Planned Parenthood Southeast, Inc. et al v. Bentley et al

Filing 238

OPINION. Signed by Honorable Judge Myron H. Thompson on 8/4/14. (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
In Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833

(1992),

the

Supreme

Court

of

the

United

States

announced two principles that must govern this court’s
analysis of the right to choose to have an abortion.
First, the Court reaffirmed “the right of the woman to
choose to have an abortion before viability and to obtain
it without undue interference from the State.”
846

(1992)

(majority

opinion).

Second,

the

Id. at
Court

endorsed “the principle 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, in the controlling

opinion, a plurality of the court announced that a State
regulation goes too far in pursuing those legitimate
interests

when

it

imposes

an

“undue

woman’s ability to choose an abortion.

burden”

on

the

Id. at 874 (joint

opinion of O’Connor, Kennedy, and Souter, JJ.).
As a trial court in the trenches, this court must
remain faithful to the rule of law and not to its own
doubts--or

convictions--about

established law.
principles

the

correctness

of

Thus, this court must now apply the

announced

in

Casey

to

determine

the

constitutionality of the State of Alabama’s recently
enacted
abortions

requirement
must

have

that

all

staff

doctors

privileges

who

provide

to

perform

designated procedures at a local hospital, codified at
1975 Ala. Code § 26-23E-4(c).

2

In order to give “real substance to the woman’s
liberty,” id. at 869, while at the same time fully
honoring the State’s ability to pursue, in good faith,
its own acknowledged legitimate interests, this court
concludes that it must hold that this requirement is
unconstitutional. The evidence compellingly demonstrates
that the requirement would have the striking result of
closing three of Alabama’s five abortion clinics, clinics
which

perform

viability.

only

early

abortions,

long

before

Indeed, the court is convinced that, if this

requirement would not, in the face of all the evidence in
the record, constitute an impermissible undue burden,
then almost no regulation, short of those imposing an
outright prohibition on abortion, would.

I. PROCEDURAL HISTORY
The plaintiffs in this case, Reproductive Health
Services,

Planned

Parenthood

Southeast,

and

their

administrators, operate abortion clinics in Montgomery,

3

Birmingham, and Mobile, Alabama.
General

of

Montgomery,
State’s

Alabama,

the

Jefferson,

and

Chief

Medical

constitutionality

of

They sued the Attorney

District
Mobile

Officer,

Attorneys

Counties,

and

challenging

Alabama’s

for
the
the

staff-privileges

requirement, codified at 1975 Ala. Code § 26-23E-4(c).
Jurisdiction is proper under 28 U.S.C. §§ 1331 (federal
question) and 1343(a)(3)-(4) (civil rights).

This court

held a ten-day bench trial, and this matter is now before
the court for resolution of the constitutionality of the
staff-privileges provision.

II. FACTUAL BACKGROUND
A. The Climate in Alabama
1. A History of Violence
Although

the

vast

majority

of

those

who

oppose

abortion do so in nonviolent ways, this court cannot
overlook the backdrop to this case: a history of severe

4

violence against abortion providers in Alabama and the
surrounding region.
In 1993, a gunman shot and killed Dr. David Gunn, an
Alabama resident who provided abortions throughout the
State and in northern Florida.
doctor

in

the

abortions.
and

nation

to

be

Dr. Gunn was the first
murdered

for

performing

He became identifiable after his name, photo,

contact

information

were

displayed

anti-abortion poster at a rally in Montgomery.

on

an

The same

gunman later killed Dr. Gunn’s replacement in northern
Florida, along with his guard, and also wounded that
doctor’s wife.
A few years later, in 1997, a person opposed to
abortion

climbed

onto

the

roof

of

the

West

Alabama

Women’s Center in Tuscaloosa and dropped a lit flare into
the air-conditioning unit.

The flare lit the entire

inside of the clinic on fire, causing over $ 400,000 of
damage.

The

perpetrator

of

identified.

5

the

arson

was

never

The next year, a remote-control bomb was detonated
outside

New

Birmingham.

Woman

All

Women

abortion

clinic

in

The bomb killed a police officer standing

outside the clinic and wounded a nurse who had just
walked out the clinic entrance.

After a detailed

investigation, the federal Bureau of Alcohol, Tobacco,
and

Firearms

determined

that

the

same

individual

responsible for the New Woman All Women bombing, Eric
Robert Rudolph, also bombed another abortion clinic in
the

Atlanta

area,

a

gay

bar

in

Georgia,

and,

most

notoriously, the 1996 Olympics.
In 2001, staff at the Pensacola clinic where Dr. Gunn
had worked noticed a van circling the clinic.

During a

traffic stop, police noticed that there were a large
number of semiautomatic weapons in the van but did not
confiscate the weapons.

Soon afterward, the van drove to

Birmingham, where it began to circle the New Woman All
Women clinic.

The driver was identified as an abortion

opponent.

6

Five or six years ago, a man intentionally drove
through the front of the Tuscaloosa clinics, eventually
fleeing and engaging police in a chase.

Most recently,

in 2012, a Pensacola clinic was firebombed.
Nationally, during the same period of time, other
abortion doctors have been murdered, other clinics have
been

bombed

and

burned,

and

abortion

providers

have

endured other, less dangerous forms of extreme harassment
that exceed the boundaries of peaceful protest.

2. Current Climate
Against the backdrop of this history of violence,
abortion providers and women seeking abortions in Alabama
today live and work in a climate of extreme hostility to
the practice of abortion.

On a day-to-day basis, a

provider or a patient sees this hostility when she opens
the newspaper, drives by a group of protesters at a
clinic,

or

learns

that

another

piece

concerning abortion has been enacted.

7

of

legislation

Of course, the

court does not imply that such activities are illegal,
improper, or morally wrong; indeed, the right to express
deeply held beliefs is of the utmost importance.

But it

is nonetheless necessary to recognize that such actions
contribute to the climate surrounding the disputes in
this case.
An Alabama resident reading the newspaper last year
would have read that her elected officials were described
as celebrating that they had “boldly defended the rights
of the unborn,” AL.com Article, PX 30, as being “pleased
with” the idea that a piece of legislation would “truly
limit abortion in Alabama,” Decatur Daily Article, PX 31,
and as believing that abortion regulations were “what God
expects us to do,” Associated Press Article, PX 32.
Similarly,

the

governing

political

party’s

platform

recently stated: “WE DARE DEFEND OUR RIGHT TO LIFE:
Questionable Supreme Court rulings have eliminated the
State

’s

ability

to

prohibit

8

abortions

altogether.

However, states may enact meaningful abortion-related
reforms[.]”
In

Alabama GOP 2013 Legislative Agenda, PX 29.

fact,

the

State

has

enacted

separate

“abortion-related” legislation, id., in each of the last
four

years.

See

2014

Ala.

Acts

441

(extending

informed-consent waiting period to 48 hours); 2013 Ala.
Acts 79 (Women’s Health and Safety Act); 2012 Ala. Acts
405 (Federal Abortion Mandate Opt Out Act); 2011 Ala.
Acts 672 (Alabama Pain-Capable Unborn Child Protection
Act).

3. Fear at the Trial
The effect that this climate of violence, harassment,
and hostility has on abortion providers in Alabama was
palpable at the trial in this case.

In their testimony,

discussed at length below, the doctors described their
daily fears for their professional livelihoods as well as
their personal safety.

One of the physicians described

being followed and threatened by abortion opponents, and

9

fearing for herself, her spouse, and her children every
day that she goes to work in Alabama.

Indeed, that fear

was driven home to this court even in the conduct of the
trial itself: in order to protect their identities, the
doctors were referred to by pseudonyms throughout the
case and would testify in open court only from behind a
black curtain.1

B. Abortion Clinics in Alabama
In the context of this climate of hostility, the
number of abortion clinics in the State has steadily
declined.

As of 2001, there were 12 clinics providing

abortions in the State.

Today, that number has dwindled

to five.2

1. The list of pseudonyms and real names of most of
the current and former abortion doctors has been filed
under seal as PX 1.
Further, to protect the doctors’ anonymity, the court
generally refers to them by feminine pronouns, regardless
of their actual gender.
2. In practice, there may actually be as few as three
(continued...)
10

Nonetheless, it is significant that five clinics
continue to provide legal abortions in the State of
Alabama.

The vast majority of abortions performed in

Alabama occur in these five clinics.

None occurs in

private doctors’ offices, but state records reveal a
small

number

of

abortions

have

been

performed

at

hospitals.
The plaintiffs in this case operate three of the
State’s clinics.

Reproductive Health Services operates

a clinic in Montgomery, and Planned Parenthood operates
one clinic in Birmingham and another in Mobile.

Together

these three clinics provided approximately 40 % of legal

2. (...continued)
clinics in operation right now. At the time of trial,
the Birmingham clinic was closed, pending approval by the
Alabama Department of Public Health of a plan of
correction, discussed further below.
The Huntsville
clinic had been planning to move into a new building in
order to comply with recently enacted architectural
requirements for abortion clinics. At the time of trial,
the administrator of that clinic testified that he had
not yet secured approval of the new building and could
operate continuously only if he secured such approval
before July 1. The parties have not notified the court
as to whether the Huntsville clinic secured the approval.
11

abortions in the State in 2012.

The other two clinics in

the State are Alabama Women’s Center for Reproductive
Alternatives

in

Huntsville

Center in Tuscaloosa.

and

West

Alabama

Women’s

Among these five clinics, there

are seven doctors who perform abortions in Alabama.
There are two forms of abortion, described in detail
below: surgical and medication abortion.
Reproductive
surgical

Health

abortions,

Services
not

clinic

medication

Montgomery’s
provides

abortions.

only
Two

doctors perform those abortions, but because they reside
outside Alabama, the clinic can offer abortions only one
day a week.
A woman seeking an abortion at Planned Parenthood’s
Mobile or Birmingham clinics may obtain a medication
abortion or a surgical abortion.

As a small part of

their services, both clinics also provide access to birth
control, sexually-transmitted-disease testing, and cancer
screenings.
for

all

the

One doctor serves as the medical director
Planned

Parenthood

Georgia, and Mississippi.

clinics

in

Alabama,

She also performs abortions at
12

the Birmingham clinic one day a week.

Another doctor is

the primary abortion provider at the Mobile clinic, where
she performs abortions about once a week.

Neither of

these doctors resides in Alabama.
A woman visiting the Alabama Women’s Center for
Reproductive Alternatives in Huntsville may obtain a
medication

or

surgical

abortion.

The

clinic

also

provides family planning services, such as pap smears or
access to birth control.

There are currently three

physicians performing abortions at the Huntsville clinic.
Two of these doctors reside in the Huntsville area.

The

third is one of the doctors who perform abortions at the
Montgomery clinic.
West Alabama Women’s Center in Tuscaloosa provides
medication and surgical abortions.

One physician, a

resident of the State, performs all of the abortions at
the Tuscaloosa clinic.

13

C. Abortion Procedures
The

State

requirement
women’s

contends

was

enacted

health,

that
to

rather

the

further

than

to

staff-privileges
its

interest

affect

in

women’s

decision-making about whether to have an abortion.

See

1975 Ala. Code § 26-23E-2 (legislative findings).

The

court, of course, recognizes that many individuals attach
great moral significance to the decision to have an
abortion,

but

necessary

the

to

State’s

understand

health

the

rationale

mechanics

and

makes

it

risks

of

abortion as a medical procedure.
There are two types of abortion: medication and
surgical abortion.

A medication abortion involves the

oral administration of two sets of pills.
Parenthood
mifepristone

clinics,
pill

at

the
the

patient
clinic.

At Planned

first
This

takes
first

detaches the embryo from the walls of the uterus.

a

pill

One to

two days later, the patient takes four misoprostol pills
at

home,

as

well

as

prophylactic

antibiotics.

Approximately two to four hours after she takes the
14

misoprostol, these pills cause her uterus to contract and
expel its contents, including the detached embryo.
A surgical abortion closely resembles the general
gynecological

procedure

of

dilation

and

curettage.

First, the cervix is stretched open using a series of
progressively larger metal rods, until it is open to
approximately the diameter of a pencil.

Misoprostol may

also be used to loosen the cervical muscles.

Once the

cervix has been dilated, a tube is inserted into the
uterus to suction out its contents.

Sometimes, instead

of, or in addition to, suction, a curette, which is a
tool with a dull blade, is used to scrape the lining of
the uterus.

The procedure itself takes less than ten

minutes, often significantly less.
The plaintiffs’ clinics provide only early abortions.
Medication abortions are provided only until nine weeks
gestational

age.

Furthermore,

the

majority

of

the

surgical abortions at the plaintiffs’ clinics take place
before

12

weeks

gestational

age.

Early

surgical

abortions are significantly less invasive than late-term
15

abortions.

This is because, at later stages, it is

necessary to dilate the cervix to a wider diameter in
order to remove the fetus.

D. Women’s Health and Safety Act of 2013
On April 9, 2013, the Governor of Alabama signed the
Women’s Health and Safety Act of 2013 into effect.

2013

Ala. Acts 79, codified at 1975 Ala. Code § 26-23E-1, et
seq.

The statute imposes several new architectural,

personnel,
clinics.

and

procedural

requirements

on

abortion

The specific provision challenged in this case,

§ 4(c), requires every doctor performing abortions in
Alabama

to

hospital

“have
within

staff
the

privileges
same

at

an

standard

acute

care

metropolitan

statistical area as the facility is located that permit
him or her to perform dilation and curettage, laparotomy
procedures,

hysterectomy,

reasonably

necessary

and

to

16

any
treat

other

procedures

abortion-related

complications.”

§ 26-23E-4(c).3

A clinic administrator

who knowingly and wilfully operates an abortion clinic
with doctors who do not have such privileges faces felony
criminal liability, § 26-23E-12(c), and the State may
revoke the clinic’s license for violations of the Act.
§ 26-23E-14(b).

III. LEGAL STANDARD
The

question

in

this

case

is

whether

Alabama’s

staff-privileges requirement “violates the substantive
due process rights of the women who seek abortions from
the plaintiff clinics.”

Planned Parenthood Se., Inc. v.

Strange, --- F. Supp. 2d ----, at ----, 2014 WL 1320158
at *5 (M.D. Ala. 2014) (Thompson, J.) (opinion on summary
judgment).

The governing standard for the evaluation of

such claims is the undue-burden standard articulated by

3. These are common gynecological procedures which
doctors in other specialties may not be qualified to
perform. In addition to dilation and curettage, which is
described above, hysterectomy is the surgical removal of
the uterus, and a laparotomy is a surgery involving
incision into the abdominal cavity.
17

the Supreme Court in Planned Parenthood of Se. Pa. v.
Casey.

See Casey, 505 U.S. 833, 877 (1992) (plurality

opinion) (“In our considered judgment, an undue burden is
an unconstitutional burden.”).

“A finding of an undue

burden is a 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.

This court discussed the undue-burden standard in
great detail in its opinion at summary judgment, and the
court anticipates that the summary-judgment opinion will
be read in conjunction with this one.

See Strange, ---

F. Supp. 2d at ----, 2014 WL 1320158 at *5-19.

For

present purposes, however, the court will again set forth
the test it will apply in this case and review its
principal reasons for adopting that test.
In its prior opinion, this court articulated “the
following test to determine whether an actual or intended
obstacle

is

substantial:

whether,

examining

the

the

court

regulation
18

in

must

determine

its

real-world

context,
warranted

the

obstacle

by

regulation.”

the

is

more

State's

significant

justifications

than
for

is
the

Strange, --- F. Supp. 2d at ----, 2014 WL

1320158 at *13.

This court explained that “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” and that “the more severe
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.”

Id.

This court then offered a non-exhaustive list of the
factors it anticipated might be relevant in assessing the
severity of the burdens imposed by a given regulation and
in assessing the weight of the justification offered for
the regulation.
*13-16.

See id. at ----, 2014 WL 1320158 at

Finally, the court clarified that all of these

considerations “apply to the interpretation of the term
‘substantial obstacle’” and that, under Casey, “either
19

the ‘purpose or effect of placing [such an] obstacle in
the path of a woman seeking an abortion of a nonviable
fetus’

imposes

burden.”

an

undue,

and

thus

unconstitutional,

Id. at ----, 2014 WL 1320158 at *16 (quoting

Casey, 505 U.S. at 877).
This court’s conclusions were based on the reasoning
of Casey and the application of the undue-burden standard
in

Casey

itself

as

well

as

the

subsequent

Gonzales v. Carhart, 550 U.S. 124 (2007).
first

reviewed

the

history

of

the

case

of

This court

Supreme

Court’s

abortion jurisprudence, beginning with the recognition
in Roe v. Wade, 410 U.S. 113 (1973), that “women have a
constitutionally protected right to decide whether to
have an abortion.”

Strange, --- F. Supp. 2d at ----,

2014 WL 1320158 at *6.

“From the beginning,” the Supreme

Court took a balanced approach, taking account of both
the protected liberty of the woman and the important
interests of the State.
omitted).

Id. (internal quotation marks

However, some subsequent Supreme Court cases

departed from this balanced approach, requiring instead
20

“‘that any regulation touching upon the abortion decision
must survive strict scrutiny, to be sustained only if
drawn in narrow terms to further a compelling state
Id. (quoting Casey, 505 U.S. at 871).

interest.’”

the same time,

At

some Supreme Court Justices “were urging

a complete reversal of Roe” and, in its place, the
application

of

regulations.

rational-basis

review

to

abortion

Strange, --- F. Supp. 2d at ----, 2014 WL

1320158 at *7.
The Supreme Court, in Casey, resolved this dispute by
rejecting

both

approaches,

returning

to

the

first

principles of Roe and following a “middle way” forward.
Strange, --- F. Supp. 2d at ----, 2014 WL 1320158 at *7.
The Casey majority “upheld the central holding in Roe,”
which the Court articulated in part as a recognition of
both “‘the right of the woman to choose to have an
abortion before viability and to obtain it without undue
interference

from

the

State,’”

and

the

State’s

“‘legitimate interests from the outset of the pregnancy
in protecting the health of the woman and the life of the
21

fetus that may become a child.’” Id. (quoting Casey, 505
U.S. at 846).

In order to give effect to both important

interests, the Casey plurality “adopted a new ‘undue
burden standard,’ which found a middle ground” between
those who would impose strict-scrutiny review of such
regulations and those who would require only a rational
basis.

Strange, --- F. Supp. 2d at ----, 2014 WL 1320158

at *7; see also id. at ----, 2014 WL 1320158 at *7-8
(comparing

the

non-controlling

opinions

in

Casey

Justice Blackmun and Chief Justice Rehnquist).

of

“The

Casey Court’s ‘undue-burden’ standard does not subject
state regulation of abortions to strict scrutiny, which
would ‘undervalue[]’ the State’s interests, invalidating
nearly

all

abortion

regulations.

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,’ upholding nearly all abortion regulations.”

22

Strange, --- F. Supp. 2d at ----, 2014 WL 1320158 at *8
(quoting Casey, 505 U.S. at 869, 873).
Thus, this court concluded, Casey forged a middle way
forward.
Casey

However, it was “clear that the middle path

chose

was

not,

as

intermediate scrutiny.”

one

might

have

expected,

Strange, --- F. Supp. 2d at

----, 2014 WL 1320158 at *9; see also id. (intermediate
scrutiny

requires

‘substantially

“that

related’

a

challenged

to

regulation

‘important

be

governmental

objectives.’” (quoting Wengler v. Druggists Mut. Ins.
Co., 446 U.S. 142, 150 (1980)).

Instead, in discussing

how to strike the proper balance among the relevant
interests, “Casey pointed to the example of ballot-access
jurisprudence,”

specifically

the

Supreme

Court’s

decisions in Anderson v. Celebrezze, 460 U.S. 780 (1983),
and Norman v. Reed, 502 U.S. 279 (1992).

Strange, --- F.

Supp. 2d at ----, 2014 WL 1320158 at *9.

This court

concluded that Casey’s reliance on Anderson and Norman
indicates that, “in applying the undue-burden standard,
the ‘character and magnitude of the asserted injury’
23

affects

whether

the

‘corresponding

interest

sufficiently weighty to justify the limitation.’”

[is]
Id.

(citations omitted) (quoting Anderson, 460 U.S. at 789
and Norman, 502 U.S. at 288–89, respectively).
Next, this court reviewed the actual application of
the undue-burden standard in the only two Supreme Court
cases to shed light on its proper interpretation: Casey
itself and Gonzales.

See Strange, --- F. Supp. 2d at

---- & ---- n.10, 2014 WL 1320158 at *11 & *11 n.10.
From the Supreme Court’s analysis in those cases, this
court

discerned

two

general

principles.

The

first

principle was that “[c]ontext matters” in the sense that
“[c]ourts 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.”

The second principle was that “[c]ourts must

examine the strength of the State’s justifications for
regulations, not just the effects of the regulation.”
Id. at ----, 2014 WL 1320158 at *11.

24

Finally, this court acknowledged that some lower
courts have employed analyses that are inconsistent with
the test this court articulated at summary judgment; this
court concluded that those other approaches were flawed
and inconsistent with the Supreme Court’s teachings.

See

id. at ----, 2014 WL 1320158 at *17-19 (citing Parenthood
of Greater Tex. Surg. Health Serv. v. Abbott, 748 F.3d
583 (5th Cir. 2014) (Abbott II); Planned Parenthood of
Greater Tex. Surg. Health Serv. v. Abbott, 734 F.3d 406,
415 (5th Cir. 2013) (Abbott I); Women’s Med. Prof’l Corp.
v. Baird, 438 F.3d 595, 601–2 (6th Cir. 2006); Greenville
Women’s Clinic v. Bryant, 222 F.3d 157, 171 (4th Cir.
2000)).4

This court noted that at least one Court of

4. This court believes these opinions took the wrong
approach to Casey’s undue-burden standard. However, even
apart from that difference of analysis, the cases are
distinguishable. First, many of the appellate cases were
decided at the preliminary-injunction stage.
As a
result, the courts did not have the benefit of trial to
fully air the evidence. Second, as discussed in further
detail below,Alabama’s particularly strong history of
anti-abortion violence and professional stigma for
abortion doctors makes clear that many abortion doctors
in the State are likely to be categorically ineligible
(continued...)
25

Appeals had taken an approach similar to this court’s.
See Planned Parenthood of Wisconsin, Inc. v. Van Hollen,
738 F.3d 786, 798 (7th Cir. 2013) (“The feebler the
medical grounds, the likelier the burden, even if slight,
to

be

‘undue’

in

the

sense

of

disproportionate

or

gratuitous.”).
Since summary judgment in this case, another Court of
Appeals

has

followed

suit.

See

Planned

Parenthood

Arizona, Inc. v. Humble, 753 F.3d 905, 914 (9th Cir.
2014) (concluding that Abbott II “fails to recognize that
the undue burden test is context-specific, and that both
the severity of a burden and the strength of the state’s
justification can vary depending on the circumstances”).
Also, the Fifth Circuit, in a recent opinion largely
upholding

the

Mississippi’s

preliminary

staff-privileges

injunction
law,

barring

distinguished

its

4. (...continued)
for staff privileges. In other cases, it has not been so
clear, at the preliminary-injunction stage that clinics
would
actually
be
forced
to
close
by
similar
requirements.
26

prior decision in Abbott II and stated that the undueburden analysis must consider “the entire record and
factual context in which the law operates.”
Women’s Health Organization v. Currier,
––––, 2014 WL 3730467 at *9, *15

Jackson

––– F.3d ––––,

(5th Cir. July 29,

2014).5
In

applying

the

test

it

has

articulated

to

the

circumstances of this case and in rejecting the approach
taken by some other courts, this court finds the Supreme

5. In his dissenting opinion in Jackson Women’s
Health, Judge Garza suggests that the majority’s focus on
the factual specifics renders the majority’s opinion “ad
hoc” and “unworkable.” Jackson Women’s Health, ––– F.3d
at ––––, 2014 WL 3730467 at *15 (Garza, J., dissenting).
This appears to be a reference to the argument
Mississippi made that the majority’s approach would
“preclude the State from closing the Clinic for
sanitation violations.”
Id. at ----, 2014 WL 3730467
at *9 (majority opinion). The arguments made by Judge
Garza and Mississippi point to a problem this court
identified in its prior opinion: “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.” Strange, --- F. Supp.
2d at ----, 2014 WL 1320158 at *18.
It is such an
approach, taken by the Fifth Circuit in Abbott I and
Abbott II, that is “unworkable.” Id.
27

Court’s decision in Doe v. Bolton, 410 U.S. 179 (1973),
particularly instructive.

As discussed above, Casey

returned to the essential first principles of Roe v.
Wade, reinstituting the balance struck in Roe between the
woman’s right and the State’s interest.

Doe was decided

the same day as Roe, and the cases must, “of course, ...
be read together.”

Roe, 410 U.S. at 165.

Thus, Casey’s

reaffirmation of the balance of interests struck by Roe
suggests that Doe, likewise, took the correct general
approach.

Indeed,

in

discussing

the

undue-burden

standard, Casey noted that “the Court’s early abortion
cases adhered to [the proper] view,” and approvingly
cited Doe.

Casey, 505 U.S. at 874-5.

In Doe, the Supreme Court invalidated a number of
Georgia’s statutory provisions that imposed procedural
requirements on doctors who performed abortions.
those

requirements,

one

stands

out

as

Of

particularly

helpful to guide the court’s approach in this case.

One

provision of the Georgia law essentially made it illegal
for a doctor to provide an abortion in a stand-alone
28

clinic rather than in a hospital setting.
U.S.

at

192.

It

is

clear

to

this

See Doe, 410

court

that

the

constitutional problem with such a requirement was that
it

would

services.

significantly
See

id.

at

reduce
199

access

(noting

to

the

abortion

plaintiffs’

arguments based on “delay and the lack of facilities”).6
In light of the burdens that such a clinic ban would
impose on women seeking abortions, the Court demanded
from

the

State

an

honest

accounting

of

benefits of the hospital-only requirement.

the

health

The Court

ultimately struck down the requirement, finding that the
persuasive “mass of data” offered by the plaintiffs and
amici, tended to show that clinics with appropriate staff
and

facilities

were

“entirely

adequate

to

perform

abortions,” while Georgia failed to offer “persuasive

6. Cf. Mazurek v. Armstrong, 520 U.S. 968, 974 (1997)
(per curiam) (regulation did not have the effect of
imposing a substantial obstacle because, in part, it did
not reduce access to abortion services in that “no woman
seeking an abortion would be required by the new law to
travel to a different facility than was previously
available”).
29

data to show that only hospitals meet its acknowledged
interest in insuring the quality of the operation and the
Id. at 195.

full protection of the patient.”

Thus,

despite acknowledging the State’s legitimate interest in
protecting women’s health, the Court carefully considered
the

evidence

on

the

degree

to

which

the

hospital
See id.

regulation would actually advance that interest.

(“[T]he State must show more than it has in order to
prove

that

only

the

full

resources

of

a

licensed

hospital, rather than those of some other appropriately
licensed institution, satisfy these health interests.”).
Doe does not, of course, directly control this case.
The

provisions

at

issue

there

requirements on abortion providers.

imposed

different

Furthermore, as Doe

itself emphasizes, the question of how well a woman’s
health

regulation

serves

its

stated

purpose

(and

implicitly, the extent of the effect on women’s access to
abortion) is a necessarily fact-bound one, dependent on
the

evidence

presented.

Finally,

although

Casey

reaffirmed Roe’s “essential holding,” Casey, 505 U.S. at
30

846,

it

rejected

analysis.

some

aspects

of

Roe’s

particular

Id. at 873 (rejecting trimester framework).

This court is cognizant that Casey, likewise, should not
be read to necessarily endorse Doe’s analysis in all of
its particulars.
Nonetheless, Doe is extremely important in setting
the proper framework for this case.

For in Doe, as in

this case, the plaintiffs challenged as unconstitutional
a

regulation

of

the

manner

in

which

abortions

were

performed which threatened to reduce access and which the
State justified by reference to protecting the health of
the woman.

And in Doe, as in this case, the Court did

not doubt that the State had a legitimate interest in
ensuring that abortions are performed safely.

But the

Court in Doe required more than general statements of
concern

and

claims

that

the

regulations

conceivably

might, in some cases, lead to better health outcomes;
rather,

the

Court

required

the

State

to

establish,

through evidence, that the regulation really was strongly
justified.

This approach, namely one that examines the
31

strength of the justifications based on the evidence
presented in a real-world context, laid a foundation for
the analysis mandated by Casey and articulated by this
court.
The

court

will

now

turn

to

application

of

the

undue-burden test to the facts of this case; that is, it
will “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

Strange, --- F. Supp. 2d at ----, 2014 WL

1320158 at *13.

IV. DISCUSSION
The parties presented competing evidence on both
sides of the court’s substantial-obstacle test.

On the

obstacle side, the parties disagree as to what effect the
staff-privileges requirement would have on current and
potential

abortion

elimination

of

Birmingham,

and

providers

abortion
Mobile

and

services

would
32

have

what
in
on

effect

the

Montgomery,

women

seeking

abortion.

On

the

justification

side,

the

parties

disagree about the strength of the State’s justifications
for the staff-privileges requirement.7
The

plaintiffs

argue

that

the

staff-privileges

requirement would pose a substantial obstacle because
none

of

the

doctors

who

provide

abortions

at

their

clinics will be able to secure the privileges required by
the

law

and

no

other

doctors

who

could

secure

the

privileges will begin performing abortions, either at the
plaintiffs’ clinics or in other settings in these cities.
As a result, the only abortion clinics in the Montgomery,
Birmingham, and Mobile metropolitan areas would close,
leaving only two abortion providers in the State, in
Tuscaloosa and Huntsville.

The plaintiffs further argue

that the clinic closures would impose significant harms

7. The parties also put forward evidence concerning
the purpose of the statute. Since the court finds that
the statute would have the effect of imposing a
substantial obstacle, it is unnecessary to reach the
purpose claim or discuss the parties’ arguments
concerning that claim.
33

on women seeking abortions and that the justifications
are weak.
The State counters that the obstacles for women would
be minor and the justifications for the requirement are
strong.

It asserts that the plaintiffs’ doctors may be

able to secure privileges that satisfy the law and that,
if they are unable to, other doctors would take their
place.

Furthermore, the State contends that, even if the

staff-privileges requirement renders abortion unavailable
in

these

three

cities,

women

seeking

abortion

would

experience only minimal obstacles. Finally, according to
the

State,

strong

the

staff-privileges

justifications,

legitimate

interest

both

in

requirement

grounded

protecting

in

the

women’s

has

two

State’s
health.

Primarily, it argues that the requirement ensures proper
care for complications. Furthermore, the requirement has
a

secondary

benefit

of

‘credentialing’

high-quality

doctors.
As discussed at length below, the court finds, by a
preponderance of the evidence, that none of the doctors
34

who provide abortions in Montgomery, Birmingham, and
Mobile would be able to obtain staff privileges that
satisfy the requirements of the Women’s Health and Safety
Act and that no doctors who currently hold or could
obtain such privileges would begin performing abortions
in

those

cities.

The

resulting

unavailability

of

abortion in these three cities would impose significant
obstacles, burdens, and costs for women across Alabama
and particularly for women who live in the three cities.
Finally, the court finds that the justifications that the
State offers for the law are weak, at best.
Because the significant obstacles imposed by the
staff-privileges requirement are not warranted by the
justifications for the requirement, the court finds that
the staff-privileges requirement would have the effect of
imposing a substantial obstacle for women who would seek
abortions in Alabama.
undue

burden

abortion.

on

The law would therefore impose an

their

constitutional

right

to

an

The court will issue a declaratory judgment

35

that 1975 Ala. Code § 26-23E-4(c) is unconstitutional as
applied to the plaintiffs.

A. Obstacles
In order to determine the severity of an obstacle
that a regulation places on women seeking abortion, the
court must examine carefully the effect of the regulation
on them, “considering the real world circumstances.”
Strange, --- F. Supp. 2d at ----, 2014 WL 1320158 at *
13.

Several aspects of those real-world circumstances

are helpful in determining the severity of the obstacle,
including “the means by which the regulation operates on
the

right

to

obtain

an

abortion,”

“the

nature

and

circumstances of the women affected by the regulation,”
“the availability of abortion services, both prior to and
under the challenged regulation,” “the kinds of harms
created by the regulation,” and “[t]he social, cultural,
and political context.”

Id.

*14-15.

36

at ----, 2014 WL 1320158 at

In

this

case,

staff-privileges

the

plaintiffs

requirement

argue

interferes

that

with

the

women’s

abortion rights by closing their clinics and making it
unlikely that other providers will emerge.
they

claim

obtaining

that

many

abortions

women
and

would
others

be

As a result,

prevented

would

from

experience

significant difficulty in obtaining an abortion.

Cf.

Strange, --- F. Supp. 2d at ----, 2014 WL 1320158 at *18
n.13 (“evidence that an obstacle actually prevents women
from obtaining abortions would be extremely compelling
evidence of a substantial obstacle”).
court

must

undertake

a

two-step

Therefore, the
inquiry:

first,

determining the effect of the requirement on current and
potential abortion providers; and, second, if clinics
close and no one takes their place, determining the
effects on women who seek abortions in the State.

37

1. Effect on Providers
(a) Nature of Staff Privileges
The phrase “staff privileges,” also referred to as
‘admitting privileges,’ describes a relationship between
an individual doctor and a hospital or its medical staff
that allows the doctor to admit patients to a hospital
and to perform procedures at the hospital.
become

a

member

of

a

hospital

staff,

Doctors may

and

therefore

entitled to certain privileges, at different levels, such
as ‘active staff,’ ‘consulting staff,’ and ‘courtesy
staff.’

Each membership level denotes the extent to

which a doctor may use hospital facilities, and the exact
definition

of

each

level

differs

from

hospital

to

hospital.

Once a doctor has some form of affiliation

with the hospital staff, privileges are granted for a
particular specialty, such as family practice, obstetrics
and gynecology (“OB/GYN”), or orthopedics.
comply

with

the

new

staff-privileges

In order to
requirement,

abortion doctors would need to obtain active or courtesy
privileges with an OB/GYN specialty.
38

Each of the hospitals in the Montgomery, Birmingham,
and Mobile areas has a different process and set of
prerequisites for doctors who seek staff privileges in
some form.

However, across many of the hospitals there

are

common

some

aspects

of

the

staff-privileges

credentialing process that are useful to introduce before
discussing

the

specific

circumstances

hospitals

incorporate

in

each

metropolitan area.
First,

many

a

proximity

requirement for a doctor seeking privileges.

For some

hospitals, this takes the form of an explicit radius
within which a doctor must live or practice.
Mobile
§

Infirmary

2.A.1(c)

Credential

(physician

must

Policy,
“be

PX

located

See, e.g.,
15

at

(office

4,
and

residence) within 60 minutes of the Medical Center”).
For other hospitals, the requirement is described more
generally: the doctor must be “sufficiently close” to the

39

hospital.

See,

e.g.,

Jackson

Hospital

(Montgomery)

Bylaws, PX 3 at 16, Art. V, § 3(A).8
Second, many hospitals require that a doctor with
active-staff or courtesy-staff privileges admit a certain
number

of

patients

or

perform

procedures on a regular basis.

a

certain

number

of

See, e.g., St. Vincent’s

Hospital (Birmingham) Bylaws PX 10 at 9-10, § 3.7(b)
(requiring

doctors

seeking

privileges

in

the

OB/GYN

service to perform five procedures within the first six
months of receiving privileges).
serve

two

main

purposes.

These requirements

Primarily,

they

offer

an

opportunity for an existing member of the hospital’s
medical staff to evaluate a doctor’s clinical skills.

At

some hospitals, these requirements also serve an economic

8. In many cases, the general proximity requirements
are designed to provide ‘continuous care’ to hospitalized
patients.
On the surface, this closely resembles the
State’s ‘continuity of care’ justification for the
staff-privileges requirement.
However, as discussed
below, infra. at § IV.B.1.d, the appropriate model of
continuity of care for low-risk outpatient surgeries such
as
early-term
abortion,
let
alone
medication
administrations, differs from the appropriate model for
hospitalized patients.
40

purpose, ensuring that a doctor with privileges uses that
hospital, rather than others, to perform procedures.
Finally, it is important to remember that, at all
hospitals,

the

discretionary
prerequisites

granting

of

process.
for

staff

privileges

Doctors

privileges

are

who
not

meet

is

a
the

automatically

entitled to privileges.

(b) Current Doctors
None

of

the

four

doctors

currently

providing

abortions at the plaintiffs’ clinics has staff privileges
at a hospital in the same metropolitan statistical area
as the clinics.

Based on trial testimony from the

current

doctors

abortion

and

from

abortion-clinic

administrators and representatives of local hospitals, as
well as the language in the bylaws of local hospitals,
the court finds that none of the current abortion doctors
at the plaintiffs’ clinics would be able to obtain the
necessary staff privileges, even if they applied.

41

i. Montgomery
The

two

doctors

performing

abortions

at

the

Montgomery clinic, Drs. A and B, will be unable to obtain
staff privileges at any local hospital.9
resides in the Montgomery area.

Neither doctor

Dr. A periodically flies

from her permanent home in Nigeria to Alabama to perform
abortions,
trips.

and

stays

in

Atlanta,

Georgia

during

her

For family reasons, she will not relocate to

Alabama.

Dr. B lives, and has her primary practice, in

Chicago,

Illinois,

there.

There was insufficient evidence at trial to

and

has

privileges

at

a

hospital

conclude that she will move to Alabama in the foreseeable
future.10

9.

See supra note 1.

10. Carter Sims, an Alabama Department of Public
Health investigator, testified at one point that Dr. B
said that she “was thinking about moving [to Birmingham]
to be close to” her brother. Tr. at VI-145:15-16. This
statement was admissible hearsay, admitted over the
plaintiffs’ objection as a statement of present mental
state. Fed. R. Evid. 803(3). Nonetheless, this casual
statement is too indefinite and noncommittal for the
court to conclude that it is anything but a passing whim.
42

There are only two local hospital networks in the
Montgomery area that offer privileges that could satisfy
the staff-privileges requirement: Jackson Hospital and
Baptist Health.

Representatives of the two networks

confirmed that neither Dr. A nor Dr. B will be able to
obtain staff privileges at a hospital in either network.
The Jackson Hospital representative testified that,
while

the

residency

requirement

is

not

precisely

specified, it is “just understood” that a doctor should
not live farther than “about 30 minutes” away from the
hospital.

Tr.

at

IV-156:22-23.

No

doctor

with

privileges at Jackson Hospital lives farther than an
hour’s drive away.
doctors

who

In addition, the hospital requires

apply

for

staff

privileges

to

have

documentation of at least 25 OB/GYN procedures from the
past year.

No doctor has ever satisfied this requirement

by performing only abortions.
Drs. A and B do not live within an hour’s drive of
Jackson Hospital.

Dr. A, who provides abortions only and

does not have a separate OB/GYN practice, would also be
43

unable

to

provide

documentation

non-abortion-related procedures.11

of

25

There is no credible

evidence that Jackson Hospital would make an exception to
these requirements for the doctors.
Baptist Health, which runs three local hospitals in
the Montgomery area, also requires a physician to have
her practice within the community and to live in the area
to be eligible for privileges.

According to the Baptist

Health representative, the maximum time that it should
take a physician with such privileges to drive to the
hospital

from

her

home

is

approximately

30

minutes.

There are no OB/GYN doctors who currently hold staff
privileges at any Baptist Health hospital and who live
more than an hour from the hospital.

For the same

reasons stated above, Drs. A and B cannot meet this

11. Dr. A is an OB/GYN and formerly had a private
practice in Alabama. However, when she moved to Nigeria,
she went into semi-retirement. She no longer provides
medical care in the United States outside of her abortion
practice.
44

residency

requirement

and

therefore

will

be

denied

privileges at any Baptist Health hospital.
Furthermore, even if Drs. A and B were able to
initially secure privileges at a Baptist Health hospital,
a doctor with provisional privileges who does not treat
enough patients in the hospital during her first year
moves into consulting-privileges or referral-privileges
status.

Neither status would satisfy the terms of the

staff-privileges requirement.

Drs. A and B are unlikely

to have a reason to use the hospital on a regular basis,
due to the safety of the early-term abortion procedures
that they perform and due to Dr. A’s semi-retirement and
Dr. B’s primary practice in Chicago.
After

hearing

representatives,

the

the

testimony

court

is

of

firmly

the

hospital

convinced

that

neither Dr. A nor Dr. B could obtain privileges at a
Montgomery-area hospital.12

12. Although the Alabama Women’s Center for
Reproductive Alternatives in Huntsville is not a
plaintiff in this case, it became clear that the clinic
(continued...)
45

ii. Birmingham
Dr. Mary Roe is the abortion doctor at the Birmingham
clinic.

She resides in Atlanta, Georgia, travels to

Birmingham to provide abortions once a week, and, for
personal reasons, will not move to Birmingham.
staff

privileges

at

two

teaching

hospitals

She has
and

one

private hospital in Atlanta, but she does not have such
privileges at a hospital in Alabama.

12. (...continued)
and
its
patients
would
be
affected
by
the
staff-privileges requirement as well.
While the
Huntsville clinic uses two doctors who live in the
metropolitan area and have privileges at a local
hospital, the clinic also contracts with Dr. A to provide
abortion services. The court credits the testimony of
Dalton Johnson, the administrator of the Huntsville
clinic, that Dr. A would be unable to secure privileges
at a Huntsville-area hospital. Given the similarities in
staff-privileges prerequisites at hospitals across
Montgomery, Birmingham, and Mobile, it is reasonable to
believe
that
Huntsville
hospitals
have
similar
requirements.
Therefore, Dr. A’s semi-retirement and
residences in Georgia and Nigeria would likely prevent
her from obtaining privileges at a Huntsville hospital.
Therefore, the Huntsville clinic would lose an abortion
doctor, and its capacity for providing abortions would
decrease.
46

There are nine hospitals in Birmingham that offer
privileges

that

requirement.

could

satisfy

the

staff-privileges

Dr. Roe meticulously and credibly reviewed

at trial the prerequisites that she does not and could
not satisfy for each of the nine hospitals.
Five of these hospitals impose explicit geographic
residency and practice requirements, which Dr. Roe could
not meet.13

Three of the remaining hospitals, the St.

Vincent’s Hospitals, are affiliated with the Catholic
Church

and

explicitly

oppose

abortion.

See

Tr.

at

II-159:21-22 (Freedman: “if you have Catholic hospitals
in

Alabama,

there

are

explicit

restrictions

on

abortion”). Furthermore, those hospitals require minimum

13. The court notes that some of the hospitals'
bylaws require that a doctors 'office or residence' be
within a certain geographic area, rather than her 'office
and residence.' This raises the question of whether a
doctor who works in a Birmingham clinic for a day or two
at a time qualifies as maintaining an 'office' there.
The credible evidence that was introduced indicates that
the answer is no and that the abortion clinics' doctors
would not satisfy 'office or residence' geographic
requirements. See Tr. at II-41:1-10; II-131:4-9. The
court so finds.
47

admissions in order to evaluate competence.

Dr. Roe

could not meet these minimums in Birmingham because her
primary non-abortion practice is located in Atlanta.
Finally,

the

privileges

three
to

hospitals

maintain

require
a

a

doctor

with

‘covering-physician’

relationship with another doctor on the medical staff of
the particular hospital.

Dr. Roe testified that she did

not know of a doctor at any of those hospitals who would
agree to affiliate with her for the purpose of keeping
the Planned Parenthood clinic open.
Finally,

the

University

of

Alabama-Birmingham

hospital requires that a doctor be appointed to the
medical

school

hospital.
reached

faculty

to

obtain

privileges

at

the

Dr. Roe previously was on the faculty and
out

to

the

university

to

investigate

the

possibility of a volunteer, unpaid faculty appointment
which

would

hospital.

allow

her

to

obtain

privileges

at

the

However, the current chair of the OB/GYN

department, who had not been there when she was on
faculty, explained to her that he would not hire her
48

because of her work providing abortions and serving as
medical director for Planned Parenthood.

Because the

university hospital is a state-funded institution, the
chair did not want to involve his department with what he
considered to be a politically contentious organization
and procedure, that is, abortions.
Testimony from two Birmingham hospitals buttresses
the conclusion that Dr. Roe will not gain privileges at
a Birmingham hospital.
Baptist

Hospital

A representative of Princeton

testified

that

to

secure

staff

privileges that would satisfy the statutory requirement,
a doctor must live within a “reasonable distance” of the
hospital.

Tr. at II-112:7-10.

No doctor with such

privileges has ever lived more than 26 miles away.

The

committee considering applications for such privileges
has

never

made

an

exception

to

this

rule.

The

representative for Medical West Hospital in Bessemer,
Alabama,
testified

about
that

20
the

miles

from

hospital

geographical constraint.

downtown
similarly

Birmingham,
imposes

a

In the past five years, the
49

hospital

has

granted

staff

privileges

to

six

obstetricians and gynecologists and all have resided
within the Birmingham suburbs.
The court is therefore firmly convinced that Dr. Roe
could

not

obtain

privileges

at

a

hospital

in

the

Birmingham metropolitan area that would be sufficient to
satisfy the staff-privileges requirement.14

iii. Mobile
Dr. P1 is the current abortion doctor at the Mobile
clinic.

She flies into Mobile to provide abortions, but

otherwise resides in Georgia.

She is not willing to move

to Mobile from her current residence in Georgia because
she would have to sacrifice access to the variety of
medical opportunities that are available in the Atlanta
area.

Currently, Dr. P1 has staff privileges at a

teaching hospital in Atlanta, but she does not have any
such privileges at any hospital in Alabama.

14. Dr. P1 occasionally performs abortions in
Birmingham as well, but is similarly situated to Dr. Roe.
50

There are four hospitals in Mobile that offer staff
privileges that could satisfy the statutory requirement.
Dr. P1, like Dr. Roe, reviewed the prerequisites at each
hospital and credibly concluded that they would bar her
from obtaining the required privileges. Mobile Infirmary
and Springhill Memorial Hospital both maintain geographic
requirements

which

Dr.

P1

cannot

satisfy,

and

representatives from those two hospitals confirmed that
no doctor has been exempted from the requirements.
Three of the hospitals, Springhill, Mobile Infirmary,
and University of South Alabama, also require a doctor to
see a minimum number of patients at the hospital, a
requirement which Dr. P1 could not meet because her
non-abortion practice is located in Georgia.

Each of the

four hospitals also requires references and coverage
agreements with other doctors who have staff-privileges
at the hospital.

Dr. P1 has one professional contact who

could potentially satisfy this requirement, Dr. P10, the
‘covering

physician’

covering-physician

for

the

Mobile

requirement,
51

clinic.

established

(The
by

state

regulation, is described in more detail below.
at § IV.B.1.d.)

See infra

However, she is separately ineligible

for privileges at the hospital where Dr. P10 practices.
Furthermore, because Dr. P1’s practice is in Georgia, she
testified that she does not have those contacts at the
other hospitals.

Finally, Providence Hospital, requires

that all members of its medical staff “adhere to ... the
Ethical and Religious Directives for Catholic Healthcare
Services.”
§ 2.2-1(b).
against

Providence Hospital Bylaws, PX 18, at 9,
That hospital “ha[s] publicly spoken out

abortion,”

Tr.

at

IV-188:12-13,

making

it

unlikely that Dr. P1 could secure privileges there.
Dr. P1 faces an additional barrier. She was trained
as a family-medicine physician, with a fellowship in
family planning.

With this specialty, she is qualified

to provide abortions, but she is not qualified to perform
hysterectomies or laparotomies since those are only part
of an OB/GYN residency.

52

From this evidence, the court is firmly convinced
that

Dr.

P1

could

not

obtain

privileges

that

would

satisfy the staff-privileges requirement.15

iv. Waivers & Making Doctors Try
The State argues that, despite the evidence that the
current doctors are ineligible for privileges at local
hospitals, the court should nonetheless refuse to find
that the doctors would not receive privileges until the
doctors actually apply.

It argues that, for example, the

hospitals may choose to make exceptions or grant waivers
to their prerequisites.

The parties disputed at summary

judgment

exceptions

granted.

whether

such

would

or

might

be

Thereafter, the court gave the parties the

opportunity to present evidence at trial on the issue.
Despite

this

invitation,

no

credible

evidence

was

presented to show that any one hospital would grant an

15. Dr. Roe occasionally performs abortions at the
Mobile clinic, but would similarly be unable to meet the
geographic and minimum-patient criteria for the Mobile
hospitals.
53

exception to its prerequisites for staff privileges to
accommodate the abortion doctors.16

Evidence of mere

possibility and speculation is insufficient to rebut the
consistent evidence that the abortion clinics’ doctors
are ineligible for privileges that could satisfy the
statute’s requirement.17
The

plaintiffs’

clinics’

doctors

did

not

apply

because it would damage their professional reputations to
file such futile applications.

Significant evidence to

this effect was presented at trial.

As the Baptist

Health representative testified credibly, “it is in the
16. The Medical West representative testified that
her
hospital
maintains
relationships
with
tele-radiologists, who analyze X-rays and other imaging
results from afar, and shift-based hospitalists, who are
employees of the hospital. A doctor in either category
would not be able to admit and perform procedures on a
patient whom the doctor had been treating outside the
hospital. Therefore, these categories of privileges for
which exceptions are made to the residency requirement
would not satisfy the staff-privileges requirement.
17. In fact, in the Mississippi case, the court noted
that discretion on the part of hospital credentialing
committees was used, not to make exceptions for abortion
doctors, but to deny their applications for privileges.
Jackson Women’s Health, --- F.3d at ---, 2014 WL 3730467
at *2, *2 n.3.
54

physician’s best interest to go through everything and
make sure that they meet all the criteria because, again,
it’s

not--it’s

something

not

that’s

IV-168:16-20.
such

beneficial

going

to

to

be

them

to--to

rejected.”

submit
Tr.

at

The State argues that there would be no

consequence

because

rejections

of

futile

applications are not reportable to the National Provider
Data

Bank,

a

database

of

doctors’

credentials

and

reputations. However, many hospitals in their privileges
applications require doctors to disclose all previous
applications that they have withdrawn or that were denied
for any reason.

Therefore, even an application that

never gets reported to the Data Bank could adversely
affect a future, non-futile, privileges application. Dr.
Roe testified credibly that, if a doctor presented an
application

that

revealed

large

numbers

of

futile

privileges applications, the hospital committee “will
look at you unfavorably, knowing that, professionally,
you did not take into account to respect the bylaws of
the hospitals and you casually applied for privileges at
55

all hospitals even when you knew you could not meet the
bylaws.”

Id. at IV-54:3-7.

Finally,

the

court

does

not

accept

the

State’s

characterization that the plaintiffs and their doctors
have not tried to secure privileges.

The Montgomery

clinic administrator made sincere efforts to determine
the application process for staff privileges, so that her
doctors

could

apply,

if

they

determined that they were not.
the

University

of

were

eligible.

She

Dr. Roe reached out to

Alabama-Birmingham

hospital,

as

described above, and also attempted to secure privileges
at another Birmingham hospital which has now closed.

(c) New Abortion Doctors
The State argues that, even if the four current
abortion doctors at the plaintiffs’ clinics cannot gain
staff privileges at local hospitals, the requirement may
not actually affect women who seek abortions.

Perhaps

the current clinics would recruit and hire new doctors
who already have or can obtain local staff privileges?
56

Or perhaps other doctors, who either currently reside
locally or who may move from out of state, would begin
performing abortions to satisfy the apparent demand?

As

the discussion above shows, any new doctor would have to
reside and maintain an active gynecological practice in
the area in which she provides abortions.
The State points to a handful of instances when local
clinics were able to recruit a local doctor to serve as
a covering physician, and to the fact that, as recently
as 2012, the Birmingham clinic employed abortion doctors
who

lived

in

the

area

and

therefore

met

residency

requirements for staff privileges at local hospitals.
However, as discussed more fully below, the court finds
that

the

number

throughout
perform

of

the

South

abortions

abortion
is

doctors

declining;

carries

nationally
the

detrimental

decision

and
to

professional

consequences in Alabama; violence against and harassment
of abortion providers, beyond run-of-the-mill political
protest, persist in the State; prior attempts to recruit
local doctors have failed dramatically; and there are
57

significant regulatory barriers to entry for a new doctor
to begin providing abortions at any scale.
For these reasons, the court finds that it is most
unlikely that the plaintiffs’ three clinics would find
new doctors who hold or could obtain staff privileges to
satisfy the requirement, nor will any new clinics open in
the foreseeable future.

Thus, if the staff-privileges

requirement were to go into effect, it would eliminate
abortion

availability

in

Montgomery,

Birmingham,

and

Mobile.

i. The Raw Numbers
A

severe

scarcity

of

abortion

doctors

nationwide and particularly in the South.
percent

of

all

doctors at all.

counties

nationwide

have

exists

Sixty-nine
no

abortion

Between the years of 1982 and 2005, the

number of abortion providers in the country decreased by
38 %.

Only 14 % of OB/GYNs in the United States provide

any abortion services, including abortions for fetal
anomalies or to save the life of a mother, and only 8 %
58

percent of OB/GYNs in the South perform any abortions at
all, compared to 26 % in the Northeast.

In Louisiana,

Alabama, and Mississippi, no residency program offers
abortion training to OB/GYN medical residents.

Based on

these numbers, it is perhaps unsurprising that no doctor
in the entire State of Alabama performed an abortion in
her private office from 2007 through 2012.

When the

Huntsville clinic, the last abortion clinic to open in
the

State,

opened

in

providing abortion.

2001,

there

were

12

clinics

Today, that number has declined to

five.
There are many causes of the scarcity.

First, it

goes without saying that some, and perhaps many, doctors
in Montgomery, Birmingham, and Mobile would never perform
elective
ethical

abortions

out

convictions.

of

deeply

Even

among

held

religious

those

doctors

and
who

support abortion rights, some do not have training on how
to perform an abortion.

Finally, even those doctors who

are supportive of abortion rights and trained to perform
an abortion are extremely unlikely to begin performing
59

abortions

in

these

three

cities,

due

to

the

severe

professional consequences of doing so and the lingering
threat of violence against abortion doctors, particularly
in Alabama.

ii. Professional Consequences
Dr. Lori Freedman, an expert for the plaintiffs,
persuasively described the professional consequences for
doctors who provide abortions.

Even among doctors who do

not view abortion doctors negatively, a phenomenon that
Dr. Freedman names the ‘cautionary tale’ is a barrier to
recruiting

new

abortion

providers:

Doctors

who

may

consider performing abortions are warned, explicitly or
by example, of the negative consequences past abortion
doctors

have

faced

particular community.

for

providing

abortions

in

a

For example, a doctor considering

becoming an abortion provider may hear stories of past
abortion

doctors

who

were

ostracized

from

their

communities for being “abortionists,” or of others whose
private practices were destroyed by protests due to their
60

affiliations with abortion clinics.

A doctor who is

considering performing abortions therefore learns that
any degree of abortion practice comes at a cost of losing
her standing within the local medical community, and
possibly

also

risking

her

ability

to

maintain

an

independent practice seeing other patients.
According to Dr. Freedman, the stigma of abortion and
the ‘cautionary tale’ are particularly strong in small
and mid-sized cities.

An abortion doctor in a larger

urban area can maintain anonymity and more easily find a
medical professional community supportive of abortion
rights, thereby mitigating the stigma the doctor faces
for her work.

In small towns and mid-sized cities, an

abortion doctor is more recognizable and easily singled
out.

For example, in the course of Dr. Freedman’s

research, she spoke to one abortion doctor who moved from
a

large

urban

area

to

a

providing abortions there.
reputation

and

the

small

city

and

considered

However, he feared for his

detrimental

consequences

to

his

private practice in the new city, despite having provided
61

abortion services for many years.

The court therefore

finds that it is highly likely that this effect would be
particularly strong in Mobile and Montgomery, while still
affecting doctors’ decision-making in Birmingham.
Doctors affiliated with Alabama abortion clinics have
experienced

anti-abortion

‘cautionary-tale’

stigma

dynamic.

In

consistent
Huntsville,

with
Dr.

the
Carl

Palmer and clinic administrator Dalton Johnson opened the
Alabama Women’s Center for Reproductive Alternatives in
2001.
would

Because of difficulty finding a location that
agree

to

host

an

abortion

clinic,

the

clinic

originally operated in the same building as Dr. Palmer’s
own private OB/GYN practice. However, when anti-abortion
protestors discovered the abortion clinic, they started
to protest outside Dr. Palmer’s private practice.

They

would confront non-abortion OB/GYN patients, particularly
pregnant women.
abortion

Even on days when Dr. Palmer provided no

services,

protesters

late-term abortions at the women.

would

wave

images

of

Eventually, Dr. Palmer

decided to discontinue his obstetric practice, that is,
62

delivering babies, because he did not want to subject his
patients to the harassment.
In 2004, Dr. Palmer passed away suddenly, and clinic
administrator

Johnson found Dr. A to continue performing

abortions at the clinic.

However, at that time, Dr. A

lived in California and was therefore unable to secure
staff privileges at a local hospital.
open,

the

physician.

clinic

needed

to

hire

In order to stay
a

local

covering

Johnson approached Dr. H1, a friend of the

late Dr. Palmer’s, to serve in that role, but Dr. H1 was
hesitant.

She had seen the ‘cautionary tale’ of Dr.

Palmer’s practice, and she feared that if she became
affiliated with an abortion clinic, she would also be
forced to discontinue her obstetric practice and would
not be able to support her family.

Johnson was able to

get Dr. H1 to agree to serve as covering physician, not
performing any abortions, only after he promised that the
relationship would remain confidential.
Despite Johnson’s best efforts, Dr. H1's role as
covering physician was revealed.
63

Although she was not

performing abortions herself, protestors came to her
private

practice

and

began

to

confront

patients, just as they had Dr. Palmer’s.

her

pregnant

Again, they

held signs depicting third-trimester abortions.

The

local leader of the pro-life movement told Johnson that
he would protest Dr. H1's practice for as long as Dr. H1
continued to serve as covering physician for the clinic.
Dr. H1 removed her children from their Catholic school
due to the publicity surrounding her affiliation with the
abortion clinic.
his

She “had a mass exodus of patients from

practice.”

Johnson

Test.,

Tr.

at

II-65:24-25.

Finally, she was forced to close the obstetric portion of
his practice.
perform

Although she had initially refused to

abortions

herself,

the

loss

of

her

private

obstetric practice pushed her into becoming a full-time
abortion provider so that she could continue to support
her family as a gynecologist in Huntsville.
Recently, Dr. H2 has moved to Huntsville and opened
a practice there, in addition to her practice in Opelika,
Alabama.

At

Dr.

H2’s

new
64

practice

in

Huntsville,

anti-abortion protesters have again begun to confront
pregnant

women

delivered.

At

who

go

trial,

to

her

clinic

to

have

their

administrator

babies
Johnson

movingly expressed his fear that Dr. H2 would be unable
to start and maintain an obstetric practice, just as Dr.
Payne’s and Dr. H1’s practices were shuttered.
The court finds that the protests at the Huntsville
private practices go beyond the run-of-the-mill political
protests prompted by an issue as morally and politically
charged as abortion.

The protesters in Huntsville were

not targeting abortion patients and trying to dissuade
them from going through with the procedure.
v.

Coakley,

134

S.Ct.

2518,

2527

Cf. McCullen

(2014)

(describing

“sidewalk counseling” protests and engagement at abortion
clinics).

Instead,

they

were

approaching

sought to carry their pregnancies to term.

women

who

Rather than

attempting to change general public perceptions on the
issue

of

abortions

or

dissuade

women

from

obtaining

abortions, the court must infer that these protesters
sought to threaten economic destruction for any doctor
65

who enabled the provision of abortion within the city.
They

succeeded

twice

in

ending

a

doctor’s

obstetric

practice.
Doctors in Birmingham were also forced to choose
between providing abortion and maintaining their private
practice.

Dr. P7 and Dr. Roe had both worked at a

private practice in Birmingham, while also providing
abortions

at

Parenthood.
learned

clinics,

including

Planned

However, when the director of their practice

of

initiated

independent

Dr.
an

P7’s

work

investigation

providing

abortions,

against

the

he

doctor.

Ultimately, Dr. P7 was forced to choose between providing
abortions or keeping her job.
abortions.

She stopped performing

Soon, Dr. Roe was faced with the same hard

choice and ultimately decided to leave the practice,
rather than stop providing abortions.
In

2009,

Planned

Birmingham-area

Parenthood

OB/GYN,

who

was

tried
a

to

large

recruit

a

financial

contributor to the organization, to provide abortions at
the clinic.

However, despite her strong support for
66

abortion rights, the doctor refused to provide abortions.
“[S]he and her family did not want to be associated with
the stigma associated with providing abortions for family
planning.”

Buchanan Dep. at 107:13-16.

The Montgomery clinic also experienced the power of
anti-abortion stigma to keep doctors from affiliating.
Wary and fearful of other medical professionals learning
of his affiliation with abortion clinics, the original
doctor

whom

the

administrator

secured

as

a

covering

physician refused to sign a written contract to that
effect.

As soon as state investigators contacted him, he

terminated the affiliation because such a call put his
anonymity and therefore professional reputation at great
risk in the Montgomery medical community.
Any doctor who would consider starting to perform
abortions in the three cities would likely hear the
‘cautionary tales’ about the experiences of Dr. Palmer,
Dr. H1, Dr. H2, Dr. P7, and Dr. Roe.

She would realize

that there was a good chance that an affiliation with
abortion would lead to harassment of her non-abortion
67

patients, potentially preventing her from continuing to
deliver

babies.

Given

the

intensive

training

for

obstetrics, the loss of that part of a doctor’s practice
would

be

significant.

This

dynamic

creates

strong

pressure, even for abortion-rights supporters, not to
perform abortions.

iii. Fear of Violence
Beyond the professional consequences of providing
abortion, potential abortion doctors must also consider
the physical threats to them and their families.

As

described above, Alabama has a particularly disturbing
history of violence towards abortion providers.
To review, the first abortion doctor in the nation to
be murdered, Dr. David Gunn, provided abortions at the
Montgomery clinic, among other clinics.
in 1993.

He was murdered

A now-closed clinic in Birmingham was bombed,

killing an off-duty police officer serving as a security
guard

and

wounding

a

nurse.

Not

long

after,

the

Tuscaloosa clinic was essentially destroyed by an arson.
68

That clinic was later attacked by a driver who ran his
car into the front of the building.

There were other

incidents of violence as well.
These prior acts of violence provide a more than
reasonable basis for abortion providers in Alabama to be
afraid.

Dr. Roe testified that: “Every time I go to

work, whether it's in Birmingham or Mobile, I'm always
afraid that there will be somebody who is in the crowd
who is passionate enough about the topic that they're
willing to shoot.

I worry about my children.

about my husband, my extended family.”

I worry

Tr. at IV-60:1-5.

As she delivered this testimony, there was a hush over
the courtroom, as the court and all others in attendance
heard the palpable fear in her voice.
Dr. Roe’s fears have been strengthened by several
incidents of extreme harassment.

In one instance, a

protestor tailgated and followed her car on the highway
as she left the Birmingham clinic en route to her home in
Atlanta.
[I]

She testified that: “I realized that every time

switched

lane[s],

whatever
69

I

did,

the

car

was

matching my moves.”

Id. at IV-64:19-20.

She feared that

the driver would run her car down or run her off the road
into a ditch.

She was able to escape safely only after

a colleague gave her instructions on evasion techniques
over her cell phone.
called

Dr.

Roe

by

In another incident, a protestor
name

as

she

entered

the

clinic,

threatening that “they were coming for [her]” in Atlanta.
Id. at IV-65:15.

Based on these incidents and others

like them, her home is under FBI surveillance and has a
security system. She also takes additional precautionary
measures

in

order

to

maintain

anonymity,

including

disguising her clothes, covering her face, and renting a
different car every time she drives from her Atlanta
residence to an Alabama clinic.
Like

Dr.

Roe,

Dr.

P1

experiences

threats

and

hostility beyond run-of-the-mill protesting at the Mobile
clinic where she performs abortions.

Mobile protestors

placed the doctor’s picture on an anti-abortion poster
and regularly call her by her first name as she enters
her clinic.

Dr. P1 has worked at two clinics that were
70

targeted for violence, including the Birmingham clinic
that was bombed by Eric Rudolph, killing a police officer
and wounding a nurse.

As a result, she takes all threats

from anti-abortion protesters seriously.

She does not

use the same car twice when traveling to her clinic, only
accepts personal mail through a Post Office Box, and
prefers not to receive packages at her home.
Huntsville clinic administrator Johnson takes similar
safety measures.

He uses an alarm system at home,

carries a personal firearm for protection, changes his
everyday routine frequently, and visits a grocery store
in a different area of town because protestors would
confront him and harass him at his local grocery store.
Drs. Roe and P1 continue to provide abortion services
in Alabama despite the State’s history of violence and
threats against abortion doctors, but other doctors have
responded to the hostile environment differently.

When

anti-abortion activists in the State leaked Dr. P3’s
personal

and

professional

information,

including

her

Social Security number, onto the internet, she gave up
71

her abortion practice and moved to another State.

Dr. D,

an abortion provider at the Montgomery clinic for ten
years,

ceased

information
Examiners

providing

she

for

licensure

anti-abortion
information,

provided

to
was

website.
her

abortions

In

home

the

in

Board

similarly
addition

address,

2012
of

Medical

leaked

to

when

to

an

professional

personal

cell

phone

number, names of family members, and photograph were
posted

to

the

website.

This

incident,

along

with

repeated attempts by protestors to take photos as she
entered the clinic, ultimately caused her to quit her job
at the Montgomery clinic.
Clinic administrators for the Montgomery, Birmingham,
and Huntsville clinics each offered examples of doctors
declining
expressing

requests
great

to

affiliate

apprehension

with

out

of

a

clinic

fear

for

or
the

physical safety of themselves and their families.
Therefore, the court finds that even those doctors
who support abortion, who have training in abortion, and
who

would

be

willing

to

withstand
72

the

professional

consequences of performing abortion would not agree to
perform abortions because the threat of physical violence
and harassment is so overwhelming.

iv. Previous Recruitment Efforts
Prior failed attempts by clinic administrators to
secure local doctors to affiliate with Alabama abortion
clinics

reinforce

difficult

to

the

find

conclusion

local

OB/GYNs

that

it

willing

would
to

be

provide

abortions in Montgomery, Birmingham, and Mobile.
In

1999

and

again

in

2003,

the

Montgomery

administrator, to comply with state regulations, sent a
letter to every OB/GYN in the Montgomery area, seeking a
local

covering

physician

to

treat

any

post-abortion

complications (described in further detail below).
both years, she received only negative responses.

In
One

OB/GYN explained that he did not “wish to be involved in
any way with any facility that provides such services.”
PX 37 at RHS-64.

Another rejection from 2003 reads, “I

speak for my entire practice when I say we must refuse
73

any

involvement

with

your

endeavors.

...

[W]e

have

committed our practice to the preservation of human life,
not to the destruction of it.”

Id. at RHS-82.

In an

attempt to recruit a local covering physician for his
Huntsville

clinic,

administrator

Johnson

also

sent

letters to every OB/GYN in a 30-mile radius of his
clinic.

Johnson’s

letters

reached

roughly

40

to

50

physicians, but he received no positive responses.
Between 2006 and 2013, the former administrator of
the Birmingham clinic attempted to recruit about eleven
local physicians to work there, but received negative
responses from all.

For example, as described above, she

made several attempts to recruit a local OB/GYN who
donated significant funds to Planned Parenthood and was
a strong supporter of abortion rights.

Despite the

doctor’s support for abortion rights, she refused to
perform abortions at the clinic, out of fear for her
family’s safety and the effects of anti-abortion stigma
on her private practice.

74

v. Barriers to Entry
To the extent that the State suggests that a local
doctor may be willing to perform abortions outside the
auspices of the plaintiffs’ clinics, it is important to
understand the regulatory landscape that would apply to
her.

Alabama

law

classifies

as

an

“Abortion

or

Reproductive Health Center” any health care facility or
doctor’s office that advertises itself as performing
abortion or any such facility or office where ten or more
abortions are performed during a month or 100 or more
abortions are performed during a calendar year.
Admin. Code § 420-5-1-.01(2)(d).
even

a

clinics

fraction
would

of

the

therefore

Any doctor who replaced

capacity
be

Ala.

of

the

regulated

as

plaintiffs’
an

abortion

clinics.
Alabama law imposes several architectural and safety
regulations on Abortion or Reproductive Health Centers.
The building must meet several designated safety codes,
including
Center.

the

standards

for

an

Ambulatory

1975 Ala. Code § 26-23E-9.
75

Surgical

The facility must

abide by the state standards for office-based surgeries
that involve moderate sedation/analgesia, regardless of
whether any anaesthesia is ever used.

§ 26-23E-8.

The

facility would have to abide by specific regulations on
personnel,

record-keeping,

administration

which

are

medical
different

supplies,
from

and

and
more

extensive than the regulations for a doctor providing
office-based

surgery.

Compare

Ala

Admin.

Code

§§ 420-5-1-.01 through -.04 (regulations for Abortion or
Reproductive
§§

Health

540-X-10-.01

Centers)
through

office-based surgery).

with
-.13

Ala.

Admin.

Code

(regulations

for

These requirements would apply

even to a doctor who provided only medication abortions,
which consist of the oral administration of two sets of
pills.
In other words, a doctor could not casually begin
offering abortions in an office setting.

She would need

a facility that met the architectural requirements of an
ambulatory

surgical

center.

76

She

may

also

need

a

significantly larger staff in order to meet the personnel
requirements.
These

regulatory

requirements

alone

would

likely

discourage many doctors from opening a new clinic, but
the general hostility to abortion among many in Alabama
makes

the

logistics

difficult.
open

in

of

opening

a

clinic

even

more

As noted above, the last abortion clinic to

the

Administrator

State

was

Johnson

the

Huntsville

testified

difficulty of operating a clinic.

to

one

the

in

2001.

day-to-day

He stated that even

locating space can be a challenge: “[A]s soon as we would
sit down with the realtor or the owner of the property
and we would tell them that an abortion clinic was going
in there, they--they wouldn’t lease to us.”
59:4-7.
medical
services

Tr. at II-

The company that had serviced Dr. Palmer’s
equipment
to

the

for

20

clinic,

years

refused

to

provide

forcing

Johnson

to

hire

a

servicer from more than 100 miles away, adding $ 500 to
the cost of every repair.

Even the simple act of calling

a plumber becomes complex:
77

“People don't realize--hiring a plumber.
In your mind, you have to strategically
think, okay, what day are the protestors
not going to be out there so they won't
harass this man.
And you know, I'm
always straight up and honest and tell
people, hey, you know, you're coming to
the local abortion clinic.
You know,
and you try to, you know, tell them
straight up so they won't be surprised.
But, you know, even--I had my water
heater replaced at my house. And thank
God I can just look in the phone book
and call Mr. Rooter and don't have to go
through this whole story and go through
this whole thing of planning out how to
get the plumber in so he won't get
harassed. And it's to the point that
you don't even worry about how much it
costs.
You're just glad that they're
there to--they're there to cover and
supply services.”
Id. at II-55:6-19.
In reviewing these difficulties, the court does not
intend to chastise or criticize those individuals who,
because of deeply held beliefs or for any other reason,
choose

not

to

do

business

with

abortion

providers.

Within the boundaries of the law, individuals are free to
conduct their affairs as they see fit.

Nor does the

court intend to make any claims or insinuations about the

78

legitimacy or propriety of abortion regulations in the
State apart from the staff-privileges requirement. These
facts are presented instead to illustrate why facile
assertions that new abortion providers would emerge to
replace the plaintiffs’ clinics are unconvincing.

vi. The Economic Arguments
The
diminish

State
the

argues

that

provision

of

the

regulation

abortion

would

services

not

either

because clinic administrators could overcome difficulties
finding local abortion doctors if they were simply to pay
doctors more or because new doctors would start clinics
to satisfy the demand for abortion services.
The first argument relies in part on the discrepancy
between the amount that the plaintiffs pay their doctors
per procedure and the insurance reimbursement rates that
doctors in private practice apparently charge for similar
procedures.

From this discrepancy, the State argues that

doctors choose not to provide abortions because it is not
lucrative enough, relative to other options.
79

However,

the plaintiffs’ expert Dr. Paul Fine explained that this
is an inapt comparison.

Insurers do not always reimburse

for the full listed rate.

Furthermore, the insurance

rate covers various overhead, equipment, and staffing
costs that are not included in the rate the plaintiffs
pay their doctors, as those costs are paid by the clinics
themselves.

Therefore, the court cannot find on this

record that the plaintiffs pay below-market rates for
their doctors.
Nonetheless, the State’s argument holds a certain
simplistic appeal.

In the words of the State’s expert

Dr. Peter Uhlenberg, describing the potential for new
clinics opening, “If we think of this as a supply and
demand and the demand is high, the market is there,
there’s no reason to expect that someone wouldn't step
forward

to

provide

that

service.”

Tr.

at

VI-101:23-102:1.
As the discussion above makes clear, there are in
fact several very good reasons to expect that no one
would step in to provide abortion services.
80

Many OB/GYNs

in Alabama do not know how to perform an abortion because
many residency programs in the region do not offer the
training;

many

OB/GYNs

have

strong

anti-abortion

convictions; and others fear, reasonably, that they could
not provide abortions without sacrificing another part of
their practice or that providing abortions would expose
them and their families to violence.

The court finds,

therefore, that the inability to obtain local abortion
doctors is not a matter of money, but rather a reflection
of the difficulty of pursuing that occupation in the
State.
Indeed, the court finds that doctors who continue to
provide abortions in Alabama, despite the overwhelming
pressures not to, do so because of a deep personal
commitment to ensuring that safe and legal abortions are
available to women in Alabama.

Administrator Johnson

continues to operate the Huntsville clinic because he
doesn’t see “the point of it being legal if there’s
nobody here to perform it.”

Tr. at II-87:10-11.

Dr. Roe

questions her decision to continue providing abortions
81

every time she goes to a clinic because of the risks
involved, but continues her work because she does not
know anyone else who would be willing to provide care to
Alabama women in “very difficult situations, having to
make very difficult decisions,” and she could not “turn
[her] back on them.”

Id. at IV-68:13-15.

Dr. A flies

from Nigeria to Atlanta at her own expense to provide
abortions

at

the

Montgomery

and

Huntsville

clinics

because of the experiences she had treating women who
received illegal abortions prior to the legalization of
abortion.

Having seen women “messed up for life” due to

unsafe and illegal abortions, she believes that, “where
there’s a chance to help a patient terminate a pregnancy
for

whatever

reason,

responsibility to do so.

lawfully,”

she

has

a

moral

Id. at V-106:9-11.

For all of these reasons, the court finds that the
four

doctors

who

currently

work

at

the

Montgomery,

Birmingham, and Mobile clinics will not be able to obtain
staff privileges and that new doctors who are eligible
for staff privileges would not emerge to take their
82

places.
if

the

Therefore, the court is firmly convinced that,
staff-privileges

requirement

were

to

go

into

effect, it would wipe out the availability of abortion
services in Montgomery, Birmingham, and Mobile.

2. Effect on Women
Determining

how

the

staff-privileges

requirement

affects abortion providers is only the beginning of the
court’s inquiry.

The rights of the doctors and the

clinics to provide abortion are “derivative” of women’s
rights to make family decisions and to physical autonomy.
Casey, 505 U.S. at 884.

Abortion doctors themselves do

not receive special protection, relative to the general
constitutional

rights

providers,

absent

abortions.

an

of
effect

physicians
on

the

and

women

medical
who

seek

Id.

By wiping out abortion availability in three of
Alabama’s

five

largest

cities,

the

staff-privileges

requirement would affect women who seek abortions in the
State in several ways.

First, the patients who live in
83

Montgomery, Birmingham, and Mobile would need to travel
outside

of

their

respective

cities

to

procure

an

abortion, which would cause three kinds of harms.

A

significant number of the women would be prevented from
obtaining

an

abortion;

others

would

be

delayed

in

obtaining abortions, exposing them to greater risks of
complications; and even the women who are able to obtain
abortions would suffer significant harms in terms of
time, financial cost, and invasion of privacy.

Second,

for all Alabama women, the number of abortions that can
be performed in the State would be radically diminished,
with every indication that the statewide capacity of
abortion services would further diminish, rather than
increase, in the future.

Finally, and particularly with

the advent of illegal sales over the internet, there is
significant risk that women who are unable to procure
abortions would turn to unsupervised and unsafe use of
abortion-inducing medications.

84

(a) Distance
i. Statistical Evidence
First,

the

plaintiffs

introduced

substantial

statistical evidence, through their expert Dr. Stanley
Henshaw (whose testimony the court credits), that women
forgo abortions at higher rates when they must travel
farther to reach an abortion provider.
A major example of this effect was documented by
economics researchers Silvie Colman and Ted Joyce.

They

reviewed the effects of a Texas law that effectively
eliminated,
abortions
State.

for

after

a

two-year

16-weeks

period,

gestational

availability
age

within

of
the

In the face of this restriction, some women were

able to schedule abortions before the 16-week cutoff.
Other

women

obtained

the

abortions

out

of

state.

Nonetheless, after reviewing health records in Texas and
the surrounding States, Colman and Joyce found that a
significant number of women--likely more than half of
women considering late-term abortions--when faced with an
average travel distance of 200 miles to the nearest
85

late-term

abortion

clinic,

simply

did

not

obtain

an

changes

in

abortion at all.
Furthermore,

other

studies

reviewing

distance that women must travel to obtain an abortion
have consistently found that a woman who lives farther
from abortion facilities will be less likely to obtain an
abortion.

One study found that the percentage of women

who obtain an abortion dropped with each additional ten
miles of distance.

Another found that an increase of 100

miles in travel distance reduces the abortion rate by
almost 22 %.

A third found that, conversely, opening new

clinics substantially increased the abortion rate in the
surrounding areas, further confirming the relationship
between distance from a clinic and the likelihood that a
woman will obtain an abortion.
Furthermore, increased travel distance causes delays
for women who do secure abortions.

In two surveys of

women who obtained abortions later than they had wanted,
7 % and 12 %, respectively, attributed the delay to
difficulties arranging transportation that arose from not
86

having an abortion provider nearby.

Furthermore, 26 %

and 28 %, respectively, reported that they had to delay
their abortions in order to save money to pay for the
procedure; as described below, increased distance makes
it more costly for a woman to obtain an abortion.
While

early-term

abortions

are

quite

safe,

as

discussed below, the procedure carries greater risks if
delayed past the 14th week of the pregnancy.
abortions are also more expensive.

Later term

Finally, delay past

a certain point would make it illegal for a woman to
obtain an abortion.

In Alabama, abortion is illegal once

the pregnancy reaches 20 weeks, with certain exceptions
for the life and health of the mother.

ii. Qualitative Effects
The testimony of plaintiffs’ expert Dr. Sheila Katz
is useful in explaining why additional distance has the
effect of decreasing abortion rates.

While much of her

testimony

about

abortion

reflected
patients

general

facts

nationally,

she

87

women

interpreted

and
those

general

statistics

as

they

relate

to

the

nature

of

Alabama women in general and to abortion patients in
particular.

As a preliminary matter, it is essential to

understand that the large majority of abortion patients,
particularly in Alabama, survive on very low incomes.
More than 70 % of the patients at Planned Parenthood’s
clinics in Mobile and Birmingham live at or below 150 %
of the poverty line.

In particular, the administrator of

the Mobile clinic testified that 90 % of that clinic’s
patients

live

in

poverty.

The

demographics

of

the

Montgomery clinic’s patients are similar; 60 % of the
patients qualify for financial assistance.

Cf. Strange,

--- F. Supp. 2d at ----, 2014 WL 1320158 at *14 (the
court should consider “the nature and circumstances of
the women affected by the regulation”).
For these women, going to another city to procure an
abortion is particularly expensive and difficult.

Poor

women are less likely to own their own cars and are
instead

dependent

on

public

transportation,

asking

friends and relatives for rides, or borrowing cars; they
88

are less likely to have internet access; many already
have children, but are unlikely to have regular sources
of child care; and they are more likely to work on an
hourly basis with an inflexible schedule and without any
paid time off or to receive public benefits which require
regular attendance at meetings or classes.

A woman who

does not own her own car may need to buy two inter-city
bus tickets (one for the woman procuring the abortion,
and one for a companion) in order to travel to another
city.

Without

regular

internet

access,

it

is

more

difficult to locate an abortion clinic in another city or
find an affordable hotel room.

The additional time to

travel for the city requires her to find and pay for
child care or to miss one or several days of work.
Furthermore, at each juncture, a woman may have to tell
relatives, romantic partners, or work supervisors why she
is leaving town: to procure an abortion.

And, in light

of the pervasive anti-abortion sentiment among many in
Alabama, such disclosures may present risks to women’s
employment and safety.

Finally, as Dr. Katz testified,
89

many low-income women have never left the cities in which
they live.

The idea of going to a city where they know

no one and have never visited, in order to undergo a
procedure that can be frightening in itself, can present
a

significant

psychological

psychological

hurdle

is

as

hurdle.

serious

a

“[T]his

burden

additional costs represented by travel.”

as

the

Katz Rep., PX

56 at ¶ 24.
Here, the court must note an error that some courts
have made in their undue-burden analyses.

These courts

have treated obstacles that arise from the interactions
of regulation with women’s financial constraints, as well
as other aspects of women’s circumstances, as ineligible
to be “substantial obstacles” under Casey.

See Planned

Parenthood of Greater Texas v. Abbott (Abbott I), 734
F.3d 406, 415 (5th Cir. 2013) (describing some women’s
inability to travel to a remaining clinic, due to limited
immigration

authorization,

hospital-admitting-privileges

as

“unrelated

requirement”).

to
In

the
so

holding, the Abbott I court relied on Supreme Court and
90

Fifth

Circuit

cases

which

refused

to

find

unconstitutional governments’ decisions not to subsidize
abortion in a way that they subsidized other medical
Id. at 415 nn. 45 & 49

procedures, including childbirth.

(citing K.P. v. LeBlanc, 729 F.3d 427, 442 (5th Cir.
2013)

(refusing

providers

from

to
a

find

state

that

exclusion

of

abortion

malpractice-insurance

subsidy

constituted an undue burden), and Harris v. McRae, 448
U.S.

297,

316

strict-scrutiny

(1980)

(holding,

framework,

under

that

the

denial

pre-Casey

of

federal

Medicaid funding for abortions does not infringe on the
constitutional right to abortion)).
The public-funding cases do not show that obstacles
that are aggravated by poverty are irrelevant to the
constitutional

analysis.

public-funding

cases

The

Supreme

distinguished

Court

between

in

the

“plac[ing]

obstacles in the path of a woman’s exercise of her
freedom of choice” and “remov[ing] those not of its own
creation.”

Harris, 448 U.S. at 316.

In cases like this

one, while poverty may be relevant, the plaintiffs seek
91

only for government not to regulate in a way that makes
it more difficult for those poor women, that is, not to
place an obstacle in the path.

In the public-funding

cases, plaintiffs sought to force affirmative government
action to facilitate women’s

abortions, removing the

difficulties that poverty creates generally.

There is a

difference between declining to interfere with a person
and refusing to assist her.

The plaintiffs in this case

ask only that Alabama not interfere with their patients’
ability to obtain abortions.
Nor would a court that sought to ignore obstacles
aggravated by the realities of poverty be wise to rely on
Casey’s observation that, “Whether a burden falls on a
particular group is a distinct inquiry from whether it is
a substantial obstacle even as to the women in that
group.”

Casey, 505 U.S. at 887.

district

court

had

In that case, the

invalidated

Pennsylvania’s

waiting-period requirement because it would “ha[ve] the
effect of ‘increasing the cost and risk of delay of
abortions’”

and

those

harms
92

would

be

“‘particularly

burdensome’” for poorer women, among other groups.
at 886-87.
is

not

Id.

On this issue, the Supreme Court held that it
enough

to

say

that

a

regulation

is

unconstitutional because it makes it more difficult ‘for
me to obtain an abortion than it is for you.’

Rather, a

woman must show that the regulation makes it sufficiently
difficult for her to obtain an abortion in and of itself.
In Casey itself, the Supreme Court found that a
spousal-notification

requirement

was

an

undue

burden

because of its effect on women who were in abusive
relationships.

505 U.S. at 887-98.

The circumstances of

those women and their relationships were at the core of
the

Casey

analysis.

spousal-notification

Casey’s

treatment

requirement

shows

of

that

the
the

interaction of the state regulation and existing social
conditions can create an obstacle for women.
that

obstacle

is

substantial,

regulation unconstitutional.

it

can

And, if

render

the

Cf. Vosburg v. Putney, 50

N.W. 403 (Wisc. 1891) (exemplifying the eggshell-skull
rule in tort law).
93

iii. The First 50 Miles
The

testimony

of

the

plaintiffs’

experts,

Drs.

Henshaw and Katz, also revealed an important aspect of
the relationship between travel distance and women’s
ability to obtain an abortion: when a clinic closes, the
largest effects are actually felt by women who, prior to
the closure, needed to travel only short distances, less
than 50 miles.
This can be a somewhat elusive concept, so the court
will illustrate it with two hypothetical women.

The

first woman lives in the same urban area as abortion
clinic X, which is just five miles away from her home.
The second woman lives in a rural area 60 miles away from
clinic X, which is the closest abortion provider to her
home as well.

Now imagine that clinic X closes, and the

abortion provider closest to both the urban woman and the
rural woman is now clinic Y.

This change adds 30 miles

to the distance each must now travel: the urban woman
must travel 35 miles total, and the rural woman must now
travel 90 miles.
94

The statistical and sociological evidence presented
in this case demonstrates that the closure of clinic X
will impose a much larger additional burden on the urban
woman than it will impose on the rural woman.

Before the

closure, the urban woman could obtain an abortion without
any

substantial

every-day life.

departure

from

the

logistics

of

her

For example, to get to the in-town

clinic X, she could ask for a short ride from a friend or
relative, take a taxi, or use public transportation.

If

necessary, she might be able to arrange a short period of
time

off

work

and

childcare,

as

she

would

for

any

doctor’s appointment, without the need to disclose that
she was seeking an abortion.

But once the in-town clinic

X closes, she will need to arrange for travel outside her
city, which Dr. Katz’s testimony indicates may be highly
unfamiliar and difficult.

The greater time involved in

traveling outside her city may also mean that she needs
to arrange lodging, additional child care, and time off
work.

In the process, she may need to disclose the

purpose of her trip.

All this means that obtaining an
95

abortion will now be much more difficult and burdensome
for the urban woman than it was when the in-town clinic
X was still open.
In contrast, even before the closure of clinic X, the
rural woman already needed to travel 60 miles to obtain
an abortion.

She already needed to arrange for long-

distance travel to a city that might be unfamiliar and,
if applicable to her, already needed to arrange for child
care or time off work.

This is not to say that the extra

30 miles she must now travel would impose no additional
burden, for it would likely increase the time and money
she will need to obtain an abortion.

But the critical

point is this: even though, following the closure of
clinic X, the rural woman must travel a longer total
distance, 90 miles compared to the urban woman’s 35, the
evidence
closure

in

this

actually

case

demonstrates

imposes

a

much

that
more

the

clinic

significant

additional burden on the urban woman.
Applied to the circumstances of this litigation, this
insight means that the most severe burdens created by
96

this law are likely to fall on the women who live in
Montgomery, Birmingham, and Mobile and who therefore
currently have to travel only limited distances to obtain
an abortion.

That category of women, like the urban

woman described above, accounts for over half of the
patients at the three clinics that would close as a
result of the staff-privileges provision.
And, as discussed above, the impact on those women is
likely to be quite substantial, and a significant number
would be prevented from obtaining a desired abortion at
all.
go

Indeed, if the staff-privileges requirement were to
into

effect,

Montgomery,

the

Birmingham,

shortest
or

trip

Mobile

between

and

the

either
nearest

in-state abortion provider would be the distance between
Birmingham and the Tuscaloosa clinic: a distance of 59
miles.

In other words, all the women who live in those

cities would now need to travel at least 59 miles to
obtain an abortion in Alabama.
The court’s factual conclusion, that clinic closures
impose

the

greatest

additional
97

burdens

on

women

who

previously lived close to an abortion clinic, directly
refutes one of the State’s arguments in this case.
State

strongly

urged

this

court

to

apply

the

The
Fifth

Circuit’s conclusion in Abbott I and Abbott II that “an
increase of travel of less than 150 miles for some women
is not an undue burden under Casey.”
at 598.

Abbott II, 748 F.3d

The State’s argument seems to be this: if the

fact that women needed to travel 150 miles in the Abbott
cases did not constitute an undue burden, how could the
shorter travel distances in this case constitute one?
See State Pre-Trial Br. (Doc. No. 183) at 13.
What this court has already said should make the
answer obvious: shorter total distances can sometimes
impose greater additional burdens than longer ones.

For,

if the women who needed to travel 150 miles in the Abbott
cases were like the rural woman described above, the
additional burden may have been comparatively minor.

By

contrast, the additional burden on a woman in Birmingham,
who previously could obtain an abortion within the city
and

now

would

need

to

travel
98

at

least

59

miles

to

Tuscaloosa, is quite severe.
undue-burden

analysis

is

The State’s view of the

simply

wrong.

The

State’s

absolute comparison (150 miles versus 90 miles) fails to
take into consideration the many factors which bear on
the burden imposed by this regulation, particularly the
circumstances

of

the

women

of

Alabama

who

would

be

affected by it.
Furthermore, the insight regarding the ‘first 50
miles’ also undermines the reasoning of the Abbott cases
themselves.
upholding

a

Those
24-hour

cases

looked

waiting

to

period,

Casey’s

opinion

concluding

that

“Casey counsels against striking down a statute solely
because women may have to travel long distances to obtain
abortions.”

Abbott II, 748 F.3d at 598.

Casey did,

indeed, find that the additional travel time and costs
associated with Pennsylvania’s 24-hour waiting period did
not constitute a substantial obstacle.

505 U.S. at 887.

But, again, the factual context matters.

The women at

issue in that portion of Casey were like the rural woman
described above: before the waiting-period provision,
99

they already had to, and were able to, make a two-tothree-hour trip to a clinic.

The new provision simply

required

trip

them

overnight.

to

make

that

twice

or

to

stay

By contrast, as discussed above, the clinic

closures in this case would impose severe new burdens on
the urban woman.
case

shows

Thus, the evidence introduced in this

that,

perhaps

counter

to

some

courts’

intuition, the burdens imposed by the additional travel
noted in Casey are significantly less severe than the
burdens imposed on the urban woman by clinic closures in
this case.
Indeed

contrary

to

the

Fifth

Circuit’s

interpretation, Casey’s approach was consistent with this
court’s conclusion.
any

Casey did not set out to establish

bright-line legal rule about travel distances, but

merely reached a conclusion, “on the record before [it],”
about the additional distances in that case.
U.S. at 887.

Casey, 505

Courts, like the Abbott courts, err when

they seek to transform that factual conclusion into a
simplistic legal rule.

As this case demonstrates, in
100

assessing

the

burdens

imposed

by

a

regulation,

the

factual details are critical.

iv. Out-of-State Clinics
There has been significant discussion over the course
of

this

litigation

about

whether

the

court

should

consider women’s ability to secure abortions outside the
State

of

Alabama.

question.

This

presents

a

difficult

legal

On the one hand, the effects prong of the

undue-burden standard requires a real-world analysis.
See Strange, --- F. Supp. 2d at ----, 2014 WL 1320158 at
* 13 (court should consider obstacles “considering the
real-world circumstances”).
that

state

boundaries

are

The court must acknowledge
not

always

women’s real-world decision-making.

significant

in

On the other hand,

the State could identify no precedent for a court to
consider conduct outside the political boundaries of a
jurisdiction in order to justify the constitutionality of
actions by that jurisdiction.

On the contrary, in areas

ranging from First Amendment free speech to Fourteenth
101

Amendment equal protection to Second Amendment firearm
rights, courts have refused to allow out-of-jurisdiction
access to cure within-jurisdiction restrictions.

See,

e.g., Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981)
(free speech); Missouri ex rel. Gaines v. Canada, 305
U.S. 337 (1938) (equal protection); Ezell v. City of
Chicago,

651

F.3d

684,

689-90,

697

(7th

Cir.

2011)

(firearm rights); Islamic Ctr. of Miss., Inc. v. City of
Starkville, 840 F.2d 293, 298-99 (5th Cir. 1988) (free
exercise).
Circuit

In fact, the Court of Appeals for the Fifth
recently

struck

down

Mississippi’s

staff-privileges requirement because it refused to look
outside the borders of that State when conducting the
undue-burden analysis.

Jackson Women’s Health, --- F.3d

at ----, 2014 WL 3730467 at *8-9.
This court does not need to resolve the legal issue
of whether to consider out-of state clinics because, even
if this court were to consider those clinics, it would
reach

the

same

conclusion.

The

out-of-state

clinic

nearest to any of the three cities at issue in this case
102

is in Pensacola, Florida, approximately 50 miles away
from

Mobile.

The

Columbus,

Georgia

approximately 80 miles away from Montgomery.

clinic

is

A woman in

Mobile traveling to Pensacola or in Montgomery traveling
to

Columbus

would

still

face

the

same

threshold

difficulties related to losing an abortion clinic in her
home

city;

she

would

still

have

challenges of the first 50 miles.

to

overcome

the

Furthermore, the

record does not support the conclusion that the Pensacola
and Columbus clinics could actually accommodate an influx
of patients from Alabama, and, in fact, the evidence from
the Huntsville and Tuscaloosa clinics, discussed below,
shows that it is not always easy for a clinic to increase
capacity and suggests that the out-of-state clinics may
not be able to treat large numbers of new women from
Alabama
Finally, in pointing to the Pensacola and Columbus
clinics to support its case, the State is inviting this
court to look only east and south.

But if the court were

to look outside Alabama’s borders, it would have to look
103

west as well.

Looking west, it is clear that similar

laws to the one at issue here threaten to close clinics
throughout the region.

See, eg. Jackson Women’s Health

Organization v. Currier, 940 F. Supp. 2d 416, 418 (S.D.
Miss. 2013), aff’d, --- F.3d ----, 2014 WL 3730467 (5th
Cir.

2014).

Again, the court reaches no conclusions on

these matters, but hastens to point out that an out-ofstate analysis is both much more complicated than the
State suggests and potentially harmful, on balance, to
the State’s case.
For all of these reasons, it would be unwise to jump
to conclusions about the curative effect of Pensacola’s
and Columbus’s clinics on this thin record.

v. Women Who Already Travel
Even those women who already travel from other cities
in order to procure an abortion would face some of the
challenges

of

additional

distance,

whether

those

challenges would manifest in additional time away from
home,

additional

cost

to
104

reach

another

city,

or

additional distance to drive.

However, in light of the

burdens that would be imposed on women who live in cities
that would be left without an abortion provider as a
result

of

the

staff-privileges

requirement

and

the

challenges, discussed below, that would be imposed by
reduced capacity to perform abortions in the State, the
travel-related burdens that would be faced by these women
do not affect the court’s calculus.

(b) Capacity
Apart from the difficulties faced by an individual
woman who must travel to Huntsville or Tuscaloosa, rather
than obtaining an abortion in Montgomery, Birmingham, or
Mobile,

the

staff-privileges

requirement

would

also

dramatically reduce the total capacity of providers to
offer abortions in the State.

See Strange, --- F. Supp.

2d at ----, 2014 WL 1320158 at *14 (court should consider
“the availability of abortion services, both prior to and
under the challenged regulation”).

105

The Tuscaloosa and Huntsville clinics provided 4,954
of the 9,009 abortions performed in the State in 2012.
Donald Aff., PX 20 ¶¶ 4-5.

If the three other clinics in

the State were to close, as a result of the staffprivileges requirement, a large proportion of the women
who would have gone to those clinics would instead have
to

seek

abortion

Huntsville

appointments

clinics.

Huntsville

at

the

Tuscaloosa

administrator

and

Johnson

testified credibly that his clinic would not be able to
accommodate additional patients.

In part, the capacity

constraint arises because Dr. A would no longer be able
to work at the Huntsville clinic if the staff-privileges
requirement were to go into effect.
supply-side

constraint,

there

would

Because of this
simply

be

fewer

abortions performed in the State than there would be
women who would otherwise seek to obtain them.

When a

woman would call the Huntsville or Tuscaloosa clinic,
whether from those cities or anywhere else in the State,
it would be less likely that she could obtain a prompt
appointment.

It is likely that she would have to make an
106

appointment further into the future, if the clinic even
had capacity to treat her before her pregnancy reached 20
weeks, the statutory maximum gestational age. Therefore,
there are significant risks that this capacity constraint
would prevent some women and harmfully delay other women
from obtaining abortions.
Nor can the court take the continued operation of the
Huntsville and Tuscaloosa clinics for granted.

As of the

time of the trial, Huntsville administrator Johnson was
still awaiting approval of architectural plans that would
bring

his

clinic

into

compliance

with

unchallenged

portions of the Women’s Health and Safety Act.

If the

Department of Public Health does not approve the plans,
his clinic will shut down.

The doctor at the Tuscaloosa

clinic has been practicing medicine since at least 1969,
and is unlikely to continue practicing for very much
longer.

After he stops providing abortions, there are no

current plans for keeping that clinic open.
if

the

staff-privileges

requirement

were

Therefore,
to

go

into

effect, there is a substantial likelihood that Alabama
107

would be left in the foreseeable future without a single
abortion

clinic

staff-privileges

due,

in

large

requirement.

Cf.

part,

to

Jackson

the

Women’s

Health, --- F.3d at ---, 2014 WL 3730467 at *10 (holding
that

Mississippi’s

staff-privileges

law

could

not

constitutionally be applied to close the only abortion
clinic in the State).

(c) Unsupervised Abortions
As

already

obstacles

and

shown,
a

by

statewide

imposing
capacity

travel-related
constraint,

the

staff-privileges requirement would make it significantly
more difficult to obtain an abortion in Alabama.

This

difficulty also creates a greater risk that women would
attempt to obtain an abortion illegally, without medical
supervision.

See Strange, --- F. Supp. 2d at ----, 2014

WL 1320158 at *14 (“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.”).
108

and

the

Dr. P1

testified

that

she

has

already

begun

to

see

a

few

patients a month who had attempted to self-abort using
illegally obtained medications, because the medications
were less expensive than a supervised abortion.
This

risk

is

particularly

grave

because,

as

plaintiffs’ expert Dr. Fine testified, there are websites
that

illegally

sell

abortion-inducing drugs.

misoprostol

and

other

Of course, there are serious

dangers for women who take unknown drugs which advertise
themselves to be abortion-inducing, but which may not
actually contain what is listed on the label.

Even for

those women who actually receive misoprostol, a woman who
takes it without consultation with a medical professional
and without the prior mifepristone pill faces increased
risks of hemorrhaging and infection.
At the worst, there is a danger that women would
attempt

surgical

described

how

abortions

patients

on

he

saw

themselves.
when

he

Dr.
was

in

Fine
his

residency in the early 1970's “either got a botched
back-alley abortion by some untrained person or they
109

actually put a coat hanger up inside of themselves.”
at III-85:9-11.

Tr.

He further described the dangers posed

by these illegal abortions: patients suffered “severe
infections,” including “gangrene of the uterus,” and some
even

died.

Id.

at

III-85:11-12.

Recalling

his

experiences treating those women, he testified: “I will
never forget the look in the eye of these women who are
scared

and

pregnancy.”

frightened

and

desperate

to

end

their

Id. at III-85:14-16.

3. Summary of Effects
In summary, for all of the above reasons, the court
finds that the staff-privileges requirement would have
the

effect

of

eliminating

abortion

Montgomery, Birmingham, and Mobile.

services

in

The loss of abortion

services in those cities would prevent some women who
live there from obtaining abortions and delay others’
abortions.

The

increased

distances

would

present

financial difficulties and psychological obstacles for
women who could previously obtain an abortion in their
110

own cities, as well as costing unnecessary additional
time

and

causing

confidentiality.

women

to

forgo

their

medical

For all Alabama women who might seek an

abortion, the closures would present obstacles related to
reduced capacity, namely delay and outright inability to
secure abortion services.

Each of these obstacles would

be compounded by the threat that women who desperately
seek to exercise their ability to decide whether to have
a

child

would

take

unsafe

measures

to

end

their

pregnancies.
Therefore, the court is firmly convinced that the
staff-privileges

requirement

would

impose

severe

and

even, for some women, insurmountable obstacles on women
seeking abortions in the State of Alabama.

B. Justifications
The
State’s

court

will

now

justifications

requirement.

analyze
for

the
the

strength

of

the

staff-privileges

“[I]n order to evaluate the weight of the

state interest involved in a particular case, it is not
111

enough simply to note that the State has invoked one of
these legitimate interests.

Rather, the court must look

to case-specific factors.”

Strange, --- F. Supp. 2d at

----, 2014 WL 1320158 at *15.

These factors include “the

extent of the anticipated benefit,” “the likelihood of
the

anticipated

benefit,”

“the

means

a

regulation

employs,” and “the political history and context of the
regulation.”
The

Id. at *15-*16.

State

puts

forward

two

categories

of

justifications for the staff-privileges requirement. The
primary justification is that the requirement furthers
‘continuity of care’ by improving care for women who
experience complications and fostering improved follow-up
care in general.

Secondarily, the State argues that

staff privileges serve a credentialing function, both as
an initial screening mechanism and by providing ongoing
review of physician quality.
these justifications.

112

The court will now examine

1. Continuity of Care
Continuity of care is the goal of ensuring that a
patient receives high-quality care not only during a
certain procedure but also after it, including treatment
of complications and any necessary follow-up care.
the

parties

and

witnesses

offered

a

While

number

of

formulations for what exactly the term ‘continuity of
care’ means, it was clear from the trial that this is a
somewhat elusive concept.
However, there emerged three models for ensuring
continuity of care in the abortion context.

In order to

evaluate these three models, the court will review the
general nature, frequency, and treatment of complications
from early-term abortion.
the

current

regulatory

continuity

of

Birmingham,

and

care,
Mobile

The court will also examine
framework

as

well

clinics’

as
as

it
the

actual

relates

to

Montgomery,
treatment

of

complications.
For the reasons described below, the court finds that
there is a range of disagreement within the medical
113

community regarding the appropriate model of complication
care for minor surgeries and medication-based procedures
like early-term abortion.

However, the model that the

State puts forward, which is the one reflected in the
staff-privileges requirement, falls outside that range of
disagreement.

Cf.

Gonzales,

550

U.S.

at

163-67

(upholding an abortion regulation where it fell within
the range of opinion in the medical community).

Finally,

the staff-privileges requirement would have the practical
effect of undermining the patient-care goals put forward
by the State.

(a) “Safer than Getting a Shot of Penicillin”
In order to understand proper care for abortion
complications, it is first necessary to recognize how
vanishingly

rare

it

is

for

women

to

have

serious

complications from early-term abortions, like the ones
performed

at

the

three

clinics.

Complications

that

require hospitalization occur in only 0.05 to 0.3 % of
such

abortions.

Furthermore,
114

rates

of

death

from

abortion are incredibly low.

According to the Centers

for Disease Control and Prevention, between 2004 and
2008,

the

mortality

rate

from

abortions

at

all

gestational ages was 6.4 deaths per million abortion
performed; in light of the more dangerous nature of
later-term abortions, it appears that the mortality rate
for early-term abortions is even lower.

According to Dr.

Fine, the procedure is therefore “[s]afer than getting a
shot of penicillin.”

Tr. at III-20:21.

While the

court need not adopt this characterization, the point is
well-taken that the penicillin is more than two to three
times more likely to kill a patient than an early-term
abortion.
demonstrates

In

short,
that

the

evidence

early-term

in

this

abortions

case
are

extraordinarily safe.

(b) Three Models of Continuity of Care
As with any medical procedure, though, there is some
possibility of complications, even serious complications.
No one disputes that, in those rare circumstances, the
115

patient deserves high-quality care.

The court heard

three approaches to providing such high-quality care for
complications

from

early-term

abortions

and

similar

procedures.
The first model was presented by Dr. Fine, who stated
that

the

actually

Montgomery,
go

continuity

of

beyond
care.

Birmingham,
what

is

According

and

Mobile

necessary
to

him,

clinics

to

provide

the

key

to

continuity of care in this context is 24-hour telephone
access.

A woman can call a clinic’s telephone number and

be assessed by a doctor or nurse at any time.
doctor

or

nurse

may

give

instructions

for

That

in-home

treatment, such as to take extra-strength Tylenol, or may
schedule the woman for a follow-up visit at the clinic.
If the medical professional determines that it would be
appropriate for the woman to be immediately assessed or
treated, she will be directed to the nearest emergency
room.

Doctors at such facilities are trained to provide

care for all abortion complications.

Dr. Fine also

acknowledged that, in rare circumstances, a patient may
116

need to be transferred directly to a hospital from the
clinic

during

the

course

of

an

abortion.

In

that

situation, the abortion doctor should communicate with
the emergency-room doctor.

According to Dr. Fine, a

clinic that takes these steps has provided continuity of
care.
The

second

model,

the

covering-physician

model,

essentially reflects the current regulations governing
abortion clinics in Alabama.

The model was largely

presented by the State’s expert, Dr. Geoffrey Keyes, and
has

been

adopted

by

his

organization,

the

American

Association for the Accreditation of Ambulatory Surgical
Facilities (“the Surgical Association”).
Association

certifies

centers

outpatient

surgeries,

that

including

The Surgical

perform
many

various

that

are

significantly more dangerous than early-term abortions.
In order for a facility to receive certification, the
Association

requires

either

that

all

doctors

at

the

facility have staff privileges at a local hospital or
that the facility maintain “a signed and dated document
117

from a person in the same specialty who has admitting
privileges in a [local] hospital ... that indicates their
willingness
Surgical

to

admit

the

Association

patient

Standards,

to

the

PX

hospital.”

70

at

73

(§ 800.010.025).18
As an example, Dr. Keyes maintains practices in Los
Angeles

and

approximately
procedures

in

Bakersfield,
120

miles

California,

apart.

Bakersfield,

he

When
stays

which
he

are

performs

overnight,

but

arranges with a local doctor to provide follow-up care
for

any

complications

returned to Los Angeles.

which

may

arise

after

he

has

Dr. Keyes stated, however, that

in an urgent situation, it is more important for a
patient to go to the nearest emergency room than that she
be treated by the initial doctor or a covering physician.

18. The federal government imposes a similar
requirement for ambulatory surgical centers that seek
reimbursement from programs such as Medicare and
Medicaid. If not all of the doctors at a center have
staff privileges, the center must have a written transfer
agreement
with
a
local
hospital.
42
C.F.R.
§ 416.41(b)(3).
118

Finally, the State presented a third approach to
complication care.

Under this approach, which the court

will call the ‘country-doctor’ model, the physician who
performs the initial procedure would consistently provide
most care for complications that may arise, rather than
relying on a covering physician, a transfer agreement, or
the emergency room.

While a specialist may need to

become involved for certain treatments, the original
doctor

would

complications.

handle

nearly

all

of

his

patient’s

The State emphasized a sense that quality

care depends on a traditional, personal, and ongoing
relationship

between

doctor

and

patient.

Staff

privileges at a local hospital, and implicitly local
residence, would be necessary for such care.

Dr. Thorp,

the State’s expert, was the strongest voice for this
country-doctor approach at trial.
The provision at issue in this case, requiring all
abortion providers to have local staff privileges, goes
beyond

either

of

the

other

two

models

reflects the country-doctor approach.
119

and

instead

(c) Nature and Treatment of
Abortion Complications
To assess these three models, the court will first
explain the nature of complications from the early-term
abortions performed at the Montgomery, Birmingham, and
Mobile clinics.
closely

resemble

miscarriages.
miscarriages,

Most complications from such abortions
the
The

as

well

complications
common
as

from

early-term

complications

medication

and

from

early-term

surgical abortions, are bleeding, infection, and cramps.
These complications sometimes arise because fetal tissue
remains in the uterus or because the cervix fails to
close fully after the fetal tissue is expelled.

The

treatment for these complications is the same, regardless
of how the pregnancy ended.
In extremely rare instances, other complications may
arise which could not occur from a miscarriage.

In the

case of a medication abortion, an allergic reaction to
the abortion drugs was the only possibility suggested by
the evidence in this case.

For a surgical abortion, it

120

is possible that an instrument may perforate or lacerate
the uterus.
Most complications from early-term abortions do not
require hospital treatment.

Most minor complications

which arise during the course of an early-term surgical
abortion are treated at the abortion clinic before the
patient is discharged.

Moreover, as discussed above,

most complications that arise after a patient has been
discharged

are

best

treated

with

over-the-phone

instructions, prescription medication from a pharmacy, or
a follow-up visit to the abortion clinic.
when

hospital

care

is

unnecessary,

However, even
patients

will

sometimes seek emergency-room treatment without first
contacting the provider.

Indeed, in some such cases, the

woman may not be suffering from any complication at all,
but may simply need reassurance.
For the majority of complications which do require
hospitalization, the appropriate treatment may include
intravenous
curettage

antibiotics
to

empty

the

or

a

further

uterus
121

dilation

completely.

and
The

staff-privileges provision requires all abortion doctors
to have local-hospital privileges that allow them to
perform

two

procedures:

specific,

additional

hysterectomy

and

gynecological

laparotomy.

Rare

circumstances, such as a suspected uterine perforation,
may require a laparotomy or the similar but less invasive
laparoscopy, each of which involves examining the uterus
or cervix and repairing any damage.

In certain other

extreme situations, a hysterectomy, or removal of the
uterus, may be necessary.

It is extremely rare that

either hysterectomy or laparotomy would be necessary
following

an

abortion,

even

a

later-term

abortion.

Indeed, with approximately 9,000 abortions performed in
Alabama each year, in most years not a single early-term
abortion in the State would require either procedure.

(d) Current Continuity-of-Care Regulations
As

noted

governing

above,

abortion

Association approach.

the

current

clinics

Alabama

resemble

regulations

the

Surgical

Each clinic is required under
122

current

law

to

ensure,

before

a

woman

obtains

an

abortion, that a doctor who can admit her to a local
hospital

will

be

available

if

necessary.

This

requirement can be satisfied by a written contract with
a

“covering

physician.”

§ 420-5-1-.03(6)(b).

Ala.

Admin.

Code

The covering physician is required

to have staff 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).

abortions

unless

an

A

area

clinic

affiliated

as
may

doctor

the

clinic.19

not

provide

with

staff

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).

Furthermore,

the

19. These are the same procedures which the
staff-privileges requirement at issue in this case would
require every doctor providing an abortion to have staff
privileges to perform, not just the covering physician.
123

regulations require certain communications to facilitate
continuity of care.

§ 420-5-1-.03(1).

The State’s Chief Medical Officer, defendant Dr.
Donald E. Williamson, testified that the Department of
Public Health believed, prior to the enactment of the
Women’s

Health

regulations

and

“did

an

Safety

Act,

adequate

protecting the public health.”
6.

that
and

the

preexisting

effective

job

of

Williamson Dep. at 40:4-

The Department of Public Health had authority, prior

to the enactment of the staff-privileges requirement, to
impose the requirement on doctors, but decided such a
requirement was unnecessary.

See id. at 40:6-8 (“If we

had felt that something else was essential, we would have
undertaken to do something else.”).
In fact, the Department was consulted by a drafter of
another bill, a predecessor to the Women’s Health and
Safety Act.

That bill was less demanding than the

statute that was eventually enacted.

The prior bill

would have required only that at least one doctor with
local staff privileges be present at the clinic until the
124

last patient leaves, compared to the enacted requirement
that

doctor

every

privileges.

performing

abortions

have

staff

The Department of Public Health requested

that even this staff-privileges requirement be removed
from the prior bill, and suggested that a codification of
the existing covering-physician regulation would be more
appropriate.

(e) Complications and Continuity
of Care in Practice
The

court

Birmingham,
protocols
below,

turns

Mobile,

for

the

now

and

treatment
protocols

covering-physician

model

to

a

description

Montgomery
of

clinics’

complications.

are

consistent

advocated

by

of

Dr.

exceed the model put forward by Dr. Fine.

the

actual

As

shown

with

the

Keyes

and

However,

because none of the doctors who perform abortions at
these clinics has local staff privileges, they do not
satisfy the State’s country-doctor model of continuity of
care.

125

In Birmingham and Mobile, most complication care is
provided at the clinic itself by the doctor who provided
the abortion, either before a patient is discharged or at
a follow up visit.
years

of

providing

Although Dr. Roe has never, in ten
abortions,

needed

to

transfer

a

patient directly to the hospital during a procedure, she
described

the

situation.

protocols

she

would

use

in

such

a

She would assess and stabilize the patient,

while clinic staff secure an ambulance.

Then, she would

ensure that the medical records were complete and send a
copy of the patient’s medical records with the ambulance
staff.

Finally, she would call the emergency room to

ensure that the doctors there were prepared for the
patient and “could pick up the care where we ha[d] left
off.”

Tr. at IV-25:21-22.

As for complications that arise after the patient has
left the clinic, a patient can call the 24-hour telephone
line to reach a nurse.
such

as

pain

from

If the complication is minor,

cramping,

the

nurse

will

offer

home-care instructions after consulting with the doctor
126

who provided the abortion.

For a more serious, but

non-urgent, complication, the clinic will schedule a
follow-up appointment, so the physician who performed the
abortion

can

provide

complication

care.

Medication-abortion patients are automatically scheduled
for

a

follow-up

patients

have

appointment,

the

option

and

of

surgical-abortion

such

an

appointment.

However, if a patient is experiencing complications that
may require urgent care, the doctor will instruct her to
go to the nearest emergency room.
To put the State’s staff-privileges requirement in
context, it is helpful to consider these clinics’ actual
history with complications and how the staff-privileges
requirement might alter the provision of follow-up care.
From

2010

through

September

2013,

to

the

Birmingham

clinic’s knowledge, only 13 of its abortion patients, of
an

estimated

5,000,

obtained

abortions at a hospital.20

20.

The

court

care

related

to

their

Of those patients, none was a

bases

these

127

analyses of clinic
(continued...)

direct transfer from the clinic to the hospital.

Only

five of the 13 contacted the Birmingham clinic before
seeking hospital treatment.21

One of those five was not

treated by an emergency room, but rather was a woman
whose

medication

pregnancy.

abortion

had

not

terminated

her

She decided to carry the pregnancy to term,

and the clinic referred her to an OB/GYN at the hospital.
Only in the four remaining cases does the State’s
continuity-of-care justification for the staff-privileges

20.(...continued)
complications on reports which were admitted into
evidence.
See DX 14, 19, and 20.
The date ranges
reflect the complication reports that were produced in
evidence, and the total patient numbers per clinic
reflect the court’s own estimations.
One of the reported Birmingham-clinic complications
came to the clinic’s attention via a news article, but
was unverified. It is possible that this complication
actually arose from an abortion performed at another
Birmingham clinic, which has since closed.
21. During closing arguments, the State argued for
the first time that the staff-privileges requirement may
lead women to seek treatment at the abortion clinic,
where they would otherwise have gone to an emergency room
and hidden the cause of the complications.
However,
there was no credible evidence in the record to support
this inference.
128

requirement even potentially come into play.

In one

case, the clinic’s covering physician met the patient at
the

emergency

room

and

successfully

treated

retained tissue from a medication abortion.

her

for

That leaves

three instances, over three years and nine months, in
which the Birmingham clinic directed a patient to seek
emergency-room treatment without involving the covering
physician.

One patient had a 99-degree fever; another

had cramps; and the third said that she was in pain
despite pain medication.

All three were treated and

discharged from the emergency room.
During the same time period, to the Mobile clinic’s
knowledge,

ten

of

its

abortion

patients,

out

of

an

estimated 3,500, sought care related to their abortions
at a hospital.

Eight of those patients did not notify

the clinic of their complications before seeking hospital
treatment.

Of the two remaining patients, one was a

direct transfer from the clinic, but that patient was not
actually experiencing a complication.

Rather, she found

the procedure to be too uncomfortable without sedation
129

and

was

transferred

to

the

hospital

for

monitoring

because she had already been administered misoprostol to
widen her cervix.
emergency

room

Only one patient was directed to the
for

a

complication

three-year-and-nine-month period.

during

this

In only this one case

would the State’s continuity-of-care justification be
relevant.

She had received a medication abortion but had

missed her scheduled follow-up appointment.

When she

called and reported clots and heavy bleeding, the clinic
referred her to the emergency room, where she was treated
and discharged.
From 2010 through 2013, to the Montgomery clinic’s
knowledge, three of its abortion patients, out of an
estimated

2,900,

received

arising from an abortion.

hospital

care

for

issues

Of these three patients, one

presented at the emergency room without first calling the
clinic,

leading

the

attending

physician

to

call

the

clinic for more information about the abortion procedure.
In response, the clinic sent its covering physician to
treat the patient.

Indeed, all three patients were
130

treated by the clinic’s covering physician, pursuant to
its current policies.
The

court

notes

that

the

Montgomery

clinic’s

procedures were not always this robust, and in fact the
clinic’s current policies were put into place after the
clinic had its license suspended arising out of a 2006
incident

concerning

complication

care.

A

patient

presented at the hospital with complications from an
abortion obtained at the Montgomery clinic.

When the

gynecologist at the hospital attempted to speak with the
doctor who had performed the abortion, he was apparently
unable to, and he later filed a complaint with the
Department of Public Health.22
The

investigation

of

that

incident

revealed

a

somewhat different problem: the clinic did not have an

22. The reporting doctor testified in this litigation
that the clinic staff displayed a troubling lack of
concern for the patient’s care. However, his version of
events is disputed, with the clinic offering conflicting
evidence.
The record is insufficient to support a
conclusion one way or the other as to what actually
happened during the 2006 incident, and the resolution of
that issue is not material to the outcome of this case.
131

operational covering-physician agreement in place, as
required by state regulations.

The Department of Public

Health therefore suspended the clinic’s license.

Before

its license could be reinstated, the clinic had to secure
a written agreement with a new covering physician and
revise its complication-care policies.

The clinic also

sent a letter to all area emergency rooms, so that the
emergency-room doctors easily could reach out to the
clinic if a patient presented at the hospital without
first contacting the clinic.

With the curative measures

taken after the 2006 incident, it is clear that the
Montgomery clinic actively has, since then, involved its
covering

physician

in

the

rare

occasions

that

complications occur.
In light of the safety of abortions, the rarity of
serious complications, and the robust regulation and
oversight of clinics in Alabama, the court is firmly
convinced that the Birmingham, Mobile, and Montgomery
clinics currently have strong complication-care policies

132

in

place

and,

when

complications

have

arisen,

they

provided quality care to their patients.

(f) Dr. Roe’s ‘Admission’
At

trial,

the

State

repeatedly

emphasized

an

admission elicited from Dr. Roe, the medical director of
the

Birmingham

and

Mobile

clinics

and

the

primary

abortion provider at the Birmingham clinic.

The State

relied

following

on

her

eventual

agreement

with

the

statement: “So your own protocol is inconsistent with the
rules of the Alabama Department of Public Health in this
instance.”
the

State

Tr. at IV-122:8-9.
returned

to

her

Indeed, again and again

concession,

asking

other

witnesses about it and arguing the point at closing.
See, e.g., id. at V-48:22-25 (State representing during
cross-examination of plaintiffs’ statistics expert that
Roe

“testified

that

she

has

allowed

the

Mobile

and

Birmingham clinics to operate in violation of Department
of Public Health rules”).
this

concession

is

an

Clearly, in the State’s view,

important
133

indication

that

the

existing policies and regulations do not provide for
continuity

of

staff-privileges

care,

and

requirement

that,
is

therefore,

needed.

the

However,

a

careful review of Dr. Roe’s actual testimony and the
regulation at issue reveals that the clinics do, in fact,
provide high-quality complication care and comply with
state regulations.

Her concession to the contrary was

the result of confusion, in large part attributable to
the misleading questions posed by the State’s attorney.
The court finds that there is no violation of the
applicable regulation.

That regulation provides that,

“In order to facilitate continuity of patient care, the
[abortion] physician shall contact and communicate with
any physician rendering care for complications arising
from the abortion as soon as he [or she] is informed of
the existence of such complications.”

Ala. Admin. Code

§ 420-5-1-.03(1) (emphasis added, second alteration in
original).

As the State insists, the regulation does

require communication.

However, that communication is

required only once the abortion doctor “is informed of
134

the existence of ... complications.”

Id.; see also Tr.

at IV-121:23-24 (State asking, without qualifications,
““Q. Does it not say that the facility physician shall
contact and communicate with any physician rendering
care?”); id. at IV-121:12-15 (same, without reference to
the abortion doctor being informed of the existence of
complications).
But

Dr.

Roe’s

testimony

made

clear

that,

as

to

“[m]ost of the patients” who call the after-hours line,
there is no known complication.

Id. at IV-120:16-17.

As

a precaution, the clinic will sometimes instruct those
women to go to the emergency room “so that the emergency
room physician can evaluate the patient physically and in
person.”

Id. at IV-120:13-15.

This is done precisely so

that an emergency-room doctor, who is available at all
times, day or night, “can assess whether there is such a
complication.” Id. at IV-120:15-16 (emphasis added); see
also id. at IV-120:19-20 (“And so the assessment as to
whether there is a complication is done by the emergency
room physician.”); id. at IV-120:24-121:1 (“the emergency
135

room physician will be able to evaluate the patient and
assess exactly what is going on with the patient”).
At that point, the clinic doctor does not know that
the patient is actually experiencing a complication.
Indeed,

often

additional
neither

of

patients

“pain

simply

management,”

which

constitutes

“need
id.
a

reassurance”
at

or

IV-120:16-19,

complication.

In

contrast, if a direct patient transfer from the clinic to
the emergency room is required, the doctor knows there is
a complication, and the clinic protocols accordingly
mandate that the doctor call the emergency room, as the
regulation requires.
Furthermore, clinic protocols are reviewed annually
by the Department of Public Health, and these clinics’
protocols have been approved by the Department.

The

Department’s failure to raise the supposed ‘flaw’ in
those protocols, as identified by the State, further
reflects that, in fact, no such flaw exists.

Thus, the

court concludes that the approach to complication care at

136

the Birmingham and Mobile clinics is consistent with
state regulations.
The State’s attorney did, indeed, elicit a concession
from Dr. Roe to the contrary.

After watching that

testimony, the court finds, as a matter of fact, that she
was confused by the questions, which left the distinct,
but incorrect, impression that the regulation always
requires a call to the emergency room, including not only
when there is a known complication but also when the
woman is sent for assessment for possible complications.
See Tr. at IV-120 to IV-122.

The court further finds

that Dr. Roe was, in the end, ‘worn down.’ Perhaps this
was because she deferred to counsel’s representations
about the legal meaning of the State regulation.

See,

e.g., id. at IV-121:5-6 (Counsel representing that “these
rules require such a contact” between the abortion doctor
and

emergency

room,

without

specifying

any

‘known

complication’ qualification). Needless to say, while she
is

a

medical

expert,

Dr.

Roe

137

is

not

an

expert

on

regulatory interpretation.

The court thus finds the

State’s reliance on her ‘admission’ unpersuasive.23

(g) What is ‘Continuity of Care’?
The court finds, again, that the complication-care
practices

of

the

Birmingham,

Mobile,

and

Montgomery

clinics are consistent with existing state regulations.
They are also consistent with the covering-physician
model for continuity of care and exceed Dr. Fine’s model.
However, the State is correct in suggesting that the
clinics’ practices would not satisfy its country-doctor
model.

The court will therefore return to the core

question: Is that model within the range of reasonable
medical opinion?

23. The State also relied on Dr. Roe’s testimony to
suggest that the Birmingham and Mobile clinics do not use
their covering physicians often enough to satisfy the
intent of the regulations. However, the actual records
of complications reveal that the clinics do not make
frequent use of their covering physicians because the
procedures they perform are extremely safe and because,
where
possible,
the
clinics
themselves
provide
complication care.
138

From Dr. Fine’s perspective, access to medical advice
from the original provider, with the availability of
trained emergency doctors, is sufficient continuity of
care for a low-risk surgery such as early-term surgical
abortion and the administration of pills involved in
medication abortion.

According to Dr. Keyes and the

Surgical Association, telephone access is insufficient,
and it is important to have at least a preexisting
relationship with a covering physician to provide for
complication

care.

Finally,

under

the

State’s

‘country-doctor’ approach, the physician who performed
the original procedure treats nearly all complications.
While the covering-physician approach is required by
pre-existing

Alabama

law,

the

staff-privileges

requirement reflects the third approach.
The key to all three of these models is ensuring that
a doctor who treats a complication has enough information
about the initial procedure to make wise choices about
the

patient’s

care.

As

discussed

above,

abortion

complications are extremely rare, and, for the majority
139

of complications from early-term abortions, there is no
information

about

the

abortion

procedure

change the appropriate course of treatment.

that

would

Instead, the

treatment is the same as the treatment for the common
emergency-room
miscarriage.

presentation

of

an

early-term

However, there are rare circumstances in

which information would be beneficial, for example in the
case of a uterine perforation or an allergic reaction to
medication.24
The court therefore finds that the country-doctor
approach, while carrying an intuitive appeal, does not
reflect the practice of 21st century medicine, as it
relates to simple, low-risk surgeries and medication
administrations.

A large number of complications and

24. Drs. Thorp and Anderson each opined that proper
care for even the simplest complication would require
detailed
knowledge
about
the
patient’s
history,
reproductive goals, and other information. However, the
court discredits Dr. Anderson’s testimony on this point
due to concerns about his judgment or honesty as
described in the forthcoming supplemental opinion. The
court discredits Dr. Thorp’s opinion on this point
because it is inconsistent with his own practice, as
described below.
140

patient concerns arising from abortion do not require
in-person

medical

treatment.

Sometimes

the

patient

requires only reassurance, and many other times a medical
professional

can

provide

home-care

instructions,

for

example, that the patient should take extra-strength
Tylenol.

Where there is a possibility of a more serious

complication, it is more important that the patient be
assessed quickly than that she be seen by her original
doctor.

As even the State’s own expert, Dr. Anderson,

admitted: “[I]f she’s unstable or she’s scared to death,
she should go to the closest emergency room. ... She can
call her abortion provider ... as an intermediary step.”
Tr. at VI-55:19-20.25
In fact, the behavior of the strongest proponent at
trial of the country-doctor approach illustrates why that

25. Although the court discredits nearly all of Dr.
Anderson’s testimony, the court credits this statement
for two reasons: first, the fact that it undermines the
case for the Alabama legislation negates the court’s
concern that bias colored his conclusions and second, the
statement is entirely consistent with all the other
credible evidence presented on this issue.
141

approach

is

practice.
he

out

of

touch

with

contemporary

medical

Dr. Thorp testified that, at his own office,

removes

tissue

that

remains

after

early-term

miscarriages, presumably using the dilation and curettage
method,

which

abortion.
sedation,

is

He

identical

also

exposing

puts
them

to

early-term

patients
to

under

significant

surgical
conscious

risk

from

anesthesia, and performs other procedures which carry
risks of serious complications.

But Dr. Thorp does not

maintain staff privileges at any hospitals.

It is not

clear whether Dr. Thorp, in practice, ascribes to Dr.
Fine’s

approach

or

to

the

covering-physician approach.

Surgical

Association’s

But it is clear that Dr.

Thorp has refused to adopt the State’s country-doctor
approach in his own practice.
Therefore, while there does seem to be some medical
disagreement about whether Dr. Fine’s model is sufficient
or, rather, whether a covering physician is necessary to
provide

high-quality

continuity

of

care,

the

‘country-doctor’ model does not fall within this range of
142

reasonable medical disagreement.

No credible evidence

supports the State’s contention that continuity of care
requires adopting that model.
As

a

final

justification,

note

the

on

court

the

continuity-of-care

observes

that

the

staff-privileges requirement would, in reality, do more
to inhibit continuity of care than to promote it.

Women

in Montgomery, Birmingham, and Mobile who currently go to
their local clinic to obtain an abortion are able to
return to that clinic for a scheduled or spontaneous
follow-up, and a covering physician is available, if
needed.

However, if this law were to go into effect, a

woman in one of those three cities would have to travel
to Tuscaloosa, Huntsville, or out of state to obtain an
abortion.

If she experienced a complication, which would

be most likely to occur only after she returned home, she
would have to seek treatment close to her home.

Neither

the doctor who performed the abortion nor the clinic’s
covering

physician

would

be

likely

to

privileges at any hospital near her home.
143

have

staff

Furthermore,

in light of the challenges that many women face in
traveling

outside

their

home

cities

to

secure

an

abortion, she would almost certainly be more likely to
miss a scheduled follow-up visit.
In summary, with regard to the continuity-of-care
justification, the court makes several findings.
complications
hospital

from

treatment

early-term
are

abortion

extremely

rare

First,

that

require

and

doctors

associated with emergency rooms are well-equipped to
treat

all

such

complications.

Second,

the

staff-privileges requirement falls outside the range of
standard medical practice for complication care for this
kind of simple and extremely safe procedure, as reflected
by standards and behavior of the State’s own experts.
Third, the plaintiffs’ clinics have a good recent track
record

in

providing

patient

care

for

complications.

Finally, the staff-privileges requirement of the Women’s
Health and Safety Act would, in reality, undermine the
State’s

goal

of

continuity

144

of

care,

since

women

in

Montgomery, Mobile, and Birmingham would no longer have
local access to the clinic or a covering physician.

2. Credentialing
The

State’s

secondary

justification

for

the

staff-privileges requirement is that privileges serve a
credentialing function.

This function would operate in

two ways: first, the initial credentialing process by
hospitals

would

screen

out

incompetent

or

unethical

doctors, preventing them from ever performing abortions
within the State; and, second, the hospital’s oversight
and

ability

to

terminate

or

non-renew

a

doctor’s

privileges would be an effective deterrent and corrective
measure against poor-quality care.

(a) Initial Screening
The initial-screening aspect of the credentialing
function provides negligible benefit, as compared to
preexisting law.
out-of-state

Furthermore, it is clear that the four

doctors

who

perform
145

abortions

at

the

Birmingham, Mobile, and Montgomery clinics are capable of
performing abortions safely.
The current regulations for abortion clinics require
that the doctors be credentialed in one of three ways:
“(i) Certification from an accredited
residency or fellowship program in the
United States that the physician has
been trained to perform abortions and
manage and recognize complications;
“(ii) Certification from an accredited
hospital in the United States that the
physician's staff privileges include
performing abortions; [or]
“(iii) Verification from a properly
trained disinterested physician that the
disinterested physician has had direct
observation of the physician's clinical
skill in performing both medical and
surgical abortions at a range of
gestational ages and finds them to be
satisfactory and within the standard of
care.”
Ala. Admin. Code § 420-5-1-.02(d)(3).

Furthermore, the

doctor’s ability to perform abortions safely is certified
on an annual basis, through direct observation of the
physician’s clinical skills by the medical director.
§

420-5-1.02(d)(2).

These

146

observations

must

be

documented,

and

the

records

are

reviewed

by

the

Department of Public Health.
Second, hospitals throughout the country impose a
similar

degree

privileges.
outside

of

scrutiny

on

doctors

applying

for

Indeed, although he described the matter as

his

expertise,

even

the

State’s

expert

Dr.

Anderson agreed: “most hospitals are governed by the
Joint

Commission

[the

main

hospital-accreditation

organization] and have a very rigorous qualification
scrutiny

of

physicians.

So

out-of-state

hospitals’

scrutiny should be somewhat equivalent from one hospital
to another.”

Tr. at VI-21:16-20.26

Three of the four current doctors hold privileges at
acute-care
fourth,

hospitals,

Dr.

A,

held

although

not

privileges

in

for

Alabama.
many

years

The
at

hospitals in Alabama and elsewhere, before going into

26. There were some suggestions at trial that
requiring specifically local staff privileges added some
initial screening benefit.
The court finds that no
credible evidence supports this view and that the
initial-screening function is served equally well by
local and non-local staff privileges.
147

semi-retirement.
extent
provide

that

Therefore, the court finds that, to the

the

“rigorous

staff-privileges
qualification

requirement

scrutiny,”

all

would
four

doctors have already withstood such scrutiny.27

27. Some courts have drawn an analogy between the
credentialing function of staff privileges and laws
mandating that only doctors be permitted to provide
abortions. See Abbott I, 734 F.3d at 412. This court is
well aware of the string of cases stretching back to Roe
itself that have specifically approved such ‘doctors
only’ regulations. See Mazurek v. Armstrong, 520 U.S.
968, 974 (1997); Casey, 505 U.S. at 885; City of Akron v.
Akron Center for Reproductive Health, Inc., 462 U.S. 416,
447 (1983), overruled in part on other grounds by Casey,
505 U.S. at 882; Connecticut v. Menillo, 423 U.S. 9, 11
(1975); Roe, 410 U.S. at 165. However, courts should be
wary of drawing too strong an inference from the ‘doctors
only’ cases.
The Supreme Court has offered little
elaboration of its ‘doctors only’ holdings, perhaps
viewing it as self-evident that such restrictions ensure
safety with little harm to access to abortion.
See
Mazurek, 520 U.S. at 974 (“no woman seeking an abortion
would be required by the [doctors only] law to travel to
a different facility than was previously available”).
Yet the Court has struck down other abortion regulations
offered in the name of women’s health, again without
explaining how those regulations differed from ‘doctors
only’ provisions. See Doe 410 U.S. 179. In this court’s
view, the best reading of the ‘doctors only’ cases is as
a unique category: relying first and foremost on the
recognition that “‘the Constitution gives the States
broad latitude to decide that particular functions may be
performed only by licensed professionals.’” Mazurek, 520
(continued...)
148

(b) Ongoing Peer Review
The second aspect of the credentialing justification
is more nuanced.

The State argues that the threat of

losing staff privileges would be an effective incentive
for

doctors

to

provide

high-quality

abortion

care.

Relatedly, the State argues that recent adverse licensure
actions against abortion clinics reveal both that clinics
are rife with underlying quality-of-care problems beyond
complication treatment and also that the Department of
Public Health is unable to uncover such problems before
they affect patient care.

In the State’s view, hospitals

and the doctors on credentialing committees would provide
an effective supplement to Department of Public Health
oversight.

27. (...continued)
U.S. at 973 (quoting Casey, 505 U.S. at 885). The staffprivileges requirement goes beyond the specific role of
defining the scopes of practice of the medical
professions. Therefore, the court rejects the analogy
between the doctors-only cases and Alabama’s staffprivileges requirement.
149

In

evaluating

this

aspect

of

the

credentialing

argument, the court first rejects certain opinions of the
plaintiffs’

expert

Dr.

Fine.

He

testified

that

credentialing committees sometimes have little concern
for patient safety and instead make staff-privileges
decisions primarily on economic grounds: which doctor
will perform more procedures at the hospital, reaping
profits for the institution.

On the contrary, the court

heard from representatives of six Alabama hospitals over
the course of the trial, and, based on their testimony,
the court finds that the hospitals make credentialing
decisions primarily to ensure that they and their doctors
provide high-quality care to their patients.
However, even accepting that hospital credentialing
committees seek to ensure high quality of care from
doctors who have staff privileges, the court finds that
the

evidence

contentions

does
that

not
the

actually
Department

support
of

the

Public

State’s
Health’s

enforcement efforts were ineffective; that problems in
care at abortion clinics stemmed from lack of oversight
150

over

doctors;

or

that

the

threat

of

losing

staff

privileges would be particularly effective in preventing
quality-of-care issues.
The Department of Public Health undertakes two-day
scheduled inspections of all Abortion or Reproductive
Health Centers on an annual basis.

On the first day,

inspectors review clinic policies and records to ensure
compliance with state laws and regulations.

On the

second day, they inspect the physical premises, talk to
staff, and observe procedures.

Inspectors also make

unannounced visits to ensure that clinics are actually
following appropriate protocols on a day-to-day basis.
Finally, inspectors respond to complaints from patients
and other citizens; in fact, the trial evidence shows
that anti-abortion activists often notify the Department
of clinic activities that they believe violate state law.
The

evidence

shows

a

history

of

extensive

and

aggressive Department of Public Health enforcement of the
State’s abortion regulations.
that

the

Department

revoked
151

The parties stipulated
the

licenses

of

three

now-defunct clinics.

Two of these clinics had failed to

respond to patient calls, and the third clinic’s nurse
had administered a medication abortion to a woman whose
pregnancy was too far advanced for such an abortion to be
safe.
Similarly, there was significant discussion of recent
problems at the Birmingham clinic.

A nurse there stole

abortion-inducing medication from the clinic and was
caught selling it in the clinic’s parking lot.

The

clinic responded by terminating all of its on-site clinic
staff and closing the clinic until new staff could be
hired.

When Department of Public Health investigators

went to the clinic for a surprise inspection, they found
the clinic closed.

During the course of the resulting

investigation, the clinic was not initially forthcoming
about

the

reason

for

its

closure,

disclosed the incident with the nurse.

but

eventually

The Department

will not allow the Birmingham clinic to reopen until the
Department approves its plan of corrections.

152

A Department official who investigated this incident
testified that nothing would have been different with
regard to the closure if the doctors had had privileges
at

a

local

hospital.

Nor

did

the

State

offer

any

explanation of how the Birmingham clinic should or could
have handled the incident differently.

Perhaps most

importantly, the Department of Public Health, with its
surprise inspection, was able to learn of the closure
more quickly than a hospital credentialing committee
could have been expected to.
The State nonetheless argues that the problem links
back

to

bad

Department

doctors.

of

Public

However,
Health

after

incident

reviewing

the

reports

and

information about the stipulated cases, the court finds
that the patient-care flaws arose more from management
problems than from problems with quality of the care that
doctors themselves provided.28

The problems often dealt

28. The same is true of the problems the State cites
at the now-closed New Women All Women clinic.
Dr.
Anderson, one of the State’s experts, pointed to the
(continued...)
153

with the ability of the clinic to ensure that nurses are
providing effective telephone care and not overstepping
their

professional

boundaries.

According

to

state

regulations, the responsibility for these issues lies
jointly with the clinic administrator and the medical
director.

See Ala. Admin. Code §§ 420-5-1-.02(1)(a)

(Administrator);

(5)(c)

(Medical

Director).

Responsibility does not fall on the individual doctors
who provide the abortions.29
28. (...continued)
Alabama Department of Public Health’s numerous citations
of that clinic and the clinic’s subsequent closure, as
evidence of substandard care and the need for heightened
regulation of abortion clinics generally. See Anderson
Report, DX 3 Ex. A, at 21. Obviously, the Department’s
findings are troubling.
But, from Dr. Anderson’s
description, it appears that the citations largely
related to recordkeeping and the conduct of non-physician
staff.
There is no indication in his report that the
doctors themselves were inadequate, only that their
qualifications were not documented.
Furthermore, the
court notes that the clinic was shut down for these
violations,
which
hardly
establishes
that
the
Department’s regulatory oversight was ineffective.
29. At trial, the State argued that, because Dr. Roe
is the medical director of the Birmingham and Mobile
clinics, she does bear responsibility for the management
problems at those facilities. But this misses the point.
(continued...)
154

Finally, the State introduced a malpractice complaint
against Dr. A and an indictment of Dr. H2.

Dr. A

acknowledged the factual substance of the malpractice
complaint, but argues that his actions did not constitute
malpractice, but rather that he provided high-quality
care to the patient in that case, who suffered from an
exceptionally rare condition.

No court or state agency

has refuted his characterization that the actions did not
constitute malpractice.

Furthermore, doctors with staff

privileges, including the State’s own experts, also have
malpractice suits filed against them.

The indictment,

29. (...continued)
The staff-privileges requirement would regulate Dr. Roe
not in her capacity as medical director, but rather in
her capacity as abortion provider.
It is only by
happenstance that the individual who provides abortions
in Birmingham is also the medical director there and in
Mobile.
Indeed, that is not the case at all at the
Montgomery clinic, and it would be senseless to require
additional credentialing of Dr. A, the abortion provider
there, because of management problems that may be
attributable to the medical director, an entirely
different person.
It makes no more sense to require
additional credentialing of all abortion providers simply
because one such provider happens also to serve as a
medical director.
155

like the complaint, is nothing more than an allegation.
More importantly, however, Dr. H2 has staff privileges at
local hospitals in Auburn and in Huntsville.

Therefore,

the indictment, even if it is ever substantiated, would,
if anything, constitute evidence against the State’s
theory

of

staff

privileges

as

providing

ongoing

oversight.
Therefore, the court is left with the speculative
assertion

that

hospital

oversight,

through

staff

privileges, would actually ensure that the physicians and
clinics are providing high-quality care and would be an
effective

supplement

oversight.

Of

to

course,

Department
outside

of

the

Public
context

Health
of

an

undue-burden challenge, a regulatory decision grounded
only in such speculation would be an acceptable exercise
of the State’s police powers.
2d

at

----,

2014

WL

See Strange, --- F. Supp.

1320158

at

plaintiffs’ rational-basis claim).
under

Casey,

warrant

the

the

justification

burdens

and
156

is

*3-*4

(rejecting

However, whether,
strong

obstacles

enough
that

to
the

staff-privileges requirement would create for Alabama
women seeking abortions is another question entirely.

3. Legislative Findings
The

Alabama

legislature

made

several

legislative

findings which, although expressed in general and vague
terms, could be interpreted to conflict with the court’s
findings.
findings).30

See 1975 Ala. Code § 26-23E-2 (legislative
The

court

has

given

the

legislature’s

30. The legislative findings are:
“(1) That the percentage of abortion or reproductive
health centers that have been subject to adverse
licensure action vastly exceeds the percentage of
facilities in any other category that have similarly been
subject to adverse licensure actions. This alarming level
of
regulatory
non-compliance
among
abortion
and
reproductive health centers in Alabama puts abortion
patients at unreasonable risk.
“(2) At abortion or reproductive health centers, patients
are often treated in a manner inconsistent with a
traditional physician/patient relationship.
“(3) Abortion or reproductive health centers are not
operated in the same manner as ambulatory surgical
treatment centers or physician offices.
“(4) Abortion involves not only a surgical procedure with
(continued...)
157

findings careful consideration.

However, while such

findings are reviewed under a “deferential standard,”
they are not entitled to “dispositive weight.”
550 U.S. at 165.

Gonzales,

On the contrary, this court “retains an

30. (...continued)
the usual risks attending surgery, but also involves the
taking of human life.
“(5) Abortion is a highly personal and very sensitive
procedure which results in stress and concern for the
patient that is unique to the decision to have an
abortion.
“(6) Abortion is a very profitable procedure most often
engaged in by stand-alone clinics without many of the
safeguards found in a traditional physician/patient
relationship or other medical care setting.
“(7) Because abortion and reproductive health centers do
not currently provide the level of personal contact found
in many physician/patient relationships and in other
medical care settings, it is necessary for the
Legislature to mandate the personal presence and
participation of the physician in the process.
“(8) Moreover, because abortion or reproductive health
centers have often failed to meet acceptable standards of
medical care, it is necessary for Legislature to enact
reasonable and medically appropriate health and safety
standards for all abortion and reproductive health
centers, and to provide effective enforcement mechanisms
and disincentives for centers that are unable or
unwilling to meet these requirements.” 1975 Ala. Code
§ 26-23E-2.
158

independent

constitutional

duty

to

review

factual

findings where constitutional rights are at stake.”

Id.

(citing Crowell v. Benson, 285 U.S. 22, 60 (1932)).
Based on the evidence presented, this court finds
that, to the extent that the legislature made factual
findings that early-term abortions are unsafe, that these
clinics’

continuity-of-care

practices

are

out

of

compliance with current regulations, those findings were
simply “incorrect,” Gonzales, 550 U.S. at 165.

The

evidence in this case is clear that the procedures are
remarkably safe and that the plaintiffs’ clinics provide
complication care in compliance with current regulations.
On these matters, “deference to [the State’s] factual
findings ... is inappropriate.”

Id.

With regard to the state’s other findings, the court
defers to the legislature’s conclusions, but finds that
they do not conflict with the analysis presented above.
The legislature identified a set of perceived problems.
For

example,

that

abortion

doctors

do

not

“traditional physician/patient relationship.”
159

have

a

1975 Ala.

Code § 26-23E-2(6).

As described above, the court agrees

with the State; the clinics’ model of continuity of care
does not comport with the traditional country-doctor
approach.

However, while the legislature identified

perceived problems with the nature of abortion care in
the

State,

it

did

not

make

findings

that

the

staff-privileges requirement would do much to solve those
problems.
this

Since most of the court’s findings concern

relationship

between

the

staff-privileges

requirement and the stated goals of the legislature, its
findings on the State’s justifications do not otherwise
conflict with the legislative findings at § 26-23E-2.

C. Substantial Obstacle
Now,

the

court

must

substantial-obstacle test.

apply

“the

heart”

of

the

Planned Parenthood Southeast

v. Strange, --- F. Supp. 2d at ----, 2014 WL 1320158 at
*13.

Are the obstacles imposed by the staff-privileges

requirement more severe than warranted by the State’s
justifications for the regulation?
160

The answer is, Yes.

The court finds that the obstacles imposed by the
staff-privileges requirement are large.
would

have

clinics

in

the

three

Montgomery,
§ IV.A.1.
from

effect
of

Mobile,

of

closing

Alabama’s
and

The requirement

the

five

only

abortion

largest

Birmingham.

See

cities,

supra

at

For a number of reasons, including pressure

the

local

medical

community

and

the

threat

of

violence, no new clinics would emerge to replace the
plaintiffs’ clinics in the foreseeable future.

See supra

at § IV.A.1.c.
By eliminating abortion services in the three cities,
the

requirement

difficulties.
obtain

an

would

impose

three

main

sets

of

First, the need to travel farther to

abortion

abortion

and

others

imposing

significant

remaining women.

would
to

cause

delay

financial

some

their
and

women

to

forgo

abortions,

while

other

See supra at § IV.A.2.a.

costs

on

These effects

would be particularly strong for women who live closer to
the

current

§ IV.A.2.a.iii.

abortion

clinics.

See

supra

at

For all women who seek abortions in the
161

State, the requirement would dramatically reduce the
capacity of abortion clinics within the State, delaying
and probably even preventing women’s abortions.
supra at § IV.A.2.b.

See

Finally, these obstacles create a

significant risk that some women would pursue dangerous,
illegal abortions.

See supra at § IV.A.2.c.

These harms are more than an “incidental effect of
making it more difficult or more expensive to procure an
abortion.”

Casey, 505 U.S. at 874; cf. Mazurek v.

Armstrong, 520 U.S. 968, 974 (1997) (regulation did not
have the effect of imposing a substantial obstacle, in
part because “no woman seeking an abortion would be
required by the new law to travel to a different facility
than was previously available.”).

Indeed, as this court

has noted, “evidence that an obstacle actually prevents
women from obtaining abortions,” which is “by no means
necessary,” is nonetheless “extremely compelling evidence
of a substantial obstacle.”

Strange, --- F. Supp. 2d at

----, 2014 WL 1320158 at *18 n.13.

162

The court further finds the State’s justifications
are exceedingly weak.

The State argues that the law

would serve two purposes: improving continuity of care
for clinic patients and imposing a credentialing scheme
that would provide screening and oversight to ensure
quality care.

With regard to the continuity-of-care

justification, the court finds that the country-doctor
approach to continuity of care which is reflected in the
staff-privileges requirement falls outside the range of
reasonable medical dispute in contemporary practice. See
supra at § IV.B.1.

Furthermore, as a matter of initial

screening, the staff-privileges requirement would add
nothing to the current credentialing requirements for
abortion doctors.
somewhat

viable

hospital
supplement

See supra at § IV.B.2.a.
justification

credentialing
Department

abortion doctors.

of

was

the

committees
Public

The one

argument
may

Health

that

helpfully

oversight

of

However, with any degree of scrutiny,

this justification proves to be weak and speculative.
See supra at § IV.B.2.b.
163

In light of the severity of the obstacles presented
by

the

requirement

and

the

weakness

of

the

State’s

justifications, the court is firmly convinced that the
obstacles

imposed

by

Alabama’s

staff-privileges

requirement are “more significant than is warranted by
the State's justifications for the regulation.” Strange,
--- F. Supp. 2d at ----, 2014 WL 1320158 at *13; see also
Van Hollen, 738 F.3d at 798 (substantial obstacle where
“the medical grounds ... are feeble, yet the burden
great”); Humble, 753 F.3d at 917 (substantial obstacle
where burdens outweighed “non-existent” medical grounds).
Thus, the staff-privileges requirement has the effect of
imposing a substantial obstacle for the women who seek
abortions from the plaintiffs’ clinics, and therefore
unduly burdens their constitutionally protected right to
an abortion.
While the court finds that the State’s justifications
for

the

law

conclusion

are

that

weak,
the

it

must

emphasize

staff-privileges

that

requirement

its
is

unconstitutional does not turn solely on that finding.
164

In the alternative, the court further finds that the
justifications are by no means sufficiently robust to
justify the obstacles that the requirement would impose
on women seeking abortion.

Because “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,” “the more severe an
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 justification will actually achieve that benefit.”
Strange, --- F. Supp. 2d at ----, 2014 WL 1320158 at *13.
Here, because the obstacles to women that would result if
the staff-privileges requirement were to go into effect
are

so

severe,

the

State

must

come

forward

with

justifications that are sufficiently “robust” to justify
such

obstacles.

The

court

finds

that

the

State’s

justifications are far, far from robust, especially in

165

light

of

the

extensive

and

aggressive

Department

of

Public Health oversight which is already in place.

V.

CONCLUSION

The constitutional rights recognized by the Supreme
Court are often viewed as more, or less, important in our
minds based on our subjective beliefs, which may be the
result of religion, personal philosophy, traditions, or
experiences.

This is simply an aspect of human nature,

but it is an aspect this court must resist.
In deciding this case, the court was struck by a
parallel in some respects between the right of women to
decide to terminate a pregnancy and the right of the
individual to keep and bear firearms, including handguns,
in her home for the purposes of self-defense.
McDonald

v.

City

of

(incorporating

this

protected

the

by

Chicago,
right

in

Fourteenth

561

U.S.

the

liberty

Amendment

742

See
(2010)

interest

due-process

clause); District of Columbia v. Heller, 554 U.S. 570
(2008) (first recognizing this right as protected by the
166

Second Amendment).

At its core, each protected right is

held by the individual: the right to decide to have an
abortion and the right to have and use firearms for
self-defense.

However,

neither

right

can

be

exercised without the assistance of someone else.

fully
The

right to abortion cannot be exercised without a medical
professional, and the right to keep and bear arms means
little if there is no one from whom to acquire the
handgun or ammunition.

In the context of both rights,

the Supreme Court recognizes that some regulation of the
protected

activity

is

appropriate,

but

that

regulation may tread too heavily on the right.

other
Compare

Heller, 554 U.S. at 626 (“Like most rights, the right
secured by the Second Amendment is not unlimited.”) with
Casey, 505 U.S. at 876 (“Not all burdens on the right to
decide whether to terminate a pregnancy will be undue.”).
Finally, as to each right, there are many who believe, as
a matter of law, that the Supreme Court’s reasoning in
articulating

the

believe,

a

as

right
matter

was
of
167

incorrect
strong

and

moral

or

who

also

ethical

convictions, that the activity deserves no constitutional
protection.
With this parallelism in mind, the court poses the
hypothetical

that

suppose,

for

the

public

weal,

the

federal or state government were to implement a new
restriction on who may sell firearms and ammunition and
on the procedure they must employ in selling such goods
and that, further, only two vendors in the State of
Alabama were capable of complying with the restriction:
one in Huntsville and one in Tuscaloosa.

The defenders

of this law would be called upon to do a heck of a lot of
explaining--and rightly so in the face of an effect so
severe.

Similarly, in this case, so long as the Supreme

Court continues to recognize a constitutional right to
choose to terminate a pregnancy, any regulation that
would, in effect, restrict the exercise of that right to
only Huntsville and Tuscaloosa should be subject to the
same skepticism.

See Strange, --- F. Supp. 2d at ----,

2014 WL 1320158 at *13 (“the more severe an obstacle a

168

regulation creates, the more robust the government’s
justification must be”).
This court, as a trial court, should not be in the
business

of

picking

and

choosing

which

Supreme

Court-recognized right to enforce or in deciding whether
to enforce a right strongly or only somewhat, based on
this court’s independent assessment of the legal or moral
wisdom behind the acknowledgment of that right.
this

trial

court

may

have

the

license,

if

While
not

the

obligation, to contribute its proverbial “two cents” to
the discussion of whether the law ought to be different,
that voicing should in no way detract from this court’s
obligation to assure 100 % enforcement of that law as it
is.
Ala.

See Nelson v. Campbell, 286 F. Supp. 2d 1321 (M.D.
2003)

(Thompson,

J.)

(after

discussing

why

it

believed Eleventh Circuit law was incorrect, trial court
still followed and applied that law), aff'd, Nelson v.
Campbell, 347 F.3d 910 (11th Cir. 2003), rev'd, Nelson v.
Campbell, 541 U.S. 637 (2004).

169

Rather, like all trial courts, this court must be
guided by one overarching principle: the rule of law.
Just as the Supreme Court gave to the courts in the
trenches their marching orders in Heller and McDonald, it
gave us our marching orders in Casey as well

As the one

Justice who signed onto both sets of marching orders has
stated: “The power of a court, the prestige of a court,
the primacy of a court stand or fall by one measure and
one measure alone: the respect accorded its judgments.”
Anthony M. Kennedy, Judicial Ethics and the Rule of Law,
40 St. Louis U. L.J. 1067 (1996).

With this opinion

today, this court, as it forges along as a soldier in the
trenches carrying out orders from on high, puts its faith
in

this

statement

and

hopes

that,

in

resolving

the

constitutional question before it, it has been faithful
to the lofty command of the rule of law.

***
For all the reasons stated above, the court believes
that it should enter an immediate and initial judgment
170

declaring

that

the

staff-privileges

requirement

of

Alabama’s Women’s Health and Safety Act of 2013, 1975
Ala. Code § 26-23E-4(c), is unconstitutional as applied
to the plaintiffs in this case.
However, the court further believes that, aside from
the entry of this initial declaratory judgment, it should
solicit more input from the parties before fashioning and
tailoring final relief. See Powell v. McCormack, 395 U.S.
486, 499 (1969) (citations omitted) (“A court may grant
declaratory relief even though it chooses not to issue an
injunction or mandamus.

A declaratory judgment can then

be used as a predicate to further relief, including an
injunction.”).

In particular, the court would like input

as to whether ‘facial’ relief is warranted or necessary
in light of the findings of this court and the discussion
of such relief in the recent decision of the Fifth
Circuit in Jackson Women’s Health Organization; whether
any part of the statute at issue may constitutionally be
severed and take effect; and whether an injunction is
necessary and, if so, what the scope and nature of that
171

injunction

should

be.

In

addition,

the

court

will

shortly issue a supplemental opinion on the pending Fed.
R. Evid. 702 and 801 issues.

Since some substantive

issues have yet to be resolved, the temporary restraining
order will remain in effect until the resolution of these
issues.
An appropriate judgment will be entered.
DONE, this the 4th day of August, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE