Planned Parenthood Southeast, Inc. et al v. Bentley et al
Filing
146
OPINION. Signed by Honorable Judge Myron H. Thompson on 3/31/14. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
PLANNED PARENTHOOD
SOUTHEAST, INC., on behalf
of its patients,
physicians, and staff,
et al.,
Plaintiffs,
v.
LUTHER STRANGE, in his
official capacity as
Attorney General of the
State of Alabama, et al.,
Defendants.
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CIVIL ACTION NO.
2:13cv405-MHT
(WO)
OPINION
This lawsuit challenges subsection 4(c) of HB 57, the
Women’s Health and Safety Act, codified at 1975 Ala.
Code § 26-23E-4(c).
That statute would require all
physicians who perform abortions at licensed abortion
clinics within the State of Alabama to obtain staff
privileges
at
a
local
hospital.
Plaintiffs
Planned
Parenthood Southeast, Inc., Reproductive Health Services,
June
Ayers,
RN,
and
Kiwana
Brooks,
on
behalf
of
themselves and their patients, physicians, and staff,
claim that, if enacted, this legislation would violate
the Due Process Clause and the Equal Protection Clause of
the
Fourteenth
Constitution.
the
Amendment
to
the
United
States
The plaintiffs have named as defendants
following
state
officials
in
their
official
capacities: the Attorney General of Alabama, the District
Attorneys of Montgomery, Jefferson, and Mobile Counties,
and the State Health Officer.
under
28
U.S.C.
§§
Jurisdiction is proper
1331
(federal
and 1343(a)(3)-(4) (civil rights).
before
the
court
summary judgment.
on
the
parties’
question)
This matter is now
cross-motions
for
For reasons that follow, the State’s
motion for summary judgment will be granted on all claims
except for the substantive due process claim on behalf of
women seeking abortions, and the plaintiffs’ motion for
summary judgment will be denied on all claims.
2
I.
LEGAL STANDARD
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.
The court
shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.
R.
Civ.
P.
56(a).
The
court
must
view
the
admissible evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
favor of that party.
Matsushita Elec. Indus. Co. Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
II.
BACKGROUND
There are currently five clinics that provide legal
abortions in the State of Alabama.
The plaintiffs in
this case operate three of those clinics.
is
the
clinic
Southeast,
administrator
which
operates
3
of
Kiwana Brooks
Planned
clinics
in
Parenthood
Mobile
and
Birmingham.
June Ayers is the clinic administrator of
Reproductive Health Services, which operates a clinic in
Montgomery.1
provided
performed
Together, the three ‘plaintiff clinics’
approximately
in
the
State
40
%
in
of
the
2012.
legal
The
abortions
two
Planned
Parenthood clinics each performed about 15 % of the
abortions, and Reproductive Health Services performed an
additional 10 %.
Reproductive Health Services performs only ‘surgical
abortions,’
surgical
while
and
Planned
Parenthood
‘medication
performs
abortions.’
Each
of
both
the
plaintiff clinics stop performing an abortion at some
point before a pregnancy reaches 15 weeks.
A medication abortion takes place through the oral
administration
of
two
sets
of
pills.
At
Planned
Parenthood, the patient first takes a mifepristone pill
at the clinic.
One to two days later, she takes four
1. The two other clinics, which are not represented
among the plaintiffs in this case, are Alabama Women’s
Center in Huntsville and West Alabama Women’s Center in
Tuscaloosa.
4
misoprostol
Southeast
pills
Discharge
113-3) at 19.
following
at
home.
See
Planned
Instructions,
Ex.
O-4
Parenthood
(Doc.
No.
“The types of complications that may occur
medication
abortion
include
infection,
bleeding, and retained tissue.” Fine Decl., Ex. G (Doc.
No. 110-7) ¶ 10.
A surgical abortion, despite its name, is “not what
is typically thought of as surgery.”
(Doc. No. 110-7) ¶ 11.
Fine Decl., Ex. G
Instead, the physician dilates a
woman’s cervix and removes the fetus from the uterus
either by creating a vacuum or by using a sharp tool.
While a woman is at an abortion clinic, a complication
may arise if there is uterine perforation.
After she
goes
including
home,
other
complications
may
arise,
infection, bleeding, and retained tissue.
The legislation at issue in this case, subsection
4(c) of § 26-23E-4, requires that every physician who
performs either medication or surgical abortions “have
staff privileges at an acute care hospital within the
5
same
standard
metropolitan
statistical
area
as
the
facility is located that permit him or her to perform
dilation
and
hysterectomy,
curettage,
and
any
laparotomy
other
procedures
procedures,
reasonably
necessary to treat abortion related complications.” 1975
Ala. Code § 26-23E-4(c).
A clinic administrator who
knowingly and wilfully operates an abortion clinic with
doctors
who
do
not
satisfy
these
requirements
faces
felony criminal liability, § 26-23E-12(c), and the clinic
“may be subject to adverse licensure action, up to and
including license revocation,” § 26-23E-14(b).
The phrase “staff privileges,” also referred to as
‘admitting privileges,’ describes a relationship between
an individual doctor and a hospital which allows that
doctor to admit patients to a hospital and to perform
procedures at the hospital. Subsection 4(c) specifically
identifies three procedures, of which two, laparotomy and
hysterectomy, are gynecological surgeries for which only
gynecologists
generally
receive
6
training.
Doctors
receive staff privileges after an application process.
Hospitals
generally
delineate
prerequisites
and
procedures for that application in their bylaws, but they
retain discretion whether to grant privileges.
The plaintiffs argue that if subsection 4(c) of 1975
Ala. Code § 26-23E-4 takes effect, they will not be able
to comply, and their clinics will be forced to stop
providing abortions.
Even before the legislation at issue in this case,
Alabama’s regulation of abortion clinics was “detailed
and
extensive.”
Email
from
Patricia
Ivey,
General
Counsel, Ala. Dept. of Public Health, Pls.’ Ex. O-5 (Doc.
No. 113-3) at 24; see also 1975 Ala. Code § 26-21-1, et
seq. (regarding requirements for performing abortion on
a minor); Woman’s Right to Know Act of 2002, § 26-23A-1,
et
seq.
(establishing
waiting-period
certain
requirements,
as
informed-consent
well
as
that
and
only
a
physician can perform an abortion); Ala. Admin. Code
7
§ 420-5-1-.01 to -.04 (establishing further requirements
for licensing of abortion clinics).
Under current law, prior to subsection 4(c), an
abortion clinic must maintain a file documenting the
credentials and background of each physician who performs
abortions.
order
to
Ala. Admin. Code § 420-5-1-.02(5)(d)(2).
be
physician
qualified
either
must
to
perform
have
an
completed
abortion,
a
In
the
residency
or
fellowship that included abortion training; must maintain
admitting privileges at a United States hospital that
allow her to perform abortions at that hospital; or must
provide
verification
trained
physician
from
that
performing abortions.
a
she
disinterested,
has
sufficient
properly
skill
at
§ 420-5-1-.02(5)(d)(2).
The preexisting regulations also include specific
provisions to ensure proper care for complications.
physician
must
patient leaves.
remain
at
the
clinic
§ 420-5-1-.03(6)(a).
until
the
A
last
The patient, after
she leaves the clinic, must have access to a 24-hour
8
answering service that will immediately refer calls about
complications to a qualified nurse, nurse practitioner,
physician assistant, or physician.
Every
such
recorded.
call
regarding
a
§ 420-5-1-.03(6)(d).
complication
must
be
§ 420-5-1-.03(6)(e).
Furthermore, each clinic is required under current
law either to have a physician on staff who has admitting
privileges at a local hospital or to maintain a written
contract
with
a
§ 420-5-1-.03(6)(b).
“covering
physician.”
The covering physician is required
to have admitting privileges that permit her to perform
“dilation
and
curettage,
laparotomy
procedures,
hysterectomy, and any other procedures necessary to treat
abortion-related complications” at a hospital within the
same
§
metropolitan
statistical
420-5-1-.03(6)(b)(4).
A
area
clinic
as
may
the
not
clinic.2
provide
abortions unless an affiliated doctor with admitting
2.
These
are
the
same
procedures
which
subsection 4(c) would require of every doctor providing
an abortion to have admitting privileges to perform.
9
privileges will be available for 72 hours after the
procedure to treat any complications that may arise.
§ 420-5-1-.03(6)(b)(5); (6)(c).
III. DISCUSSION
The plaintiffs have put forth several theories for
relief: (1) the requirement violates substantive due
process
of
abortion
rational-basis
procedural
abortion
due
review;
process
clinics
to
providers
(2)
by
the
because
requirement
delegating
hospitals;
it
fails
violates
licensing
and
(3)
of
the
admitting-privileges requirement violates substantive due
process of women who would seek an abortion.3
3. The plaintiffs also argue that the requirement
violates equal protection by treating abortion providers
differently from other outpatient medical providers
without sufficient justification. This claim is discussed
below. See infra note 18.
10
A. Clinics’ and Doctors’ Substantive Due Process Rights
The plaintiffs argue that subsection 4(c) of 1975
Ala. Code § 26-23E-4 abridges their own substantive due
process rights as clinics and medical providers, separate
and apart from their patients’ substantive due process
right to decide whether to carry a pregnancy to term,
which is discussed at length in a later section.
This
due-process challenge is evaluated using rational-basis
review.
Rational-basis review requires that the regulation be
“rationally
related
to
a
legitimate
governmental
purpose.” City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 446 (1985).
While rational-basis review is not
a “toothless” inquiry, Schweiker v. Wilson, 450 U.S. 221,
234 (1981), it also does not allow “courts to judge the
wisdom, fairness, or logic of legislative choices,” FCC
v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993).
“It
is enough that there is an evil at hand for correction,
and
that
it
might
be
thought
that
the
particular
legislative measure was a rational way to correct it.”
11
Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483,
488 (1955).
Absent some showing of a wholly illegitimate
purpose behind the act, such as “‘a bare ... desire to
harm a politically unpopular group,’” City of Cleburne v.
Cleburne
Living
Ctr.,
473
U.S.
432,
446-47
(1985)
(quoting United States Dept. of Agriculture v. Moreno,
413 U.S. 528, 534 (1973) (alteration in original)), even
empirically dubious health justifications are sufficient
to survive rational-basis review.
In
Lee
for
Optical,
example,
the
Supreme
Court
acknowledged that the statute at issue might “exact a
needless,
wasteful
requirement
in
many
cases,”
but
emphasized that under rational-basis review “it is for
the
legislature,
not
the
courts,
to
balance
the
advantages and disadvantages of the new requirement.” 348
U.S. at 487.
The regulation was upheld based on a
rational relationship to several possible, hypothetical
health interests.
In
this
Id.
case,
once
the
plaintiffs’
due-process
challenge is separated from the burden the regulation may
12
place on the right to obtain an abortion, what remains is
a regulation with an arguably rational relationship to a
legitimate state interest in health and welfare.
The
plaintiffs have offered substantial evidence that this
regulation does almost nothing to protect women’s health,
but
the
court
must
uphold
this
statute
against
a
rational-basis challenge based on even the flimsiest
rational relationship.
Lee Optical, 348 U.S. at 488.
B. Non-Delegation
The plaintiffs argue that subsection 4(c) violates
the private non-delegation doctrine, as enshrined in the
Fourteenth
Amendment’s
due-process
guarantee
against
arbitrary government action, by delegating authority over
the clinics’ licenses to local hospitals.
See Carter v.
Carter Coal Co., 298 U.S. 238, 311 (1936)(a consortium of
major coal producers may not dictate legally binding
employment
regulations
for
smaller
producers).
The
private non-delegation doctrine prohibits States from
granting
to
private
individuals
13
or
entities
final
decision-making authority with regard to others’ rights.
See Wash. ex rel. Seattle Title Trust Co. v. Roberge, 278
U.S. 116, 121-22 (1912) (zoning code may not require
written
consent
by
two-thirds
of
a
property-owner’s
neighbors before a home for the elderly can be built).
In order to make such a delegation, either the private
actors must be held to the full standards of a public
actor (not acting arbitrarily and providing procedural
due process), Tucson Woman’s Clinic v. Eden, 379 F.2d
531, 555-56 (9th Cir. 2004), or the public agency must
retain final authority, such as through a meaningful
waiver process, Sunshine Anthracite Coal Co. v. Adkins,
310 U.S. 381, 388 (1940) (a consortium of major coal
producers
commission,
may
so
propose
long
standards
as
they
to
“may
a
be
government
approved,
disapproved, or modified by the Commission”).
The text of the Women’s Health and Safety Act states
that, “Any abortion or reproductive health center that is
found to have provided an abortion, in a manner that
violates this act or any rule or regulation adopted under
14
the provision of this act, may be subject to adverse
licensure
action,
revocation.”
added).
up
to
and
including
license
1975 Ala. Code § 26-23E-14(b) (emphasis
Despite this permissive, rather than mandatory,
language, the plaintiffs argue that the Department of
Public Health must revoke their clinics’ licenses if the
doctors are unable to secure admitting privileges, and
therefore the hospitals will have effective authority to
deny their licenses.
Specifically, the plaintiffs point
to an Alabama regulation which bars the State Health
Officer from waiving any provision of the rules governing
abortion
clinics
requirement.”
“which
restates
a
statutory
Ala. Admin Code § 420-5-1-.01(6)(a).
The
plaintiffs argue that § 420-5-1-.01(6)(a) would apply to
whatever regulation the Public Health Department adopts
to
enforce
subsection
4(c)’s
admitting-privileges
requirement, as that regulation would be a provision
“which restates a statutory requirement.”
Neither
regulation
party
has
promulgated
presented
to
15
the
enforce
Id.
court
with
subsection
any
4(c).
Therefore, the court cannot determine whether any such
regulation would present a non-delegation problem, should
there be a legal basis to the plaintiffs’ claim.
For
that reason, the court will dismiss this claim without
prejudice.
16
C. Substantive Due Process Rights of
Women Seeking Abortions4
The court now reaches the core of the plaintiffs’
case
against
subsection
4(c)
of
1975
Ala.
Code
4. The State argues that this claim is not ripe
because it is not clear that the clinics will actually
shut down, and not clear that, if they do, no other
providers will take their place.
To determine the
ripeness of an issue, the court looks to “(1) the fitness
of the issues for judicial decision; and (2) the hardship
to the parties of withholding court consideration.”
Beaulieu v. City of Alabaster, 454 F.3d 1219, 1227 (11th
Cir. 2006) (internal quotation marks omitted).
While
there is dispute about what will happen if subsection
4(c) goes into effect, the court finds the issues are fit
for judicial decision after trial. As to hardships of
withholding consideration, “The balance of hardships
weighs heavily in the plaintiffs’ favor.” Planned
Parenthood Se., Inc. v. Bentley, 951 F. Supp. 2d 1280,
1290 (M.D. Ala. 2013) (Thompson, J.).
The State also argues that the plaintiff clinics have
no standing to assert the rights of their patients. It
is well established that abortion doctors and clinics
have standing to bring this type of suit. Singleton v.
Wulff, 428 U.S. 106, 117 (1976). The administrators also
face criminal penalties for non-compliance. The court
also rejects the State’s more specific arguments that the
plaintiffs lack standing under the Declaratory Judgment
Act, 28 U.S.C. § 2201, and 42 U.S.C. § 1983. See Ayotte
v. Planned Parenthood of N. New England, 546 U.S. 320,
324 (2006) (doctor and clinic sued on patients’ behalf
under § 1983); id. at 331 (declaratory judgments are
appropriate under those circumstances).
17
§ 26-23E-4: the claim that this statute violates the
substantive due process rights of the women who seek
abortions from the plaintiff clinics.
The court finds
that genuine disputes of material fact preclude summary
judgment on this claim.
However, having considered the
evidence and arguments presented at summary judgment, the
court will explain, at length, the analysis the court
intends to apply at trial, as a guide to the litigants as
they prepare for trial.
The court will discuss this claim in five parts.
First,
it
will
introduce
the
current
standard
for
evaluating the constitutionality of abortion regulations,
the undue-burden standard of Planned Parenthood of
Southeastern Pa. v. Casey, 505 U.S. 833 (1992), as well
as the underlying principles and development of that
standard.
Second, the court will articulate the test it
will use in applying the Casey undue-burden standard.
Third, the court will discuss how some other lower courts
have applied Casey.
Finally, in the fourth and fifth
parts, the court will explain why genuine disputes of
18
material fact preclude summary judgment with regard to
the
effect
and
the
purpose
of
subsection
4(c),
respectively.
1. Principles of the Undue-Burden Standard
In
Casey,
undue-burden
the
standard
Supreme
for
Court
announced
determining
whether
the
a
regulation of abortion is constitutional: “A finding of
an undue burden is shorthand for the conclusion that a
state regulation has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus.” 505 U.S. at 877.
The
Court developed this standard as “the appropriate means
of reconciling the State’s interest with the woman’s
constitutionally protected liberty.” Id. at 876.
The words “substantial” and “undue” are somewhat
ambiguous; to some extent, their meaning is in the eye of
the beholder.
Therefore, in order to understand the
meaning of Casey’s standard, this court will look to
(a) the history of abortion jurisprudence leading up to
19
Casey,
(b)
the
relationship
of
the
Casey
plurality
opinion to the other, separate opinions in the case,
(c) guidance from the ballot-access cases that were cited
in Casey, and (d) the application of Casey’s standard to
specific regulations in that and subsequent cases.
These sources make clear that, in articulating the
undue-burden standard, the Casey authors struck out a
middle ground between a strict-scrutiny approach, which
undervalues
the
State’s
legitimate
interests
in
regulation, and overly deferential review, which would
eviscerate the woman’s right to make the fundamental
decision whether to terminate a pregnancy.
way
instructs
courts
to
examine
This middle
carefully
both
the
obstacles that the regulations create for women seeking
abortions and the nature and strength of the State’s
justification for the regulations.
In particular, the
Casey authors illustrated that courts must take both
aspects of a regulation into account, through reference
to two cases in the context of ballot-access rights:
Anderson v. Celebrezze, 460 U.S. 780 (1983) and Norman v.
20
Reed, 502 U.S. 279 (1992).
As described at length below,
the court will thus apply a modified version of the
Anderson/Norman test, taking care to adapt the test to
reflect the particular context of abortion.
a. History of Abortion Jurisprudence Pre-Casey
In Roe v. Wade, 410 U.S. 113 (1973), the Supreme
Court first recognized that women have a constitutionally
protected right to decide whether to have an abortion.
This right is rooted in American law’s great respect for
individuals’ decisions about whether and how to parent.
Such decisions reside in “the private realm of family
life which the state cannot enter.” Prince v. Mass., 321
U.S. 158, 166 (1944).
“Our law affords constitutional
protection to personal decisions relating to marriage,
procreation, contraception, family relationships, child
rearing, and education.” Casey, 505 U.S. at 851 (citing
Carey
v.
Population
Serv.
Int’l,
(1977)).
21
431
U.S.
678,
685
Roe
also
established
a
“trimester
framework”
govern review of state regulation of abortion.
505 U.S. at 873.
to
Casey,
The Roe Court recognized two interests
that could justify such regulation, with each becoming
compelling at a different point in the pregnancy.
Under
the Roe framework, the State’s interest in the pregnant
woman’s health would become compelling at the end of the
first
trimester.
After
that
point,
the
State
was
permitted to “regulate the abortion procedure in ways
that are reasonably related to maternal health.” Roe, 410
U.S. at 164.
The second interest, the State’s interest
in potential life, would become compelling at the point
of viability, when the fetus could live outside the womb.
Id. at 163.
The Roe Court noted that, at the time that
case was decided, a fetus was generally viable during the
third trimester, although viability could occur sooner.
Id. at 160; see also Casey, 505 U.S. at 872 (discussing
third-trimester restrictions).
A State’s interest in
fetal life would allow the State to ban abortion entirely
22
after viability, except for “preservation of the life or
health of the mother.” Roe, 410 U.S. at 164.5
From the beginning, the Court was clear that the
trimester framework did not preclude all state regulation
or differential treatment of abortion in the early part
of a pregnancy.
Some women’s-health regulations were
permitted even in the first trimester.
See Connecticut
v. Menillo, 423 U.S. 9 (1975) (allowing State to limit
abortion provision to physicians); Planned Parenthood of
Cent. Mo. v. Danforth, 428 U.S. 52, 81 (1976) (allowing
first-trimester recordkeeping and reporting requirements
“if not abused or overdone”).
Furthermore, the Court
made clear that a State could “make a value judgment
favoring childbirth over abortion, and ... implement that
judgment by the allocation of public funds,” namely by
refusing to use public healthcare funding for abortions.
5. In the subsequent case of Gonzales v. Carhart,
550 U.S. 124 (2007), the Court recognized a third
interest that could justify regulations: maintaining the
ethical standards of the medical profession. 550 U.S. at
157.
23
Maher v. Roe, 432 U.S. 464, 474 (1977); see also Harris
v. McRae, 448 U.S. 297, 315 (1980).
However,
constitutional
over
law
the
of
course
abortion
of
the
came
to
1980s,
the
resemble
“a
virtual Procrustean bed,” imposing severe restrictions on
how a State could regulate the procedure.
Webster v.
Reproductive Health Services, 492 U.S. 490, 517 (1989)
(plurality
opinion).
regulation
touching
Some
upon
“cases
the
decided
abortion
that
decision
any
must
survive strict scrutiny, to be sustained only if drawn in
narrow terms to further a compelling state interest.”
Casey, 505 U.S. at 871 (citing, as an example, City of
Akron v. Akron Center for Reproductive Health, Inc., 462
U.S.
416,
427
(1983),
informed-consent,
which
invalidated
the
waiting-period,
city’s
and
second-trimester-hospitalization regulations as failing
to protect adequately women’s abortion rights).
Even as the Court’s majority, in some cases, was
applying strict scrutiny to all abortion regulations,
others on the Court were urging a complete reversal of
24
Roe, so that “a broad range of limitations on abortion
... that are now unavailable to the States would again
become constitutional possibilities.” Thornburgh v. Am.
Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 796
(1986)
(White,
J.,
dissenting).
In
Webster
v.
Reproductive Health Services, a case considered shortly
before Casey, the Court granted review on the question,
among others, of whether Roe should “be reconsidered and
discarded
in
favor
of
[a]
rational
basis
test.”
57
U.S.L.W. 3442, 3443 (January 10, 1989) (granting review
in Webster, 492 U.S. 490).
In a fractured opinion, the
Court did not clearly resolve that question. Compare
Casey, 505 U.S. at 858 (plurality opinion) (noting that,
in Webster, “a majority of the Court either decided to
reaffirm
or
declined
to
address
the
constitutional
validity of the central holding of Roe”); with id. at 966
(Rehnquist, C.J., concurring in the judgment in part and
dissenting in part) (describing Webster as adopting a
rational-basis standard).
25
b. The Middle Way in Casey
In Casey, the Court was therefore presented with two
potential paths forward.
Some advocates urged the Court
to strike down nearly all regulations on abortion under
strict-scrutiny review.
returning
abortion
rational-basis review.
Others sought to overturn Roe,
regulations
to
deferential
Rather than take either path, the
Court instead both reaffirmed Roe and developed a new
standard for assessing state regulations.
First, the Court upheld the central holding in Roe,
which the Court articulated as three principles.
the principles are relevant to this case.
Two of
One principle
was “a recognition of the right of the woman to choose to
have
an
abortion
before
viability
and
to
obtain
it
without undue interference from the State.” Casey, 505
U.S. at 846.
Another principle was “that the State has
legitimate interests from the outset of the pregnancy in
protecting the health of the woman and the life of the
fetus that may become a child.” Id.
However, “[b]efore
viability, the State’s interests are not strong enough to
26
support a prohibition of abortion or the imposition of a
substantial obstacle to the woman’s effective right to
elect the procedure.” Id.6
Second,
the
Court
adopted
a
new
“undue
burden
standard,” which found a middle ground, balancing both a
woman’s right to an abortion and state interests.
The
Court held that “an undue burden is an unconstitutional
burden.” Id. at 877.
“A finding of an undue burden is
shorthand for the conclusion that a state regulation has
the purpose or effect of placing a substantial obstacle
in the path of a woman seeking an abortion of a nonviable
fetus.” Id.
In the context of regulations which purport
to further the State’s interest in women’s health, the
Court further explains:
“As with any medical procedure, the
State may enact regulations to further
the health or safety of a woman seeking
an
abortion.
Unnecessary
health
regulations that have the purpose or
6. The third principle drawn from Roe concerns the
State’s ability to ban post-viability abortion. Casey,
505 U.S. at 846. Since no abortion provider in Alabama
performs such abortions, it is not relevant to this case.
27
effect of presenting a substantial
obstacle to a woman seeking an abortion
impose an undue burden on that right.”
Id. at 878.
The non-controlling opinions in Casey illustrate the
compromise
the
Casey
‘undue-burden’
standard
strikes
between the call for strict-scrutiny review and returning
abortion
regulations
to
deferential
rational-basis
review.
On one end of the spectrum was Justice Blackmun.
his
separate
opinion,
he
argued
forcefully
In
for
strict-scrutiny review of state regulations on the right
to an abortion.
Id. at 926.7
According to him, while a
State had a legitimate interest in fetal life from the
outset
of
a
pregnancy,
that
interest
compelling at the point of viability.
only
became
Id. at 932-33.
Justice Blackmun thus argued that no fetal-protective
legislation would be constitutional if it applied to
7. Justice Blackmun’s opinion was a concurrence in
part, concurrence in the judgment in part, and dissent in
part.
28
pre-viability fetuses.
Id.
In other words, he called
for the Court to continue applying the Roe framework as
interpreted in Akron and Thornburgh because it would
offer “the most secure protection of the woman’s right to
make her own reproductive decisions.” Casey, 505 U.S. at
930.
On the other end of the spectrum, Chief Justice
Rehnquist called for rational-basis review of any state
regulation on the right to an abortion.8
him,
while
women’s
liberty
interest
According to
in
making
reproductive decisions is protected under the Due Process
Clause,
States
should
be
free
to
regulate
abortion
procedures at any point in a pregnancy so long as those
interests are rationally related to a legitimate state
interest.
Id. at 966.
In other words, Chief Justice
Rehnquist would have overruled Roe.
Id. at 952.
8. Chief Justice Rehnquist’s opinion, joined by
Justices White, Scalia, and Thomas, was a concurrence in
the judgment in part and dissent in part.
29
Casey rejected the views of both Justice Blackmun and
Chief
Justice
Rehnquist.
The
Court’s
Casey
‘undue-burden’ standard does not subject state regulation
of
abortions
to
strict
scrutiny,
which
“undervalue[]”
the
State’s
interests,
id.
invalidating nearly all abortion regulations.
would
at
873,
Nor does
the undue-burden standard provide complete deference to
the
State
by
adopting
a
rational-basis
standard
of
review, which would fail to give “real substance to the
woman’s
liberty
to
determine
whether
to
carry
her
pregnancy to full term,” id. at 869, upholding nearly all
abortion regulations.
Instead, the Court’s new standard finds a middle
ground, balancing a woman’s right to an abortion with a
State’s
interests.
Under
the
standard,
States
may
sometimes impose obstacles on women seeking an abortion
without actually burdening that right.
Casey, 505 U.S.
at 873 (“not every law which makes a right more difficult
to exercise is, ipso facto, an infringement of that
right”).
And, under the same standard, at other times,
30
obstacles will be substantial enough that they impose an
impermissible burden on a woman’s right to an abortion.
In developing an undue-burden standard defined by
purpose and effect, the Casey Court was conscious to
address not only explicit denials of the right, such as
the Court confronted in Roe, but also legislation that
threatens to “chip away at the private choice shielded by
Roe” or to abrogate that right by stealth. Stenberg v.
Carhart,
530
U.S.
914,
952
(2000)
(Ginsburg,
J.,
concurring).
c. The Ballot-Access Cases
Thus it is clear that Casey sought out a middle
ground, a path between the strict scrutiny advocated by
Justice Blackmun and the rational-basis review advocated
by Chief Justice Rehnquist.
But it is equally clear that
the middle path Casey chose was not, as one might have
expected, intermediate scrutiny.
By pointing to the
ballot-access cases, the Casey authors showed that the
proper
analysis
recognizes
31
that
the
strength
of
the
necessary government justifications depends in part on
the extent of the burdens imposed on the right.
In many areas of constitutional law, courts apply
three
‘tiers’
of
scrutiny.
Strict
scrutiny
rational-basis review are discussed above.
and
Intermediate
scrutiny was articulated as a mid-way point, requiring
that a challenged regulation be “substantially related”
to
“important
governmental
objectives.”
Wengler
v.
Druggists Mut. Ins. Co., 446 U.S. 142, 150 (1980) (gender
discrimination); see also Turner Broad. Sys., Inc. v.
F.C.C., 512 U.S. 622, 662 (1994) (First Amendment in
broadcast media).
Thus, had the Casey Court sought
nothing more than an analysis that was between rational
basis and strict scrutiny, intermediate scrutiny was
available at hand.
Yet the Court did not adopt intermediate scrutiny.
Instead,
Casey
context
of
cites
the
discussing
ballot-access
the
cases
shortcomings
of
in
the
strict
scrutiny, cases which adopted an entirely different kind
of analysis.
Thus, Casey, in the undue-burden standard,
32
rejected all categorical ‘tiers of scrutiny,’ whether
strict, rational-basis, or intermediate, because they all
demand the same kind of justification in every case.
The
Casey
authors
“misconceiv[ing]
the
criticized
nature
of
strict
the
interest.” Casey, 505 U.S. at 873.
interest
as
unregulated
a
constitutional
marketplace
for
pregnant
as
woman’s
By treating that
right
the
scrutiny
to
abortion
a
nearly
procedure,
strict scrutiny interfered with legitimate forms of state
regulation.
“The fact that a law which serves a valid
purpose, one not designed to strike at the right itself,
has the incidental effect of making it more difficult or
more expensive to procure an abortion cannot be enough to
invalidate it.” Casey, 505 U.S. at 874.
Instead,
Casey
pointed
to
the
example
of
ballot-access jurisprudence: “[N]ot every ballot access
limitation amounts to an infringement of the right to
vote.
Rather,
the
States
are
granted
substantial
flexibility in establishing the framework within which
voters choose the candidates for whom they wish to vote.”
33
505 U.S. at 873-74 (citing Anderson v. Celebrezze, 460
U.S. 780 (1983) and Norman v. Reed, 502 U.S. 279 (1992)).
Anderson and Norman established a flexible approach
to determine whether a regulation bearing on access to
the ballot is constitutionally problematic. They provide
that courts should not rubber-stamp all ballot-access
restrictions as constitutional nor should they rigidly
protect third parties’ access to ballots at all costs.
Rather, Anderson and Norman require an examination of the
injuries
to
regulation,
rights
in
and
order
the
to
justifications
determine
for
whether
a
the
justifications are strong enough to merit the injuries a
regulation
incurs.
This
approach
rejects
“any
‘litmus-paper test’ that will separate valid from invalid
restrictions.” Anderson, 460 U.S. at 789.
“Instead, a court must resolve such a
challenge by an analytical process that
parallels
its
work
in
ordinary
litigation. It must first consider the
character and magnitude of the asserted
injury to the rights protected by the
First and Fourteenth Amendments that the
plaintiff seeks to vindicate. It then
must identify and evaluate the precise
34
interests put forward by the State as
justifications for the burden imposed by
its rule. In passing judgment, the Court
must not only determine the legitimacy
and strength of each of those interests;
it also must consider the extent to
which those interests make it necessary
to burden the plaintiff's rights. Only
after weighing all these factors is the
reviewing court in a position to decide
whether the challenged provision is
unconstitutional.”
Id. (emphasis added).
The Norman case reinforces the
importance of this approach: “To the degree that a State
would thwart this interest by limiting the access of new
parties
to
the
ballot,
we
have
called
for
the
demonstration of a corresponding interest sufficiently
weighty to justify the limitation.” 502 U.S. at 288-89
(citation omitted)(emphasis added).
Casey’s citation to these cases means more than just
the narrow point that not every regulation of abortion is
unconstitutional.
that,
in
“character
Anderson,
Rather, the ballot-access cases show
applying
and
460
the
magnitude
U.S.
at
undue-burden
of
789,
35
the
standard,
asserted
affects
the
injury,”
whether
the
“corresponding
interest
[is]
sufficiently
weighty
to
justify the limitation.” Norman, 502 U.S. at 288-89.
Casey teaches that tiers of scrutiny do not work in the
abortion context because slight burdens may merit slight
scrutiny, while heavy burdens warrant heavy scrutiny.
This
is
the
key
to
understanding
the
undue-burden
standard.
d. Application of the Undue-Burden
Standard in Casey and Gonzales
The question remains: how is a court to determine
whether any particular regulation presents a “substantial
obstacle” to a woman’s right to obtain an abortion? The
authors
of
the
Casey
plurality
opinion
specifically
cautioned against interpreting the undue-burden standard
through those Justices’ previous individual discussions
of the concept in concurrences and dissents in other
cases.
505 U.S. at 876-77.
Thus, by its terms, the
plurality opinion in Casey directs courts to look only to
36
Casey itself, and of course to subsequent cases, in
understanding the undue-burden standard.9
The Supreme Court has considered four challenges to
abortion
regulations
since
Casey.
However,
only
Gonzales, 550 U.S. 124, further elaborates on the proper
application of the undue-burden standard.10
The Court’s
application of the standard in these two cases shows that
it adopted the Anderson and Norman approach, evaluating
9. The Court of Appeals for the Eleventh Circuit has
never interpreted or applied the undue-burden standard.
10. The other three post-Casey opinions are of
severely limited value in understanding how to apply the
undue-burden analysis. In Mazurek v. Armstrong, 520 U.S.
968 (1997), the Court considered a regulation which
placed essentially no burden on access to abortion
services. It rejected the finding, by the Ninth Circuit
Court of Appeals, of unconstitutional purpose because
there was “simply no evidence” to support that
conclusion. Id. at 974. In Stenberg v. Carhart, 530 U.S.
914, 938 (2000), the State did not contest that its
statute, if interpreted as the Eighth Circuit Court of
Appeals had understood it, would constitute an undue
burden. Thus the question before the Court was not
whether the burden was undue, but rather how to interpret
the state statute. In Ayotte v. Planned Parenthood of
Northern New England, 546 U.S. 320 (2006), the Court
addressed only “a question of remedy.” Id. at 323. In
none of these cases, then, was the question of how to
apply the undue-burden standard properly presented to or
addressed by the Court.
37
a regulation’s justifications as well as the extent to
which it interfered with the exercise of constitutional
rights.
Specifically, two principles emerge from an
analysis of Casey and Gonzales.
First: Context matters.
Courts must perform a careful, fact-specific analysis of
how the restrictions would impede women’s ability to have
an abortion, in light of the circumstances of their
lives. Second: Courts must examine the strength of the
State’s justifications for regulations, not just the
effects of the regulation.
Starting
matters,
the
with
Court
the
has
first
principle,
emphasized
that
that
the
context
standard
requires a fact-specific analysis of the obstacles which
a regulation would place on women in the context of their
lives.
In
particular,
the
Court’s
analysis
of
the
spousal-notification requirement in Casey makes clear
that the circumstances of women affected by an abortion
regulation, including those circumstances which are not
directly caused by the regulation, must be considered in
determining the size of the obstacle.
38
See Casey, 505
U.S.
at
887-898.
The
Court
took
into
account
the
interaction of the regulation with other challenges in
women’s lives, not merely those obstacles which could be
directly and solely attributable to the State’s action.
Id.
Women’s abusive marriages were not caused by the
state regulation.
Nonetheless, the Court evaluated how
the spousal-notification requirement, when combined with
the
specific
experience
of
those
women
and
their
relationships, operated to deprive them of their liberty.
Id.
Indeed
it
is
clear
spousal-notification
that,
in
the
and
provision
considering
throughout
its
application of the undue-burden standard, Casey relied
heavily on the factual findings which the district court
made
after
the
three-day
trial.
In
spousal-notification
provision,
the
numbered
containing
some
court’s
paragraphs
detailed
provision.
factual
Court
findings
Casey, 505 U.S. at 888-891.
39
discussing
of
quoted
the
related
the
18
district
to
the
The
Court
analysis
of
requirement.
real-world
undertook
a
Pennsylvania’s
similarly
fact-intensive
24-hour
waiting-period
The Casey Court found that whether the
effects
unconstitutional
was
of
the
“a
requirement
closer
rendered
question”
than
it
the
theoretical question of whether such waiting periods were
necessarily unconstitutional.
505 U.S. at 885.
The
Court noted that such a waiting period could present a
substantial obstacle for certain women.
In particular,
the Court considered the effect of the regulation on
low-income women, and urged courts to consider “whether
[a regulation] is a substantial obstacle ... as to the
women in that group” that is affected by the regulation.
Id. at 887.
The Court decided “on the record before
[it], and in the context of this facial challenge, [it
was]
not
convinced
that
the
24-hour
constitute[d] an undue burden.” Id.
waiting
period
The waiting-period
provision seems to have fallen just on the other side of
the line from being a substantial obstacle, such that
further evidence after the provision went into effect
40
could reveal that the obstacle presented was substantial.
Furthermore, the Court made clear that it was not making
a general finding about whether such waiting periods were
always permissible in all circumstances--only a specific
finding as to the particular factual circumstances of
Pennsylvania women at that time. Id. (no undue burden
“on the record before [it], and in the context of this
facial challenge”).
The
Supreme
Court
Gonzales, 550 U.S. 124.
took
a
similar
approach
in
That case concerned a federal
ban on a particular procedure for late-term abortion,
intact
dilation
and
extraction,
and
provided
for
an
exception to save the life of the pregnant woman, but not
for her health.
In order to determine whether the ban
presented an undue burden, the Court first determined
that a more common procedure for late-term abortion would
still
be
Therefore,
clearly
there
legal
was
under
only
the
one
federal
statute.
possible
obstacle
presented: The abortion providers who challenged the
statute
argued
that
in
some
41
circumstances
an
intact
dilation and extraction would pose less risk to the
health of the woman than the alternative procedure.
light
of
competing
expert
testimony
on
the
In
safety
question, the Court found that the ban did not create a
substantial obstacle. “[W]here there is uncertainty over
whether
the
barred
procedure
is
ever
necessary
to
preserve a woman’s health, given the availability of
other abortion procedures that are considered to be safe
alternatives,” the Court was unwilling to ignore the
weighty justifications for such a procedure.
Id. at
166-67.
Even here, the Court left the door open to a later
undue-burden challenge to the federal ban based on health
risks depending on the facts.
condition
under
which
the
If there was a specific
inability
to
use
intact
dilation and extraction threatened women’s health, but
not to an extent that it threatened her life (given that
exception to the federal ban), the Court indicated that
an as-applied challenge would be appropriate, limiting
42
the
applicability
of
the
federal
statute
in
that
instance.
The second lesson from Casey and Gonzales is that the
court
must
also
consider
the
strength
justifications that support a regulation.
especially
clear
in
Casey’s
of
the
This point is
treatment
of
the
parental-consent and spousal-notification requirements.
In many respects, these requirements mirrored each other
in the demands that they placed on affected women.
A
doctor could not perform an abortion on a minor woman
without either the informed consent of her parents or the
authorization of a court.
Casey, 505 U.S. at 904-906
(reproducing the Pennsylvania statute).
For a married
woman,
certify
the
statute
required
that
she
under
penalty of perjury either that she had notified her
spouse that she was undergoing an abortion, that the
child was not her spouse’s, or that she should be excused
from notifying him due to abandonment, sexual assault, or
spousal abuse.
Id. at 908-09.
Each of these provisions
granted some control over the woman’s decision to have an
43
abortion
to
husband.
However, the Court upheld the parental-consent
requirement
requirement.
another
while
individual:
rejecting
the
the
parent
or
the
spousal-notification
The Court differentiated between these two
requirements, not on the basis of the difference in the
obstacles they presented for women, but instead based on
the
difference
in
the
strength
of
the
State’s
justification for the obstacles, owing to differences in
the nature and characteristics of the affected women.
The
Casey
enactments,
Court
and
constitutional,
are
said
our
that:
judgment
based
on
the
“[parental-consent]
that
they
are
quite
reasonable
assumption that minors will benefit from consultation
with their parents and that children will often not
realize that their parents have their best interests at
heart.
We cannot adopt a parallel assumption about adult
women.” 505 U.S. at 895.
44
2. Substantial-Obstacle Test
Thus, having reviewed Casey and Gonzales, this court
will use the following test to determine whether an
actual or intended obstacle is substantial: the court
must determine whether, examining the regulation in its
real-world context, the obstacle is more significant than
is
warranted
regulation.
by
the
State’s
justifications
for
the
To further explain and illustrate how this
test is applied in practice, the court will expound on
each portion of the test.
a. Relationship Between Obstacles and Justifications
First, and critically, the test calls for the court
to
determine
whether,
considered
in
context,
the
obstacles imposed are greater “than is warranted” by the
State’s justification.
Supra, at 45.
That is, the heart
of this test is the relationship between the severity of
the obstacle and the weight of justification the State
must offer to warrant that obstacle. See Anderson, 460
U.S. at 789; Norman, 502 U.S. at 288-89.
45
Not every legitimate state interest will justify any
and
all
Rather,
obstacles
the
more
(short
severe
of
outright
prohibition).
the
obstacle
a
regulation
creates, the more robust the government’s justification
must be, both in terms of how much benefit the regulation
provides towards achieving the State’s interests and in
terms of how realistic it is the regulation will actually
achieve that benefit.
Some obstacles will be so slight that the government
need not justify them at all.
See Casey, 505 U.S. at 874
(law that has only “incidental effect” on abortion will
not
be
struck
down);
Mazurek,
520
(characterizing statute as “harmless”).
will
be
significant
enough
to
U.S.
at
972
Other obstacles
require
a
legitimate
justification, but still so modest that even somewhat
doubtful or marginal state interests will justify them.
See, e.g., Casey, 505 U.S. at 901 (finding no undue
burden from record-keeping requirements because “[a]t
most they might increase the cost of some abortions by a
slight amount”).
However, as the severity of obstacle
46
increases,
so
increases
the
requirement
that
the
government establish that the regulation furthers its
interests in real and important ways.
See Anderson, 460
U.S. at 789; Norman, 502 U.S. at 288-89.
At some point,
the obstacles on the right to obtain an abortion will
become so significant that the State cannot justify them
at all.
See Roe, 410 U.S. at 164.
b. Obstacles - Relevant Factors
The
test
calls
for
the
court
to
assess
how
“significant” the obstacle created by the statute is.
Supra, at 45.
any
given
The severity of the obstacle imposed by
regulation
considering
the
must
be
real-world
evaluated
in
context,
circumstances.
What
circumstances will be relevant to a particular case will,
of course, vary; this court by no means imagines that the
following list is exhaustive.
However, it may be helpful
to articulate certain categories of considerations that
have
in
the
past
been,
and
may
in
the
future
be,
important to a court’s assessment of how severe the
47
obstacle is.
The court has identified five non-exclusive
factors to consider, and will discuss each of them in
turn.
First: the means by which the regulation operates on
the
right
to
obtain
an
abortion.
Some
regulations
establish a total ban on abortions, see, e.g., Roe, 410
U.S. at 117-18; prohibit certain procedures, see, e.g.,
Gonzales, 550 U.S. at 134; require certain actions or
procedures before an abortion can be performed, see,
e.g., Casey, 505 U.S. at 844 (describing informed-consent
and waiting-period provisions); regulate or tax abortion
procedures,
providers,
or
(discussing
clinics,
record-keeping
e.g.,
id.
express
the
see,
provision);
State’s views on the subject of abortion, see id. at 877
(State may express respect for life of fetus); deny
public funding or facilities for abortions, see, e.g.,
Webster v. Reprod. Health Servs., 492 U.S. 490, 511
(1989).
Second: the nature and circumstances of the women
affected by the regulation.
Relevant factors may include
48
the women’s age, see, e.g., Casey, 505 U.S. at 895
(noting importance of distinction between adults and
minors); wealth and education, see, e.g., id. at 886
(noting
that
impact
on
poor
women
was
“troubling”);
medical history and needs, see, e.g., Gonzales, 550 U.S.
at 167 (noting the possibility of as-applied challenges
to a procedure ban by women with particular medical
conditions); and any personal factors that may serve to
amplify the harms imposed by the regulation, such as
being in an abusive relationship, see, e.g., Casey, 505
U.S. at 893, or lack of legal immigration status, contra
Planned
Parenthood
of
Greater
Texas
Surgical
Health
Services v. Abbott, 734 F.3d 406, 415 (5th Cir. 2013)
(dismissing the role of immigration status).
Third: the availability of abortion services, both
prior to and under the challenged regulation.
This
factor may include the number of abortion providers and
their distribution geographically, see, e.g., Mazurek v.
Armstrong, 520 U.S. 968, 974 (1997) (“no woman seeking an
abortion would be required by the new law to travel to a
49
different
travel
facility
than
patterns,
was
access
previously
to
available”);
transportation,
and
availability of information about abortion services; the
capacity
of
providers
and
the
likelihood
that
new
providers will fill any gaps created by the regulation;
the
history
of
access
to
abortion
in
the
relevant
jurisdiction, including any trends in the availability of
abortion providers; the kinds of abortion procedures that
are used and their relative frequency of use, see, e.g.,
Gonzales,
550
“availability
considered
to
U.S.
of
be
at
other
safe
164-5,
abortion
167
(contrasting
procedures
alternatives”
in
that
Gonzales
the
are
to
Planned Parenthood of Central Mo. v. Danforth, 428 U.S.
52, 77–79 (1976), in which the then-dominant technique
was banned).
Fourth: the kinds of harms created by the regulation.
The court does not understand the term “obstacle” in
Casey to refer only to a direct barrier standing between
a woman and access to an abortion.
Rather, “obstacle”
refers to the whole array of harms that a regulation may
50
impose on women seeking abortions.
Those harms may
include women’s inability to obtain an abortion, see,
e.g., Roe, 410 U.S. at 120; risks to the woman’s health,
see, e.g., Casey, 505 U.S. at 886 (finding that, given
exception for medical emergencies, waiting period did not
impose a health risk); additional cost or time, see id.
at 901 (“at some point increased cost could become a
substantial
obstacle”);
an
intrusion
of
the
woman’s
physical person, cf. Rochin v. California, 342 U.S. 165,
172 (1952) (forcing suspect to vomit evidence violated
constitutional
rights);
exposure
of
private
or
confidential information, see, e.g., Casey, 505 U.S. at
900
(noting
that
record-keeping
provision
required
confidentiality); humiliation or emotional trauma, see,
e.g., id. at 886 (noting district court’s finding that
regulation would expose women to harassment); and delay,
see, e.g., Planned Parenthood of Wisconsin, Inc. v. Van
Hollen, 738 F.3d 786, 796 (7th Cir. 2013) (“Patients will
be subjected to weeks of delay because of the sudden
shortage of eligible doctors--and delay in obtaining an
51
abortion can result in the progression of a pregnancy to
a stage at which an abortion would be less safe, and
eventually illegal.”).
Given proper proof, a court might
also consider the likelihood that women will seek illegal
abortions
because
of
the
regulation,
corresponding dangers to life and health.
and
the
See Roe, 410
U.S. at 150 (noting “high mortality rates at illegal
‘abortion mills’”).
Fifth: The social, cultural, and political context.
For example, an atmosphere of disapproval and stigma
surrounding
the
provision
of
abortion
services
may
decrease the likelihood that women will be able to access
abortion services, see, e.g., Thornburgh, 476 U.S. at 767
(considering
the
potential
for
harassment
of
women
identified by statute as seeking an abortion), overruled
in part on other grounds by Casey, 505 U.S. 833, or that
gaps in service created by the regulation will be filled
in the future.
(noting
See, e.g., Van Hollen, 738 F.3d at 792
decreased
likelihood
doctors
would
obtain
admitting privileges based on “widespread hostility to
52
abortion and the lack of any likely benefit to a hospital
from granting such privileges to an abortion doctor”).
c. Justifications - Relevant Factors
The test also calls for the court to assess the
significance of the State’s interest in the particular
regulation at issue.
As discussed above, the Supreme
Court has explicitly addressed the question of what kinds
of justifications may warrant particular obstacles to the
right to an abortion.
But in order to evaluate the
weight of the state interest involved in a particular
case, it is not enough simply to note that the State has
invoked one of these legitimate interests.
Rather, the
court must look to case-specific factors.
First: the extent of the anticipated benefit.
This
factor is most relevant in the context of regulations
justified by concerns about the health of the woman.
The
marginal benefit of the new regulation, that is the
additional benefit that the change in law will provide as
compared
to
existing
law,
may
53
be
the
most
relevant
measure in many cases.
is
significant,
If the anticipated health benefit
then
correspondingly greater.
the
State’s
interest
is
See, e.g., Casey, 505 U.S. at
900-901 (noting that record-keeping was a “vital element
of medical research”).
If the health benefit is slight,
however, the State’s (concededly legitimate) interest in
it is also slight.
See, e.g., Doe v. Bolton, 410 U.S.
179, 195 (1973) (casting doubt on health benefit of
performing
abortions
well-equipped
only
clinics).
in
The
hospitals
court
instead
notes
that
of
the
contextual factors discussed above, such as the nature
and circumstances of the women affected, may also be
relevant
to
assessing
the
extent
of
the
benefit.
Furthermore, dangers to health caused by a particular
regulation,
such
as
might
be
established
by
a
demonstrated risk of increased illegal abortions, may
offset health benefits the State anticipates from that
regulation.
See Roe, 410 U.S. at 150 (noting “high
mortality rates at illegal ‘abortion mills’”).
54
Second: the likelihood of the anticipated benefit.
Again, this factor is most likely to come up in the
context of health regulations.
The court should consider
whether the anticipated or hoped-for benefits of the
regulation
are
quite
likely
to
actually
occur,
or
whether, on the contrary, the State can offer only weak
reasons
to
believe
the
regulation
will
anticipated benefit, or any benefit at all.
U.S.
at
195
establishing
(noting
that
lack
hospitals
outcomes than do clinics).
of
achieve
See Doe, 410
“persuasive
produce
the
better
data”
health
While the court may be more
inclined to defer to legislative expectations when the
relevant obstacle is slight, more serious obstacles will
warrant closer examination of the evidence offered in
support of the regulation.
Third: the means a regulation employs.
For example,
as the Supreme Court recognized in Casey, “the means
chosen by the State to further the interest in potential
life
must
be
calculated
to
inform
the
woman’s
choice, not hinder it.” Casey, 505 U.S. at 877.
55
free
While
Casey was not discussing women’s health when it made this
statement, it remains true that the means a State employs
to
achieve
a
legitimate
interest
may
undermine
the
justification for the regulation.
Fourth: the political history and context of the
regulation.
Understanding
a
particular
regulation’s
meaning and its legitimacy will often involve looking
behind the proffered justification to consider also the
political context.
Relevant factors may include the
legislative history of the particular regulation, see,
e.g., Gonzales, 550 U.S. at 157; political rhetoric,
statements, and advertising connected to the regulation,
cf.
Thornburg
(considering,
v.
Gingles,
in
478
voting-rights
U.S.
30,
37
context,
(1986)
“whether
political campaigns have been characterized by overt or
subtle
racial
omitted);
any
appeals”)
prior
(internal
history
of
quotation
restrictive
marks
abortion
regulation; whether the provisions at issue are novel
both within the State and nationally; whether the statute
is specific to abortion or is of general applicability,
56
and whether similar regulations are imposed on comparable
procedures, see, e.g., Doe, 410 U.S. at 199 (noting that
similar
regulations
had
not
been
applied
to
other,
comparable medical procedures).
d. Purpose or Effect
To be clear, all of these considerations apply to the
interpretation of the term “substantial obstacle.” The
Supreme Court’s undue-burden analysis provides that a
regulation which has either the “purpose or effect of
placing a substantial obstacle in the path of a woman
seeking an abortion of a nonviable fetus” imposes an
undue, and thus unconstitutional, burden.
U.S. at 877.
Casey, 505
Thus, this court’s test for “substantial
obstacle” applies to both the “purpose” and “effects”
prongs of the undue-burden test.11
11. The State argues that there can be no
unconstitutional purpose to impose a substantial obstacle
without the effect of creating a substantial obstacle. It
cites Mazurek, which assumed without deciding that “a
legislative
purpose
to
interfere
with
the
(continued...)
57
A regulation that has the purpose of imposing an
obstacle which is more significant than is warranted by
the State’s justifications is unconstitutional.
For
example, if the court finds, after examining the various
relevant factors, that the closure of a clinic would
constitute
a
substantial
obstacle,
then
evidence
establishing that the legislature passed a statute with
11.(...continued)
constitutionally protected right to abortion without the
effect of interfering with that right” would be
unconstitutional. 520 U.S. at 972 (emphasis omitted).
Unless and until the Supreme Court holds otherwise, this
court considers itself bound by the statement reiterated
three times in Casey: “the purpose or effect of placing
a substantial obstacle in the path of a woman seeking an
abortion” creates an undue burden. Casey, 505 U.S. at
877-78. (emphasis added). To require that the plaintiffs
show an effect in every case would read the disjunctive
pronoun out of the test. Cf. Reno v. Bossier Parish Sch.
Bd., 528 U.S. 320, 332 (2000) (discussing “purpose or
effect” provisions), superseded by statute, Fannie Lou
Hamer, Rosa Parks, and Coretta Scott King Voting Rights
Act Reauthorization and Amendments Act of 2005, Pub. L.
No. 109-246, 120 Stat. 580 § 5. Furthermore, this would
not be the only area of constitutional law in which
improper motivations alone can render government action
unconstitutional. See, e.g. Wallace v. Jaffree, 472 U.S.
38, 56 (1985) (intent to promote religion; establishment
clause); Mt. Healthy City Sch. Dist. Bd. Of Educ. v.
Doyle 429 U.S. 274, 283-84 (1977) (intent to retaliate
against protected speech; free speech clause).
58
the purpose of closing down the clinic would suffice to
establish a constitutional violation. Of course, whether
the evidence actually does establish that purpose in any
given case is a complex question.
See Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).
Similarly,
a
regulation
that
has
the
effect
of
imposing an obstacle which is more significant than is
warranted
by
the
unconstitutional.
State’s
justifications
is
Thus, again, if closing a clinic is
found to be a substantial obstacle, then a regulation
that
has
the
effect
unconstitutional.
of
For
closing
this
the
prong,
clinic
of
will
course,
be
the
evidence will be quite different: the plaintiff would
need to show that the regulation will actually have that
effect.
3. Lower Court Decisions After Casey
As recounted in Casey, some of the pre-Casey abortion
decisions went too far in applying strict scrutiny to
“any regulation touching upon the abortion decision.”
59
Casey, 505 U.S. at 871 (citing Akron, 462 U.S. at 427).
However, in the years since Casey, some lower courts have
erred in the other direction: regardless of whether or
not
they
reached
the
correct
result,
they
reviewed
regulations in an overly deferential manner that is not
faithful to the teachings of Casey.
This court’s test,
derived from a careful reading of Casey, seeks to pursue
the correct path between the two extremes.
The court has identified three shortcomings in some
lower-court cases which are of particular concern: first,
courts have failed to take into account the real-world
context of the burdens a regulation may place on women’s
access to abortion services; second, courts have ignored
the fact that the government’s interests are stronger in
some situations and weaker in others; and third, courts
have not adequately considered the relationship between
burdens and justifications.
This court’s test addresses
all of these failings.
The first flaw is some other courts’ failure to
consider all of the relevant circumstances. Particularly
60
in examining regulations that, like subsection 4©, have
the
potential
to
close
down
clinics
which
provide
abortion services, some courts, whether they reached the
correct result or not, have tended to pluck single, often
easily quantifiable factors out of context and to hold
them up as conclusive evidence that there is no undue
burden.
See, e.g., Planned Parenthood of Greater Tex.
Surg. Health Serv. v. Abbott, 734 F.3d 406, 415 (5th Cir
2013) (“An increase in travel distance of less than 150
miles for some women is not an undue burden on abortion
rights”); see also Planned Parenthood of Greater Tex.
Surg. Health Serv. v. Abbott, --- F.3d ---, slip op. at
21 (5th Cir. Mar. 27, 2014) (same).
This often involves,
at the same time, disregarding other factors that make it
more difficult for a woman to obtain an abortion.
See,
e.g., id. (dismissing the role of immigration status as
“unrelated”).
Casey teaches that the question, when it comes to
abortion
rights,
is
whether
the
regulation
places
a
“substantial obstacle in the path of a woman seeking an
61
abortion of a nonviable fetus.” Casey, 505 U.S. at 877.
And the reality is that countless factors, including the
lived
experience
of
the
actual
women
who
will
be
affected, may affect whether a given regulation does or
does not create a substantial obstacle in the real world.
To take a simple example: it is self-evident that 50
miles on the interstate does not pose the same obstacle
as
50
miles
on
an
old
country
road;
and
that
both
distances in a car are quite different from 50 miles on
foot.
Because Casey directs the court to evaluate the
obstacles placed in the path of women seeking abortions,
the proper analysis must be fact-intensive and take in
the full picture.
See, e.g., Casey, 505 U.S. at 893
(considering the context of abusive relationships).12
12. That courts seek clear lines and across-the-board
tests is understandable. And, indeed, precise rules can
be beneficial to the fair adjudication of cases.
But
such rules are helpful only if they reflect some
principled basis and some reality in fact.
Here,
bright-line rules about increased travel distance or cost
or time are not grounded in anything real; they amount to
no more than a particular court’s say-so.
Thus when
courts disagree, compare Abbott, 734 F.3d at 415
(continued...)
62
The second flaw in some lower courts’ applications of
Casey is their failure to recognize that the government’s
legitimate interests may be weighty in some circumstances
and flimsy in others.
The Supreme Court has identified
three legitimate governmental interests which may justify
regulation of abortion: the life of the fetus, the health
of
the
woman,
profession.
and
the
regulation
of
the
medical
But it is not enough to simply note that the
State has a legitimate interest; courts must also examine
the weight of the asserted interest, including the extent
to which the regulation in question would actually serve
that interest.
For example, the government surely has a
weightier interest in health regulation where there is a
clear, substantial risk to life and limb; its interest,
12. (...continued)
(increase of less than 150 miles travel distance is not
an undue burden) with Planned Parenthood of Wisconsin,
Inc. v. Van Hollen, 738 F.3d 786, 796 (7th Cir. 2013)
(finding likelihood of success on the merits of
undue-burden claim where evidence established increase of
up to 100 miles travel distance), there is no principled
basis by which to decide which court is right and which
is wrong.
63
while
still
legitimate,
would
be
significantly
less
weighty when the risk it addresses is negligible and
unsupported. See, e.g., Planned Parenthood of Wisconsin,
Inc. v. Van Hollen, 738 F.3d 786, 798 (7th Cir. 2013)
(characterizing
“feeble”).
absent
the
State’s
health
interests
as
Yet these considerations are almost wholly
from
some
lower-court
applications
of
the
undue-burden standard. Compare Women's Med. Prof’l Corp.
v. Baird, 438 F.3d 595, 601-2 (6th Cir. 2006) (reviewing
apparently undisputed evidence that health justification
was weak at best) with id. at 604-7 (finding no undue
burden
without
mentioning
the
weakness
of
the
governmental interest).
The
third
consider
the
interests.
and
final
relationship
While
some
flaw
is
courts’
between
courts
burdens
have
failure
and
to
state
recognized
the
relationship between obstacles and justifications, see,
e.g., Van Hollen, 738 F.3d at 798 (“The feebler the
medical grounds, the likelier the burden, even if slight,
to
be
‘undue’
in
the
sense
64
of
disproportionate
or
gratuitous”), others have considered the severity of
particular obstacles in isolation from the weight of the
government’s interests.
See, e.g., Greenville, 222 F.3d
at 169 (“having determined that [the regulation] serves
a valid purpose, we must still consider whether the cost
imposed by the lawfully directed regulation presents ‘a
substantial obstacle to a woman seeking an abortion’”);
Abbott, 734 F.3d at 412-416; Baird, 438 F.3d at 604-7.
But, as discussed above, a State’s interest in women’s
health, for example, may fall anywhere along a huge
spectrum ranging from slight (a possible better outcome
in one out of a million cases) to incredibly compelling
(likely death in most cases).
If the severity of the
burdens imposed has nothing to do with the strength of
the reasons for those burdens, then courts are left to
articulate a one-size-fits-all definition of ‘substantial
obstacle’ applicable regardless of the weight of the
governmental interests at stake.
This approach is hopelessly unworkable.
If the
one-size-fits-all level of “substantial obstacle” is set
65
too low, then courts will be instructed to strike down
regulations
even
in
the
face
of
compelling
consequences, an outcome no one desires.
Greenville,
222
F.3d
at
171
(noting
health
See, e.g.,
that
finding
increased costs to constitute a substantial obstacle
would create “an arbitrary cost threshold,” preventing
States from regulating unsafe facilities because it would
cost too much to upgrade).
If, on the other hand, the
one-size-fits-all level of “substantial obstacle” is too
high, then essentially all abortion regulation would be
permitted, no matter how severe the burdens and how
slight the governmental interests. See, e.g., Greenville
Women's Clinic v. Bryant, 222 F.3d 157, 166-168.
While
this may be an outcome some desire, it is not consistent
with the Supreme Court’s abortion jurisprudence. Rather,
it is clear from Casey that an obstacle need not be
insurmountable to be substantial. “Before viability, the
State’s interests are not strong enough to support a
prohibition
of
abortion
or
the
imposition
of
a
substantial obstacle to the woman’s effective right to
66
elect the procedure.” Casey, 505 U.S. at 846 (emphasis
added).13
Casey teaches that the proper approach is one that
recognizes that there is a relationship between burdens
and justifications.
Courts need not declare that a
particular amount of harm is (or is not) a substantial
obstacle
under
all
circumstances.
Rather,
the
determination of what constitutes a substantial obstacle
is informed, in part, by both the extent of the burden
and the strength of the government’s interest under the
particular circumstances of the case.
4. Effect of Creating a Substantial Obstacle
The plaintiffs claim that subsection 4© will shut
down three of the five abortion clinics in the State, and
argue
that
in
doing
so
the
statute
will
impose
a
substantial obstacle for women in Alabama who seek to
13. Thus, while evidence that an obstacle actually
prevents women from obtaining abortions would be
extremely compelling evidence of a substantial obstacle,
it is by no means necessary.
67
have an abortion.
not close.
The State argues that the clinics will
The court has concluded that there are
genuine disputes of material fact regarding whether the
clinics will close, the extent of the obstacle clinic
closures
would
create,
and
the
strength
of
the
government’s justifications for the statute.
a. Will The Plaintiff Clinics Close?
Based
on
the
facts
before
it,
the
court
cannot
determine as a matter of law at this stage whether the
legislation’s admitting privilege requirement will cause
the plaintiff clinics to close.
In particular, there is
a genuine dispute of material fact regarding two specific
questions: (1) whether current abortion doctors at the
three plaintiff clinics will be able to gain admitting
privileges
at
local
hospitals;
and
(2)
whether
the
plaintiff clinics can find other doctors who can gain
such privileges.
68
I. Obtaining Admitting Privileges for
Current Abortion Doctors
It is undisputed that none of the current abortion
doctors at the three plaintiff clinics currently has
admitting privileges at any local hospital as required by
subsection
4©
of
1975
Ala.
Code
§
26-23E-4.
The
plaintiffs argue that none of their doctors will be
granted privileges by any local hospitals, for a variety
of reasons.
The State argues that the doctors may obtain
privileges.
To predict the likelihood of whether the current
abortion doctors at the plaintiff clinics will receive
admitting privileges at any local hospital, the parties
rely
on
the
bylaws
of
Montgomery, and Mobile.
the
hospitals
in
Birmingham,
These bylaws provide the court
an indication of the preconditions a particular hospital
requires for an abortion doctor to gain such privileges.
However, as both parties point out, hospitals sometimes
make exceptions to their own written bylaws and exercise
discretion
in
their
decisions
69
to
grant
privileges.
Therefore, the bylaws are relevant only as to whether a
local hospital is likely to grant admitting privileges to
any particular abortion doctor.14
That is, the bylaws are
evidence of what the hospitals would likely do when
presented with applications for admitting privileges.
Under the plaintiffs’ interpretation of the bylaws
for local hospitals near the plaintiff clinics, none of
14. Under Alabama law, hospital bylaws appear to
constitute a contract between a hospital and its doctors.
See Wells v. Mobile County Bd. Of Realtors, Inc. 387
So.2d 140, 142 (Ala. 1980) (“It is well established that
the constitution, bylaws, rules and regulations of a
voluntary association constitute a contract between the
association’s members.”). However, the court will not
interpret these bylaws as it would a contract in a
contract-dispute case. The bylaws are not legally
operative statements in this case, as a contract would
be; indeed, they cannot constitute a contract with the
abortion doctors, who have not been granted admitted
privileges.
Rather, the bylaws are evidence of what
third parties may do in the future. Further, none of the
hospitals are parties and therefore, any interpretation
of their bylaws would not be binding on the hospitals.
See Fed. R. Civ. P. 19 advisory committee note (“the
court can make a legally binding adjudication only
between the parties actually joined in the action”).
Thus, while the binding nature of the bylaws may be
further evidence that the hospitals will actually do what
the bylaws claim, how to understand the bylaws and to
what extent the hospitals will abide by them are both
factual questions to be determined at trial.
70
the current abortion doctors will be able to gain the
necessary admitting privileges.
The plaintiffs read
hospital bylaws for most local hospitals in all three
cities
to
require
categorically
that
doctors
with
admitting privileges either reside or practice near the
local hospital in order to provide continuous care.
None
of the current abortion doctors at the three plaintiff
clinics resides or has a practice in the city where they
perform
abortions;
instead,
the
doctors
visit
the
plaintiff clinics only on pre-scheduled days to perform
abortions.
Therefore, as interpreted by the plaintiffs,
none of these current doctors could meet the residency or
practice prerequisites for gaining admitting privileges
at a local hospital.
For the few hospitals in Birmingham
that do not have residency or practice requirements for
admitting
privileges,
the
plaintiffs
portray
the
hospitals as being explicitly religious and opposed to
abortion.
these
Therefore, the plaintiffs argue that despite
hospitals’
less
stringent
requirements
for
admitting privileges, current abortion doctors will be
71
denied
the
privileges.
See
Planned
Parenthood
of
Wisconsin, Inc. v. Van Hollen, 738 F.3d 786, 792 (7th
Cir. 2013) (noting decreased likelihood doctors would
obtain
admitting
privileges
based
on
“widespread
hostility to abortion and the lack of any likely benefit
to
a
hospital
from
granting
such
privileges
to
an
abortion doctor”).
The State interprets the local hospital bylaws for
hospitals
in
differently.
Montgomery,
Birmingham,
and
Mobile
Under its reading, some current abortion
doctors will be able to gain admitting privileges at
local hospitals.
First, the State argues that local
hospitals which require doctors to “practice” near them
do not require abortion doctors to maintain full-time
practices in the area.
In other words, according to the
State, simply providing abortions at a local abortion
clinic
will
suffice
to
gaining
meet
staff
the
local
privileges
practice
requirement
for
at
these
hospitals.
Second, the State argues that the bylaws
allow doctors to live in any geographic area so long as
72
they provide “satisfactory cross coverage” or “continuous
care.” Third, the State argues that, even when doctors
are
required
to
reside
near
a
local
hospital,
many
hospitals offer explicit waivers or make exceptions from
these requirements.
The State contends that in all three
metropolitan areas at least one of the current abortion
doctors
will
gain
admitting
privileges
at
a
local
hospital.
The court finds that there is a genuine dispute of
material fact as to whether current abortion doctors will
gain admitting privileges and therefore whether clinics
will cease performing abortions.
The plaintiffs have
offered substantial evidence that none of the doctors
will
be
granted
admitting
relevant hospitals.
privileges
at
any
of
the
Indeed, one court that examined this
same question under similar circumstances emphasized how
difficult and disputed the factual question of access to
admitting
privileges
was.
Van
73
Hollen,
738
F.3d
at
792-3.15
The State has countered with evidence that
doctors may well obtain such privileges.
See Planned
Parenthood of Greater Tex. Surg. Health Serv. v. Abbott,
--- F.3d ---, slip op. at 23 (5th Cir. Mar. 27, 2014)
(finding
that
record
did
not
support
finding
that
abortion doctors would “likely be unable to comply with
the privileges requirement”).
At trial, the court will
determine based on the bylaws and any other evidence
which the parties put forth whether current abortion
doctors will be able to gain admitting privileges at
local hospitals.
15. In Van Hollen, the court expressed serious doubt,
on the record before it at the preliminary injunction
stage, that hospitals would grant admitting privileges to
the abortion doctors at issue in that case. The court
pointed to, among other things, the high number of
admissions doctors with such privileges are expected to
make each year compared to the “negligible” number of
hospital admissions from abortions, as well as the
national trend towards hospitals tightening admitting
privileges. Van Hollen, 738 F.3d at 792-3.
74
ii. Finding New Doctors
The
State
doctors
argues
cannot
gain
that
even
if
admitting
current
privileges
abortion
at
local
hospitals under hospital bylaws, the clinics can recruit
and
hire
new
requirements.
local
doctors
who
will
meet
such
The State points to prior instances when
local clinics were able to recruit local doctors to meet
other
State
requirements
for
abortion
providers.
Furthermore, the State contends, the fact that doctors
residing locally performed abortions at the Birmingham
clinic as recently as 2012 shows that the plaintiff
clinics could find new providers who meet the residency
and practice requirements for staff privileges.
The
plaintiffs,
violence,
on
harassment,
the
and
other
stigma
hand,
around
argue
that
abortion
in
Alabama make it difficult if not impossible to find local
physicians willing to perform abortions.
As evidence of
this, the plaintiffs point to the difficulties clinics
face
when
seeking
local
physicians
to
satisfy
the
covering-physician requirement. The plaintiffs also rely
75
on evidence of prior harassment of abortion doctors, bomb
threats of clinics in Tuscaloosa and Birmingham, and a
website publicizing the names and contact information of
abortion doctors as reasons why the plaintiff clinics
will
be
unable
requirements
hospital.
of
to
find
residency
new
doctors
and
who
practice
meet
near
a
bylaw
local
See Abbott, --- F.3d ---, slip op. at 24 (5th
Cir. Mar. 27, 2014) (noting, but not relying on, evidence
that doctor “feared anti-abortion violence” and therefore
would not join abortion clinic).
Again,
the
court
finds
that
there
is
a
genuine
dispute of material fact as to whether the plaintiff
clinics will be able to find new abortion doctors who
meet
admitting
hospitals.
privileges
requirements
at
local
Thus, this question is reserved for trial.
b. Effect of Clinic Closures
The State argues that, even if the clinics do close,
it is still entitled to summary judgment because the
closures would not constitute a substantial obstacle.
76
The court finds that genuine disputes of material fact
also preclude summary judgment on this basis.
Under the test articulated above, the court examines
the severity of obstacles created by the regulation as
well as the weight of the State’s justifications for the
regulation, and then determines whether the obstacle is
more significant than is warranted by the justifications.
Having reviewed the evidence offered by both sides, the
court concludes that there is some dispute as to the
burdens this statute will impose if the clinics close,
and a great deal of dispute as to the medical interests
served by the statute.
See Van Hollen, 738 F.3d at 799
(noting
greatly
technical
and
evidence on similar questions).16
disputed
character
of
In particular, while
16. In Van Hollen, the Seventh Circuit suggested that
given the highly technical evidence likely to arise at
trial regarding the safety of abortions and the health
justifications for the State’s regulation, the district
judge may choose to appoint a neutral medical expert to
testify at the trial. In the face of significant factual
disputes, such an expert could help the district court
“resolve the clash of the warring party experts.” 738
F.3d at 799. This court is not suggesting that such an
(continued...)
77
the State contends that this statute offers significant
health
benefits,
the
plaintiffs
point
to
evidence
suggesting “the apparent absence of any medical benefit
from requiring doctors who perform abortions to have such
privileges at a nearby or even any hospital.” Van Hollen,
738 F.3d at 791.17
As discussed above, in the face of
such a “feeble” justification, id. at 798, even obstacles
significantly lower than those claimed by the plaintiffs
may
be
unwarranted.
Therefore,
having
viewed
the
16. (...continued)
expert would necessarily be appropriate. However, the
Seventh Circuit's recommendation does underscore that the
extent of the health benefits of admitting-privileges
requirements is very disputed.
17.
The
State
also
argues
that
the
admitting-privileges requirement serves a credentialing
function. Current law already provides for three
alternative ways for a doctor to establish her
credentials to perform abortions. See Ala. Admin. Code
§ 420-5-1-.02(5)(d)(2). Furthermore, it seems clear that,
even if the State does have an additional interest in
requiring privileges as “as a kind of Good Housekeeping
Seal of Approval,” Van Hollen, 738 F.3d at 797, that
interest would not require, as the statute does,
privileges at a hospital within the same metropolitan
area. Id. The plaintiffs have offered evidence that, as
in Van Hollen, most of the relevant doctors in this case
have admitting privileges at hospitals in other States.
78
evidence in the light most favorable to the plaintiffs,
summary judgment will be denied on this claim.18
18. The plaintiffs claim that subsection 4(c)
violates equal protection by treating abortion providers
differently from other outpatient medical providers
without sufficient justification.
They argue for
heightened
equal-protection
scrutiny
because
this
regulation affects the fundamental right of abortion.
However, strict scrutiny for this kind of claim would
serve inappropriately to sidestep Casey in many cases.
See Eden, 379 F.3d at 544. The court could apply Casey’s
undue-burden standard to the equal-protection claim. But
the fact that this regulation may burden abortion rights
is adequately addressed by considering the claim based on
the patients’ substantive due process rights. See id.
(“with respect to burdens on patients’ abortion rights,
this equal protection claim collapses with the undue
burden claim”). The proper analysis of the providers’
equal-protection claim, independent of any burden on
abortion rights, is rational-basis review.
For the
reasons given above, in discussing the providers’
substantive due process claim, the State is entitled to
summary judgment on this claim.
However, to be clear: while the equal-protection
claim is no longer part of this case, the evidence
offered in support of it may well be relevant to the
surviving substantive due process claim on behalf of the
plaintiffs’ patients.
See Planned Parenthood of
Wisconsin, Inc. v. Van Hollen, 738 F.3d 786, 790 (7th
Cir. 2013) (discussing evidence indicating that “the
state
seems
indifferent
to
complications
from
non-hospital procedures other than surgical abortion ...
even
when
they
are
more
likely
to
produce
complications”).
79
5. Purpose of Creating a Substantial Obstacle
Thus far, the court has analyzed the plaintiffs’
undue-burden claim only as to the effects of subsection
4(c) of 1975 Ala. Code § 26-23E-4.
However, as noted
above, a law with the purpose of placing a substantial
obstacle before a woman seeking an abortion would be
unconstitutional even if it does not necessarily achieve
that goal.
The plaintiffs argue that subsection 4(c) was
enacted with such an illegitimate purpose.
Only the
State has moved for summary judgment on the purpose
claim.
The plaintiffs argue that the statute was passed with
the purpose of protecting fetal life by reducing the
number of abortions.
The State contends that the statute
was passed only with the purpose of furthering women’s
health.
Resolving
what
purpose
a
State
has
in
enacting
particular abortion regulations is a difficult task for
courts.
Furthermore, “The Casey Court provided little,
80
if any, instruction regarding the type of inquiry lower
courts should undertake to determine whether a regulation
has the ‘purpose’ of imposing an undue burden on a
woman’s right to seek an abortion.” Okpalobi v. Foster,
190 F.3d 337, 354 (5th Cir. 1999) vacated on other
grounds on reh'g en banc, 244 F.3d 405 (5th Cir. 2001).
As noted above, this court will apply Arlington Heights
principles and evidence to determine what the attempted
obstacles and justifications of the bill were.
On review of the record before it, the court cannot
find
that
subsection
fetal-protective purpose.
the possibility.
4(c)
was
passed
with
a
But nor can the court rule out
There is direct evidence, in the form
of statements from legislative supporters of the bill and
the governor, which indicate that a fetal-protective urge
was in play during the passage of the bill.
Cf. Van
Hollen, 738 F.3d at 790-1 (discussing evidence of purpose
to restrict access to abortion).
On the other hand,
there is also substantial evidence that this law is just
what it purports to be: a regulation aimed at protecting
81
the health of women.
The court finds there is a genuine
dispute on this issue.
The
State
argues
that,
even
if
the
statute
was
enacted to protect fetuses, that is a legitimate State
interest and thus there was no purpose to impose a
substantial obstacle.
This is incorrect.
If the court finds that the statute was motivated by
a purpose of protecting fetal life, then the statute had
the unconstitutional purpose of creating a substantial
obstacle.
Casey provides that a regulation with the
purpose of protecting fetal life which operates through
coercive, rather than persuasive, means is impermissible.
“[T]he means chosen by the State to further the interest
in
potential
life
must
be
calculated
to
inform
the
woman’s free choice, not hinder it.” Casey, 505 U.S. at
877.
A statute which attempts to save fetal lives (that
is, stop abortions) by using the State’s coercive power
to make access to abortion more difficult is interfering
with the core of the constitutional abortion right: the
right of a woman to make the final decision about whether
82
to have an abortion.
Casey allows the State to try to
influence a woman’s decision-making process, that is, to
convince her, but not to throw up roadblocks just for the
sake of making abortion more difficult.
Nothing
in
subsection
4(c)
operates
to
persuade
pregnant women about the merits of forgoing abortion.
It
is clear that admitting privileges as a prerequisite to
obtaining an abortion will save no fetal lives--unless
the requirement closes abortion clinics or reduces their
capacity.
Therefore, if subsection 4(c) was intended to
protect fetal lives, it operates only through coercive
means, specifically by closing down clinics or limiting
their capacity.
Therefore, the dispute regarding the
purported fetal-protective purpose behind the statute is
material: considering the evidence in the light most
favorable to the plaintiffs, this statute was motivated
by a unconstitutional purpose.
As such, the State’s
motion for summary judgment on this claim is denied.
83
***
“Liberty
finds
no
refuge
in
a
doubt.” Casey, 505 U.S. at 844.
jurisprudence
of
Opening with these
words, the Supreme Court in Casey reaffirmed, in the face
of significant opposition, the “essential holding” of Roe
v. Wade.
Casey, 505 U.S. at 846.
be no more doubt.
personal
After Casey, there can
Regardless of “whatever degree of
reluctance”
this
court
may
have
Casey, 505 U.S. at 861, the duty is clear:
about
Roe,
The “rule of
law,” id. at 868, demands that this court abide by the
dictates of the Supreme Court.
This court is bound to
apply the law of the land, and the law of the land is
Casey.
In reaffirming Roe, the Supreme Court made it clear
that courts not only must avoid “undervalu[ing]” the
State’s interests, Casey, 505 U.S. at 873, but must also
“give some real substance to the woman’s liberty to
determine whether to carry her pregnancy to full term,”
id.
at
869.
Neither
interest
subordinated to the other.
84
can
be
entirely
If
courts
are
serious
only
about
the
State’s
interest, but not about the woman’s right, then Roe will
be left a dead letter; or, in other words, a right “in
theory
but
not
in
fact.”
Casey,
505
U.S.
at
872.
Likewise, if courts are serious only about the woman’s
right and not the State’s interest, they fail to follow
the middle path set out by Casey.
Only when courts
consider both interests fully do they obey, in good
faith, the teachings of Casey; only then do they abide by
the “rule of law.” Id. at 868.
Toward
this
end,
courts
must
consider
interests, as did Casey, in the real-world context.
these
Only
a real-world approach will help assure both that the
State’s interest is not undervalued and that abortion
regulations, even those that do not explicitly ban the
procedure, do not attack by stealth the right to have an
abortion, that they not “chip away at the private choice
shielded by Roe,” Stenberg v. Carhart, 530 U.S. 914, 952
(2000) (Ginsburg, J., concurring), until nothing of the
right remains.
Only in a real-world context can courts
85
remain
faithful
to
their
obligation
to
give
to
the
State’s interest the full respect it is due while at the
same time remaining vigilant to ensure that they are
providing “real and substantial protection” of the right
of women to an abortion.
Lawrence v. Texas, 539 U.S.
558, 565 (2003) (discussing Roe).
An appropriate judgment will, therefore, be entered
as follows: denying the plaintiffs’ motion for summary
judgment; denying the defendants’ motion for summary
judgment
as
substantive
to
due
the
plaintiffs’
process
rights
claim
of
asserting
women
the
seeking
abortions; and granting the defendants’ summary-judgment
motion to this extent: the non-delegation claim will be
dismissed without prejudice; and summary judgment will be
entered in favor of the defendants as to all other
claims.
The plaintiffs’ claim asserting the substantive
due process rights of women seeking abortions will go to
trial.
DONE, this the 31st day of March, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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