Opinion
No. C 03-4872 PJH
November 7, 2003
ORDER GRANTING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiffs' motion for a temporary restraining order barring the enforcement of the Partial-Birth Abortion Ban Act of 2003 ("the Act"), 18 U.S.C. § 1531, came on for a specially-set hearing at 2:00 p.m. on November 6, 2003 before this court. Plaintiffs appeared through their counsel, Eve Gartner and Beth Parker, and defendant appeared through his counsel, Anthony Coppolino. Having read the papers and carefully considered the relevant legal authority and oral argument, the court hereby rules as follows.
The Act was signed into law on November 6, 2003, six days after plaintiffs filed suit on October 31. Without conceding any jurisdictional defects, the parties have stipulated that plaintiffs may now file a supplemental complaint pursuant to Fed.R.Civ.P. 15(d) relating back to the October 31 complaint. As indicated at the hearing, leave to do so is granted.
To prevail on a motion for temporary restraining order, as with a preliminary injunction, the moving party bears the burden of demonstrating either 1) a combination of probable success on the merits and the possibility of irreparable injury or 2) the existence of serious questions as to success on the merits and irreparable injury along with a sharp tipping of the balance of hardships in the moving party's favor.See, e.g., Stuhlbara International Sales Co., Inc. v. John D. Brush Co., Inc., 240 F.3d 832, 839-40 (9th Cir. 2001). Plaintiffs have met both requirements here.
The Act purports to ban "partial-birth abortions," which are more properly known as intact dilation and extraction ("DX") abortion procedures, with the sole exception of situations where the procedure is "necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself." 18 U.S.C. § 1531 (a). However, the Supreme Court has held in Stenberg v. Carhart that any law regulating abortion must also contain "an exception, where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." 530 U.S. 914, 931-38 (2000) (requiring exception when "substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health"), citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 879 (1992) (emphasis added). Plaintiffs have demonstrated a likelihood of success in showing that the Act's failure to provide for an exception to preserve women's health renders the law unconstitutional.
Defendants argue that the Act need not contain a health exception in view of the Congressional findings that a DX abortion is never in a woman's best interest. See S. 3, 108th Cong. § 2 (14)(A)-(O). Even construing defendants' argument in the most favorable light and assuming that Congressional findings need only be "reasonable and supported by substantial evidence." Turner Broadcasting Svs., Inc. v. FCC, 520 U.S. 180, 195 (1998), the court finds a strong likelihood of success on plaintiffs' arguments that the legislative conclusions do not meet even that lenient standard.
Furthermore, under Stenberg, a Nebraska state law purporting to ban D X procedures was found unconstitutional as "placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus" because the law, as drafted, could be applied to bar constitutionally-permissible dilation and evacuation ("DE") abortion procedures. 530 U.S. at 938-39, citing Casev, 505 U.S. at 877. Here, despite the claimed linguistic differences between the Act and the Nebraska statute, the court finds a likelihood of success on plaintiffs' argument that, like in Stenberg, the scope of the Act may impermissibly encompass D E procedures and thus impose an undue burden on a woman's right to choose.
Since the court has found a strong likelihood of success on the question of the Act's potential constitutional violations, this is sufficient in and of itself to constitute irreparable harm warranting the issuance of a temporary restraining order. Elrod v. Burns, 427 U.S. 347, 373 (1976); see also, e.g., Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997).
Therefore, the application for a temporary restraining order is GRANTED. Defendant John Ashcroft, in his official capacity as Attorney General of the United States, and his employees, officers, agents, employees, attorneys, and successors in office are temporarily restrained from enforcing the Partial Birth Abortion Ban Act of 2003 against plaintiffs Planned Parenthood Federation of America and Planned Parenthood Golden Gate, their members, officers, agents, servants, and employees. This temporary restraining order also applies to those persons in active concert or participation with plaintiffs, such as non-affiliate doctors to whom plaintiffs' patients are referred, who receive actual notice of this order by personal service or otherwise. Fed.R.Civ.P. 65(d).
Planned Parenthood maintains offices with affiliate physicians in 49 states and the District of Columbia.
This temporary restraining order shall remain in effect until further order of the court, The parties shall submit a joint letter by November 12, 2003 setting forth a proposed date and briefing schedule for the preliminary injunction hearing, discussing whether the TRO should be extended to afford the parties additional preparation time, and stating the expected length of the hearing. The parties should also inform the court whether they intend to present live witness testimony, and if so, on what topics.
This order fully adjudicates the matters listed at nos. 7, 15, and 22 on the clerk's docket for this case.
IT IS SO ORDERED.