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P.S.C. v. Glisson

United States District Court, W.D. Kentucky, Louisville Division

June 22, 2017

EMW WOMEN'S SURGICAL CENTER, P.S.C., on behalf of itself, its staff, and its patients; and ERNEST MARSHALL, M.D., on behalf of himself and his patients PLAINTIFFS
VICKIE YATES BROWN GLISSON, in her official capacity as Secretary of the Cabinet for Health and Family Services DEFENDANT


          Greg N. Stivers, Judge

         This matter is before the Court upon Planned Parenthood of Indiana and Kentucky, Inc.'s Motion to Intervene (DN 19). For the reasons stated below, the motion is GRANTED.

         I. BACKGROUND

         This case concerns the constitutionality of KRS 216B.0435. On March 13, 2017, the Cabinet for Health and Family Services (“the Cabinet”) notified EMW Women's Surgical Center, P.S.C. (“EMW”) that its abortion-facility license had been erroneously renewed because of deficiencies in its transfer and transport agreements, which are required by KRS 216B.0435. (Compl. Ex. C, DN 1-4). The Cabinet told EMW its license would be revoked if it failed to cure the alleged deficiencies by April 3, 2017. (Compl. Ex. F, DN 1-7). Subsequently, on March 29, 2017, Plaintiffs filed this action against Defendant Vickie Yates Brown Glisson (“Glisson”) in her official capacity as Secretary of the Cabinet, alleging that the Cabinet's actions and KRS 216B.0435 violate the First and Fourteenth Amendments of the United States Constitution. (Compl. ¶¶ 56-61). Plaintiffs also moved for a temporary restraining order and/or a preliminary injunction precluding the Cabinet from terminating EMW's license. (Mot. TRO and/or Prelim. Inj., DN 3).

         On March 31, 2017, after finding that Plaintiffs had demonstrated a likelihood of success on the merits and would suffer immediate and irreparable harm otherwise, the Court issued an ex parte order temporarily enjoining Glisson from “enforcing, attempting to enforce, threatening to enforce, or otherwise requiring compliance KRS 216B.0435 and 902 KAR 20:360, Section 10” for fourteen days. (Order 3-4, DN 6). Later, upon agreement of the parties, the Court converted its temporary restraining order into a preliminary injunction until final judgment, scheduled a bench trial for September 6, 2017, and set a pre-trial schedule. (Order, DN 11; Order, DN 16).

         Now, Planned Parenthood of Indiana and Kentucky, Inc. (“Planned Parenthood”) moves to intervene in the case as of right pursuant to Fed.R.Civ.P. 24(a) or, in the alternative, requests the Court's permission to intervene under Fed.R.Civ.P. 24(b). (Mot. Intervene, DN 19). Planned Parenthood asserts that it was denied an abortion-facility license because its transfer and transport agreements were deficient under KRS 216B.0435. Like EMW, Planned Parenthood contends that the statute is unconstitutional because it imposes medically unnecessary restrictions on abortion facilities with the purpose of shuttering all abortion facilities in the Commonwealth. (Mot. Intervene 3). According to Planned Parenthood, any decision regarding the constitutionality of KRS 216B.0435 will impair its ability to protect its interests and the interests of its patients. (Mot. Intervene 4). Furthermore, it is alleged that the interests of Planned Parenthood and its patients are not adequately represented by EMW because the immediate facts underlying the Cabinet's denial of Planned Parenthood's license application are distinct from those underlying the Cabinet's attempt to revoke EMW's license. (Mot. Intervene 4). Glisson opposes Planned Parenthood's intervention, arguing that it is untimely, premature, and unnecessary. (Def.'s Resp. Mot. Intervene, DN 30).

         To understand the parties' contentions regarding Planned Parenthood's proposed intervention, a bit more background is necessary. In December 2015, Planned Parenthood opened a new facility in Louisville, Kentucky that provides a range of women's-health services. (Stipulated Facts ¶ 3, DN 30-1). So that it could also provide medication and surgical abortions at the Louisville facility, Planned Parenthood submitted an application for an abortion-facility license to the Cabinet in November 2015. (Stipulated Facts ¶ 4). The application included a transfer agreement with a hospital and a transport agreement with an ambulance service. (Stipulated Facts ¶¶ 7-8). In January 2016, the Cabinet informed Planned Parenthood that the submitted agreements were deficient. (Stipulated Facts ¶ 9).

         Planned Parenthood submitted new transfer and transport agreements a month later. (Stipulated Facts ¶ 11). Specifically, Planned Parenthood had one transfer agreement with University of Kentucky's Chandler Medical Center in Lexington, Kentucky and Good Samaritan in Lexington, Kentucky and another with Clark Memorial Hospital in Jeffersonville, Indiana (apparently less than four miles from Planned Parenthood's Louisville, Kentucky facility). (Stipulated Facts ¶¶ 14-16; Mot. Intervene 9). On September 9, 2016, however, the Cabinet denied Planned Parenthood's license application, explaining that the transfer agreements were non-compliant because of the unreasonable distance between Louisville and the hospitals in Lexington and also because the Inspector General of the Cabinet “could not ensure that Clark Memorial was truly capable of treating patients with unforeseen complications” due to its Indiana location beyond the Cabinet's jurisdiction. (Stipulated Facts ¶ 19; Def.'s Resp. Mot. Intervene, Ex. 2, at 3, DN 30-2; Def.'s Resp. Mot. Intervene 3).

         Planned Parenthood decided to contest the Cabinet's denial of its license application through the administrative process provided by KRS 216B.105. (See Stipulated Facts ¶ 23). A hearing was held on January 11, 2017, consisting entirely of legal arguments based on the parties' stipulated factual record. (Def.'s Resp. Mot. Intervene Ex. 3, at 2, DN 30-3 [hereinafter Recommended Order]). The hearing officer then reopened the factual record-over Planned Parenthood's objection-and conducted an additional hearing on March 27 and 29, 2017. (Recommended Order 2; Mot. Intervene 3). On April 25, 2017, the hearing officer issued a recommended order, affirming the Cabinet's denial of Planned Parenthood's license application. (Recommended Order 9-10). Planned Parenthood filed exceptions to the hearing officer's recommended order pursuant to KRS 13B.110(4). (Def.'s Resp. Mot. Intervene Ex. 4, DN 30-4). The administrative matter remains pending, with a final decision due by July 19, 2017. (Reply 7, DN 35 (citing KRS 13B.120(4)).


         The Court has subject matter jurisdiction over this case because a federal question is presented. 28 U.S.C. § 1331.


         Under Fed.R.Civ.P. 24(a), the “court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.” Fed.R.Civ.P. 24(a)(2). To satisfy this rule, the Sixth Circuit requires a prospective intervenor to prove four elements: “1) the application was timely filed; 2) the applicant possesses a substantial legal interest in the case; 3) the applicant's ability to protect its interest will be impaired without intervention; and 4) the existing parties will not adequately represent the applicant's interest.” Blount-Hill v. Zelman, 636 F.3d 278, 283 (6th Cir. 2011) (citing Grutter v. Bollinger, 188 F.3d 394, 397-398 (6th Cir. 1999)).

         Meanwhile, Fed.R.Civ.P. 24(b) provides that “the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact.” Fed.R.Civ.P. 24(b)(1). Once the prospective intervenor establishes this requirement, “the district court must then balance undue delay and prejudice to the original parties, if any, and any other relevant factors to determine whether, in the court's discretion, intervention should be allowed.” Unit ...

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