EMW WOMEN‘S SURGICAL CENTER, P.S.C., on behalf of itself, its staff, and its patients; ASHLEE BERGIN, M.D., M.P.H. and TANYA FRANKLIN, M.D., M.S.P.H., on behalf of themselves and their patients, Plaintiffs-Appellees, v. ERIC FRIEDLANDER, in his official capacity as Acting Secretary of Kentucky‘s Cabinet for Health and Family Services, Defendant-Appellant.
No. 19-5516
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
June 2, 2020
20a0169p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:18-cv-00224—Joseph H. McKinley, Jr., District Judge.
Argued: January 29, 2020
Decided and Filed: June 2, 2020
Before: MERRITT, CLAY, and BUSH, Circuit Judges.
COUNSEL
ARGUED: Matthew F. Kuhn, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for Appellant. Andrew D. Beck, AMERICAN CIVIL LIBERTIES UNION OF NEW YORK, New York, New York, for Appellees. ON BRIEF: Matthew F. Kuhn, M. Stephen Pitt, S. Chad Meredith, Brett R. Nolan, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for Appellant. Andrew D. Beck, Alexa Kolbi-Molinas, Meagan M. Burrow, Elizabeth Watson, AMERICAN CIVIL LIBERTIES UNION OF NEW YORK, New York, New York, Amy D. Cubbage, ACKERSON & YANN, Louisville, Kentucky, Heather Lynn Gatnarek, AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, Louisville, Kentucky, for Appellees. Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, Ester Murdukhayeva, OFFICE OF THE NEW YORK ATTORNEY GENERAL, New York, New York, Alexandria Preece, MORRISON & FOERSTER LLP, San Diego, California, Roxann E. Henry, MORRISON & FOERSTER LLP, Washington, D.C., Kimberly A. Parker, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Amici Curiae.
CLAY, J., delivered the opinion of the court in which MERRITT, J., joined. BUSH, J. (pp. 33–43), delivered a separate dissenting opinion.
OPINION
CLAY,
For the reasons set forth below, we AFFIRM the district court‘s judgment.
BACKGROUND
Factual Background
In the first trimester of pregnancy, a physician may perform an abortion through two methods. She may offer medication to induce a process like miscarriage, or she may perform a surgical abortion, using suction to remove the contents of the uterus intact. But these methods are only effective in the initial weeks of pregnancy. Starting around fifteen weeks of pregnancy, measured from the time of the individual‘s last menstrual period (“LMP“), physicians must use the dilation and evacuation (“D&E“) method. D&E is the standard
This leads us to Kentucky‘s House Bill 454 (“H.B. 454” or “the Act“), which was signed into law on April 10, 2018. H.B. 454 provides, in relevant part:
No person shall intentionally perform or induce or attempt to perform or induce an abortion on a pregnant woman . . . [t]hat will result in the bodily dismemberment, crushing, or human vivisection of the unborn child . . . [w]hen the probable post-fertilization age of the unborn child is eleven (11) weeks or greater [(i.e., thirteen (13) weeks or greater as measured since the last menstrual period)]1
(H.B. 454, R. 43-1 at PageID #244.) “[B]odily dismemberment, crushing, or human vivisection” includes:
a procedure in which a person, with the purpose of causing the death of an unborn child, dismembers the living unborn child and extracts portions, pieces, or limbs of the unborn child from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that . . . slices, crushes, or grasps . . . any portion, piece, or limb of the unborn child‘s body to cut or separate the portion, piece, or limb from the body.
(Id. at ##243–44.) While H.B. 454 does not use the words “dilation and evacuation” or “D&E,” the parties agree that it references the standard D&E. Because fetal tissue separates as physicians remove it from the uterus during the standard D&E, H.B. 454 forbids D&E abortions when performed on “living unborn” fetuses—or, in clinical terms, prior to “fetal demise.”
H.B. 454 does not identify any workaround for physicians who seek to perform or patients who seek a D&E after thirteen weeks. The Act does not suggest that physicians should
or must induce fetal demise prior to performing a D&E. Specifically, it does not discuss any procedures for inducing fetal demise.
H.B. 454 provides for a single exception to this prohibition: physicians may perform a D&E prior to fetal demise in a “medical emergency.” (Id. at #244.) A “medical emergency” is a situation that a physician deems to “so complicate[] the medical condition of a pregnant female as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create a serious risk of substantial and irreversible impairment of a major bodily function.” (Id.);
Violation of H.B. 454 is a Class D felony, (H.B. 454, R. 43-1 at PageID #247), for which providers may receive up to five years of imprisonment,
Procedural Background
On the day H.B. 454 was signed, Plaintiffs EMW Women‘s Surgical Center (“EMW“) and its two obstetrician-gynecologists,
The parties entered a joint consent order, under which the Commonwealth defendants agreed that they would not take steps to enforce H.B. 454 until the district court ruled upon Plaintiffs’ motions. The court later ordered the parties to continue following the terms of the consent order until the case was tried on the merits.
Aside from then-Secretary of Kentucky‘s Cabinet for Health and Family Services, Adam Meier, and Commonwealth Attorney Thomas B. Wine, all of the defendants were voluntarily dismissed prior to trial. The district court heard Plaintiffs’ case in a five-day bench trial in November 2018.
Before the court, Plaintiffs presented their argument as to H.B. 454‘s unconstitutionality. Defendants Meier and Wine, for their part, argued that H.B. 454 did not ban D&E abortions, but simply required individuals seeking a D&E abortion after thirteen weeks to first undergo a procedure to induce fetal demise. They identified three possible methods of inducing fetal demise: by injecting digoxin into the fetus or amniotic sac, by injecting potassium chloride into the fetal heart, or by cutting the umbilical cord in utero. Plaintiffs responded that none of these three procedures was a feasible workaround to H.B. 454. Both parties presented substantial expert testimony and evidence about the safety, efficacy, and feasibility of each of these procedures.
On May 8, 2019, the district court entered judgment for Plaintiffs and an order permanently enjoining the enforcement of H.B. 454. EMW Women‘s Surgical Ctr., P.S.C. v. Meier, 373 F. Supp. 3d 807, 826 (W.D. Ky. 2019). At bottom, the district court found that H.B. 454 imposed an undue burden on one‘s right to elect an abortion prior to viability, in violation of the
This timely appeal followed. Former defendant Commonwealth Attorney Wine did not join this appeal. Due to the recent change in administration from prior Kentucky Governor Matt Bevin to current Governor Andy Beshear, now-Acting Secretary of Kentucky‘s Cabinet for Health and Family Services Eric Friedlander (“the Secretary“) has replaced Adam Meier as the named Defendant-Appellant in this case. See
DISCUSSION
Kentucky is not the first state to pass legislation requiring fetal demise prior to the performance of a D&E. At least ten other states have passed similar laws. See, e.g.,
All this said, our duty is to assess the record in this case and independently review the district court‘s decision to permanently enjoin H.B. 454. “A party is entitled to a permanent injunction if it can establish that it suffered a constitutional violation and will suffer ‘continuing irreparable injury’ for which there is no adequate remedy at law.” Women‘s Med. Prof‘l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006) (quoting Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998)). When considering a district court‘s decision to grant a permanent injunction following a bench trial, we apply three standards of review. We review the scope of injunctive relief for an abuse of discretion, the district court‘s legal conclusions de novo, and the court‘s factual findings for clear error. Id.
In this and all cases, the clear error standard presents a particularly high hurdle for the appellant to overcome. The district court compiled a thorough judicial record over the course of a five-day bench trial, during which the parties presented a wealth of testimonial and documentary evidence. In reviewing the court‘s factual findings based on that record, we ask only if its “account of the evidence is plausible in light of the record viewed in its entirety.” Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985). If so, we must affirm the district court‘s finding. We consider a factual finding clearly erroneous only when we are “left with the definite and firm conviction that a mistake has been committed.” Id. at 573 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). “Where there are two permissible views of the evidence, the [district court‘s] choice between them cannot be clearly erroneous.” Id. at 574.
With this groundwork laid, we turn to the issues presented on appeal.2
I.
Nearly fifty years ago, the Supreme Court declared that the
First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State‘s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman‘s effective right to elect the procedure. Second is a confirmation of the State‘s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman‘s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.
Under this framework, “[r]egardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Id. at 879. On the other hand, “[r]egulations which do no more than create a structural mechanism by which the State . . . may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman‘s exercise of the right to choose.” Id. at 877. According to the Secretary, H.B. 454 serves the Commonwealth‘s interests in respecting the dignity of human life, preventing fetal pain, and protecting the ethics, integrity, and reputation of the medical community. Neither the district court nor Plaintiffs questioned that the Commonwealth indeed held these interests or that it might justifiably regulate abortion to further them. Neither do we. The Commonwealth “may use its voice and its regulatory authority to show its profound respect” for the dignity of human life. Gonzales v. Carhart, 550 U.S. 124, 157 (2007). Preventing fetal pain is part and parcel of this interest. Likewise, states “ha[ve] an interest in protecting the integrity and ethics of the medical profession.” Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 731 (1997)).
However, no Commonwealth interest may justify “placing a substantial obstacle in the path of a woman seeking an abortion” prior to viability. Casey, 505 U.S. at 877. Such an obstacle would unduly burden the right to choose prior to viability, in violation of the
This is where the Commonwealth‘s problems begin. The Secretary takes issue with the district court‘s application of this test. He asserts that there are multiple ways to apply the undue burden analysis, and ”Hellerstedt does not apply here because its balancing test arose in the context of a law that a state claimed protected women‘s health.” (Def. Br. at 28 (citing Hellerstedt, 136 S. Ct. at 2310).) Because the Commonwealth interests behind H.B. 454 are purportedly more “intangible,” the Secretary says, it is the legislature‘s place—and not the courts‘—to assess whether the Commonwealth‘s interest justifies regulating abortion. The Secretary suggests that Gonzales articulated a separate test that applies where a state acts to express respect for human life—that is, “the State may use its regulatory power to bar certain procedures and substitute others,” so long as the alternative procedures do not impose an undue burden in the form of “significant health risks.” (Id. at 26–27 (emphasis omitted) (quoting Gonzales, 550 U.S. at 158, 161).)
Like other courts presented with this argument, we find it unpersuasive. See, e.g., Planned Parenthood of Ind. & Ky. v. Comm‘r of Ind. State Dep‘t of Health, 896 F.3d 809, 817 (7th Cir. 2018) (“The State is incorrect that the standard for evaluating abortion regulations differs depending on the State‘s asserted interest or that there are even two different tests . . . .“); Hopkins, 267 F. Supp. 3d at 1055 (rejecting argument that “the Supreme Court has created two distinct undue burden tests, depending on what interests the state seeks to regulate“). In Hellerstedt, the Supreme Court inferred that the state had legislated in the interest of protecting women‘s health. 136 S. Ct. at 2310. Yet the Court did not distinguish that case from Gonzales based on the state‘s interest; in fact, it cited Gonzales‘s analysis. See id. at 2309–10 (citing Gonzales, 550 U.S. at 165–66). The Hellerstedt Court explained that it simply applied “[t]he rule announced in Casey, . . . [which] requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Id. at 2309. In Gonzales, the Court also explained that ”Casey, in short, struck a balance,” and it simply “applied [Casey‘s] standards to the cases at bar.” Gonzales, 550 U.S. at 146. Casey itself did not suggest that any separate test applied to regulations based on an interest in the dignity of human life; instead, it presented the “woman‘s right to terminate her pregnancy before viability” and “the interest of the State in the protection of potential life” as two sides of an equation. Casey, 505 U.S. at 871. Nor have other lower courts understood there to be two different analyses. Courts regularly apply the undue burden analysis, as articulated in Hellerstedt, to regulations passed in the interest of protecting the dignity of human life. See, e.g., Planned Parenthood of Ind. & Ky., Inc. v. Adams, 937 F.3d 973, 983–84 (7th Cir. 2019); J.D. v. Azar, 925 F.3d 1291, 1328, 1333, 1335 (D.C. Cir. 2019); Williamson, 900 F.3d at 1326–27; Planned Parenthood of Ind. & Ky. v. Comm‘r of Ind. State Dep‘t of Health, 896 F.3d at 824–25, 831.
The Secretary also relies upon Gonzales to assert that there is “medical uncertainty over whether [H.B. 454‘s] prohibition creates significant health risks,” and that legislatures have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” (Def. Br. at 27 (quoting Gonzales, 550 U.S. at 163–64).) But Hellerstedt addressed this very argument. See 136 S. Ct. at 2310. It explained that “[t]he statement that legislatures, and not courts, must resolve questions of medical uncertainty is . . . inconsistent with this Court‘s case law.” Id. It clarified that while Gonzales suggested that courts must apply deferential review to legislative fact findings, that deference should not be “[u]ncritical” and courts “must not ‘place dispositive weight’ on those ‘findings.‘” Id. (alteration in original) (quoting Gonzales, 550 U.S. at 165–66); see also Adams & Boyle, 956 F.3d at 926.
Setting aside the Secretary‘s argument, then, we must apply the undue burden analysis, as explained in Hellerstedt.3 We therefore turn to consider the district court‘s assessment of the burdens H.B. 454 imposes.
A. Burdens
An undue burden exists if a statute‘s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Casey, 505 U.S. at 878. The Supreme Court has repeatedly affirmed that laws that amount to a prohibition of the most common second-trimester abortion method impose such a burden. See, e.g., Stenberg v. Carhart, 530 U.S. 914, 930, 938–39 (2000) (finding that a Nebraska statute effectively prohibiting D&E abortions constituted an undue burden); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 78–79 (1976) (striking down a ban on saline amniocentesis, then the method “most commonly used nationally . . . after the first trimester“); see also Gonzales, supra,
550 U.S. at 150–54, 164–65 (contrasting a permissible law prohibiting only dilation and extraction (“D&X“) abortions,4 and not standard D&E, with the unconstitutional law at issue in Stenberg). This Court has duly applied those holdings, explaining simply that “if a statute prohibits pre-viability D & E procedures, it is unconstitutional.” Northland Family Planning, Inc. v. Cox, 487 F.3d 323, 330 (6th Cir. 2007); accord Eubanks v. Stengel, 224 F.3d 576, 577 (6th Cir. 2000); Women‘s Med. Prof‘l Corp. v. Voinovich, 130 F.3d 187, 201 (6th Cir. 1997) (“Because the definition of the banned procedure includes the D & E procedure, the most common method of abortion in the second trimester, the Act‘s prohibition on the D & X procedure has the effect ‘of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.‘” (quoting Casey, 505 U.S. at 877)). If H.B. 454 effectively prohibits the D&E procedure, then, it poses a substantial obstacle to abortion access prior to viability and is an undue burden.
H.B. 454 criminalizes a physician‘s performance of a standard D&E abortion unless fetal demise occurs before the fetus is removed from the uterus. The Secretary
Before considering the feasibility of each of these procedures, we pause to note a fundamental flaw in the Secretary‘s argument. Fetal-demise procedures are not, by definition, alternative procedures. A patient who undergoes a fetal-demise procedure must still undergo the entirety of a standard D&E. Instead, fetal-demise procedures are additional procedures. Additional procedures, by nature, expose patients to additional risks and burdens. No party argues that these procedures are necessary or provide any medical benefit to the patient. The district court‘s findings suggest that these procedures impose only additional medical risks.
Thus, we consider them inherently suspect. See, e.g., Adams & Boyle, 956 F.3d at 926 (concluding that applications of a temporary ban on abortions during the COVID-19 pandemic that “would require [a woman] to undergo a more invasive and costlier procedure tha[n] she otherwise would have . . . constitutes ‘beyond question, a plain, palpable invasion of rights secured by [the] fundamental law‘” (quoting Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905))); Paxton, 280 F. Supp. 3d at 948 (“Although the court will consider the argument [that physicians may induce fetal demise through one of the proposed methods], the State‘s reliance on adding an additional step to an otherwise safe and commonly used procedure in and of itself leads the court to the conclusion that the State has erected an undue burden on a woman‘s right to terminate her pregnancy prior to fetal viability.“); id. at 953 (similar); see also, e.g., Danforth, 428 U.S. at 78–79 (striking down Missouri‘s ban on saline amniocentesis because it “forces a woman and her physician to terminate her pregnancy by methods more dangerous to her health than the method outlawed“); Williamson, 900 F.3d at 1326 (similar); Farmer, 220 F.3d at 145 (similar); Planned Parenthood of Cent. N.J. v. Verniero, 41 F. Supp. 2d 478, 500 (D.N.J. 1998) (similar), aff‘d sub nom. Farmer, 220 F.3d 127; Evans, 977 F. Supp. at 1318 (similar). In essence, H.B. 454 conditions an individual‘s right to choose on her willingness to submit herself to an additional painful, risky, and invasive procedure. At some point, that requirement itself becomes so onerous that it would substantially deter individuals from seeking an abortion. This is surely an undue burden.
Our consideration of the Secretary‘s proposed means of inducing fetal demise only solidifies this conclusion. The district court correctly found that none of these methods is a feasible workaround to H.B. 454. We address each method in turn.
1. Digoxin Injections
The first fetal-demise method the Secretary identifies is digoxin injections. As the district court explained, “[t]o inject digoxin, physicians begin by using an ultrasound machine to visualize the woman‘s uterus and the fetus. The physician then inserts a long surgical needle through the patient‘s skin, abdomen, and uterine muscle, to inject digoxin into the fetus” or the amniotic fluid. Meier, 373 F. Supp. 3d at 818. Because digoxin can take up to twenty-four hours to work, physicians generally must administer this injection the day before performing a D&E. Id. at 818–19.
Much of the Secretary‘s argument pertaining to digoxin injections amounts to an attempt to relitigate factual issues. He contends that digoxin injections do not fail as frequently as the district court found, that receiving multiple injections is safe, that receiving injections before eighteen weeks is safe, and that some of the risks identified by the district court are minimal or theoretical. In essence, the Secretary takes issue with the district court‘s decision to credit Plaintiffs’ experts and cited studies over his own.
The Secretary‘s strategy is misguided. Even if we were inclined to disagree with the district court‘s factual findings, we may not reverse those findings merely because we are “convinced that had [we] been sitting as the trier[s] of fact, [we] would have weighed the evidence differently.” Anderson, 470 U.S. at 573–74. As a federal appellate court, “we must let district courts do what district courts do best—make factual findings and steel ourselves to respect what they find.” Taglieri v. Monasky, 907 F.3d 404, 408 (6th Cir. 2018). In reviewing a grant of permanent injunction following a bench trial, we ask simply whether the district court‘s view of the evidence was permissible. Anderson, 470 U.S. at 574.
The record supports each of the district court‘s factual findings. Expert testimony presented at trial, supported by medical studies, suggested that digoxin injections fail between 5% and 20% of the time.6 (Tr. Vol. I, R. 106 at PageID #4391;
Likewise, evidence supports the district court‘s conclusion that performing successive digoxin injections would amount to an experimental medical procedure, because no medical literature identifies the correct dose for or the risks of a second digoxin injection. (See, e.g., Tr.
Vol. I, R. 106 at PageID ##4395–96; Tr. Vol. II, R. 107 at PageID #4678; Tr. Vol. III-B, R. 102 at PageID #3792.) The court‘s conclusion regarding the use of digoxin injections before eighteen weeks LMP is also well grounded: according to witness testimony, no studies have been performed on the efficacy, dosage, or safety of digoxin injections before seventeen weeks, and just one study includes a few individuals at seventeen weeks’ pregnancy. (Tr. Vol. I, R. 106 at PageID ##4396–97; Tr. Vol. IV, R. 103 at PageID ##3984–85.)
The court‘s conclusion that digoxin injections are not available to many patients also is not clearly erroneous. Multiple experts testified that factors including placental positioning, fetal positioning, obesity, the presence of uterine fibroids, and the presence of cesarean-section scars can interfere with or prevent the successful administration of a digoxin injection. (Tr. Vol. I, R. 106 at PageID ##4387–88; Tr. Vol. III-B, R. 102 at PageID ##3793–94; Tr. Vol. IV, R. 103 at PageID ##4000–01.) Moreover, expert testimony and studies suggested that patient contraindications—including multiple gestations, fetal abnormalities, digoxin or cardiac glycoside sensitivities and allergies, cardiac abnormalities, renal failure, bleeding disorders, and use of certain medications—may prevent the safe administration of a digoxin injection. (Tr. Vol. I, R. 106 at PageID ##4388–90.) Despite the Secretary and the dissent‘s assertions otherwise, the district court‘s finding that digoxin injections are not generally technically difficult to perform does not remotely conflict with its conclusion that they cannot successfully be performed on all patients or that they are technically difficult to perform in some situations. In the event that an individual cannot receive a digoxin injection for any of these reasons, H.B. 454 could prevent her from receiving a D&E. There is no exception to H.B. 454‘s restrictions for
While the district court‘s opinion did not include specific record citations to support its conclusion that that digoxin injections subject patients to additional health risks, Meier, 373 F. Supp. 3d at 818, this too is supported by the evidence. Expert testimony suggested that digoxin
injections may increase patients’ risk of vomiting, infection, bowel or intestinal rupture, sepsis, and general hospitalization. (Tr. Vol. I, R. 106 at PageID ##4400–06; Brady Dep., R. 112-1 at PageID #5242.) Digoxin injections can also lead to extramural delivery, meaning delivery outside a clinic environment, which further increases medical risks (including the risk of hemorrhaging) and may also be painful and emotionally traumatic. (Tr. Vol. I, R. 106 at PageID ##4405–09; Brady Dep., R. 112-1 at PageID #5242.)
The Secretary says that these negative effects rarely occur and dismisses them as “marginal or insignificant risks generalized to the entire population of women seeking . . . abortions [at the relevant time].” (Def. Br. at 35 (alterations in original) (quoting Women‘s Med. Prof‘l Corp. v. Taft, 353 F.3d 436, 447 (6th Cir. 2003)).)8 The Secretary draws this language from Women‘s Medical Professional Corp. v. Taft, in
insignificant risks generalized to the entire population of women seeking late second-trimester abortions.” Id. We found it significant that the law in question “specifically exclude[d]” D&Es from its restrictions, as D&Es provided a safe alternative to the D&X procedure. Id. at 438, 451–53. As the Supreme Court later explained, in comparing D&X and D&E abortions, there was substantial medical uncertainty “over whether the barred procedure [i.e., D&X] is ever necessary to preserve a woman‘s health, given the availability of other abortion procedures that are considered to be safe alternatives [i.e., D&E].” Gonzales, 550 U.S. at 166–67.
By contrast, under H.B. 454, an individual is left with no safe alternative to undergoing a fetal-demise procedure, and the record shows, with no medical uncertainty, that a D&E without a fetal-demise procedure may be necessary to preserve an individual‘s health. Indeed, in every circumstance, a fetal-demise procedure poses additional health risks beyond those present with a D&E alone, and so it always places an individual‘s health in jeopardy. Accordingly, every court to consider the question has found that digoxin injections pose impermissible, significant risks to those who would be compelled to undergo them. See, e.g., Williamson, 900 F.3d at 1323–24, 1327; Bernard, 392 F. Supp. 3d at 949, 960; Yost, 375 F. Supp. 3d at 858; Paxton, 280 F. Supp. 3d at 949; Hopkins, 267 F. Supp. 3d at 1039, 1060–61; Evans, 977 F. Supp. at 1301, 1318; Schmidt, 440 P.3d at 678; see also Farmer, 220 F.3d at 145–46 (discussing digitalis, another cardiac glycoside); Verniero, 41 F. Supp. 2d at 500 (same), aff‘d sub nom. Farmer, 220 F.3d 127; accord Meier, 373 F. Supp. 3d at 818. We agree.
Finally, the district court found that digoxin injections impose additional logistical and emotional burdens on patients because they may increase the length of the D&E procedure by a day and because they require patients to undergo an additional invasive, painful, and likely scary procedure. Meier, 373 F. Supp. 3d at 818–19. The Secretary‘s argument that D&E procedures regularly take two days anyway is unavailing; even if he is correct, the record suggests that an additional day may be required for some patients to undergo a digoxin injection. (See Tr. Vol. I, R. 106 at PageID ##4396, 4432; Tr. Vol. II, R. 107 at PageID #4768.)
In sum, we see no error in the district court‘s analysis of the feasibility of using digoxin injections to induce fetal demise prior to a D&E. Digoxin injection is an unreliable procedure that may not effectively cause fetal demise, presents unknown risks when administered multiple times or before eighteen weeks, may not be administrable at all based on the patient‘s health history and characteristics, increases medical risks under any circumstance, and creates additional emotional and logistical challenges for patients. Based on these findings of fact, digoxin injections are not a safe or effective workaround to H.B. 454.
2. Potassium Chloride Injections
As a second possibility, the Secretary suggests that an abortion provider may induce fetal demise by injecting potassium chloride into the fetus or the fetal heart. As described by the district court, physicians
The district court found that potassium chloride injections were not a feasible method for inducing fetal demise for three reasons. First, potassium chloride injections cannot be completed on every individual seeking a D&E. Id. at 820. Second, they subject patients to serious health risks. Id. Third, potassium chloride injections are extremely challenging and require substantial technical training to perform—training that the physician Plaintiffs do not have and cannot easily acquire. Id. at 819–20.
In contesting the district court‘s first finding, the Secretary again quibbles with the district court‘s decision to credit Plaintiffs’ expert testimony over his own. But ample evidence grounded the district court‘s conclusion that potassium chloride injections would not be successful for many seeking a D&E—because of factors including obesity, fetal and uterine position, cesarean-section or other scar tissue, and uterine fibroids—in addition to the procedure‘s independent possibility of failure. (Tr. Vol. I, R. 106 at PageID ##4423, 4551–52; Tr. Vol. IV, R. 103 at PageID ##3966, 4187–89.)
With regard to the district court‘s second finding, the Secretary does not dispute that potassium chloride injections pose health risks to patients. And the record clearly suggested that potassium chloride injections increased patients’ risks of infection, bleeding, cramping, uterine or bowel perforation, uterine atony and hemorrhaging, and cardiac arrest. (See, e.g., Tr. Vol. I, R. 106 at PageID ##4423–24, 4561–62; Tr. Vol. III-B, R. 102 at PageID ##3802–06; Tr. Vol. IV, R. 103 at PageID ##4198–99.) The Secretary does contest the significance of these risks, but this argument fails for the same reasons it failed previously. H.B. 454 cannot be said to impose only marginal or insignificant risks because no safe alternative exists and because it requires every individual seeking a D&E abortion to expose themselves to these risks. Again, every court to consider whether potassium chloride injections present substantial risk has agreed that they do. Williamson, 900 F.3d at 1322, 1324, 1327; Farmer, 220 F.3d at 145–46; Bernard, 392 F. Supp. 3d at 950–51, 960; Yost, 375 F. Supp. 3d at 860, 868; Paxton, 280 F. Supp. 3d at 950–51; Hopkins, 267 F. Supp. 3d at 1040, 1062–63; Verniero, 41 F. Supp. 2d at 500, aff‘d sub nom. Farmer, 220 F.3d 127; Evans, 977 F. Supp. at 1301, 1318; accord Meier, 373 F. Supp. 3d at 820.
Regarding the district court‘s finding that potassium chloride injections require technical skill and training that is not available to Plaintiffs, the Secretary argues that this is no issue. Even if the physician Plaintiffs themselves do not have and cannot acquire the requisite training, the Secretary says, EMW can simply hire physicians who do. According to the Secretary, because EMW has not attempted to hire such physicians, Plaintiffs themselves have caused this obstacle to abortion access, not H.B. 454.
This argument misses the point. Whether Plaintiffs could find some way to provide potassium chloride injections is only relevant if those injections otherwise present a feasible workaround to H.B. 454. They do not. Potassium chloride injections
But even setting this analysis aside, the Secretary‘s argument also fails for other reasons. First, neither Supreme Court precedent nor this Court‘s precedent requires Plaintiffs to prove that EMW could not have hired physicians with the skills and training necessary to perform potassium chloride injections. For this proposition, the Secretary cites Gonzales, noting that
physicians need not have “unfettered choice” in what abortion procedures they may use and that regulations may require them to perform procedures that are “standard medical options.” (Def. Br. at 20 (quoting Gonzales, 550 U.S. at 163, 166).) But the point of the district court‘s findings is that potassium chloride injection is not a standard medical option, and Plaintiffs could not provide that procedure even if they would so choose, because they have no available avenue to develop the necessary skills. We agree.
The Secretary cites to June Medical Services L.L.C. v. Gee, 905 F.3d 787 (5th Cir. 2015), cert. granted, 140 S. Ct. 35 (2019), to support his argument. In that case, the Fifth Circuit upheld a Louisiana law requiring abortion providers to gain admitting privileges at a nearby hospital. The court found that the plaintiff physicians had failed to show that the law presented an undue burden because they had not applied for admitting privileges or otherwise shown that had they “put forth a good-faith effort to comply with [the law], they would have been unable to obtain privileges.” Id. at 807. Because the plaintiffs failed to make this showing, the Fifth Circuit concluded that “[t]heir inaction severs the chain of causation.” Id. But see id. at 830 (Higginbotham, J., dissenting) (explaining that Hellerstedt “did not require proof that every abortion provider . . . put in a good-faith effort to get privileges and had been unable to do so“). The Fifth Circuit thus took issue not with the plaintiffs’ failure to attempt to hire or replace themselves with other physicians who had admitting privileges, but with their failure to show that they could not have obtained admitting privileges had they tried. See id. at 807. In the case at bar, the district court found that Plaintiffs “have no practical way to learn how to perform this procedure safely,” due to “the length of time it would take to learn the procedure and the lack of training available within the Commonwealth.” Meier, 373 F. Supp. 3d at 820. The Secretary does not dispute this finding, and the record supports it. (See, e.g., Tr. Vol. I, R. 106 at PageID ##4573-74; Tr. Vol. II, R. 107 at PageID ##4732-33; Tr. Vol. IV, R. 103 at PageID ##4185-86.) Thus, plaintiffs succeed even under the heightened showing required by the Fifth Circuit in Gee.
Still, Supreme Court precedent does not support such a requirement. Nor does Sixth Circuit precedent. Notably, the Supreme Court granted a stay of the Fifth Circuit‘s decision, Gee, 139 S. Ct. 663 (2019) (mem.), and the Court does not stay a decision absent a “significant possibility that the judgment below will be reversed,” Philip Morris U.S.A. Inc. v. Scott, 561 U.S. 1301, 1302 (2010). Far from requiring plaintiffs to specifically and affirmatively show good-faith efforts to comply with a challenged law, Supreme
Altogether, the district court‘s well-supported findings suggest that if patients were required to undergo a potassium chloride injection prior to a D&E, they would be subjected to a medically risky and unreliable procedure, which they may not be able to receive successfully and to which they would have only limited access, given the dearth of Kentucky providers trained to administer the procedure. These findings demonstrate that potassium chloride injections are not a feasible workaround to
3. Umbilical Cord Transection
Finally, the Secretary suggests that abortion providers may induce fetal demise through umbilical cord transection. To administer this procedure, the physician first dilates a patient‘s cervix and then—using an ultrasound for guidance—ruptures the amniotic membrane in order to allow access inside the amniotic sac, where the umbilical cord is located. This causes the amniotic fluid to drain from the uterus, shrinking its size and making it more difficult to visualize and grasp the umbilical cord. The physician then inserts an instrument through the cervix and locates the umbilical cord, which at this stage is approximately the width of a piece of yarn. Grasping the umbilical cord, the physician inserts another instrument through the cervix and cuts the cord. Once the cord is cut, the physician waits for the fetal heartbeat to stop, which can take up to ten minutes. The physician may then administer a standard D&E.
The district court found that this, too, was not a workable method for inducing fetal demise. It provided three reasons for that finding. First, umbilical cord transection is technically challenging because of the difficulty of visualizing the uterus and locating and grasping the umbilical cord. Meier, 373 F. Supp. 3d at 821 (citing Tr. Vol. I, R. 106 at PageID ##4434-36; Tr. Vol. II, R. 107 at PageID ##4669-70, 4672). Second, it is essentially experimental because there has only been one study focused on the procedure. Id. (citing Tr. Vol. I, R. 106 at PageID ##4438-41; Tr. Vol. III-B, R. 102 at PageID ##3808-09). Finally, umbilical cord transection carries serious health risks, including blood loss, infection, and uterine injury. Id. at 821-22 (citing Tr. Vol. I, R. 106 at PageID ##4436-37; Tr. Vol. II, R. 107 at PageID ##4669, 4673).
The Secretary does not meaningfully challenge any of these findings, which again are more than adequately supported by the record. He argues only that the one study of umbilical cord transection suggests the procedure is feasible, safe, and effective, as does the fact that an EMW expert and an EMW doctor had performed
The Secretary also takes issue with the district court‘s statement that umbilical cord transections “pose[] another hurdle for the provider because if they cut fetal tissue instead of, or in addition to the cord” while searching for it in the uterus, “they have arguably violated the Act.” Id. (citing Tr. Vol. I., R. 106 at PageID ##4435-36; Tr. Vol. II, R. 107 at PageID ##4669-70). The Secretary responds that, because of
Taken together, these findings demonstrate that should patients be required to undergo an umbilical cord transection prior to receiving a D&E, they would be subjected to a medically risky and experimental procedure that, given its technical challenges, fewer providers may be equipped to administer. These findings inevitably lead to the conclusion that umbilical cord transection—like digoxin and potassium chloride injections—is not a feasible workaround to
B. Benefits
After taking stock of the burdens imposed by
The Secretary contends that a statement by the district court—namely, “the fact that the Act furthers legitimate state interests does not end this constitutional inquiry“—suggests the district court found that
The district court clearly concluded that
The district court made no clear findings regarding whether or how
Turning to the Commonwealth‘s final interest in protecting the ethics, integrity, and reputation of the medical profession, the district court also came to no clear findings or conclusions regarding if or how
C. Balancing
Altogether,
Should
Summary
Because the burdens imposed by
II.
We turn, then, to the appropriate relief. Plaintiffs sought—and the district court granted—facial relief in the form of a declaration that
In place of a facial challenge, the Secretary asserts, Plaintiffs’ claims are better handled through as-applied challenges. Gonzales explained that as-applied challenges are “the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used.” 550 U.S. at 167. Based on this, the Secretary contends that situations where fetal-demise procedures are not feasible due to “side effects, failed injections, contraindications, the inability to perform fetal death procedures on certain women, and the alleged inability to perform digoxin injections before 18 weeks” are such “discrete and well-defined instances” that the individuals who face them should instead bring as-applied challenges. (Def. Br. at 61-62.)
But this set of circumstances is not “discrete and well-defined,” because individuals cannot anticipate whether they will suffer from side effects or failed injections. As Plaintiffs point out, those in the midst of failing procedures or suffering from side effects cannot rewind time and
In his broader challenge to the district court‘s award of facial relief, the Secretary contends that the district court used the wrong denominator to decide whether
The question then becomes what portion of this population would be unduly burdened by
Again, we disagree.
The dissent, for its part, presents a new argument on the Secretary‘s behalf. It says that ”
The Secretary next asserts that in order for
This argument is also legally meritless. In Cincinnati Women‘s Services, this Court explained that it “has previously found that a large fraction exists when a statute renders it nearly impossible for the women actually affected by an abortion restriction to obtain an abortion.” Id. at 373 (citing Voinovich v. Women‘s Med. Prof‘l Corp., 130 F.3d 187 (6th Cir. 1997)). It did not suggest that this is the only circumstance in which we will find that a large fraction exists. And the “practically all” language that the Secretary cites comes from this Court‘s suggestion that “[o]ther circuits . . . [have] only found a large fraction when practically all of the affected women would face a substantial obstacle.” Id. (emphasis added). In fact, Cincinnati Women‘s Services avoided identifying a threshold at which this Court might find that a “large fraction” of individuals are unduly burdened, but it implied that threshold could be even less than a majority of women affected. See id. at 374. The Court explained that “a challenged restriction need not operate as a de facto ban for all or even most of the women actually affected,” but “the term ‘large fraction’ which, in a way, is more conceptual than mathematical, envisions something more than the 12 out of 100 women identified here.” Id. There can be no question that
The Secretary further argues that the district court did not properly address his contention that there is no burden because “affected women can simply travel to other nearby clinics” outside of Kentucky. (Def. Br. at 60-61.) On this point, the Secretary attempts to “incorporate[] his arguments” from E.M.W. Women‘s Surgical Center, P.S.C. v. Meier, No. 18-6161 (6th Cir. argued Aug. 8, 2019), which is currently pending before a panel of this Court. He claims that “five circuit judges agree with [him] on this point.” (Id. at 61 n.9 (citing Planned Parenthood of Wis., Inc. v. Schimel, 806 F.3d 908, 933-34 (7th Cir. 2015) (Manion, J., dissenting); Whole Woman‘s Health v. Cole, 790 F.3d 563, 596-98 (5th Cir. 2015) (per curiam), rev‘d on other grounds by Hellerstedt, 136 S. Ct. 2292; Jackson Women‘s Health Org. v. Currier, 760 F.3d 448, 461-67 (5th Cir. 2014) (Garza, J., dissenting)).).
We reject the Secretary‘s argument out of hand. This Circuit has firmly established that, on appeal, parties may not even “incorporat[e] by reference . . . arguments made at various stages of the
Moreover, many more circuit judges—indeed, many more circuit courts, including the majority in two of the cases the Secretary cites—have rejected this argument. See, e.g., Azar v. Garza, 925 F.3d 1318, 1332 (D.C. Cir. 2019) (“The undue-burden framework has never been thought to tolerate any burden on abortion the government imposes simply because women can leave the jurisdiction.“); Schimel, 806 F.3d at 918-19 (rejecting as “untenable” the proposition that “the harm to a constitutional right [can be] measured by the extent to which it can be exercised in another jurisdiction” (alteration in original) (quoting Ezell v. City of Chicago, 651 F.3d 684, 697 (7th Cir. 2011))); Currier, 760 F.3d at 449 (holding that a state “may not shift its obligation to respect the established constitutional rights of its citizens to another state“). As the Supreme Court explained in Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350 (1938), obligations are “imposed by the Constitution upon the States severally as governmental entities—each responsible for its own laws establishing the rights and duties of persons within its borders.” States may not shift the burden of their constitutional obligations to other states, “and no State can be excused from performance by what another State may do or fail to do.” Id.
As a last attempt to save
Summary
CONCLUSION
For these reasons, we AFFIRM the district court‘s decision.
DISSENT
JOHN K. BUSH, Circuit Judge, dissenting. This case concerns a statute,
Here, however, there is a potential conflict of interest between Plaintiffs and their patients: for whatever reason—be it financial, litigation strategy, or otherwise—EMW‘s physicians have refused to obtain the necessary training to perform fetal demise, even though uncontroverted studies presented at trial show that many, and perhaps a substantial majority, of women would choose fetal demise before undergoing a D&E procedure. Such women may favor the effect of
Plaintiffs are two abortion providers and an abortion clinic. Their only claims for relief rest on the premise that
I.
Whether a plaintiff has standing to bring suit is “the threshold question in every federal case.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Examination of the standing issue “involves two levels of inquiry.” Planned Parenthood Ass‘n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1394 (6th Cir. 1987). The first is “of a constitutional dimension” and involves determining whether the plaintiff has suffered an injury in fact that is likely to be redressed by a favorable decision. Id. (citing Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38 (1976)). The second is “prudential” and concerns whether “the plaintiff is the proper proponent of the rights on which the action is based.” Id. (citing Singleton v. Wulff, 428 U.S. 106, 112 (1976)).
Relevant to the second inquiry, the Supreme Court has held that generally, a plaintiff “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interest of [other] parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975) (citing Tileston v. Ullman, 318 U.S. 44 (1943) (per curiam)). There is a “limited . . . exception” to this general rule when the third party can show: (1) that the third party has “a ‘close’ relationship with the person who possesses the right,” and (2) that “there is a ‘hindrance’ to the possessor‘s ability to protect his own interests.” Kowalski v. Tesmer, 543 U.S. 125, 129-30 (2004) (citation omitted).2
In Singleton v. Wulff, a case involving a challenge to limits on Medicaid funding for abortions in Missouri, a plurality of the Supreme Court held that the plaintiff-physicians satisfied the closeness and hindrance requirements for third-party standing. 428 U.S. at 118. The plurality explained that the close relationship between doctors and patients was “patent” since a woman cannot “safely secure an abortion without the aid of a physician.” Id. at 117. And a woman faced multiple hindrances to challenging the Missouri law, including “a desire to protect the very privacy of her decision [to abort] from the publicity of a court suit” and “the imminent mootness . . . of any individual woman‘s claim” when she is no longer pregnant. Id. While the plurality acknowledged that these obstacles are “not insurmountable,” it nevertheless concluded “that it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.” Id. at 117-118.
Since Wulff was decided, we and our sister circuits have routinely conferred third-party standing on abortion providers without engaging in a serious analysis of whether the plaintiffs have satisfied the closeness and hindrance requirements.3 But, we should not read Wulff so broadly to confer third-party standing virtually any time an abortion provider seeks to invalidate an abortion regulation. First, only a plurality of the Wulff Court, not a majority, held that the providers had third-party standing. But more critically, Wulff was a case in which the interests of the plaintiffs and the rights-holders were parallel, because both providers and patients had an interest in removing state funding limits on abortion. Wulff is not applicable in a case like this, where providers have a potential conflict of interest with many, if not
To be sure, Wulff and cases following that decision emphasize the doctor-patient relationship as the basis for abortion providers to have third-party standing to assert their patients’ constitutional rights. “But a close personal relationship” such as between a doctor and a patient “is neither necessary nor sufficient for third party standing.” Amato v. Wilentz, 952 F.2d 742, 751 (3d Cir. 1991). “Even a close relative will not be heard to raise positions contrary to the interests of the third party whose rights he or she claims to represent: the litigant would then hardly be a vigorous advocate of the third party‘s position.” Id. at 751-52. For example, in Gilmore v. Utah, 429 U.S. 1012 (1976), the mother of a man convicted of murder lacked third-party standing to seek a stay of her son‘s execution where he “himself knowingly and intelligently . . . waive[d]” his right to appeal. Amato, 952 F.2d at 752 (citing Gilmore, 420 U.S. at 1013).
Plaintiffs have the burden of establishing that they satisfied all of the requirements for Article III and prudential standing, including the closeness requirement for third-party standing. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (citing Fed. R. Civ. Pro. 56(e)) (holding that “the party invoking federal jurisdiction bears the burden of . . . ‘set[ting] forth’ by affidavit or other evidence ‘specific facts’ supporting their claim to standing); Amato, 952 F.2d at 750 (“[W]e will bear in mind that third party standing is exceptional: the burden is on the [plaintiff] to establish that it has third party standing, not on the defendant to rebut a presumption of third party standing.“). Plaintiffs failed to satisfy their burden. None of Plaintiffs’ patients, with whom they claim a close relationship, testified at trial. Indeed, Plaintiffs did not even invoke a specific patient‘s rights. Instead, Plaintiffs relied on their “relationship[s] with as yet unascertained” patients. Kowalski, 543 U.S. at 131. Such “hypothetical . . . relationship[s]” do not satisfy Kowalski‘s closeness requirement. See id.
What is more, the evidence presented at trial shows that although Plaintiffs have an interest in challenging
We know from studies of women who are undergoing abortion that they are conscious of what is happening to their fetus and that for many that‘s quite disturbing, and I think [the Jackson study] gives some not very surprising evidence that at least a substantial portion of women would prefer that something be done so that that fetus has died before it‘s dismembered.
(R. 104 at PageID 4309).
Even the study that Plaintiffs presented admitted that “several studies have reported a preference for feticide before evacuation.” (R. 106 at PageID 4448). Another study cited by Plaintiffs stated, “Majority of subjects, 73 percent, reported that, if given the choice, they preferred to receive digoxin before the D&E procedure.” (R. 106 at PageID 4497). Granted, these studies are only circumstantial evidence of the preferences of EMW‘s patients, but they were the only evidence of such preference presented at trial because, as noted, none of those patients testified.
The reasons why a woman would make the choice for fetal demise were demonstrated at trial. Dr. Anthony Levantino testified that in a D&E procedure, the “[f]etus dies from dismemberment from literally having arms and legs pulled off“; “[it] bleed[s] to death.” (R. 102 at PageID 3710). Another physician, Dr. David Berry, described a D&E procedure in which the doctor “pulled out a spine and some mangled ribs and the heart was actually still beating.” (R. 103 at PageID 3884). It is not difficult to understand why a majority of women would want the heart to stop beating before the fetus undergoes such an ordeal. As the Supreme Court has recognized, “No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life.” Gonzales v. Carhart, 550 U.S. 124, 158 (2007). This is because “[t]he fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn limb from limb.” Stenberg v. Carhart, 530 U.S. 914, 958-59 (2000) (Kennedy, J., dissenting) (citation omitted).5 Plaintiffs themselves acknowledged
These interests exist regardless of whether the unborn life feels any pain from the D&E procedure. These interests also are significant enough that a woman, even after hearing of the health risks involved, might opt for fetal demise simply to be assured that the fetus was not alive when its limbs were torn apart.6
Plaintiffs, however, have interests that do not align with those women who want fetal demise before D&E. For example, EMW‘s physicians do not want to receive the training needed to give the injections, even though the evidence at trial was that injections are not difficult to administer, training to perform the procedure is available, and such injections are within the reasonable medical scope of care.
The district court stated that digoxin injections can be “difficult, if not impossible, to administer,” Meier, 373 F. Supp. 3d at 838, but this statement was contradicted by the district court‘s factual finding that digoxin injections “are not terribly difficult to perform, as it can also be administered into the amniotic fluid.” Id. One study introduced into evidence concluded that “[i]n our clinical experience where patients do not receive intravenous sedation, we have found it easy to administer intrafetal injection[s],” (R. 102 at PageID 3758), and in another study presented at trial, even medical residents performed them, (R. 102 at PageID 3733-34).
Evidence was also presented that it is possible for EMW‘s doctors to receive training to perform digoxin injections. Dr. Franklin, one of EMW‘s doctors, acknowledged that digoxin injections are “very similar to amniocentesis, which I have done in the past,” and she admitted that she “technically . . . would be able to” obtain the training to perform the injections. (R. 107 at PageID 4716). Dr. Bergin, EMW‘s other doctor, similarly testified that “probably with proper training I could learn to do” digoxin injections. (Trial Ex. 420 at 117)
Finally, Dr. Davis—whom EMW called as an expert but did not hire as one of
Notwithstanding this evidence, and proof that even Plaintiffs’ own physician experts regularly inject digoxin and do so intrafetally, the Plaintiff-physicians have refused to obtain the necessary training to do the injections or to hire a physician like Dr. Davis who has that training. As noted, when questioned at oral argument as to what EMW‘s doctors would do if a woman asked for a digoxin injection before a D&E procedure, Plaintiffs’ counsel responded that her only option would be to travel out of state to have her abortion. And, indeed, there are practitioners in our circuit as close as southwestern Ohio, across the river from Kentucky, who perform digoxin injections. See Planned Parenthood Sw. Ohio Region v. Yost, 375 F. Supp. 3d 848, 857 (S.D. Ohio 2019) (listing doctors in southwestern Ohio who perform digoxin injections). But, given the evidence of the possibility of obtaining the necessary training to provide the injection, it is questionable why the EMW physicians insist that they cannot obtain this training or hire a doctor who does have that skill.
At the very least, the proof at trial reflects a potential conflict between the interests of the EMW physicians and some, perhaps the majority, of the patients that they seek to represent. All of the evidence presented at trial about patient preference circumstantially supports a finding that at least some—and potentially, most—of patients seen by Plaintiffs would favor the effect of
Because of this potential conflict of interest between Plaintiffs and many or
None of the cases the Majority cites dictate the opposite result. In City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 440 n.30 (1983), overruled on other grounds by Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833 (1992), the interests of the “minor patients” and abortion providers were largely parallel, as both wanted to abortions to proceed without involving parents in the decision. Danforth and Bolton are also inapposite, because there, the Supreme Court did not analyze the closeness and hindrance requirements as Kowalski requires. See Planned Parenthood of Cent. Missouri v. Danforth, 425 U.S. 52, 62 (1976); Doe v. Bolton, 410 U.S. 179, 188 (1973). Instead, the Court held, without further analysis, that the plaintiff-physicians had standing because the statutes in question subjected them to potential criminal prosecution. Danforth, 425 U.S. at 62; Bolton, 410 U.S. at 188. While that may speak to the plaintiffs’ standing to assert their own rights, it says nothing about the plaintiffs’ third-party standing to assert the patients’ rights. Just because one may have an injury-in-fact—such that she has standing to assert her own rights—does not mean she has third-party standing to assert the rights of others.
Kowalski instructs that plaintiffs must satisfy the closeness and hindrance requirements in order to assert the rights of others in court. Kowalski, 543 U.S. at 129-30. Because Plaintiffs have not shown that they satisfy the closeness requirement in this case, I would hold that they lack third-party standing to sue on behalf of their patients.
II.
Even if the Majority disagrees on the third-party standing analysis, they should nonetheless delay issuing an opinion in this case pending the Supreme Court‘s disposition of June Medical Services. The Supreme Court granted certiorari in that case on October 4, 2019, and argument was held on March 4, 2020. See June Medical Servs. L.L.C. v. Gee, 140 S. Ct. 35 (Mem.) (2019). One of the questions raised in June Medical Services is whether abortion providers have third-party standing to invoke the constitutional rights of potential patients in
We recently held in abeyance an appeal that raised an issue the U.S. Supreme Court granted certiorari to decide, pending the Supreme Court‘s disposition of that issue. See United States v. Lara, 679 F. App‘x 392, 395 (6th Cir. 2017) (“Because our decision turns on precedent for which the Supreme Court has recently granted certiorari, we hold Lara‘s challenge in abeyance pending resolution of that issue.“). Other circuits have done the same. Mandel v. Max-France, Inc., 704 F.2d 1205, 1206 (11th Cir. 1983) (appeal held in abeyance pending Supreme Court decision); Chowdhury v. Worldtel Bangladesh Holding, Ltd., 746 F.3d 42, 47 (2d Cir. 2014) (same); Golinski v. U.S. Office of Pers. Mgmt., 724 F.3d 1048, 1050 (9th Cir. 2013) (same); Does v. Williams, No. 01-7162, 2002 WL 1298752, at *1 (D.C. Cir. June 12, 2002) (per curiam) (same). Indeed, the Fifth Circuit held in abeyance a case with substantially similar facts to this case, pending the Supreme Court‘s disposition of June Medical Services. See Whole Woman‘s Health, et al. v. Ken Paxton, et al., No. 17-51060, Doc. No. 00514871170. The majority‘s decision to issue an opinion just before the Supreme Court potentially decides an outcome-determinative issue in our case seems to me an unwise use of judicial resources.
For these reasons, I must respectfully dissent.