Case: 3:16-cv-50310 Document #: 183 Filed: 11/30/20 Page 1 of 13 PageID #:2511

IN THE UNITED STATES DISTRICT COURT

NATIONAL INSTITUTE OF FAMILY

Plaintiffs, Case No. 16-50310

v. Hon. Iain D. Johnston

BRYAN A. SCHNEIDER, Magistrate Judge Lisa A. Jensen

Defendant.

RONALD L. SCHROEDER, et al.,

Plaintiffs,
Case No. 17-4663
v.
Hon. Iain D. Johnston
BRYAN A. SCHNEIDER,
Magistrate Judge Lisa A. Jensen
Defendant.

DEFENDANT’S OPPOSITION TO PLAINTIFFS’

Sarah J. Gallo
Elizabeth Morris
Lauren H. Barski
Matthew V. Chimienti
Assistant Attorneys General
Special Litigation Bureau
OFFICE OF THE ILLINOIS ATTORNEY GENERAL
100 W. Randolph St., 11th Floor
Chicago, IL 60601
Tel.: (312) 814-3000
[email protected]
[email protected]
[email protected]
[email protected]

Counsel for Defendant

Defendant respectfully opposes the certification of an interlocutory appeal sought by

plaintiffs pursuant to 28 U.S.C. § 1292(b). An appeal is not statutorily permitted, and allowing a

piecemeal appeal would unnecessarily delay expert discovery and resolution of these actions.

PROCEDURAL POSTURE

In September 2016, NIFLA plaintiffs initiated this suit; in December 2016, defendants

moved to dismiss; and in February 2017, NIFLA plaintiffs moved to preliminarily enjoin

amendments to the Illinois Health Care Right of Conscience Act (the “Amendments”) that had

become effective on January 1, 2017. (NIFLA Dkt. 1, 15-16, 35-36.) On July 19, 2017, Judge

Kapala partially granted defendants’ motion to dismiss, dismissing the state law claims and the

Governor as a party and allowing only the Free Speech and Free Exercise claims to proceed.1

(NIFLA Dkt. 65.) Judge Kapala granted the motion for a preliminary injunction by enjoining

Defendant Bryan Schneider, then-Secretary of the Illinois Department of Financial and

Professional Regulation (the “Secretary”), from enforcing the Amendments statewide against

conscience objectors to abortion. (Id.) In doing so, the Court emphasized the “low” threshold for

obtaining a preliminary injunction to protect First Amendment rights (id. at 5), and explained

that “at this stage of the litigation and on this record” the Secretary had not yet proven that the

Amendments would survive constitutional challenge. (Id. at 9.) Discovery had not yet begun and

no evidentiary hearings had been held.2

In March 2017, Schroeder plaintiffs filed a separate action, which was reassigned to

Judge Kapala as substantially similar to NIFLA. (Schroeder Dkt. 27.) The parties briefed the

1
Plaintiffs name former Secretary Bryan Schneider as a defendant in his official capacity. Pursuant to
Federal Rule of Civil Procedure 25(d), litigation proceeded against his successor Secretary Deborah Hagan.
2
Prior to this injunction, an Illinois court enjoined enforcement of the Amendments against certain plaintiffs
only. Pregnancy Care Ctr. of Rockford v. Rauner, No. 16 MR 741, (17th Cir. Winnebago County, Dec. 20,
2016), available at https://perma.cc/CSH5-QCQZ.

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preliminary injunction motion and motion to dismiss before conducting discovery. (Schroeder

Dkt. 57.) In October 2017, the Court denied Schroeder plaintiffs’ motion for preliminary

injunction in light of the preliminary injunction granted in NIFLA, dismissed the Governor as a

party, and dismissed all of Schroeder plaintiffs’ claims except their Free Speech and Free

Exercise ones. (Schroeder Dkt. at 1-3.)3 In December 2017, the Court stayed both cases pending

a decision by the U.S. Supreme Court in National Institute of Life Advocates v. Becerra, which

was issued in June 2018. 138 S. Ct. 2361.

The parties exchanged written discovery and produced thousands of responsive

documents. In January 2019, plaintiffs moved for summary judgment. (NIFLA Dkt. 93;

Schroeder Dkt. 67.) The Secretary filed a Rule 56(d) affidavit, requesting depositions of six

affiants who had supported plaintiffs’ motions but had not been deposed. (NIFLA Dkt. 116;

Schroeder Dkt. 94.) Both cases were reassigned to Chief Judge Pallmeyer in May 2019. (NIFLA

Dkt. 117; Schroeder Dkt. 95.) The Court allowed the six depositions. (NIFLA Dkt. 119;

Schroeder Dkt. 97.) The Secretary moved to align summary judgment briefing, set a discovery

schedule, and conduct expert discovery. (NIFLA Dkt. 123; Schroeder Dkt. 100.) On June 4,

2019, the Court denied without prejudice the request for expert discovery pending review of

plaintiffs’ summary judgment motions. (NIFLA Dkt. 130; Schroeder Dkt. 108.)

On September 3, 2020, Chief Judge Pallmeyer issued the same order in both cases

denying plaintiffs’ motions for summary judgment and directing the parties to file a proposed

expert discovery schedule.4 Nat’l Inst. of Family & Life Advocates v. Schneider, --- F.Supp.3d ---

3
Citation herein to Judge Kapala’s preliminary injunction order refers to the NIFLA order.
4
Plaintiffs misstate material facts in their Motion, such as whether the Amendments relate to gaining
informed consent for health care services provided by plaintiffs. See NIFLA, 2020 WL 5253855, at *12.
The relevant facts are set forth in the Court’s September 3, 2020 Order. Additional context can be found
in the memoranda submitted by the Secretary in opposition to the plaintiffs’ motions for summary
judgment. (NIFLA Dkt. 142-45; Schroeder Dkt. 120-24.)

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-, 2020 WL 5253855 (N.D. Ill. Sept. 3, 2020); NIFLA Dkt. 176; Schroeder Dkt. 154 (the

“Order”). The Court found that genuine disputes of material fact precluded summary judgment

for plaintiffs. Id. at *13. For resolution of both the Free Speech and Free Exercise claims, the

Court found expert discovery was needed. Id. at *20-21, 24-25, 28, 31, 36.

On September 29, 2020, both cases were reassigned to Judge Johnston upon his

appointment. (NIFLA Dkt. 177; Schroeder Dkt. 155.) NIFLA plaintiffs then moved to certify the

Order “[b]ecause this case is now before a third District Court judge.” (NIFLA Dkt. 178; Pl.

Memo. at 115 (the “Motion”).) Schroeder plaintiffs joined the Motion. (Schroeder Dkt. 156-58.)6

The Court stayed expert discovery pending resolution of the Motion. (NIFLA Dkt. 179;

Schroeder Dkt. 157).

LEGAL STANDARD

Courts of appeal have limited jurisdiction to review district courts’ interlocutory

decisions. Limited jurisdiction is permitted by statute in rare instances when all statutory criteria

are satisfied. See 28 U.S.C. § 1292(b). Given their disruptive nature, however, interlocutory

appeals are greatly disfavored. Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 835 (7th Cir.

1999) (“Judges have been stingy in accepting interlocutory appeals by certification under 28

U.S.C. § 1292(b), because that procedure interrupts the progress of a case and prolongs its

disposition. That bogey is a principal reason why interlocutory appeals are so disfavored in the

federal system.”).

5
Citation herein to “Pl. Memo. at ” refers to NIFLA plaintiffs’ Memorandum in Support of Plaintiffs’
Motion to Amend and to Certify for Interlocutory Appeal the Court’s Order Denying Plaintiffs’ Motion for
Summary Judgment. (NIFLA Dkt. 178-1.)
6
Since Schroeder plaintiffs joined the Motion, citation herein to the Motion refers only to the NIFLA brief;
however, all arguments apply to both cases.

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“There are four statutory criteria for the grant of a section 1292(b) petition to guide the

district court: there must be a question of law, it must be controlling, it must be contestable, and

its resolution must promise to speed up the litigation.” Ahrenholz v. Bd. of Trs. of Univ. of Ill.,

219 F.3d 674, 675 (7th Cir. 2000) (citations omitted) (emphases original). “There is also a

nonstatutory requirement: the petition must be filed in the district court within a reasonable time

after the order sought to be appealed.” Id. Crucially, “[u]nless all these criteria are satisfied, the

district court may not and should not certify its order[.]” Id. at 676 (emphasis original).

ARGUMENT

Plaintiffs have not satisfied any section 1292(b) requirements because the legal standards

in these cases are inextricably driven by the factual record, which is still being developed. An

appeal at this time would delay discovery of the facts essential to resolving this litigation. Even if

plaintiffs were correct that Chief Judge Pallmeyer’s Order misstated the governing legal

standard, certification would not materially advance the termination of this litigation because the

Secretary would still be entitled to expert discovery under any legal standard.

I. Plaintiffs have not presented a question of law for review.

Interlocutory appeals are heavily disfavored, and the type sought by plaintiffs—review of

a denial of summary judgment that found genuine disputes of material fact—is the paradigm of

an order that cannot be appealed.

A “‘question of law’ as used in section 1292(b) has reference to a question of the

meaning of a statutory or constitutional provision, regulation, or common law doctrine rather

than to whether the party opposing summary judgment had raised a genuine issue of material

fact.” Ahrenholz, 219 F.3d at 676 (emphasis added). Plaintiffs must show that the “case turn[s]

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on a pure question of law, something the court of appeals could decide quickly and cleanly

without having to study the record[.]” Id. at 677.

Plaintiffs identify no such quick, clean question of law. Instead, plaintiffs seek

certification of a denial summary judgment which concluded that genuine issues of material fact

precluded judgment as a matter of law. However, as the Seventh Circuit has noted, a denial of

summary judgment due to disputed issues of fact “is a paradigmatic example of an interlocutory

order that normally is not appealable.” Ahrenholz, 219 F.3d at 676 (finding no question of law

presented under section 1292(b) in denial of summary judgment on Free Speech claim); see also

10A MARY KAY KANE, WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2715 (4th ed.

2020) (“denial of a Rule 56 motion is an interlocutory order from which no immediate appeal is

available”). Accordingly, the Seventh Circuit has directed courts to “remember that ‘question of

law’ means an abstract legal issue rather than an issue of whether summary judgment should be

granted.” Ahrenholz, 219 F.3d at 677. “Section 1292(b) was not intended to make denials of

summary judgment routinely appealable.” Id. at 676 (citations omitted); see also Baxter Int'l Inc.

v. Cobe Labs., Inc., 89 C 9460, 1992 WL 151894, at *6 (N.D. Ill. June 15, 1992) (“Interlocutory

appeal was not intended to allow courts of appeal to offer advisory opinions rendered on

hypothesis which evaporate in light of full factual development.” (quotation omitted)).

Plaintiffs’ Motion confirms that the Order is not suitable for interlocutory review. It

argues about the application of First Amendment law to a version of facts that the Court’s

summary judgment opinion recognized as unsupported and disputed. (Pl. Memo. at 1 (claiming

Amendments “target[] pro-life medical professionals and facilities and requires them to promote

abortion”), at 3 (“it is also a pure question of law whether SB 1564 should be analyzed within the

broader context of the overall regulation of medical professionals”), at 6 (the “Order incorrectly

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applied intermediate scrutiny because it did not require that Defendant demonstrate that less

restrictive alternatives were not successful”)). The Court denied summary judgment after careful

study of the parties’ extensive submissions; based on this review, the Court held that material

facts about the applicable standard of care for health care professionals remain disputed and that

a fuller record with expert testimony is needed. See 2020 WL 5253855, at *12 (“The court does

not now delineate the appropriate standard of care and…will permit expert discovery on the

issue.”), at *13 (“the court is unwilling to conclude that Defendant has not met his burden of

demonstrating that the law promotes a substantial interest until Defendant has been given an

opportunity to complete the requested expert discovery”).

Resolution of these factual disputes is critical to determining the applicable First

Amendment legal standard. See Becerra, 138 S.Ct. at 2373 (concluding legal standard based on

how challenged law was “not tied to a [medical] procedure,” “applie[d] to all interactions

between a [health care] facility and its clients,” and did not require provision of “information

about the risks or benefits of [medical] procedures.”). Without record evidence as to what health

care professionals must disclose to patients about reproductive treatments to meet the standard of

care, and whether they must obtain informed consent for a procedure or inform a patient of her

legal treatment options, the Court cannot decide whether the Amendments regulate professional

conduct. See id. (“the requirement that a doctor obtain informed consent to perform an operation

is firmly entrenched in American tort law.” (quotation omitted)); Planned Parenthood of Se. Pa.

v. Casey, 505 U.S. 833, 884 (1992) (“a requirement that a doctor give a woman certain

information as part of obtaining her consent to an abortion is, for constitutional purposes, no

different from a requirement that a doctor give certain specific information about any medical

procedure.”). Without knowing whether the Amendments are consistent with a standard of care

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applicable to health care professionals generally, it is impossible to determine which First

Amendment legal standard to apply. See id. And without knowing which legal standard to apply,

the Court cannot determine whether the Amendments survive the corresponding level of

scrutiny. To be sure, the Court ticked through each of these inquiries in its Order; plaintiffs now

improperly seek appellate review of these fact-bound determinations.

II. Plaintiffs misconstrue different standards for preliminary injunction and summary
judgment stages as a “contestable” issue.

Plaintiffs argue that a contestable issue exists because “[t]wo judges have examined the

same set of facts and reached different conclusions based on their conflicting reading of the law.”

(Pl. Memo. at 1). That framing is inaccurate; the Court reviewed materially different records in

reaching each decision. In 2017, Judge Kapala issued a preliminary injunction without first

holding an evidentiary hearing or allowing any discovery. It is clear that the Court did not issue

its 2017 decision after examining a “set of facts” given both the early procedural posture of the

case and that the Court’s order did not cite any facts. (See NIFLA Dkt. 65.) Rather, the Court

noted the general risk that “even short deprivations of First Amendment rights constitute

irreparable harm” and opted to enjoin the law pending litigation. (Id. at 5 (quotation omitted).)

Three years later, Chief Judge Pallmeyer declined to grant summary judgment for plaintiffs after

carefully examining the parties’ briefs and voluminous factual submissions, which were based on

multiple depositions and thousands of documents exchanged during discovery.

Different procedural standards in the course of multi-year cases do not generate a

“contestable” issue under section 1292. In other words, different kinds of motions pose different

questions to the Court. However, to satisfy the “contestable” requirement, the interlocutory

decision to be reviewed must involve a question of law subject to different answers. See 28

U.S.C. § 1292(b) (requiring “substantial ground for difference of opinion”). Plaintiffs conflate

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the fact that the Court was presented with different questions in its decisions, with section 1292’s

contestable requirement that a question of law lead to different answers. (See Pl. Memo. at 4 (“It

is difficult to imagine a more striking example of a substantial conflict when two judges on the

same Court analyze the law and apply it to the same set of facts yet reach contradictory

conclusions.”)).

Here, “a motion for summary judgment raises a different decisional question for the

judge than does a motion for a preliminary injunction.” Lac Du Flambeau Band of Lake Superior

Chippewa Indians v. Stop Treaty Abuse – Wis., Inc., 991 F.2d 1249, 1258 (7th Cir. 1993). This

distinction requires “district courts to be cautious” at the summary judgment stage before

“adopting conclusions of law made in ruling on a preliminary injunction because the posture of

the case at that time inevitably entails incomplete evidentiary materials and hurried consideration

of the issues.” Id. Chief Judge Pallmeyer appropriately applied “a different decisional question”

to the far more extensive facts than the “incomplete materials” presented to Judge Kapala. Id. To

be precise, Chief Judge Pallmeyer considered 87 relevant documents and excerpts from 7

depositions attached as exhibits to the Secretary’s summary judgment opposition (NIFLA Dkt.

143-44), whereas the NIFLA preliminary injunction motion was supported by only the verified

complaint (Dkt. 36). While Judge Kapala’s order merely acknowledged that plaintiffs posed

constitutional questions about the Amendments, Chief Judge Pallmeyer’s Order reflects that, at

the end of fact discovery, plaintiffs had not shown they were entitled to summary judgment. The

presence of a factual record allowed Chief Judge Pallmeyer to more fully apply First

Amendment case law to plaintiffs’ claims than Judge Kapala had. In sum, that plaintiffs

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identified differences in the Court’s analyses at the preliminary injunction and summary

judgment phases does not create a “contestable” question appropriate for an interlocutory appeal.

Plaintiffs also claim to have satisfied the contestable requirement because the Court’s

Order did “exactly the opposite of what [Becerra] instructed” in applying Casey, 505 U.S. 833.

(Pl. Memo. at 9.) The Court found Becerra’s analysis of Casey factually distinguishable7 and

repeatedly concluded that additional discovery was needed to resolve the remaining claims. See

2020 WL 5253855, at *11-12, 14. These are not legal distinctions that constitute a difference of

opinion, but factual ones made by the Court with the benefit of substantial discovery.

III. Interlocutory review would unnecessarily slow this litigation.

Section 1292 also requires showing that an appeal would “materially advance the

ultimate termination of the litigation,” 28 U.S.C. § 1292(b), and that “interlocutory reversal

might save time for the district court, and time and expense for the litigants.” Johnson v. Burken,

930 F.2d 1202, 1206 (7th Cir. 1991) (explaining “controlling” requirement). These cases have

already been stayed once to see whether and how Becerra would clarify the relevant legal

standards. Another stay pending an interlocutory appeal would slow down resolution yet again.

Further, interlocutory review does not materially advance litigation when “issues would

remain for resolution on the return of [the] matter from the court of appeals – resulting in

proceedings related to summary judgment and/or trial.” Republic Bank of Chi., 2015 WL

4397781, at *4; see also Lajim, LLC v. Gen. Elec. Co., 13 CV 50348, 2016 WL 626801, at *2

(N.D. Ill. Feb. 17, 2016) (when “multiple issues would remain unresolved, even if [the movant]

7
Unlike the Amendments, the notices required by the law in Becerra “provided no actual information about
any medical procedures,” “had to be provided to all patients, regardless of their medical conditions or the
reasons they came to the clinic,” and “did not apply to a large number of clinics offering similar pregnancy
services.” 2020 WL 5253855, at 12. The Court found that these factual differences made the Amendments
more akin to the law challenged in Casey than that in Becerra. See id.

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succeeded on an interlocutory appeal, the appeal [does] not materially advance the ultimate

termination of the litigation.”).

A stay here is not only unnecessary to resolve any outstanding questions, but it would

also further delay development of the facts necessary to dispose of this litigation. No matter the

legal standard determined by this Court or the Court of Appeals, the Secretary is entitled to

expert discovery to demonstrate the state interest in the Amendments. See 2020 WL 5253855, at

*13 (Court “is unwilling to conclude that Defendant has not met his burden of demonstrating that

the law promotes a substantial interest until Defendant has been given an opportunity to

complete the requested expert discovery”); see, e.g., id. at *21 n.19, 24-25, 28-29. Even under

the legal standards urged by plaintiffs, the Secretary will still have an opportunity to demonstrate

the state interest in the Amendments. See Becerra, 138 S.Ct. at 2375 (considering proposed

“substantial state interest” in applying intermediate scrutiny); Williams-Yulee v. Fla. Bar, 575

U.S. 433, 444 (2015) (government must “demonstrate[] that a speech restriction is narrowly

tailored to serve a compelling interest” to survive strict scrutiny). For example, to resolve

plaintiffs’ Free Speech and Free Exercise claims, the Court found it necessary to know the

standard of care for providers who do not have conscience objections. See 2020 WL 5253855, at

*12 n.19, 19. And even if the parties’ experts conflict and require trial, as plaintiffs warn, trial

would be required to resolve that factual conflict under any legal standard.

Like most requested section 1292(b) appeals, see Blair, 181 F.3d at 835, the proposed

interlocutory appeal would slow down this already delayed litigation.

CONCLUSION

Plaintiffs have failed to demonstrate why the Court, in its discretion, should delay

progress in this action. Defendant respectfully requests that the Court deny Plaintiffs’ Motions to

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Amend and to Certify for Interlocutory Appeal the Court’s Order Denying Plaintiffs’ Motion for

Summary Judgment (NIFLA Dkt. 178; Schroeder Dkt. 156) and allow expert discovery to

resume.

Date: November 30, 2020 Respectfully submitted,

/s/ Sarah J. Gallo___________

Sarah J. Gallo
Elizabeth Morris
Lauren H. Barski
Matthew V. Chimienti
Assistant Attorneys General
Special Litigation Bureau
OFFICE OF THE ILLINOIS ATTORNEY GENERAL
100 W. Randolph St., 11th Floor
Chicago, IL 60601
Tel.: (312) 814-3000
[email protected]
[email protected]
[email protected]
[email protected]

Counsel for Defendant

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CERTIFICATE OF SERVICE

I hereby certify that on November 30, 2020, I electronically filed the foregoing document with
the Clerk of the Court by using the ECF system, which will send notification of such filing to the
following:

Thomas Olp
Patrick Gillen
Thomas More Society
309 W. Washington, Suite 1250
Chicago, IL 60603
(312) 782-1680
[email protected]
[email protected]
Counsel for Schroeder Plaintiffs

Elissa M. Graves
Kevin H. Theriot
Alliance Defending Freedom
15100 N. 90th Street
Scottsdale, AZ 85260
480-444-0020
[email protected]
[email protected]
Counsel for NIFLA Plaintiffs

Noel W. Sterett
Dalton & Tomich PLC
504 N. State Street
Belvidere, IL 61008
815-986-8050
[email protected]
Counsel for NIFLA Plaintiffs

/s/ Sarah J. Gallo_____________

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