EMW Women's Surgical Center v. Eric Friedlander ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0296n.06
No. 19-5516
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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EMW WOMEN’S SURGICAL CENTER,
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P.S.C., on behalf of itself, its staff, and its
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FILED
patients; ASHLEE BERGIN, M.D., M.P.H., on July 21, 2022
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behalf of herself and her patients; TANYA DEBORAH S. HUNT, Clerk
FRANKLIN, M.D., M.S.P.H., on behalf of )
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herself and her patients,
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Plaintiffs - Appellees, )
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v. )
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ERIC FRIEDLANDER, in his official capacity as ) ON APPEAL FROM THE UNITED
Acting Secretary of Kentucky’s Cabinet for ) STATES DISTRICT COURT FOR THE
Health and Family Services, ) WESTERN DISTRICT OF KENTUCKY
Defendant - Appellant, )
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THOMAS B. WINE, et al., )
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Defendants, )
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DANIEL J. CAMERON, Kentucky Attorney )
General, )
Proposed Intervenor. )
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ORDER
Before: CLAY, STRANCH, and BUSH, Circuit Judges.
The court issued an order. BUSH, J. (pp. 3–5), delivered a separate opinion concurring in
part and dissenting in part.
No. 19-5516
Proposed intervenor Daniel Cameron, the Attorney General of Kentucky, moved for leave
to file an amended petition for panel rehearing and rehearing en banc. On June 27, 2022, the
Attorney General tendered an additional citation addressing the Supreme Court’s recent ruling in
Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022). We now GRANT the
Attorney General’s motion to intervene, GRANT the Attorney General’s motion for leave to file
an amended petition for panel rehearing and rehearing en banc, GRANT the Attorney General’s
petition for panel rehearing, VACATE this panel’s June 2, 2020, opinion and order, EMW
Women’s Surgical Center, P.S.C. v. Friedlander, 960 F.3d 785 (2020), and REMAND the case to
the district court to reconsider the permanent injunction in light of Dobbs v. Jackson Women’s
Health Organization.
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No. 19-5516
JOHN K. BUSH, Circuit Judge, concurring in part and dissenting in part. I concur in the
grant of Attorney General of Kentucky Daniel Cameron’s (1) motion to intervene, as required by
Cameron v. EMW Women’s Surgical Center, P.S.C., 142 S. Ct. 1002 (2022); (2) motion for leave
to file an amended petition for panel rehearing and rehearing en banc; and (3) petition for panel
rehearing, which vacates this panel’s opinion and order of June 2, 2020, EMW Women’s Surgical
Center, P.S.C. v. Friedlander, 960 F.3d 785 (2020). I disagree, however, with the panel majority’s
remand order. That order keeps in place on remand a dubious permanent injunction blocking
enforcement of Kentucky’s House Bill 454, while depriving the parties of the immediate
opportunity to brief before our court whether that injunction should be vacated in light of Dobbs
v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).1
In Dobbs, the Supreme Court overruled Roe v. Wade, 410 U.S. 113 (1973), and Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and held that a law
regulating abortion is subject to rational-basis review of the law’s constitutionality under the
Fourteenth Amendment. Dobbs, 142 S. Ct. at 2283. That ruling seriously calls into question the
merits of the claims of appellees, EMW Women’s Surgical Center and two obstetrician-
gynecologists, and the validity of the permanent injunction. Compare EMW Women’s Surgical
Ctr., 960 F.3d at 793 (“A party is entitled to a permanent injunction if it can establish that it
suffered a constitutional violation and will suffer continuing irreparable injury for which there is
1
Although the Attorney General filed his motion for leave to file an amended petition for
panel rehearing and rehearing en banc on April 4, 2022, appellees have filed nothing in response.
That inaction is understandable because, until the present order, we have not allowed the Attorney
General to be a party to this matter or allowed him to file his petition. So EMW has not had a
party or petition to respond to. Furthermore, Dobbs was not published until June 24, 2022, or
brought to this panel’s attention for this matter through use of a Federal Rule of Appellate
Procedure 28(j) letter, until June 28, 2022.
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No. 19-5516
no adequate remedy at law.” (cleaned up) (emphasis added)), with Dobbs, 142 S. Ct. at 2279 (“We
therefore hold that the Constitution does not confer a right to abortion.”).
Aside from clarifying that there is no constitutional right to abortion, Dobbs undermines
appellees’ case in other important respects. For instance, appellees brought their claims under 42
U.S.C. § 1983. But § 1983 creates a federal cause of action for state officers’ “deprivation of any
rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. Post-
Dobbs, it is thus unclear that appellees even have a cause of action under § 1983, as it is unclear
what constitutional right they have been deprived of.2 Furthermore, appellees litigated this case
in partial reliance on a third-party-standing theory: that they could vicariously assert the due-
process rights of the patients seeking abortions. See, e.g., EMW Women’s Surgical Ctr., 960 F.3d
at 812 (Bush, J., dissenting). The panel majority originally found such reliance unproblematic for
two reasons. First, it cited precedents permitting third-party standing in the abortion context. See,
e.g., id. at 794 n.2 (citing Singleton v. Wulff, 428 U.S. 107, 117 (1976) (plurality)). But Dobbs has
since explicitly cast such precedents into grave doubt. Dobbs, 142 S. Ct. at 2275 (“The Court’s
abortion cases have diluted the strict standard for facial constitutional challenges. They have
ignored the Court’s third-party standing doctrine.”).3 And second, the panel majority reasoned
2
There are also now serious sovereign-immunity issues as well. See Ex parte Young, 209
U.S. 123, 159–60 (1908) (“If the act which the state attorney general seeks to enforce be a violation
of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict
with the superior authority of that Constitution[, so that] . . . [t]he state has no power to impart to
him any immunity from responsibility to the supreme authority of the United States.”); see also
Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011) (explaining that the Ex parte
Young doctrine rests on the fiction “that when a federal court commands a state official to do
nothing more than refrain from violating federal law, he is not the State for sovereign-immunity
purposes.”).
3
There is also a potentially troubling conflict of interest between appellees and patients,
distinct from other third-party-abortion cases, because “[c]ontrary to [some] patient[s’]
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No. 19-5516
that the physicians were asserting their own rights against prosecution under an allegedly
unconstitutional law. EMW Women’s Surgical Ctr., 960 F.3d at 794 n.2. But again, even if it were
assumed this alternative theory sufficed for Article III standing, Dobbs apparently forecloses it on
the merits. See Dobbs, 142 S. Ct. at 2279.
And aside from the doctrinal weakness of appellees’ case, the Commonwealth of Kentucky
has also made clear its strong interest in “protecting the life of the unborn” and banning “brutal”
“abortive medical procedures resulting in dismemberment, crushing, or human vivisection.” Ky.
H.B. 454. By keeping in place a potentially invalid injunction, the panel majority’s order hinders
Kentucky’s ability to enforce its lawful interests. We should not prolong this hindrance by punting
the issue to the district court.
Therefore, I respectfully submit that our court should order expedited briefing and rule on
the validity of the permanent injunction. If the injunction is contrary to Dobbs, we should so hold
rather than remand the issue to the district court while leaving the injunction in place, as the panel
majority orders.
I trust that the district court will reexamine the permanent injunction expeditiously. But
the duty of the district court to apply Dobbs to this case does not excuse us from doing so as well.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
preference[s], EMW’s doctors simply do not want to provide fetal demise before a D&E
procedure.” EMW Women’s Surgical Ctr., 960 F.3d at 812 (Bush, J., dissenting). Where such
conflicts of interest arise, the Supreme Court has indicated that recognizing third-party standing
may be inappropriate. See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 15 (2004).
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