asserted but each of those fails to acknowl- language explained regulation this case. The dissent what the If, future, not; edge question language this distinction. in the was was not suspension applied regulation issues an immediate to hold that the ripe was license on a determina- Choice’s based for review the manner that it is used tion that Choice is violation of the law the dissent.37 It remains unclear what that the “pose[s] “modifying] violation imminent constitutes formal [a] health, license,”38 welfare, might question or immediate threat to the and one even safety patient,” opposed of a client or Choice whether modification—as constitutionality, may challenge granting withholding Act 490’s the license itself— sufficient, and Act 490’s standard of review would Forestry the case Ohio apply to such constitutional claims. Fur- purported paraphrase did not mention thermore, Choice would be free to seek a modification.39 None of these three cases 40:2175.6(H)(l)-(2) § Hospitality Dep't 34. 37. See Nat’l Park v. Ass’n La.Rev.Stat. Ann. Interior, 803, 809, 2026, (Supp.2012). 538 U.S. 123 S.Ct. (2003); Forestry 155 L.Ed.2d 1017 Ohio Ass’n Council, 35. See Winter v. Natural Res. Def. Club, 726, 733, v. Sierra 523 U.S. 118 S.Ct. Inc., 20, 7, 365, 555 U.S. 129 S.Ct. 172 1665, (1998); L.Ed.2d v. Texas Unit- (2008) ("A plaintiff seeking L.Ed.2d 249 States, 491, (5th Cir.2007). ed 497 F.3d preliminary injunction must establish that he merits, likely to succeed on the that he is Forestry, 38. Ohio 523 U.S. 118 S.Ct. likely irreparable to suffer harm ab- relief, preliminary sence that balance of favor, tips injunc- equities in his and that an Co., 39. United States v. L.A. & Salt Lake R.R. interest.”). public tion is in the 299, 310, 71 L.Ed. 651 (1927). at 720. Infra constitutionality in fed- sufficiently ty challenge dem- its legal harm is

holds change court on the that their claims when there is eral basis onstrated already prohibit- liability imposed for acts ripe. are not We behavior, we, for trict court did not err lack of ripeness. sen need to not satisfied cause it has been ed. Since Choice’s claims should be dismissed argue that there is sufficient We hold judicial decision.40 Because Choice has hardship prong do not address the fitness of the issues not to make. develop arguments Choice has elected ^[*] unlike the Choice hardship prong, forced to ^[*] in concluding has not satisfied ripeness inquiry. dissent, Choice has cho- ^[*] hardship be- modify appeal the dis- see no its to the uously, for if a case is must evaluate ties presents hardships satisfy and is thus eration.” Texas United component, see id. at I respectfully advancing squarely clearly parties withholding Act 490 a concrete on the ripe for review. “To determine decision, ripe ripeness inflicts real and immediate Cir.2007). imposes “legal dissent because this ease plaintiffs. for the fitness of the issues dispute adjudication, a court doctrine’s adverse because the Act States, Most my between court consid- harms” view, positions hardship 497 F.3d conspic- par- AFFIRMED. unambiguously “modif[ies] [Louisiana license[s],” formal clinics’] DENNIS, Judge, dissenting: Circuit “subjects] ... civil ... lia- [them] again upon This court is once called bility” the form of severe new civil consider a to a Louisiana abor- Ass’n, sanctions, Inc. v. Forestry see Ohio tion law that the state’s abortion providers Club, 726, 733, Sierra S.Ct. singles claim them out as a disfavored (1998). 1665, 140 L.Ed.2d 921 In addition and, providers among class of medical oth- harms, purely legal to these the Act also defects, purpose er has the constitutional imposes hardship by inflicting “practical creating and effect of an undue burden on by” plain- harms on the interests advanced patients’ rights their to choose to termi- to ensure com- tiffs because need pregnancies. nate their The law chal- pliance with the strict terms Act’s “force[s] here, lenged 2010 Louisiana Acts La. [plaintiffs] modify [their] behavior 40:2175.6(G)-(I) (“Act Rev.Stat. 490” or order to avoid future adverse conse- Act”), licensing “the amended Louisiana’s Texas, quences.” See 497 F.3d at 499 by, among law for abortion clinics other (quoting Ohio 523 U.S. at things, subjecting uniquely those clinics to 1665). Moreover, plain- because liability including severe civil revocation — present tiffs’ facial constitutional claims of their operating nonrenewal licenses— purely legal questions routinely of the kind practically range for a unlimited of statuto- considered this court and the ry regulatory violations unrelated to Court, their claims are fit for review with- health, as, patient for example, such late development. out further factual payments, building tax minor violations of unripe In dismissing pre-enforce- as this codes or environmental regulations. How- statute, ment to an anti-abortion ever, majority denies those abortion brought by providers expressly abortion providers patients and their who are uniquely targeted by Act an opportuni- regulated question, the law on behalf Servs., EPA, hardship ripe- Cent. & Inc. v. See S.W. must be shown to establish (5th Cir.2000) ness). (explaining F.3d 22, 2010, the ma- Effective Act patients, themselves and their June 490 amended something time jority does for the first sections of that governing several law Supreme this court nor the Court neither revocation, suspension, and non-renewal of alarming not This result is has ever done. § required these licenses. Id. 40:2175.6 an it constitutes abdication because (2011). juris- obligation to exercise its the court’s First, vastly the Act broadens the uni- diction, disregards also because it but regulatory subject verse of violations that constitutionally- to the sensitive and harms abortion clinics to their losing operating by plaintiffs. interests advanced protected Prior to Act licenses. abortion clinics’ require do not us to with- precedents Our non-renewal, subject to licenses were sus- likely effectively deny— thus hold—and or pension, revocation under the same con- plaintiffs’ federal consideration hospitals ditions as Louisiana and other claims. is, only health care facilities: that for “a I. ... comply substantial failure with [the statutory licensing] requirements ... or view, un- my clearly the Act inflicts rules, regulations and minimum stan- hardships plaintiffs on the constitutional adopted by department.” dards Id. from the federal patients and their whom 40:2110(A) (2009). 40:2175.6(G), § More- deliberately withholding courts are now over, departmental regula- those rules and review. The Court has categories “reasonably several of harms tions must have been related recognized part[y] ‘hardship’ “cause health, [a] th[e] “providing] safety, to” for the come to that term” in distin- Court has use outpatient welfare of women in ripe controversies from “abstract guishing facilities and for the safe operation of such See, disagreements.” e.g., Ohio (2011). § facilities.” Id. 40:2175.2 Under 733-34, 736, 1665; 523 U.S. at secretary Act however “[t]he Texas, 497 F.3d at 499. Each of these license, may department deny may re- recognized forms of exist here. license, fuse renew or revoke an First, imposes the Act “purely license, existing investigation if an or sur- legal by “modifying] harms” [their] vey applicant determines that the or licen- “subject[ing] formal licenses” and statutory see in violation of licens- [the liability.” to ... civil ... See Ohio [them] ing provisions], licensing violation of the Forestry, 523 U.S. at 118 S.Ct. 1665. promulgated by department, rules or Second, significant prac- “inflicts any in violation other or state federal harm upon [plain- tical interests regulation,” regardless law or of whether 733-34, See id. at tiffs] advance[].” regulation” the “federal or state law or Finally, S.Ct. 1665. the Act “forcfes] allegedly any way violated is in related [plaintiffs] modify behavior [their] health Id. patient welfare. order to avoid future adverse conse- 40:2175.6(G)(2011) added). (emphasis id. at quences.” See Second, permits the Act Abortion “Outpatient Under Louisiana’s “issue an immediate of a[n] Law,” Facility Licensing La.Rev.Stat. tit. any license” for such “vi- [abortion clinic’s] 40, eh.ll, VI-A, pt. originally enacted in olation of federal or state law or 2001, an abortion clinic must obtain from regulation, secretary [if] the determines Department Hospi- the state of Health and pose[s] that the violation ... an imminent (“the li- Department”) operating tals health, welfare, or immediate threat to the subject cense to annual renewal. La.Rev. (2011). 40:2175.1, safety patient.” §§ of a client or Stat. Ann. 40:2175.4 40:2175.6(H) (2011). Third, § An abortion clinic the Act for the first time author- may only challenge permanently “pro- an immediate license izes the to owner, officer, member, “any Act 490 either suspension hibit[ ]” under director, “filling] [non-suspensive] ap- manager, or administrator” of an devolutive secretary,” peal ... with the office of the abortion clinic whose “license is revoked ... during pendency appeal any of which or renewal is denied” for [license] effect, suspension any violation of federal or or license remains id. state law 40:2175.6(H)(1)(2011); regulation § “from “fil[ing] owning, managing, or di- recting, operating outpatient or another injunctive relief ... district court [in state] abortion clinic in the state of proving] by ... Louisiana.” clear and convinc- [and] 40:2175.6(1) (2011). § Id. Prior law did ing secretary’s evidence decision any not authorize such lifetime ban on an to issue the immediate individual associated with a shuttered clin- arbitrary capricious,” license was id. (2009). 40:2175.6, §§ ic. 40:2175.6(H)(1)(2011) added). See id. 40:2110 § (emphasis 490, Prior to Act the state could re- In view of these stark and drastic or suspend voke the license of changes regulatory to the regime govern- clinic, respect as with other licensed ing outpatient Louisiana’s abortion facili- entity, pursuant rigorous to the more pro- ties, I turn to the hardship analysis. cedural safeguards set forth Louisiana’s A. Act,

Administrative Procedure La.Rev. See, 49:961, e.g., § Stat. tit. ch. 13. id. majority’s The clearest error fail- is its (2011) (providing 49:964 that a state “court appreciate ure to legal the obvious harms modify agency’s] reverse or deci- [an that the terms of Act 490 unambiguously summarily suspend sion” a license on impose on providers.1 Louisiana abortion grounds, several including because the de- the context of a provi- supported by prepon- scheme, cision is ... regulatory “[n]ot sions of a such as that evidence”). here, derance of the Act 490’s more issue will often result exacting “arbitrary capricious” by first and foremost from the “adverse ef- “clear convincing evidence” strictly legal standard fects of a kind” inherent supersedes generally applicable these pro- provisions at issue. Ohio requirements cedural with respect to abor- U.S. 118 S.Ct. 1665. The Su- clinics, tion as the Secretary’s preme immediate explained Court has legal such suspension authority pro- and the that, reduced harms inhere in regulations laws or safeguards cedural accompany sub- for example, “command [some]one to do ject abortion clinics immediate closure ... or doing to refrain from [something; “[n]otwithstanding any grant, withhold, law to the con- modify any formal 40:2175.6(33)(2011). trary.” license, power, authority; 350, 358, majority suggests fully that it need not U.S. 105 L.Ed.2d (1989) ("We right have no more to de- justiciability reckon with this first basis for jurisdiction giv- cline the exercise of en, which is plaintiffs because the did not advance it in usurp given. than to that which is not Majority Opinion their briefs. 718-19. How The one or the other would treason to the ever, court, it is well established that this like Constitution.") (quoting Virginia, Cohens v. court[,] "every appellate special federal has a 264, 404, 6 Wheat. 5 L.Ed. 257 obligation 'satisfy jurisdic itself of its own (1821)); also, LeBlanc, e.g., see K.P. v. Williamsport tion.[']” Bender v. Area Sch. (5th Cir.2010) (raising F.3d the issue Distr., 534, 541, standing sponte of Article III sua and articu- (1986); L.Ed.2d 501 see New Orleans Pub. lating why standing reasons had Serv., Orleans, sue). City Inc. v. Council New act, or to do occupation, to ... civil or criminal business some or subject [some]one legal rights engage create ... or ob- in some transaction which liability; but [or] ” Id.; Hospi- Nat’l Park for accord such license would be unlawful.’ ligations.” Interior, 538 U.S. tality Dep’t Ass’n v. Chamber Commerce v. Whiting, U.S. — 803, 809, -, 155 L.Ed.2d 1017 123 S.Ct. U.S. 131 S.Ct. (2003) (2011) (alteration effects of (recognizing “adverse L.Ed.2d 1031 in original) “a strictly legal kind” amount to (quoting Third New Int’l Dictio- Webster’s showing hardship” regulation, where (2002)); nary 1304 see also Black’s Law alia, plaintiffs] formal ed.2009) “modif[ies] [a inter Dictionary, license (defining “subjects] plaintiff] to legal [a license” or permission, usu[ally] “license” as “[a] revo- ... liability” (quoting ... civil Ohio For- cable, to commit some act that oth- 1665)); estry, at 118 S.Ct. unlawful”). erwise be It equally clear Texas, (recogniz- 497 F.3d at 499 see also that Act 490 modified those by licenses ing Supreme Court has found “[t]he expressly conditioning their continued va- harms”). legal to inhere At lidity compliance on strict with an enor- least two of these “adverse effects of a regulations. mous number of Compare by strictly legal implicated kind” are 40:2175.6(G) (2012) § Ann. La.Rev.Stat. provisions challenged this case: (authorizing suspend, re- imposed by harm a statute that legal voke, or not renew an abortion clinic’s license”; legal formal “modifies] [one’s] for, alia, any inter license violation of imposed by a statute that regulation), state federal law or with id. “subjects] to ... or criminal civil [one] 40:2175.6(G)(2009) § (prior to amendment liability.” See Ohio 523 U.S. 490) by (permitting suspension, revo- cation, or non-renewal of the licenses abortion clinics for a substantial fail- First, unequivocally Act 490 “modifies] comply licensing ure to with Louisiana re- legal by formal ex- [plaintiffs’] lieense[s]” quirements safety regula- or health and pressly amending “Outpatient Louisiana’s 40:2110(A) tions), § (continuing and id. Facility Licensing Law” to im- Abortion require showing of “substantial failure retroactively pose harsh new conditions denial, ... licenses, staffs, comply” suspension, for the operating abortion clinics’ hospital or revocation of other and health nu- plants, by subjecting them to facilities); care see also MCI Tele- grounds suspension, merous additional Co., revocation, Corp. commc’ns. v. Am. Tel. & Tel. operat- and non-renewal. The 218, 225, S.Ct. surely are formal ing licenses issue (1994)(“Virtually every L.Ed.2d 182 dictio- contemplated by licenses of the kind id.; nary says modify’ we are aware of that ‘to Supreme Forestry. Court Ohio See (re- change moderately means to or in minor see also La.Rev.Stat. Ann. 40:2175.4 fashion.”); Dictionary, Black’s Law modifi- quiring operating abortion climes to obtain (9th ed.2009) renewal). (defining subject to annual “A cation “modifica- licenses tion” right permission granted “qualification license is ‘a or limitation of engage something”).2 accordance with law ... in some employing routinely adjudicated licenses for un- 2. Courts have the mer- cation of business analogous pre-enforcement expressly were both and im- its of constitution- authorized aliens licensing Whiting, pliedly immigration challenges preempted al laws. federal law," despite of a the fact that suits had "[n]o Court reached the merits preenforce- brought law when the which "filed a been under the Arizona suit in complaint Whiting, argu[ing] Arizona ... was filed.” [an] ment suit equal protection allowing & 4. In an chai- and revo- at 1977 n. law[ ] Second, convincing “clear just plainly Act 490 as “sub and evidence” sum- ject[s] mary clinics and their arbitrary capri- [abortion directors] “was and liability” by attaching 40:2175.6(H)(1). ... ... new Moreover, to civil § cious.” Id. to the vast ar and more severe sanctions Act, any operator under the clinic whose laws ray existing of all state and federal any license is or not revoked renewed for reiterate, regulations. and To under the any such violation of state or federal law Act, any violation of state or federal any now, time, regulation is for the first regulation now for first time law subject being to the civil sanction of pro- subjects Louisiana’s abortion clinics to the again “operating hibited from another out- revocation, suspension, civil sanctions of or patient facility abortion in the state of licenses, operating non-renewal of their re 40:2175.6(1). § Louisiana.” Id. is gardless of whether the violation sub changes These in law amount to “sub- regulation stantial or the law or whether jecting ... providers] [abortion to civil in any way provision violated relates to the liability” by subjecting them to loss of of medical services. La.Rev.Stat. Ann. licensure at the will Secretary of the 40:2175.6(G); see also Med. Women’s injurious severely thus constitute Bell, 411, Ctr. Houston v. 248 F.3d of Nw. 733, harm. See Ohio 523 U.S. at (5th Cir.2001) (explaining that a stat Indeed, 118 S.Ct. 1665. authorizing ute revocation of an abortion recently Court reiterated that “[l]icense provider’s potentially license “earr[ies] [a] suspension and significant revocation are ... ... significant penalt[y], civil which sanctions,” and referred to ter- “[l]icense can quasi-criminal,” be characterized as mination” as “the penalty.” business death such the “statute must define its Whiting, 1983-84; 131 S.Ct. at see also ... terms a manner that does not en Austin, Roark City & Hardee LP v. courage arbitrary discriminatory en of F.3d forcement”). (holding ripe plain- permits The Act further tiffs’ claims where violation challenged of immediately to suspend an abor subject “ordinance [plaintiffs] tion upon finding [could] clinic’s license a of an heavy fines ... patient possible imminent threat health or revocation of wel fare, subject review their licenses and permits”); under id. at 546 of. doubly exacting a proving by burden of (distinguishing Toilet Goods Ass’n v. Gard- lenge allegations to a state law that injury can crimination constitute an because licensing positions state scheme discriminates parties unequally between similar before law; similarly-situated entities are "sufficient showing suffering no further of unequal to survive motion to in the positioning required dismiss" context based on that is standing analogous "injury-in- of doctrine's purposes standing.” for Id. Other courts Cable, See, requirement." fact Time Warner Inc. v. e.g., have reached similar results.

Hudson, (5th Cir.2012). Ctr., Friendship 667 F.3d Chicago Med. Ltd. v. Bd. of Health, explained: We "Discriminatory treatment at 505 F.2d 1145-46 Cir. 1974) government injury long the hands (holding pre-enforcement is an challenge to recognized judicially cognizable. registration requirements provid And for abortion injury recognizable standing justiciable such regulations irre- ers where "[t]he spective plaintiff provided of whether the will closing any sustain for the abortion ser palpable injury an actual or more as a result vice that ... would be in violation of unequal regula- regulations” treatment under law or the Board of Health's and where Here, facially tion. the Act power deny discriminates the defendants "ha[d] the au against membership by extending [TCA's] seeking operate thorization to those facility benefit of state-wide com- power license its as well as the to order petitors denying closing while any facility that same benefit to that it deems not in providers compliance incumbent cable .... regulations”). [S]uch dis- with its ner, plaintiff] 18 [the advances.” Ohio Forestry, (1967), L.Ed.2d 697 on the basis 523 U.S. at 118 S.Ct. 1665 (emphasis regulation challenged in that case did not added); Texas, accord 497 F.3d at 499. provide for “adverse consequences, such as The Court stressed that practical such ” ‘heavy fines’ Goods, (quoting Toilet 387 harms constitute “an important consider- 164-65, 1520)); at U.S. 87 S.Ct. Black’s in light ation of th[e] Court’s ripe- modern Dictionary, ed.2009) (de- Law liability ness cases.” 733-34, Id. at 118 S.Ct. 1665 fining “liability” as quality “[t]he or state (citing Abbott Labs. v. Gardner, 387 U.S. of being legally obligated accountable; or 136, 152-54, 1507, S.Ct. 87 18 L.Ed.2d 681 legal [or] responsibility to another or to (1967), overruled grounds other by Cal- society, by enforceable civil remedy or Sanders, 99, 430 980, U.S. 97 S.Ct. ifano criminal punishment”). 51 (1977)). L.Ed.2d 192 The Court ex- precise The provisions of the Act that plained that identifying this type of “prac- plaintiffs challenge as unconstitutionally tical harm” involved considering whether vague, discriminatory, and arbitrary, and there exists a “strong why reason the having purpose the or of infring- effect [plaintiff] bring must its challenge now in ing on the right, plainly “create order to get relief’ whether, on the adverse effects of a strictly legal by kind” contrary, plaintiff the “w[ould] have ample modifying by the conditions which abortion opportunity later to bring legal its chal- clinics may retain legal their licenses and lenge at a time when harm is more immi- by subjecting clinics and operators their nent and more 734, certain.” Id. at 118 civil liability. severe See Ohio Forestry, S.Ct. 1665. The Court cited ripeness its 523 U.S. at 118 Thus, S.Ct. 1665. Labs, discussion in Abbott as an illustra- plaintiffs will suffer severe hardships if we tion of this sort practical harm to the withhold review of their claims. interests that party seeks to advance See id. It is therefore unnecessary to through the litigation. at 733-34, 118 consider whether the Act imposes addi- S.Ct. 1665 (citing Labs., Abbott 387 U.S. at by tional harms “inflicting] significant 152-54, 1507). 87 S.Ct. In the relevant practical harm upon the interests portion Labs., of Abbott the Court had [plaintiffs] ],” id., and “affecting] advancef reasoned that to require “[t]o plain- [the conduct,” primary [their] Nat’l Park Hos- there, tiffs regulated entities specifically Ass’n, pitality 538 U.S. at 123 S.Ct. targeted by regulations the at issue] to 2026, by “forcing] to modify [them] [their] regulations the[] as a de- behavior in order to avoid future adverse to an fense brought action by the Govern- consequences,” Ohio Forestry, 523 U.S. at ment might harm them severely and un- 118 S.Ct. 1665. That plaintiffs also necessarily.” Labs., Abbott 387 suffer those U.S. forms of at harm greatly ampli- 154, 87 S.Ct. 1507. fies prejudicial plaintiff in Ohio effects of the majority’s Forestry, on hand, error. the other was in no danger being placed in the position of B. only being able to challenge prelimi- nary forestry management plan addition to at recognizing the issue in purely legal that case in response harms inhere in an brought terms action of a against challenged regulation, by them government; rather, Court has explained also the plaintiff, plaintiff organiza- environmental can establish tion, by would demonstrating have “ample opportunity later that a regulatory scheme signifi- bring “inflicts its challenge” if and when cant practical harm upon the interests subsequent regulatory developments actu- im- go through taking that ment must before logging operations

ally authorized the ultimately concerned action to the enforce terms was mediate organization at Forestry, plain- against about. U.S. one more Ohio 729-30, 1665; id. at see also tiffs, S.Ct. 523 U.S. at see Ohio policy- the numerous (listing 1665; rather, S.Ct. the new licensure have had steps agency making “immediately are conditions effective” such authorization to undertake before De- “directfly] ... enforceable]” Labs., issued); Abbott could be Labs., see Abbott partment, cf. that, (indicating un- 152, 87 S.Ct. 1507. plan administrative preliminary like the withholding judicial that Plaintiffs assert Forestry, regula- in challenged Ohio may their to consideration of claims lead tions issue in Abbott Labs. “ha[d] at more shut being one or abortion clinics law of them status of and violations immediate pursuant suspen- down to heavy civil criminal and sanc- carried] authority 490, likely by sion created Act tions”; regulations ... were that “[t]he driving the affected clinics out business immediately upon publica- made effective patients’ abili- disrupting and those clinics’ compliance ... immediate tion[ ] [and] constitutionally protected ty to exercise expected”; terms and that with their was extremely rights. allege Plaintiffs that the ... direct “agency ha[d] the defendant demanding injunction imposed by standard regulation[s]”). authority th[e] to enforce to requires the AcN-which Here, significant Act 490 “now inflicts “prove by convincing and ‘clear evidence practical upon harms interests that secretary’s to that the decision issue [an] advance,” [plaintiffs] such that there are of the was immediate license why “strong [plaintiffs] must reason[s] arbitrary and to capricious’ designed ”—“is bring in to ehallenge[s] now order [their] that preclude meaningful review get Forestry, relief.” See Ohio to would otherwise be available all other 733-34, more 118 S.Ct. 1665. Even than 16; Complaint licensed medical facilities.” Labs., drug manufacturers in Abbott that, hearing “at a (alleging see also id. in a plaintiffs here “deal indus- sensitive Health before the Louisiana House & Wel- try,” nature of which is such that “[t]o Committee, Department ... Ex- fare [the] challenge require regula- them to these that no other Counsel[ ] ecutive conceded only tions as a defense to an action ... re- regulation [Louisiana] statute brought might [g]overnment harm convincing quires showing by a clear and severely unnecessarily.” them See agency that acted evidence an an arbi- Labs., U.S. at Abbott S.Ct. capricious to in- trary and manner obtain 1507; Bolton, also v. see Doe court”). junctive majori- relief from 739, 35 L.Ed.2d 201 that, ty “the acknowledges under (concluding providers abortion an process challenge suspen- to immediate “against di- regulations] whom [abortion brought pursuant sion [action rectly not operate” but who had “been 40:2175.6(H) § is limited” devolutive ] prosecu- prosecuted, or threatened with injunction appeals proceedings tion, for violation of State’s abortion satisfy heightened the clinic “must which statutes[,] ... required should be review, but con- standard” nonetheless undergo prosecution await and a criminal is] cludes not convinced “[it seeking means of relief’ on the sole will if con- [plaintiffs] suffer claims). their constitutional Unlike the at this Ma- sideration withheld time.” there are no situation Ohio reasoning jority Opinion ignores 717. This steps Depart- more procedural (8th the constitutionally protected Cir.1995) status (“[Potential civil liability issue, services the time-sensitive nature ... is more than enough to chill the will- right, of the abortion Act 490’s chilling ingness physicians perform abortions provision effect on the ”); of those .... services see also Okpalobi Foster, and the right. exercise of that Cir.2001) (en F.3d banc) (Be- navides, J., concurring part and dissent- Plaintiffs should not “require[d] ing in part) (stating that the injury” “true [the Act] as a defense of a statute imposing potential civil liabili- an action brought by [state],” whether ty on providers abortion is “the ‘chilling’ of in the form of an suspension” “immediate a woman’s constitutional right to choose 40:2175.6(G) § action under or a suspen abortion”). sion, revocation, or nonrenewal decision for, alia, inter “violation fed pre-enforcement Such challenges are eral or state regulation” law or under critical in this context because of the time- 40:2175.6(H). Labs., See Abbott 387 sensitive nature of the right. 1507; U.S. at Texas, see also States “restrict abortions after fetal (“If 497 F.3d at 499 [plaintiff] cannot chal viability.” Planned Parenthood Se. of lenge the [procedures [at issue] this Penn. v. Casey, 833, 846, 505 U.S. 112 lawsuit, is forced to 2791, [it] choose one of two S.Ct. (1992). And, L.Ed.2d 674 options: participate undesirable in an al although “viability” is something of an legedly process invalid evolving eliminates measure for when such restric- [previously procedural safeguard available] permissible tions are in neona- —“advances ..., or process eschew the with the hope tal have care viability advanced to a some- of invalidating ____”). it in future[] the what point” earlier Supreme Court —the Pre-enforcement facial challenges seeking that, has stated in “the scheme of time injunctive and declaratory relief have long limits on the realization of competing in- proceeded as an accepted means for terests, abor ... viability marks the earliest tion providers patients and their to point chal which at the State’s interest in fetal lenge the constitutionality of regulations life is adequate constitutionally to justify a touching on the right. See, e.g., legislative ban on nontherapeutic abor- States, Sabri v. United 600, tions”; 541 U.S. 609— this is so [viability] “whenever may 10, 1941, S.Ct. 158 L.Ed.2d 891 860,112 occur.” at S.Ct. 2791. Louisi- (recognizing the validity pre-enforce of prohibits ana post-viability abortions, see ment facial in only attacks a “few set La.Rev.Stat. §§ 37:1285(A)(8)(a), tings,” abortion, including based 40:1299.35.2, “on the 40:1299.35.4, and defines “via- strength specific reasons bility” weighty as “that stage of fetal development enough to overcome when, [the Court’s] judgment the of the physician well-founded reticence” to entertain such based upon particular the facts of the case generally attacks (citing Stenberg v. him, Car before light and in of the most ad- hart, 938-946, U.S. vanced medical technology and information (2000))). 147 L.Ed.2d 743 him, Pre-en available to there is a reasonable forcement prevents review potentially im likelihood of survival sustained of the un- permissible regulations from inflicting a born child outside body the mother, his chilling effect on the ability of women to with or without artificial support,” id. right exercise their 40:1299.35.1(10). to choose to terminate Thus, pre-enforcement pregnancies their prior to fetal viability. review is essential to protect interests, Parenthood, See Planned Sioux by here, Falls advanced pa- their Miller, Clinic v. 63 F.3d 1466-67 tients seek who to exercise their constitu- alia,] “risk[ing,] pre- compliance [inter to costs right to choose obtain tional majority’s violating errone- viability penalties” abortion. ... civil serious permit scheme). such review ous refusal to challenged real patients very exposes those Here, challenge validity Plaintiffs clinic be shut their possibility harsh new conse- rationality and rea- unconstitutional for a potentially down practically Act to a quences 490 attaches during only of time during son window regulatory universe of limitless constitution- they may exercise their which by Plaintiffs assert violations. right. al uniquely exposing prospect them to the require [plaintiffs] Accordingly, “[t]o penalties, effectively requires Act such a de- regulations these adopt vigilant policies them to more [g]overn- brought by the to an action fense procedures regarding innumerable severely and un- might harm them ment federal laws and in- regulations state and Labs., necessarily.” Abbott penalty corporated reference under the “strong This reason S.Ct. of Act in an effort avoid provisions bring chal- why [plaintiffs] [their] must so, By doing even minor violations. get order relief’ lenge[s] now modify [plaintiffs] “force[s] [their] harm “significant practical to a amounts order avoid future adverse behavior ad- upon [plaintiffs] interests States, v. United consequences.” Texas vance[],” thus satisfies (internal Cir.2007) 497 F.3d requirement. See Ohio omitted) marks quotation (quoting Ohio 1665; Texas, 733-34, 497 F.3d Club, Forestry Ass’n v. Sierra 523 U.S. at 499.

726, 733-34, 1665, 140 118 S.Ct. L.Ed.2d C. (1998)). 921 concluding in majority The further errs wholly the majority relies on dis- to not [plaintiffs] that 490 has “forcefd] although tinction that Act attaches 490 in modify behavior order to avoid [their] penalties existing new regula- severe consequences.” future adverse See Ohio tions, does itself new “affir- it not create 1665; Forestry, 523 U.S. at 118 S.Ct. is, obligations,” regula- mative that new Texas, 497 at 499. The Su- accord F.3d I primary disagree tions of conduct. preme explained Court that such design in Act peculiarity this the of 490 when, ... example, regula- can occur “for plain- inconsequential renders the fact that compliance tions force immediate modify tiffs have been forced to their busi- through fear of future sanctions.” Ohio avoid practices ness in effort to the Forestry, 523 U.S. at 118 S.Ct. 1665. newly-created ground range enormous so, doing the in Court cited cases which The Supreme for loss of licensure. Court plaintiffs complying faced a choice of with has described the harm im- specifically later challenged “risking scheme posed by regulation “affect[s] penalties,” “later civil such as loss [plaintiffs] primary as a distinct conduct” Labs., (citing license.” Id. Abbott U.S. 387 type “strictly legal of harm from the kind” 152-53, 1507; at Broad- Columbia imposed by regulation of harm States, casting System, Inc. v. United 316 plaintiff] do [the [some- “commands 407, 417-419, 1194, L.Ed. U.S. 86 thing doing [something.” or refrain from (1942)); Labs., see also Abbott Ass’n, at Hospitality Nat’l Park 152-53, (explaining at 87 S.Ct. 1507 U.S. 2026; 809-10, 123 S.Ct. accord Ohio For- plaintiffs controversy the ripe 733-34, shouldering estry, had to at 118 S.Ct. 1665. there choose between U.S. Labs., imposition A state’s of severe new conse- tions.” See Abbott existing Therefore, quences regula- for violations of S.Ct. 1507. majority is “force compliance wrong tions immediate to conclude that compliance through plaintiffs fear future sanctions.” Ohio burdens on do not constitute a cognizable hardship.4 U.S. at 118 S.Ct. 1665. Indeed, it difficult to what imagine legit- is II. if purpose imate 490 could have it is precisely not meant to effect the kinds of Finally, plaintiffs’ present purely claims heightened compliance plaintiffs legal measures questions judi- that are plainly fit realistically they assert have been forced cial decision without awaiting further fac- to undertake.3 tual developments. “ripe Claims are when they would benefit any from further impact The coercive of Act 490 is al- factual development and when court ready imposing plaintiffs on the burden of position adjudi- no better adjust attempting to prac- their business cate issues future than it is uniquely tices in response being exposed Holder, now.” Pearson 624 F.3d to exceptionally penalties severe for even (5th Cir.2010). “[N]o further factual minor violations of state or federal law development is necessary,” if the Here, Labs., regulation. in Abbott “purely claims call for inquiries.” “regulation challenged directed at Roark, 522 F.3d [plaintiffs] particular; require[s] them significant changes make in their every- bring Plaintiffs facial challenges con- day practices; if they business fail to stitutional grounds [and] that present purely le- they quite gal observe the ... rule clearly questions are regarding validity exposed imposition strong to the sane- Act as written. Specifically, plaintiffs’ argu- As counsel noted at oral Although Ann. 9:2800.12. the en banc ment, a state were to condition the non-justiciable licensure deemed the suit as hav- attorneys or, closely ing brought against more track the wrong been defen- — case, dants, circumstances this appears every of some disfavored it that member of the category attorneys compliance agreed of strict court "self-enforcing the that nature” —on laws, with all state and federal seems indis- statute at issue had an "immediate putable impose such a law that would on providers that coercive effect” on abortion and category practitioners impact of disfavored the hard- this "coercive of the statute itself” ship modifying customary injury-in-fact of their conduct in amounted purposes to an for of uniquely order to avoid the standing. severe sanctions Article Okpalobi, III 244 F.3d at that, example, speeding for a ticket would 427 (explaining “impact that the of the stat- subject to. them ute” exposes is "coercive in that it [abortion physicians] liability”); to unlimited tort id. at (Benavides, J., imposed plaintiffs concurring part The burdens on here are in and dissenting part) (agreeing at every by least as real and immediate as what in that "Act existence, seemingly its plaintiffs member of this court en banc rec mere coerces the ognized having rights been on abandon as inflicted abortion the exercise of their lest providers by passage they incurring liability”); of an earlier risk Louisi substantial civil "exposes (Parker, J., ana law [abortion] doctors id. at dissenting) (agreeing suits, liability” private unlimited plaintiffs "undoubtedly tort in in that the established an part by exempting brought ”); pursu 'injury-in-fact' civil Lopez City suits see also v. of Houston, (5th Cir.2010) ant to that from the law limitations on liabili 617 F.3d ty provided generally applica (explaining standing in Louisiana's injury-in-fact in- Malpractice Okpalobi quiry ble ripeness inquiry Medical Act. v. and “ov- Foster, 405, 409, (5th erlap practice,” 244 F.3d 421-22 Cir. as each amounts “an ex- 2001) (en banc); LeBlanc, plaintiff see also K.P. v. amination of whether a has suffered (5th Cir.2010); F.3d injury”). 119-20 La.Rev.Stat. concrete (1) Id. at 419. The court then basis review.” process due that the Act: violates

claim apply revoca- the rational basis anal- proceeded its of license because authorization feder- any statutory provision, of state or challenged tion violation to the ysis for give outpatient regulation fails to al law or were not concluding that the amendments of the condi- facilities fair notice rationality abortion fail re- “substantially likely to ar- encourages and their licensure tions of Id. at 419-21. The then view.” enforcement; discriminatory bitrary and the text of vagueness principles to applied (2) by treating protection equal violates amendments, and concluded challenged med- differently than other clinics ... established sub- “the basis; a rational ical facilities without likelihood of success on their stantial its immediate because process due violates subject provi- vagueness challenge to of lib- clinics provision deprives sions,” that, reasoning “[ejspecially arbi- interests an property and erty abortion, constitutionally pro- context of unreasonable, capricious man- trary, and that has been a traditional right tected of impermissible degree an ner and invests hostility, of laws and target standardless Secretary; subjective discretion open the door to regulations such as these the constitutional abortion violates arbitrary discriminatory potentially right purpose it has the or effect because specifi- Id. at '421-22. We enforcement.” obstacle in placing of a substantial that our was not cally explained conclusion seeking to obtain path pregnant patients the fact that “no abortion facili- altered Adjudication of pre-viability abortions. yet or crimi- ty subjected has been civil analysis of the require claims these violating regulatory penalties nal for these Act, terms legisla- evidence 422; also Time provisions.” see intent, applying the relevant constitu- tive Hudson, F.3d Cable Warner ability A to make tional doctrines. court’s Cir.2012) (“Discriminatory treat- depend determinations does such government ment the hands of the is any future events. the occurrence of judicially injury long recognized cogni- as ques- previously This court has reached injury recognizable such zable. And regarding the merits of such claims tions plain- standing irrespective of whether the challenges justiciable. or held similar palpable tiff will an actual or more sustain Women’s Medical Center Northwest injury unequal a result treatment Houston, district court’s we reviewed a [Sjuch regulation under .... dis- law or law injunction of a Texas temporary injury can crimination constitute an be- licensing amending that state’s abortion parties unequally it positions cause similar 413, consid- law. 248 F.3d 419-22. We law; showing further of before the no suf- pro- of of equal ered the likelihood success fering unequal is positioning based that challenges very sim- vagueness tection and ” (second required origi- .... alteration brought by plaintiffs here. ilar to those nal)). equal Id. respect at 419-22. With the Roark, ripe a facial Similarly, we held protection challenges, explained the court challenge to the process due procedural that, no contain[ed] because record “[t]he provision” municipal a “enforcement animus, and no evidence anti-abortion anti-smoking “giving city ordinance the the ... were evidence that amendments manager permits discretion to revoke an ac- passed attempt to limit abortion licenses,” City “the not though ha[d] even for other improper purpose[,] cess or fíne license rev- challenged enforced the correctly the district court chose against any Plaintiff.” penalties ocation the ... health evaluate amendments as explained that subject rational 522 F.3d at 544-46. We safety regulations

729 hart, 914, 929-46, development 2597, “no further factual nec- 530 120 [was] U.S. S.Ct. (2000) (substantive essary” in order determine the merits 147 “[t]o L.Ed.2d 743 due procedural process the due claim process); of’ be- Planned Parenthood Se. Pa. adjudication present “purely 833, 879-901, cause would v. Casey, 112 S.Ct. legal inquir[y].” 2791, (1992) (substantive Id. at 546. 120 L.Ed.2d 674 process); due Ohio v. Akron Ctr. Re LeBlanc, for And in K.P. v. we considered prod. Health, 502, 517-518, 497 U.S. sponte justiciability vague- sua the of facial (1990) 2972, 5.Ct. (proce L.Ed.2d 405 ness, equal protection, and undue burden Doe, dural process); due 410 U.S. at 192- challenges to another Louisiana statute 739 (vagueness, 93 S.Ct. substantive regulating providers. F.3d at process, equal protection). due subjects 122. That providers statute liability in potential pri- civil the form of adjudication Because of plaintiffs’ claims lawsuits, exempts vate suits from such application involve of famil- liability protect the limitations on oth- iar constitutional to statutory doctrines physicians under the generally er state’s provisions legislative and indications of in- applicable malpractice medical statute. tent, fact-finding “[additional would not Again, justiciable held the we claims [judicial] aid inquiry into purely legal though providers’ even the abortion “liabil- question validity.” of [the Act’s] See Tex- ity yet suits not material- ha[d] as, 497 F.3d at Accordingly, 499.5 ized.” Id. district court majority and the have erred in concluding plaintiffs’ purely Moreover, Supreme Court has re- claims are unfit for resolution.6 peatedly pre-en- reached merits challenges regulations forcement facial III. providers. of abortion E.g., Gonzales v.

Carhart, 124, 161-68, majority’s procrustean 550 U.S. The ripeness S.Ct. (vagueness, analysis L.Ed.2d 480 unprecedented would be in any process); Stenberg substantive due case. particularly Car- It is inappropriate in a Secretary's counsel [the intimates defendant’s counsel not will] suffice to Secretary may ultimately exercise his con- defeat it.” Id. allegedly impermissible siderable —and —dis- cretion “under Act in the draconian fash- Importantly, Court has ex [plaintiffs] by initiating ion fear” plained that does "[o]ne not have to await the clinic, proceedings against or revocation injury consummation threatened to obtain license, declining to renew its for minor or preventive injury certainly relief. If the regulatory non-health-related violation. See impending, enough.” that is Thomas v. Un Appellee’s Br. 20. These assertions do not Co., Agric. ion Carbide Prods. 473 U.S. change analysis. Even were Secre- 87 L.Ed.2d 409 tary's go counsel farther and assure the (quoting Regional Reorganization Rail would not exercise Cases, 102, 143, authority arbitrary his under the Act in (1974)); accord, e.g., L.Ed.2d 320 Neal v. Shi fashion, such assurances would irrelevant. moda, (9th Cir.1997). 131 F.3d 825 The Labs., rejected govern- In Abbott the Court the surrounding present circumstances the case ment’s "contention that the of [certain] threat already indicate that the has sub noncompliance sanctions for [the] with jected several abortion in the state unrealistic,” clinics regulation although is [at issue] Act, the and harsh terms new intends to government had counsel asserted that the again plaintiff enforce the Act the clinics. imposed. feared sanction would not be Ab- Thus, Labs., plaintiffs adjudi claims would be fit for bott 387 U.S. at S.Ct. 87 they inception present Where at cation properly purely an "action its even if did not [is] brought!,] subsequent represention[s] legal questions. (cid:127) (cid:127) (cid:127) of 730 uniquely Louisi- explicitly imposes to an abortion challenge pre-enforcement consumers providers recognized, ana abortion has this As

regulation. so, doing In here. applied flexibly as the such Court has Supreme the cases. and excessive- a novel applies in abortion majority doctrines the justiciability Edwards, F.2d doc- 794 ripeness the S. v. of Margaret formulation ly rigid See Cir.1986) “the Su- that (noting Particularly requirement. hardship trine’s its tradi- relaxed visibly has Court the context preme so in that it does is troubling deciding abor- principles standing tional to an abortion challenge pre-enforcement 123-29, Roe, at 410 U.S. (citing cases” tion in which a context regulation, 187-89, 93 Doe, at 705; 410 U.S. 93 S.Ct. the merits reached repeatedly has Court at F.3d 739)); Okpalobi, accord S.Ct. claims, applied and has constitutional Wulff, v. also, e.g., Singleton 427-28; see not effec- so as doctrines justiciability 2868, 49 S.Ct. 428 U.S. challenges forum deny a tively federal it (1976) (“conclud[ing] L.Ed.2d constitution- implicating regulations physi- to allow appropriate generally pre- to terminate to choose right al patients rights of women to assert cian viability pregnancy. with interference governmental against as disagree with strongly I Because Roe, at decision”); the abortion doctrine’s ripeness formulation of rigid a mootness (recognizing ap- majority that the component because litigation abortion exception for conclusion the erroneous with plies, and 'capable of truly be could “pregnancy dissent. respectfully I reaches, ”); Sa- evading review’ yet repetition, cf. 609-10, bri, 541 U.S. justi- concerns weighty (stating at- facial entertaining pre-enforcement fy evaluat- setting). In in the abortion

tacks to an aof facial ripeness

ing the oth- in applying regulation, case, in such a doctrines justiciability er JONES, Plaintiff- Joyce Darlene toas rigid” [so] law should “[o]ur Appellant, See [judicial] review.” den[y] “effectively 125, S.Ct. 705. Roe, ASTRUE, Commissioner J. Michael

IV. Security, Defendant- of Social raises controversy sum, present Appellee. validity regarding the issues legal concrete statute, contested already-effective 11-30975. No. reg- parties: classically adversarial Appeals, Court States United subject to the expressly entities ulated Fifth Circuit. with the state actor challenged law law enforce authority to undisputed 20, 2012. Aug. the sort far from It is them. thus against dispute hypothetical abstract controversy require- case or Ill’s Article adjudi- courts from federal prohibits

ment clear majority overlooks

cating. controversy this

harms, to make sufficient review, challenged

ripe for

Case Details

Case Name: Choice Inc. of Texas v. Bruce Greenstein

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 17, 2012

Citation: 691 F.3d 710

Docket Number: 11-30296

Court Abbreviation: 5th Cir.