John Robert Blakey, United States District Judge.
MEMORANDUM OPINION AND ORDER
John Robert Blakey, United States District Judge.
Plaintiff Amanda Bergquist, a self-described “First Amendment auditor, ” went to the Bridgeview Courthouse in March 2018 to address three traffic tickets. At the security checkpoint, court security officers told her she could not bring the video camera she carried into the courthouse. Plaintiff subsequently began filming the exterior of the courthouse, scanning up and down with her camera. When officers noticed, they confronted her, asked for her identification, and attempted to ascertain her intentions for filming. Plaintiff refused to identify herself, remained uncooperative, and continued to record both the exterior and interior of the courthouse. The officers then detained her inside the courthouse, searched through her purse, wallet, and camera, and brought her before the presiding judge who ordered her to cease her recording.
Based upon these events, Plaintiff has sued four of the officers involved that day-Donald Milazzo, Jennifer Larson, Kenneth Dorociak, and Kelly Jackson-and the Cook County Sheriff's Office and Sheriff Thomas Dart under 42 U.S.C. § 1983, alleging First and Fourth Amendment injuries. The parties now cross-move for summary judgment. [107]; [112]. For the reasons explained below, this Court grants Defendants' motion for summary judgment [112] and denies Plaintiff's motion for summary judgment [107].
I. Background
This Court takes the following facts from Plaintiff's Statement of Facts [108], Defendants' Statement of Facts [114], Plaintiff's Responses to Defendants' Statement of Facts [122], Defendants' Responses to Plaintiff's Statement of Facts [124], and Defendants' Statement of Additional Facts [125]. Because Plaintiff failed to respond to Defendants' Statement of Additional Facts [125], this Court deems those facts admitted. See Tabiti v. LVNV Funding, LLC, No. 13-CV-7198, 2019 WL 1382235, at *2 (N.D. Ill. Mar. 27, 2019).
A. The Parties
Plaintiff was a citizen of Illinois at the time of the relevant events. [114] at ¶ 1; [122] at ¶ 1. Plaintiff describes herself as a “First Amendment auditor, ” meaning she “test[s] people on the First Amendment, ” specifically “people who are in law enforcement, government employees.” [107-2] at 49-50. Plaintiff maintains a YouTube page devoted to her First Amendment auditing activities and posts videos of her activities; she estimates that she has made 300 to 400 videos depicting “First Amendment auditing” and “cop watching.” Id. at 51, 59.
At all times relevant, Defendant Donald Milazzo worked as a lieutenant officer with the Cook County Sheriff's Office, [114] at ¶ 2; [122] at ¶ 2; Defendant Larson worked as a sergeant officer with the Cook County Sheriff's Office, [114] at ¶ 3; [122] at ¶ 3; Defendant Kenneth Dorociak worked as an officer with the Cook County Sheriff's Office, [114] at ¶ 4; [122] at ¶ 4; Defendant Kelly Jackson acted as a chief officer with the Cook County Sheriff's Office, [114] at ¶ 5; and Defendant Thomas Dart was (and remains) Sheriff of Cook County, [122] at ¶ 6. Defendant Cook County is a body politic and corporate under Illinois law. [114] at ¶ 5.
B. Plaintiff's Initial Encounter with Officer Barbaro
The Bridgeview Courthouse in Bridgeview, Illinois handles a variety of cases including traffic court, domestic violence, and felony matters. [125] at ¶ 1. Victims, witnesses, and jurors all use the front entrance. Id.; [107-12] at 47-48.
On March 28, 2018, Plaintiff went to the Bridgeview Courthouse to address three traffic tickets. [108] at ¶ 1. She carried a Sony handheld camera in her purse. Id. at ¶ 2. At the security checkpoint of the courthouse, a Sheriff's deputy denied her entry because she possessed a handheld video camera; she was also advised to call the Sheriff's Department to inquire whether it could hold her camera while she was in court. [114] at ¶ 2; [124] at ¶ 3. Plaintiff stepped outside to call the Sheriff's Department; according to Plaintiff, the Sheriff's Department refused to hold her camera. [108] at ¶ 4; [124] at ¶ 4.
Plaintiff then stood outside the front entrance of the Bridgeview Courthouse and began filming. [114] at ¶ 3. Plaintiff asserts that she was recording her reflection in the mirrored windows surrounding the building and the no-smoking sign, [108] at ¶ 6, while Defendant maintains that Plaintiff's recording captured activity both inside and outside the courthouse, including various people entering and exiting the courthouse, the entrance way, security features including the positioning of security personnel, locations of metal detectors, surveillance cameras, emergency exits, panic buttons, call boxes, and vehicular barriers, [124] at ¶ 6.
Officer Barbaro, a sheriff's deputy working security that day, testified at his deposition that he saw a “woman outside the building videotaping the building, scanning back and forth with the camera up and down, people coming in and out possibly, possibly videotaping through the glass at the security post that I work at of the entry procedure.” [114-5] at 3. Officer Barbaro came out, stood at the front entrance with the door propped open by his body, and asked Plaintiff what she was doing, to which Plaintiff responded that she was recording the building because she wanted to record it. [108] at ¶¶ 7-8; [114] at ¶ 10. Officer Barbaro also asked Plaintiff why she was recording (“for what purpose?”), and Plaintiff ignored him. [114] at ¶ 10; [114-2] (Bergquist's video). Plaintiff's video shows the interior of the courthouse entrance. [114-2].
According to Defendant Dorociak, who worked security that morning, someone standing at Plaintiff's distance to the courthouse would be able to see inside and videotape inside the building. [107-12] at 50. Dorociak additionally testified that, on the other side of the window from where Plaintiff was standing, “the front door security is laid out, ” including security equipment and the x-ray machine. Id. at 51.
C. Plaintiff's Encounter with Milazzo
Barbaro radioed for additional security and requested a supervisor response. [114] at ¶ 11; [114-2]. Defendant Milazzo then responded almost immediately by coming to the scene, and at the door of the building, Officer Barbaro said to Milazzo that “the woman is taping the building, I asked her why, and she said because she wants to.” [114-2]. At his deposition, Milazzo testified that “at the time we didn't know if she was videotaping people coming out, videotaping witnesses, videotaping people that were involved in domestic violence, videotaping people inside the door where the [security] posts were.” [107-5] at 14. Milazzo found it suspicious that “she was videotaping the building and possibly inside the doors.” Id. at 27-28.
Milazzo approached Plaintiff and told her that there exists a judicial order “that says you cannot tape this building.” [114-2]; [108] at ¶¶ 9-10. Plaintiff then asked Milazzo if she could see that judicial order, and Milazzo said “yeah, come on in, and we're gonna check your IDs, too.” [114-2]; [108] at ¶ 11. When Plaintiff responded, “oh, I'm not going in, ” Milazzo said, “no, no, no, we're gonna run you, too. We're gonna get your name, we're gonna do a report.” [114-2] at 2.
Plaintiff refused (“um, no”), after which Milazzo informed her that he was detaining her and that she was “doing something suspicious.” Id. Milazzo asked her to “come in” again, and Plaintiff responded, “I'm just gonna stay right here and continue recording.” [114-2]. Milazzo repeated, “you're gonna come in, and we're gonna find out who you are and what you're doing here.” Id. Plaintiff responded, “no, you're not.” Id.
At that point, Milazzo turned to the front door of the courthouse and asked, “who's got cuffs? She does not want to go agreeably, ” and Officers Larson and Dorociak appeared. Id. As clearly shown in Plaintiff's video footage, her recording again captured the interior of the courthouse's entrance as Larson and Dorociak exit the building toward her and Milazzo. Plaintiff then asked, “I'm being detained for just taking pictures of the building?” Id. Milazzo replied, “you're doing something suspicious and we need to know who you are and why you're doing it, ok?” Id.
Plaintiff then asked Milazzo if he was “familiar with the First Amendment”; in response, Milazzo grabbed Plaintiff's camera and ordered officers to handcuff and bring her into the courthouse. [114-2]; [108] at ¶¶ 18-19. Plaintiff's camera continued to record. [114-2].
D. The Officers Escort Plaintiff into the Courthouse
After being escorted inside, Defendants Milazzo and Larson made multiple requests for Plaintiff to identify herself, and both informed her she could go if she identified herself. [108] at ¶ 20; [124] at ¶ 20; see also [114-11] (Larson's bodycam video). Milazzo also stated he would detain Plaintiff until “he decided who she was.” [108] at ¶ 21; [114-2].
Plaintiff expressed her desire to remain silent and requested her lawyer. Id. at ¶ 22. She also refused to consent to the search or seizure of her camera and asked Milazzo if he had heard of the Fourth Amendment. Id. at ¶ 23. Milazzo responded “oh great, why do we always get the crazies.” Id. at ¶ 24. After this statement, the video footage from Plaintiff's video ends. Id. at ¶ 25.
Milazzo testified that, while Plaintiff remained detained, he contacted his supervisor, Defendant Jackson, who instructed him to contact the presiding judge's office for further instruction regarding Plaintiff. [114] at ¶ 24. According to Milazzo, he called the presiding judge's office, and an assistant told him to bring Plaintiff to Judge Peter Felice. Id. at ¶ 25.
At some point during Plaintiff's detention, Milazzo emptied the contents of Plaintiff's purse on a counter and searched her wallet until he found her identification. [108] at ¶ 27. Milazzo also searched through the contents of Plaintiff's camera. Id. at ¶ 28.
The parties dispute exactly how long Plaintiff remained detained: Plaintiff states she was in the deputy's office for an hour and a half while handcuffed, [108] at ¶ 29; Defendants dispute this statement but do not offer their own estimated length of detention, [124] at ¶ 29.
E. Plaintiff's Court Appearance
Defendants Dorociak and Larson then escorted Plaintiff, in handcuffs, to Judge Peter Felice. [114] at ¶¶ 27-28. In court, Judge Felice asked Milazzo about Plaintiff:
THE COURT: What was observed[, …] this woman was doing?
THE LIEUTENANT [MILAZZO]: She was observed videotaping in front of the building, and when the doors would open trying to videotape inside the doors. When we asked her what she was doing and why, she refused to identify herself, refused to explain what she was doing. Wouldn't tell us anything until we took her in to detain to find out who she was.
[107-7] at 3. Judge Felice then questioned Plaintiff directly:
THE COURT: Can you tell this court for what reason are you videotaping this facility and people walking in and out?
MS. BERGQUIST: That's not true. I wasn't -
THE COURT: Well, there is [sic] people walking in and out the front door; am I correct?
MS. BERGQUIST: Well, what happened, I have business here. I have court at 1:30 for some traffic stuff. So I was getting ready to leave out, go outside, killing some time. And there's a reflection. I wasn't recording the door. I was outside the whole time recording the reflective glass. I was recording my own reflection.
THE COURT: Why?
MS. BERGQUIST: Just because. I record, and it is a hobby.
Id. at 3-4.
Judge Felice then informed Plaintiff “there is a standing court order that no photography is to take place inside the courtroom, and that is going to include the entrance and the exits.” Id. at 4. He also instructed Plaintiff to “not record this building, people coming in and out, or anybody in the parking lot.” Id. at 6. Judge Felice then provided Plaintiff the option to surrender her camera's S.D. card for his staff to erase, or alternatively, to surrender the S.D. card completely. Id. at 5. Plaintiff chose the former option, and Judge Felice informed her she could retrieve her erased S.D. card later. Id. at 7. After she received her S.D. card back from the court, Plaintiff had it restored by a specialist. [108] at ¶ 36.
F. Plaintiff's Claims and Procedural History
Plaintiff sued, alleging in her operative, second amended complaint, ten claims: in Counts I and II, she alleged that all of the Defendants engaged in First Amendment retaliation in violation of 42 U.S.C. § 1983 by handcuffing, detaining, and arresting her for exercising her right to record a public building, [34] ¶¶ 93-111; in Counts III and IV she claimed, respectively, that all Defendants violated the Fourth Amendment by detaining and arresting her, and that all Defendants but Jackson violated the Fourth Amendment by seizing her camera, id. ¶¶ 112-138; in Counts V, VI, and VII Plaintiff alleged that Defendants Milazzo, Dart, the Cook County Sheriff's Office, and Cook County violated the Fourth Amendment by searching her camera (Count V), seizing its footage (Count VI), and searching her purse (Count VII), id. ¶¶ 139-170; in Count VIII, she alleged a constitutional abuse of process claim against all Defendants, id. ¶¶ 171-178; and in Counts IX and X she alleged that Defendants Dart, the Cook County Sheriff's Office, and Cook County are municipally liable under § 1983 for maintaining a policy of arresting people for taking pictures of public buildings, or alternatively, for their failure to supervise and train police officers on the proper way to conduct investigations of a criminal suspect, id. ¶¶ 179-197.
In February 2020, this Court dismissed Count VIII, Plaintiff's abuse of process claim, in its entirety; dismissed Dart to the extent Plaintiff alleged individual liability against him; dismissed Dart and the Cook County Sheriff's Office from Counts I through VII; and dismissed all substantive claims against Cook County (but allowing the County to remain a necessary party solely for indemnification purposes) [90].
The parties have now cross-moved for summary judgment on Plaintiff's remaining claims against the remaining Defendants. [107]; [112].
II. Legal Standard
Summary judgment is proper where there is “no dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In determining whether a genuine issue of material fact exists, this Court must construe all facts and reasonable inferences in the light most favorable to the non-moving party. King v. Hendricks Cty. Comm'rs, 954 F.3d 981, 984 (7th Cir. 2020). The non-moving party bears the burden of identifying the evidence creating an issue of fact. Hutchison v. Fitzgerald Equip. Co., Inc., 910 F.3d 1016, 1021-22 (7th Cir. 2018). To satisfy this burden, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Barnes v. City of Centralia, 943 F.3d 826, 832 (7th Cir. 2019). Thus, a mere “scintilla of evidence” supporting the non-movant's position does not suffice; “there must be evidence on which the jury could reasonably find” for the non-moving party. Anderson, 477 U.S. at 252.
III. Analysis
The parties cross-move for summary judgment on all of Plaintiff's remaining claims against the remaining Defendants. [107]; [112]. This Court addresses each category of claims below.
A. Fourth Amendment Claims
Defendants move for summary judgment on Plaintiff's Fourth Amendment claims, arguing that the record fails to raise a triable issue of fact as to the reasonableness of their initial Terry stop and subsequent search of Plaintiff's purse and camera. [113] at 7-12. Plaintiff cross moves for summary judgment on her Fourth Amendment claims, countering that Defendants lacked reasonable suspicion to conduct the Terry stop, that the Terry stop ripened into an arrest unsupported by probable cause, and that Milazzo conducted an unconstitutional search of her belongings. [107] at 17-23.
1. Fourth Amendment Seizure
The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. In general, under this amendment, a “warrantless arrest, like a warrantless “banned” from terminating a pre-viability pregnancy under the Reason Regulations is a woman who (1) wants to terminate a pregnancy because of a fetal genetic condition and (2) wants that procedure to be performed only by a provider who knows of the woman's motive. Plaintiffs offer no evidence that any such woman exists, and at oral argument they confirmed that they are not arguing there are women in Arizona who want to terminate their pre-viability pregnancies because of a fetal genetic abnormality but will do so only if they can also tell their doctors about their motives. (Oral Argument Tr. at 28-29.) Rightfully so. It strains credulity to believe that a woman who wants to terminate her pregnancy because of a fetal genetic abnormality would nonetheless choose to carry her unwanted pregnancy to term because the procedure cannot be performed by a doctor who knows of her motive for seeking the abortion. Regardless, even if this were Plaintiffs' position, they offer no support for the proposition that a limitation on the pool of eligible providers constitutes a per se unconstitutional ban, rather than a mode and manner regulation assessed under the undue burden standard. But cf. Mazurek v. Armstrong, 520 U.S. 968, 971 (1997) (analyzing Montana statute restricting performance of abortions to licensed physicians under the undue burden standard).
But that does not end the inquiry. Although states may regulate the mode and manner of pre-viability abortion, they may not do so in a manner that imposes an undue burden on the woman's ultimate choice. See Isaacson, 716 F.3d at 1217. The determinative question, then, is whether the Reason Regulations likely will have the effect of unduly burdening this right.
In Casey, the Supreme Court held that “[a]n undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Casey, 505 U.S. at 878. The Court elaborated:
A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free
choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends.
Id. at 877. The Court added that “the State may enact regulations to further the health or safety of a woman seeking an abortion, ” but “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on that right.”
Id. at 878. Otherwise, a regulation that does not impose a substantial obstacle is permissible so long as it is reasonably related to a legitimate state interest.
See Id. at 877.
Casey also articulated the standard for facial challenges to abortion regulations. An abortion regulation is unconstitutional on its face if “it will operate as a substantial obstacle to a woman's choice to undergo an abortion” in “a large fraction of the cases in which [it] is relevant.” Id. at 895. The denominator in this fraction is not all women, or even all women seeking abortions; it is those for whom the challenged law will operate as “an actual rather than an irrelevant restriction.” Id. This fraction “is more conceptual than mathematical, ” Cincinnati Women's Servs., Inc. v. Taft, 468 F.3d 361, 374 (6th Cir. 2006), meaning a court may make a qualitative judgment based on the evidence and common sense and need “not conduct a mathematical determination of the fraction, ” Preterm-Cleveland, 994 F.3d at 535.
The undue burden standard articulated in Casey does not contemplate balancing the benefits and burdens of a challenged law, save perhaps for the special case of health regulations, which requires a court to assess whether the regulations are unnecessary.Instead, Casey sets out a clear rule: if a regulation has the purpose or effect of placing a substantial obstacle in the paths of women seeking pre-viability abortions, it is unconstitutional. Once a court determines that a statute has such a purpose or effect, there is no balancing left to be done because, regardless of whether a statute serves a valid state interest, “placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends.” Casey, 505 U.S. at 877. And if a statute does not present a substantial obstacle to a woman seeking to terminate a pre-viability pregnancy, then the statute is permissible so long as it is reasonably related to a legitimate state interest.
It is difficult to conceptualize how a court would determine the necessity of a health regulation without reference to its benefits.
2016 marked a departure from this understanding. In Whole Woman's Health v. Hellerstedt, 136 S.Ct. 2292 (2016), the Supreme Court enjoined Texas' admitting privileges and surgical center requirements for abortion providers, enacted ostensibly for health reasons. The Supreme Court held that “[t]he rule announced in Casey . . . requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Id. at 2309. In one sense, Whole Women's Health's articulation of the undue burden standard is more protective of abortion rights than Casey's because it subjects all state abortion regulations to a benefits-burdens balancing test. As such, under Whole Women's Health, a law that presents obstacles to pre-viability abortion that are more than de minimis but less than substantial might still impose an undue burden if the law's benefits are outweighed by its burdens. In another sense, however, Whole Women's Health's rule is less protective than Casey's because it leaves open the possibility that a law that presents a substantial obstacle to pre-viability abortion in objective, absolute terms might nonetheless be valid if its benefits are even more substantial than the obstacle it imposes. This is a door Casey had appeared to close. Casey, 505 U.S. at 877.
One plausible way to reconcile the two cases is to read Whole Women's Health purely as a health regulations case. As noted, Casey held that a state “may not impose unnecessary health regulations that present a substantial obstacle to a woman seeking an abortion, ” Id. at 837, and assessing whether a health regulation is necessary requires consideration of the regulation's benefits. Accordingly, it could be that Whole Women's Health's benefits-burdens balancing test applies only when a court is tasked with assessing the necessity of a regulation enacted ostensibly for health reasons. However, this narrower reading of Whole Women's Health seems unlikely given the opinion's broad articulation of the standard.
The sands shifted yet again in 2020 with June Medical Services LLC v. Russo, 140 S.Ct. 2103 (2020), a fractured decision that enjoined a Louisiana admitting-privileges law similar to Texas', but which did not produce a majority opinion. The four-member June Medical plurality reaffirmed Whole Women's Health's benefits-burdens balancing test and used it to analyze the regulations at issue. June Medical, 140 S.Ct. at 2112-13 (plurality opinion). The Chief Justice provided the crucial fifth vote, concurring in the plurality opinion's judgment but not in its reasoning. The Chief Justice criticized Whole Women's Health's benefits-burdens balancing test as inconsistent with Casey. Id. at 2136 (Roberts, C.J., concurring). In his view, so long as an abortion regulation is reasonably related to a valid state goal, “the only question for a court is whether [the] law has the effect of placing a substantial in the path of a woman seeking an abortion of a nonviable fetus.” Id. at 2138 (internal quotations and citation omitted). The Chief Justice concurred with the plurality's judgment because, in his view, principles of stare decisis required him to treat like cases alike, and if the Texas admitting privileges requirement placed a substantial obstacle in the paths of women seeking pre-viability abortions in Whole Women's Health, the same must be true for the nearly identical requirement in Louisiana. Id. at 2141-42.
June Medical's fractured decision has created uncertainty as to whose reading of Casey-the June Medical plurality's or the Chief Justice's-now controls. In Marks v. United States, the Supreme Court instructed that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” 430 U.S. 188, 193 (1977) (internal quotations and citation omitted). Applying the Marks rule, three circuit courts have concluded that the Chief Justice's concurring opinion in June Medical controls because his vote was necessary to the judgment and was premised on a narrower rule (the presence of a substantial obstacle alone, as opposed to the presence of a substantial obstacle balanced against the challenged law's benefits). See Whole Woman's Health v. Paxton, 10 F.4th 430, 440-42 (5th Cir. 2021); EMW Women's Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d 418, 433 (6th Cir. 2020); Hopkins v. Jegley, 968 F.3d 912, 915 (8th Cir. 2020). One circuit court has reached the opposite conclusion, reasoning that the narrowest common denominator between the June Medical plurality opinion and the Chief Justice's concurrence is that Whole Women's Health is entitled to stare decisis effect, meaning lower courts must continue to treat it as binding precedent. See Planned Parenthood of Ind. and Ky., Inc. v. Box, 991 F.3d 740, 748 (7th Cir. 2021).
“[T]he scope of June Medical and the effect of the concurrence has been controversial.” Id. at 751. The Ninth Circuit has not yet weighed in on this question, and the parties have not briefed it here. Accordingly, out of caution, the Court will apply both tests, which lead to the same result.
i. Substantial Obstacle
The Reason Regulations will have the effect of placing a substantial obstacle in the paths of a large fraction of women seeking pre-viability abortions. The denominator in this “large fraction” consists of women who wish to terminate a pre-viability pregnancy because of a fetal genetic abnormality. These are the women to whom the Reason Regulations will operate as an actual, rather than irrelevant, restriction. The Reason Regulations will substantially obstruct these women from making the ultimate choice to terminate their pregnancies.
The reason why is best understood by considering why Defendants believe the Reason Regulations will impose no undue burden. Defendants contend that a woman desiring a pre-viability abortion because of a fetal genetic abnormality can get one so long as she does not disclose her motive to her doctor. (Doc. 46 at 11-12.) They note that ADHS's 2019 report shows that 161 women reported the primary reason for obtaining an abortion was due to fetal health/medical considerations, and an additional 30 women reported “other” as their reason and then specified that their reason for obtaining an abortion was due to a genetic risk/fetal abnormality. (Id.; Doc. 46-1 at ¶ 10.) From this, Defendants infer that a woman will rarely explicitly disclose that she is seeking to terminate a pregnancy because of a fetal genetic abnormality. (Doc. 46 at 13.) And if she does disclose her motive, either intentionally or unintentionally, Defendants argue that she “can still obtain an abortion from another doctor who lacks the knowledge[.]” (Id.) The evidence, however, shows that this sort of doctor shopping will be easier said than done.
To begin, the Notification Provision will make it less likely that a woman who wants to terminate her pre-viability pregnancy because of a fetal genetic abnormality will know that she has the right to do so. The Notification Provision requires providers to tell such women that § 2 of the Act “prohibits abortion . . . because of a genetic abnormality.” Act § 11; A.R.S. § 3602158(A)(2)(d). This, however, is a clear misstatement of the law, a fact Defendants acknowledged during oral argument. (Oral Argument Tr. at 51.) Nowhere does § 2 of the Act outright prohibit abortions because of a fetal genetic abnormality. The Criminal Liability Provisions do not prohibit women from receiving pre-viability abortions because of a fetal genetic abnormality, nor do they per se prohibit doctors from performing abortions for such women. Instead, the Criminal Liability Provisions prohibit a provider from performing such an abortion if the provider knows the woman's motive. Under no circumstance is the woman liable, and the woman remains free to receive such an abortion from a provider who is unaware of her motive.
The Notification Provision essentially requires providers to mislead their patients into believing that their constitutionally protected choice is unlawful. The only reasonable inference the Court can draw is that the purpose and intended effect of the Notification Provision is to make it less likely that a woman, though desiring to terminate her pregnancy because of a fetal genetic abnormality, will successfully exercise her right to do so.
Assuming a woman who wants to terminate her pregnancy because of a fetal genetic abnormality learns-in the face of state-mandated misinformation-that she has the right to do so, she then must find a provider who is both eligible and willing to perform the procedure. This will be a vexing task because such women are already choosing from a more limited pool of providers, and the chilling effect of the Reason Regulations will only make that pool smaller.
Very few Arizona providers offer abortion at the later stages of pregnancy, when certain fetal conditions are likely to be detected. (Doc. 10-2 at 34 ¶ 11.) According to Dr. Issacson, only a handful of doctors in the state provide abortion care after 16 weeks gestation, and only three medical practices in the state (including Dr. Isaacson's) regularly
provide abortion care up to 23 weeks, 6 days gestation. (Id. at 33 ¶ 5; 34 ¶ 11.) Fetal genetic screening and testing is a multidimensional process that can begin with screening tests as early as 10 weeks gestation and continue well beyond 16 weeks gestation. (Id. at 6 ¶ 18; 10 ¶ 32; 11 ¶ 36; 12 ¶ 38.) Consequently, at the point women receive a fetal genetic diagnosis, they likely will be at a stage of pregnancy for which there are relatively few doctors providing abortion care.
The Reason Regulations then remove from this pool any providers who are expressly informed of the patient's motive. Arizona law requires providers to collect and report information about abortions, including “the reason for the abortion[.]” A.R.S. § 36-2161(12). Although a patient may choose not to answer, ADHS figures indicate that some do (Doc. 46-1 at ¶ 10), so it is reasonable to expect that at least some providers clearly will be unable to serve particular patients because those patients will have expressly disclosed that they are seeking an abortion because of a fetal genetic abnormality.
More important, however, is the chilling effect the Reason Regulations will have on those providers who remain. Drs. Ruess and Isaacson have persuasively explained that it often will be difficult for providers to avoid the inference that a patient seeking an abortion soon after receiving abnormal genetic testing results is doing so at least in part because of those results. (Doc. 10-2 at 13 ¶ 44; 14 ¶ 46; 20 ¶ 73; 42-45 ¶¶ 44-50, 53.) Given Arizona's broad definition of knowledge and the vagueness of the Reason Regulations' criminal and civil liability provisions, Drs. Isaacson and Reuss avow that they will stop performing abortions out of fear of prosecution if the Reason Regulations take effect. (Id. at 18 ¶ 66; 40 ¶¶ 35-36; 42 ¶ 43.) The evidence, along with common sense, leads the Court to find it likely that many other providers in Arizona will be chilled from performing abortions whenever they have information from which they might infer that a fetal genetic abnormality is a reason why a patient is seeking to terminate a pregnancy. See Casey, 505 U.S. at 892 (reinforcing evidence with “what common sense would suggest”); Whole Women's Health, 136 S.Ct. at 2299 (viewing evidence in light of common sense). Thus, the Reason Regulations will have the effect of drying up the supply of providers willing and able to provide services to these women.
Moreover, such women are racing against a clock because Arizona law prohibits post-viability abortions, A.R.S. § 36-2301.01(A), and viability usually occurs between 23-and 24-weeks gestation, Isaacson, 716 F.3d at 1225. Fetal genetic abnormalities might not be diagnosed until a woman nears that mark, and the time it takes her to do the sort of doctor shopping suggested by Defendants could push her past viability. If the Reason Regulations take effect, it is likely that women who wish to terminate their pregnancies because of a fetal genetic abnormality will find it substantially more difficult to find willing and eligible providers in time to exercise their rights.
For all these reasons, the Court finds that the Reason Regulations place a substantial obstacle in the paths of women seeking to terminate their pre-viability pregnancies because of a fetal genetic abnormality. Under the undue burden test articulated by the Chief Justice in his June Medical concurrence, this finding means the Reason Regulations likely are invalid.
ii. Benefits
Under Whole Women's Health, however, the Court is required to also consider the Reason Regulations' goals and benefits. The Court will begin with the Arizona legislature's findings and intent in enacting the Reason Regulations. Although the Court must review legislative findings deferentially, it also must not place dispositive weigh on them. Whole Women's Health, 136 S.Ct. at 2310. Instead, the Court has an independent duty to review legislative factual findings when constitutional rights are at stake. Id.
According to § 15 of the Act:
The Legislature finds that prohibiting persons from performing abortions knowing that the abortion is sought because of a genetic abnormality of the child advances at least three compelling state interests. First, this act protects the disability community from discriminatory abortions, including for example Down-syndrome-selective abortions. The Legislature finds that in the United States and abroad fetuses with Down syndrome are disproportionately targeted for abortions, with between 61 percent and 91 percent choosing abortion when it is discovered on a prenatal test.
See Box v. Planned
Parenthood of Indiana and Kentucky, Inc., 139 S.Ct. 1780, 1790-91 (2019) (Thomas, J., concurring). The Legislature intends to send an unambiguous message that children with genetic abnormalities, whether born or unborn, are equal in dignity and value to their peers without genetic abnormalities, born or unborn. Second, this act protects against coercive health care practices that encourage selective abortions of persons with genetic abnormalities. The Sixth Circuit Court of Appeals recently found that empirical reports from parents of children with Down syndrome attest that their doctors explicitly encouraged abortion or emphasized the challenges of raising children with Down syndrome, and there is medical literature to that effect.
See Preterm-Cleveland v. McCloud, No. 18-3329, __ F.3d, 2021 WL 1377279, at *2 (6th Cir. Apr. 13, 2021) (citing David A. Savitz, How Far Can Prenatal Screening Go in Preventing Birth Defects, 152 J. Of Pediatrics 3, 3 (2008) (arguing that “selective pregnancy terminations and reduced birth prevalence of Down syndrome is a desirable and attainable goal”)). Third, this act protects the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in genetic-abnormality-selective abortions. The Legislature finds that an industry that is associated with the view that some lives or potential lives are worth more than others is less likely to earn or retain the public's trust. All three of these purposes are also present for the similar prohibition in Arizona law on performing abortions knowing that the abortion is sought based on the sex or race of the child or the race of a parent of that child. The Legislature incorporates into its findings the statistics recently provided by this state and other states to the Supreme Court of the United States.
See Brief of the States of Wisconsin et al. at pages 17-25,
Box v. Planned Parenthood of Indiana and Kentucky Inc., No. 18-483,
2018 WL 6042853, available at https://www.supremecourt.gov/DocketPDF/18/18- 483/72184/2018111512235460318- 483%20Brief%20of%20States%20of%20Wisconsin%20et%2 0al%20Supporting%20Petitioners.pdf.
Act § 15; Note to
A.R.S. § 13-3603.02.
The legislature's first goal-“to protect[] the disability community from discriminatory abortions, including for example Down-syndrome-selective abortions”- would be legitimate if viewed as the State's expression of a value judgment favoring childbirth over abortion in cases of fetal genetic abnormality. See Webster, 492 U.S. at 506. Casey makes clear that states may “enact rules and regulations designed to encourage [women] to know that there are philosophic and social arguments of great weight that can be brough to bear in favor of continuing the pregnancy to full term[.]” 505 U.S. at 872. States may also enact measures designed to persuade women “to choose childbirth over abortion.” Id. at 878. If a state can express and promote a preference for childbirth over abortion in general, then the Court sees no reason why a state could not also express and promote a similar preference for childbirth over abortion in the specific case of fetal genetic abnormality.
The problem is that the mechanism Arizona has chosen is not designed to encourage women choose childbirth; it is designed to thwart them from making any other choice. The mechanism a state chooses to further its interest in potential life-here, in the potential life of those who might be born with disabilities-“must be calculated to inform the woman's free choice, not hinder it.” Id. at 877. Arizona remains free to “send an unambiguous message” about the “equal dignity and value” of people born with genetic abnormalities through such measures as precatory language expressing the State's value judgment, or through mechanisms that provide accurate information to women about philosophic and social arguments in favor of childbirth. But Arizona may not further its interest by erecting a substantial obstacle in the paths of women who have chosen to terminate their pre-viability pregnancies, which is what Arizona has done here.
Arizona's second goal-to “protect against coercive health care practices that encourage selective abortions of persons with genetic abnormalities”-is legitimate. The state has an interest in ensuring that a woman's choice is voluntary and well-informed. See Gonzales, 550 U.S. at 159. This interest, however, does not outweigh the burdens the Reason Regulations impose for two reasons.
First, the evidence raises doubt about whether such coercive heath care practices are problem in Arizona. For example, the American College of Obstetricians and
Gynecologists, the preeminent national professional organization for OB/GYNs, recommends that doctors provide “non-directive” counseling to patients, in which doctors answer patients' questions and discuss their concerns, but do not direct or otherwise attempt to determine their patients' decisions. (Doc. 10-2 at 6 ¶ 20; 9 ¶ 28.) Further, Drs. Reuss, Issacson, and Glaser stated that they and the specialists they work with employ non-directive counseling in their practices. (Id. at 13 ¶ 43; 28 ¶ 21; 34 ¶ 13.)
Second, the Reason Regulations are too blunt an instrument to further this narrow goal. Rather than enact measures regulating or proscribing specific coercive practices, Arizona has chosen instead to enact a broad penal and regulatory scheme that ensnares physicians like Drs. Reuss, Isaacson, and Glaser, who do not appear to engage in any such coercive practices. And in the process, Arizona is placing a substantial obstacle in the paths of those women who have freely and intelligently made the decision to terminate their pregnancies because of a fetal genetic abnormality. The lack of evidence that coercive medical practices are prevalent in Arizona, combined with the overbreadth of the Reason Regulations in relation to this stated goal, is strong evidence that the benefits of the Reason Regulations do not outweigh their burdens.
Lastly, although Arizona has an interest in protecting the integrity and ethics of the medical profession, Gonzales, 550 U.S. at 157, there are serious question as to whether “preventing doctors from becoming witting participants in genetic-abnormality-selective abortions” outweighs the concrete harms the Reason Regulations will visit upon the doctor-patient relationship. Dr. Reuss explains what should be self-evident: “The doctor-patient relationship is an active partnership that is dependent on trust and open communication.” (Doc. 10-2 at 5 ¶ 16.) Drs. Reuss, Isaacson, and Glaser all expressed deep concern that the Reason Regulations would damage the integrity of this relationship by discouraging frank, open, and honest communication, and adversely impact the quality of care as a result. (Id. at 18 ¶ 67; 19 ¶ 72; 27-28 ¶¶ 18-19; 48 ¶ 62.) If a woman wishes to terminate her pre-viability pregnancy because of a fetal genetic abnormality, the Reason Regulations require her to conceal this information from or lie to her doctor, neither of which fosters trust or encourages open dialogue. Arizona's more abstract concern with how the public might perceive the medical profession does not outweigh the concrete damage that the Reason Regulations would do to the doctor-patient relationship.
For these reasons, under the Whole Women's Health benefits-burdens balancing test, the Court finds both that the Reason Regulations place a substantial obstacle in the paths of women seeking to terminate pre-viability pregnancies because of a fetal genetic abnormality, and that the potential benefits of the Reason Regulations do not outweigh their likely burdens. The Reason Regulations therefore are likely unconstitutional.
B. Likelihood of Irreparable Harm, Balance of Hardships, and the Public Interest
Having concluded that Plaintiffs are likely to succeed on the merits of their vagueness and undue burden claims against the Reason Regulations, the Court finds that the remaining preliminary injunction factors favor relief. “It is well established that the deprivation of constitutional rights unquestionably constitutes irreparable injury” and “it is always in the public interest to prevent the violation of a party's constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (internal quotations and citations omitted). As for the balance hardships, the evidence suggests that the Reason Regulations will visit concrete harms on Plaintiffs and their patients. In contrast, Defendants stand only to lose the ability to immediately implement and enforce a likely unconstitutional set of laws. Plaintiffs therefore have carried their burden on all four elements of the preliminary injunction test.
Federal Rule of Civil Procedure 65(c) provides that the Court may issue a preliminary injunction “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” There is no evidence that Defendants will face any monetary injury if a preliminary injunction is issued. The Court therefore exercises its discretion to waive the bond requirement. See Diaz v. Brewer, 656 F.3d 1008, 1015 (9th Cir. 2011).
CONCLUSION
To summarize, the Court denies Plaintiffs' request to preliminary enjoin implementation of the Interpretation Policy. Under Webster, a challenge to this sort of provision needs to be brought in an as-applied challenge after Arizona's courts have had an opportunity to construe its scope and effect. The Court grants Plaintiffs' request to preliminarily enjoin enforcement of the Reason Regulations as they relate to fetal genetic abnormalities. The Reason Regulations likely are void for vagueness and impose an undue burden on the rights of women to terminate pre-viability pregnancies. Nothing in this order enjoins enforcement of Arizona's regulations of race- and sex-selective abortions, which are not at issue in this case.
IT IS ORDERED that Plaintiffs' motion for a preliminary injunction (Doc. 10) is GRANTED IN PART and DENIED IN PART as explained herein
IT IS FURTHER ORDERED that Defendants are preliminarily enjoined from enforcing the following provisions of Arizona Senate Bill 1457:
1. Section 2, to be codified as A.R.S. § 13-3603.02(A)(2), (B)(2), (D) (as it applies to subsections (A)(2) and (B)(2)), and (E) (as it applies to subsections (A)(2), (B)(2));
2. Section 10, to be codified as A.R.S. § 36-2157(A)(1) (as it applies to genetic abnormalities);
3. Section 11, to be codified as A.R.S. § 36-2158(A)(2)(d) (as it applies to genetic abnormalities); and
4. Section 13, to be codified as A.R.S. § 36-2161(A)(25).