Planned Parenthood Southwest Ohio Region; Planned Parenthood of Greater Ohio; Preterm; Timothy Kress, Plaintiffs-Appellees,
Mike DeWine (17-3866); Joseph Deters (17-3867), Defendants-Appellants.
Argued: October 16, 2018
from the United States District Court for the Southern
District of Ohio at Cincinnati. No. 1:04-cv-00493-Susan J.
Dlott, District Judge.
C. Wilson, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellant
DeWine. Jennifer L. Branch, GERHARDSTEIN & BRANCH CO.
LPA, Cincinnati, Ohio, for Appellees.
E. Murphy, Stephen P. Carney, Tiffany L. Carwile, Bridget C.
Coontz, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio,
for Appellant Mike DeWine.
E. Friedmann, Michael G. Florez, HAMILTON COUNTY
PROSECUTOR'S OFFICE, Cincinnati, Ohio, for Appellant
Joseph Deters. Jennifer L. Branch, Alphonse A. Gerhardstein,
GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for
Before: MERRITT, DAUGHTREY, and STRANCH, Circuit Judges.
CRAIG DAUGHTREY, Circuit Judge.
Parenthood brought this challenge to an Ohio statute that
regulates the use and prescription of mifepristone for the
medical induction of abortion. Based on the likelihood of
success of one of its claims, Planned Parenthood obtained a
preliminary injunction, which this court eventually narrowed
to an as-applied injunction and which restrained enforcement
of the law for almost 12 years. Before a final adjudication
of the merits of that claim, however, actions by the Food and
Drug Administration (FDA), a non-party in this case, mooted
the dispute. Planned Parenthood sought and was awarded
attorneys' fees and costs for the work it did in
litigating the preliminary injunction. Defendants Michael
Dewine, the Attorney General of Ohio, and Joseph Deters, the
Hamilton County Prosecuting Attorney and representative of a
defendant class of all prosecuting attorneys in Ohio, appeal
the district court's fee award. They argue that Planned
Parenthood does not properly qualify as a "prevailing
party" because its relief was narrow, temporary, and
preliminary; that the district court erred in refusing to
apply a blanket fee reduction based on Planned
Parenthood's degree of success; and that the district
court erred in applying 2016 rates rather than 2006 rates in
calculating the award. We conclude that the district court
properly engaged in a contextual, case-specific review and
appropriately determined that Planned Parenthood prevailed in
this litigation because its relief, albeit preliminary, was
based on the merits of its claim, provided a benefit to the
plaintiffs, and was sufficiently lasting. Furthermore, the
district court properly considered the law and the aims of 42
U.S.C. § 1988 and adequately explained its rationale for
refusing to apply a blanket fee reduction and for using 2016
rates to calculate the award. We therefore affirm.
AND PROCEDURAL BACKGROUND
2004, the Ohio General Assembly enacted Ohio Revised Code
§ 2919.123, which regulates the use and prescription of
mifepristone (also known as RU-486). Mifepristone is a drug
commonly used in conjunction with another drug, misoprostol,
to induce abortion in the first trimester without the need
for the patient to undergo surgery. In 2000, the FDA approved
the use of mifepristone to end a pregnancy based on a dosage
protocol that used 600 milligrams of the drug and could be
prescribed through 49 days following a woman's last
menstrual period (LMP). However, following FDA approval,
physicians prescribing mifepristone began relying on a newer,
evidence-based protocol that allowed the drug's usage
through 63 days post-LMP and prescribed only 200 milligrams
of the drug.
physician reliance on evidenced-based, "off-label"
protocols is standard medical practice and is often protected
in certain areas of state law, including in Ohio, see,
e.g., Ohio Rev. Code § 1751.66(A), with regard to
mifepristone, the state saw fit to limit physicians'
prescribing options. To that end, the Ohio legislature passed
the mifepristone statute, which criminalizes uses of
mifepristone not "in accordance with all provisions of
federal law that govern the use of RU-486 (mifepristone) for
inducing abortions." Ohio Rev. Code § 2919.123(A).
Further, the statute defines "federal law" as
including "any drug approval letter of the food and drug
administration of the United States." Ohio Rev. Code
August 2, 2004, slightly over a month before the statute was
scheduled to take effect, Planned Parenthood Cincinnati
Region, two additional Planned Parenthood clinics, and one
other reproductive healthcare provider not affiliated with
Planned Parenthood brought suit against the governor of Ohio,
the attorney general of Ohio, and a defendant class of the
state's prosecuting attorneys in their official
capacities. Planned Parenthood challenged the statute
pursuant to 42 U.S.C. § 1983 on behalf of themselves and
Parenthood's complaint alleged four claims: the statute
was unconstitutional due to vagueness; it violated
individuals' bodily autonomy; it imposed an undue burden
on patients' right to abortion; and it violated due
process because it lacked an exception to protect the health
or life of the woman. With regard to the
health-or-life-exception claim, Planned Parenthood argued
that certain medical conditions render induced abortion via
medication (rather than surgery) safer and thus necessary for
particular patients through 63 days post-LMP. Planned
Parenthood sought declaratory relief as well as a preliminary
injunction and a permanent injunction preventing enforcement
of the statute. The same day, Planned Parenthood filed a
motion and a supporting memorandum of law seeking a
preliminary injunction. The state opposed the motions and
filed its own motion to dismiss Planned Parenthood's
a two-day evidentiary hearing, the district court denied the
state's motion to dismiss and granted Planned
Parenthood's motion for a preliminary injunction on
September 22, 2004, the day before the statute was to go into
effect. The district court enjoined the statute in full,
holding that, due to its lack of a health-or-life exception,
the plaintiffs "ha[d] a substantial likelihood of
success on the merits that the [statute] violates the Due
Process Clause and is unconstitutional." Planned
Parenthood Cincinnati Region v. Taft, 337 F.Supp.2d
1040, 1047 (S.D. Ohio 2004). The district court also found
that the equities balanced in Planned Parenthood's favor,
largely due to its substantial likelihood of success on the
merits of its health-or-life-exception claim. The district
court did not address Planned Parenthood's other claims.
February 24, 2006, we affirmed the district court's order
in part, and on April 13, 2006, we issued an amended decision
but still found "no basis for overturning the district
court's determination that [Planned Parenthood] had
established a strong likelihood of succeeding on the merits
of their claim that the [statute] is unconstitutional because
it lacks a health or life exception." Planned
Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 518
(6th Cir. 2006). However, we affirmed the injunction only
"insofar as it prohibits unconstitutional applications
of the [statute]" and vacated the injunction to the
extent that its application was overbroad. Id. at
517-18. We then remanded the case for reconsideration of the
scope of the injunction in light of legislative intent and
Planned Parenthood's other claims. Id.
that ruling, Planned Parenthood filed a consolidated motion
in the district court seeking summary judgment on their
vagueness claim or, in the alternative, a renewed preliminary
injunction of the statute in its entirety based on the
plaintiffs' remaining constitutional claims. On September
27, 2006, the district court granted Planned Parenthood's
motion and permanently enjoined the statute in its entirety.
The state appealed.
December 1, 2006, prior to resolution of the state's
appeal, Planned Parenthood filed a motion seeking $475,
886.77 in attorneys' fees for work done through November
30, 2006.This total included a ten-percent fee
reduction to acknowledge and offset the possibility of
duplicated efforts. On February 1, 2007, the state ...