Reproductive Health Svcs v. Parson ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
Nos. 19-2882, 19-3134
___________________________
Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc.,
et al
lllllllllllllllllllllPlaintiffs - Appellees
v.
Governor Michael L. Parson, et al
lllllllllllllllllllllDefendants - Appellants
____________
Appeal from United States District Court
for the Western District of Missouri
____________
Submitted: September 24, 2020
Filed: June 9, 2021
____________
Before KELLY, WOLLMAN, and STRAS, Circuit Judges.
____________
KELLY, Circuit Judge.
Missouri Governor Michael L. Parson and various other state officials
(collectively, Missouri) appeal the district court’s1 grant of a preliminary injunction
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
enjoining the enforcement of several abortion-related provisions of Missouri House
Bill 126 (HB 126). We affirm.
I.
Reproductive Health Services of Planned Parenthood of the St. Louis Region
and its Chief Medical Officer Dr. Colleen P. McNicholas (together, RHS) provide
reproductive healthcare—including pre-viability abortions—in St. Louis, Missouri.
On July 30, 2019, RHS filed suit on behalf of themselves, as well as their patients,
physicians, and staff, challenging the constitutionality of several provisions of HB
126. At issue here are the “Gestational Age Provisions,” Mo. Rev. Stat. §§ 188.056-
.058, .375, and the “Down Syndrome Provision,” id. § 188.038, all of which were
scheduled to go into effect on August 28, 2019.
The first Gestational Age Provision provides, in relevant part, that “no abortion
shall be performed or induced upon a woman at eight weeks gestational age or later,
except in cases of medical emergency.” Id. § 188.056.1. Sections 188.057, 188.058,
and 188.375 are nearly identical to this first provision, except that they apply to
abortions performed at or after 14, 18, and 20 weeks gestational age, respectively. See
id. §§ 188.057-.058, .375. A provider who violates any of the Gestational Age
Provisions faces criminal prosecution and professional discipline. Id. §§ 188.056-
.058, .375.
The Down Syndrome Provision prohibits abortions if the provider “knows that
the woman is seeking the abortion solely because of a prenatal diagnosis, test, or
screening indicating Down [s]yndrome or the potential of Down [s]yndrome in an
unborn child.” Id. § 188.038.2.2 A provider who violates the Down Syndrome
2
A different section of HB 126 requires “the physician who performed or
induced the abortion” to complete “[a]n individual report for each abortion performed
-2-
Provision is subject to a number of civil penalties, including professional discipline.
Id. § 188.038.4.
RHS filed a motion for preliminary injunction, asserting that these provisions
would effectively prohibit RHS from providing pre-viability abortion care in
Missouri. The district court determined that both the Gestational Age Provisions and
the Down Syndrome Provision banned—rather than merely regulated—pre-viability
abortions and found that RHS was “highly likely” to succeed on the merits as to all
these provisions.
The district court then found that the balance of equities favored a preliminary
injunction as to the Gestational Age Provisions, but not the Down Syndrome
Provision. The court explained that, in contrast to the Gestational Age Provisions, the
record did not show that enforcement of the Down Syndrome Provision would
actually harm anyone in the months leading up to final judgment. Missouri appealed.3
In the meantime, RHS filed a motion for reconsideration (or in the alternative, a
renewed motion for preliminary injunction) of the district court’s denial of injunctive
or induced upon a woman,” which “shall include . . . a certification that the physician
does not have any knowledge that the woman sought the abortion solely because of
a prenatal diagnosis, test, or screening indicating Down [s]yndrome or the potential
of Down [s]yndrome in the unborn child . . . .” Id. § 188.052.1.
3
Missouri also sought a partial stay of the district court’s order—insofar as the
order temporarily protects abortions performed at 20 weeks gestational age or
later—pending appeal. The district court denied Missouri’s request. Finding that the
requested partial stay would effectively bar about two abortions per week pending
litigation, the district court determined that it would “gravely affect[] the lives and
family situation of a few pregnant women, who would be choosing abortions during
the last available week or two before viability.” Reprod. Health Servs. of Planned
Parenthood of St. Louis Region, Inc. v. Parson, 2019 WL 4467658, at *2 (W.D. Mo.
Sept. 18, 2019). The district court’s order denying Missouri a partial stay is not on
appeal here.
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relief as to the Down Syndrome Provision. In support, RHS submitted additional
evidence—namely, a supplemental declaration from Dr. McNicholas discussing, in
part, three patients she treated in the preceding 12 months who sought abortions after
receiving a fetal diagnosis of Down syndrome.
The district court granted RHS’s motion for reconsideration and modified its
preliminary injunction to include the Down Syndrome Provision. Both orders
granting preliminary injunctive relief are now before this court. See Reprod. Health
Servs. of Planned Parenthood of St. Louis Region, Inc. v. Parson (RHS I), 389 F.
Supp. 3d 631 (W.D. Mo. 2019); Reprod. Health Servs. of Planned Parenthood of St.
Louis Region, Inc. v. Parson (RHS II), 408 F. Supp. 3d 1049 (W.D. Mo. 2019).
II.
A.
As a preliminary matter, Missouri argues that RHS lacks both individual and
third-party standing. To establish standing under Article III of the U.S. Constitution,
a plaintiff must show “(1) injury in fact, (2) a causal connection between that injury
and the challenged conduct, and (3) the likelihood that a favorable decision by the
court will redress the alleged injury.” Young Am. Corp. v. Affiliated Comput. Servs.
(ACS), Inc., 424 F.3d 840, 843 (8th Cir. 2005) (citing Lujan v. Defs. of Wildlife, 504
U.S. 555, 560-61 (1992)). But as RHS points out, “[e]ven in cases in which the
plaintiff sues to enforce another person’s rights, the injury-in-fact requirement turns
on the plaintiff’s personal stake in the controversy.” This is because Article III
requires plaintiffs to have a “sufficiently concrete interest in the outcome of [the] suit
to make it a case or controversy.” Sec’y of State of Md. v. Joseph H. Munson Co.,
467 U.S. 947, 955 n.5 (1984) (alteration in original) (quoting Singleton v. Wulff, 428
U.S. 106, 112 (1976)). Generally, physicians have Article III standing to challenge
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abortion laws that subject them to governmental sanctions. See, e.g., Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 903-04 (1992) (plurality opinion); Doe
v. Bolton, 410 U.S. 179, 188 (1973).
Here, the Gestational Age Provisions and the Down Syndrome Provision
directly target physician conduct. Because these provisions put physicians at risk of
civil and criminal sanctions, RHS has the requisite personal stake to establish
individual standing under Article III. Moreover, RHS also has standing to sue on
behalf of its patients. See June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2118-19
(2020) (plurality opinion). The Supreme Court has “generally permitted plaintiffs to
assert third-party rights in cases where the enforcement of the challenged restriction
against the litigant would result indirectly in the violation of third parties’ rights.” Id.(cleaned up). This is in part because the “‘threatened imposition of governmental
sanctions’ for noncompliance . . . assures us that the plaintiffs have every incentive
to ‘resist efforts at restricting their operations by acting as advocates of the rights of
third parties who seek access to their market or function.’” Id. at 2119 (quoting Craig
v. Boren, 429 U.S. 190, 195 (1976)); see also Singleton, 428 U.S. at 117 (explaining
that abortion providers can also show third-party standing based on the “closeness of
[their] relationship” with their patients, as well as on the risk of “imminent mootness”
that might pose an obstacle to pregnant patients bringing their own claims). Indeed,
the Supreme Court has recently reminded us that it has “long permitted abortion
providers to invoke the rights of their actual or potential patients in challenges to
abortion-related regulations.” June Med. Servs., 140 S. Ct. at 2118 (plurality
opinion); see Planned Parenthood of Minn., Inc. v. Citizens for Cmty. Action, 558
F.2d 861, 865 n.3 (8th Cir. 1977).4 RHS has standing, and we proceed to the merits.
4
Missouri’s argument that RHS may not file a § 1983 action is premised on its
position that RHS merely asserts the rights of third parties. Given our ruling on
standing, this argument also fails. See Ayotte v. Planned Parenthood of N. New
England, 546 U.S. 320, 324-31 (2006) (evaluating preliminary injunction of an
abortion statute on the merits in lawsuit filed under 42 U.S.C. § 1983); Pediatric
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III.
In deciding whether to issue a preliminary injunction, a district court considers
“(1) the threat of irreparable harm to the moving party, (2) the balance between this
harm and the injury that granting the injunction will inflict on the non-moving party,
(3) the probability that the moving party will succeed on the merits, and (4) the public
interest.” Planned Parenthood of Ark. & E. Okla. v. Jegley, 864 F.3d 953, 957 (8th
Cir. 2017) (citing Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.
1981) (en banc)). Here, the district court properly required RHS to “make a more
rigorous showing that it is likely to prevail on the merits,” a standard required
“[w]here a preliminary injunction is sought to enjoin the implementation of a duly
enacted state statute.” Id. at 957-58 (cleaned up).
We review the district court’s “ultimate decision to grant an injunction . . . for
abuse of discretion, with factual findings examined for clear error and legal
conclusions considered de novo.” Brakebill v. Jaeger, 932 F.3d 671, 676 (8th Cir.
2019). An abuse of discretion occurs “when the district court relies on clearly
erroneous factual findings or an error of law.” Dixon v. City of St. Louis, 950 F.3d
1052, 1055 (8th Cir. 2020). “An abuse of discretion also occurs when a relevant
factor that should have been given significant weight is not considered; when an
irrelevant or improper factor is considered and given significant weight; and when all
Specialty Care, Inc. v. Ark. Dep’t of Hum. Servs., 293 F.3d 472, 478 (8th Cir. 2002)
(affirming district court’s holding that the physician plaintiffs “properly asserted a
federal right enforceable in a § 1983 action,” including on behalf of their patients);
Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 794-95 (7th Cir. 2013)
(affirming availability of third-party standing based on the unquestionable
“justiciability” of precedent cases “filed pursuant to section 1983” and “in which
doctors and abortion clinics were found to have had standing”).
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proper factors, and no improper ones, are considered, but the court, in weighing those
factors, commits a clear error of judgment.” Id. (cleaned up).
A.
In Casey, the Supreme Court reaffirmed the right “to choose to have an abortion
before viability and to obtain it without undue interference from the State.” 505 U.S.
at 846. “Before viability, the State’s interests are not strong enough to support a
prohibition of abortion or the imposition of a substantial obstacle to the woman’s
effective right to elect the procedure.” Id. Missouri does not dispute that fetuses are
considered nonviable at or before 20 weeks gestational age. Thus, the Gestational
Age Provisions prohibiting abortions performed at or after 8, 14, 18, and 20 weeks
gestational age5 apply to pre-viability abortions.
Nevertheless, Missouri argues that the Gestational Age Provisions do not ban
pre-viability abortions, but merely regulate them. This distinction is significant. Bans
on pre-viability abortions are categorically unconstitutional. See id. at 879; Little
Rock Fam. Plan. Servs. v. Rutledge, 984 F.3d 682, 687 (8th Cir. 2021). A restriction,
on the other hand, is permissible so long as it does not impose “a substantial obstacle”
to the right to an abortion. See Casey, 505 U.S. at 877. According to Missouri,
because the Provisions still permit pre-viability abortions before 8 weeks gestational
age, they do not constitute categorical bans.
We have already rejected a similar argument in a nearly identical statute. In
Edwards v. Beck, the Arkansas statute at issue prohibited doctors from performing
abortions at 12 weeks’ gestation (or later) where the fetus has a detectable heartbeat.
5
This is measured as 8, 14, 18, and 20 weeks from the first day of a patient’s
last menstrual cycle.
-7-
786 F.3d 1113, 1115-16 (8th Cir. 2015) (per curiam), cert. denied, 577 U.S. 1102(2016). It was undisputed that “a fetus is generally not viable under 24 weeks’
gestation, is never viable at 12 weeks, and, in all normally-progressing pregnancies,
has a detectable heartbeat by 12 weeks.” Id. at 1116. Like Missouri does now, the
State of Arkansas “trie[d] to frame the law as a regulation, not a ban, on pre-viability
abortions because they are available during the first 12 weeks (and thereafter if within
the exceptions).” Id. at 1117. But because the Arkansas law “prohibit[ed] women
from making the ultimate decision to terminate a pregnancy at a point before
viability,” it constituted a ban, not a regulation. Id.; see also MKB Mgmt. Corp. v.
Stenehjem, 795 F.3d 768, 772-73 (8th Cir. 2015) (invalidating a North Dakota fetal-
heartbeat restriction for the same reasons articulated in Edwards), cert. denied, 136 S.
Ct. 981 (2016).
Relying on Casey, however, Missouri nonetheless contends that the Supreme
Court has previously “upheld prohibitions on certain classes of pre-viability
abortions.” This argument lacks merit. Casey upheld, in part, requirements for
informed consent and for a 24-hour waiting period—it did not uphold a ban on all
abortions performed at certain points of a pre-viability pregnancy. 505 U.S. at 881-
87. Under those requirements, patients could still obtain an abortion at any point
before fetal viability so long as they received certain information 24 hours before
undergoing the procedure. See id. at 881. Here, by contrast, there is nothing an
individual in Missouri could lawfully do to obtain an abortion at or after the applicable
gestational age cut-off.6 See id. at 894-95 (explaining that an abortion statute “must
6
Missouri makes the same argument with respect to Gonzales v. Carhart, 550
U.S. 124 (2007). As in Casey, the statute at issue in Gonzales did not ban pre-
viability abortions; rather, it outlawed one of several medical techniques used for
performing abortions. Gonzales, 550 U.S. at 164-65. The Court concluded that “[t]he
Act [was] not invalid on its face where there [was] uncertainty over whether the
barred procedure is ever necessary to preserve a woman’s health, given the availability
of other abortion procedures that are considered to be safe alternatives.” Id. at 166-
67 (emphasis added).
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be judged by reference to those for whom it is an actual rather than an irrelevant
restriction”). These provisions do not merely have “the incidental effect of making
it more difficult or more expensive to procure an abortion” before viability. Gonzales
v. Carhart, 550 U.S. 124, 158 (2007) (quoting Casey, 505 U.S. at 874); see also id. at
157-58 (reaffirming Casey’s distinction between laws that merely make it more
difficult or expensive to get an abortion and those designed to impermissibly “strike
at the right itself” (quoting Casey, 505 U.S. at 874)). Instead, the Gestational Age
Provisions are bans, and we agree with the district court that RHS is likely to succeed
on the merits of this claim.
B.
Missouri also characterizes the Down Syndrome Provision as a regulation of
pre-viability abortions. But a person who wants a pre-viability abortion “solely
because of a prenatal diagnosis, test, or screening indicating Down [s]yndrome or the
potential of Down [s]yndrome” in the fetus is completely prohibited from getting one.
Mo. Rev. Stat. § 188.038.2. Unlike a regulation, the Down Syndrome Provision does
not set a condition that—upon compliance—makes the performance of a pre-viability
abortion lawful, thus preserving the constitutional right to elect the procedure. Rather,
it bans access to an abortion entirely.
Missouri contends that the word “solely” in the statute performs a regulatory
function because it permits pre-viability abortions when the Down syndrome
diagnosis is only part of the patient’s motivation. But it is well-established that
“[w]hether or not ‘exceptions are made for particular circumstances, a State may not
prohibit any woman from making the ultimate decision to terminate her pregnancy
before viability.’” Edwards, 786 F.3d at 1117 (quoting Casey, 505 U.S. at 879); see
also Stenehjem, 795 F.3d at 772 (explaining that regulations are permissible when
they “do no more than create a structural mechanism by which the State . . . may
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express profound respect for the life of the unborn” (quoting Gonzales, 550 U.S. at
146)). Regulations on pre-viability abortions are permissible provided they do not
constitute an undue burden, see, e.g., Casey, 505 U.S. at 887-94 (rejecting a spousal
notification regulation that posed an undue burden), but bans on pre-viability
abortions are not, see Edwards, 786 F.3d at 1117. Here, the Down Syndrome
Provision would prevent certain patients from getting a pre-viability abortion at all.
That is a ban, not a regulation.7 We agree that RHS is likely to succeed on the merits
of its challenge to the Down Syndrome Provision as well.
C.
We turn now to the remaining Dataphase factors. See Planned Parenthood
Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008) (en banc). “At base,
the question is whether the balance of equities so favors the movant that justice
requires the court to intervene to preserve the status quo until the merits are
determined.” Dataphase, 640 F.2d at 113.
1.
Missouri argues that the threat of irreparable harm from allowing the
Gestational Age Provisions to go into effect is minimal because “the vast majority of
7
Missouri insists that the Supreme Court, by rejecting the argument in Roe that
a woman has an absolute right “to terminate her pregnancy at whatever time, in
whatever way, and for whatever reason she alone chooses,” Roe v. Wade, 410 U.S.
113, 153 (1973), left open the possibility that states may ban pre-viability abortions
sought for prohibited reasons. This argument is unavailing if only because it ignores
“Roe’s central holding,” reaffirmed in Casey, “that viability marks the earliest point
at which the State’s interest in fetal life is constitutionally adequate to justify a
legislative ban on nontherapeutic abortions.” 505 U.S. at 860.
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women already obtain abortions prior to the later benchmarks, and many of the
remaining women undoubtedly could do so by seeking abortions earlier in
pregnancy.” The accuracy of this claim aside, Missouri’s focus on the number of
women unaffected by the Gestational Age Provisions is misplaced. The irreparable
harm analysis turns on the nature of the injury likely to result from the challenged
action, not the number of people who would be injured. See Hinz v. Neuroscience,
Inc., 538 F.3d 979, 986 (8th Cir. 2008) (defining an irreparable injury as an injury “of
such a nature that money damages alone do not provide adequate relief”); see also
Kroupa v. Nielsen, 731 F.3d 813, 820-21 (8th Cir. 2013) (finding the threat of
reputational harm to a single individual to be irreparable). Missouri does not dispute
that the 20-week Gestational Age Provision would prohibit about 100 abortions each
year in Missouri, or that the 8-week Provision would prohibit approximately half of
all reported abortions in the state—and for purposes of the irreparable-harm inquiry,
the prohibition of even a single pre-viability abortion would suffice. The district court
concluded that this was “a significant interference with plaintiffs’ service and the
rights of its prospective patients,” RHS I, 389 F. Supp. 3d at 638, and Missouri offers
nothing to counter that conclusion.
The threat of irreparable harm posed by the Down Syndrome Provision is a
closer call, but nevertheless weighs in favor of RHS. After receiving a supplemental
declaration from Dr. McNicholas, the district court found that “at least a small number
of women” would be affected by this provision. On appeal, Missouri argues that RHS
failed to show that any patients seek abortions based “solely” on prenatal diagnoses,
or potential diagnoses, of Down syndrome.8 But RHS is not required to prove with
certainty the threat of irreparable harm. The standard merely requires “plaintiffs
seeking preliminary relief to demonstrate that irreparable injury is likely in the absence
8
This argument is curious, as it suggests that the Missouri legislature passed a
statute to ban abortions for a category of patients that may not, or at least may not
currently, exist.
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of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
Missouri has offered no evidence to rebut the district court’s finding that “the facts
reviewed show a very high likelihood” of a “Down [s]yndrome motivated abortion
request during litigation.” RHS II, 408 F. Supp. 3d at 1052.
Moreover, Dr. McNicholas said that if the Down Syndrome Provision takes
effect, (1) she and other physicians in Missouri would “face unjustifiable risk in
providing abortion care to patients if [they] know that a patient has had” a prenatal
diagnosis, or a potential diagnosis, of Down [s]yndrome, and (2) as a result, “[i]f a
patient with a Down [s]yndrome diagnosis seeks services . . . [they would] be forced
to turn her away and advise her that she cannot get this care in Missouri.” The district
court did not clearly err in finding that “the most likely scenario, from plaintiffs’
filings, would be the provider’s declining a requested abortion, in terrorem.” Id. at
1053.9 And while the Down Syndrome Provision might impact fewer people than the
9
The dissent characterizes RHS’s claimed harm as a self-inflicted response to
a “speculative risk of sanctions” and disputes the district court’s finding of irreparable
harm on that basis. But the district court did not rely on a “speculative risk.” Rather,
after hearing argument and considering the evidence, the district court made a factual
finding that the Down Syndrome Provision would likely be enforced against RHS
even where the medical provider knows only of “a Down syndrome diagnosis (or even
a strong suspicion based on testing)”—that is, even absent certain knowledge that the
patient is seeking an abortion “solely” because of Down Syndrome. RHS II, 408 F.
Supp. 3d at 1052; cf. Alexis Bailly Vineyard, Inc. v. Harrington, 931 F.3d 774, 778
(8th Cir. 2019) (conducting injury-in-fact inquiry for purposes of standing and
distinguishing Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013), from cases where
the plaintiffs “are themselves the objects of a challenged statute” and thus, “must
merely allege an intention to engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, [where] there exists a credible
threat of prosecution thereunder.” (cleaned up)). RHS’s inability to provide pre-
viability abortions to patients with a fetal diagnosis (or suspected diagnosis) of Down
Syndrome due to a real threat of prosecution results in a likelihood of irreparable harm
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Gestational Age Provisions, the nature of the harm—the inability to obtain an abortion
before fetal viability—is at least equally significant. Thus, the district court concluded
that absent a preliminary injunction, RHS would be unable to provide pre-viability
abortions both to the patients who would otherwise obtain one “solely” on the basis
of a fetal diagnosis of Down [s]yndrome, and to the patients for whom the diagnosis
is only part of the motivation, causing both types of patients to lose “the
Constitutional right to which [they are] currently entitled.” Id. Because the district
court’s carefully considered “finding . . . is plausible in light of the full record,” it
“must govern.” June Med. Servs., 140 S. Ct. at 2128 (plurality opinion) (cleaned up)
(quoting Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017)).
2.
The remaining two factors—the balance of hardships and the public
interest—also weigh in favor of RHS as to the Down Syndrome Provision and the
Gestational Age Provisions.
Missouri contends that “the harms inflicted on the State and innocent third
parties from enjoining the enforcement of HB 126 would be extremely severe”
because an injunction would prevent the State from advancing “compelling state
interests,” including “the loss of innocent human life.” As the district court
appropriately acknowledged, “federal courts should generally be very cautious before
delaying the effect of State laws.” RHS I, 389 F. Supp. 3d at 637. Nonetheless,
Missouri has failed to demonstrate that its policy priorities outweigh (1) the public
to those patients. Though the dissent may “have weighed the evidence differently,”
that is not enough to make the district court’s finding clearly erroneous. Anderson v.
City of Bessemer City, 470 U.S. 564, 574 (1985).
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interest in access to pre-viability abortions, or (2) the significant interference with
RHS’s business and the harm to pregnant individuals who might seek a pre-viability
abortion before final judgment in this case. See RHS II, 408 F. Supp. 3d at 1052
(“[T]he State Defendants have not and are unlikely to belittle the significance of even
a few abortions during litigation . . . .”); cf. Brady v. Nat’l Football League, 640 F.3d
785, 792-94 (8th Cir. 2011) (granting stay of district’s order pending appeal even
where both parties were “likely to suffer some degree of irreparable harm” because
the movant made a “strong showing that it is likely to succeed on the merits”); Little
Rock Fam. Plan. Servs. v. Rutledge, 397 F. Supp. 3d 1213, 1322 (E.D. Ark. 2019)
(finding that enjoining abortion regulations would not irreparably harm State because
“the State has no interest in enforcing laws that are unconstitutional” (citing Hisp. Int.
Coal. of Ala. v. Governor of Ala., 691 F.3d 1236, 1249 (11th Cir. 2012))), aff’d in
relevant part, 984 F.3d 682 (8th Cir. 2021).
For these reasons, we find no error in the district court’s conclusion that the
balance of the equities favors injunctive relief.
IV.
Because the district court did not abuse its discretion in granting preliminary
injunctions enjoining enforcement of the Gestational Age Provisions and the Down
Syndrome Provision, we affirm.
STRAS, Circuit Judge, concurring in the judgment in part and dissenting in part.
A preliminary injunction is hard to get, all the more so when the target is a
democratically enacted state law. See Planned Parenthood Minn., N.D., S.D. v.
Rounds, 530 F.3d 724, 732–33 (8th Cir. 2008) (en banc). The court makes it easy,
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however, by relaxing the rules to let Reproductive Health Services10 have one,
despite its failure to show a “threat of irreparable harm” from Missouri’s Down
Syndrome Provision. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th
Cir. 1981) (en banc). I would apply the usual rules and vacate the injunction.
I.
Under Missouri’s Down Syndrome Provision, no one may perform an
abortion with “know[ledge] that the woman is seeking [one] solely because of a
prenatal diagnosis, test, or screening indicating Down Syndrome or the potential of
Down Syndrome in an unborn child.” Mo. Rev. Stat. § 188.038.2 (emphasis
added). Even before the law took effect, Reproductive Health Services challenged
it and requested a preliminary injunction to prevent state officials from enforcing it
against anyone. See Rodgers v. Bryant, 942 F.3d 451, 460–65 (8th Cir. 2019)
(Stras, J., concurring in part and dissenting in part) (highlighting the problems with
universal injunctions).
The district court initially refused to grant one because Reproductive Health
Services had not shown that “the inability to schedule ‘Down [S]yndrome
abortions’ would be likely to interfere with the abortion rights of real-life women.”
In plain English, the court was saying that there was no evidence that the law
would create any real-world harm, or even a threat of it. It left the door open,
however, if the clinic could come up with something more.
The more came in the form of a supplemental declaration by the clinic’s
chief medical officer, Dr. Colleen McNicholas, who said:
10
“Reproductive Health Services” refers collectively to the plaintiffs in this
case: Reproductive Health Services of Planned Parenthood of the St. Louis Region,
Inc., which claims to be “the only generally available source of abortion care in
Missouri,” and Dr. Colleen P. McNicholas, the facility’s chief medical officer and an
abortion provider.
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[W]ithin approximately the last 12 months, I do specifically recall that
three of the patients that I treated in Missouri had received a fetal
diagnosis of Down [S]yndrome.
...
I also recall that I provided abortion care to numerous other patients
that had received a fetal diagnosis—I would estimate approximately
one to four cases per week over the past year—but cannot recall
whether that diagnosis was Down [S]yndrome or another genetic or
structural anomaly, if I had that information at the time. Because
Down [S]yndrome is the most common fetal aneuploidy, it is likely
that some of these other instances did involve such a diagnosis.
(Footnote omitted). This declaration was enough for the district court to have a
change of heart. Combining the declaration with its own “[c]ommon
understanding,” and taking “judicial notice” of the fact that a woman would
“often” receive “a Down [S]yndrome diagnosis” with “dismay,” the court
“suppose[d] that” some of these women requested an abortion because of it. If so,
the court said, others likely would too, and the law would threaten the ability of
real-life women to get one, creating the threat of irreparable harm that was missing
before. Whether more is required to grant a preliminary injunction is the question
posed to us today. See Rounds, 530 F.3d at 732 n.5.
II.
“A preliminary injunction is an extraordinary remedy . . . .” Watkins Inc. v.
Lewis, 346 F.3d 841, 844 (8th Cir. 2003). In deciding whether one is appropriate,
there are four factors to consider: “(1) the likelihood of the movant’s success on
the merits; (2) the threat of irreparable harm to the movant in the absence of relief;
(3) the balance between that harm and the harm that the relief would cause to the
other litigants; and (4) the public interest.” Id. The problem for Reproductive
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Health Services is that it never established a “threat of irreparable harm, . . . an
independently sufficient ground upon which to deny a preliminary injunction.” Id.A threat of irreparable harm is exactly what it sounds like: “a party must
show that the harm is certain and great and of such imminence that there is a clear
and present need for equitable relief.” Roudachevski v. All-Am. Care Ctrs., Inc.,
648 F.3d 701, 706 (8th Cir. 2011) (quotation marks omitted). This is no small
task. At a minimum, Reproductive Health Services had to show that the law was
likely to prevent a woman from getting an abortion she otherwise would have
lawfully received. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22
(2008) (explaining that “likely” harm is enough).
The Down Syndrome Provision itself tells us how the harm would have to
occur. See Mo. Rev. Stat. § 188.038.2. It is not enough for a woman to receive a
prenatal diagnosis, test, or screening of Down Syndrome (or the potential for it) in
an unborn child and then seek an abortion. Rather, for the statute to apply, (1) the
abortion must be “solely because of” it; and (2) the provider must actually
“know[]” of that fact. Id. Even when providers are aware of a positive Down
Syndrome diagnosis, for example, nothing prevents them from performing an
abortion if they know nothing more. Nor is there any restriction when providers
know that the diagnosis is one reason for the abortion but remain in the dark about
whether there are others.
Contrast these requirements with what Dr. McNicholas said in her
declaration. According to her, she treated three women who “had received a fetal
diagnosis of Down [S]yndrome” over “the last 12 months,” and it was “likely” that
there had been others too. The declaration is conspicuous for what it does not say.
Nowhere does it mention whether any of these women sought an abortion “solely
because of” their prenatal diagnoses, much less whether she knew it at the time.
Id. Both are required for Missouri’s Down Syndrome Provision to apply. See id.-17-
A.
Causation poses the biggest hurdle for Reproductive Health Services. No
matter how many of Dr. McNicholas’s patients have received a positive Down
Syndrome diagnosis—three, three hundred, or three thousand—nothing in her
declaration establishes that any of them sought an abortion solely because of it.
See id.The burden of establishing entitlement to a preliminary injunction always
rests with the party seeking one. See Watkins Inc., 346 F.3d at 844. There may
well be women in Missouri who terminate their pregnancies solely because of a
positive Down Syndrome diagnosis, test, or screening, but the problem is that
Reproductive Health Services has not identified any of them. It instead asks us to
fill in the gaps—basically, guess—that there are women out there who do so,
despite the variety of “health, family, financial, [and] other personal reasons” that
can factor into a decision to terminate a pregnancy. Preterm-Cleveland v.
McCloud, 994 F.3d 512, 526 (6th Cir. 2021) (en banc) (plurality opinion). Courts
are not supposed to grant injunctions based on guesses.
The district court decided to guess anyway. When Dr. McNicholas failed to
say whether any of the women she treated had sought an abortion solely because of
a positive diagnosis, the court used its imagination:
[c]ommon understanding and judicial notice would conclude that a
Down [S]yndrome diagnosis (or even a strong suspicion based on
testing) would often be received with dismay by a pregnant woman
and any family members. If an abortion were sought thereafter, most
of us, including an abortion provider, would suppose that the
diagnosis was the principal cause of the request, and that a jury or
licensing agency would have little trouble with the “sole cause”
requirement for a violation. As the Chief Justice recently observed,
quoting Judge Friendly, “we are not required to exhibit a naiveté from
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which ordinary citizens are free.” Dept. of Commerce v. New York,
139 S. Ct. 2551, 2575 (2019).
(Emphasis added).
These “[c]ommon[ly] underst[ood]” facts are ones that Dr. McNicholas, who
performs hundreds of abortions a year, apparently could not say herself. I find it
hard to believe that the district court knows more about the motivations of her
patients than she does. And this “[c]ommon understanding” is remarkable for
another reason: it assumes that children with Down Syndrome are unwanted. The
irony is not lost on me, for this is the very discrimination that Missouri seeks to
prevent.
Nor does “judicial notice” advance the ball. It applies to obvious
facts—those that are “capable of . . . instant and unquestionable demonstration.”
United States v. Gould, 536 F.2d 216, 219 (8th Cir. 1976) (quoting 9 John Henry
Wigmore, Evidence § 2571, at 548 (1940)). A court may well be able to take
judicial notice of a straightforward fact like the total number of women who live in
Missouri, but not the reasons why some of them have abortions. It is neither
obvious nor “unquestionable,” id., despite what the district court may have
believed, that a woman would receive a positive Down Syndrome diagnosis “with
dismay” and then abort her unborn child solely because of it. These are facts that
must be proven, not “suppose[d].”
B.
Missouri’s Down Syndrome Provision requires more than just an ultra-strict
causal link. The provider actually has to know that the link is present. See Mo.
Rev. Stat. § 188.038.2. Absent knowledge that a Down Syndrome diagnosis is the
sole reason for an abortion, the statute does not apply. See id.-19-
Dr. McNicholas all but admits in her declaration that she has no idea how
many women, if any, seek an abortion solely for that reason. See id. Consider her
words carefully. In addition to never identifying any women who sought abortions
“solely because of” a Down Syndrome diagnosis, she goes on to say that “there is
generally no medical need for [her], or any other physician providing abortion care
at [the clinic,] to know a patient’s reason for seeking an abortion or to distinguish
between one particular fetal diagnosis or another in order to provide
compassionate, safe abortion care.” If there is no medical reason to ask, and no
evidence that the reason for seeking an abortion is routinely volunteered, then the
statute itself cannot create the “threat of irreparable harm.” Dataphase Sys., Inc.,
640 F.2d at 114.
Rather, the harm comes from Dr. McNicholas herself, or at least her view of
the law. She claims that, if she learns of any fetal anomaly, then she will have to
ask whether it is Down Syndrome, just because of the “legal risk” involved. If a
woman then admits that her unborn child has a positive Down Syndrome
diagnosis, Dr. McNicholas will “turn her away and advise her that she cannot get
this care in Missouri.” This statute-made-me-do-it theory would make sense if the
statute made her do it. But it does not.
Nothing in the Down Syndrome Provision requires Dr. McNicholas to ask
about fetal diagnoses or “turn . . . away” women who reveal one. See Mo. Rev.
Stat. § 188.038.2. And with no medical reason to inquire, it is her choice to ask the
question. Then, if a woman answers by saying she has received a positive Down
Syndrome diagnosis, it is again Dr. McNicholas’s choice not to perform the
abortion, assuming the woman has not told her that the diagnosis is the sole reason
she is seeking it. We cannot enjoin a law based on what someone thinks it says,
rather than what it actually says. Cf. Clapper v. Amnesty Int’l USA, 568 U.S. 398,
416 (2013) (explaining that plaintiffs “cannot manufacture standing merely by
inflicting harm on themselves based on their fears of hypothetical future harm that
is not certainly impending”).
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Perhaps what Dr. McNicholas is really trying to say is that the statute will
“chill” her practice, based on the potential legal risk involved, even if she cannot
identify anyone who would be directly affected by it. Cf. Republican Party of
Minn., Third Cong. Dist. v. Klobuchar, 381 F.3d 785, 791–93 (8th Cir. 2004). The
court seems persuaded:
The district court did not clearly err in finding that “the most likely
scenario, from plaintiffs’ filings, would be the provider’s declining a
requested abortion, in terrorem.” . . . Thus, the district court
concluded that absent a preliminary injunction, [the plaintiffs] would
be unable to provide pre-viability abortions both to the patients who
would otherwise obtain one “solely” on the basis of a fetal diagnosis
of Down [S]yndrome, and to the patients for whom the diagnosis is
only part of the motivation, causing both types of patients to lose “the
Constitutional right to which [they are] currently entitled.”
Ante at 12–13 (emphasis added) (second and third brackets in original).
Even if this reasoning sounds plausible, there are obvious problems with it.
A chilling effect can only support a claim if a statute is vague or overbroad, and
even then, only when the challenge is brought under the First Amendment. See 1
Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech §§ 6:4, 6:14 (2021);
see also Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002) (overbreadth);
Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 871–74 (1997) (vagueness). It is
tied to an exceptionally narrow doctrine that allows a party to establish an injury
through the “deterrent effect” a law has on protected expression, but only if the
chill is “objectively reasonable.” Republican Party of Minn., 381 F.3d at 792
(quotation marks omitted); see Balogh v. Lombardi, 816 F.3d 536, 541–42 (8th
Cir. 2016). The problem is that abortions are not protected expression, Missouri’s
Down Syndrome Provision is not vague or overbroad (nor is there any claim that it
is), and the chill is not an objectively reasonable response to the statute. The point
is that Dr. McNicholas cannot threaten to cause the harm herself by overcorrecting
her own behavior to avoid the speculative risk of sanctions. See Salt Lake Trib.
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Publ’g Co. v. AT&T Corp., 320 F.3d 1081, 1106 (10th Cir. 2003) (“We will not
consider a self-inflicted harm to be irreparable . . . .”); Caplan v. Fellheimer Eichen
Braverman & Kaskey, 68 F.3d 828, 839 (3d Cir. 1995) (“If the harm complained of
is self-inflicted, it does not qualify as irreparable.”).
The court’s response brings to mind the classic game of telephone. Dr.
McNicholas said only that some of her patients have had abortions after receiving a
Down Syndrome diagnosis. The district court then put its own gloss on her
statement when it used its “[c]ommon understanding and judicial notice” to
announce that “a jury or licensing agency would have little trouble with the ‘sole
cause’ requirement for a violation” if a woman sought an abortion in those
circumstances. Today, the court adds yet another gloss by declaring that the
district court found “that the Down Syndrome Provision would likely be enforced
against [Reproductive Health Services] . . . even absent certain knowledge that the
patient is seeking an abortion ‘solely’ because of Down Syndrome.” Ante at 13
n.9. Just like in the telephone game, the message in the end bears little
resemblance to the message at the start. Dr. McNicholas did not say any of these
things, and the district court did not actually make a factual finding. Indeed, the
district court relied on “[c]ommon understanding and judicial notice” precisely
because there was no evidence on these points.11 See Fed. R. Civ. P. 52(a)(6)
(providing that the clear-error standard applies to findings “based on oral or other
evidence” (emphasis added)); see also Am. Prairie Constr. Co. v. Hoich, 560 F.3d
780, 796 (8th Cir. 2009) (reviewing a “decision to take judicial notice [of a fact]
for abuse of discretion”).
Reproductive Health Services wants us to fill in the gaps on causation and
knowledge through guesswork. That is not how preliminary injunctions work. It
had the burden to connect all the dots for us, and its failure to do so provides
reason enough to vacate the preliminary injunction. See Watkins Inc., 346 F.3d at
11
As for the district court’s actual findings, I agree that not a single one of them
is clearly erroneous. They simply fall short of justifying a preliminary injunction.
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844 (explaining that failure to establish a threat of irreparable harm “is an
independently sufficient ground upon which to deny a preliminary injunction”).
III.
Nothing in Little Rock Family Planning Services v. Rutledge, 984 F.3d 682(8th Cir. 2021), is to the contrary. In Rutledge, a panel of this court concluded that
the plaintiffs were likely to succeed on the merits of a challenge to a similar
Arkansas statute. See id. at 688–90. Even if Rutledge creates a likelihood of
success on the merits here, Reproductive Health Services is still not entitled to a
preliminary injunction without showing a threat of irreparable harm. See
Dataphase Sys., Inc., 640 F.2d at 114 n.9.
In any event, I think there is reason to doubt whether Rutledge was correctly
decided, even if this panel has to follow it. See Mader v. United States, 654 F.3d
794, 800 (8th Cir. 2011) (en banc) (“It is a cardinal rule in our circuit that one
panel is bound by the decision of a prior panel.” (quotation marks omitted)); see
also Preterm-Cleveland, 994 F.3d at 516, 535 (concluding that a challenge to a
similar, but even more restrictive, law was not likely to succeed on the merits). It
treated Arkansas’s Down Syndrome Provision as a “complete prohibition o[n]
abortions”—a “ban,” so to speak—not just a “regulation.” Rutledge, 984 F.3d at
688–90. This distinction is critical because, under our precedent, a pre-viability
ban is categorically unconstitutional. See id. at 687–88; MKB Mgmt. Corp. v.
Stenehjem, 795 F.3d 768, 772–73 (8th Cir. 2015); Edwards v. Beck, 786 F.3d 1113,
1117 (8th Cir. 2015) (per curiam). A pre-viability regulation, on the other hand, is
only unconstitutional if it has the “purpose or effect” of “plac[ing] a substantial
obstacle in the path of a woman seeking an abortion.” Gonzales v. Carhart, 550
U.S. 124, 146 (2007) (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 878 (1992) (plurality opinion)).
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We have not made it easy to tell the difference between the two. In
Edwards, we explained that a ban “prohibits women from making the ultimate
decision to terminate a pregnancy.” 786 F.3d at 1117. A regulation, by contrast,
has only an “incidental effect” on the decision by “making it more difficult or more
expensive to procure an abortion.” Gonzales, 550 U.S. at 158 (quoting Casey, 505
U.S. at 874 (plurality opinion)). The distinction is only complicated by the fact
that a regulation can easily be reframed as a ban: if its requirements are not met,
then a woman will be “completely prohibited” from having an abortion. Ante at 9.
As slippery as the dividing line seems to be, if I were writing on a blank
slate, I would conclude that Missouri’s Down Syndrome Provision is a regulation.
Recall that it says that “[n]o person shall perform or induce an abortion on a
woman if the person knows that the woman is seeking the abortion solely because
of a prenatal diagnosis, test, or screening indicating Down Syndrome or the
potential of Down Syndrome in an unborn child.” Mo. Rev. Stat. § 188.038.2.
Interpreting the statute as an ordinary person would, see Wis. Cent. Ltd. v. United
States, 138 S. Ct. 2067, 2070 (2018), all it does is limit the reasons for an abortion
in certain narrow circumstances. As long as a woman has at least two reasons for
seeking an abortion, or her provider never knows that a positive Down Syndrome
diagnosis, test, or screening is her sole reason for getting one, “the ultimate
decision” still lies with her. Edwards, 786 F.3d at 1117 (quoting Casey, 505 U.S.
at 879 (plurality opinion)). The statute is, in other words, a regulation, not a ban.
See id.An example may help. Title VII of the Civil Rights Act of 1964 makes it
unlawful “for an employer . . . to discharge any individual . . . because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
2(a)(1). No one would suggest that Title VII is a ban on firing employees. Even
under Title VII’s broad language, which requires the reason to be
nondiscriminatory, “the ultimate decision” to terminate someone still rests with the
employer. Edwards, 786 F.3d at 1117 (quoting Casey, 505 U.S. at 879 (plurality
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opinion)); see Berg v. Norand Corp., 169 F.3d 1140, 1146 (8th Cir. 1999) (noting
that “[t]he employment-at-will doctrine, allowing an employer to terminate an
employee for any lawful reason, is [still] alive and well”).
The same is true of Missouri’s Down Syndrome Provision. Women remain
free to terminate their pregnancies for nondiscriminatory reasons. Indeed,
Missouri’s law is even more permissive than Title VII in at least two respects: an
abortion is still available, even after a positive diagnosis, test, or screening, as long
as (1) the provider does not know why a woman is seeking an abortion; or (2) the
discriminatory reason is accompanied by at least one nondiscriminatory reason.
Compare Mo. Rev. Stat. § 188.038.2 (setting out the “solely because of”
requirement), with 42 U.S.C. § 2000e-2(m) (prohibiting discriminatory
employment practices “even [when] other factors also motivated the practice”).
Just like Title VII does not “ban” employers from firing employees, neither does
Missouri’s law “ban” women from terminating their pregnancies. Rutledge,
unfortunately, seems to foreclose this common-sense analysis.
IV.
I would accordingly vacate the preliminary injunction against Missouri’s
Down Syndrome Provision.
______________________________
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