Choice Inc. of Texas v. Bruce Greenstein , 691 F.3d 710 ( 2012 )

Case: 11-30296 Document: 00511960626 Page: 1 Date Filed: 08/17/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 17, 2012
No. 11-30296 Lyle W. Cayce
Clerk
CHOICE INCORPORATED OF TEXAS, doing business as Causeway Medical
Clinic; BOSSIER CITY MEDICAL SUITE, INCORPORATED; DELTA
CLINIC OF BATON ROUGE, INCORPORATED; MIDTOWN MEDICAL,
L.L.C.; WOMEN’S HEALTH CARE CENTER, INCORPORATED; JOHN
DOE, M.D.,
Plaintiffs–Appellants,
v.
BRUCE D. GREENSTEIN, in his official capacity as Secretary of the
Louisiana Department of Health and Hospitals,
Defendant–Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Plaintiffs sued the Secretary of the Louisiana Department of Health and
Hospitals (the Secretary or the Department), challenging the constitutionality
of Louisiana’s Act 490. Prior to hearing the merits, the district court granted the
Secretary’s motion to dismiss, holding that the claims were not ripe. We affirm
the district court’s decision to dismiss the claims because Plaintiffs have failed
to show that hardship will result from withholding court consideration at this
time.
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I
A
Act 490, enacted in 2010, amended Louisiana’s Outpatient Abortion
Facility Licensing Law of 2001. Specifically, Act 490 amended Section 40:2175.6
by removing a provision that provided that the procedure for denial, suspension,
or revocation of an outpatient abortion facility (OAF) license would be the same
as that for hospitals.1 The revised section provides:
The [S]ecretary of the [D]epartment may deny a license, may refuse
to renew a license, or may revoke an existing license, if an
investigation or survey determines that the applicant or licensee is
in violation of any provision of this Part, in violation of the licensing
rules promulgated by the [D]epartment, or in violation of any other
federal or state law or regulation.2
Previously, the Secretary could deny, suspend, or revoke a license only after
finding a “substantial failure . . . to comply,” but Act 490 only requires a
determination that there has been a “violation” for the Secretary to deny, refuse
to renew, or revoke a license.3 Act 490 also grants the Secretary new authority
to deny, refuse to renew, or revoke a license if the applicant or licensee violates
“any other federal or state law or regulation.”4 While the right to file a
suspensive appeal (suspending the execution of the judgment) with the office of
the Secretary is retained, Act 490 does not include the prior provision that
granted a right to appeal suspensively to a district court for trial de novo.5 Act
1
2010 La. Acts 490 (codified at LA. REV. STAT. ANN. § 40:2175.6 (Supp. 2012)).
2
LA. REV. STAT. ANN. § 40:2175.6(G) (Supp. 2012).
3
Compare LA. REV. STAT. ANN. § 40:2175.6(G) (2008), and id. § 40:2110(A), with LA.
REV. STAT. ANN. § 40:2175.6(G) (Supp. 2012).
4
Compare LA. REV. STAT. ANN. § 40:2175.6(G) (2008), and id. § 40:2110(A), with LA.
REV. STAT. ANN. § 40:2175.6(G) (Supp. 2012).
5
Compare LA. REV. STAT. ANN. § 40:2175.6(G) (2008), and id. § 40:2110(B)-(C), with LA.
REV. STAT. ANN. § 40:2175.6(G) (Supp. 2012).
2
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490 still requires the Secretary to provide thirty days written notice before
denying, refusing to renew, or revoking a license.6
Act 490 also authorizes the Secretary to issue an immediate suspension
in some circumstances:
[T]he [S]ecretary . . . may issue an immediate suspension of a
license if an investigation or survey determines that the applicant
or licensee is in violation of any provision of this Part, in violation
of the rules promulgated by the [D]epartment, or in violation of any
other federal or state law or regulation, and the [S]ecretary
determines that the violation or violations pose an imminent or
immediate threat to the health, welfare, or safety of a client or
patient.7
The Secretary must give written notice of an immediate suspension, and the
suspension becomes effective upon receipt of such notice.8 If the Secretary issues
an immediate suspension, the licensee has the right to file a devolutive appeal
(not suspending execution of the judgment), or the licensee can seek injunctive
relief in district court.9 To obtain injunctive relief, the licensee must prove “by
clear and convincing evidence that the [S]ecretary’s decision . . . was arbitrary
and capricious.”10 No longer is there any requirement that the licensee be “given
an opportunity to show compliance with all lawful requirements for the retention
of the license.”11
Finally, Act 490 added a new provision, which provides:
6
Compare LA. REV. STAT. ANN. § 40:2175.6(G) (2008), and id. § 40:2110(A), with LA.
REV. STAT. ANN. § 40:2175.6(G)(1) (Supp. 2012).
7
LA. REV. STAT. ANN. § 40:2175.6(H) (Supp. 2012) (emphasis added).
8
Id. § 40:2175.6(H).
9
Id. § 40:2175.6(H)(1)-(2).
10
Id. § 40:2175.6(H)(2).
11
Compare LA. REV. STAT. ANN. § 49:961(C) (2003), with LA. REV. STAT. ANN.
§ 40:2175.6(H) (Supp. 2012).
3
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If a license is revoked or renewal of a license is denied other than for
cessation of business or non-operational status, or if the license is
surrendered in lieu of an adverse action, any owner, officer,
member, manager, director, or administrator of the licensee may be
prohibited from owning, managing, directing, or operating another
outpatient abortion clinic in the state of Louisiana.12
B
The petitioners in this case are Choice Inc. of Texas; Bossier City Medical
Suite, Inc; Delta Clinic of Baton Rouge, Inc.; Midtown Medical, L.L.C.; and
Women’s Health Care Center, Inc., five of the seven licensed OAFs in Louisiana,
and John Doe, M.D., a physician who provides abortion services at some of those
facilities. We will refer to these parties collectively as “Choice.” Although Act
490 has not been enforced against Choice, it filed a pre-enforcement challenge
to Act 490’s constitutionality in federal district court, seeking a declaratory
judgment and injunctive relief. Choice raised four constitutional challenges to
Act 490: (1) it is unconstitutional under the Due Process Clause because it fails
to give OAFs fair notice of the conditions of licensure and encourages arbitrary
and discriminatory enforcement; (2) it violates the OAFs’ rights under the Equal
Protection Clause by treating them differently from all other medical facilities
regulated by the Department without any basis for doing so; (3) it violates the
OAFs’ rights to due process because it deprives them of liberty and property
interests in an arbitrary, unreasonable, and capricious manner and invests an
impermissible degree of subjective discretion in the Secretary; and (4) it violates
the fundamental right to terminate a pregnancy guaranteed by the Fourteenth
Amendment by imposing a substantial obstacle in the path of patients seeking
to obtain pre-viability abortions.
In challenging Act 490, Choice does not rely solely on the changes in
statutory language previously described. Choice also notes that the other two
12
LA. REV. STAT. ANN. § 40:2175.6(I) (Supp. 2012).
4
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OAFs in Louisiana, Hope Medical Group for Women (Hope) and Gentilly Medical
Clinic for Women (Gentilly), neither a party to this litigation, are currently
subject to revocation proceedings. In particular, Choice relies on the
enforcement action against Hope to challenge the Department’s implementation
of Act 490. The thrust of Choice’s argument is that the Department’s actions
evince a new policy, pursuant to which the Department will no longer provide
an OAF with notice of alleged deficiencies and an opportunity to correct them
before suspending or revoking the OAF’s license.
C
Prior to hearing the merits of Choice’s claims, the district court granted
the Secretary’s motion to dismiss. Considering the 12(b)(1) motion to dismiss for
lack of subject matter jurisdiction, the district court held that the claims were
not ripe, determining that Choice “[would] not suffer any significant hardship”
and that “the issues [were] not fit for judicial decision at the present time.” With
respect to hardship, the district court determined that “nothing in Act 490
requires [Choice] to alter [its] conduct; instead, it alters the State’s conduct in
detecting and addressing violations.” Additionally, the court noted that although
Act 490 broadened the universe of laws the violation of which could result in an
adverse licensure decision, Choice was “legally obligated to adhere to those
statutes and regulations notwithstanding Act 490.” With respect to fitness for
judicial decision, the court concluded that Act 490 had yet to be enforced “in such
a ‘Draconian’ fashion” as feared by Choice, and that “it is pure speculation to say
that [Choice] may one day be subject to the provisions in Act 490 of which [it]
complain[s].” Furthermore, the court viewed the Department’s enforcement
action against Hope as “too isolated” to assist in the evaluation of Choice’s
claims. Choice now appeals, arguing that the district court erred in its ripeness
analysis.
II
5
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A district court’s grant of a 12(b)(1) motion to dismiss for lack of subject
matter jurisdiction is reviewed de novo,13 and more specifically, the jurisdictional
issue of ripeness is a legal question for which review is de novo.14 The plaintiff,
as the party asserting jurisdiction, bears the burden of proof.15 In assessing
jurisdiction, the district court is to accept as true the allegations and facts set
forth in the complaint.16 Additionally, “the district court is empowered to
consider matters of fact which may be in dispute.”17
The district court consequently has the power to dismiss for lack of
subject matter jurisdiction on any one of three separate bases: (1)
the complaint alone; (2) the complaint supplemented by undisputed
facts evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts.18
“[A] motion to dismiss for lack of subject matter jurisdiction should be granted
only if it appears certain that the plaintiff cannot prove any set of facts in
support of his claim that would entitle plaintiff to relief.”19
III
A
13
Life Partners Inc. v. United States, 650 F.3d 1026, 1029 (5th Cir. 2011).
14
Lopez v. City of Houston, 617 F.3d 336, 339 (5th Cir. 2010).
15
Life Partners, 650 F.3d at 1029; see also Ramming v. United States, 281 F.3d 158, 161
(5th Cir. 2001) (“[T]he plaintiff constantly bears the burden of proof that jurisdiction does in
fact exist.”).
16
Life Partners, 650 F.3d at 1029 (citing Ass'n of Am. Physicians & Surgeons, Inc. v.
Tex. Med. Bd., 627 F.3d 547, 553 (5th Cir. 2010)).
17
Ramming, 281 F.3d at 161 (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.
1981)).
18
Williamson, 645 F.2d at 413; see also Wolcott v. Sebelius, 635 F.3d 757, 762 (5th Cir.
2011).
19
Ramming, 281 F.3d at 161 (citing Home Builders Ass'n of Miss., Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)).
6
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Article III of the United States Constitution provides that federal courts
have the power to decide only actual cases or controversies.20 The justiciability
doctrines of standing, mootness, political question, and ripeness “all originate in
Article III’s ‘case’ or ‘controversy’ language . . . .”21 The ripeness doctrine also is
drawn “‘from prudential reasons for refusing to exercise jurisdiction.’”22 The
ripeness doctrine’s “basic rationale is to prevent the courts, through avoidance
of premature adjudication, from entangling themselves in abstract
disagreements . . . .”23
“A court should dismiss a case for lack of ‘ripeness’ when the case is
abstract or hypothetical.”24 “The key considerations are ‘the fitness of the issues
for judicial decision and the hardship to the parties of withholding court
consideration.’”25 “A case is generally ripe if any remaining questions are purely
legal ones; conversely, a case is not ripe if further factual development is
required.”26 However, “even where an issue presents purely legal questions, the
plaintiff must show some hardship in order to establish ripeness.”27 Thus, we
must first determine if Choice has shown that hardship will result if court
consideration is withheld at this time.
20
U.S. CONST. art. III, § 2.
21
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).
22
Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (quoting
Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)).
23
Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967).
24
New Orleans Pub. Serv., Inc. v. Council of New Orleans, 833 F.2d 583, 586 (5th Cir.
1987) (citing Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581-82 (1985); Socialist
Labor Party v. Gilligan, 406 U.S. 583, 588-89 (1972)).
25
Id. (quoting Abbott Labs., 387 U.S. at 149).
26
New Orleans, 833 F.2d at 587 (citing Thomas, 473 U.S. at 581-82).
27
Cent. & S. W. Servs., Inc. v. EPA, 220 F.3d 683, 690 (5th Cir. 2000).
7
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B
“The Supreme Court has found hardship to inhere in legal harms, such as
the harmful creation of legal rights or obligations; practical harms on the
interests advanced by the party seeking relief; and the harm of being
‘force[d] . . . to modify [one’s] behavior in order to avoid future adverse
consequences.’”28 In its briefing to this court, Choice relies on the last of these
harms in arguing that the district court erred in dismissing its claims for lack
of ripeness, asserting that “[t]he complaint plainly supports a finding that
Plaintiffs have been forced to change their conduct as a result of the Act and
Policy in order to attempt to avoid the severe new penalties that can arise from
the new broader, and ill-defined, set of standards” imposed on OAFs. We
conclude that the district court did not err in holding that Choice failed to show
that hardship will result from withholding court consideration at this time.
Relying primarily on Roark & Hardee LP v. City of Austin,29 Choice argues
that it can satisfy the hardship-prong of the ripeness inquiry because it has been
“forced to operate in a heightened state of vigilance” in which it is required to
“undertake all steps possible to try to predict which laws the Department will
enforce and how it will interpret them, and try to come into compliance with
those expectations in order to avoid closure.” In Roark, this court held that the
plaintiffs would suffer hardship if the court denied review of a city ordinance
making it a misdemeanor for an owner or operator of a public place to fail to take
the necessary steps to prevent or stop another person from smoking.30 The
28
Texas v. United States, 497 F.3d 491, 499 (5th Cir. 2007) (quoting Ohio Forestry Ass’n
v. Sierra Club, 523 U.S. 726, 734 (1998)).
29
522 F.3d 533 (5th Cir. 2008).
30
Roark, 522 F.3d at 545.
8
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plaintiffs in Roark, however, faced a different situation than that faced by
Choice.
In Roark, the challenged ordinance imposed a new, affirmative obligation
on owners and operators of public places, which created a critical dilemma—a
choice between complying with a law thought invalid or continuing to act in a
manner believed to be lawful but which could result in future adverse
consequences if the law in question were later upheld.31 With regard to Act 490,
there is no such dilemma. Act 490 imposes no new, affirmative obligation on
OAFs; OAFs are required to comply with existing and applicable state or federal
statutes or regulations regardless of Act 490’s existence. There is no dilemma
because an OAF does not seek to continue to act in a manner believed to be
lawful that would violate Act 490; actions violating Act 490 are already
unlawful. The presence of such a dilemma has been a central feature of cases
in which the hardship prong of the ripeness inquiry was held to be satisfied on
modification-of-behavior grounds, and its absence here supports our conclusion
that Choice will not suffer hardship if court consideration is withheld at this
time.32
The dissent does not rely on the presence or absence of such a dilemma.
Instead, the dissent accepts Choice’s argument that it has been forced to modify
31
See id. at 539, 545-46 (explaining that the necessary-steps provision was a new
restriction that the ordinance placed on owners or operators of public places and describing
the plaintiffs’ constitutional challenge to its application).
32
See Abbott Labs. v. Gardner, 387 U.S. 136, 152-53 (1967) (relying on the dilemma
created by the manufacturers being forced to choose between complying with the regulation
and incurring the associated compliance costs or continuing to act in a manner “they believe
in good faith meets the statutory requirements, but which clearly does not meet the
regulation” and potentially facing more costly criminal and civil penalties); see also Texas v.
United States, 497 F.3d 491, 499 (5th Cir. 2007) (“If Texas cannot challenge the Procedures in
this lawsuit, the State is forced to choose one of two undesirable options: participate in an
allegedly invalid process that eliminates a procedural safeguard promised by Congress, or
eschew the process with the hope of invalidating it in the future, which risks the approval of
gaming procedures in which the state had no input.”).
9
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its behavior because Act 490’s enactment has forced it to operate “in a
heightened state of vigilance,” explaining that “[t]he coercive impact of Act 490
is already imposing on plaintiffs the burden of attempting to adjust their
business practices in response to being uniquely exposed to exceptionally severe
penalties for even minor violations of any state or federal law or regulation.”33
While the dissent depicts the “coercive impact” of Act 490 as self-evident, we
note that Choice has not identified a single concrete example of how it has been
forced to modify its behavior as a result of Act 490.
In its briefing to this court, and during oral argument, Choice argued that
it satisfies the hardship prong because the process for challenging an immediate
suspension might render it insolvent before its appeal can be heard. Act 490
limits the means by which a licensee may challenge the Secretary’s decision to
issue an immediate suspension: a licensee is limited to either (1) filing a
devolutive appeal with the office of the Secretary or (2) filing for injunctive relief
in state district court, in which case the licensee must “prove by clear and
convincing evidence that the [S]ecretary’s decision . . . was arbitrary and
capricious.”34 If an OAF files a devolutive appeal, the suspension remains in
effect, closing the business and preventing it from generating revenue during the
appeals process. If an OAF seeks an injunction so that it may remain in
operation during the appeals process, it must satisfy a heightened standard.
While Act 490 imposes a heightened standard when a licensee seeks to
challenge the Secretary’s determination that the legal requirements for issuance
of an immediate suspension have been satisfied in a specific case, Act 490’s
heightened standard does not apply to the constitutional claims that Choice has
asserted in this case. The dissent fails to acknowledge this distinction. If, in the
33
Infra at 28.
34
LA. REV. STAT. ANN. § 40:2175.6(H)(1)-(2) (Supp. 2012).
10
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future, the Secretary issues an immediate suspension of Choice’s license based
on a determination that Choice is in violation of the law and that the violation
“pose[s] an imminent or immediate threat to the health, welfare, or safety of a
client or patient,” Choice may challenge Act 490’s constitutionality, and Act 490’s
standard of review would not apply to such constitutional claims. Furthermore,
Choice would be free to seek a preliminary injunction based on its constitutional
claims in order to avoid being closed while it litigates them.35 The standard
requirements for issuance of a preliminary injunction would apply because
Choice would not be challenging the Secretary’s determination that the legal
requirements for issuance of an immediate suspension have been satisfied. It
would be challenging the constitutionality of Act 490 itself. Thus, we are not
convinced that Choice will suffer hardship if court consideration is withheld at
this time.
The dissent asserts that we have clearly erred by failing to appreciate
what it considers to be “obvious legal harms.”36 The two legal harms identified
by the dissent, which Choice did not rely upon in its appellate briefs, are not as
clear as the dissent makes them out to be. The dissent cites three court
decisions that repeat language indicating what might constitute legal harm, but
in each of those cases, that language explained what the regulation in question
was not; the language was not applied to hold that the regulation was ripe for
review in the manner that it is used by the dissent.37 It remains unclear what
35
See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (“A plaintiff
seeking a preliminary injunction must establish that he is likely to succeed on the merits, that
he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.”).
36
Infra at 17.
37
See Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 809 (2003); Ohio
Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998); Texas v. United States, 497 F.3d 491,
499 (5th Cir. 2007).
11
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constitutes “modify[ing] [a] formal legal license,”38 and one might even question
whether modification—as opposed to granting or withholding the license
itself—is sufficient, as the case that Ohio Forestry purported to paraphrase did
not mention modification.39 None of these three cases holds that legal harm is
sufficiently demonstrated when there is a change in the liability imposed for acts
already prohibited. Since Choice has elected on appeal to argue that there is
sufficient hardship because it has been forced to modify its behavior, we, unlike
the dissent, see no need to develop arguments Choice has chosen not to make.
We hold that Choice has not satisfied the hardship prong of the ripeness
inquiry. We do not address the fitness of the issues for judicial decision.40
Because Choice has not satisfied the hardship prong, the district court did not
err in concluding that Choice’s claims should be dismissed for lack of ripeness.
* * *
AFFIRMED.
38
Ohio Forestry, 523 U.S. at 733.
39
United States v. L.A. & Salt Lake R.R. Co., 273 U.S. 299, 310 (1927).
40
See Cent. & S. W. Servs., Inc. v. EPA, 220 F.3d 683, 690 (5th Cir. 2000) (explaining
that hardship must be shown to establish ripeness).
12
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DENNIS, Circuit Judge, dissenting:
This court is once again called upon to consider a challenge to a Louisiana
abortion law that the state’s abortion providers claim singles them out as a
disfavored class of medical providers and, among other constitutional defects,
has the purpose and effect of creating an undue burden on their patients’ rights
to choose to terminate their pregnancies. The law challenged here, 2010
Louisiana Acts 490, La. Rev. Stat. § 40:2175.6(G)-(I) (“Act 490” or “the Act”),
amended Louisiana’s licensing law for abortion clinics by, among other things,
subjecting those clinics to uniquely severe civil liability — including revocation
or nonrenewal of their operating licenses — for a practically unlimited range of
statutory or regulatory violations unrelated to patient health, such as, for
example, late tax payments, minor violations of building codes or environmental
regulations. However, the majority denies those abortion providers and their
patients who are uniquely targeted by the Act an opportunity to challenge its
constitutionality in federal court on the basis that their claims are not ripe.
I respectfully dissent because this case presents a concrete dispute
between parties advancing squarely adverse positions and is thus ripe for
review. “To determine if a case is ripe for adjudication, a court must evaluate
(1) the fitness of the issues for judicial decision, and (2) the hardship to the
parties of withholding court consideration.” Texas v. United States, 497 F.3d
491, 498 (5th Cir. 2007). In my view, Act 490 clearly inflicts real and immediate
hardships on the plaintiffs. Most conspicuously, Act 490 imposes “legal harms”
that satisfy the ripeness doctrine’s hardship component, see id. at 499, because
the Act unambiguously “modif[ies] [Louisiana abortion clinics’] formal legal
license[s],” and “subject[s] [them] to . . . civil . . . liability” in the form of severe
new civil sanctions, see Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726,
733 (1998). In addition to these purely legal harms, the Act also imposes
hardship by inflicting “practical harms on the interests advanced by” plaintiffs
13
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and because the need to ensure compliance with the Act’s strict terms “force[s]
[plaintiffs] to modify [their] behavior in order to avoid future adverse
consequences.” See Texas, 497 F.3d at 499 (quoting Ohio Forestry, 523 U.S. at
734). Moreover, because plaintiffs’ facial constitutional claims present purely
legal questions of the kind routinely considered by this court and the Supreme
Court, their claims are fit for review without further factual development.
In dismissing as unripe this pre-enforcement challenge to an anti-abortion
statute, brought by abortion providers expressly regulated by the law in
question, on behalf of themselves and their patients, the majority does for the
first time something neither this court nor the Supreme Court has ever done.
This result is alarming not only because it constitutes an abdication of the
court’s obligation to exercise its jurisdiction, but also because it disregards
harms to the sensitive and constitutionally-protected interests advanced by
plaintiffs. Our precedents do not require us to withhold — and thus likely
effectively deny — federal court consideration of plaintiffs’ claims.
I.
In my view, the Act clearly inflicts unconstitutional hardships on the
plaintiffs and their patients from whom the federal courts are now deliberately
withholding judicial review. The Supreme Court has recognized several
categories of harms that “cause [a] part[y] ‘hardship’ as th[e] Court has come to
use that term” in distinguishing ripe controversies from “abstract
disagreements.” See, e.g., Ohio Forestry, 523 U.S. at 733-34, 736; Texas, 497
F.3d at 499. Each of these recognized forms of hardship exist here. First, the
Act imposes on plaintiffs “purely legal harms” by “modify[ing] . . . [their] formal
legal licenses” and “subject[ing] [them] to . . . civil . . . liability.” See Ohio
Forestry, 523 U.S. at 733. Second, the Act “inflicts significant practical harm
upon the interests that [plaintiffs] advance[].” See id. at 733-34. Finally, the Act
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“forc[es] [plaintiffs] to modify [their] behavior in order to avoid future adverse
consequences.” See id. at 734.
Under Louisiana’s “Outpatient Abortion Facility Licensing Law,” La. Rev.
Stat. tit. 40, ch.11, pt. VI-A, originally enacted in 2001, an abortion clinic must
obtain from the state Department of Health and Hospitals (“the Department”)
an operating license subject to annual renewal. La. Rev. Stat. Ann. §§ 40:2175.1,
40:2175.4 (2011). Effective June 22, 2010, Act 490 amended several sections of
that law governing the suspension, revocation, and non-renewal of these
required licenses. Id. § 40:2175.6 (2011).
First, the Act vastly broadens the universe of regulatory violations that
subject abortion clinics to losing their operating licenses. Prior to Act 490,
abortion clinics’ licenses were subject to non-renewal, suspension, or revocation
under the same conditions as Louisiana hospitals and other health care
facilities: that is, only for “a substantial failure . . . to comply with [the statutory
licensing] requirements . . . or the rules, regulations and minimum standards
adopted by the department.” Id. § 40:2175.6(G), 40:2110(A) (2009). Moreover,
those departmental rules and regulations must have been “reasonably related
to” “provid[ing] for the health, safety, and welfare of women in outpatient
abortion facilities and for the safe operation of such facilities.” Id. § 40:2175.2
(2011). Under Act 490, however “[t]he secretary of the department may deny a
license, may refuse to renew a license, or may revoke an existing license, if an
investigation or survey determines that the applicant or licensee is in violation
of [the statutory licensing provisions], in violation of the licensing rules
promulgated by the department, or in violation of any other federal or state law
or regulation,” regardless of whether the “federal or state law or regulation”
allegedly violated is in any way related to patient health or welfare. Id.
§ 40:2175.6(G) (2011) (emphasis added).
15
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Second, the Act permits the Secretary to “issue an immediate suspension
of a[n] [abortion clinic’s] license” for any such “violation of any . . . federal or
state law or regulation, [if] the secretary determines that the violation . . .
pose[s] an imminent or immediate threat to the health, welfare, or safety of a
client or patient.” Id. § 40:2175.6(H) (2011). An abortion clinic may only
challenge an immediate license suspension under Act 490 by either (1) “fil[ing]
a devolutive [non-suspensive] appeal . . . with the office of the secretary,” during
the pendency of which appeal the license suspension remains in effect, id. §
40:2175.6(H)(1) (2011); or (2) “fil[ing] for injunctive relief . . . [in state] district
court . . . [and] prov[ing] by clear and convincing evidence that the secretary’s
decision to issue the immediate suspension of the license was arbitrary and
capricious,” id. § 40:2175.6(H)(1) (2011) (emphasis added). Prior to Act 490, the
state could only revoke or suspend the license of an abortion clinic, as with
respect to any other licensed entity, pursuant to the more rigorous procedural
safeguards set forth in Louisiana’s Administrative Procedure Act, La. Rev. Stat.
tit. 49, ch. 13. See, e.g., id. § 49:961, 49:964 (2011) (providing that a state “court
may reverse or modify [an agency’s] decision” to summarily suspend a license on
several grounds, including because the decision is “[n]ot supported . . . by a
preponderance of the evidence”). Act 490’s more exacting “arbitrary and
capricious” by “clear and convincing evidence” standard supersedes these
generally applicable procedural requirements with respect to abortion clinics, as
the Secretary’s immediate suspension authority and the reduced procedural
safeguards that accompany it subject abortion clinics to immediate closure
“[n]otwithstanding any law to the contrary.” Id. § 40:2175.6(H) (2011).
Third, the Act for the first time authorizes the Secretary to permanently
“prohibit[]” “any owner, officer, member, manager, director, or administrator” of
an abortion clinic whose “license is revoked or [license] renewal . . . is denied” for
any violation of any federal or state law or regulation “from owning, managing,
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directing, or operating another outpatient abortion clinic in the state of
Louisiana.” Id. § 40:2175.6(I) (2011). Prior law did not authorize any such
lifetime ban on an individual associated with a shuttered clinic. See id.
§§ 40:2175.6, 40.2110 (2009).
In view of these stark and drastic changes to the regulatory regime
governing Louisiana’s outpatient abortion facilities, I turn to the hardship
analysis.
A.
The majority’s clearest error is its failure to appreciate the obvious legal
harms that the terms of Act 490 unambiguously impose on Louisiana abortion
providers.1 In the context of a challenge to the provisions of a regulatory
scheme, such as that at issue here, hardship will often result first and foremost
from the “adverse effects of a strictly legal kind” inherent in the provisions at
issue. Ohio Forestry, 523 U.S. at 733. The Supreme Court has explained that
such legal harms inhere in laws or regulations that, for example, “command
[some]one to do . . . or to refrain from doing [some]thing; . . . grant, withhold, or
modify any formal legal license, power, or authority; . . . subject [some]one to .
. . civil or criminal liability; [or] create . . . legal rights or obligations.” Id.; accord
Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 809 (2003)
(recognizing that “adverse effects of a strictly legal kind” may amount to “a
showing of hardship” where a regulation, inter alia, “modif[ies] [a plaintiff’s]
1
The majority suggests that it need not fully reckon with this first basis for
justiciability because the plaintiffs did not advance it in their briefs. Majority Opinion 14.
However, it is well established that this court, like “every federal appellate court[,] has a
special obligation to ‘satisfy itself of its own jurisdiction.[’]” Bender v. Willamsport Area Sch.
Distr., 475 U.S. 534, 541 (1986); see New Orleans Pub. Serv., Inc. v. City Council of New
Orleans, 491 U.S. 350, 358 (1989) (“We have no more right to decline the exercise of
jurisdiction which is given, than to usurp that which is not given. The one or the other would
be treason to the Constitution.” (quoting Cohens v. Virginia, 19 U.S. 264, 404 (1821)); see also,
e.g., K.P. v. LeBlanc, 627 F.3d 115, 122 (5th Cir. 2010) (raising the issue of Article III standing
sua sponte and articulating reasons why the plaintiffs had standing to sue).
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formal legal license” or “subject[s] [a plaintiff] to . . . civil . . . liability” (quoting
Ohio Forestry, 523 U.S. at 733)); see also Texas, 497 F.3d at 499 (recognizing that
“[t]he Supreme Court has found hardship to inhere in legal harms”). At least
two of these “adverse effects of a strictly legal kind” are implicated by the
provisions challenged in this case: (1) the legal harm imposed by a statute that
“modif[ies] [one’s] formal legal license”; and (2) that imposed by a statute that
“subject[s] [one] to . . . civil or criminal liability.” See Ohio Forestry, 523 U.S. at
733.
First, Act 490 unequivocally “modif[ies] [plaintiffs’] formal legal license[s]”
by expressly amending Louisiana’s “Outpatient Abortion Facility Licensing Law”
to impose retroactively harsh new conditions on abortion clinics’ operating
licenses, staffs, and plants, and by subjecting them to numerous additional
grounds for suspension, revocation, and non-renewal. The operating licenses at
issue are surely formal legal licenses of the kind contemplated by the Supreme
Court in Ohio Forestry. See id.; see also La. Rev. Stat. Ann. § 40:2175.4
(requiring abortion clinics to obtain operating licenses subject to annual
renewal). “A license is ‘a right or permission granted in accordance with law .
. . to engage in some business or occupation, to do some act, or to engage in some
transaction which but for such license would be unlawful.’” Chamber of
Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 1978 (2011) (alteration in original)
(quoting Webster’s Third New Int’l Dictionary 1304 (2002))); see also Black’s Law
Dictionary, license (9th ed. 2009) (defining “license” as “[a] permission, usu[ally]
revocable, to commit some act that would otherwise be unlawful”). It is equally
clear that Act 490 modified those licenses by expressly conditioning their
continued validity on strict compliance with an enormous number of regulations.
Compare La. Rev. Stat. Ann. § 40:2175.6(G) (2012) (authorizing the Secretary
to suspend, revoke, or not renew an abortion clinic’s license for, inter alia, any
violation of any state or federal law or regulation), with id. § 40:2175.6(G) (2009)
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(prior to amendment by Act 490) (permitting suspension, revocation, or non-
renewal of the licenses of abortion clinics only for a substantial failure to comply
with Louisiana licensing requirements or health and safety regulations), and id.
§ 40:2110(A) (continuing to require a showing of “substantial failure . . . to
comply” for the denial, suspension, or revocation of other hospital and health
care facilities); see also MCI Telecommc’ns. Corp. v. Am. Tel. & Tel. Co., 512 U.S.
218, 225 (1994) (“Virtually every dictionary we are aware of says that ‘to modify’
means to change moderately or in minor fashion.”); Black’s Law Dictionary,
modification (9th ed. 2009) (defining “modification” as “qualification or limitation
of something”).2
Second, Act 490 just as plainly “subject[s] [abortion clinics and their
directors] to . . . civil . . . liability” by attaching new and more severe sanctions
2
Courts have routinely adjudicated the merits of analogous pre-enforcement
constitutional challenges to licensing laws. In Whiting, the Supreme Court reached the merits
of a suit in which plaintiffs “filed a preenforcement suit . . . argu[ing] that [an] Arizona law[]
. . . allowing the suspension and revocation of business licenses for employing unauthorized
aliens were both expressly and impliedly preempted by federal immigration law,” despite the
fact that “[n]o suits had been brought under the Arizona law when the complaint . . . was
filed.” Whiting, 131 S. Ct. at 1977 & n.4. In an equal protection challenge to a state law that
allegations that a state licensing scheme discriminates between similarly-situated entities are
“sufficient . . . to survive a motion to dismiss” in the context of standing doctrine’s analogous
“injury-in-fact requirement.” Time Warner Cable, Inc. v. Hudson, 667 F.3d 630, 636 (5th Cir.
2012). We explained: “Discriminatory treatment at the hands of the government is an injury
long recognized as judicially cognizable. And such injury is recognizable for standing
irrespective of whether the plaintiff will sustain an actual or more palpable injury as a result
of the unequal treatment under law or regulation. Here, the Act facially discriminates against
the [TCA’s] membership by extending the benefit of a state-wide license to its competitors
while denying that same benefit to incumbent cable providers. . . . [S]uch discrimination can
constitute an injury because it positions similar parties unequally before the law; no further
showing of suffering based on that unequal positioning is required for purposes of standing.”
Id. Other courts have reached similar results. See, e.g., Friendship Med. Ctr., Ltd. v. Chicago
Bd. of Health, 505 F.2d 1141, 1145-46 (7th Cir. 1974) (holding pre-enforcement challenge to
registration requirements for abortion providers justiciable where “[t]he regulations . . .
provided for the closing of any abortion service that . . . would be in violation of any of the
Board of Health’s regulations” and where the defendants “ha[d] the power to deny
authorization to those seeking to operate an abortion facility as well as the power to order the
closing of any facility that it deems not in compliance with its regulations”).
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to the vast array of all existing state and federal laws and regulations. To
reiterate, under the Act, any violation of any state or federal law or regulation
now for the first time subjects Louisiana’s abortion clinics to the civil sanctions
of suspension, revocation, or non-renewal of their operating licenses, regardless
of whether the violation is substantial or whether the law or regulation violated
in any way relates to the provision of medical services. La. Rev. Stat. Ann.
§ 40:2175.6(G); see also Women’s Med. Ctr. of Nw. Houston v. Bell, 248 F.3d 411,
422 (5th Cir. 2001) (explaining that a statute authorizing revocation of an
abortion provider’s license “carr[ies] [a] potentially significant civil . . . penalt[y],
. . . which can be characterized as quasi-criminal,” such that the “statute must
define its terms . . . in a manner that does not encourage arbitrary and
discriminatory enforcement”). The Act further permits the Secretary to
immediately suspend an abortion clinic’s license upon a finding of an imminent
threat to patient health or welfare, subject to judicial review only under a doubly
exacting burden of proving by “clear and convincing evidence” that summary
suspension “was arbitrary and capricious.” Id. § 40:2175.6(H)(1). Moreover,
under the Act, any clinic operator whose license is revoked or not renewed for
any such violation of any state or federal law or regulation is now, for the first
time, subject to the civil sanction of being prohibited from again “operating
another outpatient abortion facility in the state of Louisiana.” Id. § 40:2175.6(I).
These changes in law amount to “subjecting [abortion providers] to civil
. . . liability” by subjecting them to loss of licensure at the will of the Secretary
and thus constitute severely injurious legal harm. See Ohio Forestry, 523 U.S.
at 733. Indeed, the Supreme Court recently reiterated that “[l]icense suspension
and revocation are significant sanctions,”and referred to “[l]icense termination”
as “the business death penalty.” Whiting, 131 S. Ct. at 1983-84; see also Roark
& Hardee LP v. City of Austin, 522 F.3d 533, 545 (2008) (holding ripe plaintiffs’
claims where violation of challenged “ordinance [could] subject [plaintiffs] to
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heavy fines . . . and possible revocation of their licenses and permits”); cf. id. at
546 (distinguishing Toilet Goods Ass’n v. Gardner, 387 U.S. 158 (1967), on the
basis that the regulation challenged in that case did not provide for “adverse
consequences, such as ‘heavy fines’” (quoting Toilet Goods, 387 U.S. at 164-65));
Black’s Law Dictionary, liability (9th ed. 2009) (defining “liability” as “[t]he
quality or state of being legally obligated or accountable; [or] legal responsibility
to another or to society, enforceable by civil remedy or criminal punishment”).
The precise provisions of the Act that plaintiffs challenge as
unconstitutionally vague, discriminatory, and arbitrary, and as having the
purpose or effect of infringing on the abortion right, plainly “create adverse
effects of a strictly legal kind” by modifying the conditions by which abortion
clinics may retain their legal licenses and by subjecting clinics and their
operators to severe civil liability. See Ohio Forestry, 523 U.S. at 733. Thus,
plaintiffs will suffer severe hardships if we withhold judicial review of their
claims. See id. It is therefore unnecessary to consider whether the Act imposes
additional harms by “inflict[ing] significant practical harm upon the interests
that [plaintiffs] advance[],” id., and “affect[ing] [their] primary conduct,” Natl’l
Parks Hospitality Ass’n, 538 U.S. at 810, by “forc[ing] [them] to modify [their]
behavior in order to avoid future adverse consequences,” Ohio Forestry, 523 U.S.
at 734. That plaintiffs also suffer those forms of harm greatly amplifies the
prejudicial effects of the majority’s error.
B.
In addition to recognizing the purely legal harms that may inhere in the
terms of a challenged regulation, the Supreme Court has also explained that a
plaintiff can establish hardship by demonstrating that a regulatory scheme
“inflicts significant practical harm upon the interests that [the plaintiff]
advances.” Ohio Forestry, 523 U.S. at 733 (emphasis added); accord Texas, 497
F.3d at 499. The Court stressed that such practical harms constitute “an
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important consideration in light of th[e] Court’s modern ripeness cases.” Id. at
733-34 (citing Abbott Labs. v. Gardner, 387 U.S. 136, 152-54 (1967), overruled
on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). The Court
explained that identifying this type of “practical harm” involved considering
whether there exists a “strong reason why the [plaintiff] must bring its challenge
now in order to get relief” or whether, on the contrary, the plaintiff “w[ould] have
ample opportunity later to bring its legal challenge at a time when harm is more
imminent and more certain.” Id. at 734. The Court cited its ripeness discussion
in Abbott Labs as an illustration of this sort of practical harm to the interests
that a party seeks to advance through the litigation. Id. at 733-34 (citing Abbott
Labs., 387 U.S. at 152-54). In the relevant portion of Abbott Labs, the Court had
reasoned that to “[t]o require [the plaintiffs there, regulated entities specifically
targeted by the regulations at issue] to challenge the[] regulations only as a
defense to an action brought by the Government might harm them severely and
unnecessarily.” Abbott Labs., 387 U.S. at 154. The plaintiff in Ohio Forestry, on
the other hand, was in no danger of being placed in the position of only being
able to challenge the preliminary forestry management plan at issue in that case
in response to an action brought against them by the government; rather, the
plaintiff, an environmental organization, would have “ample opportunity later
to bring its legal challenge” if and when subsequent regulatory developments
actually authorized the logging operations that the organization was ultimately
concerned about. Ohio Forestry, 523 U.S. at 734; see also id. at 729-30 (listing
the numerous policymaking steps the agency would have had to undertake
before such authorization could be issued); cf. Abbott Labs., 387 U.S. at 152
(indicating that, unlike the preliminary administrative plan challenged in Ohio
Forestry, the regulations at issue in Abbott Labs “ha[d] the status of law and
violations of them carr[ied] heavy criminal and civil sanctions”; that “[t]he
regulations . . . were made effective immediately upon publication[] . . . [and]
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immediate compliance with their terms was expected”; and that the defendant
“agency . . . ha[d] direct authority to enforce th[e] regulation[s]”).
Here, Act 490 “now inflicts significant practical harms upon the interests
that [plaintiffs] advance,” such that there are “strong reason[s] why [plaintiffs]
must bring [their] challenge[s] now in order to get relief.” See Ohio Forestry, 523
U.S. at 733-34. Even more than the drug manufacturers in Abbott Labs,
plaintiffs here “deal in a sensitive industry,” the nature of which is such that
“[t]o require them to challenge these regulations only as a defense to an action
brought by the [g]overnment might harm them severely and unnecessarily.” See
Abbott Labs., 387 U.S. at 153; see also Doe v. Bolton, 410 U.S. 179, 188 (1973)
(concluding that abortion providers “against whom [abortion regulations]
directly operate” but who had not “been prosecuted, or threatened with
prosecution, for violation of the State’s abortion statutes[,] . . . should not be
required to await and undergo a criminal prosecution as the sole means of
seeking relief” on their constitutional claims). Unlike the situation in Ohio
Forestry, there are no more procedural steps that the Department must go
through before taking immediate action to the enforce the terms of Act 490
against one or more of the plaintiffs, see Ohio Forestry, 523 U.S. at 734; rather,
the new licensure conditions are “immediately effective” and “direct[ly] . . .
enforce[able]” by the Department, see Abbott Labs., 387 U.S. at 152.
Plaintiffs assert that withholding judicial consideration of their claims
may lead to one or more abortion clinics being shut down pursuant to the
immediate suspension authority created by Act 490, likely driving the affected
clinics out of business and disrupting those clinics’ patients’ ability to exercise
constitutionally protected rights. Plaintiffs allege that the extremely demanding
injunction standard imposed by the Act — which requires plaintiffs to “prove by
‘clear and convincing evidence that the secretary’s decision to issue [an]
immediate suspension of the license was arbitrary and capricious’” — “is
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designed to preclude meaningful judicial review that would otherwise be
available to all other licensed medical facilities.” Complaint 16; see also id.
(alleging that, “at a hearing before the Louisiana House Health & Welfare
Committee, . . . [the] Department Executive Counsel[] conceded that no other
[Louisiana] statute or regulation . . . requires a showing by clear and convincing
evidence that an agency acted in an arbitrary and capricious manner to obtain
injunctive relief from a court”). The majority acknowledges that, under Act 490,
“the process to challenge an immediate suspension [action brought pursuant to
§ 40:2175.6(H)] is limited” to devolutive appeals and injunction proceedings in
which the clinic “must satisfy a heightened standard” of review, but nonetheless
concludes that “[it is] not convinced that [plaintiffs] will suffer hardship if court
consideration is withheld at this time.” Majority Opinion 10-11. This reasoning
ignores the constitutionally protected status of the services at issue, the time-
sensitive nature of the abortion right, and Act 490’s chilling effect on the
provision of those services and the exercise of that right.
Plaintiffs should not be “require[d] . . . to challenge [the Act] only as a
defense to an action brought by the [state],” whether in the form of an
“immediate suspension” action under § 40:2175.6(G) or a suspension, revocation,
or nonrenewal decision for, inter alia, a “violation of any . . . federal or state law
or regulation” under § 40:2175.6(H). See Abbott Labs., 387 U.S. at 153; see also
Texas, 497 F.3d at 499 (“If [plaintiff] cannot challenge the [p]rocedures [at issue]
in this lawsuit, [it] is forced to choose one of two undesirable options: participate
in an allegedly invalid process that eliminates a [previously available]
procedural safeguard . . . , or eschew the process with the hope of invalidating
it in the future[] . . . .”). Pre-enforcement facial challenges seeking declaratory
and injunctive relief have long proceeded as an accepted means for abortion
providers and their patients to challenge the constitutionality of regulations
touching on the abortion right. See, e.g., Sabri v. United States, 541 U.S. 600,
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609-10 (2004) (recognizing the validity of pre-enforcement facial attacks in only
a “few settings,” including abortion, based “on the strength of specific reasons
weighty enough to overcome [the Supreme Court’s] well-founded reticence” to
entertain such attacks generally (citing Stenberg v. Carhart, 530 U.S. 914,
938–946 (2000)). Pre-enforcement review prevents potentially impermissible
regulations from inflicting a chilling effect on the ability of women to exercise
their right to choose to terminate their pregnancies prior to fetal viability. See
Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1466-67 (8th Cir.
1995) (“[P]otential civil liability . . . is more than enough to chill the willingness
of physicians to perform abortions . . . .”); see also Okpalobi v. Foster, 244 F.3d
405, 435 (5th Cir. 2001) (en banc) (Benavides, J., concurring in part and
dissenting in part) (stating that the “true injury” of a statute imposing potential
civil liability on abortion providers is “the ‘chilling’ of a woman’s constitutional
right to choose an abortion”).
Such pre-enforcement challenges are critical in this context because of the
time-sensitive nature of the abortion right. States may “restrict abortions after
fetal viability.” Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 846
(1992). And, although “viability” is something of an evolving measure for when
such restrictions are permissible — “advances in neonatal care have advanced
viability to a somewhat earlier point” — the Supreme Court has stated that, in
“the scheme of time limits on the realization of competing interests, . . . 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”; this is so “whenever [viability] may occur.” Id. at 860. Louisiana
prohibits post-viability abortions, see La. Rev. Stat. §§ 37:1285(A)(8)(a),
40:1299.35.2, 40:1299.35.4, and defines “viability” as “that stage of fetal
development when, in the judgment of the physician based upon the particular
facts of the case before him, and in light of the most advanced medical
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technology and information available to him, there is a reasonable likelihood of
sustained survival of the unborn child outside the body of his mother, with or
without artificial support,” id. § 40:1299.35.1(10). Thus, pre-enforcement review
is essential to protect the interests, advanced by plaintiffs here, of their patients
who seek to exercise their constitutional right to choose to obtain a pre-viability
abortion. The majority’s erroneous refusal to permit such judicial review
exposes those patients to the very real possibility that their clinic may be shut
down for a potentially unconstitutional reason during the only window of time
during which they may exercise their constitutional right.
Accordingly, “[t]o require [plaintiffs] to challenge these regulations only
as a defense to an action brought by the [g]overnment might harm them severely
and unnecessarily.” Abbott Labs., 387 U.S. at 153. This “strong reason why
[plaintiffs] must bring [their] challenge[s] now in order to get relief” amounts to
a “significant practical harm upon the interests that [plaintiffs] advance[],” and
thus satisfies the hardship requirement. See Ohio Forestry, 523 U.S. at 733-34;
Texas, 497 F.3d at 499.
C.
The majority further errs in concluding that 490 has not “force[d]
[plaintiffs] to modify [their] behavior in order to avoid future adverse
consequences.” See Ohio Forestry, 523 U.S. at 734; accord Texas, 497 F.3d at
499. The Supreme Court explained that such hardship can occur when, “for
example, . . . regulations . . . force immediate compliance through fear of future
sanctions.” Ohio Forestry, 523 U.S. at 734. In doing so, the Court cited cases in
which plaintiffs faced a choice of complying with the challenged scheme or
“risking later . . . civil penalties,” such as “later loss of license.” Id. (citing Abbott
Labs., 387 U.S. at 152-53; Columbia Broadcasting System, Inc. v. United States,
316 U.S. 407, 417-419 (1942)); see also Abbott Labs., 387 U.S. at 152-53
(explaining that the plaintiffs in the ripe controversy there had to choose
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between shouldering compliance costs or “risk[ing,] [inter alia,] serious . . . civil
penalties” for violating the challenged scheme).
Here, Plaintiffs challenge the validity and rationality of the harsh new
consequences Act 490 attaches to a practically limitless universe of legal and
regulatory violations. Plaintiffs assert that by uniquely exposing them to the
prospect of such penalties, Act 490 effectively requires them to adopt more
vigilant policies and procedures regarding the innumerable state and federal
laws and regulations incorporated by reference under the penalty provisions of
Act 490, in an effort to avoid even minor violations. By doing so, the Act “force[s]
[plaintiffs] to modify [their] behavior in order to avoid future adverse
consequences.” Texas v. United States, 497 F.3d 491, 499 (5th Cir. 2007)
(internal quotation marks omitted) (quoting Ohio Forestry Ass’n v. Sierra Club,
523 U.S. 726, 733-34 (1998)).
The majority relies wholly on the distinction that although Act 490
attaches severe new penalties to existing regulations, it does not itself create
new “affirmative obligations,” that is, new regulations of primary conduct. I
disagree that this peculiarity in the design of Act 490 renders inconsequential
the fact that plaintiffs have been forced to modify their business practices in an
effort to avoid the enormous range of newly-created ground for loss of licensure.
The Supreme Court has specifically described the harm imposed by a regulation
that “affect[s] a [plaintiff’s] primary conduct” as a distinct type of harm from the
“strictly legal kind” of harm imposed by a regulation that “commands [the
plaintiff] to do [some]thing or refrain from doing [some]thing.” Nat’l Park
Hospitality Ass’n, 538 U.S. at 809-10; accord Ohio Forestry, 523 U.S. at 733-34.
A state’s imposition of severe new consequences for violations of existing
regulations may “force immediate compliance through fear of future sanctions.”
Ohio Forestry, 523 U.S. at 734. Indeed, it is difficult to imagine what legitimate
purpose Act 490 could have if it is not meant to effect precisely the kinds of
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heightened compliance measures plaintiffs realistically assert they have been
forced to undertake.3
The coercive impact of Act 490 is already imposing on plaintiffs the burden
of attempting to adjust their business practices in response to being uniquely
exposed to exceptionally severe penalties for even minor violations of any state
or federal law or regulation. Here, as in Abbott Labs, the challenged “regulation
is directed at [plaintiffs] in particular; it require[s] them to make significant
changes in their everyday business practices; [and] if they fail to observe the . . .
rule they are quite clearly exposed to the imposition of strong sanctions.” See
Abbott Labs., 387 U.S. at 154. Therefore, the majority is wrong to conclude that
the compliance burdens on plaintiffs do not constitute a cognizable hardship.4
3
As plaintiffs’ counsel noted at oral argument, were a state to condition the licensure
of attorneys — or, to more closely track the circumstances this case, of some disfavored
category of attorneys — on strict compliance with all state and federal laws, it seems
indisputable that such a law would impose on that category of disfavored practitioners the
hardship of modifying their customary conduct in order to avoid the uniquely severe sanctions
that, for example, a speeding ticket would subject them to.
4
The burdens imposed on plaintiffs here are at least as real and immediate as what
every member of this court en banc seemingly recognized as having been inflicted on abortion
providers by the passage of an earlier Louisiana law that “exposes [abortion] doctors to
unlimited tort liability” in private suits, in part by exempting civil suits brought pursuant to
that law from the limitations on liability provided in Louisiana’s generally applicable Medical
Malpractice Act. Okpalobi v. Foster, 244 F.3d 405, 409, 421-22 (5th Cir. 2001) (en banc); see
also K.P. v. LeBlanc, 627 F.3d 115, 119-20 (5th Cir. 2010); La. Rev. Stat. Ann. § 9:2800.12.
Although the en banc court deemed the suit non-justiciable as having been brought against
the wrong defendants, it appears that every member of the court agreed that the “self-
enforcing nature” of the statute at issue had an “immediate coercive effect” on abortion
providers and that this “coercive impact of the statute itself” amounted to an injury-in-fact for
purposes of Article III standing. Okpalobi, 244 F.3d at 427 (explaining that the “impact of the
statute” is “coercive in that it exposes [abortion physicians] to unlimited tort liability”); id. at
435 (Benavides, J., concurring in part and dissenting in part) (agreeing that “Act 825, by its
mere existence, coerces the plaintiffs to abandon the exercise of their legal rights lest they risk
incurring substantial civil liability”); id. at 451 (Parker, J., dissenting) (agreeing that the
plaintiffs “undoubtedly established an ‘injury-in-fact’”); see also Lopez v. City of Houston, 617
F.3d 336, 342 (5th Cir. 2010) (explaining that the standing injury-in-fact inquiry and the
ripeness hardship inquiry “overlap in practice,” as each amounts to “an examination of
whether a plaintiff has suffered a concrete injury”).
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II.
Finally, plaintiffs’ claims present purely legal questions that are plainly
fit for judicial decision without awaiting further factual developments. Claims
are “ripe when they would not benefit from any further factual development and
when the court would be in no better position to adjudicate the issues in the
future than it is now.” Pearson v. Holder, 624 F.3d 682, 684 (5th Cir. 2010).
“[N]o further factual development is necessary,” if the only claims call for “purely
legal inquiries.” Roark, 522 F.3d at 546.
Plaintiffs bring facial challenges on constitutional grounds that present
purely legal questions regarding the validity of the Act as written. Specifically,
plaintiffs claim that the Act: (1) violates due process because its authorization
of license revocation for any violation of any state or federal law or regulation
fails to give outpatient abortion facilities fair notice of the conditions of their
licensure and encourages arbitrary and discriminatory enforcement; (2) violates
equal protection by treating abortion clinics differently than other medical
facilities without a rational basis; (3) violates due process because its immediate
suspension provision deprives clinics of liberty and property interests in an
arbitrary, unreasonable, and capricious manner and invests an impermissible
degree of subjective discretion in the Secretary; and (4) violates the
constitutional abortion right because it has the purpose or effect of placing a
substantial obstacle in the path of pregnant patients seeking to obtain
pre-viability abortions. Adjudication of these claims would require analysis of
the terms of the Act, and evidence of legislative intent, applying the relevant
constitutional doctrines. A court’s ability to make such determinations does not
depend on the occurrence of any future events.
This court has previously reached questions regarding the merits of such
claims or held similar challenges justiciable. In Women’s Medical Center of
Northwest Houston, we reviewed a district court’s temporary injunction of a
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Texas law amending that state’s abortion licensing law. 248 F.3d at 413, 419-22.
We considered the likelihood of success of equal protection and vagueness
challenges very similar to those brought by plaintiffs here. Id. at 419-22. With
respect to the equal protection challenges, the court explained that, because
“[t]he record contain[ed] no evidence of anti-abortion animus, and no evidence
that the . . . amendments were passed in an attempt to limit abortion access or
for any other improper purpose[,] . . . the district court correctly chose to
evaluate the . . . amendments as health and safety regulations subject to rational
basis review.” Id. at 419. The court then proceeded to apply the rational basis
analysis to the challenged statutory provision, concluding that the amendments
were not “substantially likely to fail rationality review.” Id. at 419-21. The
court then applied vagueness principles to the text of the challenged
amendments, and concluded that “the plaintiffs . . . established a substantial
likelihood of success on their vagueness challenge to the subject provisions,”
reasoning that, “[e]specially in the context of abortion, a constitutionally
protected right that has been a traditional target of hostility, standardless laws
and regulations such as these open the door to potentially arbitrary and
discriminatory enforcement.” Id. at 421-22. We specifically explained that our
conclusion was not altered by the fact that “no abortion facility has yet been
subjected to civil or criminal penalties for violating these regulatory provisions.”
Id. at 422; see also Time Warner Cable, 667 F.3d 630, 636 (5th Cir. 2012)
(“Discriminatory treatment at the hands of the government is an injury long
recognized as judicially cognizable. And such injury is recognizable for standing
irrespective of whether the plaintiff will sustain an actual or more palpable
injury as a result of the unequal treatment under law or regulation. . . . [S]uch
discrimination can constitute an injury because it positions similar parties
unequally before the law; no further showing of suffering based on that unequal
positioning is required . . . .” (second alteration in original)).
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Similarly, in Roark, we held ripe a facial procedural due process challenge
to the “enforcement provision” of a municipal anti-smoking ordinance “giving the
city manager discretion to revoke permits and licenses,” even though “the City
ha[d] not enforced the challenged fine or license revocation penalties against any
Plaintiff.” 522 F.3d at 544-46. We explained that “no further factual
development [was] necessary” in order “[t]o determine the merits of” the
procedural due process claim because adjudication would present a “purely legal
inquir[y].” Id. at 546.
And in K.P. v. Leblanc, we considered sua sponte the justiciability of facial
vagueness, equal protection, and undue burden challenges to another Louisiana
statute regulating abortion providers. 627 F.3d at 122. That statute subjects
providers to potential civil liability in the form of private lawsuits, and exempts
such suits from the limitations on liability that protect other physicians under
the state’s generally applicable medical malpractice statute. Id. Again, we held
the claims justiciable even though the abortion providers’ “liability for suits . . .
ha[d] not yet materialized.” Id.
Moreover, the Supreme Court has repeatedly reached the merits of pre-
enforcement facial challenges to regulations of abortion providers. E.g.,
Gonzalez v. Carhart, 550 U.S. 124, 161-68 (2007) (vagueness, substantive due
process); Stenberg v. Carhart, 530 U.S. 914, 929-46 (2000) (substantive due
process); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879-901 (1992)
(substantive due process); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502,
517-518 (1990) (procedural due process); Doe, 410 U.S. at 192-201 (vagueness,
substantive due process, equal protection).
Because adjudication of plaintiffs’ claims would involve only the
application of familiar constitutional doctrines to statutory provisions and
indications of legislative intent, “[a]dditional fact-finding would not aid [judicial]
inquiry into the purely legal question of [the Act’s] validity.” See Texas, 497 F.3d
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at 499.5 Accordingly, the district court and the majority have erred in concluding
that plaintiffs’ purely legal claims are unfit for judicial resolution.6
III.
The majority’s procrustean ripeness analysis would be unprecedented in
any case. It is particularly inappropriate in a pre-enforcement challenge to an
abortion regulation. As this court has recognized, the Supreme Court has
flexibly applied justiciability doctrines in abortion cases. See Margaret S. v.
Edwards, 794 F.2d 994, 997 (5th Cir. 1986) (noting that “the Supreme Court has
visibly relaxed its traditional standing principles in deciding abortion cases”
(citing Roe, 410 U.S. at 123-29; Doe, 410 U.S. at 187-89)); accord Okpalobi, 244
F.3d at 427-28; see also, e.g., Singleton v. Wulff, 428 U.S. 106, 118 (1976)
(“conclud[ing] that it generally is appropriate to allow a physician to assert the
rights of women patients as against governmental interference with the abortion
decision”); Roe, 410 U.S. at 125 (recognizing a mootness exception for abortion
5
The Secretary’s counsel intimates that the Secretary may not ultimately exercise his
considerable — and allegedly impermissible — discretion “under Act 490 in the draconian
fashion [plaintiffs] fear” by initiating suspension or revocation proceedings against a clinic, or
declining to renew its license, for a minor or non-health-related regulatory violation. See
Appellee’s Br. 20. These assertions do not change the analysis. Even were the Secretary’s
counsel to go farther and assure the court that the Secretary would not exercise his authority
under the Act in an arbitrary fashion, such assurances would be irrelevant. In Abbott Labs,
the Court rejected the government’s “contention that the threat of [certain] sanctions for
noncompliance with [the] . . . regulation [at issue] is unrealistic,” although government counsel
had asserted that the feared sanction would not be imposed. Abbott Labs., 387 U.S. at 154.
Where an “action at its inception [is] properly brought[,] . . . subsequent represention[s] of [the
defendant’s counsel will] not suffice to defeat it.” Id.
6
Importantly, the Supreme Court has explained that “[o]ne does not have to await the
consummation of threatened injury to obtain preventive relief. If the injury is certainly
impending, that is enough.” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580
(1985) (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 143 (1974)); accord, e.g.,
Neal v. Shimoda, 131 F.3d 818, 825 (9th Cir. 1997). The circumstances surrounding the
present case indicate that the Secretary has already subjected several abortion clinics in the
state to the harsh terms of the new Act, and intends to enforce the Act again the plaintiff
clinics. Thus, plaintiffs claims would be fit for adjudication even if they did not present purely
legal questions.
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litigation because “pregnancy . . . truly could be ‘capable of repetition, yet
evading review’”); cf. Sabri, 541 U.S. at 609-10 (2004) (stating that weighty
concerns justify entertaining pre-enforcement facial attacks in the abortion
setting). In evaluating the ripeness of a facial challenge to an abortion
regulation, as in applying the other justiciability doctrines in such a case, “[o]ur
law should not be [so] rigid” as to “effectively den[y] [judicial] review.” See Roe,
410 U.S. at 125.
IV.
In sum, the present controversy raises concrete legal issues regarding the
validity of an already-effective statute, contested by classically adversarial
parties: the regulated entities expressly subject to the challenged law and the
state actor with the undisputed authority to enforce that law against them. It
is thus far from the sort of abstract or hypothetical dispute that Article III’s case
or controversy requirement prohibits federal courts from adjudicating. The
majority overlooks clear legal harms, sufficient to make this controversy ripe for
review, that the challenged Act imposes explicitly and uniquely on Louisiana
abortion providers and consumers such as the plaintiffs here. In doing so, the
majority applies a novel and excessively rigid formulation of the ripeness
doctrine’s hardship requirement. Particularly troubling is that it does so in the
context of a pre-enforcement challenge to an abortion regulation, a context in
which the Supreme Court has repeatedly reached the merits of constitutional
claims, and has applied the justiciability doctrines so as not to effectively deny
a federal forum to challenges to regulations implicating the constitutional right
to choose to terminate a pre-viability pregnancy.
Because I strongly disagree with the rigid formulation of the ripeness
doctrine’s hardship component that the majority applies, and with the erroneous
conclusion it reaches, I respectfully dissent.
33