The opinion of the court was delivered by: District Judge Susan J. Dlott
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND: ENJOINING DEFENDANTS
This matter comes before the Court on remand from the United States Court of Appeals for the Sixth Circuit and on Plaintiffs' Motion for Summary Judgment and Permanent Injunction or, in the Alternative, Renewed Motion for Preliminary Injunction ("SJ Motion") (doc. #69). For the reasons that follow, the Court GRANTS Plaintiffs' Motion for Summary Judgment and Permanent Injunction or, in the Alternative, Renewed Motion for Preliminary Injunction ("SJ Motion") (doc. #69) and PERMANENTLY ENJOINS Defendants from enforcing any provisions of Ohio's H.B. 126 ("the Act").
I. PROCEDURAL HISTORY & BACKGROUND
Plaintiffs filed both their original Complaint (doc. #1) and their original Motion for Preliminary Injunction ("PI Motion") (doc. #2) on August 2, 2004, and filed an Amended Complaint on September 13, 2004 (doc.#18). On September 22, 2004, this Court entered its Order granting Plaintiffs' motion for a preliminary injunction (docs. ## 26 and 41).*fn1 On September 22, 2004, Defendants filed an interlocutory appeal of this Court's order. On February 15, 2006, the Sixth Circuit issued its Opinion affirming in part and vacating in part this Court's Order granting the preliminary injunction, and remanded the case to this Court to determine the appropriate scope of preliminary injunctive relief in light of the Sixth Circuit's opinion. (See doc. #60.) On April 13, 2006, the Sixth Circuit issued an amended judgment to the same effect. (Doc. #66); see also Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 505 (6th Cir. 2006).
On March 16, 2006, this Court set a schedule for the parties' remand briefing regarding the scope of the preliminary injunction. (See doc. # 63.) Instead of limiting their briefing to the scope of the preliminary injunction, however, Plaintiffs filed the instant consolidated SJ Motion requesting both summary judgment and a permanent injunction, or, only in the alternative, a renewed preliminary injunction which, as before, enjoins the entire Act. The Court held oral argument on that Motion on June 26, 2006.
Plaintiffs in this case are Planned Parenthood Southwest Ohio Region*fn2 , Planned Parenthood of Central Ohio, Planned Parenthood of Greater Cleveland, and Preterm (collectively "Planned Parenthood"), and Doctors Sogor and Kade ("Plaintiff Physicians") on behalf of themselves and their patients (all collectively, "Plaintiffs"). Defendants are Bob Taft, the Governor of Ohio, and Jim Petro, the Attorney General of Ohio, in their official capacities, and Joseph Deters,*fn3 as Prosecuting Attorney for Hamilton County, Ohio, and as a representative of a class of all prosecuting attorneys in Ohio (collectively, "Defendants").*fn4
Plaintiffs brought this action challenging the constitutionality of the Act, which was to take effect on September 23, 2004. The Act regulates the use of mifepristone, commonly known as RU-486, which is a drug used for medical abortion. Specifically, the Act provides:
No person shall knowingly give, sell, dispense, administer, otherwise provide, or prescribe RU-486 (mifepristone) to another for the purpose of inducing an abortion . . . unless the person . . . is a physician, the physician satisfies all the criteria established by federal law that a physician must satisfy in order to provide RU-486 (mifepristone) for inducing abortions, and the physician provides the RU-486 (mifepristone) to the other person for the purpose of inducing an abortion in accordance with all provisions of federal law that govern the use of RU-486 (mifepristone) for inducing abortions.
§ 2919.123(A) (emphasis added). The Act defines "federal law" as, "any law, rule, or regulation of the United States or any drug approval letter of the Food and Drug Administration of the United States that governs or regulates the use of RU-486 (mifepristone) for the purpose of inducing abortions." See § 2919.123(F)(1).
The Act provides that those who violate its provisions are guilty of a felony (of varying degrees) and requires state licensing boards to discipline doctors who enter a plea of guilty to or are found guilty of violating the law. Specifically, violators of the Act are deemed "guilty of unlawful distribution of an abortion-inducing drug, a felony of the fourth degree," and repeat offenders are guilty of a felony in the third degree. See § 2919.123(E). Further, the Act provides that offenders who are doctors are "subject to sanctioning as provided by law by the regulatory or licensing board or agency that has the administrative authority to suspend or revoke the offender's professional license." Id. Finally, the Act requires the state medical board to revoke, suspend, reprimand, or refuse to grant a certificate to any doctor who enters a plea of guilty or is found guilty of violating any state law regulating the distribution of any drug. See § 4731.22(B)(3). Section 4731.22(B)(3) clearly applies to doctors found guilty of violating Section 2919.123(A) for unlawfully prescribing mifepristone.
C. Plaintiffs' Original Motion for a Preliminary Injunction
Originally, Plaintiffs moved for a preliminary injunction "restraining defendants, their employees, agents, and successors, and all others acting in concert or participation with them, from enforcing the provisions of H.B. 126." (See doc. #2 at 1). Plaintiffs challenged the Act on the following grounds: "the Act is unconstitutionally vague; the Act violates their patients' right to bodily integrity by compelling surgery in circumstances where a medical abortion [via mifepristone, and as opposed to surgical abortion] would otherwise be the desired or appropriate treatment; the Act lacks the constitutionally-mandated exception to allow otherwise restricted practices where they are necessary to preserve a woman's life or health; and, the Act imposes an undue burden on their patients' right to choose abortion by prohibiting a safe and common method of pre-viability abortion." (See doc. #2, at 1.)
In ruling on Plaintiff's PI Motion, this Court described Plaintiffs' arguments as follows*fn5
"Plaintiffs allege that because of the former factors [see supra former paragraph], Plaintiffs have a strong likelihood of success on the merits. Further, Plaintiffs allege that Planned Parenthood, Plaintiff Physicians, and their patients would face irreparable injury if the Act takes effect. (Id. at 18-19.) Specifically, Plaintiffs argue that because the Act is unconstitutionally vague, Plaintiff Physicians would be left to guess about whether they may legally provide medical abortions in certain instances. (Id. at 18.) Specifically, Plaintiffs state that Planned Parenthood and the Plaintiff Physicians have been providing medical abortions using an evidence-based protocol of mifepristone.*fn6 (See doc. #18, ¶¶ 6-11.) This evidence-based protocol differs in several respects from the protocol which the FDA tested and on which it based its approval of mifepristone ["FDA-approved protocol"], including the dose of mifepristone and the dose and administration of its companion drug, misoprostol, and also allows for a medical abortion later in the term of pregnancy.*fn7 Plaintiffs note that the Act provides that physicians may prescribe mifepristone only in accordance with federal law, and that the Act includes the FDA approval letter within its definition of federal law. However, Plaintiffs also note that the FDA approval letter does not require physicians to adhere to any particular protocol, although the documents on the final printed labeling do discuss only the protocol that was tested by the FDA. (Id. at ¶ 38.) Thus, Plaintiffs argue that it is unclear whether the Act's inclusion of the FDA approval letter in the definition of federal law renders it illegal for a physician to prescribe the evidence-based protocol of mifepristone. Consequently, Plaintiffs argue that Plaintiff Physicians would face the threat of possible criminal prosecution and loss or suspension of their medical licenses if they continue to prescribe the evidence-based protocol of mifepristone. (Id. at ¶ 53.) Plaintiffs also argue that Plaintiff Physicians' patients would face irreparable harm because the Act may force some women seeking an abortion to forego medical abortion and undergo either surgical abortion or other more invasive procedures, which may be both riskier and more costly for a particular woman. (See doc. # 2, at 18-19.)" (See doc. #41-2 at 8-9.)
This Court held that Plaintiffs had demonstrated a strong likelihood of success on the merits of their claimed violation of their constitutional rights on two alternative grounds: 1) the Act lacked any health exception, which this Court construed as a per se requirement under Supreme Court precedent for statutes regulating abortion; and 2) evidence presented at the hearing on the PI Motion demonstrated that there were women for whom the evidence-based protocol for medical abortion was safer than surgical abortion. (Id. at 10-11.) Having so found, the Court also found that the other factors to be considered for a preliminary injunction necessarily weighed in its favor. (Id. at 12-13.) The Court therefore entered an order enjoining Defendants from enforcing any provisions of the Act. (Id. at 13.)
D. The Sixth Circuit's Decision on Appeal
On appeal, the Sixth Circuit held that this Court erred in holding that all statutes regulating abortion, including the Act, must contain a per se health exception. The Sixth Circuit described the proper legal standard as follows: where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health Casey requires the statute to include a health exception when the procedure is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. An exception is constitutionally necessary where substantial medical authority indicates that a banned procedure would be safer than the other available procedures, not just when banning the procedure subjects a woman to risks from the pregnancy itself. As emphasized previously by this circuit, an exception is only necessary (and must only cover) circumstances where a statute poses a significant health risk. Finally, an adequate showing of a significant health risk in certain circumstances is sufficient to require an exception even if those circumstances rarely occur.
Planned Parenthood Cincinnati Region, 444 F.3d at 511.
The Sixth Circuit held that, despite having misread the law, this Court was nevertheless correct to enjoin the Act because "[a]t the [PI Motion] evidentiary hearing Plaintiffs introduced expert testimony from two doctors which established that, if enforced, the statute would result in significant risk to women's health in particular, albeit narrow, circumstances." Id. at 511. The Sixth Circuit concluded that "the evidence presented to the district court established at least as persuasive a case as that presented in Carhart that the abortion regulation at issue could pose a significant health risk to women with particular medical conditions. Consequently, the district court's ruling that Plaintiffs established a strong likelihood of prevailing on the merits has not been shown to be erroneous." Id. at 514.
The Sixth Circuit thus remanded the case to this Court "for consideration of the appropriate scope of injunctive relief in light of the United States Supreme Court's recent decision in Ayotte v. Planned Parenthood of Northern New England, --- U.S. ----, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006)." In Ayotte, the Supreme Court held that "[g]enerally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force, or to sever its problematic portions while leaving the remainder intact." Ayotte, 126 S.Ct at 967. The Sixth Circuit clarified that in light of Ayotte, this Court should "leav[e] the preliminary injunction undisturbed insofar as it prohibits unconstitutional applications of the statute." It also held that "[o]n remand, the district court must ...