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Planned Parenthood of Great Northwest v. Wasden

United States District Court, D. Idaho

October 22, 2018

LAWRENCE G. WASDEN, in his official capacity as Attorney General of Idaho; JAN M. BENNETTS, in her official capacity as Ada County Prosecuting Attorney; GRANT P. LOEBS, in his official capacity as Twin Falls County Prosecuting Attorney; THE INDIVIDUAL MEMBERS OF THE IDAHO STATE BOARDS OF MEDICINE AND NURSING, in their official capacities; and RUSSELL S. BARON, in his official capacity as Director of the Idaho Department of Health and Welfare, Defendants.


          David C. Nye U.S. District Court Judge.

         I. OVERVIEW

         Pending before the Court is Plaintiff Planned Parenthood of the Great Northwest and the Hawaiian Islands' (“Planned Parenthood”) Motion for Preliminary Injunction. Dkt. 7. After holding oral argument, the Court took the motion under advisement. Upon review, the Court now issues the following decision DENYING the motion.


         On July 1, 2018, the Abortion Complications Reporting Act (“the Act”) went into effect in Idaho. Codified as Idaho Code section 39-9501 et seq., the Act requires that all medical providers who perform abortions-including hospitals, licensed health care facilities, and medical practitioners-file a written report with the Idaho Department of Health and Welfare (“IDHW”) concerning any direct or indirect complications stemming from an abortion.

         Defendants (“the State”) contend that the Act was implemented to collect valuable information about abnormal events that occur because of an abortion and that this information is necessary to protect public health and safety. Planned Parenthood, on the other hand, asserts that animus was the motivating factor behind the Act and that the reporting requirements are unconstitutional. Planned Parenthood now seeks a preliminary injunction enjoining the State from enforcing the Act during the pendency of this litigation.


         Plaintiffs seeking a preliminary injunction must establish that: (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Short v. Brown, 893 F.3d 671, 675 (9th Cir. 2018) (internal citations omitted). The basic function of a preliminary injunction is to “preserve the status quo ante litem pending a determination of the action on the merits.” Los Angeles Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). A preliminary injunction should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Towery v. Brewer, 672 F.3d 650, 657 (9th Cir. 2012) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). The Court will address each of the necessary elements for a preliminary injunction in turn.

         IV. ANALYSIS

         A. Success on the merits

         Planned Parenthood proposes that the Act's constitutional violations fall into four main categories: vagueness, equal protection, due process, and null and void privacy requirements. In support of each proposition, Planned Parenthood discusses at length the various complications outlined in the Act and whether they are truly medical complications. In response, the State likewise spends a great deal of time discussing the finer points and nuances within the Act. These are assuredly valid arguments, and the details have been insightful to the Court, but at this stage of the litigation, the Court seeks to determine-broadly-whether there is sufficient evidence to support a finding in Plaintiff's favor. The details will be dealt with later in the litigation.

         1. Vagueness

         First, Planned Parenthood argues that the Act is unconstitutionally vague. In short, this is the crux of the case. Generally speaking, Planned Parenthood alleges that the Act is so confusing in what it requires, and so broad in its scope, that a reasonable person would have a difficult time understanding what they must do to adequately comply.

         The Act requires that:

Every hospital, licensed health care facility or individual medical practitioner shall file a written report with the department regarding each woman who comes under the hospital's, health care facility's or medical practitioner's care and reports any complication, requires medical treatment or suffers death that the attending medical practitioner has reason to believe, in the practitioner's reasonable medical judgment, is a direct or an indirect result of an abortion.

Idaho Code § 39-9504(1). The Act further defines complication as “an abnormal or a deviant process or event arising from the performance or completion of an abortion, as follows:” and then lists 37 complications. Idaho Code § 39-9503(2) et seq.

         Planned Parenthood contends that many of these so-called complications are not complications at all, but normal minor side effects, [1] not true medical conditions, [2] not specific to abortions, [3] not possible in an abortion, [4] not related to abortions, [5] or almost all encompassing.[6]

         Along with its concerns that many of the listed items bear little connection to abortions, Planned Parenthood contends that by saying a provider must report any of these issues if they arise “directly or indirectly” from an abortion, there is no way to know an appropriate timeframe-e.g. does an infection that arises a week later need to be reported-or what even qualifies as “indirect.” Planned Parenthood provides the affidavit of Dr. A[7] who states that the Act is so confusing, even as a medical professional, she has no idea what the Act actually requires [of her].

         In response, the State asserts that Planned Parenthood has left out the crucial qualifying statement of the Act that requires that these complications only need be reported if “in the practitioner's reasonable medical judgment” they stemmed from an abortion. The State further points out that under the definition of complication, the incident must be “an abnormal or deviant process or event” and therefore the Act does not, as Planned Parenthood suggests, require that practitioners report anything and everything but only complications that are abnormal and in their professional opinion arose directly or indirectly from an abortion.

         Planned Parenthood takes issue with this reading of the statute and asserts that a provider does not have discretion in determining whether a complication is a complication (as each is explicitly laid out in list form as a complication), but that the provider or practitioner only has discretion in determining if the complication arose as a result of an abortion. The State counters that there is inherent discretion in determining if a complication is a complication with the preceding language in the definition that the medical condition be “abnormal or deviant.” Thus, according to the State, a practitioner would never need to report simple bleeding or a light fever, but only heavy or excessive bleeding and a high fever that persist for more than 24 hours. The State adds that some discretion is built into the individual complications themselves (for example “heavy” is not defined, so a practitioner has discretion in determining if the bleeding is truly heavy/excessive or not). Admittedly, Planned Parenthood uses this exact example as why the Act is vague rather than discretionary.

         It is somewhat difficult to accept the State's argument that there is discretion in determining what is a complication when the wording of the Act specifically states that “‘Complication' means an abnormal or a deviant process or event arising from the performance or completion of an abortion, as follows.” Idaho Code § 39-9503(2) (emphasis added). In other words, the statute does not appear to give a practitioner discretion in determining if a complication is abnormal, but instead explicitly tells them what complications are considered abnormal and must be reported. This, however, slightly conflicts with the State's position in briefing, [8] at oral argument, [9] and most interestingly, with the recently published directions for reporting under the Act.

         The Abortion Complications Reporting Form Instructions outline that “[i]f a woman reports one or more of the following items to you and, based upon your reasonable medical judgment, it is an abnormal or a deviant process or event arising from the performance or completion of an abortion, you must report it . . .” Dkt. 14-1, at 2 (emphasis added).

         Thus, the instructions seem to indicate that if a woman reports one of the 37 listed complications, the practitioner has the discretion to determine both 1) if it is abnormal or deviant and 2) if it arose from an abortion. Said differently, under the first interpretation of the Act, if a woman reports an injury to her uterus, the practitioner must report it; however, under the second, the practitioner would have the initial discretion of determining whether that injury was abnormal or deviant. The Court understands the State's argument; however, it is still difficult to reconcile it with the actual words of the statute that a “complication means . . . as follows” which appear to take away the initial discretion and instead tell a practitioner what is considered abnormal or deviant.

         As the State noted at oral argument, the parties are “diametrically opposed” on this issue of whether there is discretion in the actual determination of a complication. Undoubtedly this topic will play an integral role in the remainder or this case, but at this juncture, the Court need not reach a determination on that point, but simply ascertain whether Planned Parenthood has carried its burden of proving there are questions of vagueness in the Act.

         In support of its proposition that the Act is not vague, the State has submitted numerous affidavits-including from a medical practitioner, a midwife, and a member of the state board of medicine-in which each individual states that they do not find the Act confusing at all, and that based upon their experience and judgment, they do not foresee any difficulties in the reporting requirements.

         Finally, the State considers Planned Parenthood's argument that it cannot understand what constitutes an abnormal complication somewhat disingenuous as it [Planned Parenthood] lists many of the exact same conditions on its own website as complications.[10] The Court finds this argument somewhat compelling. Although Planned Parenthood might not agree that some of the 37 listed items are worthy of reporting, it is difficult to accept that the Act is vague or that Planned Parenthood does not understand- medically-what the complications are, as it addresses many of the same issues on its website. Additionally, if some of the complications-like stroke-rarely if ever occur following an abortion, that does not make them vague, but (for lack of a better word) superfluous.

         Finally, the parties are divided on what weight, if any, the Court should give to the District Court of the Southern District of Indiana's recent decision[11] to issue a preliminary injunction on a similar statute.

         Planned Parenthood contends that the statutes are extremely similar and that this Court should follow the Indiana Court, by finding that Planned Parenthood is likely to succeed on its constitutional vagueness challenge, and grant an injunction.

         For its part, the State asserts that the two Acts differ slightly, but that this small distinction makes all the difference. The State alleges that Indiana defined “abortion complication” as “any adverse physical or psychological condition arising from the induction or performance of an abortion, ” and provided a non-exclusive list of 26 examples of the types of conditions that qualify. See Ind. Code § 16-34-2-4.7 (emphasis added). The Indiana Court enjoined this law because it found the phrase “any adverse physical or psychological condition” vague and noted that, because the term “includes” was inserted before the list of conditions, that list could not be construed as an exclusive list.

         The State contrasts this to the Act in Idaho where it is not just any adverse condition, but only those that are listed, and argues that because the Act does not use the word “includes” before its list of conditions, the list itself is exclusive. The Court agrees. While the two Acts are indeed similar, the impetus for the Indiana Court's decision is not present here. While there may be other reasons the Act is vague-perhaps the nature of the complications themselves, or the aforementioned “discretion” disagreement-it cannot be said that the same vagueness exists here as to the exclusivity of the list. As will be discussed below, the Court finds that irreparable harm will not occur in this ...

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