West Alabama Women's Center et al v. Miller

Filing 115

OPINION. Signed by Honorable Judge Myron H. Thompson on 10/27/16. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
WEST ALABAMA WOMEN’S
CENTER, et al., on behalf
of themselves and their
patients,

)
)
)
)
)
Plaintiffs,
)
)
)
v.
)
)
DR. THOMAS M. MILLER, in )
his official capacity as )
State Health Officer,
)
et al.,
)
)
Defendants.
)

CIVIL ACTION NO.
2:15cv497-MHT
(WO)

OPINION
Providers of abortion and other reproductive-health
services in Alabama challenge two 2016 state statutes
that regulate abortions and abortion clinics.

The first

statute, which the court will call the “school-proximity
law,” provides that the Alabama Department of Public
Health

may

not

issue

or

renew

licenses

to

abortion

clinics located within 2,000 feet of a K-8 public school.

1975 Ala. Code § 22-21-35.
court

will

call

the

The second statute, which the

“fetal-demise

law,”

effectively

criminalizes the most common method of second-trimester
abortion--the

dilation

procedure--unless
before

the

performing

the

and

evacuation,

physician

induces

procedure.

or

fetal

1975

D&E,
demise

Ala.

Code

§ 26-23G-1 et seq.
The plaintiffs are West Alabama Women’s Center (an
abortion clinic in Tuscaloosa, Alabama) and its medical
director and Alabama Women’s Center (an abortion clinic
in Huntsville, Alabama) and its medical director.
plaintiffs
patients.

sue

on

behalf

of

themselves

and

The
their

The defendants are the State Health Officer,

the State Attorney General, and the district attorneys
for Tuscaloosa and Madison Counties.

All defendants are

sued in their official capacities.
The plaintiffs claim that the school—proximity and
fetal—demise laws are unconstitutional restrictions on
abortion access in the State of Alabama that violate the
Due

Process

Clause

of

the

2

Fourteenth

Amendment.

Jurisdiction is proper under 28 U.S.C. §§ 1331 (federal
question) and 1343 (civil rights).
This

litigation

is

now

before

the

court

on

the

plaintiffs’ motion for a preliminary injunction.

For

reasons that follow, and based on the evidence presented
at a hearing on October 4-6, 2016, the motion for a
preliminary injunction will be granted as to both laws.

I.
Abortion

HISTORICAL BACKGOUND

clinics

and

their

physicians

have

subject to a number of regulations in Alabama.
the

last

five

years,

Alabama

has

passed

a

been

In just
host

of

legislation to regulate how and where abortion care can
be provided.

The court, however, now mentions only some

of those laws.
In 2011, the State prohibited abortions at 20 or more
weeks after fertilization, unless a woman’s condition
necessitates an abortion to avert her death or “serious
risk of substantial and irreversible physical impairment
of a major bodily function.”

3

1975 Ala. Code § 26-23B-5.

In

2013,

the

State

enacted

a

law

requiring

all

abortion clinics to meet the same building safety codes
applicable to ambulatory surgical centers.
Code

§

26-23E-9.

Under

that

1975 Ala.

requirement,

abortion

clinics must meet the standards of the “NFPA 101 Life
Safety

Code

requirements

2000
for

edition,”

egress,

fire

id.,

which

protection,

include
sprinkler

systems, alarms, emergency lighting, smoke barriers, and
special hazard protection.

To comply with that law,

abortion clinics in Alabama conducted renovations such
as installing a fireproof closet, fire alarm system, and
outside lighting.

Tr. Vol. I (doc. no. 110) at 162:3-7.

In 2013, the State also required all physicians who
perform abortions in the State to hold staff privileges
at a hospital within the same statistical metropolitan
area as the clinic.
court

held

the

unconstitutional.

1975 Ala. Code § 26-23E-4(c).

staff-privileges
Planned

requirement

Parenthood

Se.,

The

to

be

Inc.

v.

Strange, 33 F. Supp. 3d 1330 (M.D. Ala. 2014) (Thompson,
J.);

see

also

Planned

Parenthood

4

Se.,

Inc.

v.

Strange, --- F. Supp. 3d ----, No. 2:13-cv-405-MHT, 2016
WL 1167725 (M.D. Ala. Mar. 25, 2016) (Thompson, J.).
Prior to 2014, Alabama law also required physicians
to

wait

at

least

24

hours

after

providing

informed

consent explanations to patients before conducting the
abortion procedure.

That year, the legislature extended

the informed-consent waiting period from 24 hours to 48
hours.

1975 Ala. Code § 26-23A-4.

Two years later, Alabama enacted the two statutes
now challenged in this litigation.
The

number

of

clinics

in

Alabama

has

decreased

significantly in the last 15 years: as of 2001, 12 clinics
provided
clinics

abortions
continue

abortions

to

performed

in

the

State.

operate.
in

Alabama

The

Today,
vast

occur

in

only

five

majority
these

of

five

clinics.1

1.
In addition to abortion clinics, a very small
number of abortions take place in Alabama hospitals and
physician offices.
In 2014, 8,080 abortions were
performed in Alabama; of those, 23 abortions were
performed in hospitals and six abortions were provided
at physician offices. Second Johnson Decl. Ex. D (doc.
5

The

plaintiffs

operate

two

of

the

clinics:

the

Alabama Women’s Center, located in Huntsville, and the
West Alabama Women’s Center, in Tuscaloosa.2

Together,

these two clinics provided 72 % of all abortions in
Alabama in 2014.

Second Johnson Decl. Ex. D (doc. no.

54-2) at 35.
The Alabama Women’s Center, which opened in 2001, is
the

only

abortion

clinic

in

northern part of the State.

Huntsville,

in

the

far

The Huntsville metropolitan

area, with a population of 417,593,3 is Alabama’s second
largest urban area.

In addition to abortion services,

the Huntsville clinic provides contraceptive counseling
and care, testing and treatment for sexually transmitted

no. 54-2) at 35. Unless otherwise noted, the court is
addressing only those abortions performed outside the
hospital setting.
2. The three other clinics operating in Alabama are
Reproductive Health Services in Montgomery and Planned
Parenthood clinics in Birmingham and Mobile.

3.
Statistics are derived from 2010 census data.
See
2010
Census
Population
and
Housing
Tables,
http://www.census.gov/population/www/cen2010/cph-t/cpht-5.html.

6

infections, pap smears, pregnancy testing, and referrals
for prenatal care and adoption.

In 2014, approximately

14 % of the abortions in Alabama took place at the
Huntsville clinic.

Second Johnson Decl. Ex. D (doc. no.

54-2) at 35.
The West Alabama Women’s Center began operations in
1993 and is the only abortion clinic in Tuscaloosa and
all of west Alabama.

The Tuscaloosa metropolitan area

is Alabama’s fifth largest urban area.

The Tuscaloosa

clinic provides reproductive health services to women,
including

abortions,

birth

control,

treatment

for

sexually transmitted infections, pregnancy counseling,
and referrals for prenatal care and adoption.

In 2014,

approximately 58 % of the abortions in Alabama took place
at the Tuscaloosa clinic, far more than at any other
clinic.

Second Johnson Decl. Ex. D (doc. no. 54-2) at

35.
The Tuscaloosa and Huntsville clinics are the only
ones in Alabama that perform abortions at or after 15

7

weeks of pregnancy.4

Prior to 15 weeks, most abortions

are performed either through the use of medication or the
dilation and curettage method, the latter of which uses
suction to empty the contents of the uterus.

Starting

at 15 weeks, it ordinarily is not possible to complete
an abortion using suction alone, so patients must go to
clinics that offer the D&E procedure.

The D&E procedure

is a surgical abortion method where a physician uses
suction and instruments to remove the fetus and other
contents of the uterus.

In 2014, the Huntsville and

Tuscaloosa clinics provided about 560 abortions starting
at 15 weeks, all of which were D&E abortions.
Decl.

Ex.

F,

Induced

Terminations

Report (doc. no. 81-14) at 19.

of

Donald

Pregnancy

2014

That said, the vast

majority of abortions performed by the Huntsville and

4.
Throughout the remainder of this opinion, the
week of pregnancy refers to gestational age as measured
from
the
last
menstrual
cycle,
rather
than
post- fertilization age, which is different by two weeks.
The court has adjusted the numbers accordingly when
citing statistics based on post-fertilization age.
8

Tuscaloosa clinics occur prior to 15 weeks and therefore
do not involve D&E.

II. LITIGATION BACKGROUND
In July 2015, after the retirement of its long-time,
sole physician who had hospital staff privileges, the
Tuscaloosa clinic, along with its new medical director,
initiated

this

litigation

to

challenge

an

Alabama

Department of Public Health regulation that required all
physicians who perform an abortion procedure to have
staff privileges at a local hospital or to have an outside
covering physician with such privileges.

Ala. Admin.

Code

temporarily

r.

420-5-1-.03(6)(b).

This

court

restrained enforcement of the regulation against the
Tuscaloosa clinic.

W. Ala. Women’s Ctr. v. Williamson,

120 F. Supp. 3d 1296 (M.D. Ala. 2015) (Thompson, J.).
The department then granted a temporary waiver to the
Tuscaloosa

clinic,

and,

with

the

agreement

of

the

parties, the court stayed the proceeding to allow the
department time to modify the regulation.

9

In

May

2016,

while

the

stay

was

pending,

the

department amended the regulation to provide that an
abortion clinic could operate without a physician with
staff privileges or a covering physician as long as the
clinic

provided

to

all

women

undergoing

an

abortion

before they left the clinic, a copy of their medical
records.
That

See Ala. Admin. Code r. 420-5-1-.03(6)(c)(4).

same

month

the

school-proximity

law

and

the

fetal-demise law were signed into law.
After obtaining leave of the court, the Tuscaloosa
clinic and its medical director further amended their
complaint to challenge the amended regulation and the two
new

laws,

Huntsville

which

impacted

clinics.

W.

both

the

Ala.

Tuscaloosa

Women’s

Ctr.

and
v.

Miller, --- F.R.D. ----, No. 2:15-cv-497-MHT, 2016 WL
3621273 (M.D. Ala. July 5, 2016) (Thompson, J.).

The

Huntsville clinic and its medical director were added as
plaintiffs,

and

the

State

Attorney

General

district attorneys were added as defendants.

10

and

two

On July 13, 2016, the parties agreed to an order
temporarily restraining enforcement of the two laws until
three weeks after the end of a hearing on the plaintiffs’
preliminary-injunction motion.

The parties later agreed

to settle the challenge to the amended regulation, and
the court entered a judgment dismissing that claim.
From October 4 through October 6, 2016, the court
held a preliminary-injunction hearing, during which the
court

heard

temporarily

evidence

and

oral

restraining

argument.

enforcement

The
of

order
the

school-proximity and fetal-demise laws expires today,
October 27, 2016.

III. LEGAL STANDARDS
To show that a preliminary injunction is appropriate,
a plaintiff must show that “(1) there is a substantial
likelihood that he ultimately will prevail on the merits
of the claim; (2) he will suffer irreparable injury
unless the injunction issues; (3) the threatened injury
to the movant outweighs whatever damage the proposed

11

injunction may cause the opposing party; and (4) the
public interest will not be harmed if the injunction
should issue.”
Cir. 1983).

Cate v. Oldham, 707 F.2d 1176, 1185 (11th

The plaintiff bears the burden of persuasion

as to each of the four required showings.

McDonald's

Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998).
To satisfy the first prong of preliminary-injunction
requirements, likelihood of success on the merits, the
plaintiffs in this case must show that the statute is
likely to violate the “substantive due process rights of
the women who seek abortions from the plaintiff clinics.”
Planned Parenthood Se., Inc. v. Strange, 9 F. Supp. 3d
1272,

1279

(M.D.

Ala.

2014)

(Thompson,

J.).

The

governing standard for finding a violation of substantive
due process rights in this context is the “undue burden”
standard developed in Planned Parenthood of Southeastern
Pennsylvania
(plurality

v.

Casey,

opinion)

505

and

U.S.

Whole

833,

876-79

Woman's

Hellerstedt, 136 S. Ct. 2292, 2309-11 (2016).

(1992)

Health

v.

In Casey,

a plurality of the Court concluded that, if a government

12

regulation

has

“the

purpose

or

effect

of

placing

a

substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus,” the regulation is an
undue burden on a woman’s right to have an abortion and
is unconstitutional.

505 U.S. at 877.

Casey recognized

that a woman’s right of privacy extends to freedom “from
unwarranted

governmental

intrusion

into

matters

so

fundamentally affecting a person as the decision whether
to bear or beget a child.”

Id. at 896 (majority opinion)

(quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)).
The

Supreme

Court

recently

reiterated

the

undue

burden standard, that “a statute which, while furthering
[a] valid state interest, 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.”
2309

(quoting

opinion)).

Whole Woman’s Health, 136 S. Ct. at

Casey,

505

U.S.

at

877

(plurality

The undue-burden analysis requires a court

to “consider the burdens a law imposes on abortion access
together with the benefits those laws confer.”

13

Whole

Woman's Health, 136 S. Ct. at 2309.

The court must

“weigh[] the asserted benefits against the burdens.”
at 2310.

Id.

As this court has stated: “[T]he heart of this

test is the relationship between the severity of the
obstacle and the weight of the justification the State
must offer to warrant that obstacle. . . . [T]he more
severe the obstacle a regulation creates, the more robust
the government's justification must be, both in terms of
how

much

benefit

the

regulation

provides

towards

achieving the State's interests and in terms of how
realistic it is the regulation will actually achieve that
benefit.”

Planned Parenthood Se., Inc. v. Strange, 9 F.

Supp. 3d 1272, 1287 (M.D. Ala. 2014) (Thompson, J.); see
also Planned Parenthood of Wis. v. Van Hollen, 738 F.3d
786, 798 (7th Cir. 2013) (Posner, J.) (“The feebler the
[state

interest],

the

likelier

the

burden,

even

if

slight, to be ‘undue’ in the sense of disproportionate
or gratuitous.”).

14

IV. SCHOOL-PROXIMITY LAW
The school-proximity law provides that the Alabama
Department of Public Health “may not issue or renew a
health

center

license

to

an

abortion

clinic

or

reproductive health center that performs abortions and
is located within 2,000 feet of a K-8 public school.”
1975 Ala. Code § 22-21-35(b).

The parties agree that

both the Tuscaloosa and Huntsville clinics are located
within 2,000 feet of at least one K-8 public school.
Order on Pretrial Hearing (doc. no. 93), Stip. 3(b) at
13.

Each clinic is licensed by the department, and their

existing

licenses

will

expire

December

31,

2016.

Accordingly, if the school-proximity law were to take
effect, the parties agree the department would not renew
either clinic’s license to continue operations at its
existing location.
No

legislative

findings

accompany

the

school-proximity law, so the court does not have an
explanation from the legislature of the purpose for the
law.

The plaintiffs have submitted newspaper articles,

15

to which the State has not objected, that report that
Reverend

James

Henderson,

a

leader

of

anti-abortion

protestors outside the Huntsville clinic, drafted the
bill that ultimately became the school-proximity law,
with the purpose of shutting down the Huntsville clinic.
Newspaper Article, Second Johnson Decl. Ex. H (doc. no.
54-2) at 56.

Another article reported that Governor

Robert Bentley’s staff offered Henderson assistance in
seeking sponsors for the bill.
Nevertheless,

the

Id. Ex. I at 61.

State

has

asserted

that

the

school-proximity law furthers two interests: minimizing
disturbance in the educational environment and supporting
a parent’s right to control their children’s exposure to
the subject of abortion.
With

regard

to

these

acknowledges two things.

interests,

the

State

First, the State’s interests

are threatened by demonstrations outside the clinics, but
not by the clinics themselves.
Status

Conf.

(doc.

school-proximity

law

no.

99)

attempts

16

at

Tr. of Final Pre-Trial
35:1-11.
to

serve

Thus,
the

the

State's

interests

through

prohibition

on

an

expressed

clinics)

to

an

means

(the

unexpressed

2000-foot
end

(the

relocation of the demonstrations away from public K-8
schools).

Second, demonstrators have no effect on the

educational environment inside any school; the state
interest concerns only disruption outside and around
schools.

Id. at 37:9-21.

In the absence of legislative findings, the court
must now, based on the “judicial record,” make findings
as to the State’s two asserted interests.

See Whole

Woman's Health, 136 S. Ct. at 2310 (“[T]he relevant
statute here does not set forth any legislative findings.
Rather, one is left to infer that the legislature sought
to further a constitutionally acceptable objective....
For

a

district

court

to

give

significant

weight

to

evidence in the judicial record in these circumstances
is consistent with this Court's case law.”).

17

A. Likelihood of Success
The court is persuaded that the plaintiffs are likely
to succeed in their argument that the school-proximity
law would impose a substantial obstacle on a woman’s
right to obtain a pre-viability abortion, in violation
of her substantive due-process rights.

As discussed

below, the judicial record reflects that the State’s
asserted

interests

are

only

minimally,

if

at

all,

furthered by the law, while the burden imposed on a
woman’s right to obtain an abortion is substantial.

1. State’s Interests
First of all, the State's interests are furthered by
neither the law's means (the 2000-foot prohibition on
clinics)

nor

demonstrations).

its

end

(the

relocation

of

the

In Tuscaloosa, a middle school sits

just within 2,000 feet of the clinic, but a vast wooded
area separates the school and the clinic.

Map, Second

Gray Decl. Ex. E (doc. no. 54-1) at 77 (showing Tuscaloosa
clinic at 1,986 feet away from middle school); Pl. Ex.

18

27 (satellite view showing wooded area separating clinic
and school); Tr. Vol. II (doc. no. 111) at 106:4-9.

Up

to five protestors (but usually fewer than that) stand
outside the clinic on weekdays, but they are neither
visible nor audible to children entering, exiting, or
inside the school.
¶

35;

Tr.

Vol.

Second Gray Decl. (doc. no. 54-1) at
II

108:24-25 - 109:1-5.

(doc.

no.

111)

at

104:15-20,

Indeed, on the record currently

before the court, there is absolutely no evidence that
the children (or their parents) at the Tuscaloosa school
are even aware that an abortion clinic is located nearby.5
Thus, because the record does not reflect that any K-8
public

school

children

within

2,000

feet

of

the

Tuscaloosa clinic are even aware of the clinic or the
demonstrations at the clinic, the school-proximity law
does not serve either of the State’s asserted purposes
of minimizing disruption or supporting a parent’s right

5. Counsel for the State agreed that nothing in the
record indicates the legislature intentionally included
the
Tuscaloosa
clinic
within
the
scope
of
the
school-proximity law.
Tr. Vol. III (doc. no. 112) at
15:9-11.
19

to control their children’s exposure to the subject of
abortion.

The Tuscaloosa clinic (A) and its protestors (B) are separated
from the nearest school (C) by a large wooded area.
Pl. Ex. 27 (excerpt).

The State does not dispute that, while the law covers
the Tuscaloosa clinic, it was targeted to the “perceived
problem” at the Huntsville clinic.
no. 112) at 14:12-16.

Indeed, the State relies on

20

Tr. Vol. III (doc.

newspaper

articles

that

describe

parental

complaints

about demonstrations outside the Huntsville clinic.
In Huntsville, from 2 to 15 protestors stand outside
the clinic on weekdays.

Tr. Vol. I (doc. no. 110) at

168:5-12 (medical director of Huntsville clinic estimates
2 to 5 protestors on a regular basis and up to 10
protestors on weekdays); Second Johnson Decl. (doc. no.
54-2) ¶ 31 (owner of Huntsville clinic estimates 5 to 15
protestors).

Occasionally larger crowds of protestors

congregate on weekends, when school is not in session.
Tr. Vol. I (doc. no. 110) at 169:5-10; Johnson Dep., Def.
Ex. 20 (doc. no. 81-20) at 3:13-18 (describing large
rallies with up to 150 protestors).

Demonstrators may

yell at patients as they enter or exit the clinic.

Tr.

Vol. I (doc. no. 110) at 216:9-11.
Two public schools that include some or all of grades
K-8--Highlands Elementary School and the Academy for
Academics and Arts--are located within 2,000 feet of the
Huntsville clinic.
clinic

are

on

The entrances to Highlands and the
different

21

streets,

and

they

are

approximately three blocks apart.
177:5-6.

Id. at 176:18-19,

It is not necessary to drive past the clinic

to access the school.

Id. at 176:20-23.

The record

contains absolutely no evidence of concerns expressed by
the

school’s

students

or

their

parents

about

Huntsville clinic or the demonstrations near it.
Highlands,

the

State’s

two

interests

the
As to

(minimizing

disruption and supporting a parent’s right to control
their children’s exposure to the subject of abortion)
would not in any way be furthered by the closing or
relocation of the Huntsville clinic.

22

The Huntsville clinic (A) and the two schools, the Academy for
Academics and Arts (B) and Highlands Elementary School (C).
Pl. Ex. 31 (excerpt).

The Academy for Academics and Arts sits diagonally
across a five-lane street from, and to the east of, the
Huntsville clinic.

Published newspaper articles report

that some parents have complained about the presence of

23

protestors near the clinic.6

But the record reflects no

disturbance to the educational environment: no evidence
suggests that protests are visible or audible from inside
the school; no evidence suggests the classroom setting
has been in any way disturbed by the protests; and no
evidence suggests that children are hindered or disturbed
while entering or exiting the school.

In fact, although

demonstrators sometimes stand across the street from the
abortion clinic and close to an Academy driveway, that
driveway is not used by parents who are dropping children
off; it is used by parents to access an attached parking
lot if they need to enter the school for business or opt
to personally walk their child into the school.
II (doc. no. 111) at 26:21-25 – 27:1-3.

Tr. Vol.

The entrance

used by parents during drop-off and pick-up is accessed

6. As evidence, the State relies on newspaper
articles which describe complaints from a few Academy
parents about anti-abortion protestors outside the
Huntsville clinic, including dislike that the protestors
appeared to target the parents and concern about traffic
safety and delay. Newspaper Articles, Def. Ex. 16 (doc.
no. 81-16), Def. Ex. 17 (doc. no. 81-17), & Def. Ex. 18
(doc. no. 81-18).

24

from another street on the opposite side of the school,
while the driveway used by buses bringing children to and
from the school is on the same street as the clinic, but
further up the road.

Id. at 27:21-25 – 28:1-8; Tr. Vol.

I (doc. no. 110) at 174:16-23; Pl. Ex. 33 (depicting
traffic flow at the Academy).
State’s

interest

in

As to the Academy, the

minimizing

disruption

would

be

feebly, if at all, advanced by the closing or relocation
of the Huntsville clinic.

Traffic pattern at Huntsville’s Academy for Academics and Arts.
Pl. Ex. 33.

25

Also with regard to the Academy, the State’s interest
in

supporting

a

parent’s

right

to

control

their

children’s exposure to the subject of abortion would be
very weakly furthered by the closing or relocation of the
Huntsville clinic.

The record reflects only that one

mother was forced to respond to questions from her son,
an Academy student, about the subject of abortion after
he witnessed the protests.
16

(doc.

no.

Newspaper Article, Def. Ex.

81-16).

Moreover,

because

the

school-proximity law does not define all the locations
where

an

abortion

clinic

may

not

operate,

reality

dictates that it is highly likely, if not inevitable,
that regardless of whether an abortion clinic is located
within or without 2,000 feet of a K-8 public school in
Huntsville, K-8 public school students are, at one time
or another in their travels throughout the city, going
to witness demonstrations at that clinic regardless of a
parent’s best efforts to prevent it.
In addition, the State’s statutory means (the closing
or relocation of the Huntsville clinic) will not lead to

26

the

State’s

intended

end

(the

relocation

demonstrations away from the Academy).

of

The evidence

reflects, and the court so finds, that protests will
continue at the Huntsville clinic’s current location even
if

the

school-proximity

Anti-abortion
outside

the

protestors
Huntsville

law

were

have

demonstrated

clinic,

to

but

take

also

effect.
not

outside

just
the

private practice of the clinic’s medical director, Dr.
Yashica Robinson White, as well as a hospital where she
holds admitting privileges.

Robinson White Decl. (doc.

no. 54-4) ¶¶ 8-10; Tr. Vol. I (doc. no. 110) at 179:2-16;
180:14-20.

Because Robinson White previously used the

Huntsville

clinic’s

current

site

for

her

private

obstetrics and gynecology practice, and routinely two and
as

many

as

ten

protestors

demonstrated

outside

the

facility on weekdays, protests occurred at the site even
before it became an abortion clinic.

Robinson White

Decl. (doc. no. 54-4) ¶ 10; Tr. Vol. I (doc. no. 110) at
166:22-25 – 167:1-5.

And, because Robinson White has

credibly testified that, if the law were to go into

27

effect, she would again use the facility for her private
practice, the law will not stop protests at the site.
Tr. Vol. I (doc. no. 110) at 181:22-25 - 182:1-12;
Robinson White Decl. (doc. no. 54-4) ¶ 16.

Moreover,

because, as the court will explain later, the clinic is
likely to close if the law were to go into effect,
Robinson White has made clear she will be performing
facility,7

all

continued protests at the site.

Id.

abortions

at

the

but

guaranteeing

Based on the current judicial record, the court finds
that the school-proximity law is likely to provide little
to

no

benefit

to

the

State’s

asserted

interests

in

minimizing disruption and supporting a parent’s right to
control

their

abortion.
in

the

children’s

exposure

to

the

subject

of

Because the court has found little to nothing
record

evidence

that

shows

that

the

new

school-proximity law advances the State’s interests, the

7. Robinson White would continue to perform up to
100 abortions per year at the location of the Huntsville
clinic, the maximum number permitted under Alabama law
without an abortion clinic license. Robinson White Decl.
(doc. no. 54-4) ¶ 16.
28

court accords it little to no weight in the balancing
test.

2. Burdens Imposed on Women
In

addition

to

examining

the

State’s

asserted

interests, the court must also “consider the burdens
[the] law imposes on abortion access.”

Whole Woman’s

Health, 136 S. Ct. at 2309.
The

parties

do

not

dispute

that,

if

the

school-proximity law goes into effect, the State Health
Department could not renew the licenses of the Huntsville
and

Tuscaloosa

abortion

clinics

locations after December 31, 2016.

at

their

existing

At that time, the

clinics would need to relocate or shut down.

The court

finds, based on the credible record, that it would not
be feasible for the Tuscaloosa clinic and the Huntsville
clinic to relocate and that the two clinics would have
to shut down if the law were to take effect.

Tr. Vol. I

(doc. no. 110) at 164:19-25 – 165:1-18; Second Gray Decl.

29

(doc. no. 54-1) ¶ 34; Second Johnson Decl. (doc. no.
54-2) ¶ 3.
The current evidence credibly shows that, because
each clinic incurred significant expenses as a result of
the

surgical-center

providers

by

financially

the

requirement

State

feasible

to

in

imposed

2013,

relocate

it
now.

on

would

abortion
not

Because

be
the

Huntsville clinic could not bring its old building into
compliance with the surgical-center standards, it was
forced to relocate, requiring $ 530,000 to purchase a new
facility (the place where Robinson White had leased space
for her private practice) and more than $ 100,000 for
building renovations.
160:23-24, 162:1-4.

Tr. Vol. I (doc. no. 110) at
To cover those expenses, Dalton

Johnson, the clinic owner, and Robinson White incurred
significant personal financial debt.

Second Johnson

Decl. (doc. no. 54-2) ¶ 16 (“In order to purchase the
facility, I cashed in all of my retirement savings;
borrowed from my life insurance policy; refinanced the
mortgage on the Madison Street building and pulled all

30

the equity out of it; took out a $ 100,000 line of credit;
and spent money I had inherited from my father, who had
recently passed away.

In addition, Dr. Robinson White

and I each maxed out every one of our credit cards.”);
Tr. Vol. I (doc. no. 110) at 162:11-18 (Robinson White
explaining that the clinic owner removed “all of the
equity” from his mortgage on the prior clinic facility;
and that she and the clinic owner “emptied” their savings
accounts, “took all of the cash value” out of their
insurance policies, obtained a line of credit through a
bank, and “maxed out” all of their credit cards). Johnson
remains hundreds of thousands of dollars in debt from
these expenses.

Second Johnson Decl. (doc. no. 54-2) at

¶ 17 (describing outstanding debt on $ 100,000 line of
credit; $ 90,000 owed to life insurance policy; and
hundreds of thousands of dollars remaining on mortgages
for both prior and current clinic facilities).

The

testimony of Robinson White, which the court found highly
credible, establishes that she and Johnson have committed

31

significant personal financial sacrifices to continue to
operate the Huntsville clinic.
The Tuscaloosa clinic spent $ 130,000 to renovate
its existing facility to comply with the surgical-center
requirements.

Second Gray Decl. (doc. no. 54-1) ¶ 32.

Purchasing

new

a

facility

now

would

require

the

Tuscaloosa clinic’s owner to use retirement funds or go
into debt, which she would not be able to pay off at this
stage of her career.

Id. ¶ 34.

The Tuscaloosa and Huntsville clinics also could not
rely on leasing a new facility.

Anti-abortion protestors

in Alabama have also targeted the landlords that lease
space to facilities used to provide abortions.
demonstrations
Tuscaloosa

targeted

clinic,

clinic’s lease.

the

the

former

landlord

Id. ¶ 31.

landlord

did

not

After
of

the

renew

the

Similarly, during an earlier

search for a Huntsville facility, Johnson hired real
estate

agents

and

engaged

in

an

extensive

six-month

search, but “each and every time [h]e would meet with the
owner or real estate agent of a building [h]e wanted to

32

lease, the moment [h]e informed prospective lessors that
we intended to operate an abortion clinic in the space,
they would not lease to [him].”
54-2) ¶¶ 12, 14.

Johnson Decl. (doc. no.

Robinson White explained that, during

the Huntsville clinic’s recent relocation, the stigma
surrounding abortion made it difficult to find a banker
and closing attorney to work with them.

Tr. Vol. I.

(doc. no. 110) at 165:2-11.

These difficulties are

consistent

previous

with

the

court’s

finding

that

abortion providers in Alabama face a “climate of extreme
hostility

to

the

practice

of

abortion.”

Parenthood Se., 33 F. Supp. 3d at 1334.

Planned

Against this

backdrop, the plaintiffs have credibly demonstrated that
it would not be practicable for them to relocate.
The State contends that the burdens analysis should
not include the closure of the Huntsville and Tuscaloosa
clinics because whether the clinics close depends on “the
idiosyncrasies
position.”

of

[the

clinics’]

specific

Def. Br. (doc. no. 81) at 9.

financial

In other words,

the State seems to argue that the court should not

33

consider

the

clinics.

This contention misapprehends the undue-burden

case

law.

actual

As

this

financial

court

circumstances

previously

of

explained,

the

the

undue-burden analysis requires an examination of the
“real-world context” of the challenged statute and its
actual effects--and not just those circumstances that
were

directly

attributable

to

the

statute.

Parenthood Se., 9 F. Supp. 3d at 1285-86.

Planned

In Casey, the

Supreme Court’s evaluation of the burdens imposed by a
spousal-notification
women

live

in

requirement

abusive

considered

relationships,

that

many

meaning

that

requiring notification to an abusive spouse imposed a
potentially
abortion.

insurmountable

barrier

to

obtaining

an

See 505 U.S. at 888-898 (majority opinion).

It did not matter that the notification requirement could
not

be

said

to

cause

women

to

live

in

abusive

relationships or contribute to the existence of such
relationships; it was nonetheless dispositive that the
notification

requirement

had

34

the

actual

effect

of

imposing a substantial obstacle on women’s access to
abortion.
Similarly,
imposing

courts

substantial

have
costs

routinely
on

recognized

abortion

that

providers

to

comply with a statute places burdens on women’s access
to abortion--regardless of the financial circumstances
of the clinics.

In Whole Woman’s Health, the Supreme

Court noted that the costs of $ 1 to $ 3 million required
to

achieve

compliance

with

Texas’s

requirement were “considerable.”

surgical-center

136 S. Ct. at 2318.

Evidence of those costs, the Court reasoned, “supports
the conclusion that more surgical centers will not soon
fill the gap when licensed facilities are forced to
close.”

Id.; see also Casey, 505 U.S. at 901 (plurality

opinion) (finding that recordkeeping requirements, which
“[a]t most ... increase the cost of some abortions by a
slight

amount”

do

not

impose

an

undue

burden,

but

acknowledging that “at some point increased cost could
become a substantial obstacle”); Tucson Woman’s Clinic
v. Eden, 379 F.3d 531, 542 (9th Cir. 2004) (concluding

35

that application of new licensing and regulatory scheme
to

abortion

facilities,

which

would

have

required

abortion providers to expend “[t]ens of thousands of
dollars,” contributed to undue burden finding).
The likely closure of two of Alabama’s five abortion
clinics would leave only three abortion clinics operating
in the State--one each in Birmingham, Montgomery and
Mobile--while the rest of the State, including the highly
populated

metropolitan

areas

of

Huntsville

and

Tuscaloosa, would have no licensed abortion providers at
all.

The

resulting

burdens

on

women

would

be

obtain

an

weeks

of

substantial.8
First,
abortion
pregnancy

women

in

would

Alabama

lose

when

altogether,

the

they

because

right
reached
the

to
15

Tuscaloosa

and

8. The State has not disputed any of the plaintiffs’
evidence about the resulting burdens on women should the
Huntsville and Tuscaloosa clinics be forced to close.

36

Huntsville clinics are the only providers of abortions
beginning at 15 weeks of pregnancy.9

9. Admittedly, to obtain an abortion at that point,
women in Huntsville and Tuscaloosa could travel
approximately 400 miles round-trip out of state to the
nearest provider in Atlanta. Second Henshaw Decl. (doc.
no. 54-3) ¶ 20.
For women relying on public
transportation, that would require a round trip no less
than 12 hours of duration. Katz Decl. (doc. no. 54-11)
¶ 21. Citing a study from a similar scenario in Texas,
Dr. Stanley Henshaw concluded that the effect in Alabama
would be comparable to a 70 % reduction in the number of
Alabama women who obtained abortions starting at
approximately 15 weeks of pregnancy.
Second Henshaw
Decl. (doc. no. 54-3) ¶ 20.
In 2014, 560 abortion
procedures were performed beginning at 15 weeks.
See
Donald Decl. Ex. F, Induced Terminations of Pregnancy
Occurring in Alabama, 2014 (doc. no. 81-14). Moreover,
although some women in Alabama could continue to access
abortions beginning at 15 weeks by traveling out of
state, courts have refused to allow out-of-jurisdiction
access to cure within-jurisdiction restrictions.
See
Planned Parenthood Se., 33 F. Supp. 3d at 1360-61; see
also Planned Parenthood of Wis., Inc. v. Schimel, 806
F.3d 908, 918 (7th Cir. 2015) (Posner, J.) (rejecting
argument that the availability of late second-trimester
abortions in Chicago could justify the closure of
Wisconsin’s only abortion clinic that conducted such
abortions, because “the proposition that the harm to a
constitutional right can be measured by the extent to
which it can be exercised in another jurisdiction is a
profoundly mistaken assumption.”
(internal quotation
marks,
citations,
and
alterations
omitted)).
Nonetheless, the court does not need to resolve the legal
issue of whether to consider out-of-state clinics
because, even if this court were to consider those
clinics, it would reach the same conclusion.
37

Second, while abortions before 15 weeks would remain
available in Alabama, women who would currently rely on
the Huntsville or Tuscaloosa clinics would need to travel
significantly

greater

distances.

This

burden

would

become particularly devastating for low-income women who
represent

half

significant
Alabama.

of

majority

all
of

abortion
women

recipients

seeking

and

abortions

a
in

Second Henshaw Decl. (doc. no. 54-3) ¶ 9; Katz

Decl. (doc. no. 54-11) ¶ 15.

If the Huntsville clinic

closed, a woman in Huntsville would need to travel at
least

200

miles

round-trip

to

next-closest abortion provider.

Birmingham

for

the

Without a clinic in

Tuscaloosa, a woman there would need to travel at least
110 miles round-trip to Birmingham.

Multiple studies

have concluded that longer travel distances to access an
abortion provider correlate with lower abortion rates.
Second Henshaw Decl. (doc. no. 54-3) ¶¶ 4-8, 19.

The

court has previously discussed the serious impact of the
“first 50 miles” of travel on women seeking abortions,
and that “when a clinic closes, the largest effects are

38

actually felt by women who, prior to the closure, needed
to travel only short distances, less than 50 miles.”
Planned Parenthood Se., 33 F. Supp. 3d at 1358-60.

The

Supreme Court has also recognized that increased driving
distances,
increases

when
the

taken

burdens

together
on

women

with

other

seeking

an

burdens,
abortion.

Whole Woman’s Health, 136 S. Ct. at 2313 (citing evidence
that, after regulation took effect, the number of women
living more than 150 and 200 miles from an abortion
provider

skyrocketed).

Here,

without

the

school-proximity law, women in Huntsville and Tuscaloosa
could obtain an abortion with a short trip within the
city.

If the law were to take effect, women in those

cities would be required to arrange lengthy out-of-town
trips, including obtaining access to transportation, time
off from work, childcare, and lodging.

But not all women

have the means to do so, which would either prevent such
women from obtaining an abortion altogether or delay
their ability to obtain one.

Second Henshaw Decl. (doc.

no. 54-3) ¶¶ 14, 24 (noting that half of women who

39

experience

unwanted

delay

in

obtaining

abortions

attributed the delay to arrangements such as raising
funds, transportation, locating an abortion provider, and
organizing childcare).
Beyond the increased difficulties women would face
in accessing an abortion clinic, the three remaining
abortion

clinics

in

Alabama

would

capacity to meet the new demand.

lack

sufficient

As a result, not all

women who would want to obtain an abortion could do so.
The Huntsville and Tuscaloosa clinics have performed the
majority

of

abortions

in

Alabama

in

recent

years:

combined, they performed 72 % of all abortions in Alabama
in 2014, 60 % of all abortions in 2013, and 55 % of all
abortions in 2012.
54-2) at 35-37.

Second Johnson Decl. Ex. D (doc. no.

The three remaining clinics could not

shoulder the plaintiff clinics’ substantial caseload.
Together, the Huntsville and Tuscaloosa clinics performed
5,833 abortions in 2014, compared to 2,218 abortions
provided by the three remaining clinics.

40

Id. at 35.

The

total

maximum

capacity

for

Alabama’s

three

remaining clinics is 4,500--but that number depends on a
significant expansion in staffing and services which
seems unrealistic in light of the climate surrounding
abortion in Alabama.

For example, the Montgomery clinic

performed less than 900 abortions in 2014; stretched its
resources

to

perform

1,200

abortions

because

of

the

temporary closure of the Tuscaloosa clinic in 2015; and
estimates

that

it

could

perform

a

maximum

of

1,800

abortions per year at the outermost limit--an estimate
dependent on recruiting additional physicians and support
staff that it has previously struggled to hire because
of the stigma surrounding abortion.
no. 54-7) ¶¶ 6-8.

Ayers Decl. (doc.

The Mobile and Birmingham clinics,

which provided a combined total of 1,342 abortions in
2014, estimate that, with an expansion of capacity to
provide abortions four days per month, they could perform
2,700 abortions per year--but they too are currently
struggling
troubles.

to

expand

capacity

of

staffing

Fox Decl. (doc. no. 54-8) ¶ 5; Donald Decl.

41

because

Ex. F, Induced Terminations of Pregnancy 2014 Report
(doc.

no.

81-14)

at

19.

In

addition,

none

of

the

remaining clinics have plans to expand their services to
provide abortions at or after 15 weeks.
Beyond the statistical reality that the remaining
abortion clinics could not meet the demands of women in
Alabama if the school-proximity law were to take effect,
evidence in the record suggests that the dramatically
expanded services that would need to be provided by the
remaining clinics would be accompanied by costly side
effects. To assume otherwise flies in the face of “common
sense,” which “suggests that, more often than not, a
physical

facility

that

satisfies

a

certain

physical

demand will not be able to meet five times that demand
without

expanding

or

otherwise

incurring

significant

costs.”

Whole Woman’s Health, 136 S. Ct. at 2317.

Also, capacity constraints, especially when combined
with the increased travel times required for women to
obtain an abortion, would introduce delays in women’s
abilities to obtain an appointment and ultimately an

42

abortion.

Later-term abortions, if delayed past the 14th

week of the pregnancy, carry greater medical risks and
also increase the cost of the procedure; if the delay
extends to the 20th week of pregnancy, it would become
illegal for a woman to obtain an abortion in Alabama,
with certain exceptions for the life and health of the
mother.

Planned Parenthood Se., 33 F. Supp. 3d at 1356.

For women in abusive relationships, delays could make
the difference between obtaining or not obtaining an
abortion at all: where a battered woman attempts to
conceal

her

pregnancy

from

her

abuser

through

a

medication abortion, she must do so in the first ten
weeks of pregnancy or risk having her abuser learn of her
abortion.

Walker

Decl.

(doc.

no.

54-9)

¶¶

15-16.

Furthermore, the abortions that the remaining clinics
could provide likely would not equal in quality the care
provided prior to the law taking effect:

In the crowded

clinics that would surely result, women are “less likely
to get the kind of individualized attention, serious
conversation, and emotional support that doctors at less

43

taxed

facilities

may

have

Health, 136 S. Ct. at 2318.

offered.”

Whole

Woman’s

These factors, too, would

impose a burden on women seeking an abortion.
Each

of

these

factors--the

unavailability

of

abortions beginning at 15 weeks, the increased travel
times, and the reduced capacity and increased wait times
at Alabama’s three remaining clinics--establishes that
women

will

face

significantly

increased,

and

even

insurmountable, barriers to obtaining an abortion.
Where these types of barriers exist, it is likely
that some women will pursue risky alternatives.

Cf.

Whole Woman’s Health, 136 S. Ct. at 2321 (Ginsburg, J.,
concurring) (“When a State severely limits access to safe
and legal procedures, women in desperate circumstances
may resort to unlicensed rogue practitioners, faute de
mieux,10 at great risk to their health and safety.”);
Planned

Parenthood

Se.,

33

F.

Supp.

3d

at

1362-63

(describing greater risk that women would attempt to

10.
This phrase, French in etymology, means “for
lack of an alternative.” Faute de mieux, Oxford English
Dictionary (2d ed. 1989).
44

obtain

an

abortion

illegally

where

travel-related

obstacles and capacity constraints are imposed).
Tuscaloosa

clinic

has

had

firsthand

experience

The
with

attempts to self-abort, including when the clinic was
temporarily closed in 2015.
would

nonetheless

show

up

During that time, women
to

the

clinic

seeking

an

abortion--including one woman who threatened to stab
herself in the stomach.
54-1) ¶ 47.

Second Gray Decl. (doc. no.

During the same time period, the Huntsville

clinic experienced an increased number of calls from far
away women, some of whom said “outright that they would
try to self-induce an abortion because they could not
reach

a

provider.”

54-2) ¶ 49.

Second

Johnson

Decl.

(doc.

no.

Recently, Tuscaloosa’s medical director has

treated multiple women who attempted to self-abort, such
as a woman who consumed turpentine after consulting the
Internet and learning about its use as a folk remedy.11

11. Incidentally, women in the South have resorted
to turpentine before. One study from 1936 reported that
rural black women in Georgia consumed turpentine for
self-induced abortions. Turpentine relies on ingredients
45

Tr. Vol. II (doc. no. 111) 69:1-9.
expect

an

increased

level

of

So too can Alabama

self-abortions

if

the

school-proximity law were to take effect.12
In summary, because the Tuscaloosa and Huntsville
clinics provide more than 70 % of abortions in Alabama
and are the only providers of abortions beginning at 15
weeks of pregnancy, and because the two clinics would
have to cease operations if the school-proximity law went
into effect, the availability of abortions in Alabama
would be significantly reduced, and abortions beginning
at

15

weeks

would

become

almost

wholly

unavailable.

Thus, Alabama women attempting to obtain a pre-viability
abortion would likely experience substantial, and even

similar to those reportedly used by southern slaves
seeking to self-abort.
Jessie M. Rodrique, The Black
Community and the Birth Control Movement, in Women and
Health in America 293, 295 (Judith Walzer Leavitt ed.,
1999).

12. Even if the clinics did not permanently close,
the temporary closure of both clinics effective January
1, 2017 would still impose the significant burdens
described above on women seeking abortions in Alabama
until each clinic could secure a new facility.
46

insurmountable, burdens if the school-proximity law were
to take effect.

3. Balancing
Because, as stated above, the undue-burden analysis
involves
State’s

a

balancing

interests

test,

impacts

the

the

weight

weight

given

of

the

to

the

burdens

necessary to conclude that a statute unconstitutionally
restricts abortion access.

In other words, “the more

severe the obstacle a regulation creates, the more robust
the government’s justification must be, both in terms of
how

much

benefit

the

regulation

provides

towards

achieving the State’s interests and in terms of how
realistic it is the regulation will actually achieve that
benefit.”
Here,

Planned Parenthood Se., 9 F. Supp. 3d at 1287.
because,

as

the

current

judicial

record

reflects, the State’s interests are so attenuated and
thus should be given little to no weight, and because,
as the current judicial record further reflects, the
school-proximity law would place substantial, and even

47

insurmountable,
pre-viability
concludes

burdens

on

abortions,

that

the

law

Alabama

the
does

women

court
not

seeking

preliminarily

“confer[]

benefits

sufficient to justify the burdens upon access that [it]
imposes.”
The

court

Whole Woman's Health, 136 S. Ct. at 2299.13
thus

preliminarily

holds

that

the

school-proximity law “constitutes an undue burden on
abortion access” and is unconstitutional.

Id.

14

4. The State’s Other Arguments
In its attempt to justify its regulatory approach,
the State argues that governments routinely regulate the

13.
While the court finds that the State’s
justifications for the school-proximity law are weak, the
court must emphasize that its conclusion does not turn
solely on that finding. In the alternative, the court
further finds that the justifications are by no means
sufficiently strong to justify the obstacles that the
requirement would impose on women seeking an abortion.
14.
The issue has arisen as to whether the
school-proximity law is both as-applied and facially
unconstitutional. The court need not resolve this issue
at this time. It is sufficient that, for now, the court
simply preliminarily enjoins the law’s enforcement
against the Tuscaloosa and Huntsville clinics.
48

types

of

businesses

that

may

operate

near

schools,

relying principally on First Amendment challenges to
zoning decisions.

See, e.g., Def. Br. (doc. no. 81) at

44 (“‘[T]here can be little doubt about the power of a
state to regulate the environment in the vicinity of
schools ... by exercise of reasonable zoning laws.’”
(quoting Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 121
(1982)).

That argument misapprehends the nature of the

undue-burden analysis.
in

Whole

Woman’s

As the Supreme Court reaffirmed

Health,

the

undue-burden

analysis

requires the court to consider, based on the judicial
record, “the burdens a law imposes on abortion access
together with the benefits those laws confer.”
Ct. at 2309.

136 S.

That analysis must have bite: It would be

erroneous to “equate the judicial review applicable to
the regulation of a constitutionally protected liberty
with

the

less

strict

review

applicable

where,

example, economic legislation is at issue.”

Id.

for
In

zoning cases, by contrast, the government’s authority is
“undoubtedly

broad,”

and

“the

49

standard

of

review

is

determined

by

the

nature

of

the

right

assertedly

threatened or violated rather than by the power being
exercised or the specific limitation imposed.”

Schad v.

Borough of Mount Ephraim, 452 U.S. 61, 68 (1981).

Thus,

in government regulation of liquor establishments in the
vicinity

of

watchword.”

schools,

“judicial

deference

is

the

Davidson v. City of Clinton, Miss., 826 F.2d

1430, 1433 (5th Cir. 1987) (approving restriction on sale
of alcohol within 500 feet of a school, as applied to a
nightclub).

Where constitutionally protected interests

are threatened, by contrast, the State’s cited examples
for government regulation of the areas around schools do
not withstand scrutiny.

See, e.g., Larkin, 459 U.S. at

117

Establishment

(invalidating,

on

Clause

ground,

statute that delegated authority to schools and churches
to

veto

liquor

licenses

within

500

feet

of

their

the

First

premises).
Similarly,

the

State’s

reliance

on

Amendment ‘secondary effects’ doctrine of City of Renton
v.

Playtime

Theatres,

Inc.,

50

475

U.S.

41

(1986),

is

mistaken.

In that case, the Supreme Court upheld a city

ordinance prohibiting adult movie theatres from operating
within 1,000 feet of a school because the ordinance
advanced

the

State’s

interests

in

eliminating

the

“undesirable secondary effects” of the theatres, such as
crime, hurting retail trade, and depressing property
values.

475 U.S. at 48-49.

too

an

has

secondary

interest

effects”

in

of

The State asserts that it

regulating
abortion

“the

clinics,

undesirable
implicitly

because of demonstrations and the impact on children who
witness them.

Def. Br. (doc.

no. 81) at 47.

But the

secondary-effects doctrine justifies State actions that
would

otherwise

constitute

an

impermissible

content-based infringement of First Amendment rights;
that is, it is an argument specific to a First Amendment
claim, but such a claim is not currently before the court.
Further, the Supreme Court has squarely rejected the
doctrine’s applicability to speech viewed as disturbing
or offensive, specifically concluding that “[l]isteners’
reactions

to

speech

are

not

51

the

type

of

‘secondary

effects’ we referred to in Renton.”

Boos v. Barry, 485

U.S. 312, 321 (1988); accord Reno v. Am. Civil Liberties
Union, 521 U.S. 844, 867-68 (1997) (rejecting application
of

Renton’s

secondary-effects

doctrine

to

statute

intended to protect children from offensive speech).
Thus,

even

under

Renton,

the

State

could

not

force

abortion clinics to relocate based on parents’ reactions
to protestor speech.
Moreover, if the State seeks to regulate the areas
around

schools,

other

approaches

advance its asserted interests.
could

have

enacted

a

could

effectively

For example, the State

“time,

place,

and

manner”

restriction on demonstrations outside facilities “where
abortions

are

offered

or

performed.”

McCullen

v.

Coakley, 134 S. Ct. 2518, 2530-32 (2014) (approving such
a

buffer

zone

because

it

advanced

public

safety

objectives in light of evidence of crowding, obstruction,
and violence).

It is undoubtedly the province of the

legislature, and not this court, to prescribe the most
appropriate

regulatory

approach.

52

Nevertheless,

the

availability of alternative means more likely to achieve
the

State’s

asserted

interests

confirms

the

court’s

conclusion that little weight should be placed on an
approach that does not substantially further the State’s
interests

and,

in

addition,

imposes

a

substantial

obstacle on a woman’s right to obtain an abortion.
The

court’s

preliminary

holding

that

the

school-proximity law is unconstitutional still obtains.

B. Irreparable Harm
The court now turns to whether the plaintiffs have
established irreparable harm. Effective January 1, 2017,
if the school-proximity law were to go into effect, the
Tuscaloosa and Huntsville clinics would have to lay off
staff and close their businesses.

Second Gray Decl.

(doc. no. 54-1) ¶ 5; Johnson Decl. (doc. no. 54-2) ¶ 3.
Indeed,

the

Tuscaloosa

clinic

would

stop

providing

abortions and begin to wind down operations in November
2016.

Second Gray Decl. (doc. no. 54-1) ¶¶ 5, 37-38.

Business closure clearly qualifies as irreparable harm.

53

ABC Charters, Inc. v. Bronson, 591 F. Supp. 2d 1272, 1307
(S.D. Fla. 2008) (Gold, J.) (finding irreparable harm
where evidence showed that plaintiffs would have to close
their businesses as a result of the law).15
Moreover,

Alabama

women

seeking

pre-viability

abortions would suffer immediate and irreparable harm as
described above.
no

longer

obtain

Without injunctive relief, they could
an

anywhere in Alabama.

abortion

beginning

at

15

weeks

Before 15 weeks, women in Alabama’s

second largest metropolitan area would need to travel at
least 200 miles round-trip to obtain an abortion in
Alabama,

while

women

in

Alabama’s

fifth

largest

metropolitan area would need to travel at least 110 miles
to do so; and the resulting burdens on Alabama’s three

15. The
ABC
Charters
court
concluded
that
irreparable harm would result from the closure even
though it would occur in part because of the particular
financial circumstances of the business: it was a “small
family-run company” and was the “primary source of income
on which [the proprietor and his wife] had planned to be
able to retire.” 591 F. Supp. 2d at 1307. The court
concluded that the proprietor could not afford the
increased costs from the regulation and would, in
actuality, close.
54

remaining clinics would introduce significant delays to
obtaining an abortion, translating into reduced quality
of care, increased risk of medical complications, and for
some women, no access to an abortion until, for reasons
of health or law, it is too late.

See Harris v. Bd. of

Supervisors, L.A. Cty., 366 F.3d 754, 766 (9th Cir. 2004)
(concluding that medical complications due to delayed
treatment will cause irreparable harm in absence of an
injunction).

Even if, against all record evidence, one

of the clinics should reopen or a new clinic opens to
fill the gap, the likelihood of at least a temporary gap
of

“unknown

unavailable

duration”
supports

a

in

which

finding

abortions
of

would

irreparable

be

harm.

Planned Parenthood of Wis., 738 F.3d at 795.
Finally,
abortion,

by

the

interfering

in

school-proximity

women’s
law

threatens

constitutionally protected privacy rights.
of

privacy

must

be

carefully

right

guarded

to

an

their

“[T]he right
for

once

an

infringement has occurred it cannot be undone by monetary
relief.”

Deerfield Med. Ctr. v. City of Deerfield Beach,

55

661 F.2d 328, 338 (5th Cir. Unit B 1981).16
an

ongoing

threat

irreparable

harm

to

is

the

right

presumed.

of
Ne.

And, where

privacy
Fla.

exists,

Chapter

of

Associated Gen. Contractors v. City of Jackson, 896 F.2d
1283, 1285 (11th Cir. 1990).

Thus, in Deerfield Medical

Center, a denial of a license to open an abortion facility
in

a

manner

that

was

likely

to

be

unconstitutional

mandated a finding of irreparable injury.

661 F.2d at

338.
For all these reasons, the plaintiffs have met their
burden

of

showing

that

a

preliminary

injunction

is

necessary to avoid irreparable injury.

16. Deerfield Medical Center is binding precedent
in the Eleventh Circuit.
See Doe v. Busbee, 684 F.2d
1375, 1379 n. 2 (11th Cir. 1982) (as Deerfield Medical
Center was decided by a Unit B panel of the former Fifth
Circuit, the Eleventh Circuit “‘regards the decision as
binding precedent ...’”) (quoting Stein v. Reynolds
Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982)).
56

C. Balance of the Hardships
The court turns next to whether the threatened harm
to the plaintiffs outweighs whatever damage or harm a
proposed injunction may cause the State.
The

State

has

not

asserted

it

will

suffer

any

hardships if the school-proximity law were preliminarily
enjoined.

Nevertheless and presumably, the hardship it

would suffer is that a law passed by legislators will not
go into effect.

This harm is minor given the temporary

nature of a preliminary injunction.

Planned Parenthood

Se., Inc. v. Bentley, 951 F. Supp. 2d 1280, 1290 (M.D.
Ala. 2013) (Thompson, J.).

Further, because the State

has not currently demonstrated that its interests are
meaningfully

threatened

substantially

further

or

those

that

the

interests,

law
a

delay

will
in

implementation will not impose a serious hardship to the
State.
In contrast, as stated, if the law were to go into
effect,

the

plaintiffs

would

have

to

stop

providing

abortions before January 1, 2017, and, based on the

57

current record, would close their doors.

Women seeking

an abortion will face substantial new obstacles following
the closure, including the denial of abortions beginning
at 15 weeks and accompanying health risks associated with
reduced and delayed access to abortion care.

Because the

plaintiffs have shown concrete and serious harms, while
the

State

faces

only

speculative

harms

and

has

not

demonstrated the law will help it achieve its asserted
State interests, the balance of hardships weighs heavily
in the plaintiffs’ favor.

D. Public Interest
Finally, the court addresses whether a preliminary
injunction is in the public interest.

Without question,

it is in the public interest to preserve the status quo
and give the court an opportunity to evaluate fully the
lawfulness of the school-proximity law without subjecting
the plaintiffs, their patients, or the public at large
to any of its potential harms.

Further, the public has

no interest in the enforcement of a statute likely to be

58

unconstitutional.

Odebrecht Const., Inc. v. Sec’y, Fla.

Dep’t of Transp., 715 F.3d 1268, 1290 (11th Cir. 2013).
Finally, as stated, the State has not demonstrated that
the school-proximity law meaningfully furthers interests
in avoiding disturbance in educational environments or
protecting children from the subject of abortion.

In

fact, it is ironic that the State would assert that one
of the purposes behind the school-proximity law is to
minimize disruption in the educational environment, for
the current record reflects that the effect of the law
has been the opposite, the encouragement of disruption.
The law has essentially rewarded the protesters with the
intended goal of their disruption: the harassing, and
even closing, of the clinics.

The message of the law is

arguably that the greater the disruption, the greater the
likelihood that the State will react with laws to curb
that disruption by placing additional restrictions on the
clinics.

17

17.
Nevertheless, even if the demonstrations in
Huntsville could be viewed as justifying the passage of
59

V. THE FETAL-DEMISE LAW
The

court

now

turns

to

whether

it

should

preliminarily enjoin enforcement of the fetal-demise law.
The

Alabama

Unborn

Child

Protection

from

Dismemberment Abortion Act, which the court calls the
fetal-demise
physicians

law,
who

imposes
purposely

a

criminal
perform

penalty

on

‘dismemberment

abortions,’ defined as “dismember[ing] a living unborn
child and extract[ing] him or her one piece at a time
from the uterus through use of clamps, grasping forceps,
tongs, scissors, or similar instruments.”
§

26-23G-2(3).

A

health

exception

1975 Ala. Code

applies

if

the

physician in reasonable medical judgment decides that
“the child's mother has a condition that so complicates
her medical condition that it necessitates the abortion

the school-proximity law, its 2000-foot restriction is
grossly overreaching.
As the overwhelming evidence
demonstrates, there is no evidentiary basis for the
Tuscaloosa clinic to cease operation at its current
location because it falls within 2,000 feet of a middle
school or for the Huntsville clinic to cease operation
at its current location because it falls within 2,000
feet of Highlands Elementary School.
60

of her pregnancy to avert her death or to avert serious
risk of substantial and irreversible physical impairment
of a major bodily function, not including psychological
or emotional conditions.”

1975 Ala. Code. § 26-23G-2(6).

A physician found to be in violation of this law may face
a civil suit or a criminal penalty, consisting of a fine
up to $ 10,000, imprisonment for up to two years, or
both.

While not mentioned explicitly in the language of

the law, the parties agree that it would ban the standard
D&E method, if used without first inducing fetal demise.18
Standard D&E is a surgical abortion method in which
a woman’s cervix is dilated only enough to allow passage
of surgical instruments, after which the physician uses
forceps to grasp the fetus and remove it, and uses suction

18. The law does not use or define the term ‘fetal
demise’ or explain how fetal demise should be determined.
The parties appear to agree that the fetus would no longer
be considered “living” under the law when asystole, or
the termination of a heartbeat, occurs, and they used the
term ‘fetal demise’ to denote that occurrence. The court
likewise uses the term to mean termination of the fetal
heartbeat.
61

to

remove

remaining

contents

of

the

uterus.19

It

is

important to open the cervix gently, and then only a
small amount, for safety reasons and to preserve it for
future pregnancies. Tr. Vol. I (doc. no. 110) at 16:5-12.
Because the opening of the cervix is too small for the
entire fetus to pass, separation of fetal tissues occurs
during the process of removing the fetus. Id. at 17:6-14.
Due to this separation of tissues, standard D&E falls
under

the

category

of

‘dismemberment

defined in the fetal-demise law.

abortions,’

as

Physicians start using

the standard D&E procedure around 15 weeks of pregnancy,
before

which

suction.

they

can

remove

the

fetus

using

only

The procedure takes between 10 to 15 minutes.

Id. at 17:15-16.

19. The court uses the term ‘standard D&E’ in order
to distinguish it from ‘intact D&E,’ sometimes called
‘D&X,’ which involves dilating the cervix enough to
remove the whole fetus intact. ‘Intact D&E’ is banned
under the Federal Partial-Birth Abortion Ban Act of 2003,
unless fetal demise is induced before the procedure. See
Gonzales v. Carhart, 550 U.S. 124 (2007) (upholding the
federal partial-birth abortion ban).
Furthermore, the
court refers to standard D&E as the procedure that does
not include induced fetal demise.
62

Standard D&E is considered an extremely safe abortion
method,

with

a

complications.

less

than

1

%

Id. at 17:17-18.

chance

of

major

Due to its low risk of

complications, relative simplicity, and short duration,
it

is

the

most

common

method

of

second-trimester

abortions in Alabama; in fact, it is the only method that
the Tuscaloosa and the Huntsville clinics use to perform
abortions at or after 15 weeks of pregnancy.

Parker

Decl. (doc. no. 54-6) ¶ 14; Robinson White Decl. (doc.
no. 54-4) ¶¶ 20, 22-25.
abortion
setting.20

D&E is the only second-trimester

method

that

can

Tr.

Vol.

I

be

(doc.

used

in

no.

110)

an
at

outpatient
189:8-11.

20. The
only
other
abortion
method
for
second-trimester abortion is the induction method, where
a physician uses medication to induce labor and deliver
a non-viable fetus over the course of hours or even days.
Tr. Vol. I (doc. no. 110) at 12:20-13:30.
Induction
procedures are more expensive, difficult, and stressful
for the patient. Furthermore, state regulations do not
allow outpatient clinics to initiate an abortion
procedure that may entail more than 12 hours of clinical
involvement, meaning that it must be performed in a
hospital. Tr. Vol. II (doc. no. 111) at 43:8-24. As a
result, induction is essentially unavailable to women
seeking second-trimester abortions in Alabama, and the
State has not suggested otherwise. See supra note 1.
63

Nationally, about 95 % of second-trimester abortions are
performed through standard D&E.

Davis Decl.

(doc. no.

54-5) ¶ 7. In Alabama, the Tuscaloosa and Huntsville
clinics are the only ones providing abortions starting
at 15 weeks of pregnancy.

A. Likelihood of Success on the Merits
The court must first determine whether there is a
likelihood that the plaintiffs will succeed on their
challenge

to

undue-burden

the

fetal-demise

standard,

described

law.

The

previously,

Casey

governs.

Put succinctly, “[a] statute which, while furthering [a]
valid

state

interest,

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.”
2309

(quoting

opinion)).

Whole Woman's Health, 136 S. Ct. at

Casey,

505

U.S.

at

877

(plurality

Thus, abortion regulations that “have the

purpose or effect of presenting a substantial obstacle
to a woman seeking an abortion impose an undue burden on

64

the

right.”

Id.

(quoting

(plurality opinion)).

Casey,

505

U.S.

at

878

For the reasons discussed below,

the court holds that the plaintiffs are likely to succeed
on the merits of their challenge to the fetal-demise law.

1. State’s Interests
Because

no

legislative

findings

accompany

the

fetal-demise law, the court does not have an explanation
from

the

legislature

of

the

purpose

for

the

law.

Nevertheless, the State argues that the law advances
these

interests:

advancing

respect

for

human

life;

promoting integrity and ethics of the medical profession;
and promoting respect for life, compassion, and humanity
in society at large.21
of these interests.
2310

(assuming

that

The court assumes the legitimacy

Whole Woman’s Health, 136 S. Ct. at
the

State

had

legitimate

state

21. It is worth noting that the State does not argue
that the ban on dismemberment abortion is designed to
avoid fetal pain.
Fetal pain is not a biological
possibility until 29 weeks, well beyond the range of
standard D&E procedures and beyond the legal limit of
abortion in the state of Alabama; the State does not
dispute this. Tr. Vol. I (doc. no. 110) at 138:1-6.
65

interests

where

the

statute

did

not

contain

any

legislative findings).

2. Burdens Imposed on Women
The plaintiffs assert that the fetal-demise law would
force Alabama women seeking pre-viability abortions to
go through medically unnecessary procedures and subject
them to heightened health risks.

Furthermore, they state

that, if the law were to go into effect they would stop
performing

D&E

abortions

concerns,

thereby

altogether

rendering

due

to

abortions

ethical

essentially

unavailable in the State of Alabama starting at 15 weeks.
The

State

responds

that

fetal

demise

can

be

safely

achieved before standard D&E with one of these three
procedures:
injection,
discussed
standard

umbilical-cord
and

potassium-chloride

earlier,
D&E

procedure;

transection,

the

unless

accordingly,

injection.

fetal-demise

fetal

demise

the

digoxin

law

criminalizes

occurs

court’s

As

before

the

determination

whether the law imposes substantial obstacles to abortion

66

access

turns

on

the

feasibility

of

the

proposed

fetal-demise methods.
As with the State’s asserted interests, there are no
legislative findings that these procedures are safe and
effective.

In any event, this court must now, based on

the “judicial record,” make its own findings in that
regard.

See Whole Woman's Health, 136 S. Ct. at 2310

(“[T]he relevant statute here does not set forth any
legislative findings.

Rather, one is left to infer that

the legislature sought to further a constitutionally
acceptable objective.... For a district court to give
significant weight to evidence in the judicial record in
these circumstances is consistent with this Court's case
law.”).

The court concludes that, on the current record,

the proposed fetal-demise methods are not feasible for
use in the Tuscaloosa and Huntsville clinics.

a. Umbilical-Cord Transection
To perform umbilical cord transection incident to
standard D&E, the physician must first dilate the woman’s

67

cervix enough to allow the passage of instruments to
transect the cord.

Once the cervix is dilated, the

physician uses the ultrasound machine to visualize the
umbilical cord.

As both parties’ experts testified, the

physician then punctures the amniotic membrane, inserts
an instrument into the uterus, and tries to find the cord
with a surgical instrument and cut it.

The physician

must then wait for the fetus to achieve asystole, or
cessation of heart activity.

Tr. Vol. I (doc. no. 110)

at 77:13-21; Tr. Vol. II (doc. no. 111) at 123:8-124:18.
Once asystole has occurred, the physician can perform
standard D&E, removing fetal tissues and other contents
of pregnancy.
The court finds that, for the following reasons, the
umbilical cord transection procedure is not a feasible
method of causing fetal demise before standard D&E.
(i)

Multiple

factors

make

cord

transection

technically difficult before a standard D&E procedure:
(1) lack of visualization; (2) continuous shrinking of
the uterus; and (3) the size of the umbilical cord.

68

First, before the amniotic membrane is punctured, the
physician is readily able to visualize the fetus and the
umbilical cord due to the contrast on the ultrasound
between the amniotic fluid and the uterine and fetal
tissue.
amniotic

However,
sac

is

when

the

punctured

membrane
at

the

surrounding

beginning

of

the
the

procedure, the amniotic fluid drains from the uterus.
Once the fluid has drained, it is much more difficult to
visualize the location of the umbilical cord. Tr. Vol. I
(doc. no. 110) at 77:16-78:17. Second, as the fluid
drains, the uterus contracts, pushing the contents of the
uterus against each other.
must

identify,

reach,

In other words, the physician

and

transect

the

cord

with

a

surgical instrument without any visualization aid or
space

between

77:16-78:17.

different

types

of

tissues.

Id.

at

Third, depending on the gestational age,

the cord may be very thin; at 15 weeks, it is the width
of a piece of yarn.22

Furthermore, as the fluid drains

22.
Two thirds of patients in Alabama undergo
standard D&E during 15 to 18 weeks of pregnancy. Donald
69

out of the uterus, the cord may become flaccid, making
it harder to find .

Id. at 77:16-78:17.

(ii) Cord transection is not a feasible method for
women seeking second-trimester abortion also because it
carries

significant

including
uterus.

blood

health

loss,

risks

infection,

to
and

the

patient,

injury

to

the

See Gonzales, 550 U.S. at 161 (reiterating the

Court’s jurisprudence that abortion regulations that pose
“significant health risks” are unconstitutional).
time

a

uterus,

physician
there

is

introduces
a

risk

an
of

instrument
infection

or

Every

into

the

uterine

perforation; this risk increases with every pass of the
instrument.

Tr. Vol. I (doc. no. 110) at 80:1-16.

As

performing cord transection involves searching blindly
for the umbilical cord, the risk of complications would
be greater than when performing standard D&E alone.

But

far more concerning is the risk of serious blood loss.
One of the plaintiffs’ experts testified that she and her

Decl. Exs. A-C, Induced Terminations
Occurring in Ala. (doc. no. 81-14).

70

of

Pregnancy

colleagues tried using umbilical-cord transections in a
hospital to induce fetal demise before performing intact
D&E,

but

safety.

stopped

because

of

concerns

about

patient

In their experience, it took as long as 13

minutes after cutting the cord for the heartbeat to stop;
and, while waiting for the fetal heart to stop, the
patients were having contractions, undergoing placental
separation, and losing blood, which caused the physicians
great concern.

Tr. Vol. I (doc. no. 110) at 82:21-83:11.

As a result, the expert and her colleagues abandoned the
idea of using cord transection as a standard practice
before intact D&E, and now use it only under uncommon

71

circumstances when they have no other options.23

Id. at

83:4-15.24

23. The State argues that the law’s health exception
would apply were a physician to attempt to transect the
umbilical cord and fail, because the patient would then
be in serious risk of irreversible impairment to major
bodily functions.
It is not apparent that the health
exception was designed to apply in this way. However, the
court need not resolve this issue at this time, because
it finds that the procedure would still be unavailable
to women in Alabama, even if the health exception were
to apply to every instance of a failed cord transection,
for the reasons set forth in this section.
24. The court makes these general findings regarding
two of the experts who testified at the hearing.
Dr.
Anne Davis, one of the plaintiffs’ experts, was highly
credible
and
extremely
knowledgeable
about
the
fetal-demise methods and the provision of abortion in the
outpatient clinic setting such as the Tuscaloosa and
Huntsville clinics. In contrast, the court found that
Dr. Joseph Biggio, the State’s expert, has expertise in
the provision of potassium-chloride injections in an
academic medical center, but that he had significantly
less expertise than the plaintiffs’ experts on abortion
in general, because he does not in any sense specialize
in abortion.
In particular, he did not evince
significant knowledge of the provision of abortion in
outpatient clinic settings, and his testimony as to
digoxin injection and umbilical cord transection was
largely theoretical and not based on experience.
Accordingly, the court gave his testimony less weight in
those areas.

72

These concerns would be amplified in the Tuscaloosa
and Huntsville clinics because of the outpatient setting
in which they operate.25

Unlike physicians practicing in

hospitals, the clinic physicians do not have access to
blood services for patients at risk of serious blood
loss, nor do they have access to subspecialists such as
anesthesiologists;

medical

equipment

at

outpatient

clinics is not as advanced as what is available in
tertiary-care hospital settings.26

Tr. Vol. I (doc. no.

110) at 236:9-18.

25. The court rejects the defense expert’s testimony
that umbilical cord transection would be feasible in the
Tuscaloosa and Huntsville clinics, in part because of the
differences between the type of specialized hospital
where he practices and the clinics. The expert, who
practices at a major academic hospital, testified that
with a certain type of advanced ultrasound machine, a
physician should be able to locate the umbilical cord
easily; however, the Tuscaloosa and Huntsville clinics
do not have these advanced ultrasound machines suitable
for academic hospitals, and these devices cost about
$50,000 to $100,000.
Tr. Vol. I (doc. no. 110) at
43:10-13, 198:16-199:9.
26. Tertiary care is defined as “highly specialized
medical care usually over an extended period of time that
involves advanced and complex procedures and treatments
performed by medical specialists in state-of-the-art
73

(iii)

Umbilical cord transection also is not a

feasible method because it is essentially an experimental
procedure

that

patient.

carries

The

State

no

medical

argues

benefits

that

to

umbilical

the
cord

transection is a viable, safe option before standard D&E
based on a single study--indeed, the only existing study
that has examined umbilical cord transection as a method
for fetal demise before D&E.

But the study raises more

questions than it answers.
The study suffers from several flaws that render it
unreliable.
series

First, the article was a retrospective case

study,

which

means

that

the

researchers

were

trying to answer a question by going through medical
records after the data was collected for purposes other
than research.

While not the least reliable type of

study, it is one of the least reliable.
study

relies

on

medical

records

from

a

Because the
non-research

facilities.”
http://www.merriam-webster.com/dictionary/tertiary%20ca
re.
74

context, there is no way of knowing how the underlying
data was collected, or what data was omitted from the
records.

Tr. Vol. I (doc. no. 110) at 84:3 20. The study

states that close to 10% of the original study group was
excluded for incomplete records.

Tocce, Kristina, et

al., Umbilical Cord Transection to Induce Fetal Demise
Prior to Second-Trimester D&E Abortion, 88 CONTRACEPTION
712, 713 (2013) (doc. no. 81-13).
Further, because of the study design, the article is
missing

details

that

would

reliably

establish

risk

levels.

It does not have a control group, meaning that

there is no way to compare the outcomes of the group that
received cord transection and the group that did not
receive cord transection.

The study also does not report

how much time or how many passes it took to successfully
grasp and transect the cord in each case; as explained
above, the more passes with instruments in the uterus,
the

greater

infection.
week-by-week

the

risk

Finally,

of

injury

the

distribution

of

75

study

to

the

uterus

does

not

gestational

age

and

report
of

the

subjects,

even

though

the

success

rate

of

cord

transection procedures would be expected to vary across
the gestational age due to the size of the umbilical
cord.

Tr.

Vol.

I

(doc.

no.

110)

at

83:23-86:13;

125:14-22.
Moreover, it is not at all clear that the resources
of where the transections in the study were performed are
comparable to those of the Tuscaloosa and Huntsville
clinics.

The

patients

in

the

study

underwent

intracervical anesthetic blocks and IV sedation during
the

cord

transection

and

D&E

procedures,

which

are

unavailable at the Tuscaloosa and Huntsville clinics.
Tr. Vol. I (doc. no. 110) at 236:14-18; Tocce, Kristina,
et al., Umbilical Cord Transection to Induce Fetal Demise
Prior to Second-Trimester D&E Abortion, 88 Contraception
712, 713 (2013) (doc. no. 81-13).
conditions

to

the

Tuscaloosa

and

Comparing the study
Huntsville

clinics

appears to be like comparing apples to oranges; the study
provides paltry evidence as to the safety of performing
the procedure in the Alabama clinics.

76

In sum, cord transection carries serious risks, but
insufficient research has been conducted to quantify
those risks.

Requiring cord transection before standard

D&E would force physicians to perform a procedure without
much, if any, information about the likelihood of harm
to the patient.

Further, the law would force women to

accept an uncertain, potentially grave risk of harm as
the

cost

of

undergoing

standard

D&E,

well-documented for its low risks.
cannot

countenance

undergo

a

study.
Danforth,

risky
Planned
428

requiring

procedure

Parenthood

U.S.

52,

79

of

on

of

one

Central

(1976)

is

The court simply

thousands

based

which

women

to

questionable
Missouri

(striking

down

v.
an

abortion method ban where the alternatives proposed by
the State were largely experimental and unavailable to
women in the state).
(iv)

This

physicians’

risk

credible

of

harm

validates

testimony

that

the

they

plaintiff

would

stop

providing standard D&E if they were required to perform
fetal demise procedures before standard D&E.

77

Tr. Vol. I

(doc. no. 110) at 212:4-14; Tr. Vol. II (doc. no. 111)
at 48:24-49:6.

Physicians have an ethical obligation not

to subject patients to potentially harmful procedures
without any medical benefit.

The court finds that, due

to these ethical concerns and the uncertain risk of harm,
the plaintiff physicians are unlikely to continue to
perform abortions at or after 15 weeks if required to use
fetal-demise procedures.
(v) Cord transection is not a feasible fetal-demise
method because training is unavailable.

Given that cord

transection is an experimental, technically difficult,
and

risky

before

procedure,

performing

it

physicians
on

would

patients.

need

training

However,

the

physicians at the Tuscaloosa or Huntsville clinics have
not been trained in the procedure, and it is unclear on
the current record how they would get training.
cord

transection

is

not

a

common

procedure

Because
before

standard D&E, it would be difficult for physicians to
even find cases to observe, especially in the early part

78

of the second trimester.

Tr. Vol. I (doc. no. 110) at

79:19-25.
The technical difficulties of performing umbilical
cord transection, the potential for serious harm, the
lack of sufficient research on risks associated with the
procedure,

and

the

unavailability

of

training

all

indicate that umbilical cord transection would impose
substantial obstacles to women’s right to terminate a
pregnancy before viability if the fetal-demise law were
to go into effect.

Because the procedure is too risky,

it is simply not a feasible option for the Tuscaloosa and
Huntsville clinics.
The court is troubled by the State’s argument that
women should be required to undergo this inadequately
studied, potentially risky procedure.
want

ourselves

or

our

families

Indeed, would we

(our

partners

and

children) to undergo a medical procedure for which the
documented safety and effectiveness is comparably lacking
and there is no potential medical benefit?

79

If not, why

should

we

ask

otherwise

of

Alabama

women

seeking

pre-viability abortions?

b. Digoxin Injection
To inject digoxin, physicians begin by using an
ultrasound machine to visualize the woman’s uterus and
the fetus.

The physician then inserts a long surgical

needle through the patient’s skin, abdomen, and uterine
muscle, in order to inject digoxin into the fetus.

If

the attempt to inject into the fetus fails, the physician
may inject digoxin into the amniotic fluid, but evidence
suggests

this

is

generally

less

effective.

Digoxin

injection, when it works, takes up to 24 hours to stop
the fetal heart.

Physicians cannot accurately predict

how long digoxin will take to work in a given patient.
Tr. Vol. I (doc. no. 110) at 59:25-60:11, 68:6-9. Digoxin
injections are painful and invasive because they are
administered

through

a

transabdominal

anesthesia.

Tr. Vol. I (doc. no. 110) at 44:12-22,

75:25-76:6, 196:3-6.

80

needle

without

The court concludes that digoxin injections are not
a

feasible

method

of

causing

fetal

demise

for

the

following reasons.
(i) Digoxin injections are not reliable for inducing
fetal demise.

When injected into the fetus or amniotic

fluid, digoxin has a failure rate ranging between 5 % and
15 %.

Tr. Vol. I (doc. no. 110) at 64:1-8; Tr. Vol. II

(doc. no. 111) at 142:4-10.

Furthermore, a variety of

factors, such as uterine positioning, fetal positioning,
obesity, and the presence of uterine fibroids, can affect
whether the physician is actually able to inject digoxin
into

the

fetus

or

the

amniotic

fluid

successfully.

First, obesity can make it difficult for physicians to
guide the needle through the abdomen into the uterus, for
two

reasons:

the

additional

tissue

in

the

patient’s

abdomen reduces the quality of the ultrasound images,
making it more difficult to find the fetus; and the needle
must travel through more tissue in order to get to the
uterus.

Tr. Vol. I (doc. no. 110) at 40:11-20, 61:1-6;

Tr. Vol. II (doc. no. 111) at 139:3-16.

81

Many of the

Tuscaloosa and Huntsville clinics’ patients are obese;
the medical director for the Huntsville clinic testified
that about 40 % of her patients are obese.

Tr. Vol. I

(doc. no. 110) at 197:1-2; Tr. Vol. II (doc. no. 111) at
61:17-19.

Second, fetal and uterine positioning can

affect whether the physician is able to get to the fetus
or the amniotic fluid with a needle.
no. 110) at 61:18-25.

Tr. Vol. I (doc.

Third, uterine fibroids, which are

benign tumors on the uterine walls affecting over half
of women, can get in the needle’s way, because they can
become calcified and impenetrable. Tr. Vol. I (doc. no.
110) at 40:21-41:4, 61:18-23, 197:3-4.

All four of these

factors can make it difficult--or even impossible--for
the needle to reach the fetus or the amniotic fluid.27

27.
The State contends, based on the analysis in
Gonzales, that women who are unable to obtain abortion
due to their anatomy should bring an as-applied
challenge.
In that case, the Court stated that an
as-applied challenge would be appropriate if “in discrete
and well-defined instances a particular condition has or
is likely to occur in which the procedure prohibited by
the Act must be used,” where “the nature of the medical
risk can be better quantified and balanced than in a
facial attack.” Gonzales, 550 U.S. at 167. However, the
82

(ii) Digoxin injections are experimental for women
before 18 weeks of pregnancy, and most second-trimester
abortions in Alabama are performed before 18 weeks of
pregnancy.

Donald Decl. Exs. A-C, Induced Terminations

of Pregnancy Occurring in Ala. (doc. no. 81-14) (showing
that approximately two thirds of abortions at or after
15 weeks occur between 15 to 18 weeks).

The majority of

studies on digoxin injection focus on pregnancies at or
after 18 weeks: only a few studies have included cases
at 17 weeks, and no study has been done on the efficacy,
dosage, or safety of injecting digoxin into women before
17 weeks of pregnancy.

Tr. Vol. I (doc. no. 110) at

67:7-14; II-143:18-25.

As with the unknown risks of

umbilical cord transection, requiring digoxin injection
before 18 weeks of pregnancy would force women to go

record here identifies a set of widespread conditions,
any one or combination of which could make it impossible
to complete a digoxin injection. This means that the
feasibility of digoxin injection for a given patient
likely cannot be determined until a physician attempts
the injection. In other words, there is no “discrete and
well-defined” class of women for whom digoxin injection
would be impossible who could bring an as-applied
challenge.
83

through

an

experimental,

potentially

harmful

medical

procedure without any counterbalancing benefits.
As mentioned above, a first dose of digoxin does not
succeed in inducing fetal demise 5 to 15 % of the time.
However, as with digoxin before 18 weeks, there is no
study establishing appropriate dosage, potential risks,
or time to fetal demise for the administration of a second
injection of digoxin.
142:12-25.

Tr. Vol. II (doc. no. 111) at

The State argued that, in those 5 to 15 % of

cases where an initial digoxin injection failed, the
physician could try a different method of fetal demise.
But, as discussed in this opinion, there are no other
viable methods.28

28.
One of the plaintiffs’ experts stated that
between 2007 and 2011, in order to avoid the risk of
violating the federal partial-birth abortion ban, his
former employer required digoxin injections for abortions
at or after 20 weeks.
Tr. Vol. II (doc. no. 111) at
82:5-12.
The expert explained that this practice is
distinguishable from legally requiring digoxin use before
all standard D&E, because in the case of elective digoxin
use, when the first dose failed, he could stop attempting
fetal demise and perform standard D&E without facing
criminal liability. Therefore, he was not required to
perform an experimental procedure of injecting digoxin
84

(iii) Even when administered successfully with one
dose at or after 18 weeks, digoxin injections carry
significant health risks.

The parties’ experts agreed,

and the court so finds, that digoxin injections are
associated with heightened risks of extramural delivery,
infection, and hospitalization, compared to standard D&E
alone: digoxin injection is six times more likely to
result in hospitalization compared to injection of a
placebo; it carries an increased risk of infection; and
it is twice as likely than amniocentesis29 to result in
extramural

delivery,

the

unexpected

and

spontaneous

expulsion of the fetus from the uterus while the woman
is outside of a clinic setting without any medical help.
Tr. Vol. I (doc. no. 110) at 69:11-17; Tr. Vol. II (doc.

before 18 weeks, or injecting a second dose.
In any
event, this issue likely needs to be clarified during
further proceedings.
29.
Amniocentesis is a testing procedure used in
high-risk pregnancies, whereby a needle is used to
extract amniotic fluid from the uterus. The State argued
that the risks associated with digoxin injection are
comparable to this procedure.

85

no. 111) at 150:2-8.

Spontaneous expulsion of the fetus

can cause bleeding and require medical attention, aside
from being very upsetting to the woman.30

Because of

these documented risks, the Society of Family Planning,
a professional organization for family planning, stated
that in order to justify “the harm of the documented
increase in spontaneous labor and extramural delivery,
along with an increase in vomiting seen in the one blinded
digoxin RCT [randomized control trial], in addition to
any more infrequent risks, a significant increase . . .
in D&E safety would seem warranted.”

Tr. Vol. I (doc.

no. 110) at 26:20-24, 28:2-7.31

30.
This complication would have even worse
consequences for women surrounded by people who do not
support their decision to terminate a pregnancy, or if
they have abusive partners who find out about the
abortion due to a medical emergency caused by extramural
delivery. Tr. Vol. I (doc. no. 110) at 72:1-13; see also
Casey, 505 U.S. at 887-98 (majority opinion) (striking
down the spousal notification requirement based on
concerns about abused women seeking abortion).
31.
The State argued that these fetal-demise
procedures do not introduce new categories of risks that
are not already present in standard D&E. See, e.g., Tr.
Vol. II (doc. no. 111) at 13:15-22.
However, the
86

(iv) The use of digoxin injections as a fetal-demise
method

would

impose

abortion access.

serious

logistical

obstacles

to

Women undergoing digoxin injection

would be required to make an additional trip to the clinic
24 hours prior to their D&E procedure appointment.
Whole

Woman’s

Health,

136

S.

Ct.

at

2313

See

(external

factors that affect women’s ability to access abortion
care--such

as

increased

driving

distance--should

be

considered as an additional burden when conducting the
undue burden analysis).

This would be in addition to the

counseling session and 48-hour waiting period mandated
by Alabama law.

Accordingly, if digoxin injection were

used

fetal

to

induce

demise,

a

patient

seeking

an

abortion would have to meet with the physician at least

significant risk of extramural delivery associated with
digoxin does not apply to standard D&E. Tr. Vol. II (doc.
no. 111) at 150:2-6. This means that digoxin injection
introduces a new category of risk into second-trimester
abortion procedures.
Furthermore, Gonzales and Casey
simply ask whether the ban imposes “significant health
risks” on women, rather than asking whether an
alternative procedure introduces new types of risks.
Gonzales, 550 U.S. at 161 (quoting Casey, 505 U.S. at
880)).
87

three times over four days all for a 10- to 15-minute
procedure:

first,

informed-consent

to

receive

warning;

second,

at

the
least

required
48

hours

later, to undergo the digoxin injection; and third, at
least 24 hours later, to have the physician determine
whether fetal demise was achieved and if so, to receive
the standard D&E procedure.

In addition, under certain

circumstances, it would be necessary for the physician
to administer digoxin before beginning cervical dilation;
in that case, the patient would need to come for an
additional visit between digoxin injection and the D&E
procedure.

Tr. Vol. I (doc. no. 110) at 90:24-91:6,

202:23-203:15.

And, in the 5 to 15 % of cases where the

first digoxin injection would fail, an additional visit
could be required.
The burden of having to make multiple trips for the
procedure is especially pronounced for low-income women.
Most women who come to the Tuscaloosa and Huntsville
clinics are low-income, and 60 % of patients at the

88

Huntsville clinic receive financial assistance.32
Vol. I (doc. no. 110) at 206:18-23.

Tr.

As this court found

in Planned Parenthood Southeast Inc. v. Strange, getting
to

an

abortion

clinic

is

particularly

expensive

and

difficult for low-income women: they are less likely to
own cars and therefore more likely to depend on public
transportation, asking friends or relatives for rides,
or borrowing cars; they are unlikely to have regular
sources of childcare; they are more likely to work for a
job that pays hourly, without any paid time off, or to
receive public benefits that require regular attendance
of meetings or classes.33

Planned Parenthood Southeast,

Inc. v. Strange, 33 F. Supp. at 1357.

Having to make yet

32.
The court notes that 17.6 % of Huntsville
residents live below the poverty line. Katz Decl. (doc.
no. 54-11) ¶ 8. 25.2 % of Tuscaloosa’s population lives
below the poverty line. Id. ¶ 8.
33. The medical director of the Huntsville clinic
also described the difficulties that her patients face
with arranging child care, traveling far distances to the
clinic, and affording shelter during the trip. For
example, some women who are unable to afford staying at
a hotel sleep in the parking lot of the clinic. Tr. Vol.
I (doc. no. 110) at 207:9-11.
89

another trip to the clinic in order to receive the digoxin
injection would exacerbate the patients’ difficulties,
especially if they are traveling long distances to get
to the clinic; for some of them, the procedure would
become time- and cost-prohibitive.

Depending on how far

away from the clinic the women lives--and some women
travel from as far as 5 or 6 hours away--undergoing
digoxin injection before D&E could require a woman to
miss four or even five days of work.34

Tr. Vol. I (doc.

no. 110) at 207:8-9. Faced with this great financial and
logistical burden, some low-income women would have to
delay obtaining an abortion or would not be able to have
an abortion at all.
Based on the unreliability of the procedure, unknown
risks for women before 18 weeks of pregnancy and for
injecting a second dose of digoxin, increased risks of
complications,
invasiveness

of

the
the

travel

burden,

procedure,

the

and

the

court

pain

finds

and
that

34. And,
as
mentioned
earlier,
given
the
unreliability of digoxin injection, this burden could
stretch into an additional day.
90

digoxin injection is not a feasible method of inducing
fetal demise before standard D&E in Alabama clinics.

c. Potassium-Chloride injection
Physicians administer potassium-chloride injections
by inserting a long surgical needle through the woman’s
skin, abdomen, and uterine muscle, and then into the
fetal heart, using an ultrasound machine to guide the
needle.

When administered directly to the fetal heart,

potassium chloride stops it almost immediately.
digoxin
invasive

injections,
and

potassium-chloride

painful,

through

a

without

anesthesia.

because

transabdominal
Tr.

they

surgical
Vol.

I

As with

injections

are

administered

needle
(doc.

are

no.

injection
110)

at

44:12-22; 75:25-76:6; 196:3-6.
The court finds that, based on the current record,
potassium-chloride injections are not a feasible method
of causing fetal demise before standard D&E procedures
for the following reasons.

91

(i)

Injecting

technical

skill

potassium

and

is

chloride

extremely

takes

great

challenging.

The

physician’s goal is to inject it directly into the fetal
heart,35 which is smaller than the size of a dime at 15
weeks of pregnancy.

Tr. Vol. I (doc. no. 110) at 31:11.

An expert credibly testified that, despite being highly
trained in the field of abortion care, she was unable to
successfully inject potassium chloride into the fetal
heart, even at an advanced gestational age.

Id. at

52:11-53:14, 136:7-16.
(ii) Physicians must receive extensive training to
induce

fetal

chloride,

and

demise

through

that

training

injection
is

of

potassium

unavailable

to

the

physicians at the Tuscaloosa and Huntsville clinics.
Potassium-chloride injection is not taught to OB/GYN
residents or to family-planning fellows, whose training

35.
If the physician misses the fetal heart,
potassium chloride may still be injected into the fetal
body compartment.
However, injecting outside of the
heart may require a larger volume or a longer time to
achieve fetal demise. Tr. Vol. II (doc. no. 111) at 120:
9-16; Biggio Decl. (doc. no. 81-1) ¶ 7.
92

involves abortion care, because it is generally only used
for high-risk, multi-fetal pregnancy reductions (where
one or more of the fetuses in the same pregnancy are
terminated and the rest are carried to full-term).

Tr.

Vol. I (doc. no. 110) at 39:9-23. The only subspecialists
who

are

trained

to

perform

the

injections

are

maternal-fetal-medicine fellows, who go through three
years of highly supervised training to specialize in
high-risk pregnancies. Tr. Vol. II (doc. no. 111) at
141:5-10. Learning the procedure would require observing
at least ten to twenty procedures, according to the more
conservative estimate.36
Because
physicians

the
are

Id. at 119:6-14.

Tuscaloosa
not

and

trained

in

Huntsville

clinics’

potassium-chloride

injections, they would need to receive training in order
for this procedure to be a meaningfully available method

36. One of the plaintiffs’ experts estimated, based
on consultation with a leading expert in the field, that
learning the procedure would require observing 100 to 200
cases. Tr. Vol. II (doc. no. 111) at 60:7-61:2.

93

in

the

state

impossible

of

for

Alabama.37
these

However,

physicians

to

it

would

receive

be

this

specialized training, because no hospital in the state
of

Alabama

offers

training

on

potassium-chloride

injections to unaffiliated physicians not enrolled in
their three-year fellowship program.
no. 111) at 141:23-25.

Tr. Vol. II (doc.

Furthermore, because even a

tertiary academic hospital like the University of Alabama
at Birmingham hospital has a caseload of fewer than ten
potassium-chloride injection procedures per year, even a
hypothetical ad-hoc training program would take at least
a year for a sufficient number of cases to arise.

Id.

at 140:6-10.
(iii) Potassium-chloride injections carry serious
risks to the patient.

Because potassium chloride has

37.
It is unlikely that Alabama will attract new
providers who are already trained in these procedures,
as Alabama has proven to be a hostile environment for
abortion providers.
See Planned Parenthood Southeast,
Inc. v. Strange, 33 F. Supp. 3d at 1333-34 (describing
history of violence against abortion providers and
decline in the number of clinics in Alabama in recent
years).
94

harmful effects on the heart, inadvertently injecting it
into the woman’s circulation can endanger the patient.
Tr. Vol. I (doc. no. 110) at 42:2-8; Biggio Decl. (doc.
no. 81-1), ¶ 9.
literature,

a

In one instance reported in the medical
woman

suffered

cardiac

arrest

because

potassium chloride was accidently injected into one of
her blood vessels instead of the fetus.
no. 110) at 29:2-7.
also

increase

the

Tr. Vol. I (doc.

Injections of potassium chloride may
risk

of

uterine

perforation

and

infection, due to the inherent risks associated with
transabdominal injections.

Tr. Vol. I (doc. no. 110) at

29:3-5, 43:16-20, 80:6-8; II-121:5-9.

That said, the

risk of potassium-chloride injection before standard D&E
is not quantifiable because there has been no study on
the efficacy or safety of the procedure before standard
D&E.

Id. at 29:21-30:3, 44:4-11.38

38. Reports of adverse outcomes, while concerning,
do not establish a risk level because researchers cannot
know how often they occur without knowing how many
potassium-chloride injections are being completed. Tr.
Vol. I (doc. no. 110) at 120:11-121:6.
95

(iv)

Potassium-chloride

injections

are

not

a

feasible method also because they cannot be completed on
every

woman

seeking

standard

D&E.

As

with

digoxin

injections, obesity, fetal and uterine positioning, and
presence

of

uterine

fibroids

may

complicate

or

even

prevent the administration of the injections in many
women.

Tr. Vol. I (doc. no. 110) at 40:4-42:1.

And as

mentioned earlier, obesity is common in the Tuscaloosa
and Huntsville clinics’ patient population.
As

with

injection,

umbilical

cord

transection

potassium-chloride

and

injection

digoxin
is

an

unnecessary and potentially harmful medical procedure
with no counterbalancing medical benefit for the patient.
Because it is a technically challenging procedure that
carries serious health risks, and because there is no
practical way for the plaintiffs to receive training to
perform the procedure safely, the court finds potassiumchloride injection to be an unavailable method for fetal
demise

for

women

seeking

abortion

Alabama.

96

in

the

state

of

3. Balancing
As

stated

above,

to

determine

whether

a

law

regulating abortion constitutes an undue burden on the
right to terminate a pregnancy before viability, the
court must balance the State’s interests underlying a law
against the obstacles imposed by the law to women’s
access to abortion.
While the court assumes the State’s interests are
legitimate, it is clear that the State cannot pursue its
interests in a way that completely denies women the
constitutionally protected right to terminate a pregnancy
before the fetus is viable.

Here, the State contends

that its interests are sufficiently strong to justify the
burdens the fetal-demise law would impose on Alabama
women because they would retain the ability to terminate
pregnancy at or after 15 weeks. The State’s argument is
premised

on

the

idea

that

it

is

feasible

for

the

Tuscaloosa and Huntsville clinics to utilize the three
fetal-demise methods examined above.
reasons

discussed

above,

the

97

court

However, for the
concludes

on

the

current record that the proposed fetal-demise methods are
not feasible for inducing fetal demise before standard
D&E at the Alabama clinics.

Therefore, if the court were

to allow the fetal-demise law to go into effect, Alabama
women would likely lose their right to pre-viability
abortion access at or after 15 weeks.

The State’s

interests, although legitimate, are not sufficient to
justify

such

a

substantial

obstacle

to

the

constitutionally protected right to terminate a pregnancy
before viability.
Because, as the current judicial record reflects,
the State’s interests are insufficient to overcome the
denial of Alabama women’s right to terminate a pregnancy
before viability, and because, as the current judicial
record

further

likely

place

obstacles

reflects,

the

substantial,

before

Alabama

fetal-demise

and

women

even

law

would

insurmountable,

seeking

pre-viability

abortions, the court preliminarily concludes that the law
does not “confer[]

benefits sufficient to justify the

burdens upon access that [it] imposes.”

98

Whole Woman's

Health, 136 S. Ct. at 2299.

The court thus preliminarily

holds that the plaintiffs are likely to show that the
fetal-demise law “constitutes an undue burden on abortion
access” and is unconstitutional.

Id.

B. Irreparable Harm
The second requirement for an order preliminarily
enjoining

enforcement

of

the

law--irreparable harm--is satisfied.

fetal-demise

In the absence of

an injunction, Alabama women would immediately lose the
right to obtain a pre-viability abortion anywhere in the
State

when

they

reached

15

weeks

of

pregnancy.39

Moreover, as explained previously, these Alabama women
would

also

suffer

irreparable

rights.

39. See supra, note 9.
99

harm

to

their

privacy

C. Balancing of Harms
As

explained,

in

the

absence

of

an

injunction,

Alabama women would immediately lose the right to obtain
a pre-viability abortion anywhere in the State when they
reached 15 weeks of pregnancy, whereas all the State will
face is that a likely unconstitutional law passed by
legislators will not go into effect.

The threatened harm

to the plaintiffs clearly outweighs whatever damage or
harm a proposed injunction may cause the State.

D. Public Interest
Finally, it is in the public interest to preserve
the status quo and give the court an opportunity to
evaluate fully the lawfulness of the fetal-demise law
without subjecting the plaintiffs, their patients, or the
public

at

Furthermore,
enforcement

large
the
of

a

to

any

public
law

of

its

has

no

likely

100

to

be

potential
interest

harms.
in

the

unconstitutional.

Odebrecht

Const.,

Inc.

v.

Secretary,

Fla.

Dep’t

of

Transp., 715 F.3d 1268, 1290 (11th Cir. 2013).
However, the court notes sua sponte that the Eleventh
Amendment

bars

relief

against

an

allegedly

unconstitutional provision if the named state officials
do not have the authority to enforce it.

Summit Med.

Assocs., P.C. v. Pryor, 180 F.3d 1326 (11th Cir. 1999)
(concluding that the Ex Parte Young exception to the
Eleventh Amendment does not apply to abortion providers’
challenge to the private civil-enforcement provision of
a statute regulating abortion, but does apply to the
statute’s criminal-liability provision).

Therefore, the

preliminary injunction does not extend to the private
civil-enforcement

provisions

under

the

fetal-demise

law.40

40. Since the Ex Parte Young issue has been raised
sua sponte without briefing, the court will, upon request
from any of the parties, reconsider it.
101

***
The

court

preliminarily

will,

therefore,

enjoining

enter

enforcement

school-proximity and fetal-demise laws.
does

not

extend

to

the

private

an

order

of

the

The injunction

civil-enforcement

provisions of the fetal-demise law.
DONE, this 27th day of October, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE