Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 1 of 17
.•
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPI
NORTHERN DIVISION

PLANNED PARENTHOOD SOUTHEAST, INC.; PLANNED PARENTHOOD GREATER MEMPHIS REGION, INC.; and JANE DOE,
Plaintiffs,
v.

JUN 15 2016
ARTHUR ,JOHN 0.'11
No.3: I~ ·tv-45 ~ PP~-~F~BYK::;:B=:::a::~o~erUTY!r.:J

DAVID 1. DZIELAK, Executive Director, Mississippi Division of Medicaid, in his official capacity,

Defendant.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs Planned Parenthood Southeast, Inc. ("PPSE"), Planned Parenthood Greater Memphis Region, Inc. ("PPGMR"), and Jane Doe, by and through their attorneys, bring this Complaint against the above-named Defendant, his employees, agents, delegates, and successors in office, and in support thereof state the following:
INTRODUCTORY STATEMENT 1. This civil action is brought pursuant to 42 U.S.C. § 1983 and the United States Constitution to vindicate rights secured by the federal Medicaid statutes as well as the Equal Protection Clause and Due Process Clause of the United States Constitution. 2. Plaintiffs PPSE and PPGMR (the "Provider Plaintiffs") provide critically needed family planning and preventive health services to women and men in underserved areas of

Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 2 of 17
Mississippi through the Mississippi Medicaid program. Mississippi Medicaid does not pay for abortions except in extremely narrow circumstances.
3. As is required by federal law, Medicaid enrollees, such as Plaintiff Jane Doe, may seek family planning services from the participating provider of their choice and have those services covered by Medicaid.
4. On May 10, 2016, Mississippi Governor Phil Bryant signed into law Mississippi Senate Bill2238, 1st Regular Session (2016), to be codified at Miss. Code. Ann.§ 43-13-117 (the "Act" or "SB 2238") (attached hereto as Exhibit A). The Act disqualifies from eligibility to participate in Mississippi's Medicaid program any entity that performs abortions, except in extremely narrowly defined circumstances.
5. The Act violates 42 U.S.C. § l396a(a)(23), which is known as the Medicaid free choice of provider requirement, because it will prevent the Provider Plaintiffs' Mississippi Medicaid patients, including Jane Doe, from receiving services through the Medicaid program from the qualified, willing provider of their choice. The Act also violates the Equal Protection rights of the Provider Plaintiffs and their patients, including Jane Doe, because it singles them out for disfavorable treatment without a constitutionally sufficient justification. The Act further violates the Due Process rights of the Provider Plaintiffs and their patients because it imposes an unconstitutional condition on the Provider Plaintiffs' eligibility to participate in Medicaid by disqualifying them from Medicaid based on their exercise of constitutionally protected activity.
6. As of July 1, 2016, the Act will disqualify the Provider Plaintiffs from providing critical services to Mississippi men and women who depend on them for that care. Without timely relief from this Court, the Act will cause irreparable harm to the Provider Plaintiffs'
2

Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 3 of 17

Medicaid patients, including Jane Doe, who will lose their provider of choice and will find their

access to critical health services interrupted. JURISDICTION AND VENUE

7. Subject-matter jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 &

1343. 8.

Plaintiffs' claims for declaratory and injunctive relief are authorized by 28 U.S.C.

§§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, and by the

general legal and equitable powers of this Court. 9. Venue in this judicial district is proper under 28 U.S.C. § 1391.

THE PARTIES

A. Plaintiffs 10. Plaintiff PPSE is a not-for-profit corporation organized under the laws of Georgia.

PPSE provides reproductive health care at a health center in Hattiesburg, Mississippi, as well as

two health centers in Alabama and five in Georgia. PPSE participates in the Mississippi

Medicaid program, providing medical services to low-income enrollees. The family planning

and other preventive health services provided by PPSE at its Hattiesburg health center include physical exams, contraception and contraceptive counseling, screening for breast cancer,

screening for cervical cancer, testing and treatment for certain sexually transmitted infections ("STis"), and pregnancy testing and counseling. PPSE does not provide abortions in Mississippi

but does in Alabama and Georgia. PPSE brings this action on behalf of itself and its patients.

11. PlaintiffPPGMR is a not-for-profit corporation organized under the laws of

Tennessee. PPGMR provides reproductive health care at a health center in Memphis, Tennessee,

and many of the patients it serves reside in Mississippi counties that lie within the Memphis

3

Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 4 of 17
metropolitan area. PPGMR recently began to participate in the Mississippi Medicaid program, providing medical services to low-income enrollees. The family planning and other preventive health services provided by PPGMR at its Memphis health center include physical exams, contraception and contraceptive counseling, screening for breast cancer, screening for cervical cancer, testing and treatment for certain STis, and pregnancy testing and counseling. PPGMR also provides abortions. PPGMR brings this action on behalf of itself and its patients.
12. Plaintiff Jane Doe is a Mississippi resident and Medicaid patient who obtains reproductive health care from PPGMR and desires to continue to do so. B. Defendant
13. Defendant David J. Dzielak is the Executive Director of the Mississippi Division of Medicaid ("MDM"), the agency that administers the state Medicaid program which, in the absence of the Act, would disburse the funds at issue to PPSE and PPGMR. Defendant Dzie1ak is sued in his official capacity.
THE ACT 14. The Act provides that the Division of Medicaid "shall not authorize payment of part or all of the costs of care and services rendered by an entity that performs nontherapeutic abortions, maintains or operates a facility where nontherapeutic abortions are performed, or is affiliated with such an entity." SB 2338 § 1. The Act goes on to define "nontherapeutic abortions" as "abortions that are not qualified for federal matching funds under the Medicaid program, 42 USC Section 1396 et seq." Id. Such abortions are those limited to life endangerment, rape and incest. Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, Div. H, tit. V, §§ 506-507, 129 Stat. 2242, 2649.
4

Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 5 of 17
THE MEDICAID PROGRAM A. The Medicaid Statute
15. The Medicaid program, established under Title XIX of the Social Security Act of 1935, 42 U.S.C. § 1396 et seq., pays for medical care for eligible needy people. A state may elect whether or not to participate; if it chooses to do so, it must comply with the requirements imposed by the Medicaid statute and by the Secretary of the U.S. Department of Health and Human Services ("HHS") in her administration of Medicaid. See generally 42 U.S.C. § 1396a(a)(1}-(83).
16. To receive federal funding, a participating state must develop a "plan for medical assistance" and submit it to the Secretary ofHHS for approval. 42 U.S.C. § 1396a(a).
17. Among other requirements, the State plan must provide that: "[A]ny individual eligible for medical assistance ... may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required ... who undertakes to provide him such services." 42 U.S.C. § 1396a(a)(23)(A).
18. Congress has singled out family planning services for special additional protections to ensure freedom of choice, specifically providing that, with respect to these services and with certain limited exceptions not applicable here, "enrollment of an individual eligible for medical assistance in a primary care case-management system ... , a medicaid managed care organization, or a similar entity shall not restrict the choice of the qualified person from whom the individual may receive services ...." 42 U.S.C. § 1396a(a)(23)(B); 42 C.F.R. § 431.51(b)(2) (implementing regulations requiring the same).
5

Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 6 of 17
19. The federal government reimburses the state of Mississippi 90% of expenditures attributable to offering, arranging, and furnishing family planning services and supplies in Medicaid. 42 U.S.C. § 1396b(a)(5). B. Implementation of the Medicaid Act
20. For decades, the Centers for Medicare & Medicaid Services ("CMS"), the agency within HHS that administers Medicaid (and its predecessor organization), has repeatedly interpreted the "qualified" language in Section 1396a(a)(23) to prohibit states from denying access to a provider for reasons unrelated to the ability of that provider to perform Medicaidcovered services or to properly bill for those services, including reasons such as the scope of the medical services that the provider offers.
21. CMS has long explained that "[t]he purpose of the free choice provision is to allow [Medicaid] recipients the same opportunities to choose among available providers of covered health care and services as are normally offered to the general population." Ctrs. for Medicare & Medicaid Servs., CMS Manuals Publication #45, State Medicaid Manual § 2100.
22. Consistent with this, CMS has issued guidance making clear that States are not [] permitted to exclude providers from the program solely on the basis of the range of medical services they provide....Medicaid programs may not exclude qualified health care providers ... from providing services under the program because they separately provide abortion services (not funded by Medicaid dollars, consistent with the federal prohibition) as part of their scope of practice. Cindy Mann, Dir., CMS, CMCS Informational Bulletin: Update on Medicaid/CHIP, June 1,
2011, https ://www.medicaid.govIFederal-Policy-Guidance/downloads/6-1-11-Info-Bulletin.pdf.
23. CMS recently reiterated this guidance on April 19, 2016 via a letter to all State Medicaid Directors, which stated:
6

Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 7 of 17
The "free choice of provider" provision is specific with respect to the free choice of family planning providers. . . . [S]tates may not deny qualification to family planning providers, or take other action against qualified family planning providers, that affects beneficiary access to those providers-whether individual providers, physician groups, outpatient clinics or hospitals-solely because they separately provide family planning services or the full range of legally permissible gynecological and obstetric care, including abortion services (not funded by federal Medicaid dollars, consistent with the federal prohibition), as part of their scope of practice. Letter from Vikki Wachino, Dir., CMS, to State Medicaid Dirs. 2 (Apr. 19, 2016), https://www.medicaid.gov/federal-po!icy-guidance/downloads/SMD 16005.pdf. 24. Accordingly, CMS has a long history of rejecting state plans that seek to limit the type of provider that can provide particular services. For example, in 2011 CMS rejected an Indiana plan that barred state agencies from contracting with or making grants to any entities that perform abortion because it violated the Medicaid freedom of choice provision. Letter from Donald M. Berwick, Adm'r., CMS, to Patricia Casanova, Dir., Ind. Office of Medicaid Policy and Planning (June 1, 2011), http://www.politico.com/static/PPM169_110601_indiana_ letter.html. See also 53 Fed. Reg. 8699-03 (Mar. 16, 1988) (noting rejection of a state plan that would limit providers to "private nonprofit" organizations); 67 Fed. Reg. 79121 (Dec. 27, 2002) (noting disapproval of a state plan amendment that would have limited "beneficiary choice ... by imposing standards that are not reasonably related to the qualifications of providers"); Letter from Marilyn Tavenner, Adm'r, CMS, to Beverly Mackereth, Sec'y, Pa. Dep't of Pub. Welfare (Aug. 28, 2014), http://www.medicaid.gov/Medicaid-CHIP-Program-Information/ByTopics/Waivers/1115/ downloads/pa/pa-healthy-ca.pdf (denying request from Pennsylvania to waive§ 1396a(a)(23) in demonstration projects under Social Security Act,§ 1115: "No waiver of freedom of choice is authorized for family planning providers."); Letter from Manning Pellanda, Dir., CMS Div. of State Demonstrations and Waivers, to Julie Lovelady, Interim
7

Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 8 of 17
Medicaid Dir., Iowa Dep't of Human Servs. (Feb. 2, 2015), http://www.medicaid.gov/MedicaidCHIP-Program-Information/By-Topics/Waivers/1115/downloads/ia/wellness-plan/ia-wellnessplan-current-appvl-020220 15 .pdf (denying similar request from Iowa: "No waiver of freedom of choice is authorized for family planning providers.").
25. Furthermore, when two states, Indiana and Arizona, passed statutes virtually identical to the Act at issue in this case, those statutes were found to violate the Medicaid free choice of provider requirement and were struck down. Planned Parenthood ofInd., Inc. v. Comm 'r ofInd. State Dep 't ofHealth, 699 F.3d 962 (7th Cir. 2012), cert. denied, 133 S. Ct. 2736 (2013); Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960 (9th Cir. 2013), cert. denied, 134 S. Ct. 1283 (2014).
MISSISSIPPI'S HISTORY OF ANIMUS TOWARD ABORTION 26. Mississippi has among the most restrictive abortion laws in the country. As a result, the number of abortion providers in Mississippi has steadily declined, from 14 providers in 1981 to just one remaining today. Kate Sheppard, Inside Mississippi's Last Abortion Clinic, Mother Jones (Jan. 22, 20 13), http://www.motherjones.com/politics/20 13/0 1/inside-mississippislast-abortion-clinic. Governor Bryant and other anti-abortion politicians in Mississippi have consistently worked to restrict access to abortion and, ultimately, to shut down that last provider and eliminate abortion access in the state entirely. 27. Current Mississippi laws already severely restrict access to abortion. The state imposes a 24-hour delay on women seeking abortion following receipt of state-mandated information. Miss. Code. Ann.§ 41-41-33. Women must undergo an ultrasound and must be offered the opportunity to view the ultrasound and hear the fetal heartbeat prior to obtaining an abortion. Miss. Code. Ann. § 41-41-34. It is illegal to perform an abortion after 20 weeks
8

Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 9 of 17
gestation unless the woman's life is in danger or she is at risk of severe health impairment or if there is a severe fetal anomaly. Miss. Code. Ann. § 41-41-137. Minors require the written consent of both their parents in order to obtain an abortion. Miss. Code. Ann.§ 41-41-53. Abortion is covered in insurance policies for public employees only in cases of life endangerment, rape or incest or fetal abnormality. Miss. Code. Ann. § 41-41-91. Insurance provided in any exchange established pursuant to the Affordable Care Act cannot cover abortions except in cases of life-endangerment, rape or incest. Miss. Code. Ann.§ 41-41-99.
28. In 2012, Mississippi passed a law requiring physicians who provide abortion and are associated with an abortion facility to have admitting privileges at a local hospital. Miss. Code. Ann. § 41-75-1. Politicians were clear that the purpose of the bill was to "close the only abortion clinic in Mississippi." Joe Sutton and Tom Watkins, Mississippi Legislature Tightens Restrictions on Abortion Providers, CNN Politics (Apr. 4 2012), http://www.cnn.com/2012/04/04/politics/mississippi-abortion. Governor Bryant signed the bill and stated, "I will continue to work to make Mississippi abortion-free." Mississippi On Way to Becoming 'Abortion-Free' State?, NBC News (Apr. 5, 2012), http://usnews.nbcnews.com/_news/20 12/04/05/11 039503-mississippi-on-way-to-becomingabortion-free-state. The law has been enjoined. Jackson Women's Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014),petitionfor cert.filed, No. 14-997.
29. During the 2016 legislative session, in addition to the Act, Mississippi banned the most common method of second trimester abortions in the United States. Mississippi House Bill 519, attached hereto as Ex. B. Upon signing the bill, Governor Bryant stated, "We're making Mississippi the safest place in America for an unborn child." Jeff Amy, Bryant signs bill banning 2nd trimester abortion method, Clarion Ledger (Apr. 15, 2016),
9

Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 10 of 17
http://www.clarionledger.com/story/news/ politics/20 16/04/15/bryant-signs-bill-banning-2ndtrimester-abortion-method/83092298/.
30. The Act is yet another attack on abortion and abortion providers. State Senator Joey Fillingane, who authored the Act, stated, "The idea that we would take state tax dollars, which these are, and provide to an entity like Planned Parenthood, which is the number one abortion provider in the country, is just mind blowing... They provide family planning services, which is a nice, tidy way of saying ... if you don't want to keep this baby, you should go to an abortion clinic." Amanda LaBrot, Mississippi Senate Votes to Stop Funding Planned Parenthood, MS News Now (Mar. 3, 2016), http://www.msnewsnow.com/story/31382112/ mississippi-senate-votes-to-stop-funding-planned-parenthood. Governor Bryant similarly issued a statement saying "Happy to sign Senate Bill 2238. Taxpayers dollars should not fund abortions." Phil Bryant (@PhilBryantMS), Twitter (May 10, 2016), https://twitter.com/ PhilBryantMS/status/730 151336709390337.
THE PROVIDER PLAINTIFFS' PARTICIPATION IN MISSISSIPPI MEDICAID AND THE IMPACT OF THE ACT
31. PPSE has been an enrolled provider in the Mississippi Medicaid program since 2013. PPSE has recently been working to expand services, including services for Mississippi Medicaid patients, at its Hattiesburg health center in order to increase access to reproductive healthcare for patients in the area.
32. The Mississippi Division of Medicaid approved PPGMR as an enrolled Mississippi Medicaid provider in 2016. Prior to becoming an enrolled provider, PPGMR received 1-2 phone calls per week from Mississippi Medicaid patients inquiring as to whether PPGMR accepted Mississippi Medicaid.
10

Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 11 of 17
33. Only the neediest individuals in Mississippi are eligible to receive Medicaid coverage. In order to qualify for Mississippi Medicaid, among other requirements, an adult must be low-income and pregnant, disabled, or the parent/caretaker of a child. MOM, Who Qualifies for Coverage?, https://medicaid.ms.gov/medicaid-coverage/who-qualifies-for-coverage/. For example, in order for an adult to qualify for Mississippi Medicaid as the parent or caregiver of a child, the monthly income of a family of four cannot exceed $462. MOM, Income Limits for Medicaid and CHIP Programs, https://medicaid.ms.gov/medicaid-coverage/who-qualifies-forcoverage/income-limits-for-medicaid-and-chip-programs/. Mississippi also has a Family Planning waiver program which expands Medicaid eligibility for family planning services only for men and women of reproductive age. In order to be eligible for the waiver program, a beneficiary must have income at or below I94% of the federal poverty level. !d.
34. The need for publicly supported family planning services is great in Mississippi. In 20IO, 62% of pregnancies in Mississippi were unintended, well above the national rate of 45%. Guttmacher Inst., State Facts About Unintended Pregnancy: Mississippi (20I4), https://www.guttmacher.org/fact-sheet/state-facts-about-unintended-pregnancy-mississippi. Mississippi has the second highest rate of teen pregnancies in the country, at 70 pregnancies per I000 women aged I5-I9. Guttmacher Inst., U.S. Teenage Pregnancies, Births and Abortions, 2011: State Trends by Age, Race and Ethnicity (20I6), https://www.guttmacher.org/report/usteen-pregnancy-state-trends-20 II #full-article.
35. Over the past decade, the need for publicly funded contraceptive services has increased while resources have decreased. Ofthe estimated 335,980 Mississippi women who needed family planning services in 2013, a significant majority (67.4%) require publicly funded contraceptive services and supplies. Jennifer L. Frost eta!., Guttmacher Institute, Contraceptive
II

Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 12 of 17
Needs and Services, 2013 Update 18,20 (July 2015), https://www.guttmacher.org/sites/default/ files/pdfs/pubs/win/contraceptive-needs-20 13 .pdf. From 2010 to 2013, the number of women needing publicly funded contraceptive services and supplies increased 6%, id. at 22, while the number of women being served decreased 17%. !d. at 26. Indeed, from 2001 to 2013, the percentage of need met by publicly supported family planning centers has decreased from well over half to less than one-third. !d. at 28.
36. Mississippi also regularly ranks among the worst states for STis, with rates at or above the national average for every STI tracked by Centers for Disease Control ("CDC") surveillance. Among these are chlamydia and gonorrhea (second highest rates in the country), primary and secondary syphilis, and HIV. CDC, Sexually Transmitted Disease Surveillance 2014 81, 93, 107 (Nov. 2015), https://www.cdc.gov/std/stats14/surv-2014-print.pdf. The geographical area designated by the Mississippi State Department of Health as Public Health District 8, which includes the county where PPSE's Hattiesburg clinic is located, has the third highest rate of HIV in the state. Miss. State Dep't of Health, Reported Cases & Rates ofHIV Disease by Dist. and Cty.: Miss., 2010-2014, http://msdh.ms.gov/msdhsite/_static/resources/6001.pdf. Mississippi's capitol, Jackson, has the fourth highest rate of HIV of all metropolitan statistical areas in the entire country. CDC, Diagnoses ofHIV Infection in the United States & Dependent Areas, 2014, 26 HIV Surveillance Report (Nov. 2015), http://www.cdc.gov/hiv/pdf/library/reports/surveillance/cdc-hivsurveillance-report-us.pdf.
37. The Provider Plaintiffs seek to continue to work to meet the need for publicly supported family planning services by continuing as Medicaid providers. PPSE's Hattiesburg health center, for example, provides care in an HHS-designated Primary Care Health
12

Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 13 of 17
Professional Shortage Area-a geographic area in which primary care professionals are practically inaccessible. Each of the six counties that neighbor Forrest County, where the health center is located, is also designated as a medically underserved population area. PPGMR's Memphis health center is just across the border from DeSoto County, Mississippi, which is designated as a medically underserved population area. The three additional closest Mississippi counties to PPGMR's health center (Tunica, Tate, and Marshall Counties) have been designated as both medically underserved population areas and as primary care professional shortage areas. U.S. Dep't of Health and Human Servs., Find Shortage Areas, Health Resources and Services Administration, http:/Idatawarehouse.hrsa.gov/tooIs/analyzers/geo/ShortageArea.aspx (enter clinic or county seat address and click "submit").
38. Because of the Act, unless the Provider Plaintiffs were to cease providing abortions (except under the extremely narrow circumstances allowed under the Medicaid program), they will no longer be able to receive reimbursement for providing healthcare services to patients through the Mississippi Medicaid program. If the Provider Plaintiffs are unable to provide services through the Medicaid program, it would fundamentally defeat the core of their missions: to provide the health care and information people need to plan their families and their futures, with a special concern for patients living near the poverty line, and to promote their patients' health, safety and well-being. They will also lose the revenue from providing services to Medicaid patients. Although that revenue is currently small, both PPSE and PPGMR have been working to expand and hope to continue to do so.
39. In order to continue to fulfill their mission of ensuring broad access to reproductive healthcare in Mississippi, the Provider Plaintiffs will temporarily continue to serve Mississippi Medicaid patients while they litigate this case, but they will not be able to do so
13

Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 14 of 17
indefinitely. PPSE will temporarily utilize grant money to assist Medicaid patients to cover the costs of their services, but that grant money is finite. PPGMR will serve Mississippi Medicaid patients and refrain from submitting claims for reimbursement for those services, which they may do for a year under the terms of the program, unless and until they prevail in this lawsuit, taking on the financial risk that they may be unable to seek reimbursement. However, if Plaintiffs do not timely receive relief from this Court, PPSE and PPGMR will be forced to either tum away Mississippi Medicaid patients or require them to self-pay for their care.
40. Therefore, if the Act is upheld, it will cause Plaintiffs' Mississippi Medicaid patients, including Jane Doe, to be denied access to the provider of their choice. Patients insured through Medicaid choose to receive their reproductive health care from Planned Parenthood based on a number of factors that are generally not available at other providers. With their evidence-based practices and up-to-date technology, Planned Parenthood health centers are known as providers of high-quality medical care. Many patients also tum to these providers for their reproductive health care because they are concerned about their privacy and fear being judged by other providers.
41. In addition, many low-income patients have unique scheduling constraints because they are juggling inflexible work schedules, childcare obligations, transportation challenges, and lack of childcare resources. To ensure that these patients have access to family planning services, PPSE and PPGMR offer walk-in appointments, and offer same day birth control shots, birth control implants, and intrauterine devices (which are the most effective methods of contraception), so that patients only need to make one trip to a health center to obtain their contraceptive method of choice. PPGMR also offers extended hours and Saturday hours.
14

Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 15 of 17
PPSE and PPGMR also have either Spanish-speaking staff or translator services available to non-English speaking patients at all times.
42. Women and men who are unable to obtain family planning care, or encounter delays in obtaining it, can face devastating consequences, including undetected cancers and diseases. Delays in obtaining contraception will result in unintended pregnancies, many of which may end in abortion.
43. Plaintiffs have no adequate remedy at law. CLAIMS FOR RELIEF
CLAIM I-MEDICAID ACT (TITLE XIX OF SOCIAL SECURITY ACT) 44. Plaintiffs hereby incorporate Paragraphs 1 through 43 above. 45. The Act violates Section 1396a(a)(23) of Title 42 of the United States Code by denying the Provider Plaintiffs' Mississippi Medicaid patients, including Jane Doe, the right to choose any willing, qualified health care provider in the Medicaid program. CLAIM II-FOURTEENTH AMENDMENT EQUAL PROTECTION 46. Plaintiffs hereby incorporate Paragraphs 1 through 43 above. 47. The Act violates the equal protection rights of the Provider Plaintiffs and their patients, including Jane Doe, by singling them out for unfavorable treatment without adequate
justification. CLAIM III-FOURTEENTH AMENDMENT DUE PROCESS 48. Plaintiffs hereby incorporate Paragraphs 1 though 43 above. 49. The Act violates the due process rights of the Provider Plaintiffs and their patients
by imposing an unconstitutional condition on the Provider Plaintiffs' eligibility to participate in
15

Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 16 of 17

Medicaid based on their exercise, and their patients' exercise, of constitutionally protected

activity.

RELIEF REQUESTED

WHEREFORE, Plaintiffs request that this Court: 50. Issue a declaratory judgment that the Act violates the Medicaid Act and is

therefore void and of no effect; 51. Issue a declaratory judgment that the Act violates the Equal Protection Clause of

the Fourteenth Amendment and is therefore void and of no effect; 52. Issue a declaratory judgment that the Act violates the Due Process Clause of the

Fourteenth Amendment and is therefore void and of no effect; 53. Issue permanent injunctive relief, without bond, restraining the enforcement,

operation, and execution of the Act by enjoining Defendant, his agents, employees, appointees,

delegates, or successors from enforcing, threatening to enforce, or otherwise applying the

provisions of the Act; 54. Grant Plaintiffs' attorneys' fees, costs, and expenses pursuant to 42 U.S.C.

§ 1988; and, 55. Grant such further relief as this Court deems just and proper.

Respectfully submitted this 15th day of June, 2016.
ruff~
Sibyl C. Byrd, MSB # 100601 McDuff & Byrd 767 North Congress Street Jackson, MS 39202
16

Case 3:16-cv-00454-DPJ-FKB Document 1 Filed 06/15/16 Page 17 of 17
(601) 969-0802 (601) 969-0804 (telefacsimile) rbm@mcdufflaw .com scb@mcdufflaw.com Melissa Cohen,* NY Bar #4782918 Planned Parenthood Federation of America 123 William St., 9th Floor New York, NY 10038 (212) 261-4649 (202) 296-3480 (telefacsimile) melissa.cohen@ppfa.org Carrie Y. Flaxman,* DC Bar# 458681 Planned Parenthood Federation of America 1110 Vermont Ave., NW, Suite 300 Washington, DC 20005 (202) 973-4830 (202) 296-3480 (telefacsimile) carrie.flaxman@ppfa.org Counsel for Plaintiffs * Pro hac vice admission to be applied for
17

- ¥5~ (}pj-tf~B Case 3:16-cv-00454-DPJ-FKB Document 1-1 Filed 06/15/16 Page 1 of 2

• · ~JS 44 (Rev. 11/04)

CIVIL COVER SHEET 3". \l,-cv'-

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ofpleadings or other papers as required by law, except as provided by local rules ofcourt. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of mitiating
the civil docket sheet (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

Planned Parenthood Southeast, Inc.; Planned Parenthood of the Greater Memphis Region, Inc.; Jane Doe

Mississippi Division of Medicaid, David J. Dzielak, Executive Director, in his official capacity

(b) County of Residence of First Listed Plaintiff Forrest County

County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF C~§f'?!Jl)THE:RN DIIOTRICT Cr ~ISsMI PI

(IN U.S. PLAINTIFF CASES ONLY)

FILED

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE

LAND INVOLVED.

(c) Attorney's (Finn Name, Address, and Telephone Nurr er)

JUN 15 2016

1'\t!orneys (If Known)

See attachment.

BY

.._, ARTHUR JOHNSlON m::. .

II. BASIS OF JURISDICTION (Place an "X'' in One Box Only)

01 U.S. Govennnent Plaintiff

IJ3 Federal Question (U.S. Government Not a Party)

1111. CIT ZENSHIP OF PRINCIPAL PARTIES(Ptacean"X"inOneBoxforPtaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF D£F

Citizen of This State

01 Ot Incorporated or Principal Place

0 4 04

of Business In This State

02 U.S. Government Defendant

04 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

0 2 0 2 Incorporated and Principal Place of Business In Another State

0 5 05

Citizen or Subject of a Foreilm CountJv

0 3 0 3 Foreign Nation

0 6 06

IV NATURE OF SUIT (Place an "X'' in One Box Only)

CONTRACT

TORTS

FORFEITUREIPENALTY

BANKRUPTCY

OTHER STATUTES

0 110 Insurance

PERSONAL INJURY

PERSONAL INJURY 0 610 Agriculture

0 120Marine

0 310 Airplane

0 362 Personal Injury · 0 620 Other Food & Drug

0 130 Miller Act

0 31 S Airplane Product

Med. Malpractice

0 625 Drug Related Seizure

0 140 Negotiable Instrument

Liability

0 365 Personal Injury •

of Property 21 USC 881

0 I SO Recovery of Overpayment 0 320 Assault, Libel &

Product Liability

0 630 Liquor Laws

& Enforcement of Judgment

Slander

0 368 Asbestos Personal 0 640 R.R & Truck

0 151 Medicare Act

0 330 Federal Employers'

Injury Product

0 650 Airline Regs.

0 !52 Recovery ofDefanlted

Liability

Liability

0 660 Occupational

Student Loans

0 340 Marine

PERSONAL PROPERTY

Safety/Health

(Excl. Veterans)

0 345 Marine Product

0 370 Other Fraud

0 690 Other

0 !53 Recovery of Overpayment

Liability

0 371 Truth in Lending

LABOR

ofVeteran's Benefits

0 350 Motor Vehicle

0 380 Other Personal

0 710 Fair Labor Standards

0 160 Stockholders' Suits

0 355 Motor Vehicle

Property Damage

Act

0 190 Other Contract

Product Liability

0 385 Property Damage 0 720 Labor/Mgmt Relations

0 195 Contract Product Liability 0 360 Other Personal

Product Liability

0 730 Labor/Mgmt.Reporting

0 196 Franchise

Injury

& Disclosure Act

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS 0 740 Railway Labor Act

0 210 Land Conderrmation

0 441 Voting

0 S10 Motions to Vacate 0 790 Other Labor Litigation

0 220 Foreclosure

0 442 Employment

Sentence

0 791 Empl. Ret Inc.

0 230 Rent Lease & Ejectment 0 443 Housing/

Habeas Corpus:

Security Act

0 240 Torts to Land

Accommodations

0 530 General

0 245 Tort Product Liability

0 444 Welfare

0 535 Death Penalty

0 290 All Other Real Property 0 445 Amer. w/Disabilities · 0 540 Mandamus & Other

Employment

0 550 Civil Rights

0 446 Amer. w/Disabilities- 0 SSS Prison Condition

Other

1!!1 440 Other Civil Rights

0 422 Appeal 28 USC I 58 0 423 Withdrawal
28 usc 157
PROPERTY RIC.HTS 0 820 Copyrights 0 830 Patent 0 840 Trademark
s CIAL SECURITY
0 861 HIA (I 395ft) 0 862 Black Lung (923) 0 863 DIWC/DIWW (40S(g)) 0 864 SSID Title XVI 0 865 RSI (405(1!))
FEDERAL TAX SUITS 0 870 Taxes (U.S. Plaintiff
or Defendant) 0 871 IRS-Third Party
26 usc 7609

0 400 State Reapportionment 0 410 Antitrust 0 430 Banks and Banking 0 450 Commerce 0 460 Deportation 0 470 Racketeer Influenced and
Corrupt Organizations 0 480 Consumer Credit 0 490 Cable/Sat TV 0 810 Selective Service 0 850 Securities/Commodities/
Exchange 0 875 Customer Challenge
12 usc 3410
0 890 Other Statutory Actions 0 891 Agricultural Acts 0 892 Economic Stabilization Act 0 893 Environmental Matters
0 894 Energy Allocation Act 0 895 Freedom oflnfonnation
Act 0 900Appeal of Fee Determination
Under Equal Access to Justice
0 950 Constitutionality of State Statutes

V. ORIGIN
~ 1 Original
Proceed in

(Place an "X" in One Box Only)

0 2 Removed from

0 3 Remanded from

0 4 Reinstated or 0

5

Transferred from another district

O 6 Multidistrict

State Court

A ellate Court

Reo ened

s eci

Liti ation

. CJ~ ~~C li9~!~W~ ~~cteJ.~~E~Y:f~t~(f~(2!3JDo not cite jurisdictional statutes unless diversity):

Appeal to District

0

7

Judge from Magistrate

Jud ment

VI. CAUSE OF ACTION Brief description of cause:
Challenge to statute excluding Plaintiffs from Mississippi Medicaid program

VII. REQUESTED IN COMPLAINT:

CHECK IF THIS IS A CLASS ACTION UNDERF.RC.P. 23

DEMAND $

CHECK YES only if demanded in complaint: JURY DEMAND: 0 Yes 121 No

VIII. RELATED CASE(S)
IF ANY

(See instructions):

JUDGE

DOCKET NUMBER

-------- ------ ------- --------- RECEIPT#

AMOUNT

APPLYING IFP

----~-------

JUDGE

MAG. JUDGE

Case 3:16-cv-00454-DPJ-FKB Document 1-1 Filed 06/15/16 Page 2 of 2
ATTACHMENT TO CIVIL COVER SHEET
Plaintiffs' Attorneys
Robert B. McDuff, MSB # 2532 McDuff & Byrd 767 North Congress Street Jackson, MS 39202 (601) 969-0802 (601) 969-0804 (telefacsimile) rbm@mcdufflaw .com
Sibyl C. Byrd, MSB # 100601 McDuff & Byrd 767 North Congress Street Jackson, MS 39202 (601) 969-0802 (601) 969-0804 (telefacsimile) scb@mcdufflaw.com
Melissa Cohen,* NY Bar #4782918 Planned Parenthood Federation of America 123 William St., 9th Floor New York, NY 10038 (212) 261-4649 (202) 296-3480 (telefacsimile) melissa.cohen@ppfa.org
Carrie Y. Flaxman,* DC Bar# 458681 Planned Parenthood Federation of America 1110 Vermont Ave., NW, Suite 300 Washington, DC 20005 (202) 973-4830 (202) 296-3480 (telefacsimile) carrie.flaxman@ppfa.org
* Pro hac vice admission to be applied for

Case 3:16-cv-00454-DPJ-FKB Document 1-2 Filed 06/15/16 Page 1 of 3
EXHIBIT A

Case 3:16-cv-00454-DPJ-FKB Document 1-2 Filed 06/15/16 Page 2 of 3

MISSISSIPPI LEGISLATURE By: Senator(s} Fillingane, Watson, McDaniel

REGULAR SESSION 2016 To: Medicaid; Appropriations

SENATE BILL NO. 2238 (As Sent to Governor)

1

AN ACT TO PROHIBIT THE DIVISION OF MEDICAID FROM AUTHORIZING

2 PAYMENT OF PART OR ALL OF THE COSTS OF CARE AND SERVICES RENDERED

3 BY ANY ENTITY THAT PERFORMS NONTHERAPEUTIC ABORTIONS, MAINTAINS OR

4 OPERATES A FACILITY WHERE NONTHERAPEUTIC ABORTIONS ARE PERFORMED,

5 OR IS AFFILIATED WITH SUCH AN ENTITY; AND FOR RELATED PURPOSES.

6

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

7

SECTION 1. Notwithstanding any other provision of Section

8 43-13-117, the division shall not authorize payment of part or all

9 of the costs of care and services rendered by any entity that

10 performs nontherapeutic abortions, maintains or operates a

11 facility where nontherapeutic abortions are performed, or is

12 affiliated with such an entity. For purposes of this provision,

13 "nontherapeutic abortions" means abortions that are not qualified

14 for federal matching funds under the Medicaid program, 42 USC

15 Section 1396 et seq., and as amended hereafter, and "affiliated

16 with" means having a legal relationship with another entity

17 created or governed by one or more written instruments that

18 demonstrates common control, ownership, franchisee status or

19 management, or that grants a license or other authority to utilize

S. B. No. 2238 16/SS01/R647SG PAGE 1

11111111111111111111111111111111111111~1111111111111111111111111

- OFFICIAL -

Gl/2

Case 3:16-cv-00454-DPJ-FKB Document 1-2 Filed 06/15/16 Page 3 of 3

20 the uther entity's brand name, trademark, service mark or other

21 registered identification mark.

22

SECTION 2. This act shall take effect and be in force from

23 and after July 1, 2016.

S. B. No. 2238 16/SS01/R647SG PAGE 2

IIIUIIIIIIIIIIIIIUIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIU

- OFFICIAL -

ST: Abortion services; prohibit Division of

Medicaid from reimbursing Planned Parenthood

Federation of America (PPFA).

Case 3:16-cv-00454-DPJ-FKB Document 1-3 Filed 06/15/16 Page 1 of 10
EXHIBITB

Case 3:16-cv-00454-DPJ-FKB Document 1-3 Filed 06/15/16 Page 2 of 10

MISSISSIPPI LEGISLATURE By: Representatives Mims, Eubanks, Dixon, Hopkins, Henley, Crawford, Formby, Gipson

REGULAR SESSION 2016 To: Public Health and Human Services

HOUSE BILL NO. 519 (As Sent to Governor)

1 2

FROM

AN ACT TO BE KNOWN AS THE MISSISSIPPI DISMEMBERMENT ABORTION ACT; TO DEFINE

UNBORN CHILD PROTECTION CERTAIN TERMS; TO

3 4 5 6 7 8

PROVIDE THAT IT IS UNLAWFUL FOR ANY PERSON TO PURPOSELY ATTEMPT TO PERFORM A DISMEMBERMENT ABORTION AND THEREBY UNBORN CHILD UNLESS NECESSARY TO PREVENT SERIOUS HEALTH

PERFORM KILL AN RISK TO

OR

THE UNBORN CHILD'S MOTHER; TO AUTHORIZE INJUNCTIONS TO PREVENT

DISMEMBERMENT ABORTIONS; TO AUTHORIZE A CAUSE OF ACTION FOR CIVIL

DAMAGES AGAINST PERSONS WHO HAVE PERFORMED DISMEMBERMENT

9 10 11

ABORTIONS; TO PROVIDE CRIMINAL PENALTIES FOR VIOLATIONS OF THIS

ACT; TO PROVIDE FOR FOR WOMEN UPON WHOM

THE PROTECTION OF PRIVACY IN COURT PROCEEDINGS AN ABORTION HAS BEEN PERFORMED; AND FOR

12 RELATED PURPOSES.

13

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

14

SECTION 1. Short tit1e. This act may be cited as the

15 "Mississippi Unborn Child Protection from Dismemberment Abortion

16 Act."

17

SECTION 2. Definitions. For the purposes of this act, the

18 following terms shall be defined as provided in this section:

19

(a) "Abortion" means the use or prescription of any

20 instrument, medicine, drug, or any other substance or device:

21

(i) To purposely kill the unborn child of a woman

22 known to be pregnant; or

H. B. No. 519 16/HR26/R1240SG PAGE 1 (RF\KW)

IIIUIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIU

... OFFICIAL ...

Gl/2

Case 3:16-cv-00454-DPJ-FKB Document 1-3 Filed 06/15/16 Page 3 of 10

23

(ii) To purposely terminate the pregnancy of a

24 woman known to be pregnant, with a purpose other than:

25

1. After viability to produce a live birth

26 and preserve the life and health of the child born alive; or

27

2. To remove a dead unborn child.

28

(b) "Attempt to perform an abortion" means to do or

29 omit to do anything that, under the circumstances as the actor

30 believes them to be, is an act or omission constituting a

31 substantial step in a course of conduct planned to culminate in

32 oneself performing an abortion. Such substantial steps include,

33 but are not limited to:

34

(i) Agreeing with an individual to perform an

35 abortion on that individual or on some other person, whether or

36 not the term "abortion" is used in the agreement, and whether or

37 not the agreement is contingent on another factor such as receipt

38 of payment or a determination of pregnancy; or

39

(ii) Scheduling or planning a time to perform an

40 abortion on an individual, whether or not the term "abortion" is

41 used, and whether or not the performance is contingent on another

42 factor such as receipt of payment or a determination of pregnancy.

43

This definition shall not be construed to require that an

44 abortion procedure actually must be initiated for an attempt to

45 occur.

46

(c) "Dismemberment abortion" means, with the purpose of

47 causing the death of an unborn child, purposely to dismember a

H. B. No. 519 16/HR26/Rl240SG
PAGE 2 (RF\KW)

llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll

- OFFICIAL -

Case 3:16-cv-00454-DPJ-FKB Document 1-3 Filed 06/15/16 Page 4 of 10

48 living unborn child and extract him or her one piece at a time

49 from the uterus through use of clamps, grasping forceps, tongs,

50 scissors or similar instruments that, through the convergence of

51 two rigid levers, slice, crush, and/or grasp a portion of the

52 unborn child's body to cut or rip it off.

53

The term "dismemberment abortion" does not include an

54 abortion that uses suction to dismember the body of the unborn

55 child by sucking fetal parts into a collection container, although

56 it does include an abortion in which a dismemberment abortion is

57 used to cause the death of an unborn child but suction is

58 subsequently used to extract fetal parts after the death of the

59 unborn child.

60

(d) "Physician" means a person licensed to practice

61 medicine and surgery or osteopathic medicine and surgery, or 62 otherwise legally authorized to perform an abortion.

63

(e) "Purposely" means the following: A person acts

64 purposely with respect to a material element of an offense when:

65

(i) If the element involves the nature of his

66 conduct or a result thereof, it is his conscious object to engage 67 in conduct of that nature or to cause such a result; and

68

(ii) If the element involves the attendant

69 circumstances, he is aware of the existence of those circumstances 70 or he believes or hopes that they exist.

71

(f) "Serious health risk to the unborn child's mother"

72 means that in reasonable medical judgment, she has a condition

H. B. No. 519 16/HR26/R1240SG
PAGE 3 (RF\KW)

llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll

... OFFICIAL ...

Case 3:16-cv-00454-DPJ-FKB Document 1-3 Filed 06/15/16 Page 5 of 10

73 that so complicates her medical condition that it necessitates the

74 abortion of her pregnancy to avert her death or to avert serious

75 risk of substantial and irreversible physical impairment of a

76 major bodily function, not including psychological or emotional

77 conditions. No such condition may be determined to exist if it is

78 based on a claim or diagnosis that the woman will engage in

79 conduct that she intends to result in her death or in substantial

80 and irreversible physical impairment of a major bodily function.

81

(g) "Woman" means a female human being whether or not

82 she has reached the age of majority.

83

SECTION 3. Dismemberment abortion prohibited. ( 1)

84 Notwithstanding any other provision of law, it shall be unlawful

85 for any person to purposely perform or attempt to perform a

86 dismemberment abortion and thereby kill an unborn child unless

87 necessary to prevent serious health risk to the unborn child's

88 mother.

89

(2) A person accused in any proceeding of unlawful conduct

90 under subsection (1) of this section may seek a hearing before the

91 State Board of Medical Licensure on whether the dismemberment

92 abortion was necessary to prevent serious health risk to the

93 unborn child's mother. The board's findings are admissible on

94 that issue at any trial in which the unlawful conduct is alleged.

95 Upon a motion of the person accused, the court shall delay the

96 beginning of the trial for not more than thirty (30) days to

97 permit such a hearing to take place.

H. B. No. 519 16/HR26/R1240SG
PAGE 4 (RF\KW)

111~11111111111111111111111111111111111111111111111111111111111111111

... OFFICIAL ...

Case 3:16-cv-00454-DPJ-FKB Document 1-3 Filed 06/15/16 Page 6 of 10

98

(3) No woman upon whom an abortion is performed or attempted

99 to be performed shall be thereby liable for performing or

100 attempting to perform a dismemberment abortion. No nurse,

101 technician, secretary, receptionist or other employee or agent who

102 is not a physician but who acts at the direction of a physician,

103 and no pharmacist or other individual who is not a physician but

104 who fills a prescription or provides instruments or materials used

105 in an abortion at the direction of or to a physician shall be

106 thereby liable for performing or attempting to perform a

107 dismemberment abortion.

108

(4) This act does not prevent abortion for any reason,

109 including rape and incest by any other method.

110

SECTION 4. Remedies - Injunctions against dismemberment

111 abortions. (1) Civil and criminal penalties for violations of

112 this act may be imposed under the following priority:

113

(a) Injunctive relief;

114

(b) Civil cause of action; and

115

(c) Criminal action.

116

(2) A cause of action for injunctive relief against a person

117 who has performed or attempted to perform a dismemberment abortion

118 in violation of Section 3 of this act may be maintained as a

119 priority action by:

120

(a) A woman upon whom such a dismemberment abortion was

121 performed or attempted to be performed;

H. B. No. 519 16/HR26/R1240SG
PAGE 5 (RF\KW)

IIIIIIIIIIIIIIIIIIIIIII~IIIIIIIIIIIIIIIIIIIIIIIIIIIIUIIIIIIIIIIIIIII

... OFFICIAL ...

Case 3:16-cv-00454-DPJ-FKB Document 1-3 Filed 06/15/16 Page 7 of 10

122

(b) A person who is the spouse, parent or guardian of,

123 or a current or former licensed health care provider of, a woman

124 upon whom such a dismemberment abortion was performed or attempted

125 to be performed; or

126

(c) A prosecuting attorney with appropriate

127 jurisdiction.

128

(3) The injunction shall prevent the defendant from

129 performing or attempting to perform further dismemberment

130 abortions in violation of Section 3 of this act in this state.

131

SECTION 5. Civi1 remedies. (1) Only in the event a cause

132 of action for injunctive relief under Section 4 has been denied by

133 a court of competent jurisdiction, a cause of action for civil

134 damages against a person who has performed a dismemberment

135 abortion in violation of Section 3 of this act may be maintained

136 by:

137

(a) Any woman upon whom a dismemberment abortion has

138 been performed in violation of Section 3 of this act;

139

(b) The father of the unborn child, if married to the

140 woman at the time the dismemberment abortion was performed; or

141

(c) If the woman had not attained the age of eighteen

142 (18) years at the time of the dismemberment abortion or has died

143 as a result of the abortion, the maternal grandparents of the

144 unborn child.

145

(2) No damages may be awarded a plaintiff if the pregnancy

146 resulted from the plaintiff's criminal conduct.

H. B. No. 519 16/HR26/Rl240SG PAGE 6 (RF\KW)

IIIIIIIIUIIIIIIIIIIIIImllllllmiiiiiiiiiiiiiiiiiiiUIIIIIIIIIIIIIII

... OFFICIAL ...

Case 3:16-cv-00454-DPJ-FKB Document 1-3 Filed 06/15/16 Page 8 of 10 •

147

(3) Damages awarded in such an action shall include:

148

(a) Money damages for all injuries, psychological and

149 physical, occasioned by the dismemberment abortion; and

150

(b) Statutory damages equal to three (3) times the cost

151 of the dismemberment abortion.

152

SECTION 6. Attorney's fees. (1) If judgment is rendered in

153 favor of the plaintiff in an action described in Section 4 or 5 of

154 this act, the court shall also render judgment for a reasonable

155 attorney's fee in favor of the plaintiff against the defendant.

156

(2) If judgment is rendered in favor of the defendant in an

157 action described in Section 4 or 5 of this act and the court finds

158 that the plaintiff's suit was frivolous and brought in bad faith,

159 the court shall render judgment for a reasonable attorney's fee in

160 favor of the defendant against the plaintiff.

161

(3) No attorney's fee may be assessed against the woman upon

162 whom a dismemberment abortion was performed or attempted to be

163 performed except in accordance with subsection (2) of this

164 section.

165

SECTION 7. Crimina1 pena1ty. Only in the event a judgment

166 is rendered in favor of the defendant in an action described in

167 Section 4 or 5 of this act, a district attorney with jurisdiction

168 may bring an indictment for criminal punishment under this

169 section. Any person who violates Section 3 of this act is guilty

170 of a felony and, upon conviction, shall be punished by a fine not

171 more than Ten Thousand Dollars ($10,000.00), or commitment to the

H. B. No. 519 16/HR26/R1240SG
PAGE 7 (RF\KW)

111011111111111111111111111111111111111111111111111111111111111111111

- OFFICIAL -

Case 3:16-cv-00454-DPJ-FKB Document 1-3 Filed 06/15/16 Page 9 of 10
. •
'

172 custody of the Department of Corrections for not more than two (2)

173 years, or both.

174

SECTION 8. Protection of privacy in court proceedings. In

175 every civil, criminal, or administrative proceeding or action

176 brought under this act, the court shall rule whether the anonymity

177 of any woman upon whom a dismemberment abortion has been performed

178 or attempted to be performed shall be preserved from public

179 disclosure if she does not give her consent to the disclosure.

180 The court, upon motion or sua sponte, shall make such a ruling

181 and, upon determining that her anonymity should be preserved, 182 shall issue orders to the parties, witnesses, and counsel and

183 shall direct the sealing of the record and exclusion of

184 individuals from courtrooms or hearing rooms to the extent

185 necessary to safeguard her identity from public disclosure. Each

186 such order shall be accompanied by specific written findings

187 explaining why the anonymity of the woman should be preserved from

188 public disclosure, why the order is essential to that end, how the

189 order is narrowly tailored to serve that interest, and why no

190 reasonable less restrictive alternative exists. In the absence of

191 written consent of the woman upon whom a dismemberment abortion

192 has been performed or attempted to be performed, anyone other than 193 a public official who brings an action under Section 4 or 5 of

194 this act shall do so under a pseudonym. This section may not be 195 construed to conceal the identity of the plaintiff or of witnesses

196 from the defendant or from attorneys for the defendant.

H. B. No. 519 16/HR26/R1240SG
PAGE 8 (RF\KW)

1111111111111111111111111111111111111111111111111111111111111111111111

- OFFICIAL -

Case 3:16-cv-00454-DPJ-FKB Document 1-3 Filed 06/15/16 Page 10 of 10

197

SECTION 9. Construction. Nothing in this act shall be

198 construed as creating or recognizing a right to abortion, nor a

199 200 201 202 203 204 205 206 207 208 209

right to a particular method of abortion. SECTION 10. Severability. If any one or more provisions,
sections, subsections, sentences, clauses, phrases or words of this act or the application thereof to any person or circumstance is found to be unconstitutional, the same is declared to be severable and the balance of this act shall remain effective notwithstanding such unconstitutionality. The Legislature declares that it would have passed this act, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses, phrases or words be

210 declared unconstitutional.

211

SECTION 11. This act shall take effect and be in force from

212 and after July 1, 2016.

H. B. No. 519 16/HR26/R1240SG PAGE 9 (RF\KW)

llllllllllllllllllllllllllllliRIIIRIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIR

- OFFICIAL -

ST: Dis

m

eMmSbeUrmnbeonrtnACbhoirltdionPrAotcet;cticorne

from ate.

 
 Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

PLANNED PARENTHOOD SOUTHEAST, INC.; PLANNED PARENTHOOD GREATER MEMPHIS REGION, INC.; JANE DOE; and JANE DOE #2,

Plaintiffs,

No. 3:16-cv-454 DPJ-FKB

v.

DAVID J. DZIELAK, Executive Director, Mississippi Division of Medicaid, in his official capacity,

Defendant.

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs Planned Parenthood Southeast, Inc. (“PPSE”), Planned Parenthood Greater
Memphis Region, Inc. (“PPGMR”), Jane Doe, and Jane Doe #2, by and through their attorneys, bring this Complaint against the above-named Defendant, his employees, agents, delegates, and successors in office, and in support thereof state the following:
INTRODUCTORY STATEMENT 1. This civil action is brought pursuant to 42 U.S.C. § 1983 and the United States Constitution to vindicate rights secured by the federal Medicaid statutes as well as the Equal Protection Clause and Due Process Clause of the United States Constitution. 2. Plaintiffs PPSE and PPGMR (the “Provider Plaintiffs”) provide critically needed family planning and preventive health services to women and men in underserved areas of

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 2 of 18
Mississippi through the Mississippi Medicaid program. Mississippi Medicaid does not pay for abortions except in extremely narrow circumstances.
3. As is required by federal law, Medicaid enrollees, such as Plaintiffs Jane Doe and Jane Doe #2 (collectively the “Jane Doe Plaintiffs”), may seek family planning services from the participating provider of their choice and have those services covered by Medicaid.
4. On May 10, 2016, Mississippi Governor Phil Bryant signed into law Mississippi Senate Bill 2238, 1st Regular Session (2016), to be codified at Miss. Code. Ann. § 43-13-117 (the “Act” or “SB 2238”) (attached hereto as Exhibit A). The Act disqualifies from eligibility to participate in Mississippi’s Medicaid program any entity that performs abortions, except in extremely narrowly defined circumstances.
5. The Act violates 42 U.S.C. § 1396a(a)(23), which is known as the Medicaid free choice of provider requirement, because it prevents the Provider Plaintiffs’ Mississippi Medicaid patients, including the Jane Doe Plaintiffs , from receiving services through the Medicaid program from the qualified, willing provider of their choice. The Act also violates the Equal Protection rights of the Provider Plaintiffs and their patients, including the Jane Doe Plaintiffs, because it singles them out for disfavorable treatment without a constitutionally sufficient justification. The Act further violates the Due Process rights of the Provider Plaintiffs and their patients because it imposes an unconstitutional condition on the Provider Plaintiffs’ eligibility to participate in Medicaid by disqualifying them from Medicaid based on their exercise of constitutionally protected activity.
6. As of July 1, 2016, the Act disqualifies the Provider Plaintiffs from providing critical services to Mississippi men and women who depend on them for that care. Until this Court grants relief, the Act will cause irreparable harm to the Provider Plaintiffs’ Medicaid
2

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 3 of 18
patients, including the Jane Doe Plaintiffs, who are no longer able to obtain their reproductive health care from the provider of their choice through the Medicaid program, and who risk losing their provider of choice and having their access to critical health services interrupted.
JURISDICTION AND VENUE 7. Subject-matter jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 & 1343. 8. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, and by the general legal and equitable powers of this Court. 9. Venue in this judicial district is proper under 28 U.S.C. § 1391.
THE PARTIES A. Plaintiffs
10. Plaintiff PPSE is a not-for-profit corporation organized under the laws of Georgia. PPSE provides reproductive health care at a health center in Hattiesburg, Mississippi, as well as two health centers in Alabama and five in Georgia. PPSE participates in the Mississippi Medicaid program, providing medical services to low-income enrollees. The family planning and other preventive health services provided by PPSE at its Hattiesburg health center include physical exams, contraception and contraceptive counseling, screening for breast cancer, screening for cervical cancer, testing and treatment for certain sexually transmitted infections (“STIs”), and pregnancy testing and counseling. PPSE does not provide abortions in Mississippi but does in Alabama and Georgia. PPSE brings this action on behalf of itself and its patients.
11. Plaintiff PPGMR is a not-for-profit corporation organized under the laws of Tennessee. PPGMR provides reproductive health care at a health center in Memphis, Tennessee,
3

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 4 of 18
and many of the patients it serves reside in Mississippi counties that lie within the Memphis metropolitan area. PPGMR recently began to participate in the Mississippi Medicaid program, providing medical services to low-income enrollees. The family planning and other preventive health services provided by PPGMR at its Memphis health center include physical exams, contraception and contraceptive counseling, screening for breast cancer, screening for cervical cancer, testing and treatment for certain STIs, and pregnancy testing and counseling. PPGMR also provides abortions. PPGMR brings this action on behalf of itself and its patients.
12. Plaintiff Jane Doe is a Mississippi resident and Medicaid patient who obtains reproductive health care from PPGMR and desires to continue to do so.
13. Plaintiff Jane Doe #2 is a Mississippi resident and Medicaid patient who obtains reproductive health care from PPSE and desires to continue to do so. B. Defendant
14. Defendant David J. Dzielak is the Executive Director of the Mississippi Division of Medicaid (“MDM”), the agency that administers the state Medicaid program which, in the absence of the Act, would disburse the funds at issue to PPSE and PPGMR. Defendant Dzielak is sued in his official capacity.
THE ACT 15. The Act provides that the Division of Medicaid “shall not authorize payment of part or all of the costs of care and services rendered by an entity that performs nontherapeutic abortions, maintains or operates a facility where nontherapeutic abortions are performed, or is affiliated with such an entity.” SB 2338 § 1. The Act goes on to define “nontherapeutic abortions” as “abortions that are not qualified for federal matching funds under the Medicaid program, 42 USC Section 1396 et seq.” Id. Such abortions are those limited to life
4

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 5 of 18
endangerment, rape and incest. Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, Div. H, tit. V, §§ 506–507, 129 Stat. 2242, 2649.
THE MEDICAID PROGRAM A. The Medicaid Statute
16. The Medicaid program, established under Title XIX of the Social Security Act of 1935, 42 U.S.C. § 1396 et seq., pays for medical care for eligible needy people. A state may elect whether or not to participate; if it chooses to do so, it must comply with the requirements imposed by the Medicaid statute and by the Secretary of the U.S. Department of Health and Human Services (“HHS”) in her administration of Medicaid. See generally 42 U.S.C. § 1396a(a)(1)–(83).
17. To receive federal funding, a participating state must develop a “plan for medical assistance” and submit it to the Secretary of HHS for approval. 42 U.S.C. § 1396a(a).
18. Among other requirements, the State plan must provide that: “[A]ny individual eligible for medical assistance . . . may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required . . . who undertakes to provide him such services.” 42 U.S.C. § 1396a(a)(23)(A).
19. Congress has singled out family planning services for special additional protections to ensure freedom of choice, specifically providing that, with respect to these services and with certain limited exceptions not applicable here, “enrollment of an individual eligible for medical assistance in a primary care case-management system . . . , a medicaid managed care organization, or a similar entity shall not restrict the choice of the qualified person
5

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 6 of 18
from whom the individual may receive services . . . .” 42 U.S.C. § 1396a(a)(23)(B); 42 C.F.R. § 431.51(b)(2) (implementing regulations requiring the same).
20. The federal government reimburses the state of Mississippi 90% of expenditures attributable to offering, arranging, and furnishing family planning services and supplies in Medicaid. 42 U.S.C. § 1396b(a)(5). B. Implementation of the Medicaid Act
21. For decades, the Centers for Medicare & Medicaid Services (“CMS”), the agency within HHS that administers Medicaid (and its predecessor organization), has repeatedly interpreted the “qualified” language in Section 1396a(a)(23) to prohibit states from denying access to a provider for reasons unrelated to the ability of that provider to perform Medicaidcovered services or to properly bill for those services, including reasons such as the scope of the medical services that the provider offers.
22. CMS has long explained that “[t]he purpose of the free choice provision is to allow [Medicaid] recipients the same opportunities to choose among available providers of covered health care and services as are normally offered to the general population.” Ctrs. for Medicare & Medicaid Servs., CMS Manuals Publication #45, State Medicaid Manual § 2100.
23. Consistent with this, CMS has issued guidance making clear that States are not [] permitted to exclude providers from the program solely on the basis of the range of medical services they provide. . . .Medicaid programs may not exclude qualified health care providers . . . from providing services under the program because they separately provide abortion services (not funded by Medicaid dollars, consistent with the federal prohibition) as part of their scope of practice. Cindy Mann, Dir., CMS, CMCS Informational Bulletin: Update on Medicaid/CHIP, June 1, 2011, https://www.medicaid.gov/Federal-Policy-Guidance/downloads/6-1-11-Info-Bulletin.pdf.
6

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 7 of 18
24. CMS recently reiterated this guidance on April 19, 2016 via a letter to all State Medicaid Directors, which stated:
The “free choice of provider” provision is specific with respect to the free choice of family planning providers. . . . [S]tates may not deny qualification to family planning providers, or take other action against qualified family planning providers, that affects beneficiary access to those providers—whether individual providers, physician groups, outpatient clinics or hospitals—solely because they separately provide family planning services or the full range of legally permissible gynecological and obstetric care, including abortion services (not funded by federal Medicaid dollars, consistent with the federal prohibition), as part of their scope of practice. Letter from Vikki Wachino, Dir., CMS, to State Medicaid Dirs. 2 (Apr. 19, 2016), https://www.medicaid.gov/federal-policy-guidance/downloads/SMD16005.pdf. 25. Accordingly, CMS has a long history of rejecting state plans that seek to limit the type of provider that can provide particular services. For example, in 2011 CMS rejected an Indiana plan that barred state agencies from contracting with or making grants to any entities that perform abortion because it violated the Medicaid freedom of choice provision. Letter from Donald M. Berwick, Adm’r., CMS, to Patricia Casanova, Dir., Ind. Office of Medicaid Policy and Planning (June 1, 2011), http://www.politico.com/static/PPM169_110601_indiana_ letter.html. See also 53 Fed. Reg. 8699-03 (Mar. 16, 1988) (noting rejection of a state plan that would limit providers to “private nonprofit” organizations); 67 Fed. Reg. 79121 (Dec. 27, 2002) (noting disapproval of a state plan amendment that would have limited “beneficiary choice . . . by imposing standards that are not reasonably related to the qualifications of providers”); Letter from Marilyn Tavenner, Adm’r, CMS, to Beverly Mackereth, Sec’y, Pa. Dep’t of Pub. Welfare (Aug. 28, 2014), http://www.medicaid.gov/Medicaid-CHIP-Program-Information/ByTopics/Waivers/1115/ downloads/pa/pa-healthy-ca.pdf (denying request from Pennsylvania to waive § 1396a(a)(23) in demonstration projects under Social Security Act, § 1115: “No waiver
7

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 8 of 18
of freedom of choice is authorized for family planning providers.”); Letter from Manning Pellanda, Dir., CMS Div. of State Demonstrations and Waivers, to Julie Lovelady, Interim Medicaid Dir., Iowa Dep’t of Human Servs. (Feb. 2, 2015), http://www.medicaid.gov/MedicaidCHIP-Program-Information/By-Topics/Waivers/1115/downloads/ia/wellness-plan/ia-wellnessplan-current-appvl-02022015.pdf (denying similar request from Iowa: “No waiver of freedom of choice is authorized for family planning providers.”).
26. Furthermore, when two states, Indiana and Arizona, passed statutes virtually identical to the Act at issue in this case, those statutes were found to violate the Medicaid free choice of provider requirement and were struck down. Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962 (7th Cir. 2012), cert. denied, 133 S. Ct. 2736 (2013); Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960 (9th Cir. 2013), cert. denied, 134 S. Ct. 1283 (2014).
MISSISSIPPI’S HISTORY OF ANIMUS TOWARD ABORTION 27. Mississippi has among the most restrictive abortion laws in the country. As a result, the number of abortion providers in Mississippi has steadily declined, from 14 providers in 1981 to just one remaining today. Kate Sheppard, Inside Mississippi’s Last Abortion Clinic, Mother Jones (Jan. 22, 2013), http://www.motherjones.com/politics/2013/01/inside-mississippislast-abortion-clinic. Governor Bryant and other anti-abortion politicians in Mississippi have consistently worked to restrict access to abortion and, ultimately, to shut down that last provider and eliminate abortion access in the state entirely. 28. Current Mississippi laws already severely restrict access to abortion. The state imposes a 24-hour delay on women seeking abortion following receipt of state-mandated information. Miss. Code. Ann. § 41-41-33. Women must undergo an ultrasound and must be
8

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 9 of 18
offered the opportunity to view the ultrasound and hear the fetal heartbeat prior to obtaining an abortion. Miss. Code. Ann. § 41-41-34. It is illegal to perform an abortion after 20 weeks gestation unless the woman’s life is in danger or she is at risk of severe health impairment or if there is a severe fetal anomaly. Miss. Code. Ann. § 41-41-137. Minors require the written consent of both their parents in order to obtain an abortion. Miss. Code. Ann. § 41-41-53. Abortion is covered in insurance policies for public employees only in cases of life endangerment, rape or incest or fetal abnormality. Miss. Code. Ann. § 41-41-91. Insurance provided in any exchange established pursuant to the Affordable Care Act cannot cover abortions except in cases of life-endangerment, rape or incest. Miss. Code. Ann. § 41-41-99.
29. In 2012, Mississippi passed a law requiring physicians who provide abortion and are associated with an abortion facility to have admitting privileges at a local hospital. Miss. Code. Ann. § 41-75-1. Politicians were clear that the purpose of the bill was to “close the only abortion clinic in Mississippi.” Joe Sutton and Tom Watkins, Mississippi Legislature Tightens Restrictions on Abortion Providers, CNN Politics (Apr. 4 2012), http://www.cnn.com/2012/04/04/politics/mississippi-abortion. Governor Bryant signed the bill and stated, “I will continue to work to make Mississippi abortion-free.” Mississippi On Way to Becoming ‘Abortion-Free’ State?, NBC News (Apr. 5, 2012), http://usnews.nbcnews.com/_news/2012/04/05/11039503-mississippi-on-way-to-becomingabortion-free-state. The law has been enjoined. Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014), petition for cert. filed, No. 14-997.
30. During the 2016 legislative session, in addition to the Act, Mississippi banned the most common method of second trimester abortions in the United States. Mississippi House Bill 519, attached hereto as Ex. B. Upon signing the bill, Governor Bryant stated, “We’re making
9

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 10 of 18
Mississippi the safest place in America for an unborn child.” Jeff Amy, Bryant signs bill banning 2nd trimester abortion method, Clarion Ledger (Apr. 15, 2016), http://www.clarionledger.com/story/news/ politics/2016/04/15/bryant-signs-bill-banning-2ndtrimester-abortion-method/83092298/.
31. The Act is yet another attack on abortion and abortion providers. State Senator Joey Fillingane, who authored the Act, stated, “The idea that we would take state tax dollars, which these are, and provide to an entity like Planned Parenthood, which is the number one abortion provider in the country, is just mind blowing. . . They provide family planning services, which is a nice, tidy way of saying . . . if you don’t want to keep this baby, you should go to an abortion clinic.” Amanda LaBrot, Mississippi Senate Votes to Stop Funding Planned Parenthood, MS News Now (Mar. 3, 2016), http://www.msnewsnow.com/story/31382112/ mississippi-senate-votes-to-stop-funding-planned-parenthood. Governor Bryant similarly issued a statement saying “Happy to sign Senate Bill 2238. Taxpayers dollars should not fund abortions.” Phil Bryant (@PhilBryantMS), Twitter (May 10, 2016), https://twitter.com/ PhilBryantMS/status/730151336709390337. THE PROVIDER PLAINTIFFS’ PARTICIPATION IN MISSISSIPPI MEDICAID AND
THE IMPACT OF THE ACT 31. PPSE has been an enrolled provider in the Mississippi Medicaid program since 2013. PPSE has recently been working to expand services, including services for Mississippi Medicaid patients, at its Hattiesburg health center in order to increase access to reproductive healthcare for patients in the area. 32. The Mississippi Division of Medicaid approved PPGMR as an enrolled Mississippi Medicaid provider in 2016. Prior to becoming an enrolled provider, PPGMR
10

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 11 of 18
received 1–2 phone calls per week from Mississippi Medicaid patients inquiring as to whether PPGMR accepted Mississippi Medicaid.
33. Only the neediest individuals in Mississippi are eligible to receive Medicaid coverage. In order to qualify for Mississippi Medicaid, among other requirements, an adult must be low-income and pregnant, disabled, or the parent/caretaker of a child. MDM, Who Qualifies for Coverage?, https://medicaid.ms.gov/medicaid-coverage/who-qualifies-for-coverage/. For example, in order for an adult to qualify for Mississippi Medicaid as the parent or caregiver of a child, the monthly income of a family of four cannot exceed $462. MDM, Income Limits for Medicaid and CHIP Programs, https://medicaid.ms.gov/medicaid-coverage/who-qualifies-forcoverage/income-limits-for-medicaid-and-chip-programs/. Mississippi also has a Family Planning waiver program which expands Medicaid eligibility for family planning services only for men and women of reproductive age. In order to be eligible for the waiver program, a beneficiary must have income at or below 194% of the federal poverty level. Id.
34. The need for publicly supported family planning services is great in Mississippi. In 2010, 62% of pregnancies in Mississippi were unintended, well above the national rate of 45%. Guttmacher Inst., State Facts About Unintended Pregnancy: Mississippi (2014), https://www.guttmacher.org/fact-sheet/state-facts-about-unintended-pregnancy-mississippi. Mississippi has the second highest rate of teen pregnancies in the country, at 70 pregnancies per 1000 women aged 15-19. Guttmacher Inst., U.S. Teenage Pregnancies, Births and Abortions, 2011: State Trends by Age, Race and Ethnicity (2016), https://www.guttmacher.org/report/usteen-pregnancy-state-trends-2011#full-article.
35. Over the past decade, the need for publicly funded contraceptive services has increased while resources have decreased. Of the estimated 335,980 Mississippi women who
11

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 12 of 18
needed family planning services in 2013, a significant majority (67.4%) require publicly funded contraceptive services and supplies. Jennifer L. Frost et al., Guttmacher Institute, Contraceptive Needs and Services, 2013 Update 18, 20 (July 2015), https://www.guttmacher.org/sites/default/ files/pdfs/pubs/win/contraceptive-needs-2013.pdf. From 2010 to 2013, the number of women needing publicly funded contraceptive services and supplies increased 6%, id. at 22, while the number of women being served decreased 17%. Id. at 26. Indeed, from 2001 to 2013, the percentage of need met by publicly supported family planning centers has decreased from well over half to less than one-third. Id. at 28.
36. Mississippi also regularly ranks among the worst states for STIs, with rates at or above the national average for every STI tracked by Centers for Disease Control (“CDC”) surveillance. Among these are chlamydia and gonorrhea (second highest rates in the country), primary and secondary syphilis, and HIV. CDC, Sexually Transmitted Disease Surveillance 2014 81, 93, 107 (Nov. 2015), https://www.cdc.gov/std/stats14/surv-2014-print.pdf. The geographical area designated by the Mississippi State Department of Health as Public Health District 8, which includes the county where PPSE’s Hattiesburg clinic is located, has the third highest rate of HIV in the state. Miss. State Dep’t of Health, Reported Cases & Rates of HIV Disease by Dist. and Cty.: Miss., 2010-2014, http://msdh.ms.gov/msdhsite/_static/resources/6001.pdf. Mississippi’s capitol, Jackson, has the fourth highest rate of HIV of all metropolitan statistical areas in the entire country. CDC, Diagnoses of HIV Infection in the United States & Dependent Areas, 2014, 26 HIV Surveillance Report (Nov. 2015), http://www.cdc.gov/hiv/pdf/library/reports/surveillance/cdc-hivsurveillance-report-us.pdf.
12

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 13 of 18
37. The Provider Plaintiffs seek to continue to work to meet the need for publicly supported family planning services by continuing as Medicaid providers. PPSE’s Hattiesburg health center, for example, provides care in an HHS-designated Primary Care Health Professional Shortage Area—a geographic area in which primary care professionals are practically inaccessible. Each of the six counties that neighbor Forrest County, where the health center is located, is also designated as a medically underserved population area. PPGMR’s Memphis health center is just across the border from DeSoto County, Mississippi, which is designated as a medically underserved population area. The three additional closest Mississippi counties to PPGMR’s health center (Tunica, Tate, and Marshall Counties) have been designated as both medically underserved population areas and as primary care professional shortage areas. U.S. Dep’t of Health and Human Servs., Find Shortage Areas, Health Resources and Services Administration, http://datawarehouse.hrsa.gov/tools/analyzers/geo/ShortageArea.aspx (enter clinic or county seat address and click “submit”).
38. Because of the Act, unless the Provider Plaintiffs cease providing abortions (except under the extremely narrow circumstances allowed under the Medicaid program), they are no longer able to receive reimbursement for providing healthcare services to patients through the Mississippi Medicaid program. Being unable to provide services through the Medicaid program fundamentally defeats the core of their missions: to provide the health care and information people need to plan their families and their futures, with a special concern for patients living near the poverty line, and to promote their patients’ health, safety and well-being. They are also losing the revenue from providing services to Medicaid patients. Although that revenue is currently small, both PPSE and PPGMR have been working to expand and hope to continue to do so.
13

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 14 of 18
39. In order to continue to fulfill their mission of ensuring broad access to reproductive healthcare in Mississippi, the Provider Plaintiffs are assisting their Mississippi Medicaid patients to continue to access care while the Act is in effect. PPSE is giving patients the option to pay for services on a sliding-scale basis, as its self-pay patients do; however, PPSE is not able to cover the full cost of services for all of its Medicaid patients. Further, PPSE does not know how long it will be able to continue subsidizing these services, or at what level, as PPSE is a non-profit with limited funding. PPGMR will serve Mississippi Medicaid patients and refrain from submitting claims for reimbursement for those services, which they may do for a year under the terms of the program, unless and until they prevail in this lawsuit, taking on the financial risk that they may be unable to seek reimbursement.
40. Therefore, until this Court grants relief, the Provider Plaintiffs’ Mississippi Medicaid patients, including the Jane Doe Plaintiffs, are no longer able to obtain their reproductive health care from the provider of their choice through the Medicaid program, and these patients are at risk of losing access to their provider of choice altogether. Patients insured through Medicaid choose to receive their reproductive health care from Planned Parenthood based on a number of factors that are generally not available at other providers. With their evidence-based practices and up-to-date technology, Planned Parenthood health centers are known as providers of high-quality medical care. Many patients also turn to these providers for their reproductive health care because they are concerned about their privacy and fear being judged by other providers.
41. In addition, many low-income patients have unique scheduling constraints because they are juggling inflexible work schedules, childcare obligations, transportation challenges, and lack of childcare resources. To ensure that these patients have access to family
14

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 15 of 18
planning services, PPSE and PPGMR offer walk-in appointments, and offer same day birth control shots, birth control implants, and intrauterine devices (which are the most effective methods of contraception), so that patients only need to make one trip to a health center to obtain their contraceptive method of choice. PPGMR also offers extended hours and Saturday hours. PPSE and PPGMR also have either Spanish-speaking staff or translator services available to non-English speaking patients at all times.
42. Women and men who are unable to obtain family planning care, or encounter delays in obtaining it, can face devastating consequences, including undetected cancers and diseases. Delays in obtaining contraception will result in unintended pregnancies, many of which may end in abortion.
43. Plaintiffs have no adequate remedy at law. CLAIMS FOR RELIEF
CLAIM I—MEDICAID ACT (TITLE XIX OF SOCIAL SECURITY ACT) 44. Plaintiffs hereby incorporate Paragraphs 1 through 43 above. 45. The Act violates Section 1396a(a)(23) of Title 42 of the United States Code by denying the Provider Plaintiffs’ Mississippi Medicaid patients, including the Jane Doe Plaintiffs, the right to choose any willing, qualified health care provider in the Medicaid program. CLAIM II—FOURTEENTH AMENDMENT EQUAL PROTECTION 46. Plaintiffs hereby incorporate Paragraphs 1 through 43 above. 47. The Act violates the equal protection rights of the Provider Plaintiffs and their patients, including the Jane Doe Plaintiffs, by singling them out for unfavorable treatment without adequate justification.
15

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 16 of 18
CLAIM III—FOURTEENTH AMENDMENT DUE PROCESS 48. Plaintiffs hereby incorporate Paragraphs 1 though 43 above. 49. The Act violates the due process rights of the Provider Plaintiffs and their patients by imposing an unconstitutional condition on the Provider Plaintiffs’ eligibility to participate in Medicaid based on their exercise, and their patients’ exercise, of constitutionally protected activity.
RELIEF REQUESTED WHEREFORE, Plaintiffs request that this Court:
50. Issue a declaratory judgment that the Act violates the Medicaid Act and is therefore void and of no effect;
51. Issue a declaratory judgment that the Act violates the Equal Protection Clause of the Fourteenth Amendment and is therefore void and of no effect;
52. Issue a declaratory judgment that the Act violates the Due Process Clause of the Fourteenth Amendment and is therefore void and of no effect;
53. Issue permanent injunctive relief, without bond, restraining the enforcement, operation, and execution of the Act by enjoining Defendant, his agents, employees, appointees, delegates, or successors from enforcing, threatening to enforce, or otherwise applying the provisions of the Act;
54. Grant Plaintiffs’ attorneys’ fees, costs, and expenses pursuant to 42 U.S.C. § 1988; and,
55. Grant such further relief as this Court deems just and proper.
Respectfully submitted this 6th day of July, 2016.
16

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 17 of 18
/s/ Melissa Cohen Melissa Cohen,* NY Bar #4782918 Planned Parenthood Federation of America 123 William St., 9th Floor New York, NY 10038 (212) 261-4649 (202) 296-3480 (telefacsimile) melissa.cohen@ppfa.org Robert B. McDuff, MSB # 2532 Sibyl C. Byrd, MSB # 100601 McDuff & Byrd 767 North Congress Street Jackson, MS 39202 (601) 969-0802 (601) 969-0804 (telefacsimile) rbm@mcdufflaw.com scb@mcdufflaw.com Carrie Y. Flaxman,* DC Bar # 458681 Planned Parenthood Federation of America 1110 Vermont Ave., NW, Suite 300 Washington, DC 20005 (202) 973-4830 (202) 296-3480 (telefacsimile) carrie.flaxman@ppfa.org Counsel for Plaintiffs * Admitted pro hac vice
17

Case 3:16-cv-00454-DPJ-FKB Document 11 Filed 07/06/16 Page 18 of 18 CERTIFICATE OF SERVICE
I hereby certify that on July 6, 2016 I transmitted a copy of the foregoing document via electronic mail to the following recipients who have not yet entered an appearance via the ECF system:
David J. Dzielak, Executive Director, Mississippi Division of Medicaid c/o Office of the Attorney General Wilson D. Minor wmino@ago.state.ms.us Walter Sillers Building, Suite 1200 550 High Street Jackson, MS 39201
/s/ Melissa Cohen Melissa Cohen
18

 
 Case 3:16-cv-00454-DPJ-FKB Document 25 Filed 10/20/16 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

PLANNED PARENTHOOD SOUTHEAST, INC., et al.

PLAINTIFFS

v.

CIVIL ACTION NO. 3:16cv454-DPJ-FKB

DAVID J. DZIELAK, Executive Director, Mississippi Division of Medicaid, in his official capacity

DEFENDANT

ORDER

In 2016, Mississippi enacted Mississippi Code section 43-13-117.4—which disqualifies

from the Mississippi Medicaid program any health-care provider that offers, or is affiliated with

entities that offer, nontherapeutic abortions. Essentially every court to consider similar laws has

found that they violate § 1396a(a)(23) of Title 42 of the United States Code, the so-called “Free-

Choice-of-Provider Provision.” And on September 14, 2016, the United States Fifth Circuit

Court of Appeals reached that same conclusion in Planned Parenthood of Gulf Coast, Inc. v.

Gee, No. 15-30987, 2016 WL 4895921 (5th Cir. Sept. 14, 2016). Defendant now “concedes that

the panel’s decision in Gee is controlling and dispositive as to . . . Plaintiffs’ claims under the

free-choice-of-provider requirement.” Def.’s Resp. [24] at 1. Therefore, the Court grants

Plaintiffs’ Motion for Summary Judgment [13] requesting declaratory and permanent injunctive

relief. Defendant reserves the right to later seek a change in the law. A separate judgment will

be entered in accordance with Federal Rule of Civil Procedure 58.

IT IS HEREBY ORDERED, pursuant to Federal Rule of Civil Procedure 57, that

Plaintiffs’ Motion for a Declaratory Judgment finding Mississippi Code section 43-13-117.4 void

is GRANTED.

Case 3:16-cv-00454-DPJ-FKB Document 25 Filed 10/20/16 Page 2 of 2 IT IS FURTHER ORDERED that Defendant, his agents, employees, appointees, delegates, and successors are hereby PERMANENTLY ENJOINED from enforcing, threatening to enforce, or otherwise applying the provisions of Mississippi Code section 43-13-117.4. SO ORDERED AND ADJUDGED this the 20th day of October, 2016.
s/ Daniel P. Jordan III UNITED STATES DISTRICT JUDGE
2

 
 Case: 3:16-cv-454 As of: 07/10/2018 09:01 AM CDT 1 of 4
CLOSED,APPEAL,FKB,NO_CMC
U.S. District Court Southern District of Mississippi (Northern (Jackson)) CIVIL DOCKET FOR CASE #: 3:16−cv−00454−DPJ−FKB

Planned Parenthood Southeast, Inc. et al v. Dzielak Assigned to: District Judge Daniel P. Jordan, III Referred to: Magistrate Judge F. Keith Ball Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 06/15/2016 Date Terminated: 10/20/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Planned Parenthood Southeast, Inc.

represented by Carrie Y. Flaxman − PHV PLANNED PARENTHOOD FEDERATION OF AMERICA − Washington 1110 Vermont Ave., NW, Suite 300 Washington, DC 20005 202/296−4830 Fax: 202/926−3480 Email: carrie.flaxman@ppfa.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Melissa Cohen − PHV PLANNED PARENTHOOD FEDERATION OF AMERICA − New York 123 William Street, 9th Floor New York, NY 10038 212/261−4649 Fax: 212/247−6811 Email: melissa.cohen@ppfa.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Robert B. McDuff THE LAW OFFICE OF ROBERT MCDUFF 767 North Congress Street Jackson, MS 39202 601/969−0802 Fax: 601/969−0804 Email: RBM@McDuffLaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sibyl C. Byrd SIBYL C. BYRD, ATTORNEY AT LAW P. O. Box 16095 Jackson, MS 39236 601/918−5476 Email: attorney.sibyl.byrd@gmail.com ATTORNEY TO BE NOTICED

Plaintiff
Planned Parenthood Greater Memphis Region, Inc.

represented by Carrie Y. Flaxman − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:16-cv-454 As of: 07/10/2018 09:01 AM CDT 2 of 4

Plaintiff Jane Doe
Plaintiff Jane Doe #2

Melissa Cohen − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sibyl C. Byrd (See above for address) ATTORNEY TO BE NOTICED
represented by Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sibyl C. Byrd (See above for address) ATTORNEY TO BE NOTICED
Melissa Cohen − PHV (See above for address) ATTORNEY TO BE NOTICED
represented by Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sibyl C. Byrd (See above for address) ATTORNEY TO BE NOTICED
Melissa Cohen − PHV (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
David J. Dzielak Executive Director, Mississippi Division of Medicaid, in his official capacity

represented by Wilson D. Minor−State Gov MISSISSIPPI ATTORNEY GENERAL'S OFFICE P. O. Box 220 550 High Street (39201) Jackson, MS 39205−0220 601/359−6279 Fax: 601/359−2003 Email: wmino@ago.state.ms.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

ate Filed # Docket Text

Case: 3:16-cv-454 As of: 07/10/2018 09:01 AM CDT 3 of 4

6/15/2016 1 COMPLAINT against David J. Dzielak ( Filing fee $ 400 receipt number 34643039816), filed by Planned Parenthood S Inc., Planned Parenthood Greater Memphis Region, Inc., Jane Doe. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A Bill 2238, # 3 Exhibit B − House Bill 519)(TLC) (Entered: 06/15/2016)

6/15/2016 2 Summons Issued as to David J. Dzielak. (TLC) (Entered: 06/15/2016)

6/15/2016 3 MOTION for Melissa Cohen to Appear Pro Hac Vice by Jane Doe, Planned Parenthood Greater Memphis Region, Inc., Parenthood Southeast, Inc. (Attachments: # 1 Exhibit Ex−A Certificate of good standing)(McDuff, Robert) (Entered: 06/15/2016)

6/15/2016 4 MOTION for Carrie Flaxman to Appear Pro Hac Vice by Jane Doe, Planned Parenthood Greater Memphis Region, Inc. Parenthood Southeast, Inc. (Attachments: # 1 Exhibit Ex. A Certificate of Good Standing)(McDuff, Robert) (Entered: 06/15/2016)

6/15/2016 5 Corporate Disclosure Statement by Jane Doe, Planned Parenthood Greater Memphis Region, Inc., Planned Parenthood Southeast, Inc. (McDuff, Robert) (Entered: 06/15/2016)

6/15/2016 6 MOTION for Protective Order by Jane Doe, Planned Parenthood Greater Memphis Region, Inc., Planned Parenthood S Inc. (Attachments: # 1 Exhibit Ex. A − Declaration of Jane Doe)(McDuff, Robert) (Entered: 06/15/2016)

6/15/2016 7 MEMORANDUM in Support re 6 MOTION for Protective Order filed by Jane Doe, Planned Parenthood Greater Memp Region, Inc., Planned Parenthood Southeast, Inc. (Attachments: # 1 Exhibit Ex. A − Past Protective Orders)(McDuff, R (Entered: 06/15/2016)

6/16/2016 8 SUMMONS Returned Executed by Planned Parenthood Southeast, Inc., Planned Parenthood Greater Memphis Region, Jane Doe David J. Dzielak served on 6/15/2016, answer due 7/6/2016. (McDuff, Robert) (Entered: 06/16/2016)

6/20/2016 9 ORDER granting 6 Motion for Protective Order. Signed by Magistrate Judge F. Keith Ball on 6/17/2016. (JRB) (Entere 06/20/2016)

6/21/2016 10 Sealed Document. (TLC) (Entered: 06/21/2016)

6/28/2016

TEXT−ONLY ORDER granting 3 Motion to Appear Pro Hac Vice; granting 4 Motion to Appear Pro Hac Vice. That M Cohen and Carrie Flaxman be admitted pro hac vice in this case on behalf of the plaintiffs in association with local coun upon registration for electronic filing as required by the Court. No further written order shall issue from the Court. Sign Magistrate Judge F. Keith Ball on 6/28/2016. (JEJ) (Entered: 06/28/2016)

7/06/2016 11 AMENDED COMPLAINT against All Defendants, filed by Planned Parenthood Southeast, Inc., Planned Parenthood G Memphis Region, Inc., Jane Doe.(Cohen − PHV, Melissa) (Entered: 07/06/2016)

7/06/2016 12 MOTION for Protective Order Unopposed Motion to Amend Protective Order by Jane Doe, Planned Parenthood Greate Memphis Region, Inc., Planned Parenthood Southeast, Inc. (Attachments: # 1 Exhibit A − Decl. of Jane Doe #2)(Cohen Melissa) (Entered: 07/06/2016)

7/07/2016 13 MOTION for Summary Judgment by Jane Doe, Planned Parenthood Greater Memphis Region, Inc., Planned Parenthoo Southeast, Inc. (Attachments: # 1 Exhibit A − Fox Decl., # 2 Exhibit B − Coffield Decl.)(Cohen − PHV, Melissa) (Ente 07/07/2016)

7/07/2016 14 MEMORANDUM IN SUPPORT re 13 MOTION for Summary Judgment filed by Jane Doe, Planned Parenthood Great Memphis Region, Inc., Planned Parenthood Southeast, Inc. (Attachments: # 1 Exhibit A − Ark. PI Order)(Cohen − PHV Melissa) (Entered: 07/07/2016)

7/08/2016 15 AMENDED PROTECTIVE ORDER granting 12 Motion for Protective Order. Signed by Magistrate Judge F. Keith Ba 7/8/2016. (JRB) (Entered: 07/08/2016)

7/11/2016 16 Sealed Document. (TLC) (Entered: 07/12/2016)

7/20/2016 17 ANSWER to 11 Amended Complaint by David J. Dzielak.(Minor, Wilson) (Entered: 07/20/2016)

7/22/2016 18 MEMORANDUM in Opposition re 13 MOTION for Summary Judgment filed by David J. Dzielak (Minor, Wilson) (E 07/22/2016)

7/29/2016 19 REPLY to Response to Motion re 13 MOTION for Summary Judgment filed by Jane Doe, Planned Parenthood Greater Memphis Region, Inc., Planned Parenthood Southeast, Inc. (Cohen − PHV, Melissa) (Entered: 07/29/2016)

8/19/2016 20 Rule 16(a) Initial Order Telephonic Case Management Conference set for 9/8/2016 03:00 PM before Magistrate Judge F Ball. No later than seven (7) days prior to the TCMC, a confidential memorandum AND a proposed Case Management shall be submitted via e−mail to ball_chambers@mssd.uscourts.gov. Counsel for Plaintiff shall set up the conference an the Court at 601−608−4460. (JEJ) (Entered: 08/19/2016)

Case: 3:16-cv-454 As of: 07/10/2018 09:01 AM CDT 4 of 4

8/29/2016 21 Unopposed MOTION to Stay Proceedings Rule 16(a) Initial Order by Jane Doe, Planned Parenthood Greater Memphis Inc., Planned Parenthood Southeast, Inc. (McDuff, Robert) (Entered: 08/29/2016)

9/01/2016

TEXT−ONLY ORDER granting 21 Motion to Stay Rule 16(a) Initial Order. The telephonic case management conferen matter is continued, to be reset after the Court's ruling on Plaintiffs' pending motion for summary judgment 13 . NO FU WRITTEN ORDER SHALL ISSUE. Signed by Magistrate Judge F. Keith Ball on 9/1/2016. (JRB) (Entered: 09/01/201

9/19/2016 22 MEMORANDUM in Support re 13 MOTION for Summary Judgment Notice of Supplemental Authority filed by Jane D Planned Parenthood Greater Memphis Region, Inc., Planned Parenthood Southeast, Inc. (Cohen − PHV, Melissa) (Ente 09/19/2016)

0/12/2016 23 ORDER: As set out in the Order, Defendant is given seven (7) days from the date of this Order to respond. The Court w consider failure to respond as conceding that Gee entitles Plaintiffs to summary judgment. Signed by District Judge Dan Jordan III on October 12, 2016.(SP) (Entered: 10/12/2016)

0/19/2016 24 Response to Order re 23 ORDER: As set out in the Order, Defendant is given seven (7) days from the date of this Order respond. The Court will consider failure to respond as conceding that Gee entitles Plaintiffs to summary judgment. Sign District Judge Daniel P. Jordan III on October 12, 2016.(SP) filed by David J. Dzielak (Minor−State Gov, Wilson) (Ent 10/19/2016)

0/20/2016 25 ORDER granting 13 Motion for Summary Judgment. Signed by District Judge Daniel P. Jordan, III on 10/20/16. (TLC) (Entered: 10/20/2016)

0/20/2016 26 FINAL JUDGMENT dismissing case in favor of Plaintiffs and against Defendant. Signed by District Judge Daniel P. Jo on 10/20/16. (TLC) (Entered: 10/20/2016)

1/02/2016 27 MOTION to Extend Attorneys' Fees Deadline by Jane Doe, Planned Parenthood Greater Memphis Region, Inc., Planne Parenthood Southeast, Inc. (Cohen − PHV, Melissa) (Entered: 11/02/2016)

1/02/2016

TEXT−ONLY ORDER granting 27 Unopposed Motion to Extend Deadline. Motion due December 5, 2016. NO FURT WRITTEN ORDER SHALL ISSUE FROM THE COURT. Signed by District Judge Daniel P. Jordan, III on November (HF) (Entered: 11/02/2016)

1/18/2016 28 NOTICE OF APPEAL as to 26 Judgment by David J. Dzielak. Filing fee $ 505, receipt number 34643042255. (TLC) (E 11/18/2016)

1/21/2016 29 BILL OF COSTS by Jane Doe, Planned Parenthood Greater Memphis Region, Inc., Planned Parenthood Southeast, Inc. − PHV, Melissa) (Entered: 11/21/2016)

2/02/2016 30 Unopposed MOTION to Stay Proceedings by Jane Doe, Planned Parenthood Greater Memphis Region, Inc., Planned Pa Southeast, Inc. (Cohen − PHV, Melissa) (Entered: 12/02/2016)

2/06/2016 31 Costs Taxed in amount of $ 400.00 against David J. Dzielak (ASJ) (Entered: 12/06/2016)

2/06/2016

TEXT−ONLY ORDER granting 30 Unopposed Motion to Stay Proceedings. This Order stays the deadline for Plaintiffs motion for attorney's fees and expenses under Rule 54(d)(2) until Defendants appeal is resolved. NO FURTHER WRIT ORDER SHALL ISSUE FROM THE COURT. Signed by District Judge Daniel P. Jordan, III on December 6, 2016 (HF (Entered: 12/06/2016)

2/14/2016

ELECTRONIC RECORD ON APPEAL ACCEPTED : The Court of Appeals has accepted the Electronic Record on Ap it is available for attorney access and download at http://http://www.ca5.uscourts.gov/docs/default−source/forms/instructions−for−electronic−record−download−feature−o using credentials provided to you by the Clerk of that Court. (TLC) (Entered: 12/14/2016)

2/16/2017 32 ORDER of USCA as to 28 Notice of Appeal filed by David J. Dzielak granting joint motion to stay further proceedings (Attachments: # 1 Memorandum to Counsel).(TLC) (Entered: 02/16/2017)