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Bryant v. Woodall

United States District Court, M.D. North Carolina

March 25, 2019

JIM WOODALL, ROGER ECHOLS, ELEANOR E. GREENE, and RICK BRAJER, [1] each in their official capacity, Defendants.


          Osteen, Jr., District Judge.

         This matter is before this court for review of the Memorandum Opinion, Order, and Recommendation (“Recommendation”) filed on August 24, 2018, by the Magistrate Judge in accordance with 28 U.S.C. § 636(b). (Doc. 71.) In the Recommendation, the Magistrate Judge recommends that Plaintiffs' Second Motion for Summary Judgment (Doc. 44) be denied and that this action be dismissed for want of subject-matter jurisdiction due to Plaintiffs' lack of standing. The Recommendation was served on the parties to this action on August 24, 2018 (Doc. 72). Plaintiffs have filed objections, (Doc. 73), to the Recommendation. Pursuant to this court's order, (Doc. 74), Plaintiffs filed a Supplemental Memorandum in support of their objections to the Recommendation, (Doc. 75), Defendants responded, (Doc. 76), and Plaintiffs replied, (Doc. 82).

         Following de novo review, this court agrees with the Recommendation as the record existed before the Magistrate Judge and, further, agrees with the Magistrate Judge that Plaintiffs failed to establish standing on that record. However, on the record and briefing submitted following issuance of the Recommendation, this court finds that Plaintiffs have established standing to challenge the twenty-week abortion ban set forth in N.C. Gen. Stat. § 14-45.1 and related statutes. This court further finds that Plaintiffs' second motion for summary judgment should be granted and that N.C. Gen. Stat. § 14-45.1(a) should be enjoined.

         As noted above, this court agrees with the Magistrate Judge's Recommendation on the record before that court. It bears noting that, in the opinion of this court, Plaintiffs' counsel in this matter completely failed to heed the admonition of the Magistrate Judge as to concerns of standing and instead attempted to proceed on a theory that Plaintiffs have standing as a matter of law. (See (Doc. 66) at 9 (“Put simply, the standing of abortion providers - like Plaintiffs - to challenge criminal statutes - like the ban - ‘is not open to question.'”).)[2] As this court made clear in its request for supplemental briefing, (see Suppl. Briefing Order (Doc. 74)), this court is not aware of any automatic right of standing to challenge an abortion regulation and “imaginary or speculative” fears of prosecution are insufficient to confer standing. Younger v. Harris, 401 U.S. 37, 42 (1971).

         The Magistrate Judge quite clearly expressed a sound concern over the parties' failure to address standing - specifically, whether Plaintiffs could establish a credible threat of prosecution. As a result, that court requested further briefing on the issue. (See Doc. 65 at 3-5.) Rather than respond to the Magistrate Judge's request, Plaintiffs persisted in relying upon an argument that standing “is not open to question, ” (Doc. 66 at 9), and that “[d]ecades of black letter law establish that physicians, like Plaintiffs, who challenge criminal laws that prevent them from providing abortion care to patients have Article III standing.” (Doc. 73 at 6-7.) Plaintiffs' arguments were neither responsive nor persuasive to the issues identified by the Magistrate Judge.

         It was only after this court requested supplemental briefing on the issues identified by the Magistrate Judge, (Suppl. Briefing Order (Doc. 74)), and offered to allow Plaintiffs to “submit the case based solely upon their current position, ” (id. at 7-8), that Plaintiffs fully addressed the issues critical to standing.

         In light of the foregoing, it appears to this court that there has been unnecessary delay and judicial resources have been wasted to some degree because Plaintiffs' counsel have been unwilling or unable to address the issue of standing as necessary in this case. This court has considered whether the Recommendation should be adopted and the case dismissed in light of the failure of Plaintiffs to establish standing before the Magistrate Judge. “The party invoking federal jurisdiction bears the burden of establishing” the three elements of standing, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992), and Plaintiffs failed to do so before the Magistrate Judge. However,

as part of its obligation to determine de novo any issue to which proper objection is made, a district court is required to consider all arguments directed to that issue, regardless of whether they were raised before the magistrate. By definition, de novo review entails consideration of an issue as if it had not been decided previously.

United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992) (footnote omitted). After further consideration, this court will evaluate the supplemental briefing and enter an opinion which ultimately amounts to a complete de novo review and analysis. Notwithstanding the new review and analysis, this court is concerned by the conduct of Plaintiffs' counsel of the briefing in this case. Plaintiffs request an award of “their reasonable costs and attorney's fees pursuant to 42 U.S.C. § 1988.” (Complaint (“Compl.”) (Doc. 1) ¶ 57). Counsel are hereby advised that, in light of the conduct summarized above, should Plaintiffs petition for attorney's fees, this court will carefully scrutinize any billing during the time between the Magistrate Judge's request for supplemental briefing and this court's request for supplemental briefing. Plaintiffs may face a heavy burden to receive an award for attorney's fees incurred during that time period.


         The relevant facts are recounted in detail in the Recommendation and this court will provide only a brief summary here.

         North Carolina has banned abortion by statute for over one hundred years. See 1881 N.C. Sess. Laws 351. N.C. Gen. Stat. §§ 14-44 and 14-45 criminalize abortion generally and remain on the statute books.[3] N.C. Gen. Stat. § 14-45.1(a) was amended in 1973 to provide that, notwithstanding this general ban, “it shall not be unlawful” to perform an abortion before the twenty-week point of a pregnancy. See 1973 N.C. Sess. Laws 711 (H.B. 615). This framework contains certain statutory exceptions, including an exception permitting abortion after twenty weeks in the case of “a medical emergency.” See N.C. Gen. Stat. § 14-45.1(b). The parties have not identified any prosecutions for performing an abortion in violation of the criminal statutes during the forty-five-year history of the current statutory framework.[4]

         The North Carolina legislature amended N.C. Gen. Stat. § 14-45.1, effective in 2016. See 2015 N.C. Sess. Laws 2015-62 (H.B. 465). The pre-amendment version of N.C. Gen. Stat. § 14-45.1 permitted an abortion after the twentieth week of pregnancy when there was “substantial risk that the continuance of the pregnancy would threaten the life or gravely impair the health of the woman.”[5] See id. The amended version of the statute permits an abortion after the twentieth week of pregnancy “if there existed a medical emergency as defined by G.S. 90-21.81(5).” See id.; N.C. Gen. Stat. § 14-45.1(b). N.C. Gen. Stat. § 90-21.81(5) defines a “medical emergency” as:

A condition which, in reasonable medical judgment, so complicates the medical condition of the pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions. For purposes of this definition, no condition shall be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function.


         Plaintiffs filed their complaint in this case on November 30, 2016, (Compl. (Doc. 1)), and initially moved for summary judgment on December 14, 2016, (Doc. 13). The Magistrate Judge then granted Defendants' Rule 56(d) motion for limited discovery to respond to Plaintiffs' allegations, (Doc. 31), and this court affirmed that ruling, (Doc. 36). Plaintiffs again moved for summary judgment, (Doc. 44), and Defendants opposed that motion. (Defs.' Resp. to Pls.' Second Mot. for Summ. J. (“Defs.' Resp. Br.”) (Doc. 52).)

         During discovery, Plaintiffs each responded to interrogatories and document requests from Defendants. (See Docs. 53-1 through 53-4.) Plaintiffs deposed Defendants' expert witnesses, Martin J. McCaffrey, M.D., (Deposition of Martin J. McCaffrey (“McCaffrey Dep.”) (Doc. 53-5)), and John M. Thorp, Jr., M.D., (Deposition of John M. Thorp, Jr. (“Thorp Dep.”) (Doc. 59-1).) In addition, certain amici curiae filed a brief opposing Plaintiffs' second motion for summary judgment.[6] (Doc. 50-1.)


         This court is required to make “a de novo determination of those portions of the [Magistrate Judge's] report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). This court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the [M]agistrate [J]udge. . . . or recommit the matter to the [M]agistrate [J]udge with instructions.” Id.

         This court may, but is not required to, apply a clearly erroneous standard to any part of the Magistrate Judge's recommendation not specifically objected to by the parties. Diamond v. Colonial Life Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); see also Fed.R.Civ.P. 72(b) advisory committee's note to 1983 addition (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”) (emphasis added). “A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (internal quotations omitted).

         IV. STANDING

         A. Legal Framework

         The doctrine of standing “ensure[s] that federal courts do not exceed their authority as it has been traditionally understood.” Spokeo, Inc. v. Robins, 578 U.S., 136 S.Ct. 1540, 1547 (2016). Because standing is a jurisdictional requirement, it can be raised at any time by any party or by the court. See Plyler v. Moore, 129 F.3d 728, 731 n.6 (4th Cir. 1997). A plaintiff has Article III standing when he or she has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S.Ct. at 1547 (internal citations omitted). Standing is an element within the “case-or-controversy” analysis, which limits the scope of federal jurisdiction to only those cases where a genuine dispute exists between the parties. See generally Beck v. McDonald, 848 F.3d 262, 269 (4th Cir.), cert. denied, U.S.___, 137 S.Ct. 2307 (2017).

         Both parties agree that the relevant question in this case is whether a plaintiff has suffered an injury in fact based solely on the threat of a possible future prosecution under N.C. Gen. Stat. § 14-45.1 and related statutes. (See Pls.' Suppl. Mem. in Supp. of Obj. (“Pls.' Suppl. Mem.”) (Doc. 75) at 6-7; Defs.' Resp. to Suppl. Briefing Order (“Defs.' Resp.”) (Doc. 76) at 2- 3.) The injury-in-fact analysis is governed by the test set forth in Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (1989). Namely, Plaintiffs must “allege[] an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and [that] there exists a credible threat of prosecution thereunder.” Id. at 298.

         Defendants do not appear to dispute that Plaintiffs have alleged the intent to engage in conduct “affected with a constitutional interest.”[7] It is also undisputed that providing an abortion after the twenty-week point of a pregnancy is currently unlawful in North Carolina. Therefore, the standing result in this case turns solely on whether there is a “credible threat of prosecution” under N.C. Gen. Stat. § 14-45.1 and related statutes. This is a fact-specific inquiry that asks whether a reasonable person would fear prosecution under the statute given the historical circumstances and official statements about possible future enforcement. See Babbitt, 442 U.S. at 302 (“Appellees are thus not without some reason in fearing prosecution for violation of the ban on specified forms of consumer publicity.”); Laird v. Tatum, 408 U.S. 1, 14 (1972) (stating that a plaintiff must show “specific present objective harm or a threat of specific future harm” to have standing, and noting that a subjective fear will not suffice); Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1139 (9th Cir. 2000) (“In evaluating the genuineness of a claimed threat of prosecution, we look to whether the plaintiffs have articulated a concrete plan to violate the law in question, whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and the history of past prosecution or enforcement under the challenged statute.”).

         1. Historical Record of Prosecutions

         The threat of prosecution under a statute must be objectively reasonable under the circumstances for plaintiffs to have standing. See Doe v. Duling, 782 F.2d 1202, 1206 (4th Cir. 1986). When no offenders have been prosecuted under the law for a lengthy period, this factor suggests that only a theoretical threat exists, that any fear is subjective and unreasonable, and that plaintiffs likely do not have standing to challenge the law. See Poe v. Ullman, 367 U.S. 497, 499-502 (1961) (holding that the plaintiffs lacked standing to challenge a Connecticut contraception ban where there were no prosecutions during the statute's eighty-two-year history and the statute was openly violated, despite the state's purported intention to prosecute violations); see also Duling, 782 F.2d at 1204, 1206-07 (finding that the threat of prosecution under a Virginia fornication ban was “only the most theoretical” where “the last recorded conviction for private, consensual cohabitation occurred” one hundred years prior, violations were common, and members of law enforcement expressed doubt that the statute in fact restricted private, consensual behavior).

         Specifically, the mere existence of a criminal statute without more (historical prosecution, official threats of prosecution, recent legislative amendment, or prosecution under related statutes) is ordinarily not enough to establish a credible threat of prosecution. See Winsness v. Yocom, 433 F.3d 727, 732 (10th Cir. 2006) (“The mere presence on the statute books of an unconstitutional statute, in the absence of enforcement or credible threat of enforcement, does not entitle anyone to sue.”); but see Epperson v. Arkansas, 393 U.S. 97, 109- 10 (1968) (Black, J., concurring) (noting doubts about plaintiff's standing to challenge an Arkansas anti-evolution law that was not enforced for almost forty years, where the majority assumed standing and moved straight to the substantive constitutional analysis); Duling, 782 F.2d at 1206 (identifying Epperson as belonging to a class of cases where “the chilling effect of a statute is so powerful and the rights it inhibits so important that the mere existence of the statute may warrant judicial intervention”).

         On the other end of the spectrum, a law that the state consistently enforces is clearly subject to challenge. See, e.g., Mausolf v. Babbitt, 85 F.3d 1295, 1302 (8th Cir. 1996) (finding that the members of a snowmobiling club had standing to challenge regulations restricting trail use that were being actively enforced and prevented the members from viewing wildlife). Relatedly, the case law suggests that a recently-enacted law is likely to create a credible threat of prosecution even if the state has yet to prosecute individuals for violating the statute. See, e.g., Doe v. Bolton, 410 U.S. 179, 188 (1973) (holding that plaintiffs had standing to challenge a Georgia abortion statute that was “recent and not moribund” and was the successor to a statute under which doctors were prosecuted); see also Mobil Oil Corp. v. Attorney Gen. of Va., 940 F.2d 73, 76 (4th Cir. 1991) (finding that plaintiffs had standing to challenge a recently-enacted statute when the state attorney general was silent regarding prospective enforcement; holding that “[w]e see no reason to assume that the Virginia legislature enacted this statute without intending it to be enforced”).

         For example, in American Booksellers Association v. Virginia, 802 F.2d 691 (4th Cir. 1986), vacated on other grounds, 488 U.S. 905 (1988) (“Booksellers I”), plaintiffs challenged an obscene material sales ban that had been recently amended to prohibit the display of such materials where children might be able to view them. Id. at 693. The Fourth Circuit held that the plaintiffs had standing and noted that “[i]t would be unreasonable to assume that the General Assembly adopted the 1985 amendment without intending that it be enforced.” Id. at 694 n.4. In its initial review of the case, the Supreme Court agreed that the plaintiffs had standing and noted that “[t]he State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise.” Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 393 (1988) (“Booksellers II”).

         2. Open and Notorious Violations

         Where a long period of time has passed with no prosecutions under a criminal statute, the question of whether the statute is openly violated without consequence becomes relevant to the standing analysis. See Ullman, 367 U.S. at 502 (noting the fact that “contraceptives are commonly and notoriously sold in Connecticut drug stores” as a feature suggesting no credible threat of prosecution) (footnote omitted). A lack of prosecutions may simply indicate scrupulous compliance with the law. However, when individuals publicly engage in behavior that violates the law and suffer no legal consequence, this suggests that the state has acquiesced to such conduct and that no constitutional injury inures to those seeking to challenge the statute. See, e.g., Duling, 782 F.2d at 1204 (noting that “fornication and cohabitation are common forms of conduct in society generally and in the City of Richmond in particular”) (internal quotation marks omitted); Winsness, 433 F.3d at 732 (“Mr. Larsen openly engaged in conduct he believes was in violation of the Utah flag-abuse statute, and suffered no consequences.”).

         3. Government Statements ...

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