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

Filing 49

OPINION AND ORDER directing as follows: (1) plaintiffs Planned Parenthood Southeast, Inc., Reproductive Health Services, and June Ayers's 3 motion for a temporary restraining order is GRANTED; (2) Defendants Robert Bentley, Luther Strange, Ell en Brooks, Brandon K. Falls, Ashley Rich, Donald E.Williamson, George C. Smith, Jr., James E. West, and Martha Lavender, and all those acting in concert with them, are ENJOINED from: (a) enforcing the requirements of § 4(c) of HB 57, and (b) fai ling to notify immediately all state officials who are responsible for enforcing the requirements of HB 57 § 4(c) of this temporary restraining order; (3) this injunction shall expire on 7/12/2013, at 2:45 p.m.. Signed by Honorable Judge Myron H. Thompson on 6/28/13. (Attachments: # 1 civil appeals checklist)(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.
ROBERT BENTLEY, in his
official capacity as
Governor of the State of
Alabama, et al.,
Defendants.

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

OPINION AND ORDER
This lawsuit challenges recent Alabama legislation
that would require all physicians who perform abortions
at the State’s licensed abortion clinics to obtain staff
privileges

at

a

local

hospital.

Plaintiffs

Planned

Parenthood Southeast Inc., Reproductive Health Services,
and

June

Ayers,

RN,

on

behalf

of

themselves,

their

patients, physicians, and staff, allege that, if enacted,
this legislation would violate their rights under the Due
Process Clause and the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution.
The plaintiffs have named as defendants the following
state officials: Robert Bentley, in his official capacity
as Governor of Alabama; Luther Strange, in his official
capacity as Attorney General of Alabama; Ellen Brooks, in
her official capacity as District Attorney of Montgomery
County,

Alabama;

capacity

as

Alabama;

Ashley

Brandon

Rich,

Falls,

Attorney

District

K.

of

in

her

in

his

Jefferson

official

official
County,

capacity

as

District Attorney of Mobile County, Alabama; Donald E.
Williamson, MD, in his official capacity as State Health
Officer of Alabama; George C. Smith, Jr., MD, in his
official capacity as Chairman of the Alabama Board of
Medical Examiners; James E. West, MD, in his official
capacity as Chairman of the Medical Licensure Commission
of Alabama; and Martha Lavender, DSN, RN, in her official
capacity as President of the Alabama Board of Nursing.
This

matter

is

now

before

the

court

on

the

plaintiffs’ motion for a temporary restraining order.

2

Jurisdiction is proper under 28 U.S.C. § 1331 (federal
question) and 28 U.S.C. § 1343(a)(3)-(4) (civil rights).
For reasons that follow, and based on the limited record
now

before

the

court,

the

motion

for

a

temporary

restraining order will be granted.

I.

LEGAL STANDARD

To demonstrate that a temporary restraining order is
warranted, the plaintiffs must show: (1) a substantial
likelihood of success on the merits of their suit; (2)
that they will suffer irreparable harm absent injunctive
relief; (3) that the harm to the plaintiffs absent an
injunction would outweigh the harm to the defendants from
an injunction; and (4) that an injunction is in the
public interest.

Ingram v. Ault, 50 F.3d 898, 900 (11th

Cir. 1995); Centr. Ala. Fair Hous. Ctr. v. Magee, No.
2:11cv982-MHT, 2011 WL 5878363, at *1 (M.D. Ala. Nov. 23,
2011) (Thompson, J.) (citing Grizzle v. Kemp, 634 F.3d
1314, 1320 (11th Cir. 2011)).

3

II.

DISCUSSION

The law at issue is § 4(c) of HB 57, the “Women’s
Health and Safety Act.”

This provision requires that

every physician who performs abortions “shall have staff
privileges at an acute care hospital within the same
standard metropolitan statistical area as the facility
[where the physician performs abortions] 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.”
1)

Ex.

A.

If

HB 57, § 4(c), available at (Doc. No. 4an

administrator

of

an

abortion

or

reproductive health center were to allow his or her
facility to be operated in a manner that violates the
staff-privileges requirement, the administrator would be
guilty of a Class C Felony, which in Alabama carries a
punishment range of one to ten years imprisonment.
57, § 12(c); 1975 Ala. Code § 13A-5-6.

4

HB

The abortion or

reproductive health center could also have its license
revoked,

HB

57,

§

14(b),

as

could

any

individual

physician who performs an abortion without having met the
staff-privileges requirement.

Id. at § 14(a).

This law

is set to take effect July 1, 2013.
The plaintiffs in this case operate three of the five
licensed abortion facilities in this State.
the

owner

and

Services

(RHS)

President

and

Administrator
in

of

Montgomery,

Chief

Executive

June Ayers,

Reproductive
and

Staci

Officer

of

Health

Fox,

the

Planned

Parenthood Southeast (PPSE), the sole licensed abortion
provider in Mobile and Birmingham, explain that their
physicians will be unable to obtain admitting privileges
at any local hospital due to a slew of prerequisites for
obtaining such privileges which have little if anything
to do with the caliber of the physicians themselves, and
everything to do with the hospitals’ own needs.1

For

1.
The defendants dispute that the plaintiffs’
clinics and physicians cannot meet the staff privileges
requirement and contend that the hospitals’ prerequisites
(continued...)
5

example, Jackson Hospital in Montgomery requires that
physicians with staff privileges guarantee a minimum of
48 admissions, inpatient evaluations, consultations, or
procedures in the hospital every year; because abortion
patients

so

rarely

require

hospitalization,

physicians cannot meet this requirement.
(Doc. No. 4-4) Ex. C ¶ 23.

RHS’s

Ayers Decl.

An additional impediment to

satisfying the staff-privileges requirement is that many
1(...continued)
are not as stringent as the plaintiffs submit. However,
based on the record as it stands, the court finds the
plaintiffs’ assertions to be credible.
Further,
plaintiffs have credibly asserted that applying for staff
privileges and being denied can render significant harm
to a physician’s professional reputation. Such a denial
must be reported in a national database that is then
available to every State in which that physician has a
license, every State where that physician may seek a
license in the future, and every hospital where that
physician may seek privileges.
The plaintiffs’
physicians should not be required to risk damage to their
professional reputations in order to test their ability
to comply with this law, particularly where it seems
highly unlikely that an attempt to obtain staff
privileges would be successful. However, the ability of
the plaintiffs’ physicians to obtain staff privileges is
likely to be a critical factual issue at the preliminaryinjunction stage; this issue will benefit from a more
developed record, which the court will duly consider at
that time.
6

of

the

plaintiffs’

physicians

do

not

live

in

the

communities they serve.

This is a problem because HB 57

requires

physician

an

abortion

to

have

admitting

privileges at a hospital in the vicinity of the clinic
where

the

physician

hospitals,

in

turn,

privileges

to

live

performs
require

a

abortions,
doctors

reasonable

and

seeking

distance

the
staff

from

hospital from which they seek admitting privileges.

the
See,

e.g., Baptist Health Bylaws (Doc. No. 43-13) Ex. 25 at 9
(requiring

that

physicians

with

staff

privileges

“maintain a practice and residence within a reasonable
distance to the Baptist Health hospital at which he or
she practices”); Ayers Decl. (Doc. No. 4-4) Ex. C ¶ 23
(relating Jackson Hospital’s requirement that physicians
with staff privileges be located close enough to the
hospital to provide both continuous care to patients and
emergency room coverage).

The defendants argue that the

plaintiffs should persuade their doctors to move their
residences to comply with this requirement or hire new

7

doctors.

But the plaintiffs have submitted substantial

evidence

that

the

severe

harassment

and

even

death

threats targeted at abortion providers makes it nearly
impossible for them to find doctors willing to live near
their clinics.2
The record therefore currently reflects that, as they
cannot

comply

with

the

staff-privileges

requirement

imposed by HB 57, unless it is enjoined, the plaintiffs
will be unable to provide abortion services once the law
takes effect.

2. “Doctors and others who provide abortion care are
harassed at their homes, picketed at their private
practices, and targeted online.” Gray Decl. (Doc. No.
47) Ex. A ¶ 4.
The West Alabama Women’s Center in
Tuscaloosa, for example, has faced gun shots through its
windows, bomb threats, and, on one occasion, a man
attempted to drive his car through the clinic. Id. In
1997, the clinic was set on fire.
Id.
An abortion
clinic in Birmingham was bombed, killing an off-duty
police officer who was working there as a security guard.
Nationwide, four doctors who provided abortions have been
targeted and murdered because of their work. Id. ¶ 5. A
clinic physician at RHS recently quit because someone had
posted her home address, phone number, and the addresses
and phone numbers of her family members, on a website
encouraging harassment of abortion providers.
Ayers
Decl. (Doc. No. 4-4) Ex. C ¶ 8.
8

A.
It

appears

from

Justiciability
the

record

thus

far

that

the

plaintiffs have standing to bring this lawsuit on behalf
of themselves, their staff, and their patients.

In order

to bring a claim on behalf of a third party, as the
plaintiffs do for their claim that HB 57 threatens the
substantive-due-process rights of their patients, the
plaintiffs must satisfy three requirements: (1) they must
in

fact

be

injured;

(2)

they

must

have

a

close

relationship with the third party; and (3) there must be
some obstacle or hindrance to the third party’s ability
to bring the claim on its own behalf.

Singleton v.

Wulff, 428 U.S. 106, 112-16 (1976) (plurality opinion).
The plaintiffs face imminent criminal prosecution if
they continue to perform abortions after July 1.

This is

a “real and immediate” threat, neither “imagin[ed]” nor
“speculative.”

Summit Med. Assocs., P.C. v. James, 984

F. Supp. 1404, 1426 (M.D. Ala. 1998) (Thompson, J.)
(quoting O’Shea v. Littleton, 414 U.S. 488, 494 (1974))

9

aff'd

in

part,

rev'd

in

part

on

other

grounds

and

remanded sub nom. Summit Med. Assocs., P.C. v. Pryor, 180
F.3d 1326 (11th Cir. 1999).

The threat is particularly

credible since the State has confirmed that the criminal
provisions

will

be

in

effect

as

of

July

1.

The

plaintiffs have thus, so far, shown an injury sufficient
to create an Article III case or controversy.

See Doe v.

Bolton, 410 U.S. 179, 188 (1973) (finding physicians
challenging an abortion statute had standing to do so
“despite the fact that the record does not disclose that
any one of them has been prosecuted, or threatened with
prosecution.... They should not be required to await and
undergo a criminal prosecution as the sole means of
seeking

relief.”);

Planned

Parenthood

Ass’n

of

Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390,
1396 (6th Cir. 1987) (same).
As for the second and third requirements, federal
courts

routinely

recognize

an

abortion

provider’s

standing to assert the claims of its patients.

10

See,

e.g.,

Stenberg

v.

Carhart,

530

U.S.

914

(2000)

(adjudicating challenge to abortion statute brought by
abortion provider on his patients’ behalf); Okpalobi v.
Foster, 190 F.3d 337, 353 (5th Cir. 1999) (same), vacated
on other grounds on reh’g en banc, 244 F.3d 405 (5th Cir.
2001).

In

Singleton

v.

Wulff,

the

Supreme

Court

recognized that the closeness of the relationship between
an abortion physician and his patients is “patent.”

428

U.S. at 117 (“Aside from the woman herself ... the
physician

is

uniquely

qualified

to

litigate

the

constitutionality of the State’s interference with, or
discrimination
abortion.).

against,

th[e]

decision”

to

have

an

The Court also identified two obstacles to

the patients’ litigation of their rights: aversion to
having personal reproductive choices made public and the
“imminent mootness” of any one woman’s claim.

Id.

These

considerations are equally applicable to the case at
hand.

Plaintiffs assert the right of their patients to

have an abortion free from any undue burden; abortion
providers are inextricably entwined in the exercise of
11

this right.

And while one might expect that the public

opprobrium leveled at women who have abortions would have
softened since the Court decided Singleton in 1976, the
plaintiffs’ evidence, at this time, demonstrates that
this is not the case.

Accordingly, the plaintiffs’

assertion of their patients’ claims is proper.3

3.
The defendants argue it is improper for the
plaintiffs to litigate the substantive-due-process claims
of their patients because the economic and liberty
interests of the plaintiffs conflict with their patients’
interests in a safe, healthy abortion-–an interest that
the defendants assert is advanced by the staff-privileges
requirement. But where the requirements for third-party
standing are satisfied, courts have found this to be
sufficient
assurance
that
the
third
parties’
constitutional rights will be well represented by the
plaintiffs. See Charles v. Carey, 627 F.2d 772, 779 n.
10 (7th Cir. 1980) (rejecting a similar argument and
allowing an abortion provider to assert third-party
standing for his patients); Okpalobi, 190 F.3d at 352
(same). The court agrees that the test for third-party
standing already protects against a “wolves ...
guard[ing] the ... sheep” scenario and that the
plaintiffs “will adequately represent the absent women’s
constitutional rights.”
Okpalobi, 190 F.3d at 352
(quotations and citations omitted).
12

B.

Substantial Likelihood of Success on the Merits
Though the plaintiffs have put forth four theories

for relief, the court need consider only one in order to
resolve this motion.

The court is persuaded that the

plaintiffs are likely to succeed in their argument that
the staff-privileges requirement would impose an undue
burden on a woman’s right to choose abortion, thereby
impeding on the Fourteenth Amendment right to privacy.
The

Constitution

protects

terminate her pregnancy.
Due

Process

reaffirmed

Clause
by

the

of

a

woman’s

right

to

This right, derived from the
the

U.S.

Fourteenth
Supreme

Amendment,

Court

in

was

Planned

Parenthood v. Casey, 505 U.S. 833 (1992), which left in
tact the essential holding of Roe v. Wade, 410 U.S. 113
(1973).

This right is not limitless, however; the State

has legitimate interests in protecting the health of the
woman and the potential life of a fetus.

Accordingly,

the Court in Casey developed a standard to distinguish
between

lawful

state

regulation

regulation that violates due process.
13

of

abortion

and

The Court held

that when a regulation imposes a “substantial obstacle in
the path of a woman seeking an abortion of a nonviable
fetus,” it unduly burdens the right to choose abortion.
Id. at 877.

And “where state regulation imposes an undue

burden ... the power of the State reach[es] into the
heart

of

Clause.”

the

liberty

Id. at 874.

protected

by

the

Due

Process

Thus, even “a statute which ...

further[s] the interest in potential life or some other
valid state interest,” but “has the effect of placing a
substantial obstacle in the path of a woman’s choice
cannot be considered a permissible means of serving its
legitimate ends.”
“reasonable

Id. at 877.

measures”

regulating

On the other hand,
abortion–-even

those

that pose incidental inconvenience–-are valid so long as
they do not create a substantial obstacle to a woman’s
exercise of her due process right.

Id. at 883.4

4. The State makes much of the stringency with which
courts review a facial challenge to legislation. But as
this court explained in Summit Medical, 984 F. Supp. at
1449-50,
plaintiffs
challenging
a
pre-viability
regulation on undue-burden grounds need not show that the
(continued...)
14

The plaintiffs assert that it is impossible for them
to comply with the staff-privileges requirement that this
law would impose.

Thus, based on the record now before

the court, the law’s inevitable impact seems to be that
three of Alabama’s five licensed abortion clinics would
have to cease performing abortions.

Only two clinics

would remain–-one in Huntsville and one in Tuscaloosa–while the rest of the State, including the metropolitan
areas of Montgomery, Birmingham, and Mobile, would have
no licensed abortion providers at all.

This absence

would add not only the onus of distance for most women in
Alabama (women in some parts of the State could have to
travel up to 200 miles in order to obtain an in-state
abortion), but also the accompanying burden of increased
travel costs.

As a majority of the plaintiffs’ patients

4(...continued)
law is unconstitutional in every possible application.
Rather, as the Supreme Court stated in Casey, the test 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.”
Id. (emphasis in original) (quoting Casey, 505 U.S. at
895).
15

are poor and many do not have any access to a car, it
appears that, for a significant number of women, this
distance

would

be

no

mere

encumbrance,

but

an

insurmountable barrier to obtaining an abortion.5 Studies
presented by Dr. Stanley K. Henshaw, a researcher in the
field of reproductive health care, are consistent with
the common-sense inference that significant increases in
the

travel

obtaining

burden
an

(and

abortion

hence,
hinder

the
a

cost

burden)

of

woman’s

ability

to

terminate her pregnancy.6
5. Staci Fox testified that the majority of her
patients at PPSE are at 130 % of the poverty level or
less, which means that they earn less than $ 1250 each
month. Fox Decl. (Doc. No. 4-2) Ex. B ¶ 36. Fox attests
that many of them do not own cars, and if they do, would
struggle to pay for gas to travel to a distant clinic.
Id.
June Ayers likewise stated that the majority of
RHS’s patients are at 130 % of the poverty level or less
and that many do not own cars. Ayers Decl. (Doc. No. 43) Ex. C ¶ 26.
6.
Dr. Henshaw describes a number of studies
connecting the availability of abortion providers with
the number of abortions.
One such study focused on a
Texas law that had the effect of reducing the State’s
abortion providers such that the average distance a woman
had to travel to obtain an abortion increased from 33
miles to 252 miles. Henshaw Decl. (Doc. No. 4-7) Ex. F
(continued...)
16

The State argues that, even if HB 57 does cause the
plaintiffs’ clinics to cease abortion services, it will
not impose an undue burden because patients can still
travel

to

the

operative

clinics

in

Huntsville

and

Tuscaloosa, as well as to clinics in Columbus, Georgia
(which is approximately 85 miles from Montgomery) and
Pensacola, Florida (which is approximately 70 miles from
Mobile).

However, that a woman has some conceivable

opportunity to exercise her right does not mean that a
substantial obstacle to the exercise of that right is not
imposed; nor can a serious burden be ignored because some
women of means may be able to surmount this obstacle
while poorer women (who constitute a majority of the
plaintiffs’ patients and thus a “large fraction” of those

6(...continued)
¶ 4. The study estimated that, over the course of three
years, 6631 abortions did not take place that otherwise
would have occured. Id. ¶ 5. Dr. Henshaw also describes
a Georgia study that found that, for every 10 miles from
Atlanta, where all of the major abortion providers were
located at the time, there was a decline of 6.7 abortions
per 1000 live births. Id. ¶ 6.

17

affected by this law) cannot.

Casey, 505 U.S. at 895.

This is simply not what Casey provides.
U.S.

at

894

(finding

unconstitutional

even

a

spousal

though

See Casey, 505

consent

many

women

requirement
who

obtain

abortions are not married or could easily comply with the
requirement where “the significant number of women who
fear for their safety ... [we]re likely to be deterred
from

procuring

an

abortion

as

surely

as

if

Commonweath had outlawed abortion in all cases.”).

the
In

this way, abortion jurisprudence mirrors a multitude of
other contexts in which our courts have found that, even
when

some

conceivable

opportunity

to

exercise

a

constitutionally protected choice exists, a burden on a
right can so impair it as to impermissibly compromise it.
See, e.g., Anderson v. Celebrezze, 460 U.S. 780 (1983)
(concluding that state election requirement placed an
unconstitutional burden on voters’ freedom of choice and
freedom of association); United States v. Jackson, 390
U.S. 570, 582-85 (1968) (finding that an impermissible

18

burden existed where law had the effect of discouraging
the exercise of Fifth and Sixth Amendment rights).
Consistent with this analysis, other federal courts
have

concluded

that

measures

that

would

eliminate

a

substantial portion of abortion providers in the State
can constitute a substantial obstacle to a woman’s right
to seek an abortion.

See, e.g., Okpalobi, 190 F.3d at

357 (finding an undue burden where a law would force the
providers of approximately 80 % of abortions in the State
to discontinue their abortion practices); Jackson v.
Women’s Health Org. v. Currier, ___ F. Supp. 2d ___, ___,
2013

WL

1624365,

at

*5

(S.D.

Miss.

Apr.

15,

2013)

(Jordan, J.) (finding an undue burden where a law would
cause the only known abortion provider in the State to
close); see also Tucson Woman’s Clinic v. Eden, 379 F.3d
531, 542 (9th Cir. 2004) (“[A] reasonable factfinder
could certainly conclude ... that, by increasing the cost
of abortion and limiting the supply of abortion providers
and hours during which they can provide abortions, [the
law at issue] imposes a substantial obstacle to women
19

seeking abortions at those practices and clinics.”).

The

Supreme Court has also implied that a regulation’s impact
on the availability of abortion providers and potential
to increase the distance a woman must travel to obtain an
abortion factors into the undue burden analysis.

See

Mazurek v. Armstrong, 520 U.S. 968, 974 (1997) (reasoning
that “no woman seeking an abortion would be required by
the new law to travel to a different facility than was
previously available” in concluding that the law at issue
did not create a substantial obstacle to abortion).
Those courts that have upheld laws that would limit
the availability of abortion providers have taken pains
to emphasize that women could still obtain abortions
within

a

reasonable

distance

within

the

finding that no substantial obstacle existed.

State

when

See, e.g.,

Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 605
(6th Cir. 2006) (finding no undue burden where a law
would cause a Dayton, Ohio abortion clinic to close, but
abortion

clinics

remained

in

Cincinnati,

Columbus,

Cleveland, and Akron, thus allowing potential patients to
20

obtain abortions in state “within a reasonable distance
[45-to-55 miles] from the Dayton clinic”); Greenville
Women’s Clinic v. Bryant, 222 F.3d 157, 165 (4th Cir.
2000)

(finding

no

undue

burden

where

“[t]he

record

contain[ed] evidence from several abortion providers,
only one of which would be adversely affected in any
significant way in providing abortion services,” and the
women near the one clinic that would close could obtain
abortion services at an in-state clinic 70 miles away).
The State’s argument that a woman can obtain an
abortion by traveling to clinics in Florida or Georgia
raises a further concern acknowledged by the district
court

in

Jackson

Women’s

Health

Organization:

the

prospect of “a patchwork system where constitutional
rights are available in some states but not others.”

___

F. Supp. 2d at ___, 2013 WL 1624365, at *5.

While,

unlike

Health

the

law

Organization,

HB

at
57

issue

in

would

Jackson

still

Women’s

leave

two

abortion

clinics in operation, it is telling that the State must
resort at all to suggesting that women travel across the
21

Alabama border to exercise their constitutional rights.
Moreover,

given

the

evidence

so

far

of

the

near

impossibility of procuring abortion doctors who can meet
the staff-privileges requirement, the law threatens a
permanent

destabilizing

abortions

in

this

effect

State,

as

on

the

clinics

provision
will

have

of
to

constantly struggle under threat of closure or ceasing
services to maintain a medical staff that is qualified
under the law.7 Such pressure could render the consistent
provision of abortion services in Alabama a Sisyphean
effort.

The number of abortion clinics in Alabama has

7. The State emphasizes that two Alabama clinics did
not join this suit and ostensibly can comply with the
requirements of HB 57.
One of those clinics is West
Alabama Women’s Center in Tuscaloosa.
However, the
Clinic Director of the West Alabama Women’s Center
testified that, after that clinic’s sole physician, a 74year-old who happens to have staff privileges because he
maintains a broader gynecologic practice, retires, she
“honestly do[es] not know how the clinic will find
another doctor to take his place at all, let alone
someone who lives nearby and has staff privileges at a
local hospital.” Gray Decl. (Doc. No. 47) Ex. A ¶ 3.
Thus, “[i]f this requirement is not struck down, [she is]
virtually certain that when he retires the clinic will
have to shut down too.” Id.
22

already dwindled from seven to five in recent years.
Thus, while the court’s decision today hinges only on the
three clinics imminently impacted by HB 57, the evidence
raises the specter of an Alabama in which women are
unable to exercise this due-process right at all.
The State also leans heavily on its evidence that the
two Alabama clinics that are not plaintiffs in this case
performed 4954 of the abortions in this State in 2012,
while

the

plaintiffs’

three

clinics

performed

3639.

However, that women in certain parts of the State will
still benefit from the availability of abortion clinics
at manageable distances is immaterial to the question of
whether a substantial obstacle is imposed for women for
whom this is not the case.

Responding to an argument

that a spousal consent requirement would pose “almost no
burden at all for the vast majority of women seeking
abortions,” the Court in Casey explained, “The analysis
does not end with the one percent of women upon whom the
statute operates; it begins there....

The proper focus

of constitutional inquiry is the group for whom the law
23

is a restriction, not the group for whom the law is
irrelevant.”

Casey, 505 U.S. at 894.

Thus, the State’s

argument that this law will not (for now) work to impair
the rights of many Alabama women has no bearing on
whether it impermissibly impairs the rights of those who
will feel its effects.
Thus, as the plaintiffs have demonstrated that the
inevitable effect of HB 57 would be that the majority of
Alabama’s

abortion

providers

would

stop

providing

abortions, and as this court agrees, for now, that this
drastic limitation in the availability of providers would
impose a substantial obstacle to a woman’s right to
choose abortion, the plaintiffs have shown a substantial
likelihood of success on the merits of this claim.

C.
The

injury

Irreparable Harm

to

the

plaintiffs

is

concrete

and

imminent: as the current record shows, they cannot comply
with

the

staff-privileges

requirement

and,

absent

equitable relief, must either stop providing abortions or
24

confront criminal liability and license revocation. Lest
there be any doubt, the State has assured the court that
the criminal liability provisions will go into effect as
planned on July 1.

If the plaintiffs continue in their

normal course of business, there is thus a real and
imminent threat of prosecution.

The director of RHS

asserts that if this law goes into effect she will not
only have to cease providing abortions, but will “have no
choice” but to close her business altogether.
Decl. (Doc. No. 4-3) Ex. C ¶¶ 3, 24.

Ayers

Plaintiffs thus

face irreparable harm if HB 57 is not enjoined.

See

Magee, No. 2:11cv982-MHT, 2011 WL 5878363, at *3 (finding
likelihood of irreparable harm where plaintiffs faced
criminal and civil liability if a law was not enjoined);
Georgia Latino Alliance for Human Rights v. Deal, 793 F.
Supp. 2d 1317, 1340 (N.D. Ga. 2011) (Thrash, J.) (finding
irreparable harm where plaintiffs would be subject to
criminal penalties), aff'd in part, rev'd in part on
other

grounds

and

remanded

sub

nom.

Georgia

Latino

Alliance for Human Rights v. Governor of Georgia, 691
25

F.3d

1250

(11th

Cir.

2012);

ABC

Charters,

Inc.

v.

Bronson, 591 F. Supp. 2d 1272, 1307 (S.D. Fla. 2008)
(Gold, J.) (finding plaintiffs demonstrated irreparable
harm where the preponderance of the evidence showed they
would have to close their businesses as a result of the
law); Mid-Fla Coin Exchange v. Griffin, 529 F. Supp.
1006,

1030

irreparable

(M.D.
harm

Fla.
where

1981)

(Scott,

plaintiffs’

J.)

(finding

“businesses

face

virtual extinction if they are forced to comply with the
legislation”).
Furthermore, according to the current record, if the
plaintiffs’

health

centers

stop

providing

abortions,

Alabama women in the southern part of the State would
have to travel up to 200 miles each way to obtain an instate abortion, and they would have to do this twice:
once for a counseling session and again at least 24-hours
later for the abortion procedure.

The plaintiffs have

submitted evidence showing that, for many Alabama women,
the increase in the burden of travel will be so great
that they will not obtain an abortion at all. Henshaw
26

Decl. (Doc. No. 4-7) Ex. F ¶ 15.

And the plaintiffs’

evidence shows that women who carry unwanted pregnancies
to term are at increased risk of death and childbirth
complications.

Fine Decl. (Doc. No. 4-4) Ex. D ¶ 36.

Many Alabama women who are able to receive an abortion,
but who have to travel farther due to the effects of HB
57, would wait until later in their pregnancy term to
undergo

the

procedure.

This

delay

also

heightened risk of medical complication.

carries

an

Id. at ¶ 34;

see Harris v. Bd. of Supervisors, 366 F.3d 754, 766 (9th
Cir.

2004)

(noting

that

plaintiffs

demonstrated

irreparable harm by establishing likelihood of suffering
pain

and

medical

complications

from

delayed

medical

care).
Finally, it appears from the current record that the
staff-privileges

requirement

threatens

the

constitutionally protected privacy of the plaintiffs’
patients.

“[T]he right of privacy must be carefully

guarded for once an infringement has occurred it cannot
be undone by monetary relief.”
27

Deerfield Med. Ctr. v.

City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit
B

Nov.

1981).

violations

to

Accordingly,
the

fundamental

Id.

irreparable.

(finding

courts
right

the

presume

to

privacy

conclusion

that

that
are
the

constitutional right to privacy was threatened by ban on
abortion facilities “mandates a finding of irreparable
injury”); see also Ne. Florida Chapter of Ass’n of Gen.
Contractors of America v. City of Jacksonville, Fla., 896
F.2d 1283, 1285 (11th Cir. 1990) (noting the general rule
that

on-going

violations

of

constitute irreparable harm).
this presumption.

the

right

to

privacy

The record here supports

Thus, for all these reasons, the

plaintiffs have met their burden of showing injunctive
relief is needed to avoid irreparable injury.

D.

Balance of the Hardships

The defendants assert that the grant of a temporary
restraining

order

would

harm

them,

first,

because

a

threat to women’s health is posed absent this law, and,
second, because a law passed by the legislature will not
28

be in effect.

As to the first harm, the record remains

unclear:

court

The

cannot

discern

from

the

facts

presented whether the status quo does, in fact, pose a
risk to the health of women seeking abortions, and the
parties

heartily

women’s

health

dispute

at

all.8

whether
The

HB

57

second

will

harm

is

improve
minor,

particularly given the temporary nature of this order.
See Magee, No. 2:11cv982-MHT, 2011 WL 5878363, at *3
(finding that “any harm to the defendants is slight ...
given

the

short-term

nature

of

th[e]

[temporary

restraining] order”).

8. The defendants present evidence that the Alabama
Department of Public Health has issued 66 statements of
deficiencies to 12 different clinics in the last 15
years. It is unclear how significant these deficiencies
were and whether they pose a current threat. While the
defendants present more detailed evidence of poor care at
four particular facilities, three of those facilities are
no longer in operation and therefore do not pose any
current threat.
As for the one that remains in
operation, RHS, the defendants refer only to a 2006
incident and give the court no reason to believe that
this incident was not isolated, nor any reason to believe
that serious deficiencies posing a threat to women’s
health exist at RHS today.
29

The

plaintiffs,

on

the

other

hand,

must

stop

providing abortions and potentially close their doors
altogether

or

revocation.

face

criminal

penalties

and

license

Meanwhile, women seeking an abortion will

face a substantial new obstacle in obtaining one, and
therefore stand to suffer a deprivation of constitutional
rights as well as the numerous health risks attendant to
delaying abortion.

Thus, while the plaintiffs can show

concrete,

harms,

serious

the

defendants

face

only

speculative harms and the rather abstract injury posed by
a short delay in the implementation of HB 57.

The

balance of hardships weighs heavily in the plaintiffs’
favor.

E.

Public Interest

The court finds that it is in the public interest to
preserve the status quo and give the court an opportunity
to

evaluate

fully

the

lawfulness

of

HB

57

without

subjecting the plaintiffs, their patients, or the public
at large to any of its potential harms.
30

This grant of temporary relief is based solely on the
limited record now before the court.

The court does not,

with this opinion, forecast the outcome of this case, and
this opinion should not be interpreted as such.
***
Accordingly, it is ORDERED as follows:
(1) Plaintiffs Planned Parenthood Southeast, Inc.,
Reproductive Health Services, and June Ayers’s motion
for a temporary restraining order (Doc. No. 3) is
granted.
(2) Defendants Robert Bentley, Luther Strange, Ellen
Brooks, Brandon K. Falls, Ashley Rich, Donald E.
Williamson, George C. Smith, Jr., James E. West, and
Martha Lavender, and all those acting in concert with
them, are ENJOINED from:
(a)

enforcing

the

requirements

of

§

4(c)

of

HB 57, and
(b)

failing

to

notify

immediately

all

state

officials who are responsible for enforcing the

31

requirements of HB 57 § 4(c) of this temporary
restraining order.
(3) This injunction shall expire on July 12, 2013, at
2:45 p.m.
DONE, this the 28th day of June, 2013, at 2:45 p.m.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE