APPEAL,FRENSLEY,PROTECTIVE−ORDER
U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:15−cv−00705

Adams & Boyle, P.C. et al v. Slatery et al Assigned to: Senior Judge Bernard A. Friedman Referred to: Magistrate Judge Jeffery S. Frensley Case in other court: 6CCA, 20−05408 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 06/25/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Adams & Boyle, P.C. on behalf of itself and its patients

represented by Autumn Katz Center for Reproductive Rights 199 Water St. 22nd Floor New York, NY 10038 (917) 637−3723 Fax: (917) 637−3666 Email: akatz@reprorights.org ATTORNEY TO BE NOTICED

David W. Garrison Barrett Johnston Martin & Garrison, LLC Philips Plaza 414 Union Street Suite 900 Nashville, TN 37219 (615) 244−2202 Fax: (615) 252−3798 Email: dgarrison@barrettjohnston.com ATTORNEY TO BE NOTICED

Genevieve Scott Email: gscott@reprorights.org ATTORNEY TO BE NOTICED

Hailey Flynn Center for Reproductive Rights 199 Water St. 22nd Floor New York, NY 10038 (917) 637−3679 Email: hflynn@reprorights.org TERMINATED: 11/06/2019

Ilene Jaroslaw Center for Reproductive Rights 199 Water St. 22nd Floor New York, NY 10038 (917) 637−3697 Fax: (917) 637−3666 Email: ijaroslaw@reprorights.org TERMINATED: 04/12/2017

Case: 3:15-cv-705

Jason M. Moff Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 (212) 715−9113 Fax: (212) 715−8000 Email: jmoff@kramerlevin.com
As of: 05/15/2020 02:06 PM CDT 1 of 37

ATTORNEY TO BE NOTICED
Jennifer Keighley Planned Parenthood Federation of America 123 William St. Fl. 9 New York, NY 10038 (212) 854−4749 Fax: (212) 247−6811 Email: jennifer.keighley@ppfa.org TERMINATED: 11/27/2018
Madeline Gomez Center for Reproductive Rights 199 Water St. 22nd Floor New York, NY 10038 (917) 637−3672 Fax: (917) 637−3666 Email: mgomez@reprorights.org TERMINATED: 08/17/2018
Marc Hearron Email: mhearron@reprorights.org ATTORNEY TO BE NOTICED
Michelle Moriarty Center for Reproductive Rights 199 Water St. 22nd Floor New York, NY 10038 (917) 637−3695 Email: mmoriarty@reprorights.org ATTORNEY TO BE NOTICED
Rabia Muqaddam Center for Reproductive Rights 199 Water St. 22nd Floor New York, NY 10038 (917) 637−3645 Email: rmuqaddam@reprorights.org ATTORNEY TO BE NOTICED
Scott P. Tift Barrett Johnston Martin & Garrison, LLC Philips Plaza 414 Union Street Suite 900 Nashville, TN 37219 (615) 244−2202 Fax: (615) 252−3798 Email: stift@barrettjohnston.com ATTORNEY TO BE NOTICED
Stephanie Toti Center for Reproductive Rights 199 Water St. 22nd Floor New York, NY 10038 Email: stoti@reprorights.org TERMINATED: 04/12/2017
Thomas H. Castelli ACLU (Nashville Office)
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P O Box 120160 Nashville, TN 37212 (615) 320−7142 Ext. 303 Fax: (615) 691−7219 Email: tcastelli@aclu−tn.org ATTORNEY TO BE NOTICED

Thomas C. Jessee Jessee & Jessee P O Box 997 Johnson City, TN 37602 (423) 928−7175 Fax: (423) 928−9650 Email: tom@jesseeandjessee.com ATTORNEY TO BE NOTICED

Plaintiff
Wesley F. Adams, Jr. on behalf of himself and his patients TERMINATED: 08/22/2017

represented by Autumn Katz (See above for address) ATTORNEY TO BE NOTICED

David W. Garrison (See above for address) ATTORNEY TO BE NOTICED

Ilene Jaroslaw (See above for address) TERMINATED: 04/12/2017

Jennifer Keighley (See above for address) TERMINATED: 11/27/2018

Madeline Gomez (See above for address) TERMINATED: 08/17/2018

Scott P. Tift (See above for address) ATTORNEY TO BE NOTICED

Stephanie Toti (See above for address) TERMINATED: 04/12/2017

Thomas H. Castelli (See above for address) ATTORNEY TO BE NOTICED

Thomas C. Jessee (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Memphis Center for Reproductive Health on behalf of itself and its patients

represented by Autumn Katz (See above for address) ATTORNEY TO BE NOTICED

Case: 3:15-cv-705

Catherine Hoge Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 (212) 715−9493 Fax: (212) 715−8493
As of: 05/15/2020 02:06 PM CDT 3 of 37

Email: choge@kramerlevin.com ATTORNEY TO BE NOTICED
David W. Garrison (See above for address) ATTORNEY TO BE NOTICED
Genevieve Scott (See above for address) ATTORNEY TO BE NOTICED
Hailey Flynn (See above for address) TERMINATED: 11/06/2019
Ilene Jaroslaw (See above for address) TERMINATED: 04/12/2017
Irene Weintraub Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 (212) 715−9462 Email: iweintraub@kramerlevin.com ATTORNEY TO BE NOTICED
Jason M. Moff (See above for address) ATTORNEY TO BE NOTICED
Jennifer Keighley (See above for address) TERMINATED: 11/27/2018
Madeline Gomez (See above for address) TERMINATED: 08/17/2018
Marc Hearron (See above for address) ATTORNEY TO BE NOTICED
Michael J. Dell Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 (212) 715−9100 Fax: (212) 715−8000 Email: mdell@kramerlevin.com ATTORNEY TO BE NOTICED
Michelle Moriarty (See above for address) ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) ATTORNEY TO BE NOTICED
Scott P. Tift (See above for address) ATTORNEY TO BE NOTICED
Stephanie Toti Case: 3:15-cv-705 As of: 05/15/2020 02:06 PM CDT 4 of 37

(See above for address) TERMINATED: 04/12/2017

Thomas H. Castelli (See above for address) ATTORNEY TO BE NOTICED

Thomas C. Jessee (See above for address) ATTORNEY TO BE NOTICED

Timur Tusiray Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 (212) 715−9364 Email: ttusiray@kramerlevin.com ATTORNEY TO BE NOTICED

Plaintiff
Knoxville Center for Reproductive Health

represented by David W. Garrison (See above for address) ATTORNEY TO BE NOTICED

Jennifer Keighley (See above for address) TERMINATED: 11/27/2018

Julia Kaye American Civil Liberties Union Foundation 125 Broad St. Floor 18 New York, NY 10004 (212) 284−7358 Email: jkaye@aclu.org ATTORNEY TO BE NOTICED

Scott P. Tift (See above for address) ATTORNEY TO BE NOTICED

Thomas H. Castelli (See above for address) ATTORNEY TO BE NOTICED

Thomas C. Jessee (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Planned Parenthood Greater Memphis Region TERMINATED: 04/21/2020

represented by Catherine Hoge (See above for address) ATTORNEY TO BE NOTICED

David W. Garrison (See above for address) ATTORNEY TO BE NOTICED

Irene Weintraub (See above for address) ATTORNEY TO BE NOTICED

Jason M. Moff Case: 3:15-cv-705 As of: 05/15/2020 02:06 PM CDT 5 of 37

Plaintiff
Planned Parenthood of Middle and East Tennessee TERMINATED: 09/06/2018

(See above for address) ATTORNEY TO BE NOTICED
Jennifer Keighley (See above for address) TERMINATED: 11/27/2018
Maithreyi Ratakonda Planned Parenthood Federation of America 123 William St. Fl. 9 New York, NY 10038 (212) 261−4405 Fax: (212) 247−6811 Email: mai.ratakonda@ppfa.org ATTORNEY TO BE NOTICED
Marc Hearron (See above for address) ATTORNEY TO BE NOTICED
Melissa A. Cohen Children's Rights, Inc. 88 Pine Street Suite 800 New York, NY 10005 (212) 683−2210 Fax: (212) 683−4015 Email: melissa.cohen@ppfa.org ATTORNEY TO BE NOTICED
Michael J. Dell (See above for address) ATTORNEY TO BE NOTICED
Scott P. Tift (See above for address) ATTORNEY TO BE NOTICED
Thomas H. Castelli (See above for address) ATTORNEY TO BE NOTICED
Thomas C. Jessee (See above for address) ATTORNEY TO BE NOTICED
Timur Tusiray (See above for address) ATTORNEY TO BE NOTICED
represented by David W. Garrison (See above for address) ATTORNEY TO BE NOTICED
Jennifer Keighley (See above for address) TERMINATED: 11/27/2018
Maithreyi Ratakonda (See above for address) ATTORNEY TO BE NOTICED

Case: 3:15-cv-705 As of: 05/15/2020 02:06 PM CDT 6 of 37

Scott P. Tift (See above for address) ATTORNEY TO BE NOTICED

Thomas H. Castelli (See above for address) ATTORNEY TO BE NOTICED

Thomas C. Jessee (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Planned Parenthood of Tennessee and North Mississippi formerly known as Planned Parenthood of Middle and East Tennessee

represented by Catherine Hoge (See above for address) ATTORNEY TO BE NOTICED
David W. Garrison (See above for address) ATTORNEY TO BE NOTICED

Irene Weintraub (See above for address) ATTORNEY TO BE NOTICED

Jason M. Moff (See above for address) ATTORNEY TO BE NOTICED

Jennifer Keighley (See above for address) TERMINATED: 11/27/2018

Maithreyi Ratakonda (See above for address) ATTORNEY TO BE NOTICED

Marc Hearron (See above for address) ATTORNEY TO BE NOTICED

Melissa A. Cohen (See above for address) ATTORNEY TO BE NOTICED

Michael J. Dell (See above for address) ATTORNEY TO BE NOTICED

Richard Muniz Planned Parenthood Federation of America 1110 Vermont Avenue NW Suite 300 Washington, DC 20005 (202) 973−4997 Email: richard.muniz@ppfa.org ATTORNEY TO BE NOTICED

Scott P. Tift (See above for address) ATTORNEY TO BE NOTICED

Thomas H. Castelli (See above for address)
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Plaintiff Kimberly Looney

ATTORNEY TO BE NOTICED
Thomas C. Jessee (See above for address) ATTORNEY TO BE NOTICED
Timur Tusiray (See above for address) ATTORNEY TO BE NOTICED
represented by Richard Muniz (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Herbert H. Slatery, III Attorney General of Tennessee, in his official capacity

represented by Alexander Stuart Rieger Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 741−2408 Fax: (615) 532−5683 Email: alex.rieger@ag.tn.gov ATTORNEY TO BE NOTICED
Amber L. Seymour Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 741−7085 Fax: (615) 532−5683 Email: Amber.Seymour@ag.tn.gov ATTORNEY TO BE NOTICED
Kathryn A. Baker Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 741−7630 Fax: (615) 532−5683 Email: kathryn.baker@ag.tn.gov ATTORNEY TO BE NOTICED
Lindsay H. Sisco Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 741−2471 Fax: (615) 741−7327 Email: lindsay.sisco@ag.tn.gov ATTORNEY TO BE NOTICED
Matthew Daniel Cloutier Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 741−7908 Fax: (615) 532−5683 Email: Matt.Cloutier@AG.TN.Gov ATTORNEY TO BE NOTICED

Case: 3:15-cv-705 As of: 05/15/2020 02:06 PM CDT 8 of 37

Michael Alan Meyer Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 741−3491 Email: michael.meyer@ag.tn.gov TERMINATED: 04/09/2019

Steven Ashley Hart Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202 (615) 741−3491 Email: steve.hart@ag.tn.gov ATTORNEY TO BE NOTICED

Sue A. Sheldon Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202 (615) 741−3491 Email: Sue.Sheldon@ag.tn.gov ATTORNEY TO BE NOTICED

Defendant
Michael D. Zanolli, M.D. President of the Tennessee Board of Medical Examiners, in his official capacity TERMINATED: 09/20/2017

represented by Alexander Stuart Rieger (See above for address) ATTORNEY TO BE NOTICED
Amber L. Seymour (See above for address) ATTORNEY TO BE NOTICED

Kathryn A. Baker (See above for address) ATTORNEY TO BE NOTICED

Lindsay H. Sisco (See above for address) ATTORNEY TO BE NOTICED

Matthew Daniel Cloutier (See above for address) ATTORNEY TO BE NOTICED

Michael Alan Meyer (See above for address) TERMINATED: 04/09/2019

Steven Ashley Hart (See above for address) ATTORNEY TO BE NOTICED

Sue A. Sheldon (See above for address) ATTORNEY TO BE NOTICED

Defendant

John Dreyzehner, M.D.

represented by Alexander Stuart Rieger

Commissioner of the Tennessee

(See above for address)

Department of Health, in his official

ATTORNEY TO BE NOTICED

capacity

TERMINATED: 08/28/2019

Amber L. Seymour

(See above for address)

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ATTORNEY TO BE NOTICED

Kathryn A. Baker (See above for address) ATTORNEY TO BE NOTICED

Lindsay H. Sisco (See above for address) ATTORNEY TO BE NOTICED

Matthew Daniel Cloutier (See above for address) ATTORNEY TO BE NOTICED

Michael Alan Meyer (See above for address) TERMINATED: 04/09/2019

Steven Ashley Hart (See above for address) ATTORNEY TO BE NOTICED

Sue A. Sheldon (See above for address) ATTORNEY TO BE NOTICED

Defendant
Glenn R. Funk District Attorney General of Nashville, in his official capacity

represented by Alexander Stuart Rieger (See above for address) ATTORNEY TO BE NOTICED

Amber L. Seymour (See above for address) ATTORNEY TO BE NOTICED

Kathryn A. Baker (See above for address) ATTORNEY TO BE NOTICED

Lindsay H. Sisco (See above for address) ATTORNEY TO BE NOTICED

Matthew Daniel Cloutier (See above for address) ATTORNEY TO BE NOTICED

Steven Ashley Hart (See above for address) ATTORNEY TO BE NOTICED

Sue A. Sheldon (See above for address) ATTORNEY TO BE NOTICED

Defendant
Amy Weirich District Attorney General of Shelby County, in her official capacity

represented by Alexander Stuart Rieger (See above for address) ATTORNEY TO BE NOTICED

Amber L. Seymour (See above for address) ATTORNEY TO BE NOTICED

Case: 3:15-cv-705 As of: 05/15/2020 02:06 PM CDT 10 of 37

Kathryn A. Baker (See above for address) ATTORNEY TO BE NOTICED

Lindsay H. Sisco (See above for address) ATTORNEY TO BE NOTICED

Matthew Daniel Cloutier (See above for address) ATTORNEY TO BE NOTICED

Steven Ashley Hart (See above for address) ATTORNEY TO BE NOTICED

Sue A. Sheldon (See above for address) ATTORNEY TO BE NOTICED

Defendant
Barry P. Staubus District Attorney General of Sullivan County, in his official capacity

represented by Alexander Stuart Rieger (See above for address) ATTORNEY TO BE NOTICED

Amber L. Seymour (See above for address) ATTORNEY TO BE NOTICED

Kathryn A. Baker (See above for address) ATTORNEY TO BE NOTICED

Lindsay H. Sisco (See above for address) ATTORNEY TO BE NOTICED

Matthew Daniel Cloutier (See above for address) ATTORNEY TO BE NOTICED

Steven Ashley Hart (See above for address) ATTORNEY TO BE NOTICED

Sue A. Sheldon (See above for address) ATTORNEY TO BE NOTICED

Defendant Charme P. Allen

represented by Alexander Stuart Rieger (See above for address) ATTORNEY TO BE NOTICED

Amber L. Seymour (See above for address) ATTORNEY TO BE NOTICED

Kathryn A. Baker (See above for address) ATTORNEY TO BE NOTICED

Lindsay H. Sisco (See above for address)
Case: 3:15-cv-705 As of: 05/15/2020 02:06 PM CDT 11 of 37

ATTORNEY TO BE NOTICED

Matthew Daniel Cloutier (See above for address) ATTORNEY TO BE NOTICED

Steven Ashley Hart (See above for address) ATTORNEY TO BE NOTICED

Sue A. Sheldon (See above for address) ATTORNEY TO BE NOTICED

Defendant
Subhi D. Ali, M.D. President of the Tennessee Board of Medical Examiners, in his official capacity TERMINATED: 08/28/2019

represented by Alexander Stuart Rieger (See above for address) ATTORNEY TO BE NOTICED
Amber L. Seymour (See above for address) ATTORNEY TO BE NOTICED

Kathryn A. Baker (See above for address) ATTORNEY TO BE NOTICED

Lindsay H. Sisco (See above for address) ATTORNEY TO BE NOTICED

Matthew Daniel Cloutier (See above for address) ATTORNEY TO BE NOTICED

Michael Alan Meyer (See above for address) TERMINATED: 04/09/2019

Steven Ashley Hart (See above for address) ATTORNEY TO BE NOTICED

Sue A. Sheldon (See above for address) ATTORNEY TO BE NOTICED

Defendant Lisa Piercey

represented by Alexander Stuart Rieger (See above for address) ATTORNEY TO BE NOTICED

Amber L. Seymour (See above for address) ATTORNEY TO BE NOTICED

Kathryn A. Baker (See above for address) ATTORNEY TO BE NOTICED

Lindsay H. Sisco (See above for address) ATTORNEY TO BE NOTICED

Case: 3:15-cv-705 As of: 05/15/2020 02:06 PM CDT 12 of 37

Defendant W. Reeves Johnson, Jr.
Defendant William Lee Defendant Dr. Rene Saunders Board for Licensing Health Care Facilities. 710 James Robertson Parkway Nashville, TN 37243

Matthew Daniel Cloutier (See above for address) ATTORNEY TO BE NOTICED
Steven Ashley Hart (See above for address) ATTORNEY TO BE NOTICED
Sue A. Sheldon (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander Stuart Rieger (See above for address) ATTORNEY TO BE NOTICED
Amber L. Seymour (See above for address) ATTORNEY TO BE NOTICED
Lindsay H. Sisco (See above for address) ATTORNEY TO BE NOTICED
Matthew Daniel Cloutier (See above for address) ATTORNEY TO BE NOTICED
Steven Ashley Hart (See above for address) ATTORNEY TO BE NOTICED
Sue A. Sheldon (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander Stuart Rieger (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander Stuart Rieger (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/25/2015
06/25/2015

# Docket Text
1 COMPLAINT against John Dreyzehner, MD, Herbert H. Slatery, III, and Michael D. Zanolli, MD (Filing fee $400, Receipt number 34675036827) filed by Adams & Boyle, P.C., Memphis Center for Reproductive Health, and Wesley F. Adams, Jr. (Attachments: # 1 Exhibit 1 − TN Senate Bill No. 1280, # 2 Exhibit 2 − TN House Bill No. 3808, # 3 Exhibit 3 − TN Senate Bill No. 1222, # 4 Exhibit 4 − Procedures for Applying for Licensure of a New Facility, # 5 Civil Cover Sheet, # 6 Receipt). (ds) (Entered: 06/25/2015)
BAR STATUS of Attorneys Scott P. Tift and Thomas C. Jessee of TN and Ilene Jaroslaw and Stephanie Toti of NY verified as active as of this date. (ds) (Entered: 06/25/2015)

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06/25/2015

2 SUMMONS ISSUED as to John Dreyzehner, MD, Herbert H. Slatery, III, and Michael D. Zanolli, MD. The original summonses and service packet were returned to counsel to effect service. (ds) (Entered: 06/25/2015)

06/25/2015

3 NOTICE of Corporate Disclosure Statement filing requirement. (ds) (Entered: 06/25/2015)

06/25/2015

NOTICE TO COUNSEL Ilene Jaroslaw and Stephanie Toti of NY: WITHIN 21 DAYS, counsel shall file a Motion to Appear Pro Hac Vice, a Certificate of Good Standing signed by the Clerk of a United States District Court where admitted, and pay a fee of $75.00 (LR 83.01(d)). The application can be found on the website at http://www.tnmd.uscourts.gov/files/PHVMotForm.pdf. (ds) (Entered: 06/25/2015)

06/25/2015

4 NOTICE of Initial Case Management Conference set for 8/24/2015 at 10:30 AM before Magistrate Judge E. Clifton Knowles. (ds) (Entered: 06/25/2015)

06/25/2015

5 MOTION for attorney(s) Ilene Jaroslaw and Stephanie Toti to Appear Pro Hac Vice (paid $150 PHV fee; receipt number 0650−2008292) by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 06/25/2015)

06/25/2015

6 CERTIFICATE OF GOOD STANDING of Attorney Ilene Jaroslaw from the United States District Court for the Eastern District of New York filed by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 06/25/2015)

06/25/2015

7 CERTIFICATE OF GOOD STANDING of Attorney Stephanie Toti from the United States District Court for the Eastern District of New York filed by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 06/25/2015)

06/26/2015

8 MOTION for Temporary Restraining Order , MOTION for Preliminary Injunction by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Attachments: # 1 Attachment Proposed Temporary Restraining Order)(Tift, Scott) (Entered: 06/26/2015)

06/26/2015

9 MEMORANDUM in Support of 8 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Wesley F. Adams, Jr, Adams & Boyle, P.C. . (Attachments: # 1 Attachment Unpublished Case − Tenn. Dep't of Health v. Boyle, # 2 Attachment Unpublished Authority − 2b − Tenn. Op. Atty. Gen. No. 15−52, # 3 Attachment Unpublished Case − Whole Women's Health v. Cole)(Tift, Scott) (Entered: 06/26/2015)

06/26/2015

10 DECLARATION of Wesley F. Adams, Jr., M.D. filed by Wesley F. Adams, Jr, Adams & Boyle, P.C. re: 8 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction . (Tift, Scott) (Entered: 06/26/2015)

06/26/2015

11 DECLARATION of Thomas C. Jessee filed by Wesley F. Adams, Jr, Adams & Boyle, P.C. re: 8 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction . (Tift, Scott) (Entered: 06/26/2015)

06/26/2015

NY BAR STATUS for Attys. Ilene Jaroslaw and Stephanie Totil verified as active. (hb) (Entered: 06/26/2015)

06/26/2015

12 ORDER granting 5 Motion for Ilene Jaroslaw and Stephanie Toti to Appear Pro Hac Vice. Signed by Magistrate Judge E. Clifton Knowles on 6/26/2015. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 06/26/2015)

06/26/2015

Minute Entry for proceedings held before Chief Judge Kevin H. Sharp: Motion Hearing held on 6/26/2015 re 8 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Memphis Center for Reproductive Health, Adams & Boyle, P.C., Wesley F. Adams, Jr. Motion granted, order to enter. (Court Reporter Cathy Leigh.) (ab) (Entered: 06/26/2015)

06/26/2015

13 ORDER: IT IS THEREFORE ORDERED that Defendants and their employees, agents, and successors in office, are HEREBY ENJOINED from enforcing Public Chapter 419 (to be codified at Tenn. Code Ann. § 68−11−201), as applied to Plaintiffs Adams & Boyle, PC and Wesley F. Adams, pending a hearing on and disposition of

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06/26/2015
06/29/2015 06/29/2015 06/30/2015 06/30/2015 07/01/2015 07/06/2015 07/06/2015 07/06/2015 07/06/2015 07/07/2015 07/08/2015 07/08/2015 07/09/2015
07/15/2015 07/22/2015

Plaintiffs' request for a preliminary injunction set for 9:00am, Thursday, July 9th, 2015. IT IS FURTHER ORDERED that the movants are not required to post a bond. Signed by Chief Judge Kevin H. Sharp on 6/26/2015. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 06/26/2015)
14 ORDER: Defendants shall be permitted to file a response to Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction (Doc. No. 8 ) on or before 12:00 PM on Monday, July 6, 2015. Defendants' response brief shall not exceed twenty (20) pages. Plaintiffs shall be permitted to file an reply brief on or before 12:00 PM on Wednesday, July 8, 2015. Plaintiffs reply brief shall not exceed five (5) pages. By close of business on July 6, 2015, the parties shall exchange witness and exhibit lists. Signed by Chief Judge Kevin H. Sharp on 6/26/2015. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 06/26/2015)
TN BAR STATUS for David W. Garrison verified as active. (hb) (Entered: 06/29/2015)
15 NOTICE of Appearance by Sue A. Sheldon on behalf of All Defendants (Sheldon, Sue) (Entered: 06/29/2015)
TN BAR STATUS for Atty. Sue A. Sheldon verified as active. (hb) (Entered: 06/30/2015)
16 NOTICE of Appearance by Michael Alan Meyer on behalf of All Defendants (Meyer, Michael) (Entered: 06/30/2015)
TN BAR STATUS for Michael A. Meyer verified as active. (hb) (Entered: 07/01/2015)
17 RESPONSE in Opposition re 8 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by John Dreyzehner, MD, Herbert H. Slatery, III, Michael D. Zanolli, MD. (Sheldon, Sue) (Entered: 07/06/2015)
18 DECLARATION of Ann Rutherford Reed filed by John Dreyzehner, MD, Herbert H. Slatery, III, Michael D. Zanolli, MD re: 17 Response in Opposition to Motion. (Sheldon, Sue) (Entered: 07/06/2015)
19 Witness List for July 9, 2015 Hearing by Wesley F. Adams, Jr, Adams & Boyle, P.C.. (Tift, Scott) (Entered: 07/06/2015)
20 Witness List for July 9, 2015 Hearing by John Dreyzehner, MD, Herbert H. Slatery, III, Michael D. Zanolli, MD. (Sheldon, Sue) (Entered: 07/06/2015)
21 NOTICE of Appearance by Steven Ashley Hart on behalf of All Defendants (Hart, Steven) (Entered: 07/07/2015)
22 REPLY to Response to Motion re 8 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Wesley F. Adams, Jr, Adams & Boyle, P.C.. (Tift, Scott) (Entered: 07/08/2015)
TN BAR STATUS for Steven A. Hart verified as active. (hb) (Entered: 07/08/2015)
Minute Entry for proceedings held before Chief Judge Kevin H. Sharp: Motion Hearing held on 7/9/2015 re 8 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Memphis Center for Reproductive Health, Adams & Boyle, P.C., Wesley F. Adams, Jr. TRO extended, order to enter. (Court Reporter Wynette Blathers.) (ab) (Entered: 07/09/2015)
23 RENEWED TEMPORARY RESTRAINING ORDER. Signed by Chief Judge Kevin H. Sharp on 7/15/2015. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 07/15/2015)
24 MOTION for Extension of Time to File Answer re 1 Complaint,, by John Dreyzehner, MD, Herbert H. Slatery, III, Michael D. Zanolli, MD. (Sheldon, Sue) (Entered: 07/22/2015)

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07/24/2015 08/07/2015 08/07/2015 08/08/2015 08/10/2015 08/10/2015
08/11/2015 08/11/2015 08/12/2015 08/13/2015
08/14/2015 08/14/2015 08/18/2015 08/19/2015

25 ORDER granting 24 Motion for Extension of Time to Answer re 1 Complaint. John Dreyzehner, MD answer due 8/18/2015; Herbert H. Slatery, III answer due 8/18/2015; Michael D. Zanolli, MD answer due 8/18/2015. Signed by Magistrate Judge E. Clifton Knowles on 7/24/2015. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 07/24/2015)
26 RESPONSE in Opposition re 8 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction Supplemental Response filed by John Dreyzehner, MD, Herbert H. Slatery, III, Michael D. Zanolli, MD. (Hart, Steven) (Entered: 08/07/2015)
27 NOTICE of Filing by John Dreyzehner, MD, Herbert H. Slatery, III, Michael D. Zanolli, MD re 26 Response in Opposition to Motion (Attachments: # 1 Exhibit Declaration of Asst. Commissioner Michelle Long, # 2 Exhibit August 7, 2015 Board for Licensing Health Care Facilites − transcript excerpts plus attachments from mtg)(Hart, Steven) (Entered: 08/07/2015)
28 STATUS REPORT (Verified) by Adams & Boyle, P.C.. (Attachments: # 1 Exhibit Exhibits A through D to Verified Status Report (Correspondence))(Jaroslaw, Ilene) (Entered: 08/08/2015)
29 AMENDED COMPLAINT against All Defendants, filed by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Wesley F. Adams, Jr.(Tift, Scott) (Entered: 08/10/2015)
30 ORDER: A hearing was held on August 10, 2015 to rule on Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction (Docket No. 8 ). For reasons discussed in open court, Plaintiffs' motion is DENIED. The plaintiffs are GRANTED permission to amend the Complaint. A renewed hearing on the Motion for a Temporary Restraining Order, if necessary, is scheduled for August 13, 2015, at 9:30 AM (CDT). Plaintiffs' counsel's request to participate via telephone during the August 13 hearing is GRANTED. Signed by Chief Judge Kevin H. Sharp on 8/10/2015.(DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 08/10/2015)
31 Summons issued as to Glenn R. Funk, Barry P. Staubus, Amy Weirich. (hb) (Entered: 08/11/2015)
32 SUMMONS returned executed by Memphis Center for Reproductive Health, Wesley F. Adams, Jr, Adams & Boyle, P.C.. Glenn R. Funk served on 8/11/2015. (Tift, Scott) (Entered: 08/11/2015)
33 NOTICE of Filing by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health (Attachments: # 1 Attachment Letter dated August 11, 2015 from Thomas C. Jessee to Barry P. Staubus, # 2 Attachment Letter dated August 11, 2015 from Stephanie Toti and Ilene Jaroslaw to Glenn R. Funk and Barry P. Staubus)(Tift, Scott) (Entered: 08/12/2015)
Minute Entry for proceedings held before Chief Judge Kevin H. Sharp: Motion Hearing held on 8/13/2015 re 8 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Memphis Center for Reproductive Health, Adams & Boyle, P.C., Wesley F. Adams, Jr. The Court granted the Preliminary Injunction, counsel to submit proposed order. (Court Reporter Brian Ratekin.) (ab) (Entered: 08/13/2015)
34 NOTICE of Filing by Wesley F. Adams, Jr, Adams & Boyle, P.C. re Motion Hearing, (Attachments: # 1 Attachment Proposed Preliminary Injunction Order)(Toti, Stephanie) (Entered: 08/14/2015)
35 PRELIMINARY INJUNCTION. Signed by Chief Judge Kevin H. Sharp on 8/14/2015. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 08/14/2015)
36 SUMMONS returned executed by Memphis Center for Reproductive Health, Wesley F. Adams, Jr, Adams & Boyle, P.C.. Barry P. Staubus served on 8/17/2015. (Tift, Scott) (Entered: 08/18/2015)
37 SUMMONS returned executed by Memphis Center for Reproductive Health, Wesley F. Adams, Jr, Adams & Boyle, P.C.. Amy Weirich served on 8/17/2015. (Tift, Scott)

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(Entered: 08/19/2015)

08/19/2015

38 MOTION for Long−Distance Counsel to Appear at Initial Case Mangement Conference by Telephone UNOPPOSED by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 08/19/2015)

08/19/2015 39 PROPOSED CASE MANAGEMENT ORDER filed by All Parties. (Tift, Scott) (Entered: 08/19/2015)

08/24/2015

Minute Entry for proceedings held before Magistrate Judge E. Clifton Knowles: Initial Case Management Conference held on 8/24/2015. Order to enter. (Recording: 24aug15.) (hv) (Entered: 08/24/2015)

08/24/2015

40 ORDER granting 38 MOTION for Long−Distance Counsel to Appear at Initial Case Mangement Conference by Telephone. Signed by Magistrate Judge E. Clifton Knowles on 8/24/2015. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 08/24/2015)

09/16/2015

41 INITIAL CASE MANAGEMENT ORDER: Bench Trial set for 11/1/2016 09:00 AM in Courtroom A826 before Chief Judge Kevin H. Sharp., Pretrial Conference set for 10/17/2016 02:30 PM in Courtroom A826 before Chief Judge Kevin H. Sharp. Amended Pleadings due by 1/15/2016. Discovery due by 5/31/2016. Dispositive Motions due by 6/30/2016. Replies due by 8/4/2016. Signed by Magistrate Judge E. Clifton Knowles on 9/16/2015. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 09/16/2015)

09/25/2015 42 NOTICE of Appearance by Alexander Stuart Rieger on behalf of All Defendants (Rieger, Alexander) (Entered: 09/25/2015)

09/25/2015

43 ANSWER to 29 Amended Complaint by John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD.(Hart, Steven) (Entered: 09/25/2015)

09/28/2015

TN BAR STATUS for Atty. Alexander S. Rieger verified as active. (hb) (Entered: 09/28/2015)

12/16/2015

44 Joint MOTION to Stay by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Attachments: # 1 Attachment Proposed Order Staying Case)(Tift, Scott) (Entered: 12/16/2015)

12/17/2015

45 STAY ORDER: Having considered the Parties' Stipulated Motion to Stay and for good cause shown, the Court finds: That the United States Supreme Court, in Whole Woman's Health v. Cole, 790 F.3d 563 (5th Cir. 2015) (per curiam), modified, 790 F.3d 598 (5th Cir. 2015) (mem.), cert. granted, No. 15−274 (U.S. Nov. 13, 2015), may address how the lower courts should apply the undue burden standard in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), to abortion restrictions, including those at issue in this case; and That the standards if addressed by the Supreme Court in Whole Woman's Health may be critical for developing and evaluating the relevant evidence in this case; and That goals of judicial economy and avoidance of unnecessary litigation weigh heavily in favor of a stay pending the Supreme Court's decision in Whole Woman's Health. IT IS THEREFORE ORDERED that all proceedings in this matter, including the Initial Case Management Order and all discovery, are stayed until further Order of this Court. Signed by Chief Judge Kevin H. Sharp on 12/17/2015. (hb) Modified text on 12/17/2015 (hb). (Entered: 12/17/2015)

10/13/2016

Due to the retirement of Magistrate Judge Knowles effective 10/7/16 and pursuant to Administrative Order No. 138 entered on 10/11/16, the magistrate judge now assigned to this case is Magistrate Judge Jeffery S. Frensley. (gb) (Entered: 10/13/2016)

03/16/2017

46 MOTION for attorney(s) Madeline Gomez to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2402871) by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 03/16/2017)

03/16/2017

47 CERTIFICATE OF GOOD STANDING of Attorney Madeline Gomez from the United States District Court for the Southern District of New York filed by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 03/16/2017)

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03/17/2017 03/30/2017
03/30/2017 03/30/2017
03/31/2017 04/04/2017
04/05/2017
04/06/2017
04/10/2017 04/12/2017 04/13/2017 04/13/2017 04/13/2017 04/14/2017
04/14/2017
04/14/2017 04/21/2017

NY State Bar status verified as active for Madeline Gomez. (hb) (Entered: 03/17/2017)
48 ORDER granting 46 Motion for Madeline Gomez to Appear Pro Hac Vice. Signed by Magistrate Judge Jeffery S. Frensley on 3/30/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 03/30/2017)
49 MOTION for attorney(s) Autumn Katz to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2411723) by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 03/30/2017)
50 CERTIFICATE OF GOOD STANDING of Attorney Autumn C. Katz from the United States District Court for the Eastern District of New York filed by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 03/30/2017)
NY State Bar status verified as active for Autumn Katz. (hb) (Entered: 03/31/2017)
Due to the resignation of Chief Judge Kevin H. Sharp and pursuant to Administrative Order Nos. 138 and 24, this case is transferred to the Honorable Judge Bernard A. Friedman, United States District Judge for the Eastern District of Michigan for all purposes. (gb) (Entered: 04/04/2017)
51 ORDER granting 49 Motion for Autumn Katz to Appear Pro Hac Vice. Signed by Magistrate Judge Jeffery S. Frensley on 4/5/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 04/05/2017)
52 ORDER: IT IS ORDERED that the parties submit a joint status report indicating whether the stay may now be lifted and, if so, how much time the parties need to complete discovery. Signed by Senior Judge Bernard A. Friedman on 4/6/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 04/06/2017)
53 MOTION to Withdraw as Attorney Ilene Jaroslaw and Stephanie Toti by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 04/10/2017)
54 ORDER granting 53 Motion to Withdraw as Attorney.. Signed by Magistrate Judge Jeffery S. Frensley on 4/12/2017. (eh) (Entered: 04/12/2017)
55 STATUS REPORT Joint Status Report by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 04/13/2017)
56 Joint MOTION to Lift Stay and Set a Case Management Conference by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Attachments: # 1 Attachment Proposed Order)(Tift, Scott) (Entered: 04/13/2017)
57 Joint MOTION to Enter Partial Judgment on Consent by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Attachments: # 1 Attachment Order − Partial Judgment on Consent)(Tift, Scott) (Entered: 04/13/2017)
58 ORDER granting 56 Motion to Lift Stay and Set A Case Management Conference. Signed by Senior Judge Bernard A. Friedman on 4/14/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 04/14/2017)
59 ORDER: Case Management Conference set for 4/27/2017 at 10:00 AM in Courtroom 661 before Magistrate Judge Jeffery S. Frensley. Signed by Magistrate Judge Jeffery S. Frensley on 4/14/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 04/14/2017)
60 PARTIAL JUDGMENT ON CONSENT Signed by Senior Judge Bernard A. Friedman on 4/14/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 04/14/2017)
61 MOTION Unopposed Motion For Plaintiffs' Long−Distance Counsel To Participate In Case Management Conference By Telephone by Wesley F. Adams, Jr, Adams &

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04/21/2017 04/24/2017 04/27/2017 05/09/2017
07/26/2017 07/26/2017 08/09/2017 08/15/2017 08/22/2017
08/22/2017
08/22/2017 08/22/2017 08/22/2017

Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 04/21/2017)
62 PROPOSED CASE MANAGEMENT ORDER [PROPOSED] SECOND CASE MANAGEMENT ORDER filed by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 04/21/2017)
63 ORDER granting 61 MOTION Unopposed Motion For Plaintiffs' Long−Distance Counsel To Participate In Case Management Conference By Telephone. Signed by Magistrate Judge Jeffery S. Frensley on 4/24/2017. (hb) (Entered: 04/24/2017)
Minute Entry for proceedings held before Magistrate Judge Jeffery S. Frensley: Case Management Conference held on 4/27/2017. Order to enter. (27APR2017.) (hv) (Entered: 04/27/2017)
64 SECOND CASE MANAGEMENT ORDER: Amended Pleadings due by 7/28/2017. Discovery due by 2/28/2018. Motions due by 4/30/2018. Telephone Conference set for 1/25/2018 01:30 PM before Magistrate Judge Jeffery S. Frensley. Signed by Magistrate Judge Jeffery S. Frensley on 5/9/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 05/09/2017)
65 MOTION for Leave to File Second Amended Complaint by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Attachments: # 1 Attachment Second Amended Complaint, # 2 Exhibit Exhibit A to Second Amended Complaint, # 3 Exhibit Exhibit B to Second Amended Complaint)(Tift, Scott) (Entered: 07/26/2017)
66 NOTICE by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health Notice of Withdrawal of Plaintiff Wesley F. Adams, Jr., M.D. (Tift, Scott) (Entered: 07/26/2017)
67 RESPONSE to Motion re 65 MOTION for Leave to File Second Amended Complaint filed by John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Hart, Steven) (Entered: 08/09/2017)
68 REPLY to Response to Motion re 65 MOTION for Leave to File Second Amended Complaint filed by Wesley F. Adams, Jr, Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 08/15/2017)
69 ORDER granting 65 Motion for Leave to File Second Amended Complaint. A Case Management Conference is scheduled for Wednesday, September 27, 2017 at 11:00 a.m. to discuss the amending the deadlines set forth in the Second Case Management Order. In the event the parties can reach an agreed order with respect to the deadlines they shall file same and the Case Management Conference will be cancelled. Signed by Magistrate Judge Jeffery S. Frensley on 8/22/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 08/22/2017)
70 SECOND AMENDED COMPLAINT against John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD, Charme P. Allen, filed by Memphis Center for Reproductive Health, Adams & Boyle, P.C., Knoxville Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Middle and East Tennessee. (Attachments: # 1 Exhibit A − State of Tennessee, Public Chapter No. 473, Senate Bill No. 1222, # 2 Exhibit B − Amendment)(dt) (Entered: 08/22/2017)
TN State Bar status verified as active for Thomas H. Castelli. NY State Bar status verified as active for Julia Kaye and Jennifer Keighley. (dt) (Entered: 08/22/2017)
NOTICE TO COUNSEL Julia Kaye and Jennifer Keighley: WITHIN 21 DAYS, counsel shall file a Motion to Appear Pro Hac Vice, a Certificate of Good Standing signed by the Clerk of a United States District Court where admitted, and pay a fee of $75.00 (LR 83.01(d)). PHV due by 9/12/2017. (dt) (Entered: 08/22/2017)
71 NOTICE of Appearance by Thomas H. Castelli on behalf of Knoxville Center for Reproductive Health (Castelli, Thomas) (Entered: 08/22/2017)

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08/22/2017

72 MOTION for attorney(s) Julia Kaye to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2504809) by Knoxville Center for Reproductive Health. (Attachments: # 1 Attachment Certificate of Good Standing)(Castelli, Thomas) (Entered: 08/22/2017)

08/23/2017

TN State Bar status verified as active for Thomas H. Castelli. (dt) (Entered: 08/23/2017)

08/25/2017

73 ORDER granting 72 Motion for Julia Kaye to Appear Pro Hac Vice. Signed by Magistrate Judge Jeffery S. Frensley on 8/25/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 08/25/2017)

08/28/2017

74 MOTION for attorney(s) Jennifer Keighley to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2508334) by Planned Parenthood Greater Memphis Region, Planned Parenthood of Middle and East Tennessee. (Attachments: # 1 Attachment Certificate of Good Standing for Jennifer Keighley)(Tift, Scott) (Entered: 08/28/2017)

08/28/2017 75 Summons issued as to Charme P. Allen. (ab) (Entered: 08/28/2017)

08/30/2017

76 SUMMONS returned executed by Knoxville Center for Reproductive Health, Memphis Center for Reproductive Health, Adams & Boyle, P.C., Planned Parenthood Greater Memphis Region, Planned Parenthood of Middle and East Tennessee. Charme P. Allen served on 8/29/2017. (Tift, Scott) (Entered: 08/30/2017)

08/31/2017

77 ORDER granting 74 Motion for Jennifer Keighley to Appear Pro Hac Vice. Signed by Magistrate Judge Jeffery S. Frensley on 8/31/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 08/31/2017)

09/19/2017

78 NOTICE of Filing by Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD re 69 Order on Motion for Leave,, Parties' Proposed Third Case Management Order (Attachments: # 1 Attachment Proposed Third Case Management Order)(Hart, Steven) (Entered: 09/19/2017)

09/19/2017

79 Consent MOTION to Substitute Party (the President of the Tennessee Booard of Medical Examiners, in his Offical Capacity) by Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Hart, Steven) (Entered: 09/19/2017)

09/19/2017

80 ANSWER to 70 Amended Complaint,, by Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD.(Hart, Steven) (Entered: 09/19/2017)

09/20/2017

81 THIRD CASE MANAGEMENT ORDER: Motion to Amend Pleadings due by 7/28/2017. Discovery due by 5/31/2018. Dispositive Motions due by 7/31/2018. Case Management Conference set for 9/27/2017 is CANCELLED. Signed by Magistrate Judge Jeffery S. Frensley on 9/20/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 09/20/2017)

09/20/2017

82 ORDER granting 79 Motion to Substitute Party. Subhi D. Ali, M.D. added. Michael D. Zanolli, MD (President of the Tennessee Board of Medical Examiners, in his official capacity) terminated. Signed by Magistrate Judge Jeffery S. Frensley on 9/20/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 09/20/2017)

02/15/2018 83 MOTION to Dismiss Without Prejudice by Knoxville Center for Reproductive Health. (Castelli, Thomas) (Entered: 02/15/2018)

02/15/2018

84 MEMORANDUM in Support of 83 MOTION to Dismiss Without Prejudice filed by Knoxville Center for Reproductive Health . (Attachments: # 1 Exhibit Declaration of Kim Denison)(Castelli, Thomas) (Entered: 02/15/2018)

02/28/2018

85 RESPONSE in Opposition re 83 MOTION to Dismiss Without Prejudice filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Rieger, Alexander) (Entered: 02/28/2018)

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03/02/2018 03/05/2018
03/05/2018 03/05/2018 03/23/2018
04/16/2018 04/16/2018 04/24/2018 05/11/2018 05/11/2018 05/11/2018 05/11/2018 05/11/2018 05/11/2018 05/14/2018

86 MOTION for Leave to File Reply re 83 MOTION to Dismiss Without Prejudice by Knoxville Center for Reproductive Health. (Attachments: # 1 Attachment Plaintiff's Reply in Support of Motion for Voluntary Dismissal Without Prejudice, # 2 Exhibit A Declaration of Thomas H. Castelli, J.D.)(Castelli, Thomas) (Entered: 03/02/2018)
87 OPINION AND ORDER: The Knoxville Center's motion for voluntary dismissal 83 is granted, and the case will proceed with the remaining parties. Signed by Senior Judge Bernard A. Friedman on 3/5/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 03/05/2018)
88 ORDER granting 86 Motion for Leave to File Reply. Signed by Senior Judge Bernard A. Friedman on 3/5/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 03/05/2018)
89 REPLY to Response to 83 MOTION to Dismiss Without Prejudice filed by Knoxville Center for Reproductive Health. (Attachments: # 1 Exhibit A − Declaration of Thomas H. Castelli, J.D.)(dt) (Entered: 03/05/2018)
90 Joint MOTION for Protective Order by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Middle and East Tennessee. (Attachments: # 1 Exhibit A − Plaintiffs' Proposed Protective Order, # 2 Exhibit B − Defendants' Proposed Protective Order)(Tift, Scott) (Entered: 03/23/2018)
91 ORDER granting 90 Joint Motion for Entry of a Protective Order. Signed by Magistrate Judge Jeffery S. Frensley on 4/16/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 04/16/2018)
92 PROTECTIVE ORDER Signed by Magistrate Judge Jeffery S. Frensley on 4/16/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 04/16/2018)
93 ORDER: Telephone Conference reset for 5/14/2018 at 10:30 AM before Magistrate Judge Jeffery S. Frensley. Signed by Magistrate Judge Jeffery S. Frensley on 4/25/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 04/25/2018)
94 MOTION for attorney(s) Maithreyi Ratakonda to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2670168) by Planned Parenthood Greater Memphis Region and Planned Parenthood of Middle and East Tennessee. (Tift, Scott) Modified Text on 5/11/2018 (dt). (Entered: 05/11/2018)
95 CERTIFICATE OF GOOD STANDING of Attorney Maithreyi Ratakonda from the United States District Court for the Southern District of New York filed by Planned Parenthood Greater Memphis Region, Planned Parenthood of Middle and East Tennessee. (Tift, Scott) (Entered: 05/11/2018)
96 MOTION for attorney(s) Michael J. Dell to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2670796) by Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 05/11/2018)
97 CERTIFICATE OF GOOD STANDING of Attorney Michael J. Dell from the United States District Court for the Southern District of New York filed by Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 05/11/2018)
98 MOTION for attorney(s) Jason M. Moff to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2670803) by Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 05/11/2018)
99 CERTIFICATE OF GOOD STANDING of Attorney Jason M. Moff from the United States District Court for the Southern District of New York filed by Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 05/11/2018)
Minute Entry for proceedings held before Magistrate Judge Jeffery S. Frensley: Telephone Conference held on 5/14/2018. Parties to submit a revised scheduling order. (Tape #Not Recorded.) (hv) (Entered: 05/14/2018)

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05/16/2018 05/17/2018
05/22/2018
08/07/2018
08/16/2018 08/16/2018 08/16/2018 08/17/2018 08/17/2018 08/17/2018 08/20/2018 08/21/2018 08/24/2018 08/24/2018 08/27/2018 08/27/2018
08/27/2018

NY State Bar status verified as active for Jason M. Moff, Michael J. Dell and Maithreyi Ratakonda. (dt) (Entered: 05/16/2018)
100 ORDER: Pending before the Court are Plaintiffs' Motions for Admission Pro Hac Vice for attorneys Maithreyi Ratakonda, Michael J. Dell, and Jason M. Moff. Docket Nos. 94 , 96 , and 98 . The requirements under Local Rule 83.01(d) have been satisfied. Therefore, these Motions are GRANTED. Signed by Magistrate Judge Jeffery S. Frensley on 5/17/18. (dt) (Entered: 05/17/2018)
101 Consent MOTION to Amend/Correct 81 Case Management Order,, Terminate Hearings, by Wesley F. Adams, Jr, Adams & Boyle, P.C., Knoxville Center for Reproductive Health, Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Middle and East Tennessee. (Tift, Scott) (Entered: 05/22/2018)
102 ORDER granting 101 Motion to Amend the Third Case Management Order. Discovery deadline is reset for 10/1/2018. Dispositive Motion deadline is reset for 11/16/2018. Signed by Magistrate Judge Jeffery S. Frensley on 8/7/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 08/07/2018)
103 MOTION for attorney(s) Hailey Flynn to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650−2732805) by Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 08/16/2018)
104 CERTIFICATE OF GOOD STANDING of Attorney Hailey Flynn from the United States District Court for the Southern of New York filed by Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 08/16/2018)
105 MOTION to Withdraw as Attorney by Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 08/16/2018)
NY State Bar status verified as active for Hailey Flynn. (dt) (Entered: 08/17/2018)
106 ORDER granting 105 Motion to Withdraw as Attorney. Attorney Madeline Gomez terminated. Signed by Magistrate Judge Jeffery S. Frensley on 8/17/18. (dt) (Entered: 08/17/2018)
107 ORDER granting 103 Motion for Hailey Flynn to Appear Pro Hac Vice. Signed by Magistrate Judge Jeffery S. Frensley on 8/17/18. (dt) (Entered: 08/17/2018)
108 NOTICE of Appearance by Lindsay H. Sisco on behalf of All Defendants (Sisco, Lindsay) (Entered: 08/20/2018)
TN State Bar status verified as active for Lindsay H. Sisco. (dt) (Entered: 08/21/2018)
109 MOTION for attorney(s) Michelle K. Moriarty to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650−2738769) by Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 08/24/2018)
110 CERTIFICATE OF GOOD STANDING of Attorney Michelle K. Moriarty from the United States District Court for the Eastern of New York filed by Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 08/24/2018)
NY State Bar status verified as active for Michelle Moriarty. (dt) (Entered: 08/27/2018)
Notice to Filer re DE 109 : Pursuant to Local Rule 5.01, all filings shall include a Certificate of Service and it shall identify by name the person served, what was served, the method of service, and date of service. Counsel SHALL FILE a conformed Certificate of Service for this document using the Certificate event located under Other Documents. (dt) (Entered: 08/27/2018)
111 CERTIFICATE OF SERVICE by Adams & Boyle, P.C., Memphis Center for Reproductive Health re 109 MOTION for attorney(s) Michelle K. Moriarty to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650−2738769) (Tift, Scott) (Entered: 08/27/2018)

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08/28/2018 08/30/2018
08/31/2018 09/04/2018
09/04/2018
09/06/2018 09/20/2018 09/20/2018 09/21/2018 09/24/2018 10/09/2018 10/09/2018
10/09/2018 10/09/2018
10/11/2018

112 CERTIFICATE OF SERVICE by Adams & Boyle, P.C., Memphis Center for Reproductive Health re 109 MOTION for attorney(s) Michelle K. Moriarty to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650−2738769) (Tift, Scott) (Entered: 08/28/2018)
113 MOTION to Dismiss Party by Wesley F. Adams, Jr, Adams & Boyle, P.C., Knoxville Center for Reproductive Health, Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Middle and East Tennessee. (Attachments: # 1 Exhibit A. Adams Declaration, # 2 Exhibit B. Coffield Declaration)(Keighley, Jennifer) (Entered: 08/30/2018)
114 ORDER granting 109 Motion for Michelle K. Moriarty to Appear Pro Hac Vice. Signed by Magistrate Judge Jeffery S. Frensley on 8/31/18. (dt) (Entered: 08/31/2018)
Notice to Filer re DE 113 : Pursuant to Local Rule 5.01, all filings shall include a Certificate of Service and it shall identify by name the person served, what was served, the method of service, and date of service. Counsel SHALL FILE a conformed Certificate of Service for this document using the Certificate event located under Other Documents. (dt) (Entered: 09/04/2018)
115 CERTIFICATE OF SERVICE by Wesley F. Adams, Jr, Adams & Boyle, P.C., Knoxville Center for Reproductive Health, Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Middle and East Tennessee re 113 MOTION to Dismiss Party (Keighley, Jennifer) (Entered: 09/04/2018)
116 ORDER granting 113 Motion to Dismiss to Dismiss Party. Signed by Senior Judge Bernard A. Friedman on 9/6/2018. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am) (Entered: 09/06/2018)
117 NOTICE of Appearance by Michael J. Dell on behalf of Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi (Dell, Michael) (Entered: 09/20/2018)
118 NOTICE of Appearance by Jason M. Moff on behalf of Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi (Moff, Jason) (Entered: 09/20/2018)
119 NOTICE of Appearance by Kathryn A. Baker on behalf of All Defendants (Baker, Kathryn) (Entered: 09/21/2018)
TN State Bar status verified as active for Kathryn A. Baker. (dt) (Entered: 09/24/2018)
120 MOTION for attorney(s) Irene Weintraub to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650−2769928) by Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Tift, Scott) (Entered: 10/09/2018)
121 CERTIFICATE OF GOOD STANDING of Attorney Irene Weintraub from the United States District Court for the Southern District of New York filed by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Tift, Scott) (Entered: 10/09/2018)
122 MOTION for attorney(s) Timur Tusiray to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650−2770104) by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Tift, Scott) (Entered: 10/09/2018)
123 CERTIFICATE OF GOOD STANDING of Attorney Timur Tusiray from the United States District Court for the Southern District of New York filed by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Tift, Scott) (Entered: 10/09/2018)
NY State Bar status verified as active for Irene Weintraub. (dt) (Entered: 10/11/2018)

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10/11/2018 10/12/2018 10/12/2018 10/18/2018 10/24/2018
10/24/2018 11/01/2018
11/09/2018 11/13/2018
11/26/2018 11/27/2018
04/08/2019 04/11/2019
06/26/2019
06/27/2019 06/28/2019 07/12/2019

NY State Bar status verified as active for Timur Tusiray. (dt) (Entered: 10/11/2018)
124 ORDER granting 120 Motion for Irene Weintraub to Appear Pro Hac Vice. Signed by Magistrate Judge Jeffery S. Frensley on 10/12/18. (dt) (Entered: 10/12/2018)
125 ORDER granting 122 Motion for Timur Tusiray to Appear Pro Hac Vice. Signed by Magistrate Judge Jeffery S. Frensley on 10/12/18. (dt) (Entered: 10/12/2018)
126 MOTION for Hearing Plaintiffs' Unopposed Motion for Telephonic Status Conference by Adams & Boyle, P.C.. (Tift, Scott) (Entered: 10/18/2018)
127 ORDER granting 126 Motion for Telephonic Status Conference. A telephone conference is set for November 1, 2018, at 9:30 a.m. Signed by Magistrate Judge Jeffery S. Frensley on 10/24/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 10/24/2018)
Set/Reset Hearings: Telephone Conference set for 11/1/2018 at 9:30 AM before Magistrate Judge Jeffery S. Frensley. (dt) (Entered: 10/24/2018)
Minute Entry for proceedings held before Magistrate Judge Jeffery S. Frensley: Telephone Conference held on 11/1/2018. After consulting with Judge Friedman regarding the trial date, parties will submit an agreed order. (Tape #Not recorded.) (hv) (Entered: 11/01/2018)
128 PROPOSED CASE MANAGEMENT ORDER Setting Trial Date and Dispositive Motion Briefing Schedule filed by All Plaintiffs. (Katz, Autumn) (Entered: 11/09/2018)
129 ORDER SETTING TRIAL DATE AND DISPOSITIVE MOTION BRIEFING SCHEDULE: Dispositive Motions due by 1/11/2019. Trial set for 9/16/2019 before Senior Judge Bernard A. Friedman. The District Judge will set all applicable pre−trial deadlines by separate order. Signed by Magistrate Judge Jeffery S. Frensley on 11/13/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 11/14/2018)
130 MOTION to Withdraw as Attorney by Planned Parenthood of Tennessee and North Mississippi. (Ratakonda, Maithreyi) (Entered: 11/26/2018)
131 ORDER granting 130 Motion to Withdraw as Attorney. Attorney Jennifer Keighley terminated. Signed by Senior Judge Bernard A. Friedman on 11/27/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 11/27/2018)
132 NOTICE of Appearance by Matthew Daniel Cloutier on behalf of All Defendants (Cloutier, Matthew) (Entered: 04/08/2019)
133 PRETRIAL ORDER: Telephonic status conference held on 4/9/2019. Trial set for 9/16/2019 at 9:00 AM before Senior Judge Bernard A. Friedman. Pretrial Conference set for 8/27/2019 at 11:00 AM before Senior Judge Bernard A. Friedman. Exhibit List due by 7/26/2019. Witness List due by 7/12/2019. Signed by Senior Judge Bernard A. Friedman on 4/11/19. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 04/11/2019)
134 ORDER MODIFYING PRETRIAL ORDER: Trial reset for 9/23/2019 at 9:00 AM before Senior Judge Bernard A. Friedman. Signed by Senior Judge Bernard A. Friedman on 6/26/19. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 06/26/2019)
135 NOTICE of Appearance by Amber L. Seymour on behalf of Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich (Seymour, Amber) (Entered: 06/27/2019)
TN State Bar status verified as active for Amber L. Seymour. (dt) (Entered: 06/28/2019)
136 Witness List by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich. (Sisco, Lindsay) (Entered: 07/12/2019)

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07/12/2019 07/26/2019 07/26/2019 07/26/2019
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08/02/2019 08/02/2019 08/02/2019 08/02/2019 08/02/2019 08/02/2019

137 Witness List by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Tift, Scott) (Entered: 07/12/2019)
138 Exhibit List (Initial) by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich.. (Rieger, Alexander) (Entered: 07/26/2019)
139 Exhibit List by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi.. (Moff, Jason) (Entered: 07/26/2019)
140 NOTICE by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi DEPOSITION DESIGNATIONS (Attachments: # 1 Attachment a.Plaintiffs Deposition Designations − Valerie Nagoshiner Part 1, # 2 Attachment a.Plaintiffs Deposition Designations − Valerie Nagoshiner Part 2, # 3 Attachment b.Plaintiffs Deposition Designations − Ann Reed Part 1, # 4 Attachment b.Plaintiffs Deposition Designations − Ann Reed Part 2, # 5 Attachment c.Plaintiffs Deposition Designations − Mary Kennedy Part 1, # 6 Attachment c.Plaintiffs Deposition Designations − Mary Kennedy Part 2, # 7 Attachment d.Plaintiffs Deposition Designations − Michelle Long Part 1, # 8 Attachment d.Plaintiffs Deposition Designations − Michelle Long Part 2, # 9 Attachment e.Plaintiffs Deposition Designations − Michael Warren Part 1, # 10 Attachment e.Plaintiffs Deposition Designations − Michael Warren Part 2)(Moff, Jason) (Entered: 07/26/2019)
141 Exhibit List (Supplemental) by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich.. (Rieger, Alexander) (Entered: 08/02/2019)
142 NOTICE by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD re 140 Notice (Other),,,, Deposition Designations (Attachments: # 1 Exhibit Nagoshiner pt 1, # 2 Exhibit Nagoshiner pt 2, # 3 Exhibit Reed pt 1, # 4 Exhibit Reed pt 2, # 5 Exhibit Long pt 1, # 6 Exhibit Long pt 2, # 7 Exhibit Kennedy pt 1, # 8 Exhibit Kennedy pt 2, # 9 Exhibit Warren pt 1, # 10 Exhibit Warren pt 2)(Rieger, Alexander) (Entered: 08/02/2019)
143 MOTION in Limine to Exclude Dr. Warren by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Attachments: # 1 Exhibit 30b6 Notice)(Rieger, Alexander) (Entered: 08/02/2019)
144 MEMORANDUM in Support of 143 MOTION in Limine to Exclude Dr. Warren filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD . (Rieger, Alexander) (Entered: 08/02/2019)
145 MOTION in Limine to Exclude Nagoshiner et al by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Attachments: # 1 Exhibit Nagoshiner depo excerpts)(Rieger, Alexander) (Entered: 08/02/2019)
146 MEMORANDUM in Support of 145 MOTION in Limine to Exclude Nagoshiner et al filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD . (Rieger, Alexander) (Entered: 08/02/2019)
147 MOTION in Limine to Exclude Dr. Katz by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Attachments: # 1 Exhibit Katz Expert Report, # 2 Exhibit Katz Depo Excerpts)(Rieger, Alexander) (Entered: 08/02/2019)
148 MEMORANDUM in Support of 147 MOTION in Limine to Exclude Dr. Katz filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD . (Rieger, Alexander) (Entered: 08/02/2019)

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08/02/2019 08/02/2019 08/02/2019 08/02/2019 08/02/2019 08/02/2019 08/02/2019 08/02/2019 08/02/2019
08/02/2019
08/07/2019

149 MOTION in Limine to Exclude Dr. Huntsinger by Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Attachments: # 1 Exhibit Huntsinger Depo Excerpts, # 2 Exhibit Huntsinger Expert Report)(Rieger, Alexander) (Entered: 08/02/2019)
150 MEMORANDUM in Support of 149 MOTION in Limine to Exclude Dr. Huntsinger filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD . (Rieger, Alexander) (Entered: 08/02/2019)
151 MOTION in Limine to Limit Testimony of Dr. Young by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Attachments: # 1 Exhibit Young Expert Report, # 2 Exhibit PPMET Response RFP, # 3 Exhibit PPMET Response Interrogatories, # 4 Exhibit PPGMR Response RFP, # 5 Exhibit PPGMR Response Interrogatories)(Rieger, Alexander) (Entered: 08/02/2019)
152 MEMORANDUM in Support of 151 MOTION in Limine to Limit Testimony of Dr. Young filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD . (Rieger, Alexander) (Entered: 08/02/2019)
153 MOTION in Limine to Exclude Dr. Goodman by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Attachments: # 1 Exhibit Goodman Depo Excerpts, # 2 Exhibit Goodman Report Excerpts)(Rieger, Alexander) (Entered: 08/02/2019)
154 MEMORANDUM in Support of 153 MOTION in Limine to Exclude Dr. Goodman filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD . (Rieger, Alexander) (Entered: 08/02/2019)
155 MOTION in Limine to Exclude Dr. McClelland by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Attachments: # 1 Exhibit McClelland Depo Excerpts, # 2 Exhibit McClelland Report Excerpts)(Rieger, Alexander) (Entered: 08/02/2019)
156 MEMORANDUM in Support of 155 MOTION in Limine to Exclude Dr. McClelland filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD . (Rieger, Alexander) (Entered: 08/02/2019)
157 MOTION to Exclude Testimony of Michael Podraza, M.D. and Memorandum of Law in Support by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Attachments: # 1 Exhibit Declaration and Report of Michael Podraza, M.D., # 2 Exhibit Rebuttal Expert Report of Jessica Young, M.D., # 3 Exhibit Deposition Transcript of Michael Podraza, M.D., # 4 Exhibit Curriculum Vitae, Michael Podraza, M.D.)(Moff, Jason) (Entered: 08/02/2019)
158 MOTION to Exclude Testimony of Priscilla K. Coleman, Ph.D. and Incorporated Supporting Memorandum of Law by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Attachments: # 1 Exhibit Declaration and Report of Priscilla Coleman, Ph.D., # 2 Exhibit Curriculum Vitae, Priscilla Coleman, Ph.D, # 3 Exhibit Deposition Transcript of Priscilla Coleman, Ph.D, # 4 Exhibit Rebuttal Expert Report of Antonia Biggs, Ph.D., # 5 Exhibit Rebuttal Expert Report of Jeffrey Huntsinger, Ph.D, # 6 Exhibit Rebuttal Expert Report of Jessica Young, M.D.)(Moff, Jason) (Entered: 08/02/2019)
159 MOTION for attorney Melissa Cohen to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650−2967733) by Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Attachments: # 1 Attachment − Certificate of Good Standing)(Tift, Scott) (Entered: 08/07/2019)

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08/08/2019 08/08/2019 08/09/2019 08/09/2019 08/09/2019 08/09/2019
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160 Exhibit List (Corrected) by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi.. (Katz, Autumn) (Entered: 08/08/2019)
NY State Bar status verified as active for Melissa A. Cohen. (dt) (Entered: 08/08/2019)
161 ORDER granting 159 Motion for Melissa Cohen to Appear Pro Hac Vice. Signed by Kirk L. Davies on 8/9/19. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(Davies, Kirk) (Entered: 08/09/2019)
162 MOTION in Limine To Exclude The Admission Of News Articles (PX151−152) by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Attachments: # 1 Exhibit Exhibit 1: Urgent needs from head to toe, # 2 Exhibit Exhibit 2: Why Women Getting Abortions Now Are More Likely to Be Poor)(Seymour, Amber) (Entered: 08/09/2019)
163 MEMORANDUM in Support of 162 MOTION in Limine To Exclude The Admission Of News Articles (PX151−152) filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD . (Seymour, Amber) (Entered: 08/09/2019)
164 MOTION in Limine to Exclude Department of Health Emails and Bill Analyses (PX310, 319, 320, 321, 322, 323, and 324) by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Attachments: # 1 Exhibit 1 − PX310: Email from V. Nagoshiner to Long dated 11/7/14, # 2 Exhibit 2 − PX319: SB0013 Bill Analysis, # 3 Exhibit 3 − PX320: SB0013 Fiscal Note Support Form, # 4 Exhibit 4 − PX321: SB1222/HB0977 Bill Analysis, # 5 Exhibit 5 − PX322: SB 13 Bill Analysis 1st Draft, # 6 Exhibit 6 − PX323: Email from V. Nagoshiner to Sexton dated 4/7/15, # 7 Exhibit 7 − PX324: Email from M. Kennedy to Nagoshiner dated 3/24/15)(Sheldon, Sue) (Entered: 08/09/2019)
165 MEMORANDUM in Support of 164 MOTION in Limine to Exclude Department of Health Emails and Bill Analyses (PX310, 319, 320, 321, 322, 323, and 324) filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD . (Sheldon, Sue) (Entered: 08/09/2019)
166 MOTION in Limine TO EXCLUDE PLAINTIFFS JOURNAL ARTICLES, BOOKS, AND SIMILAR MATERIALS (PX5676, PX79299, PX33998, PX40044, PX46869) by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Cloutier, Matthew) (Entered: 08/09/2019)
167 MEMORANDUM in Support of 166 MOTION in Limine TO EXCLUDE PLAINTIFFS JOURNAL ARTICLES, BOOKS, AND SIMILAR MATERIALS (PX5676, PX79299, PX33998, PX40044, PX46869) filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD . (Cloutier, Matthew) (Entered: 08/09/2019)
168 MOTION in Limine TO EXCLUDE EXHIBITS CITED BY DR. SARA McCLELLAND (PX339−398) by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Attachments: # 1 Exhibit Deposition Excerpts, # 2 Exhibit Relevant Portion of Plaintiffs' Exhibit List)(Cloutier, Matthew) Modified on 8/12/2019 (dt). (Entered: 08/09/2019)
169 MEMORANDUM in Support of 168 MOTION in Limine TO EXCLUDE EXHIBITS CITED BY DR. SARA McCLELLAND (PX339−398) filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD . (Cloutier, Matthew) Modified on 8/12/2019 (dt). (Entered: 08/09/2019)
170 OBJECTIONS to Defendants' Exhibit List. (Katz, Autumn) (Entered: 08/09/2019)

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08/09/2019

171 NOTICE by Wesley F. Adams, Jr, Adams & Boyle, P.C., Knoxville Center for Reproductive Health, Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Middle and East Tennessee, Planned Parenthood of Tennessee and North Mississippi re 142 Notice (Other),, /Plaintiffs' Deposition Counter−Designations (Attachments: # 1 Exhibit 2019−08−09 Plaintiffs Counter Designations Valerie Nagoshiner, # 2 Exhibit 2019−08−09 Plaintiffs Counter Designations Michael Warren)(Moff, Jason) (Entered: 08/09/2019)

08/09/2019

172 MOTION in Limine to Exclude the Admission of Patient Undue Burden Reports (PX 456) by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Rieger, Alexander) (Entered: 08/09/2019)

08/09/2019

173 MEMORANDUM in Support of 172 MOTION in Limine to Exclude the Admission of Patient Undue Burden Reports (PX 456) filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD . (Attachments: # 1 **REPLACED PER ORDER 200 ** Exhibit 1−PX 456 Undue Burden Reports)(Rieger, Alexander) (Attachment 1 replaced on 8/29/2019) (dt). Modified on 8/29/2019 (dt). (Entered: 08/09/2019)

08/12/2019

NOTICE TO FILER re DE# 171 : Pursuant to Local Rule 5.01, Certificates of Service shall identify by name the person served, what was served, the method of service, and date of service. Counsel did not include all Counsel on the certificate of service. Please FILE a conformed Certificate of Service for this document. (dt) (Entered: 08/12/2019)

08/12/2019

174 CERTIFICATE OF SERVICE by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi re 171 Notice (Other),, Corrected (Moff, Jason) (Entered: 08/12/2019)

08/14/2019

175 MOTION for attorney Marc Hearron to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650−2972289) by Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Attachments: # 1 Attachment − Certificate of Good Standing)(Tift, Scott) (Entered: 08/14/2019)

08/15/2019

DC State Bar status verified as active for Marc Hearron. (dt) (Entered: 08/15/2019)

08/15/2019

176 ORDER granting 175 Motion for Marc Hearron to Appear Pro Hac Vice. Signed by Kirk L. Davies on 8/14/19. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(Davies, Kirk) (Entered: 08/15/2019)

08/15/2019 177 MOTION for Extension of Time to File Response/Reply to Evidentiary Motions by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk. (Hart, Steven) (Entered: 08/15/2019)

08/16/2019

178 ORDER: Defendants' motion for an extension of time to respond to evidentiary motions is granted. Defendants' responses to plaintiffs' Daubert motions and other motions in limine concerning witness testimony are due by August 19, 2019. Defendants' responses to the remaining motions in limine are due by August 26, 2019. Signed by Senior Judge Bernard A. Friedman on 8/16/19. (gb) (Entered: 08/16/2019)

08/16/2019 179 TRIAL BRIEF Plaintiffs' Pretrial Brief by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Moff, Jason) (Entered: 08/16/2019)

08/16/2019 180 TRIAL BRIEF Defendants' Pretrial Brief by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich. (Cloutier, Matthew) (Entered: 08/16/2019)

08/19/2019

181 RESPONSE in Opposition re 151 MOTION in Limine to Limit Testimony of Dr. Young filed by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Attachments: # 1 Exhibit 1: Young Deposition Tr. Excerpts, # 2 Exhibit 2: Planned Parenthood Greater Memphis Regions Objections to First Interrogatories, # 3 Exhibit 3: Planned Parenthood of Middle & E. Tenn.s Objections and Responses to First Interrogatories, # 4 Exhibit 4: Young Supplemental Expert

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08/19/2019 08/19/2019 08/19/2019 08/19/2019 08/19/2019 08/19/2019 08/21/2019

Report)(Moff, Jason) (Entered: 08/19/2019)
182 RESPONSE in Opposition re 143 MOTION in Limine to Exclude Dr. Warren filed by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Attachments: # 1 Exhibit 1: PRAMS 2011 Summary Report, # 2 Exhibit 2: Defendant Tenn. Department of Healths Rule 30(b)(6) Designees)(Moff, Jason) (Entered: 08/19/2019)
183 RESPONSE in Opposition re 145 MOTION in Limine to Exclude Nagoshiner et al filed by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Attachments: # 1 Exhibit 1: Plaintiffs 30(b)(6) Deposition Notice to Defendant Tenn. Dept. of Health, # 2 Exhibit 2: Defendant Tenn. Department of Healths Rule 30(b)(6) Designees, # 3 Exhibit 3: Nagoshiner Deposition Tr. Excerpts, # 4 Exhibit 4: Reed Deposition Tr. Excerpts, # 5 Exhibit 5: Long Deposition Tr. Excerpts, # 6 Exhibit 6: Kennedy Deposition Tr. Excerpts, # 7 Exhibit 7: Defendants Response to Plaintiffs First Interrogatories Excerpts)(Moff, Jason) (Entered: 08/19/2019)
184 RESPONSE in Opposition re 153 MOTION in Limine to Exclude Dr. Goodman filed by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Attachments: # 1 Exhibit 1: Goodman Expert Report, # 2 Exhibit 2: Defendants Response to Plaintiffs First Interrogatories Excerpts, # 3 Exhibit 3: Goodman Deposition Tr. Excerpts)(Moff, Jason) (Entered: 08/19/2019)
185 RESPONSE in Opposition re 155 MOTION in Limine to Exclude Dr. McClelland filed by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Attachments: # 1 Exhibit 1: Aug. 21, 2018 McClelland Expert Report, # 2 Exhibit 2: McClelland Deposition Tr. Excerpts, # 3 Exhibit 3: Dec. 28, 2017 McClelland Expert Report)(Moff, Jason) (Entered: 08/19/2019)
186 RESPONSE in Opposition re 147 MOTION in Limine to Exclude Dr. Katz filed by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Attachments: # 1 Exhibit 1: Katz C.V.)(Moff, Jason) (Entered: 08/19/2019)
187 RESPONSE in Opposition re 149 MOTION in Limine to Exclude Dr. Huntsinger filed by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Attachments: # 1 Exhibit 1: Huntsinger Report, # 2 Exhibit 2: Coleman Report, # 3 Exhibit 3: Huntsinger C.V., # 4 Exhibit 4: Huntsinger Deposition Tr. Excerpts, # 5 Exhibit 5: Coleman Deposition Tr. Excerpts)(Moff, Jason) (Entered: 08/19/2019)
188 RESPONSE in Opposition re 158 MOTION to Exclude Testimony of Priscilla K. Coleman, Ph.D. and Incorporated Supporting Memorandum of Law filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Attachments: # 1 Exhibit Ex 1−Declaration of Dr. Coleman, # 2 Exhibit Ex 2−Coleman CV, # 3 Exhibit Ex 3−Summary of Studies, # 4 Exhibit Ex 4−Excerpts of Coleman Depo)(Rieger, Alexander) (Entered: 08/19/2019)
189 RESPONSE in Opposition re 157 MOTION to Exclude Testimony of Michael Podraza, M.D. and Memorandum of Law in Support filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Attachments: # 1 Exhibit Ex 1−Podraza Depo)(Rieger, Alexander) (Entered: 08/19/2019)
190 STIPULATION Joint Stipulation Regarding the Unavailibility of Dr. Wesley F. Adams, Jr. to Testify at and to Attend Trial by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Moff, Jason) (Entered: 08/21/2019)

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08/23/2019

191 RESPONSE to 180 PRETRIAL BRIEF by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Moff, Jason) Modified on 8/26/2019 (dt). (Entered: 08/23/2019)

08/23/2019 192 RESPONSE TO 179 PRETRIAL BRIEF by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich. (Cloutier, Matthew) Modified on 8/26/2019 (dt). (Entered: 08/23/2019)

08/26/2019

193 MOTION for attorney Catherine Hoge to Appear Pro Hac Vice MOTION FOR ADMISSION PRO HAC VICE (paid $100 PHV fee; receipt number 0650−2979832) by Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Attachments: # 1 Attachment − Certificate of Good Standing)(Tift, Scott) (Entered: 08/26/2019)

08/26/2019

194 RESPONSE in Opposition re 168 MOTION in Limine TO EXCLUDE EXHIBITS CITED BY DR. SARA McCLELLAND (PX339398), 162 MOTION in Limine To Exclude The Admission Of News Articles (PX151−152), 172 MOTION in Limine to Exclude the Admission of Patient Undue Burden Reports (PX 456), 164 MOTION in Limine to Exclude Department of Health Emails and Bill Analyses (PX310, 319, 320, 321, 322, 323, and 324), 166 MOTION in Limine TO EXCLUDE PLAINTIFFS JOURNAL ARTICLES, BOOKS, AND SIMILAR MATERIALS (PX5676, PX79299, PX33998, PX40044, PX46869) filed by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Moff, Jason) (Entered: 08/26/2019)

08/26/2019

195 MOTION to Strike 188 Response in Opposition to Motion,, 158 MOTION to Exclude Testimony of Priscilla K. Coleman, Ph.D. and Incorporated Supporting Memorandum of Law /Plaintiffs' Motion to Strike ECF NOS. 188−1 and 188−3 and Plaintiffs' Reply in Further Support of the Motion to Exclude the Testimony of Priscilla K. Coleman, PH.D. by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Moff, Jason) (Entered: 08/26/2019)

08/26/2019

196 RESPONSE filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich re 170 Objections filed by Planned Parenthood of Tennessee and North Mississippi, Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Adams & Boyle, P.C. . (Rieger, Alexander) (Entered: 08/26/2019)

08/27/2019

197 NOTICE by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk of Designations of Deposition Testimony and Exhibits of Dr. Adams for Trial Testimony (Attachments: # 1 Attachment Dr. Adams Deposition Designation, # 2 Attachment Deposition Exhibit 5, # 3 Attachment Deposition Exhibit 6, # 4 Attachment Deposition Exhibit 7, # 5 Attachment Deposition Exhibit 8, # 6 Attachment Deposition Exhibit 9, # 7 Attachment Deposition Exhibit 10, # 8 Attachment Deposition Exhibit 11, # 9 Attachment Deposition Exhibit 12, # 10 Attachment Deposition Exhibit 13, # 11 Attachment Deposition Exhibit 14)(Hart, Steven) (Attachment 1 replaced on 10/3/2019) (dt). (Attachment 5 replaced on 10/3/2019) (dt). (Entered: 08/27/2019)

08/27/2019

198 MOTION to Amend/Correct to Delete and Replace Previously Filed Docket Entry 173−1 With Properly Redacted Documents by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Attachments: # 1 Attachment Attachment 1: Properly Redacted Undue Burden Reports)(Seymour, Amber) (Entered: 08/27/2019)

08/28/2019 199 Consent MOTION to Substitute Party Defendants by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Sheldon, Sue) (Entered: 08/28/2019)

08/28/2019

Minute Entry for proceedings held before Senior Judge Bernard A. Friedman: Telephonic Pretrial Conference held on 8/27/2019. (Court Reporter Andrea Wabeke) (Hearing lasted :30)(dt) Modified on 8/29/2019 (dt). (Entered: 08/28/2019)

08/28/2019 200 ORDER granting 198 Motion to Delete and Replace Previously Filed Docket Entry 173−1 With Properly Redacted Documents. Signed by Senior Judge Bernard A. Friedman on 8/28/19. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS
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08/28/2019 08/30/2019 08/30/2019 09/04/2019
09/04/2019
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MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 08/28/2019)
201 ORDER granting 199 Motion to Substitute Party. Signed by Senior Judge Bernard A. Friedman on 8/28/19. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 08/28/2019)
NY State Bar status verified as active for Catherine Hoge. (dt) (Entered: 08/30/2019)
202 ORDER granting 193 Motion for Catherine Hoge to Appear Pro Hac Vice. Signed by Kirk L. Davies on 8/30/19. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(Davies, Kirk) (Entered: 08/30/2019)
203 NOTICE by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi of Plaintiff's Deposition Counter−Designations to Defendant's Designations from Deposition of Dr. Wesley Adams (Attachments: # 1 Attachment Excerpt of Deposition of Dr. Wesley F. Adams, Jr.)(Moff, Jason) (Entered: 09/04/2019)
204 NOTICE of Filing by Subhi D. Ali, M.D., Charme P. Allen, Glenn R. Funk, W. Reeves Johnson, Jr, Lisa Piercey, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich re 197 Notice (Other),, Supplemental Filing of Dr. Adams' Designated Deposition Exhibits (Attachments: # 1 Exhibit Ex 1 To Dr. Adams' Deposition − Rule 30(b)(6) Notice of Deposition, # 2 Exhibit EX. 6 to Dr. Adams' Deposition − Redacted Adamss and Boyle Interrogatory Responses to TDOH)(Hart, Steven) (Attachment 2 replaced on 10/3/2019) (dt). (Entered: 09/04/2019)
205 RESPONSE in Opposition re 195 MOTION to Strike 188 Response in Opposition to Motion,, 158 MOTION to Exclude Testimony of Priscilla K. Coleman, Ph.D. and Incorporated Supporting Memorandum of Law /Plaintiffs' Motion to Strike ECF NOS. 188−1 and 188−3 and P filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, W. Reeves Johnson, Jr, Lisa Piercey, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Rieger, Alexander) (Entered: 09/09/2019)
206 MOTION for attorney Rabia Muqaddam to Appear Pro Hac Vice MOTION FOR ADMISSION PRO HAC VICE (paid $100 PHV fee; receipt number 0650−2989800) by Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Attachments: # 1 Attachment − Certificate of Good Standing)(Tift, Scott) (Entered: 09/10/2019)
NY State Bar status verified as active for Maithreyi Ratakonda. (dt) (Entered: 09/11/2019)
207 ORDER granting 206 Motion for Rabia Muqaddam to Appear Pro Hac Vice. Signed by Kirk L. Davies on 9/12/19. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(Davies, Kirk) (Entered: 09/12/2019)
The bench trial scheduled to begin on September 23, 2019, will take place in Courtroom 873. (vk) (Entered: 09/15/2019)
208 MOTION in Limine to Exclude Working Paper by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, W. Reeves Johnson, Jr, Lisa Piercey, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD. (Rieger, Alexander) (Entered: 09/16/2019)
209 MEMORANDUM in Support of 208 MOTION in Limine to Exclude Working Paper filed by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, W. Reeves Johnson, Jr, Lisa Piercey, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich, Michael D. Zanolli, MD . (Rieger, Alexander) (Entered: 09/16/2019)
210 Consent MOTION to Seal Document Containing HIPAA−Protected Patient Health Information by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Moff, Jason) (Entered: 09/17/2019)

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09/19/2019

211 ORDER granting 210 Consent MOTION to Seal Documents Containing HIPAA−Protected Patient Health Information. Signed by Senior Judge Bernard A. Friedman on 9/19/2019. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 09/19/2019)

09/20/2019

212 RESPONSE in Opposition re 208 MOTION in Limine to Exclude Working Paper filed by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Attachments: # 1 Exhibit A − Dr. Lindo's September 9, 2019 Working Paper "New Evidence on the Effects of Mandatory Waiting Periods for Abortions", # 2 Exhibit B − Dr. Jessica Young, M.D. Expert Report, dated December 20, 2017, # 3 Exhibit C − Dr. Sheila M. Katz, Ph.D. Expert Report, dated December 29, 2017, # 4 Exhibit D − Email Chain from S. Hart to A. Katz and J. Keighley, dated July 25, 2018, # 5 Exhibit E − PPGMR's Second Supplemental Interrogatory Responses, dated September 20, 2018)(Moff, Jason) (Entered: 09/20/2019)

09/23/2019

Minute Entry for proceedings held before Senior Judge Bernard A. Friedman: Motion Hearing held on 9/23/2019 re 208 MOTION in Limine to Exclude working Papers. Motion GRANTED. (Court Reporter Kathy Elmore.) (Hearing lasted :13)(af) (Entered: 09/23/2019)

09/23/2019

213 Exhibit List Amended Corrected Plaintiffs' Exhibit List by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi.. (Moff, Jason) (Entered: 09/23/2019)

09/23/2019 214 Exhibit List Joint Exhibit List by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi.. (Moff, Jason) (Entered: 09/23/2019)

09/23/2019

Minute Entry for proceedings held before Senior Judge Bernard A. Friedman: Bench Trial held on 9/23/2019. Continued to 9/24/19. (Court Reporter Kathy Elmore.) (Hearing lasted 5:18)(af) (Entered: 09/24/2019)

09/24/2019

NOTICE TO FILER re DE# 213 : Pursuant to Local Rule 5.01, Certificates of Service shall identify by name the person served, what was served, the method of service, and date of service. Counsel did not include all Counsel on the certificate of service. Please FILE a conformed Certificate of Service for this document. (dt) (Entered: 09/24/2019)

09/24/2019

215 Exhibit List Amended Corrected Plaintiffs' Exhibit List by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi.. (Moff, Jason) (Entered: 09/24/2019)

09/24/2019

Minute Entry for proceedings held before Senior Judge Bernard A. Friedman: Bench Trial held on 9/24/2019. Continued to 9/25/19 at 9:00 AM. (Court Reporter Kathy Elmore.) (af) (Entered: 09/24/2019)

09/25/2019

Minute Entry for proceedings held before Senior Judge Bernard A. Friedman: Bench Trial held on 9/25/2019. Continued to 9/26/19 at 9:00 AM. (Court Reporter Kathy Elmore / Roxann Harkins.) (Hearing lasted 5:15)(af) (Entered: 09/26/2019)

09/26/2019

Minute Entry for proceedings held before Senior Judge Bernard A. Friedman: Bench Trial completed on 9/26/2019. After transcript is filed, parties will have 21 days to file Proposed Findings of Fact and Conclusions of Law. (Court Reporter Kathy Elmore.) (Hearing lasted 6:3)(af) (Entered: 09/26/2019)

09/30/2019

216 MOTION Delete and Replace Exhibits re 197 Notice (Other),, by Subhi D. Ali, M.D., Charme P. Allen, John Dreyzehner, MD, Glenn R. Funk, W. Reeves Johnson, Jr, Lisa Piercey, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich. (Attachments: # 1 Exhibit Dr. Adams Corrected Designation of Deporition TRanscript − (includes both parties), # 2 Exhibit Dr. Adms' Deposition Ex 8 − # of Abortions Performed, # 3 Exhibit Adams & Boyle Response to Defendants First Set of Interrrogatories)(Hart, Steven) (Entered: 09/30/2019)

10/01/2019 217 ORDER granting 216 Motion to Delete and Replace Previously Filed Docket Entries 197−1, 197−5, AND 204−2, with Properly Redacted Documents. Signed by Senior Judge Bernard A. Friedman on 10/1/19. (DOCKET TEXT SUMMARY

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10/02/2019 10/20/2019
10/20/2019
10/20/2019
10/20/2019

ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 10/02/2019)
218 WITNESS/EXHIBIT LIST prepared by Deputy Clerk. re: Bench Trial held from 9/23/2019 − 9/26/2019.(dt) (Entered: 10/02/2019)
219 Transcript filed (Volume 1) for date of September 23, 2019, before Visiting Judge Bernard A. Friedman. Court Reporter: Kathy Elmore, 615.289.3663, elmorereporting@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF CASE INFO LINK, GENERAL INFORMATION, ELECTRONIC TRANSCRIPTS NOTICE. Intent to Request Transcript Redaction due 10/28/2019. Redaction Request due 11/12/2019. Redacted Transcript Deadline set for 11/20/2019. Release of Transcript Restriction set for 1/21/2020. (RH) (Entered: 10/20/2019)
220 Transcript filed (Volume 2) for date of September 24, 2019, before Visiting Judge Bernard A. Friedman. Court Reporter: Kathy Elmore, 615.289.3663, elmorereporting@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF CASE INFO LINK, GENERAL INFORMATION, ELECTRONIC TRANSCRIPTS NOTICE. Intent to Request Transcript Redaction due 10/28/2019. Redaction Request due 11/12/2019. Redacted Transcript Deadline set for 11/20/2019. Release of Transcript Restriction set for 1/21/2020. (RH) (Entered: 10/20/2019)
221 Transcript filed (Volume 3−A) for date of September 25, 2019, before Visiting Judge Bernard A. Friedman. Court Reporter: Kathy Elmore, 615.289.3663, elmorereporting@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF CASE INFO LINK, GENERAL INFORMATION, ELECTRONIC TRANSCRIPTS NOTICE. Intent to Request Transcript Redaction due 10/28/2019. Redaction Request due 11/12/2019. Redacted Transcript Deadline set for 11/20/2019. Release of Transcript Restriction set for 1/21/2020. (RH) (Entered: 10/20/2019)
222 Transcript filed (Volume 4) for date of September 26, 2019, before Visiting Judge Bernard A. Friedman. Court Reporter: Kathy Elmore, 615.289.3663, elmorereporting@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF CASE INFO LINK, GENERAL INFORMATION, ELECTRONIC TRANSCRIPTS NOTICE. Intent to Request Transcript Redaction due 10/28/2019. Redaction Request due 11/12/2019. Redacted Transcript Deadline set for 11/20/2019. Release of Transcript Restriction set for 1/21/2020. (RH) (Entered: 10/20/2019)

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10/29/2019 223 MOTION to Withdraw as Attorney MOTION OF HAILEY FLYNN TO WITHDRAW AS COUNSEL FOR PLAINTIFFS by Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Tift, Scott) (Entered: 10/29/2019)

11/05/2019

224 Transcript filed (Volume 3−B) for date of September 25, 2019, before Visiting Judge Bernard Friedman. Court Reporter: Roxann Harkins, 615−403−8314, roxann_harkins@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF CASE INFO LINK, GENERAL INFORMATION, ELECTRONIC TRANSCRIPTS NOTICE. Intent to Request Transcript Redaction due 11/12/2019. Redaction Request due 11/26/2019. Redacted Transcript Deadline set for 12/6/2019. Release of Transcript Restriction set for 2/3/2020. (RH) (Entered: 11/05/2019)

11/06/2019 225 ORDER granting 223 Motion to Withdraw as Attorney. Attorney Hailey Flynn terminated. Signed by Senior Judge Bernard A. Friedman on 11/6/19. (dt) (Entered: 11/06/2019)

11/26/2019

226 Proposed Findings of Fact and Conclusions of Law by Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Tennessee and North Mississippi. (Moff, Jason) (Entered: 11/26/2019)

11/26/2019 227 Proposed Findings of Fact and Conclusions of Law by Charme P. Allen, Glenn R. Funk, W. Reeves Johnson, Jr, Lisa Piercey, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich. (Rieger, Alexander) (Entered: 11/26/2019)

04/13/2020 228 NOTICE of Appearance by Thomas H. Castelli on behalf of All Plaintiffs (Castelli, Thomas) (Entered: 04/13/2020)

04/13/2020

229 Emergency MOTION to Supplement 70 Amended Complaint,, by Wesley F. Adams, Jr, Adams & Boyle, P.C., Knoxville Center for Reproductive Health, Memphis Center for Reproductive Health, Planned Parenthood Greater Memphis Region, Planned Parenthood of Middle and East Tennessee, Planned Parenthood of Tennessee and North Mississippi. (Castelli, Thomas) (Entered: 04/13/2020)

04/13/2020

230 MEMORANDUM in Support of 229 Emergency MOTION to Supplement 70 Amended Complaint,, filed by Wesley F. Adams, Jr, Adams & Boyle, P.C., Knoxville Center for Reproductive Health, Memphis Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi . (Attachments: # 1 Exhibit Supplemental Complaint, # 2 Exhibit A − Executive Order 25, # 3 Exhibit B − Letter from TDH, # 4 Attachment Summons for Governor Lee, # 5 Attachment Summons for Dr. Saunders, # 6 Attachment Proposed Order)(Castelli, Thomas) (Entered: 04/13/2020)

04/13/2020

231 MOTION for Temporary Restraining Order by Wesley F. Adams, Jr, Adams & Boyle, P.C., Knoxville Center for Reproductive Health, Memphis Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi. (Castelli, Thomas) (Entered: 04/13/2020)

04/13/2020

232 MEMORANDUM in Support of 231 MOTION for Temporary Restraining Order filed by Wesley F. Adams, Jr, Adams & Boyle, P.C., Knoxville Center for Reproductive Health, Memphis Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi . (Attachments: # 1 Exhibit 1 Robinson v. Marshall, # 2 Exhibit 2 − Southwind v. Stitt, # 3 Exhibit 3 − Preterm−Cleveland v. Attorney General of Ohio, # 4 Exhibit 4 − 5th Circuit Decision, # 5 Exhibit 5 − Looney Declaration, # 6 Exhibit 6 − Terrell Declaration, # 7 Exhibit 7 − Rovetti Declaration, # 8 Exhibit 8 − TDH Letter, # 9 Attachment Proposed Order)(Castelli, Thomas) (Entered: 04/13/2020)

04/13/2020

233 MOTION for Leave to File Excess Pages by Wesley F. Adams, Jr, Adams & Boyle, P.C., Knoxville Center for Reproductive Health, Memphis Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi. (Castelli, Thomas) (Entered: 04/13/2020)

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04/15/2020

234 MOTION for attorney Julia Kaye to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650−3123310) by Knoxville Center for Reproductive Health. (Attachments: # 1 Exhibit Certificate of Good Standing)(Castelli, Thomas) (Entered: 04/14/2020)
235 MOTION for attorney Genevieve Scott to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650−3123311) by Adams & Boyle, P.C., Memphis Center for Reproductive Health. (Attachments: # 1 Exhibit Certificate of Good Standing)(Castelli, Thomas) (Entered: 04/14/2020)
NY State Bar status verified as active for Julia Kaye. (dt) (Entered: 04/14/2020)
NY State Bar status verified as active for Genevieve Scott. (dt) (Entered: 04/14/2020)
NOTICE TO FILER re DE# 228−235: Pursuant to Local Rule 5.01, Certificates of Service shall identify by name the person served, what was served, the method of service, and date of service. Counsel did not include all Counsel on the certificate of service. Please FILE a conformed Certificate of Service for these documents. (dt) (Entered: 04/14/2020)
236 CERTIFICATE OF SERVICE by Wesley F. Adams, Jr, Adams & Boyle, P.C., Knoxville Center for Reproductive Health, Memphis Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi re 235 MOTION for attorney Genevieve Scott to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650−3123311), 233 MOTION for Leave to File Excess Pages , 231 MOTION for Temporary Restraining Order , 229 Emergency MOTION to Supplement 70 Amended Complaint,, , 228 Notice of Appearance, 234 MOTION for attorney Julia Kaye to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650−3123310), 230 Memorandum in Support,, 232 Memorandum in Support,, (Castelli, Thomas) (Entered: 04/14/2020)
237 NOTICE of Filing by Wesley F. Adams, Jr, Adams & Boyle, P.C., Knoxville Center for Reproductive Health, Memphis Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi re 232 Memorandum in Support,, Notice of Supplemental Authority (Attachments: # 1 Attachment Little Rock Family Planning Serv. v. Rutledge)(Castelli, Thomas) (Entered: 04/14/2020)
238 ORDER granting 235 Motion for Genevieve Scott to Appear Pro Hac Vice. Signed by Kirk L. Davies on 4/15/20. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(Davies, Kirk) (Entered: 04/15/2020)
239 RESPONSE in Opposition re 229 Emergency MOTION to Supplement 70 Amended Complaint,, filed by Charme P. Allen, Glenn R. Funk, W. Reeves Johnson, Jr, Lisa Piercey, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich. (Attachments: # 1 Exhibit Ex. A−TDH Epidemiology and Surveillance Data, # 2 Exhibit Ex. B−COVID−19 Bulletin #14)(Rieger, Alexander) (Entered: 04/15/2020)
240 RESPONSE in Opposition re 231 MOTION for Temporary Restraining Order filed by Charme P. Allen, Glenn R. Funk, W. Reeves Johnson, Jr, Lisa Piercey, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich. (Attachments: # 1 Exhibit Ex A−TDH Epidemiology and Surveillance Data, # 2 Exhibit Ex. B−COVID−19 Bulletin #14, # 3 Exhibit Ex. C−TDH Coronavirus Disease, # 4 Exhibit Ex. D−CDC COVID Situation Summary, # 5 Exhibit Ex. E−WHO Director General Remarks, # 6 Exhibit Ex. F−CDC COVID Cases in US, # 7 Exhibit Ex. G−VUSM Model, # 8 Exhibit Ex. H−NEJM Aerolol and Surface Stability, # 9 Exhibit Ex. I−NEJM SARS−CoV−2 Viral Load, # 10 Exhibit Ex. J−CDC Morbidity and Mortality Weekly Report, # 11 Exhibit Ex. K−CDC Social Distancing, # 12 Exhibit Ex. L−NYT Article, # 13 Exhibit Ex. M−CDC PPE Factsheet, # 14 Exhibit Ex. N−Exec Order 14, # 15 Exhibit Ex. O−Exec Order 22, # 16 Exhibit Ex. P−Exec Order 23, # 17 Exhibit Ex. Q−Exec Order 17, # 18 Exhibit Ex. R−Exec Order 21, # 19 Exhibit Ex. S−Exec Order 18, # 20 Exhibit Ex. T−Exec Order 25)(Rieger, Alexander) (Entered: 04/15/2020)
241 NOTICE OF TELEPHONIC MOTION HEARING: A telephonic motion hearing is set for [R. 229] Emergency Motion to Supplement Amended Complaint and [R.231] Motion for TRO before District Judge Bernard A. Friedman as follows: MOTION HEARING: Friday, April 17, 2020 at 11:00 a.m.(dt) (Entered: 04/16/2020)

Case: 3:15-cv-705 As of: 05/15/2020 02:06 PM CDT 35 of 37

04/16/2020

242 REPLY to Response to re 229 Emergency MOTION to Supplement 70 Amended Complaint,, filed by Wesley F. Adams, Jr, Adams & Boyle, P.C., Knoxville Center for Reproductive Health, Memphis Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi. (Castelli, Thomas) (Entered: 04/16/2020)

04/16/2020

243 REPLY to Response to re 231 MOTION for Temporary Restraining Order filed by Wesley F. Adams, Jr, Adams & Boyle, P.C., Knoxville Center for Reproductive Health, Memphis Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi. (Castelli, Thomas) (Entered: 04/16/2020)

04/17/2020

The Telephonic Motion Hearing scheduled for 4/17/2020 will take place at 11:00 a.m. Eastern Time (10:00 a.m. Central Time). (vk) (Entered: 04/17/2020)

04/17/2020

Minute Entry for proceedings held before Senior Judge Bernard A. Friedman: Motion Hearing held on 4/17/2020 regarding 231 MOTION for Temporary Restraining Order and 229 Emergency MOTION to Supplement Amended Complaint. Written order to follow. (Court Reporter Darlene May.)(Hearing lasted 1:40)(vk) (Entered: 04/17/2020)

04/17/2020

244 ORDER granting 229 Motion to Supplement Complaint and 231 Motion for TRO and/or Preliminary Injunction to the extent plaintiffs seek a preliminary injunction enjoining the enforcement of Tennessee Executive Order 25 as applied to procedural abortions. Accordingly, within seven days of the date of this order, plaintiffs shall file a version of the supplemental complaint that is identical to the one attached to plaintiffs' motion as Exhibit 1. Defendants are hereby immediately enjoined from enforcing EO−25 as applied to procedural abortions. Signed by Senior Judge Bernard A. Friedman on 4/17/20. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(vk) (Entered: 04/17/2020)

04/17/2020

245 NOTICE OF APPEAL as to 244 Order on Motion to Supplement,,, Order on Motion for TRO,, by Charme P. Allen, Glenn R. Funk, W. Reeves Johnson, Jr, Lisa Piercey, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich. Filing fee $ 505, receipt number 0650−3126284. (Rieger, Alexander) (Entered: 04/17/2020)

04/17/2020

246 MOTION to Stay re 244 Order on Motion to Supplement,,, Order on Motion for TRO,, by Charme P. Allen, Glenn R. Funk, W. Reeves Johnson, Jr, Lisa Piercey, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich. (Rieger, Alexander) (Entered: 04/17/2020)

04/20/2020 247 USCA Case Number 20−5408 for 245 Notice of Appeal, filed by Amy Weirich, Glenn R. Funk, Herbert H. Slatery, III, W. Reeves Johnson, Jr., Barry P. Staubus, Charme P. Allen, Lisa Piercey. (Jill E Colyer Case Manager ) (bs) (Entered: 04/20/2020)

04/20/2020

248 RESPONSE in Opposition re 246 MOTION to Stay re 244 Order on Motion to Supplement,,, Order on Motion for TRO,, filed by Adams & Boyle, P.C., Knoxville Center for Reproductive Health, Memphis Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi. (Attachments: # 1 Exhibit A − Declaration of Deedee Chism)(Castelli, Thomas) (Entered: 04/20/2020)

04/21/2020

249 REPLY to Response to re 246 MOTION to Stay re 244 Order on Motion to Supplement,,, Order on Motion for TRO,, filed by Charme P. Allen, Glenn R. Funk, W. Reeves Johnson, Jr, Lisa Piercey, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich. (Attachments: # 1 Attachment 5th Circuit 2nd Mandamus Order)(Rieger, Alexander) (Entered: 04/21/2020)

04/21/2020 250 ORDER from USCA: The motion for a temporary administrative stay is DENIED. We will consider the merits of a stay when briefing on the stay motion is completed. (vh) Modified on 4/21/2020 (vh). (Entered: 04/21/2020)

04/21/2020

251 AMENDED COMPLAINT SUPPLEMENTAL COMPLAINT FOR TEMPORARY AND INJUNCTIVE RELIEF against All Defendants, filed by Planned Parenthood of Tennessee and North Mississippi, Adams & Boyle, P.C., Knoxville Center for Reproductive Health, Memphis Center for Reproductive Health. (Attachments: # 1 Exhibit A − Executive Order 25, # 2 Exhibit B − Letter from TDH, # 3 Attachment Summons − Gov Lee, # 4 Attachment Summons − Saunders)(Castelli, Thomas) (Entered: 04/21/2020)

04/21/2020 252 OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR A STAY PENDING APPEAL: This matter is presently before the Court on defendants' motion

Case: 3:15-cv-705 As of: 05/15/2020 02:06 PM CDT 36 of 37

04/22/2020 04/23/2020
04/23/2020 04/23/2020
04/23/2020 04/24/2020 04/24/2020 04/27/2020 04/29/2020 05/05/2020 05/14/2020

for a stay pending appeal [docket entry 246 ]. Plaintiffs have filed a response in opposition, and defendants have filed a reply. Pursuant to M.D. Tenn. LR 78.01, the Court shall decide this motion without a hearing. The Court finds that defendants have not shown that they are entitled to a stay pending the appeal of the Court's April 17 opinion and order granting plaintiffs' motion for a preliminary injunction. Accordingly, IT IS ORDERED that defendants' motion for a stay pending appeal is denied. Signed by Senior Judge Bernard A. Friedman on 4/21/2020. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg) (Entered: 04/21/2020)
253 MOTION for attorney Richard Muniz to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650−3128690) by Planned Parenthood of Tennessee and North Mississippi. (Attachments: # 1 Attachment − Certificate of Good Standing)(Tift, Scott) (Entered: 04/22/2020)
NOTICE TO FILER re DE# 253 : By no later than five (5) business days from the date of this docket annotation, the pro hac vice motion must be supplemented by the filing of a statement under oath of the attorney seeking pro hac vice admission disclosing such matters. Failure to do so will result in denial of the pro hac vice motion. (dt) (Entered: 04/23/2020)
DC State Bar status verified as active for Richard Muniz. (dt) (Entered: 04/23/2020)
254 ORDER granting 234 Motion for Julia Kaye to Appear Pro Hac Vice. The Clerk notes Ms. Kaye was admitted Pro Hac Vice on August 25, 2017. DE# 73 . The Clerk references LR 83.01(b), which states that admission Pro Hac Vice is for a "particular case" as opposed to a particular client.. Signed by Kirk L. Davies on 4/23/20. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(Davies, Kirk) (Entered: 04/23/2020)
255 DECLARATION of Richard Muniz filed by Planned Parenthood of Tennessee and North Mississippi re: 253 MOTION for attorney Richard Muniz to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650−3128690). (Tift, Scott) (Entered: 04/23/2020)
256 ORDER granting 253 Motion for Richard Muniz to Appear Pro Hac Vice. Signed by Kirk L. Davies on 4/24/20. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(Davies, Kirk) (Entered: 04/24/2020)
258 INFORMATION COPY from 6CCA: We AFFIRM the district court's order issuing preliminary injunction but direct the district court to MODIFY the preliminary injunction in the manner described below. We also DENY the State's request for a stay pending appeal as MOOT.(MANDATE TO ISSUE) (dt) (Entered: 04/27/2020)
257 ORDER MODIFYING PRELIMINARY INJUNCTION. Signed by Senior Judge Bernard A. Friedman on 4/27/2020. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 04/27/2020)
259 Summons issued as to William Lee. (Service copies returned to counsel by mail.) (dt) (Entered: 04/29/2020)
260 ANSWER to 251 Amended Complaint, Supplemental Complaint by Charme P. Allen, Glenn R. Funk, W. Reeves Johnson, Jr, William Lee, Lisa Piercey, Rene Saunders, Herbert H. Slatery, III, Barry P. Staubus, Amy Weirich.(Rieger, Alexander) (Entered: 05/05/2020)
261 ORDER of USCA as to 245 Notice of Appeal: The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. The petition then was circulated to the full court. No judge has requested a vote on the suggestion for rehearing en banc. Therefore, the petition is denied. Judge Thapar would grant rehearing for the reasons stated in his dissent. (dt) (Entered: 05/14/2020)

Case: 3:15-cv-705 As of: 05/15/2020 02:06 PM CDT 37 of 37

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ADAMS & BOYLE, P.C., on behalf of itself and its )

patients; WESLEY F. ADAMS, JR., M.D., on behalf )

of himself and his patients; and MEMPHIS CENTER )

FOR REPRODUCTIVE HEALTH, on behalf of itself )

and its patients,

)

)

Plaintiffs,

)

)

v.

)

)

HERBERT H. SLATERY III, Attorney General of )

Tennessee, in his official capacity; JOHN

)

DREYZEHNER, M.D., Commissioner of the

)

Tennessee Department of Health, in his official

)

capacity; and MICHAEL D. ZANOLLI, M.D.,

)

President of the Tennessee Board of Medical

)

Examiners, in his official capacity,

)

)

Defendants.

)

CIVIL ACTION CASE NO. _______________ JUDGE __________________

COMPLAINT

Plaintiffs Adams & Boyle, P.C.; Wesley F. Adams, Jr., M.D., and Memphis Center for

Reproductive Health, by and through their undersigned attorneys, bring this complaint against

the above-named Defendants, and in support thereof allege the following:

I. PRELIMINARY STATEMENT

1. In recent years, Tennessee politicians have engaged in a relentless attack on abortion

rights, enacting a multitude of restrictions designed to shutter clinics that have provided safe and

affordable abortion care for decades and impose unconscionable obstacles on women seeking

such care.

2. This lawsuit challenges three such restrictions: the “ASTC Requirement,” which

requires doctor’s offices that perform abortions to become licensed as costly ambulatory surgical

treatment centers (“ASTCs”), 2015 Tenn. Pub. Acts Chapter 419 (to be codified at Tenn. Code

Case 3:15-cv-00705 Document 1 Filed 06/25/15 Page 1 of 22 PageID #: 1

Ann. § 68-11-201) (annexed hereto as Exhibit 1); the “Admitting-Privileges Requirement,” which requires doctors who perform abortions to have hospital admitting privileges even though less than one-quarter of one percent of abortion patients ever need treatment at a hospital, 2012 Tenn. Pub. Acts Chapter 1008 (originally codified at Tenn. Code Ann. § 39-15-202(h); to be recodified at Tenn. Code Ann. § 39-15-202(j)) (annexed hereto as Exhibit 2); and the “Delay Requirement,” which requires an abortion patient to attend an in-person meeting with a doctor to receive information that could be provided by phone and then delay her abortion for 48 hours after the meeting, 2015 Tenn. Pub. Acts Chapter 473, § 1(a)-(h) (to be codified at Tenn. Code Ann. § 39-15-202(a)-(h)) (annexed hereto as Exhibit 3).
3. Prior to the enactment of the Admitting-Privileges Requirement in 2012, there were eight clinics in Tennessee that provided surgical abortion services and one that specialized in medication abortions. The Admitting-Privileges Requirement has already resulted in the closure of two of the clinics that provided surgical abortions. If the ASTC Requirement takes effect on July 1, the combined effect of the challenged requirements would be to close half of the facilities providing surgical abortions and sharply limit the capacity of those that remain.
4. The burdens women face as a result of the challenged requirements are compounded by other obstacles to abortion access in Tennessee law. For example, Tennessee law prohibits many private health insurance plans from providing abortion coverage—including for medicallynecessary procedures, see Tenn. Code Ann. § 56-26-134, and also limits abortion coverage in public health insurance plans, Tenn Code Ann. § 9-4-5116. Further, although Tennessee generally promotes telemedicine as a means of improving access to healthcare, see, e.g., Tenn. Code Ann. §56-7-1002(c)-(d) (prohibiting health insurance entities from treating telehealth
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providers less favorably than traditional providers), it prohibits abortion patients from utilizing telemedicine services, see Tenn. Code Ann. § 63-6-241.
5. Abortion is not available in Tennessee after 16 weeks of pregnancy. A woman delayed past 16 weeks because of these restrictions will be unable to obtain an abortion in the State.
6. None of these restrictions provides any health benefit to abortion patients. Each serves only to make abortion less accessible and less affordable for Tennessee women.
7. Plaintiffs, who are well-respected Tennessee abortion providers, bring this lawsuit under 42 U.S.C. § 1983 on behalf of themselves and their patients to challenge the ASTC Requirement, the Admitting-Privileges Requirement, and the Delay Requirement. They seek declaratory and injunctive relief from these unconstitutional laws. II. JURISDICTION AND VENUE
8. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 and 1343(a)(3)-(4). 9. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal and equitable powers of this Court. 10. Venue is appropriate under 28 U.S.C. § 1391(b)(1) because Defendants reside in this district and § 1391(b)(2) because The Women’s Center in Nashville is located here. III. PLAINTIFFS 11. Plaintiff Adams & Boyle, P.C., is a professional corporation organized under the laws of Tennessee. It is a holding company for Bristol Regional Women’s Center in Bristol, Tennessee (the “Bristol Clinic”), and The Women’s Center in Nashville, Tennessee (the “Nashville Clinic”). The Bristol Clinic has operated continuously since 1980. It provides an
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array of reproductive health services, including surgical abortions up to 13.5 weeks LMP1 and medication abortions up to 9 weeks LMP. The Nashville Clinic has operated continuously since 1990. It also provides an array of reproductive health services, including surgical abortions up 16 weeks LMP and medication abortions up to 9 weeks LMP. The Nashville Clinic is a member of the National Abortion Federation (“NAF”) and complies with its Clinical Policy Guidelines. The Bristol and Nashville Clinics are not licensed as ASTCs. Adams & Boyle, P.C., sues on its own behalf and on behalf of its patients.
12. Plaintiff Wesley F. Adams, Jr., M.D., is an obstetrician-gynecologist licensed to practice medicine in Tennessee. He has more than three decades of experience providing abortions and currently provides abortions at both the Bristol and Nashville Clinics. Dr. Adams sues on his own behalf and on behalf of his patients.
13. Plaintiff Memphis Center for Reproductive Health is a nonprofit organization that operates CHOICES, a women’s health clinic in Memphis, Tennessee (the “Memphis Clinic”). In operation since 1974, the Memphis Clinic provides a wide range of reproductive health care services, including surgical abortions up to 15 weeks LMP and medication abortions up to 9 weeks LMP. The Memphis Clinic is a member of NAF and complies with its Clinical Policy Guidelines. Memphis Center for Reproductive Health sues on its own behalf and on behalf of its patients. IV. DEFENDANTS
14. Defendant Herbert H. Slatery III is the Attorney General of Tennessee. He is responsible for defending Tennessee laws against constitutional challenge. See Tenn. Code Ann. § 8-9-109(b)(9). Further, he has exclusive authority to prosecute criminal violations of the
1 “LMP” denotes the first day of a pregnant woman’s “last menstrual period.” It is the standard measure of gestational age used by medical professionals.
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challenged requirements in Tennessee’s appellate courts. See Tenn. Code Ann. § 8-6-109(b)(2); State v. Simmons, 610 S.W.2d 141, 142 (Tenn. Crim. App. 1980). He is sued in his official capacity.
15. Defendant John Dreyzehner is the Commissioner of the Tennessee Department of Health (the “Department”), which is responsible for licensing and regulating ASTCs. See Tenn. Code Ann. § 68-11-202(a)(1). Commissioner Dreyzehner is sued in his official capacity.
16. Defendant Michael D. Zanolli, M.D., is the President of the Tennessee Board of Medical Examiners. The Board of Medical Examiners is empowered to take disciplinary action against a physician who violates the Delay Requirement, Tenn. Code Ann. § 39-15-202(h), or any “of the laws governing abortion,” Tenn. Code Ann. § 63-6-214(b)(6). Dr. Zanolli is sued in his official capacity. V. THE CHALLENGED REQUIREMENTS
ASTC Requirement 17. In general, Tennessee law classifies facilities where surgical procedures are performed as ASTCs, but excludes private physician’s offices from the definition. See Tenn. Code Ann. § 68-11-201(3). 18. In the past, Tennessee tried to require that any private physician’s office that performs a “substantial number” of abortions be classified as an ASTC, but this effort was held unconstitutional by the Tennessee Court of Appeals. See Tenn. Dep’t of Health v. Boyle, No. M2001-01738-COA-R3-CV, 2002 WL 31840685 (Dec. 19, 2002). 19. The ASTC Requirement set forth in Public Chapter 419, enacted in the most recent legislative session, once again seeks to classify private physician’s offices where abortions are performed as ASTCs. It amends the statutory definition of ASTC to state that: “‘Ambulatory surgical treatment center’ means any institution, place, or building devoted primarily to the
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maintenance and operation of a facility for the performance of surgical procedures or any facility in which a surgical procedure is utilized to terminate a pregnancy. . . . Excluded from this definition are private physicians’ office practices where a total of fifty (50) or fewer surgical abortions are performed in any calendar year.” As a result, private physician’s offices that perform more than 50 surgical abortions per year are classified as ASTCs.
20. Under this definition, as under the ASTC definition previously held unconstitutional, “a private physician or dentist may perform any number of surgical procedures, of varying degrees of severity and risk, without being classified as an ASTC, so long as the surgical procedures do not include [the requisite number] of abortions.” Boyle, 2002 WL 31840685 at *1.
21. As the Tennessee Court of Appeals has recognized, “[i]n terms of state regulation the consequences of being an ASTC are enormous.” Boyle, 2002 WL 31840685, *1. Facilities generally must obtain a certificate of need (“CON”) from the Tennessee Health Services and Development Agency as a prerequisite to ASTC licensure. See Tenn. Code Ann. § 68-111607(a). They must then apply for an ASTC license from the Tennessee Department of Health. See Tenn. Code Ann. § 68-11-204(a)(1). Licensure requires compliance with detailed regulations concerning facility construction, staffing, and administration. See Tenn. Comp. R. & Regs. 1200-08-10-.01 to 1200-08-10-.15.
22. Operating a facility that is required to be licensed as an ASTC without such a license is a crime. Tenn. Code Ann. § 68-11-213(h)(2).
23. The ASTC Requirement was signed into law by Governor Bill Haslam on May 8, 2015, and is scheduled to take effect on July 1, 2015.
Delay Requirement
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24. The Delay Requirement set forth in Section 1(a)-(h) of Public Chapter 473, also enacted in the most recent legislative session, has three components: (1) it requires that an abortion patient receive certain information “orally and in person” prior to her procedure; (2) it requires that the information be provided by “the attending physician who is to perform the abortion” or “the referring physician”; and (3) it delays the patient from having an abortion “until a waiting period of forty-eight (48) hours has elapsed after the attending physician or referring physician has provided the information required [by the statute],” except in a medical emergency.
25. This requirement is also modeled on an earlier statute that was held unconstitutional. In 2000, the Tennessee Supreme Court held that a law imposing a mandatory waiting period on abortion patients violated the Due Process Clause of the Fourteenth Amendment by imposing an undue burden on abortion access and also violated the Tennessee Constitution. See Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 22, 24 (Tenn. 2000). Although the Tennessee Constitution has since been amended, the Due Process Clause of the Fourteenth Amendment remains unchanged.
26. A physician who fails to comply with the Delay Requirement is subject to criminal penalties and loss of licensure. Tenn. Code Ann. § 39-15-202(h).
27. The Delay Requirement was signed into law by Governor Bill Haslam on May 18, 2015, and is scheduled to take effect on July 1, 2015.
Admitting-Privileges Requirement 28. The Admitting-Privileges Requirement was originally set forth in Public Chapter 1008, enacted in 2012, but was deleted and reenacted this year by Public Chapter 473. It has been in effect since July 1, 2012, and is now codified at Tenn. Code Ann. § 39-15-202(j). 29. It prohibits a physician from performing an abortion unless the physician has
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admitting privileges at a licensed hospital that is located “in the county in which the abortion is performed” or “in a county adjacent to the county in which the abortion is performed.”
30. Tennessee law does not require physicians performing outpatient procedures comparable to abortion to have hospital admitting privileges.
31. Tennessee’s ASTC regulations provide that: “[e]ach ASTC must have a written transfer agreement with a local hospital”; “[t]he ASTC shall develop a patient referral system both for referrals within the facility and other health care providers”; and “[t]he ASTC shall have available a plan for emergency transportation to a licensed local hospital.” Tenn. Comp. R. & Regs. 1200-08-10-.05(6)-(8). Even though the ASTC regulations require extensive procedures to be in place to manage patient emergencies, including transfer of patients to the hospital when needed, physicians who provide abortions at ASTCs must nevertheless also obtain admitting privileges at a local hospital. Physicians who perform any other procedures at ASTCs are not required to obtain such privileges. VI. FACTUAL ALLEGATIONS
Abortion Background 32. Abortion is a safe and common medical procedure. 33. Approximately 15% of pregnancies in Tennessee result in induced abortion. 34. In 2011, the last year for which statistics are currently available, 16,720 women obtained abortions in Tennessee. 35. Nationwide, roughly one out of every three women will have had an abortion by the time she reaches age 45. 36. In the U.S, roughly 36% of women obtaining abortions are white; 30% are black; 25% are Hispanic; and 9% come from other racial or ethnic backgrounds.
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37. Seventy-three percent of women having abortions in the U.S. report a religious affiliation. Thirty-seven percent identify as Protestant, and 28% identify as Catholic.
38. The reasons women give for having an abortion underscore their understanding of the responsibilities of parenthood and family life. Three-fourths of women cite responsibility to other individuals; three-fourths say they cannot afford a child; three-fourths say that having a baby would interfere with work, school or the ability to care for dependents; and half say they do not want to be a single parent or are having problems with their partner.
39. Most women having abortions already have at least one child; most also report plans to have children (or additional children) when they are older, financially able to provide for them, and/or in a supportive relationship with a partner so their children will have two parents.
40. Fifty-eight percent of abortion patients in the U.S. say they would have liked to have had their abortion earlier in the pregnancy. Nearly 60% of women who experienced a delay in obtaining an abortion cite the time it took to make arrangements and raise money.
41. Abortion is one of the safest procedures in contemporary medical practice. Less than one-quarter of one percent of abortion patients experience a complication that requires hospitalization.
42. Abortion is far safer than the alternative—carrying a pregnancy to term. Nationwide, the risk of death from carrying a pregnancy to term is approximately 14 times higher than the risk of death from having a legal abortion. As a result, denying a woman who wants to have an abortion access to legal abortion services does not benefit her health.
43. Illegal abortions pose a serious risk to women’s health. The World Health Organization has estimated that, even in developed countries, the mortality rate for illegal abortion is 40 times higher than the mortality rate for legal induced abortion.
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44. Self-induced abortions also pose greater risks to women’s health than abortions performed by a doctor or other qualified clinician.
Availability of Abortion Services in Tennessee and Impact of the Challenged Requirements 45. In 2011, there were nine abortion clinics in Tennessee. Three of these were located in Memphis, including the Memphis Clinic operated by Plaintiff Memphis Center for Reproductive Health; three were located in Knoxville; two were located in Nashville, including the Nashville Clinic operated by Plaintiff Adams & Boyle, P.C.; and one was located in Bristol, the Bristol Clinic operated by Plaintiff Adams & Boyle, P.C. Together, these clinics provided more than 99% of abortions in Tennessee. 46. Only eight of these clinics offered surgical abortions. One of the clinics in Knoxville offered medication abortions only. 47. The Admitting-Privileges Requirement enacted in 2012 forced two of the clinics offering surgical abortions – one in Memphis and one in Knoxville—to close. 48. It also limited the capacity of the remaining clinics by reducing the number of physicians eligible to provide abortions. As a result of the Admitting-Privileges Requirement, some physicians who had been safely providing abortions in Tennessee for years had to stop doing so, and clinics have had difficulty recruiting new physicians. 49. If the ASTC Requirement is permitted to take effect on July 1, 2015, it would force the Bristol and Nashville Clinics operated by Plaintiff Adams & Boyle, P.C., to close, reducing the number of clinics offering surgical abortions to four. 50. Thus, the combined impact of the ASTC and Admitting-Privileges Requirements would be to close half of the clinics providing surgical abortion services in Tennessee.
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51. Women in Bristol would then have to travel over 100 miles to Knoxville to reach the closest Tennessee abortion provider. Those women would face increased transportation and childcare expenses, and have to spend more time away from work. Those trying to keep their abortion confidential—from an abusive partner, for example—would have a harder time doing so.
52. There is currently only a single doctor providing surgical abortions in Knoxville. When that doctor gets sick, goes on vacation, or is otherwise unavailable, women are unable to obtain surgical abortions in Knoxville.
53. If the ASTC Requirement takes effect, forcing the Bristol and Nashville Clinics to close, women throughout Tennessee would be delayed in accessing abortion services, as they attempt to obtain appointments with a substantially diminished pool of physicians and clinics.
54. Since the enactment of the Admitting-Privileges Requirement, women in some parts of Tennessee already have to wait two to three weeks to obtain an appointment for abortion services.
55. In Tennessee, medication abortions are not available after 9 weeks LMP. A woman delayed past 9 weeks LMP cannot obtain a medication abortion in Tennessee.
56. In Tennessee, surgical abortions are not available after 16 weeks LMP. A woman delayed past 16 weeks LMP cannot obtain an abortion in Tennessee at all.
57. Although abortion is safe throughout pregnancy—and safer than many other common medical procedures—both the risk of complications and the cost of the procedure increase with gestational age.
58. The Delay Requirement will further limit the capacity of abortion clinics when it takes effect. Unless a patient is referred to an abortion clinic by a physician who is willing and
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able to provide the required information at a separate location, it will require abortion clinics to schedule an additional, medically-unnecessary appointment for each patient and require a physician affiliated with the abortion clinic to see the patient during that appointment. The physician time and clinic space needed for these medically-unnecessary appointments will reduce the physician time and clinic space available for abortion procedures.
59. By requiring an additional, medically-unnecessary trip for the mandated information, the Delay Requirement will further delay women from obtaining abortions. In addition, it will increase the cost of the procedure itself as well as ancillary costs such as transportation expenses, childcare expenses, and lost wages. It will also make it harder for a woman to prevent others from finding out about her pregnancy and decision to obtain an abortion.
60. The challenged requirements, individually and collectively, impose substantial obstacles on women seeking previability abortions in Tennessee.
Impossibility of Compliance with the ASTC Requirement Prior to Its Effective Date 61. The ASTC Requirement gives physician’s offices that currently perform more than 50 abortions per year only 54 calendar days to become licensed as ASTCs. 62. Prior to May 22, 2015, Thomas C. Jessee, one of Plaintiffs’ undersigned attorneys, contacted several Tennessee officials, including the General Counsel for the Tennessee Health Services and Development Agency and the Director of the Division of Health Care Facilities at the Tennessee Department of Health, to ask whether existing abortion clinics would have to obtain a CON prior to applying for an ASTC license. Both responded that it was unclear on the face of the proposed law whether a CON would be required for existing abortion facilities. 63. On May 22, 2015, Mr. Jessee emailed a letter to the Executive Director of the Tennessee Health Services and Development Agency, an independent agency responsible for
12 Case 3:15-cv-00705 Document 1 Filed 06/25/15 Page 12 of 22 PageID #: 12

processing CON applications by healthcare facilities, asking whether existing abortion clinics must obtain a CON prior to applying for an ASTC license.
64. By letter dated May 28, 2015, the Executive Director responded, in relevant part, that: “[T]he Health Services and Development Agency is seeking an opinion from the Tennessee Attorney General regarding whether a private physician’s office practice performing more than fifty (50) surgical abortions in any calendar year prior to July 1, 2015 must obtain a CON before becoming an ASTC. We will update you upon receiving the opinion.”
65. On June 11, 2015, the Attorney General of Tennessee issued an opinion that “the General Assembly did not intend to require such existing office practices to obtain a certificate of need prior to becoming licensed as ambulatory surgical treatment centers.” Tenn. Att’y Gen. Op. No. 15-52, 2015 WL 3822469, at *1 (June 11, 2015). The Attorney General reasoned that “a certificate of need is generally required for the construction, development, other establishment, or modification of a health care institution” and “[a] practice that is already in existence would not appear to fall within the natural and ordinary meaning of these terms, which refer to the building of a new facility or the expansion of an existing facility.” Id. at *3. It further reasoned that “[t]he fact that completion of the CON process generally requires at least several months provides additional support for our conclusion that Public Chapter 419 does not require existing practices that now come within the new ASTC definition to obtain a CON as a pre-condition to licensure as an ASTC, since requiring a CON would be tantamount to requiring something that is virtually impossible. Id. at *4.
66. On June 12, 2015, the Bristol and Nashville Clinics attempted to apply for ASTC licensure, but were told by an official at the Department that the required application form was
13 Case 3:15-cv-00705 Document 1 Filed 06/25/15 Page 13 of 22 PageID #: 13

not yet available. That form, annexed hereto as Exhibit 4 and incorporated herein by reference, was not posted on the Department’s website or provided to Plaintiffs until June 16, 2015.
67. On June 18, 2015, the Bristol and Nashville Clinics each submitted a completed ASTC licensure application form to the Department, together with the $1,080.00 licensure fee.
68. Subsequently, Department officials told Mr. Jessee that the applications would not be processed until each clinic submitted a full set of architectural plans. Further, the applications would not be approved until the plans were reviewed and any facility renovations called for by the Department were completed and inspected during a site survey.
69. On June 24, 2015, Mr. Jessee received letters from the Department acknowledging receipt of the application forms and fees from the Bristol and Nashville Clinics. These letters reiterated that site surveys of the clinics would be necessary and that architectural plans must be submitted before the required site surveys would be scheduled.
70. The ASTC licensure process being enforced by the Department could not possibly be completed within the 54 calendar days provided by the statute, much less the 15 calendar days between the Department’s posting of the required application form and the effective date of the statute.
71. The ASTC requirement fails to provide fair notice that existing physician’s offices that provide 50 or more abortions in a calendar year will be subject to full architectural review and required to comply with the building standards set forth in Tenn. Comp. R & Regs. 1200-0810-.08 as a condition of ASTC licensure.
The ASTC Requirement Targets Abortion Clinics for the Imposition of Unique and Onerous Burdens But Provides No Health Benefits to Abortion Patients. 72. Abortion is an extremely safe procedure, and abortion-related complications are rare.
14 Case 3:15-cv-00705 Document 1 Filed 06/25/15 Page 14 of 22 PageID #: 14

73. Because the risk of complications from abortion is so low, over 90% of abortions nationwide are performed in outpatient settings rather than in hospitals. The vast majority of these are performed in office-based settings (i.e., doctors’ offices and specialized clinics).
74. Abortion-related complications do not occur at a higher rate when abortions are performed in an office-based setting as compared with ASTCs.
75. Abortion is safer and less complex than many outpatient surgeries that Tennessee law does not require to be performed in an ASTC.
76. Leading medical associations, including the American College of Obstetricians & Gynecologists (“ACOG”) and the American Medical Association (“AMA”) oppose the imposition of ASTC requirements on abortion providers.
77. ASTC building standards are generally intended to enhance the safety of surgeries that involve cutting into sterile body tissue by creating an ultra-sterile operating environment. Surgical abortion, however, is not performed in this manner. Rather, it entails insertion of instruments into the uterus through the vagina, which is naturally colonized by bacteria. Accordingly, precautions aimed at maintaining a sterile environment, beyond basic cleanliness, hand-washing, and use of sterile instruments, provide no health or safety benefit to abortion patients.
78. The types of abortion procedures performed on an outpatient basis in Tennessee do not meet the definition of “invasive procedure” in the Facility Guidelines Institute (“FGI”) 2010 Guidelines for Design and Construction of Hospitals and Outpatient Facilities.
79. The only purpose served by the ASTC Requirement is to reduce the availability of abortion services in Tennessee.
The Admitting-Privileges Requirement Targets Abortion Clinics for the Imposition of Unique and Onerous Burdens But Provides No Health Benefits to Abortion Patients.
15 Case 3:15-cv-00705 Document 1 Filed 06/25/15 Page 15 of 22 PageID #: 15

80. Serious complications from abortion are exceedingly rare. Nationwide, less than one-quarter of one percent of abortion patients experience a complication that requires hospitalization.
81. In the rare instances when hospital treatment is required following an abortion, the quality of care that the patient receives at the hospital is not dependent on whether her abortion provider has admitting privileges there. Continuity of care is typically maintained by direct telephone communication between the hospital physician and the referring physician, as well as transmission of the patient’s medical records to the hospital. This is standard medical practice— not just in the abortion context but in all areas of medicine.
82. Most abortion-related complications arise after the patient has returned home following the procedure. If a patient experiences a serious complication when she is not at the facility, the appropriate course of action would be for her to go to the nearest emergency room, regardless of whether her abortion provider has admitting privileges at a different hospital.
83. The farther a patient must travel to obtain abortion care, the less likely she will be seek treatment at a hospital near the abortion clinic in the event of a serious complication.
84. Hospitals have broad discretion to set criteria for granting admitting privileges. Many hospitals consider criteria that are unrelated to a physician’s qualifications and competence.
85. Many hospitals will not renew a physician’s admitting privileges if the physician failed to admit a minimum number of patients in the preceding year. Because abortions so rarely result in serious complications, physicians who specialize in abortion seldom admit patients to a hospital.
16 Case 3:15-cv-00705 Document 1 Filed 06/25/15 Page 16 of 22 PageID #: 16

86. Hospitals within Tennessee have varying requirements for privileges. Some require a certain number of patient admissions each year, some require physicians to reside within a certain distance from the hospital, others limit privileges to physicians who are directly employed by or under contract with the hospital, while still others require board certification. These criteria, unrelated to a physician’s ability to provide high-quality abortion care, may nonetheless preclude him or her from obtaining privileges.
87. Under Tennessee law, hospitals are not required to afford physicians notice or an opportunity to be heard before admitting privileges are denied or terminated. See City of Cookeville ex rel. Cookeville Reg. Med. Ctr. v. Humphrey, 126 S.W.3d 897, 906-07 (Tenn. 2004). Instead, hospitals may unilaterally deny or terminate admitting privileges based on a “business decision.” Id. at 907.
88. Standards promulgated by the nation’s leading medical associations and accreditation bodies—including ACOG, the American College of Surgeons (“ACS”), the American Society of Anesthesiologists (“ASA”), the Accreditation Association for Ambulatory Health Care (“AAAHC”), the American Association for Accreditation of Ambulatory Surgery Facilities (“AAAASF”), and the Joint Commission—provide that, while medical facilities are expected to have mechanisms in place to ensure that physicians are qualified to perform the procedures they provide and that patients are assured continuity of care in the event of a complication, these mechanisms need not include hospital admitting privileges.
89. The only purpose served by the Admitting-Privileges Requirement is to reduce the availability of abortion services in Tennessee.
Under Existing Tennessee Law, Abortion Patients Are Required to Participate in a Robust Informed Consent Process Prior to Obtaining an Abortion.
17 Case 3:15-cv-00705 Document 1 Filed 06/25/15 Page 17 of 22 PageID #: 17

90. Independently of the Delay Requirement, Tennessee law imposes an obligation on physicians to obtain a patient’s informed consent prior to treatment. See Tenn. Code Ann. § 2926-118. To satisfy this obligation, a physician must “supply appropriate information to the patient . . . in accordance with the recognized standard of acceptable professional practice in the profession and in the specialty, if any, that the [physician] practices in the community in which the [physician] practices and in similar communities.” Id. Either the Delay Requirement is duplicative of Tenn. Code Ann. § 29-26-118, or it requires something that is not part of “the recognized standard of acceptable professional practice.” Id.
91. Tennessee’s generally-applicable informed consent requirement ensures that patients participate in a robust informed-consent process prior to obtaining an abortion and that they are provided with “appropriate information” about the risks, benefits, and alternatives to abortion.
92. Plaintiffs provide extensive counseling to their patients prior to an abortion procedure. They ensure that each woman’s decision to have an abortion is voluntary and fullyinformed. VII. CLAIMS FOR RELIEF
COUNT I (Substantive Due Process) 93. The allegations of paragraphs 1 through 92 are incorporated as though fully set forth herein. 94. The ASTC, Admitting-Privileges, and Delay Requirements—individually, collectively, and in conjunction with burdens imposed by other provision of Tennessee law— impose an undue burden on access to previability abortion in Tennessee in violation of the Due Process Clause of the Fourteenth Amendment.
18 Case 3:15-cv-00705 Document 1 Filed 06/25/15 Page 18 of 22 PageID #: 18

COUNT II (Equal Protection) 95. The allegations of paragraphs 1 through 92 are incorporated as though fully set forth herein. 96. The ASTC, Admitting-Privileges, and Delay Requirements each denies equal protection of the laws to Plaintiffs and their patients in violation of the Equal Protection Clause of the Fourteenth Amendment.
COUNT III (Procedural Due Process) 97. The allegations of paragraphs 1 through 92 are incorporated as though fully set forth herein. 98. As applied to the Bristol and Nashville Clinics, the ASTC Requirement denies Plaintiffs Adams & Boyle, P.C., and Wesley F. Adams, Jr., M.D., procedural due process in violation of the Due Process Clause of the Fourteenth Amendment.
COUNT IV (Vagueness) 99. The allegations of paragraphs 1 through 92 are incorporated as though fully set forth herein. 100. The ASTC Requirement is vague in violation of the Due Process Clause of the Fourteenth Amendment because it fails to provide fair notice of its requirements and encourages arbitrary and discriminatory enforcement.
19 Case 3:15-cv-00705 Document 1 Filed 06/25/15 Page 19 of 22 PageID #: 19

COUNT V (Unlawful Delegation) 101. The allegations of paragraphs 1 through 92 are incorporated as though fully set forth herein. 102. The Admitting-Privileges Requirement improperly delegates lawmaking authority to hospitals in violation of the Due Process Clause of the Fourteenth Amendment.
VIII. REQUEST FOR RELIEF Plaintiffs respectfully request that this Court: A. Issue a declaratory judgment that the ASTC Requirement is unconstitutional and
unenforceable: a. on its face; and/or b. as applied to the Bristol and Nashville Clinics; and/or
B. Issue a declaratory judgment that the Admitting-Privileges Requirement is unconstitutional and unenforceable:
a. on its face; and/or b. as applied to any abortion provider who is unable to obtain the required admitting
privileges for reasons unrelated to the physician’s medical competency; and/or C. Issue a declaratory judgment that the Delay Requirement is unconstitutional and unenforceable:
a. on its face; and/or b. as applied to any woman or group of women entitled to relief; and/or
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c. insofar as it requires a woman to be informed “in person” of certain information; and/or
d. insofar as it requires certain information to be provided by “the attending physician who is to perform the abortion” or “the referring physician”; and/or
D. Permanently enjoin Defendants and their employees, agents, and successors in office from enforcing the ASTC Requirement:
a. on its face; and/or b. as applied to the Bristol and Nashville Clinics; and/or E. Permanently enjoin Defendants and their employees, agents, and successors in office from enforcing the Admitting-Privileges Requirement: a. on its face; and/or b. as applied to any abortion provider who is unable to satisfy it after reasonable
effort; and/or F. Permanently enjoin Defendants and their employees, agents, and successors in office from enforcing the Delay Requirement:
a. on its face; and/or b. as applied to any woman or group of women for whom it would serve as an undue
burden on access to previability abortion services; and/or c. insofar as it requires a woman to be informed “in person” of certain information;
and/or d. insofar as it requires certain information to be provided by “the attending
physician who is to perform the abortion” or “the referring physician”; and/or G. Grant Plaintiffs attorney’s fees and costs pursuant to 42 U.S.C. § 1988; and/or
21 Case 3:15-cv-00705 Document 1 Filed 06/25/15 Page 21 of 22 PageID #: 21

H. Grant such other and further relief as this Court may deem just, proper, and equitable.
Respectfully submitted,
/s/ Scott P. Tift Scott P. Tift David W. Garrison Barrett Johnston Martin & Garrison, LLC Bank of America Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Tel: (615) 244-2202 Fax: (615) 252-3798 stift@barrettjohnson.com dgarrison@barrettjohnson.com
Thomas C. Jessee Jessee & Jessee P.O. Box 997 Johnson City, TN 37605 Tel: (423) 928-7175 jjlaw@jesseeandjessee.com
Ilene Jaroslaw* Stephanie Toti* Center for Reproductive Rights 199 Water Street, 22nd Floor New York, NY 10038 Tel: (917) 637-3600 Fax: (917) 637-3666 ijaroslaw@reprorights.org stoti@reprorights.org
Attorneys for Plaintiffs
*Application for admission pro hac vice forthcoming
22 Case 3:15-cv-00705 Document 1 Filed 06/25/15 Page 22 of 22 PageID #: 22

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ADAMS & BOYLE, P.C., on behalf of itself and )

its patients; WESLEY F. ADAMS, JR., M.D., on )

behalf of himself and his patients; and MEMPHIS )

CENTER FOR REPRODUCTIVE HEALTH, on )

behalf of itself and its patients,

)

)

Plaintiffs,

)

)

v.

)

)

HERBERT H. SLATERY III, Attorney General of )

Tennessee, in his official capacity; JOHN

)

DREYZEHNER, M.D., Commissioner of the

)

Tennessee Department of Health, in his official

)

capacity; and MICHAEL D. ZANOLLI, M.D.,

)

President of the Tennessee Board of Medical

)

Examiners, in his official capacity,

)

)

Defendants.

)

CIVIL ACTION
CASE NO. 3:15-cv-00705
JUDGE SHARP MAGISTRATE JUDGE KNOWLES

ORDER

This Court having set a hearing on Plaintiff Adams & Boyle, P.C. and Plaintiff Wesley F. Adams, Jr.’s request for a preliminary injunction at 9:00 AM on Thursday, July 9, 2015, IT IS SO ORDERED that the following briefing deadlines shall apply:
Defendants shall be permitted to file a response to Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction (Doc. No. 8) on or before 12:00 PM on Monday, July 6, 2015. Defendants’ response brief shall not exceed twenty (20) pages.
Plaintiffs shall be permitted to file an reply brief on or before 12:00 PM on Wednesday, July 8, 2015. Plaintiffs’ reply brief shall not exceed five (5) pages.
By close of business on July 6, 2015, the parties shall exchange witness and exhibit lists.

1 Case 3:15-cv-00705 Document 14 Filed 06/26/15 Page 1 of 2 PageID #: 132

IT IS SO ORDERED.

____________________________________ KEVIN H. SHARP UNITED STATES DISTRICT JUDGE

2 Case 3:15-cv-00705 Document 14 Filed 06/26/15 Page 2 of 2 PageID #: 133

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ADAMS & BOYLE, P.C., on behalf of itself and )

its patients; WESLEY F. ADAMS, JR., M.D., on )

behalf of himself and his patients; and MEMPHIS )

CENTER FOR REPRODUCTIVE HEALTH, on )

behalf of itself and its patients,

)

)

Plaintiffs,

)

)

v.

)

)

HERBERT H. SLATERY III, Attorney General of )

Tennessee, in his official capacity; JOHN

)

DREYZEHNER, M.D., Commissioner of the

)

Tennessee Department of Health, in his official

)

capacity; and MICHAEL D. ZANOLLI, M.D.,

)

President of the Tennessee Board of Medical

)

Examiners, in his official capacity; GLENN R.

)

FUNK, District Attorney General of Nashville, in )

his official capacity; AMY WEIRICH, District

)

Attorney General of Shelby County, in her official )

capacity; and BARRY P. STAUBUS, District

)

Attorney General of Sullivan County, in his

)

official capacity;

)

)

Defendants.

)

CIVIL ACTION
CASE NO. 3:15-cv-00705
JUDGE SHARP MAGISTRATE JUDGE KNOWLES

PRELIMINARY INJUNCTION

Having considered the parties’ filings and declarations, and having considered the parties’ oral arguments concerning Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction, the Court finds as follows:
Pursuant to Federal Rule of Civil Procedure 65(b), Plaintiffs seek a preliminary injunction to prevent Defendant District Attorneys General Glenn R. Funk and Barry P. Staubus from enforcing 2015 Tenn. Pub. Acts Chapter 419 (“Public Chapter 419”) (to be codified at Tenn. Code Ann. § 68-11-201), pending the Court’s adjudication of Plaintiffs’ challenge to Public Chapter

1 Case 3:15-cv-00705 Document 35 Filed 08/14/15 Page 1 of 3 PageID #: 253

419. Public Chapter 419 amends the definition of “ambulatory surgical treatment center”
(“ASTC”) in Tenn. Code Ann. § 68-11-201(3) to require that “private physicians’ office practices” that perform more than 50 surgical abortion procedures in a calendar year be licensed as ASTCs. 2015 Tenn. Pub. Acts Chapter 419. This law was enacted on May 8, 2015, and became effective on July 1, 2015.
Plaintiff Adams & Boyle, P.C., operates two doctor’s offices in Tennessee that provide abortion services: the Bristol Regional Women’s Center in Bristol, Tennessee (the “Bristol Clinic”) and The Women’s Center in Nashville, Tennessee (the “Nashville Clinic”). Plaintiff Wesley F. Adams, Jr., M.D., a licensed Tennessee physician, performs abortions at both clinics. Although Plaintiffs maintain that the ASTC law is unconstitutional both on its face and as it is being applied by Defendants, Plaintiff Adams & Boyle, P.C. and Plaintiff Adams have applied for ASTC licensure for the Bristol Clinic and the Nashville Clinic and are engaged in negotiations with the Tennessee Department of Health concerning the requirements for that licensure, and the Court understands that the parties are working together in good faith to resolve their disputes concerning the licensure process.
Plaintiffs have satisfied their burden of demonstrating that a preliminary injunction is warranted to prevent criminal enforcement of Public Chapter 419 during the pendency of these proceedings.
IT IS THEREFORE ORDERED that Defendants Funk and Staubus, as well as their employees, agents, and successors in office, are HEREBY ENJOINED from enforcing Public Chapter 419 (to be codified at Tenn. Code Ann. § 68-11-201) against Adams & Boyle, P.C.; Wesley F. Adams, Jr., M.D.; any other physicians providing abortion services at the Bristol Clinic
2 Case 3:15-cv-00705 Document 35 Filed 08/14/15 Page 2 of 3 PageID #: 254

or the Nashville Clinic; and any other staff members working at the Bristol Clinic or the Nashville

Clinic, pending the Court’s resolution of this litigation or further orders of this Court.

IT IS FURTHER ORDERED that the movants are not required to post a bond. Dated: __$_X_J_X_V_W___________

SUBMITTED FOR ENTRY DATED: August 14, 2015

____________________________________ KEVIN H. SHARP UNITED STATES DISTRICT JUDGE

/s/ Scott P. Tift Scott P. Tift David W. Garrison Barrett Johnston Martin & Garrison, LLC Bank of America Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Tel: (615) 244-2202 Fax: (615) 252-3798 stift@barrettjohnson.com dgarrison@barrettjohnson.com

Thomas C. Jessee Jessee & Jessee P.O. Box 997 Johnson City, TN 37605 Tel: (423) 928-7175 jjlaw@jesseeandjessee.com

Ilene Jaroslaw* Stephanie Toti* Center for Reproductive Rights 199 Water Street, 22nd Floor New York, NY 10038 Tel: (917) 637-3600 Fax: (917) 637-3666 ijaroslaw@reprorights.org stoti@reprorights.org

Attorneys for Plaintiffs

* Admitted pro hac vice

3 Case 3:15-cv-00705 Document 35 Filed 08/14/15 Page 3 of 3 PageID #: 255

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ADAMS & BOYLE, P.C., on behalf of itself and )

its patients; WESLEY F. ADAMS, JR., M.D., on )

behalf of himself and his patients; and MEMPHIS )

CENTER FOR REPRODUCTIVE HEALTH, on )

behalf of itself and its patients,

)

)

Plaintiffs,

)

)

v.

)

)

HERBERT H. SLATERY III, Attorney General of )

Tennessee, in his official capacity; JOHN

)

DREYZEHNER, M.D., Commissioner of the

)

Tennessee Department of Health, in his official

)

capacity; MICHAEL D. ZANOLLI, M.D.,

)

President of the Tennessee Board of Medical

)

Examiners, in his official capacity, GLENN R.

)

FUNK, District Attorney General of Nashville, in )

his official capacity; AMY WEIRICH, District

)

Attorney General of Shelby County, in her official )

capacity; and BARRY P. STAUBUS, District

)

Attorney General of Sullivan County, in his

)

official capacity,

)

)

Defendants.

)

CIVIL ACTION
CASE NO. 3:15-cv-00705
JUDGE FRIEDMAN MAGISTRATE JUDGE FRENSLEY

PARTIAL JUDGMENT ON CONSENT

Having considered the Parties’ Joint Motion to Enter Partial Judgment on Consent and

for good cause shown, the Court finds:

That, pursuant to 42 U.S.C. § 1983, Plaintiffs challenged the constitutionality of three

Tennessee laws regulating abortion: (1) the “ASTC Requirement,” which requires facilities

where more than 50 surgical abortions are performed annually to be licensed as ambulatory

surgical treatment centers, 2015 Tenn. Pub. Acts Chapter 419 (codified at Tenn. Code Ann. § 68-

11-201(3)); (2) the “Admitting-Privileges Requirement,” which requires doctors who perform

1 Case 3:15-cv-00705 Document 60 Filed 04/14/17 Page 1 of 4 PageID #: 342

abortions to have local hospital admitting privileges, 2012 Tenn. Pub. Acts Chapter 1008 (codified at Tenn. Code Ann. § 39-15-202(j)); and (3) what Plaintiffs reference as the “Delay Requirement” and Defendants reference as the “Notice and Waiting Period Requirement,” which requires an abortion patient to attend an in-person meeting with a physician to receive certain information and provides that, subject to certain exceptions, no abortion shall be performed until a waiting period of forty-eight (48) hours has elapsed after that information has been provided, 2015 Tenn. Pub. Acts Chapter 473, § 1(a)-(h) (codified at Tenn. Code Ann. § 39-15-202(a)-(h)); and
That the Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt, 579 U.S. __, 136 S. Ct. 2292 (2016), applied the undue-burden standard for evaluating the constitutionality of an abortion regulation to a pair of Texas laws that are similar to Tennessee’s ASTC Requirement and Admitting-Privileges Requirement challenged here, and concluded that both Texas laws are unconstitutional because “neither . . . confers medical benefits sufficient to justify the burdens upon access that each imposes[, that] each places a substantial obstacle in the path of women seeking a previability abortion, [and] each constitutes an undue burden on abortion access.” Id. at 2300; and
That in light of the current case law as set forth in Whole Woman’s Health, 136 S. Ct. at 2300, as Tennessee’s ASTC Requirement and Admitting-Privileges Requirement are similar to the provisions struck down in Whole Woman’s Health v. Hellerstedt, the parties are in agreement that to avoid the expense and utilization of resources on continued litigation regarding Tennessee’s ASTC Requirement and the Admitting-Privileges Requirement, permanent injunctive relief regarding enforcement of: (1) the ASTC Requirement currently in Tenn. Code
2 Case 3:15-cv-00705 Document 60 Filed 04/14/17 Page 2 of 4 PageID #: 343

Ann. § 68-11-201(3); and (2) the Admitting-Privileges Requirement currently in Tenn. Code Ann. § 39-15-202(j), is appropriate; and
That there is no just reason to delay entry of final judgment as to Plaintiffs’ claims for injunctive relief concerning enforcement of: (1) the ASTC Requirement currently in Tenn. Code Ann. § 68-11-201(3); and (2) the Admitting-Privileges Requirement currently in Tenn. Code Ann. § 39-15-202(j).
IT IS THEREFORE ORDERED that the motion is granted and, pursuant to Federal Rules of Civil Procedure 54(b) and 58, this Court hereby enters a final judgment as to Plaintiffs’ claims for statewide injunctive relief concerning enforcement of: (1) the ASTC Requirement currently in Tenn. Code Ann. § 68-11-201(3); and (2) the Admitting-Privileges Requirement currently in Tenn. Code Ann. § 39-15-202(j); and
IT IS FURTHER ORDERED that Defendants, their agents, and their successors in office are permanently enjoined from any and all forms of enforcement of the ASTC Requirement, (2015 Tenn. Pub. Acts Chapter 419), currently codified at Tenn. Code Ann. § 68-11-201(3), against any facility where more than fifty (50) surgical abortion procedures are performed annually; and
IT IS FURTHER ORDERED that Defendants, their agents, and their successors in office are permanently enjoined from any and all forms of enforcement of the Admitting-Privileges Requirement, (2012 Tenn. Pub. Acts Chapter 1008), currently codified at Tenn. Code Ann. § 3915-202(j), against any person or entity performing abortions; and
IT IS FURTHER ORDERED that nothing in this Partial Judgment on Consent shall affect adjudication of Plaintiffs’ claims concerning what Plaintiffs reference as the “Delay Requirement” and Defendants reference as the “Notice and Waiting Period Requirement,” (set
3 Case 3:15-cv-00705 Document 60 Filed 04/14/17 Page 3 of 4 PageID #: 344

forth in 2015 Tenn. Pub. Acts Chapter 473, § 1(a)-(h) (currently codified at Tenn. Code Ann. §
39-15-202(a)-(h)); and
IT IS FURTHERED ORDERED that, in the interest of judicial economy, any request for
attorney’s fees or taxable costs shall be made subsequent to entry of final judgment on Plaintiffs’
remaining claims. Dated: ____A_p_r_i_l _14______, 2017
s/ Bernard A. Friedman ____________________________________ THE HONORABLE BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN SITTING BY SPECIAL DESIGNATION
SUBMITTED FOR ENTRY:
/s/ Scott P. Tift Scott P. Tift David W. Garrison Barrett Johnston Martin & Garrison, LLC Bank of America Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Tel: (615) 244-2202 Fax: (615) 252-3798 stift@barrettjohnson.com dgarrison@barrettjohnson.com
Thomas C. Jessee Jessee & Jessee P.O. Box 997 Johnson City, TN 37605 Tel: (423) 928-7175 jjlaw@jesseeandjessee.com
Autumn Katz* Madeline Gomez* Center for Reproductive Rights
4
Case 3:15-cv-00705 Document 60 Filed 04/14/17 Page 4 of 4 PageID #: 345

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ADAMS & BOYLE, P.C., on behalf of itself and its patients; et al.,
Plaintiffs,
v.
HERBERT H. SLATERY III, Attorney General of Tennessee, in his official capacity; et al.,
Defendants.

CASE NO. 3:15-cv-00705
JUDGE FRIEDMAN
MAGISTRATE JUDGE FRENSLEY

EXPEDITED MOTION TO FILE SUPPLEMENTAL COMPLAINT
Plaintiffs Adams & Boyle, P.C., Memphis Center for Reproductive Health, and Planned
Parenthood of Tennessee and North Mississippi, as well as proposed Plaintiffs Knoxville Center
for Reproductive Health and Dr. Kimberly Looney (together, the “Providers”), move to file a
supplemental complaint pursuant to Federal Rule of Civil Procedure 15(d). In light of the
Providers’ need for urgent relief in this matter, including the temporary restraining order the
Providers seek through their other motion filed today, the Court has good cause to hear this motion
on an expedited basis.
In support of this motion, the Providers submit the attached Memorandum in Support of
Plaintiffs’ Expedited Motion to File Supplemental Complaint, along with a copy of the proposed
Supplemental Complaint. The Providers also submit a Proposed Order in support of their motion.
Dated: April 13, 2020
Respectfully submitted,
/s/ Thomas H. Castelli Thomas H. Castelli (No. 24849) American Civil Liberties Union Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Tel: (615) 320-7142 tcastelli@aclu-tn.org
Case 3:15-cv-00705 Document 229 Filed 04/13/20 Page 1 of 4 PageID #: 5673

Attorneys for Plaintiffs

Scott P. Tift David W. Garrison BARRETT JOHNSTON MARTIN & GARRISON, LLC Bank of America Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Tel: (615) 244-2202 Fax: (615) 252-3798 stift@barrettjohnson.com dgarrison@barrettjohnson.com

Thomas C. Jessee Jessee & Jessee P.O. Box 997 Johnson City, TN 37605 Tel: (423) 928-7175 jjlaw@jesseeandjessee.com

Michael J. Dell* Jason M. Moff* Irene Weintraub* Timur Tusiray* Catherine Hoge*

Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 Tel: 212-715-9129 Tel: 212-715-9113 mdell@kramerlevin.com jmoff@kramerlevin.com iweintraub@kramerlevin.com ttusiray@kramerlevin.com choge@kramerlevin.com

Attorneys for Plaintiffs Adams & Boyle, P.C., Memphis Center for Reproductive Health, and Planned Parenthood of Tennessee and North Mississippi

Case 3:15-cv-00705

Document 229

Autumn Katz* Genevieve Scott** Michelle Moriarty* Center for Reproductive Rights 199 Water Street, 22nd Floor New York, NY 10038 Tel: (917) 637-3600 Fax: (917) 637-3666 akatz@reprorights.org gscott@reprorights.org mmoriarty@reprorights.org Filed 04/13/20 Page 2 of 4 PageID #: 5674

Attorneys for Plaintiffs Adams & Boyle, P.C. and Memphis Center for Reproductive Health Maithreyi Ratakonda* Planned Parenthood Federation of America 123 William St., 9th Floor New York, NY 10038 Tel: (212) 261-4405 Fax: (212) 247-6811 mai.ratakonda@ppfa.org Attorney for Plaintiffs Planned Parenthood of Tennessee and North Mississippi and Dr. Kimberly Looney Julia Kaye** American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2633 Attorney for Plaintiff Knoxville Center for Reproductive Health *Admitted pro hac vice **Application for admission pro hac vice forthcoming
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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing EXPEDITED MOTION TO FILE SUPPLEMENTAL COMPLAINT has been served on the following counsel of record through the Electronic Filing System on this 13th day of April, 2020: Alexander Stuart Rieger Steven Ashley Hart Sue A. Sheldon Lindsay Sisco Matt Cloutier Amber Seymour Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202-0207 (615) 741-2408 Fax: (615) 532-5683 alex.rieger@ag.tn.gov steve.hart@ag.tn.gov sue.sheldon@ag.tn.gov lindsay.sisco@ag.tn.gov matt.cloutier@ag.tn.gov amber.seymour@ag.tn.gov
/s/ Thomas H. Castelli Thomas H. Castelli
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ADAMS & BOYLE, P.C., et al.,

Plaintiffs,

Civil Action No. 3:15-cv-00705

vs.

HON. BERNARD A. FRIEDMAN

HERBERT H. SLATERY, III, et al.,

Defendants. _____________________________/

OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

This matter is presently before the Court on the motion to file a supplemental

complaint [docket entry 229] and the motion for a temporary restraining order (“TRO”) and/or

preliminary injunction [docket entry 231] filed by plaintiffs and proposed plaintiffs (collectively

“plaintiffs”). Defendants and proposed defendants (collectively “defendants”) have responded to

both motions, and plaintiffs have replied. On April 17, 2020, at 11:00 a.m., the Court held a ninety-

minute telephonic hearing with counsel for both sides, and oral argument was heard. For the

reasons stated below, the Court shall grant plaintiffs’ motion to file a supplemental complaint, and

it shall grant plaintiffs’ motion for a TRO and/or preliminary injunction to the extent plaintiffs

seek a preliminary injunction enjoining the enforcement of Tennessee Executive Order 25 (“EO25”) as applied to procedural abortions.1

1 Procedural abortions are one type of abortion. Plaintiffs explain that
[t]here are two methods of abortion care available in Tennessee: medication abortion or in-office procedural abortion (also referred to as “surgical abortion”). Tr. Vol. 2, 57:18-22 (Young); Looney Decl. ¶ 11. For a medication abortion, the patient takes mifepristone in the clinic and then, 24 to 48 hours later, takes misoprostol at a location of her choosing,
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Background
Plaintiffs are providers of reproductive healthcare, including abortion services, in
Tennessee. Plaintiffs challenge Tennessee Senate Bill 1222, Tenn. Code Ann. § 39-15-202(a)-(h),
requiring women seeking an abortion to receive certain information beforehand in person from the
attending physician performing the abortion, or a referring physician, and to then wait at least
forty-eight hours after receiving the information before undergoing the procedure. Plaintiffs allege
that the statute’s “forty-eight-hour delay requirement” unduly burdens their patients’ right to
obtain an abortion. Plaintiffs, suing on their own behalf and also on behalf of their patients, assert
due process and equal protection claims under the Fourteenth Amendment. In September 2019,
the Court conducted a week-long bench trial in this matter.
typically at home. Looney Decl. ¶ 11. The pregnancy is then passed in a process similar to miscarriage. Id.; Tr. Vol. 1, 39:15-11 (Wallett). The use of mifepristone in combination with misoprostol is safe and effective to terminate pregnancies up to 11 weeks LMP [last menstrual period] (or 77 days). Looney Decl. ¶ 12.
Although procedural abortion is sometimes referred to as “surgical abortion,” it is not what is commonly understood to be surgery, as a procedural abortion involves no incision or general anesthesia. Looney Decl. ¶ 14. In the majority of cases, a procedural abortion is performed using the “aspiration” technique, which involves the use of gentle suction to empty the uterus, typically takes about 5-10 minutes, and may at times involve local anesthesia or conscious sedation. Id.; Tr. Vol. 1, 40:12-20 (Wallett); Tr. Vol. 2, 58:9-59:1 (Young). Starting at 14-16 weeks, physicians typically use the dilation and evacuation (“D&E”) technique, which requires additional skills and equipment to perform, and takes longer, including longer time spent by the patient in the recovery room. Looney Decl. ¶ 14; Tr. Vol. 1, 40:21-8 (Wallett). Starting around 18 weeks LMP, procedural abortion may be performed as a two-day procedure because a patient receives medications to dilate her cervix the day before the procedure itself. Looney Decl. ¶ 14. For some patients, procedural abortion is safer or medically indicated over medication abortion, such as for patients at increased risk of bleeding. Id. ¶ 13.
Pls.’ Br. in Support of Mot. for TRO and/or Prelim. Inj. at 7-8. 2
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On March 23, 2020, Governor William Lee issued Tennessee Executive Order 18,
entitled “An Order to Reduce the Spread of COVID-19 by Limiting Non-Emergency Healthcare
Procedures.” This order provides in part:
2. All hospitals and surgical outpatient facilities in the State of Tennessee shall not perform non-essential procedures, which includes any medical procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider. . . . Medical procedures excluded from postponement include . . . pregnancy-related visits and procedures, including labor and delivery . . . .
* * *
5. This Order shall be effective and enforceable at 12:01 a.m., Central Daylight Time, on March 24, 2020, and shall remain in effect until 12:01 a.m., Central Daylight Time, on April 13, 2020, at which time the suspension of any state laws and rules and the other provisions of this Order shall cease and be of no further force or effect.
On April 8, 2020, Governor Lee issued Tennessee Executive Order 25, entitled “An
Order to Reduce the Spread of COVID-19 by Limiting Non-Emergency Healthcare Procedures.”
This order provides in part:
2. All healthcare professionals and healthcare facilities in the State of Tennessee shall postpone surgical and invasive procedures that are elective and non-urgent. Elective and non-urgent procedures are those procedures that can be delayed until the expiration of this Order because they are not required to provide life sustaining treatment, to prevent death or risk of substantial impairment of a major bodily function, or to prevent rapid deterioration or serious adverse consequences to a patient’s physical condition if the surgical or invasive procedure is not performed, as reasonably determined by a licensed medical provider.
3. In order to conserve personal protective equipment [(“PPE”)], healthcare providers and facilities in Tennessee must limit attendance to essential personnel in the rooms where surgeries and invasive procedures are being performed.
4. Non-hospital healthcare providers impacted by this Order are requested and encouraged to provide necessary personal protective equipment in their possession and not required for the emergency care exempted in the Order,
3
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including, but not limited to, medical gowns, N95 masks, surgical masks, TYVEK suits, boot covers, gloves, and/or eye protection to the Tennessee Emergency Management Agency by delivering such equipment to the nearest open Tennessee National Guard Armory listed on the TEMA website (www.tn.gov/tema) between the hours of 9:00 a.m. and 2:00 p.m.
* * *
6. This Order shall take effect at 12:01 a.m., Central Daylight Time, on April 9, 2020, and shall remain in effect until 12:01 a.m., Central Daylight Time, on April 30, 2020, at which time the suspension of any state laws and rules and the other provisions of this Order shall cease and be of no further force or effect.
7. Upon becoming effective, this Order amends and supersedes the provisions of Executive Order No. 18, dated March 23, 2020.
An April 10, 2020, letter signed by defendant State of Tennessee Department of
Health Commissioner Lisa Piercey that is addressed to “Health Care Providers” states that
[t]he intent of Executive Order 25 is to protect the health care providers, staff, patients, and the community from the transmission of COVID-19 and prevent the unnecessary use of the PPE resources that are in extremely short supply, especially N95 masks. Specifically, the Executive Order addresses the following:
• Helps ensure that PPE is preserved, and community spread through close medical interaction is limited during the upcoming weeks in which cases/hospitalizations are expected to increase;
• Expands Executive Order 18 to more specifically cover all procedures that are elective and non-urgent and can be delayed until after the Order without risking serious adverse consequences to a patient; and
• Limits attendance at surgeries and invasive procedures to essential personnel to preserve PPE to the greatest extent possible[.]
Pls.’ Mot. to File Suppl. Compl. Ex. B. The letter advises that the “failure to comply [with EO-
25] is a Class A misdemeanor and may result in possible disciplinary action by your respective
board.” Id.
On April 13, 2020, plaintiffs filed a motion to file a supplemental complaint and a
4
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motion for a TRO and/or preliminary injunction [docket entries 229 and 231]. As noted above, on April 17, 2020, the Court held a ninety-minute telephonic hearing on these motions in which both sides presented extensive oral argument. Motion to File a Supplemental Complaint
Plaintiffs seek leave to file a supplemental complaint, a copy of which is attached to their motion as Exhibit 1, pursuant to Fed. R. Civ. P. 15(d). The proposed supplemental complaint alleges that EO-25, as applied to procedural abortions, violates plaintiffs’ patients’ substantive due process rights under the Fourteenth Amendment. Plaintiffs assert this constitutional challenge on their own behalf and on behalf of their patients.2 The proposed supplemental complaint names two new plaintiffs – Knoxville Center for Reproductive Health and Dr. Kimberly Looney (Chief Medical Officer of plaintiff Planned Parenthood of Tennessee and North Mississippi) – and two new defendants – Governor Lee and Dr. Rene Saunders (Chair of the Board of Licensing Health Care Facilities). Plaintiffs indicate that one of the proposed plaintiffs “previously appeared as a plaintiff in the action” and that the proposed defendants “will be represented by the same counsel as the other Defendants and share substantially the same interests in this matter as the other Defendants.” Pls.’ Br. in Support of Mot. to File Suppl. Compl. at 9; Pls.’ Reply in Support of Mot. to File Suppl. Compl. at 5.
Fed. R. Civ. P. 15(d) provides in relevant part: “On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.”
2 “In [third-party standing] cases, the Supreme Court [has] held that abortion providers have standing to bring due process challenges on behalf of their patients.” Planned Parenthood of Greater Ohio v. Hodges, 917 F.3d 908, 914 (6th Cir. 2019) (citing Singleton v. Wulff, 428 U.S. 106, 118 (1976) (plurality); Diamond v. Charles, 476 U.S. 54, 65-66 (1986)).
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“A supplemental pleading may include new facts, new claims, new defenses, and new parties.” Brian A. v. Bredesen, No. 3:00-0445, 2009 WL 4730352, at *2 (M.D. Tenn. Dec. 4, 2009) (citing Stewart v. Shelby Tissue, Inc., 189 F.R.D. 357, 361 (W.D. Tenn. 1999)). “Generally, [a motion to supplement under Rule 15(d)] can be brought at any time the action is before the trial court.” Id. at *1 (citing Stewart, 189 F.R.D. at 362). “The granting of a motion to file a supplemental pleading is within the discretion of the trial court and, as a general rule, applications for leave to file a supplemental pleading are normally granted.” Id. (Stewart, 189 F.R.D. at 362); see also Bostic v. Biggs, No. 3:14-1068, 2016 WL 4177094, at *1 (M.D. Tenn. Aug. 8, 2016) (“[T]he granting or refusing of leave to file a supplemental pleading rests in the discretion of the trial court.” (citing Schuckman v. Rubenstein, 164 F.2d 952 (6th Cir. 1947))), R&R adopted, No. 3:14-CV-01068, 2016 WL 8730550 (M.D. Tenn. Sept. 9, 2016).
The Court finds that allowing plaintiffs to file a supplemental complaint will promote judicial economy. The Court is familiar with the subject matter of the proposed supplemental complaint from having presided over the September 2019 trial. The second amended complaint and the proposed supplemental complaint contain overlapping factual and legal issues, and they involve overlapping parties and counsel. The Court has considered defendants’ arguments with respect to prejudice and finds them unpersuasive. A supplemental complaint will not prejudice defendants, who have been given notice and have had an opportunity to respond, and the gains in terms of judicial economy outweigh any possible prejudice to them. Therefore, the Court shall grant plaintiffs’ motion to file a supplemental complaint. Motion for a Temporary Restraining Order and/or Preliminary Injunction
Plaintiffs seek the issuance of a TRO and/or preliminary injunction pursuant to Fed. R. Civ. P. 65(b) to enjoin the enforcement of EO-25 insofar as that order prohibits all procedural
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abortions except those necessary “to provide life sustaining treatment, to prevent death or risk of substantial impairment of a major bodily function, or to prevent rapid deterioration or serious adverse consequences to a patient’s physical condition if the surgical or invasive procedure is not performed, as reasonably determined by a licensed medical provider.” EO-25 ¶ 2.
As this Court has noted, a preliminary injunction is “extraordinary relief.” I Love Juice Bar Franchising, LLC v. ILJB Charlotte Juice, LLC, No. 3:19-CV-00981, 2019 WL 6050283, at *3 (M.D. Tenn. Nov. 15, 2019) (citing Detroit Newspaper Publishers Ass’n v. Detroit Typographical Union No. 18, Int’l Typographical Union, 471 F.2d 872, 876 (6th Cir. 1972)). In determining whether to issue a TRO or a preliminary injunction the Court must weigh the following factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction.” Hall v. Edgewood Partners Ins. Ctr., Inc., 878 F.3d 524, 527 (6th Cir. 2017) (internal citations omitted). These “are factors to be balanced, not prerequisites that must be met,” and “[n]o single factor will be determinative as to the appropriateness of equitable relief.” Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 400 (6th Cir. 1997) (citing Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994), and In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985)). However, “[w]hen a party seeks a preliminary injunction on the basis of a potential constitutional violation, ‘the likelihood of success on the merits often will be the determinative factor.’” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (quoting Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009)).
Having read all of the parties’ written submissions and considered all of their arguments carefully, and being mindful of the fact that such relief is extraordinary, the Court finds
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that all four factors weigh in favor of granting a preliminary injunction.3 As to plaintiffs’
likelihood of success on the merits of their constitutional challenge to EO-25,
[t]he fundamental right to privacy contained in the Due Process Clause of the Fourteenth Amendment includes the right to choose to have an abortion, subject to certain limitations. See Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 869, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Casey confirmed that a woman has the right to choose to have an abortion prior to viability and to obtain an abortion without “undue interference from the State.” 505 U.S. at 846, 112 S.Ct. 2791.
Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006). A state regulation is
constitutionally invalid if it places an “undue burden” on a woman’s right to decide to have an
abortion. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2299 (2016) (citing Casey, 505
U.S. at 878). An undue burden exists if the “state regulation has the purpose or effect of placing
a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey,
505 U.S. at 877.
In the present case, plaintiffs have shown that they are likely to succeed on the
merits of their claim because the enforcement of EO-25 creates an undue burden on the right of
women in Tennessee to choose to have a pre-viability abortion. EO-25 has caused plaintiffs to
cancel all procedural abortions to avoid risking criminal and other penalties. Looney Decl. ¶¶ 5,
43; Terrell Decl. ¶¶ 36-37; Rovetti Decl. ¶¶ 5, 14. As a result, since EO-25 took effect on April 9,
procedural abortions have been unavailable in Tennessee for women who are more than eleven
3 The Court notes that the same issue has been decided by five other courts, all of which issued a TRO in those cases at plaintiffs’ request. See Robinson v. Marshall, No. 2:19-cv-00365 (M.D. Ala. Mar. 30, 2020); Preterm-Cleveland v. Att’y Gen. of Ohio, No. 1:19-cv-00360 (S.D. Ohio Mar. 30, 2020); Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323-LY, 2020 WL 1815587 (W.D. Tex. Apr. 9, 2020); S. Wind Women’s Ctr. LLC v. Stitt, No. CIV-20-277-G, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020), appeal dismissed, No. 20-6045, 2020 WL 1860683 (10th Cir. Apr. 13, 2020); Little Rock Family Planning Servs. v. Rutledge, No. 4:19-cv-00449KGB (E.D. Ark. Apr. 14, 2020).
8
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weeks pregnant, as measured from the first day of their last menstrual period (“LMP”),4 and for women of any gestational age for whom a medication abortion is contraindicated.5 Procedural abortions made up approximately fifty to sixty percent of the abortions that plaintiffs performed in 2019 and/or 2020. Looney Decl. ¶¶ 16-17 (2,390 procedural abortions out of 4,742 abortions performed in 2019; 917 procedural abortions out of 1,700 abortions performed in January to March 2020); Terrell Decl. ¶ 10 (1,654 procedural abortions out of 2,792 abortions performed in 2019); Rovetti ¶ 15 (827 procedural abortions out of 1,366 abortions performed in 2019). EO-25 currently expires on April 30, but plaintiffs have provided evidence that the order is likely to be renewed or extended beyond that date. Pls.’ Br. in Support of Mot. for TRO and/or Prelim. Inj. at 4 n.5, 11, 23-24; Looney Decl. ¶ 58; Terrell Decl. ¶¶ 15, 45; Rovetti Decl. ¶¶ 21-22; Pls.’ Reply in Support of Mot. for TRO and/or Prelim. Inj. at 1. Defendants do not dispute the likelihood of a renewal or extension of EO-25, and they acknowledge that Tennessee’s COVID-19 infections “have not yet reached their peak.” Defs.’ Resp. to Mot. for TRO and/or Prelim. Inj. at 8, 21. Therefore, the Court finds that, for purposes of seeking a preliminary injunction, plaintiffs have shown that EO25 “plac[es] a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey, 505 U.S. at 877.
Plaintiffs have also shown that they would suffer irreparable harm if defendants are not enjoined from enforcing EO-25 as it relates to procedural abortions. Plaintiffs argue that EO25, as applied to procedural abortions, “prevents Tennessee patients from exercising their
4 Medication abortions are available in Tennessee through eleven weeks, zero days LMP. Looney Decl. ¶¶ 2, 15; Terrell Decl. ¶ 9. “After 11 weeks, 0 days LMP, patients will generally need a procedural abortion.” Looney Decl. ¶ 13.
5 “[S]ome patients with pregnancies less than 11 weeks, 0 days LMP will have a procedural abortion for various reasons, including because of an underlying medical condition, such as an increased risk of bleeding, that makes this the safer option.” Looney Decl. ¶ 13 (footnote omitted).
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fundamental constitutional right to terminate a pregnancy” guaranteed by the Fourteenth Amendment. Pls.’ Br. in Support of Mot. for TRO and/or Prelim. Inj. at 30. Plaintiffs also argue that “[f]orcing patients to forgo abortion care and remain pregnant against their will inflicts serious physical, emotional, and psychological consequences that alone constitute irreparable harm.” Id. at 31. “Courts have . . . held that a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of the plaintiff’s constitutional rights.” Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002) (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992); McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir. 1984)). “[T]o establish irreparable harm based upon the denial of a constitutional right, the plaintiff must first show a substantial likelihood of success on the underlying constitutional claim.” Bokhari v. Metro. Gov’t of Nashville & Davidson Cty., No. 3:11-00088, 2012 WL 1165907, at *8 (M.D. Tenn. Apr. 9, 2012) (citing Overstreet, 305 F.3d at 578). As noted above, plaintiffs have made this required showing of success on their substantive due process claim. Moreover, abortion is a time-sensitive procedure. See Looney Decl. ¶¶ 20, 43. Delaying a woman’s access to abortion even by a matter of days can result in her having to undergo a lengthier and more complex procedure that involves progressively greater health risks, see id.; Rovetti Decl. ¶ 22, or can result in her losing the right to obtain an abortion altogether. Therefore, plaintiffs have demonstrated that enforcement of EO25 causes them irreparable harm.
In terms of balancing the harm to others, plaintiffs argue convincingly that the irreparable harm they would suffer without injunctive relief, which includes violation of their constitutional rights, “vastly outweigh[s]” any “temporary reduction of PPE” resulting from the enforcement of EO-25. Pls.’ Br. in Support of Mot. for TRO and/or Prelim. Inj. at 32. Plaintiffs
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claim that injunctive relief “will simply preserve ‘the status quo that has been in place for more than 40 years since Roe was decided, and some 25 years since Casey followed.’” Id. (quoting Preterm-Cleveland v. Yost, 394 F. Supp. 3d 796, 803 (S.D. Ohio 2019)). Defendants argue that granting the requested relief would “irreparably harm Tennessee’s authority to protect the safety and health of its citizens” and that it would “also harm the public by hindering the State’s otherwise comprehensive efforts to respond to the COVID-19 pandemic.” Defs.’ Resp. to Mot. for TRO and/or Prelim. Inj. at 21. But plaintiffs have provided evidence, which the Court accepts as accurate, that they have implemented sanitation procedures, as well as procedures to minimize the use of PPE, that they do not use N95 masks or other hospital resources needed to respond to COVID-19, and that a procedural abortion uses less PPE and involves significantly less patient interaction than carrying a pregnancy to term and giving birth. In addition, plaintiffs state that women may travel out-of-state to obtain an abortion while EO-25 is in effect, risking infection of COVID-19 and transmission to others when they return to Tennessee. See Rovetti Decl. ¶ 17 (stating that four patients with appointments on the day EO-25 went into effect were referred to an abortion clinic in Atlanta because the patients were not eligible for medication abortion care). While the stated goal of EO-25 to preserve PPE is unquestionably laudable, defendants have presented no evidence that any appreciable amount of PPE would actually be preserved if EO-25 is applied to procedural abortions. Plaintiffs, on the other hand, offered convincing evidence demonstrating the contrary. The balancing of harms therefore favors plaintiffs.
The fourth factor the Court must consider in deciding whether to issue a preliminary injunction also favors plaintiffs because “it is always in the public interest to prevent violation of a party’s constitutional rights.” Thomas v. Schroer, 116 F. Supp. 3d 869, 879 (W.D. Tenn. 2015) (citing Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cty., Tenn., 274 F.3d
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377, 400 (6th Cir. 2001)); see also Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 222 (6th Cir. 2016) (stating that protection of constitutional rights “is always in the public interest”).
In seeking injunctive relief, plaintiffs ask that the Court waive the bond requirement of Fed. R. Civ. P. 65(c). Defendants do not oppose this request. Rule 65(c) states that “[t]he court may issue a preliminary injunction . . . only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” However, “the rule in our circuit has long been that the district court possesses discretion over whether to require the posting of security,” Moltan Co. v. EaglePicher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995) (internal citation omitted), and “a court has no mandatory duty to impose a bond as a condition for issuance of injunctive relief.” Stooksbury v. Ross, No. 3:09-CV-498, 2012 WL 12841901, at *6 (E.D. Tenn. Aug. 1, 2012) (citing NACCO Materials Handling Grp., Inc. v. Toyota Materials Handling USA, Inc., 246 F. App’x 929, 952 (6th Cir. 2007)). “When determining whether to require the party seeking an injunction to give security, courts have considered factors such as the strength of the movant’s case and whether a strong public interest is present.” I Love Juice Bar Franchising, LLC, 2019 WL 6050283, at *14 (citing Moltan Co., 55 F.3d at 1176). In light of these factors, the Court declines to impose a bond requirement in this case.
Conclusion Accordingly,
IT IS ORDERED that plaintiffs’ motion to file a supplemental complaint is granted. Within seven days of the date of this order, plaintiffs shall file a version of the supplemental
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complaint that is identical to the one attached to plaintiffs’ motion as Exhibit 1.
IT IS FURTHER ORDERED that plaintiffs’ motion for a TRO and/or preliminary injunction is granted to the following extent: Defendants are hereby immediately enjoined from enforcing EO-25 as applied to procedural abortions.

Dated: April 17, 2020 Detroit, Michigan

s/Bernard A. Friedman BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE SITTING BY SPECIAL DESIGNATION

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 Case: 20-5408 Document: 43-1 Filed: 04/24/2020 Page: 1

(1 of 37)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: April 24, 2020

Mr. Matthew D. Besser 5885 Landerbrook Drive Suite 302 Cleveland, OH 44124
Ms. Sarah Campbell Mr. Matthew Daniel Cloutier Mr. Steven Ashley Hart Mr. Alexander Stuart Rieger Office of the Attorney General of Tennessee 320 Sixth Avenue, N., First Floor Nashville, TN 37243
Mr. Thomas Hauser Castelli ACLU Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212
Ms. Melissa Cohen Planned Parenthood Federation of America 123 William Street 10th Floor New York, NY 10038
Mr. Michael J. Dell Kramer, Levin, Naftalis & Frankel 1177 Avenue of the Americas New York, NY 10036
Ms. Laura Etlinger Office of the Attorney General of New York Albany, NY 12224
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Case: 20-5408 Document: 43-1 Filed: 04/24/2020 Page: 2

(2 of 37)

Mr. David W. Garrison Barrett, Johnston, Martin & Garrison 414 Union Street Suite 900 Nashville, TN 37219
Ms. Autumn Chandra Katz Michelle Katz Moriarty Ms. Genevieve Elizabeth Scott Center for Reproductive Rights 199 Water Street, 22nd Floor New York, NY 10038
Julia Kaye American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004
Mr. Stephen Chad Meredith Office of the Attorney General of Kentucky 700 Capitol Avenue Suite 118 Frankfort, KY 40601
Mr. Richard Muniz Planned Parenthood Federation of America 1110 Vermont Avenue Suite 300 Washington, DC 20005
Ms. Maithreyi Ratakonda Planned Parenthood Federation of America 123 William Street 10th Floor New York, NY 10038
Ms. Lisa T. Simpson Orrick, Herrington & Sutcliffe 51 W. 52nd Street New York, NY 10019
Mr. Kevin H. Theriot Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260

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Mr. Scott P. Tift Barrett, Johnston, Martin & Garrison 414 Union Street Suite 900 Nashville, TN 37219
Mr. Edward Lawrence White American Center for Law and Justice 3001 Plymouth Road Suite 203 Ann Arbor, MI 48105
Re: Case No. 20-5408, Adams & Boyle, P.C., et al v. Herbert Slatery, III, et al Originating Case No. : 3:15-cv-00705
Dear Counsel,
The court today announced its decision in the above-styled case.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk

cc: Mr. Kirk L. Davies Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

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RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0127p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ADAMS & BOYLE, P.C. et al.,

┐

Plaintiffs-Appellees, │

│

v.

>
│

│

HERBERT H. SLATERY III et al.

│

Defendants-Appellants. │

┘

No. 20-5408

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:15-cv-00705—Bernard A. Friedman, District Judge.

Decided and Filed: April 24, 2020

Before: MOORE, WHITE, and THAPAR, Circuit Judges.
_________________
COUNSEL
ON MOTIONS AND REPLY: Sarah K. Campbell, Steven A. Hart, Alexander S. Rieger, Matthew D. Cloutier, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. ON RESPONSE: Thomas H. Castelli, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TENNESSEE, Nashville, Tennessee, Genevieve Scott, Autumn Katz, Michelle Moriarty, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York, Maithreyi Ratakonda, PLANNED PARENTHOOD FEDERATION OF AMERICA, New York, New York, Richard Muniz, PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, D.C., Scott P. Tift, BARRETT JOHNSTON MARTIN & GARRISON, LLC, Nashville, Tennessee, Michael J. Dell, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Julia Kaye, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellees. ON BRIEF: Edward L. White III, AMERICAN CENTER FOR LAW & JUSTICE, Ann Arbor, Michigan, S. Chad Meredith, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, Laura Etlinger, OFFICE OF THE ATTORNEY GENERAL OF NEW YORK, Albany, New York, Lisa T. Simpson, ORRICK, HERRINGTON & SUTCLIFFE LLP, New York, New York, Kevin H. Theriot, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for Amici Curiae.

MOORE, J., delivered the opinion of the court in which WHITE, J., joined. THAPAR, J. (pp. 23–33), delivered a separate dissenting opinion.

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_________________
OPINION _________________
KAREN NELSON MOORE, Circuit Judge. This case arises at the intersection of two essential constitutional rights: the right of a woman to control her pregnancy, on the one hand, and the right of the state to exercise its “police power” during an emergency, on the other. More specifically, we ask, does the Constitution permit a state to bar doctors from performing abortion procedures for a three-week period—as part of a widespread temporary ban on “elective” and “non-urgent” surgeries—based solely on the state’s assertion that such a bar is necessary to combat effectively an ongoing public health crisis? The Governor of Tennessee thought so, and accordingly adopted such a temporary ban on April 8, 2020, in response to the ongoing COVID19 global pandemic. The district court, however, disagreed, and accordingly issued a preliminary injunction on April 17, enjoining Tennessee from enforcing its general ban on elective and nonurgent surgeries against doctors performing abortion procedures. The State then filed this emergency appeal, and also requested that we immediately stay the district court’s injunction pending review.
We do not uphold an injunction against state action lightly, much less during a public health crisis like the one our nation is experiencing now. It is imperative in such circumstances that judges give legislatures and executives—the more responsive branches of government—the flexibility they need to respond quickly and forthrightly to threats to the general welfare, even if that flexibility sometimes comes at the cost of individual liberties. Affording flexibility, however, is not the same as abdicating responsibility, especially when well-established constitutional rights are at stake, as the right to an abortion most assuredly is. And, here, although we have great respect for the challenges Tennessee faces as it responds to this novel public health crisis, we agree with the district court that the State’s response, in this one respect, unduly curtailed constitutional liberty, and that judicial intervention was thus warranted. By the same token, however, we also conclude that, when it comes to the precise scope of the district court’s injunction, the district court went too far in asserting its authority. Consequently, we AFFIRM the district court’s order issuing

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a preliminary injunction but direct the district court to MODIFY the preliminary injunction in the manner described below. We also DENY the State’s request for a stay pending appeal as MOOT.
I. BACKGROUND
Generally speaking, a Tennessee woman wishing to exercise her constitutional right to a pre-viability1 abortion, in a legal manner, may do so in one of three ways: (1) receive a “medication abortion” within the first 11 weeks from her last menstrual period (“LMP”); (2) receive a “procedural abortion” within the first 20 weeks LMP, meaning either (a) an “aspiration” abortion (which is a relatively quick clinical procedure, and can be performed up to approximately 15 weeks LMP), or (b) a “dilation and evacuation” (“D&E”) abortion (which is a more time-consuming procedure—albeit one that generally takes place in a clinical setting, too— and is performed up to approximately 20 weeks LMP); or (3) travel to a state with more lenient abortion regulations. See generally R.232-5 (Looney Dec.) (Page ID #5876–77).2 Tennessee law also imposes a variety of other state-specific regulations, such as a 48-hour waiting period and mandatory in-person visitation requirements. See, e.g., Tenn. Code Ann. §§ 39-15-202(a)–(h). Moreover, if a Tennessee woman wishes (or needs) to have a procedural abortion in-state, there are just a handful of providers in a handful of cities where she may do so. See R.232-6 (Terrell Dec.) (Page ID #5908–09) (noting that “[a]ccess to abortion care in [Tennessee] is limited to begin with, with only eight providers in four cities”). And of these clinics, only Planned Parenthood performs abortions after 15 weeks LMP. See R.232-5 (Looney Dec.) (Page ID #5877).
Still, abortion in general, and procedural abortion in particular, remains relatively commonplace in Tennessee, with hundreds of Tennessee women exercising their right to seek an abortion in any given month. See, e.g., id. at Page ID #5878 (stating that, “[i]n January through March 2020, [Planned Parenthood] performed 1,700 abortions in Tennessee, 917 of which were

1As the Supreme Court clarified in Planned Parenthood of Southeastern Pennsylvania v. Casey, the constitutional right to an abortion ends (with some limited exceptions) once the fetus would be “viable” outside the womb. 505 U.S. 833, 860, 870 (1992).
2For context, Tennessee bans abortion altogether at “viability,” which it presumes to occur at 24 weeks LMP. See Tenn. Code Ann. § 39-15-211(b)(5) (setting this as a “rebuttable presumption”). Plaintiffs do not make clear, however, if any recognized in-state clinics or doctors provide abortion services between 20 and 24 weeks LMP.

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procedural abortions and 536 of which occurred beyond eleven weeks LMP, when medication abortion is not an option”).
With this background in mind, we now turn to the ongoing COVID-19 public health crisis, an event with which all but the most secluded of readers should be familiar. Suffice it to say, COVID-19 is the virus at the root of an ongoing global pandemic, which, in just a few short months, has killed tens of thousands of people worldwide and infected hundreds of thousands more. See, e.g., Friends of DeVito v. Wolf, --- A.3d ---, 2020 WL 1847100, at *2 (Pa. Apr. 13, 2020). The virus has also upended American economic and social life, causing schools and businesses to shutter, and even the nominally unaffected to wear masks and stand six feet apart in public.
Unsurprisingly, then, medical providers, including Tennessee’s abortion clinics, have had to modify their way of doing business, for the safety of both staff and patients. As three of the abortion providers involved in this litigation have attested, for instance, COVID-19 has caused them to put at-risk staff on furlough, bar patients from bringing companions with them to the clinic, cut back work days, curtail the number of personnel staffed on any given procedure, and eliminate non-essential wellness appointments, among other social-distancing measures. See R.232-5 (Looney Dec.) (Page ID #5881–82) (Planned Parenthood of Tennessee and North Mississippi); R.232-6 (Terrell Dec.) (Page ID #5911–12) (Memphis Center for Reproductive Health); R.232-7 (Rovetti Dec.) (Page ID #5922–23) (Knoxville Center for Reproductive Health).
Still, to the Governor of Tennessee’s eye, voluntary measures like these were not enough to limit effectively the spread of the virus; more compulsory measures were required. So, in addition to instituting a variety of sweeping “shelter-in-place” orders throughout the month of March, on April 8, 2020 the Governor issued a targeted directive to “[a]ll healthcare professionals and healthcare facilities in the State of Tennessee,” requiring that they “postpone surgical and invasive procedures that are elective and non-urgent,” at least until April 30, when the order would expire on its own terms. R.240-20 (Order) (Page ID #6115–16). This Order, titled Executive

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Order 25 (“EO-25”), had the twin goals of “preserving personal protective equipment [“PPE”]3 for emergency and essential needs and preventing community spread of COVID-19 through nonessential patient-provider interactions.” Id. at Page ID #6115. Its most relevant portion read as follows:
All healthcare professionals and healthcare facilities in the State of Tennessee shall postpone surgical and invasive procedures that are elective and non-urgent. Elective and non-urgent procedures are those procedures that can be delayed until the expiration of this Order because they are not required [1] to provide life sustaining treatment, [2] to prevent death or risk of substantial impairment of a major bodily function, or [3] to prevent rapid deterioration or serious adverse consequences to a patient’s physical condition if the surgical or invasive procedure is not performed, as reasonably determined by a licensed medical provider.
Id. at Page ID #6115–16 (alterations added).
The Order did not contain any provision specifically exempting abortion procedures, or suggesting that medical professionals would have leeway to perform a procedure that, in their clinical judgment, “would not deplete the hospital capacity or the [PPE] needed to cope with the COVID-19 disaster.” Compare with In re Abbott, 954 F.3d 772, 780 (5th Cir. 2020) (describing this “important” caveat contained in an analogous Texas COVID-19-related surgery ban).
Plaintiffs—more specifically, Adams & Boyle, P.C.; Memphis Center for Reproductive Health; Planned Parenthood of the Greater Memphis Region; Planned Parenthood of Tennessee and North Mississippi; Knoxville Center for Reproductive Health; and Dr. Kimberly Looney— subsequently interpreted EO-25 as barring the performance of any procedural4 abortions between April 8 and April 30 (and potentially beyond that, if the Order was extended), enforceable by criminal sanction. See, e.g., R.232-7 (Rovetti Dec.) (Page ID #5921). And, as a result of this understanding, Plaintiffs temporarily cancelled all procedural abortions scheduled for that period. See, e.g., id. at Page ID #5924 (describing four “devastated,” “crying” clients scheduled for procedural abortions on April 9 that the clinic had to turn away because of EO-25); R.232-6

3The Order defined PPE as “including, but not limited to, medical gowns, N95 masks, surgical masks, TYVEK suits, boot covers, gloves, and/or eye protection.” Id. at Page ID #6116.
4The parties agree that EO-25 has no effect on medication abortions, which may continue to be performed.

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(Terrell Dec.) (Page ID #5915–16) (describing similar incident at a different clinic, and also noting that the clinic had “156 patients scheduled for their mandatory [pre-abortion] in-person counseling appointments between [April 13] and April 22”). At the same time, fearing that EO-25 might cause their patients to lose their constitutional right altogether, or at least impose an “undue burden” on that right, Casey, 505 U.S. at 876, as well as cause them (the providers) to face criminal prosecution if they attempted to help their patients procure a procedural abortion, Plaintiffs sought in the federal district court a “temporary restraining order and/or preliminary injunction,” barring the State from enforcing “EO-25 as applied to procedural abortions.” R.232 (Pls.’ Preliminary Inj. Br.) (Page ID #5782–83).5
Tennessee opposed the request. And notably, in its brief in opposition, the State appeared to concede that EO-25 operated just as Plaintiffs thought it would: as a three-week criminal prohibition on procedural abortions, albeit with the exception that the provider could perform an abortion if it is required to “prevent rapid deterioration or serious adverse consequences to a patient’s physical condition” (which the State did not explain in any greater detail). R.240 (Defs.’ Opp. Br.) (Page ID #6022).
The district court accordingly held an emergency telephonic conference, which lasted 90 minutes, and at which both sides explained the evidence undergirding their respective positions.
* * *

5Plaintiffs then highlighted the three groups of patients who most urgently needed protection: (1) patients who, in the good faith professional judgment of the provider, will likely lose their ability to obtain an abortion in Tennessee if their procedures are delayed until after April 30, 2020; (2) patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a lengthier and more complex abortion procedure, which is only available at two clinics in Nashville and Memphis, if their procedures are delayed until after April 30, 2020; [and] (3) patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a two-day procedure—which is only available at two clinics in Nashville and Memphis, and which requires at least three separate visits to the provider—if their procedures are delayed until April 30, 2020. R.232 (Page ID #5783).
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Plaintiffs’ evidentiary showing was as follows:
Harm to Patients. Plaintiffs first pointed out multiple ways in which their patients would be harmed by even a three-week bar on procedural abortions, all turning on the basic fact that pregnancy, unlike many other medical conditions, progresses on a rapid, and inevitable, timeline. First, there were procedural abortion patients who would not be able to obtain an abortion at all, either because their pregnancy would advance past 20 weeks LMP by April 30 (when Plaintiffs could last provide the procedure), or because overburdened waiting lines following April 30 and/or travel limitations would effectively prevent the patient from receiving the procedure. See, e.g., R.232-5 (Looney Dec.) (Page ID #5887–88). Second, there were procedural abortion patients who would be forced against their will to undergo the more time-consuming, invasive, and expensive D&E procedure because, by April 30, they would have “aged out” of the more common aspiration procedure. See, e.g., id. at Page ID #5889. And, third, there were procedural abortion patients who, even if ultimately able to obtain the same type of abortion procedure they would have sans EO-25, would be forced either to travel out-of-state, and face the accordant COVID-19 transmission risks, see, e.g., id. at 5890, or maintain their pregnancy substantially longer than they otherwise would have, and bear the resulting health risks, see, e.g., id. at Page ID #5888–89 (noting that, “[w]hile abortion is extremely safe throughout pregnancy, the risks increase as pregnancy progresses, and the later in pregnancy a patient accesses a procedural abortion the more likely she is to experience a rare complication”). Plaintiffs further pointed out that their patients, like most abortion patients nationwide, are predominantly “poor or low-income,” and hence “already struggle to raise the money to afford an abortion, and to afford transportation, childcare, and lost wages for missed work.” Id. at Page ID #5878, 5890–91.
Harm to the State. Plaintiffs also emphasized the corresponding lack of harm procedural abortions posed to the State’s interests in preserving PPE and minimizing person-to-person contact. For instance, Plaintiffs observed, because procedural abortions generally are performed at clinics—not hospitals—and with limited personnel, they require “minimal” amounts of PPE and interpersonal interaction. See, e.g., R.232-6 (Terrell Dec.) (Page ID #5913–14). Indeed, Plaintiffs

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added, their staff do not even use the (much-coveted) N95 respirator masks.6 Id. If anything, Plaintiffs continued, requiring a woman either to receive a D&E procedure instead of an aspiration procedure, or carry her child all the way to pregnancy (with the accordant mandatory maternal care visits), would result in far more PPE usage and interpersonal interaction than simply permitting abortions to go forward at an appropriately maintained clinic. See, e.g., R.232-5 (Looney Dec.) (Page ID #5882–83).
Statements from Medical Organizations. Plaintiffs also cited statements from prominent medical organizations in which those organizations emphasized that, as serious a threat to public health as COVID-19 presents, abortion nonetheless remains an “essential,” “time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely unavailable.” Id. at Page ID #5879 (alteration in original) (citing statement signed by the American College of Obstetricians and Gynecologists, among others).7
Likelihood that EO-25 Would Last Past April 30. Finally, Plaintiffs offered some evidence that their fear that EO-25 would last past April 30—thus turning a three-week postponement of procedural abortions into something more draconian—was warranted. See, e.g., R.232-5 (Looney Dec.) (Page ID #5892) (citing statement from the Surgeon General saying that he expected socialdistancing measures to “be in place beyond April”).
* * *

6Per the Food & Drug Administration, an “N95 respirator is a respiratory protective device designed to achieve a very close facial fit and very efficient filtration of airborne particles.” N95 masks are not, however, recommended for public usage, as they constitute “critical supplies that must continue to be reserved for health care workers and other medical first responders.” See https://www.fda.gov/medical-devices/personal-protectiveequipment-infection-control/n95-respirators-and-surgical-masks-face-masks (last accessed Apr. 21, 2020).
7Moreover, after the onset of this appeal, over a dozen leading medical organizations—including the American Public Health Organization and (again) the American College of Obstetricians and Gynecologists—signed onto amicus briefs asserting, in no uncertain terms, (1) that abortion is an essential health service, and (2) that restricting access to that service will not “save lives,” or otherwise meaningfully halt the spread of COVID-19. See App. R. 30 (Amicus Br. for Am. Public Health Ass’n and Experts in Public Health); App. R. 42 (Amicus Br. for Am. College of Obstetricians and Gynecologists and Other Nationwide Organizations of Medical Professionals); see also Appellee Br. at 1 n.1 (citing similar guidance from the American College of Surgeons and the World Health Organization).
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The State, for its part, pointed to the following countervailing evidence in response:
Harm to the State. The State first emphasized that, as of April 14, 2020, there were nearly 6,000 cases of COVID-19 in Tennessee, along with 124 deaths, see R.240-1 (Apr. 14 Count) (Page ID #6029), and that, given the intensely contagious nature of the virus, social distancing was necessary to prevent those numbers from growing at an exponential rate, especially among healthcare professionals themselves, see, e.g., R.240-11 (CDC Release) (Page ID #6076–77) (discussing social distancing); R.240-12 (NYT Article) (Page ID #6079–82) (discussing risks to health workers). The State also noted that, per guidance from the Centers for Disease Control and Prevention (“CDC”), the State needed to preserve as much PPE for its front-line hospital employees as possible, i.e., those dealing with COVID-19 patients, and that EO-25 was an essential element of that plan. See, e.g., R.240-13 (CDC PPE Tips) (Page ID #6083–84). The State further pointed out that, although there was evidence that its various social-distancing measures had successfully lowered the virus’s growth rate, that evidence simply underscored the importance of maintaining those measures to the maximum extent possible. See, e.g., R.240-7 (Vanderbilt Health Policy COVID-19 Modeling for Tennessee) (Page ID #6059–65). And, in response to Plaintiffs’ contention that their PPE usage was minimal, the State observed that, even if procedural abortions constituted a relatively small number of delayed medical procedures, and even if the resulting PPE usage was “minimal,” “[e]very procedure that is postponed, and every item of PPE that is preserved, furthers the State’s compelling interests in halting the spread of COVID-19 and ensuring our healthcare system is equipped to treat—and prevent the death of—those who are infected.” R.240 (Defs.’ Opp. Br.) (Page ID #6019–20).
Harm to Patients. In response to Plaintiffs’ statements that EO-25 would inhibit their patients’ ability to obtain abortions, the State essentially attempted to show that Plaintiffs’ evidentiary showing was a paper tiger. The State first emphasized that, because Plaintiffs had neither identified any “actual patient[s] who would be denied an abortion before the order expires in two weeks,” nor “estimated what fraction of women could be allegedly denied an abortion by operation of [EO-25],” there were presumably very few abortion patients who would be materially harmed by the Order. Id. at Page ID #6022. The State then generally asserted that, to the extent EO-25 posed any “serious adverse health consequences” to an abortion patient, the clinic could

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perform that abortion “without delay” (although, again, without explaining what that exception meant). Id.
Statements from Medical Organizations. The State did not cite any countervailing statements suggesting that abortions procedures are not “essential” procedures, or that limiting such procedures is necessary to fight COVID-19.
Likelihood that EO-25 Would Last Past April 30. Although the State repeatedly cited EO25’s limited duration as a reason injunctive relief was unnecessary, the State did not appear to offer any assurances, in its brief or otherwise, that EO-25 would in fact end on April 30. If anything, the general tone of the State’s evidentiary showing—which emphasized the severe consequences portended by COVID-19—suggested the opposite.
* * *
The parties also provided the district court with thorough and thoughtful briefing, in which they addressed not only the major abortion cases, such as Casey, but also Supreme Court precedent concerning the expanded scope of a state’s police power during times of public health crisis, most notably Jacobson v. Massachusetts, 197 U.S. 11 (1905) (affirming the state’s power to make vaccination compulsory).
On Friday, April 17—just a few hours after the evidentiary hearing—the district court issued a short, but thoughtful, order granting Plaintiffs’ request for a preliminary injunction.8 See Adams & Boyle, P.C. v. Slatery, No. 3:15-cv-705, 2020 WL 1905147 (M.D. Tenn. Apr. 17, 2020). In this order, the district court acknowledged that preliminary injunctions are “extraordinary relief,” but ultimately found, after considering the evidence, that such an injunction was warranted here. Id. at *4. Most importantly, the district court emphasized that because EO-25 was “likely” to last past April 30, and because “[d]elaying a woman’s access to abortion even by a matter of days can result in her having to undergo a lengthier and more complex procedure that involves progressively greater health risks . . . or can result in her losing the right to obtain an abortion
8Although the district court’s order at times references Plaintiffs’ alternative request for a temporary restraining order, read in context, the court clearly granted Plaintiffs a preliminary injunction. Indeed, neither party argues to the contrary on appeal.

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altogether,” the Plaintiffs were likely to succeed on the merits of their constitutional claim, per the Casey “undue burden” test. Id. at *5–6 (citation omitted). The district court also concluded that, “[w]hile the stated goal of EO-25 to preserve PPE [was] unquestionably laudable,” the State “presented no evidence that any appreciable amount of PPE would actually be preserved if EO-25 is applied to procedural abortions.” Id. at *6. To the contrary, the court noted, “procedural abortion[s] use[] less PPE and involve[] significantly less patient interaction than carrying a pregnancy to term and giving birth.” Id. The court further added that making women travel outof-state for abortion only increased the risks of person-to-person transmission of COVID-19, again in contradiction of EO-25’s goals.
The district court accordingly concluded its opinion with the following, brief preliminary injunction order: “Defendants are hereby immediately enjoined from enforcing EO-25 as applied to procedural abortions.” Id. at *7. And, as a result of this order, Plaintiffs have presumably begun providing, and scheduling, procedural abortions again.
In response, the State filed immediately with the district court a request that the court stay its injunction pending appeal, followed by a notice of appeal. And, before the district court had a chance to respond to the State’s stay request, the State filed a brief in this court entitled, “Combined Emergency Motion for Stay Pending Appeal and Merits Brief,” in which the State requested that we, as an initial matter, issue “a temporary administrative stay while [we] consider[] the stay motion,” and then that we “grant an emergency stay of the preliminary injunction while [we] consider[] the merits of the State’s appeal, and then reverse the district court.” Appellant Br. at 3 n.1, 27.
On Monday April 20, we denied the State’s request for an administrative stay (with one judge dissenting), and asked the parties to provide expedited briefing so that we could consider the issues raised in the State’s appeal with the benefit of argument from both sides. App. R. 9.9 The parties have now provided that briefing, and the question of whether the district court acted properly in enjoining the State’s enforcement of EO-25 is ripe for our review.

9Two days after we issued this order the district court denied the State’s request for a stay. See R.252.

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II. DISCUSSION
Because the parties have sufficiently briefed the merits questions before us, and because time is of the essence, we forgo consideration of the State’s stay request and instead proceed straight to the preliminary injunction analysis.10
A.
A preliminary injunction is an “extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Rather, the party seeking the injunction must prove: (1) that they are likely to succeed on the merits of their claim, (2) that they are likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in their favor, and (4) that an injunction is in the public interest. Id. at 20. A court considering whether to grant a preliminary injunction must therefore “balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Id. at 24 (quoting Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987)). Moreover, when crafting an injunction, a district court must take care to “limit the solution to the problem,” for example, by “enjoin[ing] only the unconstitutional applications of a [policy] while leaving other applications in force.” Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328–29 (2006). We review a district court’s application of these principles for abuse of discretion. Am. Civil Liberties Union Fund of Mich. v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015).

10We acknowledge the State’s alternative argument that Plaintiffs do not have proper “third-party standing” to bring this suit on behalf of their patients. Appellant Br. at 22. But because Plaintiffs unquestionably have standing to sue on their own behalf (because EO-25 potentially threatens them with criminal prosecution) we need not address third-party standing. See In re Abbott, 954 F.3d at 782 n.17 (“[The plaintiff abortion providers] have standing to sue on their own behalf because [the at-issue Executive Order] ‘directly operates’ against them.” (citing Planned Parenthood of Cen. Mo. v. Danforth, 428 U.S. 52, 62 (1976))).
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1.
We begin by asking whether Plaintiffs have shown that they are likely to succeed on the merits of their constitutional claim. We conclude that they are.
In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court held that the provision of the Fourteenth Amendment establishing that no state “shall . . . deprive any person of life, liberty, or property, without due process of law,” includes within it a substantive guarantee of reproductive liberty, that is, a promise that no state shall prevent a woman from terminating her pregnancy if she so chooses (subject to certain limitations, depending on the trimester of pregnancy). The Court then narrowed this right in Planned Parenthood of Southeastern Pennsylvania v. Casey, clarifying that states could ban abortion after “viability,” see supra n.1, and could also regulate the practice of abortion before then, so long as those regulations did not impose an “undue burden,” which the Court defined as a “provision of law” whose “purpose or effect [was] to place a substantial obstacle in the path of a woman seeking an abortion.” 505 U.S. at 878. Still, the Casey court was careful to distinguish between regulation and prohibition, emphasizing that, “[r]egardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Id. at 879.
Casey’s undue burden framework, and the accordant distinction between regulation and prohibition, has not always been easy to apply. See, e.g., Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309–10 (2016) (discussing differing interpretations). But in the context of “time regulations” like the three-week measure at issue here, courts appear to have readily distinguished between the imposition of a short waiting period, see, e.g., Casey, 505 U.S. at 885–86 (upholding state law requiring 24-hour waiting period prior to abortion); Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361, 372–73 (6th Cir. 2006) (same), and the outright curtailment of the abortion right, see, e.g., Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019) (rejecting state law prohibiting abortions, with limited exceptions, after 15 weeks LMP); McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015) (same, with respect to a law prohibiting abortions after 20 weeks LMP). And, notably, although Casey upheld a 24-hour waiting period, the Court described the question as “close[],” and noted that the potential of such a policy to prevent lowincome women from seeking an abortion at all was “troubling.” 505 U.S. at 885–86.

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Were there no public health crisis, then, the analysis would be relatively straightforward: by banning all procedural abortions for a three-week period—limited by only a vague, undefined exception for women who needed the abortion to avoid facing “serious adverse health consequences”—EO-25 placed “a substantial obstacle in the path of” Tennessee women attempting to obtain a procedural abortion during that time period, and thus constituted an undue burden. Casey, 505 U.S. at 878. Indeed, as the evidence presented in the district court elucidated, depending on the stage of a woman’s pregnancy, EO-25 functioned not just as a “delaying regulation,” the likes of which are generally reviewed under Casey’s undue burden standard, but also as an outright ban on pre-viability abortion, which would unquestionably be verboten under Casey and Roe. And if that weren’t enough, the women affected by EO-25 (and the Plaintiff providers) do not know if EO-25 will even end on April 30, thus making the burden of “planning ahead”—a necessity for a time-sensitive procedure like abortion—all the more crushing. Suffice it to say, in normal times there is no way that a measure like EO-25 would pass constitutional muster.11
But, of course, we are not living in normal times; we are living in pandemic times. And so the State points us to Jacobson v. Massachusetts, 197 U.S. 11 (1905), a century-old case in which the Supreme Court held that a city faced with the risk of a viral outbreak could require all of its adult residents to be vaccinated against that virus. See Appellant Br. at 12 (contending that “Jacobson establishes the legal framework for judicial review of the State’s exercise of its police power during public-health emergencies”). Jacobson is an important case, and it is unfortunate that the district court did not address it until it issued its order denying Tennessee’s request for a stay. See R.252 at Page ID #6267–68 (analyzing Jacobson in denying stay). But we are not convinced that this matters because even if Jacobson’s more state-friendly standard of review is

11True, the Supreme Court has long permitted states to enact parental consent regulations, which can sometimes have the effect of delaying an abortion for a weeks-long period. See, e.g., Garza v. Hargan, 874 F.3d 735, 755 (D.C. Cir. 2017) (en banc) (Kavanaugh, J., dissenting) (making this point). But to the extent parental consent laws have a delaying effect, that is for reasons outside a state’s control. The permissibility of such regulations in no way suggests that the Supreme Court would countenance a state-mandated three-week delay period, at least in ordinary circumstances.
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the test we should be applying here—rather than the usual Roe/Casey standard—we still think that Plaintiffs are likely to succeed on the merits of their constitutional claim.
In Jacobson, the Supreme Court affirmed the imposition of a five-dollar criminal fine12 on a Cambridge, Massachusetts resident who refused to comply with the city’s mandatory vaccination regime, which Cambridge had enacted in response to a smallpox outbreak. The resident then appealed his conviction to the Supreme Court, arguing that the mandatory vaccination statute was unconstitutional. Although the Court acknowledged that the statute unquestionably impinged on the resident’s individual autonomy, cf. Guertin v. State, 912 F.3d 907, 918–22 (6th Cir. 2019) (discussing the Fourteenth Amendment right to bodily integrity), the Court ultimately found that the statute was justified on public health grounds, and emphasized that the safety and importance of vaccines “[w]hile not accepted by all,” were “accepted by the mass of the people, as well as by most members of the medical profession.” 197 U.S. at 34 (citation omitted). And in explaining the standard of review courts should employ when confronted with such a public health measure, the Court held as follows:
If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.
Id. at 31 (emphasis added).
Leave aside the myriad factual differences between this case and Jacobson—asking a person to get a vaccination, on penalty of a small fine, is a far cry from forcing a woman to carry an unwanted fetus against her will for weeks, much less all the way to term—and the challenge of reconciling century-old precedent with the Supreme Court’s more recent constitutional jurisprudence. The bottom line is that, even accepting Jacobson at face value, it does not substantially alter our reasoning here. As of today, a woman’s right to a pre-viability abortion is

12Approximately $140, adjusted for inflation.

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a part of “the fundamental law.” And, for the reasons set forth above, EO-25, at least in some applications—most notably, those that would prevent a woman from exercising her right in-state altogether, or would require her to undergo a more invasive and costlier procedure that she otherwise would have—constitutes “beyond question, a plain, palpable invasion of rights secured by [that] fundamental law.”
More still, although mandatory vaccination clearly had a “real” and “substantial” relation to the state’s public health goals in Jacobson—indeed, as the Supreme Court emphasized, the importance of vaccination was widely accepted by the medical community—it is much harder to discern that relation here, given the paltry amount of PPE saved, and limited amount of in-person contact avoided, by halting procedural abortions for a three-week period (not to mention the lack of expert medical opinion in support of the State’s position). And although the State cites language in Jacobson stating, “[i]t is no part of the function of a court or a jury to determine which one of two [responses] [is] likely to be most effective for the protection of the public against disease,” id. at 30—and suggests that this means we must defer uncritically to the State’s ipse dixit that a threeweek bar on procedural abortions is necessary to save critical PPE and preclude risky interpersonal contact, see supra at 9—neither Jacobson in particular, nor Supreme Court abortion precedent in general, requires such abdication. See, e.g., Jacobson, 197 U.S. at 34–38 (discussing the voluminous medical evidence in support of vaccination); Hellerstedt, 136 S. Ct. at 2310 (noting that uncritical deference to a legislature’s factual findings regarding abortion is inappropriate).
The dissent disagrees with us on this last point, arguing that the State’s three-week bar on procedural abortions does have a “real and substantial relationship to the current pandemic,” and, indeed, that, if we don’t allow that bar to go into effect, “doctors, nurses, and first responders will die . . . .” Dissent at 29, 31. But the dissent roots these bold assertions in nothing more than the State’s say-so. The Center for Disease Control and Prevention (“CDC”) webpage the dissent cites certainly does not support the State’s position. That webpage simply recommends that U.S. healthcare facilities preserve PPE and cancel “elective and non-urgent procedures/appointments”; it says absolutely nothing about abortion. Id. at 29. And the State has never, at any point in this litigation, attempted to support its policy choice with expert or medical evidence. See supra at 10. This is unsurprising because, as far as we can tell, every serious medical or public health

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organization to have considered the issue has said the opposite. See, e.g., supra at 8 n.7 (citing statements signed by over a dozen leading medical organizations). So, in our view, the dissent’s position is not so much deference as it is abdication.
Of course, we do not mean to suggest that abortion rights during a public health crisis are identical to abortion rights during normal times. If Jacobson teaches us anything, it is that context matters. And as noted in Section B, infra, we have tried to accommodate for that context here. What we will not countenance, however, is the notion that COVID-19 has somehow demoted Roe and Casey to second-class rights, enforceable against only the most extreme and outlandish violations. Such a notion is incompatible not only with Jacobson, but also with American constitutional law writ large. See generally, e.g., Ex Parte Milligan, 71 U.S. 2, 76 (1866) (“The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”).
We conclude by acknowledging that orders analogous to EO-25 have generated a flood of litigation the past few weeks, and that judges across the country have reached differing conclusions as to the orders’ legality. Compare, e.g., In re Rutledge, No. 20-1791 (8th Cir. Apr. 22, 2020); In re Abbott, ---F.3d ---, 2020 WL 1911216 (5th Cir. Apr. 20, 2020); In re Abbott, 954 F.3d 772 (5th Cir. 2020), with Robinson v. Attorney General, --- F.3d ---, 2020 WL 1952370 (11th Cir. Apr. 23, 2020); In re Abbott, 2020 WL 1911216, at *18–30 (Dennis, J., dissenting); In re Rutledge, No. 201791, slip op. at 24 (Loken, J., dissenting); South Wind Women’s Ctr., LLC v. Stitt, 2020 WL 1932900 (W.D. Okla. Apr. 20, 2020) (Goodwin, J.). Given the speed at which this issue is developing, we decline to address these other opinions in detail; suffice it to say, it is clear that there exists profound, but good faith, disagreement as to the constitutional questions involved. We will note, however, that the Texas executive order underlying the recent Fifth Circuit decision—a decision the State cites repeatedly in its brief here—is fundamentally different than EO-25. This is because the Texas order contains an important caveat permitting doctors to perform procedures that, in their clinical judgment, “would not deplete the hospital capacity or the [PPE] needed to cope with the COVID-19 disaster.” In re Abbott, 954 F.3d at 780; see also In re Abbott, 2020 WL 1911216, at *30 (Dennis, J., dissenting) (noting that the plaintiff abortion providers there had

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“represented that all of their abortion care will fall” under this exception). EO-25, by contrast, contains no such caveat, other than the “serious adverse health consequences” exception mentioned above. But because a woman could plainly have her right to an abortion undermined without her suffering “serious adverse health consequences”—indeed, if a woman is forced to undergo an unwanted, but otherwise healthy, pregnancy as a result of EO-25 she would presumably fall outside the exception’s scope—this narrow provision does not save EO-25’s constitutionality.
In sum, Plaintiffs are likely to succeed on the merits of their constitutional claim.
2.
We now address the remaining three preliminary injunction factors, in turn.
Irreparable Harm. This is not a case that can be remedied with money damages, or a posthoc apology. Rather, if Tennessee is allowed to enforce EO-25 in the sweeping manner that it desires, any woman in Tennessee who wishes to have a procedural abortion during the relevant time period stands at risk of losing her constitutional rights, or at least of incurring substantial physical, emotional, and financial harms en route to exercising those rights; this is especially so for the low-income women who disproportionately seek out abortions and who have been disproportionately harmed by the economic downturn generated in COVID-19’s wake. And Plaintiffs are at risk of criminal prosecution if they attempt to help their patients exercise that right.13

13To be sure, as the State emphasized in the district court, and as the dissent hammers home here, Plaintiffs have not pointed to specific patients who would be irreparably harmed by EO-25. But cf. R.248-1 (Chism Aff.) (Page ID #6168–72) (affidavit filed after the district court issued its injunction, in which a Knoxville woman who was 13 weeks LMP at the time EO-25 went into effect explained how she risked losing her ability to obtain any abortion in Tennessee as a result of the Order). But given the rapid timeline under which Plaintiffs were operating, and the obvious reality that any Tennessee woman who would like to have a procedural abortion during the month of April would be impacted by EO-25, we can forgive Plaintiffs for not being hyper-specific. And, in any event, Plaintiffs provided evidence that hundreds of women in any given month seek procedural abortions because they are past the point where medication abortion is an option, and that they (Plaintiffs) had to cancel specific procedural abortion appointments because of EO-25, including some where the woman was literally at the clinic. See supra at 3–4, 5–6. All of this is to say, there is no reason to think that, in April 2020, Tennessee women suddenly stopped deciding to have procedural abortions. Moreover, as Plaintiffs’ amici make clear, the medical risks at stake are anything but speculative. See, e.g., Br. of Am. Public Health Ass’n at 2–7.

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Balance of Harms. That Plaintiffs have pointed to concrete threats to constitutional liberty and bodily autonomy does not guarantee them an injunction, of course. Rather, we must “balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24 (emphasis added) (quoting Amoco, 480 U.S. at 542). Here, though, we find the “competing claims of injury” cited by the State to be speculative and abstract; they do not outweigh the tangible harms EO-25 risks wrecking on Plaintiffs and their patients.
Most potently, the State raises the specter of further COVID-19 contamination—and the accordant risk of yet more Tennesseans dying from the disease—saying that such harms are “certain to occur” if procedural abortions are allowed to take place. Appellant’s Br. at 24; see also R.240 (Defs.’ Opp. Br.) (Page ID #6019–20) (“Every procedure that is postponed, and every item of PPE that is preserved, furthers the State’s compelling interests in halting the spread of COVID19 and ensuring our healthcare system is equipped to treat—and prevent the death of—those who are infected.”). We cannot gainsay the threat posed by COVID-19; as we stated at the outset of the opinion, these are extraordinary times calling for extraordinary measures. But, with respect to just those procedural abortions affected by the district court’s injunction (as modified below), the State’s proffered harm is purely speculative. As the district court noted, the State presented “no evidence that any appreciable amount of PPE would actually be preserved if EO-25 is applied to procedural abortions,” and the State has not remedied that shortcoming on appeal. Adams & Boyle, P.C., 2020 WL 1905147, at *6; see also supra at 16–17 (further discussing the lack of medical evidence in support of the State’s position).
In response, the State suggests that if we permit this one exemption, surely the jointreplacement surgeons, the cataract-removal specialists, and every other medical provider affected by EO-25’s bar on elective procedures will follow, with similar “minimal impact” arguments in tow. Cf. Pre-Term Cleveland v. Attorney General of Ohio, 2020 WL 1673310, at *4 (6th Cir. Apr. 6, 2020) (Bush, J., concurring) (deeming this “a serious free rider” problem). But this contention fails to appreciate that abortion is fundamentally different than a hip replacement or a cataract removal: not only is abortion entitled to explicit constitutional protection, but also, as the district court appropriately recognized, it is a uniquely “time-sensitive procedure,” both as a biological

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matter and a regulatory matter. Adams & Boyle, P.C., 2020 WL 1905147, at *6. After all, how many other elective procedures have mandatory 48-hour waiting periods beforehand, and are available in only four cities state-wide? So if there is a slippery slope here, we fail to see it.
Tennessee also emphasizes that a state’s “sovereignty is irreparably harmed anytime action taken by its democratically elected leaders is enjoined,” and argues that we should take account of that harm here. Appellant Br. at 24 (citing Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018)). But as we stressed at the outset of this opinion, we have taken that harm into account. And, in the particular circumstances of this case, we find that the affront the Governor of Tennessee will suffer from having one small part of a limited-duration executive order enjoined (which itself is just one piece of a much more comprehensive state policy) is far outweighed by the harm the individual Tennessee women affected by that order will suffer if it is given full effect.
The Public Interest. We need not say much on this point. As the district court correctly observed, “it is always in the public interest to prevent violation of a party’s constitutional rights.” Deja Vu of Nashville, Inc. v. Metro Gov’t of Nashville & Davidson Cty., Tenn., 274 F.3d 377, 400 (6th Cir. 2001) (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)).
* * *
For these reasons, the district court did not abuse its discretion in granting a preliminary injunction.
B.
This leaves one final matter: the scope of the district court’s injunction. As noted above, the district court’s order is just one sentence long: “Defendants are hereby immediately enjoined from enforcing EO-25 as applied to procedural abortions.” The State argues that this perfunctory order is overbroad, and that the district court failed to “tailor its injunctive relief” to the burdensome situations actually identified by Plaintiffs. Appellant Br. at 21; compare with, e.g., Robinson, 2020 WL 1952370, at *8 (in the course of denying state’s request for a stay on appeal,

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citing with approval the district court’s “narrowly tailored” preliminary injunction); cf. Pre-Term Cleveland, 2020 WL 1673310, at *1 (similar conclusion, in TRO context).
On this point, we agree with the State. As explained earlier, because a preliminary injunction is an extraordinary remedy, a district court must be careful to “limit the solution to the problem.” Ayotte, 546 U.S. at 328–29. And, here, the undue burden problem identified by Plaintiffs encompassed three classes of patients, which Plaintiffs helpfully identified in their district court brief seeking injunctive relief:
(1) patients who, in the good faith professional judgment of the provider, will likely lose their ability to obtain an abortion in Tennessee if their procedures are delayed until after April 30, 2020;
(2) patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a lengthier and more complex abortion procedure, which is only available at two clinics in Nashville and Memphis, if their procedures are delayed until after April 30, 2020; [and]
(3) patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a two-day procedure—which is only available at two clinics in Nashville and Memphis, and which requires at least three separate visits to the provider—if their procedures are delayed until April 30, 2020.
R.232 (Pls.’ Preliminary Inj. Br.) (Page ID #5783).
Consequently, we direct the district court to modify its injunction so that it enjoins the State from enforcing EO-25 against Plaintiffs to the extent they provide procedural abortions to these three categories of patients. And, to be clear, this second category of patients includes women who, in the good faith professional judgment of the provider, will likely be forced to undergo a D&E procedure instead of an aspiration procedure if their procedures are delayed until after April 30, 2020.
To the extent that Plaintiffs work with patients who can safely delay their procedural abortions past EO-25’s April 30 expiration date, in a manner commensurate with the aforementioned criteria, however, Plaintiffs must comply with EO-25 and delay those particular procedures. To rule otherwise would be to grant Plaintiffs a wholesale exemption from the public health dictates of EO-25, which, per our earlier discussion, Jacobson cautions against.

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III. CONCLUSION
For these reasons, we AFFIRM the district court order issuing a preliminary injunction but direct the district court to MODIFY the preliminary injunction in the manner set forth above. We leave it to the district court to address any further developments in the first instance.

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_________________
DISSENT _________________
THAPAR, Circuit Judge, dissenting. Even in ordinary times, the district court’s injunction in this case would be deeply flawed. But these are no ordinary times. In the midst of a once-in-acentury pandemic, the district court broadly enjoined the State of Tennessee from enforcing a measure at the heart of the State’s response. In doing so, the court committed numerous legal errors, made hardly any factual findings, issued an overly broad injunction, and brazenly substituted its own policy views for those of the elected officials who are actually fighting the pandemic. All because the district court thought that a three-week delay for certain abortions might prevent some unidentified person from having an abortion. Most cases of judicial aggrandizement have costs. But in few are the potential costs so great. I would reverse.
I.
Two weeks ago, the Governor of Tennessee issued an executive order—based on guidance from various medical organizations—in response to the COVID-19 pandemic. The Governor’s order explains the critical importance of conserving what’s known as “personal protective equipment” (e.g., face masks, gloves, protective clothing) and therefore directs “[a]ll healthcare professionals and healthcare facilities” in the State to “postpone surgical and invasive procedures that are elective and non-urgent.” The order defines “elective and non-urgent” procedures as those that “are not required to provide life sustaining treatment, to prevent death or risk of substantial impairment of a major bodily function, or to prevent rapid deterioration or serious adverse consequences to a patient’s physical condition if the surgical or invasive procedure is not performed, as reasonably determined by a licensed medical provider.” The order will expire just after midnight on April 30, 2020—less than six days from now and exactly three weeks after it took effect.
Within days of the Governor’s announcement, the plaintiffs in this case—abortion providers in Tennessee—moved to “supplement” a five-year old complaint (six months after trial) to seek a temporary restraining order or preliminary injunction. The plaintiffs argued that the

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executive order prohibits most “surgical abortions” in the state and thus will prevent their clients from obtaining an abortion.
A mere four days later, the district court granted the motion to supplement and entered a preliminary injunction, enjoining the enforcement of the executive order as to all surgical abortions in Tennessee. The court’s analysis of why the plaintiffs were likely to succeed on the merits consisted of two paragraphs. The State then appealed. (Despite the breadth of its ruling, the district court recently denied a stay pending appeal.)
II.
The State now asks us to stay the district court’s decision pending appeal and ultimately to reverse the preliminary injunction. Both requests involve the same basic factors: (1) who is likely to prevail on the merits; (2) whether the moving party is likely to suffer irreparable harm in the interim; (3) what is the balance of harms; and (4) where does the public interest lie. See Fowler v. Benson, 924 F.3d 247, 256 (6th Cir. 2019); Serv. Emps. Int’l Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012) (per curiam). The plaintiffs’ failure to show a likelihood of success on the merits would itself warrant reversal. See, e.g., Fowler, 924 F.3d at 259–60. But the other factors counsel the same outcome. And even if the district court was correct to grant a preliminary injunction (it was not), these same factors show that the injunction was much broader than permitted under the law.
Success on the Merits. Start with the plaintiffs’ likelihood of success on the merits. The basic question is whether the executive order places an “undue burden” on a woman’s ability to have an abortion. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992). As the modifier “undue” suggests, not just any “incidental effect . . . making it more difficult or more expensive” to have an abortion will do. Id. Rather, the state regulation must create a “substantial obstacle” for women seeking an abortion. Id. at 877. But importantly, we do not consider any burden in isolation. Instead, we must consider “the burdens a law imposes on abortion access together with the benefits those laws confer” and then “weigh[] the asserted benefits against the burdens.” Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309, 2310 (2016) (emphasis

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added). In short, the plaintiffs must show that the order imposes a burden and that this burden outweighs the order’s asserted benefits.
Given this framework, the district court committed two fundamental errors. First, it failed to make the necessary factual findings to show that the executive order imposes a burden on anyone’s rights. Second, the court failed even to acknowledge the benefits of the executive order and thus necessarily failed to balance its speculative burden against these benefits. Either error would warrant reversal. Together, they certainly do.
Begin with the burden. The district court failed to make specific findings about whether the executive order creates a “substantial obstacle” for women seeking an abortion. See Casey, 505 U.S. at 874. At most, the district court pointed out that the executive order will delay certain abortions for three weeks. But that doesn’t take the plaintiffs very far. Both the Supreme Court and our court have upheld laws that have the effect of delaying abortions for days or even weeks. See, e.g., Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 514 (1990) (up to three-week delay); Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361, 366, 372–74 (6th Cir. 2006) (up to two-week delay). Indeed, for the last forty years, the Supreme Court has “repeatedly upheld a wide variety of abortion regulations that entail some delay in the abortion.” Garza v. Hargan, 874 F.3d 735, 755–56 (D.C. Cir. 2017) (en banc) (Kavanaugh, J., dissenting) (collecting cases). The district court failed to grapple with any of these precedents. Its silence speaks volumes.
(For its part, the majority tries to distinguish these cases by saying those delays were outside the state’s control. It doesn’t offer any support for this distinction. But more importantly, the distinction seems to assume that a once-in-a-century pandemic is within a state’s control.)
To be clear, the district court enjoined a version of the order that didn’t exist. It acted as if the State had banned most pre-viability abortions. But that’s just not the case. Tennessee law generally allows women to seek an abortion until the twentieth week of their pregnancy. See Tenn. Code Ann. §§ 39-15-211, -212. So any woman who was less than seventeen-weeks pregnant when the order went into effect would still have time to seek an abortion after the order expires.
The plaintiffs speculate that there might be women out there who were more than seventeen-weeks pregnant when the order was issued and who will now be unable to obtain an

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abortion in Tennessee. (Or who otherwise would be unable to obtain an abortion for some reason.) But speculation usually doesn’t count for much. See, e.g., Mazurek v. Armstrong, 520 U.S. 968, 972–74 (1997) (per curiam). And there’s no reason it should have counted for so much here. Make no mistake—the burden was on the plaintiffs to bring forward concrete evidence (1) that such women exist, (2) that they want an abortion, and (3) that they would be unable to obtain one. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The majority claims a snippet of evidence supports this concern—an affidavit that vaguely states that “some patients” will be prevented from obtaining an abortion under the executive order. R. 232-5, Pg. ID 5887. But the district court didn’t make any factual findings on this front. Nor do the plaintiffs even cite this evidence on appeal.
Not only that. No one—not the plaintiffs, not the district court, not even the majority— has made any effort to quantify how this hypothetical pool of women relates to the broader pool of women affected by the order—as binding precedent requires. See Gonzales v. Carhart, 550 U.S. 124, 167–68 (2007); Cincinnati Women’s Servs., 468 F.3d at 367–68 (explaining that courts must consider whether a restriction will operate as a “substantial obstacle” in “a large fraction of the cases in which the abortion restriction is relevant” (cleaned up)). In fact, the State points out that the vast majority of abortions in Tennessee occur before the seventeenth week of pregnancy. The plaintiffs haven’t offered any evidence in response. So even if speculation were the stuff of winning legal claims, plaintiffs still haven’t made the proper showing.
But we aren’t even done with speculation. The plaintiffs (and now the majority) say that the Governor of Tennessee might extend the executive order beyond the current three-week period. This is a smart move—it makes a short, finite burden look like an indefinite one, exaggerating its severity. The problem is that the Governor hasn’t said he will impose any restrictions on medical procedures after April 30, which is when the order in this case expires. If the Governor issues a new order limiting surgeries beyond that date, it is possible that he will extend the existing restrictions—but it is just as likely that the new order will contain a different and perhaps more tailored set of restrictions. The majority simply assumes it will be the former. Based on what? The plaintiffs and majority point to a statement by the Surgeon General of the United States about extending certain public-health measures. But in this country, federal officials don’t speak on

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behalf of state leaders. And again, the plaintiffs haven’t pointed to any evidence about what the Governor of Tennessee will do. As the crisis facing our country continues to develop, so too will government responses. And those who have problems with those responses must wait until actual and imminent harms arise. See, e.g., D.T. v. Sumner Cty. Schs., 942 F.3d 324, 327 (6th Cir. 2019). Federal courts are not in the business of issuing advisory opinions, let alone advisory injunctions.
All that is reason enough to reverse. But the district court also committed another fundamental error: it entirely failed to balance these purported burdens against the executive order’s benefits. See Whole Woman’s Health, 136 S. Ct. at 2309. The court didn’t even mention the benefits of the order in its “undue burden” analysis. That flatly contradicts Supreme Court precedent, which “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Id. Count that as another error warranting reversal.
Perhaps the district court didn’t perform this balance because it couldn’t do so. How does one balance a harm to some unspecified number of people? The district court didn’t tell us and the majority doesn’t either.
One could stop there. But in fact, Tennessee’s interests in protecting its citizens from the pandemic cannot be overstated. All agree that these are far from ordinary times. Over the past few weeks, our entire nation has come together to combat a generation-defining crisis. Many have done so at great personal sacrifice.
In Tennessee, as in so many other states, the Governor has taken extraordinary steps to fight the pandemic. He declared a state of emergency, required all residents to remain at home except in limited circumstances, and ordered the closure of most businesses. As part of that effort, he also signed the generally applicable order at issue here. The Governor’s order allowed the state to conserve valuable personal protective equipment for those fighting the coronavirus. The order protects those who have undertaken perhaps the greatest personal sacrifice in protecting the citizens of Tennessee. There’s no reason to doubt that the Governor took these measures because “the safety of the general public” demanded it. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 29 (1905).

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Our law has long-protected just these types of decisions from judicial interference based on purported violations of substantive due process. In times of emergency, elected officials need room to do what they were elected to do—to govern. Sometimes their actions will incidentally impact a person’s liberty interests. But the Supreme Court has upheld such actions anyway, explaining that “[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [person or property], . . . regardless of the injury that may be done to others.” Id. at 26. And there’s no abortion exception to this wellsettled principle. To the contrary, the Supreme Court has made clear from the beginning that the ability to obtain an abortion is neither “absolute” nor “unlimited.” Roe v. Wade, 410 U.S. 113, 154 (1973) (citing Jacobson, 197 U.S. 11).
Of course, this does not mean that the courts should rubber stamp emergency measures— far from it. See Jacobson, 197 U.S. at 28–29. But it does mean that judges should act with care during such times, recognizing the limits of our knowledge, institutional capacity, and lawful authority. See id. at 30–31; cf. Gonzales, 550 U.S. at 163 (explaining that the Supreme Court has “given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty”).
Remarkably, the district court failed to acknowledge—let alone apply—these principles before it granted the injunction. Nor did it acknowledge the State’s heightened interests during times of emergency. Based on its decision, one might think that the executive order would be unconstitutional no matter how many lives it could save and no matter how few—if any— abortions it might prevent. Even the majority calls this omission “unfortunate.”
In a subsequent order denying a stay pending appeal, the district court seems to have recognized that it erred by ignoring the State’s primary legal authority for its position, Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). But rather than correct its mistake, the court doubled down, finding the facts of Jacobson to be readily “distinguishable” from the facts of this case. In doing so, the district court overlooked the basic principle of Jacobson: that states may respond to emergencies in the face of substantive-due-process rights, so long as they act reasonably and don’t single out specific rights or persons for disfavored treatment. See id. at 28– 30.

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No one claims that the State of Tennessee has singled out specific rights or persons in its response to the current pandemic. The executive order in this case applies to all non-essential medical procedures. And again, the Governor has issued several other orders that apply to all persons and that affect every aspect of daily life across the state.
Nor have the plaintiffs shown that the State has acted unreasonably in requiring its residents to postpone non-essential medical procedures for a three-week period. Just contrast this case with the facts of Jacobson, where the Supreme Court upheld a state’s authority to forcibly vaccinate individuals. See id. at 27–30. If the State can physically invade a person’s body in response to an emergency, then it surely may require people to delay certain medical procedures for the same purpose.
On these points the majority, for its part, is conclusory: it does little more than assert that the executive order “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Jacobson, 197 U.S. at 31. Given that plaintiffs haven’t established a constitutional violation in the first place, they certainly haven’t done so “beyond all question.”
The majority also dismisses the State’s interests on the ground that the executive order has no “real” and “substantial” relationship to the current pandemic. Id. That claim is remarkable given that the order follows recommendations from our nation’s leading public-health institution. See Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Strategies to Optimize the Supply of PPE and Equipment (last visited Apr. 24, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/index.html (explaining that equipment “shortages are currently posing a tremendous challenge to the US healthcare system” and recommending the cancellation of “elective and non-urgent procedures/appointments”). Plus, Jacobson clearly tells us that it’s “no part of the function of a court or a jury to determine which one of two modes [is] likely to be the most effective for the protection of the public against disease.” 197 U.S. at 30. The majority doesn’t explain why our court is an exception to that rule. And the amicus briefs the majority cites to discredit the State’s rationale for the executive order “are more formidable by their number than by their inherent value.” Id. One need only open a newspaper to appreciate the importance of preserving medical equipment at this time. So if nothing else, Jacobson forecloses the plaintiffs’ claim.

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Irreparable Harm. Consider next what (if any) irreparable harm the plaintiffs will suffer without an injunction. To be clear, the plaintiffs don’t claim that they themselves will suffer any irreparable harm. Rather, the plaintiffs assert that the women they purport to represent will suffer irreparable harm without an injunction. But cf. Gee v. June Med. Servs. L.L.C., 140 S. Ct. 35 (2019) (Mem.) (granting certiorari to consider whether traditional third-party standing rules apply in abortion cases).
The district court reasoned that the plaintiffs had established an irreparable injury because it thought that the executive order would prevent some women in Tennessee from having an abortion. But again the district court failed to make any factual findings showing that the order would prevent any particular woman from obtaining an abortion. To satisfy the irreparable-injury requirement, parties must demonstrate “likely” harm. Winter, 555 U.S. at 22. And the plaintiffs offer only speculation.
The district court also asserted that delays in the provision of abortions might irreparably harm some women by making their abortions more dangerous. But this argument stands in stark contrast with the claim that “[a]bortion is one of the safest medical procedures performed in the United States.” Whole Woman’s Health, 136 S. Ct. at 2320 (Ginsburg, J., concurring) (citation omitted). In fact, the plaintiffs themselves say that “abortion is extremely safe throughout pregnancy.” Plaintiffs Br. at 5. Is it an irreparable injury for a medical procedure to be only “extremely safe”? But again the district court addressed none of these facts on its way to its destination.
Meanwhile, the executive order allows doctors to perform an abortion when a woman would suffer “serious adverse consequences to [her] physical condition” without the surgery “as reasonably determined by a licensed medical provider.” The plaintiffs haven’t made any effort to explain why this exception (which contains built-in deference to medical professionals) would not give them the flexibility they need during this time of national crisis. And again, it was the plaintiffs’ burden to show that the executive order (with its exception) causes an irreparable injury. They failed to do so.

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Balance of Harms. Consider also the irreparable harms created by the district court’s injunction. Of course, a state always suffers irreparable injury when it’s wrongfully enjoined from enforcing one of its laws. See Abbott v. Perez, 138 S. Ct. 2305, 2324 & n.17 (2018); Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers). But that’s far from the only harm here. The Governor issued the executive order to preserve critical medical equipment. Every piece of equipment used for something besides the pandemic response could cost a life—the life of someone who acts selflessly to help others in a time of crisis. Simply put: doctors, nurses, and first responders will die without proper equipment. And that’s to say nothing of their family members, whose lives will be put at risk too. Given the twin risks of exponential community spread and hospital overload, every additional infection among first responders represents a significant threat to public health. It’s hard to imagine a scenario in which the harm imposed by an injunction would be greater.
The district court brushed off these concerns, saying the plaintiffs have already taken measures to reduce their use of medical equipment during surgical abortions. The district court apparently thought that the State would be harmed only if surgical abortions used an “appreciable amount” of medical equipment. (The Majority seems to think the same.) But neither the district court nor the Majority is in any position to second-guess the Governor’s judgment as to the amount of equipment that is really necessary to keep healthcare workers alive.
The district court also asserted that the executive order would be counterproductive for various policy reasons. Again the district court’s (and now the majority’s) willingness to constitutionalize its own policy judgments—in the midst of a national emergency no less—is remarkable. If anything has remained constant over the past hundred years of constitutional law, it’s that courts aren’t supposed to second guess policymakers based on their own subjective judgments of what makes for good policy. See, e.g., Perry v. Perez, 565 U.S. 388, 394 (2012) (per curiam) (noting that courts must exercise care not to displace “legitimate state policy judgments with the court’s own preferences”). All the more when our elected officials are tasked with making difficult decisions under conditions of uncertainty, risk, and imperfect information. See Jacobson, 197 U.S. at 30–31.

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The district court and majority also note that some women might travel to other states to have an abortion and that this might further aggravate the current pandemic. But neither the plaintiffs nor the district court nor the majority have pointed to a single person who said she would need to travel to another state to get an abortion. So again this is nothing more than speculation.
Public Interest. This factor points in the same direction. See Nken v. Holder, 556 U.S. 418, 435–36 (2009); Winter, 555 U.S. at 24–26. Plainly the public interest is served by a state’s ability to enforce a regulation whose purpose and effect is to save the lives of healthcare workers. The district court and majority assert that the public interest favors a preliminary injunction because it’s always in the public interest to prevent the violation of constitutional rights. See, e.g., Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 222 (6th Cir. 2016) (per curiam). That reasoning would have more force if the plaintiffs or district court had shown that the regulation actually violates any constitutional rights. But again the majority’s reasoning is only conclusory.
Scope of the Injunction. Finally, the district court plainly erred in defining the injunction’s scope. Preliminary injunctions are an “extraordinary remedy.” Winter, 555 U.S. at 24. That means courts that shouldn’t grant them based on speculative harms, which is what the district court did here; and that “the scope of relief should be strictly tailored to accomplish only that which the situation specifically requires.” Sharpe v. Cureton, 319 F.3d 259, 273 (6th Cir. 2003) (citation omitted). As the Supreme Court put it, “[i]t is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop.” Gonzales, 550 U.S. at 168. And an injunction’s proper scope becomes all the more important in cases involving government officials—and especially in cases where, as here, federal courts enjoin them. See Rizzo v. Goode, 423 U.S. 362, 378–80 (1976); see also Gonzales, 550 U.S. at 168 (“It would indeed be undesirable for [courts] to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.” (cleaned up)).
But again the district court disregarded these well-settled legal principles. The district court’s injunction doesn’t just apply to women who might lose their ability to have an abortion before Tennessee’s twenty-week deadline; it applies to all women who seek a surgical abortion—

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no matter their ability to obtain an abortion after the order expires. Injunctions should be aimed with rifle-scope precision. The district court here used a twelve-gauge.
The majority does acknowledge at least this error and tries to remedy it on appeal. But in doing so, the majority doesn’t fix the problem and also creates a problem of its own: it creates three “classes” of women—all of them amorphous, and thus likely to sow confusion going forward. In effect, the majority has certified a class under Rule 23(b)(2) without any request to do so or any effort to comply with the Federal Rules. Nor does the majority explain why the executive order unduly burdens most of the putative class. It simply announces that the injunction will apply to them.
The district court’s errors here are not unprecedented: Two other circuits have recently encountered similar district court decisions, and both circuits promptly corrected them—in one case twice. See In re Rutledge, No. 20-1791, 2020 WL 1933122 (8th Cir. Apr. 22, 2020); In re Abbott, No. 20-50296, 2020 WL 1911216 (5th Cir. Apr. 20, 2020); In re Abbott, 954 F.3d 772 (5th Cir. 2020). But cf. Robinson v. Att’y Gen., No. 20-11401-B, 2020 WL 1952370, at *4 (11th Cir. Apr. 23, 2020) (denying a stay pending appeal in “an atypical case” because, among other things, the state “concede[d] that the substance of the district court’s preliminary injunction is consistent with its own . . . interpretation of [its executive order]”). We should have done the same.
***
To sum up: the district court granted an injunction without much effort to apply the relevant law, without specific factual findings, and without any attempt to tailor the remedy to the purported constitutional violation. If that doesn’t count as an abuse of discretion, I don’t know what would. I respectfully dissent.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 20-5408

ADAMS & BOYLE, P.C. et al., Plaintiffs - Appellees,
v.
HERBERT H. SLATERY III et al. Defendants - Appellants.

FILED
Apr 24, 2020
DEBORAH S. HUNT, Clerk

Before: MOORE, WHITE, and THAPAR, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court for the Middle District of Tennessee at Nashville.
THIS CAUSE was submitted to the court on the motion and reply of Appellants, the response of Appellees, and the briefs of Amici Curiae.
IN CONSIDERATION THEREOF, it is ORDERED that the district court’s order issuing a preliminary injunction is AFFIRMED with the MODIFICATION set forth in the opinion of this court.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

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 No. 20-5408
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ______________
ADAMS & BOYLE, P.C., et al., Plaintiffs-Appellees
v.
HERBERT H. SLATERY III, Attorney General and Reporter, et al., Defendants-Appellants
______________
On Appeal from the United States District Court for the Middle District of Tennessee (No. 3:15-cv-00705)
EMERGENCY PETITION FOR REHEARING EN BANC AND ADMINISTRATIVE STAY

HERBERT H. SLATERY III Attorney General and Reporter of the State of Tennessee
ANDRÉE S. BLUMSTEIN Solicitor General

SARAH K. CAMPBELL Associate Solicitor General Counsel of Record
BRANDON SMITH Assistant Solicitor General
STEVEN A. HART Special Counsel
ALEXANDER S. RIEGER MATTHEW D. CLOUTIER
Assistant Attorneys General P.O. Box 20207 Nashville, TN 37202 (615) 532-6026 Sarah.Campbell@ag.tn.gov

TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION .....................................................................................................1 STATEMENT OF FACTS ........................................................................................3
I. COVID-19 Presents a Grave Danger to the Public...............................3 II. Tennessee Responds to the COVID-19 Pandemic................................4 III. The District Court Gives Abortion Providers an Exemption from
EO-25, and a Divided Panel of This Court Affirms. ............................6 ARGUMENT ...........................................................................................................10
I. The Panel Majority Opinion Contravenes Supreme Court Precedent and Creates a Circuit Split...................................................................10
II. This Case Presents Questions of Exceptional Importance..................16 CONCLUSION ........................................................................................................19
i

TABLE OF AUTHORITIES

Page(s)

Cases

In re Abbott, --- F.3d ---, No. 20-50296, 2020 WL 1911216 (5th Cir. Apr. 20, 2020) ............................................................................14, 15, 3

In re Abbott, 954 F.3d 772 (5th Cir. 2020) ..................................................................10, 14, 16

Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361 (6th Cir. 2006) ..............................................................................12

Coal. for Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435 (6th Cir. 2004) ................................................................................2

FEC v. Wis. Right to Life, 551 U.S. 449 (2007)..............................................................................................2

Gary B. v. Whitmer, --- F.3d ---, Nos. 18-1855, -1871, 2020 WL 1951894 (6th Cir. 2020).....................................................................................................17

Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en banc) (Kavanaugh, J., dissenting).................................................................................12

Gonzales v. Carhart, 550 U.S. 124 (2007)............................................................................................13

Jacobson v. Massachusetts, 197 U.S. 11 (1905).......................................................................................passim

Maryland v. King, 567 U.S. 1301 (2012) (Roberts, C.J., in chambers)............................................16

Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833 (1992)............................................................................................12

ii

Robinson v. Attorney General, --- F.3d --, No. 20-11401-B, 2020 WL 1952370 (11th Cir. Apr. 23, 2020) ....................................................................................15
Roe v. Wade, 410 U.S. 113 (1973)............................................................................................12
In re Rutledge, --- F.3d ---, No. 20-1791, 2020 WL 1933122 (8th Cir. Apr. 22, 2020) ....................................................................10, 15, 16, 17
United States v. Munsingwear, Inc., 340 U.S. 36 (1950)................................................................................................2
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)................................................................................................11
Statutes
Tenn. Code Ann. § 58-2-107(a)(1) ............................................................................4
Other Authorities
ACOG, Abortion Policy: Statement of Policy, https://www.acog.org/ clinical-information/policy-and-position-statements/statements-ofpolicy/2017/abortion-policy................................................................................ 13
American College of Surgeons, COVID-19: Recommendations for Management of Elective Surgical Procedures (Mar. 13, 2020), https://www.facs.org/covid-19/clinical-guidance/elective-surgery ...................... 4
CDC, Cases of Coronavirus Disease (COVID-19) in the U.S., https://www.cdc.gov/ coronavirus/2019-ncov/cases-updates/casesin-us.html (last updated Apr. 24, 2020)................................................................3
CDC, Social Distancing, Quarantine, and Isolation, https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/social-distancing.html ...................................................................................3
CDC, Strategies to Optimize the Supply of PPE and Equipment, https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppestrategy/index.html ...............................................................................................4
iii

CDC, Use Personal Protective Equipment (PPE) When Caring for Patients with Confirmed or Suspected COVID-19, https://www.cdc.gov/coronavirus/2019ncov/downloads/A_FS_HCP_COVID19_PPE.pdf ..............................................3
Centers for Medicare & Medicaid Services, CMS Releases Recommendations on Adult Elective Surgeries, Non-Essential Medical, Surgical, and Dental Procedures During COVID-19 Response (Mar. 18, 2020), https://www.cms.gov/newsroom/pressreleases/cms-releases-recommendations-adult-elective-surgeriesnon-essential-medical-surgical-and-dental ...........................................................4
Exec. Order 14, https://publications.tnsosfiles.com/pub/execorders/exec-orderslee14.pdf ................................................................................................................ 4
Exec. Order 17, https://publications.tnsosfiles.com/pub/execorders/exec-orderslee17.pdf; ..............................................................................................................5
Exec. Order 21, https://publications.tnsosfiles.com/pub/execorders/exec-orderslee21.pdf ................................................................................................................ 5
Exec. Order 22, https://publications.tnsosfiles.com/pub/execorders/exec-orderslee22.pdf; ..............................................................................................................5
Exec. Order 23, https://publications.tnsosfiles.com/pub/execorders/exec-orderslee23.pdf ................................................................................................................ 5
Exec. Order 25, https://publications.tnsosfiles.com/pub/execorders/exec-orderslee25.pdf............................................................................................................5, 6
John Graves, Vanderbilt Health Policy COVID-19 Modeling for Tennessee, https://www.vumc.org/healthpolicy/sites/default/files/public_files/COVID%20 Modeling%20Release%204-10%20FINAL2.pdf .................................................6
iv

Tenn. Dep’t of Health, Coronavirus (COVID-19), https://www.tn.gov/health/cedep/ncov.html (last updated Apr. 24, 2020) .................................................................................3
World Health Organization, Coronavirus (COVID-19), https://covid19.who.int/. .......................................................................................3
v

INTRODUCTION A divided panel of this Court upheld an injunction prohibiting Tennessee from “enforcing a measure at the heart of the State’s response” to COVID-19. Op.23 (Thapar, J., dissenting). That ruling contravenes Jacobson v. Massachusetts, 197 U.S. 11 (1905), creates a circuit split, and usurps the authority of Tennessee’s elected officials. If the majority’s flawed approach stands, States will be hamstrung in responding to the COVID-19 crisis, and the public health will suffer. As Judge Thapar put it in his dissenting opinion, “[m]ost cases of judicial aggrandizement have costs,” but “in few are the potential costs so great” as here. Op.23. The emergency measure at issue is EO-25, an executive order that requires the postponement of all elective and non-urgent surgical and invasive procedures for a three-week period that ends on April 30th. The district court held that the Constitution entitles abortion providers to an exemption from EO-25 and preliminarily enjoined Tennessee from enforcing the order at all against surgical abortions. The panel majority narrowed the injunction only slightly to three amorphous groups of women that in practice will likely include all women. This extraordinary remedy would be an abuse of discretion “even in ordinary times.” Op.23 (Thapar, J., dissenting). That it happened “[i]n the midst of a once-in-acentury pandemic,” id., as the State was acting in good faith to maintain critical
1

supplies for hospitals and slow the transmission of a highly contagious virus, is truly
remarkable.
This Court should grant en banc review to consider two exceptionally
important questions: first, whether abortion providers are entitled to exemptions
from neutral and generally applicable emergency health measures; and, second,
whether the judiciary exceeds its authority when it second-guesses the State’s policy
judgments about what measures are necessary to mitigate a public-health crisis.
States in this Circuit urgently need guidance on these questions, and that guidance
must comport with Supreme Court precedent and appropriately respect the critical
state interests at stake. Because EO-25 expires at 12:01 a.m. on Thursday, April 30th,1 the State files
this en banc petition on an emergency basis and respectfully requests that this Court
rule on the petition by no later than April 29th. Moreover, because the district court’s
injunction irreparably harms Tennessee’s compelling interests in protecting its
1 Given that the COVID-19 pandemic is ongoing and expected to continue until a vaccine is developed, the capable-of-repetition-yet-evading-review exception to mootness likely applies in this case. See FEC v. Wis. Right to Life, 551 U.S. 449, 462 (2007). If this Court concludes that the expiration of EO-25 renders the State’s appeal moot, vacatur of the panel opinion and the district court’s injunction would be appropriate. See Coal. for Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 484-85 (6th Cir. 2004) (“When a civil case becomes moot pending appellate adjudication, ‘the established practice . . . in the federal system . . . is to reverse or vacate the judgment below and remand with a direction to dismiss.’” (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)).
2

citizens from the pandemic, the State also requests a temporary administrative stay of the district court’s preliminary injunction while the Court considers the petition.
STATEMENT OF FACTS I. COVID-19 Presents a Grave Danger to the Public.
This Court is by now all-too familiar with the COVID-19 pandemic and the grave danger it poses for the American people. Nearly 900,000 Americans have been infected with the virus and more than 50,000 have died from it.2 There are over 9,000 confirmed cases and nearly 200 deaths in Tennessee alone.3
Because COVID-19 is highly contagious and can be transmitted asymptomatically, the Centers for Disease Control (“CDC”) has advised that “[l]imiting face-to-face contact with others is the best way to reduce [its] spread.”4 Healthcare professionals, who are at particular risk for transmission, are further advised to use personal protective equipment (“PPE”)—including a face shield or goggles; an N95 respirator; clean, non-sterile gloves; and an isolation gown—when
2 World Health Organization, Coronavirus (COVID-19), https://covid19.who.int/; CDC, Cases of Coronavirus Disease (COVID-19) in the U.S., https://www.cdc.gov/ coronavirus/2019-ncov/cases-updates/cases-in-us.html (last updated Apr. 24, 2020). 3 Tenn. Dep’t of Health, Coronavirus Disease (COVID-19), https://www.tn.gov/ health/cedep/ncov.html (last updated Apr. 24, 2020). 4 CDC, Social Distancing, Quarantine, and Isolation, https://www.cdc.gov/ coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html.
3

treating patients with confirmed or suspected COVID-19.5
Unfortunately, PPE is in short supply, “posing a tremendous challenge to the
[American] healthcare system.”6 The CDC recommends that “[a]ll U.S. healthcare
facilities should begin using PPE contingency strategies now,” including
“cancel[ing] elective and non-urgent procedures/appointments.”7 Other leading
health organizations have echoed this advice.8
II. Tennessee Responds to the COVID-19 Pandemic.
Tennessee’s Governor is “responsible for addressing the dangers presented to
[the State] and its people by emergencies.” Tenn. Code Ann. § 58-2-107(a)(1).
Exercising this authority, Governor Lee swiftly declared a state of emergency and
adopted measures to slow the spread of COVID-19 and ensure that Tennessee’s
5 CDC, Use Personal Protective Equipment (PPE) When Caring for Patients with Confirmed or Suspected COVID-19, https://www.cdc.gov/coronavirus/2019ncov/downloads/A_FS_HCP_COVID19_PPE.pdf. 6 CDC, Strategies to Optimize the Supply of PPE and Equipment, https://www. cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/index.html. 7 Id. 8 American College of Surgeons, COVID-19: Recommendations for Management of Elective Surgical Procedures (Mar. 13, 2020), https://www.facs.org/covid19/clinical-guidance/elective-surgery; Centers for Medicare & Medicaid Services, CMS Releases Recommendations on Adult Elective Surgeries, Non-Essential Medical, Surgical, and Dental Procedures During COVID-19 Response (Mar. 18, 2020), https://www.cms.gov/newsroom/press-releases/cms-releases-recommendati ons-adult-elective-surgeries-non-essential-medical-surgical-and-dental.
4

healthcare system would be prepared for the inevitable surge in patients.9
Tennesseans were required to stay home unless engaging in essential activities,
schools were closed, and many businesses were forced to temporarily shutter.10
The Governor also issued EO-25 to limit non-emergency healthcare
procedures. That order provides in relevant part that for a three-week period ending
at 12:01 a.m. on April 30th:
2. All healthcare professionals and healthcare facilities in the State of Tennessee shall postpone surgical and invasive procedures that are elective and non-urgent. Elective and non-urgent procedures are those procedures that can be delayed until the expiration of this Order because they are not required to provide life sustaining treatment, to prevent death or risk of substantial impairment of a major bodily function, or to prevent rapid deterioration or serious adverse consequences to a patient’s physical condition if the surgical or invasive procedure is not performed, as reasonably determined by a licensed medical provider.11
The joint goals of EO-25 are to “preserv[e] personal protective equipment for
emergency and essential needs and prevent[] community spread of COVID-19
9 Exec. Order 14, https://publications.tnsosfiles.com/pub/execorders/exec-orderslee14.pdf. 10 Exec. Order 17, https://publications.tnsosfiles.com/pub/execorders/exec-orderslee17.pdf; Exec. Order 21, https://publications.tnsosfiles.com/pub/execorders/execorders-lee21.pdf; Exec. Order 22, https://publications.tnsosfiles.com/pub/exec orders/exec-orders-lee22.pdf; see also Exec. Order 23, https://publications. tnsosfiles.com/pub/execorders/exec-orders-lee23.pdf. 11 Exec. Order 25, https://publications.tnsosfiles.com/pub/execorders/exec-orderslee25.pdf (emphasis added).
5

through non-essential patient-provider interactions.”12 EO-25 does not postpone procedures that, in the reasonable determination of the physician, cannot be delayed without risking death or serious adverse health consequences.
EO-25 is one of the many emergency measures needed to “flatten the curve” of COVID-19 transmissions and preserve critical PPE as the State weathers the worst of this pandemic. The measures taken by Tennessee have yielded positive results, but because COVID-19 infections have not yet peaked, “the [S]tate will need further progress over the coming weeks.”13 III. The District Court Gives Abortion Providers an Exemption from EO-25,
and a Divided Panel of This Court Affirms. Abortion providers decided that they need not follow EO-25. Six months after trial concluded in a five-year-old lawsuit concerning Tennessee’s abortion waiting period, Plaintiffs sought to supplement their complaint by adding a claim related to EO-25. See Supp. Compl., R.230-1, PageID#5695-726. The new claim alleged that EO-25 violates a woman’s constitutional right to abortion by “operat[ing] as a complete ban on procedural (sometimes called ‘surgical’) abortions . . . for some women” and “impos[ing] extreme burdens” on others. Id. at PageID#5697-98.14
12 Id. 13 See John Graves, Vanderbilt Health Policy COVID-19 Modeling for Tennessee, https://www.vumc.org/health-policy/sites/default/files/public_files/COVID%20 Modeling%20Release%204-10%20FINAL2.pdf. 14 EO-25 does not require postponement of medication abortions.
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The district court allowed supplementation and granted a broad preliminary injunction prohibiting enforcement of EO-25 against all surgical abortions. PI Order, R.244, PageID#6136. Although the State had argued that Jacobson governs judicial review of emergency public-health measures, the district court’s preliminary-injunction order did not even mention that decision. In its order denying the State’s motion for a stay pending appeal, the court claimed that it had “considered Jacobson and its limitations on judicial intervention without finding it necessary to reference this case by name.” Order Denying Stay, R.252, PageID#6268. It then purported to “apply” Jacobson to reach the same conclusion. See id. at PageID#6267-69.
The State promptly appealed and sought expedited merits review and an emergency stay of the preliminary injunction pending appeal. One week after the State filed its notice of appeal, a divided panel of this Court issued an opinion largely affirming the preliminary injunction on the merits and denying the State’s stay motion as moot.
The panel majority dodged the critical question of whether Jacobson provides the governing legal standard in this case, concluding instead that Plaintiffs win under either “Jacobson’s more state-friendly standard of review” or “the usual Roe/Casey standard.” Op.15-16. But the majority’s purported application of the Jacobson standard in fact afforded the State no deference. Even though the Supreme Court
7

has upheld abortion regulations that have the effect of delaying abortions, the majority held that EO-25 “beyond question” violates the Constitution. Id. And the majority concluded that EO-25 had no “real” or “substantial” relation to its stated health goals because, in its view, postponing abortions would save only a “paltry amount of PPE” and avoid only “a limited amount of in-person contact.” Id. at 16.
Despite acknowledging that “Plaintiffs have not pointed to specific patients who would be irreparably harmed by EO-25,” the majority concluded that the speculative, non-specific harms alleged by Plaintiffs outweighed any harm to the State. Id. at 18-19 & n.13 (emphasis in original). As for the harm to the public interest during this time of crisis, the majority felt it “need not say much.” Id. at 20.
The majority parted ways with the district court only on the scope of the injunction. The majority found the injunction too broad and directed the district court to modify it slightly on remand to make clear that “patients who can safely delay their procedural abortions past EO-25’s April 30 expiration date . . . must comply with EO-25.” Id. at 21. But that slight modification is unlikely to make much of a practical difference; the majority also unblinkingly deferred to Plaintiffs’ amici, who maintain that abortions may never be safely delayed. Id. at 8, 21.
Judge Thapar dissented. He explained that the district court “committed numerous legal errors, made hardly any factual findings, issued an overly broad injunction, and brazenly substituted its own policy views for those of the elected
8

officials who are actually fighting the pandemic,” all because it “thought that a threeweek delay for certain abortions might prevent some unidentified person from having an abortion.” Op.23 (Thapar, J., dissenting) (emphasis in original). “[E]ven in ordinary times,” Judge Thapar explained, these errors would render the injunction “deeply flawed.” Id. at 23. But the district court also ignored that “these are no ordinary times,” id., and failed to meaningfully apply Jacobson. Id. at 28.
Judge Thapar found the majority’s claim that EO-25 bears no substantial relation to protection of the public health “remarkable given that the order follows recommendations from our nation’s leading public-health institution.” Id. at 29. Equally “remarkable” was the majority’s willingness “to second guess policy makers based on [its] own subjective judgments of what makes for good policy.” Id. at 31. “Tennessee’s interests in protecting its citizens from the pandemic,” Judge Thapar observed, “cannot be overstated.” Id. at 27.
9

ARGUMENT I. The Panel Majority Opinion Contravenes Supreme Court Precedent and
Creates a Circuit Split. A. As two of this Court’s sister circuits have held, “the effect on abortion arising from a [S]tate’s emergency response to a public health crisis must be analyzed under the standards in Jacobson.” In re Abbott, 954 F.3d 772, 786 (5th Cir. 2020) (“Abbott I”); see also In re Rutledge, --- F.3d ---, No. 20-1791, 2020 WL 1933122, at *4-5 (8th Cir. Apr. 22, 2020). But the panel majority ducked that important question. And in concluding that Plaintiffs were entitled to injunctive relief even if Jacobson applies, the majority failed to afford the State the deference Jacobson demands. In Jacobson, which upheld the constitutionality of a law requiring smallpox vaccinations, the Supreme Court held that the federal judiciary may interfere with a State’s emergency public-health measure only if it (1) “has no real or substantial relation” to the State’s interests in protecting “the public health, the public morals, or the public safety,” or (2) “beyond all question, is a plain palpable invasion of rights secured by the fundamental law.” 197 U.S. at 31. That standard follows from the well-settled principle that “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” Id. at 29. And because the Constitution entrusts to the elected branches
10

policy decisions about what “the safety of the general public” requires, a court reviewing an emergency measure may not second-guess those judgments. See id. at 30 (“It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease.”).
The panel majority’s purported application of Jacobson flouted these principles. First, rather than require Plaintiffs to satisfy a heavier burden to establish a constitutional violation, as Jacobson commands, the majority excused Plaintiffs from even their ordinary burden. A Plaintiff must make a “clear showing” that irreparable harm is “likely” to obtain the “extraordinary remedy” of preliminary injunctive relief. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (emphasis in original). But the majority instead “forg[a]ve” Plaintiffs for “not point[ing] to specific patients who would be irreparably harmed by EO-25” because of the “rapid timeline under which [Plaintiffs] are operating.” Op.18 n.13. This is exactly backwards. Under Jacobson, the “rapid timeline” created by the COVID-19 pandemic is further reason to demand a showing of specific harm before interfering with the State’s time-sensitive response to that crisis.
Second, instead of resolving any doubts about the constitutionality of EO-25 in favor of the State, the majority mischaracterized EO-25 and misapplied precedent to find that Jacobson’s standard was met. The majority wrongly characterized EO-
11

25 as “an outright ban on pre-viability abortion,” and on that basis concluded that it
“would unquestionably be verboten under” Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833 (1992), and Roe v. Wade, 410 U.S. 113 (1973).
Op.14. But EO-25 is not a ban: it is a three-week delay of some abortion procedures.
No binding precedent establishes that a law temporarily delaying some abortion procedures constitutes an undue burden;15 that should have ended the analysis under
Jacobson.
Instead, without any analysis of the specific burdens alleged by Plaintiffs or
any attempt to weigh those burdens against EO-25’s benefits, the majority concluded
that a regulation “banning all procedural abortions for a three-week period”—i.e., a
law requiring the temporary delay of surgical abortions that are not medically
necessary—“constituted an undue burden.” Op.14 (emphasis in original). That
scanty analysis was insufficient “[e]ven in ordinary times.” Id. at 23 (Thapar, J.,
dissenting). It was wholly inconsistent with the standard that Jacobson requires in
these extraordinary times.
15 To the contrary, the Supreme Court has “repeatedly upheld a wide variety of abortion regulations that entail some delay in abortion.” Garza v. Hargan, 874 F.3d 735, 755-56 (D.C. Cir. 2017) (en banc) (Kavanaugh, J., dissenting); see also Casey, 505 U.S. at 886 (delays “of much more than a day”); Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361, 366, 372-74 (6th Cir. 2006) (up to two-week delay). It has also allowed the outright prohibition of a particular method of abortion where safe alternatives remained available. Gonzales v. Carhart, 550 U.S. 124, 163-65 (2007).
12

Third, the majority failed to heed Jacobson’s admonition that courts are not to second-guess the State’s policy judgments. Notwithstanding that EO-25 follows the recommendations of leading national health organizations to postpone elective and non-urgent procedures, the majority inexplicably concluded that the order bears no real or substantial relation to the protection of the public health. Op.16. The majority disregarded the CDC’s recommendation to delay elective and non-urgent surgical procedures because it did not specifically mention abortion. Id. Meanwhile, the majority uncritically accepted the assertions of the American College of Obstetricians and Gynecologists (“ACOG”) that “abortion is an essential health service” and that “restricting access to that service” will not save lives or reduce the spread of COVID-19. Id. at 8 & n.7. The majority’s decision to give more weight on this matter to the ACOG—an organization that openly admits to supporting the pro-abortion movement16—than to “our nation’s leading public health institution” well illustrates why courts should not make policy decisions. Id. at 29 (Thapar, J., dissenting).
B. The majority’s opinion also squarely conflicts with decisions of the Fifth and Eighth Circuits. The majority acknowledged that “orders analogous to EO-25 have generated a flood of litigation the past few weeks, and that judges across
16 See, e.g., ACOG, Abortion Policy: Statement of Policy, https://www.acog.org/ clinical-information/policy-and-position-statements/statements-of-policy/2017/abo rtion-policy.
13

the country have reached differing conclusions as to the orders’ legality.” Op.17. But the majority “declin[ed] to address these other opinions in detail,” id., perhaps because they confirm that it applied Jacobson only in name.
The Fifth Circuit has twice granted Texas mandamus relief from TROs limiting the State’s ability to apply a similar executive order to abortion providers. In the first case, Abbott I, 954 F.3d 772, the Fifth Circuit held that a broad TRO “exempt[ing] all abortion procedures from [the order’s] scope” was a clear abuse of discretion. Id. at 778. Among other errors, the district court ignored Jacobson and erroneously construed the order as an “outright ban” on pre-viability abortions rather than “balanc[ing] [the order’s] temporary burdens on abortion against its benefits in thwarting a public health crisis.” Id. It also “usurped the state’s authority to craft emergency health measures” by “substitut[ing] its own view of the efficacy of applying [the order] to abortion.” Id. All the same could be said of the district court and panel majority opinions in this case.
The Fifth Circuit again granted mandamus relief from the narrower TRO that was issued on remand from Abbott I. See In re Abbott, --- F.3d ---, No. 20-50296, 2020 WL 1911216 (5th Cir. Apr. 20, 2020) (“Abbott II”). Once again, the district court clearly abused its discretion by failing to meaningfully apply Jacobson and
14

improperly “second-guess[ing] the basic mitigation strategy underlying” the executive order. Id. at *1.17
The Eighth Circuit reached the same conclusion in In re Rutledge, --- F.3d ---, No. 20-1791, 2020 WL 1933122 (8th Cir. 2020). The court found that, in issuing a broad TRO prohibiting Arkansas from applying its healthcare directive to abortion providers, the district court had clearly abused its discretion by “failing to meaningfully apply” Jacobson and reaching “patently erroneous” results regarding whether the directive was substantially related to public health and whether it was “beyond all question” a constitutional violation. See id. at *5-8. The district court’s errors in applying in Jacobson were virtually identical to those in this case.
The Eleventh Circuit reached a slightly different outcome in Robinson v. Attorney General, --- F.3d --, No. 20-11401-B, 2020 WL 1952370 (11th Cir. Apr. 23, 2020), when it denied Alabama a stay pending its appeal from a narrow preliminary injunction. But even Robinson does not support the majority’s approach in this case. Robinson denied the stay because the preliminary injunction merely prohibited enforcement of the executive order in situations where Alabama had indicated it would not be enforced anyway. Id. at *2, *9. The court found that
17 The Fifth Circuit left the injunction intact only in the narrow situation when a woman would be past the legal limit for abortion in Texas when the order expires. Abbott II, 2020 WL 1911216, at *2.
15

narrow injunction easily distinguishable from the broad TROs at issue in Abbott I and Rutledge. Id. at *8.
In short, the panel majority opinion is an extreme outlier. In holding that the Constitution requires States to grant abortion providers exemptions from neutral and generally applicable emergency health orders, the opinion contravenes Jacobson, breaks new ground in the Sixth Circuit, and puts this Circuit at odds with every other federal court of appeals to have addressed this issue. This Court should grant en banc review and correct course. II. This Case Presents Questions of Exceptional Importance.
This case presents questions of exceptional importance to Tennessee and other States in the throes of responding to a once-in-a-century pandemic. The narrow question—whether abortion providers are entitled to an exemption from neutral and generally applicable emergency health measures—is exceptionally important in its own right. The preliminary injunction issued in this case, prohibiting Tennessee from uniformly enforcing EO-25, strikes “at the heart of the State’s response” to COVID-19, Op.23 (Thapar, J., dissenting), and irreparably harms the State’s sovereignty. See, e.g., Maryland v. King, 567 U.S. 1301 (2012) (Roberts, C.J., in chambers). These harms cannot “be put back in the bottle,” Abbott I, 954 F.3d at 794, and require this Court’s intervention.
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It also sets a dangerous precedent for other healthcare providers to seek similar exemptions. Despite the majority’s confidence that its decision will not open the floodgates to similar claims, see Op.19-20, the broad reasoning of its opinion suggests otherwise. The majority’s conclusion that EO-25 is not substantially related to public health when it saves only a “paltry amount of PPE” and avoids only a “limited amount of in-person contact,” Op.16, would seem to follow virtually any time a court “scrutinize[s] individual surgical procedures” as the majority opinion allows. Rutledge, 2020 WL 1933122, at *6.
The broader question presented by this case, concerning the judiciary’s authority to second-guess a State’s policy judgments about how best to respond to a public-health crisis, is of equally pressing importance. If the majority opinion stands, federal courts in the Sixth Circuit will be allowed to nitpick a State’s emergency measures and usurp the authority of elected officials to make sensitive policy choices, miring the States in litigation when they should instead be doing “what they were elected to do—to govern.” Op.28 (Thapar, J., dissenting). And as the rights protected under the Fourteenth Amendment continue to expand, see, e.g., Gary B. v. Whitmer, --- F.3d ---, Nos. 18-1855, -1871, 2020 WL 1951894 (6th Cir. 2020) (recognizing a fundamental right “to a basic minimum education”), this question will only increase in importance.
17

The COVID-19 pandemic has not yet reached its peak. “As the crisis facing our country continues to develop, so too will government responses.” Op.27 (Thapar, J., dissenting). Unless the en banc Court intervenes, governments in this Circuit making “difficult decisions under conditions of uncertainty, risk, and imperfect information,” id. at 31, will receive none of the deference that Jacobson requires. The public health will be substantially harmed as a result. This Court should grant en banc review to consider the exceptionally important questions presented by this case and to preserve the States’ traditional authority to protect the public health in times of crisis.
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CONCLUSION
For the foregoing reasons, the State respectfully requests that this Court grant
en banc review and a temporary administrative stay of the preliminary injunction
while it considers the petition.
Respectfully submitted,
HERBERT H. SLATERY III Attorney General and Reporter
ANDRÉE S. BLUMSTEIN Solicitor General
/s/ Sarah K. Campbell SARAH K. CAMPBELL Associate Solicitor General BRANDON SMITH Assistant Solicitor General STEVEN A. HART Special Counsel ALEXANDER S. RIEGER MATTHEW D. CLOUTIER Assistant Attorneys General
P.O. Box 20207 Nashville, TN 37202 (615) 532-6026 Sarah.Campbell@ag.tn.gov
Counsel for Defendants-Appellants
April 26, 2020
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CERTIFICATE OF COMPLIANCE I hereby certify that this filing complies with the type-volume limitation of Fed. R. App. P. 45(b)(2) because it contains 3,898 words, excluding the parts enumerated by Fed. R. App. P. 32(f). This filing also complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in proportionally spaced typeface using Microsoft Word for Office 365 in Times New Roman 14-point font.

April 26, 2020

/s/ Sarah K. Campbell SARAH K. CAMPBELL Associate Solicitor General

CERTIFICATE OF SERVICE
I, Sarah K. Campbell, counsel for Defendants-Appellants and a member of the
Bar of this Court, certify that, on April 26, 2020, a copy of the Emergency Petition
for Rehearing En Banc and Administrative Stay was filed electronically through the
appellate CM/ECF system with the Clerk of the Court. I further certify that all
parties required to be served have been served.
/s/ Sarah K. Campbell SARAH K. CAMPBELL Associate Solicitor General

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RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0127p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ADAMS & BOYLE, P.C. et al.,

┐

Plaintiffs-Appellees, │

│

v.

>
│

│

HERBERT H. SLATERY III et al.

│

Defendants-Appellants. │

┘

No. 20-5408

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:15-cv-00705—Bernard A. Friedman, District Judge.

Decided and Filed: April 24, 2020

Before: MOORE, WHITE, and THAPAR, Circuit Judges.
_________________
COUNSEL
ON MOTIONS AND REPLY: Sarah K. Campbell, Steven A. Hart, Alexander S. Rieger, Matthew D. Cloutier, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. ON RESPONSE: Thomas H. Castelli, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TENNESSEE, Nashville, Tennessee, Genevieve Scott, Autumn Katz, Michelle Moriarty, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York, Maithreyi Ratakonda, PLANNED PARENTHOOD FEDERATION OF AMERICA, New York, New York, Richard Muniz, PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, D.C., Scott P. Tift, BARRETT JOHNSTON MARTIN & GARRISON, LLC, Nashville, Tennessee, Michael J. Dell, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Julia Kaye, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellees. ON BRIEF: Edward L. White III, AMERICAN CENTER FOR LAW & JUSTICE, Ann Arbor, Michigan, S. Chad Meredith, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, Laura Etlinger, OFFICE OF THE ATTORNEY GENERAL OF NEW YORK, Albany, New York, Lisa T. Simpson, ORRICK, HERRINGTON & SUTCLIFFE LLP, New York, New York, Kevin H. Theriot, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for Amici Curiae.

MOORE, J., delivered the opinion of the court in which WHITE, J., joined. THAPAR, J. (pp. 23–33), delivered a separate dissenting opinion.

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_________________
OPINION _________________
KAREN NELSON MOORE, Circuit Judge. This case arises at the intersection of two essential constitutional rights: the right of a woman to control her pregnancy, on the one hand, and the right of the state to exercise its “police power” during an emergency, on the other. More specifically, we ask, does the Constitution permit a state to bar doctors from performing abortion procedures for a three-week period—as part of a widespread temporary ban on “elective” and “non-urgent” surgeries—based solely on the state’s assertion that such a bar is necessary to combat effectively an ongoing public health crisis? The Governor of Tennessee thought so, and accordingly adopted such a temporary ban on April 8, 2020, in response to the ongoing COVID19 global pandemic. The district court, however, disagreed, and accordingly issued a preliminary injunction on April 17, enjoining Tennessee from enforcing its general ban on elective and nonurgent surgeries against doctors performing abortion procedures. The State then filed this emergency appeal, and also requested that we immediately stay the district court’s injunction pending review.
We do not uphold an injunction against state action lightly, much less during a public health crisis like the one our nation is experiencing now. It is imperative in such circumstances that judges give legislatures and executives—the more responsive branches of government—the flexibility they need to respond quickly and forthrightly to threats to the general welfare, even if that flexibility sometimes comes at the cost of individual liberties. Affording flexibility, however, is not the same as abdicating responsibility, especially when well-established constitutional rights are at stake, as the right to an abortion most assuredly is. And, here, although we have great respect for the challenges Tennessee faces as it responds to this novel public health crisis, we agree with the district court that the State’s response, in this one respect, unduly curtailed constitutional liberty, and that judicial intervention was thus warranted. By the same token, however, we also conclude that, when it comes to the precise scope of the district court’s injunction, the district court went too far in asserting its authority. Consequently, we AFFIRM the district court’s order issuing

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a preliminary injunction but direct the district court to MODIFY the preliminary injunction in the manner described below. We also DENY the State’s request for a stay pending appeal as MOOT.
I. BACKGROUND
Generally speaking, a Tennessee woman wishing to exercise her constitutional right to a pre-viability1 abortion, in a legal manner, may do so in one of three ways: (1) receive a “medication abortion” within the first 11 weeks from her last menstrual period (“LMP”); (2) receive a “procedural abortion” within the first 20 weeks LMP, meaning either (a) an “aspiration” abortion (which is a relatively quick clinical procedure, and can be performed up to approximately 15 weeks LMP), or (b) a “dilation and evacuation” (“D&E”) abortion (which is a more time-consuming procedure—albeit one that generally takes place in a clinical setting, too— and is performed up to approximately 20 weeks LMP); or (3) travel to a state with more lenient abortion regulations. See generally R.232-5 (Looney Dec.) (Page ID #5876–77).2 Tennessee law also imposes a variety of other state-specific regulations, such as a 48-hour waiting period and mandatory in-person visitation requirements. See, e.g., Tenn. Code Ann. §§ 39-15-202(a)–(h). Moreover, if a Tennessee woman wishes (or needs) to have a procedural abortion in-state, there are just a handful of providers in a handful of cities where she may do so. See R.232-6 (Terrell Dec.) (Page ID #5908–09) (noting that “[a]ccess to abortion care in [Tennessee] is limited to begin with, with only eight providers in four cities”). And of these clinics, only Planned Parenthood performs abortions after 15 weeks LMP. See R.232-5 (Looney Dec.) (Page ID #5877).
Still, abortion in general, and procedural abortion in particular, remains relatively commonplace in Tennessee, with hundreds of Tennessee women exercising their right to seek an abortion in any given month. See, e.g., id. at Page ID #5878 (stating that, “[i]n January through March 2020, [Planned Parenthood] performed 1,700 abortions in Tennessee, 917 of which were

1As the Supreme Court clarified in Planned Parenthood of Southeastern Pennsylvania v. Casey, the constitutional right to an abortion ends (with some limited exceptions) once the fetus would be “viable” outside the womb. 505 U.S. 833, 860, 870 (1992).
2For context, Tennessee bans abortion altogether at “viability,” which it presumes to occur at 24 weeks LMP. See Tenn. Code Ann. § 39-15-211(b)(5) (setting this as a “rebuttable presumption”). Plaintiffs do not make clear, however, if any recognized in-state clinics or doctors provide abortion services between 20 and 24 weeks LMP.

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procedural abortions and 536 of which occurred beyond eleven weeks LMP, when medication abortion is not an option”).
With this background in mind, we now turn to the ongoing COVID-19 public health crisis, an event with which all but the most secluded of readers should be familiar. Suffice it to say, COVID-19 is the virus at the root of an ongoing global pandemic, which, in just a few short months, has killed tens of thousands of people worldwide and infected hundreds of thousands more. See, e.g., Friends of DeVito v. Wolf, --- A.3d ---, 2020 WL 1847100, at *2 (Pa. Apr. 13, 2020). The virus has also upended American economic and social life, causing schools and businesses to shutter, and even the nominally unaffected to wear masks and stand six feet apart in public.
Unsurprisingly, then, medical providers, including Tennessee’s abortion clinics, have had to modify their way of doing business, for the safety of both staff and patients. As three of the abortion providers involved in this litigation have attested, for instance, COVID-19 has caused them to put at-risk staff on furlough, bar patients from bringing companions with them to the clinic, cut back work days, curtail the number of personnel staffed on any given procedure, and eliminate non-essential wellness appointments, among other social-distancing measures. See R.232-5 (Looney Dec.) (Page ID #5881–82) (Planned Parenthood of Tennessee and North Mississippi); R.232-6 (Terrell Dec.) (Page ID #5911–12) (Memphis Center for Reproductive Health); R.232-7 (Rovetti Dec.) (Page ID #5922–23) (Knoxville Center for Reproductive Health).
Still, to the Governor of Tennessee’s eye, voluntary measures like these were not enough to limit effectively the spread of the virus; more compulsory measures were required. So, in addition to instituting a variety of sweeping “shelter-in-place” orders throughout the month of March, on April 8, 2020 the Governor issued a targeted directive to “[a]ll healthcare professionals and healthcare facilities in the State of Tennessee,” requiring that they “postpone surgical and invasive procedures that are elective and non-urgent,” at least until April 30, when the order would expire on its own terms. R.240-20 (Order) (Page ID #6115–16). This Order, titled Executive

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Order 25 (“EO-25”), had the twin goals of “preserving personal protective equipment [“PPE”]3 for emergency and essential needs and preventing community spread of COVID-19 through nonessential patient-provider interactions.” Id. at Page ID #6115. Its most relevant portion read as follows:
All healthcare professionals and healthcare facilities in the State of Tennessee shall postpone surgical and invasive procedures that are elective and non-urgent. Elective and non-urgent procedures are those procedures that can be delayed until the expiration of this Order because they are not required [1] to provide life sustaining treatment, [2] to prevent death or risk of substantial impairment of a major bodily function, or [3] to prevent rapid deterioration or serious adverse consequences to a patient’s physical condition if the surgical or invasive procedure is not performed, as reasonably determined by a licensed medical provider.
Id. at Page ID #6115–16 (alterations added).
The Order did not contain any provision specifically exempting abortion procedures, or suggesting that medical professionals would have leeway to perform a procedure that, in their clinical judgment, “would not deplete the hospital capacity or the [PPE] needed to cope with the COVID-19 disaster.” Compare with In re Abbott, 954 F.3d 772, 780 (5th Cir. 2020) (describing this “important” caveat contained in an analogous Texas COVID-19-related surgery ban).
Plaintiffs—more specifically, Adams & Boyle, P.C.; Memphis Center for Reproductive Health; Planned Parenthood of the Greater Memphis Region; Planned Parenthood of Tennessee and North Mississippi; Knoxville Center for Reproductive Health; and Dr. Kimberly Looney— subsequently interpreted EO-25 as barring the performance of any procedural4 abortions between April 8 and April 30 (and potentially beyond that, if the Order was extended), enforceable by criminal sanction. See, e.g., R.232-7 (Rovetti Dec.) (Page ID #5921). And, as a result of this understanding, Plaintiffs temporarily cancelled all procedural abortions scheduled for that period. See, e.g., id. at Page ID #5924 (describing four “devastated,” “crying” clients scheduled for procedural abortions on April 9 that the clinic had to turn away because of EO-25); R.232-6

3The Order defined PPE as “including, but not limited to, medical gowns, N95 masks, surgical masks, TYVEK suits, boot covers, gloves, and/or eye protection.” Id. at Page ID #6116.
4The parties agree that EO-25 has no effect on medication abortions, which may continue to be performed.

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(Terrell Dec.) (Page ID #5915–16) (describing similar incident at a different clinic, and also noting that the clinic had “156 patients scheduled for their mandatory [pre-abortion] in-person counseling appointments between [April 13] and April 22”). At the same time, fearing that EO-25 might cause their patients to lose their constitutional right altogether, or at least impose an “undue burden” on that right, Casey, 505 U.S. at 876, as well as cause them (the providers) to face criminal prosecution if they attempted to help their patients procure a procedural abortion, Plaintiffs sought in the federal district court a “temporary restraining order and/or preliminary injunction,” barring the State from enforcing “EO-25 as applied to procedural abortions.” R.232 (Pls.’ Preliminary Inj. Br.) (Page ID #5782–83).5
Tennessee opposed the request. And notably, in its brief in opposition, the State appeared to concede that EO-25 operated just as Plaintiffs thought it would: as a three-week criminal prohibition on procedural abortions, albeit with the exception that the provider could perform an abortion if it is required to “prevent rapid deterioration or serious adverse consequences to a patient’s physical condition” (which the State did not explain in any greater detail). R.240 (Defs.’ Opp. Br.) (Page ID #6022).
The district court accordingly held an emergency telephonic conference, which lasted 90 minutes, and at which both sides explained the evidence undergirding their respective positions.
* * *

5Plaintiffs then highlighted the three groups of patients who most urgently needed protection:
(1) patients who, in the good faith professional judgment of the provider, will likely lose their ability to obtain an abortion in Tennessee if their procedures are delayed until after April 30, 2020; (2) patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a lengthier and more complex abortion procedure, which is only available at two clinics in Nashville and Memphis, if their procedures are delayed until after April 30, 2020; [and] (3) patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a two-day procedure—which is only available at two clinics in Nashville and Memphis, and which requires at least three separate visits to the provider—if their procedures are delayed until April 30, 2020.
R.232 (Page ID #5783).

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Plaintiffs’ evidentiary showing was as follows:
Harm to Patients. Plaintiffs first pointed out multiple ways in which their patients would be harmed by even a three-week bar on procedural abortions, all turning on the basic fact that pregnancy, unlike many other medical conditions, progresses on a rapid, and inevitable, timeline. First, there were procedural abortion patients who would not be able to obtain an abortion at all, either because their pregnancy would advance past 20 weeks LMP by April 30 (when Plaintiffs could last provide the procedure), or because overburdened waiting lines following April 30 and/or travel limitations would effectively prevent the patient from receiving the procedure. See, e.g., R.232-5 (Looney Dec.) (Page ID #5887–88). Second, there were procedural abortion patients who would be forced against their will to undergo the more time-consuming, invasive, and expensive D&E procedure because, by April 30, they would have “aged out” of the more common aspiration procedure. See, e.g., id. at Page ID #5889. And, third, there were procedural abortion patients who, even if ultimately able to obtain the same type of abortion procedure they would have sans EO-25, would be forced either to travel out-of-state, and face the accordant COVID-19 transmission risks, see, e.g., id. at 5890, or maintain their pregnancy substantially longer than they otherwise would have, and bear the resulting health risks, see, e.g., id. at Page ID #5888–89 (noting that, “[w]hile abortion is extremely safe throughout pregnancy, the risks increase as pregnancy progresses, and the later in pregnancy a patient accesses a procedural abortion the more likely she is to experience a rare complication”). Plaintiffs further pointed out that their patients, like most abortion patients nationwide, are predominantly “poor or low-income,” and hence “already struggle to raise the money to afford an abortion, and to afford transportation, childcare, and lost wages for missed work.” Id. at Page ID #5878, 5890–91.
Harm to the State. Plaintiffs also emphasized the corresponding lack of harm procedural abortions posed to the State’s interests in preserving PPE and minimizing person-to-person contact. For instance, Plaintiffs observed, because procedural abortions generally are performed at clinics—not hospitals—and with limited personnel, they require “minimal” amounts of PPE and interpersonal interaction. See, e.g., R.232-6 (Terrell Dec.) (Page ID #5913–14). Indeed, Plaintiffs

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added, their staff do not even use the (much-coveted) N95 respirator masks.6 Id. If anything, Plaintiffs continued, requiring a woman either to receive a D&E procedure instead of an aspiration procedure, or carry her child all the way to pregnancy (with the accordant mandatory maternal care visits), would result in far more PPE usage and interpersonal interaction than simply permitting abortions to go forward at an appropriately maintained clinic. See, e.g., R.232-5 (Looney Dec.) (Page ID #5882–83).
Statements from Medical Organizations. Plaintiffs also cited statements from prominent medical organizations in which those organizations emphasized that, as serious a threat to public health as COVID-19 presents, abortion nonetheless remains an “essential,” “time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely unavailable.” Id. at Page ID #5879 (alteration in original) (citing statement signed by the American College of Obstetricians and Gynecologists, among others).7
Likelihood that EO-25 Would Last Past April 30. Finally, Plaintiffs offered some evidence that their fear that EO-25 would last past April 30—thus turning a three-week postponement of procedural abortions into something more draconian—was warranted. See, e.g., R.232-5 (Looney Dec.) (Page ID #5892) (citing statement from the Surgeon General saying that he expected socialdistancing measures to “be in place beyond April”).
* * *

6Per the Food & Drug Administration, an “N95 respirator is a respiratory protective device designed to achieve a very close facial fit and very efficient filtration of airborne particles.” N95 masks are not, however, recommended for public usage, as they constitute “critical supplies that must continue to be reserved for health care workers and other medical first responders.” See https://www.fda.gov/medical-devices/personal-protectiveequipment-infection-control/n95-respirators-and-surgical-masks-face-masks (last accessed Apr. 21, 2020).
7Moreover, after the onset of this appeal, over a dozen leading medical organizations—including the American Public Health Organization and (again) the American College of Obstetricians and Gynecologists—signed onto amicus briefs asserting, in no uncertain terms, (1) that abortion is an essential health service, and (2) that restricting access to that service will not “save lives,” or otherwise meaningfully halt the spread of COVID-19. See App. R. 30 (Amicus Br. for Am. Public Health Ass’n and Experts in Public Health); App. R. 42 (Amicus Br. for Am. College of Obstetricians and Gynecologists and Other Nationwide Organizations of Medical Professionals); see also Appellee Br. at 1 n.1 (citing similar guidance from the American College of Surgeons and the World Health Organization).

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The State, for its part, pointed to the following countervailing evidence in response:
Harm to the State. The State first emphasized that, as of April 14, 2020, there were nearly 6,000 cases of COVID-19 in Tennessee, along with 124 deaths, see R.240-1 (Apr. 14 Count) (Page ID #6029), and that, given the intensely contagious nature of the virus, social distancing was necessary to prevent those numbers from growing at an exponential rate, especially among healthcare professionals themselves, see, e.g., R.240-11 (CDC Release) (Page ID #6076–77) (discussing social distancing); R.240-12 (NYT Article) (Page ID #6079–82) (discussing risks to health workers). The State also noted that, per guidance from the Centers for Disease Control and Prevention (“CDC”), the State needed to preserve as much PPE for its front-line hospital employees as possible, i.e., those dealing with COVID-19 patients, and that EO-25 was an essential element of that plan. See, e.g., R.240-13 (CDC PPE Tips) (Page ID #6083–84). The State further pointed out that, although there was evidence that its various social-distancing measures had successfully lowered the virus’s growth rate, that evidence simply underscored the importance of maintaining those measures to the maximum extent possible. See, e.g., R.240-7 (Vanderbilt Health Policy COVID-19 Modeling for Tennessee) (Page ID #6059–65). And, in response to Plaintiffs’ contention that their PPE usage was minimal, the State observed that, even if procedural abortions constituted a relatively small number of delayed medical procedures, and even if the resulting PPE usage was “minimal,” “[e]very procedure that is postponed, and every item of PPE that is preserved, furthers the State’s compelling interests in halting the spread of COVID-19 and ensuring our healthcare system is equipped to treat—and prevent the death of—those who are infected.” R.240 (Defs.’ Opp. Br.) (Page ID #6019–20).
Harm to Patients. In response to Plaintiffs’ statements that EO-25 would inhibit their patients’ ability to obtain abortions, the State essentially attempted to show that Plaintiffs’ evidentiary showing was a paper tiger. The State first emphasized that, because Plaintiffs had neither identified any “actual patient[s] who would be denied an abortion before the order expires in two weeks,” nor “estimated what fraction of women could be allegedly denied an abortion by operation of [EO-25],” there were presumably very few abortion patients who would be materially harmed by the Order. Id. at Page ID #6022. The State then generally asserted that, to the extent EO-25 posed any “serious adverse health consequences” to an abortion patient, the clinic could

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perform that abortion “without delay” (although, again, without explaining what that exception meant). Id.
Statements from Medical Organizations. The State did not cite any countervailing statements suggesting that abortions procedures are not “essential” procedures, or that limiting such procedures is necessary to fight COVID-19.
Likelihood that EO-25 Would Last Past April 30. Although the State repeatedly cited EO25’s limited duration as a reason injunctive relief was unnecessary, the State did not appear to offer any assurances, in its brief or otherwise, that EO-25 would in fact end on April 30. If anything, the general tone of the State’s evidentiary showing—which emphasized the severe consequences portended by COVID-19—suggested the opposite.
* * *
The parties also provided the district court with thorough and thoughtful briefing, in which they addressed not only the major abortion cases, such as Casey, but also Supreme Court precedent concerning the expanded scope of a state’s police power during times of public health crisis, most notably Jacobson v. Massachusetts, 197 U.S. 11 (1905) (affirming the state’s power to make vaccination compulsory).
On Friday, April 17—just a few hours after the evidentiary hearing—the district court issued a short, but thoughtful, order granting Plaintiffs’ request for a preliminary injunction.8 See Adams & Boyle, P.C. v. Slatery, No. 3:15-cv-705, 2020 WL 1905147 (M.D. Tenn. Apr. 17, 2020). In this order, the district court acknowledged that preliminary injunctions are “extraordinary relief,” but ultimately found, after considering the evidence, that such an injunction was warranted here. Id. at *4. Most importantly, the district court emphasized that because EO-25 was “likely” to last past April 30, and because “[d]elaying a woman’s access to abortion even by a matter of days can result in her having to undergo a lengthier and more complex procedure that involves progressively greater health risks . . . or can result in her losing the right to obtain an abortion
8Although the district court’s order at times references Plaintiffs’ alternative request for a temporary restraining order, read in context, the court clearly granted Plaintiffs a preliminary injunction. Indeed, neither party argues to the contrary on appeal.

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altogether,” the Plaintiffs were likely to succeed on the merits of their constitutional claim, per the Casey “undue burden” test. Id. at *5–6 (citation omitted). The district court also concluded that, “[w]hile the stated goal of EO-25 to preserve PPE [was] unquestionably laudable,” the State “presented no evidence that any appreciable amount of PPE would actually be preserved if EO-25 is applied to procedural abortions.” Id. at *6. To the contrary, the court noted, “procedural abortion[s] use[] less PPE and involve[] significantly less patient interaction than carrying a pregnancy to term and giving birth.” Id. The court further added that making women travel outof-state for abortion only increased the risks of person-to-person transmission of COVID-19, again in contradiction of EO-25’s goals.
The district court accordingly concluded its opinion with the following, brief preliminary injunction order: “Defendants are hereby immediately enjoined from enforcing EO-25 as applied to procedural abortions.” Id. at *7. And, as a result of this order, Plaintiffs have presumably begun providing, and scheduling, procedural abortions again.
In response, the State filed immediately with the district court a request that the court stay its injunction pending appeal, followed by a notice of appeal. And, before the district court had a chance to respond to the State’s stay request, the State filed a brief in this court entitled, “Combined Emergency Motion for Stay Pending Appeal and Merits Brief,” in which the State requested that we, as an initial matter, issue “a temporary administrative stay while [we] consider[] the stay motion,” and then that we “grant an emergency stay of the preliminary injunction while [we] consider[] the merits of the State’s appeal, and then reverse the district court.” Appellant Br. at 3 n.1, 27.
On Monday April 20, we denied the State’s request for an administrative stay (with one judge dissenting), and asked the parties to provide expedited briefing so that we could consider the issues raised in the State’s appeal with the benefit of argument from both sides. App. R. 9.9 The parties have now provided that briefing, and the question of whether the district court acted properly in enjoining the State’s enforcement of EO-25 is ripe for our review.

9Two days after we issued this order the district court denied the State’s request for a stay. See R.252.

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II. DISCUSSION
Because the parties have sufficiently briefed the merits questions before us, and because time is of the essence, we forgo consideration of the State’s stay request and instead proceed straight to the preliminary injunction analysis.10
A.
A preliminary injunction is an “extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Rather, the party seeking the injunction must prove: (1) that they are likely to succeed on the merits of their claim, (2) that they are likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in their favor, and (4) that an injunction is in the public interest. Id. at 20. A court considering whether to grant a preliminary injunction must therefore “balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Id. at 24 (quoting Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987)). Moreover, when crafting an injunction, a district court must take care to “limit the solution to the problem,” for example, by “enjoin[ing] only the unconstitutional applications of a [policy] while leaving other applications in force.” Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328–29 (2006). We review a district court’s application of these principles for abuse of discretion. Am. Civil Liberties Union Fund of Mich. v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015).

10We acknowledge the State’s alternative argument that Plaintiffs do not have proper “third-party standing” to bring this suit on behalf of their patients. Appellant Br. at 22. But because Plaintiffs unquestionably have standing to sue on their own behalf (because EO-25 potentially threatens them with criminal prosecution) we need not address third-party standing. See In re Abbott, 954 F.3d at 782 n.17 (“[The plaintiff abortion providers] have standing to sue on their own behalf because [the at-issue Executive Order] ‘directly operates’ against them.” (citing Planned Parenthood of Cen. Mo. v. Danforth, 428 U.S. 52, 62 (1976))).

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1.
We begin by asking whether Plaintiffs have shown that they are likely to succeed on the merits of their constitutional claim. We conclude that they are.
In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court held that the provision of the Fourteenth Amendment establishing that no state “shall . . . deprive any person of life, liberty, or property, without due process of law,” includes within it a substantive guarantee of reproductive liberty, that is, a promise that no state shall prevent a woman from terminating her pregnancy if she so chooses (subject to certain limitations, depending on the trimester of pregnancy). The Court then narrowed this right in Planned Parenthood of Southeastern Pennsylvania v. Casey, clarifying that states could ban abortion after “viability,” see supra n.1, and could also regulate the practice of abortion before then, so long as those regulations did not impose an “undue burden,” which the Court defined as a “provision of law” whose “purpose or effect [was] to place a substantial obstacle in the path of a woman seeking an abortion.” 505 U.S. at 878. Still, the Casey court was careful to distinguish between regulation and prohibition, emphasizing that, “[r]egardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Id. at 879.
Casey’s undue burden framework, and the accordant distinction between regulation and prohibition, has not always been easy to apply. See, e.g., Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309–10 (2016) (discussing differing interpretations). But in the context of “time regulations” like the three-week measure at issue here, courts appear to have readily distinguished between the imposition of a short waiting period, see, e.g., Casey, 505 U.S. at 885–86 (upholding state law requiring 24-hour waiting period prior to abortion); Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361, 372–73 (6th Cir. 2006) (same), and the outright curtailment of the abortion right, see, e.g., Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019) (rejecting state law prohibiting abortions, with limited exceptions, after 15 weeks LMP); McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015) (same, with respect to a law prohibiting abortions after 20 weeks LMP). And, notably, although Casey upheld a 24-hour waiting period, the Court described the question as “close[],” and noted that the potential of such a policy to prevent lowincome women from seeking an abortion at all was “troubling.” 505 U.S. at 885–86.

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Were there no public health crisis, then, the analysis would be relatively straightforward: by banning all procedural abortions for a three-week period—limited by only a vague, undefined exception for women who needed the abortion to avoid facing “serious adverse health consequences”—EO-25 placed “a substantial obstacle in the path of” Tennessee women attempting to obtain a procedural abortion during that time period, and thus constituted an undue burden. Casey, 505 U.S. at 878. Indeed, as the evidence presented in the district court elucidated, depending on the stage of a woman’s pregnancy, EO-25 functioned not just as a “delaying regulation,” the likes of which are generally reviewed under Casey’s undue burden standard, but also as an outright ban on pre-viability abortion, which would unquestionably be verboten under Casey and Roe. And if that weren’t enough, the women affected by EO-25 (and the Plaintiff providers) do not know if EO-25 will even end on April 30, thus making the burden of “planning ahead”—a necessity for a time-sensitive procedure like abortion—all the more crushing. Suffice it to say, in normal times there is no way that a measure like EO-25 would pass constitutional muster.11
But, of course, we are not living in normal times; we are living in pandemic times. And so the State points us to Jacobson v. Massachusetts, 197 U.S. 11 (1905), a century-old case in which the Supreme Court held that a city faced with the risk of a viral outbreak could require all of its adult residents to be vaccinated against that virus. See Appellant Br. at 12 (contending that “Jacobson establishes the legal framework for judicial review of the State’s exercise of its police power during public-health emergencies”). Jacobson is an important case, and it is unfortunate that the district court did not address it until it issued its order denying Tennessee’s request for a stay. See R.252 at Page ID #6267–68 (analyzing Jacobson in denying stay). But we are not convinced that this matters because even if Jacobson’s more state-friendly standard of review is

11True, the Supreme Court has long permitted states to enact parental consent regulations, which can sometimes have the effect of delaying an abortion for a weeks-long period. See, e.g., Garza v. Hargan, 874 F.3d 735, 755 (D.C. Cir. 2017) (en banc) (Kavanaugh, J., dissenting) (making this point). But to the extent parental consent laws have a delaying effect, that is for reasons outside a state’s control. The permissibility of such regulations in no way suggests that the Supreme Court would countenance a state-mandated three-week delay period, at least in ordinary circumstances.

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the test we should be applying here—rather than the usual Roe/Casey standard—we still think that Plaintiffs are likely to succeed on the merits of their constitutional claim.
In Jacobson, the Supreme Court affirmed the imposition of a five-dollar criminal fine12 on a Cambridge, Massachusetts resident who refused to comply with the city’s mandatory vaccination regime, which Cambridge had enacted in response to a smallpox outbreak. The resident then appealed his conviction to the Supreme Court, arguing that the mandatory vaccination statute was unconstitutional. Although the Court acknowledged that the statute unquestionably impinged on the resident’s individual autonomy, cf. Guertin v. State, 912 F.3d 907, 918–22 (6th Cir. 2019) (discussing the Fourteenth Amendment right to bodily integrity), the Court ultimately found that the statute was justified on public health grounds, and emphasized that the safety and importance of vaccines “[w]hile not accepted by all,” were “accepted by the mass of the people, as well as by most members of the medical profession.” 197 U.S. at 34 (citation omitted). And in explaining the standard of review courts should employ when confronted with such a public health measure, the Court held as follows:
If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.
Id. at 31 (emphasis added).
Leave aside the myriad factual differences between this case and Jacobson—asking a person to get a vaccination, on penalty of a small fine, is a far cry from forcing a woman to carry an unwanted fetus against her will for weeks, much less all the way to term—and the challenge of reconciling century-old precedent with the Supreme Court’s more recent constitutional jurisprudence. The bottom line is that, even accepting Jacobson at face value, it does not substantially alter our reasoning here. As of today, a woman’s right to a pre-viability abortion is

12Approximately $140, adjusted for inflation.

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a part of “the fundamental law.” And, for the reasons set forth above, EO-25, at least in some applications—most notably, those that would prevent a woman from exercising her right in-state altogether, or would require her to undergo a more invasive and costlier procedure that she otherwise would have—constitutes “beyond question, a plain, palpable invasion of rights secured by [that] fundamental law.”
More still, although mandatory vaccination clearly had a “real” and “substantial” relation to the state’s public health goals in Jacobson—indeed, as the Supreme Court emphasized, the importance of vaccination was widely accepted by the medical community—it is much harder to discern that relation here, given the paltry amount of PPE saved, and limited amount of in-person contact avoided, by halting procedural abortions for a three-week period (not to mention the lack of expert medical opinion in support of the State’s position). And although the State cites language in Jacobson stating, “[i]t is no part of the function of a court or a jury to determine which one of two [responses] [is] likely to be most effective for the protection of the public against disease,” id. at 30—and suggests that this means we must defer uncritically to the State’s ipse dixit that a threeweek bar on procedural abortions is necessary to save critical PPE and preclude risky interpersonal contact, see supra at 9—neither Jacobson in particular, nor Supreme Court abortion precedent in general, requires such abdication. See, e.g., Jacobson, 197 U.S. at 34–38 (discussing the voluminous medical evidence in support of vaccination); Hellerstedt, 136 S. Ct. at 2310 (noting that uncritical deference to a legislature’s factual findings regarding abortion is inappropriate).
The dissent disagrees with us on this last point, arguing that the State’s three-week bar on procedural abortions does have a “real and substantial relationship to the current pandemic,” and, indeed, that, if we don’t allow that bar to go into effect, “doctors, nurses, and first responders will die . . . .” Dissent at 29, 31. But the dissent roots these bold assertions in nothing more than the State’s say-so. The Center for Disease Control and Prevention (“CDC”) webpage the dissent cites certainly does not support the State’s position. That webpage simply recommends that U.S. healthcare facilities preserve PPE and cancel “elective and non-urgent procedures/appointments”; it says absolutely nothing about abortion. Id. at 29. And the State has never, at any point in this litigation, attempted to support its policy choice with expert or medical evidence. See supra at 10. This is unsurprising because, as far as we can tell, every serious medical or public health

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organization to have considered the issue has said the opposite. See, e.g., supra at 8 n.7 (citing statements signed by over a dozen leading medical organizations). So, in our view, the dissent’s position is not so much deference as it is abdication.
Of course, we do not mean to suggest that abortion rights during a public health crisis are identical to abortion rights during normal times. If Jacobson teaches us anything, it is that context matters. And as noted in Section B, infra, we have tried to accommodate for that context here. What we will not countenance, however, is the notion that COVID-19 has somehow demoted Roe and Casey to second-class rights, enforceable against only the most extreme and outlandish violations. Such a notion is incompatible not only with Jacobson, but also with American constitutional law writ large. See generally, e.g., Ex Parte Milligan, 71 U.S. 2, 76 (1866) (“The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”).
We conclude by acknowledging that orders analogous to EO-25 have generated a flood of litigation the past few weeks, and that judges across the country have reached differing conclusions as to the orders’ legality. Compare, e.g., In re Rutledge, No. 20-1791 (8th Cir. Apr. 22, 2020); In re Abbott, ---F.3d ---, 2020 WL 1911216 (5th Cir. Apr. 20, 2020); In re Abbott, 954 F.3d 772 (5th Cir. 2020), with Robinson v. Attorney General, --- F.3d ---, 2020 WL 1952370 (11th Cir. Apr. 23, 2020); In re Abbott, 2020 WL 1911216, at *18–30 (Dennis, J., dissenting); In re Rutledge, No. 201791, slip op. at 24 (Loken, J., dissenting); South Wind Women’s Ctr., LLC v. Stitt, 2020 WL 1932900 (W.D. Okla. Apr. 20, 2020) (Goodwin, J.). Given the speed at which this issue is developing, we decline to address these other opinions in detail; suffice it to say, it is clear that there exists profound, but good faith, disagreement as to the constitutional questions involved. We will note, however, that the Texas executive order underlying the recent Fifth Circuit decision—a decision the State cites repeatedly in its brief here—is fundamentally different than EO-25. This is because the Texas order contains an important caveat permitting doctors to perform procedures that, in their clinical judgment, “would not deplete the hospital capacity or the [PPE] needed to cope with the COVID-19 disaster.” In re Abbott, 954 F.3d at 780; see also In re Abbott, 2020 WL 1911216, at *30 (Dennis, J., dissenting) (noting that the plaintiff abortion providers there had

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“represented that all of their abortion care will fall” under this exception). EO-25, by contrast, contains no such caveat, other than the “serious adverse health consequences” exception mentioned above. But because a woman could plainly have her right to an abortion undermined without her suffering “serious adverse health consequences”—indeed, if a woman is forced to undergo an unwanted, but otherwise healthy, pregnancy as a result of EO-25 she would presumably fall outside the exception’s scope—this narrow provision does not save EO-25’s constitutionality.
In sum, Plaintiffs are likely to succeed on the merits of their constitutional claim.
2.
We now address the remaining three preliminary injunction factors, in turn.
Irreparable Harm. This is not a case that can be remedied with money damages, or a posthoc apology. Rather, if Tennessee is allowed to enforce EO-25 in the sweeping manner that it desires, any woman in Tennessee who wishes to have a procedural abortion during the relevant time period stands at risk of losing her constitutional rights, or at least of incurring substantial physical, emotional, and financial harms en route to exercising those rights; this is especially so for the low-income women who disproportionately seek out abortions and who have been disproportionately harmed by the economic downturn generated in COVID-19’s wake. And Plaintiffs are at risk of criminal prosecution if they attempt to help their patients exercise that right.13

13To be sure, as the State emphasized in the district court, and as the dissent hammers home here, Plaintiffs have not pointed to specific patients who would be irreparably harmed by EO-25. But cf. R.248-1 (Chism Aff.) (Page ID #6168–72) (affidavit filed after the district court issued its injunction, in which a Knoxville woman who was 13 weeks LMP at the time EO-25 went into effect explained how she risked losing her ability to obtain any abortion in Tennessee as a result of the Order). But given the rapid timeline under which Plaintiffs were operating, and the obvious reality that any Tennessee woman who would like to have a procedural abortion during the month of April would be impacted by EO-25, we can forgive Plaintiffs for not being hyper-specific. And, in any event, Plaintiffs provided evidence that hundreds of women in any given month seek procedural abortions because they are past the point where medication abortion is an option, and that they (Plaintiffs) had to cancel specific procedural abortion appointments because of EO-25, including some where the woman was literally at the clinic. See supra at 3–4, 5–6. All of this is to say, there is no reason to think that, in April 2020, Tennessee women suddenly stopped deciding to have procedural abortions. Moreover, as Plaintiffs’ amici make clear, the medical risks at stake are anything but speculative. See, e.g., Br. of Am. Public Health Ass’n at 2–7.

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Balance of Harms. That Plaintiffs have pointed to concrete threats to constitutional liberty and bodily autonomy does not guarantee them an injunction, of course. Rather, we must “balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24 (emphasis added) (quoting Amoco, 480 U.S. at 542). Here, though, we find the “competing claims of injury” cited by the State to be speculative and abstract; they do not outweigh the tangible harms EO-25 risks wrecking on Plaintiffs and their patients.
Most potently, the State raises the specter of further COVID-19 contamination—and the accordant risk of yet more Tennesseans dying from the disease—saying that such harms are “certain to occur” if procedural abortions are allowed to take place. Appellant’s Br. at 24; see also R.240 (Defs.’ Opp. Br.) (Page ID #6019–20) (“Every procedure that is postponed, and every item of PPE that is preserved, furthers the State’s compelling interests in halting the spread of COVID19 and ensuring our healthcare system is equipped to treat—and prevent the death of—those who are infected.”). We cannot gainsay the threat posed by COVID-19; as we stated at the outset of the opinion, these are extraordinary times calling for extraordinary measures. But, with respect to just those procedural abortions affected by the district court’s injunction (as modified below), the State’s proffered harm is purely speculative. As the district court noted, the State presented “no evidence that any appreciable amount of PPE would actually be preserved if EO-25 is applied to procedural abortions,” and the State has not remedied that shortcoming on appeal. Adams & Boyle, P.C., 2020 WL 1905147, at *6; see also supra at 16–17 (further discussing the lack of medical evidence in support of the State’s position).
In response, the State suggests that if we permit this one exemption, surely the jointreplacement surgeons, the cataract-removal specialists, and every other medical provider affected by EO-25’s bar on elective procedures will follow, with similar “minimal impact” arguments in tow. Cf. Pre-Term Cleveland v. Attorney General of Ohio, 2020 WL 1673310, at *4 (6th Cir. Apr. 6, 2020) (Bush, J., concurring) (deeming this “a serious free rider” problem). But this contention fails to appreciate that abortion is fundamentally different than a hip replacement or a cataract removal: not only is abortion entitled to explicit constitutional protection, but also, as the district court appropriately recognized, it is a uniquely “time-sensitive procedure,” both as a biological

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matter and a regulatory matter. Adams & Boyle, P.C., 2020 WL 1905147, at *6. After all, how many other elective procedures have mandatory 48-hour waiting periods beforehand, and are available in only four cities state-wide? So if there is a slippery slope here, we fail to see it.
Tennessee also emphasizes that a state’s “sovereignty is irreparably harmed anytime action taken by its democratically elected leaders is enjoined,” and argues that we should take account of that harm here. Appellant Br. at 24 (citing Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018)). But as we stressed at the outset of this opinion, we have taken that harm into account. And, in the particular circumstances of this case, we find that the affront the Governor of Tennessee will suffer from having one small part of a limited-duration executive order enjoined (which itself is just one piece of a much more comprehensive state policy) is far outweighed by the harm the individual Tennessee women affected by that order will suffer if it is given full effect.
The Public Interest. We need not say much on this point. As the district court correctly observed, “it is always in the public interest to prevent violation of a party’s constitutional rights.” Deja Vu of Nashville, Inc. v. Metro Gov’t of Nashville & Davidson Cty., Tenn., 274 F.3d 377, 400 (6th Cir. 2001) (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)).
* * *
For these reasons, the district court did not abuse its discretion in granting a preliminary injunction.
B.
This leaves one final matter: the scope of the district court’s injunction. As noted above, the district court’s order is just one sentence long: “Defendants are hereby immediately enjoined from enforcing EO-25 as applied to procedural abortions.” The State argues that this perfunctory order is overbroad, and that the district court failed to “tailor its injunctive relief” to the burdensome situations actually identified by Plaintiffs. Appellant Br. at 21; compare with, e.g., Robinson, 2020 WL 1952370, at *8 (in the course of denying state’s request for a stay on appeal,

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citing with approval the district court’s “narrowly tailored” preliminary injunction); cf. Pre-Term Cleveland, 2020 WL 1673310, at *1 (similar conclusion, in TRO context).
On this point, we agree with the State. As explained earlier, because a preliminary injunction is an extraordinary remedy, a district court must be careful to “limit the solution to the problem.” Ayotte, 546 U.S. at 328–29. And, here, the undue burden problem identified by Plaintiffs encompassed three classes of patients, which Plaintiffs helpfully identified in their district court brief seeking injunctive relief:
(1) patients who, in the good faith professional judgment of the provider, will likely lose their ability to obtain an abortion in Tennessee if their procedures are delayed until after April 30, 2020;
(2) patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a lengthier and more complex abortion procedure, which is only available at two clinics in Nashville and Memphis, if their procedures are delayed until after April 30, 2020; [and]
(3) patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a two-day procedure—which is only available at two clinics in Nashville and Memphis, and which requires at least three separate visits to the provider—if their procedures are delayed until April 30, 2020.
R.232 (Pls.’ Preliminary Inj. Br.) (Page ID #5783).
Consequently, we direct the district court to modify its injunction so that it enjoins the State from enforcing EO-25 against Plaintiffs to the extent they provide procedural abortions to these three categories of patients. And, to be clear, this second category of patients includes women who, in the good faith professional judgment of the provider, will likely be forced to undergo a D&E procedure instead of an aspiration procedure if their procedures are delayed until after April 30, 2020.
To the extent that Plaintiffs work with patients who can safely delay their procedural abortions past EO-25’s April 30 expiration date, in a manner commensurate with the aforementioned criteria, however, Plaintiffs must comply with EO-25 and delay those particular procedures. To rule otherwise would be to grant Plaintiffs a wholesale exemption from the public health dictates of EO-25, which, per our earlier discussion, Jacobson cautions against.

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III. CONCLUSION
For these reasons, we AFFIRM the district court order issuing a preliminary injunction but direct the district court to MODIFY the preliminary injunction in the manner set forth above. We leave it to the district court to address any further developments in the first instance.

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_________________
DISSENT _________________
THAPAR, Circuit Judge, dissenting. Even in ordinary times, the district court’s injunction in this case would be deeply flawed. But these are no ordinary times. In the midst of a once-in-acentury pandemic, the district court broadly enjoined the State of Tennessee from enforcing a measure at the heart of the State’s response. In doing so, the court committed numerous legal errors, made hardly any factual findings, issued an overly broad injunction, and brazenly substituted its own policy views for those of the elected officials who are actually fighting the pandemic. All because the district court thought that a three-week delay for certain abortions might prevent some unidentified person from having an abortion. Most cases of judicial aggrandizement have costs. But in few are the potential costs so great. I would reverse.
I.
Two weeks ago, the Governor of Tennessee issued an executive order—based on guidance from various medical organizations—in response to the COVID-19 pandemic. The Governor’s order explains the critical importance of conserving what’s known as “personal protective equipment” (e.g., face masks, gloves, protective clothing) and therefore directs “[a]ll healthcare professionals and healthcare facilities” in the State to “postpone surgical and invasive procedures that are elective and non-urgent.” The order defines “elective and non-urgent” procedures as those that “are not required to provide life sustaining treatment, to prevent death or risk of substantial impairment of a major bodily function, or to prevent rapid deterioration or serious adverse consequences to a patient’s physical condition if the surgical or invasive procedure is not performed, as reasonably determined by a licensed medical provider.” The order will expire just after midnight on April 30, 2020—less than six days from now and exactly three weeks after it took effect.
Within days of the Governor’s announcement, the plaintiffs in this case—abortion providers in Tennessee—moved to “supplement” a five-year old complaint (six months after trial) to seek a temporary restraining order or preliminary injunction. The plaintiffs argued that the

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executive order prohibits most “surgical abortions” in the state and thus will prevent their clients from obtaining an abortion.
A mere four days later, the district court granted the motion to supplement and entered a preliminary injunction, enjoining the enforcement of the executive order as to all surgical abortions in Tennessee. The court’s analysis of why the plaintiffs were likely to succeed on the merits consisted of two paragraphs. The State then appealed. (Despite the breadth of its ruling, the district court recently denied a stay pending appeal.)
II.
The State now asks us to stay the district court’s decision pending appeal and ultimately to reverse the preliminary injunction. Both requests involve the same basic factors: (1) who is likely to prevail on the merits; (2) whether the moving party is likely to suffer irreparable harm in the interim; (3) what is the balance of harms; and (4) where does the public interest lie. See Fowler v. Benson, 924 F.3d 247, 256 (6th Cir. 2019); Serv. Emps. Int’l Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012) (per curiam). The plaintiffs’ failure to show a likelihood of success on the merits would itself warrant reversal. See, e.g., Fowler, 924 F.3d at 259–60. But the other factors counsel the same outcome. And even if the district court was correct to grant a preliminary injunction (it was not), these same factors show that the injunction was much broader than permitted under the law.
Success on the Merits. Start with the plaintiffs’ likelihood of success on the merits. The basic question is whether the executive order places an “undue burden” on a woman’s ability to have an abortion. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992). As the modifier “undue” suggests, not just any “incidental effect . . . making it more difficult or more expensive” to have an abortion will do. Id. Rather, the state regulation must create a “substantial obstacle” for women seeking an abortion. Id. at 877. But importantly, we do not consider any burden in isolation. Instead, we must consider “the burdens a law imposes on abortion access together with the benefits those laws confer” and then “weigh[] the asserted benefits against the burdens.” Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309, 2310 (2016) (emphasis

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added). In short, the plaintiffs must show that the order imposes a burden and that this burden outweighs the order’s asserted benefits.
Given this framework, the district court committed two fundamental errors. First, it failed to make the necessary factual findings to show that the executive order imposes a burden on anyone’s rights. Second, the court failed even to acknowledge the benefits of the executive order and thus necessarily failed to balance its speculative burden against these benefits. Either error would warrant reversal. Together, they certainly do.
Begin with the burden. The district court failed to make specific findings about whether the executive order creates a “substantial obstacle” for women seeking an abortion. See Casey, 505 U.S. at 874. At most, the district court pointed out that the executive order will delay certain abortions for three weeks. But that doesn’t take the plaintiffs very far. Both the Supreme Court and our court have upheld laws that have the effect of delaying abortions for days or even weeks. See, e.g., Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 514 (1990) (up to three-week delay); Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361, 366, 372–74 (6th Cir. 2006) (up to two-week delay). Indeed, for the last forty years, the Supreme Court has “repeatedly upheld a wide variety of abortion regulations that entail some delay in the abortion.” Garza v. Hargan, 874 F.3d 735, 755–56 (D.C. Cir. 2017) (en banc) (Kavanaugh, J., dissenting) (collecting cases). The district court failed to grapple with any of these precedents. Its silence speaks volumes.
(For its part, the majority tries to distinguish these cases by saying those delays were outside the state’s control. It doesn’t offer any support for this distinction. But more importantly, the distinction seems to assume that a once-in-a-century pandemic is within a state’s control.)
To be clear, the district court enjoined a version of the order that didn’t exist. It acted as if the State had banned most pre-viability abortions. But that’s just not the case. Tennessee law generally allows women to seek an abortion until the twentieth week of their pregnancy. See Tenn. Code Ann. §§ 39-15-211, -212. So any woman who was less than seventeen-weeks pregnant when the order went into effect would still have time to seek an abortion after the order expires.
The plaintiffs speculate that there might be women out there who were more than seventeen-weeks pregnant when the order was issued and who will now be unable to obtain an

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abortion in Tennessee. (Or who otherwise would be unable to obtain an abortion for some reason.) But speculation usually doesn’t count for much. See, e.g., Mazurek v. Armstrong, 520 U.S. 968, 972–74 (1997) (per curiam). And there’s no reason it should have counted for so much here. Make no mistake—the burden was on the plaintiffs to bring forward concrete evidence (1) that such women exist, (2) that they want an abortion, and (3) that they would be unable to obtain one. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The majority claims a snippet of evidence supports this concern—an affidavit that vaguely states that “some patients” will be prevented from obtaining an abortion under the executive order. R. 232-5, Pg. ID 5887. But the district court didn’t make any factual findings on this front. Nor do the plaintiffs even cite this evidence on appeal.
Not only that. No one—not the plaintiffs, not the district court, not even the majority— has made any effort to quantify how this hypothetical pool of women relates to the broader pool of women affected by the order—as binding precedent requires. See Gonzales v. Carhart, 550 U.S. 124, 167–68 (2007); Cincinnati Women’s Servs., 468 F.3d at 367–68 (explaining that courts must consider whether a restriction will operate as a “substantial obstacle” in “a large fraction of the cases in which the abortion restriction is relevant” (cleaned up)). In fact, the State points out that the vast majority of abortions in Tennessee occur before the seventeenth week of pregnancy. The plaintiffs haven’t offered any evidence in response. So even if speculation were the stuff of winning legal claims, plaintiffs still haven’t made the proper showing.
But we aren’t even done with speculation. The plaintiffs (and now the majority) say that the Governor of Tennessee might extend the executive order beyond the current three-week period. This is a smart move—it makes a short, finite burden look like an indefinite one, exaggerating its severity. The problem is that the Governor hasn’t said he will impose any restrictions on medical procedures after April 30, which is when the order in this case expires. If the Governor issues a new order limiting surgeries beyond that date, it is possible that he will extend the existing restrictions—but it is just as likely that the new order will contain a different and perhaps more tailored set of restrictions. The majority simply assumes it will be the former. Based on what? The plaintiffs and majority point to a statement by the Surgeon General of the United States about extending certain public-health measures. But in this country, federal officials don’t speak on

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behalf of state leaders. And again, the plaintiffs haven’t pointed to any evidence about what the Governor of Tennessee will do. As the crisis facing our country continues to develop, so too will government responses. And those who have problems with those responses must wait until actual and imminent harms arise. See, e.g., D.T. v. Sumner Cty. Schs., 942 F.3d 324, 327 (6th Cir. 2019). Federal courts are not in the business of issuing advisory opinions, let alone advisory injunctions.
All that is reason enough to reverse. But the district court also committed another fundamental error: it entirely failed to balance these purported burdens against the executive order’s benefits. See Whole Woman’s Health, 136 S. Ct. at 2309. The court didn’t even mention the benefits of the order in its “undue burden” analysis. That flatly contradicts Supreme Court precedent, which “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Id. Count that as another error warranting reversal.
Perhaps the district court didn’t perform this balance because it couldn’t do so. How does one balance a harm to some unspecified number of people? The district court didn’t tell us and the majority doesn’t either.
One could stop there. But in fact, Tennessee’s interests in protecting its citizens from the pandemic cannot be overstated. All agree that these are far from ordinary times. Over the past few weeks, our entire nation has come together to combat a generation-defining crisis. Many have done so at great personal sacrifice.
In Tennessee, as in so many other states, the Governor has taken extraordinary steps to fight the pandemic. He declared a state of emergency, required all residents to remain at home except in limited circumstances, and ordered the closure of most businesses. As part of that effort, he also signed the generally applicable order at issue here. The Governor’s order allowed the state to conserve valuable personal protective equipment for those fighting the coronavirus. The order protects those who have undertaken perhaps the greatest personal sacrifice in protecting the citizens of Tennessee. There’s no reason to doubt that the Governor took these measures because “the safety of the general public” demanded it. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 29 (1905).

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Our law has long-protected just these types of decisions from judicial interference based on purported violations of substantive due process. In times of emergency, elected officials need room to do what they were elected to do—to govern. Sometimes their actions will incidentally impact a person’s liberty interests. But the Supreme Court has upheld such actions anyway, explaining that “[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [person or property], . . . regardless of the injury that may be done to others.” Id. at 26. And there’s no abortion exception to this wellsettled principle. To the contrary, the Supreme Court has made clear from the beginning that the ability to obtain an abortion is neither “absolute” nor “unlimited.” Roe v. Wade, 410 U.S. 113, 154 (1973) (citing Jacobson, 197 U.S. 11).
Of course, this does not mean that the courts should rubber stamp emergency measures— far from it. See Jacobson, 197 U.S. at 28–29. But it does mean that judges should act with care during such times, recognizing the limits of our knowledge, institutional capacity, and lawful authority. See id. at 30–31; cf. Gonzales, 550 U.S. at 163 (explaining that the Supreme Court has “given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty”).
Remarkably, the district court failed to acknowledge—let alone apply—these principles before it granted the injunction. Nor did it acknowledge the State’s heightened interests during times of emergency. Based on its decision, one might think that the executive order would be unconstitutional no matter how many lives it could save and no matter how few—if any— abortions it might prevent. Even the majority calls this omission “unfortunate.”
In a subsequent order denying a stay pending appeal, the district court seems to have recognized that it erred by ignoring the State’s primary legal authority for its position, Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). But rather than correct its mistake, the court doubled down, finding the facts of Jacobson to be readily “distinguishable” from the facts of this case. In doing so, the district court overlooked the basic principle of Jacobson: that states may respond to emergencies in the face of substantive-due-process rights, so long as they act reasonably and don’t single out specific rights or persons for disfavored treatment. See id. at 28– 30.

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No one claims that the State of Tennessee has singled out specific rights or persons in its response to the current pandemic. The executive order in this case applies to all non-essential medical procedures. And again, the Governor has issued several other orders that apply to all persons and that affect every aspect of daily life across the state.
Nor have the plaintiffs shown that the State has acted unreasonably in requiring its residents to postpone non-essential medical procedures for a three-week period. Just contrast this case with the facts of Jacobson, where the Supreme Court upheld a state’s authority to forcibly vaccinate individuals. See id. at 27–30. If the State can physically invade a person’s body in response to an emergency, then it surely may require people to delay certain medical procedures for the same purpose.
On these points the majority, for its part, is conclusory: it does little more than assert that the executive order “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Jacobson, 197 U.S. at 31. Given that plaintiffs haven’t established a constitutional violation in the first place, they certainly haven’t done so “beyond all question.”
The majority also dismisses the State’s interests on the ground that the executive order has no “real” and “substantial” relationship to the current pandemic. Id. That claim is remarkable given that the order follows recommendations from our nation’s leading public-health institution. See Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Strategies to Optimize the Supply of PPE and Equipment (last visited Apr. 24, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/index.html (explaining that equipment “shortages are currently posing a tremendous challenge to the US healthcare system” and recommending the cancellation of “elective and non-urgent procedures/appointments”). Plus, Jacobson clearly tells us that it’s “no part of the function of a court or a jury to determine which one of two modes [is] likely to be the most effective for the protection of the public against disease.” 197 U.S. at 30. The majority doesn’t explain why our court is an exception to that rule. And the amicus briefs the majority cites to discredit the State’s rationale for the executive order “are more formidable by their number than by their inherent value.” Id. One need only open a newspaper to appreciate the importance of preserving medical equipment at this time. So if nothing else, Jacobson forecloses the plaintiffs’ claim.

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Irreparable Harm. Consider next what (if any) irreparable harm the plaintiffs will suffer without an injunction. To be clear, the plaintiffs don’t claim that they themselves will suffer any irreparable harm. Rather, the plaintiffs assert that the women they purport to represent will suffer irreparable harm without an injunction. But cf. Gee v. June Med. Servs. L.L.C., 140 S. Ct. 35 (2019) (Mem.) (granting certiorari to consider whether traditional third-party standing rules apply in abortion cases).
The district court reasoned that the plaintiffs had established an irreparable injury because it thought that the executive order would prevent some women in Tennessee from having an abortion. But again the district court failed to make any factual findings showing that the order would prevent any particular woman from obtaining an abortion. To satisfy the irreparable-injury requirement, parties must demonstrate “likely” harm. Winter, 555 U.S. at 22. And the plaintiffs offer only speculation.
The district court also asserted that delays in the provision of abortions might irreparably harm some women by making their abortions more dangerous. But this argument stands in stark contrast with the claim that “[a]bortion is one of the safest medical procedures performed in the United States.” Whole Woman’s Health, 136 S. Ct. at 2320 (Ginsburg, J., concurring) (citation omitted). In fact, the plaintiffs themselves say that “abortion is extremely safe throughout pregnancy.” Plaintiffs Br. at 5. Is it an irreparable injury for a medical procedure to be only “extremely safe”? But again the district court addressed none of these facts on its way to its destination.
Meanwhile, the executive order allows doctors to perform an abortion when a woman would suffer “serious adverse consequences to [her] physical condition” without the surgery “as reasonably determined by a licensed medical provider.” The plaintiffs haven’t made any effort to explain why this exception (which contains built-in deference to medical professionals) would not give them the flexibility they need during this time of national crisis. And again, it was the plaintiffs’ burden to show that the executive order (with its exception) causes an irreparable injury. They failed to do so.

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Balance of Harms. Consider also the irreparable harms created by the district court’s injunction. Of course, a state always suffers irreparable injury when it’s wrongfully enjoined from enforcing one of its laws. See Abbott v. Perez, 138 S. Ct. 2305, 2324 & n.17 (2018); Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers). But that’s far from the only harm here. The Governor issued the executive order to preserve critical medical equipment. Every piece of equipment used for something besides the pandemic response could cost a life—the life of someone who acts selflessly to help others in a time of crisis. Simply put: doctors, nurses, and first responders will die without proper equipment. And that’s to say nothing of their family members, whose lives will be put at risk too. Given the twin risks of exponential community spread and hospital overload, every additional infection among first responders represents a significant threat to public health. It’s hard to imagine a scenario in which the harm imposed by an injunction would be greater.
The district court brushed off these concerns, saying the plaintiffs have already taken measures to reduce their use of medical equipment during surgical abortions. The district court apparently thought that the State would be harmed only if surgical abortions used an “appreciable amount” of medical equipment. (The Majority seems to think the same.) But neither the district court nor the Majority is in any position to second-guess the Governor’s judgment as to the amount of equipment that is really necessary to keep healthcare workers alive.
The district court also asserted that the executive order would be counterproductive for various policy reasons. Again the district court’s (and now the majority’s) willingness to constitutionalize its own policy judgments—in the midst of a national emergency no less—is remarkable. If anything has remained constant over the past hundred years of constitutional law, it’s that courts aren’t supposed to second guess policymakers based on their own subjective judgments of what makes for good policy. See, e.g., Perry v. Perez, 565 U.S. 388, 394 (2012) (per curiam) (noting that courts must exercise care not to displace “legitimate state policy judgments with the court’s own preferences”). All the more when our elected officials are tasked with making difficult decisions under conditions of uncertainty, risk, and imperfect information. See Jacobson, 197 U.S. at 30–31.

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The district court and majority also note that some women might travel to other states to have an abortion and that this might further aggravate the current pandemic. But neither the plaintiffs nor the district court nor the majority have pointed to a single person who said she would need to travel to another state to get an abortion. So again this is nothing more than speculation.
Public Interest. This factor points in the same direction. See Nken v. Holder, 556 U.S. 418, 435–36 (2009); Winter, 555 U.S. at 24–26. Plainly the public interest is served by a state’s ability to enforce a regulation whose purpose and effect is to save the lives of healthcare workers. The district court and majority assert that the public interest favors a preliminary injunction because it’s always in the public interest to prevent the violation of constitutional rights. See, e.g., Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 222 (6th Cir. 2016) (per curiam). That reasoning would have more force if the plaintiffs or district court had shown that the regulation actually violates any constitutional rights. But again the majority’s reasoning is only conclusory.
Scope of the Injunction. Finally, the district court plainly erred in defining the injunction’s scope. Preliminary injunctions are an “extraordinary remedy.” Winter, 555 U.S. at 24. That means courts that shouldn’t grant them based on speculative harms, which is what the district court did here; and that “the scope of relief should be strictly tailored to accomplish only that which the situation specifically requires.” Sharpe v. Cureton, 319 F.3d 259, 273 (6th Cir. 2003) (citation omitted). As the Supreme Court put it, “[i]t is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop.” Gonzales, 550 U.S. at 168. And an injunction’s proper scope becomes all the more important in cases involving government officials—and especially in cases where, as here, federal courts enjoin them. See Rizzo v. Goode, 423 U.S. 362, 378–80 (1976); see also Gonzales, 550 U.S. at 168 (“It would indeed be undesirable for [courts] to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.” (cleaned up)).
But again the district court disregarded these well-settled legal principles. The district court’s injunction doesn’t just apply to women who might lose their ability to have an abortion before Tennessee’s twenty-week deadline; it applies to all women who seek a surgical abortion—

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no matter their ability to obtain an abortion after the order expires. Injunctions should be aimed with rifle-scope precision. The district court here used a twelve-gauge.
The majority does acknowledge at least this error and tries to remedy it on appeal. But in doing so, the majority doesn’t fix the problem and also creates a problem of its own: it creates three “classes” of women—all of them amorphous, and thus likely to sow confusion going forward. In effect, the majority has certified a class under Rule 23(b)(2) without any request to do so or any effort to comply with the Federal Rules. Nor does the majority explain why the executive order unduly burdens most of the putative class. It simply announces that the injunction will apply to them.
The district court’s errors here are not unprecedented: Two other circuits have recently encountered similar district court decisions, and both circuits promptly corrected them—in one case twice. See In re Rutledge, No. 20-1791, 2020 WL 1933122 (8th Cir. Apr. 22, 2020); In re Abbott, No. 20-50296, 2020 WL 1911216 (5th Cir. Apr. 20, 2020); In re Abbott, 954 F.3d 772 (5th Cir. 2020). But cf. Robinson v. Att’y Gen., No. 20-11401-B, 2020 WL 1952370, at *4 (11th Cir. Apr. 23, 2020) (denying a stay pending appeal in “an atypical case” because, among other things, the state “concede[d] that the substance of the district court’s preliminary injunction is consistent with its own . . . interpretation of [its executive order]”). We should have done the same.
***
To sum up: the district court granted an injunction without much effort to apply the relevant law, without specific factual findings, and without any attempt to tailor the remedy to the purported constitutional violation. If that doesn’t count as an abuse of discretion, I don’t know what would. I respectfully dissent.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 20-5408

ADAMS & BOYLE, P.C. et al., Plaintiffs - Appellees,
v.
HERBERT H. SLATERY III et al. Defendants - Appellants.

FILED
Apr 24, 2020
DEBORAH S. HUNT, Clerk

Before: MOORE, WHITE, and THAPAR, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court for the Middle District of Tennessee at Nashville.
THIS CAUSE was submitted to the court on the motion and reply of Appellants, the response of Appellees, and the briefs of Amici Curiae.
IN CONSIDERATION THEREOF, it is ORDERED that the district court’s order issuing a preliminary injunction is AFFIRMED with the MODIFICATION set forth in the opinion of this court.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Exhibit 1
Case 3:15-cv-00705 Document 230-1 Filed 04/13/20 Page 1 of 32 PageID #: 5695

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ADAMS & BOYLE, P.C., on behalf of itself and its )

patients; MEMPHIS CENTER FOR

)

REPRODUCTIVE HEALTH, on behalf of itself and )

its patients; PLANNED PARENTHOOD OF

)

TENNESSEE AND NORTH MISSISSIPPI, on

)

behalf of itself and its patients; KNOXVILLE

)

CENTER FOR REPRODUCTIVE HEALTH, on

)

behalf of itself and its patients; and DR. KIMBERLY )

LOONEY, on behalf of herself and her patients,

)

)

Plaintiffs,

)

)

v.

)

)

HERBERT H. SLATERY III, Attorney General of )

Tennessee, in his official capacity; LISA PIERCEY, )

M.D., Commissioner of the Tennessee Department of )

Health, in her official capacity; W. REEVES

)

JOHNSON, JR., M.D., President of the Tennessee )

Board of Medical Examiners, in his official capacity; )

GLENN R. FUNK, District Attorney General of

)

Metropolitan Nashville and Davidson County, in his )

official capacity; AMY WEIRICH, District Attorney )

General of Shelby County, in her official capacity; )

BARRY P. STAUBUS, District Attorney General of )

Sullivan County, in his official capacity; CHARME )

P. ALLEN, District Attorney General of Knox

)

County, in her official capacity; WILLIAM LEE,

)

Governor of Tennessee, in his official capacity; and )

RENE SAUNDERS, M.D., Chair of the Tennessee )

Board for Licensing Health Care Facilities, in her

)

official capacity,

)

)

Defendants.

)

)

)

)

CIVIL ACTION
CASE NO. 3:15-cv-00705
JUDGE FRIEDMAN
MAGISTRATE JUDGE FRENSLEY

[PROPOSED] SUPPLEMENTAL COMPLAINT FOR TEMPORARY AND INJUNCTIVE RELIEF

Case 3:15-cv-00705 Document 230-1 Filed 04/13/20 Page 2 of 32 PageID #: 5696

Plaintiffs Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi, Knoxville Center for Reproductive Health, and Dr. Kimberly Looney (collectively, “Plaintiffs”), by and through their undersigned attorneys, bring this complaint against the above-named Defendants, and in support thereof allege the following:
PRELIMINARY STATEMENT 1. Plaintiffs Adams & Boyle, P.C., Memphis Center for Reproductive Health, and Planned Parenthood of Tennessee and North Mississippi challenged Tennessee’s requirement that women seeking an abortion make an additional, medically unnecessary trip at least 48 hours before they can obtain an abortion in order to attend an in-person meeting with the physician and receive certain state-mandated information. Tenn. Code Ann. § 39-15-202(a)-(h) (the “Delay Requirement”). 2. The Delay Requirement forces every woman seeking an abortion in Tennessee to remain pregnant against her will and against her physician’s medical judgment, even after she has made the decision to terminate her pregnancy. It subjects women to increased medical risk, emotional harms, protracted delays, increased costs, and other burdens. 3. The Court held a trial on the merits of the constitutional challenge to the Delay Requirement in September 2019, and the parties subsequently submitted proposed findings of fact and conclusions of law for the Court’s consideration. A decision is pending. 4. Plaintiffs now supplement their case to bring a constitutional challenge under 42 U.S.C. § 1983 to Governor Bill Lee’s April 8, 2020 Executive Order 25, “An Order To Reduce The Spread Of Covid-19 By Limiting Non-Emergency Healthcare Procedures” (the “Executive Order” or the “Order”), as it applies to procedural abortions in Tennessee. The Executive Order is attached as Exhibit A. It took effect on April 9, 2020, and will remain in effect until 12:01 a.m., Central Daylight Time, on April 30, 2020. The Executive Order will operate as a complete ban on
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procedural (sometimes called “surgical”) abortions in the State for some women. For others, it will impose extreme burdens by forcing them to travel long distances (including out of state) in the midst of the COVID-19 pandemic, delaying their ability to access care for weeks (and potentially even longer), and exposing them to increased medical risk.
5. Citing the ongoing COVID-19 pandemic and the need to “preserv[e] personal protective equipment for emergency and essential needs” and prevent “community spread of COVID-19 through non-essential patient-provider interactions,” the Order states that “[a]ll healthcare professionals and healthcare facilities in the State of Tennessee shall postpone surgical and invasive procedures that are elective and non-urgent.” Executive Order at 2. Elective and nonurgent procedures are defined as “those procedures that can be delayed until the expiration of this Order because they are not required to provide life-sustaining treatment, to prevent death or risk of substantial impairment of a major bodily function, or to prevent rapid deterioration or serious adverse consequences to a patient’s physical condition if the surgical or invasive procedure is not performed, as reasonably determined by a licensed medical provider.” Id. at 2-3.
6. The Executive Order carries severe, including criminal, penalties. In light of its broad restrictions, Plaintiffs were forced to cancel dozens of procedural abortion appointments that were scheduled to take place after the Executive Order took effect, including for patients who had already been forced by the Delay Requirement to travel to the Plaintiffs’ clinics to receive statemandated counseling and then returned home to wait the required 48 hours before obtaining an abortion. Numerous future appointments scheduled for this month are now being cancelled, throwing abortion access in Tennessee into disarray.
7. Application of Tennessee’s Executive Order to ban all procedural abortions contravenes the guidance of leading medical and health authorities regarding the provision of health care during the COVID-19 pandemic. The American College of Obstetricians and
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Gynecologists (“ACOG”) has issued a joint public statement with numerous major medical organizations in response to the COVID-19 pandemic, explaining that abortion is essential health care for which a delay of weeks, “or in some cases days,” increases the risks to patients’ health and safety. The American Medical Association (“AMA”) also issued a statement denouncing efforts to “ban or dramatically limit women’s reproductive health care” at this time.
8. For nearly fifty years, the U.S. Supreme Court has recognized the fundamental federal constitutional right to make the profoundly personal decision whether to terminate a pregnancy. See Roe v. Wade, 410 U.S. 113 (1973). The Supreme Court has repeatedly recognized that this right is foundational to equality and to respect for the dignity, autonomy, and bodily integrity of all people.
9. By prohibiting procedural abortions in Tennessee, the Executive Order clearly violates the fundamental right of Plaintiffs’ patients to seek an abortion before viability, in contravention of this long-standing Supreme Court precedent. Roe, 410 U.S. at 163–64; Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992). Even if the Order is scrutinized under the “undue burden” test that applies to laws regulating (not banning) abortion, the burdens on patients far outweigh any state interest here and constitute “a plain, palpable invasion of rights” under Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905) (explaining that a state’s exercise of police power is invalid where it intrudes upon fundamental rights or fails to actually further the asserted aims).
10. Indeed, federal courts have blocked similar measures banning abortion during the COVID-19 pandemic. See Robinson v. Marshall, No. 2:19-cv-365 (M.D. Ala. Apr. 12, 2020) (ECF No. 137); Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323-LY, 2020 WL
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1815587 (W.D. Tx. April 9, 2020);1 Southwind Women’s Center LLC v. Stitt, No. CIV-20-277-G, 2020 WL 1677094, at *3 (W.D. Okla. Apr. 6, 2020), appeal dismissed, No. 20-6045 (10th Cir. Apr. 13, 2020); Pre-Term Cleveland v. Attorney Gen. of Ohio, No. 1:19-cv-00360, slip op. at 6 (S.D. Ohio Mar. 30, 2020), appeal dismissed, No. 20-3365, 2020 WL 1673310 (6th Cir. Apr. 6, 2020).
11. As explained infra, forcing pregnant patients to remain pregnant against their will for weeks, or more likely months, furthers no state interests while imposing significant and, in many cases, insurmountable burdens on patients seeking essential health care. The Executive Order, in combination with the Delay Requirement, will compound the burdens already faced by women seeking abortion in Tennessee. Some will be not be able to obtain an abortion at all because they will pass the limit at which abortion is provided in the State while the Executive Order is in effect. And even after the Executive Order is lifted, there will be an extreme backlog of patients in need of care, some of whom may be forced to obtain a costlier, more complex, and longer procedural abortion, or who may be close to the point at which abortion is no longer available in Tennessee. The additional delay imposed by the Delay Requirement—forcing women to make two separate trips to the clinic with all of the attendant hurdles that entails—will make it even more difficult for women to access abortion, delaying many and preventing some patients from accessing abortion at all.
1 The Fifth Circuit has granted a partial administrative stay of the District Court’s order, leaving in place the temporary restraining order as to medication abortion and “abortions for women who would be past Texas’s legal limit—22 weeks LMP—for abortion by April 22.” In re Abbott, No. 20-50296, at 3, 5 (5th Cir. Apr. 13, 2020). Plaintiffs have filed an emergency application with the Supreme Court to vacate the stay. See Applicants’ Emergency Application to Justice Alito to Vacate Administrative Stay of Temporary Restraining Order Entered by the United States Court of Appeals for the Fifth Circuit, Planned Parenthood Center for Choice, et al., v. Greg Abbott, Governor of Texas, et al., No. 19A1019 (Apr. 11, 2020).
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12. Without injunctive relief, Plaintiffs will be forced to continue turning away patients seeking time-sensitive abortion care, thereby inflicting immediate and irreparable harm for which no adequate remedy at law exists. At a minimum, those patients will be prevented from obtaining an abortion for several weeks, and likely longer, given that the COVID-19 pandemic is predicted to last far beyond the Order’s stated expiration date. Some will not be able to access abortion at all and will be forced to carry pregnancies to term.
13. Not only will these patients be deprived of their constitutional right to essential healthcare and self-determination, but forcing them to continue their pregnancies will undermine the very goals identified in the Order: “preserving personal protective equipment for emergency and essential needs” and preventing “community spread of COVID-19 through non-essential patient-provider interactions.” Executive Order at 2. Forcing a patient to remain pregnant imposes far greater strains on an already-taxed healthcare system, as prenatal care and delivery involve more patient-provider interactions, including prenatal visits, additional screening tests, and, ultimately, hospital admission and labor and delivery, including a potential caesarean section, which is major abdominal surgery. Alternatively, some patients who have the means will attempt to obtain care by traveling to another state, thus increasing the risk of COVID-19 transmission but ultimately conserving no personal protective equipment (“PPE”). Under either scenario, preventing patients from accessing abortion in Tennessee will, contrary to the stated goals of the Executive Order, increase the risks, both to patients and the rest of Tennessee’s population, of contracting COVID-19 and result in much greater depletion of essential items needed to care for patients, including hospital beds and PPE. For all these reasons, the Executive Order’s ban on previability procedural abortion does nothing to further the Order’s asserted goals. Plaintiffs therefore seek declaratory and injunctive relief.
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JURISDICTION AND VENUE 14. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 and 1343. 15. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal and equitable powers of this Court. 16. Venue is appropriate under 28 U.S.C § 1391(b) because one or more of the Defendants resides in this judicial district and because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this judicial district.
PLAINTIFFS 17. Plaintiff Adams & Boyle, P.C., is a professional corporation organized under the laws of Tennessee. It is a holding company for Bristol Regional Women’s Center in Bristol, Tennessee (the “A & B Bristol Clinic”). The A & B Bristol Clinic has operated continuously since 1980. It provides an array of gynecological and reproductive health services in a private physician’s office atmosphere, including procedural abortions up to 12 weeks, 6 days LMP2 (prior to the Executive Order) and medication abortions up to 9 weeks, 6 days LMP. Adams & Boyle, P.C., sues on its own behalf and on behalf of its patients. 18. Plaintiff Memphis Center for Reproductive Health is a nonprofit organization that operates CHOICES, a women’s health clinic in Memphis, Tennessee (“Choices Memphis”). In operation since 1974, Choices Memphis strives to empower individuals to make informed decisions about their reproductive health; the clinic offers a full range of sexual and reproductive health care, including gynecology care, fertility services, health care services for lesbian, gay, and transgender individuals, testing and treatment for sexually transmitted infections, HIV testing and
2 “LMP” denotes the first day of a pregnant woman’s “last menstrual period.” It is the standard measure of gestational age used by medical professionals.
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referrals, midwifery care, medication abortions up to 11 weeks LMP, and, prior to the Executive Order, procedural abortions up to 15 weeks LMP. Choices Memphis is a member of the National Abortion Federation. Choices Memphis sues on its own behalf and on behalf of its patients.
19. Planned Parenthood of Tennessee and North Mississippi (“PPTNM”) or (“Planned Parenthood”) was formed in June 2018 by the merger of two prior Planned Parenthood entities: Planned Parenthood Greater Memphis Region (“PPGMR”) and Planned Parenthood of Middle and East Tennessee (“PPMET”). Planned Parenthood has four health centers in Tennessee at which abortion is provided; two in Memphis, one in Nashville, and one in Knoxville. The first Memphis health center provides medication abortion up to 11 weeks 0 days LMP and, prior to the Executive Order, procedural abortion up to 19 weeks, 6 days LMP; the second Memphis health center and the Knoxville health center provide medication abortion up to 11 weeks 0 days LMP; and the Nashville health center provides medication abortion up to 11 weeks 0 days LMP and, prior to the Executive Order, procedural abortion up to 19 weeks, 6 days LMP. Planned Parenthood provides approximately 6,500 abortions in Tennessee per year. In addition to abortion care, Planned Parenthood provides well-person care, contraception, testing and treatment for sexually transmitted infections, gender affirming care, and care for other gynecological concerns. Planned Parenthood’s philosophy of care is to provide nonjudgmental sexual and reproductive healthcare to all, ensuring patients receive unbiased and complete information. PPTNM sues on its own behalf and on behalf of its patients.
20. Plaintiff Knoxville Center for Reproductive Health (“The Knoxville Center”) is a non-profit reproductive health center that has been providing high-quality reproductive health care services to patients since 1975. The Knoxville Center provides a range of reproductive health services, including cancer screenings, testing and treatment for sexually transmitted infections,
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procedural abortions up to 15 weeks LMP (prior to the Executive Order), and medication abortions up to 11 weeks LMP. The Knoxville Center sues on its own behalf and on behalf of its patients.
21. Plaintiff Dr. Kimberly Looney is an obstetrician/gynecologist licensed to practice in the State of Tennessee. She has been the Chief Medical Officer of Plaintiff PPTNM since 2019, and has provided care at PPTNM since 2008. Dr. Looney provided procedural abortions at PPTNM up to 19 weeks, 6 days LMP prior to the Executive Order, and provides medication abortions at PPTNM up to 11 weeks LMP. Dr. Looney faces misdemeanor criminal penalties for violations of the Executive Order and potential medical licensure penalties. Dr. Looney sues on behalf of herself and her patients.
DEFENDANTS 22. Defendant Herbert H. Slatery III is the Attorney General of Tennessee. He is responsible for defending Tennessee laws against constitutional challenge. See Tenn. Code Ann. § 8-9-109(b)(9). Further, he has exclusive authority to prosecute criminal violations in Tennessee’s appellate courts. See Tenn. Code Ann. § 8-6-109(b)(2); State v. Simmons, 610 S.W.2d 141, 142 (Tenn. Crim. App. 1980). He is sued in his official capacity. 23. Defendant Lisa Piercey, M.D. is the Commissioner of the Tennessee Department of Health, and has general supervisory duties to protect the interests of health and life of the citizens of Tennessee. See Tenn. Code Ann. § 68-1-204. Commissioner Piercey has advised that failure to comply with Executive Order 25 is a “class A misdemeanor and may result in possible disciplinary action by [health care providers’] respective board.” Apr. 10, 2020 Letter from Commissioner Lisa Piercey, Tenn. Dep’t of Health, to Health Care Providers (attached as Exhibit B). Commissioner Piercey is sued in her official capacity. 24. Defendant W. Reeves Johnson, Jr., M.D., is the President of the Tennessee Board of Medical Examiners. The Board of Medical Examiners is empowered to take disciplinary action
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against a physician who violates various laws and regulations including those “governing abortion,” Tenn. Code Ann. § 63-6-214(b). Dr. Johnson is sued in his official capacity.
25. Defendant Glenn R. Funk is the District Attorney General for Nashville. He is responsible for prosecuting all violations of the state criminal statutes occurring in Metropolitan Nashville and Davidson County. Tenn. Code Ann. § 8-7-103. Violation of an executive order is a class A misdemeanor. Tenn. Code Ann. § 58-2-120. Mr. Funk is sued in his official capacity.
26. Defendant Amy Weirich is the District Attorney General for Shelby County. She is responsible for prosecuting all violations of the state criminal statutes occurring in Shelby County, which includes Memphis. Tenn. Code Ann. § 8-7-103. Violation of an executive order is a class A misdemeanor. Tenn. Code Ann. § 58-2-120. Ms. Weirich is sued in her official capacity.
27. Defendant Barry P. Staubus is the District Attorney General for Sullivan County. He is responsible for prosecuting all violations of the state criminal statutes occurring in Sullivan County, which includes Bristol. Tenn. Code Ann. § 8-7-103. Violation of an executive order is a class A misdemeanor. Tenn. Code Ann. § 58-2-120. Mr. Staubus is sued in his official capacity.
28. Defendant Charme P. Allen is the District Attorney General for Knox County. She is responsible for prosecuting all violations of the state criminal statutes occurring in Knox County, which includes Knoxville. Tenn. Code Ann. § 8-7-103. Violation of an executive order is a class A misdemeanor. Tenn. Code Ann. § 58-2-120. Ms. Allen is sued in her official capacity.
29. Defendant William Lee is the Governor of Tennessee and the author of the Executive Order, which he issued pursuant to his emergency authority.3 He is sued in his official capacity.
3 Tenn. Code Ann. § 58-2-107(e).
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He has authority to enforce violations of the Executive Order pursuant to Tenn. Code Ann. § 582-107.
30. Defendant Rene Saunders, M.D. is the Chair of the Board for Licensing Health Care Facilities. The Board for Licensing Health Care Facilities has the authority to discipline licensed ambulatory surgical treatment centers (“ASTCs”) for, among other things, violations of laws and regulations; permitting, aiding or abetting the commission of any illegal act in the ASTC; or conduct or practice found by the board to be “detrimental to the health, safety, or welfare of the patients of the ASTC.” Tenn. Comp. R. & Regs. 1200-08-10-.03(1); Tenn. Code Ann. § 68-11207. Dr. Saunders is sued in her official capacity.
FACTUAL ALLEGATIONS I. Background on Abortion 31. Legal abortion is a vital, safe, and common form of healthcare. There is no typical abortion patient: individuals seek abortions for a multitude of personal and often complex reasons. Nearly one in four women in the United States will obtain an abortion by age forty-five. 32. Pregnancy is commonly measured from the first day of the pregnant person’s last menstrual period (“LMP”). A full-term pregnancy has a duration of approximately forty weeks LMP. 33. There are generally two methods of providing abortion care: medication abortion and procedural abortion. 34. Medication abortion involves taking two medications—mifepristone, which is ingested in the clinic, and misoprostol, which is taken 24 to 48 hours later at a location of the patient’s choosing, typically at home. The pregnancy is passed outside the facility, in a process similar to miscarriage. The use of mifepristone in combination with misoprostol is safe and effective to terminate pregnancies up to 11 weeks (or 77 days) LMP.
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35. Although procedural abortion is often referred to as “surgical” abortion, it is not what is commonly understood to be surgery, as procedural abortion involves no incision, no need for general anesthesia, and no sterile field. Procedural abortion involves the use of instruments to gently dilate the cervix and evacuate the contents of the uterus. Procedural abortion is a straightforward and brief procedure; it is almost always performed in an outpatient setting and may at times involve local anesthesia or conscious sedation to make the patient more comfortable. Up to about 14 to 16 weeks LMP, procedural abortion is performed by the aspiration technique, which takes about five to ten minutes and uses gentle suction to empty the uterus.
36. Procedural abortion beyond this point requires some additional provider skills and equipment. After 14 to 16 weeks LMP, physicians use the dilation and evacuation (“D&E”) technique to adequately dilate the cervix and empty the uterus, which involves more in-clinic time and additional staff. Starting around 18 weeks LMP, procedural abortion is performed as a twoday procedure because the patient receives medications to dilate her cervix the day before the procedure.
37. Up to 11 weeks LMP, patients wishing to terminate their pregnancy may choose between medication and procedural abortion. However, after 11 weeks LMP, only procedural abortion is available. For some patients, such as those who are at increased risk of bleeding, procedural abortion is medically indicated over medication abortion. The Executive Order, by banning all procedural abortions, prevents these patients from obtaining the care they need.
38. Because pregnancy is not a static condition, abortion is necessarily time-sensitive healthcare. In Tennessee, abortion is not generally accessible past 19 weeks, 6 days LMP.
39. Both medication and procedural abortion are extremely safe, and safer than many other common medical procedures. Complications are rare and seldom result in the need for
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hospital care. However, the risks of complications increase as gestational age advances, as do the health risks associated with pregnancy itself.4
40. Abortion is far safer than the alternative—carrying a pregnancy to term. Nationally,
the risk of death associated with childbirth is approximately 14 times higher than that associated
with abortion, and every pregnancy-related complication is more common among women having live births than among those having abortions. 5 The risk of death from childbirth in Tennessee is even higher, and the state has one of the highest maternal mortality rates in the United States.6 In 2019, the maternal mortality ratio in Tennessee was 35.8 deaths per 100,000 live births reported.7 For Black women, the disparity is even more stark: 55 deaths for every 100,000 births.8 By comparison, there are 0.6 deaths per 100,000 legal abortions.9 Thus, even with an uncomplicated
pregnancy in an otherwise healthy individual, carrying a pregnancy to term and giving birth poses
serious medical risks and can have medical and physical consequences.
4 Linda A. Bartlett, et al., Risk Factors for Legal Induced Abortion-Related Mortality in the United States, 103 Obstetrics & Gynecology 729, 735 (2004), https://www.researchgate.net/publication/8648767_Risk_Factors_for_Legal_Induced_AbortionRelated_Mortality_in_the_United_States. 5 Elizabeth G. Raymond & David A. Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth in the United States, 119 Am. J. Obstetrics & Gynecology 215, 217 (2012), http://unmfamilyplanning.pbworks.com/w/file/fetch/119312553/Raymond%20et%20alComparative%20Safety.pdf (hereinafter “Raymond et al.”). 6 See United Health Found., America’s Health Rankings: Maternal Mortality in Tennessee (2019), https://www.americashealthrankings.org/explore/health-of-women-andchildren/measure/maternal_mortality_a/state/TN. 7 Id. 8 Id. 9 Raymond et al.; see also Tara C. Jatloui et al., Abortion Surveillance—United States, 2015, 67 Morbidity & Mortality Weekly Rep. Surveillance Summaries 1, 45 tbl. 23 (2018), https://www.cdc.gov/mmwr/volumes/67/ss/pdfs/ss6713a1-H.pdf (ranging from 0.00052% to 0.00078% for approximately five-year periods from 1978 to 2014).
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41. Delaying a woman who seeks an abortion to a later point in pregnancy will expose
her to increased medical risks, force her to undergo a more complex, lengthier procedure, and
impose greater financial costs. And delaying a woman seeking an abortion beyond the cutoff point
at which abortion services are available—forcing her to either travel out of state to obtain an
abortion, attempt a medically unsupervised abortion, or carry an unwanted pregnancy to term—
increases her risks of complications and death.
II. The COVID-19 Pandemic and Plaintiffs’ Health and Safety Measures in Response
42. COVID-19, first identified in December 2019,10 has grown to a worldwide
pandemic. The disease has spread to over 180 countries, infecting millions of people and killing
more than 119,000.11 In the United States, the virus has reached every state, including nearly 5500 confirmed cases and over 110 deaths in Tennessee as of the time of filing.12 Federal and state
officials and medical professionals expect a surge of infections that may last for a year or eighteen months13 and test the limits of the healthcare system.14 Vanderbilt University Medical Center researchers predict that in Tennessee COVID-19 hospitalizations will peak in May or June.15
10 Derrick Bryson Taylor, A Timeline of the Coronavirus Pandemic, N.Y. Times, https://www.nytimes.com/article/coronavirus-timeline.html (updated Apr. 7, 2020). 11 Johns Hopkins Univ. of Med., Coronavirus COVID-19 Global Cases by the Centers for Systems Science and Engineering (CSSE) at John Hopkins University (JHU), https://coronavirus.jhu.edu/map.html (last visited Apr. 13, 2020). 12 N.Y. Times, Coronavirus in the U.S.: Latest Map and Case Count, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html#states (last visited Apr. 13, 2020). 13 Denise Grady, Not His First Epidemic: Dr. Anthony Fauci Sticks to the Facts, N.Y. Times (Mar. 8, 2020), https://www.nytimes.com/2020/03/08/health/fauci-coronavirus.html. 14 Ctrs. for Disease Control & Prevention, Interim Guidance for Healthcare Facilities: Preparing for Community Transmission of COVID-19 in the United States, https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/guidance-hcf.html (last updated Feb. 29, 2020). 15 Jake Lowary, Vanderbilt Health Policy COVID-19 model finds evidence of flattening curve,
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43. Since the COVID-19 crisis began, Plaintiffs have been diligent in protecting the health of their patients and staff while providing high-quality, timely abortion care. Even before the Executive Order was issued, they proactively adopted recommendations and guidelines published by the Centers for Disease Control and Prevention (“CDC”), the World Health Organization, the Centers for Medicare and Medicaid Services, and the National Abortion Federation regarding COVID-19, while continuing to comply with all relevant Tennessee laws and regulations governing abortion. Plaintiffs had already implemented measures specifically designed to serve the stated goals of the Order—conserving needed medical resources and preventing the spread of the virus—while continuing to ensure access to essential care.
44. Procedural abortions do not require the use of any hospital resources that may be needed for the COVID-19 response, such as hospital beds, ICU beds, or ventilators. Indeed, procedural abortion takes place in an outpatient setting—either a clinic or a physician’s office. Procedural abortion involves only minimal use of PPE: typically gloves, a surgical mask or reusable plastic face shield, and either reusable scrubs or a disposable gown or smock. None of Plaintiffs’ physicians use the N95 respirators that are in short supply during this COVID-19 pandemic to provide abortion care. Moreover, because procedural abortions are exceedingly safe, need for hospital-based care following a complication is exceedingly rare.
45. A procedural abortion at a later stage in pregnancy requires more PPE and essential resources than a procedural abortion at an earlier stage. This is particularly true of two-day procedures, which involve more PPE and greater patient-provider interactions. However, the PPE
recommends social distancing policies continue, VUMC Reporter (Apr. 9, 2020), https://news.vumc.org/2020/04/09/vanderbilt-health-policy-covid-19-model-finds-evidence-offlattening-curve-recommends-distancing-policies-continue/ (predicting that, with regard to Tennessee, “if the current social distancing policies continue to reduce the spread of the disease, there would be an estimated peak of hospitalizations in mid-June. If the state were to experience additional gains from social distancing, under that more optimistic scenario the peak of hospitalizations could be lower and could be as early as mid-May”).
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required for procedural abortion at any stage in pregnancy is substantially less than that required for a woman who needs prenatal care during pregnancy, and of course, one who carries a pregnancy to term and gives birth.
46. Thus, the Plaintiffs’ provision of abortion care does not burden Tennessee hospitals or divert hospital resources, equipment, or bed capacity away from the fight against COVID-19. Nevertheless, Plaintiffs have made every effort to reduce person-to-person contact and conserve PPE while at the same time balancing the need to provide essential healthcare to patients. For example, where medically appropriate, and based on the particularized needs of the facilities, Plaintiffs have reduced the number of staff in the clinic at any given time and restricted the staff who can be present in the procedure room during procedural abortion to only those that are medically essential or required by law. They have postponed or cancelled non-essential procedures, such as wellness visits, and are providing services via telephone whenever possible and in accordance with the law. When providing procedures which cannot be delayed, Plaintiffs are making every effort to conserve PPE and other essential resources and to reduce the possibility of spread and transmission of COVID-19.
47. The Plaintiffs are also screening patients for symptoms over the telephone prior to their appointment and when they arrive for their appointments, prior to entering the facilities. Any person exhibiting a fever or any other symptoms of COVID-19 is not permitted in the Plaintiffs’ clinics. Plaintiffs’ staff are maintaining social distancing by, for example, staggering appointments, not allowing patients to bring a support person to their appointment unless absolutely necessary (such as for minors), and keeping patients in separate rooms whenever possible. Additionally, Plaintiffs’ staff continuously disinfect surfaces, doorknobs, and other frequently touched surfaces throughout the day.
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48. At any given time, the Plaintiffs have fewer people inside their healthcare facilities than they normally had before the COVID-19 pandemic.
III. Governor Lee’s Executive Order 49. On March 12, Governor Bill Lee declared a State of Emergency in Tennessee “to facilitate the treatment and containment of COVID-19.”16 This invoked the Governor’s emergency powers to temporarily suspend “any law, order, rule or regulation prescribing the procedures for conduct of state business or the orders or rules or regulations of any state agency” if strict compliance would prevent, hinder or delay necessary action in coping with the emergency. Tenn. Code Ann. § 58-2-107(e)(1). 50. On March 23, 2020, Governor Lee signed Executive Order No. 18 (“EO 18”), which prevented hospitals and ambulatory surgical treatment centers from performing non-essential procedures, but explicitly exempted “pregnancy-related visits and procedures” as well as “emergency or trauma-related procedures where postponement would significantly impact the health, safety, and welfare of the patient.”17 EO 18 defined non-essential procedures as “any medical procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” 51. Before the expiration of EO 18, Governor Lee signed Executive Order 25, which supersedes the provisions of EO 18. See Executive Order at 3. Executive Order 25 states that its purpose is to “preserv[e] personal protective equipment for emergency and essential needs” and
16 TN Office of the Governor, Gov. Bill Lee Issues Executive Order Declaring State of Emergency in Response to COVID-19 (Mar. 12, 2020), https://www.tn.gov/governor/news/2020/3/12/gov--bill-lee-issues-executive-order-declaringstate-of-emergency-in-response-to-covid-19.html.
17 Governor Bill Lee, Executive Order No. 18, An Order To Reduce the Spread of COVID-19 By Limiting Non-Emergency Healthcare Procedures (Mar. 23, 2020), https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee18.pdf.
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prevent “community spread of COVID-19 through non-essential patient-provider interactions.” Id. at 2.
52. The Executive Order explains that “the American College of Surgeons has recommended that each hospital, health system, and surgeon thoughtfully review all scheduled elective procedures with a plan to minimize, postpone, or cancel electively scheduled operations, endoscopies, or other invasive procedures and to immediately minimize use of essential items needed to care for patients, including, but not limited to, ICU beds, personal protective equipment, terminal cleaning supplies, and ventilators.” Executive Order at 1.
53. The Executive Order describes personal protective equipment as including, but not limited to, “medical gowns, N95 masks, surgical masks, TYVEK suits, boot covers, gloves, and/or eye protection.” Id. at 3.
54. The Executive Order took effect at 12:01 a.m., Central Daylight Time, on April 9, 2020, and is in effect until 12:01 a.m., Central Daylight Time, on April 30, 2020. A violation of an executive order is a class A misdemeanor and can lead to various civil penalties, including possible disciplinary action by a licensing board. See Exhibit B; Tenn. Code Ann. § 58-2-120.
55. In a previous executive order, Governor Lee observed that “providing essential healthcare services in a manner that minimizes the continued spread of COVID-19 requires the use of alternative delivery mechanisms to protect healthcare providers and patients,” and suspended several restrictions on the practice of telemedicine in Tennessee, including laws governing who may provide services via telehealth.18
18 See Governor Bill Lee, Executive Order 20, An Order Amending Executive Order No. 15 Suspending Provisions of Certain Statutes and Rules and Taking Other Necessary Measures in order to Facilitate the Treatment and Containment of COVID-19 (Mar. 26, 2019), https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee20.pdf.
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56. However, unlike other healthcare providers, it is unlawful for Plaintiffs to transition abortion services to telehealth, as a result of separate, medically unnecessary abortion-specific statues and regulations. State law prohibits the use of telehealth for medication abortion. Tenn. Code Ann. § 63-6-241.
IV. The Executive Order Will Harm Patients 57. As trusted healthcare providers, Plaintiffs understand their responsibility to be there when their patients need them most. Abortion was essential healthcare before COVID-19, and the economic upheaval, housing insecurity, and rising unemployment that so many are now experiencing have only increased patients’ needs for abortion care and made timely access even more vital. 58. Within the last month, a group of preeminent national medical and leading health organizations issued a joint statement on “Abortion Access During the COVID-19 Outbreak.” The guidance instructs that abortion is an essential healthcare service and abortion services should not be delayed during this public health emergency. Specifically, ACOG stated: “To the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure” because it “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks or potentially make it completely inaccessible.”19 These groups emphasized that “[t]he consequences of being unable to
19 Am. Coll. of Obstetricians & Gynecologists, Am. Board of Obstetrics & Gynecology, Am. Ass’n of Gynecologic Laparoscopists, Am. Gynecological & Obstetrical Soc’y, Am. Soc’y for Reprod. Med., Soc’y for Acad. Specialists in Gen. Obstetrics & Gynecology, Soc’y of Fam. Plan., and Soc’y for Maternal-Fetal Med., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/jointstatement-on-abortion-access-during-the-covid-19-outbreak [hereinafter “Joint Statement on Abortion Access During the COVID-19 Outbreak”]; see also Am. Coll. of Obstetricians & Gynecologists, Am. Ass’n of Gynecologic Laparoscopists, Am. Soc’y for Reprod. Med., Am. Urogynecologic Soc’y, Soc’y of Fam. Plan., Soc’y of Gynecologic Surgeons, Soc’y for
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obtain an abortion profoundly impact a person’s life, health, and well-being.”20
59. The AMA, American Nurses Association, and American Hospital Association also
issued a statement “urging the public to #StayHome as we reach the critical stages of our national
response to COVID-19,” but stressed that “[o]f course, those with urgent medical needs, including pregnant women, should seek care as needed.”21 And the AMA went further, issuing a separate
statement lamenting as “unfortunate that elected officials in some states are exploiting this moment
to ban or dramatically limit women’s reproductive health care, labeling procedures as ‘nonurgent.’”22 The AMA stated that “[a]t this critical moment and every moment, physicians—not
politicians—should be the ones deciding which procedures are urgent-emergent and need to be performed, and which ones can wait, in partnership with patients.”23
60. Contrary to this guidance from leading medical organizations, the Executive Order
has effectively banned abortion after eleven weeks of pregnancy, and even earlier for those patients
who are ineligible for medication abortion.
61. Although the Order currently remains in force until April 30, 2020, experts believe the coronavirus pandemic will last a year to eighteen months.24 Given the criminal and other
penalties attached to violations of the Order, Plaintiffs have been and will continue to be forced to
Maternal-Fetal Med., and Soc’y of Gynecologic Oncology, Joint Statement on Elective Surgeries (Mar. 16, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-electivesurgeries (pregnancy-related procedures for which delay will negatively affect patient health and safety should not be delayed). 20 Joint Statement on Abortion Access During the COVID-19 Outbreak, supra note 19. 21 Am. Med. Ass’n, Am. Hosp. Ass’n, and Am. Nurses Ass’n: #StayHome to confront COVID19 (Mar. 24, 2020), https://www.ama-assn.org/press-center/press-releases/ama-aha-anastayhome-confront-covid-19. 22 Am. Med Ass’n, AMA statement on government interference in reproductive health care (Mar. 30, 2020), https://www.ama-assn.org/press-center/ama-statements/ama-statement-governmentinterference-reproductive-health-care. 23 Id. 24 See Grady, supra note 13.
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cancel appointments and turn away patients in need of care, with no guarantee or indication that the Order will not be extended even further.
62. Meanwhile, the Delay Requirement already imposes significant burdens on patients. Indeed, for those patients seeking care after the Executive Order is lifted, the Delay Requirement will further delay patients’ ability to access abortion care in Tennessee, preventing some patients from accessing care at all.
63. In addition, Tennessee prohibits Medicaid and insurance coverage of abortion in state exchanges established by the Affordable Health Act. Tenn. Code Ann. § 56-26-134. Patients seeking abortions under the age of 18 must obtain parental consent or a judicial bypass, either of which can delay access to care. Tenn. Code Ann. § 37-10-303. During the COVID-19 pandemic, patients must navigate these barriers against the backdrop of job insecurity, minimal public transit availability, and limited childcare assistance due to mandatory social-distancing and shelter-inplace orders.
64. Abortion care is only available during a limited window of time during a pregnancy, and these legal restrictions make abortion harder to access with each passing week. While patients generally seek abortion as soon as they are able, most of Plaintiffs’ patients are low-income and many face financial and logistical obstacles that can delay their access to abortion. For example, low-wage workers often have no paid time off or sick leave, so even if a pregnant worker is able to get time off work for an abortion appointment, they will likely have to forgo part of a paycheck. And if patients have lost their jobs it will be even more difficult to afford an abortion. Patients facing long travel distances typically must arrange and pay for transportation and arrange to take time off work, and also arrange and pay for childcare while they travel to their abortion appointments.
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65. Of course, for many women who seek abortion, leaving the state for care is entirely
out of reach. Women seeking abortion are disproportionately poor: approximately 75 percent of
women having abortions in the United States in 2014 were poor or low-income (i.e., have incomes
of less than 199 percent of the federal poverty level).25 Similarly, many of Plaintiffs’ patients are
poor or low-income—indeed, the majority have incomes at or below 110 percent of the federal
poverty level. Poor and low-income patients routinely face barriers to accessing health care.
66. All of these obstacles are exacerbated by the COVID-19 crisis, as patients seeking
abortion care grapple with layoffs and other work disruptions, and the closure of schools and
childcare facilities.26 Unemployment claims are soaring; indeed, during the week ending on April
4, 2020, the number of unemployment claims in Tennessee rose to 116,141 initial claims – a 23,641
increase from the 92,500 initial claims filed the previous week.27 People who receive health
insurance through their employers are being laid off and left without coverage for themselves and
their families.28 And limitations placed on travel as a result of COVID-19 further exacerbate the
obstacles faced by patients.
25 Jenna Jerman, Rachel K. Jones, & Tsuyoshi Onda, Characteristics of Abortion Patients in 2014 and Changes Since 2008 at 11, Guttmacher Inst. (May 2016), https://www.guttmacher.org/sites/default/files/report_pdf/characteristics-us-abortion-patients2014.pdf. 26 See, e.g., Dylan Aycock, Tennessee residents have filed nearly 250,000 unemployment claims in past three weeks, Apr. 9, 2020, https://communityimpact.com/nashville/southwestnashville/economy/2020/04/09/tennessee-residents-have-filed-nearly-250000-unemploymentclaims-in-past-three-weeks/; Gov. Lee asks schools to remain closed through late April, News Channel 11, Mar. 24, 2020, https://www.wjhl.com/local-coronavirus-coverage/gov-lee-asksschools-to-remain-closed-through-late-april/; Carley Gordon, Parents still paying for daycare centers that are closed during coronavirus pandemic, Mar. 24, 2020, https://www.wsmv.com/news/parents-still-paying-for-daycare-centers-that-are-closed-duringcoronavirus-pandemic/article_39b22308-6e34-11ea-af7e-f7b64a4786cf.html. 27 U.S. Dep’t of Labor, Unemployment Insurance Weekly Claims Report (Apr. 9, 2020), https://www.dol.gov/ui/data.pdf. 28 Jason Lemon, Over 7 Million Americans to Lose Health Insurance During Coronavirus Pandemic, 1.5 Million Have Already Lost Coverage, New Study Predicts, Apr. 8, 2020,
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67. Although abortion is extremely safe throughout pregnancy, the risk, complexity, duration, and thus cost increase as pregnancy progresses. As a result, patients who are delayed in obtaining care as they save money for the procedure may find that even more money is needed for the delayed procedure, necessitating even more delay.
68. Timing is critical for patients having a procedural abortion, because there are certain points in pregnancy at which abortion may become more complex or fewer options may be available. In addition, the later in pregnancy a patient accesses a procedural abortion the more likely she is to experience a rare complication like hemorrhage, uterine perforation, cervical laceration or retained products of conception. Patients who are pushed beyond the window for medication abortion must either obtain either an aspiration procedure, a one-day D&E procedure involving more in-clinic time and more staff, or eventually a two-day D&E procedure, requiring increased PPE and contacts with the healthcare system, as compared to a one-day procedure.
69. Aside from the increased risks of the procedure, it is also distressing for patients to be forced to delay their abortion, and remain pregnant, once they are certain of their decision.
70. The Executive Order’s ban on procedural abortion will harm patients’ physical, emotional, and financial wellbeing and the wellbeing of their families. Patients will be delayed, and in some cases, unable to access abortion at all in Tennessee.
71. Forcing a woman to continue a pregnancy against her will, particularly during a global pandemic, can pose risks to her physical, mental, and emotional health. Even an uncomplicated pregnancy can put patients at increased medical risk, including the increased risks associated with caesarean or vaginal delivery, which entails risks of hemorrhage, infections like chorioamnionitis or endometriosis, and increased risks of preeclampsia or eclampsia. Moreover,
https://www.newsweek.com/over-7-million-americans-lose-health-insurance-duringcoronavirus-pandemic-15-million-have-1496925.
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pregnancy, childbirth, and an additional child may exacerbate an already difficult situation for those who have suffered trauma, such as sexual assault or domestic violence, and the pandemic has only exacerbated these risks—domestic violence hotlines have reported a substantial increase in calls since the COVID-19 crisis began.29 Research has found that women denied an abortion were four times more likely than women who received an abortion to experience economic hardship and insecurity lasting for years, with serious consequences for those women and their families.30 As a result of the COVID-19 pandemic, unemployment rates are soaring, meaning that families are losing not only their income but in many cases their employer-provided health insurance; the medical and economic hardships of pregnancy and childrearing, for many families, are thus more acute now than ever. V. Impact of Executive Order on Patients and the Medical System
72. Delaying abortion also harms public health and is counterproductive to the purposes of the Executive Order. The Executive Order’s stated goals are to “preserv[e] personal protective equipment for emergency and essential needs” and “prevent[] community spread of COVID-19 through non-essential patient-provider interactions.” Executive Order at 2. But pregnant people who are delayed in obtaining an abortion, or unable to obtain abortion care at all, will have far more contact with the healthcare system than if they were able to obtain an abortion.
73. At a minimum, this includes prenatal visits—at least once a month, and more for patients with high-risk pregnancies or preexisting conditions—as well as pregnancy-related screenings and tests, including repeat ultrasounds and blood tests.31 Unlike abortion, for which
29 See, e.g., Kasey Freeman, YWCA sees increase in domestic violence calls amid COVID-19 outbreak, Apr. 1, 2020, https://www.newschannel5.com/news/ywca-sees-increase-in-domesticviolence-calls-amid-covid-19-outbreak. 30 Diana G. Foster et al., Socioeconomic Outcomes of Women Who Receive and Women Who Are Denied Wanted Abortions in the United States, 108 Am. J. Public Health 407 (2018). 31 See also Rupsa C. Boelig et al., Expert Review: MFM Guidance for COVID-19, Am. J.
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complications are extremely rare and almost never require hospital transfers, one in five pregnant women will visit a hospital during pregnancy prior to delivery, and every time they do they will be interacting with more people and increasing the hospital’s use of PPE. Women who develop pregnancy-related diabetes or other pregnancy-related health conditions will also require even greater interactions with the health system. Moreover, 20 percent of pregnancies end in miscarriage, for which patients often seek care at a hospital emergency room.
74. For those who are blocked from obtaining a desired abortion, pregnancy will end with childbirth. Labor and delivery, and in particular, a caesarean section procedure, which occurs commonly, require vastly more PPE, hospital resources, and patient-provider contact than procedural abortion. A hospital birth—attended by multiple medical care providers—could involve anywhere from seven to ten gowns, masks, and sterile gloves. For an uncomplicated pregnancy, the patient will remain in the hospital at least 24-48 hours, for a caesarean section even longer, and for a more complicated pregnancy, potentially even longer still. Again, this means that the patient will require the use of a hospital bed or room, and will require the time and attention of hospital staff, who will have to use PPE during interactions with the patient.
75. Moreover, the COVID-19 crisis has increased the likelihood that pregnant people will be sent to an emergency department. ACOG has advised that, “given the lack of data and experience with other coronaviruses such as SARS-CoV and MERS-CoV, diligence in evaluating and treating pregnant women is warranted.” Accordingly, ACOG recommends that pregnant patients reporting certain potential COVID-19 symptoms—including those common during pregnancy for unrelated reasons, such as difficulty breathing—should “immediately seek care in
Obstetrics & Gynecology MFM (Mar. 19, 2020) (recommending that, even during the COVID19 pandemic, pregnant people should have multiple in-person visits for routine ultrasounds and laboratory work throughout pregnancy).
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an emergency department or equivalent unit that treats pregnant women,” be isolated if possible, and “adhere to local infection control practices regarding personal protective equipment.”32 This, of course, will involve significantly more strained hospital resources and PPE than the provision of abortion care.
76. Some patients with the means and resources will seek abortion care in other states that have not banned it. Forcing patients seeking reproductive healthcare to travel outside of their communities does nothing to protect or advance their health and only imposes additional risks and burdens on their ability to obtain care. In fact, such travel would be wholly inconsistent with government guidelines and directives to reduce transmission of COVID-19 by practicing social distancing and avoiding travel and other contacts, as it will require patients to have contacts with many individuals to obtain childcare, transportation, food, and lodging necessary to make the trip. Forcing patients to travel out of state to obtain care, sometimes hundreds of miles away, would also result in their obtaining abortions at later gestational ages than if they had been able to obtain care in-state, resulting in increased risks, use of PPE, and interactions with the healthcare system.
77. Tennessee’s existing legal restrictions on abortion also impose burdens that undermine Defendants’ stated goal of preserving PPE. For example, the Delay Requirement requires patients to make at least two in-person appointments for an abortion, even though there is no benefit to the first visit, and most patients could obtain care just as safely in one visit. This directly undermines the Executive Order’s stated goal of “preventing community spread of COVID-19 through non-essential patient-provider interactions.” Executive Order at 2.
32 See Am. Coll. of Obstetricians & Gynecologists, Outpatient Assessment and Management for Pregnant Women With Suspected or Confirmed Novel Coronavirus (COVID-19) (Apr. 10, 2020), https://www.acog.org/-/media/project/acog/acogorg/files/pdfs/clinical-guidance/practiceadvisory/covid-19-algorithm.pdf?la=en&hash=2D9E7F62C97F8231561616FFDCA3B1A6.
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78. When patients cannot access services to terminate a pregnancy within the healthcare system, some will find ways to do so outside the healthcare system, not all of which may be safe. If attempts to self-induce give rise to additional health problems, some patients may be forced to seek emergent medical care, increasing their interactions with the outside world and further taxing the medical system as it works to respond to the COVID-19 crisis.
79. Further complicating matters, there are only two clinics in the entire state who provide abortion care past 15 weeks LMP, and they only provide care up to 19 days, 6 weeks LMP. Accordingly, even when the Executive Order is lifted (assuming it is not extended), there will be a severe backlog of patients who were prevented from obtaining a procedural abortion. In all likelihood, a rush of patients will all be trying to schedule abortions at the same time, all of whom have been delayed to a later point in pregnancy, and all of whom will need to be scheduled for both the counseling visit and the procedural visit before they reach the point in pregnancy when abortions are no longer available in Tennessee. This will create a crush of demand that clinics are unlikely to be able to meet. It will also result in patients at earlier stages in pregnancy being delayed so that patients who would otherwise be denied care entirely can be treated first. These backlogs, combined with limited provider capacity due to the pandemic and increased wait times imposed by the Delay Requirement, will cause serious and irreparable harm. Some patients will be delayed to the point at which they are forced to undergo a more complicated and costly D&E procedure, or a two-day D&E procedure, which requires greater use of PPE and places greater strain on the healthcare system. Others will lose the option of choosing an abortion altogether, despite the fact that forcing people to remain pregnant against their will does nothing to further Tennessee’s interest in combatting the COVID-19 pandemic.
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CLAIMS FOR RELIEF COUNT I
(Substantive Due Process) 80. Plaintiffs reallege and incorporate by reference the allegations contained above. 81. By banning procedural abortion after eleven weeks of pregnancy, and, in particular, by allowing no exception for patients who will be unable to obtain an abortion entirely; who will be forced to have a lengthier and more complex abortion procedure; and who will be forced to have a two-day rather than a one-day procedure; the Executive Order, as applied to procedural abortion, violates Plaintiff’s patients’ rights to privacy, liberty, and bodily integrity and autonomy guaranteed by the Fourteenth Amendment to the U.S. Constitution. 82. Unless enjoined, the Executive Order will subject Plaintiffs’ patients to irreparable harm for which no adequate remedy at law exists by preventing and/or delaying them from obtaining an abortion in Tennessee, thereby causing them to suffer significant constitutional, medical, emotional, and other harm.
REQUEST FOR RELIEF Plaintiffs respectfully request that this Court:
A. Immediately issue a temporary restraining order, followed by a preliminary injunction, and ultimately a permanent injunction, restraining Defendants, their officers, agents, servants, employees, and attorneys, and any persons in active concert or participation with them, from enforcing or requiring compliance with the Executive Order, as applied to procedural abortions. In particular, the Providers seek injunctive relief on behalf of those patients who are most gravely harmed by EO-25 because of the time-sensitive nature of abortion care, including: (1) patients who, in the good faith professional judgment of the provider, will likely lose their ability to obtain an abortion in Tennessee if their procedures are delayed until after April 30, 2020; (2) patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a
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lengthier and more complex abortion procedure, which is only available at two clinics in Nashville and Memphis, if their procedures are delayed until after April 30, 2020; or (3) patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a two-day procedure—which is only available at two clinics in Nashville and Memphis, and which requires at least three separate visits to the provider—if their procedures are delayed until April 30, 2020. In making such determinations, providers must be allowed take into account all of the factors bearing on an individual patient’s ability to timely access abortion care and medical risk, including the patient’s medical history, familial circumstances, and any logistical and financial obstacles faced by the patient;
B. Enter a judgment declaring that the Executive Order as applied to Plaintiffs’ provision of procedural abortion is enjoined;
C. Grant Plaintiffs attorney’s fees and costs pursuant to 42 U.S.C. § 1988; and/or D. Grant such other and further relief as this Court may deem just, proper, and equitable, including that, during the pendency of the Order, Defendants and their officers, agents, servants, employees, and attorneys, and any persons in active concert or participation with them be temporarily enjoined from enforcing the Delay Requirement’s in-person counseling requirement.
Respectfully submitted, /s/ Thomas Castelli Thomas H. Castelli (No. 24849) American Civil Liberties Union Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Tel: (615) 320-7142 tcastelli@aclu-tn.org Attorney for Plaintiffs Scott P. Tift David W. Garrison
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BARRETT JOHNSTON MARTIN & GARRISON, LLC Bank of America Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Tel: (615) 244-2202 Fax: (615) 252-3798 stift@barrettjohnson.com dgarrison@barrettjohnson.com
Thomas C. Jessee Jessee & Jessee P.O. Box 997 Johnson City, TN 37605 Tel: (423) 928-7175 jjlaw@jesseeandjessee.com
Michael J. Dell* Jason M. Moff* Irene Weintraub* Timur Tusiray* Catherine Hoge*
Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 Tel: 212-715-9129 Tel: 212-715-9113 mdell@kramerlevin.com jmoff@kramerlevin.com iweintraub@kramerlevin.com ttusiray@kramerlevin.com choge@kramerlevin.com
Attorneys for Plaintiffs Adams & Boyle, P.C., Memphis Center for Reproductive Health, and Planned Parenthood of Tennessee and North Mississippi
Autumn Katz* Genevieve Scott** Michelle Moriarty* Center for Reproductive Rights 199 Water Street, 22nd Floor New York, NY 10038 Tel: (917) 637-3600 Fax: (917) 637-3666 akatz@reprorights.org
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gscott@reprorights.org mmoriarty@reprorights.org Attorneys for Plaintiffs Adams & Boyle, P.C. and Memphis Center for Reproductive Health Maithreyi Ratakonda* Planned Parenthood Federation of America 123 William St., 9th Floor New York, NY 10038 Tel: (212) 261-4405 Fax: (212) 247-6811 mai.ratakonda@ppfa.org Attorney for Plaintiffs Planned Parenthood of Tennessee and North Mississippi and Dr. Kimberly Looney Julia Kaye** American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2633 Attorney for Plaintiff Knoxville Center for Reproductive Health *Admitted pro hac vice **Application for admission pro hac vice forthcoming
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ADAMS & BOYLE, P.C., on behalf of itself and its patients; et al.,
Plaintiffs,
v.
HERBERT H. SLATERY III, Attorney General of Tennessee, in his official capacity; et al.,
Defendants.

CASE NO. 3:15-cv-00705
JUDGE FRIEDMAN
MAGISTRATE JUDGE FRENSLEY

PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION Plaintiffs Adams & Boyle, P.C., Memphis Center for Reproductive Health, and Planned Parenthood of Tennessee and North Mississippi, as well as proposed Plaintiffs Knoxville Center for Reproductive Health and Dr. Kimberly Looney (together, the “Providers”), on behalf of themselves and their patients, physicians, and staff, hereby respectfully move this Court for an emergency temporary restraining order (“TRO”) pursuant to Rule 65 of the Federal Rules of Civil Procedure, enjoining Governor Bill Lee’s April 8, 2020, Executive Order No. 25, “An Order To Reduce The Spread Of Covid-19 By Limiting Nonemergency Health Care Procedures” (“EO-25”), as it applies to procedural abortions in Tennessee. EO-25 took effect at midnight the day it was issued. Since then, in light of EO-25’s broad wording and criminal penalties, all procedural abortion care—that is, all abortions after 11 weeks of pregnancy, and all abortions from the start of pregnancy for patients who are ineligible for an early method of abortion involving medications alone—is now halted in the state of Tennessee. The Providers have already cancelled dozens of abortion appointments
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scheduled for last week and this week alone—including for patients who had already traveled to the Providers’ clinics once before, as required by state law, to receive state-mandated counseling at least 48 hours before their abortion (the “Delay Law”). Every day that this ban remains in place, it forces pregnant people in Tennessee to remain pregnant against their wishes. Emergency relief temporarily restraining enforcement of EO-25 as applied to procedural abortions is essential to prevent constitutional injury, serious medical injury, and other forms of irreparable harm, and is proper for the reasons detailed in the attached Memorandum of Law.
The Providers also seek a preliminary injunction pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, blocking enforcement of EO-25, to protect current and future patients from imminent and irreparable harm to their health, safety, and constitutional right to decide whether and when to bear a child.
The issuance of an emergency temporary restraining order is warranted. The Providers have set forth specific facts in sworn declarations, showing that immediate and irreparable injury will result to the Providers’ patients before Defendants can be heard in opposition: Specifically, that every day the Executive Order remains in place patients in Tennessee are being delayed in obtaining abortion care in the midst of a global pandemic, resulting in some patients either being forced to carry their pregnancy to term against their will or forced to attempt to travel to another state in order to exercise their constitutional right to abortion. The Providers have already contacted counsel for Defendants (and proposed new Defendants) to attempt to resolve this matter without litigation, and have expressly informed counsel that the Providers would be seeking emergency relief if the matter could not otherwise be resolved. These efforts to resolve the matter were unsuccessful.
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As detailed more fully in the accompanying Memorandum of Law, the Providers satisfy the remaining requirements for a TRO and subsequent preliminary injunctive relief. Because the application of EO-25 to previability abortions contravenes binding Supreme Court precedent and imposes severe burdens on people seeking abortions in Tennessee, and because forcing pregnant people to remain pregnant against their will undermines, rather than advances, EO-25’s stated goals of “preserving personal protective equipment for emergency and essential needs and preventing community spread of COVID-19 through nonessential patient-provider interaction” EO-25 at 2, the Providers have established a substantial likelihood of success on the merits of their claim that EO-25 violates the Providers’ patients’ substantive due process rights under the Fourteenth Amendment to the U.S. Constitution. Further, the Providers have established that enforcement of EO-25 against procedural abortion care will inflict irreparable constitutional, medical, emotional, psychological, and other harms on the Providers’ patients for which there is no adequate remedy at law. The balance of equities likewise weighs firmly in the Providers’ favor and the relief they have requested will further the public interest.
Finally, the Providers respectfully request this Court exercise its discretion to waive the Federal Rule of Civil Procedure 65(c) security requirement. Appalachian Reg’l Healthcare, Inc. v. Coventry Health & Life Insurance Co., 714 F.3d 424, 431 (6th Cir. 2013).
Accordingly, and for the reasons set forth in the accompanying Memorandum of Law, Plaintiffs respectfully request this Court:
(1) Issue a TRO enjoining enforcement of EO-25 as applied to procedural abortions; and (2) Issue a preliminary injunction enjoining enforcement of the Delay Law’s in-person
counseling requirement, which requires that the physician provide state-mandated
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information to patients in person, at least 48 hours before the abortion, rather than by
telephone, videoconference, or other telehealth technologies.
The Providers respectfully request that the Court schedule a hearing on the motion for TRO
as soon as possible. The Providers’ counsel will make themselves available for a telephonic or
video conference hearing at the Court’s earliest convenience.
April 13, 2020
Respectfully submitted,
/s/ Thomas Castelli Thomas H. Castelli (No. 24849) American Civil Liberties Union Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Tel: (615) 320-7142 tcastelli@aclu-tn.org
Attorney for Plaintiffs
Scott P. Tift David W. Garrison BARRETT JOHNSTON MARTIN & GARRISON, LLC Bank of America Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Tel: (615) 244-2202 Fax: (615) 252-3798 stift@barrettjohnson.com dgarrison@barrettjohnson.com
Thomas C. Jessee Jessee & Jessee P.O. Box 997 Johnson City, TN 37605 Tel: (423) 928-7175 jjlaw@jesseeandjessee.com
Michael J. Dell* Jason M. Moff*
4
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Irene Weintraub* Timur Tusiray* Catherine Hoge*
Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 Tel: 212-715-9129 Tel: 212-715-9113 mdell@kramerlevin.com jmoff@kramerlevin.com iweintraub@kramerlevin.com ttusiray@kramerlevin.com choge@kramerlevin.com
Attorneys for Plaintiffs Adams & Boyle, P.C., Memphis Center for Reproductive Health, and Planned Parenthood of Tennessee and North Mississippi
Autumn Katz* Genevieve Scott** Michelle Moriarty* Center for Reproductive Rights 199 Water Street, 22nd Floor New York, NY 10038 Tel: (917) 637-3600 Fax: (917) 637-3666 akatz@reprorights.org gscott@reprorights.org mmoriarty@reprorights.org
Attorneys for Plaintiffs Adams & Boyle, P.C. and Memphis Center for Reproductive Health
Maithreyi Ratakonda* Planned Parenthood Federation of America 123 William St., 9th Floor New York, NY 10038 Tel: (212) 261-4405 Fax: (212) 247-6811 mai.ratakonda@ppfa.org
Attorney for Plaintiffs Planned Parenthood of Tennessee and North Mississippi and Dr. Kimberly Looney
5
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Julia Kaye** American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2633
Attorney for Plaintiff Knoxville Center for Reproductive Health
*Admitted pro hac vice **Application for admission pro hac vice forthcoming
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion for Temporary
Restraining Order and/or Preliminary Injunction has been served on the following counsel of
record through the Electronic Filing System on this 13th day of April, 2020:
Alexander Stuart Rieger Steven Ashley Hart Sue A. Sheldon Lindsay Sisco Matt Cloutier Amber Seymour
Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202-0207 (615) 741-2408 Fax: (615) 532-5683 alex.rieger@ag.tn.gov steve.hart@ag.tn.gov sue.sheldon@ag.tn.gov lindsay.sisco@ag.tn.gov matt.cloutier@ag.tn.gov amber.seymour@ag.tn.gov
/s/ Thomas H. Castelli Thomas H. Castelli
6
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ADAMS & BOYLE, P.C., on behalf of itself and its patients; et al.,
Plaintiffs,
v.
HERBERT H. SLATERY III, Attorney General of Tennessee, in his official capacity; et al.,
Defendants.

CASE NO. 3:15-cv-00705
JUDGE FRIEDMAN
MAGISTRATE JUDGE FRENSLEY

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

Case 3:15-cv-00705 Document 232 Filed 04/13/20 Page 1 of 43 PageID #: 5744

TABLE OF CONTENTS Page
TABLE OF AUTHORITIES .......................................................................................................... ii STATEMENT OF FACTS ............................................................................................................. 6
A. Abortion and Reproductive Healthcare in Tennessee............................................. 6 B. COVID-19 Pandemic and the Governor’s Executive Order................................. 10 C. The Providers’ Health & Safety Measures in Response to COVID-19................ 12 D. EO-25’s Threat to End Abortion Access and Harm Patients While
Undermining Its Own Objectives ......................................................................... 13 ARGUMENT ................................................................................................................................ 20 I. THE PROVIDERS WILL SUCCEED ON THE MERITS OF THEIR
SUBSTANTIVE DUE PROCESS CLAIM...................................................................... 21 1. A COVID-19 ban on pre-viability abortions contravenes decades of U.S.
Supreme Court and other precedent...................................................................... 21 2. EO-25 imposes an undue burden on people seeking access to abortion after
11 weeks LMP. ..................................................................................................... 23 3. Jacobson v. Massachusetts Does Not Require a Different Result........................ 27 II. THE PROVIDERS’ PATIENTS WILL SUFFER IRREPARABLE HARM IF THE BAN IS ENFORCED. ...................................................................................................... 30 III. THE BALANCE OF HARMS AND PUBLIC INTEREST SUPPORT INJUNCTIVE RELIEF. ............................................................................................................................ 32 IV. A BOND IS NOT NECESSARY IN THIS CASE. .......................................................... 33 CONCLUSION............................................................................................................................. 33
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TABLE OF AUTHORITIES
Page(s)
Am. Civil Liberties Union Fund of Mich. v. Livingston Cty., 796 F.3d 636 (6th Cir. 2015) .............................................................................................20, 32
Am. Civil Liberties Union of Ky. v. McCreary Cty., 354 F.3d 438 (6th Cir. 2003) ...................................................................................................30
Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., 698 F.3d 885 (6th Cir. 2012) ...................................................................................................32
Appalachian Reg’l Healthcare, Inc. v. Coventry Health & Life Ins. Co., 714 F.3d 424 (6th Cir. 2013) ...................................................................................................33
Bryant v. Woodall, 363 F. Supp. 3d 611 (M.D.N.C. 2019) ....................................................................................22
Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261 (1990).................................................................................................................27
Edwards v. Beck, 786 F.3d 1113 (8th Cir. 2015), cert. denied, 136 S. Ct. 895 (2016)........................................22
Elrod v. Burns, 427 U.S. 347 (1976)...........................................................................................................30, 31
EMW Women’s Surgical Ctr., P.S.C. v. Meier, 373 F. Supp. 3d 807 (W.D. Ky. 2019) .....................................................................................22
G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071 (6th Cir. 1994) ...................................................................................................32
Guam Soc’y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366 (9th Cir. 1992), cert. denied, 506 U.S. 1011 (1992)........................................22
In re Abbott, No. 20-50296 (5th Cir. Apr. 13, 2020) .......................................................................4
Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013), cert. denied, 134 S. Ct. 905 (2014)........................................22
Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019) ...................................................................................................22
Jacobson v. Mass., 197 U.S. 11 (1905)........................................................................................................... passim
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Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996), cert. denied, 520 U.S. 1274 (1997)......................................22
Jew Ho v. Williamson, 103 F. 10 (N.D. Cal. 1900) ......................................................................................................30
Kanuszewski v. Mich. Dep’t of Health & Human Servs., 927 F.3d 396 (6th Cir. 2019) ...................................................................................................27
Little Rock Family Planning Servs. v. Rutledge, 397 F. Supp. 3d 1213 (E.D. Ark. 2019), appeal docketed, No. 19-2690 (8th Cir. Aug. 9, 2019) ....................................................................................................................22
McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012) .................................................................................................25
Mich. State A. Phillip Randolph Inst. v. Johnson, 833 F.3d 656 (6th Cir. 2016) .............................................................................................30, 32
MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768 (8th Cir. 2015), cert. denied, 136 S. Ct. 981 (2016)..........................................22
Moltan Co. v. Eagle-Picher Indus., 55 F.3d 1171 (6th Cir. 1995) ...................................................................................................33
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) ...................................................................................................30
Phillips v. City of New York, 775 F.3d 538 (2d Cir. 2015).....................................................................................................28
Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905 (9th Cir. 2014) ...................................................................................................31
Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323-LY, 2020 WL 1815587 (W.D. Tx. April 9, 2020) ................................4, 32
Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. State Dep’t of Health, 896 F.3d 809 (7th Cir. 2018) ...................................................................................................31
Planned Parenthood of Kan. & Mid-Mo. v. Andersen, 882 F.3d 1205 (10th Cir. 2018), cert. denied sub nom. Andersen v. Planned Parenthood of Kan. & Mid-Mo., 139 S. Ct. 638 (2018) ..........................................................31
Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330 (M.D. Ala. 2014) ....................................................................................25
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Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)......................................................................................................... passim
Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786 (7th Cir. 2013) ...................................................................................................31
Planned Parenthood of Wis. v. Schimel, 806 F.3d 908 (7th Cir. 2015) ...................................................................................................25
Pre-Term Cleveland v. Att’y Gen. of Ohio, No. 20-3365, 2020 WL 1673310 (6th Cir. Apr. 6, 2020) ....................................................4, 24
Preterm-Cleveland v. Att’y Gen. of Ohio, No. 1:19-cv-360 (S.D. Ohio Mar. 30, 2020)..................................................................3, 32, 33
Preterm-Cleveland v. Yost, 394 F. Supp. 3d 796 (S. D. Ohio 2019) .......................................................................31, 32, 33
Roe v. Wade, 410 U.S. 113 (1973).................................................................................................2, 21, 26, 32
S. Wind Women’s Center v. Stitt, No. CIV-20-277-G, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020) ............................... passim
Sojourner T. v. Edwards, 974 F.2d 27 (5th Cir. 1992), cert. denied, 507 U.S. 972 (1993)..............................................22
Taubman Co. v. Webfeats, 319 F.3d 770 (6th Cir. 2003) ...................................................................................................30
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) ..................................................................................................... passim
Women’s Kansas City St. Andrew Soc’y v. Kansas City, 58 F.2d 593 (8th Cir. 1932) .....................................................................................................29
Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997) ...................................................................................................22
Wong Wai v. Williamson, 103 F. 1 (N.D. Cal. 1900) ........................................................................................................29
Workman v. Mingo Cty. Bd. of Educ., 419 F. App’x 348 (4th Cir. 2011) ............................................................................................27
State Statutes
Tenn. Code Ann. § 39-15-202(a)-(h) .........................................................................................3, 26
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Tenn. Code Ann. § 58-2-119 .........................................................................................................11
Tenn. Code Ann. § 63-6-214 .........................................................................................................19
Regulations
Governor Bill Lee, Executive Order No. 15, An Order Suspending Provisions Of Certain Statutes And Rules And Taking Other Necessary Measures In Order To Facilitate The Treatment And Containment of COVID-19 (Mar. 19, 2020), https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee15.pdf ...............................3
Governor Bill Lee, Executive Order No. 18, An Order To Reduce the Spread of COVID-19 By Limiting Non-Emergency Healthcare Procedures (Mar. 23, 2020), https://publications.tnsosfiles.com/pub/execorders/exec-orderslee18.pdf.............................................................................................................................11, 23
Governor Bill Lee, Executive Order No. 23, An Order Amending Executive Order No. 22 Requiring Tennesseans To Stay Home Unless Engaging in Essential Activity Or Essential Services (Apr. 2, 2020), https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee23.pdf ...............................9
Governor Bill Lee, Executive Order No. 25, “An Order To Reduce The Spread Of Covid-19 By Limiting Non-Emergency Health Care Procedures”.................................. passim
Tenn. Comp. R. & Regs. 1200-08-10-.03(1) .................................................................................19
Other Authorities
Am. Coll. of Obstetricians & Gynecologists et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-onabortion-access-during-the-covid-19-outbreak ....................................................................1, 17
COVID-19 (Mar. 24, 2020), https://www.ama-assn.org/press-center/pressreleases/ama-aha-ana-stayhome-confront-covid-19 ................................................................17
Denise Grady, Not His First Epidemic: Dr. Anthony Fauci Sticks to the Facts, N.Y. Times, Mar. 8, 2020 ........................................................................................................23
Patrice A. Harris, President, AMA, AMA Statement on Government Interference in Reproductive Healthcare (Mar. 30, 2020), https://bit.ly/2X4OAjT ....................................17
Jake Lowary, Vanderbilt Health Policy COVID-19 model finds evidence of flattening curve, recommends social distancing policies continue......................................4, 11
Elizabeth G. Raymond & David A. Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth in the United States ..............................................................6
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Pursuant to Federal Rule of Civil Procedure 65, Plaintiffs Adams & Boyle P.C., Choices Memphis Center for Reproductive Health (“Choices”), and Planned Parenthood of Tennessee and North Mississippi (“PPTNM”), and proposed Plaintiffs Knoxville Center for Reproductive Health and Dr. Kimberly Looney (collectively “the Providers”) move for a temporary restraining order, followed by a preliminary injunction, to enjoin Governor Bill Lee’s April 8, 2020, Executive Order No. 25, “An Order To Reduce The Spread Of Covid-19 By Limiting Non-Emergency Health Care Procedures” (“EO-25”), as it applies to procedural abortions in Tennessee. In light of EO-25’s broad wording and criminal penalties, all procedural abortion care—that is, all abortions after 11 weeks of pregnancy, and all abortions from the start of pregnancy for patients who are ineligible for an early method of abortion involving medications alone—is now halted in the state of Tennessee. Every day that this ban remains in place, it forces pregnant people in Tennessee to remain pregnant against their wishes. Unless and until this court grants relief, they will continue to suffer constitutional injury, serious medical risk, and other forms of irreparable harm.
As applied to procedural abortion, EO-25 contravenes guidance issued by leading medical authorities in the wake of COVID-19. The American College of Obstetricians and Gynecologists (“ACOG”) and seven other leading medical organizations1 issued a public statement in response to the COVID-19 health pandemic explaining that abortion is “essential,” “time-sensitive” health care that cannot be delayed without risking the health and safety of the patient.
1 The medical organizations issuing this joint guidance were ACOG, the American Board of Obstetrics & Gynecology, the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine. See Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortion-access-duringthe-covid-19-outbreak.
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Most urgently, the Providers seek relief on behalf of patients who are particularly burdened by the Executive Order because of the time-sensitive nature of abortion care, including: First, patients who, in the good faith professional judgment of the provider, will likely lose their ability to obtain an abortion in Tennessee if their procedures are delayed until after April 30, 2020. EO25 will force such patients to either carry an unwanted pregnancy to term, and bear the far greater risks of illness, complications, and risk of death associated with ongoing pregnancy and childbirth, or attempt to seek abortion care out of state, which imposes significant costs, burdens, and emotional distress that the COVID-19 pandemic will exacerbate. Second, patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a lengthier and more complex abortion procedure, which is only available at two clinics in Nashville and Memphis, if their procedures are delayed until after April 30, 2020. These patients will likely have to travel farther for abortion care as a result of EO-25, which increases the costs and burdens of accessing such care and will face greater health risks associated with the more complex procedure. Third, patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a two-day procedure—which is only available at two clinics in Nashville and Memphis, and which requires at least three separate visits to the provider—if their procedures are delayed until April 30, 2020. In making such determinations, providers must be allowed take into account all of the factors bearing on an individual patient's ability to timely access abortion care and medical risk, including the patient’s medical history, familial circumstances, and any logistical and financial obstacles faced by the patient.
The Providers’ further request that during the pendency of the Executive Order, Defendants and their officers, agents, servants, employees, and attorneys, and any persons in active concert or participation with them be temporarily enjoined from enforcing the in-person counseling
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requirement under Tenn. Code Ann. § 39-15-202(a)-(h) (the “48-hour Delay Law”), which requires that the physician provide state-mandated information to patients in person, at least 48 hours before the abortion, rather than by telephone (as comparable state laws allow, see, e.g., Ga. Code Ann. § 31-9A-3), or other telehealth technologies (as Tennessee Executive Order 15 encourages during the COVID-19 crisis, see Exec. Order 15, at 10 (Mar. 19, 2020)).2 Such relief is necessary because the Delay Law imposes significant burdens on access to care, and requires the Providers to use more PPE than would otherwise be necessary if they were able to provide the same information to patients via telephone videoconference, or other telehealth technologies.
Decades of Supreme Court precedent categorically prohibit states from banning abortion before viability, or imposing burdens on abortion access that exceed the benefits conferred. See, e.g., Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2310 (2016); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846, 871 (1992); Roe v. Wade, 410 U.S. 113, 166 (1973). Nor is it a permissible exercise of the state’s police power to exploit a health pandemic to ban abortion. Jacobson v. Mass., 197 U.S. 11, 31 (1905) (explaining State’s police power may not violate fundamental rights and must serve State’s asserted aims). Accordingly, federal district courts in Alabama, Ohio, Oklahoma, and Texas have already granted emergency requests to temporarily restrain those states from banning abortion through COVID-19 executive orders. See Robinson v. Marshall, No. 2:19-cv-365, at 28, 30 (M.D. Ala. Apr. 12, 2020) (ECF No. 137) (“Robinson,” attached as Exhibit 1); S. Wind Women’s Center v. Stitt, No. CIV-20-277-G, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020), appeal dismissed, No. 20-6045 (10th Cir. Apr. 13, 2020) (attached as
2 Governor Bill Lee, Executive Order No. 15, An Order Suspending Provisions Of Certain Statutes And Rules And Taking Other Necessary Measures In Order To Facilitate The Treatment And Containment of COVID-19 (Mar. 19, 2020), https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee15.pdf.
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Exhibit 2); Preterm-Cleveland v. Att’y Gen. of Ohio, No. 1:19-cv-360 (S.D. Ohio Mar. 30, 2020)
(ECF No. 43) (“Preterm-Cleveland,” attached as Exhibit 3);3 Planned Parenthood Ctr. for Choice
v. Abbott, No. A-20-CV-323-LY, 2020 WL 1815587 (W.D. Tx. April 9, 2020) (“Abbott”).4
That same relief is warranted here. The Providers have already been forced to cancel
dozens of procedural abortion appointments scheduled to take place after EO-25 took effect,
including for patients who had already traveled to the Providers’ clinics, as required by state law,
to receive state-mandated counseling and then returned home to wait at least 48 hours before their
abortion. Future appointments are now being cancelled, throwing abortion access into disarray.
Forcing patients to remain pregnant against their wishes for weeks or—as is far more likely
given the trajectory of the pandemic, months5—undermines, rather than advances, EO-25’s stated
goals of “preserving personal protective equipment for emergency and essential needs and
preventing community spread of COVID-19 through nonessential patient-provider interaction.”
3 The State of Ohio filed a motion with the Sixth Circuit to stay the Temporary Restraining Order (“TRO”) and Plaintiffs moved to dismiss. The Court held it lacked jurisdiction because the TRO did not threaten to inflict irretrievable harms or consequences before it expires. See Pre-Term Cleveland v. Att’y Gen. of Ohio, No. 20-3365, 2020 WL 1673310, at *2 (6th Cir. Apr. 6, 2020) (“Pre-Term Cleveland II”). 4 The Fifth Circuit granted in part an administrative stay of the District Court’s order, leaving in place the temporary restraining order as to medication abortion and as to “women who would be past Texas’s legal limit—22 weeks LMP—for abortion by April 22.” In re Abbott, No. 2050296, at 3, 5 (5th Cir. Apr. 13, 2020) (attached as Exhibit 4). Plaintiffs have filed an emergency application with the Supreme Court to vacate the stay. See Applicants’ Emergency Application to Justice Alito to Vacate Administrative Stay of Temporary Restraining Order Entered by the United States Court of Appeals for the Fifth Circuit, Planned Parenthood Center for Choice, et al., v. Greg Abbott, Governor of Texas, et al., No. 19A1019 (Apr. 11, 2020). 5 See, e.g., Jake Lowary, Vanderbilt Health Policy COVID-19 model finds evidence of flattening curve, recommends social distancing policies continue, VUMC Reporter, Apr. 9, 2020, https://news.vumc.org/2020/04/09/vanderbilt-health-policy-covid-19-model-finds-evidence-offlattening-curve-recommends-distancing-policies-continue/ (predicting that, in Tennessee, “if the current social distancing policies continue to reduce the spread of the disease, there would be an estimated peak of hospitalizations in mid-June. If the state were to experience additional gains from social distancing, under that more optimistic scenario the peak of hospitalizations could be lower and could be as early as mid-May”).
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EO 25 at 3. A person who wants to end a pregnancy but is unable to do so will have far more contact with the healthcare system in both the near and long-term, using up significantly more personal protective equipment (“PPE”) and health care resources, than if they had been able to obtain an abortion without delay. Declaration of Dr. Kimberly Looney (“Looney Decl.,” attached as Exhibit 5) ¶ 31. They will need prenatal care as pregnancy takes an increasing toll on their health, which will involve multiple trips to health care facilities, particularly if the patient has a high-risk pregnancy or underlying health care conditions exacerbated by pregnancy. Id. Some patients will have to seek care at an emergency room after experiencing a miscarriage—using not only PPE, but also the hospital’s physicians, nurses, and beds, and exposing the patients to the risk of contagion. Id. ¶ 35. Patients who must carry a pregnancy to term and deliver will need multiple prenatal visits, screening tests, and, ultimately, a multi-day hospital admission, which is even lengthier if the patient had a cesarean-section. Id. ¶ 33.
Alternatively, some patients who have the means will attempt to obtain abortion care by traveling to another state, increasing the risk of COVID-19 transmission but conserving no PPE. Under either scenario, preventing patients from accessing procedural abortions in Tennessee will increase the risks, both to patients and the rest of Tennessee’s population, of contracting COVID19 and result in greater use of PPE and hospital resources—contrary to the stated goals of EO-25 and to public health.
The COVID-19 pandemic does not reduce the need for abortions; if anything, it makes timely access to comprehensive reproductive healthcare even more urgent, while raising additional obstacles for individuals seeking care. Absent injunctive relief from this Court, due to the burdens imposed by EO-25, in conjunction with the mandatory 48-hour delay and the backlog that already exists at clinics, many of the Providers’ patients will lose their ability to access safe and legal pre-
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viability abortion in Tennessee and be forced to carry pregnancies to term against their will. For those patients who are able to access abortion, some will be forced to have longer, more invasive procedures, which requires more PPE. The majority of abortion patients in Tennessee are poor or low-income and already face enormous obstacles in accessing healthcare; these obstacles are exacerbated by the extreme financial and logistical difficulties brought on by the COVID-19 public health crisis. Being delayed or denied a procedural abortion will jeopardize patients’ physical health amidst a health crisis that has already overburdened the healthcare system. Moreover, denial and delay of abortion can cause significant emotional, social, and economic harms.
Accordingly, the Providers seek a temporary restraining order and preliminarily injunction to enjoin Defendants, their officers, agents, servants, employees, and attorneys, and any persons in active concert or participation with them, from enforcing or complying with EO-25 to prohibit procedural abortions prior to viability and preserve the status quo for patients who are seeking that care. This relief is critical to prevent irreparable harms to patients’ health and ongoing violation of their constitutional rights. This relief will also further the public interest and the public health.
STATEMENT OF FACTS A. Abortion and Reproductive Healthcare in Tennessee
Legal abortion is a vital, safe, and common form of healthcare.6 Tr. Vol. 2, 57:18-58:8 (Young);7 Looney Decl. ¶ 9. Abortions rarely result in complications and do so at rates of no more
6 Nat’l Acads. of Sci., Eng’g & Med., The Safety & Quality of Abortion Care in the United States, 77 (The National Academies Press 2018) (“The clinical evidence makes clear that legal abortions in the United States—whether by medication, aspiration, D&E, or induction—are safe and effective.”) [hereinafter “National Academies Report”]. 7 This Statement of Facts contains numerous references to the prior record in this case in light of the many applicable facts here. References to “Tr.” refers to the trial record.
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than a fraction of a percent.8 Id. Additionally, every pregnancy-related complication is more common among women having live births than among those having abortions. Id. ¶ 10.9 In fact, a 2012 study found the risk of death for those carrying pregnancies to term is approximately 14 times higher than for those obtaining abortions. See id.10 More recent maternal mortality data in the United States reflect even higher maternal mortality rates, and Tennessee, in particular, has higher maternal mortality rates than national numbers. Tr. Vol. 2, 65:19-12 (Young). While abortion is an extremely safe procedure, the risks increase as pregnancy progresses. Looney Decl. ¶ 10; Tr. Vol. 2, 57:23-58:8 (Young); Tr. Vol. 1, 41:3-8 (Wallett).
There is no typical abortion patient: individuals seek abortion for a multitude of complex reasons, including medical, family, economic, and personal reasons. Tr. Vol. 1, 45:9-46:4 (Wallett); Looney Decl. ¶ 19. Approximately 1 in 4 women will have an abortion in their lifetime. Tr. Vol. 2, 57:18-22 (Young). The majority of the Providers’ patients live below or close to the poverty line. Tr. Vol. 2, 91:6-14 (Young); Declaration of Rebecca Terrell (“Terrell Decl.,” attached as Exhibit 6)). ¶ 14; Declaration of Corrinne Rovetti, FNP, APRN-BC (“Rovetti Decl.,” attached as Exhibit 7) ¶ 19.
There are two methods of abortion care available in Tennessee: medication abortion or inoffice procedural abortion (also referred to as “surgical abortion”). Tr. Vol. 2, 57:18-22 (Young); Looney Decl. ¶ 11. For a medication abortion, the patient takes mifepristone in the clinic and then, 24 to 48 hours later, takes misoprostol at a location of her choosing, typically at home. Looney Decl. ¶ 11. The pregnancy is then passed in a process similar to miscarriage. Id.; Tr. Vol. 1, 39:15-
8 National Academies Report at 55, 60, 74-75. 9 Elizabeth G. Raymond & David A. Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth in the United States, 119 Am. J. Obstetrics & Gynecology 215, 217 (2012). 10 Id.
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11 (Wallett). The use of mifepristone in combination with misoprostol is safe and effective to terminate pregnancies up to 11 weeks LMP (or 77 days). Looney Decl. ¶ 12.
Although procedural abortion is sometimes referred to as “surgical abortion,” it is not what is commonly understood to be surgery, as a procedural abortion involves no incision or general anesthesia. Looney Decl. ¶ 14. In the majority of cases, a procedural abortion is performed using the “aspiration” technique, which involves the use of gentle suction to empty the uterus, typically takes about 5-10 minutes, and may at times involve local anesthesia or conscious sedation. Id.; Tr. Vol. 1, 40:12-20 (Wallett); Tr. Vol. 2, 58:9-59:1 (Young). Starting at 14-16 weeks, physicians typically use the dilation and evacuation (“D&E”) technique, which requires additional skills and equipment to perform, and takes longer, including longer time spent by the patient in the recovery room. Looney Decl. ¶ 14; Tr. Vol. 1, 40:21-8 (Wallett). Starting around 18 weeks LMP, procedural abortion may be performed as a two-day procedure because a patient receives medications to dilate her cervix the day before the procedure itself. Looney Decl. ¶ 14. For some patients, procedural abortion is safer or medically indicated over medication abortion, such as for patients at increased risk of bleeding. Id. ¶ 13.
Pregnancy is generally 40 weeks in duration, and abortion care is only available during a limited window of time. Id. ¶¶ 15, 31. While patients usually seek abortion as soon as they are able, there are a host of logistical, financial, and legal obstacles that can delay patients who have made the decision to end a pregnancy. Id. ¶ 21. For example, patients must contact the clinic and schedule their pre-abortion mandatory counseling visit; they must come up with the necessary funds, as abortion is generally not covered by Tennessee insurance plans or the state Medicaid program; and they must make all of the necessary arrangements including finding transportation, taking unpaid time off work and finding and paying for childcare. Id.; Terrell Decl. ¶¶ 12-14;
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Rovetti Decl. ¶ 19. Further, Tennessee law requires that patients make an initial counseling visit
and then wait at least 48 hours before returning to the health center to obtain abortion care. Terrell
Decl. ¶ 11; Rovetti Decl. ¶ 16. For patients who live in rural areas or for whom travel is especially
difficult, there is no exception to the mandatory delay and two-trip requirement. Terrell Decl.
¶ 11. Patients under the age of 18 must obtain parental consent before they can obtain an abortion,
unless they go to court and obtain a judicial bypass. Id. ¶ 12. Nor does Tennessee law permit
providers to offer medication abortion—or even perform the mandatory counseling visit—via
telemedicine, which could ease the travel and logistical burdens for patients living in rural areas
or who must travel long distances to receive abortion care. Id.
The COVID-19 public health emergency exacerbates these burdens on the Providers’
patients. Id. ¶ 15; Looney Decl. ¶ 22; Rovetti Decl. ¶ 17-19. It has caused unprecedented layoffs
and other work disruptions, shuttered schools and childcare facilities, and otherwise limited
patients’ options for transportation and childcare support during a time of recommended social distancing and shelter-in-place orders.11 Looney Decl. ¶ 22; Rovetti Decl. ¶¶ 17-19. Indeed, during
the week ending on April 4, 2020, the number of unemployment claims in Tennessee rose to 116,141 initial claims—a 23,641 increase from the 92,500 initial claims filed the previous week.12
Access to abortion in Tennessee is limited by provider availability, with eight providers in
only four cities. Tr. Vol. 2, 88:6-19, 89:18-90:7 (Young); Terrell Decl. ¶ 11. 96% of Tennessee
11 See Governor Bill Lee, Executive Order No. 22, An Order Directing Tennesseans To Stay Home Unless Engaging in Essential Activities To Limit Their Exposure To And Spread Of Covid19 (Mar. 30, 2020), https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee22.pdf; Governor Bill Lee, Executive Order No. 23, An Order Amending Executive Order No. 22 Requiring Tennesseans To Stay Home Unless Engaging in Essential Activity Or Essential Services (Apr. 2, 2020), https://publications.tnsosfiles.com/pub/execorders/exec-orderslee23.pdf. 12 U.S. Dep’t of Labor, Unemployment Insurance Weekly Claims Report / USDL 20-510-NAT at 5 (Apr. 9, 2020), https://www.dol.gov/ui/data.pdf.
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counties lack an abortion provider, and 63% of Tennesseans live in a county with no provider. Tr. Vol. 2, 88:6-19, 89:18-90:7 (Young). Abortions after 15 weeks are only available at PPTNM’s Nashville and Memphis clinics, and only up to 19 weeks, 6 days LMP. Looney Decl. ¶¶ 2, 15.
Because the cost of abortion increases as pregnancy advances, some patients find themselves trapped in a vicious cycle: delaying their abortion care while they attempt to raise the necessary funds, and then having to delay even longer to raise the additional funds needed for a more costly abortion later in pregnancy. Tr. Vol. 2, 93:9-17 (Young). Delay can also increase the costs of travel, childcare, and—for patients who are delayed to the point when abortion becomes a two-day procedure—additional time off work, among other expenses. Rovetti Decl. ¶ 19. This is especially onerous for patients who must travel long distances to reach a clinic because travel requires additional logistical arrangements, including being away from home and work, needing childcare, and potentially needing to inform others of the reasons for appointments. Tr. Vol. 1, 99:17-100:2 (Wallett); Terrell Decl. ¶ 13; Rovetti Decl. ¶ 19. These burdens are compounded by the mandatory 48-hour delay requirement, which forces patients to make at least two separate visits and creates significant delay for patients (far greater than 48 hours) and which some patients are unable to do. Tr. Vol. 1, 286:25-287:8 (Terrell); Looney Decl. ¶ 23; Rovetti Decl. ¶¶ 16, 19, 25. B. COVID-19 Pandemic and the Governor’s Executive Order
In March 2020, the United States and the State of Tennessee declared a state of emergency related to the COVID-19 pandemic.13 On April 8, 2020, Governor Lee signed EO-25 to “preserv[e]
13 See President Donald J. Trump, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergencyconcerning-novel-coronavirus-disease-covid-19-outbreak/; Gov. Bill Lee Issues Executive Order Declaring State of Emergency in Response to COVID-19, TN Office of the Governor (Mar. 12, 2020), https://www.tn.gov/governor/news/2020/3/12/gov--bill-lee-issues-executive-orderdeclaring-state-of-emergency-in-response-to-covid-19.html.
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personal protective equipment for emergency and essential needs” and prevent “community spread of COVID-19 through nonessential patient-provider interactions.” See EO-25 at 2.14 EO-25
provides that “[a]ll healthcare professionals and healthcare facilities in the State of Tennessee shall
postpone surgical and invasive procedures that are elective and non-urgent.” Id. at 2. Elective
and non-urgent procedures are defined as “those procedures that can be delayed until the expiration
of this Order because they are not required to provide life-sustaining treatment, to prevent death
or risk of substantial impairment of a major bodily function, or to prevent rapid deterioration or
serious adverse consequences to a patient’s physical condition if the surgical or invasive procedure
is not performed, as reasonably determined by a licensed medical provider.” Id. at 2-3. EO-25 took
effect at 12:01 a.m., Central Daylight Time, on April 9, 2020, and remains in effect until 12:01 a.m., Central Daylight Time, on April 30, 2020.15 A violation of an executive order is a class A
misdemeanor, and may result in licensure penalties. Tenn. Code Ann. § 58-2-119; see also Apr.
10, 2020 Letter from Commissioner Lisa Piercey to Health Care Providers (Exhibit 8).
EO-25 explains that “the American College of Surgeons has recommended that each
hospital, health system, and surgeon thoughtfully review all scheduled elective procedures with a
plan to minimize, postpone, or cancel electively scheduled operations, endoscopies, or other
invasive procedures and to immediately minimize use of essential items needed to care for patients,
including, but not limited to, ICU beds, personal protective equipment, terminal cleaning supplies,
14 EO-25 amends and supersedes the provisions of Executive Order No. 18, dated March 23, 2020, which prevented hospitals and ASTC’s from performing non-essential procedures, but explicitly exempted “pregnancy-related visits and procedures” as well as “emergency or traumarelated procedures where postponement would significantly impact the health, safety, and welfare of the patient.” Id. Executive Order 18 defined non-essential procedures as “any medical procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” Id. 15 EO-25 is likely to be renewed or extended, as experts expect the current crisis to last beyond April 30, into May or June. See, e.g., Lowary, supra note 5.
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and ventilators.” Id. at 1. EO-25 defines PPE as including, but not limited to, “medical gowns, N95 masks, surgical masks, TYVEK suits, boot covers, gloves, and/or eye protection.” Id. at 3. C. The Providers’ Health & Safety Measures in Response to COVID-19
Since the COVID-19 crisis began, the Providers have been diligent in protecting the health of their patients and staff while continuing to provide access to high-quality, timely abortion care. Terrell Decl. ¶¶ 17-27; Looney Decl. ¶¶ 24-30; Rovetti Decl. ¶¶ 8-13. Even before EO-25 was issued, they proactively adopted recommendations and guidelines from the Centers for Disease Control and Prevention (“CDC”), National Abortion Federation to reduce the spread of COVID19, while continuing to comply with all relevant Tennessee laws and regulations governing abortion. Terrell Decl. ¶ 19; Looney Decl. ¶ 25; Rovetti Decl. ¶ 8.
For example, the Providers have postponed or cancelled non-essential procedures such wellness visits. Terrell Decl. ¶ 26; Looney Decl. ¶ 26; Rovetti Decl. ¶ 8. They screen patients for symptoms over the telephone prior to their appointments and when they arrive at the clinics prior to entering the facilities to ensure that no one experiencing symptoms of COVID-19 enters the clinic. Terrell Decl. ¶¶ 20-21; Looney Decl. ¶ 27; Rovetti Decl. ¶¶ 9, 11. Based on the particularized needs of each facility, the Providers maintain social distancing by, for example, staggering appointments, asking patients to wait outside the clinic until their appointment, prohibiting patients from bringing a support person to their appointment, keeping patients in separate rooms whenever possible, and spacing patients a minimum of six feet apart during their time in the clinic. Terrell Decl. ¶ 22; Looney Decl. ¶ 28; Rovetti Decl. ¶¶ 9, 11-12. At any given time, the Providers have fewer people inside the clinic than they normally had before the COVID19 pandemic. Terrell Decl. ¶ 23; Looney Decl. ¶ 26; Rovetti Decl. ¶¶ 8-9. Where medically appropriate, several of the Providers have reduced the number of staff in the clinic and restricted the number of staff in the room during procedural abortion to only those who are medically
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essential or required by law. Terrell. Decl. ¶¶ 23-24; Rovetti Decl. ¶ 24. Additionally, the Providers continuously disinfect chairs, doorknobs, pens, clipboards, and other frequently touched surfaces throughout the day. Terrell Decl. ¶ 27; Looney Decl. ¶ 28; Rovetti Decl. ¶¶ 8, 12.
Abortion care does not require the use of any hospital resources that may be needed for COVID-19 response such as hospital beds, ICU beds, or ventilators. Looney Decl. ¶ 30. Indeed, procedural abortion takes place in an outpatient setting. Id. Procedural abortion involves only minimal use of PPE: typically gloves, a surgical mask or reusable plastic face shield, and either reusable scrubs or a disposable gown or smock. Id. ¶ 29; Terrell Decl. ¶¶ 30; Rovetti Decl. ¶ 24. None of the Providers stock the N95 respirators that are in short supply during this COVID-19 pandemic. Looney Decl. ¶ 30; Terrell Decl. ¶ 29; Rovetti Decl. ¶ 24. Procedural abortion after approximately 18 weeks LMP requires more PPE than a procedural abortion at an earlier point in pregnancy, because it is typically a two-day procedure at that stage. Looney Decl. ¶ 50. Nevertheless, as explained infra, abortion care requires vastly less PPE than continuing a pregnancy. The provision of abortion care in Tennessee does not deplete hospital resources and the Providers have made every effort to conserve PPE and minimize the spread of COVID-19 while still providing this time-sensitive, essential healthcare to patients. Id. ¶¶ 24, 30; Terrell Decl. ¶ 33; Rovetti Decl. ¶ 24. D. EO-25’s Threat to End Abortion Access and Harm Patients While Undermining Its
Own Objectives EO-25 threatens severe harms to patients while undermining its stated goals. These harms will only be exacerbated if, as experts predict, the COVID-19 crisis lasts well past April. First, some patients will be unable to obtain an abortion at all because they will pass the limit when abortion care is available in Tennessee while EO-25 is in effect, or will be unable to obtain an appointment in Tennessee in time, even after EO-25 is lifted, because of a surge in
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demand. Following the expiration of EO-25, there will be a severe backlog of patients seeking access to abortion. Looney Decl. ¶ 46. Only one provider in the state (PPTNM) provides abortions after 15 weeks LMP, and it will not have capacity to care for the number of patients who will need services Id. Forcing all of the patients still able to obtain an abortion in Tennessee to attempt to obtain them in the same narrow window of time—after EO-25 expires and before they reach the point in pregnancy at which abortion is no longer available in the state—will create a crush of demand that health centers are unlikely to be able to meet. Id.; Terrell Decl. ¶ 46. Further, there will be a cascading effect in which patients at earlier gestational ages will be forced to delay procedures so patients who would otherwise be denied care entirely can be treated first. Terrell Decl. ¶ 46. The 48-hour mandatory delay, in conjunction with this backlog, will push patients to have later procedures with greater risks and expense, or prevent women from accessing abortion in Tennessee entirely. Id.; Looney Decl. ¶¶ 47-50.
In addition to violating their fundamental right to determine if, when, and how to have a child or add to their existing families, these patients will face dramatically increased medical risks. Looney Decl. ¶¶ 10, 34-38. A patient who is forced to carry an unwanted pregnancy to term faces increased risk of death. Tr. Vol. 2, 65:19-66:7 (Young); Looney Decl. ¶ 10. More recent maternal mortality data in the U.S. reflect even higher maternal mortality rates, and Tennessee, in particular, has higher maternal mortality rates than the national average. Tr. Vol. 2, 65:19-12 (Young). In contrast, data published by the Centers for Disease Control and Prevention (CDC) concerning mortality associated with abortion confirms that rates are extremely low: 0.6 deaths per 100,000 abortions. Tr. Vol. 2, 66:13-19 (Young).
Even an uncomplicated pregnancy stresses the patient’s entire physiology, including the increased risks associated with caesarean or vaginal delivery, which entails risks of hemorrhage,
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infections like chorioamnionitis or endometriosis, and increased risks of preeclampsia or eclampsia. Tr. Vol. 2, 66:20-67:15 (Young); Looney Decl. ¶¶ 34, 36. Patients who are forced to carry unwanted pregnancies to term also face increased risks of preterm delivery and premature rupture of membranes. Tr. Vol. 2, 66:20-67:15 (Young); Looney Decl. ¶ 55.
Forcing patients to remain pregnant against their will is also directly at odds with EO-25’s stated purposes: it increases in-person contact within the health care system and demands far greater quantities of PPE and other medical resources than allowing patients to end their pregnancies without needless delay.16 Patients who are forced to continue a pregnancy will have to have prenatal visits—typically once a month, or more often for patients with high-risk pregnancies or preexisting conditions—as well as pregnancy-related screenings and tests, including multiple ultrasounds, blood tests, and glucose tests. Looney Decl. ¶ 31. Unlike abortion, for which complications and hospital transfers are extremely rare, see Terrell Decl. ¶ 29, Looney Decl. ¶ 9, one in five pregnant women will visit a hospital prior to delivery, Looney Decl. ¶ 31. Fifteen to twenty percent of pregnancies end in miscarriage, for which patients will often seek care at a hospital emergency room. Looney Decl. ¶ 35. For all others, the pregnancy will end in childbirth, which typically involves a multi-day hospital admission. Looney Decl. ¶ 33.
Every time a pregnant person presents to the hospital for evaluation prior to labor, which could happen multiple times, they will be interacting with more people and increasing the hospital’s use of PPE. Id. An actual birth—attended by multiple medical care providers—could involve anywhere from seven to ten gowns, masks, and sterile gloves. Id. For an uncomplicated
16 See also Rupsa C. Boelig et al., Expert Review: MFM Guidance for COVID-19, Am. J. Obstetrics & Gynecology MFM (Mar. 19, 2020) (recommending that, even during the COVID19 pandemic, pregnant people should have multiple in-person visits for routine ultrasounds and laboratory work throughout pregnancy).
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pregnancy, the patient is going to remain in the hospital at least 24-48 hours; for a caesarean section (“C-section”) even longer; and for a more complicated pregnancy, potentially even longer still. Id. Again, this means that the patient will require use of a hospital bed or room, and will require the time and attention of hospital staff, who will have to use PPE during interactions with the patient. Id. Even an uncomplicated pregnancy can suddenly become life-threatening during labor and delivery and lead to injury. Id. ¶ 36. Furthermore, one-third of pregnancies result in a C-section delivery. Id. Even though C-section deliveries are relatively common, they are still significant abdominal surgeries that carry risks of hemorrhage, infection and injury to internal organs. Id.
Moreover, the COVID-19 crisis has increased the likelihood that pregnant people will be sent to an emergency department. Id. ¶ 37. ACOG has recommended that, “given the lack of data and experience with other coronaviruses such as SARS-CoV and MERS-CoV, diligence in evaluating and treating pregnant women is warranted.”17 Id. Accordingly, ACOG recommends that pregnant women reporting certain potential COVID-19 symptoms—including symptoms that are common during pregnancy for unrelated reasons, such difficulty breathing should “immediately seek care in an emergency department or equivalent unit that treats pregnant women,” be isolated if possible, and “adhere to local infection control practices including personal protective equipment.” Id.18
17 See also Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID-19 and Pregnant Women, https://www.cdc.gov/coronavirus/2019-ncov/hcp/pregnantwomen-faq.html (last updated Apr. 3, 2020) (indicating that pregnant women “have changes in their bodies that may increase their risk of some infections” and “have had a higher risk of severe illness when infected with viruses from the same family as COVID-19 and other viral respiratory infections, such as influenza.”). 18 See Am. Coll. of Obstetricians & Gynecologists and Soc. for Fetal-Maternal Med., Outpatient Assessment and Management for Pregnant Women With Suspected or Confirmed Novel Coronavirus (COVID-19) (Apr. 10, 2020), https://www.acog.org/-
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Second, EO-25 will delay access to safe, essential, and time-sensitive abortion care for
over two weeks, and likely longer if it is extended. See Terrell Decl. ¶ 15; Looney Decl. ¶¶ 57-
58; Rovetti Decl. ¶¶ 22-23. This conflicts with medical and public health guidance. As ACOG and
other leading medical organizations recently emphasized in a joint statement, “Abortion Access
During the COVID-19 Outbreak,” abortion is an essential procedure that cannot be delayed.
Looney Decl. ¶ 20. 19 The statement stresses that: “To the extent that hospital systems or ambulatory
surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic,
abortion should not be categorized as such a procedure” because it “is an essential component of
comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks or potentially make it completely inaccessible.” Id.20
The American Medical Association (“AMA”), American Nurses Association, and
American Hospital Association also issued a statement “urging the public to #StayHome as we
reach the critical stages of our national response to COVID-19,” but stressing that “[o]f course, those with urgent medical needs, including pregnant women, should seek care as needed.” Id.21
Likewise, the AMA noted its regret that “elected officials in some states are exploiting this moment to ban or dramatically limit women’s reproductive health care.” Id.22 This leading organization of
American physicians—the very people on the front lines in fighting the virus—voiced its
/media/project/acog/acogorg/files/pdfs/clinical-guidance/practice-advisory/covid-19algorithm.pdf?la=en&hash=2D9E7F62C97F8231561616FFDCA3B1A6. 19 Am. Coll. of Obstetricians & Gynecologists et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/newsreleases/2020/03/joint-statement-on-abortion-access-during-the-covid-19-outbreak. 20 Id. 21 Am. Med. Ass’n, Am. Hosp. Ass’n, and Am. Nursing Ass’n, AMA, AHA, ANA: #StayHome to confront COVID-19 (Mar. 24, 2020), https://www.ama-assn.org/press-center/press-releases/amaaha-ana-stayhome-confront-covid-19. 22 Patrice A. Harris, President, AMA, AMA Statement on Government Interference in Reproductive Healthcare (Mar. 30, 2020), https://bit.ly/2X4OAjT.
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opposition to “government intrusion in medical care” at this critical moment in our nation’s history, emphasizing that physicians and patients “should be the ones deciding” which medical services “need to be performed, and which ones can wait.” Id.
Although abortion is extremely safe throughout pregnancy, delay in accessing care may endanger patients’ health. Id. ¶¶ 20, 49. The timing of when a patient is able to access abortion care is critical, because it determines which procedure(s) a patient may be eligible to receive. Id. ¶¶ 14, 50; Tr. Vol. 2, 64:1-14 (Young); Adams Dep. 79:25-80:17. Similarly, timing is important because while abortion is extremely safe throughout pregnancy, the risks increase as pregnancy progresses, and the later in pregnancy a patient accesses a procedural abortion, the more likely she is to experience a rare complication like hemorrhage, uterine perforation, cervical laceration or retained products of conception. Tr. Vol. 2, 64:15-23 (Young); Looney Decl. ¶ 49. Aside from the increased risks of the procedure, it is also distressing for patients to be forced to wait to have a procedure once they are certain of their decision. Tr. Vol. 2, 83:8-24 (Young); Looney Decl. ¶ 49.
Pushing patients to obtain care later in their pregnancies also directly contradicts EO-25’s stated goals by increasing the duration and frequency of patient interactions with the outside world and the use of PPE, even for patients who are still able to obtain an abortion. Looney Decl. ¶ 50. EO-25 will delay some patients to the point when they must have a more complicated procedural abortion using the D&E technique rather than the aspiration technique, which requires more time in the clinic and a larger number of staff than aspiration abortion. Id.; Rovetti Decl. ¶ 23. Other patients will be delayed past 18 weeks LMP and so will need a two-day procedural abortion. Id. Patients will have to travel to Nashville or Memphis for these procedures, the only places where such procedural abortions are available. Id. ¶¶ 2, 15.
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Third, some patients, rather than wait for EO 25 to expire—or because they simply cannot afford to wait—may attempt to travel hundreds of miles out of state to try to obtain an abortion. Looney Decl. ¶ 51; Rovetti Decl. ¶ 25. This requires them to overcome all of the logistical barriers and costs associated with accessing abortion care out-of-state, virtually all of which are exacerbated by the COVID-19 crisis. Looney Decl. ¶ 51. These patients are also likely to obtain abortions later than they would were they able to access care within the state, which—as noted above—entails greater risks and costs than an earlier procedure. Id. ¶ 52. And efforts to travel are also likely to expose both patients and other people to additional risk of contagion as patients navigate the childcare, transportation, food, and lodging necessary to make the trip at a time when states, including Tennessee, and public health experts have urged their citizens to reduce travel and stay at home as much as possible in order to reduce the rate of transmission of COVID-19. Id. This will only further undermine the State’s efforts to contain the virus because these contacts increase the risk of contracting COVID-19 and bringing the virus back to families and communities in Tennessee. Id.
Fourth, when patients cannot access services to terminate a pregnancy within the healthcare system, some will find ways to do so outside the healthcare system, not all of which may be safe. Looney Decl. ¶ 56. If attempts to self-induce give rise to additional health problems, some patients may be forced to seek emergent medical care, increasing their interactions with the outside world and further taxing the medical system as it works to respond to the COVID-19 crisis. Id.
Failure to comply with EO-25 carries criminal penalties, which may in turn trigger disciplinary action against licensees. See Exhibit 7; Tenn. Comp. R. & Regs. 1200-08-10-.03(1); Tenn. Code Ann. § 63-6-214. Absent immediate relief from the Court, EO-25 will continue to ban
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virtually all abortions in Tennessee after eleven weeks LMP, and even earlier among patients for whom medication abortion is not appropriate. Patients will experience extreme delays in seeking abortion care, if they are able to access it at all. Terrell Decl. ¶¶ 45-46; Looney ¶¶ 43-44. Some patients with the means to travel will seek abortion care outside the state, risking the spread of COVID-19 to others, to themselves, and to their community, and doing nothing to conserve the use of PPE. Looney Decl. ¶¶ 51-52. All of these severe and ongoing harms will fall hardest on poor and low-income people and families.
ARGUMENT The Providers seek a temporary restraining order and preliminary injunction to prevent EO-25, as applied to pre-viability procedural abortions, from continuing to violate the constitutional rights of Tennessee patients and causing irreparable harm. In ruling on such a motion, the Court considers four factors, all of which weigh heavily in the Providers’ favor: (1) a substantial likelihood of success on the merits; (2) substantial threat of irreparable injury; (3) that the injury to the Providers outweighs any harm the injunction might cause Defendants; and (4) that granting the injunction will not disserve the public interest. Am. Civil Liberties Union Fund of Mich. v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015) (quoting Bays v. City of Fairborn, 668 F.3d 814, 818–19 (6th Cir. 2012)). As several federal district courts have already held when faced with comparable executive orders prohibiting abortion care, the Providers are entitled to injunctive relief. EO-25 effectively bans pre-viability abortions in Tennessee after 11 weeks LMP (and even earlier for some patients), contravening decades of binding Supreme Court precedent. Even under the “undue burden” test that applies to laws regulating (rather than banning) abortion, EO-25 fails: it imposes substantial burdens on patients that outweigh any benefits. Indeed, rather than protecting public health, EO-
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25 undermines its stated goals by forcing people to carry unwanted pregnancies to term, seek abortions later in pregnancy, seek abortion care out of state, or attempt to self-induce an abortion, leading to far more person-to-person contact with healthcare providers and greater use of essential resources, including hospital capacity and PPE. Accordingly, a temporary restraining order and injunctive relief is necessary to prevent severe and irreparable harm to the Providers’ patients; is consistent with the balance of hardships; and serves the public interest. I. THE PROVIDERS WILL SUCCEED ON THE MERITS OF THEIR
SUBSTANTIVE DUE PROCESS CLAIM. The Providers are certain to succeed on the merits of their claim that EO-25 violates their patients’ liberty rights under the Fourteenth Amendment and does not further its asserted interests. Indeed, several district courts have already rapidly reached that conclusion in similar cases. See Preterm Cleveland at 6; Robinson at 28; S. Wind Women’s Ctr. LLC, 2020 WL 1677094, at *2, 5.
1. A COVID-19 ban on pre-viability abortions contravenes decades of U.S. Supreme Court and other precedent.
It is axiomatic that a State may not ban pre-viability abortion. Casey, 505 U.S. at 879 (holding that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability”); see also Roe, 410 U.S. at 163–64. Nearly a half-century ago, the U.S. Supreme Court recognized that the U.S. Constitution protects a woman’s right to abortion, Roe, 410 U.S. at 153–54. A state may proscribe abortion only after viability, and even then it must allow abortion where necessary to preserve the life or health of the patient. Id. at 163–64. Casey’s adoption of the “undue burden” standard, under which “a provision of law [restricting pre-viability abortion] is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion,” “d[id] not disturb the central holding of Roe v. Wade.” 505 U.S. at 878-79. The Court again reaffirmed this core principle of constitutional law in 2016. See Whole Woman’s
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Health, 136 S. Ct. at 2299 (stating a law is invalid if it bans abortion “before the fetus attains
viability” (quoting Casey, 505 U.S. at 878)).
Indeed, the Sixth Circuit has struck down laws that would inhibit “the vast majority of
second-trimester abortion,” recognizing that it would “clearly have the effect of placing a
substantial obstacle in the path of a woman seeking a pre-viability abortion.” Women’s Med. Prof’l
Corp. v. Voinovich, 130 F.3d 187, 201 (6th Cir. 1997); see also EMW Women’s Surgical Ctr.,
P.S.C. v. Meier, 373 F. Supp. 3d 807 (W.D. Ky. 2019) (striking down ban on a second-trimester
abortion method). Courts across the nation have come to the same conclusion.23 This is because
the availability of abortions for some women “does not [] alter the nature of the burden” that a ban
on pre-viability abortion imposes on women who do not fall within an exception to that ban.
Isaacson v. Horne, 716 F.3d 1213, 1227 (9th Cir. 2013), cert. denied, 134 S. Ct. 905 (2014).
Here, EO-25 operates as a ban on all abortions after 11 weeks LMP, and even earlier for
patients ineligible for medication abortion. EO-25 acts as a complete ban on abortions in
Tennessee, at minimum, for any person whose pregnancy will be past 19 weeks, 6 days LMP by
April 30, 2020, the current expiration date of the Order. But in reality, it will act as a complete
23 See, e.g., Edwards v. Beck, 786 F.3d 1113, 1116 (8th Cir. 2015), cert. denied, 136 S. Ct. 895 (2016); Little Rock Family Planning Servs. v. Rutledge, 397 F. Supp. 3d 1213 (E.D. Ark. 2019) (enjoining ban on abortions after eighteen weeks of pregnancy), appeal docketed, No. 19-2690 (8th Cir. Aug. 9, 2019); MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 772–73 (8th Cir. 2015), cert. denied, 136 S. Ct. 981 (2016) (ban on abortions after six weeks); Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019) (ban on abortions starting at fifteen weeks); Isaacson v. Horne, 716 F.3d 1213, 1217, 1231 (9th Cir. 2013), cert. denied, 134 S. Ct. 905 (2014) (ban on abortions starting at twenty weeks); Jane L. v. Bangerter, 102 F.3d 1112, 1117– 18 (10th Cir. 1996), cert. denied, 520 U.S. 1274 (1997) (ban on abortions starting at twenty-two weeks); Sojourner T. v. Edwards, 974 F.2d 27, 29, 31 (5th Cir. 1992), cert. denied, 507 U.S. 972 (1993) (ban on all abortions with exceptions); Guam Soc’y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1368–69, 1371–72 (9th Cir. 1992), cert. denied, 506 U.S. 1011 (1992) (ban on all abortions); Bryant v. Woodall, 363 F. Supp. 3d 611, 630–32 (M.D.N.C. 2019) (ban on abortions starting at twenty weeks).
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ban for many more as the need for EO-25 is tied to the pandemic, which is expected to last for many more weeks, if not months.24 Indeed, EO-25 itself supersedes a prior order that was scheduled to end on April 13, 2020.25 Moreover, even if EO-25 is lifted on April 30, 2020, the backlog of patients will take several weeks to resolve, resulting in an even greater number of patients experiencing delays while trying to access abortion care or unable to get an abortion in Tennessee at all. Looney Decl. ¶¶ 46-48. For all these reasons, EO-25’s application to procedural abortion should be struck down as an unconstitutional previability ban. See Robinson at 32-33 (“It is abundantly clear that the medical restrictions in the state health order are unconstitutional to the extent that they prevent a woman from obtaining an abortion before viability.”).
2. EO-25 imposes an undue burden on people seeking access to abortion after 11 weeks LMP.
Defendants may argue that because of the current crisis, this Court should look to case law applying the “undue burden” balancing test to evaluate abortion regulations rather than the uniform precedent striking down pre-viability abortion bans. See Whole Woman’s Health, 136 S. Ct. at 2309. That standard “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Id. at 2309. Even assuming arguendo that there could be emergency circumstances that could justify a State forcing people to remain pregnant against their will, the application of EO-25 to pre-viability abortions would be unconstitutional. Banning abortions after 11 weeks of pregnancy during the COVID-19 health and
24 See Denise Grady, Not His First Epidemic: Dr. Anthony Fauci Sticks to the Facts, N.Y. Times, Mar. 8, 2020, https://www.nytimes.com/2020/03/08/health/fauci-coronavirus.html. 25 See Governor Bill Lee, Executive Order No. 18, An Order To Reduce the Spread of COVID-19 By Limiting Non-Emergency Healthcare Procedures (Mar. 23, 2020), https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee18.pdf.
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economic crisis will undermine the very public health interests EO-25 purports to serve while causing other significant, irreparable harm.
As numerous district courts have already held, enforcing similar COVID-19 executive orders to ban procedural abortion is an “undue burden” on patients seeking to exercise their constitutional right. Robinson at 35 (finding it “substantially likely” that the medical restrictions at issue “pose an ‘undue burden,’ Casey, 505 U.S. at 786, that is so extreme that the restrictions effect ‘a plain, palpable invasion of rights secured by the fundamental law,’ Jacobson, 197 U.S. at 31”); Preterm Cleveland at 6 (“enforcement creates a substantial obstacle in the path of patients seeking pre-viability abortions”); S. Wind Women’s Ctr. LLC, 2020 WL 1677094, at *2-3 (holding Oklahoma imposed an “undue burden” on abortion access by imposing requirements that effectively deny a right of access to abortion).
EO-25, which operates as a ban on abortion after 11 weeks LMP, imposes severe burdens. The ban is in effect until at least April 30, 2020, and may be extended for weeks or even months, pushing many abortion patients past the date at which abortion care is available in Tennessee. Terrell Decl. ¶ 43; Looney Decl. ¶ 58. These patients will suffer far greater health risks associated with continued pregnancy and childbirth, as well as the emotional and financial burdens of carrying an unwanted pregnancy to term.
Moreover, even if some patients delayed by EO-25 are still eligible to obtain a legal abortion when EO-25 is lifted, many will be forced to undergo a procedure that entails greater risk and is more complicated and more expensive than a procedure available earlier in pregnancy. Looney Decl. ¶ 50. Abortion procedures after 15 weeks of pregnancy are only available at two health centers in the state, and none of the Providers perform abortions beyond 19 weeks and 6 days; patients pushed past this gestational age will not be able to obtain an abortion in the state at
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all. Terrell Decl. ¶ 43; Looney Decl. ¶¶ 2, 15, 44. Thus, EO-25 overwhelmingly harms individuals seeking an abortion.
In addition to unnecessarily increasing the health risks to patients, delays caused by EO-25 will impose burden in the form of anxiety, anguish, and pain. See supra Section D. Delay can also increase the cost of abortion care, as well as the costs of travel, childcare, and in some cases time off work. See, e.g., Whole Woman’s Health, 136 S. Ct. at 2314-18; Planned Parenthood of Wis. v. Schimel, 806 F.3d 908, 919 (7th Cir. 2015); McCormack v. Hiedeman, 694 F.3d 1004, 1016-17 (9th Cir. 2012); Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330, 1356-60 (M.D. Ala. 2014). These burdens are exacerbated for poor and low-income patients in Tennessee. See supra Section D. The COVID-19 public health emergency deepens these burdens, leaving many people out of work, with children neither in school nor in childcare, and with restricted transportation options and limited or risky access to the support people on whom they might otherwise rely on for transport or childcare. See supra section A.
While the Providers share the Governor’s commitment to preserving “personal protective equipment for emergency and essential needs” and preventing “community spread of COVID-19,” a ban on all abortion care after 11 weeks LMP does not serve those interests. Nearly all abortions in Tennessee are provided in outpatient facilities, not hospitals, and require limited use of PPE. Looney Decl. ¶ 29; Terrell Decl. ¶ 29; Rovetti Decl. ¶ 24. In contrast, under current medical guidelines, even during the COVID-19 emergency, pregnant patients are advised to make multiple trips to healthcare facilities to obtain prenatal care, pregnancy screening, and, ultimately, labor and delivery, and possible C-section procedures, requiring vastly more PPE, hospital resources, and contact than procedural abortion care. See supra Section D. By preventing abortions from going
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forward, EO-25 will lead to greater use of PPE, not less. See id.26 Indeed, ACOG recommends close monitoring of pregnant patients and immediate hospitalization upon display of common pregnancy symptoms because they could be a manifestation of COVID-19. Id. Ultimately, pregnant patients will require care from health care providers using PPE, and much more so if they carry to term. Id.
Likewise, delaying patients in accessing abortion ultimately requires increased use of PPE. Even if EO-25 is limited to April 30, 2020, this delay will push patients to have longer and more complex procedures, including in some cases two-day procedures, that require more person-toperson contact and PPE. Looney Decl. ¶ 50; see Pre-Term Cleveland II, 2020 WL 1673310, at *2 (noting that a procedural abortion performed later in pregnancy requires more PPE). Alternatively, women will face increased travel and contacts outside of their communities to obtain an abortion in another state, potentially using public transportation, even though public health experts have advised the public to minimize activities outside the home. See supra Section D.
Well before EO-25 was issued, the Providers had already implemented extensive precautionary measures to prevent transmission of COVID-19 while continuing to offer essential care. Terrell Decl. ¶¶ 17-27; Looney Decl. ¶¶ 24-30; Rovetti Decl. ¶¶ 8-13. The Providers could make further progress in preserving PPE, as well as reducing overall contagion risks during the pandemic, were Defendants willing to temporarily waive medically unnecessary abortion restrictions that limit the Providers’ ability to adapt to this crisis—such as Tennessee’s requirement that patients make an extra trip to the health center 48 hours in advance to receive state-mandated
26 See, e.g., Rupsa C. Boeling, et al., MFM Guidance for COVID-19, Am. J. of Obstetrics & Gynecology (available online Mar. 19, 2020), https://www.sciencedirect.com/science/article/pii/S2589933320300367 (recommending reduced prenatal visits and increased use of telemedicine where possible, but providing that certain inperson visits, such as ultrasound and lab work, are necessary).
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information before returning for an abortion. See Tenn. Code Ann. § 39-15-202(a)-(h); Rovetti Decl. ¶¶ 8-13.
In sum, even if banning or restricting abortion during the COVID-19 crisis would result in some small, temporary preservation of PPE at abortion clinics and small, temporary reduction in person-to-person interactions at abortion clinics, it will only be pushing those same pregnant patients into other medical settings where they will need more PPE and have more in-person encounters. Because EO-25 provides no benefit while causing significant harm, it violates the undue burden test.
3. Jacobson v. Massachusetts Does Not Require a Different Result. The State may argue that language plucked from a 1905 case, Jacobson v. Massachusetts, 197 U.S. 11 (1905), rather than the Supreme Court’s articulation in Roe, Casey, and Whole Woman’s Health of the applicable standard when the right to abortion is at stake, governs the determination of whether EO-25’s previability ban on abortion is constitutional. Such a suggestion, however, would be premised on a fundamental misunderstanding of Jacobson. Far from granting states unfettered authority, modern constitutional law recognizes Jacobson as one of the early cases recognizing a liberty interest in declining medical treatment and treats Jacobson as having “balanced an individual’s liberty interest in declining an unwanted smallpox vaccine against the State’s interest in preventing disease.” Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990). Accordingly, when citing Jacobson today, courts recognize that it does not supplant the modern substantive constitutional test applied to the right in question. See, e.g., Kanuszewski v. Mich. Dep’t of Health & Human Servs., 927 F.3d 396, 419–20 (6th Cir. 2019) (applying strict scrutiny to substantive due process claim, even where the challenged program “may be an example of a state’s proper exercise of its parens-patriae role” (citing Jacobson, 197 U.S. at 38)); Workman v. Mingo Cty. Bd. of Educ., 419 F. App’x 348, 352–
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54 (4th Cir. 2011) (assuming strict scrutiny applies to free exercise challenge to vaccination requirement) (citing Jacobson, 197 U.S. at 12). The Supreme Court in Casey characterized Jacobson as “recognizing limits on government power” and cited Jacobson in support of its holding that “a State’s interest in the protection of life falls short of justifying a plenary override of individual liberty claims.” Casey, 505 U.S. at 857.
Jacobson itself recognizes that a state’s powers to secure the health and safety of the public are limited. Here, EO-25 is not a proper exercise of that power for two reasons: first, a state may not, “under the guise of exerting a police power,” invade rights guaranteed by the Constitution; second, a state may not exercise its police power in an arbitrary manner that fails to actually serve the State’s asserted interests. Jacobson, 197 U.S. at 25, 28-29, 31 (“[N]o rule prescribed by a state . . . shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument.”).
First, the plaintiff in Jacobson failed to demonstrate that the challenged mandatory smallpox vaccination violated his constitutional rights under the Fourteenth Amendment. Id. at 31.27 Here however, by banning abortions prior to viability, EO-25 contravenes decades of Supreme Court precedent. Among those “rights secured by the fundamental law” recognized by the Supreme Court since it decided Jacobson is the right to reproductive autonomy. The Supreme Court has repeatedly recognized that the right to control one’s reproductive life is “central to personal dignity and autonomy,” and “central to the liberty protected by the Fourteenth Amendment.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992). See Alabama
27 The liberty interest against vaccination remains weaker than the liberty interest in abortion. Even outside of the context of crises like the smallpox outbreak in Jacobson (i.e., when state police power is heightened), courts have rejected arguments that mandatory vaccinations violate the Constitution’s protections for liberty. See, e.g., Phillips v. City of New York, 775 F.3d 538, 542 (2d Cir. 2015).
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decision f. 10 (“The Jacobson Court--writing long before the development of modern substantivedue-process jurisprudence--found no clear invasion of any fundamental right. . . . But here, a fundamental right is clearly at issue.”). As discussed at greater length above at Section I.1, under binding Supreme Court precedent, states cannot ban abortion prior to viability. Just four years ago, the Supreme Court reiterated that, because the right to abortion is fundamental, state intrusions on that right are subject to heightened judicial review. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309-10 (2016). Where, as here, the burdens outweigh the benefits, then the state’s action constitutes “a plain, palpable invasion of rights” under Jacobson. See Alabama decision (holding under either the undue burden or Jacobson framework, “the plaintiffs have shown a substantial likelihood that, if read to effect a postponement of any abortion not required to protect the life and health of the mother, the medical restrictions are unconstitutional.”); see also Wong Wai v. Williamson, 103 F. 1 (N.D. Cal. 1900) (enjoining state action targeting Chinese population because it deprived them of equal protection and liberty).28
As to the second limit on a state’s police power recognized in Jacobson, the Court explained that the “means prescribed by the state” must bear a “real or substantial relation to the protection of the public health and the public safety.” Jacobson, 197 U.S. at 31; see also Women's Kansas City St. Andrew Soc’y v. Kansas City, 58 F.2d 593, 598 (8th Cir. 1932). In other words, the State’s action must actually serve its asserted interests. In Jacobson, the plaintiff sought to avoid smallpox vaccination, alleging harms to his health, but because “most of the members of the medical profession” and “high medical authority” agreed that smallpox vaccination furthered the
28 Federal courts across the country have refused to abdicate their duty to step in where, as here, states have exercised their police powers to eliminate or unduly burden abortion access. See S. Wind Women’s Ctr. LLC, 2020 WL 1677094, at *5 (citing Jacobson, 197 U.S. at 31); Preterm Cleveland at 6; Robinson at 6.
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state’s interest in protecting public health and safety, the Court held the statute was a proper exercise of police power. 197 U.S. at 23-24, 31, 35.
Here, however, as discussed supra in Section D, EO-25 frustrates, rather than serves, its stated goals of preserving personal protective equipment for emergency and essential needs and preventing community spread of COVID-19 through nonessential patient-provider interactions. And unlike Jacobson, in the instant case, ACOG and seven other leading medical groups have stated that abortion care constitutes an essential healthcare service that, if delayed or denied, will impose severe health consequences on patients. See supra Section D. Likewise, the AMA opposes “government intrusion in medical care” during the COVID-19 crisis, including ““elected officials . . . exploiting this moment to ban or dramatically limit women’s reproductive healthcare.” See S. Wind Women’s Ctr. LLC, 2020 WL 1677094, at *2-3; cf. Jew Ho v. Williamson, 103 F. 10 (N.D. Cal. 1900) (holding resolution quarantining the “Chinese Quarter” after reported diagnoses of bubonic plague “had no real or substantial relation” to the purported public health purpose). Accordingly, Plaintiffs are likely to succeed on the merits of their claim that EO-25’s ban on abortion after 11 weeks LMP is unconstitutional. II. THE PROVIDERS’ PATIENTS WILL SUFFER IRREPARABLE HARM IF THE
BAN IS ENFORCED. The Providers’ patients will suffer serious and irreparable harm in the absence of a temporary restraining order and preliminary injunction. EO-25 prevents Tennessee patients from exercising their fundamental constitutional right to terminate a pregnancy. The Sixth Circuit has made clear that if “a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.” Am. Civil Liberties Union of Ky. v. McCreary Cty., 354 F.3d 438, 445 (6th Cir. 2003) (emphasis added) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)); accord Mich. State A. Phillip Randolph Inst. v. Johnson, 833 F.3d 656, 669 (6th Cir. 2016) (“[W]hen constitutional
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rights are threatened or impaired, irreparable injury is presumed.” (internal citations omitted)); Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (same); see also Taubman Co. v. Webfeats, 319 F.3d 770, 778 (6th Cir. 2003) (“[T]he loss of constitutional rights for even a minimal amount of time constitutes irreparable harm.”). Because EO-25, as applied to procedural abortion care, impairs the Providers’ patients’ rights guaranteed by the Fourteenth Amendment, it necessarily inflicts irreparable harm and should be enjoined in this application. See PretermCleveland v. Yost, 394 F. Supp. 3d 796, 803 (S. D. Ohio 2019) (determining that Ohio’s six-week abortion ban “would, per se, inflict irreparable harm” if enforced).
In addition, as many medical professional organizations emphasize, abortion is “a timesensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”29 Indeed, for some patients, such a delay will deprive them of their liberty and autonomy to choose abortion at all. Forcing patients to forgo abortion care and remain pregnant against their will inflicts serious physical, emotional, and psychological consequences that alone constitute irreparable harm. See e.g., Elrod, 427 U.S. at 373–74; Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 911 (9th Cir. 2014); Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 796 (7th Cir. 2013). Likewise, a delay in obtaining abortion care causes irreparable harm by “result[ing] in the progression of a pregnancy to a stage at which an abortion would be less safe, and eventually illegal.” Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. State Dep’t of Health, 896 F.3d 809, 832 (7th Cir. 2018) (alteration in original) (quoting Van Hollen, 738 F.3d at 796), petition for cert. filed, No. 18-1019 (Feb. 4, 2019). This “disruption or denial of . . . patients’ health care cannot be undone after a trial on the merits.” Planned Parenthood of Kan. & Mid-Mo. v. Andersen, 882 F.3d 1205, 1236 (10th
29 ACOG et al., supra note 1. 31
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Cir. 2018) (internal quotation marks omitted), cert. denied sub nom. Andersen v. Planned Parenthood of Kan. & Mid-Mo., 139 S. Ct. 638 (Mem.) (2018).
Every district court that has considered this question has found that the deprivation of abortion care for a period of weeks or longer would result in irreparable injury. Robinson at 53 (holding that any denial of women’s “fundamental right to privacy” constitutes irreparable injury); Abbott, 2020 WL 1815587 at *6 (“Plaintiffs and their patients will suffer irreparable harm in the absence of a temporary restraining order”); S. Wind Women’s Ctr. LLC, 2020 WL 1677094, at *6 (“Plaintiffs here have demonstrated imminent, irreparable harm absent entry of injunctive relief, as their patients will be substantially delayed in or prevented from exercising their right to abortion access.”); Preterm-Cleveland at 7 (“enforcement would, per se, inflict irreparable harm”). This Court should reach the same conclusion here. III. THE BALANCE OF HARMS AND PUBLIC INTEREST SUPPORT
INJUNCTIVE RELIEF. The Providers’ patients will suffer numerous irreparable harms without an injunction, and the requested relief will simply preserve “the status quo that has been in place for more than 40 years since Roe was decided, and some 25 years since Casey followed.” Preterm-Cleveland, 394 F. Supp. 3d at 803. As the Sixth Circuit has made clear, “[w]hen a constitutional violation is likely . . . the public interest militates in favor of injunctive relief because it is always in the public interest to prevent violation of a party’s constitutional rights.” Am. Civil Liberties Union Fund of Mich., 796 F.3d at 649 (alternations in original) (quoting Miller v. City of Cincinnati, 622 F.3d 524, 540 (6th Cir. 2010)); accord Mich. State, 833 F.3d at 669 (same); Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., 698 F.3d 885, 896 (6th Cir. 2012) (“[T]he public interest is promoted by the robust enforcement of constitutional rights . . . .”); G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994) (same).
32 Case 3:15-cv-00705 Document 232 Filed 04/13/20 Page 38 of 43 PageID #: 5781

Moreover, as set forth more fully above, EO-25 provides no benefits in the context of pregnant patients, who will need medical care in any scenario. And, even if EO-25, as applied to people seeking to end a pregnancy, in fact resulted in a temporary reduction of PPE (which it does not), that benefit would be vastly outweighed by the harm of eliminating abortion access in the midst of a pandemic that increases the risks of either continuing an unwanted pregnancy or traveling to other states in search of time-sensitive medical care. Robinson at 54-55 (finding that the “substantial” injuries to patients that would result if some women were “forced to carry their pregnancies to term” vastly outweigh any benefits of the state’s order, which did “relatively little” to “preserve healthcare resources and prevent close personal contact”); Preterm-Cleveland at 7 (“There is no demonstrated “beneficial amount of net saving of PPE…such that the net saving of PPE outweighs the harm of eliminating abortion.”); S. Wind Women’s Ctr. LLC, 2020 WL 1677094, at *6 (holding that the executive order’s plain and palpable deprivation of a fundamental right outweighed the injury the public may suffer if those procedures are allowed to occur). IV. A BOND IS NOT NECESSARY IN THIS CASE.
Plaintiffs respectfully request a waiver of the Federal Rule of Civil Procedure 65(c) bond requirement. Appalachian Reg’l Healthcare, Inc. v. Coventry Health & Life Ins. Co., 714 F.3d 424, 431 (6th Cir. 2013); see also Moltan Co. v. Eagle-Picher Indus., 55 F.3d 1171, 1176 (6th Cir. 1995) (affirming district court decision to require no bond because of “the strength of [the plaintiff’s] case and the strong public interest involved”); Preterm-Cleveland, 394 F. Supp. 3d at 804 (waiving bond). This Court should use its discretion to waive the bond requirement here, where the relief sought will result in no monetary loss to Defendants.
CONCLUSION This Court should grant the Providers’ motion for a temporary restraining order and/or preliminary injunction to enjoin Defendants and their officers, agents, servants, employees, and
33 Case 3:15-cv-00705 Document 232 Filed 04/13/20 Page 39 of 43 PageID #: 5782

attorneys, and any persons in active concert or participation with them from enforcing or requiring compliance with the EO-25 as applied to procedural abortions. Most urgently, the Providers seek relief on behalf of patients who are particularly burdened by EO-25 because of the time-sensitive nature of abortion care, including: (1) patients who, in the good faith professional judgment of the provider, will likely lose their ability to obtain an abortion in Tennessee if their procedures are delayed until after April 30, 2020; (2) patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a lengthier and more complex abortion procedure, which is only available at two clinics in Nashville and Memphis, if their procedures are delayed until after April 30, 2020; or (3) patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a two-day procedure—which is only available at two clinics in Nashville and Memphis, and which requires at least three separate visits to the provider—if their procedures are delayed until April 30, 2020. Providers must be allowed to consider all relevant factors, including the patient’s medical history, familial circumstances, and any logistical and financial obstacles faced by the patient, in making such a determination.
The Providers’ further request that this Court Grant such other and further relief as this Court may deem just, proper, and equitable, including that, during the pendency of EO-25, Defendants and their officers, agents, servants, employees, and attorneys, and any persons in active concert or participation with them be temporarily enjoined from enforcing the Delay Law’s inperson counseling requirement.
Dated: April 13, 2020 Respectfully submitted, /s/ Thomas H. Castelli Thomas H. Castelli (No. 24849) American Civil Liberties Union Foundation of Tennessee
34 Case 3:15-cv-00705 Document 232 Filed 04/13/20 Page 40 of 43 PageID #: 5783

P.O. Box 120160 Nashville, TN 37212 Tel: (615) 320-7142 tcastelli@aclu-tn.org
Attorney for Plaintiffs
Scott P. Tift David W. Garrison BARRETT JOHNSTON MARTIN & GARRISON, LLC Bank of America Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Tel: (615) 244-2202 Fax: (615) 252-3798 stift@barrettjohnson.com dgarrison@barrettjohnson.com
Thomas C. Jessee Jessee & Jessee P.O. Box 997 Johnson City, TN 37605 Tel: (423) 928-7175 jjlaw@jesseeandjessee.com
Michael J. Dell* Jason M. Moff* Irene Weintraub* Timur Tusiray* Catherine Hoge*
Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 Tel: 212-715-9129 Tel: 212-715-9113 mdell@kramerlevin.com jmoff@kramerlevin.com iweintraub@kramerlevin.com ttusiray@kramerlevin.com choge@kramerlevin.com
Attorneys for Plaintiffs Adams & Boyle, P.C., Memphis Center for Reproductive Health, and Planned Parenthood of Tennessee and North Mississippi
35
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Autumn Katz* Genevieve Scott** Michelle Moriarty* Center for Reproductive Rights 199 Water Street, 22nd Floor New York, NY 10038 Tel: (917) 637-3600 Fax: (917) 637-3666 akatz@reprorights.org gscott@reprorights.org mmoriarty@reprorights.org
Attorneys for Plaintiffs Adams & Boyle, P.C. and Memphis Center for Reproductive Health
Maithreyi Ratakonda* Planned Parenthood Federation of America 123 William St., 9th Floor New York, NY 10038 Tel: (212) 261-4749 Fax: (212) 247-6811 mai.ratakonda@ppfa.org
Attorney for Plaintiffs Planned Parenthood of Tennessee and North Mississippi and Dr. Kimberly Looney
Julia Kaye** American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2633
Attorney for Plaintiff Knoxville Center for Reproductive Health
*Admitted pro hac vice **Application for admission pro hac vice forthcoming
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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Memorandum of Law in Support of Motion for Temporary Restraining Order and/or Preliminary Injunction has been served on the following counsel of record through the Electronic Filing System on this 13th day of April, 2020: Alexander Stuart Rieger Steven Ashley Hart Sue A. Sheldon Lindsay Sisco Matt Cloutier Amber Seymour Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202-0207 (615) 741-2408 Fax: (615) 532-5683 alex.rieger@ag.tn.gov steve.hart@ag.tn.gov sue.sheldon@ag.tn.gov lindsay.sisco@ag.tn.gov matt.cloutier@ag.tn.gov amber.seymour@ag.tn.gov
/s/ Thomas H. Castelli Thomas H. Castelli
37 Case 3:15-cv-00705 Document 232 Filed 04/13/20 Page 43 of 43 PageID #: 5786

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ADAMS & BOYLE, P.C., Plaintiffs,
v. HERBERT H. SLATERY III, et al.,
Defendants.

)

)

)

)

)

Docket No. 3:15-cv-0705

)

Judge Friedman / Frensley

)

)

)

RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

The novel coronavirus (“COVID-19”) pandemic is a public health crisis unlike anything Tennessee residents have experienced. The illness was first diagnosed in China—more than 7,500 miles from Tennessee—on December 31, 2019. In the weeks that followed, the number of infected individuals soared. Then, on January 14, 2020, only two weeks after the disease was first diagnosed, the United States had its first case. A mere six weeks later, on March 4, 2020, the Tennessee Department of Health confirmed that a Tennessee resident had contracted the disease. And the spread of the disease in the State continues. As of April 14, 2020, there are 5,823 confirmed cases of COVID-19 in Tennessee—a 40% increase from only a week ago.1 And as of that same date, 124 people have died from COVID-19 statewide.2

1 See Ex. A, Tenn. Dep’t. of Health, Tennessee COVID-19-April 14, 2020 Epidemiology and Surveillance Data, https://www.tn.gov/health/cedep/ncov.html (last updated Apr. 14, 2020); see also Ex. B, Tenn. Office of the Governor, COVID-19 Bulletin #14 – April 7, 2020, https://www.tn.gov/governor/covid-19/covid-19-daily-bulletin/2020/4/7/covid-19-bulletin--14--april-7--2020.html (April 7, 2020, 5:00 PM).
2 See Ex. C, Tenn. Dep’t. of Health, Coronavirus Disease (COVID-19), https://www.tn.gov/health/ cedep/ncov.html (last updated Apr. 14, 2020).
1
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This serious and rapidly evolving situation required an equally serious and rapid response. Tennessee’s Governor responded by implementing necessary emergency measures to protect Tennessee’s communities, hospitals, healthcare providers, and patients. At issue here, Executive Order 25 preserves personal protective equipment (“PPE”) for emergency needs and prevents the community spread of COVID-19 by ordering healthcare professionals and healthcare facilities to postpone elective and non-urgent surgical and invasive procedures. Not only is this order well within the Governor’s authority and consistent with longstanding precedent, it reflects the recommendations of the American College of Surgeons and the federal Centers for Medicaid & Medicare Services to minimize unnecessary use of PPE and to limit non-essential planned surgeries and procedures. (See D.E. 230-2, Ex. T.)
No one disputes the seriousness of the COVID-19 outbreak. Likewise, no one disputes the need for serious—and even unprecedented—measures to slow the spread of the virus. Plaintiffs do, however, dispute whether the measures the State has taken with respect to all other healthcare professionals and healthcare facilities may be applied to abortion providers. Plaintiffs argue that abortion is entitled to treatment different from that afforded to any other elective medical procedure—even where the threat posed by COVID-19 necessitates that all other elective procedures be postponed or cancelled. Apparently oblivious to the risks their position presents to public safety, Plaintiffs ask this Court to issue a temporary restraining order and, ultimately, a preliminary injunction allowing abortion procedures in Tennessee to carry on as if COVID-19 never happened.
This Court should deny their request for four reasons. First, Plaintiffs cannot establish a likelihood of success on the merits because Tennessee has broad authority and discretion to implement emergency measures in response to the COVID-19 public health crisis, including
2 Case 3:15-cv-00705 Document 240 Filed 04/15/20 Page 2 of 25 PageID #: 6005

measures that may curtail constitutional rights. Second, Plaintiffs have failed to allege irreparable harm because they—as providers, not patients—have failed to identify even a single patient that will not be able to receive an abortion before the expiration of Executive Order 25 on April 30, 2020. Third, if exceptions are granted and Tennessee is prohibited from minimizing use of PPE and postponing non-urgent procedures to limit unnecessary contact, COVID-19 may continue to spread and inflict irreparable harm on Tennessee’s citizens. Finally, the public interest weighs heavily in favor of postponing non-urgent surgical and invasive procedures to curtail community spread of COVID-19 and to preserve PPE that could save lives.
BACKGROUND COVID-19 is part of a “large family” of coronaviruses.3 Typically, these viruses only infect species of animals, but on rare occasions, the viruses can infect humans.4 Once this initial jump occurs, the virus can spread further between humans.5 It is suspected that COVID-19 made this jump and has spread rapidly in the months since.6 On March 11, 2020, the World Health Organization characterized the COVID-19 outbreak as a pandemic.7 And as of April 14, 2020, there have been 579,005 confirmed cases of COVID-
3 See Ex. D, Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19) Situation Summary, https://www.cdc.gov/coronavirus/2019-ncov/summary.html (last updated Apr. 7, 2020). 4 See id. 5 See id. 6 See id. 7 Ex. E, World Health Organization, WHO Director-General’s opening remarks at the media briefing on COVID-19 – 11 March 2020, https://www.who.int/dg/speeches/detail/who-directorgeneral-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020 (last updated Mar. 11, 2020).
3 Case 3:15-cv-00705 Document 240 Filed 04/15/20 Page 3 of 25 PageID #: 6006

19 and 22,252 deaths in the United States alone.8 As of that same date, Tennessee had 5,823
confirmed cases and 124 deaths.9 These numbers are likely to grow—and are almost certainly an
underestimate.10 COVID-19 is extremely contagious; it “can remain viable and infectious in
aerosols for hours and on surfaces up to days.”11 What is more, the virus may be transmitted by
asymptomatic or minimally symptomatic patients.12 A data brief and statistical model created by
Vanderbilt University’s School of Medicine “suggests that the Tennessee epidemic could have
been sparked by as few as 10 people.”13
Because COVID-19 is a new coronavirus, its severity is not fully known.14 A preliminary
report by the Center for Disease Control (“CDC”)’s COVID-19 Response team has estimated that
20.7–31.4 percent of reported COVID-19 cases required hospitalization.15 4.9–11.5 percent of
8 Ex. F, Centers for Disease Control and Prevention, Coronavirus Disease 2019, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last updated Apr. 14, 2020).
9 See Ex. A, Tenn. Dep’t. of Health, Tennessee COVID-19-April 14, 2020 Epidemiology and Surveillance Data.
10 See Ex. G, John Graves, Vanderbilt Health Policy COVID-19 Modeling for Tennessee, https://www.vumc.org/healthpolicy/sites/default/files/public_files/COVID%20Modeling%20Rel ease%204-10%20FINAL2.pdf (last accessed Apr. 14, 2020) (explaining that “because there are asymptomatic individuals as well as individuals who may be symptomatic who have not yet received a test or a test result,” the total reported number of cases is likely an underestimate).
11 Ex. H, Correspondence, Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS CoV-1, New England Journal of Medicine (2020).
12 Ex. I, Zou, Lirong et al., SARS-CoV-2 Viral Load in Upper Respiratory Specimens of Infected Patients, 382 New England Journal of Medicine 12 (2020).
13 See Ex. G, John Graves, Vanderbilt Health Policy COVID-19 Modeling for Tennessee. 14 Ex. J, Centers for Disease Control and Prevention, Morbidity and Mortality Weekly Report, Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19)—United States, February 12-March 16, 2020.
15 See id. 4
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reported cases required admission to an intensive care unit.16 And 1.8-3.4 percent of reported cases were fatal.17
Because of COVID-19’s characteristics—namely its rapid transmission and potential to be carried without symptoms—it is critical to act decisively to combat its spread. The CDC recommends that “[s]ince people can spread the virus before they know they are sick, it is important to stay away from others when possible, even if you have no symptoms.”18 Indeed, the CDC has concluded that “[l]imiting face-to-face contact with others is the best way to reduce the spread of [COVID-19].”19 Decisive measures must also be taken to ensure the safety of healthcare professionals. In Spain, for example, approximately 14% of the country’s 40,000 confirmed COVID-19 cases were medical professionals.20 A shortage of qualified healthcare professionals during this outbreak could prove disastrous. To prevent a similar situation here, the CDC recommends that healthcare professionals use PPE, including face shields or goggles, N95 or higher respirators, clean, non-sterile gloves, and an isolation gown.21
16 See id. 17 See id. 18 Ex. K, Centers for Disease Control and Prevention, Coronavirus Disease 2019, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html (last accessed Apr. 14, 2020). 19 Id. 20 Ex. L, The New York Times, Virus Knocks Thousands of Health Workers Out of Action in Europe, https://www.nytimes.com/2020/03/24/world/europe/coronavirus-europe-covid-19.html (Mar. 24, 2020). 21 Ex. M, Centers for Disease Control and Prevention, Use Personal Protective Equipment (PPE) When Caring for Patients with Confirmed or Suspected COVID-19, https://www.cdc.gov/coronavirus/2019-ncov/downloads/A_FS_HCP_COVID19_PPE.pdf (last accessed Apr. 14, 2020).
5 Case 3:15-cv-00705 Document 240 Filed 04/15/20 Page 5 of 25 PageID #: 6008

In light of the CDC’s recommendations—as well as the recommendations of other authorities—Tennessee has taken action to limit the spread of COVID-19 within the State. On March 12, 2020, Governor Lee declared a state of emergency to facilitate the response to COVID19.22 The Governor thereafter required Tennesseans to remain at home—unless engaging in essential activities or services—to limit the spread of COVID-19 and to preserve health care resources.23 The Governor also limited participation in public gatherings, closed schools, closed in-restaurant dining, closed entertainment and recreational gathering venues, and closed businesses that perform close-contact personal services.24
The Governor also limited non-emergency healthcare procedures. On March 23, 2020, the Governor issued Executive Order 18 prohibiting “hospitals and surgical outpatient facilities” from “perform[ing] non-essential procedures, which include[d] any medical procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient.”25 Because “the spread of COVID-19 throughout Tennessee continue[d] to intensify” and “unnecessary person-to-person contact within the healthcare community increases the risk of COVID-19 spreading to providers and patients throughout our healthcare system,” the Governor

22 Ex. N, Exec. Order 14, https://publications.tnsosfiles.com/pub/execorders/exec-orderslee14.pdf.

23 Ex. O, Exec. Order 22, https://publications.tnsosfiles.com/pub/execorders/exec-orderslee22.pdf; see also Ex. P, Exec. Order 23, https://publications.tnsosfiles.com/pub/execorders/execorders-lee23.pdf.

24 Ex. Q, Exec. Order 17, https://publications.tnsosfiles.com/pub/execorders/exec-orders-

lee17.pdf;

see

also

Exec.

Ex.

R,

Order

21,

https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee21.pdf.

25 Ex. S, Exec. Order 18, https://publications.tnsosfiles.com/pub/execorders/exec-orderslee18.pdf.
6

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issued a new executive order on April 8, 2020, that “amend[ed] and supersede[d] the provisions”
of Executive Order 18.26 That order—Executive Order 25—is the subject to Plaintiffs’ challenge.
Executive Order 25 follows recommendations from the federal Centers for Medicaid &
Medicare Services, the American Dental Association, and the American College of Surgeons to
limit non-urgent surgical and invasive procedures. (See D.E. 230-2, Ex. T.) The relevant portions
of the Order read:
2. All healthcare professionals and healthcare facilities in the State of Tennessee shall postpone surgical and invasive procedures that are elective and non-urgent. Elective and non-urgent procedures are those procedures that can be delayed until the expiration of this Order because they are not required to provide life sustaining treatment, to prevent death or risk of substantial impairment of a major bodily function, or to prevent rapid deterioration or serious adverse consequences to a patient's physical condition if the surgical or invasive procedure is not performed, as reasonably determined by a licensed medical provider.
4. Non-hospital healthcare providers impacted by this Order are requested and encouraged to provide necessary personal protective equipment in their possession and not required for the emergency care exempted in the Order, including, but not limited to, medical gowns, N95 masks, surgical masks, TYVEK suits, boot covers, gloves, and/or eye protection to the Tennessee Emergency Management Agency.
(D.E. 230-2, Ex. T.) Executive Order 25 is a temporary measure and is currently set to expire on
April 30, 2020. (See id.)
The measures taken by Tennessee have yielded positive results. Social distancing has
proven to be an effective method of reducing COVID-19’s spread. Indeed, the Vanderbilt model
estimates that in mid-March each COVID-19 case infected more than five new people with the
disease.27 But, “[a]s a result of social distancing now being practiced by many Tennesseans,” each
COVID-19 case now infects only 1.4 new people.28
26 Ex. T, Exec. Order 25, https://publications.tnsosfiles.com/pub/execorders/exec-orderslee25.pdf. 27 See Ex. G, John Graves, Vanderbilt Health Policy COVID-19 Modeling for Tennessee 28 Id.
7
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While these measures have been successful, it is vitally important that they not be relaxed or undermined. To stop COVID-19 from spreading, each case must infect less than 1 new person.29 As the Vanderbilt model concludes, “the state will need further progress over the coming weeks to bring the number below 1.”30 What is more, COVID-19 infections in Tennessee have not yet reached their peak. Executive Order 25 is a necessary tool to “flatten the curve” of COVID-19 transmissions and preserve critical PPE for our first responders, health care professionals, and their patients as the State weathers the peak of this storm.
ARGUMENT Plaintiffs seek a temporary restraining order and, ultimately, a preliminary injunction to create an abortion-specific exception to the Governor’s generally applicable executive order. In this Circuit, the standard for these two forms of relief is the same. See Workman v. Bredesen, 486 F.3d 896 (6th Cir. 2007). Under that standard, courts consider four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause a substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction.” Am. Civil Liberties Union Fund of Mich. v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015). The granting of preliminary injunctive relief is an extraordinary remedy—especially here, where all four of these factors counsel against granting Plaintiffs’ requested relief and an injunction would have the drastic effect of curbing a temporary, limited executive order designed narrowly to protect public safety in a national emergency.
29 Id. 30 Id.
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I. Plaintiffs Are Not Entitled to Preliminary Injunctive Relief Prohibiting Application of Executive Order 25 to Procedural Abortions. A. Plaintiffs are unlikely to succeed on the merits. Plaintiffs repeatedly note that the Supreme Court has recognized a constitutional right to
pre-viability abortion. (See, e.g., D.E. 232 at 21, PageID # 5770.) But that right it is not without limits. See Roe v. Wade, 410 U.S. 113, 153–54 (1973). Indeed, since the right was first recognized, courts have acknowledged that States may regulate abortion to further their legitimate interests. See id. at 154, 163. Tennessee has a compelling interest in combatting the spread of COVID-19 and may thus regulate abortion to further that interest.
1. Plaintiffs do not have standing to seek relief from Executive Order 25. It is a well-settled rule that a plaintiff’s standing to sue is never assumed—it must instead be proven. See Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 77 (1991). A plaintiff, then, must establish the “irreducible constitutional minimum” of standing by showing that three elements are met. See Lujan, 504 U.S. at 560. First, “the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. (internal citations and quotation marks omitted). Second, “there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Id. (internal quotation marks omitted). And third, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 561 (internal quotation marks omitted).
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Plaintiffs cannot demonstrate standing of their own here—doctors and other abortion providers have no constitutional right to perform abortions. See Planned Parenthood of Greater Ohio v. Hodges, 917 F.3d 908, 913 (6th Cir. 2019) (en banc). Thus, Plaintiffs themselves do not suffer any deprivation that could afford them standing to sue.
There are, of course, cases in which a plaintiff may sue on behalf of a third party. But these cases are the “exception rather than the rule.” See South Carolina v. Regan, 465 U.S. 367, 380 (1984). A plaintiff may assert the rights of a third party only when (1) they have a “close” relationship with the third party; and (2) some “hindrance” affects the third party’s ability to protect their own interests. See Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). Plaintiffs here can meet neither requirement.
First, Plaintiffs have not shown that they have a “close” relationship with the individuals whose rights they attempt to assert. See id. at 129. Indeed, Plaintiffs do not identify a single individual (or even provide numbers of individuals) who will be harmed by Executive Order 25. Rather, Plaintiffs claim that “some patients” will be unable to obtain an abortion, (see D.E. 232 at 13, PageID # 5762), that the Order “will delay access” to abortion, (see id. at 17, PageID # 5766), that “some patients” may attempt to travel out of state to obtain an abortion, (see id. at 19, PageID # 5768), and that “some” other patients will find ways to obtain abortions outside of the healthcare system. (see id.) These abstract, hypothetical scenarios, however, cannot give rise to close and real relationships required to establish third-party standing. See Kowalski, 543 U.S. at 131 (concluding that the requirement of a “close relationship” was not met where attorney plaintiffs sought to assert the rights of “unascertained” future clients); see also id. (“The attorneys before us do not have a ‘close relationship’ with their alleged ‘clients’; indeed, they have no relationship at all.”). Moreover, Plaintiffs’ interests in this case are likely to conflict with the interests of their
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patients insofar as continuing to perform procedures could expose their patients to COVID-19 transmission.
And second, Plaintiffs have not shown that any “hindrance” affects the third parties’ ability to protect their own interests. See id. at 129. Nor could they. Individual plaintiffs can and do challenge abortion regulations. See, e.g., J.D. v. Azar, 925 F.3d 1291 (D.C. Cir. 2019) (per curiam); Doe v. Parson, 368 F. Supp. 3d 1345 (E.D. Mo. 2019).
At bottom, the Supreme Court has been clear: standing is a “threshold requirement” that a plaintiff must prove in every case. See, e.g., Gill v. Whitford, 138 S. Ct. 1916, 1923 (2018); see also Kowalski, 543 U.S. at 129 (addressing the “threshold question whether [Plaintiffs] have standing to raise the rights of others”). Indeed, “each element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof.” Lujan, 504 U.S. at 561. Plaintiffs here have not carried their burden. They have not alleged—much less proven—that they have the requisite “close relationship” to establish third-party standing. Nor have they alleged or proven that some “hindrance” prevents individual patients from bringing suit themselves. In short: Plaintiffs do not have standing.
2. The right to abortion is not absolute and may be regulated in times of crisis.
The Supreme Court has long held that States have broad police powers which enable them to act to protect the health and welfare of their citizens. See, e.g., Jacobson v. Commonwealth of Mass., 197 U.S. 11, 25 (1905). Indeed, the Supreme Court has explained that these powers grant States the authority to “enact quarantine laws and health laws of every description.” Id. Recognizing this authority, the Supreme Court upheld Massachusetts’ compulsory vaccination law—enacted to combat a growing smallpox epidemic—against a Fourteenth Amendment challenge. See id. at 26. The “liberty secured by the Constitution,” the Court observed, “does not
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import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Id. Rather, “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27; see also Compagnie Francaise de Navigation a Vapeur v. Bd. of Health, La., 186 U.S. 380 (1902) (upholding quarantine law against Commerce Clause and procedural due process challenges).
In the century since Jacobson was decided, the Supreme Court has continued to affirm the broad nature of States’ powers in times of crisis. See Kansas v. Hendricks, 521 U.S. 346, 356–57 (1997) (relying on Jacobson and acknowledging that Fourteenth Amendment liberties may be restrained even in civil contexts); United States v. Caltex, 344 U.S. 149, 154 (1952) (recognizing that “in times of imminent peril—such as when fire threatened a whole community—the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of many more could be saved”); Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944) (noting that “[t]he right to practice religion freely does not include liberty to expose the community . . . to communicable disease”).
Thus, when confronted with a public health crisis, a State has authority to implement emergency measures that may curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Jacobson, 197 U.S. at 31. And while courts may consider whether the State’s chosen emergency measures are arbitrary or oppressive, they may not “second-guess the wisdom or efficacy of the measures.” In re Abbott, No. 20-50264, 2020 WL 1685929, at *7 (5th Cir. Apr. 7, 2020) (citing Jacobson, 197 U.S. at 28, 30). Here, Tennessee—and indeed the entire world—is facing a public health crisis of unprecedented proportions. Tennessee’s Governor has chosen to respond to this crisis by, among
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other things, issuing Executive Order 25. (See D.E. 230-2, Ex. T.) This Order passes Jacobson’s two-prong test.
First, Executive Order 25 has a “real and substantial relation” to the current public health crisis. Jacobson, 197 U.S. at 31. The Governor issued Executive Order 25 to combat the spread of COVID-19 by reducing “unnecessary person-to-person contact within the healthcare community” and by preserving PPE. (See D.E. 230-2, Ex. T.) To achieve these goals, the Order requires “[a]ll healthcare professionals and healthcare facilities” in the State to postpone “surgical and invasive procedures that are elective and non-urgent”—that is, “procedures that can be delayed until the expiration of [the] Order because they are not required to provide life-sustaining treatment, to prevent death or risk of substantial impairment of a major bodily function, or to prevent rapid deterioration or serious adverse consequences to a patient’s physical condition.” (See id.) The Order also encourages “[n]on-hospital healthcare providers” to “provide necessary personal protective equipment in their possession and not required for emergency care exempted in the Order” to the Tennessee Emergency Management Agency. (See id.) In short, the Order asks healthcare providers across the state to take several concrete steps to reduce person-to-person contact and to conserve PPE. It cannot be reasonably argued that Executive Order 25 bears “no real or substantial relation” to Tennessee’s goal of combating the spread of COVID-19. Jacobson, 197 U.S. at 31. And given that Plaintiffs concede that procedural abortions require the use of “gloves, a surgical mask or reusable plastic face shield, and . . . a disposable gown or smock” (D.E. 232 at 13, PageID # 5762)—the very PPE that is needed to prevent the spread of COVID-19—the application of Executive Order 25 to Plaintiffs likewise bears a “real [and] substantial relation” to the State’s goals.
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Second, Executive Order 25 is not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Jacobson, U.S. at 31. Whether abortion regulations “inva[de] rights secured by the fundamental law,” id., is determined under the Supreme Court’s undue burden framework.31 A regulation may be an undue burden when it is a “substantial obstacle to a woman’s choice to undergo an abortion” in a “large fraction of the cases in which [it] is relevant.” Id. at 925. But this is only part of the analysis; courts must also consider the benefits that the challenged regulation confers. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016) (citing Casey, 505 U.S. at 887–98, 899–901).
The relevant question for this Court, in applying the undue burden standard within the applicable Jacobson framework, is whether Plaintiffs have shown that Executive Order 25 “imposes burdens on abortion that ‘beyond question’ exceed its benefits in combating the epidemic” that Tennessee faces. In re Abbott, 2020 WL 1685929, at *11 (quoting Jacobson, 197 U.S. at 31). Plaintiffs have not carried their burden.
The Supreme Court and the Sixth Circuit have applied the undue burden standard to uphold state abortion regulations where they delayed abortions and even prevented some abortions from occurring altogether. In Casey, a plurality of the Supreme Court applied the undue burden framework to uphold a waiting period law requiring that “at least 24 hours before performing an abortion a physician inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth,” and the “probable gestational age of the unborn child.” Casey, 505
31 Plaintiffs erroneously characterize Executive Order 25 as a “ban” on pre-viability abortions. (D.E. 232 at 20, PageID # 5769). To the contrary, the Order is a temporary postponement of surgical and invasive abortion procedures that are elective and non-urgent. See In re Abbott, 2020 WL 1685929, at *9 (holding that district court’s characterization of Texas’s healthcare executive order as “an ‘outright ban’ on all pre-viability abortions” was “plainly wrong” and warranted mandamus relief).
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U.S. at 881. The Court acknowledged that “because of the distances many women must travel to reach an abortion provider, the practical effect will often be a delay of much more than a day because the waiting period requires that a woman seeking an abortion make at least two visits to the doctor.” Id. The Court also accepted that “the waiting period ha[d] the effect of increasing the cost and risk of delay of abortions,” especially for low income women. Id. Still, the Court concluded that the law was not an undue burden. Id. at 887.
And in Cincinnati Women’s Services, Inc. v. Taft, the Sixth Circuit applied the undue burden framework to uphold a law that required women seeking abortions to “attend an in-person meeting with a physician for informed-consent purposes.” 468 F.3d 361, 364 (6th Cir. 2006). This law, coupled with Ohio’s existing 24-hour waiting period, meant that a woman must make two visits—at least 24 hours apart—to obtain an abortion. See id. at 364–65. But while the law required a waiting period of only 24 hours, the court noted that it could have the effect of delaying abortions for weeks. Id. at 366. The court also observed that the appellants in Taft had “improved on the Casey record” by showing that the challenged statute would deter “approximately 6 to 12.5” out of every 1,000 women “from procuring an abortion as surely as if [Ohio] has outlawed abortion in all cases.” Id. at 373 (alteration in original). But even though Ohio’s law required two visits, had the effect of delaying abortions for weeks, and in some cases prevented women from obtaining abortions altogether, the Sixth Circuit held that the law “survive[d] constitutional scrutiny.” Id. at 366, 372–74.
If the laws challenged in Casey and Taft, which delayed and in some cases altogether prevented abortions, did not unduly burden abortion rights, then neither does Executive Order 25. Certainly, Executive Order 25 does not impose burdens that “beyond question” exceed its benefits in combating COVID-19. See In re Abbott, 2020 WL 1685929, at *11 (quoting Jacobson, 197
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U.S. at 31). Plaintiffs allege that Executive Order 25 delays abortions and may even prevent some abortions from occurring altogether, but they have failed to plead that there are any particular, identifiable patients who will lose access to abortion during the two-week lifespan of the Order. Plaintiffs do not even estimate how many of these patients could exist to permit the Court to apply the large-fraction test. (See generally D.E. 232 at 13–20, PageID # 5762–69.)32
In any event, whatever burdens Executive Order 25 imposes on abortion rights are clearly outweighed by the benefits it achieves for the COVID-19 response. Recall that “the Tennessee epidemic could have been sparked by as few as 10 people.”33 Each patient who undergoes a nonurgent surgical or invasive procedure risks exposing others to a disease that can remain aerosolized for hours.34 Each procedure forces a healthcare provider to expend PPE, such as masks and gloves, at a time when hospitals urgently need those supplies for COVID-19. Plaintiffs’ only response to these clear benefits is their assertion that procedural abortions use “minimal” PPE. (D.E. 232 at 13, PageID # 5762). But even assuming that assertion is factually accurate, “minimal” is not “none.” Executive Order 25 contains no exception for procedures that use “minimal” PPE because such an exception would thwart the collective response that is needed to effectively respond to this unprecedented challenge. Every procedure that is postponed, and every item of PPE that is preserved, furthers the State’s compelling interests in halting the spread of COVID-19 and
32 If such patients exist, they may seek as-applied relief. See in re Abbott, 2020 WL 1685929, at *11 (noting that, “if competent evidence shows that a woman is in th[e] position” of her pregnancy reaching the gestational cutoff for abortion before the executive order expires, then “nothing prevents her from seeking as-applied relief”). 33 See Ex. G, John Graves, Vanderbilt Health Policy COVID-19 Modeling for Tennessee. 34 Ex. H, Correspondence, Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS CoV-1, New England Journal of Medicine (2020).
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ensuring that our healthcare system is equipped to treat—and prevent the death of—those who are infected. These benefits easily outweigh the abstract burdens alleged by Plaintiffs.
Importantly, Plaintiffs do not contend that the application of Executive Order 25 to abortion procedures is arbitrary or pretextual. See Jacobson, 197 U.S. at 28 (noting that the power of a community to “protect itself against an epidemic threatening the safety of all might be exercised” in an impermissibly “arbitrary, unreasonable manner”). Nor could they, given that it applies across the board to all elective and non-urgent surgical and invasive procedures. To the extent that Plaintiffs quibble about whether any delays caused by Executive Order 25 will “ultimately require[] increased use of PPE” (D.E. 232 at 26, PageID # 5775), they are asking this Court to engage in precisely the kind of judicial “second-guess[ing]” of the “[S]tate’s policy choices in crafting emergency public health measures” that Jacobson forbids. In re Abbott, 2020 WL 1685929, at *6; see also Jacobson, 197 U.S. at 30 (“It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease.”). The Governor’s determination that the emergency measures put in place by Executive Order 25 are needed now to effectively respond to the COVID-19 pandemic is reasonable and entitled to deference.
It is Plaintiffs’ burden to demonstrate entitlement to the extraordinary remedy of preliminary injunctive relief. But they have failed to show that the burdens imposed by Executive Order 25 “beyond all question” exceed its benefits, either as applied to procedural abortions generally or as applied to a particular patient. Jacobson, 197 U.S. at 31. Because they cannot establish a likelihood of success on the merits, their motion for preliminary relief should be denied.35
35 Even if Plaintiffs could establish that the burdens of applying Executive Order 25 in a particular 17
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B. Plaintiffs are unlikely to suffer irreparable injury absent the injunction. A plaintiff seeking preliminary injunctive relief must demonstrate that irreparable harm is likely in the absence of the requested injunction. Los Angeles v. Lyons, 461 U.S. 95, 103 (1983); O’Shea v. Littleton, 414 U.S. 488, 502 (1974). This demonstration is perhaps the single most important prerequisite for issuance of a preliminary injunction. See 11A C. Wright, A. Miller, & M. Kane, Fed. Practice and Procedure § 2948.1 (3d ed.). As a result, speculative injury is not sufficient. Id. A preliminary injunction, then, will not be issued simply to prevent the possibility of some remote future injury—a presently existing actual threat must be shown. Id. As the Supreme Court has explained, “[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). To demonstrate irreparable harm, each and every plaintiff must show that they “will suffer ‘actual and imminent’ harm rather than harm that is speculative or unsubstantiated.” Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006). A specific finding of immediate and irreparable injury to the movant is considered the most important prerequisite that a court must examine and find when ruling upon a motion for a preliminary injunctive relief. In fact, the absence of irreparable injury must end the court’s inquiry. See City of Los Angeles v. Lyons, 461 U.S. at 111– 12, 103 (1983); Warner v. Central Trust Co., N.S., 715 F.2d 112, 123–24 (6th Cir. 1983);
case “beyond all question” outweigh the benefits, Plaintiffs still would not be entitled to the broad relief they seek (D.E. 231 at 3, Page ID # 5740 (asking this Court to “[i]ssue a TRO enjoining enforcement of EO-25 as applied to procedural abortions”). Any injunctive relief awarded by the Court must be narrowly tailored to the specific applications of Executive Order 25, if any, that present a constitutional problem. See Ayotte v. Planned Parenthood, 546 U.S. 320, 331 (2006).
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Aluminum Workers Int’l Union v. Consolidated Aluminum Corp., 969 F.2d 437, 444 (6th Cir. 1982).
Plaintiffs cannot demonstrate irreparable harm here. Doctors and abortion clinics have no right to perform abortions. Planned Parenthood of Greater Ohio v. Hodges, 917 F.3d 908, 913 (6th Cir. 2019) (en banc). Thus, Plaintiffs themselves will not suffer any constitutionally cognizable harm—much less the irreparable harm necessary to obtain injunctive relief.
As for Plaintiffs’ patients, their alleged harm is limited to a two-week delay in obtaining an abortion. Plaintiffs have not identified even one actual patient who would be denied an abortion before the order expires in two weeks. Nor have they estimated what fraction of women could be allegedly denied an abortion by operation of Executive Order 25. While Plaintiffs speculate in their declarations that the Order could cause a parade of horribles that might cumulatively deprive some patients of access to abortion, that speculation is insufficient to entitle Plaintiffs to the extraordinary remedy of preliminary relief.
Plaintiffs have also failed to identify any patient for whom postponement of an abortion would cause physical harm. Nor could they, because Executive Order 25 expressly permits procedures that cannot be delayed without causing serious adverse consequences for a patient’s physical health:
Elective and non-urgent procedures are those procedures that can be delayed until the expiration of this Order because they are not required to provide life sustaining treatment, to prevent death or risk of substantial impairment of a major bodily function, or to prevent rapid deterioration or serious adverse consequences to a patient's physical condition if the surgical or invasive procedure is not performed, as reasonably determined by a licensed medical provider. (See D.E. 230-2, Ex. T.) If delaying an abortion for the duration of the Order would in fact, in the reasonable determination of a medical provider, cause “serious adverse consequences to a patient’s physical condition,” then that procedure may occur without delay.
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C. The issuance of an injunction is likely to cause substantial harm and the public interest would not be served by the issuance of an injunction.
The wrongful enjoining of a valid state action always qualifies as irreparable harm. Abbott
v. Perez, 138 S. Ct. 2305, 2324 (2018); Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J.,
in chambers) (citation omitted). The Sixth Circuit has recognized this rule, explaining that:
There is no power the exercise of which is more delicate, which requires greater caution, deliberation and sound discretion, or more dangerous in doubtful cases, than the issuing of an injunction; it is the strong arm of equity, that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction; but that will not be awarded in doubtful cases, or new ones, not coming within well established principles; for if it issues erroneously, an irreparable injury is inflicted, for which there can be no redress, it being the act of a court, not of the party who prays for it. It will be refused till the courts are satisfied that the case before them is of a right about to be destroyed, irreparably injured, or great and lasting injury about to be done by an illegal act; . . ..
Detroit Newspaper Publisher Ass’n v. Detroit Typographical Union, 471 F.2d 872, 876 (6th Cir.
1972), cert. denied, 411 U.S. 967 (1973) (emphasis added and internal citations omitted). See also
MLZ, Inc. v. Fourco Glass Co., 470 F.Supp. 273, 278 (M.D. Tenn. 1978).
Executive Order 25 is a good faith effort to address the COVID-19 pandemic. Judicial
intervention into the activities of state officers discharging in good faith their official duties should
be exercised with great restraint. Integrity Int’l Security Servs., Inc. v. U.S. Dep’t of the Army, 870
F. Supp. 787, 789 (E.D. Tenn. 1994); Roseboro v. Fayetteville City Bd. of Educ., 491 F. Supp. 110,
113 (E.D. Tenn. 1977) (citing Hawks v. Hamill, 288 U.S. 52, 60 (1933)). Federal courts presume
that public officials and agencies “properly discharge[] their official duties” and “act in good faith
and in accordance with applicable law.” United States v. Hughley, 1:04-cr-14-002, 2007 WL
9706622, at *4 (E.D. Tenn. Oct. 1, 2007) (citing Banks v. Dretke, 540 U.S. 668, 696 (2004); Bracy
v. Gramley, 520 U.S. 899, 909 (1997); United States v. Armstrong, 517 U.S. 456, 464 (1996)). As
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described supra, Executive Order 25 is Tennessee’s good-faith effort to postpone unnecessary medical procedures to preserve PPE and slow the community spread of COVID-19. An injunction would irreparably harm Tennessee’s authority to protect the safety and health of its citizens.
But the harm here is not limited to infringing on Tennessee’s exercise of its sovereign authority. The injunctive relief Plaintiffs seek—a special exception from the generally applicable Executive Order 25 for abortion providers—would also harm the public by hindering the State’s otherwise comprehensive efforts to respond to the COVID-19 pandemic. COVID-19 infections in Tennessee have yet to reach their peak. If the State is prevented from uniformly enforcing Executive Order 25 now—at this critical juncture—the consequences for the public could be dire.
Tennesseans across the State are making enormous sacrifices in response to the COVID19 crisis. Schools and many businesses are closed, public gatherings are prohibited, nursing homes are sealed off from visitors, and individuals are staying at home except for essential activities, just to name a few examples.36 The temporary postponement of elective and non-urgent surgical and invasive procedures that is required under Executive Order 25 is undoubtedly a sacrifice too, but one that, like others being made across the State and country, is necessary to protect the greater good. “[C]onstitutional rights,” including the “right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home,” may be “reasonably restricted ‘as the safety of the general public may demand.’” In re Abbott, 2020 WL 1685929, at *1 (quoting Jacobson, 197 U.S. at 29) (alteration in original). “The right to abortion is no exception” to that settled rule. Id.
The evidence presented by Plaintiffs at this stage provides no basis to treat procedural abortions any differently from the other surgical and invasive procedures that are subject to delay
36 Ex. Q, Exec. Order 17; see also Ex. R, Exec. Order 21; Ex. O, Exec. Order 22; Ex. P, Exec. Order 23.
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under Executive Order 25. Because continued enforcement of Executive Order 25 with respect to procedural abortions would protect the public interest without irreparably harming Plaintiffs, preliminary relief should be denied. II. Plaintiffs Are Not Entitled to Preliminary Relief Suspending the In-Person Notice
Requirement. Tennessee’s Notice and Waiting Period Law applicable to abortions, Tenn. Code Ann. § 39-15-202(a)-(h),37 provides that a potential patient receive appropriate notice of the potential risks, benefits, and alternatives in-person by the referring or treating physician during the initial visit prior to the waiting period. It is in the public interest to maintain this status quo, which currently does not allow for this necessary information to be provided by telephone, video conference, or other healthcare technologies.38 In their Motion for a Temporary Restraining Order And/Or Preliminary Injunction (D.E. 231 at 3–4, PageID # 5740-41), Plaintiffs do not move for a temporary restraining order as to the in-person notice provision, although they do seek a preliminary injunction of that provision. Plaintiffs’ memorandum is focused almost exclusively on the applicability of Executive Order 25 to procedural abortions and fails to establish any of the criteria necessary to warrant an injunction of the in-person requirement. Plaintiffs have not explained, in either their motion or memorandum, why the State is constitutionally required to suspend the in-person notice requirement during the pendency of Executive Order 25. At most, they have articulated why allowing the required notice to be
37 No abortion shall be performed “until a waiting period of forty eight (48) hours has elapsed after the attending physician or referring physician has provided the information required [by the statute].” Tenn. Code Ann. § 39-15-202(d)(1). 38 In passing the challenged provision, the legislature considered the fact that abortion is a unique, serious, and irreversible medical procedure that carries risk of physical and psychological harm. (See DX5, 7, ln. 25–8, ln. 6; DX5, 88, ln. 3–11; DX5, 97, ln. 25–98, ln. 3; DX5, 162, ln. 25–163, ln. 1.)
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provided by telephone, video conference, or other healthcare technologies would be their policy preference. Moreover, Plaintiffs have not established any immediate or irreparable harm from continued enforcement of the in-person notice requirement, or whether providing the required notice remotely would even be feasible or effective.39
Generally, abortion is available in Tennessee up to 20 weeks past the patient’s last menstrual period, and the appropriateness of medication and the differing types of surgical abortions depends on gestational age. (See Adams & Boyle, I, 111, ln. 16–21; II, 9, ln. 8–10; II, 16, ln. 25–17, ln. 1; II, 131, ln. 12–14.) Because gestational age must be accurately determined to provide the required notice necessary for informed consent (D.E. 216-1, 40, ln. 4–6), abortion providers in Tennessee generally use ultrasounds to determine gestational age at the initial visit. (See D.E. 216-1, 39, ln. 25–40, ln. 3; see also I, 60, ln. 1–9.) By their nature, ultrasounds require that the patient be present in-person with the ultrasound operator, which is normally at the abortion provider. (I, 236, ln. 23–237, ln. 5.) In addition to conducting the ultrasound to determine if someone is eligible for a medication abortion, there are other factors to be reviewed by the abortion provider in determining whether a medication abortion may be appropriate—but those factors cannot be predetermined prior to actually examining the patient at the initial visit. (D.E. 216-1, 55, ln. 6–25.) This in-person determination of gestational age and any other relevant medical conditions occurring at the initial visit is necessary to provide the patient with full and correct information, regarding the risks, benefits, and alternatives available to a particular patient, as required by Tennessee’s Notice and Waiting Period Law. Accordingly, Plaintiffs have not
39 Research shows that typically a woman coming to an abortion facility does not have a preexisting relationship with the attending physician. (IIIa, 59, ln. 4–13.)
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demonstrated they are entitled to a temporary restraining order prohibiting enforcement of the inperson notice provision
CONCLUSION COVID-19 is the greatest public health crisis that Tennessee and the nation have experienced in nearly a century. Defeating COVID-19 and protecting Tennesseans requires vigilance and discipline, and the overbroad exception for abortion that Plaintiffs seek will unnecessarily expend PPE and undermine the social distancing necessary to lessen the virus transmission rate, flatten the curve, and ensure the ongoing provision of medical care in Tennessee. Plaintiffs have thus not established that they are entitled to the extraordinary remedy of preliminary injunctive relief prohibiting application of Executive Order 25 to all procedural abortions. Further, Plaintiffs have not established that they are entitled to preliminary injunctive relief suspending the in-person notice requirement. Defendants respectfully request that this Court deny Plaintiffs’ motion.
Respectfully submitted, HERBERT H. SLATERY III Attorney General and Reporter /s/Alexander S. Rieger ALEXANDER S. RIEGER (BPR# 029362) STEVEN A. HART (BPR # 07050) MATTHEW D. CLOUTIER (BPR # 036710) Office of Tennessee Attorney General P. O. Box 20207 Nashville, Tennessee 37202 (615) 741-2408 alex.rieger@ag.tn.gov steve.hart@ag.tn.gov matt.cloutier@ag.tn.gov
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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Notice has been served on the following counsel of record through the Electronic Filing System on this 15th day of April, 2020:

Scott P. Tift David W. Garrison Barrett Johnston Martin & Garrison, LLC, Bank of America Plaza, 414 Union Street, Suite 900 Nashville, TN 37219 stift@barrettjohnson.com dgarrison@barrettjohnson.com

Thomas C. Jessee Jessee & Jessee P.O. Box 997 Johnson City, TN 37605 jjlaw@jesseeandjessee.com

Autumn Katz Hailey Flynn Michelle Moriarty Marc Hearron Genevieve Scott Center for Reproductive Rights 199 Water Street, 22nd Floor New York, NY 10038 akatz@reprorights.org hflynn@reprorights.org mmoriarty@reprorights.org gscott@reprorights.org

Maithreyi Ratakonda Melissa Cohen Planned Parenthood Federation of America 123 William St., 9th Floor New York, NY 10038 mai.ratakonda@ppfa.org Melissa.cohen@ppfa.org

Michael J. Dell Jason M. Moff Irene Weintraub Timur Tusiray Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 mdell@kramerlevin.com jmoff@kramerlevin.com iweintraub@kramerlevin.com ttusiray@kramerlevin.com

Thomas H. Castelli American Civil Liberties Union PO Box 120160 Nashville, TN 37212 tcastelli@aclu-tn.org

Julia Kaye

American Civil Liberties Union Foundation

125 Broad St. Floor 18

New York, NY 10004

jkaye@aclu.org

s/Alexander S. Rieger

__

ALEXANDER S. RIEGER

25 Case 3:15-cv-00705 Document 240 Filed 04/15/20 Page 25 of 25 PageID #: 6028

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ADAMS & BOYLE, P.C., on behalf of itself and its patients; et al.,
Plaintiffs,
v.
HERBERT H. SLATERY III, Attorney General of Tennessee, in his official capacity; et al.,
Defendants.

CASE NO. 3:15-cv-00705
JUDGE FRIEDMAN
MAGISTRATE JUDGE FRENSLEY

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF EXPEDITED MOTION TO FILE SUPPLEMENTAL COMPLAINT
Defendants’ opposition scarcely addresses the relevant factors considered by courts in determining whether to allow supplementation. Given this Circuit’s liberal policy favoring supplemental pleadings, the significant overlap of factual and legal issues here, and the lack of any prejudice to Defendants, Plaintiffs’ motion should be granted.1
1. Supplementation Will Promote Judicial Economy Defendants acknowledge the purpose of Rule 15(d) is to promote judicial economy, Defs.’ Supp. Resp. at 4, but fail to address most of Plaintiffs’ arguments explaining why supplementation in this case will be far more efficient than filing an entirely new action. See Pls.’ Suppl. Br. at 5-10. For example, Defendants do not rebut the extensive factual overlap between the record developed at trial and the allegations in the Proposed Supplemental Complaint—including evidence of the safety of abortion, the characteristics of procedural

1 Indeed, Defendants do not dispute that if Plaintiffs had filed their proposed Supplemental Complaint as a separate action it would have been referred to this Court as a related case.
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abortion, the reasons women seek abortion, its importance as an element of their healthcare, the burdens and obstacles patients face, the detrimental effects of being barred from obtaining an abortion, and the risks to women’s health when access to abortion is delayed or denied altogether. Id. at 7-8; see also Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 625 (6th Cir. 2016) (“[w]hen a dispute is complicated and protracted, and a new complaint the likely alternative, allowing supplemental pleadings before a court already up to speed is often the most efficient course”).
There is also significant legal overlap. See Little Rock Family Planning Services v. Rutledge, No. 4:19-cv-00449-KGB, 2020 WL 1862830 (E.D. Ark. Apr. 14, 2020) (granting expedited leave to file supplemental complaint in abortion case to include COVID-related executive order barring abortions); W. Alabama Women’s Center v. Miller, 318 F.R.D. 143, 149-50 (M.D. Ala. 2016) (granting motion to supplement where court was familiar with “complex legal framework” and “analytic approach” necessary for undue burden analysis); Preterm-Cleveland v. Att’y Gen. of Ohio, No. 1:19-cv-00360, at 5 (S.D. Ohio Mar. 30, 2020) (ECF No. 43) (Pls. TRO. Br. Ex. 3) (“Preterm-Cleveland”) (same).
Defendants contend that this case does not concern the Supreme Court’s undue burden framework and must instead be decided under Jacobson v. Massachusetts, 197 U.S. 11 (1905). Defs.’ Suppl. Resp. at 6. But that argument concerns the merits of Plaintiffs’ application for a temporary restraining order (“TRO”), not whether the motion to supplement should be granted.2 Moreover, it is incorrect; Jacobson does not supplant the applicable legal framework. See Pls.’ TRO Br. at 27-30. Courts considering similar Executive Orders
2 Likewise, Defendants’ arguments about whether Tennessee has authority to implement emergency measures go to the merits of the supplemental complaint, not whether it should be permitted.
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have applied the undue burden analysis in weighing those restrictions. See Little Rock Family Planning Services v. Rutledge, No. 4:19-cv-00449-KGB, 2020 WL 1862830, at *7-9 (E.D. Ark. April 14, 2020); Robinson v. Marshall, No. 2:19-cv-365, 2020 WL 1847128, at *8, 10 (M.D. Ala. Apr. 12, 2020); S. Wind Women’s Center v. Stitt, No. CIV-20-277-G, 2020 WL 1677094, at *2-3 (W.D. Okla. Apr. 6, 2020); Preterm-Cleveland at 5-6; Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323-LY, slip op. (W.D. Tex. Apr. 9, 2020), stayed by In re: Abbott, No. 20-50296 (5th Cir. Apr. 10, 2020), amended by No. 20-50296 (5th Cir. Apr. 13, 2020). Defendants’ response to Plaintiffs’ motion for TRO acknowledges that EO25, like other abortion restrictions, including the Delay Law, must be evaluated under the undue burden framework. Defs.’ TRO Resp. 14-17. Indeed, Defendants’ reliance on Casey and Taft in their brief opposing the motion for TRO is virtually identical to their post-trial arguments concerning the Delay Law. See id. at 14-16; Defs.’ Proposed Findings of Fact and Conclusions of Law (ECF No. 227) at 1, 19-22.
In short, there is no reason to consider these issues separately. Both the original and the supplemental complaint have the same “focal point” – state actions that delay or deny access to abortion in Tennessee and the impact on patients’ health and lives. See Husted, 837 F.3d at 625. The Executive Order must be considered against the backdrop of continued, persistent efforts in Tennessee to circumvent women’s constitutional right to access abortion care. Cf. Griffin v. Cty. Sch. Bd. of Prince Edward Cty., 377 U.S. 218, 227 (1964) (allowing supplemental complaint involving new occurrences and events in light of the “continued, persistent efforts” by Prince Edward County to avoid racial integration of its schools). Moreover, because the burdens imposed by the Delay Law are exacerbated by the burdens imposed by the Executive Order, Plaintiffs have requested that during the pendency of the
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Executive Order, the Delay Law’s in-person counseling requirement be temporarily enjoined, to ameliorate the multiple barriers to care that patients are facing while protecting against additional community exposure to COVID-19. This Court’s familiarity with the factual record and underlying legal issues will allow for a far more efficient adjudication of Plaintiffs’ supplemental complaint.
2. Defendants Have Not Established Supplementation Will Cause Undue Prejudice As set forth in Plaintiffs’ opening brief, courts in this Circuit consider six factors to determine whether a Supplemental Complaint would unduly prejudice a defendant. See Pls.’ Suppl. Br. at 10-11; see also Brian A. v. Bredesen, No. 3:00-0445, 2009 WL 4730352, at *2 (M.D. Tenn. Dec. 4, 2009) (Court should consider (1) undue delay in filing; (2) lack of notice to adverse parties; (3) whether the movant is acting in bad faith; (4) failure to cure deficiencies by previous amendments; (5) the possibility of undue prejudice to adverse parties; and (6) whether the amendment is futile). Defendants fail to rebut Plaintiffs’ showing that none of these factors is present here. Defendants are all representatives of the State of Tennessee and will not be unduly prejudiced if Plaintiffs move for emergency relief in this action instead of moving for the same relief against the same Defendants in a separate action. Denying this motion, however, would unduly prejudice Plaintiffs, because they would need to re-establish the trial record before a new Court. Defendants’ only other argument is that they will be prejudiced because supplementation will “delay entry of a final judgment.” Defs. Suppl. Resp. at 8. Not so. Trial has already occurred, both parties have submitted post-trial findings of fact and conclusions of law, and this Court may enter a partial final judgment as to the Delay Law at any point. See Fed. R. Civ. P. 54(b).
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The addition of two additional proposed Plaintiffs will not prejudice Defendants, as
they are also Tennessee abortion providers who share substantially the same interests as the original Plaintiffs.3 Similarly, the two additional State defendants will be represented by the
same counsel as the other Defendants and share substantially the same interests in this matter,
which Defendants do not dispute. See Mattox v. Edelman, 851 F.3d 583, 592 (6th Cir. 2017)
(supplementation may include new parties, claims, and defenses).
Other Courts have permitted supplementation under similar circumstances. See, e.g.
Stewart v. Shelby Tissue, 189 F.R.D. 357, 362-63 (W.D. Tenn. 1999); FieldTurf USA, Inc. v.
Astroturf, LLC, No. 2:10-CV-12492, 2018 WL 5961422, at *3-5 (E.D. Mich. Mar. 12, 2018); Keith v. Volpe, 858 F.2d 467, 474-76 (9th Cir. 1988).4 Here, there is no final judgment and
this Court retains jurisdiction; the request for relief includes an injunction of the Delay Law;
and if a final decision is rendered in Plaintiffs’ favor on the Delay Law, the Executive Order
would contravene the result by imposing an even longer delay.
CONCLUSION
For the reasons set forth above, the Court should grant this motion on an expedited
basis and permit the Providers to file the proposed Supplemental Complaint.
3 In fact, one proposed Plaintiff, Dr. Kimberly Looney, is the Chief Medical Officer of current Plaintiff Planned Parenthood of Tennessee and North Mississippi. 4 The cases cited by Defendants are inapposite. See Defs.’ Opp. at 6-7; Carlton v. Baird, 72 F. App’x 367, 368–69 (6th Cir. 2003) (affirming the denial of a motion to amend, not a motion to supplement); Planned Parenthood of S. Arizona v. Neely, 130 F.3d 400, 402 (9th Cir. 1997) (reversing grant of motion to supplement where there was a final judgment four years prior and the court did not retain jurisdiction); Schwarz v. City of Treasure Island, 544 F.3d 1201, 1211, 1229 (11th Cir. 2008) (denying motion to supplement where plaintiffs knew facts underlying motion for “at least eleven months”); Sai v. Transp. Sec. Admin., 155 F. Supp. 3d 1, 7–8 (D.D.C. 2016) (denying motion to supplement denial of FOIA complaint because the request was “cursory” and “cryptic” and did not promote efficiency).
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Dated: April 16, 2020

Respectfully submitted,
/s/ Thomas H. Castelli Thomas H. Castelli (No. 24849) American Civil Liberties Union Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Tel: (615) 320-7142 tcastelli@aclu-tn.org
Attorney for Plaintiffs
Scott P. Tift David W. Garrison BARRETT JOHNSTON MARTIN & GARRISON, LLC Bank of America Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Tel: (615) 244-2202 Fax: (615) 252-3798 stift@barrettjohnson.com dgarrison@barrettjohnson.com
Thomas C. Jessee Jessee & Jessee P.O. Box 997 Johnson City, TN 37605 Tel: (423) 928-7175 jjlaw@jesseeandjessee.com
Michael J. Dell* Jason M. Moff* Irene Weintraub* Timur Tusiray* Catherine Hoge* Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 Tel: 212-715-9129 Tel: 212-715-9113 mdell@kramerlevin.com jmoff@kramerlevin.com

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iweintraub@kramerlevin.com ttusiray@kramerlevin.com choge@kramerlevin.com
Attorneys for Plaintiffs Adams & Boyle, P.C., Memphis Center for Reproductive Health, and Planned Parenthood of Tennessee and North Mississippi
Autumn Katz* Genevieve Scott** Michelle Moriarty* Center for Reproductive Rights 199 Water Street, 22nd Floor New York, NY 10038 Tel: (917) 637-3600 Fax: (917) 637-3666 akatz@reprorights.org gscott@reprorights.org mmoriarty@reprorights.org
Attorneys for Plaintiffs Adams & Boyle, P.C. and Memphis Center for Reproductive Health
Maithreyi Ratakonda* Planned Parenthood Federation of America 123 William St., 9th Floor New York, NY 10038 Tel: (212) 261-4405 Fax: (212) 247-6811 mai.ratakonda@ppfa.org
Attorney for Plaintiffs Planned Parenthood of Tennessee and North Mississippi and Dr. Kimberly Looney
Julia Kaye** American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2633 jkaye@aclu.org
Attorney for Plaintiff Knoxville Center for Reproductive Health
7
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*Admitted pro hac vice **Application for admission pro hac vice pending
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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Reply Memorandum of Law in Further Support of Expedited Motion to File Supplemental Complaint has been served on the following counsel of record through the Electronic Filing System on this 16th day of April, 2020: Alexander Stuart Rieger Steven Ashley Hart Sue A. Sheldon Lindsay Sisco Matt Cloutier Amber Seymour Kathryn Baker Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202-0207 (615) 741-2408 Fax: (615) 532-5683 alex.rieger@ag.tn.gov steve.hart@ag.tn.gov sue.sheldon@ag.tn.gov lindsay.sisco@ag.tn.gov matt.cloutier@ag.tn.gov amber.seymour@ag.tn.gov kathryn.baker@ag.tn.gov
/s/ Thomas H. Castelli Thomas H. Castelli
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ADAMS & BOYLE, P.C., on behalf of itself and its patients; et al.,
Plaintiffs,
v.
HERBERT H. SLATERY III, Attorney General of Tennessee, in his official capacity; et al.,
Defendants.

CASE NO. 3:15-cv-00705
JUDGE FRIEDMAN
MAGISTRATE JUDGE FRENSLEY

REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

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Leading medical authorities agree that abortion is “essential care” for which a delay of
weeks or even days may increase risks or make abortion inaccessible. Pls. TRO Br. 17-18. The
State repeatedly emphasizes that EO-25 reflects the recommendations of the American College of
Surgeons (“ACOS”), see Defs.’ TRO Resp. at 2, 7, but ignores that ACOS has classified
“pregnancy termination (for medical indication or patient request)” as a procedure that “if
significantly delayed could cause significant harm” (unlike surgeries that can be delayed for a few weeks or several months).1 Likewise, the World Health Organization classifies “services related
to reproductive health, including care during pregnancy and childbirth” as a “high priority category” of “essential services.”2 The State argues the Providers seek “different treatment,” Defs.’
TRO Resp. at 2, but, in reality, it is the State that singles out abortion as the only form of essential
care not excepted under EO-25. The State describes EO-25 as a “temporary measure” limited to
“two-week[s].” Defs. TRO Resp. 7, 19. But EO-25 went into effect on April 9, delaying care for a
minimum of three weeks, and, by the State’s own admission, the number of COVID-19 infections
in Tennessee are rapidly advancing and have “not yet reached their peak.” See Defs.’ TRO Resp. 1, 4, 8.3 The State’s own facts belie its assertion that EO-25 will expire on April 30. The Providers
share the State’s goal of preserving PPE and preventing the spread of COVID-19 and emphasize
that EO-25’s application to abortion frustrates, rather than furthers, those goals.
1 See Am. Coll. of Surgeons, COVID-19 Guidelines for Triage of Gynecology Patients (Mar. 24, 2020), https://www.facs.org/covid-19/clinical-guidance/elective-case/gynecology. 2 See World Health Organization, COVID-19: Operational guidance for maintaining health services during at outbreak, at 4 (Mar. 25, 2020), available at https://www.who.int/publicationsdetail/covid-19-operational-guidance-for-maintaining-essential-health-services-during-an-outbreak. 3 Indeed, on April 15, Governor Lee called on all schools to remain closed for the remainder of the academic year. See Laura Testino, Gov. Bill Lee calls on all Tennessee public schools to remain closed for rest of academic year, Tennessean (Apr. 15, 2020), https://www.tennessean.com/story/news/ education/2020/04/15/coronavirus-education-schoolsto-close-rest-of-academic-year-gov-bill-lee/2938268001/.
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I. The Providers’ Standing is Not in Question Third-party standing exists where, as here, the providers themselves are directly regulated by the challenged law, and it threatens their patients with constitutional injury. City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 440 n.30 (1983), overruled on other grounds by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 62 (1976); Doe v. Bolton, 410 U.S. 179, 188 (1973). “Plaintiffs in this type of case have uniformly been permitted to assert the rights of the affected third parties,” and no further inquiry is necessary. Planned Parenthood Ass’n v. City of Cincinnati, 822 F.2d 1390, 1394 (6th Cir. 1987). Even under the separate third-party standing inquiry for plaintiffs who are not directly regulated by a challenged law, binding precedent confirms that abortion providers have third-party standing on behalf of their patients, given the close relationship between providers and patients. Singleton v. Wulff, 428 U.S. 106, 117 (1976). The Singleton Court recognized that abortion providers are “uniquely qualified to litigate the constitutionality of the State’s interference with, or discrimination against, [the abortion] decision” where patients depend on “the aid of a physician” to exercise their rights. Id.; see also Eisenstadt v. Baird, 405 U.S. 438, 446 (1972). Defendants attempt to conjure a conflict between the Providers and their patients around COVID19, Defs.’ TRO Resp. at 10-11, when the evidence documents the Providers’ deep commitment and extensive efforts to ensure that they are providing the essential care their patients need while simultaneously “conserving needed medical resources and preventing the spread of the virus.” See Proposed Suppl. Compl. ¶ 43; Pls. TRO Br. 11-13.4 Finally, Defendants assert the Providers fail
4 Perplexingly, Defendants cite to Planned Parenthood of Greater Ohio v. Hodges, 917 F.3d 908 (6th Cir. 2019) (en banc) in asserting that Plaintiffs lack standing here. But as Hodges explains,
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to show any “hindrance” preventing their patients from bringing suit, but the Providers describe in detail the challenges in their patients’ lives, see, e.g., Looney Decl. ¶¶ 19, 21; Terrell Decl. ¶¶ 1316, 39-40; Rovetti Decl. ¶¶ 17-21, and it is undisputed that COVID-19 has exacerbated the obstacles patients would face in accessing the courthouse. See Defs. Resp. 6.
II. Jacobson Does Not Alter the Outcome Jacobson’s applicability here is called into doubt by the text of Casey itself, which cites to Jacobson when defining the limits of the state’s power to restrict abortion. Pls.’ TRO Br. 27 (citing Casey, 505 U.S. at 857 (explaining Jacobson does not supplant modern substantive constitutional test applied to the right at issue)). Even assuming Jacobson has any relevance in this context, Defendants acknowledge that Jacobson places two clear restraints on the government’s police power: that it have a “real or substantial relation” to its asserted goals and that it “must always yield in case of conflict” with “any right which [the Constitution] gives or secures.” Jacobson v. Massachusetts, 197 U.S. 11, 25, 31 (1905). EO-25 fails both tests. First, the State argues only that abortion requires minimal PPE but fails to address record evidence demonstrating that by preventing abortion, EO-25 undermines rather than furthers its interests. The State does not contest the Providers’ testimony demonstrating that prenatal care for a continuing pregnancy, carrying to term, later abortion procedures, and forcing patients to travel out of state all require more PPE and person to person contact, creating greater risks of spreading COVID-19 and reducing essential PPE and hospital resources. Pls.’ TRO Br. 14-16, 18-19. Further, courts across the country agree that a violation of the right to abortion cannot stand under Jacobson. See Pls. TRO Br. 26-30 (citing, inter alia, Robinson v. Marshall, No. 2:19-cv-
“[t]he Supreme Court [has] held that abortion providers have standing to bring due process challenges on behalf of their patients.” Hodges, 917 F.3d at 914.
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365, 2020 WL 1847128, at *8-9, n.10 (M.D. Ala. Apr. 12, 2020)); Little Rock Family Planning Servs. v. Rutledge, No. 4:19-cv-00449-KGB, 2020 WL 1862830, at *6 (E.D. Ark. Apr. 14, 2020) (granting TRO of previability ban on abortion at 10 weeks)). The State does not contest that EO25 places a previability ban on abortion after 11 weeks LMP, rendering it unconstitutional as applied to abortion under five decades of precedent. Pls. TRO Br. 21-23. It relies on In re Abbott, No. 20-50296, 2020 WL 1866010 (5th Cir. Apr. 13, 2020), but even there, the Fifth Circuit has not permitted state action that would entirely prevent patients from accessing abortion in the state, highlighting how extreme the State’s argument is here. See Pls. TRO Br. 3, n.2. And, though the State acknowledges that it must demonstrate that EO-25’s benefits must outweigh its burdens, Defs.’ TRO Resp. at 14, it relies solely on case law—already briefed at length before this Court— in which far shorter waiting periods were upheld, ignoring that those cases were explicitly limited to their records and the Supreme Court’s more recent holding that when applying the undue burden standard, courts must engage in a fact specific inquiry. See Plaintiffs’ Proposed Findings of Fact and Conclusions of Law ¶¶ 182-188 (ECF No. 226). But where, as here, the State severely burdens access to care without actually serving any state interest, it violates the undue burden standard. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016).
III. Allowing EO-25 to Block Procedural Abortions Will Cause Irreparable Constitutional, Medical, and Other Harms, and Serves No Public Interest.
As district courts across the country have uniformly found, laws blocking procedural abortion care for, at minimum, several weeks or months cause patients irreparable harm and warrant emergency relief. Pls. TRO Br. 31-32; Little Rock Family Planning Servs., 2020 WL 1862830 at *10. The State argues that the Providers have not identified a patient who will be unable to access services, but that is not the applicable legal standard, and the Providers have established EO-25’s severe burdens. Pls. TRO Br. 13-19, 30. On the face of the restriction, 100% of patients
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after 11 weeks LMP will be blocked from obtaining abortions for at least three weeks, potentially losing access to care entirely. Pls. TRO Br. 13-14. Moreover, the State ignores evidence that the Providers will face an extensive backlog after the expiration of the order. Id. The State does not, and cannot, rebut the Providers’ extensive medical evidence that delaying abortion care by weeks jeopardizes patients’ health, and that pregnant patients prevented from obtaining an abortion face profoundly greater risks of complications and death, as well as psychological and other harms. Pls. TRO Br. 14-19. The State also fails to rebut evidence demonstrating the imminent harms to patients who will likely lose their ability to obtain an abortion in Tennessee if they are delayed until after April 30, 2020, patients who will be forced to undergo a lengthier and more complex abortion procedure, and patients who will be forced to undergo two-day procedures. See Pls. TRO Br. 13-18.
For all these reasons, the Providers respectfully request that this Court grant their motion.

Dated: April 16, 2020

Respectfully submitted,
/s/ Thomas H. Castelli Thomas H. Castelli (No. 24849) American Civil Liberties Union Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Tel: (615) 320-7142 tcastelli@aclu-tn.org
Attorney for Plaintiffs
Scott P. Tift David W. Garrison BARRETT JOHNSTON MARTIN & GARRISON, LLC Bank of America Plaza 414 Union Street, Suite 900

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Nashville, TN 37219 Tel: (615) 244-2202 Fax: (615) 252-3798 stift@barrettjohnson.com dgarrison@barrettjohnson.com
Thomas C. Jessee Jessee & Jessee P.O. Box 997 Johnson City, TN 37605 Tel: (423) 928-7175 jjlaw@jesseeandjessee.com
Michael J. Dell* Jason M. Moff* Irene Weintraub* Timur Tusiray* Catherine Hoge*
Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 Tel: 212-715-9129 Tel: 212-715-9113 mdell@kramerlevin.com jmoff@kramerlevin.com iweintraub@kramerlevin.com ttusiray@kramerlevin.com choge@kramerlevin.com
Attorneys for Plaintiffs Adams & Boyle, P.C., Memphis Center for Reproductive Health, and Planned Parenthood of Tennessee and North Mississippi
Autumn Katz* Genevieve Scott** Michelle Moriarty* Center for Reproductive Rights 199 Water Street, 22nd Floor New York, NY 10038 Tel: (917) 637-3600 Fax: (917) 637-3666 akatz@reprorights.org gscott@reprorights.org mmoriarty@reprorights.org
6
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Attorneys for Plaintiffs Adams & Boyle, P.C. and Memphis Center for Reproductive Health Maithreyi Ratakonda* Planned Parenthood Federation of America 123 William St., 9th Floor New York, NY 10038 Tel: (212) 261-4405 Fax: (212) 247-6811 mai.ratakonda@ppfa.org Attorney for Plaintiffs Planned Parenthood of Tennessee and North Mississippi and Dr. Kimberly Looney Julia Kaye** American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2633 jkaye@aclu.org Attorney for Plaintiff Knoxville Center for Reproductive Health *Admitted pro hac vice **Application for admission pro hac vice pending
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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Reply in Support of Plaintiffs’ Motion for Temporary Restraining Order and/or Preliminary Injunction has been served on the following counsel of record through the Electronic Filing System on this 16th day of April, 2020: Alexander Stuart Rieger Steven Ashley Hart Sue A. Sheldon Lindsay Sisco Matt Cloutier Amber Seymour Kathryn Baker Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202-0207 (615) 741-2408 Fax: (615) 532-5683 alex.rieger@ag.tn.gov steve.hart@ag.tn.gov sue.sheldon@ag.tn.gov lindsay.sisco@ag.tn.gov matt.cloutier@ag.tn.gov amber.seymour@ag.tn.gov kathryn.baker@ag.tn.gov
/s/ Thomas H. Castelli Thomas H. Castelli
Case 3:15-cv-00705 Document 243 Filed 04/16/20 Page 9 of 9 PageID #: 6135

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ADAMS & BOYLE, P.C., on behalf of itself and its )

patients; MEMPHIS CENTER FOR

)

REPRODUCTIVE HEALTH, on behalf of itself and )

its patients; PLANNED PARENTHOOD OF

)

TENNESSEE AND NORTH MISSISSIPPI, on

)

behalf of itself and its patients; KNOXVILLE

)

CENTER FOR REPRODUCTIVE HEALTH, on

)

behalf of itself and its patients; and DR. KIMBERLY )

LOONEY, on behalf of herself and her patients,

)

)

Plaintiffs,

)

)

v.

)

)

HERBERT H. SLATERY III, Attorney General of )

Tennessee, in his official capacity; LISA PIERCEY, )

M.D., Commissioner of the Tennessee Department of )

Health, in her official capacity; W. REEVES

)

JOHNSON, JR., M.D., President of the Tennessee )

Board of Medical Examiners, in his official capacity; )

GLENN R. FUNK, District Attorney General of

)

Metropolitan Nashville and Davidson County, in his )

official capacity; AMY WEIRICH, District Attorney )

General of Shelby County, in her official capacity; )

BARRY P. STAUBUS, District Attorney General of )

Sullivan County, in his official capacity; CHARME )

P. ALLEN, District Attorney General of Knox

)

County, in her official capacity; WILLIAM LEE,

)

Governor of Tennessee, in his official capacity; and )

RENE SAUNDERS, M.D., Chair of the Tennessee )

Board for Licensing Health Care Facilities, in her

)

official capacity,

)

)

Defendants.

)

)

)

)

CIVIL ACTION
CASE NO. 3:15-cv-00705
JUDGE FRIEDMAN
MAGISTRATE JUDGE FRENSLEY

SUPPLEMENTAL COMPLAINT FOR TEMPORARY AND INJUNCTIVE RELIEF

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Plaintiffs Adams & Boyle, P.C., Memphis Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi, Knoxville Center for Reproductive Health, and Dr. Kimberly Looney (collectively, “Plaintiffs”), by and through their undersigned attorneys, bring this complaint against the above-named Defendants, and in support thereof allege the following:
PRELIMINARY STATEMENT 1. Plaintiffs Adams & Boyle, P.C., Memphis Center for Reproductive Health, and Planned Parenthood of Tennessee and North Mississippi challenged Tennessee’s requirement that women seeking an abortion make an additional, medically unnecessary trip at least 48 hours before they can obtain an abortion in order to attend an in-person meeting with the physician and receive certain state-mandated information. Tenn. Code Ann. § 39-15-202(a)-(h) (the “Delay Requirement”). 2. The Delay Requirement forces every woman seeking an abortion in Tennessee to remain pregnant against her will and against her physician’s medical judgment, even after she has made the decision to terminate her pregnancy. It subjects women to increased medical risk, emotional harms, protracted delays, increased costs, and other burdens. 3. The Court held a trial on the merits of the constitutional challenge to the Delay Requirement in September 2019, and the parties subsequently submitted proposed findings of fact and conclusions of law for the Court’s consideration. A decision is pending. 4. Plaintiffs now supplement their case to bring a constitutional challenge under 42 U.S.C. § 1983 to Governor Bill Lee’s April 8, 2020 Executive Order 25, “An Order To Reduce The Spread Of Covid-19 By Limiting Non-Emergency Healthcare Procedures” (the “Executive Order” or the “Order”), as it applies to procedural abortions in Tennessee. The Executive Order is attached as Exhibit A. It took effect on April 9, 2020, and will remain in effect until 12:01 a.m., Central Daylight Time, on April 30, 2020. The Executive Order will operate as a complete ban on
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procedural (sometimes called “surgical”) abortions in the State for some women. For others, it will impose extreme burdens by forcing them to travel long distances (including out of state) in the midst of the COVID-19 pandemic, delaying their ability to access care for weeks (and potentially even longer), and exposing them to increased medical risk.
5. Citing the ongoing COVID-19 pandemic and the need to “preserv[e] personal protective equipment for emergency and essential needs” and prevent “community spread of COVID-19 through non-essential patient-provider interactions,” the Order states that “[a]ll healthcare professionals and healthcare facilities in the State of Tennessee shall postpone surgical and invasive procedures that are elective and non-urgent.” Executive Order at 2. Elective and nonurgent procedures are defined as “those procedures that can be delayed until the expiration of this Order because they are not required to provide life-sustaining treatment, to prevent death or risk of substantial impairment of a major bodily function, or to prevent rapid deterioration or serious adverse consequences to a patient’s physical condition if the surgical or invasive procedure is not performed, as reasonably determined by a licensed medical provider.” Id. at 2-3.
6. The Executive Order carries severe, including criminal, penalties. In light of its broad restrictions, Plaintiffs were forced to cancel dozens of procedural abortion appointments that were scheduled to take place after the Executive Order took effect, including for patients who had already been forced by the Delay Requirement to travel to the Plaintiffs’ clinics to receive statemandated counseling and then returned home to wait the required 48 hours before obtaining an abortion. Numerous future appointments scheduled for this month are now being cancelled, throwing abortion access in Tennessee into disarray.
7. Application of Tennessee’s Executive Order to ban all procedural abortions contravenes the guidance of leading medical and health authorities regarding the provision of health care during the COVID-19 pandemic. The American College of Obstetricians and
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Gynecologists (“ACOG”) has issued a joint public statement with numerous major medical organizations in response to the COVID-19 pandemic, explaining that abortion is essential health care for which a delay of weeks, “or in some cases days,” increases the risks to patients’ health and safety. The American Medical Association (“AMA”) also issued a statement denouncing efforts to “ban or dramatically limit women’s reproductive health care” at this time.
8. For nearly fifty years, the U.S. Supreme Court has recognized the fundamental federal constitutional right to make the profoundly personal decision whether to terminate a pregnancy. See Roe v. Wade, 410 U.S. 113 (1973). The Supreme Court has repeatedly recognized that this right is foundational to equality and to respect for the dignity, autonomy, and bodily integrity of all people.
9. By prohibiting procedural abortions in Tennessee, the Executive Order clearly violates the fundamental right of Plaintiffs’ patients to seek an abortion before viability, in contravention of this long-standing Supreme Court precedent. Roe, 410 U.S. at 163–64; Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992). Even if the Order is scrutinized under the “undue burden” test that applies to laws regulating (not banning) abortion, the burdens on patients far outweigh any state interest here and constitute “a plain, palpable invasion of rights” under Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905) (explaining that a state’s exercise of police power is invalid where it intrudes upon fundamental rights or fails to actually further the asserted aims).
10. Indeed, federal courts have blocked similar measures banning abortion during the COVID-19 pandemic. See Robinson v. Marshall, No. 2:19-cv-365 (M.D. Ala. Apr. 12, 2020) (ECF No. 137); Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323-LY, 2020 WL
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1815587 (W.D. Tx. April 9, 2020);1 Southwind Women’s Center LLC v. Stitt, No. CIV-20-277-G, 2020 WL 1677094, at *3 (W.D. Okla. Apr. 6, 2020), appeal dismissed, No. 20-6045 (10th Cir. Apr. 13, 2020); Pre-Term Cleveland v. Attorney Gen. of Ohio, No. 1:19-cv-00360, slip op. at 6 (S.D. Ohio Mar. 30, 2020), appeal dismissed, No. 20-3365, 2020 WL 1673310 (6th Cir. Apr. 6, 2020).
11. As explained infra, forcing pregnant patients to remain pregnant against their will for weeks, or more likely months, furthers no state interests while imposing significant and, in many cases, insurmountable burdens on patients seeking essential health care. The Executive Order, in combination with the Delay Requirement, will compound the burdens already faced by women seeking abortion in Tennessee. Some will be not be able to obtain an abortion at all because they will pass the limit at which abortion is provided in the State while the Executive Order is in effect. And even after the Executive Order is lifted, there will be an extreme backlog of patients in need of care, some of whom may be forced to obtain a costlier, more complex, and longer procedural abortion, or who may be close to the point at which abortion is no longer available in Tennessee. The additional delay imposed by the Delay Requirement—forcing women to make two separate trips to the clinic with all of the attendant hurdles that entails—will make it even more difficult for women to access abortion, delaying many and preventing some patients from accessing abortion at all.
1 The Fifth Circuit has granted a partial administrative stay of the District Court’s order, leaving in place the temporary restraining order as to medication abortion and “abortions for women who would be past Texas’s legal limit—22 weeks LMP—for abortion by April 22.” In re Abbott, No. 20-50296, at 3, 5 (5th Cir. Apr. 13, 2020). Plaintiffs have filed an emergency application with the Supreme Court to vacate the stay. See Applicants’ Emergency Application to Justice Alito to Vacate Administrative Stay of Temporary Restraining Order Entered by the United States Court of Appeals for the Fifth Circuit, Planned Parenthood Center for Choice, et al., v. Greg Abbott, Governor of Texas, et al., No. 19A1019 (Apr. 11, 2020).
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12. Without injunctive relief, Plaintiffs will be forced to continue turning away patients seeking time-sensitive abortion care, thereby inflicting immediate and irreparable harm for which no adequate remedy at law exists. At a minimum, those patients will be prevented from obtaining an abortion for several weeks, and likely longer, given that the COVID-19 pandemic is predicted to last far beyond the Order’s stated expiration date. Some will not be able to access abortion at all and will be forced to carry pregnancies to term.
13. Not only will these patients be deprived of their constitutional right to essential healthcare and self-determination, but forcing them to continue their pregnancies will undermine the very goals identified in the Order: “preserving personal protective equipment for emergency and essential needs” and preventing “community spread of COVID-19 through non-essential patient-provider interactions.” Executive Order at 2. Forcing a patient to remain pregnant imposes far greater strains on an already-taxed healthcare system, as prenatal care and delivery involve more patient-provider interactions, including prenatal visits, additional screening tests, and, ultimately, hospital admission and labor and delivery, including a potential caesarean section, which is major abdominal surgery. Alternatively, some patients who have the means will attempt to obtain care by traveling to another state, thus increasing the risk of COVID-19 transmission but ultimately conserving no personal protective equipment (“PPE”). Under either scenario, preventing patients from accessing abortion in Tennessee will, contrary to the stated goals of the Executive Order, increase the risks, both to patients and the rest of Tennessee’s population, of contracting COVID-19 and result in much greater depletion of essential items needed to care for patients, including hospital beds and PPE. For all these reasons, the Executive Order’s ban on previability procedural abortion does nothing to further the Order’s asserted goals. Plaintiffs therefore seek declaratory and injunctive relief.
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JURISDICTION AND VENUE 14. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 and 1343. 15. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal and equitable powers of this Court. 16. Venue is appropriate under 28 U.S.C § 1391(b) because one or more of the Defendants resides in this judicial district and because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this judicial district.
PLAINTIFFS 17. Plaintiff Adams & Boyle, P.C., is a professional corporation organized under the laws of Tennessee. It is a holding company for Bristol Regional Women’s Center in Bristol, Tennessee (the “A & B Bristol Clinic”). The A & B Bristol Clinic has operated continuously since 1980. It provides an array of gynecological and reproductive health services in a private physician’s office atmosphere, including procedural abortions up to 12 weeks, 6 days LMP2 (prior to the Executive Order) and medication abortions up to 9 weeks, 6 days LMP. Adams & Boyle, P.C., sues on its own behalf and on behalf of its patients. 18. Plaintiff Memphis Center for Reproductive Health is a nonprofit organization that operates CHOICES, a women’s health clinic in Memphis, Tennessee (“Choices Memphis”). In operation since 1974, Choices Memphis strives to empower individuals to make informed decisions about their reproductive health; the clinic offers a full range of sexual and reproductive health care, including gynecology care, fertility services, health care services for lesbian, gay, and transgender individuals, testing and treatment for sexually transmitted infections, HIV testing and
2 “LMP” denotes the first day of a pregnant woman’s “last menstrual period.” It is the standard measure of gestational age used by medical professionals.
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referrals, midwifery care, medication abortions up to 11 weeks LMP, and, prior to the Executive Order, procedural abortions up to 15 weeks LMP. Choices Memphis is a member of the National Abortion Federation. Choices Memphis sues on its own behalf and on behalf of its patients.
19. Planned Parenthood of Tennessee and North Mississippi (“PPTNM”) or (“Planned Parenthood”) was formed in June 2018 by the merger of two prior Planned Parenthood entities: Planned Parenthood Greater Memphis Region (“PPGMR”) and Planned Parenthood of Middle and East Tennessee (“PPMET”). Planned Parenthood has four health centers in Tennessee at which abortion is provided; two in Memphis, one in Nashville, and one in Knoxville. The first Memphis health center provides medication abortion up to 11 weeks 0 days LMP and, prior to the Executive Order, procedural abortion up to 19 weeks, 6 days LMP; the second Memphis health center and the Knoxville health center provide medication abortion up to 11 weeks 0 days LMP; and the Nashville health center provides medication abortion up to 11 weeks 0 days LMP and, prior to the Executive Order, procedural abortion up to 19 weeks, 6 days LMP. Planned Parenthood provides approximately 6,500 abortions in Tennessee per year. In addition to abortion care, Planned Parenthood provides well-person care, contraception, testing and treatment for sexually transmitted infections, gender affirming care, and care for other gynecological concerns. Planned Parenthood’s philosophy of care is to provide nonjudgmental sexual and reproductive healthcare to all, ensuring patients receive unbiased and complete information. PPTNM sues on its own behalf and on behalf of its patients.
20. Plaintiff Knoxville Center for Reproductive Health (“The Knoxville Center”) is a non-profit reproductive health center that has been providing high-quality reproductive health care services to patients since 1975. The Knoxville Center provides a range of reproductive health services, including cancer screenings, testing and treatment for sexually transmitted infections,
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procedural abortions up to 15 weeks LMP (prior to the Executive Order), and medication abortions up to 11 weeks LMP. The Knoxville Center sues on its own behalf and on behalf of its patients.
21. Plaintiff Dr. Kimberly Looney is an obstetrician/gynecologist licensed to practice in the State of Tennessee. She has been the Chief Medical Officer of Plaintiff PPTNM since 2019, and has provided care at PPTNM since 2008. Dr. Looney provided procedural abortions at PPTNM up to 19 weeks, 6 days LMP prior to the Executive Order, and provides medication abortions at PPTNM up to 11 weeks LMP. Dr. Looney faces misdemeanor criminal penalties for violations of the Executive Order and potential medical licensure penalties. Dr. Looney sues on behalf of herself and her patients.
DEFENDANTS 22. Defendant Herbert H. Slatery III is the Attorney General of Tennessee. He is responsible for defending Tennessee laws against constitutional challenge. See Tenn. Code Ann. § 8-9-109(b)(9). Further, he has exclusive authority to prosecute criminal violations in Tennessee’s appellate courts. See Tenn. Code Ann. § 8-6-109(b)(2); State v. Simmons, 610 S.W.2d 141, 142 (Tenn. Crim. App. 1980). He is sued in his official capacity. 23. Defendant Lisa Piercey, M.D. is the Commissioner of the Tennessee Department of Health, and has general supervisory duties to protect the interests of health and life of the citizens of Tennessee. See Tenn. Code Ann. § 68-1-204. Commissioner Piercey has advised that failure to comply with Executive Order 25 is a “class A misdemeanor and may result in possible disciplinary action by [health care providers’] respective board.” Apr. 10, 2020 Letter from Commissioner Lisa Piercey, Tenn. Dep’t of Health, to Health Care Providers (attached as Exhibit B). Commissioner Piercey is sued in her official capacity. 24. Defendant W. Reeves Johnson, Jr., M.D., is the President of the Tennessee Board of Medical Examiners. The Board of Medical Examiners is empowered to take disciplinary action
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against a physician who violates various laws and regulations including those “governing abortion,” Tenn. Code Ann. § 63-6-214(b). Dr. Johnson is sued in his official capacity.
25. Defendant Glenn R. Funk is the District Attorney General for Nashville. He is responsible for prosecuting all violations of the state criminal statutes occurring in Metropolitan Nashville and Davidson County. Tenn. Code Ann. § 8-7-103. Violation of an executive order is a class A misdemeanor. Tenn. Code Ann. § 58-2-120. Mr. Funk is sued in his official capacity.
26. Defendant Amy Weirich is the District Attorney General for Shelby County. She is responsible for prosecuting all violations of the state criminal statutes occurring in Shelby County, which includes Memphis. Tenn. Code Ann. § 8-7-103. Violation of an executive order is a class A misdemeanor. Tenn. Code Ann. § 58-2-120. Ms. Weirich is sued in her official capacity.
27. Defendant Barry P. Staubus is the District Attorney General for Sullivan County. He is responsible for prosecuting all violations of the state criminal statutes occurring in Sullivan County, which includes Bristol. Tenn. Code Ann. § 8-7-103. Violation of an executive order is a class A misdemeanor. Tenn. Code Ann. § 58-2-120. Mr. Staubus is sued in his official capacity.
28. Defendant Charme P. Allen is the District Attorney General for Knox County. She is responsible for prosecuting all violations of the state criminal statutes occurring in Knox County, which includes Knoxville. Tenn. Code Ann. § 8-7-103. Violation of an executive order is a class A misdemeanor. Tenn. Code Ann. § 58-2-120. Ms. Allen is sued in her official capacity.
29. Defendant William Lee is the Governor of Tennessee and the author of the Executive Order, which he issued pursuant to his emergency authority.3 He is sued in his official capacity.
3 Tenn. Code Ann. § 58-2-107(e).
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He has authority to enforce violations of the Executive Order pursuant to Tenn. Code Ann. § 582-107.
30. Defendant Rene Saunders, M.D. is the Chair of the Board for Licensing Health Care Facilities. The Board for Licensing Health Care Facilities has the authority to discipline licensed ambulatory surgical treatment centers (“ASTCs”) for, among other things, violations of laws and regulations; permitting, aiding or abetting the commission of any illegal act in the ASTC; or conduct or practice found by the board to be “detrimental to the health, safety, or welfare of the patients of the ASTC.” Tenn. Comp. R. & Regs. 1200-08-10-.03(1); Tenn. Code Ann. § 68-11207. Dr. Saunders is sued in her official capacity.
FACTUAL ALLEGATIONS I. Background on Abortion 31. Legal abortion is a vital, safe, and common form of healthcare. There is no typical abortion patient: individuals seek abortions for a multitude of personal and often complex reasons. Nearly one in four women in the United States will obtain an abortion by age forty-five. 32. Pregnancy is commonly measured from the first day of the pregnant person’s last menstrual period (“LMP”). A full-term pregnancy has a duration of approximately forty weeks LMP. 33. There are generally two methods of providing abortion care: medication abortion and procedural abortion. 34. Medication abortion involves taking two medications—mifepristone, which is ingested in the clinic, and misoprostol, which is taken 24 to 48 hours later at a location of the patient’s choosing, typically at home. The pregnancy is passed outside the facility, in a process similar to miscarriage. The use of mifepristone in combination with misoprostol is safe and effective to terminate pregnancies up to 11 weeks (or 77 days) LMP.
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35. Although procedural abortion is often referred to as “surgical” abortion, it is not what is commonly understood to be surgery, as procedural abortion involves no incision, no need for general anesthesia, and no sterile field. Procedural abortion involves the use of instruments to gently dilate the cervix and evacuate the contents of the uterus. Procedural abortion is a straightforward and brief procedure; it is almost always performed in an outpatient setting and may at times involve local anesthesia or conscious sedation to make the patient more comfortable. Up to about 14 to 16 weeks LMP, procedural abortion is performed by the aspiration technique, which takes about five to ten minutes and uses gentle suction to empty the uterus.
36. Procedural abortion beyond this point requires some additional provider skills and equipment. After 14 to 16 weeks LMP, physicians use the dilation and evacuation (“D&E”) technique to adequately dilate the cervix and empty the uterus, which involves more in-clinic time and additional staff. Starting around 18 weeks LMP, procedural abortion is performed as a twoday procedure because the patient receives medications to dilate her cervix the day before the procedure.
37. Up to 11 weeks LMP, patients wishing to terminate their pregnancy may choose between medication and procedural abortion. However, after 11 weeks LMP, only procedural abortion is available. For some patients, such as those who are at increased risk of bleeding, procedural abortion is medically indicated over medication abortion. The Executive Order, by banning all procedural abortions, prevents these patients from obtaining the care they need.
38. Because pregnancy is not a static condition, abortion is necessarily time-sensitive healthcare. In Tennessee, abortion is not generally accessible past 19 weeks, 6 days LMP.
39. Both medication and procedural abortion are extremely safe, and safer than many other common medical procedures. Complications are rare and seldom result in the need for
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hospital care. However, the risks of complications increase as gestational age advances, as do the health risks associated with pregnancy itself.4
40. Abortion is far safer than the alternative—carrying a pregnancy to term. Nationally,
the risk of death associated with childbirth is approximately 14 times higher than that associated
with abortion, and every pregnancy-related complication is more common among women having live births than among those having abortions. 5 The risk of death from childbirth in Tennessee is even higher, and the state has one of the highest maternal mortality rates in the United States.6 In 2019, the maternal mortality ratio in Tennessee was 35.8 deaths per 100,000 live births reported.7 For Black women, the disparity is even more stark: 55 deaths for every 100,000 births.8 By comparison, there are 0.6 deaths per 100,000 legal abortions.9 Thus, even with an uncomplicated
pregnancy in an otherwise healthy individual, carrying a pregnancy to term and giving birth poses
serious medical risks and can have medical and physical consequences.
4 Linda A. Bartlett, et al., Risk Factors for Legal Induced Abortion-Related Mortality in the United States, 103 Obstetrics & Gynecology 729, 735 (2004), https://www.researchgate.net/publication/8648767_Risk_Factors_for_Legal_Induced_AbortionRelated_Mortality_in_the_United_States. 5 Elizabeth G. Raymond & David A. Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth in the United States, 119 Am. J. Obstetrics & Gynecology 215, 217 (2012), http://unmfamilyplanning.pbworks.com/w/file/fetch/119312553/Raymond%20et%20alComparative%20Safety.pdf (hereinafter “Raymond et al.”). 6 See United Health Found., America’s Health Rankings: Maternal Mortality in Tennessee (2019), https://www.americashealthrankings.org/explore/health-of-women-andchildren/measure/maternal_mortality_a/state/TN. 7 Id. 8 Id. 9 Raymond et al.; see also Tara C. Jatloui et al., Abortion Surveillance—United States, 2015, 67 Morbidity & Mortality Weekly Rep. Surveillance Summaries 1, 45 tbl. 23 (2018), https://www.cdc.gov/mmwr/volumes/67/ss/pdfs/ss6713a1-H.pdf (ranging from 0.00052% to 0.00078% for approximately five-year periods from 1978 to 2014).
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41. Delaying a woman who seeks an abortion to a later point in pregnancy will expose
her to increased medical risks, force her to undergo a more complex, lengthier procedure, and
impose greater financial costs. And delaying a woman seeking an abortion beyond the cutoff point
at which abortion services are available—forcing her to either travel out of state to obtain an
abortion, attempt a medically unsupervised abortion, or carry an unwanted pregnancy to term—
increases her risks of complications and death.
II. The COVID-19 Pandemic and Plaintiffs’ Health and Safety Measures in Response
42. COVID-19, first identified in December 2019,10 has grown to a worldwide
pandemic. The disease has spread to over 180 countries, infecting millions of people and killing more than 119,000.11 In the United States, the virus has reached every state, including nearly 5500 confirmed cases and over 110 deaths in Tennessee as of the time of filing.12 Federal and state
officials and medical professionals expect a surge of infections that may last for a year or eighteen months13 and test the limits of the healthcare system.14 Vanderbilt University Medical Center researchers predict that in Tennessee COVID-19 hospitalizations will peak in May or June.15
10 Derrick Bryson Taylor, A Timeline of the Coronavirus Pandemic, N.Y. Times, https://www.nytimes.com/article/coronavirus-timeline.html (updated Apr. 7, 2020). 11 Johns Hopkins Univ. of Med., Coronavirus COVID-19 Global Cases by the Centers for Systems Science and Engineering (CSSE) at John Hopkins University (JHU), https://coronavirus.jhu.edu/map.html (last visited Apr. 13, 2020). 12 N.Y. Times, Coronavirus in the U.S.: Latest Map and Case Count, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html#states (last visited Apr. 13, 2020). 13 Denise Grady, Not His First Epidemic: Dr. Anthony Fauci Sticks to the Facts, N.Y. Times (Mar. 8, 2020), https://www.nytimes.com/2020/03/08/health/fauci-coronavirus.html. 14 Ctrs. for Disease Control & Prevention, Interim Guidance for Healthcare Facilities: Preparing for Community Transmission of COVID-19 in the United States, https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/guidance-hcf.html (last updated Feb. 29, 2020). 15 Jake Lowary, Vanderbilt Health Policy COVID-19 model finds evidence of flattening curve,
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43. Since the COVID-19 crisis began, Plaintiffs have been diligent in protecting the health of their patients and staff while providing high-quality, timely abortion care. Even before the Executive Order was issued, they proactively adopted recommendations and guidelines published by the Centers for Disease Control and Prevention (“CDC”), the World Health Organization, the Centers for Medicare and Medicaid Services, and the National Abortion Federation regarding COVID-19, while continuing to comply with all relevant Tennessee laws and regulations governing abortion. Plaintiffs had already implemented measures specifically designed to serve the stated goals of the Order—conserving needed medical resources and preventing the spread of the virus—while continuing to ensure access to essential care.
44. Procedural abortions do not require the use of any hospital resources that may be needed for the COVID-19 response, such as hospital beds, ICU beds, or ventilators. Indeed, procedural abortion takes place in an outpatient setting—either a clinic or a physician’s office. Procedural abortion involves only minimal use of PPE: typically gloves, a surgical mask or reusable plastic face shield, and either reusable scrubs or a disposable gown or smock. None of Plaintiffs’ physicians use the N95 respirators that are in short supply during this COVID-19 pandemic to provide abortion care. Moreover, because procedural abortions are exceedingly safe, need for hospital-based care following a complication is exceedingly rare.
45. A procedural abortion at a later stage in pregnancy requires more PPE and essential resources than a procedural abortion at an earlier stage. This is particularly true of two-day procedures, which involve more PPE and greater patient-provider interactions. However, the PPE
recommends social distancing policies continue, VUMC Reporter (Apr. 9, 2020), https://news.vumc.org/2020/04/09/vanderbilt-health-policy-covid-19-model-finds-evidence-offlattening-curve-recommends-distancing-policies-continue/ (predicting that, with regard to Tennessee, “if the current social distancing policies continue to reduce the spread of the disease, there would be an estimated peak of hospitalizations in mid-June. If the state were to experience additional gains from social distancing, under that more optimistic scenario the peak of hospitalizations could be lower and could be as early as mid-May”).
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required for procedural abortion at any stage in pregnancy is substantially less than that required for a woman who needs prenatal care during pregnancy, and of course, one who carries a pregnancy to term and gives birth.
46. Thus, the Plaintiffs’ provision of abortion care does not burden Tennessee hospitals or divert hospital resources, equipment, or bed capacity away from the fight against COVID-19. Nevertheless, Plaintiffs have made every effort to reduce person-to-person contact and conserve PPE while at the same time balancing the need to provide essential healthcare to patients. For example, where medically appropriate, and based on the particularized needs of the facilities, Plaintiffs have reduced the number of staff in the clinic at any given time and restricted the staff who can be present in the procedure room during procedural abortion to only those that are medically essential or required by law. They have postponed or cancelled non-essential procedures, such as wellness visits, and are providing services via telephone whenever possible and in accordance with the law. When providing procedures which cannot be delayed, Plaintiffs are making every effort to conserve PPE and other essential resources and to reduce the possibility of spread and transmission of COVID-19.
47. The Plaintiffs are also screening patients for symptoms over the telephone prior to their appointment and when they arrive for their appointments, prior to entering the facilities. Any person exhibiting a fever or any other symptoms of COVID-19 is not permitted in the Plaintiffs’ clinics. Plaintiffs’ staff are maintaining social distancing by, for example, staggering appointments, not allowing patients to bring a support person to their appointment unless absolutely necessary (such as for minors), and keeping patients in separate rooms whenever possible. Additionally, Plaintiffs’ staff continuously disinfect surfaces, doorknobs, and other frequently touched surfaces throughout the day.
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48. At any given time, the Plaintiffs have fewer people inside their healthcare facilities than they normally had before the COVID-19 pandemic.
III. Governor Lee’s Executive Order 49. On March 12, Governor Bill Lee declared a State of Emergency in Tennessee “to facilitate the treatment and containment of COVID-19.”16 This invoked the Governor’s emergency powers to temporarily suspend “any law, order, rule or regulation prescribing the procedures for conduct of state business or the orders or rules or regulations of any state agency” if strict compliance would prevent, hinder or delay necessary action in coping with the emergency. Tenn. Code Ann. § 58-2-107(e)(1). 50. On March 23, 2020, Governor Lee signed Executive Order No. 18 (“EO 18”), which prevented hospitals and ambulatory surgical treatment centers from performing non-essential procedures, but explicitly exempted “pregnancy-related visits and procedures” as well as “emergency or trauma-related procedures where postponement would significantly impact the health, safety, and welfare of the patient.”17 EO 18 defined non-essential procedures as “any medical procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” 51. Before the expiration of EO 18, Governor Lee signed Executive Order 25, which supersedes the provisions of EO 18. See Executive Order at 3. Executive Order 25 states that its purpose is to “preserv[e] personal protective equipment for emergency and essential needs” and
16 TN Office of the Governor, Gov. Bill Lee Issues Executive Order Declaring State of Emergency in Response to COVID-19 (Mar. 12, 2020), https://www.tn.gov/governor/news/2020/3/12/gov--bill-lee-issues-executive-order-declaringstate-of-emergency-in-response-to-covid-19.html.
17 Governor Bill Lee, Executive Order No. 18, An Order To Reduce the Spread of COVID-19 By Limiting Non-Emergency Healthcare Procedures (Mar. 23, 2020), https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee18.pdf.
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prevent “community spread of COVID-19 through non-essential patient-provider interactions.” Id. at 2.
52. The Executive Order explains that “the American College of Surgeons has recommended that each hospital, health system, and surgeon thoughtfully review all scheduled elective procedures with a plan to minimize, postpone, or cancel electively scheduled operations, endoscopies, or other invasive procedures and to immediately minimize use of essential items needed to care for patients, including, but not limited to, ICU beds, personal protective equipment, terminal cleaning supplies, and ventilators.” Executive Order at 1.
53. The Executive Order describes personal protective equipment as including, but not limited to, “medical gowns, N95 masks, surgical masks, TYVEK suits, boot covers, gloves, and/or eye protection.” Id. at 3.
54. The Executive Order took effect at 12:01 a.m., Central Daylight Time, on April 9, 2020, and is in effect until 12:01 a.m., Central Daylight Time, on April 30, 2020. A violation of an executive order is a class A misdemeanor and can lead to various civil penalties, including possible disciplinary action by a licensing board. See Exhibit B; Tenn. Code Ann. § 58-2-120.
55. In a previous executive order, Governor Lee observed that “providing essential healthcare services in a manner that minimizes the continued spread of COVID-19 requires the use of alternative delivery mechanisms to protect healthcare providers and patients,” and suspended several restrictions on the practice of telemedicine in Tennessee, including laws governing who may provide services via telehealth.18
18 See Governor Bill Lee, Executive Order 20, An Order Amending Executive Order No. 15 Suspending Provisions of Certain Statutes and Rules and Taking Other Necessary Measures in order to Facilitate the Treatment and Containment of COVID-19 (Mar. 26, 2019), https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee20.pdf.
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56. However, unlike other healthcare providers, it is unlawful for Plaintiffs to transition abortion services to telehealth, as a result of separate, medically unnecessary abortion-specific statues and regulations. State law prohibits the use of telehealth for medication abortion. Tenn. Code Ann. § 63-6-241.
IV. The Executive Order Will Harm Patients 57. As trusted healthcare providers, Plaintiffs understand their responsibility to be there when their patients need them most. Abortion was essential healthcare before COVID-19, and the economic upheaval, housing insecurity, and rising unemployment that so many are now experiencing have only increased patients’ needs for abortion care and made timely access even more vital. 58. Within the last month, a group of preeminent national medical and leading health organizations issued a joint statement on “Abortion Access During the COVID-19 Outbreak.” The guidance instructs that abortion is an essential healthcare service and abortion services should not be delayed during this public health emergency. Specifically, ACOG stated: “To the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure” because it “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks or potentially make it completely inaccessible.”19 These groups emphasized that “[t]he consequences of being unable to
19 Am. Coll. of Obstetricians & Gynecologists, Am. Board of Obstetrics & Gynecology, Am. Ass’n of Gynecologic Laparoscopists, Am. Gynecological & Obstetrical Soc’y, Am. Soc’y for Reprod. Med., Soc’y for Acad. Specialists in Gen. Obstetrics & Gynecology, Soc’y of Fam. Plan., and Soc’y for Maternal-Fetal Med., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/jointstatement-on-abortion-access-during-the-covid-19-outbreak [hereinafter “Joint Statement on Abortion Access During the COVID-19 Outbreak”]; see also Am. Coll. of Obstetricians & Gynecologists, Am. Ass’n of Gynecologic Laparoscopists, Am. Soc’y for Reprod. Med., Am. Urogynecologic Soc’y, Soc’y of Fam. Plan., Soc’y of Gynecologic Surgeons, Soc’y for
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obtain an abortion profoundly impact a person’s life, health, and well-being.”20
59. The AMA, American Nurses Association, and American Hospital Association also
issued a statement “urging the public to #StayHome as we reach the critical stages of our national
response to COVID-19,” but stressed that “[o]f course, those with urgent medical needs, including pregnant women, should seek care as needed.”21 And the AMA went further, issuing a separate
statement lamenting as “unfortunate that elected officials in some states are exploiting this moment
to ban or dramatically limit women’s reproductive health care, labeling procedures as ‘nonurgent.’”22 The AMA stated that “[a]t this critical moment and every moment, physicians—not
politicians—should be the ones deciding which procedures are urgent-emergent and need to be performed, and which ones can wait, in partnership with patients.”23
60. Contrary to this guidance from leading medical organizations, the Executive Order
has effectively banned abortion after eleven weeks of pregnancy, and even earlier for those patients
who are ineligible for medication abortion.
61. Although the Order currently remains in force until April 30, 2020, experts believe the coronavirus pandemic will last a year to eighteen months.24 Given the criminal and other
penalties attached to violations of the Order, Plaintiffs have been and will continue to be forced to
Maternal-Fetal Med., and Soc’y of Gynecologic Oncology, Joint Statement on Elective Surgeries (Mar. 16, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-electivesurgeries (pregnancy-related procedures for which delay will negatively affect patient health and safety should not be delayed). 20 Joint Statement on Abortion Access During the COVID-19 Outbreak, supra note 19. 21 Am. Med. Ass’n, Am. Hosp. Ass’n, and Am. Nurses Ass’n: #StayHome to confront COVID19 (Mar. 24, 2020), https://www.ama-assn.org/press-center/press-releases/ama-aha-anastayhome-confront-covid-19. 22 Am. Med Ass’n, AMA statement on government interference in reproductive health care (Mar. 30, 2020), https://www.ama-assn.org/press-center/ama-statements/ama-statement-governmentinterference-reproductive-health-care. 23 Id. 24 See Grady, supra note 13.
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cancel appointments and turn away patients in need of care, with no guarantee or indication that the Order will not be extended even further.
62. Meanwhile, the Delay Requirement already imposes significant burdens on patients. Indeed, for those patients seeking care after the Executive Order is lifted, the Delay Requirement will further delay patients’ ability to access abortion care in Tennessee, preventing some patients from accessing care at all.
63. In addition, Tennessee prohibits Medicaid and insurance coverage of abortion in state exchanges established by the Affordable Health Act. Tenn. Code Ann. § 56-26-134. Patients seeking abortions under the age of 18 must obtain parental consent or a judicial bypass, either of which can delay access to care. Tenn. Code Ann. § 37-10-303. During the COVID-19 pandemic, patients must navigate these barriers against the backdrop of job insecurity, minimal public transit availability, and limited childcare assistance due to mandatory social-distancing and shelter-inplace orders.
64. Abortion care is only available during a limited window of time during a pregnancy, and these legal restrictions make abortion harder to access with each passing week. While patients generally seek abortion as soon as they are able, most of Plaintiffs’ patients are low-income and many face financial and logistical obstacles that can delay their access to abortion. For example, low-wage workers often have no paid time off or sick leave, so even if a pregnant worker is able to get time off work for an abortion appointment, they will likely have to forgo part of a paycheck. And if patients have lost their jobs it will be even more difficult to afford an abortion. Patients facing long travel distances typically must arrange and pay for transportation and arrange to take time off work, and also arrange and pay for childcare while they travel to their abortion appointments.
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65. Of course, for many women who seek abortion, leaving the state for care is entirely
out of reach. Women seeking abortion are disproportionately poor: approximately 75 percent of
women having abortions in the United States in 2014 were poor or low-income (i.e., have incomes
of less than 199 percent of the federal poverty level).25 Similarly, many of Plaintiffs’ patients are
poor or low-income—indeed, the majority have incomes at or below 110 percent of the federal
poverty level. Poor and low-income patients routinely face barriers to accessing health care.
66. All of these obstacles are exacerbated by the COVID-19 crisis, as patients seeking
abortion care grapple with layoffs and other work disruptions, and the closure of schools and
childcare facilities.26 Unemployment claims are soaring; indeed, during the week ending on April
4, 2020, the number of unemployment claims in Tennessee rose to 116,141 initial claims – a 23,641
increase from the 92,500 initial claims filed the previous week.27 People who receive health
insurance through their employers are being laid off and left without coverage for themselves and
their families.28 And limitations placed on travel as a result of COVID-19 further exacerbate the
obstacles faced by patients.
25 Jenna Jerman, Rachel K. Jones, & Tsuyoshi Onda, Characteristics of Abortion Patients in 2014 and Changes Since 2008 at 11, Guttmacher Inst. (May 2016), https://www.guttmacher.org/sites/default/files/report_pdf/characteristics-us-abortion-patients2014.pdf. 26 See, e.g., Dylan Aycock, Tennessee residents have filed nearly 250,000 unemployment claims in past three weeks, Apr. 9, 2020, https://communityimpact.com/nashville/southwestnashville/economy/2020/04/09/tennessee-residents-have-filed-nearly-250000-unemploymentclaims-in-past-three-weeks/; Gov. Lee asks schools to remain closed through late April, News Channel 11, Mar. 24, 2020, https://www.wjhl.com/local-coronavirus-coverage/gov-lee-asksschools-to-remain-closed-through-late-april/; Carley Gordon, Parents still paying for daycare centers that are closed during coronavirus pandemic, Mar. 24, 2020, https://www.wsmv.com/news/parents-still-paying-for-daycare-centers-that-are-closed-duringcoronavirus-pandemic/article_39b22308-6e34-11ea-af7e-f7b64a4786cf.html. 27 U.S. Dep’t of Labor, Unemployment Insurance Weekly Claims Report (Apr. 9, 2020), https://www.dol.gov/ui/data.pdf. 28 Jason Lemon, Over 7 Million Americans to Lose Health Insurance During Coronavirus Pandemic, 1.5 Million Have Already Lost Coverage, New Study Predicts, Apr. 8, 2020,
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67. Although abortion is extremely safe throughout pregnancy, the risk, complexity, duration, and thus cost increase as pregnancy progresses. As a result, patients who are delayed in obtaining care as they save money for the procedure may find that even more money is needed for the delayed procedure, necessitating even more delay.
68. Timing is critical for patients having a procedural abortion, because there are certain points in pregnancy at which abortion may become more complex or fewer options may be available. In addition, the later in pregnancy a patient accesses a procedural abortion the more likely she is to experience a rare complication like hemorrhage, uterine perforation, cervical laceration or retained products of conception. Patients who are pushed beyond the window for medication abortion must either obtain either an aspiration procedure, a one-day D&E procedure involving more in-clinic time and more staff, or eventually a two-day D&E procedure, requiring increased PPE and contacts with the healthcare system, as compared to a one-day procedure.
69. Aside from the increased risks of the procedure, it is also distressing for patients to be forced to delay their abortion, and remain pregnant, once they are certain of their decision.
70. The Executive Order’s ban on procedural abortion will harm patients’ physical, emotional, and financial wellbeing and the wellbeing of their families. Patients will be delayed, and in some cases, unable to access abortion at all in Tennessee.
71. Forcing a woman to continue a pregnancy against her will, particularly during a global pandemic, can pose risks to her physical, mental, and emotional health. Even an uncomplicated pregnancy can put patients at increased medical risk, including the increased risks associated with caesarean or vaginal delivery, which entails risks of hemorrhage, infections like chorioamnionitis or endometriosis, and increased risks of preeclampsia or eclampsia. Moreover,
https://www.newsweek.com/over-7-million-americans-lose-health-insurance-duringcoronavirus-pandemic-15-million-have-1496925.
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pregnancy, childbirth, and an additional child may exacerbate an already difficult situation for those who have suffered trauma, such as sexual assault or domestic violence, and the pandemic has only exacerbated these risks—domestic violence hotlines have reported a substantial increase in calls since the COVID-19 crisis began.29 Research has found that women denied an abortion were four times more likely than women who received an abortion to experience economic hardship and insecurity lasting for years, with serious consequences for those women and their families.30 As a result of the COVID-19 pandemic, unemployment rates are soaring, meaning that families are losing not only their income but in many cases their employer-provided health insurance; the medical and economic hardships of pregnancy and childrearing, for many families, are thus more acute now than ever. V. Impact of Executive Order on Patients and the Medical System
72. Delaying abortion also harms public health and is counterproductive to the purposes of the Executive Order. The Executive Order’s stated goals are to “preserv[e] personal protective equipment for emergency and essential needs” and “prevent[] community spread of COVID-19 through non-essential patient-provider interactions.” Executive Order at 2. But pregnant people who are delayed in obtaining an abortion, or unable to obtain abortion care at all, will have far more contact with the healthcare system than if they were able to obtain an abortion.
73. At a minimum, this includes prenatal visits—at least once a month, and more for patients with high-risk pregnancies or preexisting conditions—as well as pregnancy-related screenings and tests, including repeat ultrasounds and blood tests.31 Unlike abortion, for which
29 See, e.g., Kasey Freeman, YWCA sees increase in domestic violence calls amid COVID-19 outbreak, Apr. 1, 2020, https://www.newschannel5.com/news/ywca-sees-increase-in-domesticviolence-calls-amid-covid-19-outbreak. 30 Diana G. Foster et al., Socioeconomic Outcomes of Women Who Receive and Women Who Are Denied Wanted Abortions in the United States, 108 Am. J. Public Health 407 (2018). 31 See also Rupsa C. Boelig et al., Expert Review: MFM Guidance for COVID-19, Am. J.
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complications are extremely rare and almost never require hospital transfers, one in five pregnant women will visit a hospital during pregnancy prior to delivery, and every time they do they will be interacting with more people and increasing the hospital’s use of PPE. Women who develop pregnancy-related diabetes or other pregnancy-related health conditions will also require even greater interactions with the health system. Moreover, 20 percent of pregnancies end in miscarriage, for which patients often seek care at a hospital emergency room.
74. For those who are blocked from obtaining a desired abortion, pregnancy will end with childbirth. Labor and delivery, and in particular, a caesarean section procedure, which occurs commonly, require vastly more PPE, hospital resources, and patient-provider contact than procedural abortion. A hospital birth—attended by multiple medical care providers—could involve anywhere from seven to ten gowns, masks, and sterile gloves. For an uncomplicated pregnancy, the patient will remain in the hospital at least 24-48 hours, for a caesarean section even longer, and for a more complicated pregnancy, potentially even longer still. Again, this means that the patient will require the use of a hospital bed or room, and will require the time and attention of hospital staff, who will have to use PPE during interactions with the patient.
75. Moreover, the COVID-19 crisis has increased the likelihood that pregnant people will be sent to an emergency department. ACOG has advised that, “given the lack of data and experience with other coronaviruses such as SARS-CoV and MERS-CoV, diligence in evaluating and treating pregnant women is warranted.” Accordingly, ACOG recommends that pregnant patients reporting certain potential COVID-19 symptoms—including those common during pregnancy for unrelated reasons, such as difficulty breathing—should “immediately seek care in
Obstetrics & Gynecology MFM (Mar. 19, 2020) (recommending that, even during the COVID19 pandemic, pregnant people should have multiple in-person visits for routine ultrasounds and laboratory work throughout pregnancy).
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an emergency department or equivalent unit that treats pregnant women,” be isolated if possible, and “adhere to local infection control practices regarding personal protective equipment.”32 This, of course, will involve significantly more strained hospital resources and PPE than the provision of abortion care.
76. Some patients with the means and resources will seek abortion care in other states that have not banned it. Forcing patients seeking reproductive healthcare to travel outside of their communities does nothing to protect or advance their health and only imposes additional risks and burdens on their ability to obtain care. In fact, such travel would be wholly inconsistent with government guidelines and directives to reduce transmission of COVID-19 by practicing social distancing and avoiding travel and other contacts, as it will require patients to have contacts with many individuals to obtain childcare, transportation, food, and lodging necessary to make the trip. Forcing patients to travel out of state to obtain care, sometimes hundreds of miles away, would also result in their obtaining abortions at later gestational ages than if they had been able to obtain care in-state, resulting in increased risks, use of PPE, and interactions with the healthcare system.
77. Tennessee’s existing legal restrictions on abortion also impose burdens that undermine Defendants’ stated goal of preserving PPE. For example, the Delay Requirement requires patients to make at least two in-person appointments for an abortion, even though there is no benefit to the first visit, and most patients could obtain care just as safely in one visit. This directly undermines the Executive Order’s stated goal of “preventing community spread of COVID-19 through non-essential patient-provider interactions.” Executive Order at 2.
32 See Am. Coll. of Obstetricians & Gynecologists, Outpatient Assessment and Management for Pregnant Women With Suspected or Confirmed Novel Coronavirus (COVID-19) (Apr. 10, 2020), https://www.acog.org/-/media/project/acog/acogorg/files/pdfs/clinical-guidance/practiceadvisory/covid-19-algorithm.pdf?la=en&hash=2D9E7F62C97F8231561616FFDCA3B1A6.
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78. When patients cannot access services to terminate a pregnancy within the healthcare system, some will find ways to do so outside the healthcare system, not all of which may be safe. If attempts to self-induce give rise to additional health problems, some patients may be forced to seek emergent medical care, increasing their interactions with the outside world and further taxing the medical system as it works to respond to the COVID-19 crisis.
79. Further complicating matters, there are only two clinics in the entire state who provide abortion care past 15 weeks LMP, and they only provide care up to 19 days, 6 weeks LMP. Accordingly, even when the Executive Order is lifted (assuming it is not extended), there will be a severe backlog of patients who were prevented from obtaining a procedural abortion. In all likelihood, a rush of patients will all be trying to schedule abortions at the same time, all of whom have been delayed to a later point in pregnancy, and all of whom will need to be scheduled for both the counseling visit and the procedural visit before they reach the point in pregnancy when abortions are no longer available in Tennessee. This will create a crush of demand that clinics are unlikely to be able to meet. It will also result in patients at earlier stages in pregnancy being delayed so that patients who would otherwise be denied care entirely can be treated first. These backlogs, combined with limited provider capacity due to the pandemic and increased wait times imposed by the Delay Requirement, will cause serious and irreparable harm. Some patients will be delayed to the point at which they are forced to undergo a more complicated and costly D&E procedure, or a two-day D&E procedure, which requires greater use of PPE and places greater strain on the healthcare system. Others will lose the option of choosing an abortion altogether, despite the fact that forcing people to remain pregnant against their will does nothing to further Tennessee’s interest in combatting the COVID-19 pandemic.
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CLAIMS FOR RELIEF COUNT I
(Substantive Due Process) 80. Plaintiffs reallege and incorporate by reference the allegations contained above. 81. By banning procedural abortion after eleven weeks of pregnancy, and, in particular, by allowing no exception for patients who will be unable to obtain an abortion entirely; who will be forced to have a lengthier and more complex abortion procedure; and who will be forced to have a two-day rather than a one-day procedure; the Executive Order, as applied to procedural abortion, violates Plaintiff’s patients’ rights to privacy, liberty, and bodily integrity and autonomy guaranteed by the Fourteenth Amendment to the U.S. Constitution. 82. Unless enjoined, the Executive Order will subject Plaintiffs’ patients to irreparable harm for which no adequate remedy at law exists by preventing and/or delaying them from obtaining an abortion in Tennessee, thereby causing them to suffer significant constitutional, medical, emotional, and other harm.
REQUEST FOR RELIEF Plaintiffs respectfully request that this Court:
A. Immediately issue a temporary restraining order, followed by a preliminary injunction, and ultimately a permanent injunction, restraining Defendants, their officers, agents, servants, employees, and attorneys, and any persons in active concert or participation with them, from enforcing or requiring compliance with the Executive Order, as applied to procedural abortions. In particular, the Providers seek injunctive relief on behalf of those patients who are most gravely harmed by EO-25 because of the time-sensitive nature of abortion care, including: (1) patients who, in the good faith professional judgment of the provider, will likely lose their ability to obtain an abortion in Tennessee if their procedures are delayed until after April 30, 2020; (2) patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a
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lengthier and more complex abortion procedure, which is only available at two clinics in Nashville and Memphis, if their procedures are delayed until after April 30, 2020; or (3) patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a two-day procedure—which is only available at two clinics in Nashville and Memphis, and which requires at least three separate visits to the provider—if their procedures are delayed until April 30, 2020. In making such determinations, providers must be allowed take into account all of the factors bearing on an individual patient’s ability to timely access abortion care and medical risk, including the patient’s medical history, familial circumstances, and any logistical and financial obstacles faced by the patient;
B. Enter a judgment declaring that the Executive Order as applied to Plaintiffs’ provision of procedural abortion is enjoined;
C. Grant Plaintiffs attorney’s fees and costs pursuant to 42 U.S.C. § 1988; and/or D. Grant such other and further relief as this Court may deem just, proper, and equitable, including that, during the pendency of the Order, Defendants and their officers, agents, servants, employees, and attorneys, and any persons in active concert or participation with them be temporarily enjoined from enforcing the Delay Requirement’s in-person counseling requirement.
Respectfully submitted, /s/ Thomas H. Castelli Thomas H. Castelli (No. 24849) American Civil Liberties Union Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Tel: (615) 320-7142 tcastelli@aclu-tn.org Attorney for Plaintiffs Scott P. Tift David W. Garrison
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BARRETT JOHNSTON MARTIN & GARRISON, LLC Bank of America Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Tel: (615) 244-2202 Fax: (615) 252-3798 stift@barrettjohnson.com dgarrison@barrettjohnson.com
Thomas C. Jessee Jessee & Jessee P.O. Box 997 Johnson City, TN 37605 Tel: (423) 928-7175 jjlaw@jesseeandjessee.com
Michael J. Dell* Jason M. Moff* Irene Weintraub* Timur Tusiray* Catherine Hoge*
Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 Tel: 212-715-9129 Tel: 212-715-9113 mdell@kramerlevin.com jmoff@kramerlevin.com iweintraub@kramerlevin.com ttusiray@kramerlevin.com choge@kramerlevin.com
Attorneys for Plaintiffs Adams & Boyle, P.C., Memphis Center for Reproductive Health, and Planned Parenthood of Tennessee and North Mississippi
Autumn Katz* Genevieve Scott* Michelle Moriarty* Center for Reproductive Rights 199 Water Street, 22nd Floor New York, NY 10038 Tel: (917) 637-3600 Fax: (917) 637-3666 akatz@reprorights.org
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gscott@reprorights.org mmoriarty@reprorights.org Attorneys for Plaintiffs Adams & Boyle, P.C. and Memphis Center for Reproductive Health Maithreyi Ratakonda* Planned Parenthood Federation of America 123 William St., 9th Floor New York, NY 10038 Tel: (212) 261-4405 Fax: (212) 247-6811 mai.ratakonda@ppfa.org Attorney for Plaintiffs Planned Parenthood of Tennessee and North Mississippi and Dr. Kimberly Looney Julia Kaye** American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2633 Attorney for Plaintiff Knoxville Center for Reproductive Health *Admitted pro hac vice **Application for admission pro hac vice pending
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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Supplemental Complaint for Temporary and Injunctive Relief has been served on the following counsel of record through the Electronic Filing System on this 21st day of April, 2020: Alexander Stuart Rieger Steven Ashley Hart Sue A. Sheldon Lindsay Sisco Matt Cloutier Amber Seymour Kathryn Baker Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202-0207 (615) 741-2408 Fax: (615) 532-5683 alex.rieger@ag.tn.gov steve.hart@ag.tn.gov sue.sheldon@ag.tn.gov lindsay.sisco@ag.tn.gov matt.cloutier@ag.tn.gov amber.seymour@ag.tn.gov kathryn.baker@ag.tn.gov
/s/ Thomas H. Castelli Tom Castelli
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ADAMS & BOYLE, P.C., et al.,

Plaintiffs,

Civil Action No. 3:15-cv-00705

vs.

HON. BERNARD A. FRIEDMAN

HERBERT H. SLATERY, III, et al.,

Defendants. _____________________________/

OPINION AND ORDER DENYING DEFENDANTS’ MOTION FOR A STAY PENDING APPEAL

This matter is presently before the Court on defendants’ motion for a stay pending

appeal [docket entry 246]. Plaintiffs have filed a response in opposition, and defendants have

filed a reply. Pursuant to M.D. Tenn. LR 78.01, the Court shall decide this motion without a

hearing. For the reasons explained below, the Court shall deny defendants’ motion.

Plaintiffs are reproductive healthcare providers who, on their own behalf and on

behalf of their patients, assert a constitutional challenge to a Tennessee statute that requires

women seeking an abortion to receive certain information in person at least forty-eight hours

before undergoing the procedure. On April 8, 2020, Governor William Lee issued Tennessee

Executive Order 25 (“EO-25”), requiring that, between April 9 and April 30, healthcare

providers “postpone surgical and invasive procedures that are elective and non-urgent,” as

defined by the order. EO-25 ¶ 2. The stated purposes of EO-25 are to reduce the spread of

COVID-19 and to conserve personal protective equipment (“PPE”). On April 13, plaintiffs filed

a motion to file a supplemental complaint alleging that EO-25, as applied to procedural

abortions, violates plaintiffs’ patients’ substantive due process rights under the Fourteenth

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Amendment. Plaintiffs simultaneously filed a motion for a TRO and/or preliminary injunction to
enjoin enforcement of EO-25 as it applies to procedural abortions.
On April 17, the Court heard extensive oral argument from the parties during a
ninety-minute telephonic hearing, after which the Court issued an opinion and order granting
plaintiffs’ motion to file a supplemental complaint and granting plaintiffs’ motion for a TRO
and/or preliminary injunction “to the following extent: Defendants are hereby immediately
enjoined from enforcing EO-25 as applied to procedural abortions.” Op. & Order Granting Pls.’
Mot. for Prelim. Inj. at 12-13. Shortly thereafter, defendants filed a notice of appeal and the
instant motion to stay the injunction pending appeal.
A motion for a stay pending appeal is governed by Fed. R. Civ. P. 62(c). The
Sixth Circuit has stated:
In deciding whether to grant a stay of a preliminary injunction, “we consider (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.” Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2006) (internal quotation marks omitted). . . . The Defendants as movants for the stay have the burden of persuasion. See Nken v. Holder, 556 U.S. 418, 433-34, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).
Graveline v. Johnson, 747 F. App’x 408, 412 (6th Cir. 2018). “All four factors are not
prerequisites but are interconnected considerations that must be balanced together.” Coal. to
Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2006). “[B]ecause the
burden of meeting the standard is a heavy one, more commonly stay requests will be found not to
meet this standard and will be denied.” 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER &
MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2904 (3d ed. 2012) (footnotes
omitted).
2
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Regarding the first factor, defendants have not shown that they are likely to
prevail on the merits. Defendants argue that “[t]he broad relief afforded by this Court’s Order
cannot be squared with the Supreme Court’s decision in Jacobson v. Commonwealth of
Massachusetts, 197 U.S. 11 (1905)[,]” in which “the Supreme Court explained that the States
have wide-ranging authority to ‘enact quarantine laws and health laws of every description,’
even where those laws may curtail constitutional rights. See id. at 26, 31.” Defs.’ Mot. for Stay
Pending Appeal at 2.
In Jacobson, the Supreme Court rejected an individual’s constitutional challenge
to a state’s compulsory vaccination law enacted when smallpox was “prevalent and increasing.”
Jacobson, 197 U.S. at 28. The Court recognized the “police power” of states to enact
“reasonable regulations established directly by legislative enactment as will protect the public
health and the public safety.”1 Id. at 25. But the Court also recognized the possibility that
it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.
Id. at 28. Further,
[i]f there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.
1 The Court notes that the “police power” acknowledged by the Supreme Court in Jacobson is for the state’s enactment of “reasonable regulations” to protect public health and public safety. Jacobson, 197 U.S. at 25 (emphasis added). Defendants have not demonstrated the reasonableness of EO-25.
3
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Id. at 31 (emphasis added). The Court in Jacobson affirmed plaintiff’s criminal conviction because “the [vaccination] statute in question is a health law, enacted in a reasonable and proper exercise of the [state’s] police power.” Id. at 35. The Court found that the statute had a “real or substantial relation to the protection of the public health and the public safety,” id. at 31; and the Court further found that the statute did not “invade[] any right secured by the Federal Constitution.” Id. at 38.
Defendants fault the Court for not mentioning Jacobson in its opinion. However, EO-25 is easily distinguishable from the statute at issue in Jacobson, and the Court considered Jacobson and its limitations on judicial intervention without finding it necessary to reference this case by name. In its April 17 decision, the Court determined that EO-25, as applied to procedural abortions, did not have a “real or substantial relation” to protecting public health or public safety. The Court noted plaintiffs’ evidence that enforcement of EO-25 would result in increased patient interaction and greater risk of infection and spreading of COVID-19. Op. & Order Granting Pls.’ Mot. for Prelim. Inj. at 11. The Court also noted that defendants had “presented no evidence that any appreciable amount of PPE would actually be preserved if EO25 is applied to procedural abortions” despite plaintiffs having “offered convincing evidence demonstrating the contrary.” Id. In addition, the Court found that EO-25 placed an undue burden on the right of women in Tennessee to choose to have a pre-viability abortion, a constitutional right recognized by the Supreme Court since Roe v. Wade, 410 U.S. 113 (1973). Id. at 8-9. Because the Court determined, based on the record before it at the preliminary injunction stage, that EO-25 did not have a “real or substantial relation” to protecting public health or public safety and was invading plaintiffs’ fundamental rights, it was “the duty of the [C]ourt[] to so adjudge, and thereby give effect to the Constitution.” Jacobson, 197 U.S. at 31.
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Therefore, defendants have not shown that the Court’s decision to issue a preliminary injunction in this matter is in any way inconsistent with Jacobson. And for the reasons set forth in the Court’s April 17 opinion, the Court remains firmly convinced that defendants are highly unlikely to prevail on the merits.
Regarding the second factor, defendants argue that they and the citizens of Tennessee will be irreparably harmed without a stay because “[i]t is well-settled that the wrongful enjoining of a valid state action always qualifies as irreparable harm.” Defs.’ Mot. for Stay Pending Appeal at 3. Defendants characterize EO-25 as a “valid state action” because it “is a good-faith effort to slow the spread of COVID-19 and is well within the Governor’s power to issue in a time of crisis.” Id. While the Governor certainly has the power – indeed, the obligation – to take reasonable measures to safeguard public health, EO-25 is not reasonable, and not a “valid state action,” as it relates to procedural abortions because it does not appreciably advance either of its stated goals, i.e., to slow the spread of COVID-19 or conserve PPE. There is no irreparable harm in enjoining the enforcement of an ineffectual executive order that accomplishes nothing except to interfere, on a broad scale, with the exercise of a recognized constitutional right.
Defendants argue that the last two factors – the balance of harms and the public interest – favor granting a stay because the Court’s April 17 order “undermines the State’s ability to effectively prepare for the incoming wave of [COVID-19] infections and ensures that the virus may continue to spread through the State’s healthcare system and beyond.” Id. at 4. Defendants state that “[i]n recent years, an average of nearly 50 patients per week obtained surgical abortions in Tennessee after 11 weeks gestation.” Id. (citing Tenn. Dep’t of Health, Selected Induced Termination of Pregnancy (ITOP) Data, According to Age and Race of Woman, Tennessee and
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Department

of

Health

Regions,

Resident

Data,

2018,

https://www.tn.gov/content/dam/tn/health/documents/vital-statistics/itop/ITOP2018.pdf). They

argue that the Court’s order “all but guarantees that similar numbers of patients, if not more, will

require medical professionals to expend valuable personal protective equipment and will flout

the State’s generally applicable social distancing guidelines, thus putting themselves and

everyone they come into contact with at greater risk of contracting COVID-19.” Id. But this

unsupported assertion, which defendants also made in opposing plaintiffs’ request for emergency

injunctive relief, disregards the unrebutted evidence showing that plaintiffs had already adopted

significant procedures for social distancing and preserving PPE prior to EO-25 taking effect.2

2 Plaintiffs previously indicated that
[e]ven before EO-25 was issued, they proactively adopted recommendations and guidelines from the Centers for Disease Control and Prevention (“CDC”), National Abortion Federation to reduce the spread of COVID-19, while continuing to comply with all relevant Tennessee laws and regulations governing abortion. Terrell Decl. ¶ 19; Looney Decl. ¶ 25; Rovetti Decl. ¶ 8.
For example, the Providers have postponed or cancelled non-essential procedures such [as] wellness visits. Terrell Decl. ¶ 26; Looney Decl. ¶ 26; Rovetti Decl. ¶ 8. They screen patients for symptoms over the telephone prior to their appointments and when they arrive at the clinics prior to entering the facilities to ensure that no one experiencing symptoms of COVID-19 enters the clinic. Terrell Decl. ¶¶ 20-21; Looney Decl. ¶ 27; Rovetti Decl. ¶¶ 9, 11. Based on the particularized needs of each facility, the Providers maintain social distancing by, for example, staggering appointments, asking patients to wait outside the clinic until their appointment, prohibiting patients from bringing a support person to their appointment, keeping patients in separate rooms whenever possible, and spacing patients a minimum of six feet apart during their time in the clinic. Terrell Decl. ¶ 22; Looney Decl. ¶ 28; Rovetti Decl. ¶¶ 9, 11-12. At any given time, the Providers have fewer people inside the clinic than they normally had before the COVID-19 pandemic. Terrell Decl. ¶ 23; Looney Decl. ¶ 26; Rovetti Decl. ¶¶ 8-9. Where medically appropriate, several of the Providers have reduced the number of staff in the clinic and restricted the number of staff in the room during procedural abortion to
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Pls.’ Br. in Support of Mot. for TRO and/or Prelim. Inj. at 12-13. The Court commends
defendants’ efforts to prepare for an expected increase in COVID-19 infections, but the entirely
speculative constraints the preliminary injunction allegedly imposes on these efforts do not
outweigh the demonstrated irreparable harm plaintiffs will suffer if a stay is issued, particularly
in light of the many precautionary steps plaintiffs have taken to limit the spread of the virus and
to conserve PPE. See Op. & Order Granting Pls.’ Mot. for Prelim. Inj. at 9-11. The Court has
already determined that the balancing of harms and the public interest favor issuing a preliminary
injunction, id. at 10-12, and defendants’ arguments do not alter the Court’s conclusion.
For these reasons, the Court finds that defendants have not shown that they are
entitled to a stay pending the appeal of the Court’s April 17 opinion and order granting plaintiffs’
only those who are medically essential or required by law. Terrell Decl. ¶¶ 23-24; Rovetti Decl. ¶ 24. Additionally, the Providers continuously disinfect chairs, doorknobs, pens, clipboards, and other frequently touched surfaces throughout the day. Terrell Decl. ¶ 27; Looney Decl. ¶ 28; Rovetti Decl. ¶¶ 8, 12.
Abortion care does not require the use of any hospital resources that may be needed for COVID-19 response such as hospital beds, ICU beds, or ventilators. Looney Decl. ¶ 30. Indeed, procedural abortion takes place in an outpatient setting. Id. Procedural abortion involves only minimal use of PPE: typically gloves, a surgical mask or reusable plastic face shield, and either reusable scrubs or a disposable gown or smock. Id. ¶ 29; Terrell Decl. ¶¶ 30; Rovetti Decl. ¶ 24. None of the Providers stock the N95 respirators that are in short supply during this COVID-19 pandemic. Looney Decl. ¶ 30; Terrell Decl. ¶ 29; Rovetti Decl. ¶ 24. Procedural abortion after approximately 18 weeks LMP [last menstrual period] requires more PPE than a procedural abortion at an earlier point in pregnancy, because it is typically a two-day procedure at that stage. Looney Decl. ¶ 50. Nevertheless, as explained infra, abortion care requires vastly less PPE than continuing a pregnancy. The provision of abortion care in Tennessee does not deplete hospital resources and the Providers have made every effort to conserve PPE and minimize the spread of COVID-19 while still providing this time-sensitive, essential healthcare to patients. Id. ¶¶ 24, 30; Terrell Decl. ¶ 33; Rovetti Decl. ¶ 24.
Pls.’ Br. in Support of Mot. for TRO and/or Prelim. Inj. at 12-13.
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motion for a preliminary injunction. Accordingly, IT IS ORDERED that defendants’ motion for a stay pending appeal is denied.

Dated: April 21, 2020 Detroit, Michigan

s/Bernard A. Friedman BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE SITTING BY SPECIAL DESIGNATION

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