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

Filing 259

OPINION. Signed by Honorable Judge Myron H. Thompson on 10/20/14. (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.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.
2:13cv405-MHT
(WO)

OPINION
On August 4, 2014, the court issued an opinion on the
merits of the plaintiffs= constitutional claim against the
staff-privileges requirement of Alabama=s Women=s Health
and Safety Act, 1975 Ala. Code ' 26-23E-4(c).

See Planned

Parenthood SE., Inc. v. Strange, --- F.Supp.2d ---, 2014
WL 3809403 (M.D. Ala. 2014).

Today, the court issues a

supplemental opinion explaining how it had resolved certain
evidentiary matters related to the August 4th opinion,

namely

the

admissibility

admissibility
of

certain

of

certain

expert

exhibits,

opinions,

and

the
the

credibility of the parties= witnesses.

I. Newspaper-Article Exhibits
Both

parties

had

introduced

as

exhibits

several

newspaper articles that purport to represent statements
made by Alabama legislators and the Governor regarding the
Women=s Health and Safety Act, among other issues. 1

The

State objected to the admission of all of the exhibits on
hearsay grounds.
In Brooks v. Miller, 158 F.3d 1230 (11th Cir. 1998),
the Court of Appeals held that hearsay rules apply to the
use of newspaper evidence in a bench trial for the purpose
of proving legislative intent: ANews articles often contain
multiple layers of hearsay and do not trump the sworn
testimony of eyewitnesses. In ascertaining legislative
purpose, a trial court operates under the same rules of

1.
44-48.

The exhibits are: PX 30, 31, 32, 72, and 80 and DX
2

evidence that control in any case.@

Id. at 1242.

Applying

those rules of evidence, the court sustained the State=s
objections in part: insofar as they were introduced to prove
that certain statements were or were not made by elected
officials, the articles are hearsay and were not admitted
for that purpose.
A newspaper report that an event occurred, if used to
prove that the event actually occurred, is classic hearsay.
It is an out-of-court statement used for the truth of the
matter asserted. See Fed. R. Evid. 801(c); Southern Wine
and Spirits of America, Inc. v. Div. of Alcohol and Tobacco
Control, 731 F.3d 799, 808 (8th Cir. 2013) (ANewspaper
articles are >rank hearsay=@). There is no general hearsay
exception for newspaper articles.

Hope for Families &

Comm. Service, Inc. v. Warren, 721 F. Supp. 2d 1079, 1178
n.114 (M.D. Ala. 2010) (Watkins, J.)(and cases cited).
Furthermore, newspaper articles rarely satisfy the
requirements of the residual-hearsay exception.

Federal

Rule of Evidence 807 allows for the admissibility of hearsay

3

not specifically covered by an enumerated hearsay exception
if:
A(1) the statement has equivalent
circumstantial
guarantees
of
trustworthiness;
A(2) it is offered as evidence of a
material fact;
A(3) it is more probative on the point for
which it is offered than any other
evidence that the proponent can obtain
through reasonable efforts; and
A(4) admitting it will best serve the
purposes of these rules and the interests
of justice.@
Fed. R. Evid. 807(a).
In this case, the plaintiffs argued that the court
should admit the newspaper articles under Rule 807 in light
of the absence of official legislative history.

However,

even if the articles in question satisfy the requirement
of trustworthiness and even if admitting them would serve
the interests of justice, the articles would not be
admissible because the plaintiffs could have introduced
other,

equally

statements:

They

probative
could

evidence

have
4

called

of

the

the

reported

legislators

themselves and examined them as to their statements; and,
alternatively, they could have elicited testimony from the
reporters or other witnesses who observed the statements
reflected in the newspaper articles.

See Larez v. City of

Los Angeles, 946 F.2d 630, 641-44 (9th Cir. 1991).
attempting
plaintiffs

to

introduce

denied

the

the
State

articles
the

instead,

opportunity

By
the
to

cross-examine the observers as to the accuracy of the
alleged statements.

The plaintiffs did not show that they

made reasonable efforts to obtain such testimony or that
it would have been futile to do so.
Therefore, the court did not admit the articles under
the residual-hearsay exception.

However, an out-of-court

statement is not hearsay if it is not offered to prove the
truth of the matter asserted. Here, the articles were
admitted for another purpose: for their effect on Alabama
readers.

See U.S. v. Trujillo, 561 Fed. Appx. 840, 842

(11th Cir. 2014).

Regardless of whether the elected

officials actually made the statements reported in these
articles, the court found them to be relevant to the climate
5

in which abortion providers live.

Therefore, the articles

were admitted for this limited purpose only.

II. Daubert Challenges
There were five challenges to expert witnesses based
on Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
The plaintiffs challenged the admissibility of Dr. James
C. Anderson=s opinions on credentialing, as well as his
supplemental expert report in its entirety.

They also

challenged Dr. Jeffrey Hayes=s deposition testimony in its
entirety.

Finally,

they

challenged

certain

opinion

statements made by Dr. Christopher Duggar.
The State of Alabama sought to exclude the testimony
of Margaret Moore in its entirety or, at the least, her
testimony about the supply of physicians who perform
abortions.

It also challenged the testimony of Dr. Lori

Freedman regarding the “stigma” that attaches to physicians
who perform abortions and its impact.

6

A. Daubert Standard
Federal Rule of Evidence 702 allows experts to offer
opinion testimony if:
A(a) the expert=s scientific, technical,
or other specialized knowledge will help
the trier of fact to understand the
evidence or to determine a fact in issue;
A(b) the testimony is based on sufficient
facts or data;
A(c) the testimony is the product of
reliable principles and methods; and
A(d) the expert has reliably applied the
principles and methods to the facts of the
case.@
Fed. R. Evid. 702.
Before an expert may testify, the court must play a
gate-keeping role to ensure that the testimony is reliable.
See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141
(1999); Daubert, 509 U.S. at 597.

Even if part of an

expert=s testimony is based on unreliable methodology, the
court should allow those parts that are reliable and
admissible.

United Fire and Cas. Co. v. Whirlpool Corp.,

704 F.3d 1338, 1342 (11th Cir. 2013).
7

B. Dr. James Anderson
The plaintiffs challenged the admissibility of two
aspects of Dr. Anderson=s opinion testimony.
challenged

his

opinions

First, they

concerning

the

hospital-credentialing process, including the reporting
requirements for the National Practitioner Data Bank.
Second, they challenged the admissibility of his entire
supplemental expert report, as well as particular matters
it discusses: namely, a statement that allegedly appeared
on a prior version of the National Abortion Federation
website recommending that women seeking abortion find a
doctor with admitting privileges at a local hospital; and
an email from an attorney for Planned Parenthood of Greater
Texas to the Texas Attorney General regarding certain
physicians obtaining admitting privileges.
As

to

Anderson’s

opinions

concerning

hospital

credentialing, the court rejected the plaintiffs’ argument
that Anderson is not qualified to discuss the nature and
benefits of such credentialing.

As a doctor who has

applied for and received privileges at hospitals, Anderson
8

is qualified by virtue of his experience to discuss the
nature of such privileges and his perception of their value.
However,

Anderson’s

opinions

about

the

reporting

requirements for the National Practitioner Data Bank do not
meet the Daubert standard.

At trial, Anderson admitted

that his knowledge of the Data Bank’s requirements came from
reviewing the Data Bank’s Guidebook a few days before he
testified and, before then, his knowledge of the Data Bank
was extremely limited.

Tr. VI 56:20-57:13.

The Guidebook

to the Databank has been admitted as DX 80.

Therefore,

Anderson=s opinions regarding the circumstances in which a
physician will be listed on the Data Bank provide no
assistance to the court beyond what already is stated within
the Guidebook itself, and were not admitted.
As to his supplemental report, Anderson testified that
the report had been drafted, in its entirety, by Vincent
Rue, a litigation consultant employed by the State.
VI-48:6-16.
had

not

Tr.

Anderson said that he had read the report but

independently

verified

its

contents

before

submitting the opinions contained in it as his own.
9

See

Tr. at VI-46:25-47:4 (Anderson had not visited a website
cited within the supplemental report until after submitting
it to court); VI-58:11-25 (Anderson did not verify the
information in an email forwarded to him by Rue that was
included in supplemental report).

Given that he neither

wrote nor checked the report before submitting it to the
court, the court found that his methodology is not reliable.
However, Anderson also testified at trial to the facts
and opinions contained in the supplemental report, after
having reviewed them.

The report essentially presented

two pieces of evidence: email from litigation about the
Texas staff-privileges requirement; and a purported former
version of the National Abortion Federation web page, as
recovered from an internet archive.
sent

pursuant

to

litigation

staff-privileges requirement.
who

had

initially

staff-privileges
privileges.
effect.

been

The Texas email was
about

that

State=s

It states that some doctors

out

requirement

of

compliance

were

able

with
to

the

secure

The court has admitted other evidence to this

See Texas

Litigation
10

Documents,

DX

82-84.

Similarly, the printout of the archived web page has been
admitted.

NAF Webpage Information, DX 73.

Therefore,

there was no harm in admitting Anderson=s factual statements
about these matters during live testimony.
Although these matters may be admissible, Anderson=s
court testimony about the supplemental report raised
serious

questions

apparent

that

about

Rue=s

his

credibility.

involvement

in

It

drafting

became
this

supplemental report reached beyond the typical involvement
of an attorney or litigation consultant in helping an expert
put

his

opinions

research.

into

words

or

providing

background

Anderson presented the supplemental report as

his own work by virtue of his signature at the bottom.
Furthermore, Anderson had shockingly little knowledge of
Rue=s background, credentials, or affiliations. Therefore,
the court found that his reliance on Rue was unfounded.
The court was struck by the flimsiness of Anderson’s
basis for reliance on Rue and by his failure to obtain basic
information

about

the

affiliations,

credentials,

or

employment of the consultant whose report he submitted as
11

his own. It can only describe how inexplicable it was by
reproducing the exchange at trial here:
ATHE COURT: Okay. Does this person have
any institutional affiliations that
you're aware of?
ATHE WITNESS: Not that I'm aware of.
ATHE COURT: Okay. Are you aware of his
employment other than assisting you with
writing I believe it was certain expert
reports? I -- correct me if I'm wrong.
ATHE WITNESS: No, I'm not.
ATHE COURT:
employment?

So

you

don't

know

his

ATHE WITNESS: I think that he's a
consultant in this arena, but that's all
I know.
ATHE COURT: Consultant. What do you mean?
ATHE WITNESS: Well, he's been a help in
doing
the
logistical
typing
and
researching information. So I know that
he's been involved in these cases and
works with other states.
ATHE COURT: Do you know exactly who he is?
ATHE WITNESS: No, not beyond just talking
to him.
ATHE COURT: Okay. Did he assist you in
writing your report?
12

ATHE WITNESS: He helps me. I write the
report; and then he helps me find
materials, do searches for, you know,
backup articles and that type of thing.
But I write the reports except for that
supplemental report.
ATHE COURT: Okay. How long -ATHE
WITNESS:
He
sent
me
that
information, and we just submitted that.
ATHE COURT: Right. How long have you known
him?
ATHE WITNESS: I -- I worked close with
him -- with him starting in 2011, but he
was involved in the case in 2002 in
Alaska, but I was working straight for the
Attorney General's Office in 2002 in
Alaska.
ATHE COURT: You say you don't know his
employment or any organizations that he
belongs to -ATHE WITNESS: No, I do not.
ATHE COURT: -- or is affiliated with?
ATHE WITNESS: I don't.
ATHE COURT: Why do you trust him?
ATHE WITNESS: Well, we go back to 2002,
and I've found him to be reliable, I mean.
So -- I mean talking to him on the phone,
I've just gotten to know him. And when I
13

write these reports, the things that he
gives me as far as typing assistance and
research has been good.
ATHE COURT: Okay. And you don't know
anything about what he does?
ATHE WITNESS: No, I don't, outside this.@
Tr. at VI-68:14-VI-70:7.
The court believes that there are three explanations
for Anderson=s willingness to sign his name to a report
written by a man about whom he knows so little, to do so
without even checking its contents, and then to represent
the opinions in it as his own: either he has extremely
impaired

judgment;

he

lied

to

the

court

as

to

his

familiarity with Rue; or he is so biased against abortion
that he would endorse any opinion that supports increased
regulation

on

abortion

providers.

Any

of

these

explanations severely undermines Anderson=s credibility as
an expert witness.
Whether Anderson lacks judgment, is dishonest, or is
profoundly colored by his bias, his decision to adopt Rue=s
supplemental report and submit it to the court without
14

verifying the validity of its contents deprives him of
credibility.

Therefore, the court did not find his

opinions credible, except where they were ‘statements
against interest,’ that is, statements which would tend to
support the plaintiffs= arguments.

To the extent that

Anderson was dishonest or unduly biased, these statements
would be least likely to be colored by that dishonesty or
bias.

To the extent that his judgment is questionable, the

court credited his opinions only where they confirmed the
statements or practices of other witnesses.

C. Dr. Jeffrey Hayes
Dr. Hayes is the president of the Alabama Association
of

Ambulatory

Surgical

Centers.

He

testified

deposition but did not offer live testimony at trial.

in
The

plaintiffs sought to exclude statements from Hayes about
the extent to which doctors at ambulatory surgical centers
in Alabama maintain staff privileges at local hospitals.
He testified, AI felt like that, you know, just based on
experience being in the business for a while that it seemed
15

like one of those pretty routine things that surgery centers
require their medical staffs to have hospital privileges.@
He also conducted an Ainformal

Hayes Dep. at 11:20-12:3.

poll@ of a subset of the ambulatory surgical centers in
Alabama.

Id. at 17:2; 21:5-7. Out of 18 centers that

responded to his poll, 17 required that their doctors
maintain staff privileges at a hospital (although his poll
did not specifically inquire about local privileges, id.
at 78:15-19).
The plaintiffs argued that the Ainformal poll@ was not
sufficiently scientific to meet Daubert standards and that
Hayes

did

not

adequately

explain

the

experience leads him to his conclusions.
clear

that

his

conclusions

were

ways

that

his

However, he made

based

on

A[g]eneral

observation and practice of being in the ASC industry since
1991.@

Id. at 74:21-22.

This explanation suffices to meet

the requirements of admissibility, particularly in the
context of a bench trial.

The plaintiffs= request to

exclude Hayes=s testimony was therefore denied.

16

The court credited Hayes=s testimony, as far as it goes.
However, for several reasons, the court did not give the
testimony much weight.
First,

Hayes’s

poll

methodology

is

entirely

unscientific and better understood as an extension of his
general experience and interactions in the field.

Fewer

than half of the ambulatory surgical centers in the state
(18 out of 42) responded to Hayes=s poll.

Furthermore, the

question posed in the poll is only tenuously relevant to
the dispute in this case.

As noted above, he asked only

whether the centers required privileges at any hospital,
not necessarily a hospital nearby or even in Alabama.

As

discussed in the August 4th opinion, all of the doctors at
the plaintiffs= clinics have (or, until recently, had)
hospital privileges; the problem is in obtaining privileges
at a local hospital.
Second, and more importantly, the fact that most
ambulatory surgical centers require their doctors to
maintain staff privileges at a local hospital has minimal
relevance to whether abortion clinics should require the
17

same of their doctors.

In terms of the difficulty of the

procedure and probability of complications, the testimony
at trial revealed that early-term abortions are more
similar to several procedures that are commonly conducted
in

doctors’

procedures.

offices,

such

as

dilation

and

curettage

In contrast, the procedures performed at

ambulatory surgical centers tend to be significantly more
complex and invasive than a surgical abortion, which
involves no cutting, or a medication abortion, which
amounts to administering pills.
Therefore, although Hayes=s testimony was admissible
and credible, the court assigned it very little weight.

D. Dr. Christopher Duggar
Dr. Duggar is a gynecologist in Montgomery.

The State

primarily introduced him as a fact witness regarding his
experience, as an on-call doctor in the Jackson Hospital
Emergency Room, treating a patient that had obtained an
abortion at plaintiff Reproductive Health Services in 2006.
However, he also made general statements about whether
18

physicians who performed abortions could secure admitting
privileges

at

Montgomery

covering-physician

hospitals

approach

taken

by

and

about

the

the

plaintiffs=

clinics.
The plaintiffs argued that Duggar’s statement about
whether

physicians

who

perform

abortions

could

get

admitting privileges does not satisfy Daubert standards.
They further objected to both of his general statements as
opinion testimony from a witness who was not disclosed as
an expert.

The court overruled both objections.

First, as a doctor at Jackson Hospital, Duggar has
experience

with

obtaining

admitting

privileges.

Furthermore, as a gynecologist and obstetrician who serves
on call in an emergency room, he has sufficient expertise
to offer opinions about the covering-physician approach to
continuity of care.

The court therefore rejected the

Daubert challenge.
While Duggar=s opinions may be admissible as expert
testimony, the court found them to be poorly founded.

He

opined that the clinics= doctors could easily obtain staff
19

privileges at Jackson Hospital.

However, the court heard

testimony from a representative of Jackson Hospital that
directly contradicted his opinion.

Robin Pate testified

that a doctor seeking staff privileges sufficient to
satisfy the statutory requirement would need to live
nearby, have a sufficient caseload at the facility during
the provisional period, and participate in the on-call
schedule.

Tr.

IV-160:21-IV-161:1.

at

IV-154:10-14,

IV-155:13-15,

The abortion clinics’ doctors can do

none of these things, by virtue of their residence outside
the State.
Duggar=s other opinion regarded the propriety of the
covering-physician

model

of

continuity

of

care.

He

stated, AIt does seem somewhat negligent to abandon the
patient off to another physician who is not currently
involved in that patient=s care.@

Duggar Dep. at 41:2-5.

However, Duggar admitted that he knew little about abortion
care: ATo be honest with you, I don=t know how they do
first-trimester abortions.

From what you hear, you know,

there’s

both

a

combination

of

20

surgical

and

medical

management, but that’s my limit of knowledge.@
24:15-20.

Id. at

In addition, he revealed a lack of knowledge

about the type and timing of complications stemming from
abortion procedures.

It became quite clear throughout the

trial that complications from abortion occur very rarely
during the procedure, and more commonly occur after a
patient has already gone home.
opining

that

a

Yet immediately after

covering-physician

approach

was

insufficient for treating complications, Duggar explained:
AThey’re having a complication during your procedure, and
now they’re being shipped off to another facility, another
doctor who is not involved in the case.@

Id. at 41:7-12.

His concern about a handoff mid-procedure is misplaced; it
is much more likely (and in the case of a medication
abortion, a near certainty) that a covering physician would
become involved a day or more after the abortion.

Given

Duggar’s lack of knowledge of the procedures for performing
abortions and complications stemming from them, the court
gave little weight to his opinions.
discredited

Duggar=s

opinion
21

Because the court

testimony,

the

State’s

nondisclosure was harmless, and the opinions were not
excluded on that ground.

Fed. R. Civ. P. 37(c)(1).

Other than his opinion testimony, the State offered
Duggar=s deposition testimony largely on the subject of his
complaint to the Alabama Department of Public Health about
Reproductive Health Services=s lack of a covering physician
in 2006.

On this topic, Duggar=s deposition largely

consists of his reading from the Department=s statement of
deficiencies, which has been separately introduced as DX
54.
The statement of deficiencies contains several hearsay
(but admitted) accounts of the circumstances under which
Duggar treated a clinic patient at the emergency room.

In

his communications with the Department, Duggar portrayed
the abortion clinic staff as displaying apathy and scorn
toward his wish to communicate with the physician who
performed the abortion, and the staff=s refusal to put him
in touch with her.

However, June Ayers, the clinic

administrator, testified to her own efforts during the
incident to put Duggar in communication with the initial
22

treating physician.

A[M]y response to the nurse that was

relaying [Duggar=s] message was to contact Dr. D and tell
her that she needed to contact Duggar at the emergency room.@
Tr. at I-77:9-11.

The court credited Ayers=s testimony

about her own actions, which revealed some effort to
establish communication between the doctors, but Ayers=s
testimony about her own actions did not resolve the
questions about what happened between Duggar, the physician
who performed the abortion, and the on-site clinic staff.
The Department of Public Health report provides only
muddled,

contradictory

communications.

evidence

regarding

these

This evidence was sufficient to show that

the clinic did not have a covering-physician relationship
sufficient to comply with state regulations in 2006, but
the court concluded that making any other findings from this
evidence would have been unwise.

Thus, the court credited

Duggar=s testimony only to the extent that it supports the
facts that Reproductive Health Services did not have a
meaningful covering-physician arrangement in place at the
time of the incident and that he therefore provided care
23

to one of the clinic=s patients who was experiencing a
complication.

E. Margaret Moore
The State challenged Moore=s testimony in its entirety
on two grounds: first, the State argued that Moore is not
an expert at all; and, second, it argued that her opinions
as to the effect of anti-abortion violence on clinics=
ability

to

recruit

doctors

are

too

speculative

to

constitute an admissible expert opinion.
Moore has an extensive background in law enforcement
and substantial knowledge and experience in the area of
violence against abortion providers.

She started her

career as an undercover officer in the New York Police
Department.

While serving in the police department, she

earned a bachelor=s degree in criminal justice.

She later

moved to the federal Bureau of Alcohol, Tobacco, and
Firearms, where she worked for 23 years.
at

the

Bureau,

she

oversaw

During her time

investigations

into

abortion-clinic bombings in several States, as well as the
24

first bombing of the World Trade Center.

After retiring

from the Bureau in 1999, she worked for over a decade as
director for law-enforcement operations at the Feminist
Majority Foundation, where she advised law-enforcement
agencies and abortion clinics on how best to prevent and
respond to violence against abortion clinics.

In that

role, she worked with the Department of Justice=s National
Abortion Providers Task Force, and briefed federal, state,
and

local

law

enforcement,

including

in

Alabama,

on

violence against abortion providers, and consulted with law
enforcement about specific acts of violence.
Moore=s experience solidly qualifies her as an expert
on law-enforcement matters and particularly on the nature
AExperts of all kinds tie

of anti-abortion violence.

observations to conclusions through the use of what Judge
Learned Hand called >general truths derived from ...
specialized
Carmichael,

experience.=@
526

U.S.

Kumho

137,

Tire

148

(1999)

Co.,

Ltd.

(quoting

v.

Hand,

Historical and Practical Considerations Regarding Expert
Testimony, 15 Harv. L. Rev. 40, 54 (1901)); see also Fed.
25

R.

Evid.

702

advisory

committee

note

(2000

amends.)

(ANothing in this amendment is intended to suggest that
experience alone--or experience in conjunction with other
knowledge, skill, training or education--may not provide
a sufficient foundation for expert testimony. To the
contrary, the text of Rule 702 expressly contemplates that
an expert may be qualified on the basis of experience. In
certain fields, experience is the predominant, if not sole,
basis for a great deal of reliable expert testimony.@).
Moore has an extensive background in tracking and analyzing
anti-abortion violence.

The fact that she has not produced

peer-reviewed research on the subject does not invalidate
her experiential expertise.
However, Moore=s expertise does not include abortion
clinics= hiring processes or the decision-making process of
local doctors.
included

To the extent that her opinion testimony

conclusions

about

how

potential

abortion

providers might react to the threat of violence in weighing
whether to perform abortions, those opinions are not
grounded in her expertise.

The court therefore excluded
26

paragraphs 34 and 35 of her expert report and all associated
live testimony.
The court found Moore to be credible in her description
of the many acts of violence that have been perpetrated
against abortion providers, particularly in Alabama.

The

court did note one area in which Moore held a bias, and
weighed her testimony appropriately.

Moore testified that

her perception of a Aclimate of fear@ for abortion providers
would be very hard to change and that she would consider
changing that belief only if all violence against abortion
providers were to cease.

See Tr. at VII-68:8-VII-69:3.

The court cannot endorse this view.

Thus, the court was

careful not to rely on Moore=s generalized opinion for its
finding of the existence of a significant risk of violence
and fear of violence among abortion providers.

However,

the record contained ample evidence of such violence and
fear, in the form of the specific facts to which Moore
testified and the testimony of the abortion providers, such
that it is clear that doctors who provide abortions are in
fact plagued by the fear of violence on a regular basis and
27

that this fear plays a part in the difficulty in recruiting
new doctors.

F. Dr. Lori Freedman
Dr. Freedman testified for the plaintiffs about the
stigma against abortion providers and how this stigma
creates obstacles to finding doctors willing to perform
abortions.

The State challenged Freedman=s testimony in

its entirety on two grounds: first, it argued that her
qualitative--as opposed to quantitative--research methods
are

insufficiently

rigorous

to

form

the

basis

for

admissible expert opinions; and, second, it argued that the
history of abortion clinics in Alabama contradicts her
findings.
Freedman earned a Ph.D. in sociology and currently
serves on the research faculty of the University of
California-San Francisco, one of the nation’s premier
medical schools.

Some of the qualitative research on which

she based her expert testimony also formed the basis for
her book, which was published by Vanderbilt University
28

Press, a peer-reviewed press.

In other words, other

medical sociologists found her research to be sufficiently
rigorous that her book should be published.

She has also

published several peer-reviewed articles on her subsequent
qualitative research.

AThe fact

See Freedman CV, PX 52.

of publication (or lack thereof) in a peer reviewed journal
[]

will

be

a

relevant,

though

not

dispositive,

consideration in assessing the scientific validity of a
particular technique or methodology on which an opinion is
premised.@
in

Daubert, 509 U.S. at 594.

publishing

in

peer-reviewed

Freedman’s success

journals

and

at

a

peer-reviewed press strongly supports the validity of her
qualitative method of research.
In

addition,

in

her

testimony,

Freedman

clearly

articulated the way that qualitative methodologies such as
hers are both legitimate and important parts of her field:
A[B]oth [qualitative and quantitative
research methods] are used in the medical
and social scientific research world. And
as I said, quantitative research is
trying to understand sort of prevalence
or associations of particular social
factors. And they tend to test hypothesis
29

or
hypotheses
using
quantitative
research, meaning you know what you’re
trying
to
prove
or
disprove.
In
qualitative research, we approach a
research question with -- without a
predetermined answer. And we’re trying to
understand why something is happening
that we’re seeing in -- often in
quantitative research, why something is
common, and trying to understand maybe
the range of experience within that
particular question.@
Tr. II-137:9-20.
Freedman testified that quantitative research had
shown that doctors who are trained in abortion often do not
perform abortions and that her own qualitative research
sought to explain why that was so.

Her research was

developed over the course of extended interviews, which she
analyzed using text-analysis software in order to identify
patterns and themes.

Once she identified themes, she

returned to the original source material in order to define
them more precisely.
This methodology was sufficient, both in its data and
its approach, to assist the court in its fact-finding.

In

particular, Freedman=s testimony was useful to give the
30

court a framework, particularly the ‘cautionary tale’
frame, within which it could understand the experiences
described by fact witnesses including June Ayers, Dalton
Johnson, Dr. Roe, and Dr. P1, as they described their
interactions with potential abortion providers and other
healthcare providers.
The State=s second argument, that Freedman=s research
conflicts with the actual experience of abortion providers
in Alabama, went to credibility and weight, rather than
admissibility.
UK

Ltd.,

326

See Quiet Tech. DC-8, Inc. v. Hurel-Dubois
F.3d

1333,

1341

(11th

Cir.

2003)

(distinguishing between admissibility and persuasiveness
of expert opinion). Furthermore, it misrepresented the
experience of doctors in this State.
The State argued that the experience of doctors at the
Tuscaloosa and Huntsville clinics, who overcame societal
and

professional

challenges

to

continue

abortions, refutes Freedman’s research.

performing

In Tuscaloosa,

Dr. Payne=s partners objected to his abortion practice, so
he left the partnership and struck out on his own.
31

In

Huntsville, Dr. H1=s mere association with an abortion
clinic was sufficient to trigger anti-abortion harassment
that wiped out her entire obstetric practice.
doctors’

experiences

reflect

the

very

high

Both

level

of

commitment to providing abortion that a doctor must have
in order to provide abortions in Alabama, and Dr. H1's
experience illustrates the strong negative professional
consequences from association with abortion that Freedman
described.

The State’s argument that the perseverance of

these doctors illustrates a lack of stigma is facile and
ignores the testimony about the difficulty the clinics have
faced

recruiting

other

doctors.

See,

e.g.,

Tr.

at

II-62:21-II-65:13 (describing the difficulty in finding a
covering-physician for the Huntsville clinic and Dr. H1=s
hesitation because of the effect protests targeted at
abortion providers could have on her private practice);
Buchanan Dep. at 131:7-13 (physicians with local-admitting
privileges in Birmingham refused to perform abortions
because Athey could not risk their practices by providing
abortion services for us.

They have practices, and their
32

family--they and their family rely on that livelihood, and
they

couldn=t

come

work

for

[Planned

Parenthood

Birmingham].@)
For these reasons, the court found Freedman=s testimony
to be admissible, credible, and helpful in explaining why
doctors would be hesitant to begin performing abortions in
Alabama.

III. Additional Credibility Determinations
In order to further clarify the court=s reasoning in its
prior opinion, the court will briefly review the other
witnesses who testified at trial or by deposition and
explain the extent to which the court did or did not credit
their testimony.

A. Medical Expert Witnesses
In addition to the witnesses discussed above, the
parties

introduced

three

additional

witnesses

with

expertise in the practice of medicine, including abortion
procedures and treatment of complications.
33

The plaintiffs

presented Dr. Paul Fine, and the State presented Drs.
Geoffrey Keyes and John Thorp, Jr.
Dr. Fine, the plaintiff=s expert, is an obstetrician and
gynecologist who serves as the medical director of Planned
Parenthood Gulf Coast. 2

He testified about early-term

abortion procedures, hospital credentialing, and his view
of proper care for complications from abortion.

Fine had

a clear position on abortion rights and the necessity of
laws

such

as

Alabama=s

staff-privileges

requirement.

Nonetheless, having viewed and listened his testimony, the
court was convinced that he testified honestly based on his
beliefs about patient care, which he puts into practice at
Planned Parenthood Gulf Coast.

As a result, the court

credited his testimony, except where specifically noted in
the main opinion.
Dr. Keyes, an expert for the State, is the president
of the American Association for the Accreditation of

2. Planned Parenthood Gulf Coast and Planned
Parenthood Southeast, Inc., are separate organizations,
although both are affiliated with the Planned Parenthood
Federation of America.
34

Ambulatory

Surgery

organization

for

Facilities,

ambulatory

a

surgical

credentialing
centers.

He

testified about standards for continuity of care that an
ambulatory surgical center must meet in order to obtain
credentialing from his organization.

In large part, the

court found Keyes=s testimony to be credible and reliable,
but at some points, cross-examination revealed that his
initial

testimony

about

the

organization was inaccurate.

requirements

of

his

The court therefore credited

Keyes, except where his testimony conflicted with the
actual standards of his organization.
Dr. Thorp, the other medical expert for the State, is
an obstetrician and gynecologist who practices in North
Carolina.

He testified about his research on complication

rates from abortion and his opinions on the ideal form of
continuity of care and on hospital credentialing.
In his testimony about complication rates, Thorp
displayed a disturbing apathy toward the accuracy of his
testimony.

One example is particularly notable.

In his

expert report, he opined that the low-end estimate of the
35

complication rate was two percent, based on an article that
he had written with the same claim.

Tr. VIII at 163:1-20.

In fact, the range supported by his article is 0.2 %.

Id.

Although he was confronted with the error during his
November 2013 deposition, he submitted a declaration to the
court in April 2014 that again claimed the two percent
figure.

Id.

In addition, other choices that he made in

developing his estimates seemed to be driven more by a bias
against abortion and a desire to inflate complication rates
than by a true desire to reach an accurate estimate of the
dangerousness of abortion procedures.

The court therefore

discredited Thorp=s testimony on complication rates from
abortion.
With

regard

to

Thorp=s

testimony

about

proper

continuity of care, the court found that his testimony
credibly reflected his own opinions about how doctors who
perform abortions should provide continuity of care.
However, even though the procedures he performs at his own
office may, like abortion, in extremely rare cases cause
complications that require post-procedure hysterectomy or
36

laparatomy, he himself does not maintain staff privileges
at a local hospital that would allow him to perform
gynecological

surgery

for

his

patients.

Tr.

VIII

193:18-194:7.

This inconsistency between what he says and

what he does led the court to give his opinions extremely
limited weight.

B. Social Science Expert Witnesses
The parties introduced three additional experts in
social and statistical sciences, largely to address the
effects that the staff-privileges requirement would have
on women.

The plaintiffs presented Drs. Stanley Henshaw

and Sheila Katz, and the State presented Dr. Peter R.
Uhlenberg.
Dr. Henshaw is a sociologist and epidemiologist.

For

the last 35 years, he has been affiliated in some manner
with

the

Guttmacher

Institute,

an

organization

that

advocates for abortion rights and access to contraception.
At trial, he presented a number of studies of the effects
of distance and cost on women=s likelihood of obtaining an
37

abortion and on delays in obtaining abortion.

Henshaw has

a bias against abortion restrictions and regulations.
Nonetheless, having viewed the witness and listened to his
testimony, the court found that he testified credibly and
helpfully about the nature of the various studies and their
strengths and limitations.

For these reasons, the court

credited Henshaw=s testimony and gave it considerable
weight.
Dr.

Katz

is

a

sociologist

who

is

currently

Assistant Professor at Sonoma State University.

an
She

testified about certain demographic facts about poor women
in general, the relationship between abortion and poverty,
and the ways in which additional travel would hinder women
who seek abortions.

The court found her testimony to be

credible and helpful in understanding the effects of the
law on women seeking abortions.
Dr. Uhlenberg is a demographer and Professor of
Sociology at the University of North Carolina at Chapel
Hill.

He testified about various flaws that he perceived

in the studies on which Henshaw relied and the statistics
38

which Katz presented, arguing that additional travel
distance

would

not

impede

women

who

seek

abortions.

However, Uhlenberg’s opinion was based on news reports on
abortion rates, unsophisticated comparisons of abortion
rates with the number of abortion providers in Alabama, and
statistical analyses with serious methodological flaws.
For these reasons, the court did not credit Uhlenberg=s
testimony.

C. Fact Witnesses
The plaintiffs presented testimony from their own
staff and from some of the doctors who provide abortions
at their clinics, as well as from the administrators of the
other two abortion clinics in the State.

Each of these

witnesses has an economic and/or ideological interest in
the outcome of the litigation, and the court accounted for
such bias in considering each witness=s testimony.

Having

viewed the witnesses and listened to their testimony, the
court credited the witnesses= testimony.

The court also

credited the expert testimony of Dr. Roe, who performs
39

abortions

at

plaintiff

Planned

Parenthood

Southeast,

Inc.’s Birmingham clinic, for reasons similar to those
given above for Dr. Fine.
The plaintiffs further introduced testimony from staff
at

hospitals

Having

in

viewed

Montgomery,

the

witnesses

Birmingham,
and

and

listened

Mobile.

to

their

testimony, the court credited the testimony of those
witnesses.
The State introduced testimony from the defendant
State Health Officer, Dr. Donald Williamson, as well as
other state officials.
listened

to

their

Having viewed the witnesses and

testimony,

the

court

credited

testimony of those witnesses.
DONE, this the 20th day of October, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

the