Case 4:17-cv-00404-KGB Document 97 Filed 01/05/21 Page 1 of 253 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION FREDERICK W. HOPKINS, M.D., M.P.H., and LITTLE ROCK FAMILY PLANNING SERVICES, INC. PLAINTIFFS v. Case No. 4:17-cv-00404-KGB LARRY JEGLEY, Prosecuting Attorney for Pulaski County, SYLVIA D. SIMON, M.D., Chair of the Arkansas State Medical Board; ROBERT BREVING, JR., M.D.; ELIZABETH ANDERSON; RHYS L. BRANMAN, M.D.; EDWARD GARDNER, M.D.; VERYL D. HODGES, D.O.; RODNEY GRIFFIN, M.D.; BETTY GUHMAN; WILLIAM L. RUTLEDGE, M.D.; JOHN H. SCRIBNER, M.D.; BRIAN T. HYATT, M.D.; TIMOTHY C. PADEN, M.D.; DON R. PHILLIPS; M.D.; DAVID STAGGS, M.D., officers and members of the Arkansas State Medical Board; JOSE ROMERO, M.D., the Secretary of the Arkansas Department of Health; PHILLIP GILMORE, Ph.D.; PERRY AMERINE, O.D.; MARSHA BOSS, P.D.; LANE CRIDER, P.E.; BRAD ERNEY, D.M.D.; MELISSA FAULKENBERRY, D.C.; ANTOHNY N. HUI, M.D.; BALAN NAIR, M.D.; GREG BLEDSOE, M.D.; STEPHANIE BARNES BEERMAN; GLEN BRYANT, M.D.; DWAYNE DANIELS, M.D.; VANESSA FALWELL, A.R.P.N.; DARREN FLAMIK, M.D.; THOMAS JONES, R.S.; DAVID KIESSLING, D.P.M.; CARL RIDDELL, M.D.; CLAY WALISKI; TERRY YAMAUCHI, M.D.; DONALD RAGLAND; CATHERINE TAPP, M.P.H.; SUSAN WEINSTEIN, D.V.M; JAMES ZINI, D.O., officers and members of the Arkansas Department of Health, and their successors in office, in their official capacity DEFENDANTS PRELIMINARY INJUNCTION ORDER AFTER REMAND Before the Court is plaintiffs Frederick W. Hopkins, M.D., M.P.H., and Little Rock Family Planning Services, Inc.’s (“LRFP”) motion for a second preliminary injunction and/or a temporary restraining order (Dkt. No. 73). Defendants responded in opposition to the motion for a second preliminary injunction (Dkt. No. 92). Plaintiffs replied (Dkt. No. 93). Also before the Court is defendants’ motion to strike plaintiffs’ motion for a second preliminary injunction and request for Case 4:17-cv-00404-KGB Document 97 Filed 01/05/21 Page 2 of 253 expedited consideration (Dkt. No. 75). Plaintiffs responded in opposition to the motion to strike (Dkt. No. 89). The Court conducted a hearing on the pending motions on January 4, 2021, at which counsel presented argument only to the Court (Dkt. No. 94). I. Procedural Background Initially, Dr. Hopkins filed this suit on June 20, 2017, pursuant to 42 U.S.C. § 1983. On December 22, 2020, Dr. Hopkins amended his complaint and Little Rock Family Planning Services, Inc. (“LRFP”), joined Dr. Hopkins as a plaintiff in filing suit against defendants Larry Jegley, Prosecuting Attorney for Pulaski County; Sylvia D. Simon, M.D., Chair of the Arkansas State Medical Board; Robert Breving, Jr., M.D.; Elizabeth Anderson; Rhys L. Branman, M.D.; Edward Gardner, M.D.; Veryl D. Hodges, D.O.; Rodney Griffin, M.D.; Betty Guhman; William L. Rutledge, M.D.; John H. Scribner, M.D.; Brian T. Hyatt, M.D.; Timothy C. Paden, M.D.; Don R. Phillips, M.D.; David L. Staggs, M.D., as officers and members of the Arkansas State Medical Board; Jose Romero, M.D., the Secretary of the Arkansas Department of Health; Phillip Gilmore, Ph.D.; Perry Amerine, O.D.; Marsha Boss, P.D.; Lane Crider, P.E.; Brad Erney, D.M.D.; Melissa Faulkenberry, D.C.; Anthony N. Hui, M.D.; Balan Nair, M.D.; Greg Bledsoe, M.D.; Stephanie Barnes Beerman; Glen Bryant, M.D.; Dwayne Daniels, M.D.; Vanessa Falwell, A.R.P.N.; Darren Flamik, M.D.; Thomas Jones, R.S.; David Kiessling, D.P.M.; Carl Riddell, M.D.; Clay Waliski; Terry Yamauchi, M.D.; Donald Ragland; Catherine Tapp, M.P.H.;. Susan Weinstein, D.V.M; James Zini, D.O., officers and members of the Arkansas Department of Health, and their successors in office, in their official capacities (Dkt. No. 82). In this suit, Dr. Hopkins and LRFP mount a constitutional challenge to four acts of the 91st Arkansas General Assembly of 2017, Act 45 (H.B. 1032), codified at Ark. Code Ann. §§ 20-16- 1801 to 1807 (“D&E Mandate”); Act 733 (H.B. 1434), codified at Ark. Code Ann. §§ 20-16-1901 2 Case 4:17-cv-00404-KGB Document 97 Filed 01/05/21 Page 3 of 253 to 1910 (“Medical Records Mandate”); Act 1018 (H.B. 2024), codified at Ark. Code Ann. § 20- 16-108(a)(1) (“Local Disclosure Mandate”); and Act 603 (H.B. 1566), codified at Ark. Code Ann. §§ 20-17-801 to 802 (“Tissue Disposal Mandate”). By its terms, H.B. 1434 was to take effect January 1, 2018. The remaining three laws, H.B. 1032, H.B. 2024, and H.B. 1566, were to take effect on or about July 30, 2017. The Court previously enjoined enforcement of these statutes in a preliminary injunction entered on July 28, 2017 (Dkt. Nos. 35, 36). On August 25, 2017, a notice of appeal of this Court’s preliminary injunction was filed (Dkt. No. 38). Neither party asked this Court or the United States Court of Appeals for the Eighth Circuit for a stay while the appeal was pending (Dkt. No. 91). After three years, and based on intervening decisions issued by the United States Supreme Court, the Eighth Circuit vacated this Court’s preliminary injunction order and remanded “for reconsideration in light of Chief Justice Roberts’s separate opinion in June Medical, which is controlling, as well as the Supreme Court’s decision in Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780 (2019) (per curiam).” (Dkt. No. 49, at 7).1 In his initial motion (Dkt. No. 2), Dr. Hopkins sought preliminary injunctive relief based on the following claims in his complaint: Count I based on the D&E Mandate, Counts III and IV based on the Medical Records Mandate, Counts VI and VIII based on the Local Disclosure Mandate, and Counts X and XI based on the Tissue Disposal Mandate. Dr. Hopkins claims that “[t]hese statutes threaten [him] with criminal penalties and deny and burden [his] patients’ constitutionally protected rights to decide to end a pre-viability pregnancy, to make independent decisions related to their pregnancy care, and to protect their private medical information.” (Dkt. 1 June Medical” in the Eighth Circuit opinion is referring to June Medical Services. v. Russo, 140 S. Ct. 2013, 2020 WL 3492640 (2020)(plurality opinion). 3 Case 4:17-cv-00404-KGB Document 97 Filed 01/05/21 Page 4 of 253 No. 1, at 3, ¶ 9). He sought declaratory and injunctive relief “[t]o protect his patients from these constitutional violations, to enforce his own right to clear legal standards, and to avoid irreparable harm. .” (Dkt. No. 1, at 3, ¶ 9). Defendants responded in opposition to the motion (Dkt. No. 23). Dr. Hopkins filed a reply (Dkt. No. 32). Defendants also submitted two notices of supplemental authority (Dkt. Nos. 31, 34). The Court conducted a hearing on the motion for preliminary injunction on July 13, 2017. The parties agreed among themselves not to present additional evidence at the hearing but instead to present only argument, and the Court agreed to hear only argument. In an Order dated July 28, 2017, the Court granted Dr. Hopkins’s motion for a preliminary injunction (Dkt. Nos. 35, 36) Prior to the Eighth Circuit’s mandate issuing, Dr. Hopkins and LRFP moved for a temporary restraining order based on the same findings and this Court’s legal conclusions granting the 2017 preliminary injunction (Dkt. No. 69, at 3). Defendants responded in opposition (Dkt. No. 78). The Court conducted a hearing (Dkt. No. 91). The Court granted Dr. Hopkins and LRFP’s motion for temporary restraining order and temporarily enjoined the enforcement of these four laws to preserve the status quo until the merits of Dr. Hopkins and LRFP’s pending motions, and defendants’ pending motion to strike, could be determined (Dkt. No. 83). On December 18, 2020, Dr. Hopkins and LRFP filed a motion to amend complaint (Dkt. No. 65), which this Court granted (Dkt. No. 81). Dr. Hopkins and LRFP assert in their amended complaint legal challenges to the D&E Mandate, the Medical Records Mandate, the Local Disclosure Mandate, and the Tissue Disposal Mandate that are substantially similar to the challenges made by Dr. Hopkins in 2017. For the following reasons, after remand, the Court denies defendants’ motion to strike and grants plaintiffs’ motion for a second preliminary injunction order. 4 Case 4:17-cv-00404-KGB Document 97 Filed 01/05/21 Page 5 of 253 II. Mandate Rule Defendants request that this Court strike plaintiffs’ “proffered declarations and the entirety of the motion [for a second preliminary injunction] that relies on it” arguing they are “an improper attempt to circumvent the Eighth Circuit’s limited remand by revamping the factual record.” (Dkt. No. 75, at 1). Defendants cite the mandate rule in support of this argument. Plaintiffs oppose the motion to strike, asserting that the Eighth Circuit in ruling on an interlocutory appeal of a preliminary injunction altered the governing undue burden standard based on an intervening Supreme Court decision issued during the pendency of the interlocutory appeal but did not limit the scope of further proceedings in this Court (Dkt. No. 89, at 1). Plaintiffs point out that the Eighth Circuit’s judgment is that “the cause is remanded to the district court for proceedings consistent with the opinion of this court.” (Id., at 2). Plaintiffs also argue that, “in light of the Eighth Circuit’s changes to a central legal standard in this case, other intervening legal decisions, and the still-preliminary stage of the case, it would be fundamentally unfair and improper to limit Plaintiffs to the evidentiary submissions they made at the very start of the case in 2017.” (Id., at 1).