United States District Court, M.D. North Carolina
AMY BRYANT, M.D., BEVERLY GRAY, M.D., ELIZABETH DEANS, M.D., and PLANNED PARENTHOOD SOUTH ATLANTIC, Plaintiffs,
JIM WOODALL, ROGER ECHOLS, ELEANOR E. GREENE, and RICK BRAJER,  each in their official capacity, Defendants.
MEMORANDUM OPINION AND ORDER
Osteen, Jr., District Judge.
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).
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
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.'”).) 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).
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.
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.
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.
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.
relevant facts are recounted in detail in the Recommendation
and this court will provide only a brief summary here.
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. 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
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.” 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.
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).)
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. (Doc. 50-1.)
STANDARD OF REVIEW ON MAGISTRATE JUDGE'S
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.
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).
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).
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.
do not appear to dispute that Plaintiffs have alleged the
intent to engage in conduct “affected with a
constitutional interest.” 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
Historical Record of Prosecutions
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).
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”).
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”).
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”).
Open and Notorious Violations
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.”).
Government Statements ...