Little Rock Family Planning Services, et al. v. Leslie Rutledge, in her official capacity as Attorney General of the State of Arkansas, et al.
No. 19-2690
United States Court of Appeals For the Eighth Circuit
January 5, 2021
LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
Amici on Behalf of Appellants
Society for Maternal- Fetal Medicine; American College of Obstetricians and Gynecologists; Constitutional Law Scholars; State of California; State of Colorado; State of Connecticut; State of Delaware; State of Hawaii; State of Illinois; State of Maine; State of Maryland; State of Massachusetts; State of Minnesota; State of Nevada; State of New Mexico; State of New York; State of Oregon; State of Pennsylvania; State of Rhode Island; State of Vermont; State of Virginia; State of Washington; District of Columbia; Reproductive Justice Organizations
Amici on Behalf of Appellees
Submitted: September 23, 2020
Filed: January 5, 2021
Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
LOKEN, Circuit Judge.
Little Rock Family Planning Services and Dr. Thomas Tvedten (collectively, “LRFP“) brought this
As the district court recognized, the law governing the constitutionality of two of the three statutes at issue -- Act 493 and Act 619 -- though obviously subject to change in the future, is well established in this Circuit today:
Before viability, a State “may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” It also may not impose upon the right an undue burden, which exists if a regulation‘s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” On the other hand, “[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman‘s exercise of the right to choose.”
MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 772 (8th Cir. 2015), cert. denied, 136 S. Ct. 981 (2016), quoting Gonzales v. Carhart, 550 U.S. 124, 146 (2007), in turn quoting Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 879, 878, and 877 (1992). The Supreme Court has defined viability as “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman.” Casey, 505 U.S. at 870. “Before viability,” the Court declared, “the State‘s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman‘s effective right to elect the procedure.” Id. at 846. “The woman‘s right to terminate her pregnancy before viability . . . . is a rule of law and a component of liberty we cannot renounce.” Id. at 871 (citation omitted).
A. Act 493, The 18-Week Ban.
Act 493 provides that a person “shall not intentionally or knowingly perform, induce, or attempt to perform or induce an abortion of an unborn human being if the probable gestation age of the unborn human being is determined to be greater than eighteen (18) weeks’ gestation.”
B. Act 619, The Down Syndrome Ban.
Act 619 prohibits a physician from performing or attempting to perform an abortion “with the knowledge that a pregnant woman is seeking an abortion solely on the basis of: (1) A test result indicating Down syndrome in an unborn child; (2) A prenatal diagnosis of Down syndrome in an unborn child; or (3) Any other reason to believe that an unborn child has Down syndrome.”
Defendants misconstrue Casey and Gonzales. These decisions did not uphold complete bans on pre-viability abortions. In Casey, the Court upheld the parental consent regulation at issue because the judicial bypass procedure ensured that minors were not completely banned from obtaining pre-viability abortions. Id. at 899. In Gonzales the Court upheld a law banning physicians from performing a particularly brutal method of abortion; the Court noted the statute “still allows, among other means, a commonly used and generally accepted method [to perform abortion], so it does not construct a substantial obstacle to the abortion right.” 550 U.S. at 165 (2007). The Court expressly stated that it “assume[d] the following principles for the purposes of this opinion. Before viability, a State ‘may not prohibit any woman from making the ultimate decision to terminate her pregnancy.‘” Id. at 146, quoting Casey, 505 U.S. at 879. A majority of the Supreme Court recently reaffirmed these principles:
Both [parties] agree that the undue burden standard announced in Casey provides the appropriate framework to analyze Louisiana‘s law.
Casey reaffirmed the most central principle of Roe v. Wade, a woman‘s right to terminate her pregnancy before viability. At the same time, it recognized that the State has important and legitimate interests in protecting . . . the potentiality of human life. . . . To serve the latter interest, the State may, among other things, enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term.
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Casey discussed [the] benefits [of a particular regulation] in considering the threshold requirement that the State have a “legitimate purpose” and that the law be “reasonably related to that goal.” 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 of a woman seeking an abortion of a nonviable fetus.”
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Here the plurality expressly acknowledges that we are not considering how to analyze an abortion regulation that does not present a substantial obstacle. . . . In this case, Casey‘s requirement of finding a substantial obstacle before invalidating an abortion regulation is therefore a sufficient basis for the decision . . . . I would adhere to the holding of Casey, requiring a substantial obstacle before striking down an abortion regulation.
June Med. Servs., 140 S. Ct. at 2135, 2138-39 (Roberts, C.J., concurring) (cleaned up).
In this case, it is undisputed that Act 619 is a substantial obstacle; indeed, it is a complete prohibition of abortions based on the pregnant woman‘s reason for exercising the right to terminate her pregnancy before viability. We agree with our sister circuits that it is “inconsistent to hold that a woman‘s right of privacy to
II. Act 700, The OBGYN Requirement.
Act 700 provides that abortions in Arkansas must be performed by a licensed physician who is a board-certified or board-eligible OBGYN.
Here, the preliminary injunction preserved the status quo by allowing LRFP to continue providing abortion services by doctors who are not OBGYN-certified. Having been granted this preliminary relief, LRFP argues Defendants’ appeal is moot because LRFP is now complying with Act 700 and therefore Plaintiffs are not adversely affected by the statute. Though the premise is certainly open to question,5 we agree that this part of the controversy is now moot. “Plaintiffs are masters of their complaints and remain so at the appellate stage of a litigation,” and their argument “amounts to a decision to no longer seek” a preliminary injunction. Webster v. Reproductive Health Servs., 492 U.S. 490, 512 (1989). Defendants cite no practical reason why there is an actual controversy at this time. Defendants argue that LRFP
The more important question, which invariably arises when the party that prevailed in the district court takes voluntary action that moots an appeal, is whether to remand with directions to vacate the mooted order. See generally Perficient, Inc. v. Munley, 973 F.3d 914 (8th Cir. 2020). The Supreme Court has instructed us to “dispose[] of moot cases in the manner most consonant to justice in view of the nature and character of the conditions which have caused the case to become moot.” U.S. Bancorp, 513 U.S. at 24 (cleaned up). Applying that general principle, the Court declared that the “equitable tradition of vacatur” should normally be invoked when a party “seeks review of the merits of an adverse ruling, but is frustrated [when] mootness results from unilateral action of the party who prevailed below.” Id. at 25.
We conclude that vacatur is the appropriate disposition in this case for many reasons. First, the timing of LRFP‘s actions strongly suggest an intent to avoid appellate review. Second, the merits of LRFP‘s challenge to Act 700 remain to be decided in the district court, and it would be inappropriate to have those unresolved issues affected by the district court‘s findings and conclusions in a preliminary injunction order LRFP‘s actions prevented us from reviewing. See Perficient, 973 F.3d at 917. Third, and perhaps most important, in preliminarily enjoining Act 700, the district court employed the undue burden analysis based upon Whole Woman‘s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), that it used in Hopkins, which we recently reversed and remanded for further consideration in light of June Medical Services. 968 F.3d at 915-16. As LRFP‘s voluntary action has caused the preliminary injunction of Act 700 to become moot, we accomplish the same result in
III. Conclusion.
For the forgoing reasons, we affirm the district court‘s order preliminarily enjoining enforcement of Act 493 and Act 619. We dismiss as moot the appeal of the preliminary injunction of Act 700 and remand to the district court with instructions to vacate this part of its Preliminary Injunction order. We dismiss Defendants’ appeal from the district court‘s consolidation orders and deny their request that the case be reassigned on remand. We deny as frivolous LRFP‘s motion to exclude from the record on appeal the files from Planned Parenthood of Ark. & E. Okla. v. Jegley that Defendants included in their Designation of Record. See fn.1 supra. The parties will each bear their own costs of appeal. There is no “prevailing party” for purposes of
SHEPHERD, Circuit Judge, with whom ERICKSON, Circuit Judge, joins, concurring.
Because the Court‘s opinion applies binding Supreme Court precedent, I join it in full. I write separately, however, to reiterate my view that “good reasons exist for the [Supreme] Court to reevaluate its jurisprudence” regarding the viability standard as announced in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). See MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 773 (8th Cir. 2015).
In MKB Management Corp., this Court discussed at length the reasons that the viability standard has proven unsatisfactory, including that it “gives too little consideration to the ‘substantial state interest in potential life throughout pregnancy‘”
In Box v. Planned Parenthood of Indiana & Kentucky, Inc., 139 S. Ct. 1780, 1782 (2019) (per curiam), the Supreme Court granted certiorari and reversed the judgment of the Seventh Circuit regarding an Indiana statute governing the disposition of fetal remains, but declined to grant certiorari to a second question, regarding another Indiana statue prohibiting abortion providers from providing abortions sought on the basis of the sex, race, or disability of the unborn child. In a separate concurring opinion, Justice Thomas expressed his view that the latter law “and other laws like it promote a State‘s compelling interest in preventing abortion from becoming a tool of modern-day eugenics,” and acknowledged that “with today‘s prenatal screening tests and other technologies, abortion can easily be used to eliminate children with unwanted characteristics.” Id. at 1783, 1790 (Thomas, J., concurring). Justice Thomas agreed, however, with the Court‘s decision to decline to grant certiorari because “further percolation may assist our review of this issue of first impression.” Id. at 1784. But in closing, Justice Thomas noted that “[a]lthough the Court declines to wade into these issues today, we cannot avoid them forever.
Others have taken note of the fact that ”Casey did not consider the validity of an anti-eugenics laws.” Planned Parenthood of Ind. & Ky., Inc. v. Comm‘r of Ind. State Dep‘t of Health, 917 F.3d 532, 536 (7th Cir. 2018) (Easterbrook, J., dissenting). In the Seventh Circuit proceedings prior to Box, Judge Easterbook noted in dissent that
Casey and other decisions hold that, until a fetus is viable, a woman is entitled to decide whether to bear a child. But there is a difference between “I don‘t want a child” and “I want a child, but only a male” or “I want only children whose genes predict success in life.” Using abortion to promote eugenic goals is morally and prudentially debatable on grounds different from those that underlay the statutes Casey considered.
Id. Today‘s opinion is another stark reminder that the viability standard fails to adequately consider the substantial interest of the state in protecting the lives of unborn children as well as the state‘s “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Box, 139 S. Ct. at 1783 (Thomas, J., concurring). The viability standard does not and cannot contemplate abortions based on an unwanted immutable characteristic of the unborn child. However, because we must apply the ill-fitting and unworkable viability standard to an act aimed at preventing eugenics-based abortions unless and until the Supreme Court dictates otherwise, I concur in the Court‘s opinion holding Act 619 unconstitutional.
I concur in the Court‘s opinion and in Judge Shepherd‘s concurrence, but write separately to emphasize my belief that there are important reasons for the Supreme Court to revisit its precedent in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). Viability as a standard is overly simplistic and overlooks harms that go beyond the state‘s interest in a nascent life alone.
The great glory of humanity is its diversity. We are, as a species, remarkably variant in our talents, abilities, appearances, strengths, and weaknesses. The human person has immense creative powers, a range of emotional responses that astound the observant, and a capacity to love and be loved that is at the core of human existence. Each human being possesses a spirit of life that at our finest we have all recognized is the essence of humanity. And each human being is priceless beyond measure. Children with Down syndrome share in each of these fundamental attributes of humanity.
While the state‘s interest in nascent life has been recognized to give way to the right of a woman to be free from “unduly burdensome interference with her freedom to decide whether to terminate her pregnancy” id. at 874 (quoting Maher v. Roe, 432 U.S. 464, 473–74(1977)), it is apparent that the right is not, and should not be, absolute. By focusing on viability alone, the Court fails to consider circumstances that strike at the core of humanity and pose such a significant threat that the State of Arkansas might rightfully place that threat above the right of a woman to choose to terminate a pregnancy.
As Judge Easterbrook recognized in his dissent in Planned Parenthood of Indiana & Kentucky, Inc. v. Comm‘r of Indiana State Dep‘t of Health, 917 F.3d 532, 536 (7th Cir. 2018) (Easterbrook, J., dissenting), eugenics pose a question that is
The new eugenics movement is more subtle, but a state could nonetheless conclude that it poses a great and grave risk to its citizens. A core value of eugenics is the notion that diversity in the human population should be reduced to maximize and eventually realize the “ideal” of a more “perfect person.” Inherent in this concept is the goal of controlling genetic diversity of a population in order to create a super race: one that is deemed to be healthier, smarter, stronger, and more beautiful. The creation of such a cadre of people would undoubtedly lead to greater discrimination against people who are deemed to be “inferior,” resulting in a broad attack on diversity of the human population.
Recent history demonstrates biases broadly prevalent in the society related to race, gender, sexual orientation, and medical or intellectual infirmities that could in the not-too-distant future be the subject of genetic manipulation, either in the laboratory or by termination of pregnancies. The State of Arkansas could decide that the risk posed by such practices presents a greater risk to humanity than a burden placed on a woman‘s right to choose to terminate her pregnancy–but such a decision is foreclosed by our current precedent based on viability alone. The State of Arkansas could decide that addressing social inequalities and disparities is a far more appropriate response to marginalized populations than embracing the neo-eugenics movement.
In Western society, there is currently no more threatened population than children with Down syndrome. While there are still 6,000 children born annually in the United States with Down syndrome, the same is not the case in other western democracies. Centers for Disease Control & Prevention, Data & Statistics on Down
I deeply regret that precedent forecloses a balancing of the state‘s actual interest against the woman‘s right to choose in enacting Act 619.