United States District Court, D. Idaho
PLANNED PARENTHOOD OF THE GREAT NORTHWEST AND THE HAWAIIAN ISLANDS, a Washington corporation; MARY STARK, on behalf of herself and her patients, Plaintiffs,
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 STATE BOARD OF MEDICINE, in their official capacity; THE INDIVIDUAL MEMBERS OF THE STATE BOARD OF NURSING, in their official capacity, Defendants.
MEMORANDUM DECISION AND ORDER
Lynn Winmill U.S. District Court Judge.
the Court is Defendants' Motion to Dismiss (Dkt. 33). The
motion is fully briefed and at issue. For the reasons set
forth herein the Court will deny Defendants' Motion to
almost twenty years, Idaho has made it unlawful for any
person other than a physician to perform an abortion. Idaho
Code § 18-608A (the “Physician-Only Law”).
Plaintiffs Planned Parenthood of the Great Northwest and the
Hawaiian Islands (“Planned Parenthood”) and Mary
Stark, a nurse practitioner licensed to practice advanced
nursing in Idaho, Washington, and Oregon, on behalf of
herself and her patients, now bring a civil rights lawsuit
under 42 U.S.C. § 1983 claiming the Physician-Only Law
is unconstitutional. See Dkt. 1. Plaintiffs allege
that the law violates their patients' right to liberty
and privacy as guaranteed by the Due Process Clause of the
Fourteenth Amendment to the U.S. Constitution, and violates
the equal protection rights of patients and Advanced Practice
Clinicians (“APCs”) similar to Ms. Stark under
the Fourteenth Amendment's Equal Protection Clause.
Id. at 22.
challenge the Physician-Only Law as applied to two early
abortion procedures in particular-medication abortion and
vacuum aspiration abortion. Medication abortion is typically
performed using a regimen of prescription drugs. Dkt. 1 at
7-8. Those drugs work by first temporarily blocking the
patient's pregnancy-related hormones and then causing the
uterus to contract and expel its contents. Id. The
patient typically passes the pregnancy at home in a process
similar to a miscarriage. Id. In a vacuum aspiration
abortion, the clinician inserts a small sterile tube through
the cervix into the uterus. Id. A pump attached to
the tube creates suction, which empties the uterine contents.
Id. Throughout their complaint Plaintiffs allege
these abortion procedures are nearly identical to other
medical tasks APCs are licensed to perform in the state of
Idaho. See, e.g., id. at 11, 12, 16.
bring this lawsuit on behalf of three classes of APCs under
Idaho law- nurse practitioners, physicians assistants, and
nurse midwives. See Dkt. 1 at 2. Both the
number of these providers and the breadth of their practice
authority have grown significantly over the last two decades.
Id. Idaho first recognized the role of
“[a]dvanced practice professional nurse, ” the
group of professionals Plaintiffs now describe as APCs, in
the Nursing Practice Act in 1998. See Idaho Nursing
Practice Act, 1998 Idaho Sess. Laws Ch. 118 (H.B. 662). As
the profession has grown over the years, Idaho has increased
the breadth of APCs' practice authority. See
2012 Idaho Sess. Laws Ch. 142 (S.B. 1273); Dkt. 1 at 10-11.
receive a license to practice as an APC in Idaho a provider
must be licensed as a registered nurse, have completed
significant further education, and passed a qualifying exam.
See Idaho Code § 54-1409(1). Once licensed,
APCs' scope of practice is defined by Idaho's Board
of Medicine. Dkt. 1 at 9. Nurse practitioners, for example,
are authorized to “diagnos[e] and treat” and
“prescribe[e], administer and dispens[e] of
therapeutic pharmacologic and non-pharmacologic
agents.” Idaho Admin. Code r. 23.01.01.271.02. In
Idaho, Nurse practitioners “assume primary
responsibility for the care of their patients in diverse
settings.” Id. Similarly, nurse-midwives
“provide the full range of primary health care
services to women throughout the lifespan, including
gynecologic care, family planning services, preconception
care, prenatal and postpartum care, childbirth, care of the
newborn and reproductive health care treatment.” Idaho
Admin. Code r. 23.01.01.280.03. Physician assistants perform
a similar set of tasks, and are the only APCs required to do
their work under the supervision of a physician. See
Idaho Admin. Code r. 22.01.03.028.01. Plaintiffs bring claims
on behalf of these providers because they fall under the
American College of Obstetricians and Gynecologists' list
of APCs who “can provide medication and aspiration
abortions safely and effectively.” See Dkt. 1
at 14 (citing Health & Medical Division, Board on Health
Care Services, National Academies, The Safety and Quality
of Abortion Care in the United States, at *14 (2018)).
allege that both nurse practitioners and physician assistants
in Idaho are currently licensed to perform a range of tasks
very similar to the two abortion procedures at issue in this
case. For example, both perform endometrial biopsies, a
procedure where a tube is inserted through a patient's
cervix into the uterus and a small piece of tissue is
suctioned from the uterine lining. Dkt. 1 at 11. And, they
perform colonoscopies, insert (and remove) intrauterine
devices (IUDs) through patients' cervixes, and perform
intrauterine insemination, a form of assisted reproductive
technology that involves injecting sperm into a patient's
uterus. Id. at 11-12. And, most significantly, all
APCs are licensed to use vacuum aspiration to help treat a
patient who is experiencing a miscarriage. Id.
Plaintiffs allege this method is identical, procedurally, to
performing an aspiration abortion. Id.
Complaint focuses on the specific abortion procedures they
allege are safe and well within APCs' clinical purview
otherwise allowed under Idaho law. They allege that singling
out abortion from APCs' otherwise broad scope of practice
inappropriately limits availability of abortion procedures
for Idaho women. Id. at 19. In fact, Plaintiffs
allege that abortion is the only health care service that the
Idaho Legislature singles out as beyond an APC's scope of
practice. Dkt. 1 at 12. The Complaint alleges that due to the
Physician-Only Law a woman can obtain an abortion at Planned
Parenthood in Idaho only: (1) on Thursday[s] in Meridian; (2)
on two Wednesdays per month in Twin Falls; (3) on Friday[s]
in Boise; and (4) via telemedicine approximately 1-2 half
days per week. Id. at 19. Plaintiffs allege this
diminished availability unduly burdens patients' right to
liberty and privacy as guaranteed by the Due Process Clause
of the Fourteenth Amendment, and violates the Equal
Protection Clause of the Fourteenth Amendment by singling out
abortion and abortion providers without adequate
justification. Id. at 22.
moved to dismiss, arguing that binding Supreme Court
precedent forecloses Plaintiffs' undue burden claims.
Dkt. 33. Defendants also argue that Plaintiffs' complaint
fails to state a claim for relief or meet the pleading
requirements of Rule 8. Id. For the reasons that
follow, the Court will deny Defendants' motion.
12(b)(6) Legal Standard
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief, ” in order to “give the
defendant fair notice of what the ... claim is and the
grounds upon which it rests.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). While a complaint
attacked by a Rule 12(b)(6) motion to dismiss “does not
need detailed factual allegations, ” it must set forth
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
Supreme Court identified two “working principles”
that underlie Twombly in Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). First, the court need not accept
legal conclusions that are couched as factual allegations as
true; the trial court “can choose to begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of
truth.” Id. Rule 8 does not “unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions.” Id. at 678-79. Second, to
survive a motion to dismiss, a complaint must state a
plausible claim for relief. Id. at 679.
“Determining whether ...