Pro-abortion rights rally at the U.S. Supreme Court in 2016. (AP Photo/Alex Brandon)

A group of states that are broadly known for embracing strict abortion restrictions is urging the U.S. Supreme Court to bar attorney fee awards to abortion clinics and others who win court orders temporarily blocking state laws that are challenged in court.

Lawyers for Ohio, with support from 19 other states, argue that plaintiffs who win preliminary injunctions in cases that end without a final judgment are not "prevailing parties" eligible for legal fees under a civil rights fee-shifting statute.

The case Yost v. Planned Parenthood Southwest Ohio Region, which the justices are expected to review Friday at their private conference, stems from a $372,000 award for 18 months of litigation, beginning in 2004. The dispute has attracted widespread attention from Republican-led states that want to limit legal-fee awards in voting rights cases and other matters beyond abortion rights cases.

The abortion fee fight is unfolding at the Supreme Court as many Republican-led states move to restrict abortion rights amid the coronavirus pandemic.

On Wednesday, Whole Woman's Health and Whole Woman's Health Alliance filed a lawsuit in Texas federal district court challenging a state executive order requiring health care providers to postpone abortion services that are not "immediately medically necessary." Ohio's attorney general has demanded abortion providers stop providing all "nonessential and elective surgical abortions" in light of the public health crisis. Mississippi's governor recently said he will take steps to stop abortions during COVID-19.

Other states, including New York, Washington, Massachusetts and New Jersey, have included abortion as an essential medical service to continue during the epidemic. "Medical experts have made it resoundingly clear that abortion care is time-sensitive and essential health care," said NARAL Pro-Choice America President Ilyse Hogue.

In the Supreme Court legal-fee case, Planned Parenthood challenged the constitutionality of an Ohio law—H.B. 126—that prohibited physicians from prescribing the medication mifepristone to terminate a pregnancy after "the patient's 49th day of pregnancy," and from using any dosage indications or treatment protocols not "expressly approved by the FDA in the drug's final printed labeling."

A federal district court enjoined the law because of its failure to include an exception where the law would pose a threat to women's lives or health. The U.S. Court of Appeals for the Sixth Circuit upheld the injunction based on the "strong likelihood of succeeding" on the merits of the claim.

The injunction remained in place for 12 years, through continued litigation, until March 2016, when the U.S. Food and Drug Administration revised the label for mifepristone. The revised label endorsed the protocol that the challengers had sued to provide. The parties moved to dismiss the case as moot because of the FDA label change.

"The plaintiffs here never won court-ordered relief permanently giving them what they wanted," Ohio solicitor general Benjamin Flowers wrote in his petition at the Supreme Court. "To the contrary, the only court-ordered relief they won conferred temporary relief pending a full merits adjudication. As such, they were not prevailing parties."

Flowers, a former Jones Day associate and clerk to the late Justice Antonin Scalia, said a key 2007 high court precedent on prevailing parties—Sole v. Wyner—left open the question whether a party that wins a preliminary injunction in the absence of a final judgment is a "prevailing party."

The circuit courts, Flowers told the justices, have answered the question in three different ways, often dividing even among themselves: require a merits-based judgment; usually confer prevailing party status, or look to durability or irrevocability of the injunctive relief.

"The lower courts need help," Flowers wrote. "So do the parties subject to these rules. Only this court can bring the needed clarity, and assure consistency across the country."

Jennifer Branch of Cincinnati's Gerhardstein & Branch, counsel to Planned Parenthood, told the justices there is no entrenched circuit split. Branch urged the court not to disturb the Sixth Circuit's ruling that upheld an award of legal fees.

Federal courts follow the same fact-intensive approach, awarding fees for a preliminary injunction before a case becomes moot, Branch wrote in her brief opposing review, when the injunction "rests on a clear determination relating to the merits, and alters the legal relationship between the parties in an enduring manner."

She added: "As to the states' policy concerns, the prevailing approach does not prevent state defendants from taking strategic action to avert fee awards. States can still preempt fee awards by voluntarily changing their ways before the court enters a preliminary injunction."

In an amicus brief supporting Ohio, Georgia Solicitor General Andrew Pinson said that courts impose substantial fee awards against state officials under Section 1988 and a number of other federal statutes based on preliminary injunctions when a case ends without a final judgment.

The circuit court tests, he said, are "subjective and unpredictable." The prospect of fee awards influence a state's policy and litigating decisions, often to its disadvantage. Supreme Court precedents, he said, always require a plaintiff to win court-ordered, enduring relief to be a prevailing party.

But Branch told the high court, "States can still preempt fee awards by voluntarily changing their ways before the court enters a preliminary injunction." And in the typical case that ends because of mootness, fee awards will be modest because they will be limited to work done on the preliminary injunction, she said.

 

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