Citations
- 250 F. Supp. 3d 27
Full opinion text
FINDINGS OF FACTS AND CONCLUSIONS OF LAW
JUDGE JOHN W. deGRAVELLES
TABLE OF CONTENTS
OVERVIEW . . . 31
I. Introduction ... 31
FINDINGS OF FACT ... 35
II. Background and Procedural Histo-
ry ... 35
III. Contentions of the Parties ... 38
IV. The Factual Issues ... 39
V. Abortion in Louisiana ... 39
A. Generally ... 39
B. The Clinics ... 40
(1) Hope ... 40
(2) Bossier ... 40
(3) Causeway ... 41
(4) Women’s Health ... 41
(5) Delta ... 41
C. The Doctors ... 41
(1) Doel ... 41
(2) Doe 2 ... 42
(3) Doe 3 ... 42
(4) Doe 4 ... 43
(5) Doe 5 ... 43
(6) Doe 6 ... 43
D. Admitting Privileges in Louisiana ...44
E. The Climate ... 51
VL Act 620 ... 53
A. Text of Act 620 and Related Provisions ... 53
B. Louisiana’s Policy and Past Legislation Regarding Abortion ... 54
C. Dráfting of Act 620 ... 55
D. Official Legislative History of Act 620 ... 56
VIL , The Purpose and Medical Reasonableness of Act 620 ... 58
A. Expert Testimony ... 59
B. Abortion Safety ... 61
C. Requiring Abortion Practitioners to Obtain Admitting Privileges Confers No Medical Benefit ... 64
VIII. Efforts of Doctors to Comply With Act 620 and the Results of Those Efforts ... 66
A. Doe 1 ... 66
B. Doe 2 ... 68
C. Doe 3 ... 74
D. Doe 4 ... 75
E. Doe 5 ... 75
F. Doe 6 ... 76
G. Post-Trial Updates ... 77
IX. Effects of Act 620 ... 77
A. The Effect of Act 620 on Doe 1-6 ... 77
B. The Effect of Act 620 on the Clinics and Women of Louisiana ... 80
C. The Real-World Effect of Act 620 on Louisiana Women .... 82
CONCLUSIONS OF LAW ... 84
X. Summary of Legal Arguments ... 84
XI. Test for Determining the Constitutionality of Act 620 ... 84
XII. Analysis ... 86
A. Act 620 Does Not Protect Women’s Health ... 86
B. The Burdens Imposed by Act 620 ... 87
C. The Burdens Imposed by Act 620 Vastly Outweigh its Benefits ... 87
XIII. Conclusion ... 88
OVERVIEW
L Introduction
Since this Court issued a preliminary injunction in this matter, the Supreme Court has held that the Fifth; Circuit’s interpretation of the undue burden test was incorrect. Whole Woman’s Health v. Hellerstedt, — U.S. -, 136 S.Ct. 2292, 2309, 195 L.Ed.2d 665 (2016) (hereinafter “WWH") (“The Court of Appeals’ articulation of the relevant standard is incorrect.”). In its ruling, this Court’s conclusions of law applied the Fifth Circuit’s legal standard, which WWH reversed. Specifically, this Court initially concluded, in line with Fifth Circuit precedent, that it could not consider evidence regarding whether the Act would actually serve its purported purpose to advance women’s health and safety in practice, and could not weigh the Act’s burdens against its benefits. (Doc. 216 ¶¶ 178, 333-35, 346, 351-52, 364-67, 372) (citing, inter alia, Whole Woman’s Health v. Cole, 790 F.3d 563, 587 n.33 (5th Cir. ’ 2015)). Accordingly, this Court ruled it could not resolve the parties’ dispute over whether the Act is medically reasonable. (Id. ¶ 178(C) & n.41.)
In addition, this Court held the undue burden'test, as applied in the Fifth Circuit, precluded consideration of evidence related to the challenges women would face in obtaining abortions under the Act in their “real-world” context. (Id. ¶¶ 340-43) (citing, inter alia, Cole, 790 F.3d at 589). This Court therefore did not consider evidence regarding how the Act, when considered in the real-world context of abortion patients’ poverty and transportation challenges, providers’ fear of anti-abortion violence, pre-existing regulations, and other obstacles to abortion access, would impose unique burdens on Louisiana women. (Id. ¶ 344.) The Supreme Court has now clarified that these facts should be considered when evaluating whether an abortion restriction is constitutional. See WWH, 136 S.Ct. at 2302, 2312-13.
The Supreme Court held in WWH that restrictions on access to abortion before viability must be subject to meaningful judicial scrutiny: rational basis review is simply not enough when “regulation of a constitutionally protected personal liberty” is at issue. WWH, 136 S.Ct. at 2309. Rather, under the undue burden analysis, a restriction must be shown to actually “further” its purported interest, and it is constitutional only if its benefits outweigh its burdens. See id. at 2309-10. Additionally, in evaluating a restriction’s benefits and burdens, courts must not simply defer to a State’s assertions about any purported benefits or burdens, but must consider actual evidence. See id. at 2310-12. The Court explained its reasons for rejecting the Fifth Circuit’s analysis:
The rule announced in [Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ] ... requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer. And the [Court of Appeals was] wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue. The Court of Appeals’ approach simply does not match the standard that this Court laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is “undue.”
Id. at 2309-10 (citations omitted). Thus, WWH makes clear that courts have a “constitutional duty” to look beyond a State’s assertions for restricting access to abortion to evaluate whether the restrictions at issue will actually advance any legitimate interests. Id. at 2310.
Further, the Supreme Court specifically affirmed the relevance of evidence related to medical reasonableness and “real-world” conditions in evaluating a law’s furtherance of its purported interest and its burdens on women seeking abortion. Id. at 2301-03, 2312-13. Thus, the Court recounted with favor the finding of the District Court that “[t]he great weight of evidence demonstrates that, before the act’s passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.” Id. at 2302. It affirmed that abortion “has been shown to be much safer, in terms of minor and serious complications, than many common medical procedures not subject to such intense regulation and scrutiny,” and that the challenged laws would not decrease risks, improve outcomes, or result in better care. Id. It also relied upon the district court’s findings that the “requirements erect a particularly high barrier for poor, rural, or disadvantaged women.” Id. The Court also clarified that no single factor is determinative as to whether a restriction imposes an undue burden, but rather the burdens’ impact must be evaluated cumulatively, and are undue if unjustified by the law’s purported benefits. Id. at 2313.
While this Court determined that the challenged Act was unconstitutional even under the Fifth Circuit’s now-rejected interpretation of the undue burden test, as a result of the WWH decision, certain facts that Defendant argued were not legally relevant are now indisputably relevant and, indeed, critical to the constitutional analysis. To summarize, under WWH, this Court must consider (a) evidence regarding whether and how the restriction furthers the legislature’s purported interest, which in this case, includes the Act’s medical reasonableness, and (b) evidence regarding the actual burdens the restriction places on women seeking abortions. The Court must then assess the burdens and benefits of the restriction,- and weigh the former against the latter to ensure that the burden the law imposes is not “undue.” A re-evaluation of certain of the Court’s conclusions of law also necessarily flows from applying the standard articulated by the Supreme Court.
By Order dated January 26, 2016- (Doc. 216), and following a trial during which extensive evidence was submitted into the record, this Court preliminarily enjoined Defendant Rebekah Gee, in her official capacity as Secretary of the Louisiana Department of Health and Hospitals, from enforcing Section A(2)(a) of Act Number 620, amending Louisiana Revised Statutes § 40:1299.35.2.2 (“the Act” or “Act 620”), against Plaintiffs June Medical Services LLC, d/b/a Hope Medical Group for Women (“Hope” or “Hope Clinic”); Bossier City Medical Suite (“Bossier” or “Bossier Clinic”); Choice Inc., of Texas, d/b/a Causeway Medical Clinic (“Choice” or “Causeway”) (collectively, “Plaintiff Clinics”); Dr. John Doe, M.D. 1 (“Doe l”) and Dr. John Doe, M.D. 2 (“Doe 2”) (collectively, “Plaintiff Doctors”) (collectively, “Plaintiffs”). (Doc. 5.)' Now before the Court are the parties’ contentions with regard to a permanent injunction in this matter.
The Court requested supplemental proposed findings of fact and conclusions of law from the parties on a permanent injunction following the parties’ agreement that the Court may proceed to rule on the permanent injunction—including additional findings of fact and conclusions of law required by WWH—based on the existing record (Doc.' 253). The parties further agreed that no further evidence is needed, apart from short stipulations submitted jointly by the parties and accepted by the Court, (Docs. 255, 265, 271), and an affidavit of Dr, Doe 2. (Doc. 272.) Therefore, pursuant to Federal Rule of Civil Procedure 65(a), and with the consent and agreement of the parties, the Court advances to the merits of the permanent injunction, consolidating it with the hearing on the preliminary injunction. The record from the preliminary injunction trial is part of the merits trial record, together with the stipulations of the parties.
The hearing on the Motion for Preliminary Injunction was held from June 22, 2015, through June 29, 2015. (Docs. 163-64, 166, 169, 174.) At the hearing, the Court received evidence in the form of live witness testimony, exhibits, stipulations, and designated deposition testimony agreed by Plaintiffs and Defendant (collectively, “Parties”) to be received in lieu of certain witness’ live testimony. Plaintiffs presented live testimony from the following witnesses:
- Doe 1;
- Doe 2;
- Doe 3;
- Ms. Kathaleen Pittman (“Pittman”), June’s administrator; and
- Kliebert; and
- Three experts, specifically:
- Doctor Christopher M. Estes (“Estes”), Chief Medical Officer of Planned Parenthood of South Florida and the Treasure Coast, (PX 92);
- Doctor Sheila Katz (“Katz”), an assistant professor at the University of Houston, (JX 91); and
- Doctor Eva Karen Pressman (“Pressman”), the Henry A. Thiede Professor and Chair of The Department of Obstetrics and Gynecology at The University of Rochester, (PX 94).
Defendant presented live testimony at trial from the following witnesses:
- Ms. Cecile Castello (“Castello”), Director of Health Standards Section (“HSS”) for DHH; and
- Three other experts, specifically:
- Doctor Robert Marier (“Marier”), Chairman of the Department of Hospital Medicine at Ochsner Medical Center in New Orleans, (DX 146);
- Doctor Tumulesh Kumar Singh So-lanky (“Solanky”), a professor and the chair of the Mathematics Department at the University of New Orleans, (DX 148); and
- Doctor Damon Thomas Cudihy (“Cudihy”), an obstetrician-gynae-cologist (“OB/GYN,” “Ob/Gyn,” “OBG,” or “0 & G”) currently licensed to practice medicine in Louisiana and Texas, (DX 147).
A record of the exhibits admitted into evidence was filed. (Doc. 165.) A record of the deposition testimony designated by the Parties and offered into evidence was also docketed. (Doc. 168.) In addition, the Parties submitted proposed findings of fact and conclusions of law, (Docs. 196, 200), and responses to each other’s proposed findings and conclusions, (Docs. 201, 202). Additional stipulations of fact were submitted by the parties. (Docs. 224, 255, 265, 271.)
In making the following findings of fact and conclusions of law, the Court has considered the record as a whole. The Court has observed the demeanor of witnesses and has carefully weighed their testimony and credibility in determining the facts of this case and drawing conclusions from those facts. All findings of fact contained herein that are more appropriately considered conclusions of law are to be so deemed. Likewise, any conclusions of law more appropriately considered a finding of fact shall be so classified.
After having considered the evidence, briefing, and record as a whole, for the reasons which follow, the Court declares Act 620 unconstitutional in all of its applications, and enters a permanent injunction barring its enforcement. The active admitting privileges requirement of Section A(2)(a) of Act 620 is found to be a violation of the substantive due process right of Louisiana women to obtain an abortion, a right guaranteed by the Fourteenth Amendment of the United States Constitution as established in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and pursuant to the test first set forth in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (“Casey”), and subsequently refined in Whole Woman’s Health v. Hellerstedt, — U.S. -, 136 S.Ct. 2292, 2319, 195 L.Ed.2d 665 (2016) (hereinafter “WWH”). Act 620 is therefore declared unconstitutional, and its enforcement enjoined in all of its applications.
FINDINGS OF FACT
II. Background and Procedural Histo-IZ
1.Plaintiffs are:
- Hope, a licensed abortion clinic located in Shreveport, Louisiana, suing on behalf of its physicians, staff and patients;
- Bossier, a licensed abortion clinic located in Bossier City, Louisiana, suing on behalf of its physicians, staff, and patients;
- Choice, a licensed abortion clinic suing on behalf of its physicians, staff, and patients;
- Doe 1, a physician licensed to practice medicine in the State of Louisiana and board-certified in Family Medicine and Addiction Medicine, suing on his own behalf and that of his patients; and
- Doe 2, a physician licensed to practice medicine in the State of Louisiana and board-certified in OB/GYN, suing on his own behalf and that of his patients.
2. Dr. Rebekah Gee, (“Defendant,” “Gee,” or “Secretary,”) is the Secretary of DHH. Pursuant to § 40.2175.6, Gee “has the authority to revoke or deny clinics’ licenses for violation of this or any other law.” (Doc. 109 at 5 (citing La. Rev. Stat. § 40:2175.6).)
3. On August 22,2014, Plaintiffs filed the Complaint for Declaratory and Injunctive Relief, (Doc. 1), and the Application, (Doc. 5), seeking to enjoin various defendants from enforcing Act 620’s Section (A)(2)(a). (Doc. 5-2 at 2-5.)
4. Act 620 has been codified at an amended Section 40:1299.35.2. La. R.S. § 40:1299.35.2. Section A(2)(a) requires every doctor who performs abortions in Louisiana to have “active admitting privileges” at a hospital within 30 miles of the facility where abortions are performed. Id. § 40:1299.35.2A(2)(a). While the Act contains other requirements, this provision is the only one being challenged. (Doc 5-1 at 8 n.l.) Act 620 was signed into law by the Governor of Louisiana, the Honorable Pi-yush “Bobby” Jindal (“Jindal” or “Governor”), on June 12, 2014. (Doc. 138 at 2; see also, e.g., H.B. 388, 2014 Leg., Reg. Sess. (La. 2014) (signed by Governor, June 12, 2014).) Its effective date was set as September 1, 2014. (See, e.g,, Doc, 5-1 at 8; Doc. 5-2 at 6.) Shortly before trial, on April 20, 2015, DHH promulgated implementing regulations that include an admitting privileges requirement repeating the language of Act 620 and a penalty provision of $4,000 per violation. La. Admin. Code tit. 48, pt. I, §§ 4401 (definition of “active admitting privileges”), 4423(B)(3)(e), available at 41 La. Reg. 685, 696 (Apr. 20, 2015). These were accompanied by a statement averring that they “will only be enforced pursuant to Order” in the present ease. Id. The Order the Court issues today thus embraces these regulations as well as the Act itself.
5.Hope is one of three remaining licensed abortion clinics in Louisiana still operating. (See, e.g., Doc. 109 ¶¶ 4-5; Doc, 14 ¶ 10 at 3.) It is located in Shreveport. Causeway was an abortion clinic in Metair-ie. On January 26, 2016, this Court entered a preliminary injunction that did not encompass Causeway’s primary physician, Doe 4, who immediately ceased providing abortions. (Doc. 216, at 112; Doe. 255 ¶ 1.) The parties entered into a stipulation that would extend the injunction to him, which this Court so ordered on February 5, 2016. (Doc. 224.) Causeway closed permanently. (Doc. 255 ¶2.) It returned its license to DHH, effective February 10, 2016. (Doc. 255 ¶ 3.) Bossier was an abortion clinic in Bossier City. On or about March 30, 2017, Bossier ceased business and surrendered its license, returning it to DHH. (See Doe. 271.) Does 1 and 2 are two. of five remaining physicians performing abortions in Louisiana. Doe 1 performs abortions at Hope; Doe 2 performed abortion at Bossier, and now performs abortions at Hope. (Doc. 109 ¶¶ 10-11; see also, e.g., Doc. 14 ¶¶ 14-15; Doc. 272 ¶ 3.) Doe 4 no longer offers abortion care in Louisiana. (Doc. 255 ¶1.)
6. The Court issued the TRO on August 31, 2014, enjoining enforcement of Act 620 “until a hearing is held for the purpose of determining whether a preliminary injunction should issue.” (Doc. 31 at 18.) Per this order, Plaintiffs were expected to continue seeking admitting privileges at the relevant hospitals. (Id. at 1-2.) Thus, the Act would, be allowed to take effect, but the Plaintiffs would not be subject to its penalties and sanctions for practicing without the relevant admitting privileges during the application process. (Id. at 2, 18.) The Plaintiff Clinics were allowed to operate lawfully while the Plaintiff Doctors continued their efforts to obtain privileges. (Id.)
7. On September 19, 2014, three other plaintiffs—Women’s Health Care Center, Inc. (“Women’s Health” or “Women’s Clinic”); . Delta Clinic of Baton Rouge, Inc. (“Delta”); Doctor John Doe 5 (“Doe 5”); and Doctor John Doe 6 (“Doe 6”) (collectively, “Women’s Health Plaintiffs”)~filed the Complaint for Declaratory and Injunc-tive Relief, thereby initiating a separate case, and a Motion for Preliminary Injunction. (Docs. 1, 5, No. 3:14~cv-00597-JWD~ RLB.) On that same day, these parties tendered a motion to consolidate their case with this earlier proceeding. (Doc. 2, No. 3:14-cv-00597-JWD-RLB.) By this Court’s order, these two cases were consolidated on September 24, 2014. (Doc. 8, No. 3:14~ev-00597-JWD-RLB.)
8. All the Parties agreed in briefs and orally at a status conference held on September 30, 2014, that significant discovery would need to be done to prepare for the hearing; therefore, the Court set the preliminary injunction hearing for March 30, 2015. (Doc. 45.) A Joint Proposed Scheduling Order was submitted by the Parties on October 8, 2014, (Doc. 49), and adopted as this Court’s order on October 21, 2014, (Doc. 56).
9. On November 3, 2014, following the addition of the Women’s Health Plaintiffs, this Court issued the Order Clarifying Temporary Restraining Order of August 31, 2014. (Doc. 57.) For the reasons given therein, the Court ruled: “It was and is the intention of this Court that the TRO remain in effect as to, all parties before it until the end of the Preliminary Injunction Hearing.” (Id. at 6.)
10. Oh December 5, 2014, the Women’s Health Plaintiffs filed the Motion for Voluntary Dismissal. (Doc. 70.) With the consent of the Parties, the Court dismissed this suit Without prejudice on December 14, 2014. (Doc. 77.) In light of that dismissal, the Court on January 15, 2015, issued the Second Order Clarifying Temporary Restraining Order of August 31, 2014. (Doc. '84.) In this order, for reasons explained therein, this Court ruled that “the TRO of August 81, 2014 (Doc. 31) remains in force until the Preliminary Injunction hearing on March 30, 2015 or as otherwise modified by this Court.” (Id. at 4.)
11. On February 16, 2015, Defendants filed the Motion for Partial Summary Judgment (“Partial MSJ”), (Doc. 87), which was opposed, (Doc. 104). On February 24, 2015, Defendants filed an Unopposed Motion to Set Oral Argument on Motion for Partial Summary Judgment (Doc. 90.) On March 3, 2015, the Court granted that motion, (Doc. 92), and oral argument was set and heard on March 19, 2015, (Docs. 128,137).
12. On 'May 12, 2015, the Partial MSJ was granted in part, finding that under then-binding Fifth Circuit jurisprudence, the admitting privileges requirement of Act 620 was “rationally related” to a. legitimate state interest. (Doc. 138 at 25.) In all other respects, the motion was denied. (Id.)
13. Based on á stipulation reached among the Parties, the Joint Motion to Dismiss Defendant Mark Dawson was filed on March 17, 2015, (Doc. 110), and granted the same day, (Doc, 111). On March 20, 2015, the Parties conferred with the Court and agreed to a continuance of the hearing on the preliminary injunction until the week of June 22, 2015. (Doc. 129.) The Parties agreed that the TRO would remain in effect until the completion of the trial and ruling on the merits of the preliminary injunction. (Id.)
14. On April 1, 2015, oral argument was heard on motions in limine filed by the Parties. (Docs. 136, 151.) In the ruling issued that same day, the Court denied Plaintiffs’ Motion in Limine to Preclude Expert Testimony of Dr. Tumulesh So-lanky, (Doc. 96), and Defendant’s Motion to Exclude Expert Testimony of Sheila Katz, Ph.D., (Doc. 99). (Doc. 136.) Plaintiffs’ Motion in Limine to Preclude Expert Testimony of Dr. McMillan, (Dob.' 97), was deniéd as moot. (Doc.- 136.) Because of their - connection to the Partial MSJ, Defendant’s Motion in Limine to Exclude Irrelevant Evidence (“Defendant’s Motion in Limine”), (Doc. 95), and Plaintiffs’ Motion in Limine to Preclude Evidence of DHH Deficiency Reports and Related Evidence, (Doc. 98), were taken under advisement. (Doc. 136.) These two motions were ultimately denied. (Docs. 139,140.)
15. On June 11, 2015, Defendant filed the Motion to Reconsider Rulings on Summary Judgment and Motion' in Limine. (Doc. 144.) Plaintiffs submitted their response in opposition on June 16, 2015. (Doc. 150.) Because this was submitted for consideration only six days before trial, the motion was taken under advisement and deferred to trial.
16. Trial on the Motion for Preliminary Injunction began on June 22, 2015, and ended on June 29, 2015. (Docs. 163, 164, 166-69, 174). The Redacted Transcript of the trial was later docketed. (Docs. 190-95.) On January 26, 2016, the Court declared Act 620 facially unconstitutional and entered a preliminary injunction against enforcement of Act 620 as to the Plaintiffs—Hope, Bossier, Causeway and Does 1 and 2. (Doc. 216, at 111-112.) The parties stipulated that the injunction would also include Doe 4. (Docs. 224, 226.) The Court’s judgment was entered on February 10, 2016 (Doc. 227) and Defendant filed her notice of appeal with the Fifth Circuit. (Doc. 228.) This Court denied Defendant’s motions for a temporary stay and for a stay pending appeal (Doc. 229) on February 16, 2016 (Doc. 234).
17. On February 24, 2016, the Fifth Circuit granted Defendant’s emergency motion for a stay pending appeal, June Medical Services, L.L.C. v. Gee, 814 F.3d 319 (5th Cir. 2016), with the result that, for the first time, the admitting privileges requirement of Act 620 became enforceable, requiring doctors without active admitting privileges to stop providing abortion care, and clinics without such doctors on staff, to stop providing abortion services.
18. On March 4, 2016, the United States Supreme Court granted Plaintiffs’ emergency motion to vacate the Fifth Circuit’s stay, reinstating this Court’s preliminary injunction. June Med. SerVs., L.L.C. v. Gee, — U.S. -, 136 S.Ct. 1354, 194 L.Ed.2d 254 (2016).
19. On August 8, 2016, the parties agreed at a status conference that the Court could proceed to rule on a permanent injunction based on the existing ev-identiary record and a stipulation regarding Causeway and Doe 4, following submission of supplementary proposed findings of fact and conclusions of law (Doc. 253). On August 24, 2016, the Fifth Circuit remanded Defendant’s appeal “so that the district court can engage in additional fact finding required by the decision in Whole Woman’s Health v. Hellerstedt.” (Doc. 254.)
20. The Court today reaffirms its declaration that the admitting privileges requirement of Act 620 is unconstitutional on its face, and enters a permanent injunction barring enforcement of the law in all of its applications.
III. Contentions of the Parties
21. The Court acknowledges that the following summary of the parties’ contentions reflects the parties’ positions on issues of fact relating to preliminary, rather than permanent injunctive relief, and were made prior to the WWH decision. For the most part, however, the summary remains accurate. See Docs. 256 and 257-1.
22. In broad terms, Plaintiffs contend that Act 620 is facially unconstitutional first, because the Act places an undue burden on the right of Louisiana women seeking an abortion by placing substantial obstacles in their path, (See, e.g., Doc. 202 at 46-53); second, because the purpose of the Act is to create those obstacles, (see, e.g., id. at 53-58) and third, because Act 620 does not further a valid state interest, (see, e.g., id. at 58-65).
23. Plaintiffs argue that a preliminary injunction should issue enjoining the enforcement of Act 620 because Plaintiffs are likely to succeed at trial, (Doc. 196 at 67-85); absent an injunction, irreparable harm will occur, (id. at 85-86); the balance of hardships weighs in Plaintiffs’ favor, (id. at 86-87); and finally, granting the preliminary injunction will not adversely affect the public interest, (id.).
24. Defendant counters broadly that Act 620 places no substantial burden on a woman’s right to seek an abortion in Louisiana, (see, e.g., Doc. 200 at 59-66), and that the Act serves a valid purpose, (see, e.g., id. at 66-74). Further, Defendant argues that this Court has already ruled that Act 620 serves a valid state interest and has a rational basis. (See, e.g., id. at 6-7.)
25. Defendant argues that Plaintiffs have failed to carry their burden that they are likely to succeed at trial and further, urge that no irreparable harm will occur by allowing the enforcement of Act 620. (See, e.g., id. at 88-90.)
26. Finally, Defendant contends that the balance of hardships weighs in her favor and that the enforcement of Act 620 will not adversely affect the public interest. (Id.)
IV. The Factual Issues
27. Four main issues of fact were tried at the June hearing:
(A) What is the purpose of Act 620?
(B) Is Act 620 medically necessary and reasonable?
(C) How, if at all, will the implementation of Act 620 affect the physicians and clinics who perform abortions in the state of Louisiana?
(D) How, if at all, will the implementation of Act 620 affect the ability of Louisiana women to obtain an abortion?
28. Whether these factual issues and their resolution are relevant under the applicable legal standard, and whether they play a role in this Court’s ruling, is discussed in the Conclusions of Law section. See infra Parts XI-XII.
V. Abortion in Louisiana
A. Generally
29. According to DHH, approximately 10,000 women obtain abortions in Louisiana annually. (DX 148 ¶ 11.)
30. Nationally, approximately 42% of women who have abortions fall below the federal poverty level, and another 27% fall below 200% of that level. (JX 124 at 480; Doc. 191 at 190-91.) That number is likely significantly higher for Louisiana women seeking abortions. (Id.) The expert and lay testimony on this issue are consistent. (See, e.g., Doc. 190 at 34 (Testimony of Pittman) (testifying that 70% to 90% of patients at Hope are below the federal poverty level).)
31. Under Louisiana law, a patient must receive state-mandated counseling and an ultrasound at least 24 hours before an abortion. (JX 109 ¶ 18; JX 116 ¶ 11; JX 117 ¶ 8.)
32. Due to this notification and waiting period, patients who wish to obtain an abortion must make two trips to the clinic: the first to receive the ultrasound and state-mandated counseling, and the second to obtain the sought abortion. (JX 109 ¶ 19.)
B. The Clinics
33. At the time of trial, there were five women’s reproductive health clinics in Louisiana that provided abortion services. (See, e.g., Doc. 109 at ¶ 3; JX 109 ¶ 13.) Since then, two of those clinics, Causeway and Bossier, have ceased operation. (Docs. 255 ¶¶ 2-3; 271.)
(1) Hope
34. Hope is a women’s reproductive health clinic located in Shreveport, Louisiana, that has been operating since 1980 and offers abortion services. (Doc. 109 at 4; see also Doc. 14 ¶ 11 at 5.) Hope is a licensed abortion clinic suing on its own behalf and on behalf of its physicians, staff and patients. (Doc. 14 ¶ 11 at 5; Doc. 190 at 14.)
35. Hope provides medication abortions through eight weeks and surgical abortions through 16 weeks, six days LMP. (Doc. 190 at 35, 119, 132.) Hope employs two doctors who perform abortions, Does 1 and 3. (Id. at 21.) Doe 1 performs approximately 71% of the abortions provided by Hope, and Doe 3 performs the remaining 29%. (Id.-, JX 116 ¶ 5.)
36. 69% of Hope’s patients are Louisiana residents, but the remainder travel from outside the state to Hope. (JX, 116 IT 10; Doc. 190 at 19, 34.)
(2) Bossier
37. On. or about March 30, 2017, Bossier ceased business and surrendered its license, returning it to DHH. (Doc. 271.)
38. Bossier was a women’s reproductive health clinic that had been operating in Bossier City since 1980 and provided first and second trimester abortions. (Doc. 109 at 4; Doc. 14 ¶ 12.) Bossier was a licensed abortion clinic and a plaintiff suing on its own behalf and on behalf of its physicians, staff, and patients. (Doc. 14 ¶ 12.)
39. Bossier provided medication abortions through eight weeks and surgical abortions through the state’s legal limit of 21 weeks, six days LMP. (Doc. 191 at 22-23,55-56; JXim4.)
40. Bossier employed one doctor, Doe 2, who performs first and second trimester surgical procedures as well as medication abortions. (Doc. 191 at 21; JX 117 ¶ 5.) Doe 2 is the only doctor in Louisiana who performs abortions after 16 weeks, six days LMP. (JX 187 ¶ 4; Doc. 191 at 21-22.)
41. Bossier’s patients were primarily from Louisiana, but also traveled to the clinic from surrounding states. (Doc. 191 at 20.)
(3) Causeway
42. Causeway whs a women’s reproductive health clinic located in Metairie, Louisiana, and had provided abortion and reproductive health services since 1999. (Docs. 109 ¶ 7; 14 ¶ 13.) Causeway was a licensed abortion clinic that sued on its own behalf and on behalf of its physicians, staff, and patients. (Doc. 14 at 1.)
43. Causeway offered surgical abortions through 21 weeks,- six days LME, and did not offer medication abortions. (JX 117 ¶ 4).
44. Causeway employed two doctors who performed abortions, Does 2 and 4. {See, e.g., Doc. 168-5 at 8.) Doe 2 performed approximately 25% of the abortions provided at Causeway, and Doe 4 performed the remaining 75%. (JX 117 ¶ 5.) Doe 4 refrained from performing any abortions at Causeway subsequent to the Court’s January 26, 2016 preliminary injunction order. (Doc. 255 ¶ 1.) A joint stipulation was filed on February 1, 2016 (Doc. 224) regarding the applicability of the injunction to Doe 4 and so ordered by the Court on February 5, 2016 (Doc. 226.) Causeway returned its license to DHH, effective • February 10, 2016. (Doc. 255 ¶ 3.):
(4) Women’s Health
45. Women’s Health is a women’s reproductive health care clinic -located in New Orleans, Louisiana, and has provided abortion and women’s reproductive health services since 2001. (Doc. 109 at 5; tJX 168 1U;JX110111.)
46. Women’s Health employs- two doctors who perform abortions, Does 5 and 6. (JX 110 ¶3; JX 168 ¶4.) Doe 5 performs approximately 40% of the abortions provided at Women’s Clinic, and Doe 6 performs the remaining 60%.. (JX 110 ¶ 3; JX 168 ¶ 4.)
47.Women’s Health provides surgical abortions for women through 16 weeks and medication abortions through eight weeks. (Doc. 168-4 at 19.) Doe 6 provides only medication abortions. {Id. at 55.)
(5)Delta
. 48. Delta is a women’s reproductive health care clinic located in-Baton Rouge, and has provided abortion and women’s reproductive health services since, 2001. (Doc. 109 at 5.)
49. Delta employs, one doctor who performs abortions, Doe 5. (JX 110 ¶ 35.)
50. Delta provides surgical abortions for women through 16 weeks LMP, and medication abortions through eight weeks. (Doc. 168-4 at 13-14,19.)
61. The northern part of Louisiana is now served only by Hope in Shreveport. (Docs. 191 at 17; 190 át 110; 271.) The southern part of this state is served by Delta in Baton Rouge arid Women’s Health-in New Orleans. (JX 110 ¶ 1; JX 114 ¶ 1; JX 109 ¶ 13.)
C. The Doctors
52. There are currently five doctors who perform all abortions in Louisiana. (Doc. 109 ¶ 4; see also, e.g., JX 109 ¶ 14; Doc. 255 ¶ 1.)
(1) Doe l
53. Doe 1 is a board-certified physician in Family Medicine and Addiction Medicine and is one of two clinic physicians at Hope. (Doc. 109 at 5).
54. Doe 1 has over 10 years of experience, seven of those as an abortion provider. (Doc. 190 at 139-40; Doc. 14 ¶ 14.) He provides medication abortions through eight weeks and surgical abortions through 13 weeks, six days LMP. (Doc. 192 at 21; Doc. 190 at 132.)
55. Doe 1 was trained to provide abortion services by Doe 3, the medical director of the Hope Clinic, where they both work. (Doc. 192 at 140-41.)
56. Despite beginning his efforts to get admitting privileges at a nearby hospital in July 2014, (id, at 52), Doe 1 still does not have active admitting privileges at a hospital within 30 miles of Hope Clinic. (Doc. 190 at 21.) The efforts of all six doctors to gain active admitting privileges and the results of those efforts are reviewed in more detail in another section of this Ruling. See infra Part VIII.
(2) Doe 2
57. Doe 2 is a board-certified obstetrician-gynecologist and had been, until February 2016, one of two clinic physicians at Causeway and the only clinic physician at Bossier who, while that clinic was in operation, provided abortion services there. (Doc. 109 at ¶ 11; Doc. 255 ¶ 3.)
58. Since Bossier’s closure, Doe 2 has entered into a working agreement with Hope to provide abortion services when Hope’s primary physicians, Doe 1 and Doe 3, are unavailable to perform abortions. (Doc. 272 ¶¶ 3-4.)
59. Doe 2 has been performing abortions since 1980. (Doc. 191 at 17:3-6.) Doe 2 performs medication abortions through eight weeks and surgical abortions up through the state’s legal limit of 21 weeks, six days LMP. (Id. 21:16-22:4; JX 187 ¶ 4). He performs medication and surgical abortions at Bossier, and had performed only surgical abortions at Causeway. (Id. at 22:3-11.) In the year prior to trial, Doe 2 performed approximately 550 abortions at Bossier and 450 abortions at Causeway (Id. at 17:21-18:5).
60. Doe 2 performs first and second trimester surgical abortions through 21 weeks, six days LMP, and is the only one of two physicians in Louisiana to offer abortion after 16 weeks, six days LMP. (Id. at 21-22.)
61. Doe 2 has been unsuccessful in getting active admitting privileges within 30 miles of Bossier and, prior to Causeway’s closure, had been able to obtain only limited privileges, which did not meet the requirements of Act 620, within 30 miles of Causeway. (See, e.g., Doc. 191 at 24:23-29:18.)
(3) Doe 3
62. Doe 3 is a board-certified obstetrician-gynecologist and one of two clinic physicians at Hope. (Doc. 109 at 5.) He is also the medical director at Hope. (Id.)
63. Doe 3 has been licensed to practice medicine in Louisiana since 1976. (Doc. 190 at 109.) In addition to his abortion practice, he has an active general OB/GYN practice, where he delivers babies and routinely performs gynecological surgery including hysterectomies, laparoscopies, and dilation and curettages (“D & Cs”). (Id. at 110.)
64. Doe 3 is the chief medical officer of Hope Clinic, where he has worked since 1981. (Doc. 190 at 108, 117, 21.) He provides medication abortions through eight weeks and surgical abortions through 16 weeks, six days LMP. (Id. at 35, 119, 132.)
65. Doe 3 performs abortions at Hope Clinic on Thursday afternoons and all day on Saturday. He sees approximately 20 to 30 abortion patients a week. (Id. at 117-18, 153.) On occasion, he will cover for Doe 1 and will see more patients in those instances. (Id.)
66. Doe 3 currently has admitting privileges at Willis-Knighton Hospital in Bossier (“WKB”) and at Christus Highland Medical Center in Bossier (“Christus”), both of which are within 30 miles of Hope Clinic. (Id. at 21-22, 120, 148-49.) Doe 3’s current privileges at Christus require him to admit approximately 50 patients per year. (Id. at 150-52; JX 59.)
67. Doe 3 has his current admitting privileges because he regularly admits patients to the hospital as part of his private OB/ GYN practice, not because of his work at Hope Clinic. (Id. at 124,147.)
(4)Doe 4
68. Doe 4 is a board-certified obstetrician-gynecologist and had been one of two clinic physicians at Causeway. (Doc. 109 at 5, ¶ 13.)
69. Doe 4 obtained his license to practice medicine in Maryland in 1959 and in Louisiana in 1965. (Doc. 168-5 at 5-6.) He served as an assistant professor or assistant instructor in obstetrics and gynecology for seventeen years at Earl K. Long Hospital. (Id. at 12.)
70. When Doe 4 maintained a full OB/ GYN practice, he had admitting privileges at four hospitals in the Baton Rouge area. (Doc. 168-5 at 6.) He was required to have admitting privileges to do OB/GYN surgery and, in his words, “to deliver babies.” (Id.) The existence of these privileges did not benefit his pregnancy termination patients because, to his knowledge, none of his abortion patients experienced any problem and required hospital admission. (Id. at 19-20.)
71. Doe 4 performed abortions at Causeway in Metairie until January 2016. (Doc. 109 at 5, ¶ 13; Doc. 168-5 at 8; Doc. 255 ¶ 1.) He was not able to get admitting privileges at a hospital within 30 miles of Causeway. (Doc. 191 at 18:6-19; see also, e.g., Doc. 168-5 at 16.)
(5) Doe 5
72. Doe 5 is a board certified obstetrician-gynecologist. (Doc. 109 at 5; see also Doc. 168-6 at 4-5.) He is one of two clinic physicians at Women’s Clinic and the only clinic physician at Delta Clinic. (Doc. 109 at 5; see also Doc. 168-6 at 4, 13-14, 22.)
73. Doe 5 has been licensed to practice medicine in Louisiana since 2005. (Doc. 168-6 at 5.) He provides surgical abortions at Delta Clinic and Women’s Health through 16 weeks LMP. (Id. at 20; see also JX110 ¶ 1.)
74. Doe 5 has been successful in getting active admitting privileges within 30 miles of Women’s Health in New Orleans but has been unsuccessful in his efforts to get active admitting privileges within 30 miles of Delta in Baton Rouge. (Doc. 168-6 at 11-13; see also, e.g., JX 109 ¶¶ 33-34; JX 110 ¶¶ 15-19.)
(6) Doe 6
75. Doe 6 is a board certified obstetrician-gynecologist and one of two clinic physicians at Women’s Health. (Doc. 109 at 5; see also Doc. 168-4 at 13.)
76. Doe 6 has been practicing medicine for 48 years. (JX 109 118.) He is currently the medical director of Women’s Clinic and Delta Clinic. (Id.) Doe 6 provides only medication abortions and does so only at Women’s Clinic. (Id. ¶¶ 8-9.)
77. Doe 6 has been unsuccessful in his efforts to get active admitting privileges within 30 miles of Women’s. (Id. ¶¶ 23-26.)
D. Admitting Privileges in Louisiana
78. In order to perform abortions legally in Louisiana, Act 620 requires an abortion doctor to have “active admitting privileges” at a hospital within 30 miles of the facility where he or she performs abortions. La. R.S. § 40:1299.35.2A(2)(a). To have “active admitting privileges” the physician must be a “member in good standing of the medical staff’ of a hospital “with the ability to admit a patient and to provide diagnostic and surgical services to such patient ....” Id. The phrase “member in good standing of the medical staff’ is not separately defined. (Cf. Doc. 193 at 12.)
79. Thus, how a physician may obtain “medical staff’ and “active admitting” privileges from a Louisiana hospital is critical in determining the effect, if any, that Act 620 has on abortion providers and, in turn, the women that they serve.
80. The expert testimony regarding hospital admitting privileges came primarily from two experts—Pressman, Plaintiffs’ expert, (Doc. 195 at 11—96), and Marier, Defendant’s (Doc. 193 at 4-Í24)—and, to a lesser extent, from the other physicians,' including Does 1, 2, 3, 4, 5, and 6, who testified. See supra Part I. On the issue of admitting privileges and hospital credentialing, the Court found both Pressman and Marier to be generally well qualified.
81. Additional information about the credentialing process and the specific requirements of various hospitals came from certain hospital .by-laws introduced into evidence. (See, e.g., JX 46, 48, 67, 72, 76, 78-79, 81, 138, 140-43.)'
82.Credentialing is a process that hospitals employ to determine what doctors will be allowed' to perform what tasks within that hospital. (Doc. 193 at 11; see also, e.g., Doc. 195 at 23-27; Doc. 168-5 at 24.)
83.. Part of this process involves the hospital’s granting or denying “admitting privileges.” (See, e.g., Doc. 193 at 20; Doc. 195 at 17, 23-25.) These privileges govern whether or not a physician is authorized to admit and treat a patient at that hospital and what care, services dnd treatment the physician is authorized to provide. (See, e.g., Doc. 193 at 20-21; Doc. 195 at 23, 25-26.)
84. Admitting privileges are related to but not the same as being on the “medical staff’ of a hospital. (Doc. 193 at 11; Doc. 195 at 25-26.)'
85. There is no requirement that a physician havp admitting privileges or be on the medical staff at a hospital in order to practice medicine. (See, e.g., Doc. 195 at 26.) Many physicians who do not have a hospital based practice, i.e, do not intend to admit and treat their patients in a hospital setting, have neither as there is no need for staff or admitting privileges under those circumstances, (See, e.g., Doc. 175 at 75; Doc. 192 at 41-42; Doc. 195 at 75.)
86. There is no state or federal statute which governs the rules for the granting or denial of hospital admitting privileges in Louisiana. Cf. Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 792 (7th Cir. 2013) (“The criteria for granting admitting privileges are multiple, various, and unweighted.”). Rather, partly as a consequence of this absence, these rules-vary from hospital to hospital and are. governed by each one’s distinct by-laws. (See, e.g., Doc. 193 at 12,15; Doc. 195 at 28.)
87. Specifically, there is no state or federal statute which defines or sets uniform standards for the categories of admitting privileges a hospital may grant. (Doc. 193 at 11-12.) Like other rules, these are therefore set'by each hospital’s by-laws. (M; see also, e.g., Doc. 195 at 28; JX 81 at 1798.) To make matters more confusing, the terms used to'describe those categories (e.g. “active" admitting privileges”, “courtesy admitting privileges”, “clinical admitting privileges”) vary from hospital to hospital. (See, e.g., Doc. 190 at 167; Doc. 191 at 104; Doc. 193 at 11-12; Doc. 195 at 28.)
88. Similarly, terms like “medical staff’, “active staff’, “courtesy staff’, “clinical staff’ vary among hospitals.' (Doc. 191 at 35; Doc. 193 at 12; Doc. 195 at 28; cf. JX 79 at 1707-12.)
89. For example, at some hospitals, an “active” staff appointment does not, alone, automatically entitle the physician to admit patients. (See, e.g., JX 46 at 185; JX 79 at 1673; JX 141 at 3259-60.)
90. Because of the varying definitions given to the categories of admitting privileges and the varying requirements for the attainment of same, whether a . physician has been given “active admitting privileges” or is a “member in good standing on the medical- staff’ within the meaning -of Act 620 entirely depends upon the specific definition, requirements .and restrictions imposed by a given hospital in a given circumstance. (See, e.g., Doc. 193 at 12.)
91. Unlike some states, there is also no statute or rule in Louisiana which sets a maximum time period within which a physician’s application for admitting privileges must be acted upon. Thus, unless there is such a time limit in the hospital’s by-laws, a hospital can effectively deny a doctor’s application of privileges by never acting on it, a decision on any one doctor’s application permanently delayed without a consequence being effected or a reason being given. A definite decision stays unreached-but, with his or her request suspended, the relevant doctor’s privileges remain, as a matter of fact'and lari, nonexistent. In this Ruling, the Court uses the term “de facto denial” of privileges to describe this circumstance.
92. At some hospitals in Louisiana, there are suggested time frames in which hospitals should review admitting privileges applications. (JX 72 at 1320-23; see also, e.g., JX 67 at 857-58; JX 76 at 1444-47.) However, those guidelines are not requirements, and there is no legal recourse for an applicant if the hospital fails to act on the application within the suggested time period. (See, e.g., JX 67 at 858-59; JX 72 at 1320-24; JX 109 ¶27.) For example, Tulane University Medical Center (“Tulane”). has an expectation, but has adopted no requirement, that applications will be processed within 150 days. (JX 78 at 1554.) If the Board of Trustees has not taken action on the application within 150 days, the applicant must repeat the verification process to ensure the information contained therein is still accurate. (Id.)
93. A hospital’s failure to act on an application by either approving or denying it may result in the hospital considering the application withdrawn. (See, e.g., Doc. 195 at 93; JX 71 at 1279.) In this additional respect, a hospital’s failure to act is, in effect, a de facto denial of the application.
94. While a physician’s competency' is a factor in assessing an applicant for admitting privileges, it is only one factor that hospitals consider in whether to grant privileges. (See, e.g., Doc. 190 at 158-59; Doc. 195 at 25-26; Doc. 192 at 50-51; Doc. 168-5 at 17; Doc. 168-6 at 12; JX 110 ¶ 10; JX 168 ¶¶ 11-13,17; PX 183.)
95. Defendant argues: “When Louisiana hospitals decide whether to grant a physician staff membership, privileges to admit patients, or privileges to perform particular procedures, hospital by-laws indicate that they may make such determinations based on the physician’s prior and current practice, and indicia of the physician’s clinical competence.” (Doc. 200 ¶ 114 at 38 (citing to JX 2873; JX 1838; JX 1542-43; JX 852-53).)
96. The Court finds that this is only partly true because both by virtue of bylaws and how privileges applications are handled in actual practice, hospitals may deny privileges or decline to consider an application for privileges for myriad reasons unrelated to competency. Examples include the physician’s expected usage of the hospital and intent to admit and treat patients there, the number of patients the physician has treated in the hospital in the recent past, the needs of the hospital, the mission of the hospital, or the business model of the hospital. Furthermore, hospitals may grant privileges only to physicians employed by and on the staff of the hospital. And university-affiliated hospitals may grant privileges only to faculty members. These possible variances in causes and justification for any particular denial are attested to by this case’s evidentiary submissions and testimony. (See, e.g., Doc. 195 at 25-26; Doc. 190 at 123, 168-70; Doc. 193 at 82-83; JX 109 ¶¶ 27-28; JX 110 ¶ 10; JX 168 ¶¶ 11-13, 17; Doc. 168-5 at 6, 23.)
97. An apparently benign example of such a non-competency based, business driven reason for denying privileges is the denial of Doe l’s application to the Minden Medical Center (“Minden”). (JX 50 at 318; Doc. 192 at 50-51.) In declining his application for staff membership and clinical privileges, Minden’s Medical Staff Coordinator wrote to Doe 1: “Since we do not have a need for a satellite primary care physician at this time, I am returning your application and check.” (JX 50 at 318; see also JX 72 at 1323.)
98. When they had full OB/GYN practices delivering babies and performing gynecological surgery, Does 2, 4, and 6 had no problem obtaining and maintaining admitting privileges at a number of hospitals. (See, e.g., Doc. 168-5 at 6-8; JX 109 ¶ 30.) However, under Act 620, for reasons unrelated to competency, they are now unable to secure active admitting privileges. (See, e.g., Doc. 191 at 24-26; Doc. 168-5 at 16-17; JX 109 ¶¶ 23, 30, 31-34.)
99. Another example of a non-competency based application criteria is that some hospitals require the physician seeking privileges to live and/or practice within a certain distance of the hospital. (JX 83 at 1865; JX 139-a at 2925; JX 79 at 1679-83.) Does 2 and 5 travel significant distances from their respective homes to provide abortion services and would not be able to meet this criteria for hospitals within 30 miles of some or all of the clinics where they provide abortions. (Docs. 191 at 20-21; 168-6 at 4,11-13; JX 109 ¶¶ 31-36.)
100. Defendant argues that “[t]here is no evidence suggesting that, in making the determinations about staff membership or privileges, Louisiana hospitals discriminate against physicians based on whether they provide elective abortions.” (Doc. 200 ¶ 115 at 38 (citing Marier’s testimony, as it appears on Doc. 193 at 83-86).) In his testimony, however, Marier only acknowledged that he personally knew of no hospitals which refused .to extend privileges to a doctor “simply because he or she performs an abortion.” (Doc. 193 at 83-85.) Regardless, to the extent Marier’s testimony can be so construed, the Court finds his testimony on this point to be not credible and contradicted by an abundance of evidence introduced at the hearing demonstrating that hospitals can and do deny privileges for reasons directly related to a physician’s status as an abortion provider. (See, e.g., Docs. 168-6 at 12; 190 at 53; JX 109 ¶¶ 28, 30,39.)
101. For instance, Doe 1 contacted the director of the Family Medicine Department at University Health Hospital in Shreveport (“University” or “University Health”) where he had done his residency in family medicine. Dr. Doe 1 was initially told that he would be offered a job as a faculty member teaching sports medicine which would “take care of the admitting privileges thing.” (Doc. 192 at 45.) Doe 1 was told that the application forms for admitting privileges would be forwarded to him. (Id.)
102. When Doe 1 did not get the application forms and inquired, he was told by the director of the department that he would not be offered a position because “there was some objection from certain staff about [Doe 1] coming to work there because of where [he] work[ed], at Hope Medical.” (Id. at 45-46.)
103. This same essential response was also given to Doe 2 when he attempted to upgrade his courtesy privileges at'University Health: (Doc. 191 at 24-26.)
104. There is no Louisiana statute which prohibits a Louisiana hospital or those individuals charged with' credentialing responsibilities from declining an application for admitting privileges based on the applicant’s status as an abortion provider.
105. Section 40:1299.32 provides: “No hospital, clinic or other facility or institution of any kind shall be held civilly or criminally liable, discriminated against, or in any way prejudiced or damaged because of any refusal to permit or accommodate the performance of any abortion in said facility or under its auspices.” La, R.S. § 40:1299.32.
106. The Court was surprised that Defendant’s credentialing expert, Marier, was unaware of this provision, but Marier agreed that, by virtue of this provision, “a hospital, if it chooses to, may discriminate against any abortion provider with no consequence under Louisiana law.” (Doc. 193 at 84.) ,
■ 107. Section 40:1299.33(0) states; “No hospital, clinic, or other medical or health facility, whether public or private, shall ever be denied government assistance or be otherwise discriminated against or otherwise be pressured 'in any way for refusing to permit facilities, staff or employees to be used in any way for the purpose of performing any abortion.” La. R.S. § 40:1299;33(C).
108. While Doe 2 ultimately received limited privileges at Tulane, the negotiations that led to these privileges being granted clearly demonstrate that Doe 2’s status as an abortion provider was a central issue in the decision making process over whether to grant him privileges and the limitations those privileges would have. (See JX 161-81; see infra Part VIII.)
109. There are ways in which the hospital staffs and/or the general public’s hostility to abortion and abortion providers can be injected into the credentialing process. For instance, many applications for privileges require references from at least two physicians who recently have observed the applying physician as to applicant’s medical skill and “character.” (JX 143 at 3357; JX 79' at 1680-81; JX 83 at 1873; JX 143 at 3351.) For example, Minden prefers that an applicant’s peer recommendations, come from, physicians already on staff at that hospital. (JX 72 at 1300.) Although competent, an abortion provider can face difficulty in getting the required staff references because of staff opposition to abortion. (See, e.g., Doc. 168-6 at 12; Doc. 190 at 53; JX 109 ¶¶28, 30, 39.)
110. Other hospitals’ admitting privileges applications require the applying physician to identify another physician on staff who will “cover” his or her patients if the applying physician is unavailable, frequently called a “covering physician.” (JX 78 at 1539; JX 79 at 1677; ■ JX 138 at 2855; JX 83 at 1866.) As summarized below, the evidence shows that opposition to abortion can present a major, if not insurmountable hurdle, for an applicant getting the required covering physician. •
111. For example, Doe 5 has applied for admitting privileges at three hospitals in the Baton Rouge area: Woman’s Hospital in April or May of 2014 and Lane Regional Medical Center and Baton Rouge General Medical Center in July of 2014. (Doc. 168-6 at 11.) Doe 5 has been unable to find a local physician who is willing to provide coverage for him when he is not in Baton Rouge, which all three hospitals require. (JX 109 ¶¶32-33; JX 110; Doc. 51; .Doc. 168-6 at 11-12.) Doe 3 also.has had difficulty finding physicians to cover for him due to the animosity towards him as an abortion provider. (Doc. 190 at 11-13.) While Doe 2 ultimately got limited privileges at Tulane, (JX. 183), the evidence therefore demonstrates that staff physicians who. oppose abortion present ,a, real obstacle, see infra Part VIII.B.
112. Some other non-competency based admitting privileges requirements create a particular obstacle for abortion providers whose practice is not hospital .based, who do not admit patients to a hospital as a part of their practice, and who do not perform surgeries at a hospital.
113. As one example, hospitals. often grant admitting privileges to a physician because the physician plans to provide services in the hospital. (See, e.g., Doe. 195 at 24-25; Doc. 193 at 66.) In general, hospital admitting privileges are not . provided to physicians who never intend to provide services in a hospital. (Docs. 195 at 23-25, 27,74-75; 193 at 66-67.)
114. Thus, in connection with the applications of Does 1 and 2 at Willis-Knighton Medical Center (“WKMC”), Willis-Knigh-ton South (‘WKS”), and Willis-Knighton Pierremont Health Center (“WKP”) in Shreveport, (JX 53,144), the Willis-Knigh-ton Health System (“Willis-Knighton”), which runs these three (as well as other) entities, has required these- doctors to submit data on hospital admissions, patient management and consultations of patients in the past 12 months in a hospital. (Doc. 192 at 75-76; JX 128; JX 89 at 1950.)
115. Because their abortion practice is not hospital based, neither doctor can possibly comply with that requirement. In the case of Doe 1, since he formally responded to a hospital’s request for more information regarding his history of admitting patients during the preceding twelve months, saying he had no such information, he has never again heard from the hospital— there being neither a denial nor an approval of his application. (Doc. 192 at 75-78.) Similarly, when Doe 2 gave the'hospital the only information in his possession, he received formal notice that this was insufficient and “[without that [additional] information, your application remains incomplete and cannot be processed.” (JX 89 at 1950.) Doe 2 could do nothing else, explaining, “I’m in a Catch-22 basically. I can’t provide information I don’t have.” (Doc. 191 at 79-80.)
116. Even if these Does and similar practitioners somehow got admitting privileges, it is unlikely they would be able to keep them. If over a period of two to three years, a physician has not admitted any patients to the hospital, a hospital credentialing committee' is likely to understand that this physician no longer requires admitting privileges. (See, e.g., Doc. 195 at 91.) Because, by all accounts, abortion complications are rare, (See, e.g., Doc. 168-5 at 14,16, 20-21; Doc. 193 at 81-82; Doc. 195 at 38-39), an abortion provider is unlikely to have a consistent need to admit patients.
117. Furthermore, surgical privileges are meant for providers who plan to perform surgeries at the hospital. (Doc. 195 at 95-96.)
118. For the reasons outlined above, the Court finds that the Louisiana practice of credentialing, i.e. a hospital’s consideration of and acting (or not acting) upon applications for admitting privileges, creates particular hardships and obstacles for abortion providers.
119. The efforts made by Does 1-6 to comply with the admitting privileges requirement of Act 620, and the result of those efforts, is reviewed in another section of this Ruling. See infra Part VIII. In this case, Act 620 requires abortion doctors to get “active admitting privileges,” including being admitted as a member in good standing of the medical staff, at a nearby hospital. La. Rev. Stat. § 40:1299.35.2.
120. However, the Act does not set the criteria necessary for obtaining those privileges and there is no state law or other uniform standard that sets these criteria. See infra Parts VI-IX. Instead, the law relies on the highly variable requirements set in the bylaws of each hospital. M; see also WWH, 136 S.Ct. at 2312 (noting that hospitals often have “prerequisites to obtaining admitting privileges that have nothing to do with ability to perform medical procedures”).
121. The Act therefore anticipates and relies upon existing private hospitals’ varying bylaws’ admitting privileges requirements as allowed under Louisiana law. It delegates to private hospitals the duty of granting (or withholding) active admitting privileges and thereby utilizes bylaws and private hospital credentialing committees as instruments for the implementation of the Act. Unquestionably then, the admitting privileges law and practices existing in Louisiana before Act 620 are related to Act 620. The inability of Does 1, 2, 4, 5 (in Baton Rouge), and 6 to get the kind of active admitting privileges which the Act itself mandates, see supra Part V.D (above), has been caused by Act 620 working in concert with existing laws and practices, as discussed in detail, infra Part IX.
122.As discussed here and in Part IX, the Court finds that Louisiana’s credentialing process and the criteria found in some hospital bylaws work to preclude or, at least greatly discourage, the granting of privileges to abortion providers, including the following:
- There are no laws or regulati