Planned Parenthood Southeast, Inc. et al v. Bentley et al
Filing
275
OPINION. Signed by Honorable Judge Myron H. Thompson on 3/25/16. (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
Previously,
statute
that
this
requires
court
found
abortion
that
an
providers
Alabama
to
obtain
staff privileges at a local hospital unconstitutionally
restricts
Alabama.
the
rights
Planned
(Strange III),
(M.D. Ala. 2014)
Parenthood
Se.,
of
women
Parenthood
33
Se.,
3d
(Thompson, J.);
see
v.
Strange
abortions
Inc.
Supp.
Inc.
F.
seeking
v.
Strange
1330,
also
in
1378
Planned
(Strange II),
9
F.
Supp. 3d 1272 (M.D. Ala. 2014) (Thompson, J.) (summary
judgment
opinion
application
of
laying
the
the
foundation
undue-burden
test
in
for
this
the
case);
Planned Parenthood Se., Inc. v. Bentley (Strange I),
951 F. Supp. 2d 1280 (M.D. Ala. 2013) (Thompson, J.)
(temporarily
enjoining
staff-privileges
the
State
requirement).
from
The
enforcing
court
determine the appropriate legal remedy.
must
the
now
First, it will
examine whether, as the State argues, a phrase may be
severed from within the provision, leaving a revised
statute to take effect.
court
will
determine
relief is appropriate.
The answer is no.
whether
facial
or
Next, the
as-applied
The answer is facial relief.
Finally, the court will determine whether injunctive
relief is necessary or declaratory relief will suffice.
The answer is a declaration is adequate.
I.
SEVERABILITY
The Women’s Health and Safety Act contains a host
of
provisions
regulating
2
the
administration
of
abortions in Alabama.
into effect.
Most of the law has already gone
The text of section 4 of the Act reads as
follows:
“(a) Only a physician may perform an
abortion.
“(b) During and after an abortion
procedure performed at an abortion or
reproductive
health
center,
a
physician must remain on the premises
until all patients are discharged.
The discharge order must be signed by
the physician.
Prior to discharge
from the facility, the patient shall
be
provided
with
the
name
and
telephone number of the physician who
will provide care in the event of
complications.
“(c) Every physician referenced in
this
section
shall
have
staff
privileges at an acute care hospital
within the same standard metropolitan
statistical area as the facility is
located that permit him or her to
perform
dilation
and
curettage,
laparotomy procedures, hysterectomy,
and any other procedures reasonably
necessary to treat abortion-related
complications.”
3
2013
Ala.
§ 26-23E-4.
Acts
1
79
The
§ 4,
Act
codified
imposes
at
1975
criminal
Ala.
Code
liability
on
administrators of abortion clinics for violating the
provision.
See 2013 Ala. Acts 79 § 12(c), codified at
1975 Ala. Code § 26-23E-12(c).
Subsection
4(c)
of
the
Act,
which
imposes
a
staff-privileges requirement on physicians who perform
abortions in the State, is the only part of the law at
issue
here,
and
it
has
been
disposition of this litigation.
this
court
found
that
stayed
pending
the
In a previous opinion,
the
subsection
was
unconstitutional as applied to the plaintiffs in this
case.
Strange III, 33 F. Supp. 3d at 1380.
The court
explained that the enforcement of the subsection would
1. “The phrase ‘staff privileges,’ also referred to
as ‘admitting privileges,’ describes a relationship
between an individual doctor and a hospital which
allows that doctor to admit patients to a hospital and
to perform procedures at the hospital. ... Doctors
receive staff privileges after an application process.
Hospitals
generally
delineate
prerequisites
and
procedures for that application in their bylaws, but
they retain discretion whether to grant privileges.”
Strange II, 9 F. Supp. 3d at 1276.
4
unduly
burden
women
seeking
abortions
in
Alabama
by
having the effect of closing the only abortion clinics
in Alabama’s three largest cities: Montgomery, Mobile,
and Birmingham; these closures would impose significant
“financial difficulties and psychological obstacles” on
women forced to travel increased distances to obtain an
abortion
and
impose
“severe
and
even,
for
some ..., insurmountable obstacles” on women who would
seek to obtain an abortion at those clinics.
Id. at
1363.
Prior to issuing an opinion outlining its final
relief, the court solicited the views of the parties on
whether
subsection
4(c)
may
constitutional infirmity.
subsection
remainder
is
of
severable
the
be
severed
to
cure
the
The parties agree that the
in
statute.
its
entirety
However,
they
from
the
dispute
whether certain words can be struck from it, leaving a
revised provision in effect.
subsection
contains
three
The State argues that the
parts,
severable from the others.
5
each
of
which
is
Those are that a doctor
must
hold
staff
privileges
(1)
at
an
acute-care hospital (2) within the same metropolitan
statistical area (3) that enable him or her to perform
certain procedures.
has
found
The State contends that the court
constitutional
requirement
that
staff
infirmity
privileges
only
be
as
to
held
the
locally.
Therefore, the State asks the court to strike only the
words requiring that the privileges be held within the
same
metropolitan
statistical
area
as
the
abortion
facility, leaving the remainder of the subsection to go
into effect.
The plaintiffs respond that no portion of
the subsection is severable.
The
State’s
request
would
require
the
court
to
excise the words “within the same standard metropolitan
statistical area as the facility is located” from the
midst of the single sentence that comprises subsection
4(c).
After
striking
this
language,
the
subsection
would read as follows:
“Every physician referenced in this
section shall have staff privileges at
an acute care hospital that permit him
or
her
to
perform
dilation
and
6
curettage,
laparotomy
procedures,
hysterectomy, and any other procedures
reasonably
necessary
to
treat
abortion-related complications.”
The
court
subsection
rejects
4(c)’s
the
single
State’s
sentence
is
argument
that
divisible
into
three distinct fragments, each operating independently
of
the
others.
Rather,
as
explained
below,
the
requirement that the physician have staff privileges at
a
local
hospital
subsection.
is
an
essential
element
of
the
Without it, the revised subsection would
take on a strikingly different meaning.
A.
Guiding Principles of Severability
Severability is a matter of state law, Leavitt v.
Jane L., 518 U.S. 137, 139 (1996), and the Alabama
Supreme Court has developed rules to guide courts in
deciding
whether
legislative
act.
to
sever
Under
parts
Alabama
from
law,
a
larger
“[t]he
guiding
star in severability cases is legislative intent.” Beck
v. State, 396 So. 2d 645, 658 (Ala. 1980).
The
statute
court
can
be
must
therefore
divided
into
7
determine
parts
that
whether
are
the
“wholly
independent of each other,” or whether “the legislature
intended [the invalid and remaining parts] as a whole.”
King v. Campbell, 988 So. 2d 969, 982 (Ala. 2007).
If
the remaining portion of an act is “competent to stand
without the invalid [portion],” id. at 983, the court
may save the act by severing the offending portion.
If, by contrast, the various parts of a statute are “so
mutually connected with and dependent on each other, as
conditions, considerations, or compensations for each
other
as
to
warrant
a
belief
that
the
legislature
intended them as a whole, and that, if all could not be
carried into effect, the legislature would not pass the
residue independently ... all the provisions which are
thus
dependent,
invalid
part]
conditional,
must
fall
with
or
connected
them.”
Id.
[to
at
the
982.
Evaluating the importance of the invalid portion of the
statute within the legislature’s “general plan” for the
law will assist in this determination.
Id. (explaining
that an invalid portion of a law should be severed to
save
the
remaining
provisions
8
“unless
the
invalid
portion
is
so
important
to
the
general
plan
and
operation of the law in its entirety as reasonably to
lead to the conclusion that it would not have been
adopted if the legislature had perceived the invalidity
of the part so held to be unconstitutional”).
court
will
now
apply
these
principles
to
The
determine
whether the metropolitan-area requirement is severable.
B.
This
Alabama
4(c).
Evidence of Legislative Intent
court
has
Legislature
not
previously
intended
in
decided
enacting
what
the
subsection
As in its prior opinion, the court will assume
for purposes of the current analysis that the purported
legislative
actual
purposes
legislative
argued
intent
by
the
behind
State
the
were
the
subsection.
Throughout the course of this litigation, the State
has contended that the legislature had two purposes in
enacting
subsection
4(c).
First,
the
State
has
asserted that the legislature’s primary goal for the
subsection was ensuring continuity of care, and that
9
“the
requirement
furthers
‘continuity
of
care’
by
improving care for women who experience complications
and
fostering
improved
follow-up
Strange III, 33 F. Supp. 3d at 1363.
care
in
general.”
Second, the State
has argued “that staff privileges serve a credentialing
function, both as an initial screening mechanism and by
providing ongoing review of physician quality.”
As
explained
above,
the
State
Id.
proposes
that
subsection 4(c) be modified to read as follows:
“Every physician referenced in this
section shall have staff privileges at
an acute care hospital that permit him
or
her
to
perform
dilation
and
curettage,
laparotomy
procedures,
hysterectomy, and any other procedures
reasonably
necessary
to
treat
abortion-related complications.”
The State thus asks this court to interpret the revised
subsection
abortions
as
in
requiring
Alabama
that
have
physicians
staff
who
privileges
perform
at
an
acute-care hospital “somewhere” that would allow them
to handle the specified complications from abortions.
Defs.’ Br. Appropriate Final Relief (doc. no. 256) at
11 (emphasis in original).
10
The
nothing
proposed
to
modification,
ensure
continuity
however,
of
care,
would
as
do
doctors
governed by the revised law could have staff privileges
at a hospital anywhere in the world.
Under the State’s
proposed revision, a physician performing abortions in
Alabama
could
comply
with
subsection
4(c)
by
maintaining staff privileges at a hospital in Alaska,
with
the
ability
to
complication-related
admit
patients
procedures
at
hospital over 3,000 miles away.
and
an
perform
acute-care
As a practical matter,
such a requirement would not advance continuity of care
for women receiving abortions in Alabama.
absent
the
metropolitan-area
Therefore,
requirement,
the
subsection could conceivably advance only the State’s
purported interest in ‘credentialing.’
below,
however,
the
proposed
As explained
revision
would
be
inconsistent with even this secondary justification.
The court previously found that credentialing by a
local
hospital
would
provide
only
“negligible”
and
“speculative” benefit, as compared to existing law and
11
current Department of Public Health oversight.
Strange
III, 33 F. Supp. 3d at 1373, 1378; see id. at 1366-67
(describing
testimony
Officer
“that
adequate
and
health”
the
State’s
preexisting
effective
and,
considered
the
by
job
therefore,
imposing
a
of
that
Chief
Medical
regulations
protecting
did
an
public
Department,
the
the
having
staff-privileges
requirement
prior to the enactment of subsection 4(c), had decided
the requirement “was unnecessary”).
However, absent
the metropolitan-area requirement, even that marginal
benefit
would
eliminated.
the
be
considerably
weakened,
if
Under the metropolitan-area requirement,
credentialing
function
of
the
statute
would
least be tied to local professional standards.
Alabama
not
hospitals
Department
of
are
Public
regulated
Health,
so
by
the
the
State
at
All
State’s
would
maintain--at least theoretically--some control over the
scrutiny
revision,
of
in
physician
contrast,
qualifications.
provides
no
The
limits
location of the credentialing hospital.
12
proposed
on
the
Without the
requirement that the hospital be local, the law would
rely on regulatory processes of which the legislature
neither
knows
nor
approves.
metropolitan-area
requirement,
merely
modifier
void
requirement.
tacitly
a
By
the
of
severing
court
the
the
would
not
staff-privileges
Instead, excising the requirement would
insert
a
new
modifier
in
its
place:
staff
privileges may be obtained anywhere in the world.
make
such
a
modification
exceeds
the
To
institutional
competence of the court, and would constitute a “far
more serious invasion of the legislative domain” than
the
court
is
authorized
to
undertake.
Ayotte
v.
Planned Parenthood of N. New England, 546 U.S. 320, 330
(2006); see also id. at 329.
Such a modification would also be contrary to the
legislature’s
purported
intent.
The
State
itself
admitted as much at trial, when it was asked by the
court
whether
credentialing,
there
as
was
opposed
a
to
benefit
credentialing
hospital located in a different city.
13
to
local
from
a
In the words of
the
State’s
counsel,
“there
are
local
community
standards ... that physicians expect similar physicians
within their community to follow. ... If you were to,
for example, sever the provision of this requirement
that requires the hospital privileges to be within 30
miles of a facility, then you would allow someone with
hospital
privileges
at
conceivably
And
do
not
anywhere.
we
know
any
what
hospital
kinds
of
requirements that that unknown hospital in an unknown
location might impose on a doctor to get privileges.”
Tr. Vol. X at 103:19-104:8 (emphasis added).
Indeed,
under
located
the
outside
radically
of
State’s
the
proposal,
United
different
even
States,
conception
a
hospital
that
of
the
might
have
standard
a
of
practice, could ‘credential’ an Alabama physician who
performs
abortions.
If
the
metropolitan-area
requirement were severed from it, subsection 4(c) would
lose the substantive value the legislature purportedly
sought in enacting it.
14
C.
The Severability Clauses
The State nonetheless points to the existence of an
applicable
severability
metropolitan-area
clause
requirement
remainder of the subsection.
is
to
argue
severable
that
the
from
the
All Alabama statutes are
subject to a general severability clause:
“If any provision of this Code or any
amendment
hereto,
or
any
other
statute, or the application thereof to
any person, thing or circumstances, is
held invalid by a court of competent
jurisdiction, such invalidity shall
not
affect
the
provisions
or
application of this Code or such
amendment or statute that can be given
effect without the invalid provisions
or application, and to this end, the
provisions of this Code and such
amendments and statutes are declared
to be severable.”
1975 Ala. Code § 1-1-16.
As the Alabama Supreme Court
has explained, “We regard § 1-1-16 as an expression of
legislative intent regarding the general power and duty
of the judiciary to sever and save statutory provisions
not
tainted
by
the
unconstitutionality
provisions in the same statute.”
other
State ex rel. Pryor
v. Martin, 735 So. 2d 1156, 1159 (Ala. 1999).
15
of
Additionally, the Women’s Health and Safety Act, as
it was passed, contained its own severability clause:
“Any provision of this act held to be
invalid or unenforceable by its terms,
or as applied to any person or
circumstance, shall be construed so as
to
give
it
the
maximum
effect
permitted by law, unless such holding
shall be one of utter invalidity or
unenforceability, in which event such
provision shall be deemed severable
herefrom and shall not affect the
remainder hereof or the application of
such provision to other persons not
similarly
situated
or
to
other,
dissimilar circumstances.”
2013 Ala. Acts 79 § 18.
provides
“persuasive
intended
the
valid
While a severability clause
authority
portion
that
[of
a
the
law]
Legislature
to
survive,”
Beck, 396 So. 2d at 658, the existence of the clause
does
not
end
the
court’s
inquiry.
"[A]
separability
clause should be given effect, where possible, to save
legislative
enactment, ... that
portion
not
portions
is
that
so
such
is,
intertwined
remaining
if
with
portions
the
the
are
invalid
remaining
rendered
meaningless by the extirpation, in which event it must
be assumed that the legislature would not have passed
16
the
enactment
Walker
thus
County,
rendered
199
So.
2d
meaningless."
854,
860
Allen
(Ala. 1967)
v.
860
(emphasis added); see also Ala. State Fed’n of Labor v.
McAdory, 18 So. 2d 810, 830 (Ala. 1944) (recognizing
that
such
a
clause
“should
be
given
effect,
where
possible, to save the Act,” but emphasizing that it is
“well understood that a clause of this character may
not be invoked to save the Act when in contravention of
the
obvious
clause
legislative
“does
not
intent”).
authorize
the
A
court
severability
to
give
the
statute an effect altogether different from that sought
by the measure viewed as a whole.”
Coal Co., 298 U.S. 238, 313 (1936).
severability
clause
inexorable command.”
acts
as
an
“aid
Carter v. Carter
Ultimately, a
merely;
not
an
Bell v. Maryland, 378 U.S. 226,
240 (1964).
The court is especially wary of severability in a
situation, such as this one, in which it is asked to
sever particular words from within a single sentence.
This
sort
of
alteration
is
17
particularly
likely
to
distort legislative intent, as it could dramatically
alter
a
statute’s
meaning.
As
the
United
States
Supreme Court has explained, “Along with punctuation,
text consists of words living ‘a communal existence,’
in Judge Learned Hand’s phrase, the meaning of each
word informing the others and all in their aggregate
taking their purport from the setting in which they are
used.”
U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of
Am., Inc., 508 U.S. 439, 454-55 (1993).
Thus, for
example, “the sentence ‘there shall never be more than
one hundred female students enrolled at the U.S. Naval
Academy’ is unconstitutional gender discrimination, but
a court cannot remedy it by striking out only the word
‘female.’
That
would
leave
us
with
a
totally
accidental meaning, limiting the size of the Academy to
100 students, which is absurd in light of the statute’s
purpose.”
Conditionality,
Eric
64
S.
Fish,
Emory
L.J.
Severability
1293,
1338
as
(2015).
Courts may not save a statute or provision by excising
a word or phrase from the statute if to do so would
18
leave
a
intent.
law
that
strays
far
from
the
legislature’s
“[I]f a clause which violates the Constitution
cannot be rejected without causing the act to enact
what the legislature never intended the whole statute
must fall.”
Ala. Pub. Serv. Comm’n v. AAA Motor Lines,
Inc., 131 So. 2d 172, 180 (Ala. 1961).
Indeed,
where
Alabama
courts
have
struck
mere
clauses or phrases from within a statute, they have
first carefully considered whether the severance would
disturb the law’s intended effect.
See, e.g., City of
Birmingham v. Smith, 507 So. 2d 1312, 1316 (Ala. 1987)
(severing an unconstitutional voting limitation which
was
“[b]uried
in
one
section”
and
constituted
a
“textually minor provision”); Beck, 396 So. 2d at 657
(severing an unconstitutional 14-word preclusion clause
from Alabama’s death-penalty statute because the court
found that “the only reason the legislature put the
‘preclusion clause’ in the statute was the erroneous
belief that the Constitution of the United States ...
required it”); Springer v. State ex rel. Williams, 157
19
So.
219,
221
(Ala.
1934)
(severing
a
phrase
that
unconstitutionally fixed a county official’s start date
within
the
term
of
his
predecessor,
because
the
“dominant, major purpose of the act” was to change the
mode of selecting the official, and not to set the
start date for the term).
In these cases, the excision
of words left an otherwise functional statute that was
consistent with legislative intent; the meaning of the
remaining
statutory
text
was
not
changed
by
the
modification.
The
modification
the
State
proposes
is
quite
different from the modifications considered above.
metropolitan-area
requirement
is
neither
The
“buried”
in
the subsection nor “textually minor” to the operation
of the law.
Birmingham, 507 So. 2d at 1316.
a
to
physician
obtain
staff
privileges
at
Requiring
a
local
hospital is the only way the provision could be said to
promote ‘continuity of care,’ which the State contends
was the central justification for the subsection; the
absence
of
the
requirement
20
would
also
undermine
the
State’s
asserted
interest
in
credentialing.
When
severance would cut the heart out of the legislature’s
intent for a provision, the presumption raised by the
severability clause is swiftly rebutted.
The
grammatical
structure
of
subsection
provides further support for this conclusion.
legislature
sought
to
enact
a
4(c)
Had the
staff-privileges
requirement comprised of several stand-alone elements,
it could have easily made that clear: for example, it
could
have
numbered
between
formally
clauses,
the
Judicial
Drafting
or
parts.
Ctr.,
divided
even
See
Statutory
Conventions:
the
inserted
M.
subsection
a
Douglass
Structure
A
set
Primer
commas
Bellis,
and
for
of
into
Fed.
Legislative
Judges
8-9
(Fed. Judicial Ctr. 2008) (explaining that sections or
subsections may be further divided in order to describe
distinct ideas or ‘sub-ideas’); see also United States
v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989)
(analyzing
a
statute’s
grammatical
structure
and
finding that because a particular phrase was “set aside
21
by commas,” it stood “independent of the language that
follow[ed]”).
single
idea
Instead,
via
one
subsection
4(c)
uninterrupted
manifests
sentence.
a
This
structure, on its face, counsels against the intrusive
modification the State proposes.
Because
eliminating
the
metropolitan-area
requirement would significantly change the meaning of
the
provision,
cannot
be
the
saved
court
by
holds
severing
that
4(c)
requirement
the
subsection
and
allowing the remainder to stand alone.
Further, while
severability is ultimately a matter of state law, it is
worth
noting
federal
law,
authorized
to
dramatically.
that
this
which
conclusion
makes
rewrite
clear
a
finds
that
support
courts
in
not
directive
legislative
are
so
See United States v. Stevens, 559 U.S.
460, 481 (2010) (“We will not rewrite a law to conform
it to constitutional requirements, for doing so would
constitute
a
serious
invasion
of
the
legislative
domain, and sharply diminish Congress’s incentive to
draft
a
narrowly
tailored
22
law
in
the
first
place.”
(internal
Ayotte,
citations
546
U.S.
and
at
quotation
329
marks
(“[M]indful
omitted));
that
[its]
constitutional mandate and institutional competence are
limited,
[the
rewriting
state
requirements.”
Court]
law
to
restrain[s]
conform
(internal
it
quotation
[itself]
to
from
constitutional
marks
omitted)).
Therefore, the entire subsection must be invalidated.
Should the Alabama legislature seek to enact a statute
that promotes the health and safety of women without
unduly
burdening
their
constitutionally
protected
abortion rights, “the ball now lies in [its] court.”
United States v. Booker, 543 U.S. 220, 265 (2005).
II. RELIEF
A.
The
granted.
court
The
Facial vs. As-Applied Relief
next
turns
to
plaintiffs
what
have
relief
asked
the
should
be
court
to
declare subsection 4(c) facially unconstitutional; that
is, to invalidate it throughout the State of Alabama.
The State argues that facial relief is inappropriate
23
and, therefore, that the court should invalidate the
statute only as applied to the plaintiff clinics and
administrators.
To be candid, the law on facial versus as-applied
relief
is
a
mess.
First,
the
difference
in
the
application of these two forms of relief is not always
apparent, and this lack of clarity “begins with the
terminology itself.”
Richard R. Fallon, Jr., Fact and
Fiction about Facial Challenges, 99 Cal. L. Rev. 915,
922 (2011).
down
a
Thus, in some cases, a court may strike
blatantly
unconstitutional
statute--consider,
for example, a law categorically prohibiting women from
voting in all elections--on the basis of its text alone
(‘on its face’).
consider
the
But, in other cases, courts carefully
circumstances
in
which
a
statute
will
apply to determine whether it can withstand a facial
challenge.
See, e.g., Johnson v. United States, 135 S.
Ct 2551, 2556, 2560 (2015) (holding that the residual
clause of the federal Armed Career Criminal Act was
void for vagueness in part based on the Court’s past
24
consideration
of
the
provision
in
four
factually
distinct cases); Planned Parenthood Se. Pa. v. Casey,
505
U.S.
833,
891-92
(1992)
(plurality
opinion)
(considering, in a facial challenge to an abortion law,
the circumstances of the women for whom the law would
be a restriction).
clearly
and
Second, the Supreme Court has not
consistently
applied
these
two
relief, which exacerbates the confusion.
forms
of
See Fallon,
99 Cal. L. Rev. at 917 (“The Justices have lectured not
only the lower courts, but also each other, about when
facial
challenges
are
and
are
not
appropriate.”);
Gillian E. Metzger, Facial and As-Applied Challenges
Under the Roberts Court, 36 Fordham Urb. L.J. 773, 774
(2009) (noting that the Court is divided as to the
appropriate
arguing
that
general
the
test
Court
for
“has
facial
made
challenges
little
effort
and
to
describe the contours of as-applied litigation”); City
of Los Angeles v. Patel, 135 S. Ct 2443, 2449 (2015)
(citing
Fallon,
proposition
99
that,
Cal.
L.
although
25
Rev.
the
at
Court
918,
has
for
the
described
facial challenges as being “the most difficult to mount
successfully,”
it
has,
during
several
Terms,
adjudicated more facial challenges on the merits than
it has as-applied challenges).
Nevertheless, despite this confusion in terminology
and
application
in
general,
application
of
the
two
forms of relief to the constitutional challenge here
and
to
challenge
the
compelling
solidly
facts
warrant
in
the
support
of
conclusion
that
that
subsection 4(c) is facially unconstitutional.2
2. At earlier stages of this litigation, the State
appeared to argue that the plaintiffs had not properly
requested both facial and as-applied relief.
It
appears that the State has abandoned this argument in
its post-trial briefing.
However, the court will
address this threshold concern for clarification.
The court finds that the plaintiffs have pursued
both facial and as-applied relief in this litigation.
Compare Am. Compl. (doc. no. 85) at 13 (“Plaintiffs
respectfully request that the Court: 1) declare Section
4(c) of HB 57, to be codified at Ala. Code §
26-23E-4(c), unconstitutional under the Fourteenth
Amendment to the United States Constitution; ... 4)
grant Plaintiffs such other, further, and different
relief as the Court may deem just and proper.”), with
Ayotte, 546 U.S. at 331 (plaintiffs who initiated
(continued...)
26
1.
In
its
Test for Facial Relief
earlier
opinion
granting
a
temporary
restraining order, this court found that the test for
facial relief in the abortion context presented here is
whether, “in a large fraction of the cases in which the
law
is
relevant,
it
will
operate
as
a
substantial
obstacle to a woman’s choice to undergo an abortion.”
Strange I, 951 F. Supp. 2d at 1285 n.4 (emphasis in
original)
(citing
Casey,
505
U.S.
at
895
(plurality
opinion)).
The large-fraction test was set forth in Casey’s
plurality
opinion.
In
Casey,
the
Supreme
Court
confronted the same question presented here: whether a
law restricting abortion that unduly burdened many, but
not
all,
relief.
of
the
While
facial-relief
women
the
question
it
impacted
Court
in
two
warranted
facial
has
addressed
other
abortion
the
cases
request for “any relief ‘just and proper’” sought both
facial and as-applied relief).
27
since Casey, in each the Court considered an abortion
restriction
where
the
undue
burden
imposed
was
speculative or present only in certain unusual cases;
neither
case
Supreme
is
Court
apposite
precedent
here.
that
Casey
clearly
is
the
only
addresses
the
question presented in this case.
In Casey, the Court struck down as facially invalid
a
Pennsylvania
notify
505
their
U.S.
law
that
spouses
prior
at
898
J.,
(Stevens,
required
concurring
to
(plurality
in
married
women
obtaining
opinion);
part
and
to
abortions.
id.
at
922
dissenting
in
part); id. at 934 (Blackmun, J., concurring in part,
concurring in the judgment in part, and dissenting in
part).
Pennsylvania objected that the vast majority of
women seeking abortions would not be affected by this
provision.
the
relevant
directly
A plurality of the Court explained that
group
impacted
“[l]egislation
is
by
of
women
the
included
restriction;
measured
for
it
only
those
noted
consistency
with
that
the
Constitution by its impact on those whose conduct it
28
affects. ... The proper focus of constitutional inquiry
is the group for whom the law is a restriction, not the
group for whom the law is irrelevant.”
Id. at 894.
Thus, the analysis was not based on the impact of the
law
on
all
women
abortions--about
or
1 %
even
of
the
on
all
women
women
in
seeking
the
State.
Rather, the plurality evaluated the impact on “married
women seeking abortions who do not wish to notify their
husbands of their intentions and who do not qualify for
one
of
the
requirement.”
statutory
exceptions
to
the
notice
Id. at 895.
The Casey plurality relied on the district court’s
general findings regarding the specter of physical and
emotional
violence
requirement.
Id.
raised
at
by
888-92.
a
spousal-notification
“We
must
not
blind
ourselves to the fact that the significant number of
women who fear for their safety and the safety of their
children are likely to be deterred from procuring an
abortion
as
surely
as
if
the
Commonwealth
[of
Pennsylvania] had outlawed abortion in all cases,” the
29
opinion warned.
Id. at 894.
In light of the lower
court’s findings about the risk of abuse, the plurality
wrote that, “in a large fraction of the cases in which
[the
notification
requirement]
is
relevant,
it
will
operate as a substantial obstacle to a woman’s choice
to undergo an abortion.
therefore invalid.”
It is an undue burden, and
Id. at 895.
Since Casey, seven courts of appeals have found
that, in a facial challenge to an abortion restriction,
the appropriate test is whether the restriction acts as
an
undue
burden
on
a
woman’s
ability
to
obtain
an
abortion in a “large fraction of the cases in which
[the
act]
is
relevant”;
facially invalid.
if
so,
the
restriction
is
Id.; see Planned Parenthood Ariz.,
Inc. v. Humble, 753 F.3d 905, 914 (9th Cir. 2014);
Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d
490, 509-10 (6th Cir. 2012); Planned Parenthood Minn.
v. Rounds, 653 F.3d 662, 669 (8th Cir. 2011), vacated
in part on other grounds on reh’g en banc, 662 F.3d
1072 (8th Cir. 2011); Zbaraz v. Madigan, 572 F.3d 370,
30
381
(7th
England
Cir.
v.
2009);
Heed,
390
Planned
F.3d
53,
Parenthood
58
(1st
of
N.
Cir.
New
2004),
vacated on other grounds sub nom. Ayotte, 546 U.S. 320;
Planned
Parenthood
v.
Farmer,
220
F.3d
127,
142-43
(3d Cir. 2000); Jane L. v. Bangerter, 102 F.3d 1112,
1116 (10th Cir. 1996).
However,
required
the
Fifth
plaintiffs
Circuit--standing
facially
challenging
alone--has
an
abortion
restriction to prove that “no possible application of
the challenged law would be constitutional.”
Planned
Parenthood of Greater Tex. Surgical Health Servs. v.
Abbott, 748 F.3d 583, 588-89 (5th Cir. 2014) (citing
United States v. Salerno, 481 U.S. 739, 745 (1987));
see also Cincinnati Women's Servs., Inc. v. Taft, 468
F.3d
361,
368
(6th
Cir.
2006)
(“The
Fifth
Circuit
stands alone in its rejection of the large fraction
test.”).
This outlier approach is also known as the
31
“no set of circumstances” test.
See United States v.
Salerno, 481 U.S. 739, 745 (1987).3
Since Casey, the Supreme Court has not decided the
facial validity of an abortion law that, like those at
issue
in
Casey
and
in
this
case,
imposes
an
undue
3. In Salerno, decided before Casey, plaintiffs
brought a facial challenge to a provision of the Bail
Reform Act of 1984 that “allow[ed] a federal court to
detain an arrestee pending trial” based on a limited
set of factors related to dangerousness.
481 U.S. at
741. Noting that the Act “operates only on individuals
who have been arrested for a specific category of
extremely serious offenses,” id. at 750, the Court
refused to render the entire act invalid simply because
it
“might
operate
unconstitutionally
under
some
conceivable set of circumstances,” id. at 745. Salerno
also said, however, that in a facial challenge, “the
challenger must establish that no set of circumstances
exists under which the Act would be valid.” Id.
As Justice Stevens later explained, the first of
these statements appears to “correctly summarize[] a
long established principle of our jurisprudence,” while
the
latter--upon
which
the
Fifth
Circuit
has
relied--seems
to
be
a
“rhetorical
flourish
...
unsupported by citation or precedent [and] also
unnecessary to the holding in the case, for the Court
effectively held that the statute at issue would be
constitutional as applied in a large fraction of
cases.”
Janklow v. Planned Parenthood, Sioux Falls
Clinic, 517 U.S. 1174, 1175 (Stevens, J., mem.
respecting denial of cert.).
32
burden on many, but not all, of the women affected by
it.
if
Its subsequent decisions therefore offer little,
any,
direction
regarding
the
application
of
the
large-fraction test.
In Gonzales v. Carhart, the Supreme Court reversed
a lower court decision facially invalidating a law that
banned
abortions
using
the
intact
extraction (“D & E”) procedure.
dilation
and
550 U.S. 124 (2007).
The plaintiffs argued, first, that intact D & E was at
times medically necessary and, therefore, that the law
was unconstitutional for lack of a health exception;
and,
second,
that
the
ban
would
lead
to
doctors
avoiding other, lawful forms of D & E procedures for
fear
of
prosecution.
Id.
at
143.
The
Court
acknowledged that facial relief had been “a subject of
some question,”
4
but assumed that the large-fraction
4. See Janklow v. Planned Parenthood, Sioux Falls
Clinic, 517 U.S. 1174, 1175 (Stevens, J., mem.
respecting denial of cert.) (explaining that the “no
set of circumstances” language in Salerno “does not
accurately characterize the standard for deciding
facial challenges”); id. at 1179-80 (Scalia, J.,
(continued...)
33
test adopted by the Casey plurality would apply.
at 167.
Id.
Ultimately, the Court found the plaintiffs
could not satisfy the large-fraction test because they
had failed to prove that any woman would suffer an
undue
burden
163-64.
as
to
as
a
result
of
the
law.
See
id.
at
Citing disagreement in the medical community
whether
intact
D & E
was
ever
medically
necessary, and finding the plaintiffs’ argument that
doctors
would
avoid
other
lawful
procedures
unconvincing, the Court observed that the burden the
law imposed was merely speculative.
facts,
the
Court
concluded
that
See id.
the
law
On those
was
only
dissenting from denial of cert.) (disagreeing with
Justice Stevens’s view of the proper standard for a
facial challenge in abortion cases); Fargo Women's
Health Org. v. Schafer, 507 U.S. 1013, 1013 (1993)
(O’Connor, J., concurring in denial of application for
stay) (opining that lower court’s application of
Salerno
standard
was
incorrect
because
it
was
inconsistent with Casey); Ada v. Guam Soc’y of
Obstetricians & Gynecologists, 506 U.S. 1011, 1011
(1992) (Scalia, J., dissenting from denial of cert.)
(arguing that the existence of some legal applications
saves statute).
34
susceptible to challenge on an as-applied basis.
See
id. at 168.
In Ayotte v. Planned Parenthood of Northern New
England,
the
decision
Court
likewise
striking
down
parental-notification
law
reversed
as
lower-court
facially
lacking
for medical emergencies.
a
a
invalid
health
a
exception
546 U.S. at 323-24.
The
lower court had facially invalidated the law because
“in
some
very
small
percentage
of
cases,
pregnant
minors, like adult women, need immediate abortions to
avert serious and often irreversible damage to their
health.”
Id. at 328.
question
presented
The Court explained that the
was
“a
question
of
remedy:
If
enforcing a statute that regulates access to abortion
would
be
emergencies,
response?”
unconstitutional
what
is
Id. at 323.
the
[only]
in
appropriate
medical
judicial
In answering this question,
the Court noted that it “tr[ies] to limit the solution
to the problem,” id. at 328, when determining relief
and,
that,
in
this
case,
35
where
the
lower
court
invalidated a statute based on a “very small” set of
cases, facial relief was too “blunt [a] remedy,”
id.
at 330.
Facial
relief
was
inappropriate
in
these
cases
because the plaintiffs had shown only that the laws at
issue would create an undue burden in a “very small”
number of cases (Ayotte), or indeed had failed to show
that an undue burden would be imposed on any women at
all (Gonzales).
In neither case was a large fraction
of the women affected by the law unduly burdened by it;
thus, in both cases, facial relief was inappropriate.
Neither Gonzales nor Ayotte required the Court to
decide
the
central
question
presented
by
this
case:
whether a facial challenge to an abortion restriction
may prevail if the restriction would impose an undue
burden
on
a
significant
number
of
women,
but
might
operate in a constitutional manner in some instances.
As
to
this
question,
only
Casey
is
on
point.
Therefore, in keeping with all of the Supreme Court’s
abortion
jurisprudence
since
36
Casey--and
with
the
overwhelming weight of appellate court authority--the
court will adhere to Casey here.
2.
Definition of a Large Fraction
Casey teaches that the court need not find that a
law imposes an undue burden on a precise percentage of
impacted
women
warranted
in
facial
order
find
that
invalidation.
facial
The
relief
opinion
is
cited
studies indicating the general prevalence of domestic
violence and describing how a woman who notifies her
male partner of her decision to obtain an abortion may
be
at
891-92
greater
risk
(plurality
statistics
of
such
opinion).
indicating
that,
violence.
These
in
a
505
studies
12-month
U.S.
at
included
period,
“approximately two million women [in this country] are
the victims of severe assaults by their male partners,”
that “nearly one of every eight husbands had assaulted
their
wives
during
the
past
year,”
and
that
“the
primary reason women do not notify their husbands [of
their
decision
to
obtain
an
37
abortion]
is
that
the
husband and wife are experiencing marital difficulties,
often accompanied by incidents of violence.”
Id.
From
these studies, the plurality in Casey deduced that many
women who did not want to inform their husbands of
their
decisions
to
obtain
abortions
faced
the
real
threat of being abused if they notified their spouses.
Id. at 893-95.
Based on these findings, the Justices
concluded
spousal
that
significant
further.
number
of
notification
women,
would
without
affect
a
quantifying
Id. at 888-94.
Therefore, this court adheres to the large-fraction
test as Casey applied it: A law is facially invalid
under the large-fraction test if its enforcement would
unduly
burden
access
to
abortion
for
a
significant
number of the women for whom the law is relevant, id.
at 894-95; plaintiffs must present enough evidence to
support a logical deduction that a significant number
of women would face an undue burden.
the
large-fraction
test
and
described
Having adopted
its
contours,
this court now turns to its application in this case.
38
3.
Application of the Large-Fraction Test
As discussed above, under Casey, the court must
define the group of women for whom the challenged law
is relevant and then assess whether the law will create
a substantial obstacle to obtaining an abortion for a
significant number of the women in that group.
The
parties have offered competing arguments for how the
court should define the denominator and the numerator
for
calculating
affected.
whether
a
‘large
fraction’
are
The choice of a denominator makes little
difference in this case.
The result is the same no
matter whether, as the State argues, the denominator is
defined as all women seeking abortion in the State or
some smaller group.
Moreover, determining the large
fraction should not be reduced to a mere arithmetical
calculation:
context
matters.
Cold
arithmetical
processes should not be used to obscure the true nature
of the Casey’s large-fraction test--an analysis of the
real-world implications of the challenged law on the
39
lives of the women who will be impacted by the law, and
an
assessment
of
how
seriously
the
law
will
impact
these women and how broadly those impacts will be felt.
Under Casey’s approach, this court has no trouble
concluding
unduly
that
burdened
a
by
large
fraction
subsection
of
4(c)’s
women
will
be
implementation.
Indeed, the impact of the law on the right of Alabama
women to choose to have an abortion will simply be
enormous.
Without repeating all of its findings in Strange
III, which the court intends for the reader to consider
in tandem with this opinion, the court here emphasizes
the
following
particularly
relevant
findings.
The
subsection would force the three plaintiff clinics to
close;
these
clinics
perform
approximately
40 % of
abortions in Alabama, Strange III, 33 F. Supp. 3d at
1335, around 3,600 abortions per year, see id. at 1361.
The court further found that the law would impose
severe burdens on many women who would otherwise seek
abortions in Montgomery, Birmingham, or Mobile and who,
40
under the subsection, would have to travel outside of
these areas to obtain an abortion, in many cases a
considerable distance and in all cases more than 50
miles, id. at 1359; that the Huntsville clinic could
not meet the extra demand for abortions, that delays in
obtaining
abortions
would
increase
at
both
the
Huntsville and Tuscaloosa clinics, and that the future
ability of the Tuscaloosa clinic to provide abortions
was questionable due to the impending retirement of its
sole physician, id. at 1362; that “a significant number
of [the] women [who would otherwise seek an abortion in
Mobile, Montgomery, or Birmingham] would be prevented
from obtaining an abortion” entirely, and others would
be
able
delay,
to
obtain
increasing
abortions
the
only
risks
after
considerable
associated
with
the
procedures, id. at 1359; that, given that clinics in
Alabama only provide abortions up to 20 weeks, with
certain
exceptions
for
mother,
a
procedure
delayed
the
life
and
would
health
likely
of
become
denied procedure for many women, id. at 1356; and
41
the
a
that
there is a significant risk that some women, faced with
the inaccessibility or unavailability of an abortion
provider,
would
pursue
dangerous,
unregulated
abortions, id. at 1378.
Additionally, the court found that the hostile and
pervasive anti-abortion sentiment in the State would
prevent
the
doctors
at
the
plaintiff
clinics
from
obtaining staff privileges, id. at 1344, 1346-47, and
would prevent the clinics themselves from recruiting
new physicians who could comply with the requirement,
id.
at
1352.
Because
of
the
significant
risk
of
violence and career-threatening stigma, no new clinics
or
providers
would
likely
emerge
to
replace
the
“radically diminished” capacity for providing abortions
in the State.
In
would
short,
result
Id. at 1355, 1377.
the
in
court
the
finds
closure
of
that
subsection
abortion
4(c)
clinics
in
three of the State’s five largest metropolitan areas,
eliminate abortion services in approximately two-thirds
of the State, and reduce the availability of abortions
42
in
the
State
Applying
before
overall
Casey’s
this
by
approximately
real-world
court,
it
is
analysis
beyond
40
to
percent.
the
question
facts
that
the
subsection would “prevent a significant number of women
from obtaining an abortion,” Casey, 505 U.S. at 893
(plurality opinion), and this significant number would
constitute a large fraction of the women impacted by
the law.
The
facts
presented
in
this
case
are
in
stark
contrast to the facts in cases where the Supreme Court
has found facial relief inappropriate.
would
not
impose
a
burden
on
only
Subsection 4(c)
a
narrow or exceptional group of women.
“very
small,”
See Ayotte, 546
U.S. at 328, 331 (holding that facial relief was not
warranted
where
“[o]nly
a
few
applications
of
New
Hampshire’s parental notification statute would present
a constitutional problem” such that the law imposed an
undue
burden
cases”).
in
only
“a
very
small
percentage
of
Nor are the burdens it would impose a matter
of “speculation.”
See Gonzales, 550 U.S. at 162-63
43
(holding that facial invalidation of a prohibition on
intact
D & E
was
inappropriate
due
to
disagreement
among medical professionals as to whether intact D & E
was ever medically necessary, in light of evidence that
the health advantages of the procedure “were based on
speculation
without
scientific
studies
to
support
them”).
Nor would the right to obtain an abortion in
Alabama
unconstitutionally
be
burdened
only
in
a
“worst-case [scenario] that may never occur,” Ohio v.
Akron Ctr. for Reprod. Health, 497 U.S. 502, 514 (1990)
(rejecting as a “worst-case analysis” the plaintiffs’
argument
that
included
a
a
parental-notification
judicial-bypass
burdensome
because
theoretically
take
the
up
to
provision
bypass
22
statute
was
that
unduly
procedure
calendar
days
could
and
thus
delay a minor’s abortion, increasing costs and risks).
The
staff-privileges
requirement
would
make
it
impossible for a woman to obtain an abortion in much of
the State.
It is certain that thousands of women per
44
year--approximately
40
percent
of
those
seeking
abortions in the State--would be unduly burdened.
The
court
subsection
woman’s
therefore
will
choice
impose
to
holds
a
that
substantial
undergo
an
because
obstacle
abortion
in
the
to
a
a
large
fraction of the cases in which it is relevant, it must
be facially invalidated.
This conclusion is in keeping
with the plain language of the Casey plurality opinion
and with decisions of two Courts of Appeals.
courts,
applying
the
require
plaintiffs
to
large-fraction
demonstrate
test,
that
Those
did
an
not
abortion
restriction would burden a majority of women for whom
it
is
relevant;
instead,
they
granted
facial
relief
where the record contained sufficient evidence to show
that
a
significant
burdened.
See
number
Planned
of
women
Parenthood
would
of
be
unduly
Wisconsin
v.
Schimel, 806 F.3d 908, 917-18 (7th Cir. 2015) (holding
a similar staff-privileges requirement unconstitutional
where it would have resulted in the closure of a clinic
performing
approximately
39 % of
45
abortions
in
the
State);
Planned
Parenthood,
Sioux
Falls
Clinic
v.
Miller, 63 F.3d 1452, 1462-63 (8th Cir. 1995) (finding
a
parental-notice
requirement
for
minors
facially
unconstitutional, relying on the fact that minors who
feared abuse or neglect if they notified a particular
parent
abuse
would
not
exception
necessarily
and,
as
qualify
18 % of
for
the
minors
law’s
lived
in
single-parent homes, many would not simply be able to
notify their other parent); see also David S. Cogen &
Jeffrey
Largeness
B.
of
Bingenheimer,
the
Abortion
1/6,
Fraction
Rights
U.
164
Pa.
and
the
L.
Rev.
Online 115, 121 (2016) (discussing the application of
the
large-fraction
test
by
lower
courts
following
Casey).5
5.
As Cogen and Bingenheimer note, whether one
finds that a large fraction of people are impacted by a
law depends to a large extent on the value one places
on the right the law impacts.
See id. at 133-34.
Previously, the court drew a parallel between the right
of a woman to obtain an abortion and her right to keep
and bear a firearm in her home for purposes of
self-defense.
See Strange III, 33 F. Supp. 3d at
1379-80.
That parallel applies with equal force
again. Imagine that Alabama were to enact a statutory
(continued...)
46
The court cannot close without further noting that
the impact of the subsection on Alabama women will not
be restricted to those burdened by the closures of the
three
plaintiff
clinics.
close
a
abortion
fourth
In
reality,
clinic--in
it
will
also
6
--and
Tuscaloosa
restriction on the sale of firearms and ammunition.
And imagine further that gun vendors that sell
two-fifths
of
the
guns
purchased
in
the
State
(including the only vendors operating in approximately
two-thirds of the State, and three of its five largest
metropolitan areas) were to file suit along with their
customers and further that the evidence at trial were
to show the following: that the restriction would force
all of these vendors to close, and that, even if a
couple of vendors in the north and west of the State
were to remain in business, they would be unable to
sell any more guns than they currently do; that it
would be a significant hardship for many residents to
travel a long distance to obtain a gun (such that many
would be unable to do so), and that some residents of
the gun-vendor-free swath of the State would opt
instead to obtain guns on the black market, despite the
attendant risks to their safety; and that these burdens
could not be justified by the State’s interests in
enacting the restriction.
If the question were then
posed whether the rights of a “large fraction” of
Alabamians were unduly burdened by this regulation, the
answer would be, without question, yes.
6. The Tuscaloosa clinic provides approximately
40 % of abortions in the State and is one of the only
two
clinics
in
the
State
that
provides
mid-second-trimester abortions. West Ala. Women’s Ctr.
(continued...)
47
significantly
decrease
the
capacity
of
the
only
clinic--in Huntsville 7 --that would remain in the State.
v. Williamson, 120 F. Supp. 3d 1296, 1302 (M.D. Ala.
2015) (Thompson, J.).
Its sole doctor does not have
staff privileges that would enable him to comply with
subsection 4(c)’s requirement.
Id. at 1301.
It is
unlikely that that doctor will be able to obtain the
staff privileges the subsection would require--and it
is unlikely that the clinic would be able to hire
another provider who could comply with the law. Id. at
1308.
Thus, if subsection 4(c) goes into effect, the
three plaintiff clinics and the Tuscaloosa clinic will
likely close indefinitely, eliminating a full 80 % of
existing capacity to provide abortions in the State and
leaving only one clinic remaining in Alabama. See id.
at 1309.
The court gave the parties the opportunity to brief
the impact of subsection 4(c) on the Tuscaloosa clinic.
See Order (doc. no. 267).
7. It appears from the record that at least one
provider at the Huntsville clinic does not have staff
privileges that would enable her to comply with the
subsection; accordingly, under the law, the clinic
would likely lose one of its two or three existing
providers.
The clinic would not only “not be able to
accommodate additional patients,” Strange III, 33 F.
Supp. 3d at 1362, and would be unable to meet its
existing demand due to the loss of a provider.
Because the Huntsville clinic is located in the far
northern part of Alabama, and because the State lacks a
viable public transportation system between cities,
many women will be unable to travel there. Those that
do may encounter a waiting list. See West Ala. Women’s
(continued...)
48
Although the court need not and does not rely on this
additional evidence to conclude that subsection 4(c) is
invalid, the effects of the subsection on Tuscaloosa
and
Huntsville
provide
further
support--and
context--for this court’s conclusion.
B.
Injunctive vs. Declaratory Relief
Having resolved the scope of relief required in
this case, the court must now consider the appropriate
type of relief, specifically, whether the court should
Ctr. v. Williamson, 120 F. Supp. 3d 1296, 1311 (M.D.
Ala. 2015) (Thompson, J.).
Some women, unable to
travel
to
Huntsville,
may
resort
to
dangerous,
self-induced abortions. See id. at 1311-12. Finally,
due to the particularly hostile anti-abortion climate
in Huntsville, it is highly unlikely that the clinic
would be able to recruit new providers who could comply
with the staff-privileges requirement. Strange III, 33
F. Supp. 3d at 1349-50 (describing Huntsville protest
activity that threatened “economic destruction for any
doctor who enabled the provision of abortion within the
city”); Tr. Vol. II (doc. no. 216) at 62:21-63:20
(referencing unsuccessful efforts by the administrator
of the Huntsville clinic to recruit physicians to
provide abortions at that clinic); id. at 70:21-71:4
(referencing protests at a Huntsville hospital, in
which State senators participated, for its having
provided admitting privileges to doctors at the
Huntsville clinic).
49
permanently
enjoin
enforcement
of
the
provision
at
issue, or whether a declaration that subsection 4(c) is
facially invalid will suffice.
The plaintiffs contend that injunctive relief is
necessary
to
ensure
that
subsection
4(c)
does
not
impose an undue burden on women seeking abortions in
the State.
enforcement
hostile
They contend that the mere prospect of
of
the
political
subsection,
climate
combined
surrounding
with
abortion
the
in
Alabama, risks imposing a “harmful chilling effect” on
abortion
providers
and,
by
extension,
on
women’s
ability to exercise the right to an abortion.
Plfs.’
Supp. Br. Appropriate Final Relief (doc. no. 268) at 6.
The State responds that, if this court determines that
facial
relief
is
warranted,
its
executive
officials
will comply with that determination in good faith and
decline
to
enforce
the
subsection.
Therefore,
it
argues, injunctive relief is unnecessary.
Generally, the effect of enjoining the enforcement
of
a
statute
and
declaring
50
it
unconstitutional
are
“virtually
identical.”
705, 711 (1977).
protect
the
entering
v.
Maynard,
430
U.S.
“[A] district court can generally
interests
declaratory
of
a
federal
judgment,
and
plaintiff
by
therefore
the
stronger injunctive medicine will be unnecessary.”
Id.
at 711.
a
Wooley
The Supreme Court has held that, particularly
where a court is asked to enjoin the enforcement of a
state criminal statute, such as the one at issue here,
“[t]o
justify
such
interference
there
must
be
exceptional circumstances and a clear showing that an
injunction
is
necessary
in
order
to
protection of constitutional rights.”
afford
adequate
Id. at 712.
Existing precedent provides little guidance on the
meaning of ‘exceptional circumstances.’
case
most
on
point,
the
Supreme
In Wooley, the
Court
held
that
exceptional circumstances existed where the plaintiff
had been subjected to three prosecutions for violation
of
the
five-week
state
span.
statute
Id.
in
at
51
question,
712.
In
all
within
addition,
a
the
plaintiff faced “the threat of repeated prosecutions in
the future against both him and his wife.”
Id. at 712.
In the present case, however, no such prior record
of
prosecutions
Additionally,
subsection
threat
of
under
because
facially
subsection
the
court
invalid,
future
4(c)
now
there
declares
is
prosecution.
exists.
no
The
the
apparent
State
has
represented as much to the court, stating unequivocally
that it will not enforce the subsection should this
court
hold
it
court
presumes
representation
injunctive
to
be
that
in
relief
unconstitutional.
the
good
is
State
will
faith,
it
“necessary
in
Because
adhere
cannot
order
the
to
this
hold
that
to
afford
adequate protection of constitutional rights.”
Id. at
719.
relief
The
plaintiffs’
request
will therefore be denied.
for
injunctive
In so holding, the court
notes that, should circumstances change, the plaintiffs
may
seek
further
relief
in
opinion.
52
accordance
with
this
***
For the foregoing reasons, the court holds that the
metropolitan-area
requirement
is
not
severable
from
subsection 4(c); that facial relief is appropriate; and
that
a
declaration
that
the
subsection
is
facially
unconstitutional is adequate.
An appropriate judgment will be entered.
DONE, this the 25th day of March, 2016.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE
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