EMW WOMEN‘S SURGICAL CENTER, P.S.C., оn behalf of itself, its staff, and its patients; ERNEST MARSHALL, M.D., on behalf of himself and his patients, Plaintiffs-Appellees; PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., Intervenor Plaintiff-Appellee, v. ERIC FRIEDLANDER, in his official capacity as Secretary of Kentucky‘s Cabinet for Health and Family Services; ANDREW G. BESHEAR, Governor of Kentucky, in his official capacity, Defendants-Appellants; DANIEL J. CAMERON, Attorney General of the Commonwealth of Kentucky, Intervenor.
No. 18-6161
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
October 16, 2020
20a0332p.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. 3:17-cv-00189—Gregory N. Stivers, District Judge.
Argued: August 8, 2019
Decided and Filed: October 16, 2020
Before: CLAY, LARSEN, and READLER, Circuit Judges.
COUNSEL
ARGUED: S. Chad Meredith, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for Appellants. Easha Anand, ORRICK, HERRINGTON & SUTCLIFFFE LLP, San Francisco, California, for Appellee Planned Parenthood of Indiana and Kentucky, Inc. Brigitte Amiri, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellees Women‘s Surgical Center, P.S.C. and Ernest Marshall, M.D. ON BRIEF: S. Chad Meredith, M. Stephen Pitt, Matthew F. Kuhn, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for Appellants. Easha Anand, Karen G. Johnson-McKewan, ORRICK, HERRINGTON & SUTCLIFFFE LLP, San Francisco, California; Carrie Y. Flaxman, PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, D.C.; Michael P. Abate, James E. McGhee, KAPLAN JOHNSON ABATE & BIRD LLP, Louisville, Kentucky; Lisa T. Simpson, Jennifer M. Keighley, ORRICK, HERRINGTON & SUTCLIFFE LLP, New York, New York; Melanie L. Bostwick, ORRICK, HERRINGTON & SUTCLIFFE LLP, Washington, D.C.; Robert L. Uriarte, ORRICK, HERRINGTON & SUTCLIFFE LLP, Menlo Park, California, for Appellee Planned Parenthood of Indiana and Kentucky, Inc. Brigitte Amiri, Elizabeth Watson, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Donald L. Cox, LYNCH, COX, GILMAN & GOODMAN, P.S.C., Louisville, Kentucky; Heather L. Gatnarek, ACLU OF KENTUCKY, Louisville, Kentucky; Amy D. Cubbage, ACKERSON & YANN, PLLC, Louisville, Kentucky, for Appellees Women‘s Surgical Center, P.S.C. and Ernest Marshall, M.D. Thomas M. Fisher, OFFICE OF THE INDIANA ATTORNEY GENERAL, Indianapolis, Indiana; Heidi Parry Stern, OFFICE OF THE NEVADA ATTORNEY GENERAL, Carson City, Nevada; La Tasha Buckner, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky; Kimberly A. Parker, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Amici Curiae.
LARSEN, J., delivered the opinion of the court in which READLER, J., joined. CLAY, J. (pp. 38-73), delivered a separate dissenting opinion.
LARSEN, Circuit Judge. Two decades ago, the Kentucky General Assembly enacted a law requiring abortion
Kentucky1 appeals the permanent injunction, arguing, among other things, that the plaintiffs failed to show that the law would in fact leave the Commonwealth without a licensed facility, because a facility unable to obtain the required agreements could still obtain a waiver. Kentucky also appeals the district court‘s order imposing monetary sanctions for failure to produce a designee for a properly noticed deposition. We conclude that the district court did not abuse its discretion by imposing monetary sanctions, so we AFFIRM in part. But because the district court erred in concluding that Kentucky would be left without an abortion facility, we REVERSE in part, VACATE the permanent injunction, and REMAND for further proceedings.
I.
A.
In 1998, the Kentucky General Assembly imposed new licensing requirements on abortion providers in response to concerns about the appalling, unsanitary conditions in some Kentucky abortion facilities. As part of the new licensing scheme, the General Assembly enacted
Prior to 2017, Kentucky‘s regulations implementing the transfer- and transport-agreement requirements for abortion facilities merely parroted the statute. See
The new regulation also authorized ninety-day waivers of the transfer- and transport-agreement requirements.
B.
For almost two decades, the transfer- and transport-agreement requirements posed no challenge for facilities seeking a license to perform abortions. According to the district court, compliance with
1.
Back in 2009, Planned Parenthood of Indiana and Kentucky had begun taking steps to provide abortions in the Louisville area. Toward that end, Planned Parenthood raised nearly $4 million to build a new Louisville facility, which was completed in 2015. Planned Parenthood also obtained a transfer agreement with the Obstetrics and Gynecology Department at University of Louisville Hospital and a transport agreement with Louisville Metro Emergency Medical Services. It then filed an application with CHFS for an abortion-facility license in November 2015.
Health facilities in Kentucky may obtain a license only after the licensing agency performs an unannounced, on-site inspection to determine that the facility complies with all applicable regulations.
Adopting acting Inspector Hold‘s interpretation of the regulations, CHFS sued Planned Parenthood in state court in February 2016, alleging that the abortions Planned Parenthood had performed in December 2015 and January 2016 without a license had been illegal. The Cabinet‘s complaint requested that Planned Parenthood be fined for the alleged misconduct.
In the meantime, Planned Parenthood sought compliant transfer and transport agreements in order to complete its license application. It entered into new agreements with University of Louisville Hospital, but the hospital rescinded them shortly after signing them. Planned Parenthood then tried unsuccessfully to obtain an agreement with other Louisville hospitals. It ultimately enterеd into a transfer agreement with Clark Memorial Hospital in Indiana, which is five miles away from Louisville, as well as with University of Kentucky Hospital in Lexington. CHFS denied Planned Parenthood‘s license application in June 2016, finding the submitted transfer agreements inadequate. To support its decision, the Cabinet cited the distance between Planned Parenthood‘s Louisville facility and the University of Kentucky Hospital in Lexington and the fact that Clark Memorial Hospital was not a Kentucky-licensed hospital.
Later that month, the Jefferson Circuit Court dismissed the Cabinet‘s lawsuit against Planned Parenthood for failure to state a claim. Commonwealth v. Planned Parenthood of Ind. & Ky., No. 16-CI-0802, slip op. at 4 (Jefferson Cir. Ct. June 30, 2016). The Kentucky Court of Appeals subsequently reversed the dismissal, holding that the Cabinet‘s “allegations are sufficient to state a claim upon which relief can be granted.” Commonwealth v. Planned Parenthood of Ind. & Ky., Inc., No. 2016-CA-001125-MR, 2017 WL 6398298, at *2 (Ky. Ct. App. Dec. 15, 2017). The suit remained ongoing throughout the proceedings below in this case.
2.
In addition to reviewing Planned Parenthood‘s new agreements, CHFS also took a hard look at the existing transfer and transport agreements of EMW Women‘s Surgical Center, P.S.C.—Kentucky‘s only licensed abortion facility at the time. Owned by Ernest Marshall, M.D., EMW‘s Louisville facility has performed abortions since the 1980s. Prior to 2020, the Louisville facility performed nearly all abortions in the Commonwealth. Dr. Marshall and all other physicians on staff at EMW maintain admitting privileges at local hospitals. And prior to 2017, EMW maintained a transfer agreement with University of Louisville Hospital and a transport agreement with Mercy Ambulance Service.
EMW had renewed its abortion facility license without issue in early 2016. The
C.
Unable to secure a transfer agreement that would satisfy the Cabinet‘s seemingly new and more rigorous interpretation of the transfer-agreement regulation, EMW and Dr. Marshall sued Vickie Yates Brown Glisson, then the Secretary of CHFS, in her official capacity in the United States District Court for the Western District of Kentucky. They alleged that (1) the enforcement of the transfer- and transport-agreement requirements violated substantive due process by “impos[ing] a substantial obstacle on women seeking abortions,” (2) revoking EMW‘s license would violate procedural due process, (3) Kentucky had unconstitutionally “delegate[d] standardless and unreviewable authority to private parties,” and (4) Kentucky‘s arbitrary enforcement of the requirements constituted First Amendment retaliation. EMW and Dr. Marshall asked the district court to declare Kentucky‘s requirements unconstitutional and to enjoin CHFS from enforcing those requirements.
Two days after the plaintiffs filed suit, the district court granted an ex parte motion for a temporary restraining order prohibiting Kentucky from enforcing
In June 2017, Planned Parenthood intervened in the lawsuit. Besides suing the Secretary of CHFS, Planned Parenthood also named then-Governor Bevin as a defendant in his official capacity. Planned Parenthood alleged that (1) Kentucky‘s transfer- and transport-agreement requirements had the purpose and effect of imposing an undue burden on women seeking an abortion, (2) the requirements violated the Equal Protection Clause by discriminating against abortion facilities, (3) CHFS‘s denial of Planned Parenthood‘s license application violated procedural due process, (4) Kentucky‘s requirements constituted an unconstitutional delegation of authority to private parties, (5) Kentucky‘s failure to credit Planned Parenthood‘s agreement with an Indiana hospital violated the Full Faith and Credit Clause, and (6) Kentucky‘s requirements were void for vagueness. Like EMW, Planned Parenthood asked the district court to declare Kentucky‘s requirements unconstitutional and to enjoin their further enforcement.
After a three-day bench trial, the district court found “that the scant medical benefits from transfer and transport agreements are far outweighed by the burden” they “impose[] on Kentucky women seeking abortions.” EMW Women‘s Surgical Ctr., P.S.C. v. Glisson, No. 3:17-CV-00189-GNS, 2018 WL 6444391, at *1 (W.D. Ky. Sept. 28, 2018). The court therefore concluded “that the challenged laws impermissibly ‘place[] a substantial obstacle in the path of women seeking a previability abortion [and] constitute[] an undue burden on abortion access.‘” Id. (alterations in original) (quoting Whole Woman‘s Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016)). On this basis, the district court held that both
After granting judgment for the plaintiffs on their substantive due process claims, the district court dismissed with prejudice EMW and Dr. Marshall‘s procedural due process and First Amendment retaliation claims along with Planned Parenthood‘s procedural due process, full faith and credit, and vagueness claims. Id. The district court dismissed the plaintiffs’ other claims as moot.2 Id. Kentucky timely filed a notice of appeal.
In addition to the parties, several amici submitted briefs on appeal. Most notably, Andrew Beshear, then the Attorney General of Kentucky, filed a brief in support of the plaintiffs, arguing that the district court should be affirmed because
D.
After Kentucky filed its notice of appeal, Planned Parenthood again applied for an abortion-facility license in July 2019. CHFS denied the application in August 2019 on the ground that Planned Parenthood had illegally performed abortions without a license in December 2015 and January 2016. Kentucky filed notice of this denial with the district court.
In December 2019, Attorney General Andrew Beshear became the new Governor of Kentucky, replacing Matthew Bevin. That same month, Governor Beshear appointed Eric Friedlander as Secretary of CHFS. Shortly thereafter, the Cabinet reversed its position on the legality of Planned Parenthood‘s December 2015 and January 2016 abortions. In January 2020, the Cabinet voluntarily dismissed its lawsuit against Planned Parenthood because it had “determined that there was not a ‘substantial failure to comply’ with the provisions of
II.
Kentucky challenges the district court‘s ruling that
A.
1.
“In determining whether a district court has properly granted a permanent injunction, we review factual findings for clear error, legal conclusions de novo, and the scope of injunctive relief for abuse of discretion.” Lee v. City of Columbus, 636 F.3d 245, 249 (6th Cir. 2011) (quoting Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 423 F.3d 539, 546 (6th Cir. 2005)). A finding of fact is clearly erroneous when, after reviewing the full record, “we are ‘left with the definite and firm conviction that a mistake has been committed.‘” June Med. Servs., 140 S. Ct. at 2141 (Roberts, C.J., concurring in the judgment) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); accord United States v. Ramamoorthy, 949 F.3d 955, 964 (6th Cir. 2020). Although this standard “is deferential, it is not nugatory,” and we “may reverse a lower [court‘s] factual finding for clear error ... even though the record
Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); see Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (applying this standard in the abortion context). To obtain a permanent injunction, the plaintiffs must “establish that” their patients have “suffered a constitutional violation and will suffer ‘continuing irreparable injury’ for which there is no adequate remedy at law.” Women‘s Med. Pro. 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)). It is not enough for plaintiffs to show a “possibility” of a constitutional violation or even a “likelihood” of one; to obtain permanent injunctive relief, the plaintiffs must make a clear showing that the challenged provisions “actual[ly]” violate their patients’ constitutional rights. See Winter, 555 U.S. at 21, 32 (quoting Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987)). If they succeed in demonstrating an actual constitutional violation and continuing irreparable injury, the plaintiffs must also show “that the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
2.
The constitutionality of laws regulating abortion is governed by the “undue burden” test set forth in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 869-79 (1992) (joint opinion of O‘Connor, Kennedy, and Souter, JJ.). See Stenberg v. Carhart, 530 U.S. 914, 921 (2000). Under that standard, a law rеgulating abortion is invalid if it “imposes an undue burden on a woman‘s ability” to choose to have an abortion before viability. Casey, 505 U.S. at 874 (joint opinion). “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Id. at 877. Conversely, a law which “serves a valid purpose” without imposing a substantial obstacle is constitutional, even if it “has the incidental effect of making it more difficult or more expensive to procure an abortion.” Id. at 874.
Twenty-four years after Casey, the Supreme Court stated in Whole Woman‘s Health v. Hellerstedt that the undue burden test “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” 136 S. Ct. at 2309; see also id. at 2310 (stating that district court properly “weighed the asserted benefits” of the regulations at issue “against the burdens“). Relying on this language, the district court in the present case framed its inquiry not as whether
While this case was pending on appeal, the Supreme Court again considered the meaning of the undue burden test in June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103 (2020). There, a fractured majority of the Court invalidated a Louisiana statute requiring abortion doctors to have admitting privileges at a hospital within thirty miles of where they perform abortions. Id. at 2112, 2133 (plurality opinion); id. at 2142 (Roberts, C.J., concurring in the judgment). The plurality opinion, joined by four Justices, took a balancing approach, determining that the undue burden “standard requires courts independently to review the legislative findings upon which an abortion-related statute rests and to weigh the law‘s ‘asserted benefits against the burdens’ it imposes on abortion access.” Id. at 2112 (plurality opinion) (quoting Whole Woman‘s Health, 136 S. Ct. at 2310). The district court in that case had found that the Louisiana law would not advance the state‘s interest in women‘s health and that many women seeking an abortion in Louisiana would be unable to obtain one if the law went into effect. Id. Because the district court‘s findings were not clearly erroneous, the plurality upheld the district court‘s determination “that the balance tipped against the statute‘s constitutionality.” Id. at 2120.
Writing for himself, Chief Justice Roberts agreed with the plurality that the district court‘s findings as to the law‘s burdens were not clearly erroneous. Id. at 2139-41 (Roberts, C.J., concurring in the judgment). “Because Louisiana‘s admitting privileges requirement would restrict women‘s access to abortion to the same degree as Texas‘s law” invalidated in Whole Woman‘s Health, the Chief Justice concluded that the Louisiana law could not “stand under [the Court‘s] precedent.” Id. at 2139. At the same time, however, he parted ways with the plurality on what that precedent meant. According to the Chief Justice, “[n]othing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts.” Id. at 2136. Instead, “the ‘traditional rule’ that ‘state and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty’ is ‘consistent with Casey.‘” Id. (alteration in original) (quoting Gonzales v. Carhart, 550 U.S. 124, 163 (2007)). And, because the Court in Whole Woman‘s Health said “that it was applying the undue burden standard of Casey” and “[n]othing more,” Chief Justice Roberts explained that he read Whole Woman‘s Health, like Casey, as “requiring a substantial obstacle before striking down an abortion regulation.” Id. at 2138-39. Meanwhile, he read “the discussion of benefits in Whole Woman‘s Health []as not necessary to its holding.” Id. at 2139 n.3. In other words, the Chief Justice explained, ”Whole Woman‘s Health held that Texas‘s admitting privileges requirement placed ‘a substantial obstacle in the path of women seeking a previability abortion,’ independent of its discussion of benefits.” Id. at 2139 (quoting Whole Woman‘s Health, 136 S. Ct. at 2300).
According to the Chief Justice, an abortion-related law‘s asserted “benefits” are relevant only “in considering the threshold requirement that the State have a ‘legitimate purpose’ and that the law be ‘reasonably related to that goal.‘” Id. at 2138 (quoting Casey, 505 U.S. at 878, 882 (joint opinion)). “So long as that showing is made, the only question for a court is whether a law has the ‘effect of placing a substantial obstacle in the path
3.
Because no opinion in June Medical Services garnered a majority, we, as a lower court, have the “vexing task” of deciding which opinion controls. Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 133 (6th Cir. 1994). In this situation, the Supreme Court has instructed us to treat the “position taken by [the Justice or Justices] who concurred in the judgment[] on the narrowest grounds” as “the holding of the Court.” Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). We therefore “must follow the reasoning of the concurring opinion with the narrowest line of reasoning” that is “capable of supporting the Court‘s judgment in that case.” Grutter v. Bollinger, 288 F.3d 732, 741 n.6 (6th Cir. 2002) (en banc), aff‘d, 539 U.S. 306 (2003). “[T]he rationales supporting the Court‘s judgment need not overlap on essential points in order to provide a holding that binds lower courts. Indeed, if the Justices agreed on essential points, the Marks analysis would be unnecessary.” Id. at 740. Instead, we are to look to the “results” that the rationales of the concurring opinions “will ... produce” when applied in future cases. United States v. Kratt, 579 F.3d 558, 562-63 (6th Cir. 2009) (quoting Triplett Grille, 40 F.3d at 134); see Grutter, 288 F.3d at 741.
In a fractured decision where two opinions concur in the judgment, an opinion will be the narrowest under Marks if the instances in which it would reach the same result in future cases form “a logical subset” of the instances in which the other opinion would reach the same result. Kratt, 579 F.3d at 562 (quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc)). This is so because in that subset of cases, a majority of the Court which issued the fractured decision would necessarily agree with the result. See Triplett Grille, 40 F.3d at 134. In a fractured decision upholding the constitutionality of a law, that means the narrowest opinion is the one whose rationale would uphold the fewest laws going forward.5 For example, in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), which upheld a state medical school‘s policy of considering race in admissions, Justice Brennan‘s four-Justice opinion concluded that “the more permissive intermediate scrutiny standard would apply” to the consideration of race in admissions, whereas Justice Powell concluded that “strict scrutiny would apply.” Grutter, 288 F.3d at 741. We held that “[b]ecause the set of constitutionally permissible racial classifications under intermediate scrutiny by definition includes those classifications constitutionally permissible under strict scrutiny, Justice Powell‘s rationale would permit the most limited consideration of race; therefore, it is Bakke‘s narrowest rationale.” Id.
Conversely, when a fractured decision strikes down a law as unconstitutional, the narrowest opinion is the one
Turning now to June Medical Services, because the Court invalidated the Louisiana statute at issue, the narrowest opinion concurring in the judgment is the one that would strike down the fewest laws regulating abortion in future cases. The Chief Justice read the rule laid down in the Court‘s precedents to say that laws not “reasonably related” to a “legitimate purpose” or that impose a “substantial obstacle” are unconstitutional. June Med. Servs., 140 S. Ct. at 2138 (Roberts, C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 878, 882 (joint opinion)). All other laws regulating abortion, however, “are valid.” Id. at 2138 n.2. Like the Chief Justice, the plurality would invalidate any law with “the effect of placing a substantial obstacle in the path of a woman‘s choice” to obtain a previability abortion. Id. at 2120 (plurality opinion) (quoting Whole Woman‘s Health, 136 S. Ct. at 2309). But the plurality would also invalidate any law where “the balance” between the law‘s benefits and its burdens “tipped against the statute‘s constitutionality.” Id. Presumably, this would include some laws that are reasonably related to a legitimate purpose and that do not impose a substantial obstacle, so long as the law‘s burdens sufficiently outweighed its benefits.7
Under the Chief Justice‘s controlling opinion, a law regulating abortion is valid if it satisfies two requirements. First, it must be “reasonably related” to a legitimate state interest. June Med. Servs., 140 S. Ct. at 2135 (Roberts, C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 878 (joint opinion)). Because we are to apply “the ‘traditional rule‘” of deference to the state‘s “medical and scientific” judgments, id. at 2136 (quoting Gonzales, 550 U.S. at 163), this requirement is met whenever a state has “a rational basis to ... use its regulatory power,” Gonzales, 550 U.S. at 158. Second, the law must not “ha[ve] the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.‘” June Med. Servs., 140 S. Ct. at 2138 (Roberts, C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 877 (joint opinion)). Under the law of our circuit, a woman faces a substantial obstacle when she is “deterred from procuring an abortion as surely as if the [government] has outlawed abortion in all cases.” Cincinnati Women‘s Servs., Inc. v. Taft, 468 F.3d 361, 370 (6th Cir. 2006) (alteration in original) (quoting Casey, 505 U.S. at 894). Even if a law regulating abortion is unconstitutional in some applications, the law remains facially valid so long as it does not impose an undue burden “in a large fraction of the cases in which [the regulation] is relevant.” Casey, 505 U.S. at 895; accord Cincinnati Women‘s Servs., 468 F.3d at 369.
4.
The dissent faults us for treating “the entirety of Chief Justice Roberts’ concurring opinion” as authoritative and argues that we should instead look only to the reasoning that was “necessary to his vote to concur.” Dissenting Op. at 46-47. If this were the Marks rule, applying Marks would be pointless. The way we distinguish the “narrower” concurring opinion in a fractured decision from the “broader” one is by identifying differences in their reasoning. But because the narrower and broader opinions both concur in the judgment, the narrower opinion‘s points of disagreement with the broader one—i.e. the very feature of the opinion that makes it “narrower“—are by definition not necessary to its ultimate conclusion that the judgment is correct. Thus, in any case where it matters which opinion has the narrower view, the dissent‘s approach would have us set aside the narrower opinion‘s points of disagreement as dictum, and the application of Marks would fail to provide a governing rule of law. Yet “[t]he principal objective of this Marks rule ... requires that, whenever possible, there be a single legal standard for the lower courts to apply in similar cases.” Triplett Grille, 40 F.3d at 133 (citation omitted). It comes as no surprise, then, that binding precedent forecloses the dissent‘s approach.
Start with Marks itself. The majority in Memoirs, the decision analyzed in Marks, split on the states’ power to treat written works with no redeeming social value as suppressible obscenity. The plurality took a more permissive approach, concluding that states may suppress a book if “(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” Memoirs, 383 U.S. at 418 (plurality opinion). Justices Black and Douglas adopted a stricter approach, concluding that “the First Amendment provides an absolute shield against governmental action aimed at suppressing obscenity.” Marks, 430 U.S. at 193. But because the book at issue did have redeeming social value, see Memoirs, 383 U.S. at 419 (plurality opinion), the plurality agreed with Justices Black and Douglas that the work was not constitutionally suppressible, and the plurality‘s view on the status of works with no redeeming social value was not necessary to their votes to concur.
Under the dissent‘s logic, the “narrowest reasoning supporting the judgment” in Memoirs would be “simply and only” that
The Supreme Court, however, rejected that view in Marks. According to the Court, “[t]he view of the Memoirs plurality ... constituted the holding of the Court and provided the governing standards” for what constituted suppressible obscenity, meaning that states could suppress obscene materials if “the prosecution carried the burden of proving that they were ‘utterly without redeeming social value,’ and otherwise satisfied the stringent Memoirs requirements.” Marks, 430 U.S. at 194 (emphasis added); see also id. at 194 n.8 (citing with approval United States v. Groner, 479 F.2d 577, 588-89 (5th Cir. 1973) (en banc) (Clark, J., concurring), and Huffman v. United States, 470 F.2d 386, 394 (D.C. Cir. 1971), which affirmed obscenity convictions because the government had established all three requirements set out in the Memoirs plurality). Marks itself therefore establishes that the entirety of the test articulated in the narrowest opinion concurring in the judgment—and not merely those conclusions strictly necessary to its view that the judgment is correct—is “the controlling opinion” in that case. 430 U.S. at 193.
The dissent‘s approach also contravenes our own caselaw. In Grutter, we held that “this court must follow the reasoning of the concurring opinion [in Bakke] with the narrowest line of reasoning on the issue of why the California Supreme Court could not permanently enjoin [the University of California at] Davis from considering race.” 288 F.3d at 741 n.6 (emphasis added). Accordingly, we concluded that “this court is bound by Justice Powell‘s Bakke opinion.” Id. at 742; see also id. at 758 (Clay, J., concurring) (“Justice Powell‘s opinion in Bakke is controlling.“). Although the only admissions program before the Court in Bakke was U.C. Davis‘s, Justice Powell, writing only for himself, discussed at length Harvard College‘s consideration of race in admissions and concluded that it survived strict scrutiny under the Equal Protection Clause. Bakke, 438 U.S. at 316-18 (opinion of Powell, J.).
This was, of course, pure dictum. But because it was “our view that whether the [Michigan] Law School‘s admissions policy passes constitutional muster turns on Justice Powell‘s opinion,” we held that “an admissions policy modeled on the Harvard plan, where race and ethnicity are considered a ‘plus,’ does not offend the Equal Protection Clause.” Grutter, 288 F.3d at 745-46. Because we thought the University of Michigan Law School‘s use of race in admissions was “virtually indistinguishable from the Harvard plan Justice Powell approved in Bakke,” we upheld it as constitutional. Id. at 747; see also id. at 758 (Clay, J., concurring) (“I concur in Chief Judge Martin‘s majority opinion, finding it correct and insightful in all respects.“). The lead dissent in Grutter contended that it was inappropriate to rely on Justice Powell‘s endorsement of the Harvard plan because that discussion was “non-binding dicta.” Id. at 786 (Boggs, J., dissenting). The majority squarely rejected that argument, holding that the endorsement of the Harvard plan provided the “appropriate basis for our opinion,” “[e]ven if this portion of
In short, the narrowest concurring opinion does not merely state the Court‘s holding; it “is the Court‘s opinion” in that case, entitled to as much authority and respect as any other opinion of the Supreme Court. J.L. Spoons, Inc. v. Dragani, 538 F.3d 379, 386 n.2 (6th Cir. 2008); see United States v. Duvall, 740 F.3d 604, 611 (D.C. Cir. 2013) (Kavanaugh, J., concurring in the denial of rehearing en banc) (“The binding opinion from a splintered decision is as authoritative for lower courts as a nine-Justice opinion. ... This is true even if only one Justice issues the binding opinion.” (citation omitted)). We therefore adhere to both the holding of the narrowest concurring opinion and its well-considered dictum setting forth a general standard for how to apply the doctrine at issue. See ACLU of Ky. v. McCreary County, 607 F.3d 439, 447-48 (6th Cir. 2010) (Clay, J.) (“[T]his court considers itself bound by Supreme Court
dicta almost as firmly as by the Court‘s outright holdings, particularly when the dicta is recent and not enfeebled by later statements.” (citation omitted)). Because the Chief Justice‘s controlling opinion in June Medical Services sets forth, in a considered opinion, a general standard for how to apply the undue burden test, we must treat that standard as authoritative.
The dissent also invokes Agostini v. Felton, 521 U.S. 203, 237 (1997), which says that a lower court may not hold that “more recent cases” of the Supreme Court “have, by implication, overruled an earlier precedent.” Id. Instead, “[i]f a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions,” we “should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Id. (first alteration in original) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)). But as the dissent rightly acknowledges, “Chief Justice Roberts emphasized from the start that he was not considering the validity of Whole Woman‘s Health.” Dissenting Op. at 47. By its own terms, the Chief Justice‘s opinion interpreted and applied Whole Woman‘s Health and did not overrule it. As a lower court, we are bound by the Chief Justice‘s interpretation of Whole Woman‘s Health, regardless of whether we would adopt that interpretation as a matter of first impression.
To see this, we need look no further than Casey itself. In that case, only thrеe Justices embraced the undue burden standard. See Casey, 505 U.S. at 874–79 (joint opinion). Although those three Justices concluded that “the essential holding of Roe [v. Wade, 410 U.S. 113 (1973),] should be reaffirmed,” Casey, 505 U.S. at 871 (joint opinion), they nevertheless “reject[ed] the trimester framework” established by Roe as not “part of the [decision‘s] essential holding.” Id. at 873. A lower court applying Roe as a matter of first impression would certainly not have felt free to reject the trimester framework, see, e.g., Wolfe v. Schroering, 541 F.2d 523, 525 (6th Cir. 1976) (applying the trimester framework in the aftermath of Roe), and the other six Justices in Casey rejected the joint opinion‘s reading of Roe, see Casey, 505 U.S. at 914 (Stevens, J., concurring in part and dissenting in part); id. at 930 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part); id. at 954 (Rehnquist, C.J., concurring in the
But it does not matter whether any lower court judge might believe, to paraphrase the dissent, that the three Justices’ “conclusion [about Roe] is contradicted by the clear language of that case, as well as by [their] fellow justices in [Casey].” See Dissenting Op. at 47 n.4 (citation omitted). Because the Casey joint opinion controls under Marks, we are bound by its interpretation of Roe. See Women‘s Med. Pro. Corp. v. Voinovich, 130 F.3d 187, 192 (6th Cir. 1997) (holding that “a plurality of the Casey Court discarded the trimester framework of Roe”). Likewise, because the Chief Justice‘s opinion in June Medical Services controls under Marks, we are bound by its interpretation of Whole Woman‘s Health. And if Casey‘s joint opinion did not implicitly overrule Roe, neither did the Chief Justice‘s opinion implicitly overrule Whole Woman‘s Health.
For similar reasons, we are not swayed by the dissent‘s appeal to the plurality opinion in Ramos v. Louisiana, 140 S. Ct. 1390 (2020). Ramos is inapposite because, again, we do not rely on “a single Justice‘s opinion” that purports to “overrule prior precedents.” Id. at 1403 (plurality opinion). And, in any event, the three-Justice plurality in Ramos is itself not controlling under Marks.10 The Ramos plurality‘s statement therefore does not govern.
The Chief Justice‘s opinion in June Medical Services concurs in the judgment on the narrowest grounds, so it is the “controlling opinion” from that decision. Marks, 430 U.S. at 193. We must apply its reasoning as we would the reasoning of any other controlling Supreme Court opinion. Duvall, 740 F.3d at 611 (Kavanaugh, J., concurring in the denial of rehearing en banc).
5.
Because the controlling opinion in June Medical Services clarified that the undue burden standard is not a balancing test, the district court erred in attempting to weigh the benefits of
B.
We begin with the threshold requirement that
The district court‘s independent weighing of the challenged provisions’ asserted benefits does not comport with the “‘traditional rule’ that ‘state and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty.’” June Med. Servs., 140 S. Ct. at 2136 (Roberts, C.J., concurring in the judgment) (alteration in original) (quoting Gonzales, 550 U.S. at 163). The Chief Justice‘s opinion makes clear that it is not the role of courts to attempt to “objectively assign weight” to “the State‘s interests” in passing regulations on abortion, including its interest in “the health of the woman.” Id. “Pretending that we could pull that off would require us to act as legislators, not judges.” Id.
For the purposes of this threshold inquiry, it matters not at all whether the district court or we believe the requirements of
The Chief Justice explained that the Supreme Court has consistently applied this deferential standard in determining whether abortion regulations are reasonably related to a legitimate state interest. See June Med. Servs., 140 S. Ct. at 2136–38 (Roberts, C.J., concurring in the judgment). Casey itself held that a state could require that “a physician, as opposed to a qualified assistant, provide information relevant to a woman‘s informed consent.” Casey, 505 U.S. at 884 (joint opinion). It
Applying the same standard here, we cannot say that laws requiring abortion facilities to have transfer and transport agreements with a local hospital are not reasonably related to a legitimate government end. The district court found that it is sometimes necessary to transfer a patient from an abortion facility to an emergency room because of an abortion-related complication. See 2018 WL 6444391, at *11. There is thus a problem at hand for the Kentucky legislature to correct. Lee Optical, 348 U.S. at 488. And one could easily see how requiring abortion facilities to have transfer and transport agreements with a local hospital is a “rational way to correct” that problem. Id. Transfer and transport agreements determine in advance what duties each party has in an emergency and how the patient‘s information will be transmitted from the abortion facility to the hospital. It is reasonable to think that fixing these details ahead of time streamlines the treatment of a patient in an emergency, thereby leading to better patient health outcomes.
Indeed, such is the law of our circuit. In Baird, we considered the constitutionality of an Ohio law requiring abortion facilities to “have a written transfer agreement with a local hospital.” 438 F.3d at 599. As in this case, the plaintiffs in Baird introduced evidence that their “patients rarely need to be hospitalized,” testimony from a physician that “he was not personally aware of a single instance in which the presence of a transfer agreement made a difference in the care a patient received,” and expert testimony that “written transfer agreements do not ensure optimum patient care.” Id. at 601. Nevertheless, without delving into the record evidence, we held that Ohio‘s law “serve[s] a valid purpose,” because it “ensure[s]” that each abortion facility “meets certain minimum standards.” Id. at 607. For the same reason,
C.
Having determined that
The district court held that
to preliminarily enjoin the challenged licensing requirements, EMW and Planned Parenthood never had an opportunity to apply for a waiver. To prevail, therefore, the plaintiffs must make a clear showing that their facilities would close if the waiver provision were given an opportunity to take effect and they “attempted in good faith” to obtain waivers. June Med. Servs., 140 S. Ct. at 2141 (Roberts, C.J., concurring in the judgment) (citation omitted).13 A finding of good faith is “necessary to ensure that the [facilities‘] inability
The district court dismissed the effect of the waiver provision in just two sentences, finding that it would be “exceedingly difficult” for EMW and Planned Parenthood‘s facilities “to survive” if they had to apply for a waiver every ninety days. 2018 WL 6444391, at *19. This was so, the district court found, because they “would not likely be able to hire and keep staff without knowing whether they could continue operating beyond ninety days, and no prudent organization would risk millions of dollars investing in [an abortion] facility whose temporary license would be based on the administrative whim of the Inspector General.” Id.
1.
The district court‘s findings of fact rest in part on an error of law. The district court presumed that because the issuance of waivers is discretionary, it is a matter of “administrative whim.” But “‘[d]iscretion is not whim,” Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005), and a discretionary decision is not one unconstrained by law or objective standards, see Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1931–32 (2016) (“‘[I]n a system of laws discretion is rarely without limits,’ even when the statute ‘does not specify any limits upon the [agency‘s] discretion.‘” (first alteration in original) (citation omitted)). In determining whether to grant a waiver to an abortion facility, the Inspector General must consider (1) whether the facility is making “a good faith effort to obtain a transfer or transport agreement,” (2) whether the facility “can provide the same level of patient care and safety via alternative health services during any extension period,” and (3) the facility‘s history of regulatory compliance.
Absent “clear evidence to the contrary,” we must “presume that [public officials] have properly discharged their official duties.” United States v. Martin, 438 F.3d 621, 634 (6th Cir. 2006) (alteration in original) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926)); see also U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001) (“[A] presumption of regularity attaches to the actions of Government agencies.”); Jones v. FBI, 41 F.3d 238, 242 (6th Cir. 1994) (“[A]gency actions . . . are normally entitled to a presumption of good faith.”); Comprehensive Health of Planned Parenthood Great Plains v. Hawley, 903 F.3d 750, 756 (8th Cir. 2018) (holding that courts must presume state officials will act in good faith when state law grants them discretion to waive regulations on abortion facilities). The district court made no findings of fact as to whether the Inspector General would act in good faith; instead it assumed that the Inspector General would act based on “whim.” But we must presume that the Inspector General will consider waiver applications in good faith and will not act “simply to make it more difficult for [women] to obtain an abortion.” Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456, 461 (6th Cir. 1999).15
“Because the record is practically devoid of any information on the mechanics of the Waiver Provision,” and because we must presume good faith, we simply have “no way” of determining how the Inspector General will act on waiver applications. Hawley, 903 F.3d at 756. We cannot rule out the possibility that he will grant EMW and Planned Parenthood quarterly waivers as a matter of course. And because the plaintiffs bear the burden of making a “clear showing” of an “actual” constitutional violation, Winter, 555 U.S. at 22, 32, and of a “continuing irreparable injury,” Baird, 438 F.3d at 602 (citation omitted), they must establish that both EMW and Planned Parenthood would be unable to operate on the basis of waivers even if they could reasonably expect to obtain a new waiver every ninety days.16
2.
Turning now to the facts, no evidence supports the district court‘s finding that Planned Parenthood would be unable to operate on the basis of quarterly waivers. Planned Parenthood‘s only evidence at trial
THE COURT: All right. I want to make sure I understand this. The money has been raised. The facility has been built. It‘s been equipped. And at this point not only is the facility operational, but you-all did actually perform abortion services there prior to getting the letter on January 28th?
THE WITNESS [Greene]: That‘s right.
Id. at PageID 4305. When asked on cross-examination why Planned Parenthood would “not ask for a time extension [i.e. a ninety-day waiver] and see what happens,” Greene responded, “Maybe we will.” Id. at PageID 4321.
None of this testimony supports the finding that Planned Parenthood would be unable to operate if it applied for quarterly waivers while seeking transfer and transport agreements. If anything, Greene‘s testimony on cross-examination suggests that Planned Parenthood itself had not ruled out the possibility of operating on that basis. Accordingly, the district court‘s finding as to Planned Parenthood was clearly erroneous. See United States v. Mahaffey, 53 F.3d 128, 133 (6th Cir. 1995) (holding that a finding that “totally lacks an evidentiary basis in the record . . . is clearly erroneous”). Because the plaintiffs have failed to show that
Moreover, even if we disregarded Planned Parenthood, the district court‘s finding that EMW would not be able to operate by applying for quarterly waivers is clearly erroneous as well. The district court relied for its finding on the trial testimony of Dr. Marshall. When asked whether EMW would be able to operate by applying for a waiver every ninety days, Dr. Marshall testified:
Well, I think the problem is that your license is at stake every 90 days, so you‘re at the whim of being closed every 90 days. There‘s no security that you can even—you can‘t offer a person a job and say, “Well, I have you a job for 90 days,
but I don‘t know if I‘m going to have you a job past that.” We wouldn‘t be able to hire any staff.
Tr. Trans., Vol. 1B, R. 112, PageID 4121. In response to subsequent questioning, Dr. Marshall acknowledged that his answer contrаdicted his deposition testimony. He continued:
. . . I‘ve thought about what you asked me a lot, and my answer has changed since then. . . . Because at that time I was just thinking about the technicality of it, not the ramifications. And once I thought about the ramifications, then it would be burdensome.
Dr. Marshall‘s testimony rests on the assumption that EMW would be “at the whim of being closed every 90 days” if it relied on quarterly waivers. Accepted as true, this establishes only that EMW would be unable to retain staff if the Inspector General‘s decision on whether to grant a waiver were arbitrary. As we explained above, however, as a matter of law we may not make that assumption.
And even if we were to accept the district court‘s legally erroneous assumption, Dr. Marshall‘s testimony would still be too conclusory to make a clear showing that a “good faith” (and not merely “halfhearted”) attempt to operate on quarterly waivers would be futile. See June Med. Servs., 140 S. Ct. at 2141 (Roberts, C.J., concurring in the judgment). The substantial-obstacle determination in June Medical Services turned on whether the district court had clearly erred in finding that three Louisiana abortion doctors who were unable to obtain admitting privileges at a local hospital had made good-faith efforts to do so. See id. at 2124–28 (plurality opinion); id. at 2141 (Roberts, C.J., concurring in the judgment) (endorsing the plurality‘s discussion of the physicians’ efforts to obtain admitting privileges). All three made some attempt to comply. From the plurality‘s close examination of the record to determine what each doctor did and did not do to obtain admitting privileges, we can see that while “[g]ood faith does not require an exercise in futility,” id. at 2128 (plurality opinion), a finding of futility requires more than an abortion provider‘s subjective belief that efforts at compliance would be futile. The provider‘s belief must be “reasonabl[e],” and the reasonableness of the belief must be established by record evidence. Id. at 2125.
Here, the record evinces only Dr. Marshall‘s subjective belief that it would be impractical to operate on the basis of quarterly waivers. No evidence in the record speaks to whether that belief is objectively reasonable. There is no indication, for instance, that Dr. Marshall asked any current employees whether they would be willing to remain on staff if EMW were to operate on the basis of waivers. Nor is there any evidence that he sought replacements for any critical staff members he would be likely to lose, if he would be likely to lose any. Nor does the record contain any other specific facts that would give rise to the inference that it would be pointless to attempt to retain or hire staff. Without relevant evidence in the record, we simply cannot know whether an abortion provider making a wholehearted effort to comply with the waiver provision would reasonably conclude that he would be unable to maintain a staff.18
As noted above, the question in June Medical Services was whether three Louisiana abortion doctors had made good-faith efforts to obtain hospital admitting privileges. The district court, “after monitoring the doctors’ efforts for a year and a half,” determined that they had. Id. at 2124 (plurality opiniоn). The Supreme Court plurality, and Chief Justice Roberts, agreed. Id.; id. at 2141 (Roberts, C.J., concurring in the judgment). But not before devoting many pages of the U.S. Reports to a doctor-by-doctor, and hospital-by-hospital, analysis of the record evidence supporting each physician‘s claim of futility.19 Id. at 2124–28 (plurality opinion).
We take the plurality‘s painstaking review of the evidence supporting the district court‘s determination that each doctor acted in good faith as our model. From that example, we learn that good-faith efforts to comply with the law matter; that record evidence must support a physician‘s assertion of futility; and that appellate courts should do as the Supreme Court plurality did—review the record for some support of the claim. We have done that here. What this record contains is a legally erroneous assumption that the Inspector General would act in bad faith and an unsupported assertion from Dr. Marshall that he could not operate with such uncertainty. That is a far cry from the evidence that the plurality deemed sufficient to support the substantial-obstacle determination in June Medical Services. Justice Alito, to be sure, would have demanded more. Id. at 2158–65 (Alito, J., dissenting). We are not sure why that matters; it does not follow that the plurality would have been satisfied with less. The plurality‘s careful look at each
We are thus “left with the definite and firm conviction that a mistake has been committed.” Id. at 2141 (Roberts, C.J., concurring in the judgment) (quoting Gypsum, 333 U.S. at 395). There was insufficient evidence for the district court to find that it would be futile for EMW to make a “good faith” attempt to operate on the basis of ninety-day waivers. Id. The plaintiffs have failed to show that EMW‘s inability to operate on the basis of waivers would be properly “attributable to the [challenged provisions] rather than a halfhearted attempt” to comply with the waiver provision, even if we indulge the improper assumption on which Dr. Marshall‘s testimony is premised. Id.
EMW and Planned Parenthood have failed to make a clear showing that both of their abortion facilities would close if
III.
One final matter requires resolution. During discovery, Kentucky failed to produce a representative from the Governor‘s Office for a deposition properly noticed by Planned Parenthood. Planned Parenthood moved for sanctions. A magistrate judge granted Planned Parenthood‘s motion and ordered the Governor‘s Office to reimburse Planned Parenthood for the reasonable expenses caused by its failure to appear. EMW Women‘s Surgical Ctr., P.S.C. v. Glisson, No. 3:17CV-00189-GNS, 2017 WL 4897528, at *5 (W.D. Ky. Oct. 30, 2017). Planned Parenthood then submitted a bill of costs to the district court. Rejecting Kentucky‘s objections to both the bill of costs and the magistrate judge‘s order, the district court awarded Planned Parenthood $21,140.25 in attorney‘s fees and costs. EMW Women‘s Surgical Ctr., P.S.C. v. Bevin, No. 3:17-CV-189-GNS, 2018 WL 10229473 (W.D. Ky. Sept. 28, 2018). Kentucky appeals, contesting both the decision to order sanctions and the amount of the award.
A district court may order sanctions if “a party . . . fails, after being served with proper notice, to appear for that person‘s deposition.”
Relying on
discretion by taking into account the last-minute nature of Kentucky‘s motion for a protective order.
Kentucky further contends that the Governor‘s Office was substantially justified in failing to send a representative because one of its attorneys, Jennifer Wolsing, was not timely notified of Planned Parenthood‘s notice of deposition. Even assuming this allegation is true, it is irrelevant. The magistrate judge found that Planned Parenthood had served a notice of deposition on two other attorneys for the Governor‘s Office more than two weeks before the scheduled deposition. Kentucky does not challenge this finding on appeal. A deposing party “must give reasonable written notice to every other party,” not every attorney.
Turning to the amount of the award, Kentucky objects to paying the travel costs of Karen Johnson-McKewan, Planned Parenthood‘s lead counsel. The Commonwealth claims that she did not need to fly from California to Kentucky because counsel for the Governor‘s Office had clearly communicated that no representative would attend the deposition. If the only purpose of the trip was to make a record thаt the Governor‘s Office did not appear, Kentucky argues, Planned Parenthood could have relied on local counsel instead. Although “reasonable expenses” under
Kentucky also claims it was excessive for Planned Parenthood to bill 23.5 hours for the time spent on its sanctions motion and 20 hours for the reply in support of it. Those figures do seem high, but the district court determined them to be reasonable after considering “[t]he content and quality” of the filings in detail. 2018 WL 10229473, at *7. Kentucky presents no argument why the time was excessive beyond italicizing the numbers involved and asserting that they are too high. We cannot conclude that the district court abused its discretion in awarding $21,140.25 in fees and costs.
* * *
For the foregoing reasons, we AFFIRM the district court‘s award of sanctions, REVERSE its judgment in favor of the plaintiffs’ substantive due process claims, VACATE the permanent injunction, and REMAND for further proceedings consistent with this opinion.
DISSENT
CLAY, Circuit Judge, dissenting. Today, the majority openly disregards our standard of review and discards binding precedent. In doing so, it condones the evisceration of the constitutional right to abortion access in Kentucky.
This case presents the straightforward issue of whether Kentucky‘s requirement that abortion facilities enter into both a transfer agreement with a Kentucky-licensed acute-care hospital and a transport agreement with a Kentucky-licensed ambulance service constitutes an undue burden on abortion access. See
More perilously, the majority altogether refuses to apply—let alone adhere to—the Supreme Court‘s decision in Whole Woman‘s Health v. Hellerstedt. Instead, it wrongly adopts an analysis put forward in dicta by Chief Justice Roberts’ concurring opinion in June Medical Services v. Russo, and then reaches a result directly opposing Chief Justice Roberts‘. In doing so, the majority completely undermines the principle driving that concurrence—stare decisis— and ignores Supreme Court precedent
At the end of the day, no matter what standard this Court is bound to apply, the majority‘s decision today is terribly and tragically wrong. The majority directly contravenes both the plurality and concurring opinions in June Medical Services, as well as the majority opinion in Whole Woman‘s Health. Correctly analyzed, the record and the law definitively demonstrate that Kentucky‘s transfer and transport agreement requirements impose an undue burden under any possible analysis. And the consequences of today‘s decision could not be more dire. As a result of the majority‘s deeply flawed analysis, millions of individuals will be altogether deprived of abortion access.
BACKGROUND
At issue in this case is a Kentucky statute and regulation that together require abortion facilities to enter into both a transfer agreement with a Kentucky-licensed acute-care hospital and a transport agreement with a Kentucky-licensed ambulance service. See
- Each abortion facility shall enter into a written agreement with a licensed acute-care hospital capable of treating patients with unforeseen complications related to an abortion facility procedure by which agreement the hospital agrees to accept and treat these patients.
- If unforeseen complications arise prior to or during an abortion facility procedure, the patient shall be transferred to the licensed acute-care hospital with which the abortion facility has a written agreement as provided under subsection (1) of this section or the hospital selected by the patient, if the patient so chooses.
- Each abortion facility shall enter into a written agreement with a licensed local ambulance service for the transport of any emergency patient within the scope of subsection (1) of this section to the licensed acute-care hospital.
- The written agreements of an abortion facility with an acute-care hospital and with a local ambulance service shall be filed by the abortion facility with the [Cabinet for Health and Family Services].
The regulation
However, in 2017, the Commonwealth‘s Cabinet for Health and Family Services (“CHFS”) promulgated a new version of the regulation. CHFS is part of Kentucky‘s executive branch and is responsible for the administration and enforcement of Kentucky‘s abortion facility licensure requirements, in part through the Office of the Inspector General (“OIG”). The new regulation required abortion facilities to enter into transfer and transport agreements with very particular hospitals and ambulance services. Both must either be in the same county as the abortion facility or within a certain number of miles or minutes’ drive—the hospital within twenty minutes normal driving time, and the ambulance service within ten minutes or a five-mile distance.
If an abortion facility does not enter into both a transfer agreement and a transport agreement in accordance with these provisions, it will lose its (or be unable to obtain a) license to perform abortions in Kentucky.
Plaintiff EMW Women‘s Surgical Center, P.S.C. (“EMW“) was—at the time of this lawsuit‘s initiation and the district court‘s trial—Kentucky‘s only licensed abortion facility. It has been performing abortions at its facility in Louisville, Kentucky since the early 1980s, and performs an average of 3,000 abortions per year, which historically has accounted for the overwhelming majority of abortions performed in Kentucky. For instance, in 2016, the latest year for which data was available at the time of trial, EMW performed 2,833 out of 2,848—or 99.47%—of abortions received by Kentuckians in the Commonwealth. Plaintiff Ernest Marshall, M.D. is the owner of EMW.
Plaintiff Planned Parenthood of Indiana and Kentucky, Inc. (“Planned Parenthood“) is a non-profit healthcare provider that has been providing healthcare services at its facility in Louisville, Kentucky since 1933. In 2015, Planned Parenthood applied to become a licensed abortion facility. Between December 2015 and January 2016, Planned Parenthood performed twenty-three abortions at its facility, ostensibly as part of the license application process. Since the district court issued its decision in this case, Planned Parenthood has been granted a license to perform abortions in the Commonwealth and has begun doing so.
Prior to the events underlying this case,
However, beginning in 2016, CHFS made an about-face and dramatically increased its scrutiny of abortion facility transfer and transport agreements. For instance, CHFS asked Planned Parenthood to revise its transfer agreement with Louisville Hospital so that it included more specific language about the responsibilities of each party. CHFS also asked Planned Parenthood to provide an extensive list of additional records in support of its transfer and transport agreements, including a fire marshal certificate and certain personnel records. Planned Parenthood complied.
Shortly thereafter, Louisville Hospital terminated its transfer agreement with Planned Parenthood. Planned Parenthood then attempted to enter into transfer agreements with the other hospitals in Louisville, but none agreed. Accordingly, Planned Parenthood instead entered into transfer agreements with the University of Kentucky Hospital in Lexington, Kentucky and Clark Memorial Hospital in Jeffersonville, Indiana. However, CHFS rejected both of these agreements on the grounds that the University of Kentucky Hospital was seventy miles away from Planned Parenthood, and that Clark Memorial Hospital, though only four miles away from Planned Parenthood, was not a Kentucky-licensed hospital. At this point, CHFS was still operating under the version of
Similarly, in early 2017, CHFS informed EMW that its transfer agreement with Louisville Hospital was deficient for several reasons. Specifically, CHFS informed EMW that the agreement was not signed by an acceptable representative of Louisville Hospital, did not correctly name Louisville Hospital as the transferee, and did not state with reasonable certainty the responsibilities of each party in the event the agreement was employed. In an effort to remedy these purported deficiencies, EMW obtained the signature of the President and CEO of Louisville Hospital. However, he cancelled the transfer agreement on the same day, stating that he was concerned he did not have the authority to sign the agreement. EMW attempted to enter into transfer agreements with the other hospitals in Louisville, but none agreed. Although every Louisville hospital that Planned Parenthood and EMW contacted refused to enter into a transfer agreement with them, each confirmed that it would provide emergency medical care to any of their abortion patients if they were transferred there. Nevertheless, because of its inability to еnter into a sufficient transfer agreement, EMW faces revocation of its license to perform abortions in Kentucky.
Plaintiffs EMW and Dr. Marshall then filed this lawsuit against then-Secretary of CHFS Vickie Yates Brown Glisson in her official capacity. Now-Acting Secretary of CHFS Eric Friedlander has since been substituted for Glisson. Planned Parenthood later intervened in the lawsuit, alleging claims against both the Secretary and then-Governor Matthew Bevin in their official capacities. Current Governor Andrew
Plaintiffs’ complaints both allege, among other claims, that Kentucky‘s requirement that abortion facilities enter into both a transfer agreement with a Kentucky-licensed acute-care hospital and a transport agreement with a Kentucky-licensed ambulance service unduly burdens individuals’ right to elect abortion, in violation of the
The district court entered a temporary restraining order that enjoined the enforcement of
This appeal followed.
DISCUSSION
The Supreme Court has twice considered—and twice found unconstitutional—laws imposing burdens lesser than those presented in this case. See June Med. Servs., 140 S. Ct. at 2112-13 (plurality opinion); id. at 2134 (Roberts, C.J., concurring); Whole Woman‘s Health, 136 S. Ct. at 2300. Although my colleagues make every effort to assert otherwise, under any possible interpretation, that precedent requires us to affirm the district court‘s decision in this case.
Plaintiffs are “entitled to a permanent injunction if [they] can establish that [they] suffered a constitutional violation and will suffer ‘continuing irreparable injury’ for which there is no adequate remedy at law.”1 EMW Women‘s Surgical Ctr. v. Friedlander, 960 F.3d 785, 793 (6th Cir. 2020) (quoting Women‘s Med. Pro. Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2005)). In reviewing the district court‘s decision to permanently enjoin
This Court has repeatedly emphasized that our role on review “is a narrow one.” Am. Civil Liberties Union of Ohio v. Capitol Square Review & Advisory Bd., 243 F.3d 289, 309 (6th Cir. 2001) (en banc). “[A]s a lower federal court,” we must “apply all pertinent Supreme Court precedent.” United States v. Lucido, 612 F.3d 871, 876 (6th Cir. 2010) (quoting Rosales-Garcia v. Holland, 322 F.3d 386, 414 (6th Cir. 2003)). To the extent that we disagree with such precedent, we must “leave the Supreme Court to overrule its own decisions.” Zagorski v. Mays, 907 F.3d 901, 905 (6th Cir. 2018).
Today, the majority usurps the district court‘s duly defined role and casts aside our standard of review. When properly undertaken, a review of the district court‘s decision leads to the unavoidable conclusion that we must affirm.
I.
This case turns entirely on whether Plaintiffs suffered a constitutional violation—that is, on whether
As explained in Whole Woman‘s Health and reaffirmed by a plurality of the Court in June Medical Services, in deciding whether a law or regulation presents a substantial obstacle, courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Whole Woman‘s Health, 136 S. Ct. at 2309; accord June Med. Servs., 140 S. Ct. at 2120 (plurality opinion). However, as detailed in Chief Justice Roberts’ concurring opinion in June Medical Services, he understands the relevant test somewhat differently. 140 S. Ct. at 2135, 2138 (Roberts, C.J., concurring). Under his analysis, a law must first be “‘reasonably related’ to a legitimate state interest.” Id. at 2135 (quoting Casey, 505 U.S. at 878). A court may consider a law‘s benefits in deciding if it meets this “threshold requirement.” Id. at 2138. If it does, a court must also consider whether the law creates a substantial obstacle to abortion access. Id. Laws that create such an obstacle, regardless of their threshold relationship to a state‘s interest, impose an undue burden on abortion access in violation of the
Today, the majority casts aside Whole Woman‘s Health in favor of Chief Justice
The majority today concludes that “the narrowest line of reasoning” supporting the June Medical Services decision is the entirety of Chief Justice Roberts’ concurring opinion, including all dicta.3 This is wrong, and stands in clear violation of the principle of stare decisis and the
Supreme Court‘s admonitions that lower courts should not conclude that it has implicitly overruled its prior precedent. Chief Justice Roberts’ concurring opinion does not free this Court from its duty to apply the binding precedent of Whole Woman‘s Health. Indeed, Chief Justice Roberts emphasized from the start that he was not considering the validity of Whole Woman‘s Health; the question before the Court, he said, “[was] not whether Whole Woman‘s Health was right or wrong, but whether to adhere to it in deciding the present case.” 140 S. Ct. at 2133 (Roberts, C.J., concurring). He answered that question in the affirmative. Id. at 2133–34. The basis for his concurrence, then—as hе clearly and repeatedly stated—was his respect for the decision in Whole Woman‘s Health under the principle
To be sure, Chief Justice Roberts’ concurrence in June Medical Services critiques Whole Woman‘s Health.4 But that critique is dicta, as it was not necessary to his vote to concur. See Wright v. Spaulding, 939 F.3d 695, 701 (6th Cir. 2019). The narrowest reasoning supporting the judgment in June Medical Services is therefore simply and only that Whole Woman‘s Health and stare decisis required the Court to hold that Louisiana‘s law requiring abortion providers to obtain admitting privileges was as unconstitutional as Texas‘, where the district court did not
clearly err in finding that the law imposed equivalent burdens. There is no basis in this Court or the Supreme Court‘s precedent for treating a single Justice‘s commentary on a prior decision in dicta as an overruling of an opinion duly issued by a majority of the Supreme Court.
The majority, however, asserts that, under Marks, dicta and holding cannot be separated and “the narrowest concurring opinion” in its entirety “is the Court‘s opinion.” Ante at 20 (quoting J.L. Spoons, Inc. v. Dragani, 538 F.3d 379, 386 n.2 (6th Cir. 2008)). In its haste to eviscerate the constitutional right to an abortion, the majority adopts an understanding of the Marks rule that would lead to absurd results. In a Supreme Court case with a 4–4 split, no precedent would be safe from the tiebreaking Justice deciding to seize the opportunity to rewrite the law even if the other eight Justices disagreed. See Ramos v. Louisiana, 140 S. Ct. 1390, 1403 (2020) (plurality opinion).
For example, suppose the Supreme Court heard a case raising the issue of whether the
In this hypothetical, the tiebreaking Justice‘s opinion is most likely the narrowest; a dual-track theory of incorporation would accept fewer
Fortunately, the Marks rule does not beget such absurd results for the simple reason that it is only the holding from the narrowest opinion, and only the narrowest reasoning supporting that holding, that is controlling—i.e., that the
authority and respect as any other opinion of the Supreme Court,” ante at 20. This, clearly, is an incorrect understanding of the Marks rule.
Moreover, the majority‘s reliance on our decision in Grutter v. Bollinger is misplaced. In Grutter, we held that Michigan
Grutter, therefore, merely stands for the unremarkable proposition that, in the absence of controlling Supreme Court precedent, we may decide to adopt persuasive dicta from a Justice‘s concurrence.7 In Whole Woman‘s Health, however, a majority opinion of the Supreme Court provided the controlling test for determining whether a state law constitutes an undue burden on abortion access. Thus, unlike in Grutter, there is no occasion for us to rely on Chief Justice Roberts’ dicta in his June Medical Services concurrence as persuasive authority.8
In fact, just this term, a plurality of the Supreme Court—including one of the dissenting justices in June Medical Services—rejected the notion that a single justice could by him or herself overturn prior precedent. Ramos, 140 S. Ct. at 1402. That plurality cautioned against “embrac[ing] a new and dubious proposition: that a single Justice writing only for himself has the authority to bind this Court to propositions it has already rejected.” Id. “This is not the rule,” the Court explained, “and for good reason—it would do more to destabilize than honor precedent.” Id.
Applying Chief Justice Roberts’ opinion in such a manner is especially egregious,
Motor Serv. v. Walsh, 139 F.2d 809, 823 (2d Cir. 1943) (Hand, J., dissenting), vacated sub nom. Specter Motor Serv. v. McLaughlin, 323 U.S. 101 (1944)).
Thus, absent an express holding overruling Whole Woman‘s Health, our obligation is to continue to apply its balancing test, and the majority wrongly concludes otherwise. However, with all this said, even if the Chief Justice‘s dicta criticizing Whole Woman‘s Health controls, a correct application of the test he enunciated also demonstrates that this Court should affirm. Thus, I will apply both tests, starting with the binding Whole Woman‘s Health standard.
II.
Whole Woman‘s Health requires this Court to determine whether an abortion
A. Burdens
The district court found that
First, as the majority acknowledges, Defendants do not dispute that EMW and Planned Parenthood cannot enter into transfer or transport agreements that would satisfy
Though they effectively concede this point, Defendants contest the district court‘s resulting conclusion that EMW and Planned Parenthood will be unable to offer abortions in Kentucky without compliant transfer and transport agreements. They say that Plaintiffs have not shown that the lack of such agreements would prevent them from offering abortions because Plaintiffs could continually and indefinitely apply for ninety-day extensions of the time required to comply with Kentucky‘s transfer and transport agreement requirement, pursuant to
Defendants’ argument is farcical, at best. For starters, a good-faith effort does not require exhausting every possible avenue for relief. See, e.g., June Med. Servs., 140 S. Ct. at 2122–23 (plurality opinion) (explaining that “some providers could have chosen in good faith not to apply to every qualifying hospital for admitting privileges“). Nor does “[g]ood faith. . . require an exercise in futility.” Id. at 2128;
But setting that aside, the district court appropriately rejected Defendants’ extension argument for an altogether different reason. It concluded that even if EMW and Planned Parenthood could secure an extension for some period of time, “the uncertainty of a discretionary waiver would make it exceedingly difficult for an abortion facility to survive” because it would “not likely be able to hire and keep staff without knowing whether [it] could continue operating beyond ninety days” and because it would not be able to secure necessary investments as “no prudent organization would risk millions of dollars investing in such a facility whose temporary license would be based on the administrative whim of the Inspector General.” EMW v. Glisson, 2018 WL 6444391, at *19. This finding was not clearly erroneous, as the evidence plausibly suggests that EMW and Planned Parenthood would be forced to stop providing abortions if they were compelled to operate on the basis of ninety-day extensions.
First, the owner of EMW, Dr. Marshall, testified that it would be impossible for EMW to continue to operate on ninety-day extensions because there would be “no security” in such a situation. (Trial Tr., R. 112 at PageID #4121.) He explained that EMW “wouldn‘t be able to hire any staff” without being able to offer more prolonged job security. (Id.) Altogether, he said, “the ramifications” of such a situation would be burdensome. (Id. at #4122.) Likewise, Kimberly Greene, the Chair of Planned Parenthood‘s Board of Directors, added that it would also be “very difficult” for Planned Parenthood to operate on indefinite ninety-day extensions, noting that it could not have raised adequate funds for its current facility without a more prolonged guarantee of operation. (Trial Tr., R. 116 at PageID #4321.) She further explained that it would not even be “responsible of us as a board to even try to [raise money]” if Planned Parenthood could only operate on ninety-day extensions. (Id. at #4304.)
Casting aside this evidence, the majority concludes that the district court‘s finding was clearly erroneous. It does so only by distorting the mandatory clear error standard of review and subjecting the evidence to something more stringent than even de novo review. The majority stretches the district court‘s words, denies the court‘s ability to make even the most reasonable of inferences, distorts witness testimony, and altogether rejects the preponderance of the evidence standard. The law is clear that this Court may not overturn a district court‘s plausible interpretation of the evidence, even if it is “convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson, 470 U.S. at 574. Today, the majority nonetheless “take[s] it upon [itself] to weigh the trial evidence as if [it] were the first to hear it,” thus vastly overstepping the bounds of this Court‘s role. Cooper v. Harris, 137 S. Ct. 1455, 1478 (2017).
The majority next places unjustifiable weight on Dr. Marshall‘s use of the word “whim” in order to conclude that his testimony “establishes only that EMW would be unable to retain staff if the Inspector General‘s decision on whether to grant a waiver were arbitrary.” Ante at 31. This blatantly and impermissibly reinterprets Dr. Marshall‘s testimony as if the majority were “the first to hear it.” Cooper, 137 S. Ct. at 1478. Dr. Marshall explained:
Well, I think the problem [with relying on the extension provision] is that your license is at stake every 90 days, so you‘re at the whim of being closed every 90 days. There‘s no security that you can even—you can‘t offer a person a job and say, “Well, I have you a job for 90 days, but I don‘t know if I‘m going to have you a job past that.” We wouldn‘t be able to hire any staff.
(Trial Tr., R. 112 at PageID #4121.) Read reasonably, Dr. Marshall‘s testimony suggests simply that an abortion facility would be unable to hire and retain staff when the facility‘s continued existence is in question every ninety days—no matter whose determinations that existence depends upon or how that person may undertake that decision. Indeed, Dr. Marshall never once references the Inspector General. Nor does he suggest that the Inspector General‘s decision would be arbitrary. The issue with relying on the extension provision is, simply and fundamentally, that it causes insecurity.
The majority also resorts to implicitly treating Justice Alito‘s dissenting opinion in June Medical Services, rejected by both the plurality and the Chief Justice, as binding. According to the majority, “Dr. Marshall‘s subjective belief,” based on his decades of experience in the field, that EMW‘s physicians and staff would resign and that he would be unable to hire replacements, was an insufficient basis for the district court to conclude that a good faith attempt to operate based on applying for a waiver every ninety day would be futile. Ante at 32. The majority provides a list of questions that, had it been the triers of fact, it would have asked Dr. Marshall, and states that we cannot determine whether Dr. Marshall‘s subjective belief was reasonable because “[w]e have no way of knowing the answers to these questions
In June Medical Services, the Supreme Court reviewed the Fifth Circuit‘s holding that the district court‘s finding that the challenged Louisiana law would cause an undue burden was “clearly erroneous” because “there was clear evidence in the record before the district court that various doctors failed to seek admitting privileges in good faith.” June Med. Servs. L.L.C. v. Gee, 905 F.3d 787, 811 (5th Cir. 2018). The Supreme Court reversed. According to the plurality, which the majority concedes was endorsed by Chief Justice Roberts,12 “[t]he problem” with the Fifth Circuit‘s approach was “that the law requires appellate courts to review a trial court‘s findings under the deferential clear-error standard.” June Medical Servs., 140 S. Ct. at 2124 (plurality opinion). It is worth reiterating for the majority‘s benefit that, under this standard, “a district court‘s findings of fact, ‘whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court‘s opportunity to judge the witnesses’ credibility.‘” Id. at 2121 (citing
The discussion in June Medical Services concerning whether Doe 5 acted in good faith demonstrates the majority‘s blatant disregard of our role in reviewing the district court‘s finding. “The challenged law would have [had] no effect on [Doe 5] if he could [have found] a covering doctor in Baton Rouge, but he asked only one doctor. He did little to pursue applications at two other hospitals because he was not optimistic about his chances and those hospitals required a certain amount of unpaid service to the poor.” Id. at 2164 (Alito, J., dissenting). Unlike Dr. Marshall, Doe 5 did not testify at trial. Nonetheless, based only on a declaration and a transcript of a deposition, the district court held that he acted in good faith. Because Doe 5 “asked the doctor most likely to respond affirmatively,” the plurality concluded that “[w]ith his own experience and their existing relationship in mind, Doe 5 could have reasonably thought that, if this doctor wouldn‘t serve as his covering physician, no one would. And it was well within the District Court‘s discretion to credit that reading of the record.” Id. at 2126. In other words, contrary to the majority‘s position, Dr. Marshall‘s reasonable subjective belief, based on his extensive experience, that EMW would be unable to operate on the basis of quarterly waivers is enough to support the district court‘s finding that operating under the waiver system was not feasible.13
Although the majority apparently believes that Justice Alito had the better of the argument in June Medical Services, its desired end of restricting access to abortion does not allow it to adopt his dissent as binding. The district court accepted Dr. Marshall as an expert in abortion care and, based on his extensive experience performing abortions in Louisville, credited his reasonable testimony that relying on obtaining a waiver every ninety days to remain in operation was not feasible. Based on the majority‘s refusal to accept the reasonable belief of the highly experienced Dr. Marshall, and its inexplicable demand “for still more evidence to support the District Court‘s determination,” it can only be assumed that the majority is relying on Justice Alito‘s dissenting opinion. June Medical Servs., 140 S. Ct. at 2128 (plurality opinion). The law, as stated in the controlling opinion, however, makes it clear that the district court was entitled to make the plausible finding that hiring staff would be exceedingly difficult without any long-term security, and the majority wholly
The majority next discards Greene‘s testimony, saying that the district court could not rely upon it because Greene spoke only to whether Planned Parenthood would have been able to raise money to build its Louisville facility, which Planned Parenthood acknowledges it has already built, if it had been relying on ninety-day extensions. But this wrongly limits the district court‘s factfinding capacity by denying it permission to make reasonable inferences. “Courts are free to base their findings on commonsense inferences drawn from the evidence.” Whole Woman‘s Health, 136 S. Ct. at 2317; see also id. at 2313 (stating that causation can be shown through “direct testimony as well as plausible inferences” drawn from the evidence). The court could appropriately and rightly infer that if Planned Parenthood would not have been able to raise money to build a facility while operating on ninety-day extensions, it also would not be able to raise funds for other necessary resources or operations in the future.
The majority denies the district court‘s right to make reasonable inferences not only in this regard, but also by unnecessarily and inappropriately segregating the evidence offered by EMW and Planned Parenthood. For instance, it notes that “Greene never testified that Planned Parenthood would be unable to hire or retain staff if it had to rely on” extensions. Ante at 29–30. But simple common sense suggests that if one abortion facility would be unable to hire on such a basis, another would face the same challenge. Likewise, simple common sense suggests that if one abortion facility would be unable to raise necessary funds in such a situation, so too would another.
Really, the majority denies the district court the right to exercise its common sense at all. Even if Plaintiffs had put forth no evidence pertaining to the extension provision‘s effect on hiring or fundraising, a rational person would recognize that such an insecure situation would place a business‘s future in jeopardy. I have no doubt that my colleagues would not be so еager to accept a job that might disappear ninety days later. I also doubt whether either would invest in a business that might shutter in that period. They ignore basic reason only because it is necessary to reach their desired end—upholding a law restricting abortion.
The majority further rejects the district court‘s conclusion based on this evidence—that “the uncertainty of a discretionary waiver would make it exceedingly difficult for an abortion facility to survive“—only by homing in on and rigidly interpreting select portions of the court‘s findings. EMW v. Glisson, 2018 WL 6444391, at *19. It centers the district court‘s subsequent statement that it would be imprudent for an organization to invest in a facility “whose temporary license would be based on the administrative whim of the Inspector General.” Id. “[D]iscretion is not whim,” says the majority, and it goes on to state its view of the factors the Inspector General must consider and the presumption that public officials act in good faith. Ante at 28 (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005)). Of course, this again places undue weight on the district court‘s use of the word “whim” and altogether ignores the actual import of the district court‘s finding—that abortion providers cannot continue to operate in a constant state of uncertainty about their future.
In any event, the majority‘s speculation about whether the Inspector General will
this Court must presume that the Inspector General will act in good faith.15 Regardless, the Inspector General‘s good faith in granting extensions does not mean that EMW or Planned Parenthood can depend upon receiving such extensions consistently and indefinitely and does nothing to eliminate the state of uncertainty that makes it impossible for facilities to continue to operate.
The majority cites the Eighth Circuit‘s decision in Comprehensive Health of Planned Parenthood Great Plains v. Hawley, 903 F.3d 750 (8th Cir. 2018), in an attempt to justify its deficient reasoning. In that case, the court held that the plaintiffs’ constitutional challenge to a Missouri law imposing certain design requirements on abortion facilities was “not currently fit for judicial resolution” because the court “lack[ed] sufficient information” on how Missouri would implement a provision under which it could waive those requirements for select facilities. Id. at 757. However, not only is that decision not binding upon this Court; it is also inapposite. For starters, the relevant provision there was one through which requirements could be altogether waived for facilities, not simply postponed. A waiver may allow an abortion facility certainty in its continued operation in a manner that Kentucky‘s extension provision does not. If indeed EMW and Planned Parenthood could secure a wholesale waiver of Kentucky‘s transfer and transport requirement—rather than mere ninety-day extensions—this would be a different case entirely. Moreover, in Hawley, Missouri had already agreed to waive the relevant requirements for two abortion facilities, id. at 756, lending weight to the idea that waivers would be granted and, if they were, abortion facilitiеs could continue to operate under them. Finally, and most critically, the court‘s decision in Hawley depended upon the fact that “withholding constitutional judgment” would not impose any hardship because “[n]o facilities currently providing abortions would be closed because of” the law‘s requirements. Id. at 757. In this case, the evidence suggests that not only will Kentucky abortion
Thus, then, I turn to the district court‘s next finding—that if EMW and Planned Parenthood cannot perform abortions, this will effectively eliminate access to abortion in Kentucky. The majority does not contest this point because it is uncontestable based on the evidence.16
EMW performs an average of 3,000 abortions per year, which has historically accounted for over 99% of abortions performed in the Commonwealth. The remaining fraction of a percent was performed by some combination of hospitals, ambulatory surgical centers (“ASCs“), and physicians’ offices. Even assuming that Planned Parenthood provides some significant percentage of abortions performed in Kentucky now, whatever portion it performs will also be eliminated upon its close. And there is no evidence to suggest that hospitals, ASCs, and physicians’ offices provide any greater percentage of abortions now than they have historically. Thus, the district court‘s finding is a permissible view of the evidence, and is not clearly erroneous.
Defendants nonetheless argue that EMW and Planned Parenthood‘s inability to perform abortions will not effectively eliminate abortion in Kentucky because hospitals, ASCs, and physicians’ offices could meet the entirety of the demand for abortions. Clear Supreme Court precedent counters this argument. As the Supreme Court held in Whole Woman‘s Health, “common sense suggests that, more often than not, a physical facility that satisfies a certain physical demand will not be able to meet five times that demand without expanding or otherwise incurring significant costs.” 136 S. Ct. at 2317; accord June Med. Servs., 140 S. Ct. at 2140 (Roberts, C.J., concurring) (affirming district court finding that reducing the number of clinics in Louisiana from three to two or one would “[e]ven in the best case” cause “the demand for services [to] vastly exceed the supply” (quoting June Med. Servs. v. Kliebert, 250 F. Supp. 3d 27, 87 (M.D. La. 2017))). In this case, in which hospitals, ASCs, and physicians’ offices would have to be able to meet more than one hundred times their current demand, common sense does much more than suggest that conclusion; it compels it. Moreover, the Court in Whole Woman‘s Health also held that “[h]ealthcare facilities and medical professionals are not fungible commodities.” 136 S. Ct. at 2318. Accordingly, even if hospitals, ASCs, and physicians’ offices could somehow meet that demand, in “attempting to accommodate [such] sudden, vastly increased demand,” they would likely “find that quality of care declines.” Id.
Defendants also argue that the inability of EMW and Planned Parenthood to perform abortions will not effectively eliminate abortion in the Commonwealth because both providers could open new abortion facilities in Lexington, Kentucky, where they were previously able to enter into transfer agreements with the University of Kentucky Hospital. But this argument is also unpersuasive. EMW‘s Dr. Marshall testified that opening a new facility in Lexington would be “impossible” in part because EMW would have to “buy
Finally, then, I must consider the district court‘s ultimate conclusion—that the effective elimination of abortion in Kentucky will place a substantial obstacle in the path of Kentucky women‘s right to abortion access. EMW and Planned Parenthood are the only remaining abortion facilities in Kentucky. In June Medical Services, the Supreme Court held that the closure of one- or two-thirds of Louisiana‘s abortion clinics unduly burdened individuals’ right to access abortions, 140 S. Ct. at 2115, 2132 (plurality opinion); id. at 2134 (Roberts, C.J., concurring); in Whole Woman‘s Health, it held the same regarding the closure of half of Texas’ abortion facilities, 136 S. Ct. at 2313. It necessarily follows, both as a matter of legal reasoning and as a matter of common sense, that the closure of Kentucky‘s only remaining abortion facilities would do so as well. The closures would lead to the same consequences in each scenario, such as “fewer doctors, longer waiting times, . . . increased crowding . . . [and] increased driving distances.” Id.; see also June Med. Servs., 140 S. Ct. at 2129-30 (plurality opinion); id. at 2140 (Roberts, C.J., concurring). The district court found that each of those consequences would follow from the closure of EMW, with the addition that all women seeking abortions would be forced to travel to another state.
Defendants attempt to refute even this obvious conclusion by arguing that the wholesale closure of Kentucky‘s abortion providers would not unduly burden abortion access because individuals can simply travel to another state to receive an abortion. This argument is particularly unpersuasive, and was recently unequivocally rejected in another case in which the Commonwealth presented it:
As the Supreme Court [has] explained . . . 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.”
EMW v. Friedlander, 960 F.3d at 811 (quoting Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350 (1938)). It is as meritless in this case as it was there.
B. Benefits
I turn then to the district court‘s findings as to the benefits of Kentucky‘s transfer
Indeed, the district court relied on evidence nearly identical to that relied upon by the plurality in June Medical Services and the majority in Whole Woman‘s Health in upholding identical findings: that the laws at issue did not advance states’ legitimate interest in protecting patient health. June Med. Servs., 140 S. Ct. at 2130-32 (plurality opinion); Whole Woman‘s Health, 136 S. Ct. at 2311, 2315-16.
Before delving into the record, I must address the majority‘s criticism of the district court‘s factfinding with regard to this point. My colleagues say that the district court‘s weighing of the benefits “does not comport with the ‘traditional rule that state and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty.‘” Ante at 23 (alteration in original) (quotations omitted) (quoting June Med. Servs., 140 S. Ct. at 2136 (Roberts, C.J., concurring)). Again, they wrongly rely upon Chief Justice Roberts’ concurring opinion in June Medical Services, rather than the Supreme Court‘s clear rejection of this idea in Whole Woman‘s Health: “The statement that legislatures, and not courts, must resolve questions of medical uncertainty is . . . inconsistent with this Court‘s case law.” 136 S. Ct. at 2310. Thus, the district court properly independently assessed the evidence in considering the benefits of Kentucky‘s transfer and transport agreement requirement.
The findings that the district court made based on that evidence are not clearly erroneous. First, the record supports the district court‘s finding that the situations in which transfer and transport agreements might be employed—serious abortion complications that occur while a patient is at an abortion facility—are exceedingly rare. After hearing the evidence, the district court concluded that abortions are fundamentally a safe procedure. That conclusion found strong grounding in multiple studies cited by the court, as well as in testimony heard by the court. (See Ushma D. Upadhyay, et al., Incidence of Emergency Department Visits and Complications After Abortion, 125 Obstetrics & Gynecology 175, 175 (2015) [hereinafter “the Upadhyay Study“] (indicating that the major complication rate for abortions was 0.23%); Nat‘l Acads. Of Scis., Eng‘g & Med., The Safety and Quality of Abortion Care in the United States 55, 60 (2018) (concluding based on data from several studies that the complication rate for medication abortions was “no more than a fraction of a percent” and that aspiration abortions also “rarely result in complications“); Trial Tr., R. 108 at PageID #3910 (Plaintiffs’ expert testifies that “abortion is a very safe procedure,” in which “complications are rare and rarely serious“).)
The district court further concluded that abortion complications generally arise, if at all, “after the patient has returned home” from the abortion facility, “rendering meaningless any transfer or transport agreement between the abortion [facility] and another entity.” EMW v. Glisson, 2018 WL 6444391, at *13. As before, this conclusion was well-grounded in medical studies
Thus, the record amply justifies the district court‘s finding that the situations in which transfer and transport agreements might be employed arise only rarely. But even if that were not the case, the district court also did not err in finding that transfer and transport agreements do not improve patient care as compared to the care provided in the absence of such agreements. An abundance of evidence supports this point. For instance, then-Inspector General Robert Silverthorn testified at trial that he was not aware of even a single instance in which the absence of a transfer or transport agreement caused a woman harm or caused her to receive less than the standard of care due. Additionally, several witnesses explained that transfer and transport agreements do not increase the quality of care that patients receive as compared to the quality of care they receive in the absence of such agreements. Even the text of
This conclusion is further supported by recent updates to Centers for Medicare and Medicaid (“CMS“) regulations, which remove a requirement that ambulatory surgical centers participating in Medicare have either doctors with admitting privileges on staff or a transfer agreement with a hospital. 84 Fed. Reg. 51732, 51733 (Sept. 30, 2019) (modifying
In light of this wealth of evidence, a straightforward application of the Supreme Court‘s decisions in June Medical Services and Whole Woman‘s Health confirms that the district court‘s finding that
C. Balancing
As the previous analysis shows, the district court did not clearly err in finding either that Kentucky‘s transfer and transport agreement requirement imposes unbearable burdens by “virtually assuring that abortion facilities will not operate in Kentucky” or that it provides “no meaningful benefit to women‘s health.” EMW v. Glisson, 2018 WL 6444391, at *19. All that is left for this Court to do, under binding law, is to balance these burdens and benefits. Once again, the Supreme Court‘s decision in Whole Woman‘s Health and the plurality‘s opinion in June Medical Services clearly dictate the outcome of that balancing. The “virtual absence of any health benefit,” when balanced against a substantial obstacle in the path of an individual‘s right to abortion access, constitutes an undue burden on abortion access, in violation of the
This Court need not consider whether Kentucky‘s requirement is reasonably related to its asserted interest in promoting women‘s health in order to affirm. Indeed, while Chief Justice Roberts discussed that standard, he did not apparently apply it in considering Louisiana‘s admitting privileges requirement. See 140 S. Ct. at 2135, 2138 (Roberts, C.J., concurring). As it happens, I question whether
Even if there had been a problem to solve, the district court‘s analysis suggests that Kentucky‘s transfer and transport agreement requirement could not be thought “a rational way to correct it.” Williamson, 348 U.S. at 488. “[A]ll reasonable inferences drawn from the facts” presented to the court, it concluded, confirmed that “the transfer and transport agreements required by Kentucky
In any event, regardless of whether Kentucky‘s transfer and transport agreement requirement is reasonably related to a legitimate state interest, it undoubtedly presents a substantial obstacle to abortion access. As Chief Justice Roberts explained in June Medical Services, that a law imposes a substantial obstacle is sufficient to render it unconstitutional. 140 S. Ct. at 2139 (Roberts, C.J., concurring). Chief Justice Roberts observed that Louisiana‘s admitting privileges law “would restrict women‘s access to abortion to the same degree as Texas‘s law” considered in Whole Woman‘s Health, and therefore was also unconstitutional. Id. In Texas, the law caused twenty of the state‘s forty facilities providing abortion to stop doing so; in Louisiana, the law caused the number of abortion clinics to drop from three to one or two and the number of physicians providing abortion to drop from five to one or two. Id. at 2140. As previously discussed, this led to “fewer doctors, longer waiting times, and increased crowding,” as well as substantial travel distances for individuals seeking an abortion.18 Id. (quoting Whole Woman‘s Health, 136 S. Ct. at 2313). As my earlier analysis demonstrated, in this case, the district court did not clearly err in concluding that Kentucky‘s requirement would cause both of the Commonwealth‘s two abortion clinics to cease providing abortions. This is not just a substantial percentage drop in the number of clinics providing abortion—as in Whole Woman‘s Health and June Medical Services—but a wholesale elimination of those clinics. This would also undoubtedly lead to “fewer doctors, lоnger waiting times, and increased crowding” at the few non-clinic facilities that do provide abortions. See id. Accordingly, Kentucky‘s requirement presents a substantial obstacle to abortion access and the district court‘s decision finding it unconstitutional must also be affirmed under Chief Justice Roberts’ analysis.
This Court‘s holding in Baird does not affect this conclusion, even when applying this analysis. As the Chief Justice explained, “the validity of . . . laws ‘depend[s] on numerous factors that may differ from State to State,‘” and “[w]hen it comes to the factual record, litigants normally start the case on a clean slate.” Id. at 2141 n.6 (first quoting id. at 2157 (Alito, J., dissenting); and then quoting id. at 2178 (Gorsuch, J., dissenting)). Enforcement
IV.
Having concluded that the district court correctly held
Defendants contend that facial relief was improper because the district court did not explicitly find that this requirement unduly burdens abortion access in “a large fraction of cases in which [the challenged law] is relevant.” Whole Woman‘s Health, 136 S. Ct. at 2320 (emphasis omitted) (quoting Casey, 505 U.S. at 894-95).
Defendants’ argument is unpersuasive. The district court found that EMW performed “almost all” of the “roughly 2,800” abortions Kentucky patients received in the Commonwealth in 2016. EMW v. Glisson, 2018 WL 6444391, at *25 (citing Trial Tr., R. 115 at PageID #4136 (Defendants’ witness discusses reports showing that EMW performed 2,800 abortions in Kentucky in 2016, Planned Parenthood performed ten, a hospital performed three, and ASCs and private physicians’ offices reported no abortions)); (see also Planned Parenthood Trial Ex. PX0052, Doc. No. 55 at A66 (showing that EMW provided 2,833 out of 2,848 abortions—or 99.47%—received by Kentuckians in the Commonwealth in 2016)). And as discussed above, the district court also found that that the enforcement of
But in fact, the fraction of cases in which this restriction is “relevant” is still larger, because “the relevant denominator is ‘those [women] for whom [the provision] is an actual rather than an irrelevant restriction.‘” Whole Woman‘s Health, 136 S. Ct. at 2320 (alterations in original) (quoting Casey, 505 U.S. at 895); accord June Med. Servs., 140 S. Ct. at 2132-33 (plurality opinion). Because
Because
CONCLUSION
Kentucky‘s requirement that abortion facilities enter into both a transfer agreement with a Kentucky-licensed acute-care hospital and a transport agreement with a Kentucky-licensed ambulance service constitutes an undue burden on abortion access in violation of the