Case 4:15-cv-00566-KGB Document 1 Filed 09/11/15 Page 1 of 14

IN THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS

PLANNED PARENTHOOD ARKANSAS & EASTERN OKLAHOMA, d/b/a PLANNED PARENTHOOD OF THE HEARTLAND; JANE DOE #1; JANE DOE #2; and JANE DOE #3,

Plaintiffs,

v.

JOHN SELIG, Director, Arkansas Department of Human Services, in his Official Capacity,
Defendant.

Distric~ ~ This case assigned to

and to Magistrate Judge

/~

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Plaintiffs, by and through their attorneys, bring this Complaint against the above-named Defendant and his employees, agents, delegates, and successors in office, in their official capacity, and in support thereof state the following:
INTRODUCTORY STATEMENT 1. This civil action is brought pursuant to 42 U.S.C. § 1983 to vindicate rights secured by the federal Medicaid statutes, as well as the U.S. Constitution. 2. Plaintiff Planned Parenthood Arkansas & Eastern Oklahoma, d/b/a Planned Parenthood of the Heartland ("PPH"), provides critically needed family planning and preventive health services to hundreds of women and men in underserved Pulaski County (where PPH's Little Rock health center is located) and Washington County (where PPH's Fayetteville health center is located) through the Medicaid program.

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3. As is required by federal law, Medicaid enrollees may seek family planning and other preventive health services from a participating provider of their choice and have those services covered by Medicaid. Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3 are such women - patients of PPH who are enrolled in Medicaid and who prefer PPH to other Medicaid providers. Arkansas Medicaid does not pay for abortions except in extremely narrow circumstances, and Medicaid reimbursement for abortion is not at issue in this litigation.
4. On August 14, 2015, without giving any warning or expressing any previous concerns about PPH' s participation in the Medicaid program, Defendant John Selig, Director of the Arkansas Department of Human Services ("DHS"), notified PPH that DHS was terminating PPH's Medicaid provider agreements, effective 30 days after the date of the notice. While the notice gave no reason for the termination, Governor Asa Hutchinson issued a press release the same day, stating he had directed DHS to terminate the agreements and giving as the sole reason that "[i]t is apparent after the recent revelations on the actions of Planned Parenthood that this organization does not represent the values of the people of our state and Arkansas is better served by terminating any and all existing contracts with them." Press Release, Ark. Governor Asa Hutchinson, Governor Asa Hutchinson Directs DHS to End Contract with Planned Parenthood (Aug. 14, 2015), http://governor.arkansas.gov/press-releases/detail/governor-asa-hutchinsondirects-dhs-to-end-contract-with-planned-parenthood. The reference to "recent revelations" appears to relate to heavily edited and misleading videos that have been released by opponents of Planned Parenthood, making claims about other Planned Parenthood providers' abortion practices in other states. Notably, nothing in Governor Hutchinson's press release relates to the quality of Medicaid services provided by PPH.
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5. Plaintiffs seek declaratory and injunctive relief to protect PPH's patients' access to - and PPH's own ability to provide - these critical medical services. Defendant's actions violate Section 1396a(a)(23) of Title 42 of the United States Code ("Medicaid Freedom of Choice Provision") because, by barring PPH from the Medicaid program, it prevents PPH' s patients, including Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3, from receiving services from the qualified, willing provider of their choice. Defendant's actions further impermissibly penalize Plaintiffs without adequate justification, in violation of the First and Fourteenth Amendments.
6. Unless enjoined, the termination of PPH's Medicaid provider agreements will take effect on September 13, 2015, disqualifying PPH from providing basic and preventive health care services to the women, men, and teens who depend on that care. Defendant's actions will cause significant and irreparable harm to PPH and to its Medicaid patients, including Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3, who will lose their provider of choice, will find their family planning services interrupted, and will be left with few or no adequate alternative providers.
JURISDICTION AND VENUE 7. Subject-matter jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 and 1343. 8. Plaintiffs' claims for d~claratory and injunctive relief are authorized by 28 U.S.C. §§ 2201and2202, 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.
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THE PARTIES A. Plaintiffs
10. Plaintiff Planned Parenthood of Arkansas & Eastern Oklahoma, doing business as Planned Parenthood of the Heartland, ("PPH"), is an Arkansas not-for-profit corporation headquartered in Iowa and licensed to do business in Arkansas and is a wholly-owned subsidiary of Planned Parenthood of the Heartland. PPH brings this action on behalf of itself and its Arkansas patients.
11. PPH (or predecessor organizations) have provided high quality reproductive health care in Arkansas for more than thirty years. PPH operates two health centers in Arkansas, one in Little Rock and one in Fayetteville, and participates in the Medicaid program, providing medical services to low-income enrollees in both communities. The family planning and other preventive health services provided by PPH at these and its other health centers include contraception and contraceptive counseling; physical exams; screening for breast cancer; screening and treatment for cervical cancer; testing and treatment for certain sexually transmitted infections ("STis"); pregnancy testing and counseling; men's health services; and general health services including smoking cessation and screening for diabetes, high cholesterol, high blood pressure, and anemia.
12. PPH also operates a pharmacy that serves patients in Arkansas. Through this service patients, including patients insured through Medicaid, are able to have their contraception prescriptions automatically refilled and mailed to their homes every month.
13. In fiscal year (FY) 2015, PPH provided more than 1,000 health care visits and filed more than 1, 100 prescriptions for over 500 women, men and teens insured through Medicaid in Little Rock and Fayetteville. In FY 2014, the numbers were even higher - more
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than 1600 health care visits and 2,600 prescriptions, for over 1,100 women, men and teens insured through Medicaid in Little Rock and Fayetteville.
14. During FY 2015, PPH provided over 100 well woman exams (which include breast exams), nearly 100 pap smears, over 350 visits to screen for STis, and over 450 visits for long acting reversible contraceptives ("LARCs") and injectable contraceptives to its Medicaid patients. During FY 2014, PPH provided over 250 well woman exams, 180 pap smears, 600 visits to screen for STis, and 750 visits for LARCs and injectable contraceptives to its Medicaid patients.
15. PPH also provides abortions at some of its health centers. At its Arkansas health centers, PPH offers only early medication abortions, but Arkansas Medicaid does not cover these services in virtually all circumstances, and Medicaid payment for abortion is not at issue in this case.
16. Plaintiff Jane Doe #1, an Arkansas resident and Medicaid patient, obtains her reproductive health care at PPH's Little Rock health center and desires to continue to do so.
17. Plaintiff Jane Doe #2, an Arkansas resident and Medicaid patient, obtains her reproductive health care at PPH's Little Rock health center and desires to continue to do so.
18. Plaintiff Jane Doe #3, an Arkansas resident and Medicaid patient, obtains her reproductive health care at PPH's Little Rock health center and desires to continue to do so.
19. Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3 appear pseudonymously because of the private and personal nature of the medical care that they receive at PPH and their desire not to have that information become public in order for them to assert their legal rights.
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B. Defendant 20. Defendant John Selig is the Director of DHS. DHS is the agency that administers
Arkansas's state Medicaid program and has notified PPH that it intends to terminate its provider agreements. Defendant Selig is sued in his official capacity, as are his employees, agents, and successors in office.
THE MEDICAID PROGRAM A. The Medicaid Statute
21. 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)(l )-(83).
22. 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).
23. 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).
24. 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
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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).
25. The federal government reimburses the state of Arkansas 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
26. 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 chooses to offer.
27. CMS has 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.
28. Consistent with this understanding, CMS has a long history ofrejecting state plans that seek to limit the type of provider that can provide particular services. See, e.g., 53 Fed. Reg. 8699 (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").
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29. More recently, 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/PPMl 69_110601 _indiana_letter.html.
30. Moreover, even though CMS is permitted to waive§ 1396a(a)(23) in demonstration projects approved under Social Security Act§ 1115, CMS repeatedly rejects state requests to do so for family planning services, including twice in the last year: first in Pennsylvania, see Letter from Marilyn Tavenner, Adm'r, CMS, to Beverly Mackereth, Sec'y, Pa. Dep't of Public Welfare (Aug. 28, 2014), http://www.medicaid.gov/Medicaid-CHIP-ProgramInformation/By-Topics/Waivers/1115/downloads/pa/pa-healthy-ca.pdf ("No waiver of freedom of choice is authorized for family planning providers."); and more recently in Iowa, see 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/Medicaid-CHIP-Program-Information/ByTopics/Waivers/1115/downloads/ia/ia-marketplace-choice-plan-ca.pdf ("No waiver of freedom of choice is authorized for family planning providers.").
HUTCHINSON ADMINISTRATION'S EFFORTS TO EXCLUDE PPH 31. On August 14, without prior notice, Defendant notified PPH that it was terminating PPH's provider agreements, to be effective in 30 days, on September 13, 2015. 32. Because of previously scheduled staff training and clinician vacation, the first day after September 13 that patients insured through the Medicaid program are scheduled to be seen at one of PPH's Arkansas health centers is September 21, 2015. Therefore, absent an injunction,
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patients insured through the Medicaid program who choose to get family planning and other health care services at PPH will lose access to those services on September 21, 2015.
33. Defendant's letter provided no reason for the termination of PPH's agreements. However, that same day, Governor Hutchinson issued a press release stating he had directed DHS to terminate the agreements and giving as the sole reason that "[i]t is apparent after the recent revelations on the actions of Planned Parenthood that this organization does not represent the values of the people of our state and Arkansas is better served by terminating any and all existing contracts with them." Press Release, Ark. Governor Asa Hutchinson. The reference to "recent revelations" appears to relate to heavily edited and misleading videos that have been released by opponents of Planned Parenthood, making claims about the practices of a small number of Planned Parenthood affiliates that allow patients at some health centers to donate fetal tissue following an abortion in order to advance medical research. While all Planned Parenthood affiliates comply with all federal and state laws, PPH does not participate in any fetal tissue donation (in Arkansas or elsewhere), and does not appear in any of the videos.
34. CMS has advised Defendant that his actions to terminate PPH's provider agreements likely violate the Medicaid freedom of choice provision.
THE IMPACT OF DEFENDANT'S ACTIONS ON PPH AND ITS PATIENTS 35. The need for publicly supported family planning services is great in Arkansas, which regularly ranks among the worst states for reproductive care. In 2010, 55% of pregnancies in Arkansas were unintended. Guttmacher Inst., State Facts About Unintended Pregnancy: Arkansas (2014), https://www.guttmacher.org/statecenter/unintendedpregnancy/pdf/AR.pdf (hereafter "State Facts: Arkansas"). The state is tied for the third highest teen pregnancy rate among the 50 states. Kathryn Kost & Stanley Henshaw, Guttmacher Inst.,
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U.S. Teenage Pregnancies, Births and Abortions, 2010: National and State Trends by Age, Race and Ethnicity 4 (2014), http://www.guttmacher.org/pubs/USTPtrendslO.pdf. 72% of Arkansas's unplanned births are publicly funded, which is higher than the national average of 68%. State Facts: Arkansas. Moreover, Arkansas has high rates of STis: the state ranks second in congenital syphilis, eighth in chlamydia, tenth in primary and secondary syphilis, and eleventh in gonorrhea. Ctrs. for Disease Control and Prevention, Sexually Transmitted Disease Surveillance 2013 79, 91, 105, 122 (2014), http://www.cdc.gov/std/stats13/surv2013print.pdf.
36. In Arkansas in 2010, an estimated 317,720 women needed contraceptive services and supplies. Of these, 62%- 198,090 women - needed publicly supported services. Guttmacher Inst., Contraceptive Needs and Services, 2010: County Data for Arkansas (2014), http://www.guttmacher.org/pubs/win/counties/pdf/WIN-2010-Arkansas.pdf. In Pulaski County alone (where PPH's Little Rock health center is located), an estimated 47,700 women needed contraceptive services and supplies in 2010, of which 26,390 (55%) needed publicly supported services. Id.
37. If Defendant's actions take effect, many of PPH's Medicaid patients in Little Rock and Fayetteville, who already have few or no alternative options, will find it difficult or impossible to access the reproductive and other health care services they need. Those who are able to find other providers will often have to wait unacceptable periods of time for an appointment. Those who are unable to find an adequate alternative will not receive the medical services they need, which will lead to higher rates of unintended pregnancies, STis, and undiagnosed cancers.
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38. Other Medicaid providers in Little Rock and Fayetteville are already stretched to the breaking point, even with PPH providing care. It is very difficult to locate a private ob/gyn who will take a Medicaid patient who is not pregnant, and the ones that will often have wait times of several months. At both community health centers and private ob/gyns, even if a patient can obtain an appointment, she may be unable to obtain (either at all, or without significant delays) the full range of FDA-approved contraceptives, including IUDs and Depo Provera, which are the most effective forms of birth control. Indeed, other Medicaid providers sometimes refer their patients to PPH's health centers for these services. Other clinics are difficult for PPH's low-income patients to travel to.
39. If PPH is forced to stop providing care through the Medicaid program, a dire situation will become critical. The remaining providers will be simply unable to absorb PPH' s patients, leaving those patients without access to crucial medical services.
40. Even if other providers were available, patients insured through Medicaid choose PPH based on a number of factors that are generally not available at other providers. With its evidence-based practices and up-to-date technology, PPH is known as a provider of high-quality, compassionate medical care. Many individuals who receive some health care elsewhere choose PPH for their reproductive health care because they are concerned about their privacy and because they 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 help these patients get access to family planning and other services, PPH offers its full range of services to walk-in patients. This flexibility is especially important for patients receiving Depo-Provera injections (which must be given every
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ninety days), or starting a new form of birth control, as well as for patients who are having symptoms that make them concerned. PPH gets walk-in patients every day. In addition, PPH spaces patient appointments so as to minimize wait times. PPH's health centers often have Spanish-speaking staff available for patients, and have translator services in a wide range of languages available to non-English speaking patients at all times.
42. PPH's pharmacy services are similarly set up to minimize logistical burdens so that patients have convenient access to their birth control medications. PPH's pharmacy service gives patients, including Medicaid patients, an easy way to have their prescriptions automatically refilled every month and delivered by mail, so the new prescription is waiting in the mail when the patient needs it.
43. Defendant's actions will deprive all of PPH's Medicaid patients, including Plaintiffs Jane Doe #1, #2, and #3, of access to the high-quality, specialized care that PPH provides.
44. All three individual Plaintiffs rely on PPH as the place they can turn to for critical medical care and for prompt, efficient, and compassionate services. If PPH is eliminated from Medicaid, they will be prevented from receiving services through the Medicaid program from their provider of choice, will have their health care interrupted, and may encounter difficulties finding alternative care.
45. Without Medicaid reimbursements, PPH may be unable to continue to provide services in the same manner and may be forced to lay off staff members and/or reduce hours at one or both health centers. Further, if PPH's termination from the Medicaid program is allowed to take effect for some period of time and it then is later allowed to become a Medicaid provider again, some patients will remain confused about whether PPH is a Medicaid provider in good
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standing, and therefore will not return as patients. For these reasons, should PPH be allowed back as a Medicaid provider, it would be very difficult - if not impossible - for PPH to resume its operations as they are today. If PPH reduces hours at its health centers, this will affect not only its Medicaid patients, but all of its patients.
CLAIMS FOR RELIEF CLAIM I - MEDICAID ACT (TITLE XIX OF SOCIAL SECURITY ACT) 46. Plaintiffs hereby incorporate Paragraphs 1 through 44 above. 47. Defendant's action violates Section 1396a(a)(23) of Title 42 of the United States Code by denying PPH's patients, including the Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3, the right to choose any willing, qualified healthcare provider in the Medicaid program. CLAIM II - FIRST AND FOURTEENTH AMENDMENTS - PENALIZING
CONSTITUTIONALLY PROTECTED ACTIVITY 48. Plaintiffs hereby incorporate Paragraphs 1 through 44 above. 49. Defendant's action penalizes Plaintiffs for their constitutionally protected association with Planned Parenthood and/or abortion, without adequate justification.
CLAIM III - FOURTEENTH AMENDMENT EQUAL PROTECTION 50. Plaintiffs hereby incorporate Paragraphs 1 through 44 above. 51. Defendant's action violates Plaintiffs' rights by singling them out for unfavorable treatment without adequate justification.
RELIEF REQUESTED WHEREFORE, Plaintiffs request that this Court:
52. Issue a declaratory judgment that Defendant's action violates the Medicaid Act; 53. Issue a declaratory judgment that Defendant's action violates the First and Fourteenth Amendments;
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54. Issue preliminary and permanent injunctive relief, without bond, enjoining Defendant, his agents, employees, appointees, delegates, or successors from excluding PPH as a Medicaid provider;
55. Grant Plaintiffs attorneys' fees, costs and expenses pursuant to 42 U.S.C. § 1988; and
56. Grant such further relief as this Court deems just and proper.
Dated: September 11, 2015
Bettina E. Brownstein (85019) Bettina E. Brownstein Law Firm 904 West Second Street Little Rock, Arkansas 72201 501-920-1764 bettinabrownstein@gmail.com On Behalf of The Arkansas Civil Liberties Union Foundation Jennifer Sandman* PLANNED PARENTHOOD FEDERATION OF AMERICA 434 West 33rd Street New York, NY 10001 (212) 261-4584 j ennifer.sandman@ppfa.org Attorneys for the Plaintiffs Pro hac vice motion to be filed
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 Case 4:15-cv-00566-KGB Document 45 Filed 10/05/15 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

PLANNED PARENTHOOD ARKANSAS & EASTERN OKLAHOMA, d/b/a PLANNED PARENTHOOD OF THE HEARTLAND; JANE DOE #1; JANE DOE #2; and JANE DOE #3

PLAINTIFFS

v.

Case No. 4:15-cv-00566-KGB

JOHN M. SELIG, DIRECTOR, ARKANSAS DEPARTMENT OF HUMAN SERVICES, in his official capacity

DEFENDANT

AMENDED AND SUBSTITUTED PRELIMINARY INJUNCTION ORDER1

Before the Court is the motion for temporary restraining order and preliminary injunction

filed by plaintiffs Planned Parenthood of Arkansas & Eastern Oklahoma, d/b/a Planned

Parenthood of the Heartland (“PPH”) and Jane Doe #1, Jane Doe #2, and Jane Doe #3 (“Jane

Does”) (Dkt. No. 3). Currently before the Court is a request by PPH and the Jane Does for a

preliminary injunction, extending the temporary restraining order this Court previously entered

against Defendant John Selig, Director of the Arkansas Department of Human Services in his

official capacity (“ADHS”) (Dkt. No. 21).

Since entry of the temporary restraining order on September 18, 2015, PPH, the Jane

Does, and ADHS have submitted to the Court additional briefing and evidentiary material (Dkt.

Nos. 26, 27, 30, 35, 36, 37 38, 39, 40, 41). Included in those submissions are PPH and the Jane

Does’ motion to strike (Dkt. No. 27), to which ADHS has responded (Dkt. No. 38), and ADHS’s

motion to strike (Dkt. No. 30), to which PPH and the Jane Does have responded (Dkt. No. 41).

1 The findings of fact and conclusions of law in this Amended and Substituted Order have not changed from the Preliminary Injunction Order (Dkt No. 44). The Court issues this Order to correct certain typographical errors only.

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The Court denies the motions to strike (Dkt. Nos. 27, 30) and grants the Jane Does a preliminary injunction.
I. Motions To Strike PPH and the Jane Does have filed a motion to strike (Dkt. No. 27). They move this Court pursuant to Federal Rules of Evidence 402 and 802 to strike Exhibits 2, 3, and 4 from ADHS’s response to PPH and the Jane Does’ motion for preliminary injunction (Dkt. Nos. 16-3, 16-4, and 16-5) and to strike Exhibit F to, and all references therefore in, the Affidavit of Mark White (Dkt. Nos. 16-1, 19). ADHS has filed a motion to strike (Dkt. No. 30). ADHS moves pursuant to Federal Rule of Evidence 602 to strike specific portions of Suzanna de Baca’s declarations claiming that Ms. de Baca does not have the personal knowledge necessary to testify to the statements cited (Dkt. No. 30, at 1). PPH and the Jane Does, as well as ADHS, cite this Court to numerous cases for the proposition that, in preliminary relief proceedings, evidentiary requirements are less formal than at trial. PPH and the Jane Does claim that, because a preliminary injunction request “often requires an expeditious hearing and decision,” creating problems “in attempting to gather the necessary witnesses,” courts may consider reliable hearsay evidence in lieu of testimony from multiple witnesses. Wounded Knee Legal Def./Offense Comm. v. Fed. Bureau of Investigation, 507 F.2d 1281, 1286-87 (8th Cir. 1974). ADHS also takes the position that hearsay evidence is frequently admitted and that an objection to hearsay evidence offered at the preliminary injunction hearing goes to its weight, not its admissibility (Dkt. No. 38, at 2). See, e.g., U.S. v. $8,440,190.00 in U.S. Currency, 719 F.3d 49, 65 n.17 (1st Cir. 2013) (citing Mullins v. City of New York, 626 F.3d 476, 52 (2d Cir. 2010)); Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 718
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(3d Cir. 2004); Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984); Monterey Bay Military Hous., LLC v. Pinnacle Monterey LLC, No. 14-cv-03953-BLF, 2015 WL 1548833, at *11 n.14 (N.D. Cal. Apr. 7, 2015); Damon’s Restaurants, Inc. v. Eileen K., Inc., 461 F.Supp.2d 607, 620 (S.D. Ohio 2006); Heidelberg Harris, Inc. v. Mitsubishi Heavy Industries, Ltd., 1996 WL 189398 (N.D. Ill. 1996); V’Guara, Inc. v. Dec, 925 F.Supp.2d 1120, 1123 (D. Nev. 2013). The Court will consider all of the challenged evidence at this stage of the proceeding, based upon what the parties agree is the controlling evidentiary standard at this juncture of the litigation. The Court denies the motions to strike at this time (Dkt. Nos. 27, 30).
II. Findings Of Fact 1. PPH operates health centers in Little Rock, Arkansas, and Fayetteville, Arkansas, and has done so for over 30 years. 2. These centers provide family planning services to men and women, including contraception and contraceptive counseling, screening for breast and cervical cancer, pregnancy testing and counseling, and early medication abortion. 3. PPH states that, at its Arkansas health centers, PPH offers only early medication abortions, services that Arkansas Medicaid does not cover in virtually all circumstances (Dkt. No. 12, ¶ 17). 4. PPH and the Jane Does also represent that Medicaid payment for abortion is not at issue in this case (Dkt. No. 12, ¶ 17). 5. PPH also operates a pharmacy that serves Arkansas residents which allows patients to have their birth control prescriptions automatically refilled.
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6. During the 2015 fiscal year, PPH represents that it provided approximately 1,000 health care visits and filled more than 1,100 prescriptions, for over 500 women, men, and teens insured through Medicaid in Little Rock and Fayetteville, Arkansas.
7. In 2014, almost 40% of PPH’s Little Rock, Arkansas, patients, and 15% of its Fayetteville, Arkansas, patients were insured through Medicaid, according to PPH.
8. Plaintiffs Jane Does are patients of PPH who receive their care through the Medicaid program.
9. Jane Doe #1 is 26 years old and resides in Little Rock, Arkansas (Dkt. No. 3, at 14, ¶ 1). She has three children, is a member of the National Guard, and is insured through Medicaid (Id., ¶ 2).
10. She has been a patient of PPH for about three years. She receives annual exams, testing for sexually transmitted infections, and birth control (Id., ¶ 3). She goes to PPH every 90 days for Depo-Provera injections (Id.).
11. She also goes to PPH if she has any symptoms that she is concerned about or questions about her body (Id.). She does not have a doctor she uses for general health care; she uses PPH (Dkt. No. 3, at 15, ¶ 5).
12. Jane Doe #1 states that, if she is unable to obtain birth control and other healthcare at PPH, she will have to go back to a provider she likes less and that will have longer wait times. She also believes she might have to stop using Depo-Provera as her birth control method of choice because she worries about the difficulty in scheduling an appointment every 90 days. She does not like that option because she likes her current method of birth control and worries about side effects and effectiveness of other methods (Id., ¶ 7).
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13. Jane Doe #2 is 30 years old, resides in Jacksonville, Arkansas, and is a PPH patient (Dkt. No. 3, at 17, ¶ 1). She is insured through Medicaid (Id., ¶ 2).
14. She has a son who is 13, and she works part-time as a cashier (Id.). 15. She goes to PPH for annual exams, including breast and pelvic exams, and to receive Depo-Provera injections (Id., ¶3). She has a strong preference for Depo-Provera as her birth control of choice because it is reliable and because, before she used it, she often had migraines and heavy cramping with her period, causing her to miss work and school (Id.). 16. Jane Doe #2 states that she wants to remain with PPH as her provider (Dkt. No. 3, at 18, ¶ 6) 17. Jane Doe #3 is 26 years old and lives in Little Rock, Arkansas. She is a patient of PPH (Dkt. No. 3, at 19, ¶1). She is insured through Medicaid (Id., ¶2). The Court recognizes that there seem to be billing discrepancies based upon the services that Jane Doe #3 claims she received, and the services that ADHS has in its billing records (Dkt. No. 40). At this stage in the proceeding, the Court finds it prudent to credit the testimony in Jane Doe #3’s affidavit. 18. She has a 2 year old son and works for a family business (Id.). 19. She relies on PPH for an annual physical, breast exams, and birth control (Id., ¶3). She is using a form of birth control for help with severe cramps and a history of ovarian cysts. She reports that PPH assisted her in finding this solution, which has worked well for her (Id.). 20. Jane Doe #3 likes that PPH specializes in reproductive health, she trusts the information and advice she receives, and she likes the atmosphere and treatment she receives. She likes that the office is convenient and that there is never a long wait for her at PPH (Dkt. No. 3, at 20, ¶4).
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21. Jane Doe # 3 enrolled in Medicaid specifically to get good access to birth control, due to her life circumstances right now. She also understands the importance of regular exams and wants to continue them. She has only started obtaining regular exams since enrolling in Medicaid because she could not afford these services out of pocket before (Id., ¶¶5 ̶ 6).
22. Jane Doe #3 reports that PPH is her only medical provider; she does not have a general physician (Id.).
23. Jane Doe # 3 wants to continue with PPH as her provider but could not do so if PPH no longer accepts Medicaid. She worries about where she will go or what she will do if she is unable to utilize the services of PPH (Id., ¶7).
24. All three of the Jane Does claim that for a variety of the following reasons, they choose PPH because it is convenient, they are able to obtain appointments quickly, they obtain test results quickly and reliably, they like the atmosphere and staff, they like that they receive the information they need, and they like the services they can receive as a walk-in patient, especially given their time commitments to children, inflexible work schedules, and other responsibilities that make it difficult to schedule appointments at a set time (Dkt. No. 3, at 1 ̶ 20).
25. Before choosing PPH, Jane Doe #1 and Jane Doe #2 tried to obtain healthcare in other ways. With a private provider, Jane Doe #1 found the wait times long for an appointment and recalls being referred to the emergency room or offered an appointment in three to four weeks when she called concerned about symptoms (Dkt. No. 3, at 15, ¶ 6). With a county health clinic, Jane Doe #1 recalls wait times of three or four weeks and bad experiences with unpleasant, not helpful staff members (Id.). Jane Doe #2 recalls long wait times and several weeks from calling to get an appointment. Although she acknowledges other providers take patients on a walk-in basis, the wait times were even longer (Dkt. No. 3, at 18, ¶ 5).
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26. The Arkansas Department of Health’s own documents reflect that long wait times and delays in scheduling appointments are commonplace among county health clinics that offer family planning services and other preventative care. (Dkt. Nos. 26-5, 26-6).
27. ADHS, through its director Mr. Selig, notified PPH on August 14, 2015, that ADHS was terminating its Medicaid provider agreements, effective 30 days from the date of the letter (Dkt. No.16-1, at 19).
28. Mark White, Deputy Director of ADHS, who supervises the Division of Medical Services which administers Arkansas’s Medicaid Program, states that “at Governor Asa Hutchinson’s directive, DHS Director John Selig gave written notice that DHS would terminate the three (3) PPH provider agreements in 30 days, exercising its rights to do so under the ‘voluntary’ termination provision (Section III.A) of said agreements.” (Dkt. No. 16-1, ¶5).
29. Arkansas Governor Asa Hutchinson issued a press release on August 14, 2014, the day the termination letter was sent to PPH. Governor Hutchinson states that he directed ADHS to terminate the agreements because “[i]t is apparent that after the recent revelations on the actions of Planned Parenthood, that this organization does not represent the values of the people of our state and Arkansas is better served by terminating any and all existing contracts with them.” (Dkt. No. 12, ¶ 35).
30. The August 14, 2015, letter provided directions on how PPH could administratively appeal the termination (Dkt. No. 16-1, ¶6).
30(a). Mr. White states, “[a]fter the letter was issued, the Governor directed DHS to review the videos released by the Center for Medical Progress.” (Dkt. No. 16-1, ¶9).
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31. Mr. White states that he reviewed the first seven (7) of the eight (8) videos that were available at that time on behalf of DHS and made several observations (Dkt. No. 16-1, ¶ 10).
32. Mr. White states that “[t]he videos appear to demonstrate that Planned Parenthood and/or its affiliates have violated American Medical Association Guidelines, as well as the federal ban on partial birth abortions (18 U.S.C. § 1531), the Born-Alive Infants Protection Act of 2002 (1 U.S.C. § 8), the federal ban on transferring human fetal tissue for valuable consideration (42 U.S.C. § 289g-2), and other federal and state laws.” (Dkt. No. 16-1, ¶ 13).
33. The transfer of fetal tissue is against Arkansas law. See Ark. Code Ann. § 20-17802.
34. The videos do not depict any representatives of PPH. 35. The videos include no statements from representatives of PPH. 36. The videos do not discuss any conduct by any PPH medical provider. 37. Mr. White states that, on September 1, 2015, he issued a second notice of termination to PPH “acting under the ‘for cause’ termination provision (Section III.C) of the three (3) provider agreements.” (Dkt. No. 16-1, ¶ 16). 38. Mr. White makes clear that, although he believes his authority would permit him to terminate immediately PPH as a provider under the for cause termination provision, ADHS “delayed the effective date to coincide with that of the first letter.” (Dkt. No. 16-1, ¶ 16). 39. This second letter states that it “is based in part upon the troubling circumstances and activities that have recently come to light regarding the national Planned Parenthood organization, Planned Parenthood of the Heartland, and other affiliated Planned Parenthood entities, all of which are affiliated with [PPH],” and that “there is evidence that [PPH] and/or its
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affiliates are acting in an unethical manner and engaging in what appears to be wrongful conduct.” (Dkt. Nos. 12, ¶ 37; 16-1 at 21-26).
40. The letter states that PPH is “welcome to submit information or offer comments on the nationally recognized videos that have raised questions on the conduct of Planned Parenthood.” (Dkt. Nos. 12, ¶ 37; 16-1 at 21-26).
41. ADHS, through Mr. White, claims that it terminated PPH’s provider agreements “based on what is in the public domain” and “determined that termination is in the public interest.” (Dkt. No. 16-1, ¶ 18).
42. Sources in the public domain report that completed governmental investigations in response to the videos in Georgia, South Dakota, Indiana, Pennsylvania, and Massachusetts have fully vindicated Planned Parenthood (Dkt. No. 4, at 6 n.7 (citing and collecting media sources)).
43. The second termination letter included instructions on how to appeal the termination (Dkt. No. 16-1, ¶ 19).
44. As of September 16, 2015, PPH had filed no administrative appeal (Dkt. No. 161, ¶ 20).
45. PPH complies with all federal and state laws (Dkt. No. 3, at 8, de Baca Decl. ¶ 13).
46. The first date after September 14, 2015, that patients insured through Medicaid were scheduled to visit PPH health centers was September 21, 2015 (Dkt. No. 12, ¶¶ 8, 34).
47. If “PPH’s termination from the Medicaid program is allowed to take effect for some period of time and it then is later allowed to become a Medicaid provider again, some
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patients will remain confused about whether PPH is a Medicaid provider in good standing, and therefore will not return as patients.” (Dkt. No. 12, ¶ 49).
48. PPH and the Jane Does have sued ADHS’s director, Mr. Selig, in his official capacity, only seeking declaratory and injunctive relief (Dkt. No. 12, at 15).
III. Conclusions Of Law When determining whether to grant a motion for preliminary injunction, this Court considers: (1) the threat of irreparable harm to the movant; (2) the movant’s likelihood of success on the merits; (3) the balance between the harm to the movant and the injury that granting an injunction would cause other interested parties; and (4) the public interest. Kroupa v. Nielsen, 731 F.3d 813, 818 (8th Cir. 2013) (quoting Dataphase Sys. Inc. v. CL Sys., 640 F.2d 109, 114 (8th Cir.1981)). Preliminary injunctive relief is an extraordinary remedy, and the party seeking such relief bears the burden of establishing the four Dataphase factors. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). The focus is on “whether the balance of the equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Id. “Although no single factor is determinative when balancing the equities,” a lack of irreparable harm is sufficient ground for denying a temporary restraining order. Aswegan v. Henry, 981 F.2d 313, 314 (8th Cir. 1992). In this case, application of the Dataphase factors depends on this Court’s analysis of which plaintiffs, if any, have standing to bring this suit. All parties have addressed this issue. The Court turns to examine this issue first, as the Court’s analysis regarding standing implicates inquiries into irreparable harm and likelihood of success on the merits.
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A. Standing Plaintiffs bring this civil action pursuant to 42 U.S.C. § 1983 based on rights allegedly secured by federal Medicaid statutes and the United States Constitution. Plaintiffs seek a preliminary injunction based solely on the federal Medicaid statutory claim, not the constitutional claims (Dkt. Nos. 3, 4). Specifically, plaintiffs allege violations of federal Medicaid statute 42 U.S.C. § 1396a(a)(23)(A), which states 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.” Plaintiffs contend that this “free choice provision” is violated because PPH is qualified and willing to undertake family planning services. In addition to this contention, plaintiffs also note that Congress has distinguished family planning services by giving this type of service even greater protections to ensure freedom of choice. Plaintiffs cite 42 U.S.C. § 1396a(a)(23)(B), which states in pertinent part that, “[a] State plan for medical assistance must” “provide that . . . an 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 under section 1396d(a)(4)(C) of this title. . . .” This provision then lists enumerated exceptions, none of which the parties contend apply here. Further, PPH and the Jane Does contend that, by referencing 42 § 1396d(a)(4)(C), this provision carves out and insulates family planning services from limits that may otherwise apply under approved state Medicaid plans, assuring covered patients an unfettered choice of qualified provider for family planning services.
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This Court concludes, as the United States Supreme Court did, that 42 U.S.C. § 1396a(a)(23) “gives recipients the right to choose among a range of qualified providers, without government interference.” O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 785 (1980). Further, the Court agrees that the right entails “an absolute right to be free from government interference with the choice to [receive family planning services from a provider] that continues to be qualified.” Id. at 785.
1. Jane Does’ Private Right Of Action As an initial matter, the Court addresses ADHS’s contention that 42 U.S.C. § 1396a(a)(23) does not provide a private right of action for PPH or even the Jane Does. This Court determines that, despite ADHS’s arguments otherwise, Armstrong v. Exceptional Child Center, __ U.S. __, 135 S. Ct. 1378 (2015), does not overrule, or even significantly undermine, the precedent that informed the reasoning of the Sixth, Seventh, and Ninth Circuits in recognizing a private right of action under 42 U.S.C. § 1396a(a)(23). See Planned Parenthood Ariz., Inc. v. Betlach, 899 F. Supp. 2d 868 (D. Ariz. 2012), appeal dismissed as moot, 727 F.3d 960, 962 (9th Cir. 2013), cert. denied, 134 S. Ct. 1283 (2014); 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); Harris v. Olszewski, 442 F.3d 456 (6th Cir. 2006). The Supremacy Clause and a claim for equitable relief, not 42 U.S.C. § 1983, were at issue in Armstrong. The case involved 42 U.S.C. § 1396a(a)(30)(A) of the Medicaid Act which includes meaningfully different language from the statutory language at issue here. See Armstrong, 135 S.Ct. at 1385. Further, a provider was the only named plaintiff in Armstrong, which is not the case here. The Jane Does are named plaintiffs, along with PPH.
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As to other arguments raised by ADHS to defeat the private right of action under 42 U.S.C. § 1983, to the extent those arguments are addressed by the Sixth, Seventh, and Ninth Circuits, the Court finds the reasoning in these prior cases persuasive and determines that, at a minimum, the Jane Does likely will succeed in bringing a private right of action under 42 U.S.C. § 1396a(a)(23) based on the facts alleged. The Court’s analysis here is intended to summarize that persuasive authority, not supplant the detailed reasoning on these points adopted by those other courts.
The Court determines that the Jane Does are likely to succeed in arguing that this statutory provision satisfies the factors set forth in Gonzaga University v. Doe, 536 U.S. 273 (2002), and Blessing v. Freestone, 502 U.S. 329, 341 (1997). The Court determines that the Jane Does are likely to prevail when evaluating the first Blessing prong that requires examining whether Congress used “rights-creating” language to create individual rights that were “unambiguously conferred.” Gonzaga, 536 U.S. at 283-84. Section 1396a(a)(23) is phrased in terms of the individual’s right to select among qualified providers and is unmistakably focused on the specific individuals the provision is intended to benefit. This determination is bolstered by language that applies in the family planning context. See 42 U.S.C. § 1396a(a)(23)(B).
In addition to the plain text, the structure of the statute in its entirety must be considered to determine whether Congress intended to confer individual rights. Gonzaga, 536 U.S. at 286. The Court determines that the Jane Does are likely to succeed in arguing against ADHS’s contention that, because this provision is part of a larger funding statute, Congress created a comprehensive enforcement scheme incompatible with individual enforcement under 42 U.S.C. § 1983. See Wilder v. Virginia Hosp. Ass’n., 496 U.S. 498, 521-22 (1990); Frazar v. Gilbert, 300 F.3d 530, 539 (5th Cir. 2002), rev’d sub nom. on other grounds, Frew ex. rel. Frew v.
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Hawkins, 540 U.S. 431 (2004); Comm’r of Ind. State Dep’t of Health, 699 F.3d at 974-75; Harris, 442 F.3d at 463. If this Court were to adopt ADHS’s argument, it supports a conclusion that would prohibit the enforcement of any provision of the Medicare Act through § 1983. That conclusion is against the great weight of authority derived from the many cases cited in the parties’ filings.
The second Blessing prong requires the Jane Does to demonstrate that the right conferred is not so “vague” that it would “strain judicial competence” to enforce the right. 520 U.S. at 340. This Court determines that the provision sets forth an explicit right that guarantees individuals eligible for medical assistance the ability to choose from a range of qualified providers without government interference. Here, the issue is whether ADHS, by declaring PPH an unqualified provider and terminating its provider agreements in the manner and for the reasons ADHS has articulated to date and will reveal through discovery in this case, violated the Jane Does’ rights conferred by 42 U.S.C. § 1396a(a)(23). The determination of whether a provider is “qualified to perform the service or services required,” under 42 U.S.C. § 1396a(a)(23) “falls comfortably within the judiciary’s core interpretive competence. . . [and] is a legal question fully capable of judicial resolution.” Comm’r of Ind. State Dep’t of Health, 699 F.3d at 974. “A court can readily determine whether a state is fulfilling these statutory obligations by looking to sources such as a state’s Medicaid plan, agency records and documents, and the testimony of Medicaid recipients and providers.” Ball v. Rodgers, 492 F.3d 1094, 1115 (9th Cir. 2007).
When pushed by plaintiffs to defend the evidence upon which ADHS claims to have relied to issue its second termination letter, ADHS stated, “[t]his case essentially is an appeal of the administrative termination taken by DHS.” (Dkt. No. 38, at 3). The Court is not certain it agrees with that characterization, but ADHS’s characterization belies its attempts to argue
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elsewhere in its filings that such a review does not fall “comfortably within the judiciary’s core interpretive competence. . . [and] is [not] a legal question fully capable of judicial resolution.” Comm’r of Ind. State Dep’t of Health, 699 F.3d at 974. For these reasons, the Court determines that the Jane Does are likely to succeed in arguing against the points ADHS raises in its sur-reply regarding whether 42 U.S.C. § 1396a(a)(23) requires the type of judgment-laden standard the Armstrong court identified.
The third prong of the Blessing test requires consideration of whether the statute “unambiguously impose[s] a binding obligation on the States.” 420 U.S. at 347. The relevant terms in the freedom of choice provision are “mandatory rather than precatory.” Sabree v. Richman, 367 F.3d 180, 190 (3d Cir. 2004). As a result, the final Blessing factor “is perhaps the most obviously met by the free choice provisions.” Ball, 492 F.3d at 1116.
2. PPH’s Standing In its temporary restraining order, the Court did not foreclose the possibility that PPH might succeed in bringing its own private right of action, along with the Jane Does. The Court requested at the status conference that the parties address this issue, as in the Court’s view this issue impacts the Dataphase analysis. In its most recent filing, PPH does not seem to assert its own private right of action under 42 U.S.C. § 1983 to enforce rights conferred by 42 U.S.C. § 1396a(a)(23). Therefore, that question is no longer before the Court. Instead, PPH takes the position in its reply that “PPH also has a private right-of-action under the free-choice-of-provider provision on behalf of its patients.” (Dkt. No. 26, at 8). PPH cites, in support, the test for third-party standing from Powers v. Ohio, 499 U.S. 400, 411 (1991). See also Kowalski v. Tesmer, 543 U.S. 125, 136-37 (2004); Singleton v. Wulff, 428 U.S. 106, 112-16 (1976) (plurality opinion).
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This Court concludes that, because the Jane Does are named plaintiffs here, and the Court determines that the Jane Does have standing, PPH does not have standing in this case to assert a claim based on third-party standing. The Eighth Circuit Court of Appeals limits the use of thirdparty standing to assert another individual’s private right of action to situations where the thirdparty plaintiff can prove that (1) the third-party plaintiff suffered an injury in fact, (2) the thirdparty plaintiff “has a ‘close’ relationship with the person who possesses the right,” and (3) “there is a ‘hindrance’ to the possessor’s ability to protect his own interests.” Hodak v. City of St. Peters, 535 F.3d 899, 904 (8th Cir. 2008); Ben Oehrleins & Sons & Daughter, Inc. v. Hennepin Cnty., 115 F.3d 1372, 1378-79 (8th Cir. 1997).
This case is pursued by three Medicaid recipients, the Jane Does. ADHS therefore contends that PPH cannot show that there is a “hindrance” to the ability of Medicaid patients to protect their own interests. The third factor in the Powers test focuses on the ability of third parties to assert their own rights. See Hodak, 535 F.3d at 904. The Eighth Circuit has concluded that, even assuming the third-party plaintiff suffers an injury in fact and has a close relationship with the person who possesses the right, “[n]o practical barriers exist if the third party actually asserts his own rights.” Id. The Court declines to address whether, if the Jane Does were not named plaintiffs here or if it were determined that the Jane Does lack standing, PPH would meet the requirements of third-party standing.
3. Limits On The Scope Of The Rights The Jane Does May Seek To Vindicate
Although this Court recognizes the Jane Does have a private right of action and standing to seek to assert that right, the Jane Does are suing as individuals, not in a representative capacity. There has been no request made to the Court for class certification under Rule 23 of the Federal Rules of Civil Procedure, although the Court acknowledges the time for seeking such
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certification has not passed. See Local Rule 23.1, Local Rules of the United States District Court for the Eastern and Western Districts of Arkansas. Given this, the relief the Jane Does may seek and the relief this Court may grant, if any, must be tailored to the individual plaintiffs who brought the lawsuit: Jane Doe #1, Jane Doe #2, and Jane Doe #3. See, e.g., Monahan v. State of Nebraska, 491 F. Supp. 1074, 1081 (D. Neb. 1980) (rejecting preliminary injunctive relief to the extent it was “designed to protect those persons whom the plaintiffs wish to represent through a class action suit” in the absence of class certification), aff’d in part and vacated in part by 645 F.2d 592 (8th Cir. 1999); see also St. Louis Efforts for Aids v. Huff, 782 F.3d 1016, 1021-23 (8th Cir. 2015) (affirming a preliminary injunction for only those named plaintiffs who satisfied the Dataphase factors and noting the importance of narrowly tailoring preliminary relief).
In the Eighth Circuit and in a number of other circuits, “in the absence of class certification, the preliminary injunction may properly cover only the named plaintiffs.” See Zepeda v. US I.N.S., 753 F.2d 719, 727-28 (9th Cir. 1985) (“[An] injunction must be limited to apply only to the individual plaintiffs unless the district judge certifies a class of plaintiffs.”); Hollon v. Mathis Independent School District, 491 F.2d 92, 93 (5th Cir. 1974) (“In this case, which is not a class action, the injunction against the School District from enforcing its regulation against anyone other than Hollon reaches further than is necessary . . . .”); Berger v. Heclker, 771 F.2d 1556, 1567 (2d Cir. 1980) (recognizing constraints of a preliminary injunction include only covering the named plaintiffs in absence of class certification).
B. The Dataphase Factors Having determined that the Jane Does have a private right of action, the Court turns to examine the Dataphase factors as applied to that right of action. The right the Court recognizes is that 42 U.S.C. § 1396a(a)(23) “gives recipients the right to choose among a range of qualified
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providers, without government interference.” O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 785 (1980). Further, the Court agrees that the right entails “an absolute right to be free from government interference with the choice to [receive family planning services from a provider] that continues to be qualified.” Id. at 785.
1. The Threat Of Irreparable Harm A plaintiff seeking temporary injunctive relief must establish that the claimant is “likely to suffer irreparable harm in the absence of preliminary relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A threat of irreparable harm exists when a party alleges a harm that may not be compensated by money damages in an action at law. See Kroupa, 731 F.3d at 820; Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d 367, 371-72 (8th Cir. 1991). Accordingly, “[l]oss of intangible assets such as reputation and goodwill can constitute irreparable injury.” United Healthcare Ins. Co. v. Advance PCS, 316 F.3d 737, 741 (8th Cir. 2002). Furthermore, a threat of irreparable harm may exist when relief through money damages in an action at law will not fully compensate a claimant’s economic loss. See Glenwood Bridge, 940 F.2d at 367. As this Court has observed, Arkansas law is instructive although admittedly not controlling on this issue. The Supreme Court of Arkansas has found in other contexts that harm to a doctor-patient relationship can constitute irreparable harm. See Baptist Health v. Murphy, 226 S.W.3d 800 (Ark. 2006); Cf. Roudachevski v. All–American Care Centers, Inc., 648 F.3d 701 (8th Cir. 2011) (holding that an already-disrupted doctor-patient relationship did not constitute irreparable harm). Here, the Jane Does allege that they will suffer irreparable harm because their relationship with PPH, their chosen family planning provider, will be disrupted, causing reduced
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access to family planning services in violation of their statutory rights under 42 U.S.C. § 1396a(a)(23). ADHS argues against irreparable harm in the first instance by asserting that the Jane Does misconstrue their statutory right. ADHS contends that the right under the statute only requires that the Jane Does be allowed their choice of qualified providers free from government interference, not the choice of an unqualified provider. In support of this argument, ADHS cites O’Bannon v. Town Court Nursing Center, 447 U.S. 773, 787 (1980). Framing the argument this way misstates the nature of the dispute.
Here, the dispute is whether the government, either through the Governor or through ADHS’s actions, impermissibly interfered with the Jane Does’ choice of a qualified provider when it terminated PPH as a provider in the manner and for the reasons it articulates. If this right found in 42 U.S.C. § 1396a(a)(23) and conferred on Medicaid recipients is to have meaning, and if it is to have the meaning ascribed to it by the Court in O’Bannon, ADHS cannot be permitted to declare a provider unqualified and then to use that declaration to put out of reach any future challenges to its conduct by Medicaid recipients.
This Court has struggled with ascertaining what significance, if any, the fact that PPH has not availed itself of the administrative appeals process has on this dispute. At this stage of the proceeding, the Court settles on this. The effect ADHS wants to give that fact dovetails with its attempt to misstate the nature of the dispute. ADHS advocates that, because PPH has not appealed ADHS’s determination that PPH is no longer a qualified provider in Arkansas, the Jane Does have no ability to vindicate their rights under 42 U.S.C. § 1396a(a)(23) (Dkt. No. 39, at 17).
If the Court gives this fact the significance ADHS seeks, the Court questions why Congress would confer a right on Medicaid beneficiaries when that right seemingly has to be
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enforced by the provider through the administrative appeals process as ADHS’s argument suggests. This Court also questions how, if at all, the current procedural posture of the case differs from the hypothetical case in which PPH pursues the administrative appeal and loses. An argument can be made, given the undisputed facts regarding the sequence of events surrounding the issuance of the termination letters here, that such would have been the result. ADHS seems to want to make the Jane Does wait for that result, or the contrary result which seems remote, before attempting to vindicate their rights. As ADHS points out, however, the Jane Does sue under 42 U.S.C. § 1983, and there is no exhaustion requirement under 42 U.S.C. § 1983. Even if there were, all parties agree that the Jane Does do not have access to the administrative appeals process; they cannot vindicate their rights under 42 U.S.C. § 1396a(a)(23) in that forum. This fact is not in dispute.
For these reasons, at this stage of the litigation, the Court declines to find that PPH’s decision not to appeal ADHS’s determination forecloses the Jane Does’ ability to vindicate their rights under 42 U.S.C. § 1396a(a)(23) through this lawsuit. The Court will not examine irreparable harm through the lens ADHS suggests.
The Court turns then to examine the allegations of irreparable harm advanced by the Jane Does in relation to the right at issue. As an initial matter, the Court takes the Jane Does’ affidavits and responses to ADHS’s written questions at face value; the Court credits their testimony in the form submitted. The Court gives very little weight to ADHS’s attempts to diminish the provider-patient relationships the Jane Does testify they have with PPH as their family planning provider. Further, that the Jane Does see their family planning provider one time per year to obtain a method of birth control, when pregnancy or complications are not at issue; that a staff member, not the physician, administers the shot of a birth control medication;
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and that a patient might see more than one family planning doctor or different family planning doctors does not convince this Court that the Jane Does’ relationship with PPH as their family planning provider deserves less protection or recognition than other patient-physician relationships. Mark White’s supplemental affidavit which is submitted under seal for this Court’s consideration suggests the Jane Does seek or have sought through the years treatment from various providers.
In support of their claims of irreparable harm, affidavits from Jane Does #1, #2, and #3 indicate that, because of various family and occupational responsibilities, it is difficult for all three of these women to plan health care visits weeks in advance. Thus, they prefer going to PPH, where they can walk in for an appointment, obtain an appointment quickly, and the wait times are less than those at a private physician’s office or public health clinics (See Dkt. No. 3, at 14-20). These affidavits also demonstrate that these women could not afford to pay for their normal services out of pocket (Id.). The Court still finds unpersuasive ADHS’s position that, alleged long wait times even when appointments are secured, and overall scheduling issues, is not harm great enough to meet the Jane Does’ burden of proof on irreparable harm, especially when family planning and reproductive health care needs are at issue.
ADHS’s position that alternative providers are available again shifts the examination of the right. The right does not protect the Jane Does’ right to a substitute or similar provider. As this Court has concluded, the right entails “an absolute right to be free from government interference with the choice to [receive family planning services from a provider] that continues to be qualified.” O’Bannon, 447 U.S. at 785. Here, all three Jane Does state they wish to continue with PPH as their family planning provider of choice (Dkt. No. 3, at 14-20).
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The Court finds that, for all of these reasons and based on the Court’s findings of fact in this case, the harms alleged by the Jane Does do constitute irreparable harm sufficient for an injunction. See, e.g., Planned Parenthood of Ind., Inc. v. Comm ‘r of Ind. State Dep ‘t of Health, 794 F. Supp. 2d 892, 912 (S.D. Ind.) (denial of Medicaid patient’s free choice of provider is irreparable harm), aff’d in part and rev ‘d in part on other grounds, 699 F.3d 962 (7th Cir. 2012); see also Camacho v. Tex. Workforce Comm‘n, 326 F. Supp. 2d 794, 802 (W.D. Tex. 2004) (reduced access to health care, as a result of state statute restricting access to Medicaid in violation of federal regulations, constituted irreparable harm). Should the Court fail to issue injunctive relief, the Jane Does will be denied their choice of provider for family planning services. The Court finds that, based on its assessment at this stage of the litigation on the likelihood of success on the merits, denial of that freedom of choice is more likely than not exactly the injury that Congress sought to avoid when it enacted 42 U.S.C. § 1396a(a)(23) and that the Jane Does will suffer irreparable harm if a preliminary injunction is not entered by the Court to preserve the status quo while this case is pending.
For these reasons, the Court determines that the Jane Does have met their burden of demonstrating they will suffer irreparable harm in the absence of a preliminary injunction.
2. Likelihood Of Success On The Merits This Court’s analysis of the likelihood of success on the merits has changed little since the Court’s entry of the temporary restraining order, but the Court has modified it slightly based on the parties’ recent filings. In support of their assertion that ADHS’s efforts to exclude PPH from Medicaid violate federal law guaranteeing a Medicaid patient’s right to receive care from the provider of her choice, the Jane Does rely on recent Seventh and Ninth Circuit case law and the discussions by those courts of the merits of such a claim. This Court finds those cases, and the reasoning of those courts, persuasive.
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The Seventh Circuit held that excluding “Planned Parenthood from Medicaid for a reason unrelated to its fitness to provide medical services[] violate[s] its patients statutory right to obtain medical care from the qualified provider of their choice.” Planned Parenthood of Ind., 699 F.3d at 962. Similarly, the Ninth Circuit case dealt with an Arizona law that “bar[red] patients eligible for the state’s Medicaid program from obtaining covered family planning services through health care providers who perform[ed] abortions in cases other than medical necessity, rape, or incest.” Betlach, 899 F. Supp. 2d at 874. Although these cases addressed legislative enactments and the instant case involves a decision made by the Governor and communicated through ADHS or a decision made by ADHS, depending on which termination letter is examined, those facts do not sufficiently distinguish the instant case from the aforementioned cases, and the holdings of those cases weigh in favor of the Jane Does’ likely success on the merits here. The Court determines that the Jane Does have carried their burden on demonstrating a likelihood of success on the merits of their 42 U.S.C. § 1983 claim so as to warrant the entry of a preliminary injunction.
In reaching this conclusion, the Court has examined the arguments ADHS advances for its determination and the Jane Does’ countervailing arguments. Though participating states must comply with all requirements of Title XIX, including the freedom of choice provision, states retain some autonomy and flexibility in devising Medicaid plans. Specifically, a state may establish “reasonable standards relating to the qualifications of providers. . . .” 42 C.F.R. § 431.51(c)(2). A state may also exclude health care providers under certain circumstances: “[i]n addition to any other authority, a State may exclude an individual or entity. . . for any reason for which the Secretary could exclude the individual or entity from participation.” 42 U.S.C. § 1396a(p)(1). The central conflict between the parties in this case is whether Arkansas can
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terminate PPH as a qualified Medicaid provider for the reasons it articulates in this litigation without violating the freedom of choice provision. ADHS recognizes that one of the key issues in this litigation will be whether ADHS’s termination decision was proper under federal law (Dkt. No. 16, at 20).
As an initial matter, and in support of the first termination letter sent to PPH, ADHS argues that its termination of PPH’s provider agreement is allowed, based upon provisions in the agreements itself, 42 U.S.C. § 1396a(p), 42 U.S.C. § 1320a-7, and Ark. Admin. Code § 016.06.35-151.000(B) (Dkt. No. 16, at 2, 20). Specifically, ADHS argues that Section III.A of the agreement provides that, “[t]his contract may be voluntarily terminated by either party by giving thirty (30) days written notice to the other party.” (Dkt. No. 16, Aff. 1).
This Court raised at the hearing an issue as to what, if anything, ADHS reviewed prior to issuing the initial contract-based decision. ADHS submitted with its initial response an affidavit from Mark White, the Deputy Director of ADHS, that seems to suggest only after this letter was issued did Governor Hutchinson direct ADHS employees to review the videos upon which ADHS relies in this lawsuit (Dkt. No. 16-1, at 2, ¶ 9).
Further, legal arguments of this type, citing 42 U.S.C. § 1396a(p) and 42 U.S.C. § 1320a7 of the Medicaid Act, were addressed by the Seventh and Ninth Circuits. These courts rejected claims by the states in those cases that the cited provisions provide any sort of expanded, unchecked state authority for terminating provider contracts for reasons unrelated to the purposes of the Medicaid Act. 42 U.S.C. § 1396a(p)(1) provides specifically that:
In addition to any other authority, a State may exclude any individual or entity for purposes of participating under the State plan under this subchapter for any reason for which the Secretary could exclude the individual or entity from participation in a program under subchapter XVIII of this chapter under section 1320a-7, 1320a-7a, or 1395cc(b)(2) of this title.
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42 U.S.C. § 1396a(p)(1). The cross-referenced sections of the Medicaid Act cited within this provision pertain to mandatory or permissive exclusions of providers for various forms of malfeasance such as fraud, drug crimes, and failure to disclose necessary information to regulators. See 42 U.S.C. §§ 1320a-7, 1320a-7a, 1395cc(b)(2). To the extent ADHS intends to rely on these provisions, or comparable state provisions, to argue a plenary power of the states to exclude Medicaid providers as the states see fit, this Court is mindful that other courts have soundly rejected such arguments. See Planned Parenthood of Indiana, 699 F.3d at 979. Specifically, the Seventh Circuit determined that the phrase “‘[i]n addition to any other authority’ signals only that what follows is a non-exclusive list of specific grounds upon which states may bar providers from participating in Medicaid. It does not imply that the states have an unlimited authority to exclude providers for any reason whatsoever.” Id.
Further, as to this contractual issue, the Jane Does are not parties to the agreements cited. The Jane Does’ claimed federal statutory right to the family planning provider of their choice is now the claim before the Court at this stage, and the Jane Does claim that language of the Medicaid Act conferring this right is mandatory language for any state plan for medical assistance. 42 U.S.C. § 1396a(a)(23)(B).
ADHS also sent the second for-cause termination letter. ADHS raises Section III.C of the provider agreements, which states that a provider may be terminated for a number of reasons, including, but not limited to: “(1) the sanction of a provider; (2) other reasons set out in the appropriate Arkansas Medicaid Provider Manual; or (3) failure to conform to the terms or requirements of this contract.” (Dkt. No. 16, Aff. 1). ADHS claims that its second letter, terminating PPH “for cause,” is justified under Section III.C of the provider agreements because of “. . . evidence that [PPH] and/or its affiliates are acting in an unethical manner and engaging
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in what appears to be wrongful conduct.” (Dkt. No. 16, Aff. 1). In justifying this, ADHS asserts that “Planned Parenthood affiliates have likely engaged in questionable transactions involving fetal parts and tissue” and that Arkansas law prohibits the donation of fetal tissue, citing Ark. Code Ann. § 20-17-802(c) (Dkt. No. 16, at 22).
ADHS also contends that Planned Parenthood affiliates have “apparently altered abortion procedures with an eye toward consummating the fetal-tissue transactions,” which it believes is in violation of American Medical Association standards (Dkt. No. 16, at 23-25). ADHS argues that all of the aforementioned alleged conduct justifies ADHS’s determination that Planned Parenthood has acted in an unethical manner, so as to remove itself from the category of qualified providers. For the reasons its states in this Order, the Court does not strike the videos but gives them little weight. ADHS’s argument about what the statements in the videos demonstrate, even if taken as true and assumed to be in context, which PPH and the Jane Does contest, may overstate this proof. Further, PPH and the Jane Does contest whether any “determination” as required by 42 U.S.C. § 1320a-7(b)(6)(B) was made by ADHS here.
ADHS also argues that § 1396a(23) does not define the term “qualified” and that 42 C.F.R. § 431.51(c)(2) permits states to “establish reasonable standards relating to the qualifications of providers.” The term “qualified” is at issue in 42 U.S.C. § 1396a(a)(23)(A), in the context of providers being “qualified to perform . . . the service or services required.” The Seventh Circuit has held that the term “qualified” as used in the Medicaid Act “unambiguously relate[s] to a provider’s fitness to perform the medical service the patient requires.” Comm‘r of Ind. State Dep ‘t of Health, 699 F.3d at 978; see also Betlach, 727 F.3d at 969 (“We therefore read that term, as it appears in § 1396a(a)(23), as conveying its ordinary meaning, which is: ‘having an officially recognized qualification to practice as a member of a particular profession;
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Case 4:15-cv-00566-KGB Document 45 Filed 10/05/15 Page 27 of 31
fit, competent.’”); see also Qualified, Black’s Law Dictionary (10th ed. 2014) (defining qualified as “capable or competent”). If there is ambiguity in this term, the Jane Does argue the agency’s interpretation should be afforded deference and that it would not support ADHS’s conduct (Dkt. No. 26, 26-2). At this stage, the Court has not determined that there is an ambiguity so as to resort to giving deference to the agency. The Court simply notes this argument exists.
The record before the Court includes Ms. de Baca’s affidavit (Dkt. No. 3, at 4 ̶ 12). Ms. de Baca states, “While all Planned Parenthood affiliates comply with federal and state law on the disposal of fetal tissue, PPH does not participate in any fetal tissue donation, and does not appear in any of the videos.” (Dkt. No. 3, at 4, ¶ 13). The Court acknowledges that ADHS moves this Court to strike this statement from Ms. de Baca’s affidavit, but the Court denies the motion. The Court finds persuasive the reasoning provided by plaintiffs in response to the motion to strike as to how Ms. de Baca acquired the knowledge upon which she basis this statement. Further, there can be no meaningful challenge to Ms. de Baca’s statements as to PPH’s activities; it is undisputed that she serves as the president and chief executive officer of PPH (Dkt. No. 3, at 4, ¶ 1). At this stage of the proceeding, the Court considers these statements. It gives great weight to Ms. de Baca’s statements about PPH and lesser weight to the remaining portions of the statement.
Aside from Ms. de Baca’s statements there remains no contrary evidence in the record about PPH at this stage. For example, there is no evidence that PPH performs surgical abortions in Arkansas from which fetal tissue could be obtained. There is no evidence that PPH performs medication abortions in Arkansas from which fetal tissue can be obtained and donated for any purpose. ADHS seems to acknowledge this when it recognizes that “the vast majority of PPH’s patients in Arkansas are not abortion patients; they are patients seeking run-of-the-mill and
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uncontroversial decisions like wellness exams, pelvic exams, and birth control. Indeed, there is no indication that the Jane Doe plaintiffs in this case are abortion patients.” (Dkt. No. 39, at 12). Moreover, there also is no evidence that PPH has been cited, reprimanded, or cautioned by ADHS in the past about its qualifications as a provider of the services it offers.
This is consistent with what ADHS argues in support of its determination to terminate PPH as a provider. ADHS does not specifically mention, or provide evidence in the record, that PPH itself has participated in any of this conduct cited by ADHS as a basis for its termination decision, but instead ADHS relies on its contention that Planned Parenthood Federation of America and its affiliates function as a unified whole, and thus, the acts of one affiliate may be attributed to all other affiliates. In support of this, ADHS cites among other matters personal jurisdiction, tort liability, and joint employer cases, arguing that “Planned Parenthood Federation ‘codetermines’ essential policies with its affiliates, and so its affiliates can be deemed to follow those policies in a uniform fashion.” (Dkt. No. 16, at 29-31). The Jane Does have supplemented their response as to the merits of this dispute about ADHS’s ability to terminate the provider agreements of PPH if in fact PPH engaged in no alleged conduct (Dkt. No. 26, at 13 ̶ 16). Based on a review of the authorities cited by both parties, the Court still finds that, at this stage, the Jane Does are likely to prevail on the merits of this argument.
The Court acknowledges that the Jane Does move this Court to exclude the videos and transcripts that ADHS cites because, as the Jane Does contend, they are irrelevant and unreliable. The Jane Does request that this Court strike them from the record and not consider them in making a determination on the Jane Does’ motion for preliminary injunction. This Court denies the motion to strike (Dkt. No. 27, at 2).
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The Jane Does first argue that the videos and transcripts are not relevant to whether ADHS’s termination of PPH’s Medicaid provider agreements likely violates the Medicaid freedom of choice provision, 42 U.S.C. § 1396a(a)(23), which is the basis for the pending request for injunctive relief. ADHS argues “[t]hese videos establish a basis for the administrative termination, establish background and context for the agency’s decision and, significantly, demonstrate Planned Parenthood’s corporate knowledge and intent.” (Dkt. No. 38, at 4). Although the Court agrees with PPH and the Jane Does in that the videos do not show anything at all about PPH, its employees, or its practices, the Court declines at this stage of the litigation to strike the videos under Rule 402, given the purpose for which ADHS cites them and given the evidentiary standards the parties agree apply to the Court’s current inquiry.
At this stage of the proceeding, however, the videos are inadmissible hearsay. This is the second basis for PPH and the Jane Does’ request that the Court strike the videos under Rule 802. Authentication of videos as evidence is not a difficult requirement to meet in most instances. Here, the individual who could submit an affidavit to this Court or appear before this Court to authenticate the videos has not done so; the Court has not heard from the individual who created the videos or edited the footage. Instead, the Court is presented with conflicting reports on the extent of the editing and misrepresentations, if any, in the content and context of the videos and transcripts (Dkt. No. 38-A). Further, ADHS cites as the only basis for the admission of this hearsay evidence the residual clause of Rule 807’s hearsay exceptions (Dkt. No. 38, at 6). Given the evidentiary standards the parties agree the Court should apply at this stage, the Court declines to strike the videos.
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The Court has reviewed the affidavits and exhibits before it and the legal theories advanced by both sides. The Court concludes that the Jane Does likely will succeed on the merits of their 42 U.S.C. § 1983 claims.
3. Balance Of Equities And Public Interest The Jane Does argue that the aforementioned threats of injury to them outweigh any harm caused to ADHS. In fact, the Jane Does contend that “the state will suffer no harm at all. Rather, the state will continue to reimburse PPH for providing Medicaid services as it has for years . . . and patients will continue to receive high-quality reproductive health care” (Dkt. No. 4, at 17). ADHS argues that Planned Parenthood’s alleged conduct is “not reflective of the values of Arkansas or Arkansans.” (See Dkt. No. 16, at 33). It claims that Arkansas should, within the bounds of the Medicaid program, be able to pursue its public policy objectives by excluding this network from Arkansas’s Medicaid program. The Court must examine its case in the context of the relative injuries to the parties and to the public. Dataphase, 640 F.2d at 114. After balancing these relative injuries and the equities argued by the parties, the Court finds that because any suspension of Medicaid payments would result in threatened irreparable harm to the Jane Does and because the quality of PPH’s care rendered to Arkansas patients does not appear to be questioned by ADHS or other officials at this time, the resulting harm to the Janes Does, who are PPH’s patients, is greater than the potential harm to ADHS’s pursuit of its stated public policy objectives. At this stage of the proceedings, the Court finds that the threat of irreparable harm to the Jane Does, and the public interest, outweighs the immediate interests and potential injuries to ADHS.
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III. Security Under Federal Rule of Civil Procedure 65(c), a district court may issue a preliminary injunction “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). In these proceedings, ADHS has neither requested security in the event this Court enters a preliminary injunction nor has it presented any evidence that it will be financially harmed if it were wrongfully enjoined. Further, as this Court stated when it entered the temporary restraining order, this Court does not perceive how ADHS could be harmed by reimbursing PPH for services provided to the Jane Doe Medicaid patients, considering that ADHS likely will have to pay the same amount for benefits of these patients regardless of who the patients’ Medicaid provider happens to be. For these reasons, the Court declines to require security from the Jane Does. IV. Conclusion For the foregoing reasons, the Court determines that the Jane Does have met their burden for the issuance of a preliminary injunction. Therefore, the Court grants the Jane Does’ motion for preliminary injunction. The Court enjoins ADHS from suspending Medicaid payments to PPH for services rendered to Medicaid beneficiaries the Jane Does until further order from this Court. SO ORDERED this 5th day of October, 2015, at 8:35 a.m.
_______________________________ Kristine G. Baker United States District Judge
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 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

PLANNED PARENTHOOD ARKANSAS & EASTERN OKLAHOMA, d/b/a PLANNED PARENTHOOD OF THE HEARTLAND; JANE DOE #1; JANE DOE #2; and JANE DOE #3

PLAINTIFFS

v.

Case No. 4:15-cv-00566-KGB

JOHN M. SELIG, DIRECTOR, ARKANSAS DEPARTMENT OF HUMAN SERVICES, in his official capacity

DEFENDANT

ORDER

Before the Court is the motion for class certification filed by plaintiffs Planned

Parenthood of Arkansas & Eastern Oklahoma, d/b/a Planned Parenthood of the Heartland

(“PPH”) and Jane Doe #1, Jane Doe #2, and Jane Doe #3 (“Jane Does”) (Dkt. No. 50).

Defendant John M. Selig, sued in his official capacity only as the Director of the Arkansas

Department of Human Services (“ADHS”), has responded in opposition to the motion for class

certification (Dkt. No. 71), and PPH and the Jane Does have filed a reply (Dkt. No. 72). The

Court conducted a hearing in this matter on January 14, 2016, at which counsel for all parties

were present. ADHS filed a post-hearing supplemental response to plaintiffs’ motion for class

certification (Dkt. No. 82). For the reasons that follow, plaintiffs’ motion for class certification

pursuant to Federal Rule of Civil Procedure 23 is granted.

I. Background

PPH operates health centers in Little Rock, Arkansas, and Fayetteville, Arkansas, and has

done so for over 30 years. These centers provide family planning services to men and women,

including contraception and contraceptive counseling, screening for breast and cervical cancer,

pregnancy testing and counseling, and early medication abortion. PPH states that, at its Arkansas health centers, PPH offers only early medication abortions, services that Arkansas Medicaid does not cover in virtually all circumstances (Dkt. No. 12, ¶ 17). PPH and the Jane Does represent that Medicaid payment for abortion is not at issue in this case (Dkt. No. 12, ¶ 17). PPH also operates a pharmacy that serves Arkansas residents which allows patients to have their birth control prescriptions automatically refilled. During the 2015 fiscal year, PPH represents that it provided approximately 1,000 health care visits and filled more than 1,100 prescriptions, for over 500 women, men, and teens insured through Medicaid in Little Rock and Fayetteville, Arkansas. In 2014, almost 40% of PPH’s Little Rock, Arkansas, patients, and 15% of its Fayetteville, Arkansas, patients were insured through Medicaid, according to PPH. Plaintiffs Jane Does are patients of PPH who receive their care through the Medicaid program.
PPH and the Jane Does allege that ADHS, through its director Mr. Selig, notified PPH on August 14, 2015, that ADHS was terminating its Medicaid provider agreements, effective 30 days from the date of the letter (Dkt. No. 16-1, at 19). PPH and the Jane Does further allege that this initial notification letter provided no reason for the termination of the agreements; they assert that this initial termination appears to stem from PPH’s association with Planned Parenthood and abortion (Dkt. No. 12, ¶ 35). To support their contention that ADHS wrongfully suspended Medicaid payments to PPH, PPH and the Jane Does cite Arkansas Governor Asa Hutchinson’s press release from August 14, 2014, the day the termination letter was sent to PPH. In this release, Governor Hutchinson states that he directed ADHS to terminate the agreements because “[i]t is apparent that after the recent revelations on the actions of Planned Parenthood, that this organization does not represent the values of the people of our state and Arkansas is better served by terminating any and all existing contracts with them.” (Dkt. No. 12, ¶ 35).
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PPH and the Jane Does further assert that Governor Hutchinson’s reference to “recent revelations” regarding Planned Parenthood refers to recent videos released about Planned Parenthood, claiming that some Planned Parenthood affiliates allow patients to donate fetal tissue to medical research following abortions (Dkt. No. 12, ¶ 35).
ADHS followed this August 14, 2015, letter with a second termination letter dated September 1, 2015, that ADHS characterizes as a “for cause” letter. PPH and the Jane Does allege that this second letter states solely that it “is based in part upon the troubling circumstances and activities that have recently come to light regarding the national Planned Parenthood organization, Planned Parenthood of the Heartland, and other affiliated Planned Parenthood entities, all of which are affiliated with [PPH],” and that “there is evidence that [PPH] and/or its affiliates are acting in an unethical manner and engaging in what appears to be wrongful conduct.” (Dkt. Nos. 12, ¶ 37; 16-1, at 21 ̶ 26). The letter also states that PPH is “welcome to submit information or offer comments on the nationally recognized videos that have raised questions on the conduct of Planned Parenthood.” (Dkt. Nos. 12, ¶ 37; 16-1, at 21 ̶ 26).
PPH and the Jane Does filed a motion for temporary restraining order and preliminary injunction on September 11, 2015 (Dkt. No. 3). This motion alleges that, starting on September 21, 2015, absent an injunction, patients insured through the Medicaid program who choose to get family planning and other health care services at PPH will lose access to services, will lose their provider of choice, will find their family planning services interrupted, and will be left with few or no adequate alternative providers (Dkt. No. 12, ¶¶ 8, 34). As for PPH, PPH and the Jane Does contend that, “[i]f PPH is forced to stop providing care through the Medicaid program, a dire situation will become critical. The remaining providers will be simply unable to absorb PPH’s
3

patients, leaving those patients without access to crucial medical services.” (Dkt. No. 12, ¶ 43). Further, they allege that “[w]ithout Medicaid reimbursements, PPH may be unable to continue to provide services in the same manner and may be forced to lay off staff members and/or reduce hours at one or both health centers.” (Dkt. No. 12, ¶ 49). They also allege that, “if PPH’s termination from the Medicaid program is allowed to take effect for some period of time and it then is later allowed to become a Medicaid provider again, some patients will remain confused about whether PPH is a Medicaid provider in good standing, and therefore will not return as patients.” (Dkt. No. 12, ¶ 49). PPH and the Jane Does claim that the suspension of Medicaid payments violates certain provisions of the Medicaid statutory and regulatory scheme set out in 42 U.S.C. § 1396 and violates their rights under the First and Fourteenth Amendments to the United States Constitution. They have sued ADHS’s director, Mr. Selig, in his official capacity only seeking declaratory and injunctive relief (Dkt. No. 12, at 15).
This Court granted PPH and the Jane Does’ motion for temporary restraining order (Dkt. No. 21). The Court temporarily restrained ADHS “for a period of 14 days from the date of entry of this Order from suspending Medicaid payments to PPH for services rendered to Medicaid beneficiaries, including but not limited to the Jane Does.” (Dkt. No. 21, at 19). At that stage of the proceedings, the Court conducted a status conference with counsel concerning a briefing schedule and potential hearing. For the reasons set forth in its Order, the Court permitted ADHS to obtain evidentiary material from the Jane Does (Dkt. No. 25). The Court did not regulate the number, scope, or timing of the written questions ADHS submitted to the Jane Does. The Court instructed counsel from both sides to meet and confer on these matters, and although the Court did later enter an Order clarifying its earlier Order on the permitted discovery, the Court was not asked to resolve or clarify any other issues in regard to the questions submitted to the Jane Does
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(Dkt. No. 32). Also at this stage of the proceeding, the Court raised with counsel again and directed counsel to brief standing issues.
The Court then entered a preliminary injunction more limited in scope – limiting the relief granted to just the Jane Does (Dkt. Nos. 44, 45). The Court then granted PPH and the Jane Does leave to file a second amended complaint (Dkt. No. 63). In their second amended complaint, PPH and the Jane Does add class action allegations (Dkt. No. 64, ¶¶ 50 ̶ 55).
On October 6, 2015, ADHS filed a motion for leave to notice four depositions (Dkt. No. 56). The Court conducted a status hearing on the motion. ADHS requested leave to depose Jane Doe #1, Jane Doe #2, and Jane Doe #3 and to conduct a Federal Rule of Civil Procedure 30(b)(6) deposition of a PPH representative before responding to the pending motion for class certification. ADHS claims that it seeks these depositions to test, at least, the typicality and adequacy requirements for class certification (Dkt. No. 55, at 4). For the reasons set forth in its Order, the Court denied the motion for leave to notice four depositions (Dkt. No. 66).
PPH and the Jane Does are now asking this Court to certify a class, and ADHS at the hearing conducted in this matter orally renewed its request to conduct precertification discovery.
II. Discussion PPH and the Jane Does seek class-action certification under Rule 23 of the Federal Rules of Civil Procedure for “the Jane Doe plaintiffs and all other persons similarly situated, namely: patients who seek to obtain, or desire to obtain, health care services in Arkansas at PPH through the Medicaid program.” (Dkt. No. 50, at 1). To obtain class certification, plaintiffs must meet all four requirements of Federal Rule of Civil Procedure 23(a), commonly referred to as numerosity, commonality, typicality, and adequacy of representation, and must fall into one of the categories of Rule 23(b). Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997); Blades v. Monsanto Co., 400 F.3d 562,
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568 ̶ 69 (8th Cir. 2005); Fed. R. Civ. P. 23. The party seeking certification bears the burden of showing that the class should be certified and that the requirements of Rule 23 are met. Coleman
v. Watt, 40 F.3d 255, 258 ̶ 59 (8th Cir. 1994). The district court is afforded broad discretion to decide whether certification is appropriate. Luiken v. Domino’s Pizza, LLC, 705 F.3d 370, 372
(8th Cir. 2013) (quoting Prof’l Firefigthers Ass’n of Omaha, Local 385 v. Zalewski, 678 F.3d
640, 645 (8th Cir. 2012)). According to the Eighth Circuit:
A district court considering a motion for class certification must undertake a rigorous analysis to ensure that the requirements of Rule 23(a) are met. Frequently that rigorous analysis will entail some overlap with the merits of the plaintiff’s underlying claim, and the district court may resolve disputes going to the factual setting of the case if necessary to the class certification analysis. The court’s factual findings with respect to the class certification question are reviewed for clear error. Bennett v. Nucor Corp., 656 F.3d 802, 814 (8th Cir. 2011) (internal quotations and citations
omitted). The Court will consider Rule 23(a) and (b) in turn.
A. Rule 23(a) To certify a class pursuant to Rule 23(a)(1), this Court must first make a finding that “the
class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1).
PPH and the Jane Does assert that the class is so numerous that joinder of all members is
impracticable. In support of this assertion, plaintiffs note that, in fiscal year 2015, PPH provided
care to over 500 Arkansas women, men, and teens insured through Medicaid, and in the previous
fiscal year, PPH saw more than 1,100 women, men, and teens insured through Medicaid (Dkt.
No. 51, at 3). PPH and the Jane Does contend that the size of the proposed class readily meets
the numerosity requirement, as joinder of all of PPH’s Medicaid patients is impractical.
PPH and the Jane Does also argue that “joinder of each of PPH’s individual Medicaid
patients is impractical for the additional reason that many patients may be hindered in their
ability to join the litigation by the highly sensitive and personal nature of reproductive health 6

care decisions, and because of their fear of becoming the targets of anti-abortion or anti-Planned Parenthood hostility.” Singleton v. Wulff, 428 U.S. 106, 117 (1976) (“[an abortion patient] may be chilled from such assertion [of her rights] by a desire to protect the very privacy of her decision from the publicity of a court suit.”); Gold Cross Ambulance & Transfer v. City of Kansas City, 705 F.2d 1005, 1016 (8th Cir. 1983) (characterizing the abortion decision at issue in Singleton as “an intimate, private decision” that hindered patients’ ability to assert their rights); Planned Parenthood of Minnesota, Inc. v. Citizens for Cmty. Action, 558 F.2d 861, 865 n.3 (8th Cir. 1977) (recognizing that “the pregnant woman’s ability to assert her own rights is beset with obstacles,” including “her desire to protect her privacy”).
ADHS does not dispute that the numerosity requirement has been met. Plaintiffs have provided sufficient evidence to satisfy their burden as to this factor. See Boyd v. Ozark Air Lines, Inc., 568 F.2d 50, 54 (8th Cir. 1977) (“No arbitrary rules on the size of classes have been established by the courts and the question of what constitutes impracticability depends upon the facts of each case.”)
Rule 23(a)(2) next requires there to be “questions of law or fact common to the class.” Rule 23(a)(2) does not require that every question of law or fact be common to every member of the class. Paxton v. Union Nat. Bank, 688 F.2d 552, 561 (8th Cir. 1982). Commonality may be satisfied “where the question of law linking the class members is substantially related to the resolution of the litigation even though the individuals are not identically situated.” Id. (internal quotations and citations omitted). The existence of even a single common question is sufficient to establish commonality. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, —, 131 S. Ct. 2541, 2556 (2011). PPH and the Jane Does contend that, since this litigation focuses on the injury caused to all class members by the state’s actions, questions of law are necessarily common. See
7

U.S. Fid. and Guar. Co. v. Lord, 585 F.2d 860, 871 (8th Cir. 1978) (commonality requirement met where there is a “basic legal and factual allegation in the Complaint which applies ‘across the board’ to all members of plaintiffs’ class”).
PPH and the Jane Does argue that the Jane Does and the other proposed class members raise the same question of law: whether defendant’s termination of PPH Medicaid provider agreements violates the Medicaid free choice of provider requirement, which states that “any 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). To this point, this Court noted in the Preliminary Injunction Order that the question turns on “whether Arkansas can terminate PPH as a qualified Medicaid provider for the reasons it articulates in this litigation without violating the freedom of choice provision” (Dkt. No. 45, at 23 ̶ 24).
Plaintiffs have demonstrated that there is, in fact, a question of law common to the class. The Court finds this requirement met.
Rule 23(a)(3) includes a “typicality provision [that] requires a demonstration that there are other members of the class who have the same or similar grievances as the plaintiff.” Donaldson v. Pillsbury Co., 554 F.2d 825, 830 (8th Cir. 1977). The typicality requirement generally is satisfied “if the claims or defenses of the representatives and the members of the class stem from a single event or are based on the same legal or remedial theory.’” Paxton, 688 F.2d at 561–62 (quoting C. Wright & A. Miller, Federal Practice and Procedure § 1764 at n.21.1 (Supp. 1982)). “The burden of showing typicality is not an onerous one.” Id. It requires something more than general conclusory allegations, id., but it “is fairly easily met so long as other class members have claims similar to the named plaintiff.” DeBoer v. Mellon Mortgage
8

Co., 64 F.3d 1171, 1174 (8th Cir. 1995). “When the claim arises out of the same legal or remedial theory, the presence of factual variations is normally not sufficient to preclude class action treatment.” Donaldson, 554 F.2d at 831.
ADHS argues that there are differences weighing against a finding of typicality, including that “absent class members will have vastly different circumstances from each other and from the Jane Does that will affect the irreparable harm analysis.” (Dkt. No. 71, at 16). ADHS contends that these differences include, but are not limited to, whether a patient prefers PPH to other Medicaid providers, whether a person has experienced or will experience longer lines and more difficult scheduling at other Medicaid providers compared to PPH, and whether a person has another Medicaid provider to which they have gone, can go, and will go. ADHS also argues that these differences include whether a proposed class member is a Little Rock resident (where the named Jane Does live and about which they have provided information) or a Fayetteville resident (where the named Jane Does do not live and about which they have provided no information) (Dkt. No. 71, at 16). ADHS further contends that typicality is absent because the claim brought for injunctive relief requires resolution not just of the 42 U.S.C. § 1396a(a)(23) issue but also of the threat of irreparable harm. ADHS argues that, given what it contends is an overly broad proposed class, the Court should conclude the differences concerning irreparable harm cause a lack of typicality even where the legal 42 U.S.C. § 1396a(a)(23) issue is similar to all (Dkt. No. 71, at 16 ̶ 17).
PPH and the Jane Does counter this argument by citing an Alabama district court case with facts almost identical to the facts presented here. In that case, the Court found that, “because the only attribute of Doe relevant to the court’s resolution of this claim is one that she shares with all [patients] ̶ namely, that she is a Medicaid recipient who wishes to receive
9

covered care from [Planned Parenthood] ̶ there is no possibility that additional evidence would reveal that the injunction would be any less appropriately entered with respect to another recipient not presently a party to the case.” See Planned Parenthood Southeast, Inc. v. Bentley, Case No. 2:15-cv-620-MHT, 2015 WL 6517875, at *15 (M.D. Ala. Oct. 28, 2015). In addition, there is Eighth Circuit precedent that “[f]actual variations in the individual claims will not normally preclude class certification if the claim arises from the same event or course of conduct as the class claims, and gives rise to the same legal or remedial theory.” See Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996) (citing Donaldson, 554 F.2d at 831).
The Court is satisfied that the typicality requirement is met here. ADHS’s termination of PPH’s Medicaid provider agreements gives rise to identical claims for violation of the free choice of provider right by the Jane Doe plaintiffs and PPH’s other existing and future Medicaid patients. Plaintiffs and other class members will rely on the exact same legal theory in challenging ADHS’s actions.
As for ADHS’s argument that typicality is absent because the purported differences concerning irreparable harm cause a lack of typicality even where the legal 42 U.S.C. § 1396a(a)(23) issue is similar to all, the Court rejects the argument. Throughout this litigation, ADHS has cited the Court to various non-controlling authority from district courts in other circuits in support of its contention that “it is also black letter law that irreparable harm may not be presumed merely from a violation of a statute.” (Dkt. No. 71, at 15). In its analysis of irreparable harm in the Preliminary Injunction Order, the Court discussed more than just the alleged statutory harm (Dkt. No. 45). The Court concluded that the Jane Does, based on the alleged threat of statutory harm and other irreparable harms identified, met their burden to merit injunctive relief (Dkt. No. 45, 18 ̶ 22). On the record before the Court, the Janes Does have put
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into the record evidence that the other forms of harm they identified likely apply to all of the proposed class members. In the Court’s Preliminary Injunction Order, the Court found that the Arkansas Department of Health’s own documents reflect that long wait times and delays in scheduling appointments are commonplace among county health clinics that offer family planning services and other preventative care (Dkt. No. 45, ¶ 26; Dkt. Nos. 26-5, 26-6). The Court finds the typicality requirement met on this record.
Lastly, Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “The focus of Rule 23(a)(4) is whether: (1) the class representatives have common interests with the members of the class, and (2) whether the class representatives will vigorously prosecute the interests of the class through qualified counsel.” Paxton, 688 F.2d at 562 ̶ 63.
The Jane Does argue that they have the same injuries, interests, and legal theories as the class as a whole, demonstrating their ability to represent adequately the class interests. They claim that their interests are not “antagonistic to the remainder of the class,” and, as can be seen already in this case by their quickly responding to the written discovery propounded by ADHS, they “vigorously pursue[]” their claims. DeBoer, 64 F.3d at 1175.
ADHS asserts that “[t]he inquiry into adequacy of representation, in particular, requires the district court’s close scrutiny . . . .” Rattray v. Woodbury County, IA, 614 F.3d 831, 835 (8th Cir. 2010) (citing Hansberry v. Lee, 311 U.S. 32, 41 (1940)). ADHS cites this Court to nonbinding precedent in support of its argument that “to assess the adequacy of the named representatives, courts have looked to factors such as their honesty, conscientiousness, and other affirmative personal qualities.” 7A C. Wright, A. Miller and M. Kane, Federal Practice and Procedure, Civil 2d § 1766 at 308 ̶ 10.
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Based upon the cases from other circuits cited by ADHS in its filing in support of this contention, ADHS asserts that the Jane Does are not conscientious because of certain mistakes on the record that the Jane Does made and later corrected during the very short time frame they were given to respond to the propounded questions. The Eighth Circuit has articulated no specific requirement that courts assess conscientiousness when analyzing whether to certify a class under Federal Rule of Civil Procedure 23. As such, the Court declines to do so. Even if the Court were required to do so, the Court rejects the suggestion that any lack of conscientiousness is demonstrated by the record before it or that any purported issues of honesty or other affirmative personal qualities of the Jane Does dictate that class certification is inappropriate here.
ADHS next argues that federal courts across the county require potential class representatives to prove they are both willing and able to control and supervise class counsel and to participate in the direction and strategy of the litigation.
The Court is unpersuaded by this attempt to expand the adequacy requirement beyond what is required by the Eighth Circuit Court of Appeals — “whether: (1) the class representatives have common interests with the members of the class, and (2) whether the class representatives will vigorously prosecute the interests of the class through qualified counsel.” Paxton, 688 F.2d at 562 ̶ 63. As to the first prong, the Court finds that plaintiffs have common interests with the members of the proposed class. As to the second prong, the Court finds that plaintiffs have “demonstrated a willingness to prosecute the interests of the class through qualified counsel.” Id. at 563. Even if the requirements are as ADHS suggests, this Court noted in a prior Order in this case that “[t]he Jane Does, through the materials they have submitted, have demonstrated they are in communication with counsel and interested in this litigation.”
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(Dkt. No. 66, at 2). The Jane Does have responded to ADHS’s written discovery “in detail and on very short notice.” (Id.). In short, the Court finds even the requirements ADHS suggests satisfied here.
ADHS also attempts to persuade the Court that, because the Jane Does were “recruited” for this litigation and have “work schedules, life schedules, and other obligations,” that they are somehow inadequate to serve as class representatives (Dkt. No. 71, at 9). How the Jane Does came to be involved in this litigation is immaterial to their adequacy to serve as class representatives. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 n.11 (1981); In re Primus, 436 U.S. 412, 422, 426 ̶ 31 (1978). In addition, that the Jane Does have busy work schedules and other obligations does not lead this Court to conclude on the record before it that they “have not been in control of this lawsuit, and they are not able and willing to meaningfully control or supervise Planned Parenthood’s counsel,” as ADHS argues (Dkt. No. 71, at 11).
ADHS next attempts to refute the Jane Does’ claim of adequacy by contending that attorney Jennifer Sandman, counsel for the Jane Does, is “Deputy Director of the Planned Parenthood Federation of America.” (Dkt. No. 71, at 2, n.2). Again, the Court finds it difficult to discern how this argument fits into the Eighth Circuit’s Paxton analysis, but the Court notes that, according to the record before it, Ms. Sandman is Deputy Director of a department within Planned Parenthood Federation of America (“PPFA”) called Public Policy Litigation and Law — a department that conducts litigation throughout the country on behalf of Planned Parenthood affiliates and their patients and, thus, has a traditional attorney-client relationship with PPH and the Jane Does. Neither she nor the organization with whom she works has control over the business decisions of PPH, PPFA, or any other Planned Parenthood entity (Dkt. No. 26-3, ¶ 6).
ADHS also argues that PPH has a financial stake in this litigation that could create a
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conflict. PPH and the Jane Does counter this by claiming that “PPH is a nonprofit organization that brought this action (along with the Jane Does) to enjoin Defendant from excluding PPH from the Medicaid program and to ensure that PPH can continue to ‘provid[e] basic and preventive health care services and medications to the Arkansas women and men who depend on [PPH] for these services.’” (Dkt. No. 3, at 5 ̶ 9, ¶¶ 3, 6, 15). The Jane Does are also represented by Bettina E. Brownstein on behalf of the Arkansas Civil Liberties Union Foundation, the Arkansas affiliate of the American Civil Liberties Union, a not-for-profit organization that has no financial stake in the litigation. On the record before it, and considering all authorities cited, the Court finds that Rule 23(a)(4)’s adequacy requirement has been met.
B. Rule 23(b) Having determined that the Jane Does meet Rule 23(a)’s requirements, the Court turns to examine the requirements of Rule 23(b). PPH and the Jane Does move to certify the class under Rule 23(b)(2), or, in the alternative, under Rule 23(b)(1)(B). Rule 23(b)(2) applies if the defendant has “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). The Jane Does argue that the United States Supreme Court and the Eighth Circuit have recognized that class actions under Rule 23(b)(2) are particularly appropriate in the context of civil-rights litigation. See Amchem, 521 U.S. at 614; see also Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980) (reversing denial of certification under 23(b)(2) of a class of inmates confined at the state hospital claiming violation of their constitutional rights); U.S. Fid. and Guar. Co., 585 F.2d at 875 (affirming certification under 23(b)(2) of a class of female employees claiming sex discrimination). Indeed, “[b]ecause one purpose of Rule 23(b)(2) was to enable plaintiffs to bring lawsuits vindicating civil rights, the rule must be read
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liberally in the context of civil rights suits.” Coley, 635 F.2d at 1378 (internal quotation marks and citation omitted).
PPH and the Jane Does also claim that certification under Rule 23(b)(2) is appropriate here because the primary relief sought is declaratory or injunctive. See Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1035 (8th Cir. 2010); In re St. Jude Med., Inc., 425 F.3d 1116, 1121 (8th Cir. 2005). If the Rule 23(a) prerequisites have been met and injunctive or declaratory relief has been requested, the action usually should be allowed to proceed under subdivision (b)(2). DeBoer, 64 F.3d at 1175. In addition, class claims must be cohesive: “Injuries remedied through (b)(2) actions are really group, as opposed to individual injuries.” In re St. Jude, 425 F.3d at 1122 (citation omitted); see also Paxton, 688 F.2d at 563 (district court erred in denying certification under 23(b)(2) in “case seeking injunctive relief against class-wide race discrimination in the bank’s promotion practices.”); Coley, 635 F.2d at 1378 (district court erred in denying certification under 23(b)(2) where inmate class members presented common questions of allegedly unlawful commitment procedures and conditions); U. S. Fid. and Guar. Co., 585 F.2d at 875 (certification of class claiming sex discrimination proper under 23(b)(2) where dispute turned on “acts of an employer on. . . grounds generally applicable to the class”) (internal quotation marks and citation omitted).
PPH and the Jane Does state that, because their claims “turn[] on a single question that uniformly applie[s] to all class members . . . ,” and “[r]esolution of that question as to one of the plaintiffs necessarily resolve[s] the issue for the entire class,” Avritt, 615 F.3d at 1036 (discussing DeBoer, 64 F.3d 1171), and because class certification is sought to vindicate the rights of PPH’s patients under the Medicaid Act through injunctive and declaratory relief, class certification should be granted pursuant to Rule 23(b)(2). PPH and the Jane Does argue that
15

ADHS’s decision to terminate PPH from participation in the Medicaid program affects all class members identically, in that, absent relief from this Court, they will no longer be able to obtain family planning and other preventative healthcare services from their Medicaid provider of choice. PPH and the Jane Does further argument that the relief sought – a declaratory judgment preventing PPH’s termination from the Medicaid program and an injunction allowing it to continue providing services to its existing and future Medicaid patients – is identical as to all class members.
ADHS argues that, because of the scope of the proposed class, the Jane Does also cannot meet the requirements of Rule 23(b)(2) (Dkt. No. 71, at 17, n.18). ADHS claims that injunctive relief is “not appropriate to the whole class because the proposed class would include people who – under anybody’s conception of the correct legal test – either definitely do not, or may not, have irreparable harm.” (Id.). ADHS claims that the proposed class is too broad, imprecise, and subjective to meet Rule 23(b)(2)’s requirements.
The Court finds that ADHS acted on grounds that generally apply to the class when it terminated PPH from the Medicaid program, affecting all class members, and that injunctive relief is appropriate as to the class as a whole if relief is to be granted. Finding that the requirements of Rule 23(b)(2) are met, the Court does not reach plaintiffs’ arguments as to Rule 23(b)(1)(B).
C. Scope of the Class ADHS argues that, if the Court decides to certify a class, it should certify a “more precise, ascertainable, and efficient class” (Dkt. No. 71, at 19). ADHS requests that the Court limit the class to existing patients of PPH’s Little Rock facility because it claims those are objectively the patients whose claims, including irreparable harm, are similar enough to the
16

named Jane Does’ claims for class certification. “The class definition must be drafted in such a way to ensure that membership is ascertainable by some objective standard.” Walls v. Sagamore Ins. Co., 274 F.R.D. 243, 250 (W.D. Ark. 2011) (citing In re Teflon Products Liab. Litig., 254 F.R.D. 354, 360 (S.D. Iowa 2008)). In ascertaining the class, the court “should not be required to resort to speculation, or engage in lengthy, individualized inquiries.” Brown v. Kerkhoff, 279 F.R.D. 479, 496 (S.D. Iowa 2012) (internal quotation marks and citation omitted). Federal Rule of Civil Procedure 23(c)(1)(B) states that “an order that certifies a class action must define the class and the class claims, issues, or defenses . . . .” Courts should make sure the class definition is clear and that the membership of the class is ascertainable. See Riedel v. XTO Energy, Inc., 257 F.R.D. 494, 506 (E.D. Ark. 2009); see also Brown, 279 F.R.D. at 496 (same).
ADHS argues that the proposed class definition is overbroad, imprecise, and subjective (Dkt. No. 71, at 18). ADHS claims that it is unclear what the difference is between patients “who seek to obtain . . . covered health services at PPH” and patients who “desire to obtain . . . covered health services at PPH.” It also claims that, “to the extent that the proposed class includes people who have never set foot in a PPH facility or can afford to pay for PPH services even without the Medicaid program, it would cause significant typicality and efficiency concerns.” (Dkt. No. 71, at 18). PPH and the Jane Does contend that the argument that some class members will be able to pay for care out of pocket is misplaced because, by definition, Medicaid recipients are needy individuals and families who cannot afford medical care on their own and have therefore been determined by the state to be financially eligible for the program. See Ark. Admin. Code R. 016.20.1-A-100; R. 016.20.1-E-100.
In response, PPH and the Jane Does contend that the proposed class is sufficiently precise and ascertainable, and they contend that there exists an administratively feasible method for
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ascertaining the class (Dkt. No. 72, at 9). They claim that the proposed class definition is based on objective, straightforward criteria: whether a Medicaid patient seeks or desires to seek services from PPH. PPH and the Jane Does state that the distinction between patients who “seek to obtain” and “desire to obtain” covered services from PPH is necessary at this time because the injunction currently in place does not enjoin ADHS from suspending Medicaid payments to PPH for services rendered to Medicaid beneficiaries other than the Jane Does. Thus, there may be class members who desire to obtain Medicaid services from PPH but will not seek to obtain them at this time. PPH and the Jane Does add that, should the class be certified and the preliminary injunction extended, these two categories would merge to cover all current and future Medicaid patients of PPH. PPH and the Jane Does further note that both ADHS and PPH keep records of the patients who receive Medicaid-eligible services at PPH and that, therefore, there is an administratively simple way to determine who the class members are both currently and as new patients seek Medicaid services at PPH.
Ascertainability does not require that a plaintiff must be able to identify all class members at the time of class certification; rather, a plaintiff need only show that class members can be identified. See Riedel, 257 F.R.D. at 506 (quoting Manual for Complex Litigation § 21.222 (4th ed. 2004)). PPH and the Jane Does argue that fluidity of a class weighs in favor of class certification. See Brown v. Plata, 131 S. Ct. 1910, 1926, 1940 (2011) (affirming class-wide injunctive relief for classes of “seriously mentally ill persons in California prisons” and California “state prisoners with serious medical conditions” and observing that “[r]elief targeted only at present members of the plaintiff classes may . . . fail to adequately protect future class members who will develop serious physical or mental illness”; injunctive relief should extend to “[p]risoners who are not sick or mentally ill [and thus who] do not yet have a claim that they
18

have been subjected to care that violates the Eighth Amendment . . . [because] [t]hey are that system’s next potential victims”).
The Court finds that the class definition is drafted in a way such that class members are ascertainable by objective criteria and declines to narrow the scope of the class.
D. Certification As To All Claims ADHS argues that, in PPH and the Jane Does’ motion for class certification, they only suggest that the 42 U.S.C. § 1396a(a)(23) claim meets Rule 23(a)’s commonality and typicality requirements. ADHS also states that inPPH and the Jane Does’ discussion of the reasons that certification is proper under Rule 23(b)(2) or 23(b)(1)(b), they only discuss the Medicaid Act claim. In response to ADHS’s claims that the Rule 23 requirements have not been met for PPH and the Jane Does’ two constitutional claims in this case, plaintiffs argue that the class certification analysis is the same for the statutory Medicaid Act claims and the constitutional claims, in that, under either legal theory, the Jane Does and other members of the proposed class are identically situated—“they are individuals who desire to receive family planning and other preventive health services from PPH through the Medicaid program, and whose ability to do so is jeopardized by DHS’s termination of PPH from the Medicaid program” (Dkt. No. 72, at 11). The Court declines to limit class certification to the 42 U.S.C. § 1396a(a)(23) claim because the injunctive relief that PPH and the Jane Does seek applies to all claims.
E. Evidentiary Hearing On Class Certification ADHS requested an evidentiary hearing on the matters of class certification, and the Court denied that request. At the hearing conducted on this motion, ADHS orally renewed its request for precertification discovery or an evidentiary hearing on class certification. The Court again denies these requests.
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ADHS claims that precertification discovery or an evidentiary hearing will provide the Court the best opportunity to determine whether or not the moving party has satisfied the requirements of Rule 23 and, thus, will best protect absent potential class members. In support of its argument, ADHS cites International Woodworkers of America AFL-CIO, CLC v. GeorgiaPacific Corp., 568 F.2d 64 (8th Cir. 1977), and claims that the Eighth Circuit reversed the district court where the district court denied class certification and dismissed outright a putative class action complaint, acting without holding a hearing or taking evidence on the Rule 23 factors. PPH and the Jane Does argue that the current record contains enough evidence to show that the Jane Doe plaintiffs have met the standard for class certification.
The case on which ADHS relies quotes another Eighth Circuit case, Walker v. World Tire Corporation, 563 F.2d 918 (8th Cir. 1977), for the proposition that “[t]he District Court must have before it ‘sufficient material . . . to determine the nature of the allegations, and rule on compliance with the Rule’s requirements . . . .’ Securing this material does not always require a formal evidentiary hearing. . . . Where, however, the pleadings themselves do not conclusively show whether the Rule 23 requirements are met, the parties must be afforded the opportunity to discover and present documentary evidence on the issue.” Id. at 921. This Court concludes that the record before the Court is sufficient for the Court to conclude that the Rule 23 requirements examined by this Court have been met. The Court sees no reason to reconsider its prior rulings on these issues.
III. Conclusion For the foregoing reasons, plaintiffs’ motion for class certification pursuant to Federal Rule of Civil Procedure 23 is granted. Counsel for PPH and the Jane Does, Jennifer Sandman
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and Bettina Brownstein, are appointed as class counsel for this action. The Court directs the parties to confer to submit a proposed class notice within 10 days of the date of this Order.
SO ORDERED this 25th day of January, 2016. _______________________________ Kristine G. Baker United States District Judge
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 Case 4:15-cv-00566-KGB Document 127 Filed 09/29/16 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

PLANNED PARENTHOOD ARKANSAS & EASTERN OKLAHOMA, d/b/a PLANNED PARENTHOOD OF THE HEARTLAND; JANE DOE #1, JANE DOE #2; and JANE DOE #3

PLAINTIFFS

v.

Case No. 4:15-cv-00566-KGB

CINDY GILLESPIE, DIRECTOR, ARKANSAS DEPARTMENT OF HUMAN SERVICES, in her official capacity

DEFENDANT

PRELIMINARY INJUNCTION ORDER ON BEHALF OF THE PATIENT CLASS Before the Court is the motion for preliminary injunction on behalf of Patient Class1 filed

by plaintiffs Planned Parenthood of Arkansas & Eastern Oklahoma, d/b/a Planned Parenthood of

the Heartland (“PPH”) and Jane Doe #1, Jane Doe #2, and Jane Doe #3 (“Jane Does”) (Dkt. No.

98). Defendant Cindy Gillespie, who is sued in her official capacity as Director of the Arkansas

Department of Human Services (“ADHS”), has responded in opposition to the motion (Dkt. No.

105). PPH and the Jane Does have replied (Dkt. No. 109). ADHS then filed a sur-reply (Dkt.

No. 120) and subsequently informally requested permission from the Court to file a supplemental

response to her response in opposition to the motion to expand the preliminary injunction to the

1 On January 25, 2016, the Court granted a motion to certify a class (referred to in this Order as the “Patient Class”) (Dkt. No. 86). The certified class consists of patients who seek to obtain, or desire to obtain, health care services in Arkansas at PPH through the Medicaid program. The Court notes that other cases with claims like those presented here have proceeded without a class being certified, with class-wide injunctive relief being granted based on the general equity powers of the court or the so-called “necessity doctrine.” See, e.g., Planned Parenthood of Kansas and Mid-Missouri v. Mosier, Case No. 16-2284-JAR-GLR, 2016 WL 3597457 (D. Kan. 2016) (granting preliminary injunction that reinstates provider agreement without ruling on motion for class certification); Planned Parenthood S.E., Inc. v. Bentley, 141 F.Supp.2d 1207, 1226-27 (M.D. Ala. 2015) (same); Planned Parenthood Gulf Coast, Inc. v. Kliebert, 141 F.Supp.3d 605, 652 (M.D. La. 2015), aff’d – F.3d –, 2016 WL 4895921 (5th Cir. 2016) (same).

Case 4:15-cv-00566-KGB Document 127 Filed 09/29/16 Page 2 of 21
Patient Class. The Court granted this request, and ADHS filed a supplemental response (Dkt. No. 121). PPH and the Jane Does then filed supplemental memorandums in support of their motion (Dkt. Nos. 122, 124), to which the Court gave ADHS an opportunity to respond. ADHS filed a further reply in opposition to plaintiffs’ preliminary injunction motion and a response to the notice of supplemental authority (Dkt. Nos. 125, 126).
PPH and the Jane Does ask this Court, pursuant to Federal Rule of Civil Procedure 65, for a preliminary injunction on behalf of the Patient Class preliminarily enjoining ADHS from terminating the Medicaid provider agreements of PPH. Alternatively, PPH and the Jane Does ask this Court to expand the preliminary injunction to cover the Patient Class pursuant to Federal Rule of Civil Procedure 62(c).
I. Procedural Background PPH and the Jane Does first filed a motion for temporary restraining order and preliminary injunction on September 11, 2015 (Dkt. No. 3). In this motion, PPH and the Jane Does alleged that, starting on September 21, 2015, absent an injunction, patients insured through the Medicaid program who choose to get family planning and other health care services at PPH would lose access to services, would lose their provider of choice, would find their family planning services interrupted, and would be left with few or no adequate alternative providers (Dkt. No. 12, ¶¶ 8, 34). PPH and the Jane Does also contended that, “[i]f PPH is forced to stop providing care through the Medicaid program, a dire situation will become critical. The remaining providers will be simply unable to absorb PPH’s patients, leaving those patients without access to crucial medical services.” (Dkt. No. 12, ¶ 43). Further, they alleged that, “[w]ithout Medicaid reimbursements, PPH may be unable to continue to provide services in the same manner and may be forced to lay off staff members
2

Case 4:15-cv-00566-KGB Document 127 Filed 09/29/16 Page 3 of 21
and/or reduce hours at one or both health centers.” (Dkt. No. 12, ¶ 49). They also alleged that, “if PPH’s termination from the Medicaid program is allowed to take effect for some period of time and it then is later allowed to become a Medicaid provider again, some patients will remain confused about whether PPH is a Medicaid provider in good standing, and therefore will not return as patients.” (Dkt. No. 12, ¶ 49). In their original motion for preliminary injunction PPH and the Jane Does claimed, and in their motion to expand the preliminary injunction PPH and the Jane Does claim, that the suspension of Medicaid payments violates certain provisions of the Medicaid statutory and regulatory scheme set out in 42 U.S.C. § 1396 and violates their rights under the First and Fourteenth Amendments to the United States Constitution.
Counsel for ADHS has argued to the Court that any assertion of irreparable harm by PPH is, and has been, illusory because, under the Medicaid program, PPH has up to one year after providing services to a patient to seek reimbursement for the cost of that service. In other words, ADHS advanced the argument that PPH could continue to provide services in the same manner with the possibility of reimbursement within one year after providing services and suffer no real financial harm. The one-year reimbursement time limit ends on October 1, 2016.
On September 18, 2015, this Court granted PPH and the Jane Does’ motion for temporary restraining order (Dkt. No. 21). The Court temporarily restrained ADHS “for a period of 14 days from the date of entry of this Order from suspending Medicaid payments to PPH for services rendered to Medicaid beneficiaries, including but not limited to the Jane Does.” (Dkt. No. 21, at 19). At that stage of the proceedings, the Court conducted a status conference with counsel concerning a briefing schedule and potential hearing. For the reasons set forth in its Order, the Court permitted ADHS to obtain evidentiary material from the Jane Does (Dkt. No. 25). The Court did not regulate the number, scope, or timing of the written questions ADHS submitted to
3

Case 4:15-cv-00566-KGB Document 127 Filed 09/29/16 Page 4 of 21
the Jane Does. The Court instructed counsel from both sides to meet and confer on these matters, and although the Court did later enter an Order clarifying its earlier Order on the permitted discovery, the Court was not asked to resolve or clarify any other issues in regard to the questions submitted to the Jane Does (Dkt. No. 32). Also at that stage of the proceeding, the Court raised with counsel again, and directed counsel to brief, standing issues.
On October 2, 2015, the Court then entered a preliminary injunction more limited in scope – limiting the relief granted to just the Jane Does (Dkt. Nos. 44, 45). The Court subsequently granted PPH and the Jane Does leave to file a second amended complaint (Dkt. No. 63). In their second amended complaint, PPH and the Jane Does added class action allegations (Dkt. No. 64, ¶¶ 50-55). At the same time, PPH and the Jane Does moved this Court to certify a class of patients who seek to obtain, or desire to obtain, health care services in Arkansas at PPH through the Medicaid program (Dkt. No. 50).
On October 6, 2015, ADHS filed a motion for leave to notice four depositions (Dkt. No. 56). The Court conducted a status hearing on the motion. ADHS requested leave to depose Jane Doe #1, Jane Doe #2, and Jane Doe #3 and to conduct a Federal Rule of Civil Procedure 30(b)(6) deposition of a PPH representative before responding to the pending motion for class certification. ADHS claimed that it sought these depositions to test, at least, the typicality and adequacy requirements for class certification (Dkt. No. 55, at 4). ADHS wanted to conduct this discovery prior to the Court ruling on the then-pending motion for class certification. For reasons set out in its Order, the Court denied the motion for leave to notice four depositions and for expedited discovery (Dkt. No. 66).
On January 25, 2016, the Court granted the motion to certify a class (referred to in this Order as the “Patient Class”) (Dkt. No. 86). The certified class consists of patients who seek to
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obtain, or desire to obtain, health care services in Arkansas at PPH through the Medicaid program. ADHS sought interlocutory review of this Court’s class certification Order and denial of the motion for expedited pre-certification discovery decision. See Planned Parenthood Ark. & E. Okla., d/b/a Planned Parenthood of the Heartland v. Selig, Case No. 16-8003 (8th Cir. Feb. 5, 2016). The Eighth Circuit Court of Appeals denied ADHS’s request for interlocutory review. Id.
PPH and the Jane Does then moved for a preliminary injunction extending to the newlycertified Patient Class the same relief already granted the Jane Does (Dkt. No. 98). ADHS subsequently filed a motion seeking expedited discovery before the Court ruled on the motion for preliminary injunction seeking to extend to the newly-certified class the same relief already granted to the Jane Does (Dkt. No. 113). PPH and the Jane Does responded in opposition to the motion for expedited discovery (Dkt. No. 115), and ADHS replied (Dkt. No. 116). The Court then conducted a status conference to discuss the motion for expedited discovery on August 19, 2016, before eventually denying the motion (Dkt. No. 119).
Since the status conference, ADHS has filed a sur-reply (Dkt. No. 120) and subsequently informally requested permission from the Court to file a supplemental response to its response in opposition to the motion to expand the preliminary injunction to the patient class. The Court granted this request, and ADHS filed a supplemental response (Dkt. No. 121). PPH and the Jane Does then filed supplemental memorandums in support of their motion (Dkt. Nos. 122, 124), to which the Court gave ADHS an opportunity to respond. ADHS filed a further reply in opposition to plaintiffs’ preliminary injunction motion and a response to notice of supplemental authority (Dkt. Nos. 125, 126).
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II. Findings Of Fact The Court makes the following findings of fact, and the Court incorporates by reference as if restated herein word for word all findings of fact from its Order granting the motion for preliminary injunction as to the Jane Does (Dkt. No. 45). 1. The Patient Class certified in this matter consists of patients who seek to obtain, or desire to obtain, health care services in Arkansas at PPH through the Medicaid program. 2. Since this Court issued its Order granting the motion for preliminary injunction as to the Jane Does on October 2, 2015, ADHS has only been required to reimburse PPH for Medicaid services provided to these three patients identified in this litigation as the Jane Does; ADHS has not made such reimbursements to PPH for any other Medicaid patients (Dkt. No. 105, at 5). 3. Mark White, Deputy Director of ADHS, who supervises the Division of Medical Services which administers Arkansas’s Medicaid Program, states that “at Governor Asa Hutchinson’s directive, DHS Director John Selig gave written notice that DHS would terminate the three (3) PPH provider agreements in 30 days, exercising its rights to do so under the ‘voluntary’ termination provision (Section III.A) of said agreements.” (Dkt. No. 16-1, ¶5). 4. Both prior to October 2, 2015, and between October 2, 2015, and the present, at its two Arkansas health centers, PPH has provided services to patients insured through the Medicaid program without charging patients for Medicaid-eligible services (Dkt. No. 102, ¶ 1). 5. From October 2, 2015, to the present, PPH has not reduced, altered, or discontinued the services available to Medicaid patients in its two Arkansas health centers as a result of PPH not currently being able to seek reimbursement for Medicaid-eligible services provided to Medicaid patients other than the three named Jane Doe Plaintiffs (Id., ¶ 2).
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6. From October 2, 2015 to the present, PPH has stated “Medicaid Accepted” on the websites for its Little Rock and Fayetteville, Arkansas, health centers (Id., ¶ 3).
7. The clinic hours, the availability and hours of walk-in services, and staffing at PPH’s two Arkansas health centers have not decreased since October 2, 2015, as a result of PPH’s current inability to seek reimbursement for Medicaid-eligible services provided to Medicaid patients other than the three named Jane Doe Plaintiffs (Id., ¶ 4).
8. PPH and the Jane Does state that in late February and early March 2016, Holly Ajanel, Center Manager of the Little Rock Health Center at PPH, placed telephone calls to the Little Rock Family Practice Clinic’s two locations in Little Rock, Arkansas, and asked about appointment availability for a new Medicaid patient seeking birth control services. Both locations informed Ms. Ajanel that they are not accepting Medicaid patients. The staff member with whom Ms. Ajanel spoke also told her that, while their doctors can perform services such as pap smears, they usually suggest that patients obtain such services from their obstetrician/gynecologist because that is their specialty (Dkt. No. 99, Ex. A, ¶ 1).
9. In the same time period, Ms. Ajanel placed a telephone call to the Genesis Women’s Clinic, PA, in Little Rock, Arkansas, and again asked about appointment availability for a new Medicaid patient seeking birth control services. The staff member with whom she spoke represented to her that Medicaid patients must have a referral from a primary care physician in order to obtain these services (Id., ¶ 3).
10. In March 2016, Ms. Ajanel placed telephone calls to the Arkansas Department of Health’s Central Unit and North Little Rock, Arkansas, locations and again asked about services for a new Medicaid patient seeking birth control. Both locations told her that they do not provide birth control on a walk-in basis, and they also informed her that a patient would be required to
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have a pelvic exam before obtaining hormonal birth control such as birth control pills. Ms. Ajanel also called the Arkansas Department of Health’s Southwest Little Rock, Arkansas, unit, was told that they do not offer birth control services, and was referred instead to call the Central Unit (Id., ¶ 4).
11. Ms. Teesha Taylor, Training Manager at PPH, placed a telephone call on March 11, 2016, to Her Health Washington Regional in Fayetteville, Arkansas, and inquired about appointment availability for a new Medicaid patient seeking birth control services. The staff member with whom Ms. Taylor spoke informed her that they were not accepting Medicaid patients who are not pregnant (Dkt. No. 99. Ex. B, ¶ 2).
12. On the same date, Ms. Taylor placed a telephone call to Northwest Arkansas Ob/Gyn Associates in Springdale, Arkansas, also known as Creekside Center for Women, and again inquired about appointment availability for a new Medicaid patient seeking birth control services. The staff member with whom Ms. Taylor spoke informed her that Medicaid patients seeking such services must have a referral from a primary care physician. The staff member also told Ms. Taylor that, to receive hormonal contraception, patients must have a pap smear. The staff member also represented to Ms. Taylor that patients cannot be seen on a walk-in basis, that appointment availability depends on which doctor is requested, but that appointment lead times are usually in the three to four week range (Id., ¶ 3).
13. On March 14, 2016, Ms. Taylor placed a telephone call to Mercy Health System of NWA, Inc., in Rogers, Arkansas, and inquired about appointment availability for a new Medicaid patient seeking birth control services. PPH and the Jane Does represent that, from www.mapquest.com, Rogers, Arkansas, is located approximately 24 miles from Fayetteville, Arkansas. The staff member with whom Ms. Taylor spoke told her that Medicaid patients
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seeking such services must have a referral from a primary care physician. The staff member also told Ms. Taylor that, to receive hormonal contraception, patients must have a pap smear. Finally, the staff member told Ms. Taylor that the first available appointment would not be for at least seven weeks. Ms. Taylor asked if there were any other health centers within the Mercy System at which she could obtain reproductive healthcare, and the staff member stated that there were not unless she was pregnant (Id., ¶ 4).
III. Conclusions Of Law PPH and the Jane Does move this Court pursuant to Federal Rule of Civil Procedure 65 for a preliminary injunction on behalf of the Patient Class preliminarily enjoining Ms. Gillespie, her employees, agents, and successors in office “from terminating the Medicaid provider agreements of [PPH]” (Dkt. No. 98, at 1). Plaintiffs alternatively request that the Court modify the injunction previously entered and extend its coverage to the Patient Class pursuant to Federal Rule of Civil Procedure 62(c).
A. Jurisdiction On October 2, 2015, when the Court entered the order preliminarily enjoining ADHS from suspending Medicaid payments to PPH for services rendered to Medicaid beneficiaries the Jane Does until further order from this Court, ADHS immediately appealed that Order. ADHS represents that the briefing on the appeal is complete, and the case is ready for oral argument (Dkt. No. 105, Ex. F). “An appeal to the circuit court divests the district court as to those issues involved in the appeal.” In re Grand Jury Subpoena Duces Tecum, 85 F.3d 372, 376 (8th Cir. 1996); see also Board of Education of St. Louis v. State of Missouri, 936 F.2d 993, 995 (8th Cir. 1991); St. Jude Medical, S.C., Inc. v. Biosense Webster, Inc., 2015 WL 317362 at *1 (D. Minn. Jan. 26, 2015).
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Rule 62(c) is an exception to the general rule that an appeal divests the district court of jurisdiction with regard to the issues involved in the appeal. Rule 62(c) provides that, “[w]hile an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” Fed. R. Civ P. 62(c).
PPH and the Jane Does argue that “[i]t is axiomatic that while appeal of a preliminary injunction is pending, the district court retains jurisdiction to continue proceedings in the case before it, including to reach final judgment on the case. As the Eighth Circuit has observed, ‘the pendency of an interlocutory appeal from an order granting or denying a preliminary injunction does not wholly divest the District Court of jurisdiction over the entire case’ and thus is no impediment to its being tried or otherwise finally resolved. West Pub. Co. v. Mead Data Cent. Inc., 799 F.2d 1219, 1229 (8th Cir. 1986); see Janousek v. Doyle, 313 F.2d 916, 920 (8th Cir. 1963) (‘filing of the notice of appeal from [interlocutory order denying a preliminary injunction motion] does not… divest the district court of jurisdiction to proceed with the cause with respect to any matter not involved in the appeal.’); United States v. Queen, 433 F.3d 1076, 1077 (8th Cir. 2006) (‘Although a federal district court and a federal court of appeals should not assert jurisdiction over a case at the same time, a notice of appeal only divests the lower court of jurisdiction over aspects of the case that are the subject of the appeal.’); 11A Fed. Prac. & Proc. Civ. § 2962 (3d ed.) (‘An appeal from the grant or denial of a preliminary injunction does not divest the trial court of jurisdiction or prevent it from taking other steps in the litigation while the appeal is pending. According to Rule 62(a) there is no automatic stay of the judgment in an injunction suit pending an interlocutory appeal. . . and the case may proceed to a trial on the merits.’). . . .” (Dkt. No. 109, at 6-7).
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Plaintiffs also note that they are asking the Court to issue a new preliminary injunction protecting Patient Class members who were not previously before the Court. The members of the class were not parties to this action when the Court issued its preliminary injunction Order as to the Jane Does (Dkt. No. 45). This Court has examined the arguments proffered by ADHS contending that this Court does not have jurisdiction to decide the instant motion under either Rule 65 or Rule 62(c). After considering the parties’ arguments and examining the authorities cited, the Court finds that the Court has the authority to proceed in resolving pending issues in this case to move this case toward final disposition. Thus, this Court finds that it has jurisdiction to analyze the pending motion under Rule 65.
Further, other courts presiding in cases with claims like those presented here have proceeded without a class being certified, with class-wide injunctive relief being granted based on the general equity powers of the court or the so-called “necessity doctrine.” See, e.g., Planned Parenthood of Kansas and Mid-Missouri v. Mosier, Case No. 16-2284-JAR-GLR, 2016 WL 3597457 (D. Kan. 2016) (granting preliminary injunction that reinstates provider agreement without ruling on motion for class certification); Planned Parenthood S.E., Inc. v. Bentley, 141 F.Supp.2d 1207, 1226-27 (M.D. Ala. 2015) (same); Planned Parenthood Gulf Coast, Inc. v. Kliebert, 141 F.Supp.3d 605, 652 (M.D. La. 2015), aff’d – F.3d –, 2016 WL 4895921 (5th Cir. 2016) (same). This Court finds it appropriate to proceed in analyzing the pending motion and considering what relief the Patient Class should be afforded at this stage.
B. The Dataphase Factors The Court incorporates by reference as if restated herein word for word its analysis of the Dataphase factors in its Order granting the motion for preliminary injunction as to the Jane Does (Dkt. No. 45, at 17-31). See Kroupa v. Nielsen, 731 F.3d 813, 818 (8th Cir. 2013) (quoting
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Dataphase Sys. Inc. v. CL Sys., 640 F.2d 109, 114 (8th Cir. 1981)). The analysis of the factors as to the Jane Does in the previous Order applies equally to the analysis of these same factors for the Patient Class. The Court will specifically address in this Order the irreparable harm factor, as this is one of the arguments posited by ADHS in its opposition to the issuance of a preliminary injunction to the Patient Class.
1. The Threat Of Irreparable Harm A plaintiff seeking temporary injunctive relief must establish that the claimant is “likely to suffer irreparable harm in the absence of preliminary relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A threat of irreparable harm exists when a party alleges a harm that may not be compensated by money damages in an action at law. See Kroupa, 731 F.3d at 820; Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d 367, 371-72 (8th Cir. 1991). Courts in the Eighth Circuit will not issue an injunction in the absence of evidence of class-wide irreparable harm. See, e.g., Agnotti v. Rexam Inc., 2006 WL 3043130 at *13 (D. Minn. 2006). As this Court has observed, Arkansas law is instructive although admittedly not controlling on this issue. The Supreme Court of Arkansas has found in other contexts that harm to a doctor-patient relationship can constitute irreparable harm. See Baptist Health v. Murphy, 226 S.W.3d 800 (Ark. 2006); Cf. Roudachevski v. All–American Care Centers, Inc., 648 F.3d 701 (8th Cir. 2011) (holding that an already-disrupted doctor-patient relationship did not constitute irreparable harm). Here, PPH and the Jane Does allege that the Patient Class will suffer irreparable harm absent the requested injunction because the class members’ relationship with PPH, their chosen family planning provider, will be disrupted, causing reduced access to family planning services in violation of their statutory rights under 42 U.S.C. § 1396a(a)(23). ADHS again argues, as it
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did in opposition to the first motion for preliminary injunction in this matter, that alternative providers are available. As the Court found in its Order granting the motion for preliminary injunction, the right does not protect the class members’ right to a substitute or similar provider. As this Court has concluded, the right entails “an absolute right to be free from government interference with the choice to [receive family planning services from a provider] that continues to be qualified.” O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 785 (1980). Here, the Patient Class consists of patients who seek to obtain, or desire to obtain, health care services in Arkansas at PPH through the Medicaid program (Dkt. No. 86).
In addition to disrupting the class members’ relationship with their chosen provider of family planning services and other preventive healthcare, this loss would reduce the Patient Class’s access to such services by depriving its members of access to PPH’s flexible and convenient scheduling. The Court has already recognized in its motion certifying the class that these harms would affect the class as a whole (Dkt. No. 86, at 16). Based on the record before the Court, the Court confirms that these harms would affect the Patient Class as a whole.
PPH and the Jane Does have also supplementally provided notice to the Court that, on September 14, 2016, a panel of the United States Court of Appeals for the Fifth Circuit unanimously affirmed a preliminary injunction enjoining Louisiana from terminating a Planned Parenthood affiliate from Medicaid following the release of the videos at issue here. Planned Parenthood of Gulf Coast, Inc. v. Gee, 2016 WL 4895921 (5th Cir. Sept. 14, 2016). The Fifth Circuit agreed with the Louisiana district court that the individual plaintiffs “will almost certainly suffer irreparable harm” without a preliminary injunction because they “would otherwise be denied both access to a much needed medical provider and the legal right to the qualified provider of their choice.” Id. at *16. Specifically, the Fifth Circuit found that it was
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“beside the point” that the individual plaintiffs could find health services elsewhere because they “would be denied the provider of their choice guaranteed under 42 U.S.C. § 1396a(a)(23).” Id.
Even if this Court were to assume that the violation of the choice-of-provider right is not enough to constitute the threat of irreparable harm, although this Court believes it is, PPH and the Jane Does have placed into the record affidavits of Holly Ajanel, the Center Manager of the Little Rock Health Center at PPH, and Teesha Taylor, the Training Manager at PPH (Dkt. No. 99, Exs. A, B). Both Ms. Ajanel and Ms. Taylor state under oath that they contacted other providers in Pulaski County and Washington County, Arkansas, some of whom stated they could not provide specific services offered by PPH, they were not accepting Medicaid patients, and enumerated various other hurdles a Medicaid patient would face in obtaining family planning and reproductive services from their clinics (Id.). As a result, it is the finding of this Court for all of these reasons that plaintiffs have met their burden to demonstrate the threat of irreparable harm to the Patient Class, if the motion for preliminary injunction is not granted.
2. PPH’s Coverage of Medicaid Patient Costs ADHS contends that the Patient Class does not face the threat of irreparable harm by the termination of PPH from the Medicaid program because PPH has temporarily covered the cost of these services while plaintiffs have gone through the steps needed to try to obtain a broader preliminary injunction that would protect the ability of all of PPH’s Medicaid patients to receive services from PPH through the Medicaid program (Dkt. No. 105, at 5-9). PPH and the Jane Does assert that this argument fails because PPH—a non-profit medical provider committed to providing family planning services and other preventive care to the women and men of Arkansas—cannot continue providing services without payment indefinitely. Rather, PPH puts forth record evidence that it decided to take on this burden to protect its patients while plaintiffs’ motion for class certification and subsequent motion for a preliminary injunction on behalf of the
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newly-certified Patient Class were pending (Dkt. No. 109, Ex. A, de Baca Decl. ¶ 6). Suzanna de Baca, President and Chief Executive Officer of PPH, represents that, if the Court denies the instant preliminary injunction motion, PPH will no longer provide services to its Medicaid patients without payment; these patients will be forced to either pay out of pocket for these services or attempt to obtain services from another Medicaid provider (Id., ¶ 8).
ADHS claims that this Court should not find Ms. de Baca’s statements credible because she allegedly misrepresented PPH’s ability or willingness to provide services to Medicaid patients in the absence of a preliminary injunction in her prior declaration and in PPH’s briefing. Specifically, ADHS claims that Ms. de Baca stated that, if the Court did not grant injunctive relief, patients would be denied access to Medicaid services at PPH, their provider of choice (Dkt. No. 105, at 2-5). That situation has not come to pass yet, based on the record evidence.
In response, PPH and the Jane Does contend that ADHS’s “accusations ignore the procedural history of this case. When the statements [ADHS] complains of were made, PPH did not contemplate a scenario where this Court ruled in plaintiffs’ favor on all four preliminary injunction factors but determined that in the absence of class certification it could not grant a preliminary injunction that covered all of PPH’s patients.” (Dkt. No. 109, at 4). PPH and the Jane Does also state “that Ms. de Baca’s statements were made before [ADHS]’s repeated representations that if initial relief was not granted but this Court subsequently granted injunctive relief, PPH would be entitled to seek reimbursement for services provided to Arkansas Medicaid patients for a year from the date of service (even though no injunction was in place at the time of the service).” (Dkt. No. 109, at 4) (citing Dkt. No. 26-1, at 17-18, 52; Dkt. No. 21, at 19)).
Ms. de Baca’s declaration states that, if not for this Court’s Order ruling in plaintiffs’ favor on most issues but holding additional procedural steps were needed before the Court could
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consider granting a preliminary injunction on behalf of PPH’s patients other than the individual Jane Doe plaintiffs, combined with the State’s representation that PPH would have the opportunity to seek reimbursement for services provided during the period that no injunction was in place, PPH would have done exactly what it stated—given Medicaid patients the option to seek services elsewhere or pay out of pocket at PPH (Dkt. No. 109, Ex. A, ¶ 6). PPH and the Jane Does state in their motion for preliminary injunction as to the Patient Class that, should the Court deny the instant preliminary injunction motion, that is precisely what PPH will do (Id., ¶ 8). The Court credits Ms. de Baca’s statements in her most recent affidavit and does not question the business practices and policies of PPH in deciding to cover the costs of Medicaid procedures despite the funding cut. Ms. de Baca has explained the decision to cover these costs in the interim and the actions taken by PPH, and ADHS has not persuaded this Court of the contrary. The Court will continue to take at face value the sworn statements of Ms. de Baca regarding what PPH will do if a preliminary injunction as to the Patient Class does not issue.
ADHS also takes issue with the sliding scale of potential charges discussed by Ms. de Baca in her affidavit, claiming that it is too speculative, and takes issue with the ownership of Planned Parenthood of Arkansas and Eastern Oklahoma (“PPAEO”) being transferred from PPH to Planned Parenthood of Greater Plains (“PPGP”). PPH and the Jane Does represent that this ownership transfer is not scheduled to take place until October 20, 2016 (Dkt. No. 122, at 1). ADHS suggests that the upcoming transition is a reason to deny the pending motion for preliminary injunction on behalf of the Patient Class, on the theory that once PPGP assumes control of PPAEO, it may be willing to continue providing unpaid services to its Medicaid patients even if this Court denies the motion, thus, according to ADHS, preventing any irreparable injury to the members of the Patient Class (Dkt. No. 121, ¶¶ 1-2).
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Specifically, ADHS argues that, “[i]f Planned Parenthood of the Heartland and de Baca are not going to be the ones to make those decisions—since the plaintiffs contend there is a real and significant distinction between all Planned Parenthood affiliates—then de Baca’s declaration is even more meaningless and speculative than it was before this revelation. Certainly, the particulars of the sliding scale de Baca mentioned, and whether some, most, or all patients would receive services without charge in the absence of an injunction (which they have been for nearly twelve months) cannot be answered by the only declaration presented by Planned Parenthood— that of Planned Parenthood of the Heartland CEO.” (Id., ¶ 3).
However, PPH and the Jane Does have put into the record a declaration from Laura McQuade, Chief Executive Officer of PPGP, which states that PPGP—like PPH—is not willing or able to continue providing unpaid services to its PPAEO Medicaid patients indefinitely. Rather, if the Patient Class’s preliminary injunction motion is still pending at the time of PPAEO’s transition to PPGP and is subsequently denied, PPAEO will no longer provide these services without payment and will instead give patients insured through Medicaid the option to try to obtain services at another Medicaid provider or to pay for services at PPAEO (Dkt. No. 122, Ex. A, Decl. of Laura McQuade, ¶¶ 5, 7, 8).
PPH and the Jane Does argue that “PPAEO’s upcoming transition to operation by PPGP does not change the fact that, if the pending preliminary injunction motion is denied, members of the Patient Class will be unable to access services at PPAEO without payment—as the Medicaid program entitles them to do—and thereby will suffer irreparable injury. Indeed, if anything, the Patient Class will now be left in a more precarious position than it was previously because of Defendant’s recent attempt to reverse her prior position regarding reimbursement of the services PPAEO has been providing without payment to Medicaid patients during the past year.” (Dkt.
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No. 122, at 2). The Court agrees. The Court rejects ADHS’s argument that a future change in ownership that has yet to occur should affect the Court’s analysis at this time, especially considering the affidavit from Ms. McQuade, the Chief Executive Officer of PPGP, stating that she plans to handle the Medicaid funding cut exactly like PPH.
C. Scope Of The Injunction ADHS argues that, “[e]ven if the Court concludes that an expanded injunction is justified, it must limit the scope of the injunction to reimbursement for future services (services provided after the date on which the expanded injunction is issued) provided by PPH to patients.” (Dkt. No. 120, at 7). ADHS also notes that, “[i]n its reply, PPH argued that, at the temporary restraining order hearing in September 2015, [A]DHS suggested there was no need for a temporary restraining order because PPH could submit receipts up to one year after the services were provided. . . . In addition to being irrelevant for purposes of the proper analysis of the scope of a preliminary injunction, this is a mischaracterization of [A]DHS’s position.” (Id., at 8 n.1). ADHS now contends that its “suggestion was merely that the Court did not need to issue a temporary restraining order because it could address the question of PPH’s right to reimbursements in ‘two weeks’ at the preliminary injunction stage . . . The two intervening weeks between the TRO and PI stage is far different than the nearly twelve months we are talking about now.” (Id.). ADHS further argues that, “more importantly, [A]DHS’s statement was about what would happen if PPH prevailed on its argument that it had a right to be in the Medicaid program. . . But PPH did not prevail on the initial PI, and cannot prevail on the expanded PI, because the Court has ruled that PPH does not have standing to pursue the claim on which the PI is based. This Court simply cannot conclude that PPH has a right to be in the
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Medicaid program. Accordingly, [A]DHS’s previous statement concerning reimbursements if the Court determined PPH has a right to be in the Medicaid program is inapplicable.” (Id.).
The record on this point regarding representations made about reimbursements speaks for itself (See, e.g., Dkt. No. 26-1, at 48-50 (“Q: What I'm hearing I think from the State is services could still be provided and be billed for 365 days after the service is provided if they are reinstated as a provider. Is that correct? A: That’s correct, Your honor . . . They, of course, can keep the receipts. And if the Court reinstates them after a preliminary injunction hearing or after the merits, they can do that for up to 365 days.”); Dkt. No. 39, at 19 (“Nor is the alleged harm imminent. Medicaid reimbursements can be filed up to 365 days after the services are provided . . . This case may well be over by then, and if not the Court could revisit the question of an injunction at that point.”)). The Court does not construe this anticipated request by PPH for reimbursement as being a dispute presented to this Court for resolution at this stage. However, based upon the record in this case, the Court declines ADHS’s request to limit the injunctive relief awarded to the Patient Class for future services only or to services provided after the date on which the expanded injunction is issued.
ADHS further argues regarding the scope of the injunction that, “[i]f the Court requires [A]DHS to reimburse PPH for Medicaid-eligible services provided to Arkansas Medicaid patients pending trial, [A]DHS respectfully asks that the Court make clear that its injunction is limited to the specific conduct in question in this litigation. That is, the Court should make clear that any such injunction does not enjoin [A]DHS from, in the future, terminating PPH from the Medicaid program for acts or omissions (other than the conduct at issue in the videos) that fail to meet PPH’s obligations under federal or state Medicaid laws or otherwise require or allow [A]DHS to remove PPH from the Medicaid program.” (Dkt. No. 105, at 16).
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While the parties are engaged in this litigation, the Court is not inclined to narrow the injunction in the manner ADHS requests. Instead, the injunction this Court issued as to the Jane Does and that it is being asked to issue as to the members of the Patient Class provides sufficient leeway for the parties to petition the Court to alter or amend the terms of the injunction, should the facts of the case warrant.
The Court finds that, for all of these reasons and based on the Court’s findings of fact in this case, the harms alleged by PPH and the Jane Does on behalf of the Patient Class constitute irreparable harm sufficient for an injunction. See, e.g., Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 794 F. Supp. 2d 892, 912 (S.D. Ind.) (denial of Medicaid patient’s free choice of provider is irreparable harm), aff’d in part and rev’d in part on other grounds, 699 F.3d 962 (7th Cir. 2012); see also Camacho v. Tex. Workforce Comm’n, 326 F. Supp. 2d 794, 802 (W.D. Tex. 2004) (reduced access to health care, as a result of a state statute restricting access to Medicaid in violation of federal regulations, constituted irreparable harm).
Should the Court fail to issue injunctive relief, members of the Patient Class will be denied their choice of provider for family planning services. The Court finds that, based on its assessment at this stage of the litigation on the likelihood of success on the merits, denial of that freedom of choice is more likely than not exactly the injury that Congress sought to avoid when it enacted 42 U.S.C. § 1396a(a)(23) and that the members of the Patient Class will suffer irreparable harm if a preliminary injunction is not entered by the Court to preserve the status quo while this case is pending. PPH and the Jane Does have met their burden of demonstrating that members of the Patient Class will suffer irreparable harm in the absence of the requested preliminary injunction.
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IV. Security Under Federal Rule of Civil Procedure 65(c), a district court may issue a preliminary injunction “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). As this Court stated when it entered the temporary restraining order and preliminary injunction order on behalf of the Jane Does, this Court does not perceive how ADHS could be harmed by reimbursing PPH for services provided to the Jane Doe Medicaid patients and the Patient Class members, considering that ADHS likely would and will have to pay the same amount for benefits of these patients regardless of who the patients’ Medicaid provider happens to be. For these reasons, the Court declines to require security from the Jane Does or members of the Patient Class. V. Conclusion For the foregoing reasons, the Court determines that PPH and the Jane Does have met their burden on behalf of the Patient Class for the issuance of a preliminary injunction as to the Patient Class members. Therefore, the Court grants the motion for preliminary injunction on behalf of the Patient Class (Dkt. No. 98). The Court enjoins ADHS from suspending Medicaid payments to PPH for services rendered to Medicaid beneficiaries who are members of the Patient Class until further order from this Court. So ordered this 29th day of September, 2016, at 3:00 p.m. CST.
_______________________________ Kristine G. Baker United States District Judge
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 Case 4:15-cv-00566-KGB Document 135 Filed 11/30/16 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS

PLANNED PARENTHOOD OF ARKANSAS & EASTERN OKLAHOMA, Inc., d/b/a PLANNED PARENTHOOD GREAT PLAINS; and JANE DOE #1; JANE DOE #2; and JANE DOE #3, on their behalf and all others similarly situated,

Plaintiffs,

No. 4:15-cv-00566-KGB

v.

CINDY GILLESPIE, Director, Arkansas Department of Human Services, in her O fficial Capacity,

Defendant.

THIRD AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF—CLASS ACTION
Plaintiffs, by and through their attorneys, and on behalf all members of the class, bring

this Complaint against the above-named Defendant and her employees, agents, delegates, and successors in office, in their official capacity, and in support thereof state the following:

INTRODUCTORY STATEMENT 1. This civil action is brought pursuant to 42 U.S.C. § 1983 to vindicate rights

secured by the federal Medicaid statutes, as well as the U.S. Constitution. 2. Plaintiff Planned Parenthood Arkansas & Eastern Oklahoma, Inc., d/b/a Planned

Parenthood Great Plains (“PPAEO”), provides critically needed family planning and preventive health services to hundreds of women and men in underserved Pulaski County (where PPAEO’s

Little Rock health center is located) and Washington County (where PPAEO’s Fayetteville health center is located) through the Medicaid program.

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3. As is required by federal law, Medicaid enrollees may seek family planning and other preventive health services from a participating provider of their choice and have those services covered by Medicaid. Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3 and other class members are such individuals—patients of PPAEO who are enrolled in Medicaid and who prefer PPAEO to other Medicaid providers. Arkansas Medicaid does not pay for abortions except in extremely narrow circumstances, and Medicaid reimbursement for abortion is not at issue in this litigation.
4. On August 14, 2015, without giving any warning or expressing any previous concerns about PPAEO’s participation in the Medicaid program, Defendant John Selig, then Director of the Arkansas Department of Human Services (“DHS”), notified PPAEO that DHS was terminating PPAEO’s Medicaid provider agreements, effective 30 days after the date of the notice. While the notice gave no reason for the termination, Governor Asa Hutchinson issued a press release the same day, stating he had directed DHS to terminate the agreements and giving as the sole reason that “[i]t is apparent after the recent revelations on the actions of Planned Parenthood that this organization does not represent the values of the people of our state and Arkansas is better served by terminating any and all existing contracts with them.” Press Release, Ark. Governor Asa Hutchinson, Governor Asa Hutchinson Directs DHS to End Contract with Planned Parenthood (Aug. 14, 2015), http://governor.arkansas.gov/pressreleases/detail/ governor-asa-hutchins on- directs-dhs-t o-end-c ontract-w ith- planned-parent hood. The reference to “recent revelations” appears to relate to heavily edited and misleading videos that have been released by opponents of Planned Parenthood, making claims about other Planned Parenthood providers’ abortion practices in other states. Notably, nothing in Governor Hutchinson’s press release relates to the quality of Medicaid services provided by PPAEO.
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5. DHS followed this communication with a second termination letter, this time purporting to terminate PPAEO’s Medicaid agreements “for cause,” and stating that for-cause termination may be effective immediate ly, but that DHS would delay the effective date of the termination to coincide with the effective date from the prior termination letter.
6. In describing the cause for the termination, the second termination letter states solely that “the ‘for cause’ termination is based in part upon the troubling circumstances and activities that have recently come to light regarding the national Planned Parenthood organization, Planned Parenthood of the Heartland, and other affiliated Planned Parenthood entities, all of which are affiliated with [PPAEO],” and that “there is evidence that PPAEO and/or its affiliates are acting in an unethical manner and engaging in what appears to be wrongful conduct.” The letter also states that PPAEO is “welcome to submit information or offer comments on the nationally recognized videos that have raised questions on the conduct of Planned Parenthood.” No other cause or explanation for the termination is given. Again, nothing in the letter relates to the quality of Medicaid services provided by PPAEO, and the reason for the termination appears to be the same videos that were the basis for the first termination.
7. Plaintiffs seek declaratory and injunctive relief to protect PPAEO’s patients’ access to—and PPAEO’s own ability to provide—these critical medical services. Defendant’s actions violate Section 1396a(a)(23) of Title 42 of the United States Code (“Medicaid Freedom of Choice Provision”) because, by barring PPAEO from the Medicaid program, it prevents PPAEO’s patients, including Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3 and other class members, from receiving services from the qualified, willing provider of their choice.
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Defendant’s actions further impermissibly penalize Plaintiffs without adequate justification, in violation of the First and Fourteenth Amendments.
8. Unless enjoined, the termination of PPAEO’s Medicaid provider agreements will first affect patients on September 21, 2015, disqualifying PPAEO from providing basic and preventive health care services to the women, men, and teens who depend on that care. Defendant’s actions will cause significant and irreparable harm to PPAEO and to its Medicaid patients, including Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3 and other class members, who will lose their provider of choice, will find their family planning services interrupted, and will be left with few or no adequate alternative providers.
JURISDICTION AND VENUE 9. Subject-matter jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 and 1343. 10. 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. 11. Venue in this judicial district is proper under 28 U.S.C. § 1391.
THE PARTIES A. Plaintiffs
12. Plaintiff Planned Parenthood of Arkansas & Eastern Oklahoma, Inc., doing business as Planned Parenthood Great Plains, (“PPAEO”) is a not-for-profit corporation headquartered in Oklahoma and licensed to do business in Arkansas. When Plaintiffs filed this action, PPAEO was a wholly owned subsidiary of Planned Parenthood of the Heartland (“PPH”) and was doing business as Planned Parenthood of the Heartland. On October 20, 2016, PPH
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transferred control of PPAEO to Planned Parenthood Great Plains. Plaintiff PPAEO brings this action on behalf of itself and its Arkansas patients.
13. PPAEO (or predecessor organizations) have provided high quality reproductive health care in Arkansas for more than 30 years. PPAEO operates two health centers in Arkansas, one in Little Rock and one in Fayetteville, and participates in the Medicaid program, providing medical services to low-income enrollees in both communities. The family planning and other preventive health services provided by PPAEO at these and its other health centers include contraception and contraceptive counseling; physical exams; screening for breast cancer; screening and treatment for cervical cancer; testing and treatment for certain sexually transmitted infections (“STIs”); pregnancy testing and counseling; men’s health services; and general health services including smoking cessation and screening for diabetes, high cholesterol, high blood pressure, and anemia.
14. In fiscal year (FY) 2015, PPAEO provided more than 1,000 health care visits and filed more than 1,100 prescriptions for over 500 women, men and teens insured through Medicaid in Little Rock and Fayetteville. In FY 2014, the numbers were even higher—more than 1600 health care visits and 2,600 prescriptions, for over 1,100 women, men and teens insured through Medicaid in Little Rock and Fayetteville.
15. During FY 2015, PPAEO provided over 100 well woman exams (which include breast exams), nearly 100 pap smears, over 350 visits to screen for STIs, and over 450 visits for long acting reversible contraceptives (“LARCs”) and injectable contraceptives to its Medicaid patients. During FY 2014, PPAEO provided over 250 well woman exams, 180 pap smears, 600 visits to screen for STIs, and 750 visits for LARCs and injectable contraceptives to its Medicaid patie nts.
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16. PPAEO also provides early medication abortions at these health centers. Arkansas Medicaid does not cover these services in virtually all circumstances, and Medicaid payment for abortion is not at issue in this case.
17. Plaintiff Jane Doe #1, an Arkansas resident and Medicaid patient, obtains her reproductive health care at PPAEO’s Little Rock health center and desires to continue to do so.
18. Plaintiff Jane Doe #2, an Arkansas resident and Medicaid patient, obtains her reproductive health care at PPAEO’s Little Rock health center and desires to continue to do so.
19. Plaintiff Jane Doe #3, an Arkansas resident and Medicaid patient, obtains her reproductive health care at PPAEO’s Little Rock health center and desires to continue to do so.
20. Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3 appear pseudonymously because of the private and personal nature of the medical care that they receive at PPAEO and their desire not to have that information become public in order for them to assert their legal rights. B. Defendant
21. Defendant Cindy Gillespie is the Director of DHS. DHS is the agency that administers Arkansas’s state Medicaid program and has notified PPAEO that it intends to terminate its provider agreements. Defendant Gillespie is sued in her official capacity, as are her employees, agents, and successors in office.
THE MEDICAID PROGRAM A. The Medicaid Statute
22. 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
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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).
23. 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).
24. 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).
25. 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).
26. The federal government reimburses the state of Arkansas 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
27. 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 Medicaid-
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covered services or to properly bill for those services, including reasons such as the scope of the medical services that the provider chooses to offer.
28. CMS has 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.
29. Consistent with this understanding, CMS has a long history of rejecting state plans that seek to limit the type of provider that can provide particular services. See, e.g., 53 Fed. Reg. 8699 (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”).
30. More recently, 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.polit ico.com/stat ic/PPM169_110601_indiana_ letter.ht ml.
31. Moreover, even though CMS is permitted to waive § 1396a(a)(23) in demonstration projects approved under Social Security Act § 1115, CMS repeatedly rejects state requests to do so for family planning services, including twice in the last year: first in Pennsylvania, see Letter from Marilyn Tavenner, Adm’r, CMS, to Beverly Mackereth, Sec’y, Pa. Dep’t of Public Welfare (Aug. 28, 2014), http://www.medicaid.gov/Medicaid-CHIP-ProgramInformation/By-Topics/Waivers/1115/downloads/pa/pa-healthy-ca.pdf (“No waiver of freedom
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of choice is authorized for family planning providers.”); and more recently in Iowa, see 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.medica id.gov/ Medica id-CHIP -Program-Inf or mat ion/ByTopics/Waivers/1115/downloads/ia/ia-marketplace-choice-plan-ca.pdf (“No waiver of freedom of choice is authorized for family planning providers.”).
HUTCHINSON ADMINISTRATION’S EFFORTS TO EXCLUDE PPAEO 32. On August 14, without prior notice, Defendant notified PPAEO that it was terminating PPAEO’s provider agreements, to be effective in 30 days, on September 13, 2015. 33. Because of previously scheduled staff training and clinician vacation, the first day after September 13 that patients insured through the Medicaid program are scheduled to be seen at one of PPAEO’s Arkansas health centers is September 21, 2015. Therefore, absent an injunction, patients insured through the Medicaid program who choose to get family planning and other health care services at PPAEO will lose access to those services on September 21, 2015. 34. Defendant’s letter provided no reason for the termination of PPAEO’s agreements. However, that same day, Governor Hutchinson issued a press release stating he had directed DHS to terminate the agreements and giving as the sole reason that “[i]t is apparent after the recent revelations on the actions of Planned Parenthood that this organization does not represent the values of the people of our state and Arkansas is better served by terminating any and all existing contracts with them.” Press Release, Ark. Governor Asa Hutchinson. The reference to “recent revelations” appears to relate to heavily edited and misleading videos that have been released by opponents of Planned Parenthood, making claims about the practices of a
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small number of P lanned Parenthood affiliates that allow patients at some health centers to donate fetal tissue following an abortion in order to advance medical research. While all Planned Parenthood affiliates comply with all federal and state laws, PPAEO does not participate in any fetal tissue donation (in Arkansas or elsewhere), and does not appear in any of the videos.
35. DHS followed this communication with a second termination letter, this time purporting to terminate PPAEO’s Medicaid agreements “for cause,” and stating that for-cause termination may be effective immediately, but that DHS would delay the effective date of the termination to coincide with the effective date from the prior termination letter.
36. In describing the cause for the termination, the second termination letter states solely that it “is based in part upon the troubling circumstances and activities that have recently come to light regarding the national Planned Parenthood organization, Planned Parenthood of the Heartland, and other affiliated Planned Parenthood entities, all of which are affiliated with [PPAEO],” and that ““there is evidence that PPAEO and/or its affiliates are acting in an unethical manner and engaging in what appears to be wrongful conduct.” The letter also states that PPAEO is “welcome to submit information or offer comments on the nationally recognized videos that have raised questions on the conduct of Planned Parenthood.” No other cause or explanation for the termination is given. Again, nothing in the letter relates to the quality of Medicaid services provided by PPAEO, and the reason for the termination appears to be the same videos that were the basis for the first termination.
37. CMS has advised Defendant that her actions to terminate PPAEO’s provider agreements likely violate the Medicaid freedom of choice provision.
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THE IMPACT OF DEFENDANT’S ACTIONS ON PPAEO AND ITS PATIENTS 38. The need for publicly supported family planning services is great in Arkansas,
which regularly ranks among the worst states for reproductive care. In 2010, 55% of pregnancies in Arkansas were unintended. Guttmacher Inst., State Facts About Unintended Pregnancy: Arkansas (2014), https://www.guttmacher.org/statecenter/unintendedpregnancy/pdf/AR.pdf (hereafter “State Facts: Arkansas”). The state is tied for the third highest teen pregnancy rate among the 50 states. Kathryn Kost & Stanley Henshaw, Guttmacher Inst., U.S. Teenage Pregnancies, Births and Abortions, 2010: National and State Trends by Age, Race and Ethnicity 4 (2014), http://www.guttmacher.org/pubs/USTPtrends10.pdf. 72% of Arkansas’s unplanned births are publicly funded, which is higher than the national average of 68%. State Facts: Arkansas. Moreover, Arkansas has high rates of STIs: the state ranks second in congenital syphilis, eighth in chlamydia, tenth in primary and secondary syphilis, and eleventh in gonorrhea. Ctrs. for Disease Control and Prevention, Sexually Transmitted Disease Surveillance 2013 79, 91, 105, 122 (2014), http://www.cdc.gov/std/stats13/surv2013-print.pdf.
39. In Arkansas in 2010, an estimated 317,720 women needed contraceptive services and supplies. Of these, 62%—198,090 women—needed publicly supported services. Guttmacher Inst., Contraceptive Needs and Services, 2010: County Data for Arkansas (2014), http://www.guttmacher.org/pubs/win/counties/pdf/WIN-2010-Arkansas.pdf. In Pulaski County alone (where PPAEO’s Little Rock health center is located), an estimated 47,700 women needed contraceptive services and supplies in 2010, of which 26,390 (55%) needed publicly supported services. Id.
40. If Defendant’s actions take effect, many of PPAEO’s Medicaid patients in Little Rock and Fayetteville, who already have few or no alternative options, will find it difficult or
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impossible to access the reproductive and other health care services they need. Those who are able to find other providers will often have to wait unacceptable periods of time for an appointment. Those who are unable to find an adequate alternative will not receive the medical services they need, which will lead to higher rates of unintended pregnancies, STIs, and undiagnosed cancers.
41. Other Medicaid providers in Little Rock and Fayetteville are already stretched to the breaking point, even with PPAEO providing care. It is very difficult to locate a private ob/gyn who will take a Medicaid patient who is not pregnant , and the ones that will often have wait times of several months. At both community health centers and private ob/gyns, even if a patient can obtain an appointment, she may be unable to obtain (either at all, or without significant delays) the full range of FDA-approved contraceptives, including IUDs and Depo Provera, which are the most effective forms of birth control. Indeed, other Medicaid providers sometimes refer their patients to PPAEO’s health centers for these services. Other clinics are difficult for PPAEO’s low-income patients to travel to.
42. If PPAEO is forced to stop providing care through the Medicaid program, a dire situation will become critical. The remaining providers will be simply unable to absorb PPAEO’s patients, leaving those patients without access to crucial medical services.
43. Even if other providers were available, patients insured through Medicaid choose PPAEO based on a number of factors that are generally not available at other providers. With its evidence-based practices and up-to-date technology, PPAEO is known as a provider of highquality, compassionate medical care. Many individuals who receive some health care elsewhere choose PPAEO for their reproductive health care because they are concerned about their privacy and because they fear being judged by other providers.
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44. 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 help these patients get access to family planning and other services, PPAEO offers its full range of services to walk-in patients. This flexibility is especially important for patients receiving Depo-Provera injections (which must be given every ninety days), or starting a new form of birth control, as well as for patients who are having symptoms that make them concerned. PPAEO gets walk-in patients every day. In addition, PPAEO spaces patient appointments so as to minimize wait times. PPAEO’s health centers often have Spanish-speaking staff available for patients, and have translator services in a wide range of languages available to non-English speaking patients at all times.
45. Defendant’s actions will deprive all of PPAEO’s Medicaid patients, including Plaintiffs Jane Doe #1, #2, and #3 and other class members, of access to the high-quality, specialized care that PPAEO provides.
46. All three individual P laintiffs rely on PPAEO as the place they can turn to for critical medical care and for prompt, efficient, and compassionate services. If PPAEO is eliminated from Medicaid, they will be prevented from receiving services through the Medicaid program from their provider of choice, will have their health care interrupted, and may encounter difficulties finding alternative care.
47. Without Medicaid reimbursements, PPAEO may be unable to continue to provide services in the same manner and may be forced to lay off staff members and/or reduce hours at one or both health centers. Further, if PPAEO’s termination from the Medicaid program is allowed to take effect for some period of time and it then is later allowed to become a Medicaid provider again, some patients will remain confused about whether PPAEO is a Medicaid
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provider in good standing, and therefore will not return as patients. For these reasons, should PPAEO be allowed back as a Medicaid provider, it would be very difficult—if not impossible— for PPAEO to resume its operations as they are today. If PPAEO reduces hours at its health centers, this will affect not only its Medicaid patients, but all of its patients.
CLASS ACTION ALLEGATIONS 48. This suit is properly maintainable as a class action under Federal Rules of Civil Procedure 23(b)(1)(B) and (b)(2). 49. The class consists of all Medicaid patients in Arkansas who seek to obtain, or desire to obtain, covered health care services at PPAEO. 50. Although the size of the class going forward is unknowable, as alleged in Paragraph 15, PPAEO provided covered health care services to over 500 patients in FY 2015 and over 1,100 patients in FY 2014. Thus the current approximate size of the class is over 500 individua ls. 51. Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3 are adequate class representatives because they, like other members of the class, are Arkansas residents and Medicaid patients who obtain their reproductive health care at a PPAEO health center and desire to continue to do so. Absent declaratory and injunctive relief , class representatives and class members will suffer the same injury and resulting harm: they will be unable to obtain health care services through the Medicaid program at the provider of their choice, PPAEO. In addition, as a result, many of PPAEO’s Medicaid patients, including P laintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3 and other class members, will find it difficult or impossible to access comparable reproductive and other health care services.
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52. Defendant’s actions—terminating PPAEO from the Medicaid program—applies generally to the class, such that both declaratory and injunctive relief is appropriate for all members of the class.
53. Class members raise the same question of law, including whether Defendant’s termination of PPAEO’s Medicaid provider agreements violates the Medicaid freedom-of-choice provision, 42 U.S.C. § 1396a(a)(23), such that, as a practical matter, adjudication of their claims would be dispositive of the interests of other class members.
CLAIMS FOR RELIEF CLAIM I — MEDICAID ACT (TITLE XIX OF SOCIAL SECURITY ACT) 54. Plaintiffs hereby incorporate Paragraphs 1 through 53 above. 55. Defendant’s action violates Section 1396a(a)(23) of Title 42 of the United States Code by denying PPAEO’s patients, including the Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3 and other class members, the right to choose any willing, qualified healthcare provider in the Medicaid program. CLAIM II — FIRST AND FOURTEENTH AMENDMENTS — PENALIZING
CONSTITUTIONALLY PROTECTED ACTIVITY 56. Plaintiffs hereby incorporate Paragraphs 1 through 53 above. 57. Defendant’s action penalizes Plaintiffs for their constitutionally protected association with Planned Parenthood and/or abortion, without adequate justification.
CLAIM III — FOURTEENTH AMENDMENT EQUAL PROTECTION 58. Plaintiffs hereby incorporate Paragraphs 1 through 53 above. 59. Defendant’s action violates Plaintiffs’ rights by singling them out for unfavorable treatment without adequate justification.
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RELIEF REQUESTED WHEREFORE, P laintiffs request that this Court:
60. Issue a declaratory judgment that Defendant’s action violates the Medicaid Act; 61. Issue a declaratory judgment that Defendant’s action violates the First and Fourteenth Amendments; 62. Issue preliminary and permanent injunctive relief , without bond, enjoining Defendant, her agents, employees, appointees, delegates, or successors from excluding PPAEO as a Medicaid provider; 63. Grant Plaintiffs attorneys’ fees, costs and expenses pursuant to 42 U.S.C. § 1988; and 64. Grant such further relief as this Court deems just and proper.

Dated: November 30, 2016

/s/ Bettina E. Brownstein Bettina E. Brownstein (85019) Bettina E. Brownstein Law Firm 904 West Second Street Little Rock, Arkansas 72201 501-920-1764 bett inabr ownste in@ gma il.com On Behalf of The Arkansas Civil Liberties Union Foundation
Jennifer Sandman* Planned Parenthood Federation of America Public Policy Litigation & Law 123 William Street, 9th Floor New York, NY 10038 (212) 261-4584 jennifer.sandman@ppfa.org
Richard Muniz* Planned Parenthood Federation of America 1110 Vermont Avenue NW, Suite 300

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Case 4:15-cv-00566-KGB Document 135 Filed 11/30/16 Page 17 of 17 Washington, DC 20005 (202) 973-4997 richard. muniz@ppfa.org Attorneys for the Plaintiffs and Class Counsel *Admitted pro hac vice
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United States Court of Appeals
For the Eighth Circuit ___________________________

No. 15-3271 ___________________________

Jane Does, 1-3; Planned Parenthood of Arkansas & Eastern Oklahoma, doing business as Planned Parenthood Great Plains,

lllllllllllllllllllll Plaintiffs - Appellees,

v.

(4:15-cv-00566-KGB)

Cindy Gillespie,1 Director of the Arkansas Department of Human Services,

lllllllllllllllllllll Defendant - Appellant.

------------------------------

American Public Health Association; National Center for Lesbian Rights; National Family Planning & Reproductive Health Association; National Health Law
Program; National Latina Institute for Reproductive Health; National Women’s Law Center; Sexuality Information and Education Council of the U.S.,

lllllllllllllllllllllAmici on Behalf of Appellees. ___________________________

No. 16-4068 ___________________________

Planned Parenthood of Arkansas & Eastern Oklahoma, doing business as Planned Parenthood Great Plains; Jane Does, 1-3

lllllllllllllllllllll Plaintiffs - Appellees,

1Cindy Gillespie is automatically substituted for her predecessor in these cases pursuant to Federal Rule of Appellate Procedure 43(c)(2).

Appellate Case: 15-3271 Page: 1 Date Filed: 08/16/2017 Entry ID: 4568936

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v. Cindy Gillespie, Director of the Arkansas Department of Human Services,
lllllllllllllllllllll Defendant - Appellant. ____________
Appeals from United States District Court for the Eastern District of Arkansas - Little Rock
____________ Submitted: September 21, 2016
Filed: August 16, 2017 ____________
Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges. ____________
COLLOTON, Circuit Judge.
The Arkansas Department of Human Services terminated its Medicaid provider agreements with Planned Parenthood of Arkansas and Eastern Oklahoma after the release of controversial video recordings involving other Planned Parenthood affiliates. Planned Parenthood of Arkansas and Eastern Oklahoma could have challenged the termination through an administrative appeal and judicial review in the Arkansas courts, but it declined to do so. Instead, three Arkansas patients identified by the Planned Parenthood affiliate sued the Director of the Department under 42 U.S.C. § 1983, claiming that the Department violated a federal right of the patients under the Medicaid Act to choose any “qualified” provider that offers services that the patients seek.
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The district court enjoined the Department from suspending Medicaid payments to Planned Parenthood of Arkansas and Eastern Oklahoma for services rendered to the three patients. The court later entered a broader injunction that forbids suspending payments for services rendered to a class of Medicaid beneficiaries. The Director appeals, and we conclude that the plaintiffs do not have a likelihood of success on the merits of their claims. The provision of the Medicaid Act does not unambiguously create a federal right for individual patients that can be enforced under § 1983. We therefore vacate the injunctions.
I.
Planned Parenthood of Arkansas and Eastern Oklahoma, an affiliate of the Planned Parenthood Federation of America, operates health centers in Arkansas. We will call the local affiliate “Planned Parenthood” for short. The district court found that the Arkansas health centers “provide family planning services to men and women, including contraception and contraceptive counseling, screening for breast and cervical cancer, pregnancy testing and counseling, and early medication abortion.”
As of 2015, Planned Parenthood and the Arkansas Department of Human Services were parties to contracts under which Planned Parenthood participated in the Arkansas Medicaid program. The contracts provided that either party could terminate them without cause by giving thirty days’ notice. The Department also could terminate the contracts immediately for several reasons, including for conduct that is sanctionable under the applicable Medicaid Provider Manual.
On August 14, 2015, Governor Hutchinson of Arkansas directed the Department to terminate its Medicaid provider agreements with Planned Parenthood. The Governor said in a public statement that it was “apparent . . . after the recent revelations on the actions of Planned Parenthood, that this organization does not
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represent the values of the people of our state and Arkansas is better served by terminating any and all existing contracts with them.” Context makes clear that the “recent revelations” to which the Governor referred were video recordings released by the Center for Medical Progress that purported to show employees of other Planned Parenthood affiliates discussing the sale of fetal tissue for profit. The parties dispute whether the Planned Parenthood affiliates involved in the recordings engaged in any unlawful or unethical conduct.
The Department, on August 14, 2015, notified Planned Parenthood that it was terminating the Medicaid provider agreements, effective thirty days later, and notified Planned Parenthood of its right to file an administrative appeal. Before the thirty days expired, on September 1, the Department sent a second notice. This one stated that the Department was terminating its agreements with Planned Parenthood for cause, because “there is evidence that [Planned Parenthood] and/or its affiliates are acting in an unethical manner and engaging in what appears to be wrongful conduct.” Rather than discontinue the contracts immediately, however, the Department set the termination date for September 14, 2015, the same date specified in the first letter.
Federal regulations authorized by Congress and promulgated by the Secretary of Health and Human Services require each State to establish appeal procedures for Medicaid providers. 42 U.S.C. §§ 1396a(a)(4), (39); 42 C.F.R. § 1002.213. Under Arkansas law, a provider who is terminated has a right to file an administrative appeal within thirty days of the termination, and then to seek judicial review. Ark. Code R. § 016.06.35-161.400; Ark. Code Ann. § 20-77-1718. Planned Parenthood, however, declined to exercise its appeal rights under Arkansas law and instead identified three patients who were willing to join the organization in a federal lawsuit.
On September 11, 2015, Planned Parenthood and three patients identified as “Jane Does” sued the Department’s Director in the district court, seeking a temporary restraining order and a preliminary injunction to prevent the Department from
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terminating Planned Parenthood’s contract. The plaintiffs alleged that they were likely to prevail on a claim that the Department, by excluding Planned Parenthood from the Medicaid program for a reason unrelated to its fitness to provide medical services, had violated § 23(A) of the Medicaid Act. This section is described as the Medicaid “free-choice-of-provider” provision. 42 U.S.C. § 1396a(a)(23)(A). The plaintiffs further asserted that without an injunction, they would suffer irreparable harm. The plaintiffs claimed that § 23(A) creates a judicially enforceable right, a violation of which can be remedied through an action under 42 U.S.C. § 1983. The district court granted a temporary restraining order.
After further briefing by the parties, Planned Parenthood withdrew its claim for relief as a provider, but the Jane Does proceeded with their claims as patients, and the district court granted a preliminary injunction in favor of the Jane Does. The court concluded that § 23(A) creates a private right enforceable by the Jane Does under § 1983, and that they were likely to prevail on the merits of their claim that the Department unlawfully terminated its contract with Planned Parenthood. The court also determined that, without an injunction, the Jane Does would suffer irreparable harm. The Department appealed the grant of the preliminary injunction, and we heard oral argument.
After the appeal was submitted, the district court granted the plaintiffs’ motion to certify a class of “patients who seek to obtain, or desire to obtain, health care services in Arkansas at [Planned Parenthood] through the Medicaid program.” The district court then issued a second, broader injunction that forbids the Department to suspend Medicaid payments to Planned Parenthood for services rendered to Medicaid beneficiaries who are members of the class. The district court’s order granting the second injunction incorporated the court’s reasoning from the first order.
The Department filed a notice of appeal of the class-wide preliminary injunction. The parties then filed a joint motion requesting that we consolidate the
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two appeals, and they waived further briefing and argument. We consolidated the appeals and now consider them together.
II.
A party seeking a preliminary injunction must demonstrate, among other things, a likelihood of success on the merits. Munaf v. Geren, 553 U.S. 674, 690 (2008). In this case, a threshold question bearing on likelihood of success is whether the Jane Doe plaintiffs and the certified class of Medicaid patients have a judicially enforceable right under the cited provision of the Medicaid Act, 42 U.S.C. § 1396a(a)(23)(A). If the statute does not create an enforceable federal right, then the Jane Does and the class members cannot sue under § 1983, and there is no likelihood of success on the merits.
Section 1983 provides a cause of action against any person who, under color of law, subjects a citizen to the deprivation of any rights secured by the laws of the United States. Generally speaking, § 1983 supplies the remedy for vindication of rights arising from federal statutes. Maine v. Thiboutot, 448 U.S. 1, 4-8 (1980). For legislation enacted pursuant to Congress’s spending power, however, “the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 (1981).
To support an action under § 1983, a plaintiff relying on a federal law must establish that Congress clearly intended to create an enforceable federal right. Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002). There was a time, illustrated by Wilder v. Virginia Hospital Ass’n, 496 U.S. 498 (1990), when the Medicaid Act was deemed to create an enforceable right if the provision in question was “intend[ed] to benefit the putative plaintiff.” Id. at 509 (alteration in original) (quoting Golden State
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Transit Corp. v. City of L.A., 493 U.S. 103, 106 (1989)). Starting from that premise, Wilder held that the Boren Amendment to § 13(A) of the Medicaid Act created a federal right for providers that was enforceable under § 1983.
Later decisions, however, show that the governing standard for identifying enforceable federal rights in spending statutes is more rigorous. It is not enough, as Wilder and Blessing v. Freestone, 520 U.S. 329 (1997), might have suggested, to show simply that a plaintiff “falls within the general zone of interest that the statute is intended to protect.” Gonzaga, 536 U.S. at 283. It is now settled that nothing “short of an unambiguously conferred right” will support a cause of action under § 1983. Id.
Most recently, therefore, the Court observed that Medicaid providers seeking to enforce § 30(A) of the Medicaid Act did not rely on Wilder to proceed under § 1983, because the Court’s later decisions “plainly repudiate the ready implication of a § 1983 action that Wilder exemplified.” Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1386 n.* (2015). The Court explained that Gonzaga expressly rejected the notion, “implicit in Wilder,” that something “short of an unambiguously conferred right” can support a cause of action under § 1983. Id. Armstrong thus made explicit what was implicit in Gonzaga, where the dissenting opinion concluded that the Court “sub silentio overrule[d] cases such as . . . Wilder,” because the Boren Amendment did not “clear[ly] and unambiguous[ly] intend enforceability under § 1983.” 536 U.S. at 300 n.8 (Stevens, J., dissenting) (second and third alteration and emphasis in original) (citation omitted). Congress repealed former § 13(A) and the Boren Amendment in 1997, see Balanced Budget Act of 1997, Pub. L. No. 105-33, § 4711, 111 Stat. 251, 507-08, so the Court will have no occasion formally to overrule Wilder. But for purposes of our obligation to apply Supreme Court precedent, see Agostini v. Felton, 521 U.S. 203, 237 (1997), the Court’s “repudiation” of Wilder is the functional equivalent of “overruling,” as the Court uses the terms interchangeably. Obergefell v. Hodges, 135 S. Ct. 2584, 2606 (2015); Keene Corp.
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v. United States, 508 U.S. 200, 215 (1993); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 864 (1992).2
The provision at issue in this case appears in a section of the Medicaid Act concerning state plans for medical assistance. The Act provides, with exceptions not relevant here, that the Secretary of Health and Human Services “shall approve any plan which fulfills the conditions specified in subsection (a).” 42 U.S.C. § 1396a(b). Subsection (a), in turn, declares that “[a] State plan for medical assistance must” satisfy some eighty-three conditions. The condition involved here is § 23(A), namely, that the state plan must “provide that . . . any individual eligible for medical assistance (including drugs) 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.” Id. § 1396a(a)(23)(A).
The Jane Does contend that § 23(A) creates an enforceable federal right for individual patients to receive services from any provider who is “qualified to perform the service” that they seek. If Planned Parenthood is qualified to perform the service, they argue, then § 1983 provides a remedy through which a court can require the State to maintain its contract with Planned Parenthood, so that the Jane Does can obtain assistance from that provider.
We see significant difficulties with the contention that § 23(A) unambiguously creates an enforceable federal right. First, the focus of the Act is two steps removed
2Pediatric Specialty Care, Inc. v. Arkansas Department of Human Services, 293 F.3d 472 (8th Cir. 2002), cited by the dissent, post, at 24, 26-27, preceded Gonzaga and did not consider whether the statutory provisions at issue there unambiguously conferred an enforceable right on the plaintiffs. Center for Special Needs Trust Administration, Inc. v. Olson, 676 F.3d 688 (8th Cir. 2012), also cited by the dissent, did not apply Gonzaga, was decided before Armstrong, and concerned a different provision of the Medicaid Act that is not at issue here.
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from the interests of the patients who seek services from a Medicaid provider. Like the provision at issue in Armstrong, “[i]t is phrased as a directive to the federal agency charged with approving state Medicaid plans, not as a conferral of the right to sue upon the beneficiaries of the State’s decision to participate in Medicaid.” 135 S. Ct. at 1387 (plurality opinion). In other words, “[i]t focuses neither on the individuals protected nor even on the funding recipients being regulated, but on the agenc[y] that will do the regulating.” Alexander v. Sandoval, 532 U.S. 275, 289 (2001). A statute that speaks to the government official who will regulate the recipient of federal funding “does not confer the sort of ‘individual entitlement’ that is enforceable under § 1983.” Gonzaga, 536 U.S. at 287 (quoting Blessing, 520 U.S. at 343). Even where a subsidiary provision includes mandatory language that ultimately benefits individuals, a statute phrased as a directive to a federal agency typically does not confer enforceable federal rights on the individuals. Univs. Research Ass’n, Inc. v. Coutu, 450 U.S. 754, 756 n.1, 772-73 (1981).
Second, Congress expressly conferred another means of enforcing a State’s compliance with § 23(A)—the withholding of federal funds by the Secretary. 42 U.S.C. § 1396c. Congress also authorized the Secretary to promulgate regulations that are necessary for the proper and efficient operation of a state plan. Id. § 1396a(a)(4). Under that authority, the Secretary has required States to give providers the right to appeal an exclusion from the Medicaid program. 42 C.F.R. § 1002.213.3 Because other sections of the Act provide mechanisms to enforce the
3It was foreseeable that federal regulations would provide for state administrative and judicial review of provider exclusions, because Congress specified that the Secretary may exclude from any federal health care program a provider who is excluded by a State. 42 U.S.C. § 1320a-7(b)(5). The collateral federal consequences of a State exclusion led the Secretary to mandate that States afford due process protections to excluded providers. See Health Care Programs: Fraud and Abuse; Amendments to OIG Exclusion and CMP Authorities Resulting From Public Law 100-93, 57 Fed. Reg. 3298, 3322-23 (Jan. 29, 1992).
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State’s obligation under § 23(A) to reimburse qualified providers who are chosen by Medicaid patients, it is reasonable to conclude that Congress did not intend to create an enforceable right for individual patients under § 1983. See Suter v. Artist M., 503 U.S. 347, 360-61, 363 (1992), superseded by statute on other grounds, 42 U.S.C. §§ 1320a-2, 1320a-10; see also Gonzaga, 536 U.S. at 281 (applying Suter).
Accepting the Jane Does’ position would result in a curious system for review of a State’s determination that a Medicaid provider is not “qualified.” Federal law, as noted, requires that when a State terminates a Medicaid provider, the State must afford the provider an opportunity for administrative appeal and judicial review in the state courts. Under the Jane Does’ vision, while the provider is litigating its qualifications in the state courts, or after the provider unsuccessfully appeals a determination that it is not qualified, individual patients separately could litigate or relitigate the qualifications of the provider in federal court under § 1983. Each adjudicator must apply a rather imprecise standard, asking whether the provider is “qualified to perform the service or services required.” The potential for parallel litigation and inconsistent results gives us further reason to doubt that Congress in § 23(A) unambiguously created an enforceable federal right for patients. Cf. Gonzaga, 536 U.S. at 292 (Breyer, J., concurring in the judgment).
Third, statutes with an “aggregate” focus do not give rise to individual rights. Gonzaga, 536 U.S. at 288 (quoting Blessing, 520 U.S. at 343). This court in Midwest Foster Care & Adoption Ass’n v. Kincade, 712 F.3d 1190 (8th Cir. 2013), reasoned that where “a statute links funding to substantial compliance with its conditions—including forming and adhering to a state plan with specified features—this counsels against the creation of individually enforceable rights.” Id. at 1200. “Focusing on substantial compliance is tantamount to focusing on the aggregate practices of a state funding recipient.” Id. at 1201; see Gonzaga, 536 U.S. at 288 (explaining that Blessing “found that Title IV-D failed to support a § 1983 suit in part because it only required ‘substantial compliance’ with federal regulations”);
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Blessing, 520 U.S. at 335, 343. The statute at issue in Midwest Foster Care concerned “payments on behalf of each child,” 42 U.S.C. § 672(a)(1) (emphasis added), thus arguably suggesting a focus on individuals, but this court concluded that the “substantial compliance funding condition” indicated that the statute had an aggregate focus. 712 F.3d at 1201.
Section 23(A) is likewise part of a substantial compliance regime. The Secretary is directed to discontinue payments to a State if he finds that “in the administration of the plan there is a failure to comply substantially” with a provision of § 1396a. 42 U.S.C. § 1396c(2). Although Wilder identified an enforceable right in former § 13(A) of the Medicaid Act despite the statute’s substantial compliance requirement, see Midwest Foster Care, 712 F.3d at 1201, we put little stock in that paradigm after Armstrong’s express disavowal of Wilder’s mode of analysis. There is stronger reason after Armstrong to infer an aggregate focus for § 1396a(a)(23)(A) based on the substantial compliance funding requirement of § 1396c.
The Jane Does, citing decisions of other circuits, rely on the fact that § 23(A) refers to “any individual eligible for medical assistance,” and that the Medicaid Act speaks in mandatory language when it says that a state plan “must” provide for an individual to obtain assistance from a qualified provider. 42 U.S.C. § 1396a(a). They say that this text includes the sort of “rights-creating language” that supports an action under § 1983. See Planned Parenthood of Gulf Coast, Inc. v. Gee, No. 1530987, 2017 WL 2805637, at *7-8 (5th Cir.), petition for reh’g filed, No. 15-30987 (July 13, 2017); Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 966-67 (9th Cir. 2013); Planned Parenthood of Ind., Inc. v. Comm’r of the Ind. State Dep’t of Health, 699 F.3d 962, 974-76 (7th Cir. 2012); Harris v. Olszewski, 442 F.3d 456, 461-62 (6th Cir. 2006).
In our view, this analysis gives insufficient weight to Gonzaga’s requirement of unambiguous intent and to the factors that we have discussed above: the reference
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to an “individual” is nested within one of eighty-three subsections and is two steps removed from the Act’s focus on which state plans the Secretary “shall approve,” 42 U.S.C. § 1396a(b); Congress directly and indirectly established other means of enforcing compliance, 42 U.S.C. § 1396c, 42 C.F.R. § 1002.213; and the substantial compliance funding condition of § 1396c suggests an aggregate focus. Where structural elements of the statute and language in a discrete subsection give mixed signals about legislative intent, Congress has not spoken—as required by Gonzaga, 536 U.S. at 280—with a “clear voice” that manifests an “‘unambiguous’ intent” to confer individual rights. See John B. v. Goetz, 626 F.3d 356, 361-62 (6th Cir. 2010) (per curiam) (observing that a comparable argument based on the Act as a whole “has considerable support in the language of the statute,” but concluding that it was foreclosed by circuit precedent).4
The dissent, post, at 26, asserts that it is “inappropriate” to consider the fact that § 1396a(a) is part of a directive to the Secretary, and proposes to decide the existence of an enforceable federal right based on a sentence fragment in § 1396a(a)(23). The dissent’s approach runs counter to basic rules of statutory interpretation. “Perhaps no interpretive fault is more common than the failure to follow the whole-text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012). The proper inquiry is whether Congress intended to create an enforceable federal right when it enacted the specific provision in question. Congressional intent or meaning is not discerned by considering merely a portion of a statutory provision in isolation, but rather by reading the complete provision in the
4Because we conclude that Congress did not unambiguously confer a federal right that is presumptively enforceable under § 1983, we do not adopt the view attributed to us by the dissent, post, at 26, that Congress adopted a comprehensive administrative scheme that precludes private enforcement under § 1983. See Gonzaga, 536 U.S. at 284 n.4.
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context of the statute as a whole. Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997); Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989); K-Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).
The decisions of other courts also can be explained in part by an evolution in the law. The authorities cited by the Jane Does rely significantly (and in the pre-2015 decisions, understandably) on the Supreme Court’s analysis in the now-repudiated Wilder decision. See Planned Parenthood of Ind., 699 F.3d at 976 (“Indiana’s position is hard to reconcile with Wilder . . . .”); Harris, 442 F.3d at 463 (“Our conclusion . . . comports with decisions of the Supreme Court [and other courts] that have recognized privately enforceable rights under § 1983 stemming from similar statutory language in the Medicaid Act.”) (citing Wilder, 496 U.S. at 510, 524); see also Gee, 2017 WL 2805637, at *9 (following the Sixth and Seventh Circuits); Betlach, 727 F.3d at 966-67 (same). The Third Circuit in 2004 similarly relied on Wilder in reversing a district court’s decision that §§ 1396a(a)(8), 1396a(a)(10), and 1396d(a)(15) did not unambiguously create enforceable rights in light of Gonzaga. Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 184, 192-93 (3d Cir. 2004). A concurring opinion, however, suggested that the result might not endure: “While the analysis and decision of the District Court may reflect the direction that future Supreme Court cases in this area will take, currently binding precedent supports the decision of the Court.” Id. at 194 (Alito, J., concurring).5
5The district court in Sabree concluded:
Because Title XIX speaks more in terms of what a State must do to make itself eligible for funding versus the individual treatment of recipients, and because the State need only “comply substantially” with statutory provisions to receive funding, the Secretary’s function is to assess the “aggregate function of the State,” rather than “whether the needs of any particular person have been satisfied.”
Sabree ex rel. Sabree v. Houston, 245 F. Supp. 2d 653, 660 (E.D. Pa. 2003) (citation
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In support of the view that Congress intends private enforcement of § 23(A) under § 1983, amici National Health Law Program, et al., direct our attention to 42 U.S.C. § 1320a-2. That section, enacted in 1994, provides:
In an action brought to enforce a provision of [the Social Security Act], such provision is not to be deemed unenforceable because of its inclusion in a section of [the Act] requiring a State plan or specifying the required contents of a State plan. This section is not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan requirements other than by overturning any such grounds applied in Suter v. Artist M., 112 S. Ct. 1360 (1992), but not applied in prior Supreme Court decisions respecting such enforceability; provided, however, that this section is not intended to alter the holding in Suter v. Artist M. that section 671(a)(15) of [the Act] is not enforceable in a private right of action.
The Ninth Circuit found that this text was “hardly a model of clarity.” Sanchez v. Johnson, 416 F.3d 1051, 1057 n.5 (9th Cir. 2005). The operative first sentence addresses and apparently disapproves one portion of Suter: the Court had suggested that when a provision of the Adoption Assistance and Child Welfare Act required a state plan and specified the mandatory elements of a plan, it required only that a State have a plan approved by the Secretary which contained those features, not that the plan actually be in effect. Suter, 503 U.S. at 358; see Brief of National Health Law Program, et al. as Amici Curiae at 15.6 We do not rely on this aspect of Suter; we
omitted); see also Grammer v. John J. Kane Reg’l Ctrs.-Glen Hazel, 570 F.3d 520, 533 (3d Cir. 2009) (Stafford, J., dissenting).
6The Conference Report on § 1320a-2 quotes a portion of Suter stating that 42 U.S.C. § 671(a) “only goes so far as to ensure that the States have a plan approved by the Secretary which contains the listed 16 features” before explaining the “intent” of the statute:
The intent of this provision is to assure that individuals who have been
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assume that the State must have a plan that is in effect. The second sentence of § 1320a-2 declares what is “intended” by the statute, but does not include an operative provision that adds to the specific direction of the first sentence. See Scalia & Garner, supra, at 219-20 (explaining that “an expansive purpose . . . cannot add to the specific dispositions of the operative text,” whether the expression of purpose is contained in a preface or in the body of the text); cf. FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760, 775 n.6 (2016) (“The operative provision is what counts.”). In any event, other points discussed in Suter, including the requirement of unambiguous notice to States about conditions on the receipt of federal funds and the significance of an alternative enforcement mechanism, were relevant considerations before Suter and are beyond the scope of § 1320a-2. See LaShawn A. v. Barry, 69 F.3d 556, 569 (D.C. Cir. 1995), vacated, 74 F.3d 303, and rev’d en banc on other grounds, 87 F.3d 1389 (D.C. Cir. 1996). The statute provides that Congress did not intend to alter the holding of Suter, and the provision leaves undisturbed enough of Suter’s rationale to justify the holding.
Because § 1320a-2 was adopted seven years before Gonzaga clarified the law in this area, moreover, the statute does not address the same question that a court must
injured by a State’s failure to comply with the Federal mandates of the State plan titles of the Social Security Act are able to seek redress in the federal courts to the extent they were able to prior to the decision in Suter v. Artist M., while also making clear that there is no intent to overturn or reject the determination in Suter that the reasonable efforts clause to Title IV-E does not provide a basis for a private right of action.
H.R. Rep. No. 103-761, at 924, 926 (1994) (Conf. Rep.); see also H.R. Rep. No. 102631, at 366 (1992) (stating that a predecessor bill with virtually identical language “only alters that portion of Suter v. Artist M. suggesting that failure of a state to comply with a state plan provision is not litigable as a violation of federal statutory rights”).
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decide today. Section 1320a-2 speaks to when a “provision” is “deemed unenforceable”; we must decide whether a statute unambiguously “confers an individual right” that can be enforced under § 1983. Gonzaga, 536 U.S. at 284. We know that § 1320a-2 did not freeze the law as it was before Suter in 1992: Armstrong confirmed that the 1990 Wilder decision has been repudiated by post-1994 precedent. See also Sanchez, 416 F.3d at 1057 n.5 (concluding that a court must apply Blessing and Gonzaga, which followed the enactment of § 1320a-2, in determining whether a provision of the Medicaid Act confers an individual right); Harris v. James, 127 F.3d 993, 1002 (11th Cir. 1997) (rejecting the proposition that courts must “determine the ‘federal rights’ question only according to the pre-Suter precedents”).
Section 1320a-2 does not show that § 23(A) of the Medicaid Act creates an enforceable right. This court in Midwest Foster Care interpreted § 1320a-2 to mean that a provision of the Act “cannot be deemed individually unenforceable solely because of its situs in a larger regime ‘requiring a State plan or specifying the required contents of a state plan.’” 712 F.3d at 1200 (quoting 42 U.S.C. § 1320a-2). This does not mean that we should ignore the elements of the text discussed above—the structure of the statute and its focus on a federal regulator who is two steps removed from individual patients, the availability of alternative means to enforce compliance with the requirements of § 23(A), and the aggregate focus of the statute in light of its connection between funding and substantial compliance with the condition. Where a provision is included in a section of the Act requiring a state plan or specifying the required contents of a state plan, Congress still must create new rights in clear terms that show unambiguous intent before they are enforceable under § 1983. Conflicting textual cues are insufficient.
The plurality opinion in Part IV of Armstrong fortifies this conclusion. Four Justices considered whether Medicaid providers had a cause of action under the Medicaid Act itself to enforce § 30(A) of the Act. The first step in that analysis was
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to determine whether Congress intended to confer individual rights upon a class of beneficiaries—the same inquiry that informs whether a statute confers rights enforceable under § 1983. Gonzaga, 536 U.S. at 285. The Armstrong plurality concluded that § 30(A) lacked “rights-creating language,” because it was “phrased as a directive to the federal agency charged with approving state Medicaid plans, not as a conferral of the right to sue upon the beneficiaries of the State’s decision to participate in Medicaid.” 135 S. Ct. at 1387 (citing 42 U.S.C. § 1396a(b)). To accept amici’s suggestion here that § 1320a-2 precludes this analysis would require us to conclude that the Armstrong plurality overlooked § 1320a-2 or misunderstood it. Neither is likely.7
The lack of a judicially enforceable federal right for Medicaid patients does not mean that state officials have unfettered authority to terminate providers. Patients can receive services only from a willing provider. Medicaid providers whose contracts are terminated but who wish to continue providing services have an obvious incentive to pursue administrative appeals and judicial review in state court if the alternative avenue of recruiting patients to sue in federal court is not available. Providers and patients also may urge the Secretary to withhold federal funds from a State that fails to comply substantially with the condition of § 23(A). The absence of a remedy for patients under § 1983 therefore does not make the free-choice-of-provider provision an empty promise. We conclude only that Congress did not unambiguously confer the particular right asserted by the patients in this case.
7The respondents, the Solicitor General, and several other amici brought § 1320a-2 to the Court’s attention in Armstrong. Brief for Respondents at 43, Armstrong, 135 S. Ct. 1378 (No. 14-15); Brief for the United States as Amicus Curiae at 29-30; Brief for American Ass’n of People with Disabilities, et al. as Amici Curiae at 15-16; Brief for American Medical Ass’n, et al. as Amici Curiae at 27-32; Brief for American Network of Community Options & Resources, et al. as Amici Curiae at 7, 19-24.
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Given our conclusion that § 23(A) of the Medicaid Act does not give the Jane Does or the class of Medicaid beneficiaries an enforceable federal right that supports a cause of action under § 1983, the plaintiffs do not have a likelihood of success on the merits of their claims. We need not address the Director’s alternative contention that the Jane Does failed to show that irreparable harm would result from the denial of an injunction because other qualified providers could provide the services that they seek. Without a likelihood of success on the merits, an injunction is not justified. The orders of the district court enjoining the Arkansas Department of Human Services from suspending Medicaid payments are therefore vacated.
SHEPHERD, Circuit Judge, concurring.
I concur in the court’s opinion today, but I write separately to present an alternative ground for reversal. In my view, even if § 23(A) provides a substantive right that the plaintiffs can enforce through a § 1983 suit, the right provided is to a range of qualified providers—not the right to a particular provider the State has decertified. For this alternative reason, the plaintiffs’ § 1983 claim fails.
Assuming that § 23(A) grants the plaintiffs a private right of action, we must examine the precise contours of that right. Cf. Gonzaga Univ. v. Doe, 536 U.S. 273, 280 (2002) (requiring that conferred benefits be sufficiently specific and definite to qualify as enforceable rights). The plaintiffs frame the right as an absolute right to use the qualified provider of their own choosing without governmental interference. Because Arkansas decertified Planned Parenthood—plaintiffs’ preferred healthcare provider—as a qualified provider, the plaintiffs allege they have a right under § 23(A) to challenge that decertification.
But the Supreme Court’s decision in O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980), tells us the right created by § 23(A) is far more narrow: the
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right to choose among a range of qualified providers. O’Bannon involved Medicaid recipients residing in a nursing home that initially qualified as a Medicaid provider. Id. at 775. After the nursing home was decertified and removed from the list of qualified providers, residents brought suit, alleging a constitutional right to an evidentiary hearing on the merits of the decertification decision. The Supreme Court rejected this argument. Analyzing the “substantive right” provided by § 23(A), the Court held that “the Medicaid provisions . . . do not confer a right to continued residence in the home of one’s choice.” Id. at 785-86. Section 23(A), the Court explained, “gives recipients the right to choose among a range of qualified providers, without government interference.” Id. at 785. So long as the provider remains qualified, therefore, Medicaid recipients remain free to stay there. But § 23(A) “clearly does not . . . confer a right on a recipient to continue to receive benefits for care in a home that has been decertified.” Id. In sum, the Court carefully delineated the limits of the right conferred by § 23(A); there is no enforceable right of continued care from a provider determined by the state to be unqualified.
I see two important takeaways from O’Bannon. First, the contours of the right granted by § 23(A) are circumscribed. Medicaid recipients have the enforceable right to a range of qualified providers. So state agencies cannot steer patients to certain qualified providers at the expense of other qualified providers. Nor can an agency artificially create a monopoly in Medicaid care.8 But there exists no right to a particular provider the State has decertified. Second, § 23(A) does not give Medicaid
8For these reasons, the dissent’s complaint about my construction of the right granted by § 23(A)— that it would be “self-eviscerating”—is unfounded. Section 23(A) protects Medicaid recipients from government interference in their choice of a qualified provider, examples of which I have described in the text above. Were the State to so interfere, the plaintiffs would have the right to challenge the State’s actions. So the right granted by § 23(A) is real and meaningful. It simply doesn’t have the meaning the dissent wishes it to have.
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recipients the right “to challenge the merits of a State’s assertion that a provider of Medicaid services is no longer qualified to provide Medicaid services or to challenge the State’s termination of a provider’s Medicaid agreements on the basis of the provider’s noncompliance with state and federal regulatory requirements.” Planned Parenthood of Gulf Coast, Inc. v. Gee, No. 15-30987, 2017 WL 2805637, at *20 (5th Cir. June 29, 2017) (Owen, J., dissenting). The O’Bannon Court explained that “decertification does not reduce or terminate a patient’s financial assistance, but merely requires him to use it for care at a different facility.” 447 U.S. at 785-86. “Because the patients had no substantive right to demand care from a provider that had been decertified, they had no due process rights to participate in a hearing regarding certification or decertification of the provider.” Gee, 2017 WL 2805637, at *21 (Owen, J., dissenting).
O’Bannon controls the outcome of this case. The plaintiffs are asserting a right—the absolute right to a particular provider of their choosing—that § 23(A) does not grant them. The rights granted to these plaintiffs under the statute, as explained by O’Bannon, remain intact because the record confirms that they still have access to a range of qualified providers. Further, the plaintiffs have no right under federal law to collaterally attack the merits of Arkansas’s decision to decertify Planned Parenthood. Planned Parenthood had the right to challenge that decision, but instead elected not to do so.
The plaintiffs argue on appeal that O’Bannon concerned “only a procedural due process claim,” and therefore we should not consider it controlling because the plaintiffs in this case assert a violation of a substantive right. To be sure, some of our fellow circuit courts have agreed with this view. See Gee, 2017 WL 2805637, at *9 (distinguishing O’Bannon because it involved procedural due process rights and not substantive rights); Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962, 977 (7th Cir. 2012) (same).
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This view, however, is patently flawed because it ignores the very language of O’Bannon. The Supreme Court clearly stated that it was defining the contours of the “substantive right . . . conferred by the statutes and regulations.” O’Bannon, 447 U.S. at 786. We, as courts of appeals, have no authority to dismiss binding precedent from the highest court in the land, especially when that precedent is on point. See Hennepin Cnty. v. Fed. Nat’l Mortg. Ass’n, 742 F.3d 818, 823 (8th Cir. 2014) (“Lower courts must follow Supreme Court precedent which directly applies to a case before them . . . .”).
The plaintiffs’ argument also exhibits a fundamental misunderstanding of due process rights. Any right to due process, whether asserted as a procedural or substantive claim, exists only when there is an underlying substantive right at issue. See Gee, 2017 WL 2805637, at *21 (Owen, J., dissenting) (“[T]here is no right to due process unless there is a substantive right that may be vindicated if adequate process is accorded.”). The O’Bannon plaintiffs’ procedural due process claim required a showing that the State had deprived them of “life, liberty, or property.” See U.S. Const. amend. XIV. They identified § 23(A) as the source of their due process rights. See O’Bannon, 447 U.S. at 784-85 (discussing § 23(A) as one of two sources identified by the plaintiffs as providing a substantive right). The Supreme Court thus examined whether § 23(A) provides Medicaid recipients the right to receive healthcare services from a particular provider the State has decertified. The Court concluded that no such right exists. Id. at 785-86. On this basis—the lack of a substantive right to a particular, decertified provider—the Court denied the plaintiffs’ procedural due process claim. Id. The O’Bannon Court’s reasoning and decision apply with equal force to the plaintiffs’ present claim, and for this alternative reason I would reverse the district court.
The dissent contends that I misunderstand the plaintiffs’ argument. It then explains that the plaintiffs are not claiming that § 23(A) entitles them to choose a
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provider rightfully disqualified from the pool of Medicaid providers, but rather they argue that Arkansas’s decertification of Planned Parenthood as a qualified provider constitutes government interference with their freedom of choice. O’Bannon, therefore, is supposedly inapposite. See Gee, 2017 WL 2805637, at *10 (“[T]he [O’Bannon] plaintiffs had no right to reside in an unqualified facility when the disqualification decision was connected to the state’s enforcement of its health and safety regulations.”).
The dissent’s attempt to distinguish O’Bannon fails because it assumes that Planned Parenthood was somehow wrongfully disqualified as a Medicaid provider. The dissent claims to find proof of this wrongful termination in the fact that Planned Parenthood remains licensed to serve other patients. So according to the dissent, a Medicaid recipient has the right to challenge the merits of a provider’s decertification when the State permits that provider to continue providing care to other patients. But this interpretation is plainly wrong. “Under federal statutory and regulatory provisions, a State may terminate a provider’s Medicaid agreement on many grounds, and it is not a prerequisite for such terminations that the State preclude a provider from providing services to any and all patients.” Gee, 2017 WL 2805637, at *22 (Owen, J., dissenting); see also 42 U.S.C. § 1396a(p)(1) (“In addition to any other authority, a State may exclude any individual or entity for purposes of participating under the State plan under this subchapter for any reason for which the Secretary could exclude the individual or entity from participation in a program under subchapter XVII of this chapter under section 1320a-7, 1320a-7a, or 1395cc(b)(2) of this title.”). And O’Bannon’s holding did not rest on whether the State allowed the nursing home to continue servicing other patients. The Court based its decision on the State’s termination of the nursing home’s Medicare provider agreement. O’Bannon, 447 U.S. at 776. So O’Bannon remains controlling over this case.
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MELLOY, Circuit Judge, dissenting.
Because I would join the four other circuit courts and numerous district courts that all have found a private right of enforcement under 42 U.S.C. § 1396a(a)(23)(A), I respectfully dissent. See Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445 (5th Cir. 2017); Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960 (9th Cir. 2013); Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962 (7th Cir. 2012); Harris v. Olszewski, 442 F.3d 456 (6th Cir. 2006).
In Blessing v. Freestone, 520 U.S. 329 (1997), the Supreme Court set forth a three-factor test to determine whether a statutory provision creates a private right of action enforceable under 42 U.S.C. § 1983. Under that test, we consider (1) whether “Congress . . . intended that the provision in question benefit the plaintiff”; (2) whether the right “is not so vague and amorphous that its enforcement would strain judicial competence”; and (3) whether the provision “impose[s] a binding obligation on the States.” Blessing, 520 U.S. at 340–41 (citation and internal quotation marks omitted). Later, in Gonzaga University v. Doe, 536 U.S. 273, 283 (2002), the Court amended the first prong of the analysis, holding that nothing “short of an unambiguously conferred right [will] support a cause of action brought under § 1983.”
This court has applied the Blessing test a number of times to other statutory provisions. See Spectra Commc’ns Grp., LLC v. City of Cameron, 806 F.3d 1113 (8th Cir. 2015) (finding no private right of action under 47 U.S.C. § 253); Midwest Foster Care & Adoption Ass’n v. Kincade, 712 F.3d 1190 (8th Cir. 2013) (finding no private right of action under 42 U.S.C. § 672(a)(1)); Ctr. for Special Needs Trust Admin., Inc. v. Olson, 676 F.3d 688 (8th Cir. 2012) (finding a private right of action under 42 U.S.C. § 1396p(d)(4)(C)); Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006) (finding no private right of action under 42 U.S.C. § 1396a(a)(17)); Walters v.
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Weiss, 392 F.3d 306 (8th Cir. 2004) (finding no private right of action under 42 U.S.C. § 657(a)); Mo. Child Care Ass’n v. Cross, 294 F.3d 1034 (8th Cir. 2002) (finding a private right of action under 42 U.S.C. § 672); Pediatric Specialty Care, Inc. v. Ark. Dep’t of Human Servs., 293 F.3d 472 (8th Cir. 2002) (finding a private right of action under 42 U.S.C. §§ 1396a(a)(10)(A), (a)(43), and 1396d(a, r)). Although the majority focuses on the Gonzaga analysis, I do not read the majority opinion to suggest that Blessing has been overruled.
Applying the Blessing/Gonzaga framework in the present case, I would hold that 42 U.S.C. § 1396a(a)(23)(A), the “freedom-of-choice provision,” does create a private right of action. This provision unambiguously confers an individual right to Medicaid-eligible patients. Section 23(A) states that “any individual eligible for medical assistance” can obtain that assistance from a provider of their choice. 42 U.S.C. § 1396a(a)(23)(A) (emphasis added). Thus, this provision is “phrased in terms of the persons benefitted,” Gonzaga, 536 U.S. at 284 (quoting Cannon v. Univ. of Chi., 441 U.S. 677, 692 & n.13 (1979)), and uses “individually focused terminology,” id. at 287. See O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 785 (1980) (The freedom-of-choice provision “gives recipients the right to choose among a range of qualified providers, without government interference. By implication, it also confers an absolute right to be free from government interference with [that] choice[.]” (emphasis added and omitted)); see also Gee, 862 F.3d at 459; Betlach, 727 F.3d at 966–67; Planned Parenthood of Ind., 699 F.3d at 974; Harris, 442 F.3d at 461–62.
Further, the freedom-of-choice provision “is not so vague and amorphous that its enforcement would strain judicial competence.” Blessing, 520 U.S. at 340–41 (citation and internal quotation marks omitted). The provision states that a Medicaideligible individual “may obtain . . . 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).
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Thus, there are two criteria providers must meet: (1) the provider must be “qualified to perform the service or services required”; and (2) the provider must “undertake[ ] to provide . . . such services.” Id. As the Ninth Circuit stated, “the two criteria do not require courts to engage in any balancing of competing concerns or subjective policy judgments, but only to answer factual yes-or-no questions: Was an individual denied the choice of a (1) qualified and (2) willing provider? The answer to these questions is ‘likely to be readily apparent.’” Betlach, 727 F.3d at 967 (quoting Harris, 442 F.3d at 462). The Ninth Circuit further explained:
A court can readily determine whether a particular health care provider is qualified to perform a particular medical service, drawing on evidence such as descriptions of the service required; state licensing requirements; the provider’s credentials, licenses, and experience; and expert testimony regarding the appropriate credentials for providing the service. This standard is not subjective or amorphous, and requires no balancing. It is no different from the sorts of qualification or expertise assessments that courts routinely make in various contexts.
Id. at 968 (footnote omitted). And as the Sixth Circuit noted, “while there may be legitimate debates about the medical care covered by or exempted from the freedom-of-choice provision, the mandate itself does not contain the kind of vagueness that would push the limits of judicial enforcement.” Harris, 442 F.3d at 462.
Moreover, the freedom-of-choice provision is a mandatory provision. Under the provision, states “must provide” the free choice of providers to Medicaid-eligible individuals. As a result, the freedom-of-choice provision unambiguously refers to Medicaid-eligible individuals and confers an individual entitlement: the right to receive medical services from any qualified provider of their choice. See Planned
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Parenthood of Ind., 699 F.3d at 974. Thus, I would hold that § 1396a(a)(23)(A) unambiguously creates a presumption of a private right enforceable under § 1983. See Gonzaga, 536 U.S. at 284 (“Once a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by § 1983.”).
“The State may rebut this presumption by showing that Congress ‘specifically foreclosed a remedy under § 1983.’” Id. at 284 n.4 (quoting Smith v. Robinson, 468 U.S. 992, 1004–05 & n.9 (1984)). “Congress may do so expressly, by forbidding recourse to § 1983 in the statute itself, or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.” Blessing, 520 U.S. at 341. The major thrust of the majority’s opinion appears to rest on a finding that the Medicaid Act’s regulatory scheme rebuts any presumption of private enforceability. For several reasons, I disagree that the regulatory scheme is so comprehensive as to be a clear expression of Congress’s intent to preclude private enforcement.
First, the majority, ante, at 8–10, finds that the freedom-of-choice provision does not unambiguously confer an individual right. In so finding, the majority considers the Medicaid Act as a whole to find that the freedom-of-choice provision is part of a directive to the Secretary of Health and Human Services. Such a broad focus is inappropriate. See Blessing, 520 U.S. at 342 (“We [do] not ask whether the federal . . . legislation generally [gives] rise to rights; rather, we focus[ ] our analysis on a specific statutory provision . . . .”); Golden State Transit Corp. v. City of L.A., 493 U.S. 103, 106 (1989) (asking whether the “provision in question” was designed to benefit the plaintiff). And such a broad analysis cannot stand because it is inconsistent with circuit precedent, which has found a private right of action under other provisions of the Medicaid Act. See Olson, 676 F.3d at 699–700 (finding a private right of action to enforce the Medicaid Act’s pooled trusts provision under 42 U.S.C. § 1396p(d)(4)(C)); Pediatric Specialty Care, 293 F.3d at 478–79 (finding a
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private right of action to challenge proposed state budget cutbacks that would violate the right to early and periodic screening, diagnosis, and treatment services under 42 U.S.C. §§ 1396a(a)(10)(A), (a)(43), and 1396d(a, r)).
Second, the majority, ante, at 9, states that “[b]ecause other sections of the Act provide mechanisms to enforce the State’s obligation under § 23(A) to reimburse qualified providers who are chosen by Medicaid patients, it is reasonable to conclude that Congress did not intend to create an enforceable right for individual patients under § 1983.” However, “[t]he availability of administrative mechanisms to protect the plaintiff’s interests” alone cannot defeat the plaintiff’s ability to invoke § 1983 so long as the other requirements of the three-part test are met. Blessing, 520 U.S. at 347 (alteration in original) (quoting Golden State Transit Corp., 493 U.S. at 106).
Third, the majority, ante, at 10–11, finds private enforcement foreclosed because § 23(A) is “part of a substantial compliance regime.” Thus, according to the majority, we can “infer an aggregate focus for” § 23(A). I disagree that the substantial compliance regime supports a finding that Congress intended to foreclose private enforcement. In Blessing, the Court concluded that the enforcement scheme under Title IV–D of the Social Security Act was not sufficiently comprehensive to foreclose § 1983 liability. 520 U.S. at 348. In so concluding, the Court noted the lack of any “private remedy—either judicial or administrative—through which aggrieved persons can seek redress.” Id. Further, the Court found that the Secretary of Health and Human Services’ “limited powers to audit [for substantial compliance] and cut federal funding” were not enough to foreclose private enforcement. Id. Similarly, in this case, the Secretary’s power to cut funding if a State is not in substantial compliance with § 1396a is not enough to foreclose private enforcement. And while a provider in Arkansas may file an administrative appeal and then seek judicial review of Arkansas’s decision to terminate the provider’s contract under
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Arkansas law, there is no remedy available for Medicaid-eligible individuals harmed by the termination decision.
Fourth, the majority relies on Armstrong v. Exceptional Child Center Inc., 135 S. Ct. 1378 (2015), in reaching its decision. I do not read Armstrong to overrule or even undermine the reasoning of the other circuits that have addressed whether § 23(A) creates a private right of action under § 1983. Armstrong involved the Supremacy Clause and a claim for equitable relief under 42 U.S.C. § 1396a(a)(30)(A). There, it was undisputed that § 1983 was not an available remedy, as § 30(A) does not have any rights-creating language nor does it refer to individual Medicaid beneficiaries. Specifically, § 30(A) requires state Medicaid plans to:
provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan . . . as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area . . . .
42 U.S.C. § 1396a(a)(30)(A). The Supreme Court held that
[t]he provision for the Secretary’s enforcement by withholding funds might not, by itself, preclude the availability of equitable relief. But it does so when combined with the judicially unadministrable nature of § 30(A)’s text. It is difficult to imagine a requirement broader and less specific than § 30(A)’s mandate that state plans provide for payments that are “consistent with efficiency, economy, and quality of care,” all the while “safeguard[ing] against unnecessary utilization of . . . care and services.”
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Armstrong, 135 S. Ct. at 1385 (second alteration and omission in original) (citation omitted) (quoting 42 U.S.C. § 1396a(a)(30)(A)). In contrast, § 23(A) has only two criteria, neither of which are too broad or too general for courts to consider. Thus, “[t]he provision for the Secretary’s enforcement by withholding funds” does not preclude private enforcement under § 1983.
Finally, to the extent the majority discounts the four other circuits that have found a private right of action under the freedom-of-choice provision based upon an alleged evolution of law, ante, at 12, I disagree. The majority asserts that the Supreme Court’s opinions in Gonzaga and Armstrong overruled Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990). In Wilder, the Court held that the Boren Amendment to the Medicaid Act created a private right of action because it “was intend[ed] to benefit the putative plaintiff.” Id. at 509 (alteration in original) (citation omitted). I do not dispute the fact that Gonzaga amended that prong of the Blessing test. See Gonzaga, 536 U.S. at 283 (“We now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983.”). But I do not read the other circuits’ opinions to rely on Wilder in such a manner as to make those cases bad law.
The Fifth, Sixth, Seventh, and Ninth Circuits all applied the Blessing/Gonzaga framework to hold that the freedom-of-choice provision creates a private right enforceable under § 1983. Gee, 862 F.3d at 457–61; Betlach, 727 F.3d at 966–67; Planned Parenthood of Ind., 699 F.3d at 972–74; Harris, 442 F.3d at 461–63. Notably, all of these opinions were issued after Wilder was, as the majority claims, overruled by Gonzaga. Further, only two of these opinions rely on Wilder. Planned Parenthood of Ind., 699 F.3d at 969, 974–76; Harris, 442 F.3d at 461, 463. And where those opinions do rely on Wilder, they do so for propositions that are unchallenged by subsequent caselaw. See Planned Parenthood of Ind., 699 F.3d at 969 (“Medicaid ‘is a cooperative federal-state program through which the Federal
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Government provides financial assistance to States so that they may furnish medical care to needy individuals.’” (quoting Wilder, 496 U.S. at 502)); id. at 974–75 (relying on Wilder to find that the Medicaid Act’s regulatory scheme was not sufficiently comprehensive to show Congressional intent to preclude § 1983 enforcement, the underlying reasoning of which is also supported by Blessing); Harris, 442 F.3d at 463 (same). Most importantly, as noted above, all four circuits concluded, as required by Gonzaga, that the freedom-of-choice provision unambiguously confers a private right of action under § 1983. Gee, 862 F.3d at 458–59; Betlach, 727 F.3d at 966; Planned Parenthood of Ind., 699 F.3d at 974; Harris, 442 F.3d at 461. I therefore read those circuits’ opinions as persuasive authority that cannot be discounted by an alleged evolution of Supreme Court precedent.
I also disagree with the concurrence’s alternative argument for reversing the district court. O’Bannon held:
When enforcement of [minimum standards of care] requires decertification of a facility, there may be an immediate, adverse impact on some residents. But surely that impact, which is an indirect and incidental result of the Government’s enforcement action, does not amount to a deprivation of any interest in life, liberty, or property.
447 U.S. at 787. As the Fifth Circuit recently explained, “the [O’Bannon] plaintiffs had no right to reside in an unqualified facility when the disqualification decision was connected to the state’s enforcement of its health and safety regulations.” Gee, 862 F.3d at 461. The language of the freedom-of-choice provision supports this understanding because the word “qualified” is modified by the phrase “to perform the service or services required.” 42 U.S.C. § 1396(a)(23)(A). “The provision thus indexes the relevant ‘qualifications’ not to any Medicaid-specific criteria (whether imposed by the federal government or the states), but to factors external to the
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Medicaid program; the provider’s competency and professional standing as a medical provider generally.” Betlach, 727 F.3d at 969.
Here, like in Gee, Arkansas did not decertify Planned Parenthood as a medical provider. Rather, the state terminated only Planned Parenthood’s Medicaid Provider Agreement; Planned Parenthood is still licensed to serve other patients. See Gee, 862 F.3d at 461 (discussing the State’s actions and explaining that “[t]he Individual Plaintiffs in this case are trying to sustain their ‘right to choose among a range of qualified providers, without government interference’—a right explicitly recognized in O’Bannon.” (quoting O’Bannon, 447 U.S. at 785 (emphasis in original))). The plaintiffs in this case do not claim that the freedom-of-choice provision entitles them to choose a provider rightfully disqualified from the pool of Medicaid providers. See Planned Parenthood of Ind., 699 F.3d at 978–80 (discussing the State’s limited authority to disqualify providers). Instead, they argue that Arkansas’s termination of the Medicaid Provider Agreement constitutes government interference with their freedom of choice. If the right is given the construction the concurrence suggests, “the free-choice-of-provider requirement would be self-eviscerating.” Betlach, 727 F.3d at 970; see Planned Parenthood of Ind., 699 F.3d at 978 (“If the states are free to set any qualifications they want—no matter how unrelated to the provider’s fitness to treat Medicaid patients—then the free-choice-of-provider requirement could be easily undermined by simply labeling any exclusionary rule as a ‘qualification.’”). And while it is true that a state may terminate a Medicaid provider on many grounds, the provision the concurrence cites, 42 U.S.C. § 1396a(p)(1), cross-references other provisions of the Medicaid Act limiting the state’s authority to make qualification decisions to “various forms of malfeasance such as fraud, drug crimes, and failure to disclose necessary information to regulators.” Planned Parenthood of Ind., 699 F.3d at 979. The provisions do not grant plenary power to the states to make these determinations. Betlach, 727 F.3d at 971–72; Planned Parenthood of Ind., 699 F.3d at 979.
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Based on the foregoing discussion, I would hold that the freedom-of-choice provision does create an individual right enforceable under § 1983. That right allows individuals to challenge a state’s actions when a provider’s Medicaid Agreement is terminated for reasons unrelated to the provider’s qualifications. Additionally, I agree with the district court’s analysis of the Dataphase factors governing the issuance of an injunction.9 As a result, I would affirm the orders of the district court enjoining the Arkansas Department of Human Services from suspending Medicaid payments.
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9Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc) (“[W]hether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.”).
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Michael E. Gans Clerk of Court

United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102

VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov

August 16, 2017

Mr. Lee P. Rudofsky ATTORNEY GENERAL'S OFFICE 200 Catlett-Prien Building 323 Center Street Little Rock, AR 72201-0000
RE: 15-3271 Planned Parenthood of AR, etc., et al v. Cindy Gillespie 16-4068 Planned Parenthood of AR, etc., et al v. Cindy Gillespie
Dear Counsel:
The court has issued an opinion in this case. Judgment has been entered in accordance with the opinion. The opinion will be released to the public at 10:00 a.m. today. Please hold the opinion in confidence until that time.
Please review Federal Rules of Appellate Procedure and the Eighth Circuit Rules on postsubmission procedure to ensure that any contemplated filing is timely and in compliance with the rules. Note particularly that petitions for rehearing and petitions for rehearing en banc must be received in the clerk's office within 14 days of the date of the entry of judgment. Counsel-filed petitions must be filed electronically in CM/ECF. Paper copies are not required. No grace period for mailing is allowed, and the date of the postmark is irrelevant for pro-se-filed petitions. Any petition for rehearing or petition for rehearing en banc which is not received within the 14 day period for filing permitted by FRAP 40 may be denied as untimely.
Michael E. Gans Clerk of Court
JMM
Enclosure(s)
cc: Ms. Bettina E. Brownstein Mr. Erwin Chemerinsky Mr. Carmine Joseph Cordi Jr. Mr. David A. Curran Mr. Colin Jorgensen Mr. Charles Lyford Mr. Jim McCormack Ms. Martha Jane Perkins

Appellate Case: 15-3271 Page: 1 Date Filed: 08/16/2017 Entry ID: 4568936

Case 4:15-cv-00566-KGB Document 140 Filed 08/16/17 Page 34 of 39 Ms. Jennifer Sandman Mr. David W. Sterling
District Court/Agency Case Number(s): 4:15-cv-00566-KGB 4:15-cv-00566-KGB
Appellate Case: 15-3271 Page: 2 Date Filed: 08/16/2017 Entry ID: 4568936

Case 4:15-cv-00566-KGB Document 140 Filed 08/16/17 Page 35 of 39

Michael E. Gans Clerk of Court

United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102

VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov

August 16, 2017

West Publishing Opinions Clerk 610 Opperman Drive Building D D4-40 Eagan, MN 55123-0000
RE: 15-3271 Planned Parenthood of AR, etc., et al v. Cindy Gillespie 16-4068 Planned Parenthood of AR, etc., et al v. Cindy Gillespie
Dear Sirs:
A published opinion was filed today in the above case.
Counsel who presented argument on behalf of the appellant was Lee P. Rudofsky, AAG, of Little Rock, AR. The following attorney(s) appeared on the appellant brief; Carmine Joseph Cordi, AAG, of Jr., AAG, of Fayetteville, AR., David W. Sterling, AAG, of AAG, of Little Rock, AR., David A. Curran, AAG, of AAG, of Little Rock, AR., Lee P. Rudofsky, AAG, of Little Rock, AR.
Counsel who presented argument on behalf of the appellee was Jennifer Sandman, of New York, NY. The following attorney(s) appeared on the appellee brief; Bettina E. Brownstein, of Little Rock, AR., Erwin Chemerinsky, of Irvine, CA., Jennifer Sandman, of New York, NY.
The following attorney(s) appeared on the amicus brief; Martha Jane Perkins, of Carrboro, NC.
The judge who heard the case in the district court was Honorable Kristine G. Baker. The judgment of the district court was entered on October 5, 2015.
If you have any questions concerning this case, please call this office.
Michael E. Gans Clerk of Court
JMM
Enclosure(s)
cc: MO Lawyers Weekly

Appellate Case: 15-3271 Page: 1 Date Filed: 08/16/2017 Entry ID: 4568936

Case 4:15-cv-00566-KGB Document 140 Filed 08/16/17 Page 36 of 39 District Court/Agency Case Number(s): 4:15-cv-00566-KGB 4:15-cv-00566-KGB
Appellate Case: 15-3271 Page: 2 Date Filed: 08/16/2017 Entry ID: 4568936

Case 4:15-cv-00566-KGB Document 140 Filed 08/16/17 Page 37 of 39

15-3271 Planned Parenthood of AR , etc., et al v. Cindy Gillespie "Signed

Opinion Filed" (4:15-cv-00566-KGB)

ca08ml_cmecf_Notify to:

08/16/2017 09:58 AM

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing.

Eighth Circuit Court of Appeals

Notice of Docket Activity

The following transaction was filed on 08/16/2017

Case Name:

Planned Parenthood of AR, etc., et al v. Cindy Gillespie

Case Number: 15-3271

Document(s): Document(s)

Docket Text: OPINION FILED - THE COURT: Steven M. Colloton, Michael J. Melloy and Bobby E. Shepherd AUTHORING JUDGE:Steven M. Colloton (PUBLISHED), DISSENT BY: Michael J. Melloy, CONCUR BY: Bobby E. Shepherd; [4568936] [15-3271, 16-4068] (Jeanette McKee)
Notice will be electronically mailed to:
Ms. Bettina E. Brownstein: bettinabrownstein@gmail.com Mr. Erwin Chemerinsky: echemerinsky@law.uci.edu, bstewart@law.uci.edu Mr. Carmine Joseph Cordi, Jr.: joecordi@uark.edu, harriman@uark.edu, pdoyal@uark.edu Mr. David A. Curran, Associate General Counsel: dcurran@uasys.edu, dcurran@uasys.edu, gward@uasys.edu Mr. Colin Jorgensen: cjorgensen@arcounties.org, crjorgensen@gmail.com Mr. Charles Lyford: charles.lyford@arkansasag.gov, toni.hamp@arkansasag.gov Mr. Jim McCormack, Clerk of Court: ared_appeals@ared.uscourts.gov Ms. Martha Jane Perkins: perkins@healthlaw.org Mr. Lee P. Rudofsky: lee.rudofsky@arkansasag.gov Ms. Jennifer Sandman: jennifer.sandman@ppfa.org, richard.muniz@ppfa.org, ruth.hirsch@ppfa.org, chigozie.akah@ppfa.org, julio.castillo@ppfa.org Mr. David W. Sterling: david.sterling@dhs.arkansas.gov MO Lawyers Weekly: stephanie.maniscalco@molawyersmedia.com

Case 4:15-cv-00566-KGB Document 140 Filed 08/16/17 Page 38 of 39
West Publishing: us08@westdcs.west.thomson.com
The following document(s) are associated with this transaction: Document Description: opinion Original Filename: 153271P.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=08/16/2017] [FileNumber=4568936-0] [ac0d54089a2c14872f3048023a72b2d6c99d1f2f9d5e148e4a81e93c5ebc024958d246636609dff7 0cb1fd5cb75eac28727c5db9cb9aedf39dc8b7d1b4da3711]]
Document Description: Counsel Opinion Letter Original Filename: /opt/ACECF/live/forms/JeanetteMcKee_153271_4568936_CounselOpinionLetters_285.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=08/16/2017] [FileNumber=4568936-1] [0efc964986ac0017b36ebda87d34199847a4a81e2e6ad7381a0d24a16e63330bd7315a83b8ff6260 0ea6bc88052e0645042d92ccd1ca99f87447901870e765a6]] Recipients:
 Ms. Bettina E. Brownstein  Mr. Erwin Chemerinsky  Mr. Carmine Joseph Cordi, Jr.  Mr. David A. Curran, Associate General Counsel  Mr. Colin Jorgensen  Mr. Charles Lyford  Mr. Jim McCormack, Clerk of Court  Ms. Martha Jane Perkins  Mr. Lee P. Rudofsky  Ms. Jennifer Sandman  Mr. David W. Sterling Document Description: Letter To Publishing Original Filename: /opt/ACECF/live/forms/JeanetteMcKee_153271_4568936_LettersToPublishing_284.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=08/16/2017] [FileNumber=4568936-2] [70d3247c38de930629fde583f80932aebfafcc2697f5374d6aa75ab14a256a83d1434d636c8508a9 68aa9817d7baa136c5903189cbce92562b373da5815dcb2e]] Recipients:  MO Lawyers Weekly  West Publishing
The following information is for the use of court personnel:
DOCKET ENTRY ID: 4568936 RELIEF(S) DOCKETED:

Case 4:15-cv-00566-KGB Document 140 Filed 08/16/17 Page 39 of 39
for publication dissent concurrence extension of time to file (any) brief for miscellaneous relief DOCKET PART(S) ADDED: 5870203, 5870206, 5870205, 5870207, 5870209, 5870211, 5688867, 5688853

 
 Case 4:15-cv-00566-KGB Document 181 Filed 07/30/18 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

PLANNED PARENTHOOD ARKANSAS & EASTERN OKLAHOMA, JANE DOE #1, JANE DOE #2, AND JANE DOE #3, and all others similarly situated

PLAINTIFFS

v.

Case No. 4:15-cv-566-KGB

CINDY GILLESPIE, DIRECTOR, ARKANSAS DEPARTMENT OF HUMAN SERVICES, IN HER OFFICIAL CAPACITY

DEFENDANT

PRELIMINARY INJUNCTION ORDER

Plaintiffs Planned Parenthood Arkansas & Eastern Oklahoma d/b/a Planned Parenthood

Great Plains (“PPAEO”), Jane Doe #1, Jane Doe #2, and Jane Doe #3, on their behalf and all others

similarly situated, filed a motion for preliminary injunction on the constitutional claims on January

19, 2018 (Dkt. No. 144). Plaintiffs move to enjoin defendant Cindy Gillespie, Director of Arkansas

Department of Human Services (“ADHS”), her employees, agents, and successors in office from

terminating the Medicaid provider agreements of PPAEO (Id., at 1). Defendant responded in

opposition to the motion for preliminary injunction (Dkt. No. 175). Plaintiffs filed a reply (Dkt.

No. 178). For the reasons discussed below, the Court finds that plaintiffs have not met their burden

of proof for a preliminary injunction on their constitutional claims.

I. Procedural Background

PPAEO and the Jane Does first filed a motion for temporary restraining order and

preliminary injunction on September 11, 2015, contending that plaintiffs were likely to succeed

on their claim that termination of PPAEO’s Medicaid provider agreements violated the right of the

Jane Does and all of PPAEO’s Medicaid patients to obtain family planning and other preventative

Case 4:15-cv-00566-KGB Document 181 Filed 07/30/18 Page 2 of 32
health care services from the qualified provider of their choosing under 42 U.S.C. § 1396a(a)(23) (Dkt. No. 3). PPAEO and the Jane Does alleged that, starting on September 21, 2015, absent an injunction, patients insured through the Medicaid program who choose to get family planning and other health care services at PPAEO would lose access to services, would lose their provider of choice, would find their family planning services interrupted, and would be left with few or no adequate alternative providers (Dkt. No. 12, ¶¶ 8, 34). PPAEO and the Jane Does also contended that, “[i]f [PPAEO] is forced to stop providing care through the Medicaid program, a dire situation will become critical. The remaining providers will be simply unable to absorb [PPAEO]’s patients, leaving those patients without access to crucial medical services.” (Id., ¶ 43). On September 18, 2015, this Court granted PPAEO and the Jane Does’ motion for temporary restraining order (Dkt. No. 21).
On October 2, 2015, the Court then granted a preliminary injunction more limited in scope—limiting the relief granted to just the Jane Doe plaintiffs (Dkt. Nos. 44, 45). The Court subsequently granted PPAEO and the Jane Does leave to file a second amended complaint (Dkt. No. 63). In their second amended complaint, PPAEO and the Jane Does added class allegations (Dkt. No. 64, ¶¶ 50-55). At the same time, PPAEO and the Jane Does moved this Court to certify a class of patients who seek to obtain, or desire to obtain, health care services in Arkansas at PPAEO through the Medicaid program (Dkt. No. 50).
On October 6, 2015, ADHS filed a motion for extension of time to respond to plaintiffs’ class certification motion and a motion for leave to notice four depositions (Dkt. Nos. 55, 56). The Court conducted a status hearing on the motions. ADHS requested leave to depose Jane Doe #1, Jane Doe #2, and Jane Doe #3 and to conduct a Federal Rule of Civil Procedure 30(b)(6) deposition of a PPAEO representative before responding to the then-pending motion for class certification.
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ADHS claimed that it sought these depositions to test, at least, the typicality and adequacy requirements for class certification (Dkt. No. 55, at 4). For reasons set out in its Order, the Court denied the motion for leave to notice four depositions and for expedited discovery (Dkt. No. 66).
On January 25, 2016, the Court granted the motion to certify a class (referred to in this Order as the “Patient Class”) (Dkt. No. 86). The certified class consists of patients who seek to obtain, or desire to obtain, health care services in Arkansas at PPAEO through the Medicaid program. ADHS sought interlocutory review of this Court’s class certification Order and denial of the motion for expedited pre-certification discovery decision. See Planned Parenthood Ark. & E. Okla., d/b/a Planned Parenthood of the Heartland v. Selig, Case No. 16-8003 (8th Cir. Feb. 5, 2016). The Eighth Circuit Court of Appeals denied ADHS’s request for interlocutory review (Dkt. Nos. 96, 97).
PPAEO and the Jane Does then moved for a preliminary injunction extending to the newlycertified Patient Class the same relief already granted the Jane Does (Dkt. No. 98). ADHS subsequently filed a motion seeking expedited discovery before the Court ruled on the motion for preliminary injunction seeking to extend to the newly-certified class the same relief previously granted to the Jane Does (Dkt. No. 113). PPAEO and the Jane Does responded in opposition to the motion for expedited discovery (Dkt. No. 115), and ADHS replied (Dkt. No. 116). The Court then conducted a status conference to discuss the motion for expedited discovery on August 19, 2016, before denying the motion (Dkt. No. 119).
ADHS then filed a sur-reply (Dkt. No. 120) and subsequently informally requested permission from the Court to file a supplemental response to its response in opposition to the motion to expand the preliminary injunction to the Patient Class. The Court granted this request, and ADHS filed a supplemental response (Dkt. No. 121). PPAEO and the Jane Does then filed
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supplemental memorandums in support of their motion (Dkt. Nos. 122, 124), to which the Court gave ADHS an opportunity to respond. ADHS filed a further reply in opposition to plaintiffs’ preliminary injunction motion and a response to notice of supplemental authority (Dkt. Nos. 125, 126).
On September 29, 2016, this Court entered a preliminary injunction on behalf of the Patient Class granting the motion for preliminary injunction and enjoining ADHS from suspending Medicaid payments to PPAEO for services rendered to Medicaid beneficiaries who are members of the Patient Class (Dkt. No. 127). ADHS filed a notice of appeal to the Eighth Circuit on October 27, 2016, as to this Court’s preliminary injunction (Dkt. No. 128). On August 16, 2017, the Eighth Circuit issued an opinion vacating this Court’s preliminary injunction order on the grounds that 42 U.S.C. § 1396a(a)(23)(A) does not create an enforceable federal right for individual patients. Does v. Gillespie, 867 F.3d 1034, 1046 (8th Cir. 2017). The Eighth Circuit’s mandate was entered on November 20, 2017, at which point this Court regained jurisdiction of the case.
While the appeal was pending, PPAEO and the Jane Does sought leave to file a third amended complaint, which this Court granted (Dkt. No. 134). PPAEO and the Jane Does filed their third amended complaint on November 30, 2016 (Dkt. No. 135-1). In this complaint, PPAEO and the Jane Does, on behalf of themselves and all others similarly situated, bring claims against ADHS pursuant to 42 U.S.C. § 1396a(a)(23), alleging that ADHS’ actions violate 42 U.S.C. § 1396a(a)(23), penalize plaintiffs for their constitutionally protected right to associate with Planned Parenthood and/or abortion, and unfairly target plaintiffs for unfavorable treatment without adequate justification in violation of the Equal Protection Clause (Id., ¶¶ 54-59). On January 19, 2018, PPAEO and the Jane Does filed a motion for preliminary injunction on their constitutional claims (Dkt. No. 144). ADHS filed motions to stay the preliminary injunction briefing and for a
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scheduling order (Dkt. Nos. 150, 151). On February 1, 2018, the Court entered an order staying preliminary injunction briefing (Dkt. No. 152).
PPAEO and the Jane Does filed a motion for limited expedited discovery in support of the latest preliminary injunction motion (Dkt. No. 153-3). ADHS responded, and PPAEO and the Jane Does replied (Dkt. Nos. 155, 156). The Court ordered the parties to file additional briefing, and the Court also asked the parties to inform the Court of their respective positions on the consolidation of the motion for preliminary injunction with the trial on the merits (Dkt. No. 157). ADHS filed another response to PPAEO and the Jane Does’ request for limited expedited discovery arguing that it should be denied and arguing that this Court should consolidate the preliminary injunction with the trial on the merits (Dkt. No. 161). PPAEO and the Jane Does filed additional briefings in which they argued that limited expedited discovery was warranted and that the consolidation of the preliminary injunction and the trial on the merits would compound their injuries (Dkt. Nos. 162, 165). On March 20, 2018, the Court entered an order denying PPAEO and the Jane Does’ motion for limited expedited discovery, granting ADHS’ motion for an initial scheduling order, and lifting the stay on briefing the motion for preliminary injunction (Dkt. No. 170). ADHS then filed a response to the motion for preliminary injunction, and PPAEO and the Jane Does replied (Dkt. Nos. 175, 178).
II. Findings Of Fact The Court adopts by reference its findings of fact in its prior Orders entered in this matter, to the extent those findings do not conflict with factual findings recited here (Dkt. Nos. 45, at 310; 127, at 6-9). See Fed. R. Civ. P. 10(c). The Court also makes the following additional findings of fact. To the extent the findings of fact in this Order contradict the findings of fact made in the Court’s prior Orders, the findings of fact in this Order control. Further, the Court will address
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these and additional factual matters in the context of its discussion of the legal issues; the Court makes the findings of fact addressed in that context as well. In making the following findings of fact and conclusions of law, the Court has considered the record as a whole. All findings of fact contained herein that are more appropriately considered conclusions of law are to be so deemed. Likewise, any conclusions of law more appropriately considered a finding of fact shall be so classified. The Court has considered and weighed all of the evidence presented in the record at this stage; the Court has resolved any disputes consistent with the statements in this Order.
1. PPAEO is a Planned Parenthood entity providing health care services in Arkansas (Declaration of Aaron Samulcek, Dkt. No. 145-1, ¶ 2 (“Samulcek Decl.”)). PPAEO operates health centers in Little Rock, Arkansas, and Fayetteville, Arkansas (Id., ¶ 4).
2. These centers provide family planning services to men and women, including contraception and contraceptive counseling, screening for breast and cervical cancer, pregnancy testing and counseling, and early medication abortion (Id.).
3. In Fiscal Year (“FY”) 2017, PPAEO provided over 1,000 health care visits for over 750 women, men, and teens insured through Medicaid in Little Rock and Fayetteville (Id., ¶ 5). In FY 2016, PPAEO provided over 1,000 health care visits for over 650 women, men, and teens insured through Medicaid in Little Rock and Fayetteville (Id.). Throughout Arkansas, approximately 20% of PPAEO’s FY 2017 patients were insured through Medicaid, and those patients were responsible for nearly 20% of PPAEO’s total Arkansas health care visits in FY 2017 (Id.).
4. According to data compiled by the Guttmacher Institute, in Pulaski County, Arkansas, publicly funded health clinics served 7,680 women who obtained contraceptive services in 2015 (Dkt. No. 145-1, Samulcek Decl., ¶ 6). PPAEO’s Little Rock health center served over
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40%, or 3,200, of these women (Id.). According to the same data, in Washington County, Arkansas, publicly funded health clinics served 4,030 women who obtained contraceptive services, and PPAEO’s Fayetteville health center served approximately 35%, or 1,400, of these women (Id.).
5. PPAEO does not and has not ever facilitated fetal tissue donation (Dkt. No. 13-2, at 3).
6. At its Arkansas health centers, PPAEO offers only early medication abortions, which is a Federal Drug Administration-approved process in which a patient takes oral medication that causes her to pass the products of conception at a later time, usually away from the health center; as a result, there is no fetal tissue extracted at PPAEO’s health centers (Id., at 2; Dkt. No. 145-1, Samulcek Decl., ¶ 8).
7. PPAEO and the Jane Does represent that Arkansas Medicaid does not cover medication abortion in virtually all circumstances, and all parties agree that Medicaid payment for abortion is not at issue in this case (Dkt. Nos. 135-1, ¶ 16; 139, ¶ 16).
8. PPAEO also operates a pharmacy that serves Arkansas residents which allows patients to have their birth control prescriptions automatically refilled (Dkt. No. 3, Declaration of Suzanna de Baca, ¶ 7 (“de Baca Decl.”)).
9. The Patient Class certified in this matter consists of patients who seek to obtain, or desire to obtain, health care services in Arkansas at PPAEO through the Medicaid program (Dkt. No. 86, at 5).
10. Plaintiffs Jane Does are patients of PPAEO who received their care through the Medicaid program (Id.) (see Dkt. No. 3, Declaration of Jane Doe # 1 in Support of Plaintiffs’ Motion for TRO and/or PI, ¶ 1 (“Decl. Jane Doe #1”); Declaration of Jane Doe # 2 in Support of
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Plaintiffs’ Motion for TRO and/or PI, ¶ 1 (“Decl. Jane Doe #2”); Declaration of Jane Doe # 3 in Support of Plaintiffs’ Motion for TRO and/or PI, ¶ 1 (“Decl. Jane Doe #3”)).
11. All three of the Jane Does claim that, for a variety of the following reasons, they choose PPAEO because it is convenient, they are able to obtain appointments quickly, they obtain test results quickly and reliably, they like the atmosphere and staff, they like that they receive the information they need, and they like the services they can receive as a walk-in patient, especially given their time commitments to children, inflexible work schedules, and other responsibilities that make it difficult to schedule appointments at a set time (Dkt. No. 3, at 1-20).
12. Before choosing PPAEO, Jane Doe #1 and Jane Doe #2 tried to obtain healthcare in other ways. With a private provider, Jane Doe #1 found the wait times long for an appointment and recalls being referred to the emergency room or offered an appointment in three to four weeks when she called concerned about symptoms (Dkt. No. 3, Decl. Jane Doe #1, ¶ 6). With a county health clinic, Jane Doe #1 recalls wait times of three or four weeks and bad experiences with unpleasant and unhelpful staff members (Id.). Jane Doe #2 recalls long wait times and being required to wait several weeks from calling to get an appointment. Although she acknowledges other providers take patients on a walk-in basis, the wait times were even longer (Dkt. No. 3, Decl. Jane Doe #2, ¶ 5).
13. ADHS’ own documents reflect that long wait times and delays in scheduling appointments are commonplace among county health clinics that offer family planning services and other preventative care (Dkt. Nos. 26-5, 26-6).
14. ADHS, through its then-Director John Selig, notified PPAEO on August 14, 2015, that ADHS was terminating its Medicaid provider agreements, effective 30 days from the date of the letter (Dkt. No. 16-1, at 19).
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15. Mark White, Deputy Director of ADHS, who supervises the Division of Medical Services which administers Arkansas’ Medicaid Program, states that “at Governor Asa Hutchinson’s directive, DHS Director John Selig gave written notice that DHS would terminate the three (3) [PPAEO] provider agreements in 30 days, exercising its rights to do so under the ‘voluntary’ termination provision (Section III.A) of said agreements.” (Affidavit of Mark White, Dkt. No. 16-1, ¶ 5 (“White Aff.”)).
16. Arkansas Governor Asa Hutchinson issued a press release on August 14, 2015, the day the termination letter was sent to PPAEO.1 In this press release, Governor Hutchinson states that he directed ADHS to terminate the agreements because “[i]t is apparent that after the recent revelations on the actions of Planned Parenthood, that this organization does not represent the values of the people of our state and Arkansas is better served by terminating any and all existing contracts with them.” (Dkt. No. 12, ¶ 35).
17. The August 14, 2015, letter provided directions on how PPAEO could administratively appeal the termination (Dkt. No. 16-1, White Aff., ¶ 6).
18. Mr. White states, “[a]fter the letter was issued, the Governor directed DHS to review the videos released by the Center for Medical Progress.” (Id.). The Court hereafter refers to these videos as the “CMP videos.”
19. Mr. White states that he reviewed the first seven (7) of the eight (8) videos that were available at that time on behalf of ADHS and made several observations (Id., ¶ 10).
1 See Press Release, Ark. Governor Asa Hutchinson, Governor Asa Hutchinson Directs DHS to End Contract with Planned Parenthood (Aug. 14, 2015), https://governor.arkansas.gov/press-releases/detail/governor-asa-hutchinson-directs-dhs-to-endcontract-with-planned-parenthood.
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20. Mr. White states that “[t]he videos appear to demonstrate that Planned Parenthood and/or its affiliates have violated American Medical Association Guidelines, as well as the federal ban on partial birth abortions (18 U.S.C. § 1531), the Born-Alive Infants Protection Act of 2002 (1 U.S.C. § 8), the federal ban on transferring human fetal tissue for valuable consideration (42 U.S.C. § 289g-2), and other federal and state laws.” (Id., ¶ 13).
21. The transfer of fetal tissue is against Arkansas law. See Ark. Code Ann. § 20-17802.
22. Based on record evidence at this stage of the litigation, the CMP videos do not depict any representatives of PPAEO.
23. Based on record evidence at this stage of the litigation, the CMP videos include no statements from representatives of PPAEO.
24. Based on record evidence at this stage of the litigation, the CMP videos do not discuss any conduct by any PPAEO medical provider.
25. Mr. White states that, on September 1, 2015, he issued a second notice of termination to PPAEO “acting under the ‘for cause’ termination provision (Section III.C) of the three (3) provider agreements.” (Dkt. No. 16-1, White Aff., ¶ 16).
26. Mr. White makes clear that, although he believes his authority would permit him to terminate immediately PPAEO as a provider under the for cause termination provision, ADHS “delayed the effective date to coincide with that of the first letter.” (Id.).
27. This second letter states that it “is based in part upon the troubling circumstances and activities that have recently come to light regarding the national Planned Parenthood organization, Planned Parenthood of the Heartland, and other affiliated Planned Parenthood entities, all of which are affiliated with [PPAEO],” and that “there is evidence that [PPAEO] and/or
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its affiliates are acting in an unethical manner and engaging in what appears to be wrongful conduct.” (Dkt. Nos. 12, ¶ 37; 16-1 at 21-26).
28. The letter states that PPAEO is “welcome to submit information or offer comments on the nationally recognized videos that have raised questions on the conduct of Planned Parenthood.” (Dkt. Nos. 12, ¶ 37; 16-1 at 21-26).
29. ADHS, through Mr. White, claims that it terminated PPAEO’s provider agreements “based on what is in the public domain” and “determined that termination is in the public interest.” (Dkt. No. 16-1, White Aff., ¶ 18).
30. Sources in the public domain report that completed governmental investigations in response to the videos in Georgia, South Dakota, Indiana, Pennsylvania, and Massachusetts have found that Planned Parenthood committed no wrongdoing with regard to the CMP videos (Dkt. No. 4, at 6 n. 7 (citing and collecting media sources)).
31. The second termination letter included instructions on how to appeal the termination (Dkt. No. 16-1, White Aff., ¶ 19).
32. PPAEO and the Jane Does sued ADHS’ director, Mr. Selig, in his official capacity, only seeking declaratory and injunctive relief (Dkt. No. 12, at 15). As a result, PPAEO and the Jane Does now sue Cindy Gillespie, Director, Arkansas Department of Human Services, in her official capacity.2
33. This Court entered a preliminary injunction that prevented ADHS from terminating PPAEO from the Medicaid program. That preliminary injunction has been vacated by the Eighth Circuit.
2 Pursuant to Federal Rule of Civil Procedure 25(d), Ms. Gillespie, as the successor in office to Mr. Selig, is automatically substituted as a party on these types of claims.
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34. On December 13, 2017, in response to inquiries by plaintiffs’ counsel to defendant’s counsel, defendant’s counsel explained that ADHS may not reimburse PPAEO for Medicaid claims made during the pendency of this case if PPAEO prevails on its constitutional claims (Dkt. No. 145-1, at 12-13).
35. On January 5, 2018, counsel for defendant informed plaintiffs’ counsel that “it would be improper to reimburse where the referring or proscribing physician has been terminated from the Medicaid program.” (Id., at 19).
36. Promptly after PPAEO was informed of ADHS’ position regarding reimbursement, PPAEO stopped providing services to patients insured through the Medicaid program on an unpaid basis (Dkt. No. 145-1, Samulcek Decl., ¶ 15).
37. PPAEO opted not to provide these services to patients, as PPAEO was aware that there was a risk that its patients would be unable to fill prescriptions or obtain needed follow-up care that would be covered by the Medicaid program (Id.).
38. Since January 2018, PPAEO has reached out to its patients insured through Medicaid who had appointments scheduled with PPAEO; PPAEO has informed these patients that PPAEO can no longer provide services to them and has referred these patients to other Medicaid providers (Id., ¶ 18).
39. The patients with whom PPAEO has spoken have been upset and dismayed, and many of them have expressed concerns about their ability to be seen elsewhere in a timely way (Id.).
40. Since January 2018, Holly Ajanel, the Center Manager of the Little Rock health center at PPAEO, made a series of phone calls to determine the best location to refer PPAEO’s
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patients who are insured through Medicaid (Dkt. No. 145-2, Declaration of Holly Ajanel, ¶¶ 1-2 (“Ajanel Decl.”)).
41. Since January 2018, Rosa Adams, the Front Office Assistant at PPAEO’s Fayetteville health center, made several phone calls to determine the best location to refer PPAEO’s Medicaid patients (Dkt. No. 145-3, Declaration of Rosa Adams, ¶¶ 1-2 (“Adams Decl.”)).
42. As a result of these phone calls, Ms. Ajanel and Ms. Adams aver that the choice of providers for PPAEO’s current Medicaid patients is limited because some providers are not accepting new Medicaid patients in certain categories; other providers require a referral before seeing a new Medicaid patient; even with a referral, a new Medicaid patient may have to wait weeks before being seen; and for certain family planning services, more than one appointment may be required for the Medicaid patient to receive the service or care he or she seeks (see generally Dkt. Nos. 145-2, Ajanel Decl.; 145-3, Adams Decl.).
III. Conclusions Of Law In the light of the change of circumstances since the original complaint and amended complaints were filed, the Court will consider plaintiffs’ motion for preliminary injunction on their constitutional claims (Dkt. No. 144). The Court is authorized to take into account “subsequent changes in the facts or the law” when determining whether to modify an injunction or decree. Movie Sys., Inc. v. MAD Minneapolis Audio Distr., a Div. of Smoliak & Sons, Inc., 717 F.2d 427, 430 (8th Cir. 1983); see McDonald v. Armontrout, 908 F.2d 388, 390 (8th Cir. 1990) (deferring to district court’s decision to modify a consent decree because facts had changed). For example, in 2018, ADHS announced that it may not reimburse PPAEO for Medicaid claims made during the pendency of this case, even if PPAEO prevails on its constitutional claims (Dkt. No. 145-1, at 12-
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13). While it is true that this case has been pending for over two years, the Court finds that this factual change, among others, warrants consideration of plaintiffs’ present motion.
Whether a preliminary injunction should issue involves consideration of: (1) the probability that the movant will succeed on the merits; (2) the threat of irreparable harm; (3) the balance between this harm and the injury that granting the injunction will inflict on other interested parties, and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). Dataphase unified two tests to determine a moving party’s substantial probability of success at trial by rejecting the notion the party seeking relief must show “a greater than fifty per cent likelihood that he will prevail on the merits,” and holding that “where the balance of other factors tips decidedly toward plaintiff a preliminary injunction may issue if movant has raised questions so serious and difficult as to call for more deliberate investigation.” Id. at 114. A moving party is required to show a substantial likelihood of success on the merits to meet the threshold. Kai v. Ross, 336 F.3d 650, 656 (8th Cir. 2003).
Defendant contends that the Court should apply the more rigorous standard required when a preliminary injunction is sought to enjoin the implementation of a duly enacted state statute or regulation developed through presumptively reasoned democratic processes. Planned Parenthood Minn., N.D., S.D v. Rounds, 530 F.3d 724, 732-33 (8th Cir. 2008). Under these circumstances, the district court is required to apply a “likely to prevail on the merits” or likelihood of success on the merits standard. Id. at 732. Otherwise, the district court should “apply the ‘fair chance of prevailing’ test where a preliminary injunction is sought to enjoin something other than government action based on presumptively reasoned democratic processes.” Id.
It is not all together clear to this Court whether the more rigorous standard from Rounds applies to the type of governmental action involved here. The parties, however, both apply the
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more deferential “likely to prevail on the merits” standard in their briefings (Dkt. Nos. 145, at 17 (“Plaintiffs are Likely to Succeed on the Merits of Their Claims”); 175 (applying “likely to prevail on the merits” standard); 178, at 2 (“PPAEO is likely to succeed on its unconstitutional conditions claim . . . .”)). Accordingly, the Court will also apply the more deferential “likely to prevail on the merits” standard to plaintiffs’ request for a preliminary injunction.
A. Likely To Prevail On The Merits The Court will first examine whether plaintiffs have established that they are likely to prevail on the merits of their unconstitutional conditions claim. The Court views plaintiffs as making two arguments in support of this claim—one based on the Fourteenth Amendment and the other based on the First Amendment. As discussed below, the Court concludes that plaintiffs have not met their burden of proof to show that they are likely to prevail on the merits of their unconstitutional conditions claim. The Court also concludes that plaintiffs have not met their burden of proof to show that they are likely to prevail on the merits of their Fourteenth Amendment equal protection claims.
1. Unconstitutional Conditions Claim Based Upon Fourteenth Amendment Right
Plaintiffs assert an unconstitutional conditions claim in their third amended complaint (Dkt. No. 135-1, ¶¶ 56-57).3 The Court will first analyze PPAEO’s claim that ADHS’ termination of PPAEO from the Arkansas Medicaid program was intended to penalize PPAEO for advocating for
3 Plaintiffs in their complaint appear to bring an unconstitutional conditions claim on behalf of all “plaintiffs,” meaning PPAEO and the Jane Doe plaintiffs (Dkt. No. 135-1, ¶¶ 56-57). However, as defendant points out, plaintiffs appear to contend that they have not asserted such a claim on behalf of the Jane Doe plaintiffs (Dkt. No. 164, at 9). For purposes of resolving the pending motion for preliminary injunction, the Court will confine its analysis as the parties did in their briefing to PPAEO’s unconstitutional conditions claim and PPAEO’s and the Jane Does’ equal protection claims.
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reproductive freedom and/or association with abortion (Dkt. Nos. 135-1, ¶ 57; 145, at 22, 26). For the reasons discussed below, the Court finds that plaintiffs have not established at this point in the litigation that they are likely to succeed on the merits of this argument so as to warrant the entry of a preliminary injunction.
It is settled law that the federal government and the governments of the States may prohibit the use of public funds to provide or support abortions. See, e.g., Harris v. McRae, 448 U.S. 297, 314-17 (1980); Maher v. Roe, 432 U.S. 464, 473-74 (1977). On the other hand, the Supreme Court has made clear “even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely.” Perry v. Sindermann, 408 U.S. 593, 597 (1972). Specifically, the government may not deny governmental benefits in such a way that the denial infringes upon an individual’s constitutionally protected interests. Id.; see, e.g., Rumsfeld v. Forum for Academic and Inst. Rights, Inc., 547 U.S. 47, 59-60 (2006); Regan v. Taxation With Representation of Wash., 461 U.S. 540, 545 (1983); Mem’l Hosp. v. Maricopa Cty., 415 U.S. 250 (1974). “[These] cases reflect an overarching principle, known as the unconstitutional conditions doctrine, that vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up.” Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604 (2013).
Generally, “[t]he Supreme Court has applied this doctrine in two distinct contexts.” Planned Parenthood Assoc. of Utah v. Herbert, 828 F.3d 1245, 1258 (10th Cir. 2016) (internal quotations omitted). The doctrine has been applied “when the condition acts prospectively in statutes or regulations that limit a government-provided benefit—typically a subsidy or tax break—to those who refrain from or engage in certain expression or association.” Id. (internal
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quotations omitted) (emphasis added). “[T]he unconstitutional-conditions doctrine [also] has been applied when the condition acts retrospectively in a discretionary executive action that terminates a government-provided benefit—typically public employment, a government contract, or eligibility for either—in retaliation for prior protected speech or association.” Id. (internal quotations omitted) (emphasis added in part); see Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 671 (1996) (examining the doctrine where an independent contractor was terminated by a governmental body in response to his outspoken criticism); Perry, 408 U.S. at 597 (examining the doctrine where the board of regents failed to renew a professor’s contract with state university in retaliation for his criticism).
For example, in Rust v. Sullivan, the Supreme Court upheld a restriction on the use of Title X funds for abortion because that restriction governed only “the scope of the Title X project’s activities,” but did not restrict an abortion provider’s ability “to pursue abortion-related activities when they are not acting under the auspices of the Title X project.” 500 U.S. 173, 196, 198 (1991). In Agency for International Development v. Alliance for Open Society International (“AOSI”), however, the Supreme Court struck down a federal grant program that conditioned receipt of grant money on an organization’s pledge to oppose prostitution and sex trafficking. 570 U.S. 205, 221 (2013). The Supreme Court held that, because “[t]he Policy Requirement compels as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program, . . . it violates the First Amendment and cannot be sustained.” Id. There is a distinction “between conditions that define the limits of government spending programs—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate [activity] outside the contours of the program itself.” Id. at 21415.
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The Eighth Circuit examined the unconstitutional conditions doctrine in relation to a Missouri funding statute and what plaintiffs alleged was an attempt to prohibit abortion service providers from receiving certain government funds. Planned Parenthood of Mid-Mo. and E. Kan., Inc. v. Dempsey, 167 F.3d 458 (8th Cir. 1999). Other federal courts also have examined governmentally-imposed conditions to determine whether those conditions impermissibly attempted to leverage funding to regulate speech and association related to abortion outside the contours of a governmental program. See, e.g., Planned Parenthood of Sw. and Cent. Fla. v. Philip, 194 F. Supp. 3d 1213 (N.D. Fla. 2016); Planned Parenthood of Cent. N.C. v. Cansler, 877 F. Supp. 2d 310 (M.D. N.C. 2012).
Not all litigants, and not all courts, agree on how these claims should be examined in the abortion context. Some advocate that the unconstitutional conditions doctrine does not apply in the abortion context. Instead, they advocate that, in the abortion context, the only constitutional limit is the Casey requirement that the state not impose an undue burden on women’s right to abortion. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). This dispute was most recently addressed in a now vacated Sixth Circuit Court of Appeals’ panel decision in Planned Parenthood of Greater Ohio v. Hodges, 201 F. Supp. 3d 898 (S.D. Ohio 2016), aff’d 888 F.3d 224 (6th Cir. 2018), granting reh’g en banc, vacating opinion 892 F.3d 1283 (6th Cir. 2018). In Hodges, a federal district court struck down Ohio Revised Code § 3701.034, which required the Ohio Department of Health to ensure that federal funds were not distributed to any entity that performs, promotes, or contracts with entities that perform or promote nontherapeutic abortions, on the grounds that Section 3701.034 violates the First Amendment. 201 F. Supp. 3d at 900-01, 908. The district court found that Section 3701.034, which impacted programs that subsidized STD screenings, cancer screenings, HIV testing and education, measures to reduce infant
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mortality, education for teens regarding abstinence and contraception, and the prevention of sexual violence, unconstitutionally conditioned the funding of such programs—none of which had any relation to abortion—upon a recipient’s exercise of the right to free speech or association outside of those programs. Id. at 906 (citing Dempsey, 167 F.3d at 462 (“Legislation that simply dictates the proper scope of government-funded programs is constitutional, while legislation that restricts protected grantee activities outside government programs is unconstitutional . . . .”)).
Here, to the extent PPAEO argues a Fourteenth Amendment right, the constitutional right at issue—a woman’s right to a previability abortion—belongs to the Patient Class. See Casey, 505 U.S. at 884-85 (majority opinion); Dempsey, 167 F.3d at 464. The Court acknowledges precedent from the Eighth Circuit which addressed this type of unconstitutional conditions claim when upholding a state statute as construed to not impose an unconstitutional condition on women seeking abortion, Dempsey, 167 F.3d at 464-65, and the Seventh Circuit which addressed this type of unconstitutional conditions claim when upholding an Indiana law which prohibited abortion providers from receiving any state contracts and grants, including those involving stateadministered federal funds, Planned Parenthood of Indiana v. Commissioner of Indiana State Dep’t of Health, 699 F.3d 962, 987-88 (7th Cir. 2012). Both the Eighth and Seventh Circuits determined that the “undue burden” test from Casey applied to unconstitutional conditions claims premised upon the right to a previability abortion and further determined that, because the respective state legislation at issue did not unduly burden a woman’s ability to choose to have a previability abortion, that legislation did not impose an unconstitutional condition. Dempsey, 167 F.3d at 464-65; Planned Parenthood of Ind., 699 F.3d at 988.
Based on the record evidence before the Court at this stage of the litigation, the Court concludes that, assuming without deciding that the Casey undue burden test applies to this type of
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claim, plaintiffs have not established a likelihood of succeeding on the merits of their argument that ADHS withdrew funding in retaliation for PPAEO’s advocacy for reproductive freedom and/or association with abortion.
Assuming without deciding that the Casey undue burden test does not apply to plaintiffs’ argument that ADHS has unconstitutionally conditioned funding upon PPAEO’s advocating for reproductive freedom and/or association with abortion, it is not clear what alternate test applies under the circumstances. In Planned Parenthood Association of Utah v. Herbert, the Tenth Circuit Court of Appeals appeared to examine an unconstitutional conditions argument premised on a Fourteenth Amendment right, but the court did not apply Casey to that argument nor did the court articulate a specific test applied to that argument different from the Umbehr test the court applied to the First Amendment right examined in that case. 828 F.3d at 1259-63 (examining the Fourteenth Amendment argument). Plaintiffs argue that the facts and legal arguments presented in the Tenth Circuit’s decision in Herbert are substantively identical to the case at bar.4 Other courts examining arguments premised on a Fourteenth Amendment right also have forgone the application of Casey and applied what appears to be a more straightforward unconstitutional conditions analysis, but those courts admittedly have examined facts more straightforward than those presented here. See, e.g., Planned Parenthood of Sw. & Cent. Fla., 194 F. Supp. 3d at 121620; Planned Parenthood of Cent. N.C., 877 F. Supp. 2d at 314-15, 318-21.
Considering all controlling and persuasive precedents and the record facts before the Court, the Court finds that plaintiffs have not met their burden of proving that they are likely to succeed
4 The Court examines this test, and the Tenth Circuit’s application of it, in more detail in section III.A.2. of this Order.
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on their unconstitutional conditions claim based on an asserted Fourteenth Amendment right so as to warrant the entry of a preliminary injunction.
2. Unconstitutional Conditions Claim Based Upon First Amendment Right
The Court will also analyze PPAEO’s claim that ADHS’ actions penalize PPAEO for its constitutionally protected association with its Planned Parenthood affiliates (Dkt. No. 135-1, ¶ 57). PPAEO has long affiliated with Planned Parenthood Federation of America (“PPFA”) and other Planned Parenthood organizations across the country out of a shared mission to advance reproductive health and freedom (Dkt. No. 145, at 22). PPAEO alleges that the First Amendment, which encompasses the right “to engage in association for the advancement of beliefs and ideas,” protects this affiliation (Id., at 23). Additionally, PPAEO argues its advocacy for reproductive freedom is similarly protected by the First Amendment (Id.).
Plaintiffs argue that the facts and legal arguments presented in the Tenth Circuit’s decision in Herbert are substantively identical to the case at bar. Following a release of the same videos at issue in this matter, Utah Governor Gary Herbert issued a “Directive” terminating the contractual relationships of Planned Parenthood Association of Utah (“PPAU”) with the Utah Department of Health. Herbert, 828 F.3d at 1259. In analyzing PPAU’s unconstitutional conditions claim based on its First Amendment right, the Tenth Circuit noted that “[plaintiff]’s unconstitutional conditions claims appear to us to fit comfortably within the context exemplified by Umbehr,” and then it applied the test from Umbehr. Id. In Umbehr, the Supreme Court concluded that “the First Amendment protects independent contractors from the termination of at-will government contracts in retaliation for their exercise of the freedom of speech.” 518 U.S. at 670.
Applying this test in Herbert, the Tenth Circuit first examined Governor Herbert’s Directive. The Directive referred to PPAU as Planned Parenthood and stated that “‘[t]he
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allegations against Planned Parenthood are deeply troubling,’ . . . that ‘[t]he federal government has provided grants to Planned Parenthood, distributed through the Utah Department of Health,’ and ultimately state[d] that [Governor] Herbert ‘instructed state agencies to cease acting as an intermediary for pass-through federal funds to Planned Parenthood.’” 828 F.3d at 1261. In his post-Directive statement, Governor Herbert further stated “‘it happened in their organization’ and ‘for coloring outside the lines, Planned Parenthood forfeits some of their benefits.’” Id.
The Tenth Circuit specifically noted that, “[i]f [this] were all the evidence we had before us, we would thus be left to conclude that the most reasonable finding a court or jury could make is that the Directive was issued based upon a mistake of fact made by [Governor] Herbert.” Id. However, the Tenth Circuit determined that PPAU presented additional evidence which, when coupled with the evidence that Governor Herbert failed to distinguish between PPAU and Planned Parenthood (or affiliates in other states), led the Tenth Circuit to conclude plaintiffs were likely to prevail on their unconstitutional conditions claim.
Specifically, the Tenth Circuit relied on record evidence in which Governor Herbert: (1) acknowledged the events depicted in the CMP videos did not happen in Utah; (2) admitted the CMP videos involved affiliates of Planned Parenthood, not PPAU; (3) admitted there was no evidence, or even accusation, that PPAU engaged in misconduct because PPAU does not participate in any program that provides fetal tissue for scientific research; (4) admitted that none of the federal funds that flow through the state to PPAU are “used to provide abortions;” (5) admitted that the accusations made by CMP in the videos regarding Planned Parenthood and its other affiliates had not been proven and were indeed false; (6) agreed the national “political climate . . . [wa]s very hostile to Planned Parenthood;” (7) steadfastly refused to retract the Directive; and (8) participated in a pro-life event held at the Utah State Capitol five days after he issued his
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directive where the purpose of the event was “to ask lawmakers to defund [PPAU]” and where he made statements to the crowd regarding abortion. 828 F.3d at 1261-62. Governor Herbert stated at that pro-life event: “I’m here today to add my voice to yours and speak out on the sanctity of life,” and “[t]he thing I find most appalling is the casualness, the callousness . . . the lack of respect, the lack of sensitivity to the unborn.” Id. at 1262. The Tenth Circuit found that a reasonable finder of fact on that record evidence was more likely than not to determine that Governor Herbert issued the Directive to punish PPAU for exercising its First and Fourteenth Amendment rights, thereby reversing the decision reached by the district court. Id. at 1261-62.
Assuming without deciding that PPAEO has asserted a valid First Amendment right, the question now is whether PPAEO has succeeded in establishing that it is likely to prevail on the issue of whether its Medicaid contracts were terminated for exercising that right. Based on the record evidence before the Court at this stage of the litigation, the Court concludes that, assuming without deciding that the Casey undue burden test applies to this type of claim, plaintiffs have not established a likelihood of succeeding on the merits of their argument that ADHS’ termination of PPAEO’s Medicaid contracts in retaliation for PPAEO’s exercising its First Amendment right creates an undue burden.
Even if the Court applies the test from Umbehr to analyze PPAEO’s unconstitutional conditions claim based on its First Amendment right, the Court reaches the same conclusion. Under Umbehr, to prevail on this claim, PPAEO “must prove that the conduct at issue was constitutionally protected, and that it was a substantial or motivating factor in the termination.” Umbehr, 518 U.S. at 675. The focus necessarily is on alleged retaliation against the protected conduct; alleged retaliation against non-protected conduct falls outside the unconstitutional conditions doctrine. Even if PPAEO meets that burden, defendant “can escape liability by showing
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that [she] would have taken the same action even in the absence of the protected conduct.” Id.; see Lyons v. Vaught, 875 F.3d 1168, 1172 (8th Cir. 2017) (applying test in public employment context). Further, defendant can “also prevail if [she] can persuade [the fact finder] that [her] legitimate interest as contractor, deferentially viewed, outweigh[s] the free speech interests at stake.” Umbehr, 518 U.S. at 685.
Here, the Court determines the record evidence at this stage of the litigation falls short of that recited and relied upon by the Tenth Circuit in Herbert. For this reason, the Court determines that, even if Umbehr applies, plaintiffs have not met their burden to demonstrate that they are likely to succeed in showing that PPAEO’s termination was in retaliation for its exercising its First Amendment right. Such evidence might or might not be developed in this litigation as discovery proceeds, but it is not a part of the undisputed record presented to this Court at this stage of the litigation.
While reaching this decision, the Court acknowledges the following record evidence. ADHS acknowledged the video evidence used to justify PPAEO’s termination was not viewed until after Governor Hutchison’s press release and the issuance of the first termination letter (Dkt. No. 16-1, White Aff., ¶ 9). Mr. White’s affidavit, which recites the offending portions of the CMP videos, does not indicate that any of the Planned Parenthood staff members who were videotaped were affiliated with PPGP or PPAEO (Id., ¶ 10). Indeed, Governor Hutchinson’s press release referenced “the recent revelations on the actions of Planned Parenthood” as the basis for PPAEO’s termination. See Press Release, Ark. Governor Asa Hutchinson (emphasis added).
Further, even if ADHS’ termination of PPAEO was initially a mistake, on September 15, 2015, PPAEO informed ADHS via letter that it provides only early medication abortions, the fetal products of which are passed away from PPAEO’s health centers (Dkt. No. 13-2, at 2). In the
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same letter, PPAEO informed ADHS that neither it nor its parent organization have participated in fetal tissue donation or received reimbursement for fetal tissue (Id., at 3). ADHS has offered no other rationale for terminating PPAEO as a Medicaid provider. ADHS’ continued refusal to reinstate PPAEO as a Medicaid provider following this clarification—if indeed such clarification was even necessary—troubles the Court.
The record evidence indicates that ADHS has been aware for nearly three years that PPAEO was not, and could not have been, involved in any way with the practices described in the CMP videos. Accordingly, the Court does not discount that ADHS’ continued refusal to reinstate PPAEO as a Medicaid provider, along with other record evidence, may tend to support the inference that ADHS has used the CMP videos as a pretext to punish PPAEO for its role as a medication abortion provider and/or for its speech and association with abortion. While this inference gives this Court pause, under the circumstances, the Court finds that plaintiffs have not met their burden of showing that they are likely to prevail on the merits of their unconstitutional conditions claim at this stage of the litigation so as to warrant the entry of a preliminary injunction.
To the extent that ADHS maintains PPAEO should have sought a state administrative remedy before filing this lawsuit, so PPAEO could provide evidence that it was not involved in the widespread misconduct demonstrated by the CMP videos, the Court rejects the argument (Dkt. No. 175, at 20-21). Generally, a plaintiff does not need to exhaust administrative remedies before seeking federal court relief pursuant to 42 U.S.C. § 1983. Planned Parenthood of Greater Iowa, Inc. v. Atchison, 126 F.3d 1042, 1047 (8th Cir. 1997) (citing Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 516 (1982)). This Court does not understand plaintiffs to be alleging a procedural due process violation. Cf. Hopkins v. City of Bloomington, 774 F.3d 490 (8th Cir. 2014) (examining the exhaustion requirement when a litigant asserts the deprivation of procedural due
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process under § 1983). Further, based on the record evidence and the briefings, the Court understands defendant has taken the position that there are no available state administrative remedies to address defendant’s recent representations regarding reimbursement, as defendant maintains that any administrative appeal by PPAEO is now barred (Dkt. Nos. 145-1, at 12-13; 175, at 26 (arguing that PPAEO’s termination is “final and binding” because PPAEO “chose not to appeal it.”)).5 See Planned Parenthood of Greater Iowa, Inc., 126 F.3d at 1046-48 (examining abstention and exhaustion as applied to a § 1983 action filed in federal court). Moreover, requiring all plaintiffs to go through an administrative appeals process when they allege constitutional violations under § 1983 against a state entity undermines the congressional intent to establish federal-court review under § 1983. Patsy, 457 U.S. at 503-505. Accordingly, the Court finds that plaintiffs’ claims are not barred by an exhaustion requirement.
Considering all of this evidence together, when compared to controlling and persuasive precedents, the Court concludes plaintiffs have failed to demonstrate, on the record currently before the Court, that they are likely to succeed on their unconstitutional conditions claim.
3. Equal Protection Claims Plaintiffs assert a Fourteenth Amendment equal protection claim in their third amended complaint (Dkt. No. 135-1, ¶¶ 58-59). Plaintiffs allege ADHS’ termination of PPAEO as a Medicaid provider unconstitutionally singles plaintiffs out for unfavorable treatment without adequate justification (Id., ¶ 59). Plaintiffs claim that ADHS’ termination of PPAEO “at the direction of an anti-abortion Governor, based on the misleadingly-edited videos claiming bad
5 The Court notes that PPAEO has filed a state court action challenging ADHS’ termination of its status as a Medicaid provider. See Planned Parenthood of Arkansas & Eastern Oklahoma, Inc. d/b/a Planned Parenthood Great Plains v. Cindy Gillespie, Case No. 72CV-18591 (Wash. Cty. Cir. Ct. March 2, 2018). No party briefed the issue of abstention.
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conduct by other entities in other states” without clarification or confirmation that PPAEO participated in fetal tissue donation stands in “stark contrast to [ADHS]’s treatment of all other, non-Planned Parenthood Medicaid providers.” (Dkt. No. 178, at 9). Plaintiffs assert that they are likely to succeed on the equal protection claim as a “class of one.” (Dkt. No. 178, at 9).
To move forward as a “class of one,” plaintiffs must allege and prove that they “ha[ve] been intentionally treated differently from other[] similarly situated,” non-Planned Parenthood Medicaid providers and “that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The Eighth Circuit limits “class-of-one” actions from applying to “forms of state action . . . which by their nature involve discretionary decisionmaking.” Robbins v. Becker, 794 F.3d 988, 995 (8th Cir. 2015) (quoting Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 602-4 (2008)).
At issue in Engquist was “whether a public employee [could] state a claim under the Equal Protection Clause by alleging that she was arbitrarily treated differently from other similarly situated employees, with no assertion that the different treatment was based on the employee’s membership in any particular class.” Engquist, 533 U.S. at 594. The Supreme Court held “[the] traditional view of the core concern of the Equal Protection Clause as a shield against arbitrary classifications, combined with the unique considerations applicable when the government acts as employer as opposed to sovereign, lead us to conclude that the class-of-one theory of equal protection does not apply in the public employment context.” Id. at 598. The key distinction for the Court came in differentiating between the government “exercising ‘the power to regulate or license, as lawmaker,’ and the government acting ‘as proprietor, to manage [its] internal operation.’” Id. (quoting Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895 (1961)).
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ADHS argues that class-of-one claims do not extend to cases where “a state official exercises his discretionary authority based on subjective, individualized determinations.” (Dkt. No. 175, at 8-10 (citing and quoting Higgins Elec., Inc. v. O’Fallon Fire Prot. Dist., 813 F.3d 1124, 1129 (8th Cir. 2016) (internal quotation and citation omitted)). In Higgins, where an electrical vendor claimed it was singled out for differential treatment in bidding for a construction project, the Eighth Circuit dismissed the vendor’s class-of-one claim reasoning that governments have the right to choose “winners and losers” in a bidding process and determining that the vendor did not allege that a similarly situated individual was treated more favorably by the government. 813 F.3d at 1129-30. ADHS argues that, because federal and state Medicaid regulations permit it to establish reasonable standards relating to the qualifications of providers and exclude providers for such reasons, ADHS’ termination of PPAEO falls squarely into the type of discretionary decision-making discussed in Engquist (Dkt. No. 175, at 10-11).
Plaintiffs assert that the discretion afforded to ADHS in the Medicaid context is not sufficient to bar a class-of-one claim (Dkt. No. 178, at 12). Plaintiffs point out that the federal Medicaid Act’s freedom of choice provision limits ADHS’ authority to exclude providers from the Arkansas Medicaid program (Id.). Plaintiffs also point to this Court’s prior preliminary injunction Order, wherein this Court found that the Jane Doe plaintiffs were likely to prevail on their claim that ADHS violated the freedom of choice provision by terminating PPAEO (Dkt. No. 45, at 22-23). In that prior Order, this Court noted that a State, when devising a Medicaid plan, is empowered to establish a “reasonable standard relating to the qualifications of providers . . . .” 42 C.F.R. § 431.51(c)(2). Further, this Court noted that federal law allows a State to “exclude an individual or entity . . . for any reason for which the Secretary could exclude the individual or entity from participation [in a Medicaid plan].” 42 U.S.C. § 1396a(p)(1). This Court also
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considered precedent from the Seventh and Ninth Circuit Courts of Appeal where those courts found that, under the federal Medicaid Act, States do not have “unlimited authority to exclude providers for any reason whatsoever.” Planned Parenthood of Ind., 699 F.3d at 979; see Planned Parenthood Ariz., Inc. v. Betlach, 727 F.3d 960 (9th Cir. 2013).
The Court is cognizant that neither party has cited precedent for the authority that a provider terminated, perhaps wrongfully, from a state Medicaid program may bring a class-of-one equal protection claim. Further, this Court notes, as it has previously, that it is an open question whether ADHS is entitled to deference in its determination that a provider is “qualified” as that term is used in the Medicaid Act (Dkt. No. 45, at 26-27). Finally, as the Eighth Circuit noted in Does v. Gillespie, terminated providers have the option to pursue administrative appeals if they disagree with their termination. 867 F.3d at 1046.
This Court concludes that it need not resolve these issues at this stage of the litigation to resolve the pending motion. Instead, based upon the record evidence before it at this time, the Court concludes that, even if it can maintain such a claim under the circumstances presented here, PPAEO has failed to establish that it is likely to succeed on the merits of its equal protection claim. There is no record evidence indicating how the State of Arkansas determines whether providers are “qualified.” It may be that the State of Arkansas has little to no discretion to determine whether providers are qualified or whether to terminate them. While the record evidence does indicate the number of times ADHS has terminated providers (Dkt. No. 145-7), the record is bereft of any evidence indicating the level of discretion afforded to ADHS to terminate or accept providers. Given the lack of evidence indicating the level of discretion ADHS uses to terminate or accept providers, the Court finds that plaintiffs have failed to satisfy their burden of establishing a likelihood of success on PPAEO’s equal protection claim.
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Case 4:15-cv-00566-KGB Document 181 Filed 07/30/18 Page 30 of 32
In addition, on the record before it, at this stage of the litigation, the Court determines that plaintiffs have failed to establish a likelihood of success on the question of whether PPAEO was “arbitrarily treated differently from other similarly situated” Medicaid providers. Engquist, 553 U.S. at 594. “To be similarly situated for purposes of a class-of-one equal protection claim, the persons alleged to have been treated more favorably must be identical or directly comparable to the plaintiff in all material respects.” Robbins, 794 F.3d at 996 (internal quotations omitted). The record contains some evidence that, of the hundreds of providers that have been terminated from Arkansas’ Medicaid program, two of those were terminated for “fraud and abuse” and five were terminated for delinquent tax payments (Dkt. No. 145-7). In their latest reply, plaintiffs also cite this Court to internet articles indicating that several other providers who participate in Arkansas’ Medicaid program have been investigated in other states yet have not been terminated by ADHS (Dkt. No. 178, at 17-20). Those articles provide few details. Further, the record evidence before the Court does not include any information about ADHS’ interaction with or investigation of those providers identified in plaintiffs’ reply. Accordingly, this Court is unwilling at this stage of the litigation and on the record before it to compare ADHS’ treatment of PPAEO with other putatively similarly-situated providers. Therefore, for these reasons, the Court finds that plaintiffs have failed to establish that they are likely to prevail on the merits of PPAEO’s class-of-one equal protection claim at this time.
Finally, the Court also finds that the Patient Class has failed to establish that it is likely to succeed on the merits of its equal protection claim. Assuming without deciding that the Patient Class has standing to bring an equal protection claim due to PPAEO’s termination as a Medicaid provider, the record evidence at this time is insufficient for this Court to conclude that plaintiffs are likely to prevail on their claim that the Patient Class is treated differently than any other class
30

Case 4:15-cv-00566-KGB Document 181 Filed 07/30/18 Page 31 of 32
of individuals. Plaintiffs’ citation to June Medical Services LLC v. Gee does not convince this Court otherwise: that decision was based upon a motion to dismiss, not a motion for preliminary injunction. 280 F. Supp. 3d 849, 859, 867, 870 (M.D. La. 2017). Plaintiffs other citations are to American Society of Cataract and Refractive Surgery v. Bowen, 725 F. Supp. 606, 612-14 (D.D.C. 1989), where the district court ultimately decided that the challenged law did not violate the plaintiffs’ equal protection rights, and to Hill v. Evans, No. CIV. A. 91-A-626-N, 1993 WL 595676, at *16 (M.D. Ala. Oct. 7, 1993), where a district court found that a statute allowing doctors to test certain patients for Human Immunodeficiency Virus without their consent violated the equal protection rights of those patients. The decision in Hill, however, was clearly predicated on the existence of a class of individuals who were treated differently from other classes of individuals. At this point, based on the limited record evidence before the Court, the Court concludes that plaintiffs have failed to establish at this time that they are likely to prevail on the Patient Class’ equal protection claim.
B. Remaining Dataphase Factors Because the Court concludes at this stage of the litigation and on the record evidence before it that plaintiffs have failed to meet their burden to demonstrate that they are likely to prevail on the merits of their constitutional claims, the Court need not consider the remaining Dataphase factors. The Eighth Circuit has observed that a determination regarding the merits is a threshold matter, which “simply reflects that the court’s consideration of the remaining Dataphase factors cannot tip the balance of harms in the movant’s favor when the requirement is not satisfied.” Rounds, 530 F.3d at 737 n. 11.
31

Case 4:15-cv-00566-KGB Document 181 Filed 07/30/18 Page 32 of 32 IV. Conclusion For the foregoing reasons, the Court determines that the plaintiffs have not met their burden for the issuance of a preliminary injunction. Therefore, the Court denies plaintiffs’ motion for preliminary injunction (Dkt. No. 144). SO ORDERED this 30th day of July, 2018.
_______________________________ Kristine G. Baker United States District Judge
32

 
 Case 4:15-cv-00566-KGB Document 192 Filed 03/24/19 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

PLANNED PARENTHOOD OF ARKANSAS & EASTERN OKLAHOMA INC., and JANE DOES, 1-3, on their behalf and all others similarly situated

PLAINTIFFS

v.

Case No. 4:15-cv-00566-KGB

CINDY GILLESPIE, Director, Arkansas Department of Human Services, in her Official Capacity

DEFENDANT

ORDER

Before the Court is a motion to stay proceedings filed by plaintiffs Planned Parenthood

Arkansas & Eastern Oklahoma d/b/a Planned Parenthood Great Plains (“PPAEO”), Jane Doe #1,

Jane Doe #2, and Jane Doe #3, on their behalf and all others similarly situated (Dkt. No. 185).

Defendant Cindy Gillespie, Director of Arkansas Department of Human Services (“ADHS”),

responded in opposition (Dkt. No. 188), and plaintiffs replied (Dkt. No. 189). Also before the

Court is Ms. Gillespie’s motion for judgment on the pleadings as to plaintiffs’ Medicaid Act claim

(Dkt. No. 168). Plaintiffs responded in opposition (Dkt. No. 171), and Ms. Gillespie replied (Dkt.

No. 174). For the reasons discussed below, the Court denies plaintiffs’ motion to stay proceedings

and declines, at this time, to rule on defendants’ motion for judgment on the pleadings as to

plaintiffs’ Medicaid Act claim (Dkt. Nos. 168, 185).

I. Background

A detailed history of the procedural background in this matter may be found in this Court’s

prior Order denying plaintiffs’ latest motion for a preliminary injunction (Dkt. No. 181, at 1-5).

Without repeating that history in full, the Court provides a brief overview to provide context for

Case 4:15-cv-00566-KGB Document 192 Filed 03/24/19 Page 2 of 7
this Order. On September 11, 2015, plaintiffs filed a complaint alleging that defendant John Selig1 violated the Medicaid Act, 42 U.S.C. § 1396a(a)(23), by denying PPAEO’s Medicaid patients the opportunity to obtain family planning and other preventative health care services from a qualified provider of their choosing (Dkt. No. 1). Plaintiffs also alleged that Mr. Selig violated the First and Fourteenth Amendments by penalizing plaintiffs for associating with Planned Parenthood and abortion and that Mr. Selig had singled out plaintiffs for unfavorable treatment in violation of the Equal Protection Clause of the Fourteenth Amendment (Id., ¶¶ 49, 51). The Court granted plaintiffs a temporary restraining order on September 18, 2015 (Dkt. No. 21). Then, on October 2, 2015, the Court granted a preliminary injunction in favor of just the Jane Doe plaintiffs (Dkt. No. 44, 45).
On January 25, 2016, the Court certified a class of patients (the “Patient Class”), which consists of those patients who seek to obtain, or desire to obtain, health care services in Arkansas at PPAEO through the Medicaid program (Dkt. No. 86). The plaintiffs then moved for a new preliminary injunction; the plaintiffs sought to have this new preliminary injunction extend to the newly-certified class (Dkt. No. 98). On September 29, 2016, the Court entered a preliminary injunction on behalf of the Patient Class enjoining the ADHS from suspending Medicaid payments to PPAEO for services rendered to Medicaid beneficiaries who are members of the Patient Class (Dkt. No. 127). This preliminary injunction was based upon plaintiffs’ Medicaid Act claim. On November 30, 2016, with the Court’s permission, plaintiffs filed their third amended complaint, alleging that ADHS’ actions violate 42 U.S.C. § 1396a(a)(23), penalize plaintiffs for their constitutionally protected right to associate with Planned Parenthood and/or abortion, and unfairly
1 Ms. Gillespie was automatically substituted as defendant when she became director of the ADHS. See Fed. R. Civ. P. 25 (“The officer’s successor is automatically substituted as a party.”).
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target plaintiffs for unfavorable treatment without adequate justification in violation of the Equal Protection Clause of the Fourteenth Amendment (Dkt. No. 135-1, ¶¶ 54-59).
On August 16, 2017, the Eighth Circuit Court of Appeals issued an opinion vacating the Court’s second preliminary injunction order on the grounds that 42 U.S.C. § 1396a(a)(23)(A) does not create an enforceable federal right for individual patients. Does v. Gillespie, 867 F.3d 1034, 1046 (8th Cir. 2017). The Eighth Circuit’s mandate was entered on November 20, 2017, at which point this Court regained jurisdiction of the case. On January 19, 2018, PPAEO and the Jane Does filed a motion for preliminary injunction on their constitutional claims (Dkt. No. 144). While the Court was considering the motion for preliminary injunction, Ms. Gillespie filed her motion for judgment on the pleadings as to plaintiffs’ Medicaid Act claim (Dkt. No. 168). The Court denied the motion for a preliminary injunction based upon plaintiffs’ constitutional claims on July 30, 2018 (Dkt. No. 181).
While this litigation was ongoing, other Circuit Courts of Appeals held that 42 U.S.C. § 1396a(a)(23)(A) creates an enforceable federal right for individual patients. See Planned Parenthood of Kan., Inc. v. Andersen, 882 F.3d 1205 (10th Cir. 2018) (holding that § 1396a(a)(23) creates a private right of action in individual patients); Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445 (5th Cir. 2017) (same); see also Planned Parenthood Ariz., Inc. v. Betlach, 727 F.3d 960, 968 (9th Cir. 2013) (same); Planned Parenthood of Ind., Inc. v. Comm’r of the Ind. State Dep’t of Health, 699 F.3d 962, 967 (7th Cir. 2012) (same); Harris v. Olszewski, 442 F.3d 456 (6th Cir. 2006) (same). To resolve the circuit split created by the Eighth Circuit’s decision in Does, two petitions for writs of certiorari were filed with the Supreme Court, and plaintiffs filed their present motion to stay proceedings pending the final disposition of the petitions for writs of certiorari (Dkt. No. 185). Before the Court could rule on the motion to stay proceedings or the
3

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motion for judgment on the pleadings, the Supreme Court denied the petitions for writs of certiorari on December 10, 2018. See Andersen v. Planned Parenthood of Kan. and Mid-Missouri, No. 17-1340, 2018 WL 1456394 (2018); Gee v. Planned Parenthood of Gulf Coast, Inc., 139 S. Ct. 408 (2018).
II. Motion To Stay Proceedings In their motion to stay proceedings, plaintiffs argue that issues of judicial economy weigh in favor of staying the present proceedings while the Supreme Court considers the pending petitions for writs of certiorari (Dkt. No. 185). Plaintiffs specifically argue that, “if the Supreme Court grants certiorari in the Gee or Andersen cases” and finds that there is an individual right of action under § 1396a(a)(23), then it may be unnecessary for this Court to reach plaintiffs’ constitutional claims (Id., at 4). In response, Ms. Gillespie points out that the earliest deadline agreed to by the parties in the Rule 26(f) report is the August 12, 2019, deadline for joining parties and amending the pleadings and argues that any decision by the Supreme Court will be rendered before that date (Dkt. No. 188, at 4). Ms. Gillespie also points out that the Rule 26(f) report sets the deadline for completing discovery on November 20, 2019 (Id., at 4-5). Thus, according to Ms. Gillespie, the primary result of a stay pending the Supreme Court’s consideration of the certiorari petitions would be to delay discovery in this matter (Id., at 5). While the Court has broad discretion to stay discovery under Federal Rule of Civil Procedure 26(c), see Steinbuch v. Cutler, 518 F.3d 580, 588 (8th Cir. 2008), the Court concludes that a stay is not appropriate at this time. The Court first notes that plaintiffs’ arguments for a stay are predicated upon the Supreme Court granting the petitions for writs of certiorari in the Gee and Andersen cases; those arguments have been mooted by the Supreme Court’s denial of certiorari in those cases. See Andersen, 2018 WL 1456394; Gee, 139 S. Ct. 408. Thus, if the Court were to
4

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grant a stay at this time, the primary effect of the stay would be to delay discovery on plaintiffs’ remaining constitutional claims. Courts have used various standards in determining whether to stay discovery, including: (1) whether there is a strong showing that a claim is unmeritorious; (2) the breadth of discovery and burden of responding to it; and (3) the risk of unfair prejudice to the party opposing the stay. Chesney v. Valley Stream Union Free Sch. Dist., 236 F.R.D. 113, 116 (E.D.N.Y. 2006). Courts may also consider the complexity of the action and the stage of litigation. Chesney, 236 F.R.D. at 116; see TE Connectivity Networks, Inc. v. All Sys. Broadband, Inc., Case No. CIV. 13-1356 ADM/FLN, 2013 WL 4487505, at *2 (D. Minn. Aug. 20, 2013) (“Among other things, district courts have taken a ‘peek’ at the merits of the pending dispositive motion, considered the breadth of pending discovery, and balanced the harm produced by delaying discovery against the possibility that the entire matter will be resolved by the motion.”); Benge v. Eli Lilly & Co., 553 F. Supp. 2d 1049, 1050 (N.D. Ind. 2008) (identifying three factors a court may use in determining whether a stay is appropriate: “(1) potential prejudice to the non-moving party; (2) hardship and inequity to the moving party if the matter is not stayed; and (3) economy of judicial resources.”).
Considering the factors other courts have identified in determining the propriety of a stay of discovery, the Court finds that, at this time, a stay in this action is not warranted.
III. Motion For Judgment On The Pleadings In her motion for judgment on the pleadings as to plaintiffs’ Medicaid Act claim, Ms. Gillespie argues that, given the Eighth Circuit’s decision in Does v. Gillespie, plaintiffs no longer have standing to bring their claim under the Medicaid Act, and therefore it should be dismissed (Dkt. No. 169, at 2). Plaintiffs make three arguments in response: (1) the Eighth Circuit’s decision in Does v. Gillespie may be unsettled by a decision from the Supreme Court; (2) any order from
5

Case 4:15-cv-00566-KGB Document 192 Filed 03/24/19 Page 6 of 7
the Court dismissing the Medicaid Act claim would be interlocutory; and (3) dismissing the Medicaid Act would have no practical effect on discovery because the scope of discovery on plaintiffs’ constitutional claims are the same as on their Medicaid Act claim (Dkt. No. 171). Plaintiffs also ask the Court to defer any decision on Ms. Gillespie’s motion until the close of the case (Id., at 5). In reply, Ms. Gillespie argues that it is not appropriate to deny the motion because of “the off-chance” of a Supreme Court decision, the fact that a dismissal of the Medicaid Act claim would be interlocutory means that it should be granted, and that there is no authority for allowing a claim to proceed because the dismissal of that claim would have no effect on the litigation (Dkt. No. 174, at 1-3).
The Court concludes that a ruling on the motion for judgment on the pleadings as to plaintiffs’ Medicaid Act claim is neither necessary nor helpful at this stage of the litigation. See U.S. v. 687.30 Acres of Land, More or Less, in Dakota and Thurston Counties, State of Neb., 451 F.2d 667, 670 (8th Cir. 1971) (“Rulings on pleadings are clearly interlocutory and are not appealable. Of course all interlocutory rulings are subject to review upon appeal from final judgment.”). Any ruling from this Court on the pending motion for judgment on the pleadings as to plaintiffs’ Medicaid Act claim would be an interlocutory order that the Court could reconsider prior to entering a final judgment. Accordingly, the Court will hold the motion for judgment on the pleadings as to plaintiffs’ Medicaid Act claim under advisement until a later date (Dkt. No. 168).
IV. Conclusion For the reasons discussed above, the Court denies plaintiffs’ motion to stay proceedings (Dkt. No. 185). The motion for judgment on the pleadings as to plaintiffs’ Medicaid Act claim remains under advisement (Dkt. No. 168).
6

Case 4:15-cv-00566-KGB Document 192 Filed 03/24/19 Page 7 of 7 It is so ordered, this the 24th day of March, 2019.
_______________________________ Kristine G. Baker United States District Judge
7

 
 STAYED,PROTO,PSH
U.S. District Court Eastern District of Arkansas (Central Division) CIVIL DOCKET FOR CASE #: 4:15−cv−00566−KGB

Planned Parenthood of Arkansas & Eastern Oklahoma Inc et al v. Gillespie Assigned to: Judge Kristine G. Baker Case in other court: USCA8, 15−03271
USCA8, 16−04068 Cause: 42:1983 Other Civil Rights
Plaintiff

Date Filed: 09/11/2015 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

Planned Parenthood of Arkansas & Eastern Oklahoma Inc (originally named as Planned Parenthood Arkansas & Eastern Oklahoma d/b/a Planned Parenthood of the Heartland) doing business as Planned Parenthood Great Plains

represented by Bettina E. Brownstein Betinna E. Brownstein Law Firm 904 West Second Street Suite 2 Little Rock, AR 72201 501−920−1764 Email: bettinabrownstein@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Burth Lopez Planned Parenthood Federation of America 1110 Vermont Avenue N.W. Suite 300 Washington, DC 20005 202−973−4800 Email: bglopez01@gmail.com TERMINATED: 07/21/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christine Clarke Planned Parenthood Federation of America 123 William Street Suite 900 New York, NY 10038 212−261−4749 Email: christine.clarke@ppfa.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Sandman Planned Parenthood Federation of America 123 William Street Suite 900 New York, NY 10038 212−261−4584 Email: jennifer.sandman@ppfa.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Richard Muniz Planned Parenthood Federation of America 1110 Vermont Avenue N.W. Suite 300 Washington, DC 20005 202−973−4800

Plaintiff Jane Does 1−3, on their behalf and all others similarly situated
V. Defendant Cindy Gillespie Director, Arkansas Department of Human Services, in her Official Capacity (originally named as John Selig)

Email: richard.muniz@ppfa.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bettina E. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Burth Lopez (See above for address) TERMINATED: 07/21/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Clarke (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Sandman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Muniz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by David Wayne Sterling Arkansas Department of Human Services Office of Chief Counsel Post Office Box 1437, Slot S−260 Little Rock, AR 72203 501−320−6355 Email: david.sterling@dhs.arkansas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
C. Joseph Cordi , Jr. Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201−2610 501−682−1317 Fax: 501−682−8118 Email: joe.cordi@arkansasag.gov TERMINATED: 04/27/2016 ATTORNEY TO BE NOTICED
David A. Curran University of Arkansas − Office of the General Counsel

2404 North University Avenue Little Rock, AR 72207−3608 501−686−2536 Fax: 501−686−2517 Email: dcurran@uasys.edu TERMINATED: 01/21/2016 ATTORNEY TO BE NOTICED
Dylan L. Jacobs Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201−2610 501−682−2700 Email: dylan.jacobs@arkansasag.gov ATTORNEY TO BE NOTICED
Jennifer L. Merritt Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201−2610 501−682−1319 Fax: 501−682−2591 Email: jennifer.merritt@arkansasag.gov ATTORNEY TO BE NOTICED
Lee Rudofsky Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201−2610 501−772−5789 Email: lee.rudofsky@arkansasag.gov TERMINATED: 07/24/2018 ATTORNEY TO BE NOTICED
Mindy D. Pipkin Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201−2610 501−682−8219 Email: mindy.pipkin@arkansasag.gov TERMINATED: 10/22/2018 ATTORNEY TO BE NOTICED
Monty Vaughan Baugh Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201−2610 501−690−5086 Email: monty.baugh@arkansasag.gov TERMINATED: 04/04/2019 ATTORNEY TO BE NOTICED
Nicholas Jacob Bronni Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201−2610 501−682−6302

Email: nicholas.bronni@arkansasag.gov ATTORNEY TO BE NOTICED
Vincent Moore Wagner Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201−2610 501−682−8090 Email: vincent.wagner@arkansasag.gov ATTORNEY TO BE NOTICED

Date Filed 09/11/2015
09/11/2015 09/11/2015 09/11/2015 09/11/2015 09/11/2015 09/11/2015
09/15/2015 09/15/2015 09/15/2015 09/15/2015 09/15/2015 09/15/2015

# Docket Text
1 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF against John Selig filed by Planned Parenthood Arkansas & Eastern Oklahoma and Jane Does. Summons issued and returned to counsel. (Fee $400 paid, Receipt #LIT053157.) (Attachments: # 1 Civil Cover Sheet). (ljb) (Entered: 09/11/2015)
2 MOTION for Leave to Appear pro hac vice by Jennifer Sandman. Fee $100 paid, Receipt #LIT053157. Filed by Jane Does and Planned Parenthood Arkansas & Eastern Oklahoma. (ljb) (Entered: 09/11/2015)
3 MOTION for Temporary Restraining Order and Preliminary Injunction by Planned Parenthood Arkansas & Eastern Oklahoma and Jane Does. (ljb) (Entered: 09/11/2015)
4 MEMORANDUM of Law in Support of 3 Motion for TRO and Preliminary Injunction filed by Jane Does and Planned Parenthood Arkansas & Eastern Oklahoma. (ljb) (Entered: 09/11/2015)
5 MOTION for Protective Order by Jane Does and Planned Parenthood Arkansas & Eastern Oklahoma. (ljb) (Entered: 09/11/2015)
6 MEMORANDUM of Law in Support of 5 Motion for Protective Order filed by Jane Does and Planned Parenthood Arkansas & Eastern Oklahoma. (ljb) (Entered: 09/11/2015)
7 ORDER Setting Hearing on 3 Motion for Temporary Restraining Order and for Preliminary Injunction. Hearing set for 9/17/2015, at 02:00 PM in Little Rock Courtroom # 4C before Judge Kristine G. Baker. Signed by Judge Kristine G. Baker on 9/11/2015. (mcz) (Entered: 09/11/2015)
8 ORDER granting 2 motion to appear pro hac vice. Ms. Sandman shall appear as counsel of record for the plaintiffs. Signed by Judge Kristine G. Baker on 09/15/2015. (rhm) (Entered: 09/15/2015)
9 ORDER granting 5 motion for protective order. The identities of the Jane Does shall be filed with the Court under seal. Signed by Judge Kristine G. Baker on 09/15/2015. (rhm) (Entered: 09/15/2015)
10 NOTICE of Appearance by David A. Curran on behalf of John Selig (Curran, David) (Entered: 09/15/2015)
11 NOTICE of Appearance by David Wayne Sterling on behalf of John Selig (Sterling, David) (Entered: 09/15/2015)
12 AMENDED COMPLAINT First Amended Complaint against All Defendants, filed by Planned Parenthood Arkansas & Eastern Oklahoma, Jane Does(Brownstein, Bettina) (Entered: 09/15/2015)
13 BRIEF IN SUPPORT re 4 Memorandum of Points and Authorities (Supplemental Memorandum) filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit to Supplemental Memorandum In Support of Motion for TRO/Preliminary Injunction, # 2 Exhibit Exhibit to Supplemental Memorandum In Support of Motion for TRO/Preliminary Injunction)(Brownstein, Bettina) (Entered: 09/15/2015)

09/16/2015 09/16/2015 09/16/2015 09/16/2015 09/17/2015 09/17/2015
09/17/2015 09/17/2015
09/18/2015
09/22/2015 09/22/2015
09/23/2015

14 NOTICE of Filing Jane Doe Identities Under Seal based on 9 Order. (mef) (Docket text modified on 9/16/2015 to correct the description of the document filed.) (thd). (Entered: 09/16/2015)
15 SEALED DOCUMENT. (mef) (Entered: 09/16/2015)
NOTICE OF DOCKET CORRECTION re: 14 Notice. CORRECTION: The docket text was modified to correct the description of the document filed as "NOTICE of Filing Jane Doe Identities Under Seal based on 9 Order."(thd) (Entered: 09/16/2015)
16 RESPONSE in Opposition re 3 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by John Selig. (Attachments: # 1 Affidavit, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5,)(Curran, David) (Exhibit 6 removed from the docket and filed under seal on 10/9/2015, based on 65 Order.) (thd). (Entered: 09/16/2015)
17 NOTICE of Appearance by Lee Rudofsky on behalf of John Selig (Rudofsky, Lee) (Entered: 09/17/2015)
18 ORDER authorizing Jennifer Sandman, Deputy Director of the Public Policy Litigation & Law Department at Planned Parenthood Federation of America, and counsel for plaintiffs in this matter, to bring a cell phone, laptop computer,or personal digital assistant into the courthouse in Little Rock, Arkansas, on Thursday, September 17, 2015, for a hearing. Signed by Judge Kristine G. Baker on 09/17/2015. (rhm) (Entered: 09/17/2015)
19 ADDENDUM re 16 Response in Opposition to Motion. Exhibit F Affidavit of Mark White: DVD maintained in Clerk's office file. Filed conventionally by John Selig on 9/17/2015. (scw) (Entered: 09/17/2015)
20 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute Entry for proceedings held before Judge Kristine G. Baker: Motion Hearing held on 9/17/2015 re 3 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Planned Parenthood Arkansas & Eastern Oklahoma, Jane Does. Court convened. After arguments from counsel, the Court took the matter under advisement. A written order will be entered. Plaintiffs' counsel B. Brownstein and J. Sandman, Defense counsel L. Rudofsky, D. Curran and D. Sterling. (Court Reporter Elaine Hinson.) (tmw) (Entered: 09/17/2015)
21 Temporary Restraining Order granting 3 PPH and the Jane Does' motion for temporary restraining order. The Court temporarily restrains ADHS for a period of 14 days from the date of entry of this Order from suspending Medicaid payments to PPH for services rendered to Medicaid beneficiaries, including but not limited to the Jane Does. This temporary restraining order shall not exceed 14 days from the date of entry of this order and shall expire by its own terms on Friday, October 2, 2015, at 4:55 p.m. unless the Court, for good cause shown, extends it. Signed by Judge Kristine G. Baker on 09/18/2015. (rhm) (Entered: 09/18/2015)
22 ORDER: The Court will conduct a status conference via telephone on Wednesday, September 23, 2015, at 3:00 p.m. CST concerning a briefing schedule and potential hearing. Signed by Judge Kristine G. Baker on 09/22/2015. (rhm) (Entered: 09/22/2015)
23 TRANSCRIPT of Hearing on Motion for Temporary Restraining Order Proceedings held on 09/17/2015 before Judge Kristine G. Baker. Court Reporter Elaine Hinson. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 10/2/2015. Redaction Request due 10/13/2015. Redacted Transcript Deadline set for 10/23/2015. Release of Transcript Restriction set for 12/21/2015. (plm) (Entered: 09/22/2015)
24 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute Entry for proceedings held before Judge Kristine G. Baker: Status Conference held on 9/23/2015. Present for the Plaintiffs B. Brownstein and J. Sandman. Present for the defense D. Sterling and L. Rudofsky. After arguments from the parties, the Court took the matter under advisement. A separate order will be entered. (Court Reporter Elaine Hinson.) (tmw) (Entered: 09/23/2015)

09/25/2015
09/25/2015
09/25/2015
09/28/2015 09/28/2015
09/28/2015 09/28/2015 09/29/2015 09/29/2015 09/29/2015
09/29/2015 09/30/2015 09/30/2015 09/30/2015 09/30/2015 09/30/2015

25 ORDER on status conference held September 23, 2015, and setting briefing schedule. PPH and the Jane Does will file a reply to ADHS's 16 response to the motion for temporary restraining order and preliminary injunction on or before September 25, 2015. Signed by Judge Kristine G. Baker on 09/25/2015. (rhm) (Entered: 09/25/2015)
26 REPLY to Response to Motion re 3 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit A to Reply in Support of Motion for Preliminary Injunction, # 2 Exhibit Exhibit B to Reply in Support of Motion for Preliminary Injunction, # 3 Exhibit Exhibit C to Reply in Support of Motion for Preliminary Injunction, # 4 Exhibit Exhibit D to Reply in Support of Motion for Preliminary Injunction, # 5 Exhibit Exhibit E to Reply in Support of Motion for Preliminary Injunction, # 6 Exhibit Exhibit F to Reply in Support of Motion for Preliminary Injunction)(Sandman, Jennifer) (Entered: 09/25/2015)
27 MOTION to Strike 16 Response in Opposition to Motion, Exhibits 2, 3, and 4, and 19 Exhibit F to the Affidavit of Mark White by All Plaintiffs (Attachments: # 1 Exhibit Exhibit to Motion to Strike)(Sandman, Jennifer) (Docket entry modified on 9/28/2015 to correct the linkage and the description of the document filed.) (thd). (Entered: 09/25/2015)
28 MOTION to Seal Document by All Plaintiffs (Brownstein, Bettina) (Entered: 09/28/2015)
NOTICE OF DOCKET CORRECTION re: 27 Motion. CORRECTION: The docket entry was modified to correct the linkage and the description of the document filed as "MOTION to Strike 16 Response in Opposition to Motion, Exhibits 2, 3, and 4, and 19 Exhibit F to the Affidavit of Mark White." (thd) (Entered: 09/28/2015)
29 MOTION for Leave to File Sur−Reply Under Seal by John Selig (Rudofsky, Lee) (Entered: 09/28/2015)
30 MOTION to Strike Portions of De Baca Declarations by John Selig (Rudofsky, Lee) (Entered: 09/28/2015)
31 ORDER granting 28 agreed upon motion to seal and the Jane Does' answers to written questions may be filed under seal. Signed by Judge Kristine G. Baker on 09/29/2015. (rhm) (Entered: 09/29/2015)
32 ORDER clarifying 25 Order. Signed by Judge Kristine G. Baker on 09/29/2015. (rhm) (Entered: 09/29/2015)
33 ORDER granting 29 motion for leave to file a sur−reply under seal. Further, the Court grants defendant's request to file a redacted version of the sur−reply followed by the filing under seal of a non−redacted version of the sur−reply on dates and times as agreed by the parties. The Court understands that, with the Court's granting this request, defendant does not seek an evidentiary hearing in this matter. Signed by Judge Kristine G. Baker on 09/29/2015. (rhm) (Entered: 09/29/2015)
34 Mail Returned as Undeliverable. Mail sent to Jennifer Sandman re 9 Order on Motion for Protective Order, 7 Order Setting Hearing on Motion, 8 Order on Motion to Appear Pro Hac Vice (jap) (Entered: 09/29/2015)
35 SEALED DOCUMENT. (mef) (Entered: 09/30/2015)
36 SEALED DOCUMENT. (mef) (Entered: 09/30/2015)
37 SEALED DOCUMENT. (mef) (Entered: 09/30/2015)
38 RESPONSE in Opposition re 27 MOTION to Strike 16 Response in Opposition to Motion, Exs. 2, 3, and 4, and Ex. G of Affidavit of Mark White filed by John Selig. (Attachments: # 1 Exhibit A)(Sterling, David) (Entered: 09/30/2015)
39 RESPONSE to Motion re 3 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction Sur−Reply with leave of court filed by John Selig. (Attachments: # 1 Exhibit Placeholder for exhibits under seal)(Curran, David) (Entered: 09/30/2015)

10/01/2015 10/01/2015 10/02/2015 10/02/2015 10/02/2015
10/05/2015
10/05/2015 10/05/2015
10/05/2015 10/05/2015 10/05/2015 10/05/2015 10/05/2015 10/06/2015 10/06/2015 10/06/2015 10/06/2015 10/08/2015 10/08/2015

40 SEALED DOCUMENT. (scw) (Entered: 10/01/2015)
41 RESPONSE in Opposition re 30 MOTION to Strike Portions of De Baca Declarations filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit A to Pls.' Resp. to Def.'s Mot. to Strike)(Sandman, Jennifer) (Entered: 10/01/2015)
42 NOTICE of Appearance by C. Joseph Cordi, Jr on behalf of John Selig (Cordi, C.) (Entered: 10/02/2015)
43 ANSWER to 12 Amended Complaint by John Selig.(Cordi, C.) (Entered: 10/02/2015)
44 PRELIMINARY INJUNCTION ORDER denying 27 and 30 motions to strike and grants the Jane Does' motion for preliminary injunction. The Court enjoins ADHS from suspending Medicaid payments to PPH for services rendered to Medicaid beneficiaries the Jane Does until further order from this Court. Signed by Judge Kristine G. Baker on 10/2/2015. (ljb) (Entered: 10/02/2015)
45 AMENDED AND SUBSTITUTED PRELIMINARY INJUNCTION denying 27 PPH's and the Jane Does' motion to strike; denying 30 ADHS's motion to strike; granting the Jane Does' motion for preliminary injunction; and enjoining ADHS from suspending Medicaid payments to PPH for services rendered to Medicaid beneficiaries the Jane Does until further order from this Court. Signed by Judge Kristine G. Baker on 10/5/2015. (kdr) (Entered: 10/05/2015)
46 NOTICE OF APPEAL as to 45 Preliminary Injunction, 44 Preliminary Injunction, Terminate Motions,, by John Selig. (Attachments: # 1 Exhibit Form A information sheet)(Curran, David) (Entered: 10/05/2015)
47 NOTIFICATION OF APPEAL and NOA SUPPLEMENT as to John Selig re 46 Notice of Appeal, 45 Preliminary Injunction, 44 Preliminary Injunction. NOTIFICATION TO COUNSEL: REQUEST FOR TRANSCRIPTS SHOULD BE FILED WITH THE DISTRICT COURT CLERK. (fcd) (Entered: 10/05/2015)
48 USCA Appeal Fees received−−$505.00 re 46 Notice of Appeal filed by John Selig. Receipt number LIT053494. (thd) (Entered: 10/05/2015)
49 MOTION for Leave to File Second Amended Complaint by All Plaintiffs (Attachments: # 1 Exhibit Second Amended Complaint)(Sandman, Jennifer) (Entered: 10/05/2015)
50 MOTION to Certify Class by All Plaintiffs (Sandman, Jennifer) (Entered: 10/05/2015)
51 BRIEF IN SUPPORT re 50 Motion to Certify Class filed by All Plaintiffs. (Sandman, Jennifer) (Entered: 10/05/2015)
52 MOTION to Expedite Defendant's Response to Motion for Class Certification by All Plaintiffs (Sandman, Jennifer) (Entered: 10/05/2015)
53 MOTION to Seal Document 16 Response in Opposition to Motion, 16−7 Ex. 6, PPFA Amended Bylaws of March 29, 2008 by All Plaintiffs (Sandman, Jennifer) (Entered: 10/06/2015)
54 RESPONSE in Opposition re 52 MOTION to Expedite Defendant's Response to Motion for Class Certification filed by John Selig. (Rudofsky, Lee) (Entered: 10/06/2015)
55 MOTION to Extend Time to Respond to Plaintiffs' Class Certification Motion by John Selig (Rudofsky, Lee) (Entered: 10/06/2015)
56 MOTION for Leave to File Notice of Four Depositions of Plaintiffs by John Selig (Rudofsky, Lee) (Entered: 10/06/2015)
57 TRANSCRIPT REQUEST by John Selig re 46 Notice of Appeal (Attachments: # 1 Exhibit 1 (Email from counsel to Court Reporter requesting transcripts))(Cordi, C.) (Entered: 10/08/2015)
58 NOTICE of Hearing: TELEPHONE Status Conference set for 10/9/2015 at 01:30 PM before Judge Kristine G. Baker. (tmw) (Docket text modified on 10/8/2015 to correct the date.) (thd). (Entered: 10/08/2015)

10/08/2015 10/09/2015 10/09/2015 10/09/2015 10/09/2015
10/09/2015 10/09/2015 10/09/2015 10/14/2015
10/22/2015
10/23/2015 10/26/2015 10/26/2015 10/29/2015 11/05/2015 11/17/2015

NOTICE OF DOCKET CORRECTION re: 58 Notice of Hearing. CORRECTION: The docket text was modified to correct the date for the telephone status conference to 10/9/2015, as stated in the Notice. (thd) (Entered: 10/08/2015)
59 RESPONSE to Motion re 55 MOTION to Extend Time to Respond to Plaintiffs' Class Certification Motion filed by All Plaintiffs. (Sandman, Jennifer) (Entered: 10/09/2015)
60 RESPONSE to Motion re 56 MOTION for Leave to File Notice of Four Depositions of Plaintiffs filed by All Plaintiffs. (Sandman, Jennifer) (Entered: 10/09/2015)
61 USCA Docketing Letter and Briefing Schedule as to 46 Notice of Appeal filed by John Selig. USCA Case Number 15−3271. Transcript due by 11/18/2015. (mcz) (Entered: 10/09/2015)
62 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute Entry for proceedings held before Judge Kristine G. Baker:Status Conference held on 10/9/2015. After arguments from counsel, the Court took the matters under advisement. A separate written order will be entered. Present for the Plaintiffs B. Brownstein and J. Sandman; Present for the Defendants L. Rudofsky and D. Sterling. (Court Reporter Elaine Hinson.) (tmw) (Entered: 10/09/2015)
63 ORDER granting 49 motion for leave to file a second amended complaint. Signed by Judge Kristine G. Baker on 10/09/2015. (rhm) (Entered: 10/09/2015)
64 AMENDED COMPLAINT against All Defendants, filed by Planned Parenthood Arkansas & Eastern Oklahoma, Jane Does(Sandman, Jennifer) (Entered: 10/09/2015)
65 ORDER granting 53 motion to seal and directing the Clerk to seal Exhibit 6 to defendant's 16 response to plaintiffs' motion for preliminary injunction. Signed by Judge Kristine G. Baker on 10/09/2015. (rhm) (Entered: 10/09/2015)
66 ORDER denying Plaintiffs' 52 Motion to Expedite defendant John M. Selig's response to 50 Motion for Class Certification and denying 55 defendant's Motion to Extend Time to respond. Mr. Selig will have 14 days from Wednesday, October 14, 2015, to respond to plaintiffs' motion for class certification. Mr. Selig's 56 request for additional pre−certification discovery is denied. Signed by Judge Kristine G. Baker on 10/14/2015. (mcz) (Entered: 10/14/2015)
67 Transcript of Telephone Conference filed for the date of September 23, 2015, before Judge Kristine G. Baker, re 46 Notice of Appeal. Court Reporter Elaine Hinson. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Request Redaction due 11/2/2015. Redaction Request due 11/12/2015. Redacted Transcript Deadline set for 11/23/2015. Release of Transcript Restriction set for 1/20/2016. (plm) (Entered: 10/22/2015)
68 Defendant's ANSWER to 64 Amended Complaint by John Selig.(Cordi, C.) (Entered: 10/23/2015)
69 MOTION for Extension of Time to File Response/Reply as to 50 MOTION to Certify Class by John Selig (Cordi, C.) (Entered: 10/26/2015)
70 ORDER granting 69 motion for one−day extension of time to respond to plaintiff's 50 motion for class certification. Signed by Judge Kristine G. Baker on 10/26/2015. (rhm) (Entered: 10/26/2015)
71 RESPONSE in Opposition re 50 MOTION to Certify Class filed by John Selig. (Attachments: # 1 Exhibit E−mail, # 2 Exhibit Article)(Rudofsky, Lee) (Entered: 10/29/2015)
72 REPLY to Response to Motion re 50 MOTION to Certify Class filed by All Plaintiffs. (Sandman, Jennifer) (Entered: 11/05/2015)
73 Transmitted Record on Appeal to US Court of Appeals re 46 Notice of Appeal: Transcript of 9/17/2015 Hearing on Motion for TRO and Transcript of 9/23/2015 Telephone Conference. (mcz) (Entered: 11/17/2015)

12/21/2015
12/22/2015 01/04/2016 01/04/2016 01/04/2016 01/05/2016 01/14/2016
01/14/2016 01/15/2016 01/15/2016 01/20/2016 01/20/2016

74 Transcript of Telephone Conference filed for the date of October 9, 2015, before Judge Kristine G. Baker, re 46 Notice of Appeal. Court Reporter Elaine Hinson. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Request Redaction due 12/31/2015. Redaction Request due 1/11/2016. Redacted Transcript Deadline set for 1/21/2016. Release of Transcript Restriction set for 3/21/2016. (plm) (Entered: 12/21/2015)
75 Transmitted Record on Appeal to US Court of Appeals re 46 Notice of Appeal: Transcript of 10/9/2015 Telephone Conference. (mcz) (Entered: 12/22/2015)
76 ORDER directing the Clerk of Court to substitute Nathaniel Smith for John M. Selig as the party defendant in this action and setting a hearing on the 50 motion for class certification to be held on Thursday, 1/14/2016, at 1:30 PM in Little Rock Courtroom # 4C before Judge Kristine G. Baker. Signed by Judge Kristine G. Baker on 01/04/2016. (rhm) (Entered: 01/04/2016)
77 ORDER: As this Court has denied defendant's 66 request for pre−certification discovery, the Court will only hear argument at the 01/14/2016 hearing. John Selig remains the named Defendant in this case. Signed by Judge Kristine G. Baker on 01/04/2016. (rhm) (Docket text modified on 1/4/2016 to include the ruling as to Defendant John Selig.)(thd). (Entered: 01/04/2016)
NOTICE OF DOCKET CORRECTION re: 77 Order. CORRECTION: The docket text was modified to include the text "John Selig remains the named Defendant in this case." (thd) (Entered: 01/04/2016)
78 AMENDED AND SUBSTITUTED ORDER: This Order is an Amended and Substituted Order for Orders 76 and 77 . The Court will conduct a hearing on 1/14/2016 at 1:30 p.m. in Courtroom 4C at the Richard Sheppard Arnold United States Courthouse, 500 West Capitol Avenue, Little Rock, Arkansas. Signed by Judge Kristine G. Baker on 1/5/2016. (mcz) (Entered: 01/05/2016)
79 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) MINUTES for proceedings held before Judge Kristine G. Baker: MOTION HEARING held on 1/14/2016 re 50 MOTION to Certify Class filed by Planned Parenthood Arkansas & Eastern Oklahoma, Jane Does. After arguments from counsel, the Court took the matter under advisement. A separate order will be entered. Present for the plaintiffs Bettina Brownstein and Jennifer Sandman; Present for the defendants Lee Rudofsky, C. Joseph Cordi, Jr., Mindy Pipkin and David Sterling. (Court Reporter Elaine Hinson.) (tmw) (Entered: 01/14/2016)
80 MOTION for Leave to File Post−Hearing Supplemental Response to Plaintiffs' Motion for Class Certification by John Selig (Attachments: # 1 Document Defendants' Post−Hearing Supplemental Response to Plaintiffs' Motion for Class Certification, # 2 Exhibit Exhibit A to Defendants' Post−Hearing Supplemental Response to Plaintiffs' Motion for Class Certification)(Cordi, C.) (Entered: 01/14/2016)
81 ORDER granting defendant John M. Selig's 80 motion for leave to file a post−hearing supplemental response to plaintiffs' motion for class certification. Signed by Judge Kristine G. Baker on 1/15/2016. (ljb) (Entered: 01/15/2016)
82 RESPONSE in Opposition re 50 MOTION to Certify Class (this is a post−hearing supplemental response) filed by John Selig. (Attachments: # 1 Exhibit A to Defendant's Post−Hearing Supplemental Response to Plaintiffs' Motion for Class Certification)(Cordi, C.) (Entered: 01/15/2016)
83 MOTION to Withdraw as Attorney by All Defendants (Curran, David) (Entered: 01/20/2016)
84 Transcript of Hearing filed for dates of January 14, 2016, before Judge Kristine G. Baker, re 46 Notice of Appeal. Court Reporter − Elaine Hinson. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Request Redaction due 2/1/2016. Redaction Request due 2/10/2016. Redacted Transcript Deadline set for 2/22/2016. Release of Transcript Restriction set for

01/21/2016 01/25/2016
01/25/2016 02/05/2016 02/08/2016 02/09/2016 02/09/2016 02/10/2016
02/12/2016 02/15/2016 03/03/2016
03/08/2016 03/09/2016 03/17/2016 03/17/2016 03/23/2016 03/23/2016

4/19/2016. (mcz) (Entered: 01/20/2016)
85 ORDER granting David A. Curran's 83 Motion to Withdraw as counsel for defendant John M. Selig. Signed by Judge Kristine G. Baker on 1/21/2016. (mcz) (Entered: 01/21/2016)
86 ORDER granting plaintiffs' 50 motion for class certification. Counsel for PPH and the Jane Does, Jennifer Sandman and Bettina Brownstein, are appointed as class counsel for this action. The Court directs the parties to confer to submit a proposed class notice within 10 days of the date of this Order. Signed by Judge Kristine G. Baker on 1/25/2016. (ljb) (Entered: 01/25/2016)
87 Transmitted Record on Appeal to US Court of Appeals re 46 Notice of Appeal: Transcript of Hearing of 1/14/2016. (mcz) (Entered: 01/25/2016)
88 NOTICE of Change of Address by Jane Does, Planned Parenthood Arkansas & Eastern Oklahoma (Sandman, Jennifer) (Entered: 02/05/2016)
89 Letter from Clerk, USCA: A petition for permission to appeal has been filed and given miscellaneous case number 16−8003. No briefing schedule will be established unless the court grants the permission. (mcz) (Entered: 02/09/2016)
90 MOTION to Amend/Correct 86 Order on Motion to Certify Class, by All Plaintiffs (Sandman, Jennifer) (Entered: 02/09/2016)
91 BRIEF IN SUPPORT re 90 Motion to Amend/Correct Order Granting Plaintiffs' Motion for Class Certification filed by All Plaintiffs. (Sandman, Jennifer) (Entered: 02/09/2016)
92 MOTION for Leave to Appear pro hac vice by Richard Muniz. Fee $100 receipt number 0860−2795549. Filed by All Plaintiffs (Attachments: # 1 Affidavit in Support of Motion to Admit Richard Muniz Pro Hac Vice)(Sandman, Jennifer) (Entered: 02/10/2016)
93 ORDER granting 92 motion to admit Richard Muniz pro hac vice as counsel of record for the plaintiffs. Signed by Judge Kristine G. Baker on 02/12/2016. (rhm) (Entered: 02/12/2016)
94 RESPONSE in Opposition re 90 MOTION to Amend/Correct 86 Order on Motion to Certify Class, filed by John Selig. (Cordi, C.) (Entered: 02/15/2016)
95 ORDER granting 90 motion to alter or amend. The Court amends its prior 86 Order and the parties are no longer required to confer and submit a proposed class notice to this Court. Signed by Judge Kristine G. Baker on 03/03/2016. (rhm) (Entered: 03/03/2016)
96 Letter from Clerk, USCA: The petition for permission to appeal has been denied. Judgment is enclosed. Mandate shall issue forthwith. (mcz) (Entered: 03/09/2016)
97 Letter from Clerk, USCA: The Mandate denying permission to appeal in accordance with the judgment of 3/8/2016 is attached. (mcz) (Entered: 03/10/2016)
98 MOTION for Preliminary Injunction on Behalf of Patient Class by All Plaintiffs (Sandman, Jennifer) (Entered: 03/17/2016)
99 BRIEF IN SUPPORT re 98 Motion for Preliminary Injunction on Behalf of Patient Class filed by All Plaintiffs. (Attachments: # 1 Exhibit A − Decl. of Holly Ajanel, # 2 Exhibit B − Decl. of Teesha Taylor)(Sandman, Jennifer) (Entered: 03/17/2016)
100 MOTION for Extension of Time to File Response/Reply as to 98 MOTION for Preliminary Injunction on Behalf of Patient Class, 99 Brief in Support by John Selig (Rudofsky, Lee) (Entered: 03/23/2016)
101 ORDER granting 100 unopposed motion to extend time to respond to plaintiffs' 98 motion for a second preliminary injunction. Defendants have up to and including 04/07/2016 to file a response to plaintifs' motion for a second preliminary injunction. Signed by Judge Kristine G. Baker on 03/23/2016. (rhm) (Entered: 03/23/2016)

04/01/2016 04/04/2016 04/05/2016
04/11/2016
04/15/2016
04/26/2016 04/26/2016 04/26/2016
04/27/2016
04/28/2016 05/02/2016
05/05/2016 05/10/2016 05/11/2016 05/13/2016 08/09/2016 08/19/2016

102 STIPULATION by All Parties by Jane Does, Planned Parenthood Arkansas & Eastern Oklahoma. (Sandman, Jennifer) (Entered: 04/01/2016)
103 MOTION for Extension of Time to File Response/Reply as to 98 MOTION for Preliminary Injunction on Behalf of Patient Class, 101 Order on Motion for Extension of Time to File Response/Reply, by John Selig (Rudofsky, Lee) (Entered: 04/04/2016)
104 ORDER granting 103 unopposed motion to extend time to respond to plaintiffs' 98 application for a second preliminary injunction. Mr. Selig has up to and including 4/11/2016 to file a response to plaintiffs' motion for a second preliminary injunction. Signed by Judge Kristine G. Baker on 04/05/2016. (rhm) (Entered: 04/05/2016)
105 RESPONSE in Opposition re 98 MOTION for Preliminary Injunction on Behalf of Patient Class filed by John Selig. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Rudofsky, Lee) (Entered: 04/11/2016)
106 ORDER granting plaintiffs' request to file a reply to defendant's response to plaintiffs' motion for preliminary injunction on behalf of patient class. As agreed to by the parties, plaintiffs must file their reply by April 26, 2016. Signed by Judge Kristine G. Baker on 4/15/2016. (mcz) (Entered: 04/15/2016)
107 NOTICE of Appearance by Mindy D. Pipkin on behalf of John Selig (Pipkin, Mindy) (Entered: 04/26/2016)
108 MOTION to Substitute Attorney by John Selig (Pipkin, Mindy) (Entered: 04/26/2016)
109 REPLY to Response to Motion re 98 MOTION for Preliminary Injunction on Behalf of Patient Class filed by All Plaintiffs. (Attachments: # 1 Exhibit Ex. A − Suzanna de Baca Decl. in Supp. of Prelim. Inj. on Behalf of Patient Class)(Sandman, Jennifer) (Entered: 04/26/2016)
110 ORDER granting 108 motion for substitution of counsel and directing that Mr. Cordi be removed and that Ms. Pipkin be added as counsel of record for defendant Mr. Selig. The Court also orders that parties and their counsel include Ms. Pipkin, along with all other counsel of record, when sending future pleadings and correspondence. Signed by Judge Kristine G. Baker on 04/27/2016. (rhm) (Entered: 04/27/2016)
111 ORDER setting status conference via telephone on Friday 5/6/2016 at 10:30 AM. Signed by Judge Kristine G. Baker on 04/28/2016. (rhm) (Entered: 04/28/2016)
112 ORDER cancelling the status conference set for Friday 05/06/2016. Based upon the agreement of the parties, Mr. Selig has up to and including 05/05/2016 to submit his filing, and plaintiffs have up to and including 05/11/2016 to submit their response. Mr. Selig then has up to and including 05/13/2016 to file a reply. Signed by Judge Kristine G. Baker on 05/02/2016. (rhm) (Entered: 05/02/2016)
113 MOTION for Discovery by John Selig (Attachments: # 1 Exhibit A)(Rudofsky, Lee) (Entered: 05/05/2016)
114 MOTION to Substitute Party by John Selig (Pipkin, Mindy) (Entered: 05/10/2016)
115 RESPONSE in Opposition re 113 MOTION for Discovery filed by Jane Does, Planned Parenthood Arkansas & Eastern Oklahoma. (Sandman, Jennifer) (Entered: 05/11/2016)
116 REPLY to Response to Motion re 113 MOTION for Discovery filed by John Selig. (Pipkin, Mindy) (Entered: 05/13/2016)
117 ORDER setting a status conference via telephone for 8/19/2016 at 10:00 AM. Signed by Judge Kristine G. Baker on 08/09/2016. (rhm) (Entered: 08/09/2016)
118 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) MINUTES for proceedings held before Judge Kristine G. Baker:STATUS CONFERENCE held on 8/19/2016. Court convened; The Court granted the motion to substitute party 114 . A separate order will be entered. After arguments from counsel, the Court took the motion for expedited discovery 113 under advisement. (Plaintiff's counsel: Jennifer Sandman and Bettina Brownstein, Defense counsel: Lee Rudofsky and David Sterling) (Court Reporter Elaine Hinson) (tmw) (Entered: 08/19/2016)

08/26/2016 09/06/2016 09/13/2016 09/16/2016 09/16/2016
09/16/2016 09/23/2016 09/23/2016 09/29/2016
10/27/2016 10/27/2016 10/27/2016 10/28/2016 10/28/2016 11/10/2016

119 ORDER denying ADHS's 113 request for the expedited discovery; granting ADHS's request for permission to file a sur−reply; and stating that the Court granted in open Court Ms. Gillespie's 114 motion to substitute a party. Signed by Judge Kristine G. Baker on 08/26/2016. (rhm) (Entered: 08/26/2016)
120 REPLY to Response to Motion re 98 MOTION for Preliminary Injunction on Behalf of Patient Class DHS Sur−Reply in Opposition to Motion filed by All Defendants. (Rudofsky, Lee) (Entered: 09/06/2016)
121 RESPONSE in Opposition re 98 MOTION for Preliminary Injunction on Behalf of Patient Class Supplemental filed by Cindy Gillespie. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Rudofsky, Lee) (Entered: 09/13/2016)
122 RESPONSE in Support re 98 MOTION for Preliminary Injunction on Behalf of Patient Class filed by All Plaintiffs. (Attachments: # 1 Affidavit Declaration in Support of Motion for Preliminary Injunction in Behalf of Class Plaintiffs)(Brownstein, Bettina) (Entered: 09/16/2016)
123 ORDER: The Court has received a request from defendant Cindy Gillespie, through informal communication from her counsel, that she be permitted to file a response to 122 plaintiffs' response in support of its motion for preliminary injunction on behalf of the patient class. The Court construes the requested filing to be a reply. The Court grants the request but directs that defendant file her reply by 5 p.m. CST on 9/23/2016. Through the same informal communication, plaintiffs indicated to the Court that they plan to file a notice of supplemental authority. Defendant is also directed to file any response she may have to plaintiffs' notice of supplemental authority by 5 p.m. CST on 9/23/2016. Signed by Judge Kristine G. Baker on 9/16/2016. (ljb) (Entered: 09/16/2016)
124 NOTICE by All Plaintiffs (Attachments: # 1 Exhibit Fifth Circuit Opinion Planned Parenthood of Gulf Coast)(Brownstein, Bettina) (Entered: 09/16/2016)
125 REPLY to Response to Motion re 98 MOTION for Preliminary Injunction on Behalf of Patient Class filed by Cindy Gillespie. (Rudofsky, Lee) (Entered: 09/23/2016)
126 MEMORANDUM of points and authorities re 124 Notice (Other) filed by Cindy Gillespie. (Rudofsky, Lee) (Entered: 09/23/2016)
127 PRELIMINARY INJUNCTION ORDER on Behalf of the Patient Class granting 98 motion for preliminary injunction on behalf of the Patient Class and enjoining ADHS from suspending Medicaid payments to PPH for services rendered to Medicaid beneficiaries who are members of the Patient Class until further order from this Court. Signed by Judge Kristine G. Baker on 09/29/2016. (rhm) Modified on 09/30/2016 to correct the title of the document. (rhm) (Entered: 09/29/2016)
128 NOTICE OF APPEAL as to 127 Order on Motion for Preliminary Injunction, by Cindy Gillespie. (Rudofsky, Lee) Additional attachment added on 10/27/2016: # 1 Main Document − Correct. (kbc) (Entered: 10/27/2016)
129 NOTICE OF DOCKET CORRECTION re 128 Notice of Appeal. CORRECTION: The original document was submitted in error (wrong image file). The correct document has been added to 128 based on the attached correspondence. (kbc) (Entered: 10/27/2016)
130 NOTIFICATION OF APPEAL and NOA SUPPLEMENT as to 128 Notice of Appeal filed by Cindy Gillespie re: 127 Order on Motion for Preliminary Injunction. NOTIFICATION TO COUNSEL: REQUEST FOR TRANSCRIPTS SHOULD BE FILED WITH THE DISTRICT COURT CLERK. (mcz) (Entered: 10/27/2016)
131 USCA Appeal Fees received $ 505 paid, receipt number LIT059018 re 128 Notice of Appeal filed by Cindy Gillespie. (mcz) (Entered: 10/28/2016)
132 USCA Docketing Letter and Briefing Schedule as to 128 Notice of Appeal filed by Cindy Gillespie. USCA Case Number 16−4068. Transcript due by 12/7/2016. (mcz) (Entered: 10/31/2016)
133 MOTION for Leave to File Third Amended Complaint by All Plaintiffs (Attachments: # 1 Exhibit Third Amended Complaint)(Sandman, Jennifer) (Entered: 11/10/2016)

11/17/2016 11/28/2016 11/30/2016
11/30/2016 12/01/2016 12/02/2016
12/13/2016 08/16/2017 08/16/2017
11/13/2017 11/20/2017 01/19/2018 01/19/2018
01/22/2018 01/22/2018 01/24/2018 01/26/2018 01/30/2018

NOTICE OF DOCKET CORRECTION re: 127 Order. CORRECTION: The docket text was modified to correct the description of the document filed as "PRELIMINARY INJUNCTION ORDER on Behalf of the Patient Class". (thd) (Entered: 11/17/2016)
134 ORDER granting 133 plaintiffs' motion for leave to file a third amended complaint. Signed by Judge Kristine G. Baker on 11/28/2016. (rhm) (Entered: 11/28/2016)
135 AMENDED COMPLAINT Third Amended Complaint against All Defendants, filed by Planned Parenthood Arkansas & Eastern Oklahoma, Jane Does(Sandman, Jennifer) Additional attachment added on 12/2/2016: # 1 Main Document − Correct. (kbc) (Entered: 11/30/2016)
136 ORDER of USCA as to 46 and 128 Notices of Appeal filed by Cindy Gillespie: Motion to Consolidate USCA Case Numbers 15−3217 and 16−4068 is granted. (mcz) (Entered: 12/01/2016)
137 Deficiency Letter from the Clerk of Court notifying party that 135 Amended Complaint lacks a certificate showing service of the document (F.R.Cv.P. 5(d)(1)). (thd) (Entered: 12/01/2016)
138 NOTICE OF DOCKET CORRECTION re 135 Third Amended Complaint. CORRECTION: The original document was submitted in error (wrong image file) and has been added to 135 based on the attached correspondence. (kbc) (Entered: 12/02/2016)
139 ANSWER to 135 Amended Complaint by Cindy Gillespie.(Rudofsky, Lee) (Entered: 12/13/2016)
140 OPINION of USCA as to 46 and 128 Notices of Appeal filed by Cindy Gillespie. (mcz) (Entered: 08/16/2017)
141 USCA JUDGMENT as to 46 and 128 Notices of Appeal filed by Cindy Gillespie: The judgment of the district court in this cause is vacated and the cause is remanded to the district court for proceedings consistent with the opinion of this court. (mcz) (Entered: 08/16/2017)
142 ORDER of USCA as to 128 Notice of Appeal filed by Cindy Gillespie: The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied. (cmn) (Entered: 11/13/2017)
143 MANDATE of USCA in accordance with the opinion and judgment of 08/16/2017, as to 46 Notice of Appeal and 128 Notice of Appeal filed by Cindy Gillespie. (cmn) (Entered: 11/20/2017)
144 MOTION for Preliminary Injunction on Constitutional Claims by Jane Does, Planned Parenthood of Arkansas & Eastern Oklahoma Inc (Sandman, Jennifer) (Entered: 01/19/2018)
145 BRIEF IN SUPPORT re 144 Motion for Preliminary Injunction on Constitutional Claims filed by Jane Does, Planned Parenthood of Arkansas & Eastern Oklahoma Inc. (Attachments: # 1 Declaration of Aaron Samulcek, # 2 Declaration of Holly Ajanel, # 3 Declaration of Rosa Adams, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5)(Sandman, Jennifer) (Entered: 01/19/2018)
146 NOTICE of Appearance by Monty Vaughan Baugh on behalf of Cindy Gillespie (Baugh, Monty) (Entered: 01/22/2018)
147 NOTICE of Appearance by Jennifer L. Merritt on behalf of Cindy Gillespie (Merritt, Jennifer) (Entered: 01/22/2018)
148 NOTICE of Appearance by Nicholas Jacob Bronni on behalf of Cindy Gillespie (Bronni, Nicholas) (Entered: 01/24/2018)
149 NOTICE of Appearance by Dylan L. Jacobs on behalf of Cindy Gillespie (Jacobs, Dylan) (Entered: 01/26/2018)
150 MOTION to Stay Preliminary Injunction Briefing by Cindy Gillespie (Baugh, Monty) (Entered: 01/30/2018)

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151 MOTION for Order Motion for Scheduling Order by Cindy Gillespie (Baugh, Monty) (Entered: 01/30/2018)
152 ORDER granting 150 motion to stay preliminary injunction briefing. The Court will set a briefing schedule by separate Order. Signed by Judge Kristine G. Baker on 2/1/2018. (mef) (Entered: 02/01/2018)
153 MOTION to Expedite , MOTION for Discovery () by Jane Does, Planned Parenthood of Arkansas & Eastern Oklahoma Inc (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sandman, Jennifer) (Additional attachment(s) added on 2/2/2018: # 3 Main Document − Correct) (jak). (Entered: 02/01/2018)
154 NOTICE OF DOCKET CORRECTION re 153 MOTION. CORRECTION: The original document was submitted in error (wrong image file). The correct document was added to docket entry 153 based on the attached correspondence. (jak) (Entered: 02/02/2018)
155 RESPONSE in Opposition re 153 MOTION to Expedite MOTION for Discovery filed by Cindy Gillespie. (Jacobs, Dylan) (Entered: 02/02/2018)
156 RESPONSE in Support re 153 MOTION to Expedite MOTION for Discovery filed by Jane Does, Planned Parenthood of Arkansas & Eastern Oklahoma Inc. (Sandman, Jennifer) (Entered: 02/03/2018)
157 ORDER directing Ms. Gillespie to file a response to 153 pending motion for limited expedited discovery; ordering plaintiffs to respond to 151 Ms. Gillespie's motion for scheduling order; and asking the parties, in their responses due on 2/12/2018, to discuss whether they support consolidation of the hearing on the preliminary injunction with the trial on the merits. Signed by Judge Kristine G. Baker on 2/5/2018. (mef) (Entered: 02/05/2018)
158 MOTION to Seal Document by Cindy Gillespie (Jacobs, Dylan) (Entered: 02/12/2018)
159 ORDER granting 158 motion to seal and directing the Clerk of Court to file under seal Exhibits 1, 2, and 3 to defendant's forthcoming motion to decertify the patient class. Signed by Judge Kristine G. Baker on 2/12/2018. (mef) (Entered: 02/12/2018)
160 SEALED DOCUMENT. (fjg) (Entered: 02/12/2018)
161 RESPONSE in Opposition re 153 MOTION to Expedite MOTION for Discovery filed by Cindy Gillespie. (Attachments: # 1 Exhibit 1 − Bronni Letter, # 2 Exhibit 2 − Sandman Letter)(Merritt, Jennifer) (Entered: 02/12/2018)
162 RESPONSE to Motion re 151 MOTION for Order Motion for Scheduling Order filed by Jane Does, Planned Parenthood of Arkansas & Eastern Oklahoma Inc. (Sandman, Jennifer) (Entered: 02/12/2018)
163 MOTION to Certify Class Motion to Decertify the Patient Class by Cindy Gillespie (Jacobs, Dylan) (Entered: 02/12/2018)
164 BRIEF IN SUPPORT re 163 Motion to Certify Class Brief in Support of Defendant's Motion to Decertify the Patient Class filed by Cindy Gillespie. (Jacobs, Dylan) (Entered: 02/12/2018)
165 REPLY to Response to Motion re 153 MOTION to Expedite MOTION for Discovery filed by Jane Does, Planned Parenthood of Arkansas & Eastern Oklahoma Inc. (Attachments: # 1 Exhibit)(Sandman, Jennifer) (Entered: 02/20/2018)
166 RESPONSE in Opposition re 163 MOTION to Certify Class Motion to Decertify the Patient Class filed by Jane Does, Planned Parenthood of Arkansas & Eastern Oklahoma Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Sandman, Jennifer) (Entered: 02/26/2018)
167 REPLY to Response to Motion re 163 MOTION to Certify Class Motion to Decertify the Patient Class Defendant's Reply in Further Support of Her Motion to Decertify the Patient Class filed by Cindy Gillespie. (Jacobs, Dylan) (Entered: 03/05/2018)
168 MOTION for Judgment on the Pleadings Motion for Judgment on the Pleadings as to Plaintiffs' Medicaid Act Claim by Cindy Gillespie (Jacobs, Dylan) (Entered: 03/06/2018)

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169 BRIEF IN SUPPORT re 168 Motion for Judgment on the Pleadings Brief in Support of Motion for Judgment on the Pleadings as to Plaintiffs' Medicaid Act Claim filed by Cindy Gillespie. (Jacobs, Dylan) (Entered: 03/06/2018)
170 ORDER denying [153−3] plaintiffs' motion for limited expedited discovery; granting 151 Ms. Gillespie's motion for an initial scheduling order and will issue an initial scheduling order by separate order; lifting the stay on briefing the motion for preliminary injunction; and directing a response to the motion for preliminary injunction is due within 14 days of the entry of this Order, and a reply is due 7 days after the response is filed. A hearing on the motion for preliminary injunction will be scheduled by separate order. Signed by Judge Kristine G. Baker on 3/20/2018. (cmn) (Entered: 03/20/2018)
171 RESPONSE in Opposition re 168 MOTION for Judgment on the Pleadings Motion for Judgment on the Pleadings as to Plaintiffs' Medicaid Act Claim filed by Jane Does, Planned Parenthood of Arkansas & Eastern Oklahoma Inc. (Sandman, Jennifer) (Entered: 03/20/2018)
172 Unopposed MOTION for Extension of Time to File Response/Reply as to 144 MOTION for Preliminary Injunction on Constitutional Claims by Cindy Gillespie (Attachments: # 1 Exhibit Complaint)(Jacobs, Dylan) (Entered: 03/21/2018)
173 ORDER granting 172 Ms. Gillespie's unopposed motion for extension of time. Ms. Gillespie will have up to and including 4/10/2018 to file her response to the plaintiffs' motion for preliminary injunction on their constitutional claims, and the plaintiffs will have up to and including 4/17/2018 to file their reply. Signed by Judge Kristine G. Baker on 3/22/2018. (mef) (Entered: 03/22/2018)
174 REPLY to Response to Motion re 168 MOTION for Judgment on the Pleadings Motion for Judgment on the Pleadings as to Plaintiffs' Medicaid Act Claim filed by Cindy Gillespie. (Jacobs, Dylan) (Entered: 03/27/2018)
175 RESPONSE in Opposition re 144 MOTION for Preliminary Injunction on Constitutional Claims filed by Cindy Gillespie. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4)(Jacobs, Dylan) (Entered: 04/10/2018)
176 Unopposed MOTION for Extension of Time to File Response/Reply by Jane Does, Planned Parenthood of Arkansas & Eastern Oklahoma Inc (Sandman, Jennifer) (Entered: 04/13/2018)
177 ORDER granting 176 plaintiffs' motion to extend the time to file a reply to defendant Cindy Gillespie's response in opposition to plaintiffs' motion for preliminary injunction on their constitutional claims. Plaintiffs shall have up to and including 4/20/2018 to file a reply. Signed by Judge Kristine G. Baker on 4/16/2018. (cmn) (Entered: 04/16/2018)
178 REPLY to Response to Motion re 144 MOTION for Preliminary Injunction on Constitutional Claims filed by All Plaintiffs. (Attachments: # 1 Exhibit A − Second Decl of Holly Ajanel, # 2 Exhibit B − Decl. of Margaret Kelly)(Sandman, Jennifer) (Entered: 04/20/2018)
179 MOTION to Withdraw as Attorney Motion to withdraw Lee Rudofsky as attorney by Cindy Gillespie (Jacobs, Dylan) (Entered: 07/20/2018)
180 ORDER granting 179 motion to withdraw Lee Rudofsky as counsel of record for defendant Cindy Gillespie, in her official capacity; and directing the Clerk to terminate Mr. Rudofsky as counsel of record for Ms. Gillespie. Signed by Judge Kristine G. Baker on 7/24/2018. (cmn) (Entered: 07/24/2018)
181 PRELIMINARY INJUNCTION ORDER denying 144 plaintiffs' motion for preliminary injunction. Signed by Judge Kristine G. Baker on 7/30/2018. (cmn) (Entered: 07/30/2018)
182 INITIAL SCHEDULING ORDER: Rule 26(f) Conference to occur by 10/1/2018; Rule 26(f) Report due by 10/15/2018; Bench Trial set for sometime during the week of 2/3/2020 at 09:00 AM in Little Rock Courtroom # 4C before Judge Kristine G. Baker. Signed at the direction of the Court on 08/03/2018. (tmw) (Entered: 08/03/2018)

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183 ORDER denying 163 ADHS' motion to decertify the Patient Class. Signed by Judge Kristine G. Baker on 9/24/2018. (cmn) (Entered: 09/24/2018)
184 MOTION to Withdraw as Attorney Motion to Withdraw Mindy Pipkin as Attorney by Cindy Gillespie (Jacobs, Dylan) (Entered: 09/24/2018)
185 MOTION to Stay Proceedings by All Plaintiffs (Sandman, Jennifer) (Entered: 10/15/2018)
186 REPORT of Rule 26(f) Planning Meeting by Jane Does, Planned Parenthood of Arkansas & Eastern Oklahoma Inc. (Sandman, Jennifer) (Entered: 10/15/2018)
187 ORDER granting 184 motion to withdraw Mindy D. Pipkin as counsel of record for defendant Cindy Gillespie; and directing the Clerk to terminate Ms. Pipkin as counsel of record for Ms. Gillespie. Signed by Judge Kristine G. Baker on 10/22/2018. (cmn) (Entered: 10/22/2018)
188 RESPONSE in Opposition re 185 MOTION to Stay Proceedings filed by Cindy Gillespie. (Jacobs, Dylan) (Entered: 10/29/2018)
189 REPLY to Response to Motion re 185 MOTION to Stay Proceedings filed by All Plaintiffs. (Sandman, Jennifer) (Entered: 11/05/2018)
190 MOTION to Withdraw as Attorney Relieve Co−Counsel by Cindy Gillespie (Merritt, Jennifer) (Entered: 12/07/2018)
191 RESPONSE to Motion re 185 MOTION to Stay Proceedings Supplemental Response to Motion to Stay filed by Cindy Gillespie. (Attachments: # 1 Exhibit A)(Jacobs, Dylan) (Entered: 12/11/2018)
192 ORDER denying 185 plaintiffs' motion to stay proceedings. Signed by Judge Kristine G. Baker on 3/24/2019. (cmn) (Entered: 03/25/2019)
193 MOTION for Leave to Appear pro hac vice by Christine Clarke. Fee $100 receipt number 0860−3429219. Filed by All Plaintiffs (Attachments: # 1 Affidavit of Christine Clarke)(Brownstein, Bettina) (Entered: 03/26/2019)
194 ORDER granting 190 motion to withdraw Monty Baugh and Mindy Pipkin as counsel of record for defendant Cindy Gillespie, in her official capacity; directing the Clerk to terminate Mr. Baugh and Ms. Pipkin as counsel of record for Ms. Gillespie; and granting 193 motion to admit Christine Clark pro hac vice as counsel of record for plaintiffs in this matter. Signed by Judge Kristine G. Baker on 4/4/2019. (cmn) (Entered: 04/04/2019)
195 FINAL SCHEDULING ORDER: Bench Trial set for sometime during the week of 2/3/2020 at 09:00 AM in Little Rock Courtroom # 4C before Judge Kristine G. Baker. Discovery due by 11/20/2019; Motions due by 12/5/2019; Pretrial Disclosure Sheet due by 1/14/2020; Status Report due by 12/5/2019. Signed at the direction of the Court on 04/30/2019. (tmw) (Entered: 04/30/2019)
196 NOTICE of Appearance by Vincent Moore Wagner on behalf of Cindy Gillespie (Wagner, Vincent) (Entered: 06/07/2019)
197 Joint MOTION to Amend/Correct 9 Order on Motion for Protective Order by Cindy Gillespie (Jacobs, Dylan) (Entered: 06/14/2019)
198 MOTION for Leave to Appear pro hac vice by Burth Lopez. Fee $100 receipt number 0860−3543058. Filed by All Plaintiffs (Attachments: # 1 Affidavit Declaration of Burth Lopez)(Brownstein, Bettina) (Entered: 09/20/2019)
199 ORDER granting 198 motion for admission pro hac vice of attorney Burth Lopez. Mr. Lopez shall appear as counsel for plaintiffs. Signed by Judge Kristine G. Baker on 9/24/2019. (jbh) (Entered: 09/24/2019)
200 MOTION for Extension of Time to Complete Discovery Motion to Extend Discovery Deadlines and Request for a Status Conference by All Plaintiffs (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Lopez, Burth) (Entered: 10/18/2019)
201 ORDER granting 197 the parties' joint motion to amend protective order in the manner described in this Order, requiring plaintiffs to keep confidential any Medicaid provider

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numbers exchanged or disclosed in discovery. All other terms of the protective order remain in full force and effect. Signed by Judge Kristine G. Baker on 10/21/2019. (jbh) (Entered: 10/21/2019)
202 MOTION to Expedite Plaintiffs' Motion for Expedited Briefing and Expedited Consideration of Their Motion to Extend Discovery Deadlines and Motion to Compel Discovery Responses by All Plaintiffs (Attachments: # 1 Exhibit A − Aug. 21, 2019 request for extension of discovery deadlines, # 2 Exhibit B − Oct. 17, 2019 email)(Lopez, Burth) (Entered: 10/25/2019)
203 MOTION to Compel Discovery Responses by All Plaintiffs (Attachments: # 1 Exhibit A − Plaintiffs' First Interrogatories and RFPs, # 2 Exhibit B − May 16, 2019 Email, # 3 Exhibit C − Defendant's Response to Plaintiffs' First Discovery Requests, # 4 Exhibit D − May 24, 2019 Email, # 5 Exhibit E − First Deficiency Letter, # 6 Exhibit F − Sept. 19, 2019 Email, # 7 Exhibit G − Oct. 11, 2019 Email, # 8 Exhibit H − Oct 23, 2019 Email, # 9 Exhibit I − Oct. 23, 2019 Email Response, # 10 Exhibit J − Oct. 17, 2019 Email, # 11 Exhibit K − Defendant's Supplemental Discovery Responses)(Lopez, Burth) (Entered: 10/25/2019)
204 RESPONSE in Opposition re 200 MOTION for Extension of Time to Complete Discovery Motion to Extend Discovery Deadlines and Request for a Status Conference filed by Cindy Gillespie. (Jacobs, Dylan) (Entered: 11/01/2019)
205 REPLY to Response to Motion re 200 MOTION for Extension of Time to Complete Discovery Motion to Extend Discovery Deadlines and Request for a Status Conference filed by All Plaintiffs. (Attachments: # 1 Exhibit A − Nov. 5, 2019 Correspondence, # 2 Exhibit B − AR FOIA Response)(Lopez, Burth) (Entered: 11/05/2019)
206 RESPONSE in Opposition re 203 MOTION to Compel Discovery Responses, 202 MOTION to Expedite Plaintiffs' Motion for Expedited Briefing and Expedited Consideration of Their Motion to Extend Discovery Deadlines and Motion to Compel Discovery Responses filed by Cindy Gillespie. (Attachments: # 1 Exhibit A)(Jacobs, Dylan) (Entered: 11/08/2019)
207 REPLY to Response to Motion re 203 MOTION to Compel Discovery Responses filed by All Plaintiffs. (Attachments: # 1 Exhibit)(Lopez, Burth) (Entered: 11/12/2019)
208 ORDER granting 200 plaintiffs' motion to extend discovery deadlines and request for a status conference; extending the discovery deadline beyond the current deadline of 11/20/2019; and denying as moot 202 plaintiffs' pending motion for expedited briefing and expedited consideration. The Court will set by separate Order a status conference with counsel for the parties. After that status conference, the Court will enter an Amended Final Scheduling Order by separate Order. Signed by Judge Kristine G. Baker on 11/15/2019. (jbh) (Entered: 11/15/2019)
209 ORDER: The Court will conduct a status conference in this matter on Wednesday, 11/20/2019, at 10:30 a.m. in Little Rock, Arkansas in Courtroom 4C. The parties and counsel may attend this status conference in−person or by telephone; the Court has no preference. Signed by Judge Kristine G. Baker on 11/18/2019. (jbh) (Entered: 11/18/2019)
210 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) MINUTES for proceedings held before Judge Kristine G. Baker: STATUS CONFERENCE held on 11/20/2019. The parties convened via telephone to discuss status and options to proceed; The Court took the matters under advisement and will issue a written ruling. (Present for plaintiffs: Bettina Brownstein, Burth Lopez, Christine Clarke and Jennifer Sandman; Present for defendant: David Sterling, Dylan Jacobs, Nicholas Bronni and Vincent Wagner) (Court Reporter Elaine Hinson) (tmw) (Entered: 11/20/2019)
211 TRANSCRIPT of Telephone Conference held on 11/20/2019, before Judge Kristine G. Baker. Court Reporter Elaine Hinson. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 11/29/2019. Redaction Request due 12/13/2019. Redacted Transcript Deadline set for 12/23/2019. Release of Transcript Restriction set for

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2/20/2020. (fcd) (Entered: 11/25/2019)
212 ORDER extending by six months the discovery deadline; and setting the new discovery deadline as 5/20/2020. The Court will issue a new trial date and amended final scheduling order by separate order. Absent good cause shown, in that amended final scheduling order, the Court will not set new deadlines for adding parties or amending the pleadings in this case or for expert disclosures or expert reports. The Court has under advisement the 203 pending motion to compel. The Court will conduct a status conference at 2:00 p.m. on Thursday, 12/4/2019, regarding the motion to compel and discovery. Signed by Judge Kristine G. Baker on 11/25/2019. (jbh) (Entered: 11/25/2019)
213 ORDER: The Court will conduct a status conference in this matter on Wednesday, 12/4/2019, at 2:00 p.m. in Little Rock Courtroom 4C. The parties and counsel may attend this status conference in−person or by telephone. Signed by Judge Kristine G. Baker on 11/26/2019. (jbh) (Entered: 11/26/2019)
214 ORDER cancelling the status report hearing set for 12/4/2019, at 2:00 p.m. The Court has the pending motions, and the parties' submissions, under advisement. Signed by Judge Kristine G. Baker on 12/4/2019. (jbh) (Entered: 12/04/2019)
215 STATUS REPORT Joint Status Report by Jane Does, Planned Parenthood of Arkansas & Eastern Oklahoma Inc. (Lopez, Burth) (Entered: 12/19/2019)
216 MOTION for Protective Order Motion for an Expanded Protective Order and Memorandum of Law in Support by All Plaintiffs (Attachments: # 1 Exhibit A − Proposed Protective Order, # 2 Exhibit B − Defs.' Discovery Requests, # 3 Exhibit C − Jegley Order, # 4 Exhibit D − LRFP Order, # 5 Exhibit E − WWH Order, # 6 Exhibit F − Comprehensive Health of PPGP Order, # 7 Exhibit G − Adams & Boyle Order, # 8 Exhibit H − PPKM Order)(Lopez, Burth) (Entered: 01/27/2020)
217 RESPONSE in Opposition re 216 MOTION for Protective Order Motion for an Expanded Protective Order and Memorandum of Law in Support filed by Cindy Gillespie. (Attachments: # 1 Exhibit A)(Jacobs, Dylan) (Entered: 02/10/2020)
218 REPLY to Response to Motion re 216 MOTION for Protective Order Motion for an Expanded Protective Order and Memorandum of Law in Support filed by All Plaintiffs. (Lopez, Burth) (Entered: 02/17/2020)
219 Joint MOTION to Stay by All Plaintiffs (Clarke, Christine) (Entered: 03/20/2020)
220 ORDER granting 219 joint motion to stay proceedings; and directing the parties to submit a joint update to this Court on 5/20/2020, advising the Court whether discovery can reasonably proceed or whether a further stay is necessary. Signed by Judge Kristine G. Baker on 3/20/2020. (jbh) (Entered: 03/20/2020)
221 Joint MOTION to Stay by All Plaintiffs (Clarke, Christine) (Entered: 05/15/2020)
222 ORDER granting 221 joint motion to further stay proceedings; and directing the parties to submit a joint update on or before Monday, 7/20/2020, advising the Court as to whether discovery can reasonably proceed at that time or whether a further stay is necessary. Signed by Judge Kristine G. Baker on 5/15/2020. (jbh) (Entered: 05/15/2020)
223 Joint MOTION to Stay by All Plaintiffs (Clarke, Christine) (Entered: 07/15/2020)
224 ORDER granting 223 joint motion to further stay proceedings; and directing the parties to submit a joint update on or before Monday, 9/21/2020, advising the Court as to whether discovery can reasonably proceed at that time or whether a further stay is necessary. Signed by Judge Kristine G. Baker on 7/15/2020. (jbh) (Entered: 07/15/2020)
225 MOTION to Withdraw as Attorney by All Plaintiffs (Lopez, Burth) (Entered: 07/21/2020)
226 ORDER granting 225 motion for leave to withdraw as counsel; and directing the Clerk of the Court to terminate Mr. Lopez as counsel of record for plaintiffs. Signed by Judge Kristine G. Baker on 7/21/2020. (jbh) (Entered: 07/21/2020)