*1 рrecedent Supreme Court application PARENTHOOD PLANNED SOUTH standard. The Ohio AEDPA
under the REGION; Planned Par WEST OHIO to cite a appear did Appeals Court of Ohio; enthood of Central unfair” standard for the “fundamentally Ohio; of Northeast Timo Parenthood Supreme Court prejudice prong, Kress; Sogor; Preterm, thy Laszlo in Williams stated was an unreasonable Plaintiffs-Appellants, precedent. See of its application (holding that to v. must the defendant prejudice establish Attorney DeWINE, Mike General probabili- there is reasonable show “that Ohio; Joseph Deters, that, unprofessional ty for counsel’s but Defendants-Appellees. errors, would proceeding the result No. 11-4062. different”). But the error was have been First, because Ohio Court harmless. of Appeals, States Court United Appeals cited Ohio Sixth Circuit. correctly itself case for this assertion that Strickland, Argued: June it is not clear that cited in- court of intended to state the appeals Decided Filed: Oct. Jones, See correct 2000 WL standard. Combs, (citing State *7 90, 652 N.E.2d 211-12 App.3d
Ohio (1994)). Second, ap- even if the court of standard, wrong this peals simply used novo means that Jones entitled de claim, Strickland review of his substantive and, review, novo after de hold attorney’s his prejudiced Jones was not investigate failure incidence of crime Embassy at the Suites.
IV. reasons, foregoing For the we AFFIRM judgment court. district *3 OH,
land, Appellants. Jeannine R. Lesperance, Office of the Ohio Attorney General, OH, Columbus, for Appellees. Hill, BRIEF: B. ON Jessie Case Western Law, University Reserve School Cleve- land, OH, Krasnoff, Helene T. Planned America, Parenthood Federation of Wash- D.C., ington, Evans, Roger K. America, *4 Parenthood Federation of New York, NY, Gerhardstein, Alрhonse A. Ger- LPA, Cincinnati, hardstein & Branch Co. OH, Davis, L. Appellants. Carrie for Je- Lesperance, Gale, R. annine Erick D. Of- General, Attorney fice of the Ohio Colum- OH, bus, for Appellees. Smith, Mailee R. Life, Americans United For Washington, D.C., Amici for Curiae. MOORE, ROGERS,
Before: McKEAGUE, Judges. Circuit MOORE, J., opinion delivered the of the which, court in ROGERS and McKEAGUE, JJ., joined in Parts I-V. MOORE, (pp. 507-13), J. delivered a VI, separate Part in part which dissents separate majority opinion from the McKEAGUE, by (pp. 513-18), delivered J. which, ROGERS, J., with concurs.
OPINION MOORE,
KAREN NELSON Circuit Judge.
In passed Ohio a law criminalizing mifepristone, distribution of also RU-486, known as unless distribution certain protocols gestational mirrored limits by time identified FDA when approved was first in 2000. (the “Act”). § Ohio Rev.Code 2919.123 in Mifepristone, combination miso- prostol, was the of medical form abor- by tion offered Planned Parenthood in regional Ohio. Planned Ohio Parenthood’s Hill, two (collectively, ARGUED: B. Jessie Case Western clinics and of its doctors Parenthood”) Law, University brought Reserve School of Cleve- “Planned suit short- court is therefore the district judgment of challenging its passage the Act’s ly after AFFIRMED. Al- grounds. on several constitutionality place in injunction is
though preliminary I. BACKGROUND an ex- to make failure the Act’s to cover involving the circumstances ception Background A. Factual mother, Act has health and life abor- most first-trimester Before February force since been otherwise pro- performed surgical, tions were aspi- commonly vacuum known as cedure curettage. Planned ration or suction appeal is whether this issue on Taft, Region v. Cincinnati Parenthood summary granting court erred district (6th Cir.2006) 502, {“Taft the defendants judgment favor ”). agree that parties II claims constitutional four three are ex- in the first trimester facially Parenthood brоught and, healthy wom- tremely for most safe resolu- Following the Act. challenging the *5 to ten minutes en, less than five can take by the questions certified tion of certain clinic, only usually with outpatient at an Court, court the district Ohio and sedation. often local anesthesia (1) longer uncon- Act was no the held performed abortion is Briefly, a (2) Act did not the stitutionally vague, the speculum into woman’s by inserting bodily integrity right violate a woman’s cervix, in- the and then vagina, dilating (3) Amendment, and under the Fourteenth emp- into her serting a tube uterus impose an undue burden not the Act did effects by suction. Side ties the contents Fourteenth Amendment a woman’s on cramping. Surgical bleeding and include The fourth abortion. choose performed been for dec- have unduly burdens a claim, the Act whether ades, mortality extremely is the rate and the and life under right to health woman’s 100,000. R. 144-1 per .1 roughly low at Amendment, being is held for Fourteenth ¶¶ (Paul 14-20), as cited R. 139-1 Deck appeal. at issue on is not this trial and 1) (Defs.’ Ap- at 3 n. and to Strike Mot. Br. at 5.1 pellee review, unanimously AFFIRM Upon summary judg- of grant the district court’s Drug the Food and Administra- In vagueness Parenthood’s ment on Planned (“FDA”) the distribu- approved first tion Judge claims. bodily-integrity and in the United mifepristone use of tion and AF- by Judge McKeague joined Rogers RU-486, also called Mifepristone, States. in full. judgment FIRM the court’s district preg- the “terminates is medication remand would reverse and Judge Moore sac detaching gestational the nancy by regarding II, claim on the undue-burden uterine wall.” from the Taft Thus, is the opinion this right to 24 to 48 hours Approximately choose. at 505 n. respect to all medi- later, court with takes second
opinion of the woman VI, opinion cation, prostaglan- which is the “a except misoprostol, Part parts neces- dissenting and induces the contractions Judge part, din which of Moore products other expel the fetus and opinion sary constitutes the Judge McKeague’s Id.2 Side from the uterus.” conception for Part majority of the VI. opinion evidentiary We her state- matter. cite admissibility of the objects to the 1. The State undisputed by the State. that are ments Paul. The district Dr. Maureen declaration of admissibility yet has not ruled on court regulate or explicitly ban 2. The does position this testimony, and we take no her misoprostol, which has not prescription of bleeding sixty-three II, procedure up days’ gestation.” effects of the include Taft days average for an nine to sixteen and at protocol, F.3d 505-06. This new fever, may diar- cramping (1) and also include protocol, changed called the Schaff rhea, nausea, vomiting. Appendix Joint dosage drugs, amounts of the lowering the (FDA (“J.A.”) at 255 Patient Information of mifepristone mg amount from to 200 l).3 parties agree at Sheet mg increasing and the amount of miso- mortality mifepristone rate of abortions is (2) from .4 prostol mg mg; to .8 the num- 100,000, than 1 but debate per they less days drugs, ber of between the from two significance of this number. R. 144-1 (3) three; days to between one and ¶ (Paul 23), by Appellee Decl. as cited Br. administering misoprostol, method at 5. orally from at vaginally the clinic to at (4) home; days’ the number of gesta-
A U.S. manufacturer first filed New to which up tion the protocol could be Drug Application mifepristone successfully performed, days from to 63 (FDA Approval J.A. at Letter after the woman’s menstrual period last Consistent the three clinical trials (“LMP”). The protocol Schaff was the support applicаtion, submitted in protocol (FDA primary implemented at Planned Labeling Approved see J.A. at 192 following Parenthood’s Ohio clinics ap- 3), labeling “FDA let- approval proval of in 2000. appropriate ter indicated that ’treat- regimen mg ment was to administer 600 In Planned Parenthood’s Ohio clin- *6 orally mifepristone by mg followed 0.4 of to a ics shifted variation of the Schaff days misoprostol orally administered two protocol called for self-administration not to later and that was be i.e., misoprostol buccally, of the via gum forty-nine days’ gesta- administered after absorption. Because first clinical the trials II, at FDA tion.” 444 F.3d 505. The Taft initially for buccal administration approved under mifepristone’s application days LMP, went to 56 up Planned Parent- H, imposed § Subpart C.F.R. and protocol hood limited this new to that time eight heightened post- restrictions the on period. By additional trials had approval of drug distribution the “as- safety efficacy the and demonstrated of (FDA sure safe See J.A. at use.” LMP, absorption up days buccal to 63 2); Approval Letter 21 C.F.R. the prior to enforcement of the Act in ' § 314.520. began again Parenthood of- Following approval, FDA clin- additional the of a fering patients option medical development ical trials led to the of new See, up to days e.g., R. LMP. protocols drugs, for one administering the (S.E. 1Ex. Ohio Medical Abortion of mg mifepristone which called for “200 of 385-86) #2131-32). Protocol at ID (Page orally administered to three followed one days by mg of admin- Once a been misoprostol drug approved, later 0.8 has “employed vaginally” istered and could be the FDA does not ban the sort of “off-label by approved prior appeal. the been FDA for use abor- The were resubmitted exhibits tions, although approved it has been FDA parties for to the court for the district consid- the treatment of ulcers. motions; summary-judgment on eration reference, of to cite ease we continue for. 3. The main FDA documents were filed before Appendix prior extent that Joint to the plaintiffs’ on district court motion for parties support relied on the same exhibits in permanent injunction, then sub- which were summary judgment. of panel Appendix mitted as a in the to this Joint (mi- of govern law that the use RU-486 uses in its use” that fepristone) inducing for abortions. drug for uses clinics, i.e., prescribing approved not identified 2919.123(A) inor doses § (emphasis Ohio Rev.Code II, at 505. The 444 F.3d added). labels.4 physicians also bans Taft is dispute “[i]t stan- not State does “knowingly failfing] comply from in the United States practice any dard medical requirements of federal applicable prescribe FDA-approved physicians to follow-up for examinations pertain law that medical indica- and for drugs dosages or persons or for to whom for whom care approved— specifically (mifepristone) provided tions that were is for RU-486 FDA, par- abortion,” contemplated by inducing or even and re- purpose — sup- use the alternative ticularly quires prescribing mifepristone where physicians study.” R. adequate 133-1 ported by reports to submit under certain conditions. ¶ 12) (State’s 2919.123(B),(C). (Page § Physicians to Pis.’ Facts Id. who fail Resp. comply “guilty ID # with these terms will be an abortion-in- of unlawful distribution of States, however, may limit off-label drug, felony of the fourth de- ducing II, at 505. And use. Taft gree,” subject and also to administrative several members of March including penalties, profes- revocation Representatives just Ohio House of did 2919.123(E). § sional licenses. Id. that, introducing regu Bill 126 to House rule, “any law, Act defines “federal law” as late of RU-486 and to the distribution any regulation or United States or physician’s failure to criminalize follow drug approval drug letter of the food and regulations. approved by The Act was administration the United States into law the signed both chambers governs regulates use RU-486 24, 2004, stating on June in rele Governor inducing (mifepristone) purpose part: vant 2919.123(F)(1). §Id. abortions.” *7 ... person knowingly prescribe No shall affidavits Planned Parenthood submitted (mifepristone) to another for RU-486 averring employees from clinic that from inducing an ... purpose of mifepristone the introduction of physician, ... person unless the 2010, regardless until of United States physician criteria all the estab- in place, which variation was all of its satisfies physician law that a lished patients chose one dos- alternative federal satisfy in provide must order to RU-486 age protocol.5 over FDA R. regimens ¶ 5) abortions, (Brenner inducing for (mifepristone) at ID (Page 134-3 Decl. ¶ (Clawson 5) physician provides 2114); and the # R. RU-486 134-4 Decl. at #2150); person (mifepristone) (Page (Harrington the other ID R. 134-5 ¶ 5) 2180); (Page Decl. # purpose inducing abortion in ID R. 134-6 ¶ 2186).6 (Lonn 5) (Page all Decl. at ID # provisions accordance with offederal regulates marketing days using protocol 4. The LMP would be a non-FDA FDA and distri- manufacturers, drugs gestational bution of not the regarding pre- limits time and practices physicians treating patients. dosages sumably the would also mirror a non- However, apply can manufacturers protocol as a FDA result. drug's update approval FDA letter based on new studies. That has not been done in responds 6.The State that Plаnned Parent- this case. very may have recommended that hood well regimen. patients its choose an alternative protocol stops days 5. Because the FDA LMP, all of women between ¶ 12) 2151) (medical Planned Parenthood’s Ohio clinics offer ID (Page # abortions $410);7 through medical abortions the admin- cost R. 134-5 (Harrington Decl. at ¶ 8) (medical mifepristone 2180) misoprostol. (Page istration -with ID # clinic, $360); (Lonn ¶ Depending on the Planned 9) Parent- cost R. 134-6 Decl. at (medical #2186) reported percentage (Page hood of wom- ID abortions cost $450). choosing up en medical abortions to 63 plan Because the FDA does not days anywhere LMP in permit 2009 was between the self-administration of the miso- fifty-five fourteen percent pa- of its prostol, the FDA plan involves the extra (Bren- time, stress, tients who eligible. were R. 134-3 and expense of a third doc- ¶ 13) (four- 2115) ner Decl. at ID # (Page tor’s office parties visit. The dispute (Clawson percent); teen R. 134-4 Decl. at whether the medical community accepts ¶ 16) 2152) (Page (fifty-five ID # percent); protocols the alternative cause fewer ¶ 12) R. (Harrington 134-5 Decl. at (Page side effects or have a higher success rate 2181) ID # (twenty-two percent); R. 134-6 than the FDA-approved regimes. ¶ (Lonn 14) 2187) Decl. at (Page ID # points Parenthood also out sev- (twenty-three percent). When the total why eral reasons a woman may prefer a combined, numbers are Planned Parent- medical abortion surgical abortion, over a performed
hood
a total of 6641 abortions
aside from women
particular
health
up
days
to 63
LMP in
of which 2067 conditions that make one option medically
medical,
thirty-one percent.
were
preferable over another. See R. 144-1
¶¶
(Paul
49-55)
Planned Parenthood offers
2390-92)
evidence that
Decl.
(Page ID #
(Defs.’
protocols
the newer
have several advan- but see R. 139-1
Mot. to Strike at
11)
2337)
tages
FDA-approved
over the
protocol,
(Page ID #
(objecting to testimo-
both in terms of
ny
women’s health and ac-
subject
this
because Paul is not a
FDA plan
cess
abortions. The
does
psychologist).
We consider Paul’s testimo-
permit
the use
49 ny
subject
after
on this
only to the extent that it
LMP,
days
many
but
women do not detect
personal
reflects
experiences
Paul’s
in pro-
pregnancy
their
until
days
after 49
viding
LMP.
abortions and the common sense
¶
(Paul
57)
R. 144-1
(Page
Decl. at
ID observation that “women know their own
#
The FDA plan requires
higher
needs and desires and choose the abortion
dosage of mifepristone, which Planned method that is best for them.” R. 144-1
¶
(Paul
50)
medically
#2390).
Parenthood asserts is not
neces-
Decl.
(Page ID
*8
sary (although it concedes the amount is
argue
State does not
that such statements
¶
safe).
Id. at
Requiring
higher
Indeed,
58.
the
factually
are
false.
one need not
(three
dosage mifepristone
of
pills instead
be a psychologist to observe that medical
one)
of
also raises the overall cost to the
abortions
ingesting
involve
medication
patient by about
for the two extra
$150
rather
than the insertion of instruments
alone,
mifepristone pills
depending
into the
body
woman’s
and that medical
in question
on the clinic
can amount to an abortions terminate the pregnancy in the
in
twenty-eight
increase
cost of
forty-
privacy
to
of a woman’s home through
pro-
(Brenner
percent.
two
R. 134-3
Decl. at
bleeding
cess of
in
opposed to
a clinical
¶ 9)
2114) (medical
(Pagе ID #
setting.
abortions
why
We need not conclude
wom-
$545);
(Clawson
cost
R. 134-4
might
Decl. at
en
prefer
procedure
one
over the
¶
(Clawson
12)
7. Clawson estimated an increase in cost
(Page
from
ered. R. 134-4
Decl.
ID
$410
$700
to
when
#2151).
the extra medication as
well as the extra clinic visit are both consid-
infections fol-
from serious
eight deaths
of
the differences
acknowledge that
to
other
to terminate
of
lowing
are substan-
the use
procedures
two
the
between
vaginal
may exist.
of whom used
seven
preferences
pregnancy,
that such
tial and
R. 128-
misoprostol.
of the
administration
sta-
competing
its own
The State offers
A)
(2/24/2010
Q
(Page
Mifeprex
FDA
&
medical
frequency of
regarding
tistics
1918).10
could not state
The FDA
ID #
requires mandato-
Ohio
in Ohio.
abortions
mifepristone was
the use of
whether
abortions, and the
induced
of
ry reporting
these deaths.
Id.
cause of
reported
of Health
Department
Ohio
in
were
Ohio
of abortions
17.7%
surgi-
were
and 80%
medical/non-surgical
History
B. Procedural
¶¶ 6-7)
(Paulson Decl.
cal. R. 128-16
it
signed but before
the Act was
After
common
The most
ID #
(Page
effect,
sued the
took
medical/non-surgical abortion
of
method
General,
Governor,
Attorney
the Ohio
Ohio
mi-
mifepristone and
a combination
was
in 2004
prosecutors
a class of local
¶
not
State does
at
The
Id.
soprostol.8
enjoin
to
the enforcement
seeking
many medical abortions
on how
have data
Par-
beginning,
Act. From
an
protocol or
FDA-approved
follow
the Act is
maintained that
has
enthood
public
In the
version
protocol.
alternative
independent rea-
for four
unconstitutional
statis-
of Health’s
Ohio Department
(1)
unconstitutionally
Act
sons:
that medical
observed
report,
tical
Ohio
(2)
right
Act
a woman’s
vague;
violates
common”
the “second most
were
abortions
(3)
an
imposes
bodily integrity;
in Ohio and
of abortion
method
burden on
woman’s
undue
mifepristone] was ex-
approval [of
“[FDA]
(4)
abortion;
the Act fails
choose
early
many of the
abortions
pected to shift
health
protect
a woman’s
adequately
non-surgical
methods.”
from
at 3. To our
Appellant Br.
and life.
Department
Health,
See
Induoed
Ohio
chal-
this is the first federal
knowledge,
(2008), available online
AboRtions
Ohio
restricting the use of
to state laws
lenge
http://www.odh.ohio.gov/healthstats/
Ap-
reach the Court of
mifepristone to
vitalstats/abortionmainpage.aspx.9
22, 2004,
September
the district
peals. On
using
medical abortions
argues that
State
preliminary injunction en-
court issued
than
are
FDA-approved protocol
safer
entire Act on
enforcement of the
joining
protocols.
off-label
Since
those that use
with
plaintiffs’
likelihood of the
success
reports
the FDA received
implementation,
did not
to be a fact
the State
may
mined this
performed
also be
8.Medical
II,
499
(1)
exception
lack of an
for the were:
respect to the
“Does
mandate
[the Act]
Par
in
physicians
perform
health and life of woman. Planned
Ohio who
Region
Taft,
using mifepristone
v.
337
do
in compliance
enthood Cincinnati
so
2004)
(S.D.Ohio
(“Taft
forty-nine day
1040
with the
F.Supp.2d
gestational
limit
/”).11
approval
described
the FDA
letter?”
(2)
and
“Does
phy
[the
mandate that
Act]
injunction,
appeal
preliminary
On
of the
perform
sicians in Ohio who
abortions us
the district court erred in
we held
ing mifepristone
compliance
do so
treating
exception
a health and life
as a
protocols
the treatment
dosage
indica
regula
for an
per
requirement
se
drug’s
tions described in the
final printed
constitutional,
tion to be
but nonetheless
labeling?” Planned Parenthood Cincin
in
preliminary
affirmed the issuance of a
Strickland,
Region
406,
nati
v.
necessity of a
junction
excep
on the
health
(6th Cir.2008) (“Strickland ”).
412
I
II,
tion in
case.
court held there delay appellate review.” Gen. plain reason regarding material fact issues Inc., v. F.3d GenCorp, Inc. 23 Acquisition, to a respect undue burden claim tiffs’ (6th Cir.1994) (internal 1022, quota- 1026 at 26-27. exception. Id. woman’s health omitted). tion marks and alterations We the dis request, At Planned Parenthood’s novo review to the district court’s apply de judgment final under trict court entered 54(b) and review inquiry on conclusions on first Rule of Civil Procedure Federal court’s abuse of discretion the district summary judg for claims for which the three delay. no just reason for granted and determination was ment for defendants pending Id. at proceedings stayed remaining Southwest appeal. Planned Parenthood inquiry the district The first —whether 1:04-CV-493, DeWine, Region v. No. Ohio judgment to one or more court entered as (S.D.Ohio 4063999, Sept.
2011 WL
at *3
than all of Planned Parenthood’s
but fewer
2011) (“DeWine ”).
13,
appeal
This
fol
parties
a difficult
question.
claims—is
lowed.
letter
asked to submit additional
were
issue,
review,
on this
on de novo
briefs
II.
JURISDICTION
remaining
agree with them that
we
The district
had federal sub
court
are in fact
from the one
separate
claims
Par
jurisdiction over Planned
ject matter
remaining
claim
below.
claims under 28
enthood’s constitutional
tests to
apply many
Courts
different
however,
§
jurisdiction,
1331. Our
U.S.C.
whether
claims exist
multiple
determine
jurisdic
have
straightforward.
is less
Wе
54(b),
purposes
of Rule
and we
for
final
§
28
1291 to review
tion under U.S.C.
no
previously recognized
have
that there is
Typically,
orders of the district court.
“
”
accepted
for determin
‘generally
test’
summary
grants
when a district court
ing
separate
what
claim.
constitutes
claims, the
on some
not all
judgment
but
Acquisition,
(quoting
just delay.” reason for Fed.R.Civ.P. test). definitive Our circuit has tradition 54(b) improper, If Rule certification is test, ally applied “operative facts” jurisdiction be no lack because there would 54(b) Rule “[a] which defines ‘claim’under from could parties final order which the facts which aggregate operative ‘[as] appeal. Express take an Fed. Lowery v. to a give rise enforceable (6th Cir.2005); 817, Corp., 426 F.3d see 820 if party courts’ even has raised differ Apart also Justice Pendleton Place Inc. v. GenCorp, ent theories of relief.” (6th Cir.1994). ments, 40 F.3d (6th Corp., 390 Cir. Olin F.3d 2004) Proper (quoting under Rule Acquisition, certification Gen.
54(b) “First, 1028), denied, cert. two-step process. (2005); expressly
district court must
direct
We are mindful not to
facts,
the same nucleus of
...
requirefd]
tive
broadly,
facts” test too
however.
In
analysis
similar
of the terms and reach of
Sears,
Mackey,
Roebuck & Co. v.
the challenged provision[,]” and if raised
(1956),
426 abortion, or an alter- for the than a “seek[ing] to recover safer all ories as proto- injury.”). safer than the FDA underlying protocol native same challenge based asserting col. Count mind, turn to the claims in we that With choose, right to the burden on on Here, poten- there are four in this case. and in- whether the added costs considers disqualify the all seek to tial claims FDA-protocol, of the conveniences admittedly and unconstitutional Act as entirely in certain option lack of a medical declaratory injunctive and the same seek contexts, prevent large fraction of will However, aggregate opera- of relief. exercising from their constitutional women rise to each give facts that tive inju- alleged right to choose abortion. sufficiently sep- are rights to be vindicated entirely separate affect classes ries despite the jurisdiction arate to confer may placed those whose lives be women: alleges 1 overlap. some Count presence of (Count 3) by the Act and those at risk vague. unconstitutionally Act is to choose abortion will be whose decision right physicians is the right at issue by the extra im- unduly burdened hurdles criminal of what behavior is to have notice (Count 4). by the Act posed Whether Because they prosecuted. can be before with health issues are burdened women inqui- the relevant legal question, this is the Act bears no .relation to whether the would physician a reasonable ry is whether with access issues will be bur- women performing an certain acts when know that dened; a сonstitutional violation proof of 2 or not. Count are criminal will, rights of the former de- against the right to the Act violates the alleges that entirely separate facts from those pend on obtaining the women bodily integrity of necessary prove against a violation necessary to estab- The facts abortions. latter. proving include that the this violation lish intru- physical forcible Act will result operative facts nec- reviewing After body into a woman’s sions the state claim, essary give rise to relief in each the state their will and whether against sufficiently that their differences we hold for an invasion. compelling has a need such outweigh they have in common. Be- what no relation to whether Count bears count involves distinct facts cause each notice gives physicians
Act constitutional relating separate injuries, each count is criminal conduct. Rule separate purposes claim for and 4 are the most similar Counts 3 54(b). they allege violations of the both inquiry The second is also satisfied imposed an undue not to have burden independently re here. The district court although But the abortion decision. 54(b) request for Rule certifica viewed analyze apply legal the same framework deter (and expressly tion and issued order claims, injuries both constitu- vindicated) mining just was no reason for there rights to are distinct tional be directing entry delay expressly from other and from Counts each or more but fewer judgment final as to one argument, the health and life Count DeWine, than all claims this case. an un- imposes considers whether the 4063999, *3; GenCorp, see burden on certain women with medical WL due Wright, Cir.1996); judicata (discussing "claims” res see also 18 Charles Alan pur- Arthur R. Miller & Edward H. Cоoper, Federal poses). 2002) (2d § ed. Practice and Procedure explicitly bility determinations, at 442. The district court the weighing of the *13 weighed evidence, the non-exhaustive list of factors drawing and the of legitimate provided determining we have for whether inferences jury from the facts are func tions, just delay. not judge.” to find reason Those fac- those of a Anderson v. Inc., 242, Liberty Lobby, 255, tors include: 477 U.S. 106 2505, (1986). S.Ct. 91 202 L.Ed.2d (1) Sum relationship adjudi- the between the mary judgment is appropriate only if (2) “the claims; unadjudicated and the cated movant shows genuine that there is no possibility the that the need for review dispute as to any material fact and the might might or not be mooted future judgment movant is entitled to as a matter (3) court; developments in the district 56(a). of law.” Fed.R.Civ.P. possibility the reviewing court might obliged to be consider the same (4) time; presence
issue
second
IV. VAGUENESS CLAIM
absence of
claim or counterclaim
Parenthood’s
first
against
which could result in set-off
challenge is well-suited for summary judg
(5)
final;
judgment sought to be made
ment
because it involves
question
delay,
miscellaneous factors such as
eco-
of statutory interpretation. An Act crimi
considerations,
solvency
nomic and
shor-
nalizing certain
procedures
will
trial,
tening
frivolity
the time of
of com-
not be unconstitutionally vague if it “pro
claims,
peting
expense, and the like.
vides
ordinary
doctors of
intelligence a
Corrosioneering,
Thyssen
Inc. v.
Envtl.
reasonable opportunity to know what
Inc.,
1279,
(6th
Sys.,
807 F.2d
1283
Cir. prohibited[,] ... sets forth relatively clear
guidelines
prohibited conduet[,]
as to
sepa-
The district court considered the
provides objective criteria to evaluate
claims,
of
rateness
the unlikelihood whether a
performed
doctor
a prohib
has
that the need for appellate review would
Carhart,
procedure.”
ited
Gonzales v.
550
be mooted
future developments, the
124, 149,
1610,
U.S.
127 S.Ct.
167 L.Ed.2d
duplicate
unlikelihood of
of
review related
(2007) (internal quotation
480
marks omit
issues,
claims,
off-setting
the lack of
and ted). Given the
English
constraints
possibility
appeal
immediate
language,
law need not contain “meticu
infirmity.
expense
would shorten the time and
specificity”
lous
to avoid constitutional
trial. The district court’s balancing of
yned
City Rockford,
v.
408
Gra
these issues was not an
abuse
discre-
104, 110,
2294,
U.S.
92 S.Ct.
33 L.Ed.2d
Therefore,
tion.
agree
that certifica-
(1972).
222
It
reasonably
must
“define[ ]
54(b)
tion under Rule
was
proper
this
the line between potentially criminal con
case,
jurisdiction
and we have
to entertain
duct on the one hand and lawful abortion
appeal.
other,” Gonzales,
149,
on the
U.S.
III. STANDARD OF REVIEW “precisely highest read court of the We review de novo a district interpreted Wainwright State has it.” v. Stone, grant summary 21, court’s judgment. Int’l 414 U.S. Cummins, Inc., (1973) (internal
Union 483 L.Ed.2d quotation (6th Cir.2006). omitted). so, In doing we highest review the marks A state’s court is evidence and draw all inferences “the final arbiter of what is state law.” Co., light most favorable to Planned Parent West v. Am. Tel. & Tel. (1940). nonmoving party.
hood as the
Id.
“Credi-
During
LMP
50 to 63
method bans
only
previability
The
other
explicitly
has not
involve
Supreme
Supreme
Court
reviewed
Court
partial-birth
techniques
a total method ban consti-
abortion
defined when
Stenberg, similarly
In
tutes a
obstacle” to woman’s
second trimester.
“substantial
Danforth,
Supreme
held that
rights. Planned Parent-
Court
exercise of her
18. Casey
case and
solely
the Act’s effects. The
itself was not a method-ban
and focuses
solely
analyzed
that the Act focuses
on abortions
as
fact
whether certain restrictions such
(and
mifepristone)
off-label uses of
not other
spousal-notification
informed-consent
eyebrows,
certainly
but we will
raises some
Casey,
laws constituted an undue burden.
purpose
presume a harmful
without evi
not
895,
at
509
procedures
only
was the
available method in
because dilation
evacuation
Ken
E”)
(“D
commonly
tucky,
making
prohibition
were “the most
used
thus
&
its
‘almost
performing previability
second
a prohibition
post-first
method
tantamount’ to
abortions,” Missouri’s ban im
trimester
trimester abortions.” Id.
526-27.
In
at
Voinovich,
upon
“an undue burden
a woman’s
posed
we struck down Ohio statute
if
right to make an abortion decision”
it banning partial-birth
impos
abortions as
Stenberg,
covered D & E abortions.
530 ing an undue burden because the statute’s
945-46,
at
“large
135-36,
5H
them,
interchangea-
anxiety
pain
the
are
extra
it caused
sume that
methods
as
of
female.
perspective
conclusively
from the
a
establishing
ble
as matter of law
that the method ban in this case does not
mind,
in
I turn to the facts of
With that
a
impose
large
substantial obstacle in a
in
light
this case. When viewed
most
fraction of women. But women deterred
Parenthood,
favorable to Planned
the evi-
by
any
the ban who decided not to obtain
that medical abortions
suggests
dence
unlikely
abortion at all would be
to return
abortions on
surgical
were elected over
to Planned
Parenthood’s clinics
volun-
average by
thirty-one percent
about
give
testimony.
teer
their names or
patients in 2009.
Planned Parenthood’s
that
Parent-
The State reminds us
importantly,
majority points
More
provider in
hood is not the
no case either from our court or the Su-
number,
Ohio, but even the State’s
that
requiring
affirmative testimo-
preme
cases in 2008 were
17.7% of
medical/non- ny
they
from individual women that
would
And,
percentage.
surgical, is a non-trivial
not have obtained an abortion but for the
very study
by
cited
the State for its
ban to establish that a total method ban
statistic,
Department of Health
the Ohio
a
imposes
substantial obstacle. See Sten-
approval
mifepri-
that FDA
observed
(not
berg, 530 U.S.
expected
many
to shift
stone “was
сonsidering’whether
just
women could
as
early
surgical
non-surgi-
abortions from
easily
using
obtain an abortion
alternative
Department
cal methods.” Ohio
banned);
if D E
method
& method were
(2008),
Health,
Induced Abortions
in Ohio
Danforth,
ment restrictions
(1996);
Casey,
see also
L.Ed.2d 679
29)
(D.
(Page
Order
R. 161
Ct.
5/23/11
(striking
lyzing method
“par-
bans
the context of
techniques
tial-birth”
provide
does not
Importantly,
con-
Supreme
Court has not
trolling guidance
most,
for this case. At
any
articulated
rule that
suggest
would
Carhart,
v.
Gonzales
right
to choose abortion encom-
124, 150-54,
550 U.S.
passes
particular
choose a
Judge
Moore refers to
genuine question
this conclusion
of fact. For an issue of
"resolving
questions,”
these fact
genuine,
and "conclu-
fact to be
the nonmovant must do
sively establishing as a matter
simply
of law that the
more than
show that there is some
method ban in
impose
this case does
metaphysical
doubt as to the material facts.
¶¶
Co.,
substantial obstacle....”
See ante at
Matsushita Elec.. Indus.
Ltd.
Zenith
Instead,
574, 586-587,
63. Not at all.
Corp.,
on the record before
Radio
us and
summary judgment
(1986).
under the
stan-
because unduly cal abortion would burden provid- travel to reach an abortion must a large to abortion for fraction choose a er, will often be practical effect Moreover, affected the evidence women. day much than a because delay of more Planned Parenthood shows submitted period requires that a wom- waiting remains available at surgical abortion an make at least seeking fact, In woman price. a lower many to the in- [I]n two visits doctor. cost her who mentioned increased exposure this will increase the stances specifically said that this would statement seeking to “the harass- women make it for her choose medical difficult pro- of anti-abortion hostility ment and abortion, it not that be a burden but would a demonstrating outside clinic.” testors pregnancy. on her choice to abort her result, ... women a for those who As give to a rea- This does not rise evidence resources, financial have fewest increase dosage sonable inference distances, long who must travel those choice to is a obstacle to the substantial difficulty explaining and those who have undergo abortion. husbands, employ- their whereabouts to anal- than the method-ban Even more others, ers, waiting peri- 24-hour ysis, we cannot infer a substantial obstacle “particularly be burdensome.” od will regarding from submitted the evidence S.Ct. 2791. Casey, dosage requirement. The rec- increased Still, the Court found that even these oner- supports an inference that arguably ord un- impediments did not constitute an
ous would women’s the increased cost burden based record. due burden on the abortion, ability choose medical which However, Baird, may preferred be method. Corp. their In Women’s Med. Prof. (6th Cir.2006), infer- permit this that does not reasonable clinic, undue burden on the constitu- ence that an the closure of addressed tionally “freedom to decide protected farther for an required women to travel a pregnancy terminate” would increased cost. whether to giving rise to abortion — 874, 112 Casey, 505 U.S. at by result. increased travel distance caused because, assuming 2791. That is even presents
increased cost a substantial ob- abortion, choosing stacle to medical lower-priced still have the women would abortion available option them. evidence that the cost in- Without
crease would create substantial obstacle undergo ultimate choice to an abor- tion, summary- this claim cannot survive judgment.
Thus, properly granted the district court summary judgment on this claim as well. America,
UNITED STATES ex rel. WILLIAMS, Julie Plaintiffs-
Appellees, Martinez, M.D., Plaintiff, John *27 GROUP, INC.; RENAL CARE Renal Group Supply Company; Care Fresen Holdings, Inc., ius Medical Care De fendants-Appellants.
No. 11-5779. United States Appeals, Court of
Sixth Circuit.
Argued: July
Decided and Filed: Oct.
notes
the Medi
Any
with the Act.
risk of uncertainty
recognizes
cation
physicians
Guide
hidden,
regarding
requirements
extra
is
prescribe drugs “off-label.” But no rea
provisions,
cured
the scienter
physician
sonable
would view this refer
penalty
forbid
under the Act unless a doc-
ence as permitting
prescription
off-label
knowingly
tor
violates one of
require-
mifepristone
Cordray
when
makes clear
A physician
ments.
a good-faith
with
be-
physicians
must stick to the FDA lief that a certain
comply
action would
with
protocol.
highest
When a state’s
court
physician
the Act
accidentally
.or
who
statute,
interprets a
its construction is con
takes an action not in compliance with the
part
sidered
of the statute itself. Wain
Gonzales,
penalized.
Act would not be
550
22-23,
414
wright,
U.S. at