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Jackson Women's Health Organization v. Dobbs

United States Court of Appeals, Fifth Circuit

December 13, 2019

JACKSON WOMEN'S HEALTH ORGANIZATION, on behalf of itself and its patients; SACHEEN CARR-ELLIS, M.D., M.P.H., on behalf of herself and her patients, Plaintiffs - Appellees
THOMAS E. DOBBS, M.D., M.P.H., in his official capacity as State Health Officer of the Mississippi Department of Health; KENNETH CLEVELAND, M.D., in his official capacity as Executive Director of the Mississippi State Board of Medical Licensure, Defendants - Appellants

          Appeal from the United States District Court for the Southern District of Mississippi

          Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.


         This case concerns a Mississippi law that prohibits abortions, with limited exceptions, after 15 weeks' gestational age. The central question before us is whether this law is an unconstitutional ban on pre-viability abortions. In an unbroken line dating to Roe v. Wade, the Supreme Court's abortion cases have established (and affirmed, and re-affirmed) a woman's right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman's right, but they may not ban abortions. The law at issue is a ban. Thus, we affirm the district court's invalidation of the law, as well as its discovery rulings and its award of permanent injunctive relief.


         On March 19, 2018, Mississippi enacted House Bill 1510, entitled the "Gestational Age Act" ("the Act").[1] The Act provides that, in most cases, an abortion cannot be performed until a physician first determines and documents a fetus's probable gestational age.[2] Then,

[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not perform, induce, or attempt to perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.[3]

         The legislature found that most abortions performed after 15 weeks' gestation are dilation and evacuation procedures and that "the intentional commitment of such acts . . . is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession." It also found that developments in medical knowledge of prenatal development have shown that, for example, the abilities to open and close fingers and sense outside stimulations develop at 12 weeks' gestation. Finally, it found that abortion carries risks to maternal health that increase with gestational age, and it noted that Mississippi has legitimate interests in protecting women's health.

         On the day the Act was signed into law, Jackson Women's Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors, Dr. Sacheen Carr-Ellis (collectively "the Clinic"), filed suit challenging the Act and requesting an emergency temporary restraining order. The next day, the district court held a hearing and issued a temporary restraining order.[4]

         The district court also granted the Clinic's motion to limit discovery to the issue of viability. It determined that the Act "is effectively a ban on all elective abortions after 15 weeks," and "[g]iven the Supreme Court's viability framework, that ban's lawfulness hinges on a single question: whether the 15-week mark is before or after viability." Under this view, Mississippi's asserted state interests were irrelevant and the State's discovery was aimed at rejecting the Supreme Court's viability framework, not at defending the Act within that framework.

         The State served extensive written discovery requests, which the Clinic opposed to the extent they reached beyond the viability question. The State also designated Dr. Maureen Condic as an expert in neurological embryology and fetal development. On the Clinic's motion, the district court excluded Dr. Condic's expert report because the State had conceded that it pertained to the issue of fetal pain and not to viability.[5]

         Discovery concluded and the Clinic moved for summary judgment. The Clinic submitted evidence that viability is medically impossible at 15 weeks LMP. The State conceded that it had identified no medical evidence that a fetus would be viable at 15 weeks. It also conceded that the Act bans abortions for some women prior to viability. Still, the State opposed summary judgment because the Act "merely limits the time frame" in which women must decide to have an abortion and because the Supreme Court has left unanswered whether Mississippi's asserted state interests can justify the Act.

         The district court granted summary judgment to the Clinic. The Act was unconstitutional, the court held, because "viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions."[6] As summarized by the district court, "[t]he record is clear: States may not ban abortions prior to viability; 15 weeks lmp is prior to viability; and plaintiffs provide abortion services to Mississippi residents after 15 weeks lmp."[7] Finally, rejecting the State's argument that the Clinic could only seek an injunction up to 16 weeks LMP (since the Clinic does not provide abortions after that point), the district court permanently enjoined the Act in all applications.[8]


         This Court reviews a grant of summary judgment de novo, applying the same standard as the district court.[9] Summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."[10] A district court's decision to limit discovery is reviewed for abuse of discretion, [11] as is a district court's tailoring of injunctive relief.[12]


         The State raises five main arguments on appeal: (1) the Supreme Court's decision in Gonzales v. Carhart preserves the possibility that a "state's interest in protecting unborn life can justify a pre-viability restriction on abortion";[13](2) the district court abused its discretion by restricting discovery, thus stymying the State's effort to develop the record; (3) the district court failed to defer to the legislature's findings; (4) the Act imposes no undue burden, as it only shrinks by one week the window in which women can elect to have abortions; and (5) the Clinic lacked standing to challenge the Act's application after 16 weeks, the point at which the Clinic stops providing abortions under its own procedures.

         These issues collapse to three: whether the summary-judgment order properly applies the Supreme Court's abortion jurisprudence, whether limiting discovery to viability was an abuse of discretion, and whether the scope of injunctive relief was proper.


         In Roe v. Wade, the Supreme Court held that the right to privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."[14] Casey "reaffirm[ed]" Roe's "recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure."[15]

         In Gonzales, the case on which the State's argument relies, the Court "assume[d] the following principles":

Before viability, a State "may not prohibit any woman from making the ultimate decision to terminate her pregnancy." It also may not impose upon this 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." Casey, in short, struck a balance.[16]

         The district court applied these principles straightforwardly. It recognized, as the controlling standard in this case, Casey's holding that no state interest can justify a pre-viability abortion ban. The State conceded that it had no evidence of viability at 15 weeks LMP and that it is the Mississippi Department of Health's position that a fetus cannot survive outside the womb at 15 weeks LMP; accordingly, the court concluded that the Act prohibits pre-viability abortions.[17] The Act's consequences were undisputed: Dr. Carr-Ellis averred that the Clinic provides an abortion to at least one woman per week after 14 weeks 6 days LMP, so the Act would force these women to carry their pregnancies to term against their will or to leave the state for an abortion.[18]There was thus no dispute that the Act prohibited pre-viability abortions, which ended the district court's analysis.

         This result accords with those reached by the circuit courts that have addressed similar abortion prohibitions. For example, the Ninth Circuit invalidated a ban at 20 weeks in Isaacson v. Horne;[19] the Eighth Circuit invalidated bans at 6 and 12 weeks in MKB Management Corporation v. Stenehjem[20] and Edwards v. Beck, [21] respectively; and the Tenth Circuit invalidated a ban at 22 weeks in Jane v. Bangerter.[22] Recent district court decisions have followed suit.[23]

         The State's primary constitutional argument on appeal is that the district court should have accounted for the State's interests and then determined whether the Act imposes an undue burden. The State argues that if the district court had done so, and if it had recognized that viability is not the only proper consideration in assessing the Act's lawfulness, it would have determined that the Act is constitutional.

         The parties dispute whether the Act bans abortions or regulates them, a distinction vital to evaluating the Act's lawfulness. Pre-viability regulations of abortion procedures can pass constitutional muster if they do not pose an undue burden, which requires the weighing of state interests against the burden on a woman's right to elective abortion.[24] If the Act is a regulation, then the State's interests should have been considered. Prohibitions on pre-viability abortions, however, are unconstitutional regardless of the State's interests because "a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability."[25] "[V]iability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions."[26] Thus, if the Act is a ban, the State's interests cannot outweigh the woman's right to choose an abortion and the undue-burden balancing test has no place in this case.

         The State casts the Act as a mere regulation of the time period during which abortions may be performed, akin to a regulation of the time, place, or manner of speech.[27] The State argues the Act is not a ban because it allows abortions before 15 weeks LMP, it contains exceptions, and, practically speaking, it only limits the relevant time frame by one week, since the Clinic (the only abortion provider in Mississippi) does not perform abortions after 16 weeks LMP.

         Finally, the State likens the Act to the federal Partial-Birth Abortion Ban Act of 2003 that was upheld in Gonzales v. Carhart.[28] The Gonzales Court emphasized congressional findings that partial-birth abortion contravened governmental interests in "the dignity of human life" and "the integrity and ethics of the medical profession."[29] Here, the State asserts the same interests on behalf of Mississippi, and likens the "brutal and inhumane" partial-birth abortion procedure to the State's evidence of purported fetal pain.

         In the State's view, the district court should have evaluated, as did the Gonzales Court, whether the Act "place[s] a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability[.]"[30] Under this analysis, the State contends the Act "would likely be upheld, since it allows women up to three and a half months to decide whether to have an abortion." Thus, the State argues that the relatively few women "who would be required to make their ultimate decision whether to have an abortion one week earlier" do not outweigh "the harm to the State by requiring it to permit inhumane abortion procedures which cause a fetus to experience pain-a factor the Supreme Court has never explicitly addressed."[31]

         These arguments do not save the Act from encroaching on the holding of Casey. The Act pegs the availability of abortions to a specific gestational age that undisputedly prevents the abortions of some non-viable fetuses. It is a prohibition on pre-viability abortion.[32] Gonzales is distinguishable for the same reason that any case considering a pre-viability regulation is distinguishable: laws that limit certain methods of abortion or impose certain requirements on those seeking abortions are distinct under Casey from those that prevent women from choosing to have abortions before viability.

         In recognition of state interests, Casey allows restrictions on pre-viability abortions that are not an undue burden on a woman's right to elective abortion. The ban on partial-birth abortions in Gonzales is one example. But the Act is not such a restriction, so this legal principle, while valid, has no application here. Casey clarified that the "adoption of the undue burden analysis does not disturb the central holding of Roe": "a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability."[33]This "central holding of Roe" is what the Act implicates here, as the State asks us to extend the undue-burden analysis past Casey's clear demarcation. That the Act does not ban all abortions, but only those after 15 weeks LMP, does not change the fact that viability is the critical point.[34] Nor is the number of affected women relevant to the Act's lawfulness, as Casey made clear that "a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability."[35]

         The Act is a ban on certain pre-viability abortions, which Casey does not tolerate and which presents a situation unlike that in Gonzales. With respect to bans like this one, the Supreme Court's viability framework has already balanced the State's asserted interests and found them wanting: Until viability, it is for the woman, not the state, to weigh any risks to maternal health and to consider personal values and beliefs in deciding whether to have an abortion.[36]


         Next, the State challenges the district court's decisions limiting discovery to the issue of viability and excluding expert testimony regarding fetal pain perception.

         The scope of discovery is generally broad and allows for "any nonprivileged matter that is relevant to any party's claim or defense."[37] A court is afforded broad discretion when deciding discovery matters, but the court abuses its discretion when its decision is based on an erroneous view of the law.[38] Still, we "will only vacate a court's judgment if the court's abuse of discretion affected the substantial rights of the appellant."[39]

         The State argues the district court abused its discretion by limiting discovery to one issue-whether 15 weeks LMP is before or after viability. The State seeks a remand for development of a complete record in conjunction with the discovery being conducted for Part Two of this litigation. If a district court does not need to consider new evidence, the State argues, courts will remain "willfully blind" to scientific developments and the Supreme Court can never see a full record in an abortion case.

         But the result of the State's challenges to the district court's discovery rulings flows from our holding that the Act unconstitutionally bans pre-viability abortions. No state interest is constitutionally adequate to ban abortions before viability, so the interests advanced here are legally irrelevant to the sole issue necessary to decide the Clinic's constitutional challenge. Bound as the district court was by the viability framework, it was within its discretion to exclude this evidence.[40]


         Finally, the State contends that the district court overreached in fashioning the permanent injunctive relief it granted to the Clinic. It argues that (1) the Clinic lacks standing to bring a facial challenge because the Clinic does not perform abortions after 16 weeks LMP and (2) the relief awarded by the district court is not narrowly tailored to the Clinic's alleged injury.

         The State conflates standing with relief. A plaintiff must show standing "for each claim he seeks to press" and "each form of relief sought."[41] The Clinic has done so, as it pursued its constitutional claims on behalf of its patients, and its requested form of relief (permanent injunction of the Act) redressed the Act's pre-viability ban on abortions, which is an injury traceable to the State. This challenge to the scope of relief is better addressed in terms of the court's exercise of discretion in tailoring the remedy, not in terms of standing.

         To that end, the State argues the district court should have narrowly tailored the permanent injunctive relief to the injury, which it contends is the Clinic's inability to perform abortions up to 16 weeks LMP. The State argues it was error to facially invalidate the Act without first considering its constitutionality as applied to the Clinic and its patients. The State asks us to vacate the relief granted and order the district court to craft a remedy tailored to its view of the actual dispute, which is whether the Act is unconstitutional as applied to abortions performed at or before 16 weeks LMP.

         In June Medical Services v. Gee, decided two months before the district court's order, we "resolve[d] the appropriate framework for reviewing facial challenges to abortion statutes."[42] We concluded that the Supreme Court eliminated the uncertainty by adopting, in Hellerstedt, the Casey plurality's test: An abortion restriction is facially invalid if "in a large fraction of the cases in which it is relevant, it will operate as a substantial obstacle."[43] The relevant denominator includes only "those women for whom the provision is an actual rather than an irrelevant restriction[, ]" which is a narrower category than "all women," "pregnant women," or even "women seeking abortions identified by the State."[44]

         Here, the Act is invalid as applied to every Mississippi woman seeking an abortion for whom the Act is an actual restriction, never mind a large fraction of them.[45] And for those women, the obstacle is insurmountable, not merely substantial. That the Act applies both pre- and post-viability does not save it. Mississippi has already banned all abortions after 20 weeks by separate statute.[46] The only women to whom the Act is an actual restriction, then, are those who seek abortions before 20 weeks; the Act is redundant of existing Mississippi law as to all abortions after that point. This is the tack taken by the Ninth Circuit in Isaacson, where Arizona's 20-week ban only had practical significance until viability because Arizona separately bans post-viability abortion:

[G]iven the controlling, substantive legal standards, [the 20-week law] is invalid as applied to every woman affected by its prohibition on abortions. In other words, there is a one hundred percent correlation between those whom the statute affects and its constitutional invalidity as applied to them. . . . [G]iven the one hundred percent correlation, there is no doubt the special rule that applies to facial challenges in abortion cases-that plaintiffs need only show the law challenged is invalid "in a large fraction of the cases in which [the statute] is relevant[.]"[47]

         In Sojourner T v. Edwards, we facially invalidated a Louisiana ban criminalizing nearly all abortions because its pre-viability applications were clearly unconstitutional under Casey.[48] We did so without discussing its theoretically valid post-viability applications (although the Clinic notes that, as has Mississippi here and as had Arizona in Isaacson, Louisiana had otherwise banned post-viability abortions, making these possible applications redundant).[49]

         Even if we disregarded the separate Mississippi abortion law and even if we were to expand the denominator to include all women seeking abortions rather than only those seeking them before 20 weeks (the period when the Act alters Mississippi law) or those seeking them between 15 and 16 weeks (when the Act has practical significance for women visiting the state's sole abortion provider), the Act would still pose a substantial obstacle in a "large fraction" of cases.[50] It might be plainer still simply to say what other courts have said in similar cases: This law is facially unconstitutional because it directly conflicts with Casey.[51] Accordingly, the district court did not abuse its discretion ...

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