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Planned Parenthood of Great Northwest and Hawaiian Islands v. Wasden

United States District Court, D. Idaho

July 24, 2019

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.


          B. Lynn Winmill U.S. District Court Judge.


         Before 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 Dismiss.


         For 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.

         Plaintiffs 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.

         Plaintiffs 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.

         To 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. 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. 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. 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)).

         Plaintiffs 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.

         Plaintiffs' 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.

         Defendants 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.


         1. 12(b)(6) Legal Standard

         Federal 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 do.” Id.

         The 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. ‚ÄúDetermining whether ...

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