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Planned Parenthood Ariz., Inc. v. Humble

United States District Court, D. Arizona

March 31, 2014

Planned Parenthood Arizona, Inc.; William Richardson, M.D.; and William H. R. Richardson M.D., P.C., doing business in Tucson Women's Center, Plaintiffs,
v.
Will Humble, Director of the Arizona Department of Health Services, in his official capacity, Defendant

Page 1018

For Planned Parenthood Arizona Incorporated, Plaintiff: Alice Clapman, Helene T Krasnoff, LEAD ATTORNEYS, Planned Parenthood Federation of America - Washington, DC, Washington, DC; Lawrence Jay Rosenfeld, LEAD ATTORNEY, Squire Sanders (U.S.) LLP - Phoenix, AZ, Phoenix, AZ.

For William Richardson, M.D., doing business as Tucson Women's Center, William H Richardson, M.D., P.C., doing business as Tucson Women's Center, Plaintiffs: David Brown, Julie Rikelman, LEAD ATTORNEYS, Tiseme Zegeye, Center for Reproductive Rights, New York, NY; Lawrence Jay Rosenfeld, LEAD ATTORNEY, Squire Sanders (U.S.) LLP - Phoenix, AZ, Phoenix, AZ.

For William Humble, named as Will Humble, Director of the Arizona Department of Health Services, in his official capacity, Defendant: G Michael Tryon, Gregory David Honig, Kevin D Ray, LEAD ATTORNEYS, Office of the Attorney General, Phoenix, AZ; Patricia Cracchiolo LaMagna, LEAD ATTORNEY, Tempe, AZ.

OPINION

Page 1019

ORDER

David C. Bury, United States District Judge.

On March 4, 2014, Plaintiffs filed this Complaint and filed a Motion for Temporary Restraining Order on March 7, 2014. Plaintiffs are Arizona health care providers, who provide surgical and medication abortions. They challenge HR 2036, A.R.S. 36-449.03: Abortion clinics; rules; civil penalties, subsection (E)(6),[1] which mandates: " That any medication, drug or other substance used to induce an abortion is administered in compliance with the protocol that is authorized by the United States Food and Drug Administration (FDA) and that is outlined in the final printing labeling instructions[, the FDL,] for that medication, drug or substance." The Director adopted such a regulation on January 27, 2014. The law and regulations become effective on April 1, 2014, unless the Court issues a preliminary injunction. The Court denies the Motion for a Preliminary Injunction.

Standard for Preliminary Relief:

According to the Supreme Court, the proper standard for granting or denying a preliminary injunction is as follows:

A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.

Winter v. NRDC, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); see also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1126-27 (9th Cir.2009) (abandoning the Ninth Circuit's prior preliminary injunction test and applying Winter ).

Prior to Winter, the Ninth Circuit recognized an alternative sliding-scale standard requiring a plaintiff to demonstrate either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor. Taylor v. Westly, 488 F.3d 1197, 1200-1201 (9th Cir. 2007). Post- Winter, the " sliding scale" approach to preliminary injunctions remains only to the extent " 'the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.'" Pimentel v. Dreyfus, 670 F.3d 1096, 1105 -1106 (9th Cir. 2012) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)). Plaintiffs " must establish that irreparable harm is "

Page 1020

likely, not just possible," regardless of the strength of Plaintiffs' showing on the other three elements. Alliance for the Wild Rockies, 632 F.3d at 1131 (applying Winters ). The sliding scale supports a preliminary injunction when there are " serious questions going to the merits" [2] and the hardship balance tips sharply toward the plaintiff, assuming the other two elements of the Winter test are also met. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 2014 WL 114699 (9th Cir. Jan. 14, 2014) (citing Alliance, 632 F.3d at 1131-32)).

HR 2036: RU-486 medication abortion:

The statute and corresponding regulation involves a medication abortion protocol using a combination of two prescription drugs: mifepristone (RU-486 or Mifeprex) and misoprostol (Cytotec). The first drug kills the embryo/fetus and the second causes the ...


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