United States District Court, D. Maine
THE FAMILY PLANNING ASSOCIATION OF MAINE D/B/A MAINE FAMILY PLANNING, et al ., Plaintiffs
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al ., Defendants
DECISION AND ORDER ON MOTION TO AMEND ORDER
LANCE
E. WALKER, U.S. DISTRICT JUDGE
The
matter is before the Court on Plaintiffs' Opposed Motion
to Amend Preliminary Injunction Order, or in the Alternative
for Injunction Pending Appeal (ECF No. 78). The Plaintiffs
take issue with footnotes 13 and 23 of my recent Decision and
Order on their motion for preliminary injunctive relief:
13. On June 10, 2019, Governor Janet Mills signed into law An
Act to Authorize Certain Health Care Professionals to Perform
Abortion, P.L. 2019, ch. 262, §§ 1596 to 1599-A,
which authorizes advanced practice providers other than
physicians to provide abortion services. Passage of the Act
changes, considerably, the legal landscape surrounding the
provision of abortion services in Maine and undermines many
of the assumptions upon which Plaintiffs' motion for
preliminary injunction relies.
23. Once more, the recent passage of An Act to Authorize
Certain Health Care Professionals to Perform Abortion, P.L.
2019, ch. 262, §§ 1596 to 1599-A, has serious
implications for Plaintiffs' preliminary injunction
showing. Given it is now lawful for APRNs to provide abortion
services, Plaintiffs' portrayal of driving burdens is not
calibrated to existing conditions.
The
Plaintiffs ask that I amend the Decision and Order “to
clarify the factual and legal impact” of the new law.
Motion at 1. In the alternative, they ask that I enter an
injunction pending resolution of the Plaintiff's planned
appeal of the Decision and Order. Id. at 2.
The
footnotes communicate my concern with the Plaintiffs'
contention that Maine Family Planning must abandon the Title
X program and close 11 to 15, or all 17, satellite clinics
because there is no feasible means of developing an abortion
network untethered from Title X that is both sustainable from
an economic standpoint and reasonably accessible to those
rural Mainers who have limited access to reliable vehicular
transportation.
The
idea behind the footnotes was merely that, given the changing
legal landscape in Maine, which will be more conducive to the
provision of abortion services, a motivated entity with a
talented staff of APRNs intent on finding a way to serve
rural Maine women could come up with a plan that does not
require a choice between the two extremes currently proposed:
either the closure of the vast majority of existing clinics
based on Maine Family Planning's departure from the Title
X program or the economically non-viable acquisition of 17 or
18 new abortion clinics. In any event, the legal standard
does not require the Court to grant the request for a
preliminary injunction unless it can describe a business
model that would permit Maine Family Planning to continue as
a primary provider of abortion services with the same
physical geographic distribution.[1]
Ultimately,
I denied the motion for preliminary injunctive relief because
I was not persuaded that the Plaintiffs demonstrated the
likelihood of success on the merits of their legal arguments.
“Likelihood of success is the main bearing wall of the
four-factor framework.” Ross-Simons of
Warwick, Inc. v. Baccarat, Inc., 102
F.3d 12, 16 (1st Cir. 1996). On this issue “the
district court is required only to make an estimation of
likelihood of success and ‘need not predict the
eventual outcome on the merits with absolute
assurance.'” Corp. Techs., Inc. v.
Harnett, 731 F.3d 6, 10 (1st Cir. 2013) (quoting
Ross- Simons, 102 F.3d at 16). If the party seeking
injunctive relief fails to make a persuasive showing of
likelihood of success, then generally the court acts within
its discretion if it denies relief without addressing the
remaining factors. New Comm. Wireless Servs.,
Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st
Cir. 2002) (“[I]f the moving party cannot demonstrate
that he is likely to succeed in his quest, the remaining
factors become matters of idle curiosity.”). Footnotes
13 and 23 are not material to my conclusion that the
Plaintiffs did not demonstrate the likelihood of their
success. Consequently, I do not agree that there is a need to
amend the Decision and Order.
Although
I did not base my ruling on the “irreparable
injury” factor, the Plaintiffs are wrong to read my
Decision and Order as a rejection of their contention that
the business model they use to provide abortion services will
have to change if they are subject to the Final Rule or if
they abandon the Title X program. As I indicated in the
Decision and Order, I am concerned that following
implementation of the Final Rule a significant number of
women who would choose to access abortion services will
travel a more convoluted path to access those services,
precisely because of the disruptions the Final Rule will
produce for Maine Family Planning's abortion network.
However, it strikes me that the path forward in Maine does
not have to be as limited as the Plaintiffs' portray, and
footnotes 13 and 23 simply provide some context for this
assessment.
Finally,
I am not persuaded that it is appropriate to enter a
temporary injunction pending review by the First Circuit
where I have concluded that the Plaintiffs have not
demonstrated a likelihood of success on the merits, where the
Court has done everything it could to expedite proceedings,
and where the Plaintiffs influenced the timing of their
appeal by withdrawing their motion for injunctive relief for
a two-month period (ECF Nos. 65, 73) and by filing the
instant motion.
CONCLUSION
Plaintiff's
Opposed Motion to Amend Preliminary Injunction Order, or in
the Alternative for Injunction Pending Appeal (ECF No. 78) is
DENIED.
So
...