FEMHEALTH USA, INC., dba carafem v. Rickey Nelson Williams, Jr.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0222p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FEMHEALTH USA, INC., dba carafem,
Plaintiff-Appellee,
v.
RICKEY NELSON WILLIAMS, JR. et al.,
Defendants,
OPERATION SAVE AMERICA; JASON STORMS;
MATTHEW BROCK; COLEMAN BOYD; FRANK LINAM;
BRENT BUCKLEY,
Defendants-Appellants.
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No. 22-5915
Appeal from the United States District Court for the Middle District of Tennessee at Nashville.
No. 3:22-cv-00565—William Lynn Campbell Jr., District Judge.
Argued: July 25, 2023
Decided and Filed: September 29, 2023
Before: MOORE, GIBBONS, and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: Stephen M. Crampton, THOMAS MORE SOCIETY, Tupelo, Mississippi, for
Appellants. Briana T. Sprick Schuster, BASS, BERRY & SIMS PLC, Nashville, Tennessee, for
Appellee. ON BRIEF: Stephen M. Crampton, THOMAS MORE SOCIETY, Tupelo,
Mississippi, Larry L. Crain, CRAIN LAW GROUP, PLLC, Brentwood, Tennessee, for
Appellants. Briana T. Sprick Schuster, Sarah B. Miller, Angela L. Bergman, Allison Wiseman
Aker, BASS, BERRY & SIMS PLC, Nashville, Tennessee, for Appellee. Barbara A.
Schwabauer, Erin H. Flynn, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Amicus Curiae.
>

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MOORE, J., delivered the opinion of the court in which GIBBONS, J., joined. BUSH, J.
(pp. 13–18), delivered a separate opinion concurring in part and dissenting in part.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. When this interlocutory appeal was initially
briefed, the issue presented was whether the district court abused its discretion in granting a
preliminary injunction under the Freedom of Access to Clinic Entrances Act (FACE Act),
18 U.S.C. § 248. By the time we heard oral argument, however, that merits issue had been
overtaken by a dispute over whether intervening events that occurred after the parties filed their
merits briefs warranted modifying or dissolving the district court’s preliminary injunction.
Because that dispute raises new factual and legal issues that the district court is best positioned to
resolve in the first instance, we DISMISS the appeal and REMAND for further proceedings.
We separately DENY appellants’ motion for attorney fees, expenses, and costs.
I. BACKGROUND
FemHealth USA, Inc. is a reproductive health organization that does business under the
name carafem. R. 1 (Compl. ¶ 1) (Page ID #2).1 Carafem provides abortion care, birth control,
and testing for sexually transmitted diseases through clinics spread across several states. Id.
Until recently, carafem operated one of its clinics in a medical office building—known as the
Providence Pavilion—in Mt. Juliet, Tennessee, a Nashville suburb. Id. ¶¶ 15–16 (Page ID #5).
On July 29, 2022, carafem filed this lawsuit under the FACE Act, which creates a private
cause of action against “[w]hoever . . . by force or threat of force or by physical obstruction,
intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere
with any person because that person is or has been, or in order to intimidate such person or any
other person or any class of persons from, obtaining or providing reproductive health services[.]”
18 U.S.C. § 248(a)(1), (c)(1). Carafem’s complaint named, among other defendants,
1The complaint identifies this as the first paragraph, but it is the third.

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Operation Save America, Jason Storms, Matthew Brock, Coleman Boyd, Frank Linam, and
Brent Buckley—whom we refer to as the OSA defendants.2 R. 1 (Compl. ¶¶ 6–7, 9–12) (Page
ID #3–4).
In its initial complaint, carafem alleged that three days earlier, on July 26, the OSA
defendants approached the Providence Pavilion, “refused to move from the front doors and
blocked [the] entrance and exit from the building for several minutes.” Id. ¶¶ 17–19 (Page ID
#5). According to carafem, the OSA defendants refused to leave until police officers ordered
them to move to the sidewalk. Id. ¶¶ 22–23 (Page ID #6). Carafem claimed that the OSA
defendants’ refusal to move from the entrance prevented patients from entering the Providence
Pavilion. Id. ¶ 22. Carafem further alleged that the OSA defendants told police officers “that
they intended to return to the [Providence Pavilion] each day for the remainder of the week,
planned to ‘escalate’ activities on Friday, July 29, 2022, and planned to ‘fill the hallways’ of the
clinic ‘sometime soon’ and that they ‘have men out here who are willing to do what needs to be
done.’” Id. ¶ 24.
Carafem alleged that numerous OSA affiliates followed through on the promise to return
to the Providence Pavilion. Id. ¶ 27 (Page ID #7). During an alleged incident on July 28,
approximately 60 people associated with OSA arrived at the Providence Pavilion. Id. ¶ 29 (Page
ID #7–8). Carafem does not allege that the OSA defendants were present on that date, but does
assert that the group included several of the other defendants named in the complaint, including
Rickey Williams, Bevelyn Williams, and Edmee Chavannes. Id. Rickey Williams, Bevelyn
Williams, and Chavannes entered the Providence Pavilion and “attempted to enter [carafem’s]
clinic by ringing the front desk via an intercom system, pretending to seek services from the
clinic.” Id. ¶ 31 (Page ID #8). After being informed that they could not enter the clinic, Bevelyn
Williams stated that “either they [are] gonna let us in or we take this whole building down. It’s
up to them.” Id. ¶ 32. Based on these and other allegations made in the original complaint,
carafem requested injunctive relief and money damages under the FACE Act. Id. ¶ 42 (Page
ID #10–11).
2The other defendants are not parties to this appeal.

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The same day that it filed its complaint, carafem moved for, and the district court granted,
a temporary restraining order. R. 2 (Mot. for TRO at 1–2) (Page ID #28–29); R. 9 (Dist. Ct.
TRO Order at 1–4) (Page ID #75–78); R. 11 (Dist. Ct. Order Extending TRO at 1) (Page
ID #80). The following month, carafem moved for a preliminary injunction under the FACE
Act, R. 13 (Mot. for PI at 1) (Page ID #84), and later filed an amended complaint supplementing
its FACE Act claim with several Tennessee tort claims, R. 38 (Am. Compl. ¶¶ 46–66) (Page ID
#236–39).
The district court held a hearing on carafem’s preliminary-injunction motion in
early September and granted the motion a few days later. R. 66 (Dist. Ct. PI Order at 1–2) (Page
ID #505–06). The district court found that carafem “ha[d] shown a likelihood of proving at trial
that the [OSA defendants] physically obstructed an entrance to carafem’s facility with the intent
to intimidate or interfere with persons who were obtaining or providing reproductive health
services, and that they are likely to continue to do so in the absence of an injunction.” R. 65
(Dist. Ct. PI Op. at 8) (Page ID #504). The district court preliminarily enjoined the OSA
defendants from:
a) physically obstructing, intentionally intimidating, or intentionally inter[fe]ring
with (or attempting to do the same) any person because that person is or has been
obtaining or providing reproductive health services from Plaintiff’s facility; and
b) entering on the property of Providence Pavilion at 5002 Crossings Circle, Mt.
Juliet, TN 37122, the parking lot to that facility, and the entire area outlined in red
in Exhibit A hereto during the hours of 6:00 a.m. to 7:00 p.m. Monday through
Friday and 6:00 a.m. to 3:00 p.m. Saturday.
R. 66 (Dist. Ct. PI Order at 1) (Page ID #505). The OSA defendants filed this timely
interlocutory appeal. R. 68 (Notice of Appeal at 1) (Page ID #511); see 28 U.S.C. § 1292(a)(1).
In June 2023, after the merits of this appeal were fully briefed, the OSA defendants
moved this court to take judicial notice of carafem’s public announcement that it was pausing all
in-person services at its Mt. Juliet clinic due to Tennessee’s abortion ban, which went into effect
following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org., 142 S. Ct.

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2228 (2022).3 The OSA defendants argued that the Mt. Juliet clinic’s closure mooted the district
court’s preliminary injunction and asked us to dissolve the preliminary injunction and to vacate
the district court’s order. D. 39-1 (Appellants Mot. ¶ 15). The OSA defendants also asserted
that carafem had been unreasonably slow to notify the OSA defendants and this court of the
clinic’s closure, and therefore moved for attorney fees, expenses, and costs under 28 U.S.C.
§ 1927, this court’s inherent authority, and Federal Rule of Appellate Procedure 39. Id. ¶ 16.
Carafem opposed the OSA defendants’ motion. Carafem argued that the OSA
defendants’ motion was procedurally improper and meritless. D. 42 (Appellee Resp. at 3–8).
Carafem also explained that it had filed a motion to modify the preliminary injunction in the
district court, and asked us to stay this appeal until the district court ruled on the motion to
modify. Id. at 3, 9; see R. 114 (Carafem Mot. to Modify PI Order at 1) (Page ID #872).
Carafem’s proposed modification would eliminate the section (b) of the preliminary injunction,
which prohibits the OSA defendants from entering the Providence Pavilion or the surrounding
area, but would retain section (a), which prohibits the OSA defendants from physically
obstructing, intentionally intimidating, or intentionally interfering with anyone because that
person is or has been obtaining or providing reproductive health services at carafem’s clinic.
Id. at 3 (Page ID #874).
In the leadup to oral argument, the parties continued to litigate in the district court. After
carafem moved the district court for an order modifying the preliminary injunction, the
OSA defendants opposed the motion. R. 118 (OSA Defs. Opp. at 1–12) (Page ID #990–1001).
AJ Hurley, a defendant below but not a party to this appeal, then filed a separate response
opposing carafem’s motion as well as a cross-motion to dissolve the preliminary injunction. R.
119 (Hurley Mot. at 1–2) (Page ID #1040–41). The district court has not acted on these recent
filings.
3The OSA defendants characterize carafem’s action as a “closure” of its Mt. Juliet clinic, D. 39-1
(Appellants Mot. ¶ 6), whereas carafem says that it has “paused” in-person services at the clinic, D. 42 (Appellee
Resp. at 2). This distinction is immaterial to our decision, and we primarily refer to the “closure” of carafem’s Mt.
Juliet clinic for ease of readability. The record is not entirely clear on whether carafem continues to maintain an
office or any legal interest in the Providence Pavilion, but there is no dispute that the organization no longer
provides in-person reproductive health services to patients at the building or in Mt. Juliet, Tennessee more broadly.
Carafem does represent, however, that it “continues to provide online medical care to its Tennessee-based patients.”
D. 42 (Appellee Resp. at 2).

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We heard oral argument in July 2023. The focus of the argument was not on whether the
district court misinterpreted the factual record or the FACE Act when it granted the preliminary
injunction. Rather, the parties sparred over whether the closure of carafem’s clinic necessitates
modifying or dissolving the preliminary injunction. The OSA defendants asked us to dissolve
the preliminary injunction and vacate the district court’s order granting the injunction. Oral Arg.
1:07–13. Carafem, meanwhile, stated that we should remand the case to the district court for it
to rule on carafem’s pending motion to modify the preliminary injunction. Id. 14:04–12.
II. ANALYSIS
We resolve two issues in this opinion. First, we determine which court—this court or
the district court—should address in the first instance whether the recent closure of carafem’s
Mt. Juliet clinic requires modification or dissolution of the district court’s preliminary injunction.
Second, we consider the OSA defendants’ motion for attorney fees, expenses, and costs.
A. The Closure of Carafem’s Mt. Juliet Clinic
When a court issues an injunction, it does so based on its assessment “of the
circumstances that bear on the need for prospective relief.” Salazar v. Buono, 559 U.S. 700, 714
(2010) (plurality opinion). Preliminary injunctions require courts to make that assessment at an
early stage of the litigation so as “to maintain the status quo pending determination of an action
on its merits.” Blaylock v. Cheker Oil Co., 547 F.2d 962, 965 (6th Cir. 1976). But as a case
progresses, subsequent changes in the law or facts may “threaten to convert a previously proper
injunction ‘into an instrument of wrong[.]’” Gooch v. Life Invs. Ins. Co. of Am., 672 F.3d 402,
414 (6th Cir. 2012) (quotation marks omitted) (quoting Buono, 559 U.S. at 714–15). For that
reason, district courts retain the power to modify or dissolve preliminary injunctions to account
for significant intervening changes in the law or facts, id., and the courts of appeals have
jurisdiction of appeals from district courts’ exercise (or not) of that power, 28 U.S.C.
§ 1292(a)(1).
Here, the district court granted carafem’s motion for a preliminary injunction based on its
assessment of the facts that existed at that time. The district court found that carafem had shown
that the OSA defendants “physically obstructed an entrance to carafem’s facility with the intent

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to intimidate or interfere with persons who were obtaining or providing reproductive health
services, and that [the OSA defendants] [we]re likely to continue to do so in the absence of an
injunction.” R. 65 (Dist. Ct. PI Op. at 8) (Page ID #504). Accordingly, the district court found
that a preliminary injunction was appropriate to protect carafem’s rights under the FACE Act.
Id.
The OSA defendants appealed, claiming that the district court abused its discretion in
granting the preliminary injunction. The OSA defendants challenged the district court’s finding
that they had interfered with any person’s access to carafem’s clinic within the meaning of the
FACE Act. They argued that there was no evidence that they intended to return to the
Providence Pavilion in the future. And they asserted that the district court’s preliminary
injunction was overbroad and burdened their protected speech. Carafem challenged each of the
OSA defendants’ arguments in its brief, and the OSA defendants continued to press their points
on reply.
The merits issues raised and debated in the parties’ briefs have since taken a back seat to
the present dispute over how to address the fact that carafem no longer provides in-person
reproductive health services at its Mt. Juliet clinic. All agree that this development means that it
is not necessary to prohibit the OSA defendants from entering the Providence Pavilion or the
area surrounding it in order to protect carafem’s rights under the FACE Act. Indeed, carafem has
asked the district court to eliminate the portion of the preliminary injunction imposing that
prohibition. R. 114 (Carafem Mot. to Modify PI Order at 3) (Page ID #874). The parties take
different views, by contrast, of what should be done with remainder of the preliminary
injunction.
The parties’ recent filings suggest that their dispute will require additional factfinding.
Carafem argues that the closure of its clinic does not negate its need for the disputed portion of
the preliminary injunction “because the people who have or had been obtaining and providing
reproductive health services from carafem’s Mt. Juliet location continue to reside in and around
Mt. Juliet and are thus still at a significant risk of intimidation, and interference at the hands of
Defendants.” D. 42 (Appellee Resp. at 8). The OSA defendants have challenged carafem’s
claim, arguing in a district-court brief that it lacks a factual foundation. R. 118 (OSA Defs.

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Resp. in Opp. to Mot. to Modify PI at 5–8) (Page ID #994–97). Hurley, who is not a party to this
appeal but is a defendant below, likewise argues in a separate district-court motion that carafem
has “provide[d] no evidence to support [its] contention” and that “the ‘factual’ basis” for its
argument “rests on Plaintiff’s say-so.” R. 119 (Hurley Mot. at 4–5) (Page ID #1043–44).
The resolution of the parties’ factual disputes may in turn require resolution of legal
issues that were not raised below or addressed in the parties’ briefs on appeal. For example, the
OSA defendants argue that a FACE Act injunction must be linked to a facility; thus, once
carafem closed its Mt. Juliet clinic, the district court’s entire preliminary injunction became
moot. D. 39-1 (Appellants Mot. ¶¶ 14–15); D. 45 (Appellants Reply at 6–7). Carafem responds
in a recent district court filing that the FACE Act protects not only reproductive health facilities
but also the patients and medical providers who receive and provide reproductive health services
at those facilities. See R. 120 (Carafem Reply in Support of Mot. to Modify PI at 3) (Page ID
#1051). Because the district court issued its preliminary injunction when carafem’s Mt. Juliet
clinic was providing in-person reproductive services, that court has not addressed whether the
clinic’s closure alters the court’s finding that carafem is likely to suffer irreparable harm absent a
preliminary injunction and, if carafem is likely to suffer irreparable harm, whether that harm can
support an injunction under the FACE Act.
Given that the dispute now before us arose after appellate briefing was completed and
implicates unsettled facts and law that were not addressed by the district court below, we
conclude that a remand to the district court is appropriate. The district court is best positioned to
resolve the parties’ factual disputes. See Hadix v. Caruso, 248 F. App’x 678, 681 (6th Cir. 2007)
(per curiam) (remanding to the district court to assess argument that certain claims were moot
where the argument was raised in briefs filed shortly before oral argument); 13C Charles Alan
Wright et al., Federal Practice and Procedure § 3533.10.3, at 645 & n.31 (3d ed. 2008) (noting
that “it is common to remand for consideration of mootness by the lower court” where “the
appellate court is unsure of the facts”). The district court has full authority to modify or dissolve
its preliminary injunction based on its assessment of the newly developed facts. Gooch, 672
F.3d at 414–15. And any future order entered by the district court modifying or dissolving, or
declining to modify or dissolve, the preliminary injunction may be immediately appealed to this

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court. See 28 U.S.C. § 1292(a)(1). If the case does return to us, our decision will benefit from a
more complete factual record as well as appellate briefing on, and the district court’s views of,
the parties’ legal arguments.
The OSA defendants object to this course of action, asserting that a remand is
unwarranted because the district court’s entire preliminary injunction is moot. The OSA
defendants base this argument on their assertion that there is no evidence that they intend to
return to the Providence Pavilion or interfere with any person who is obtaining or has obtained
reproductive health services from carafem. Yet carafem contends that, contrary to the OSA
defendants’ assertion, its patients and medical providers are “still at a significant risk of
intimidation, and interference at the hands of” the OSA defendants. D. 42 (Appellee Response at
8); see also R. 115 (Carafem Mem. in Support of Mot. to Modify PI at 4) (Page ID #880)
(alleging other acts of intimidation and interference). For our part, we see no reason to wade into
the parties’ factual disputes before the district court has had a chance to make factual findings.
Once the district court has done so, and if a further appeal is taken, we may then address the
issue on the appropriate record.
The OSA defendants respond that further factfinding is unnecessary because we can hold
as a matter of law that a FACE Act injunction cannot stand absent an open reproductive
healthcare facility, which would make it irrelevant whether there is an ongoing likelihood of
irreparable harm to carafem. To resolve this matter now would place us in the untenable position
of issuing what would effectively be an advisory opinion on a novel legal dispute that has not
been briefed and that is not presented in the district court decision from which this appeal was
taken. Cf. Hadix, 248 F. App’x at 681 (remanding to the district court “[r]ather than attempting
to address [a] moving target and rather than issuing rulings that time may make irrelevant”). If
the district court finds that the preliminary injunction remains appropriate despite the clinic’s
closure for in-person reproductive services, the OSA defendants may appeal that decision and
renew their argument in this court.
The OSA defendants further argue that a remand is unnecessary because the district court
issued its preliminary injunction based on its assessment of the events that occurred at the
Providence Pavilion on July 26, not any of the other events or factual allegations raised in

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carafem’s motion to modify the preliminary injunction or in its appellate briefing. This
argument merely repackages the OSA defendants’ earlier position on mootness. The suggestion
appears to be that any events that occurred after July 26 may or may not support a different
preliminary injunction, but they cannot be used to maintain the current one, so we should
dissolve the current preliminary injunction and allow the district court to consider whether to
grant a new one. Yet only by siding with the OSA defendants and holding that the closure of
carafem’s Mt. Juliet clinic for in-person reproductive services moots carafem’s need for a
preliminary injunction could we reasonably dissolve the current preliminary injunction. We
decline to depart from our usual practice and intervene in that dramatic fashion before the district
court addresses the parties’ factual and legal disputes in the first instance. See Hadix,
248 F. App’x at 681 (adopting this approach); see also Cnty. Sec. Agency v. Ohio Dep’t of Com.,
296 F.3d 477, 482 (6th Cir. 2002) (noting that the court previously “returned the case to the
district court for a ruling on the motion to dissolve” the preliminary injunction).4
Lastly, the OSA defendants say that a remand will cause unnecessary delay and continue
to place them at risk of running afoul of the district court’s preliminary injunction. Given that
carafem has moved the district court to eliminate the portion of its preliminary injunction barring
the OSA defendants from entering the Providence Pavilion and the surrounding area, we expect
that the district court will be able to address that portion of the preliminary injunction promptly
on remand. We are also confident that the district court will address the parties’ competing
motions to modify or dissolve the remainder of the preliminary injunction without undue delay.
We are therefore unpersuaded that a remand will harm the OSA defendants in any significant
way, and we remand the case to the district court for further proceedings.
B. The OSA Defendants’ Motion for Attorney Fees, Costs, and Expenses
Parties may seek to recover attorney fees, costs, and expenses under several different
sources of authority. The OSA defendants invoke three potential sources: 28 U.S.C. § 1927, this
4We note that the dissent focuses only on abortions and overlooks the fact that carafem is a reproductive
health organization that provides a range of reproductive services including birth control and STD testing, for
example. Moreover, although carafem paused in-person services at the Mt. Juliet clinic, the record is unclear
whether carafem continues to use the facility for its online medical care. See n.3, supra. Clearly the district court is
better situated to address such factual issues.

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court’s inherent authority, and Federal Rule of Appellate Procedure 39.5 Beyond merely citing
our inherent authority and Rule 39, however, the OSA defendants do not address either in any
depth. We therefore focus on § 1927, which permits courts to award sanctions against an
attorney “who . . . multiplies the proceedings in any case unreasonably and vexatiously[.]”
“The purpose” of imposing sanctions under § 1927 “is to deter dilatory litigation
practices and to punish aggressive tactics that far exceed zealous advocacy.” Red Carpet Studios
Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir. 2006). Section 1927
imposes an objective standard of conduct and does not require a finding of bad faith before it
authorizes a court to impose sanctions. Salkil v. Mount Sterling Twp. Police Dep’t, 458 F.3d
520, 532 (6th Cir. 2006). A litigant does not fall below that objective standard of conduct
through “[s]imple inadvertence or negligence.” Ridder v. City of Springfield, 109 F.3d 288, 298
(6th Cir. 1997) (quoting Ruben v. Warren City Schs., 825 F.2d 977, 984 (6th Cir. 1987)). Rather,
“[t]here must be some conduct” that “falls short of the obligations owed by a member of the
bar to the court and which, as a result, causes additional expense to the opposing party.”
Id. (emphasis added).
The OSA defendants argue that carafem should have notified this court sooner of its
decision to stop providing services at its Mt. Juliet clinic, and that carafem’s failure to do so led
the OSA defendants to incur additional costs briefing their motion to take judicial notice. Based
on the documents available to us, it appears that carafem announced that it was pausing all in-
person services at its Mt. Juliet clinic on June 1, 2023; counsel for the OSA defendants initiated a
discussion with counsel for carafem concerning the pause on June 13; the OSA defendants filed
their motion to take judicial notice in this court on June 20; and carafem filed its response
on June 29. See D. 39-5 (Emails Exchanged Between Counsel at 1–4); D. 42 (Appellee Resp. at
2–3).
5Rule 39 addresses costs and is not ordinarily cited by litigants seeking attorney fees and other sanctions.
See Fed. R. App. P. 39. The more common appellate rule cited in these circumstances is Rule 38, which authorizes
courts of appeals to award just damages and costs based on the filing of a frivolous appeal. See Fed. R. App. P. 38;
Hogan v. Jacobson, 823 F.3d 872, 886 (6th Cir. 2016) (observing that Rule 38 and § 1927 “provide overlapping
standards”). The OSA defendants’ failure to explain how Rule 39 is relevant obviates any need to explore the issue
further.

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We are not persuaded that this timeline evidences unreasonable delay by carafem, but
even if we were to agree that carafem should have alerted everyone to the closure of its Mt. Juliet
clinic sooner, we would still deny the OSA defendants’ motion. There is no evidence that
carafem engaged in “dilatory litigation practices[,]” Red Carpet Studios, 465 F.3d at 646, that
“multiplie[d] the proceedings” in this case, 28 U.S.C. § 1927. This is not a case in which one
side pressed a concededly unmeritorious claim, causing the other to incur unnecessary expenses.
Cf. King v. Whitmer, 71 F.4th 511, 530 (6th Cir. 2023) (affirming sanctions under § 1927 for this
reason). To the contrary, there is no suggestion that the OSA defendants would not have filed
the same motion to dissolve the district court’s preliminary injunction, or that carafem would not
have filed the same brief opposing that motion, had carafem disclosed its clinic’s closure a few
days or even weeks earlier. The OSA defendants therefore cannot show that any delay caused
them to incur additional expenses, and we deny their motion for attorney fees, costs, and
expenses.
III. CONCLUSION
For the foregoing reasons, we DENY the OSA defendants’ motion for attorney fees,
costs, and expenses, DISMISS this appeal, and REMAND for further proceedings.

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_________________________
CONCURRENCE/DISSENT
_________________________
JOHN K. BUSH, Circuit Judge, concurring in part and dissenting in part. I agree with
my colleagues that the district court should reconsider whether and, if so, to what extent, a
preliminary injunction is warranted for Plaintiff-Appellee FemHealth USA, Inc., d/b/a carafem.
Where we disagree is on whether the existing preliminary injunction should remain in place
while the district court reassesses. I don’t believe that this injunction can survive based on the
existing record and findings by the district court. I therefore respectfully dissent in part.
There is a simple reason why the preliminary injunction currently in place should be
dissolved: abortions are no longer performed at the carafem clinic—a fact the parties don’t
dispute, as my colleagues acknowledge. Majority Op. at 5 n.3. That new development renders
the injunction moot and therefore requires us to vacate the district court’s order for the existing
preliminary injunction.
“It has long been settled that a federal court has no authority ‘to give opinions upon moot
questions or abstract propositions, or to declare principles or rules of law which cannot affect the
matter in issue in the case before it.’ ” Church of Scientology of Cal. v. United States, 506 U.S.
9, 12 (1992) (emphasis added) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). We may not
leave the injunction undisturbed as a placeholder, as my colleagues appear to do, while the
district court hears carafem’s arguments for different equitable interim relief. To do so exceeds
our circumscribed judicial power under the Constitution. The mootness of the preliminary
injunction “makes it impossible for the court to grant any effectual relief”; accordingly, we must
vacate the injunction rather than allow what has become an advisory opinion to stand. Fleming
v. Gutierrez, 785 F.3d 442, 445 (10th Cir. 2015); see also Resurrection School v. Hertel, 35 F.4th
524, 528–30 (6th Cir. 2022) (en banc).
To understand why the preliminary injunction is moot, consider the underlying relevant
facts. On July 26, 2022, Operation Save America (OSA) and other defendants gathered at
Providence Pavilion, where carafem was located, to celebrate Dobbs v. Jackson Women’s Health

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Organization, 142 S. Ct. 2228 (2022), which had been decided 30 days earlier. Dobbs, of
course, overturned Roe v. Wade, 410 U.S. 113 (1973). Defendants apparently thought that
Tennessee’s Human Life Protection Act, Tenn. Code § 39-15-213, had gone into effect that day.
This statute, known as the “Tennessee trigger law,” criminalizes abortion in all but exceptional
circumstances. See id. By its terms, though, the abortion prohibition did not become effective
until 30 days after “[t]he issuance of the judgment in any decision of the United States Supreme
Court which overrules, in whole or in part, Roe v. Wade, 410 U.S. 113 (1983), as modified by
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), thereby
restoring to the states their authority to prohibit abortion.” 2019 Tenn. Pub. Ch. 351 (S.B. 1257),
at Sec. 3(a)(1). It seems that defendants mistakenly believed that the Tennessee trigger law
would go into effect on July 26, 2022, or 30 days after issuance of the Dobbs opinion. In fact,
the trigger date was based not on the day the Supreme Court issued its opinion, but rather on the
day it issued its judgment. The Court did not issue its judgment in Dobbs until July 26, so the
Tennessee abortion prohibition didn’t ripen until 30 days after that, on August 25, 2022.
Defendants’ confusion as to the effective date of the Tennessee trigger law contributed to
an escalation at the carafem clinic that gave rise to the preliminary injunction. On July 26, 2022,
the OSA defendants went to the Providence Pavilion apparently believing that the Tennessee
abortion law had gone into effect. When it became clear that abortions were still being
performed at the facility, defendants were outraged at what they considered carafem’s blatant
defiance of a binding Supreme Court decision and an applicable Tennessee law. However, the
protestors soon learned that carafem was acting well within its rights. About an hour after the
events in question, the Supreme Court issued its judgment in Dobbs and the Attorney General of
Tennessee issued a public statement saying that the trigger ban would not go into effect until
August 25.
But that did not end the matter. Even after the trigger date was clarified, OSA supporters
continued to protest at the facility. According to carafem, the clinic had to go into lockdown,
and some of its patients either had their visits delayed or they had to reschedule or cancel
appointments. And based on one patient’s declaration, she had to be escorted into the clinic from
a different office in the building because she feared for her safety.

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On July 29, carafem obtained a temporary restraining order. After full briefing and an
extensive evidentiary hearing, the district court issued a preliminary injunction on September 14,
2022. The district court found that carafem satisfied the factors for injunctive relief, including
that it is likely to succeed on the merits of its claim brought under 18 U.S.C. § 248.
That statute bears the heading “Freedom of access to clinic entrances” in the United
States Code, and it is often referred to as the “Freedom of Access to Clinic Entrances Act,” or the
“FACE Act.” 18 U.S.C. § 248. But the FACE Act deals with more than just access to clinic
entrances. For example, it also gives certain protections for “any person lawfully exercising or
seeking to exercise the First Amendment right of religious freedom at a place of religious
worship,” id. at § 248(a)(2), and it imposes penalties for the intentional damage or destruction
of not only “the property of a facility” but also “the property of a place of religious worship,”
id. § 248(a)(3).
The repeated references to “property” in the statute—whether at clinics or at places of
religious worship—make clear that its provisions are focused, at least in part, on providing
protection for people while they are at certain statutorily protected places. And the district
court’s factual findings in support of the preliminary injunction all addressed alleged violations
that occurred at the particular protected property at issue—the carafem clinic—and nowhere else.
Indeed, in the district court’s own words, the injunction does “not restrict any of the rights of the
Defendants, including their First Amendment rights, outside the property of the Providence
Pavillion [sic] where carafem’s office is located or outside a two-hour window of carafem’s
hours of operation (two hours before opening to two hours after closing).” R. 65, PageID 504
(emphasis added). The injunction and the factual findings made in support thereof thus carefully
circumscribed the relief in two ways: they limited it to (1) the location of the carafem clinic, and
(2) the timeframe within which abortions were performed at the facility each day.
In light of those parameters, the existing preliminary injunction is moot with the cessation
of abortion care at the clinic. Because carafem no longer performs abortions, there is no longer
any abortion provider who is “providing or seeking to provide services in [the] facility,” nor is
there any patient “obtaining or seeking to obtain” abortion “services in [the] facility.” 18 U.S.C.
§ 248(c)(1)(A). And OSA isn’t protesting at carafem anymore now that abortions are no longer

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provided there. Indeed, even carafem acknowledges in its opposition to the motion for judicial
notice “that there is not currently an ongoing likelihood of irreparable harm to occur at the”
clinic. Carafem Resp. at 8.
The majority claims, however, that because carafem may still be providing other
reproductive services, such as birth control and STD testing, the preliminary injunction should
remain in place. Majority Op. at 12 n.4. But the majority seems to overlook the fact that the
reason for the protests was in-person abortion care, not other reproductive services like birth
control or STD testing. And the majority and the parties all agree that in-person abortion care is
no longer provided at the carafem clinic. That fact renders this preliminary injunction moot.
As the Supreme Court has explained, “[t]he purpose of a preliminary injunction is merely
to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of
Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Because the preliminary injunction is no longer
needed to maintain the status quo—that is, it has no practical effect—it must be dissolved.
See Resurrection School, 35 F.4th at 528–30 (“Whether a preliminary-injunction appeal is moot
. . . depends on whether our decision would have any ‘practical effect’ during that window of
time.”).
Carafem argues that it still may be entitled to injunctive relief because of the potential for
violations of 18 U.S.C. § 248 in places other than carafem’s Mt. Juliet clinic. But there is
nothing in the factual record so far that shows any threats or violence against anyone outside of
the vicinity of that clinic. Moreover, there is a threshold legal question that must be addressed as
to whether the statute even covers activities beyond statutorily-protected properties.
The preliminary injunction before us obviously does not address those issues. While I
agree with the majority that the district court retains the authority to consider these questions in
determining whether other injunctive relief is appropriate, that doesn’t divest this court of its
duty to vacate the existing injunction when the factual basis for it has become moot. See, e.g.,
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 23 (1994) (explaining that vacatur
“must be granted where mootness results from the unilateral action of the party who prevailed in
the lower court”).

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We have jurisdiction to consider the preliminary injunction because the defendants have
“[a]n appeal of right under [28 U.S.C.] § 1292(a)(1)” for an “order granting or denying
injunctive relief.” Gooch v. Life Invs. Ins. Co. of Am., 672 F.3d 402, 414 (6th Cir. 2012)
(alterations in original) (quoting Cherokee Express, Inc. v. Cherokee Express, Inc., 924 F.2d 603,
606 (6th Cir. 1991)). And in exercising our jurisdiction over the injunction, we “must
never ignore significant changes in the law or circumstances underlying an injunction lest the
decree be turned into an ‘instrument of wrong.’ ” Salazar v. Buono, 559 U.S. 700, 714–15
(2010) (quoting 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2961, pp. 393–94 (2d ed. 1995)); see also Gooch, 672 F.3d at 414–15. Here, it is wrong to
leave the preliminary injunction in place given the significant change in factual circumstances.
The majority sees things differently. But I respectfully submit that my colleagues can
leave the injunction in place only by ignoring its limited scope. To overcome the injunction’s
physical and temporal limitations, carafem persuades the majority to entertain a misconstruction
of the existing preliminary injunction that apparently would enjoin defendants from interacting
with any of carafem’s providers and former abortion patients wherever they may be and
whenever that interaction might occur. The scope of the existing injunction cannot support this
new interpretation. The revised construction also may violate 18 U.S.C. § 248 by proscribing
activities in areas beyond the explicitly referenced properties in the statute.
For good reason there are well-established requirements that a party must meet to obtain
a preliminary injunction. These, of course, relate to likelihood of success on the merits,
irreparable harm, balance of harms, and the public interest. See Sisters for Life, Inc.
v. Louisville-Jefferson Cnty., 56 F.4th 400, 403 (6th Cir. 2022). The movant must clear those
hurdles because people generally are allowed to live their lives—including expressing views on
political issues like abortion—without regulation by court order. See Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary remedy never
awarded as of right.”). Although a preliminary injunction exists to achieve an ostensibly benign
objective—to maintain the status quo—it can be quite coercive. A preliminary injunction tells
the enjoined party what that party can and cannot do while the case remains pending. See id. at
24–26. And, as the district court rightly acknowledged by limiting the scope of the preliminary

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injunction, such equitable relief must be narrowly tailored when free speech is involved in order
to avoid turning the injunction into a weapon that violates the First Amendment. FemHealth
USA, Inc. v. Williams, No. 3:22-CV-00565, 2022 WL 4241269, at *5 (M.D. Tenn. Sept. 14,
2022). All of these considerations reinforce the requirement that we vacate a preliminary
injunction that, by its explicit terms, has outlived its practical effect, lest it be abused to stifle
lawful conduct and chill freedom of expression.
Therefore, while I join the majority’s decision to deny the OSA defendants’ motion for
attorney fees, costs, and expenses, I respectfully dissent from the majority’s decision to maintain
the existing preliminary injunction while the case proceeds in the district court. The injunction
must be dissolved because the key circumstance that gave rise to it—the performance of
abortions at carafem—is now moot.

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