Case: Texas Medical Providers Performing Abortion Services v. Lakey

1:11-cv-00486 | U.S. District Court for the Western District of Texas

Filed Date: June 13, 2011

Closed Date: Feb. 6, 2012

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Case Summary

This is a case challenging Texas abortion restrictions requiring physicians to show patients seeking abortions their sonogram images and play the sound of the fetal heartbeat as part of the informed-consent process. On June 13, 2011, a group of Texas abortion providers filed this class-action lawsuit in the U.S. District Court for the Western District of Texas. The plaintiffs, represented by the Center for Reproductive Rights, sued the Commissioner of the Texas Department of State Health Services and the Executive Director of the Texas Medical Board in their official capacities, as well as the County Attorney for Travis County in his official capacity and as the representative of a class of all Texas county and district attorneys with the authority to prosecute abortion providers. The plaintiffs sued under 42 U.S.C. § 1983 and sought declaratory and injunctive relief. The plaintiffs claimed the amendment was unconstitutionally vague, violated providers’ First Amendment rights, and violated the equal protection clause by engaging in sex discrimination and discrimination against abortion providers. The case was assigned to Judge Sam Sparks.

In May 2011, the governor signed Texas House Bill No. 15 amending Texas’s “Woman’s Right to Know Act.” As part of the informed-consent process, the amendment required abortion providers to perform a sonogram on patients at least 24 hours before providing an abortion. One provision of the amendment allowed patients to choose not to view the sonogram image or listen to the heartbeat, while another provision stated that physicians could not obtain informed consent without showing patients the sonogram image, explaining the image, and playing the sound of the heartbeat. Finally, the amendment imposed strict liability, criminal penalties, and a mandatory penalty of the nonrenewal of a medical license on any provider who failed to comply with the law.

On July 5, 2011, the defendants filed an answer to the complaint. The plaintiffs then filed an amended complaint on July 21, 2011, adding claims that the amendment violated patients’ due process right to bodily integrity by subjecting them to unnecessary sonograms and that a provision permitting random, warrantless searches of abortion facilities violated providers’ right to be free from unreasonable searches and seizures under the Fourth Amendment. The defendants filed an answer to the amended complaint on August 5, 2011, and simultaneously filed a counterclaim requesting a judgment declaring the amendment constitutional.

Meanwhile, on June 17, 2011, the plaintiffs filed a motion to certify the plaintiff class and proposed that the class consist of “all Texas medical providers performing abortion services currently and/or in the future, asserting claims on behalf of themselves and their patients seeking abortions.” On July 22, 2011, the plaintiffs also filed a motion to certify the defendant class and proposed the class consist of “all county and district attorneys in the state of Texas with authority to prosecute misdemeanors.” Judge Sparks granted the plaintiffs’ motion to certify both the classes, as proposed, on August 30, 2011.

Prior, on June 30, 2011, while their motion for class certification was pending, the plaintiffs also filed a motion for a preliminary injunction. Judge Sparks granted the motion in part and denied it in part on August 30, 2011, enjoining Texas from penalizing abortion providers for failing to comply with the amendment’s sonogram requirements. First, Judge Sparks dismissed the plaintiffs’ equal protection arguments. Second, he held that several of the amendment’s provisions were unconstitutionally vague, including the conflicting provisions allowing women to forego the sonogram while stating that informed consent could not be given without the sonogram. Finally, Judge Sparks held that the provisions compelling providers to show patients their sonogram images, verbally explain the images, and play the sound of the fetal heartbeat violated the providers’ First Amendment right to free speech, because the provisions were medically unnecessary and did not further a compelling government interest.

The same day, the defendants filed an appeal of the order granting the preliminary injunction in the U.S. Court of Appeals for the Fifth Circuit. In the district court, the defendants also filed a motion to stay the preliminary injunction pending appeal on September 12, 2011, which Judge Sparks denied.

On January 10, 2012, Chief Judge Edith H. Jones, Judge Patrick E. Higginbotham, and Judge Jerry E. Smith of the Fifth Circuit vacated the District Court’s preliminary injunction. 667 F.3d 570. The Fifth Circuit held that the amendment did not violate physicians’ First Amendment rights because the required disclosures were truthful and furthered the legitimate government interest in protecting the unborn and reducing the risk that a woman might regret making an uninformed choice concerning abortion. The Fifth Circuit also held that the amendment was not unconstitutionally vague and that there was no conflict between patients’ right to elect not to view their sonogram images and the requirement that physicians show all patients their sonogram images, because patients were free to look away from the images the physicians displayed.

Meanwhile, in the District Court, the defendants filed a motion for summary judgment on November 7, 2011, and the plaintiffs filed a motion for summary judgment on December 21, 2011. Following the Fifth Circuit’s opinion, on February 6, 2012, the plaintiffs filed a second amended complaint dropping the equal protection claims.

On February 6, 2012, Judge Sparks issued an opinion denouncing Texas’ amendment as unconstitutional and critiquing the Fifth Circuit’s reasoning, while ultimately deferring to the Fifth Circuit’s judgment by granting the defendants’ motion for summary judgment. 2012 WL 373132.

The defendants then filed a motion for attorneys’ fees on February 21, 2012. Judge Sparks denied the motion on March 28, 2012, holding that none of the plaintiffs’ claims were frivolous or unreasonable and that awarding attorneys’ fees to the defendants might have a chilling effect on civil rights litigation in the future. The defendants appealed the order on April 3, 2012, and the Fifth Circuit affirmed the District Court’s judgment on March 28, 2013. The case is now closed.

	Document
1 1:11-cv-00486	Class Action Complaint	June 13, 2011	June 13, 2011 Complaint
68 1:11-cv-00486	Order	Aug. 30, 2011	Aug. 30, 2011 Order/Opinion 806 F.Supp.2d 806
11-50814	[Untitled] U.S. Court of Appeals for the Fifth Circuit	Jan. 10, 2012	Jan. 10, 2012 Order/Opinion 667 F.3d 667
122 1:11-cv-00486	Order	Feb. 6, 2012	Feb. 6, 2012 Order/Opinion 2012 WL 2012
133 1:11-cv-00486	Second Amended Class Action Complaint	Feb. 6, 2012	Feb. 6, 2012 Complaint
129 1:11-cv-00486	Order	March 28, 2012	March 28, 2012 Order/Opinion

Title	Description		External URL Date / External URL
Texas Medical Providers Performing Abortion Services v. Lakey Center for Reproductive Rights	The Center challenged a newly enacted Texas law that prohibits a woman from getting an abortion unless her physician first performs an ultrasound, places the ultrasound images in her view, describes …	Feb. 10, 2012	Feb. 10, 2012 https://reproductiverights.org/...
Texas Medical Providers Performing Abortion Services v. Lakey Center for Reproductive Rights	The Center challenged a newly enacted Texas law that prohibits a woman from getting an abortion unless her physician first performs an ultrasound, places the ultrasound images in her view, describes …	June 13, 2011	June 13, 2011 https://reproductiverights.org/...

ECF Number	Description	Date	Link Date / Link
1	COMPLAINT ( Filing fee $ 350 receipt number 0542-3699135), filed by Texas Medical Providers Performing Abortion Services, a class represented by Metropolitan OB-GYN, P.A., Alan Braid. (Attachments: # 1 Exhibit 1)(Grigg, Richard) (Entered: 06/13/2011) 1 Exhibit 1 View on RECAP	June 13, 2011	June 13, 2011 Clearinghouse
2	JS44 (Civil Cover Sheet) submitted by Alan Braid, Texas Medical Providers Performing Abortion Services, a class represented by Metropolitan OB-GYN, P.A.. (Grigg, Richard) (Entered: 06/13/2011)	June 13, 2011	June 13, 2011 PACER
3	Certificate of Interested Parties by Alan Braid, Texas Medical Providers Performing Abortion Services, a class represented by Metropolitan OB-GYN, P.A.. (Grigg, Richard) (Entered: 06/13/2011)	June 13, 2011	June 13, 2011 PACER
4	REQUEST FOR ISSUANCE OF SUMMONS by Alan Braid, Texas Medical Providers Performing Abortion Services, a class represented by Metropolitan OB-GYN, P.A.. (Grigg, Richard) (Entered: 06/13/2011)	June 13, 2011	June 13, 2011 PACER
	Case Assigned to Judge Sam Sparks. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (tdk, )	June 13, 2011	June 13, 2011 PACER
5	MOTION to Appear Pro Hac Vice by Richard Alan Grigg for Bebe Jill Anderson ( Filing fee $ 25 receipt number 0542-3703149) by on behalf of Alan Braid, M.D., Texas Medical Providers Performing Abortion Services. (Attachments: # 1 Proposed Order)(Grigg, Richard) (Entered: 06/14/2011)	June 14, 2011	June 14, 2011 PACER
6	MOTION to Appear Pro Hac Vice by Richard Alan Grigg for Bonnie Scott Jones ( Filing fee $ 25 receipt number 0542-3703201) by on behalf of Alan Braid, M.D., Texas Medical Providers Performing Abortion Services. (Attachments: # 1 Proposed Order)(Grigg, Richard) (Entered: 06/14/2011)	June 14, 2011	June 14, 2011 PACER
7	MOTION to Appear Pro Hac Vice by Richard Alan Grigg for J. Alexander Lawrence ( Filing fee $ 25 receipt number 0542-3703225) by on behalf of Alan Braid, M.D., Texas Medical Providers Performing Abortion Services. (Attachments: # 1 Proposed Order)(Grigg, Richard) (Entered: 06/14/2011)	June 14, 2011	June 14, 2011 PACER
8	Summons Issued as to David Escamilla, David Lakey, M.D., Mari Robinson. (tdk, ) (Entered: 06/14/2011)	June 14, 2011	June 14, 2011 PACER
9	Letter/Correspondence to counsel Susan Hays, Bebe Anderson, Bonnie Jones, Jamie Levitt, and J. Alexander Lawrence regarding non-admission status. (tdk, ) (Entered: 06/14/2011)	June 14, 2011	June 14, 2011 PACER
	Text Order GRANTING 7 Motion to Appear Pro Hac Vice for J. Alexander Lawrence. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Judge Sam Sparks. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ldm)	June 14, 2011	June 14, 2011 PACER
	Text Order GRANTING 6 Motion to Appear Pro Hac Vice for Bonnie Scott Jones. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Judge Sam Sparks. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ldm)	June 14, 2011	June 14, 2011 PACER
	Text Order GRANTING 5 Motion to Appear Pro Hac Vice for Bebe Jill Anderson. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Judge Sam Sparks. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ldm)	June 14, 2011	June 14, 2011 PACER
10	MOTION to Certify Class by Alan Braid, M.D., Texas Medical Providers Performing Abortion Services. (Attachments: # 1 Appendix, # 2 Exhibit 1 to Appendix, # 3 Exhibit 2 to Appendix, # 4 Exhibit 3 to Appendix, # 5 Proposed Order, # 6 Certificate of Service)(Grigg, Richard) (Entered: 06/17/2011)	June 17, 2011	June 17, 2011 PACER
11	MOTION to Appear Pro Hac Vice by Richard Alan Grigg for Jamie A. Levitt ( Filing fee $ 25 receipt number 0542-3722145) by on behalf of Alan Braid, M.D., Texas Medical Providers Performing Abortion Services. (Attachments: # 1 Proposed Order)(Grigg, Richard) (Entered: 06/21/2011)	June 21, 2011	June 21, 2011 PACER
12	SUMMONS Returned Executed by Texas Medical Providers Performing Abortion Services, Alan Braid, M.D.. David Escamilla served on 6/14/2011, answer due 7/5/2011. (Grigg, Richard) (Entered: 06/21/2011)	June 21, 2011	June 21, 2011 PACER
13	SUMMONS Returned Executed by Texas Medical Providers Performing Abortion Services, Alan Braid, M.D.. David Lakey, M.D. served on 6/14/2011, answer due 7/5/2011. (Grigg, Richard) (Entered: 06/21/2011)	June 21, 2011	June 21, 2011 PACER
14	SUMMONS Returned Executed by Texas Medical Providers Performing Abortion Services, Alan Braid, M.D.. Mari Robinson served on 6/14/2011, answer due 7/5/2011. (Grigg, Richard) (Entered: 06/21/2011)	June 21, 2011	June 21, 2011 PACER
15	ORDER GRANTING 11 Motion to Appear Pro Hac Vice as to Jamie Levitt. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Sam Sparks. (dm, ) (Entered: 06/22/2011)	June 22, 2011	June 22, 2011 PACER
16	*Document filed with wrong attachment, it will be re-filed.* MOTION for Preliminary Injunction by Alan Braid, M.D., Texas Medical Providers Performing Abortion Services. (Attachments: # 1 Appendix of Facts Supporting Plaintiffs' Motion for Preliminary Injunction, # 2 Declaration of David A. Grimes, M.D., # 3 Declaration of Anne Drapkin Lyerly, M.D., M.A., # 4 Declaration of Alan Braid, M.D., # 5 Proposed Order, # 6 Certificate of Service)(Grigg, Richard) Modified on 7/1/2011 (dm, ). (Entered: 06/30/2011)	June 30, 2011	June 30, 2011 PACER
17	NOTICE of Attorney Appearance by Arthur C. D'Andrea on behalf of David Lakey, M.D., Mari Robinson (D'Andrea, Arthur) (Entered: 06/30/2011)	June 30, 2011	June 30, 2011 PACER
18	Amended MOTION for Preliminary Injunction by Alan Braid, M.D., Texas Medical Providers Performing Abortion Services. (Attachments: # 1 Appendix of Facts Supporting Plaintiffs' Motion for Preliminary Injunction, # 2 Declaration of David A. Grimes, M.D., # 3 Declaration of Anne Drapkin Lylerly, M.D., M.A., # 4 Declaration of Alan Braid, M.D., # 5 Proposed Order, # 6 Certificate of Service)(Grigg, Richard) (Entered: 06/30/2011) 1 Appendix of Facts Supporting Plaintiffs' Motion for Preliminary Injunction View on RECAP 2 Declaration of David A. Grimes, M.D. View on PACER 3 Declaration of Anne Drapkin Lylerly, M.D., M.A. View on PACER 4 Declaration of Alan Braid, M.D. View on PACER 5 Proposed Order View on PACER 6 Certificate of Service View on PACER	June 30, 2011	June 30, 2011 RECAP
19	ORDER Setting Hearing on 18 Amended MOTION for Preliminary Injunction : Motion Hearing set for 7/6/2011 10:00 AM before Judge Sam Sparks.. Signed by Judge Sam Sparks. (dm, ) (Entered: 07/01/2011)	July 1, 2011	July 1, 2011 PACER
20	RESPONSE to Motion, filed by David Lakey, M.D., Mari Robinson, re 10 MOTION to Certify Class filed by Plaintiff Texas Medical Providers Performing Abortion Services, Plaintiff Alan Braid, M.D. (Mitchell, Jonathan) (Entered: 07/01/2011)	July 1, 2011	July 1, 2011 PACER
21	NOTICE of Attorney Appearance by Jonathan Franklin Mitchell on behalf of David Lakey, M.D., Mari Robinson (Mitchell, Jonathan) (Entered: 07/01/2011)	July 1, 2011	July 1, 2011 PACER
22	MOTION to Dismiss DEFENDANT TRAVIS COUNTY ATTORNEY DAVID ESCAMILLA'S MOTION TO DISMISS PURSUANT TO RULE 12(b)(1) and 12(b)(6) by David Escamilla. (Casas, Elaine) (Entered: 07/01/2011)	July 1, 2011	July 1, 2011 PACER
23	REPLY to Response to Motion, filed by Alan Braid, M.D., Texas Medical Providers Performing Abortion Services, re 10 MOTION to Certify Class filed by Plaintiff Texas Medical Providers Performing Abortion Services, Plaintiff Alan Braid, M.D. (Attachments: # 1 Exhibit A, # 2 Certificate of Service)(Grigg, Richard) (Entered: 07/05/2011)	July 5, 2011	July 5, 2011 PACER
24	ANSWER to 1 Complaint by David Lakey, M.D., Mari Robinson.(Perkins, Daniel) (Entered: 07/05/2011)	July 5, 2011	July 5, 2011 RECAP
25	MOTION to Continue Preliminary Injunction Hearing- EMERGENCY by David Lakey, M.D., Mari Robinson. (Attachments: # 1 Proposed Order)(Perkins, Daniel) (Entered: 07/05/2011)	July 5, 2011	July 5, 2011 PACER
26	MOTION to Strike the Declaration of David A. Grimes, MD by David Lakey, M.D., Mari Robinson. (Attachments: # 1 Proposed Order)(Perkins, Daniel) (Entered: 07/05/2011)	July 5, 2011	July 5, 2011 PACER
27	MOTION to Strike the Declaration of Ann Drapkin Lyerly, MD by David Lakey, M.D., Mari Robinson. (Attachments: # 1 Proposed Order)(Perkins, Daniel) (Entered: 07/05/2011)	July 5, 2011	July 5, 2011 PACER
28	MOTION to Strike the Declaration of Alan Braid, MD by David Lakey, M.D., Mari Robinson. (Attachments: # 1 Proposed Order)(Perkins, Daniel) (Entered: 07/05/2011)	July 5, 2011	July 5, 2011 PACER
29	Response in Opposition to Motion, filed by David Lakey, M.D., Mari Robinson, re 18 Amended MOTION for Preliminary Injunction filed by Plaintiff Texas Medical Providers Performing Abortion Services, Plaintiff Alan Braid, M.D. (Attachments: # 1 Proposed Order Denying Motion for Preliminary Injunction)(Perkins, Daniel) (Entered: 07/05/2011)	July 5, 2011	July 5, 2011 PACER
30	ORDER for filing of supplements, briefs and responses regarding evidence, arguments and severability. Signed by Judge Sam Sparks. (klw, ) (Entered: 07/06/2011)	July 6, 2011	July 6, 2011 PACER
31	Minute Entry for proceedings held before Judge Sam Sparks: Motion Hearing held on 7/6/2011 re 18 Amended MOTION for Preliminary Injunction filed by Texas Medical Providers Performing Abortion Services, Alan Braid, M.D. Motion taken under advisement. Written order forthcoming. (Minute entry documents are not available electronically.). (Court Reporter Lily Reznik.)(klw, ) (Entered: 07/07/2011)	July 6, 2011	July 6, 2011 PACER
32	Memorandum in Opposition to Motion, filed by Alan Braid, M.D., Texas Medical Providers Performing Abortion Services, re 22 MOTION to Dismiss DEFENDANT TRAVIS COUNTY ATTORNEY DAVID ESCAMILLA'S MOTION TO DISMISS PURSUANT TO RULE 12(b)(1) and 12(b)(6) filed by Defendant David Escamilla (Attachments: # 1 Certificate of Service)(Grigg, Richard) (Entered: 07/15/2011)	July 15, 2011	July 15, 2011 PACER
33	DEFICIENCY NOTICE: re 32 Memorandum in Opposition to Motion. (dm, ) (Entered: 07/15/2011)	July 15, 2011	July 15, 2011 PACER
34	ATTACHMENT Proposed Order to 32 Memorandum in Opposition to Motion, by Alan Braid, M.D., Texas Medical Providers Performing Abortion Services. (Grigg, Richard) (Entered: 07/15/2011)	July 15, 2011	July 15, 2011 PACER
35	Transcript filed of Proceedings held on July 6, 2011, Proceedings Transcribed: Motion for Preliminary Injunction. Court Reporter/Transcriber: Lily I. Reznik, Telephone number: 512-916-5564. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 8/10/2011. Redacted Transcript Deadline set for 8/22/2011. Release of Transcript Restriction set for 10/18/2011. (Reznik, Lily) (Entered: 07/20/2011)	July 20, 2011	July 20, 2011 PACER
36	Response in Opposition to Motion, filed by Alan Braid, M.D., Texas Medical Providers Performing Abortion Services, re 27 MOTION to Strike the Declaration of Ann Drapkin Lyerly, MD filed by Defendant Mari Robinson, Defendant David Lakey, M.D. (Attachments: # 1 Proposed Order, # 2 Certificate of Service)(Grigg, Richard) (Entered: 07/21/2011)	July 21, 2011	July 21, 2011 PACER

Case: Texas Medical Providers Performing Abortion Services v. Lakey

1:11-cv-00486 | U.S. District Court for the Western District of Texas

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