Planned Parenthood Great Northwest v. Daniel Cameron ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0237n.06
Case No. 22-5832
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
PLANNED PARENTHOOD GREAT ) May 24, 2023
NORTHWEST, HAWAII, ALASKA, ) DEBORAH S. HUNT, Clerk
INDIANA AND KENTUCKY, INC., on )
behalf of itself, its staff, and its patients, )
)
Plaintiffs - Appellees,
)
) ON APPEAL FROM THE UNITED
EMW WOMEN’S SURGICAL CENTER,
) STATES DISTRICT COURT FOR
P.S.C.; ERNEST MARSHALL, M.D.,
) THE WESTERN DISTRICT OF
Intervenor Plaintiffs - Appellees, ) KENTUCKY
v. )
) OPINION
DANIEL J. CAMERON, in his official )
capacity as Attorney General of the )
Commonwealth of Kentucky, )
Defendant - Appellant. )
Before: SUTTON, Chief Judge; BATCHELDER and STRANCH, Circuit Judges.
SUTTON, Chief Judge. A Kentucky law requires medical professionals who offer abortion
services to transmit certain data to the State. Concluding that those professionals lacked the forms
and regulations they needed to comply with the law, the district court enjoined it. The parties
disagree over whether the court erred. But they agree that the required forms and regulations now
exist, a reality that moots the underlying case and controversy. Consistent with United States v.
Munsingwear, 340 U.S. 36, 40 (1950), we vacate the district court’s injunction orders and remand
the case to the district court to dismiss it as moot.
Case No. 22-5832, Planned Parenthood et al. v. Cameron
In 2022, Kentucky enacted the Humanity in Healthcare Act. One objective of the Act was
to collect demographic information on complications arising from drug-induced abortions “for
future scientific studies and public health research.” R.1-1 at 5. To obtain that information, the
Act enlisted Kentucky officials and the medical community. It required Kentucky’s Cabinet for
Health and Family Services to create numerous forms. Ky. Rev. Stat. Ann. § 213.174(1). And it
instructed the Cabinet to issue regulations to explain the forms as well as to ensure the privacy of
the data it collected. E.g., id. §§ 213.101(10), 213.174, 216B.202.
The Act directed medical professionals, in turn, to complete and submit the forms. After
performing an abortion, for example, the attending physician must submit a form to an office in
the Kentucky Department for Public Health that provides information about the physician, the
procedure used, the “pregnant patient,” and the “unborn child.” Id. § 213.101(1)–(2). Other forms
require disclosure of the patient’s consent to the abortion, id. § 311.7735(2), prescription of “an
abortion-inducing drug,” id. §§ 213.101(5), 213.172(1), complications related to a drug-induced
abortion, id. § 311.7736(2)–(3), and disposition of fetal remains, id. § 213.098.
The Healthcare Act went into effect on April 14, 2022. By then, however, the Cabinet for
Health and Family Services had not issued the relevant forms or promulgated any regulations.
Even so, those who did not comply with the Act’s reporting obligations faced civil and criminal
penalties. E.g., id. §§ 213.101(8)–(9), 216B.208, 315.990.
Two medical facilities and a doctor sued Kentucky officials, including Attorney General
Daniel Cameron, seeking to prevent the Act from going into effect. The challengers claimed that
the missing forms and regulations made it impossible to offer abortions and comply with the
Healthcare Act. They also claimed that the information required on the forms would compromise
their patients’ privacy. They sought injunctive relief.
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The district court issued a temporary restraining order “based on the impossibility of
compliance.” R.27 at 2. It followed that up with a preliminary injunction, which enjoined the
provisions of the Healthcare Act that involved “reporting and registration programs not yet created
or promulgated.” R.65 at 2–3.
Attorney General Cameron appealed. Shortly after, the Supreme Court overruled its
abortion precedents. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242–43 (2022).
In view of that decision, we remanded the case to the district court to reconsider its order.
After the case returned to the district court, Attorney General Cameron sought to dissolve
the injunction. The court demurred. So long as compliance was impossible, the court reasoned,
the challengers’ claims could succeed. Awaiting “action by the Cabinet,” the court left the
injunction in place for each provision that lacked implementing forms or regulations. R.97 at 2.
Attorney General Cameron appealed again. As before, a change in the law occurred during
the appeal. The Cabinet issued the final forms and regulations. Concluding that the challengers
could comply with the Act, the district court indicated it would dissolve the injunction but for the
appeal. In their appellate briefing, the challengers claim that the issues on appeal are moot, while
the Commonwealth urges us to address the merits and reverse the district court’s decision.
The Constitution confines the federal courts to cases and controversies. U.S. Const. art.
III, § 2. This limitation requires that a true dispute persist at each stage of a case. Campbell-Ewald
Co. v. Gomez, 577 U.S. 153, 160 (2016). If an intervening event ends the dispute and renders it
“impossible” for the court to grant “effectual relief,” the case becomes moot. Church of
Scientology v. United States, 506 U.S. 9, 12 (1992).
Such an event occurred. The challengers focused their lawsuit on the Healthcare Act’s
requirement that they submit forms and comply with regulations that did not exist. Those “unique”
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conditions “no longer” prevail and will not “recur” now that the Cabinet has published the required
forms and regulations. Los Angeles Cnty. v. Davis, 440 U.S. 625, 632 (1979); see City of Los
Angeles v. Lyons, 461 U.S. 95, 105–07 (1983). With these “finalized and effective” documents in
hand, the challengers may comply with the Act, as they indeed have now represented. R.113 at 3.
“By Plaintiffs’ own admission,” in the district court’s words, “the necessary forms for compliance
have been created.” R.114 at 2. The impetus for this case “no longer exists” because, in the
challengers’ words, the Cabinet has “complet[ed] the forms and regulations needed for
compliance.” Appellees’ Br. 16–17.
A change in the applicable law, as a general matter, “tends to” moot a preexisting
controversy. Kenjoh Outdoor, LLC v. Marchbanks, 23 F.4th 686, 692 (6th Cir. 2022). The new
forms and regulations do just that. Unlike the “theory of unconstitutionality set forth in the
complaint[s],” Oklahoma v. United States, 62 F.4th 221, 227 (6th Cir. 2023), the challengers no
longer face the paradox at the heart of their complaints—that they cannot fill out the requisite
forms and comply with the relevant regulations when they do not exist. For like reasons, the
challengers cannot complain that the Act harms them or their patients “in the same fundamental
way[s]” as before. Ne. Fla. Ch. of Assoc. Gen. Contractors v. City of Jacksonville, 508 U.S. 656,
662 (1993). Any future challenge to the Act will thus “present a substantially different controversy
from the one the District Court originally decided.” Id. at 662 n.3. All we have today is “an
abstract dispute” that is divorced “from any concrete actual or threatened harm.” Alvarez v. Smith,
558 U.S. 87, 93 (2009). Abstract disputes are not live disputes.
Acknowledging that the relevant forms and regulations now exist, Attorney General
Cameron worries that even the new forms and regulations may not suffice for compliance. But no
one has identified any flaw in them. Even if someone could identify such a problem, moreover,
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any discrepancy between those documents and the Act would go beyond the claims in the
challengers’ complaints.
Attorney General Cameron adds that the challengers’ privacy claims remain live. The
challengers originally alleged that the Act’s disclosure requirements would violate the privacy of
their patients. But such disclosure would occur through the then-unavailable, then-hypothetical
forms and regulations. Now in hand, these documents reveal that the forms shall “[n]ot contain
information that identifies the [persons] involved.” 901 Ky. Admin. Regs. 5:120 §§ 2(4)(b),
3(4)(c). The arrival of the forms and regulations moots the privacy claims no less than it does the
other claims. See Alvarez, 558 U.S. at 93; City of Jacksonville, 508 U.S. at 662.
All told, the case is moot, and we remand it to the district court to dismiss it on that ground.
To “clear[] the path for future relitigation of the issues,” we vacate the district court’s injunction
orders. Munsingwear, 340 U.S. at 40; see Resurrection Sch. v. Hertel, 35 F.4th 524, 530 (6th Cir.
2022) (en banc); Fialka-Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 716–18 (6th Cir.
2011).
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