West Alabama Women's Center et al v. Miller

Filing 139

OPINION. Signed by Honorable Judge Myron H. Thompson on 10/26/17. (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
In West Alabama Women’s Center v. Miller, 217 F.
Supp. 3d 1313 (M.D. Ala. 2016) (Thompson, J.), this court
preliminarily
statutes,

enjoined

enacted

on

enforcement
May

12,

abortions and abortion clinics.
address

whether

enjoined.

the

two

laws

of

2016,

two
that

Alabama
regulate

The court must now
should

be

permanently

Based on the following findings of fact and

conclusions of law, this court holds that they should be.

While the court parrots many of its earlier findings and
conclusions, it substantially and importantly expands on
some as well.

I. INTRODUCTION
The first challenged statute, 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.
See 1975 Ala. Code § 22-21-35.

The second statute, the

“fetal-demise law,” effectively criminalizes the most
common method of second-trimester abortion--the dilation
and evacuation, or D&E, procedure--unless the physician
induces fetal demise before performing the procedure.
See 1975 Ala. Code § 26-23G-1 et seq.
The plaintiffs are West Alabama Women’s Center (a
reproductive-health clinic in Tuscaloosa, Alabama) and
its

medical

director

and

Alabama

Women’s

Center

(a

reproductive-health clinic in Huntsville, Alabama) and
its medical director.

The plaintiffs sue on behalf of
2

themselves and their patients.

The defendants are the

State Health Officer, the State Attorney General, and the
district attorneys for Tuscaloosa and Madison Counties,
where the clinics are located.

All defendants are sued

in their official capacities.
The plaintiffs claim that the school-proximity and
fetal-demise laws unconstitutionally restrict abortion
access in Alabama in violation of the Due Process Clause
of the Fourteenth Amendment.

Jurisdiction is proper

under 28 U.S.C. §§ 1331 (federal question) and 1343
(civil rights).
Based on the record (including evidence presented at
a hearing), the court holds both laws unconstitutional.
The

evidence

compellingly

demonstrates

that

the

school-proximity law would force the closure of two of
Alabama’s five abortion clinics, which together perform
72 % of all abortions in the State.

Meanwhile, the

fetal-demise law would prohibit the most common method
of second-trimester abortions in Alabama, effectively
terminating the right to an abortion in Alabama at 15

3

weeks.

Because

these

laws

clearly

impose

an

impermissible undue burden on a woman’s ability to choose
an abortion, they cannot stand.

II. HISTORICAL BACKGROUND

Previously, this court described in some detail a

“climate of hostility,” both non-violent and violent,
surrounding the provision of legal abortions in Alabama.
Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d
1330, 1334 (M.D. Ala. 2014) (Thompson, J.).
trained

in

and

willing

to

provide

abortion

Doctors
care

in

Alabama are rare, and face retaliation and harassment on
a daily basis as a result of their work.

For example,

protesters have repeated gathered outside one of the
plaintiff physician’s private medical practice and the
clinic carrying signs calling her “a murderer”.
White Decl. (doc. no. 54-4) ¶¶ 8-10.

Robinson

A group also

launched a public campaign to convince a hospital to
revoke her admitting privileges; this effort included
protests

in

front

of

the

hospital,
4

televised

press

conferences, and leafletting cars and stores near the
hospital.

Id. at ¶ 9.

Providers of abortion services

face difficulties recruiting, hiring, and retaining staff
willing to provide abortion care in the face of this
stigma

and

constant

continued existence.
Alabama

suffer

uncertainty

as

to

the

clinics’

Women seeking abortion services in

distinct

threats

to

their

privacy:

anti-abortion protesters regularly protest outside of
clinics and harass patients as they exit and enter; at
times, protesters have brought cameras and posted photos
of

clinic

patients

and

their

license

Second Gray Decl. (doc. no. 54-1) ¶ 28.

plates

online.

“As of 2001,

there were 12 clinics providing abortions in the State.
Today,

that

number

has

dwindled

to

five.”

Planned

Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330,
1334 (M.D. Ala. 2014) (Thompson, J.).
In addition, against this historical backdrop and as
outlined in the court’s preliminary-injunction opinion,
W. Ala. Women’s Ctr., 217 F. Supp. 3d at 1319, abortion
clinics and their physicians have been subject to a

5

number of regulations in Alabama.
years,

Alabama

has

passed

a

In just the last six

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--that is, 22 weeks after the
last

menstrual

period1--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.”
In

2013,

the

State

1975 Ala. Code § 26-23B-5.

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

requirement,

1975 Ala.
abortion

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

Code

2000

edition,”

id.,

which

include

1.
Throughout the remainder of this opinion, the
week of pregnancy refers to gestational age as measured
from the last menstrual period (LMP), which is two weeks
longer than the post-fertilization age. The court has
adjusted the numbers accordingly when citing statistics
based on post-fertilization age.
6

requirements

for

egress,

fire

protection,

sprinkler

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

clinics

in

To comply with that law,

Alabama

conducted

extensive

renovations or had to purchase new spaces and relocate.
That same year, the State 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.

See 1975 Ala. Code

§ 26-23E-4(c).

This court held the staff-privileges

requirement

be

to

unconstitutional.

See

Planned

Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330
(M.D.

Ala.

2014)

(Thompson,

J.);

see

also

Planned

Parenthood Se., Inc. v. Strange, 172 F. Supp. 3d 1275,
(M.D. Ala. 2016) (Thompson, J.) (determining appropriate
relief).
In 2014, the State extended from 24 to 48 hours
the time physicians must wait between providing informed
consent

explanations

abortion procedure.

to

patients

conducting

See 1975 Ala. Code § 26-23A-4.

7

and

the

Also in 2014, Alabama enacted a law modifying the
procedures for minors seeking to obtain an abortion.

At

the time, minors who were unable or unwilling to obtain
written

consent

from

their

parent

or

guardian

could

instead seek judicial approval from a juvenile judge or
county court.

The new law authorized presiding judges

to

guardian

appoint

a

ad

litem

to

represent

“the

interests of the unborn child,” and required that the
county district attorney be notified and joined as a
party.

1975

Ala.

Code

§

26-21-4(i)-(j).

provisions were declared unconstitutional.

These

See Reprod.

Health Servs. v. Marshall, --- F. Supp. 3d ---, No. 2:14CV-1014-SRW, 2017 WL 3223916 (M.D. Ala. July 28, 2017)
(Walker, M.J.).
In 2016, on the same day, Alabama enacted the two
statutes

now

challenged

in

this

litigation:

the

school-proximity law and the fetal-demise law.
This year, the Alabama legislature passed a proposed
constitutional amendment that declares the State’s public
policy is “to recognize and support the sanctity of

8

unborn life and the rights of unborn children, including
the right to life,” and “to ensure the protection of the
rights of the unborn child in all manners and measures
lawful and appropriate.” 2017 Ala. Laws Act 2017-188
(H.B. 98).

Alabamians will vote on the amendment in

November 2018.
The vast majority of abortions performed in Alabama
occur in the remaining five outpatient clinics.2
plaintiffs
Women’s

operate

Center,

two

located

of
in

the

clinics:

Huntsville,

Alabama Women’s Center, in Tuscaloosa.3

the
and

The

Alabama
the

West

Together, these

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

Second Johnson Decl. Ex. D (doc. no. 54-2) at 35.

2.
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.
no. 54-2) at 35.
3. The three other clinics operating in Alabama are
Reproductive Health Services in Montgomery and Planned
Parenthood clinics in Birmingham and Mobile.

9

The Alabama Women’s Center, which opened in 2001, is
the

only

abortion

clinic

northern part of the State.

in

Huntsville,

in

the

far

The Huntsville metropolitan

area, with a population of 417,593, is Alabama’s second
largest urban area.4

In addition to abortion services,

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

4.
Statistics are derived from 2010 census data.
See U.S. Census Bureau, 2010 Census Population and
Housing Tables, https://www.census.gov/population/www
/cen2010/cph-t/CPH-T-5.pdf.

10

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
clinics in Alabama that perform abortions at or after 15
weeks of pregnancy.

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.

Because,

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

abortion

method

The D&E procedure is a

where

a

physician

uses

instruments and suction to remove the fetus and other
contents of the uterus.

In 2014, the Huntsville and

Tuscaloosa clinics provided about 496 abortions starting

11

at 15 weeks, all of which were D&E abortions. AWC Summary
of Abortions Performed, Pls.’ Ex. 17; WAWC Summary of
Abortions Performed, Pls.’ Ex. 16.

That said, the vast

majority of abortions performed by the Huntsville and
Tuscaloosa clinics occur prior to 15 weeks and therefore
do not involve D&E.

III. LITIGATION BACKGROUND
The court will not go into the history of this
litigation,

which

was

outlined

in

the

preliminary-injunction opinion, see W. Ala. Women’s Ctr.,
217 F. Supp. 3d at 1320-21, other than to add that, after
the preliminary injunction was issued, the parties asked
the court to enter a final judgment based on the existing
record

without

conducting

any

further

discovery

or

evidentiary proceedings. The court granted the parties’
joint motion to do so, and now makes its final findings
of fact and enters its final conclusions of law.

12

IV. LEGAL STANDARDS
In its most recent discussion of a woman’s right to
an abortion, the Supreme Court opened its opinion with
this

succinct

statement:

“[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

serving its legitimate ends.”

a

permissible

means

of

Whole Woman’s Health, 136

S. Ct. at 2309 (quoting Casey, 505 U.S. at 877 (plurality
opinion)).
Women

have

a

substantive

due-process

right

to

terminate a pregnancy before the fetus is viable. To
determine

whether

that

right

has

been

violated,

the

governing standard is “undue burden.” Planned Parenthood
of Southeastern Pennsylvania v. Casey, 505 U.S. 833,
876-79 (1992) (plurality opinion).5 In Casey, a plurality

5. The Court in Whole Woman’s Health contrasted the
undue-burden standard to the Court’s less searching
review of economic legislation under the rational-basis
standard, and specifically rejected the notion “that
legislatures, and not courts, must resolve questions of
medical uncertainty.” Whole Woman’s Health, 136 S. Ct.
13

of the Court concluded that, if a government 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

unconstitutional.
woman’s

right

unwarranted

of

have

an

Id. at 877.
privacy

governmental

abortion

and

is

Casey recognized that a

extends
intrusion

to

freedom

into

“from

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)).
“[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

at 2309-10 (citing Williamson v. Lee Optical of Oklahoma,
Inc., 348 U.S. 483 (1955)). Unlike with rational-basis
review,
“the
Court,
when
determining
the
constitutionality
of
laws
regulating
abortion
procedures, has placed considerable weight upon evidence
and argument presented in judicial proceedings.” Id. at
2310 (emphasis added) (citing Casey, 505 U.S. at 888-94,
and Gonzales, 550 U.S. at 165-66).
14

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 Whole Woman’s Health, 136 S. Ct.
at 2309 (the undue-burden analysis requires a court to
“consider the burdens a law imposes on abortion access
together with the benefits those laws confer”); 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, [is]
to

be

‘undue’

in

the

sense

of

disproportionate

or

gratuitous.”).
The undue-burden test requires courts to examine “the
[challenged]

regulation

in

its

real-world

context.”

Planned Parenthood Se., Inc. v. Strange, 9 F. Supp. 3d
1272, 1287 (M.D. Ala. 2014) (Thompson, J.); Casey, 505
U.S. at 888-98 (majority opinion) (examining the effects

15

of the spousal notification provision on women in abusive
relationships).

In Whole Woman’s Health, the Supreme

Court endorsed the district court’s consideration of the
actual

impact

abortion

of

clinics

the
and

challenged
their

Health, 136 S. Ct. at 2312.

laws

patients.

on

the

Whole

Texas

Woman’s

In concluding that the law

imposed an undue burden, the district court, and then the
Supreme Court, considered several facts, including that
half of Texas clinics closed after enforcement of the law
commenced; that clinicians from the El Paso clinic would
be unable to gain admitting privileges at hospitals,
because not once did they transfer an abortion patient
to a hospital; and that the closures resulted in an almost
30-fold increase in the number of women of reproductive
age more than 200 miles from a clinic.

Id. at 2312-13.

Courts must consider the burdens imposed by the new
law or regulation against the backdrop of existing laws
and regulations on abortion in the jurisdiction as well
as others enacted at the same time.

As Judge Posner

explained, “[w]hen one abortion regulation compounds the

16

effects of another, the aggregate effects on abortion
rights must be considered.”

Planned Parenthood v. Van

Hollen, 738 F.3d 786, 796 (7th Cir. 2013), cert. denied,
134

S.

Ct.

2841

(2014);

accord

Planned

Parenthood

Arizona, Inc. v. Humble, 753 F.3d 905, 915 (9th Cir.
2014) (Fletcher, J.) (describing relevant factors to
burdens analysis as including “the ways in which an
abortion

regulation

interacts

with

women’s

lived

experience, socioeconomic factors, and other abortion
regulations”), cert. denied, 135 S. Ct. 870 (2014).
States

may

have

myriad

interests

in

regulating

abortion. These interests may come in all shapes and
forms, from protecting fetal life or maternal health to
regulating the medical profession.

Nevertheless, the

State’s interests--however legitimate--cannot “place[] a
substantial obstacle in the path of a woman’s choice [to
have a pre-viability abortion].”

Whole Woman’s Health,

136 S. Ct. at 2309 (quoting Casey, 505 U.S. at 877
(plurality opinion)).

And a State’s interests surely

cannot swallow the right.

See Casey, 505 U.S. at 846

17

(reaffirming the essential holding of Roe v. Wade, 410
U.S. 113 (1973) that “[b]efore viability, the State’s
interests
imposition

are

not

of

a

strong

enough

substantial

to

support

obstacle

to

effective right to elect the procedure”).

the

...

the

woman’s

The court will

now apply the undue-burden test to the facts of this
case.

V. THE 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; if the

school-proximity law were to take effect, the parties
18

agree the Department could not renew either clinic’s
license to continue operations at its existing location.
Because

no

legislative

findings

accompany

the

school-proximity law, the court is without an explanation
from the legislature of the purpose for the law.

The

plaintiffs have submitted newspaper articles, to which
the State has not objected, that report that Reverend
James Henderson, a leader of anti-abortion protesters
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.
The

State

has

school-proximity

asserted

law

was

to

Id. Ex. I at 61.
that

the

further

purpose
two

of

the

interests:

minimizing disturbance in the educational environment and
supporting

a

parent’s

right

to

control

his

children’s exposure to the subject of abortion.

19

or

her

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
interests

law

through

prohibition

on

no.

an

99)

at

attempts
expressed

clinics)

to

an

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

serve

means

Thus,
the

(the

unexpressed

the

State's

2000-foot
end

(the

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

Second, the State does not contend, and the

court finds no evidence, that the demonstrators had any
effect on the educational environment inside any school;
the State concedes that its only concern is disruption
outside of schools due to the presence of protesters near
the clinics.

Id. at 37:9-21.

In the absence of legislative findings, the court
will now, as discussed below, make findings based on the
“judicial
interests.

record”

as

to

the

State’s

two

asserted

Whole Woman’s Health, 136 S. Ct. at 2310

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

20

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 is persuaded that the school-proximity law
would impose a substantial obstacle on a woman’s right
to obtain a pre-viability abortion.

As discussed below,

the evidence presented to the court 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.

A. State’s Interests
The State’s interests are furthered by neither the
law’s means (the 2000-foot prohibition on clinics) nor
its end (the relocation of the demonstrations).
In Tuscaloosa, a middle school sits just within 2,000
feet of the clinic, but a vast wooded area separates the
21

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

Up to five protesters

(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.

Second

Gray Decl. (doc. no. 54-1) at ¶ 35; Tr. Vol. II (doc. no.
111) at 104:15-20, 108:24-25 - 109:1-5.
court

has

been

presented

with

no

Indeed, this

evidence

that

the

children (or parents) at the Tuscaloosa school are even
aware that an abortion clinic is located nearby.6 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

6. 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.
22

of the State’s asserted purposes of minimizing disruption
or supporting a parent’s right to control his or her
children’s exposure to the subject of abortion.

The Tuscaloosa clinic (A) and its protesters (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

impacts the Tuscaloosa clinic, it was targeted to the
“perceived problem” at the Huntsville clinic.
III (doc. no. 112) at 14:12-16.
23

Tr. Vol.

In Huntsville, two to 15 protesters stand outside
the clinic on weekdays.

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

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

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.
The respective entrances to Highlands and the clinic
are on different streets, and they are approximately
three blocks apart.

Id. at 176:18-19, 177:5-6.

24

It is

not necessary to drive past the clinic to access the
school.

Id.

absolutely

no

at

176:20-23.

evidence

of

The

concerns

record
expressed

contains
by

the

school’s students or their parents about the Huntsville
clinic or the demonstrations near it.

Thus, as to

Highlands, the court finds the State’s two interests
(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.

25

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

26

protesters near the clinic.7

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
Huntsville clinic and close to an Academy driveway, that
driveway is not the school’s primary driveway and is not
typically used by parents who are dropping off or picking
up children.

Instead, it is used by parents and others

to access an attached parking lot if they need to enter
the school for business or opt to walk their child into
the school, and even then no evidence suggests that

7. As evidence, the State relies on newspaper
articles which describe complaints from a few Academy
parents about anti-abortion protesters outside the
Huntsville
clinic,
including
objections
that
the
protesters 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).
27

children

have

instances.
27:1-3.

been

hindered

or

disturbed

in

those

Tr. Vol. II (doc. no. 111) at 26:21-25 –
The entrance used by parents during normal

drop-off and pick-up is accessed from another street on
the opposite side of the school, and 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).

Because there is no evidence of disruption to

the school’s educational environment, the court finds the
State’s

interest

in

limiting

disruption

in

the

educational environment would not be measurably advanced
by the closing or relocation of the Huntsville clinic.

28

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

Also as to the Academy, the State’s interest in
supporting

a

parent’s

right

to

control

his

or

her

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

The State failed to present evidence

of a significant problem: the record contains one report
of one mother who had to respond to questions from her
son, an Academy student, about the subject of abortion

29

after he witnessed a protest.

Newspaper Article, Def.

Ex. 16 (doc. no. 81-16).
In addition, the State’s statutory means (the closing
or relocation of the Huntsville clinic) will not lead to
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

protesters
Huntsville

law

were

have

demonstrated

clinic,

but

to

also

take

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 two and as many
as

10

protesters

routinely

demonstrated

outside

the

facility on weekdays, protests occurred at the site even

30

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.

Robinson White credibly testified

that, if the law were to go into effect and the clinic
were to close, she would again use the facility for her
private practice, which would likely engender protests
again. Tr. Vol. I (doc. no. 110) at 181:22-25 - 182:1-12;
Robinson White Decl. (doc. no. 54-4) ¶ 16.

Moreover,

Robinson White testified that, if the clinic closed, she
would perform abortions at the facility8 through her
private practice, all but guaranteeing continued protests
at the site, irrespective of the passage of the law.

Id.

As a result, the law will not stop protests at the site.
Based on the judicial record, the court therefore
finds that the school-proximity law would provide little
to

no

benefit

to

the

State’s

asserted

interests

in

8. 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.

31

minimizing disruption and supporting a parent’s right to
control his or her children’s exposure to the subject of
abortion.9

9. Moreover, although the court does not reach this
issue, the fact that the school-proximity law may do
little or nothing for the stated purpose suggests that
the law’s actual purpose may have been “to place a
substantial obstacle in the path of a woman seeking an
abortion,” and that the law would therefore fail the
undue-burden test independent of its effects. See Whole
Woman’s Health, 136 S. Ct. at 2300 (quoting Casey, 505
U.S. at 878 (plurality)).
Legislative purpose may be
inferred from the extent to which the statute actually
furthers, or fails to further, the purported state
interests. Thus, “without evidence that the curtailment
[of the right to an abortion] is justifiable by reference
to the benefits conferred by the statute,” it can be
inferred that the legislature may hold an improper
purpose, passing measures that “may do little or nothing
for [the stated purpose], but rather strew impediments
to abortion.” Planned Parenthood of Wisconsin, Inc. v.
Schimel, 806 F.3d 908, 921 (7th Cir. 2015) (Posner, J.);
cf. Snyder v. Louisiana, 552 U.S. 472, 484-85 (noting
with regard to a Batson claim that a court’s finding that
a proffered reason was pretextual “naturally gives rise
to an inference” of an impermissible purpose); St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (holding,
under Title VII of the Civil Rights Act of 1964, as
amended (42 U.S.C. §§ 1981a and 2000e through 2000e-17),
that the rejection of an employer’s proffered reason for
a given action permits the trier of fact to infer an
improper discriminatory purpose).
The court’s finding
that the school-proximity law will provide little to no
benefit to the State’s purported interests therefore
raises the question of whether the law in fact had the
32

B. 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

locations.

abortion

After

the

clinics
expiration

at
of

their

existing

their

existing

licenses, the clinics would need to relocate or shut
down.

The court finds, based on the judicial record,

that the Tuscaloosa clinic and the Huntsville clinic
would not be able to relocate and that, as a result, the
two clinics would have to shut down if the law were to
take

effect.

Tr.

Vol.

I

(doc.

no.

110)

at

impermissible purpose of placing a substantial obstacle
to women’s access to abortion.
33

164:19-25 – 165:1-18; Second Gray Decl. (doc. no. 54-1)
¶ 34; Second Johnson Decl. (doc. no. 54-2) ¶ 3.
The evidence credibly shows that, because each clinic
incurred

significant

surgical-center

expenses

requirement

as

a

result

imposed

on

of

the

abortion

providers by the State in 2013, neither clinic would be
financially able to relocate now.

Because the Huntsville

clinic was not able to bring its old building into
compliance with the surgical-center standards, it was
forced to relocate to a new facility (the place where
Robinson

White

had

practice), which cost

leased

space

for

her

private

$ 530,000 to purchase and more

than $ 100,000 for building renovations.
(doc. no. 110) at 160:23-24, 162:1-4.

Tr. Vol. I

To cover those

expenses, Dalton Johnson, the clinic owner, and Robinson
White, the medical director and sole physician, 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

34

mortgage on the Madison Street building and pulled all
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)

¶ 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

35

she

and

Johnson

have

sacrificed significant personal financial resources to
continue operating 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 could not rely
on leasing a new facility.

Anti-abortion protesters in

Alabama have targeted the landlords that lease space to
organizations and individuals that provide abortions.
After demonstrations targeted the former landlord of the
Tuscaloosa

clinic,

clinic’s lease.

the

landlord

Id. ¶ 31.

did

not

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

36

lease, the moment [h]e informed prospective lessors that
[h]e 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
they would not be able to relocate; the clinics would
finally be forced to close.
The State contends that the burdens analysis should
not consider the probable closure of the Huntsville and
Tuscaloosa clinics because whether the clinics close
depends on “the idiosyncrasies of [the clinics’] specific
financial position.”

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

37

In

other words, the State seems to argue that the court
should not consider the actual financial circumstances
of the clinics in assessing whether the law would impose
an

undue

burden

Alabama

women’s

right

to

choose

an

abortion. This contention misapprehends the undue-burden
case law.
As

this

court

has

previously

explained,

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 are
directly attributable to the statute. Planned Parenthood
Se., 9 F. Supp. 3d at 1285-87.
Court’s

evaluation

spousal-notification

of

the

law

took

In Casey, the Supreme
burdens
into

imposed

by

consideration

a
the

reality that many women live in abusive relationships,
and that requiring notification to an abusive spouse
could impose a potentially insurmountable barrier to
obtaining an abortion for those women.
U.S. at 888-898 (majority opinion).

See Casey, 505
Contrary to the

State’s reasoning, it was not relevant to the Court’s

38

analysis that the spousal-notification law did not cause
the women to live in abusive relationships, or that the
idiosyncrasies of different relationships would result
in

varying

impacts

on

different

women.

The

Court

carefully considered the real-world context in which the
law

would

play

out,

and,

based

on

that

context,

determined that the notification requirement would have
imposed a substantial obstacle to access to abortion.
Moreover, “[w]hen one abortion regulation compounds
the effects of another, the aggregate effects on abortion
rights must be considered.”
(Posner, J.).
clinics

is

Van Hollen, 738 F.3d at 796

Here, the financial peril of the remaining
a

direct

result

of

regulating abortion in the State.

earlier

legislation

The court cannot

ignore, and in fact must take into consideration, the
financial pressures on the plaintiff clinics resulting
from those laws in assessing whether the school-proximity
law imposes an undue burden.
Similarly, courts have repeatedly recognized that
legislation that imposes substantial costs on abortion

39

providers places burdens on women’s access to abortion
because the costs discourage other clinics from opening
or filling the gaps caused by closures.

In Whole Woman’s

Health, the Supreme Court observed that the costs of $ 1
to

$

3

million

required

to

achieve

compliance

with

Texas’s surgical-center requirement were “considerable.”
136 S. Ct. at 2318.

Evidence of those costs, the Court

reasoned, “supports the conclusion that more surgical
centers

will

not

soon

fill

the

facilities are forced to close.”
505

U.S.

at

901

(plurality

gap

when

licensed

Id.; see also Casey,

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 that application of new
licensing and regulatory scheme to abortion facilities,
which would have required abortion providers to expend

40

“[t]ens

of

thousands

of

dollars,”

contributed

to

undue-burden finding).
Because new abortion clinics are very unlikely to
sprout

up

to

fill

the

gaps,

the

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
Alabama,
areas

including

of

licensed

the

Huntsville
abortion

highly

and

populated

Tuscaloosa,

providers

at

all.

metropolitan

would
The

have

no

resulting

burdens on women would be substantial.10
First,

women

would

lose

the

right

to

obtain

an

abortion in Alabama altogether when they reached 15 weeks
of

pregnancy,

because

the

Tuscaloosa

and

Huntsville

10.
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.

41

clinics are the only providers of abortions beginning at
15 weeks of pregnancy.11

11. 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) ¶¶ 18, 20.
For women relying on public
transportation, that would require a round trip of at
least 12 hours in 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)); Jackson
Women’s Health Org. v. Currier, 760 F.3d 448, 457 (5th
Cir. 2014) (holding that the undue-burden analysis
“focuses solely on the effects within the regulating
42

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 the majority of women seeking abortions in
Alabama.

Katz Decl. (doc. no. 54-11) ¶ 15; see also

Second Henshaw Decl. (doc. no. 54-3) ¶ 9 (half of all
abortion recipients in the United States have incomes
below the federal poverty level).
of

the

Tuscaloosa

clinic

patients

110 % of the federal poverty level.
54-1) ¶ 45.

In particular, 82 %
live

at

or

below

Gray Decl. (doc. no.

In Huntsville, over 60 % of the clinic’s

state,” and that a Mississippi abortion law therefore
placed an undue burden); cf. Missouri ex rel. Gaines v.
Canada, 305 U.S. 337, 350-51 (1938) (rejecting as “beside
the point” the argument that black law students refused
admission at the State University of Missouri could
simply attend nearby law schools in other States, because
the requirement of Equal Protection “is imposed by the
Constitution upon the States severally” and “cannot be
cast by one State upon another”). 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.
43

patients

receive

government.

financial

assistance

from

Tr. Vol. I (doc. no. 110) at 206:18-23.

the
If

the Huntsville clinic closed, a woman in Huntsville would
need

to

travel

Birmingham

at

for

the

least

200

miles

next-closest

round-trip

abortion

to

provider.

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
fewer women obtaining abortions.
(doc. no. 54-3) ¶¶ 4-8, 19.

Second Henshaw Decl.

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

Planned Parenthood

The Supreme Court has

also recognized that longer travel distances, when taken
together with other burdens, increase the burdens on
women seeking an abortion.

Whole Woman’s Health, 136 S.

44

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,

transportation,
lodging.

time

including
off

from

obtaining
work,

access

to

childcare,

and

Alabama law already requires women to make two

trips to the clinic: one to satisfy the informed consent
requirement, and one--at least 48 hours later--for the
procedure.12

But not all women have the means to do so,

12. While Alabama law allows the informed consent
counseling to be conducted either in person or by
restricted delivery mail, restricted delivery is not a
feasible option for low-income patients for a number of
reasons. First, mail in low-income communities is
“notoriously unreliable.”
Sheila Katz Tr. (doc. no.
90-2) at 30:17. Second, restricted mail requires the
addressee sign for the mail upon delivery, and many
low-income women work during the day and would therefore
be unable to sign for it.
Third, whereas middle- and
upper-class women may be able to get mail delivered to
their work, low-income women often do not work in
45

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 experience unwanted delay in
obtaining abortions attributed the delay to arrangements
such

as

raising

funds,

transportation,

locating

an

abortion provider, and organizing childcare).
The increased difficulty of accessing an abortion
clinic

would

be

compounded

by

the

three

remaining

abortion clinics’ lack of sufficient capacity to meet the
new demand.

As a result, not all women who would choose

to have an abortion could obtain one.
Tuscaloosa

clinics

have

performed

The Huntsville and
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.

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

occupations where this is an option, and even when
possible,
doing
so
would
risk
compromising
the
confidentiality of the correspondence, which is important
for all women but is particularly important for women in
abusive relationships.
46

35-37.

Together, the Huntsville and Tuscaloosa clinics

performed 5,833 abortions in 2014, compared to 2,218
abortions

provided

by

combined.

Id. at 35.

the

three

remaining

clinics

The three remaining clinics could

not shoulder the plaintiff clinics’ caseload.
As the directors of Alabama’s three other clinics
explained, if the Huntsville and Tuscaloosa clinics were
to close, they project that they could at most reach a
combined maximum capacity of 4,500 procedures per year
(including the 2,218 they already provide), but this
increase

in

capacity

would

depend

on

a

significant

expansion in staffing and services, which is unlikely in
light of the climate surrounding abortion in Alabama.
Ayers Decl. (doc. no. 54-7) ¶¶ 8-10; Fox Decl. (doc. no.
54-8)

¶¶

4-5.

For

example,

the

Montgomery

clinic

performed fewer 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

47

dependent on recruiting additional physicians and support
staff that it has previously struggled to hire because
of the stigma surrounding abortion in Alabama.
Decl. (doc. no. 54-7) ¶¶ 6-8.
clinics,

which

provided

a

Ayers

The Mobile and Birmingham
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

staffing troubles.
Decl.

Ex.

F,

to

expand

capacity

because

of

Fox Decl. (doc. no. 54-8) ¶ 5; Donald

Induced

Terminations

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

of

Pregnancy

2014

Notably, none of the

remaining clinics have plans to expand their services to
provide abortions at or after 15 weeks, so women seeking
abortions in that timeframe would simply be out of luck.
Also, capacity constraints, especially when combined
with the increased travel times, would introduce delays
in women obtaining abortions.
delayed

past

the

14th

week

Later-term abortions, if
of

the

pregnancy,

carry

greater medical risks and also increase the cost of the

48

procedure; if the delay extends to the 22nd 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. 1975 Ala. Code § 26-23B-5.
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, she needs to be
able to obtain an abortion before she starts to show; for
a woman needing to pass her abortion off to an abusive
partner

as

a

miscarriage,

she

needs

to

receive

a

medication abortion (because it looks exactly like a
miscarriage), which is only available until 10 weeks of
pregnancy. In both scenarios, the longer the delay, the
more likely the woman will not be able to get an abortion
in

time

to

conceal

it

from

her

abuser.

To

impose

additional delay by requiring women to travel further
will result in some women taking an unwanted pregnancy
to term.

Walker Decl. (doc. no. 54-9) ¶¶ 15-16.

49

Furthermore,
clinics

could

the

abortions

provide

likely

that

would

the

not

be

remaining
equal

in

quality to 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 taxed facilities may have offered.”
Whole Woman’s Health, 136 S. Ct. at 2318.

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.”
These

factors,

too,

would

impose

a

Id. at 2317.

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, increased wait times,
and potentially reduced quality of care at Alabama’s
three remaining clinics--would result in women facing

50

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,13 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
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.

During that time, women

would

the

nonetheless

come

to

clinic

seeking

an

abortion--including one woman who threatened to stab

13.
This phrase, French in etymology, means “for
lack of an alternative.” Faute de mieux, Oxford English
Dictionary (2d ed. 1989).
51

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
women who lived far away seeking abortions, some of whom
said “outright that they would try to self-induce an
abortion

because

they

could

not

reach

a

provider.”

Second Johnson Decl. (doc. no. 54-2) ¶ 49.

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.14
111) 69:1-9.

Tr. Vol. II (doc. no.

So too can Alabama expect an increased

14. 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
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).

52

level of self-abortions if the school-proximity law were
to take effect.15
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 were
to go into effect, the availability of abortions in
Alabama would be significantly reduced, and abortions
beginning

at

unavailable.

15

weeks

would

become

almost

wholly

Thus, Alabama women attempting to obtain a

pre-viability abortion would experience substantial, and
even insurmountable, burdens if the school-proximity law
were to take effect.
***
As stated above, “the more severe the obstacle a
regulation creates, the more robust the government’s

15. Even if the clinics did not permanently close,
the temporary closure of both clinics would still impose
the significant burdens described above on women seeking
abortions in Alabama until each clinic could secure a new
facility.
53

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

regulation will actually achieve that benefit.”
Parenthood Se., 9 F. Supp. 3d at 1287.

is

the

Planned

Here, because,

as the judicial record reflects, the State’s interests
are so attenuated and because, as the judicial record
further reflects, the school-proximity law would place
substantial, and even insurmountable, burdens on Alabama
women seeking to exercise their right to a pre-viability
abortion, the court concludes that the law does not
“confer[] benefits sufficient to justify the burdens upon
access that [it] imposes.”
Ct.

at

2300.16

The

Whole Woman’s Health, 136 S.

court

thus

holds

that

the

16. 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.
54

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

C.

Id.

State’s Other Arguments

In its attempt to justify its regulatory approach,
the State argues--relying principally on First Amendment
challenges
routinely

to

zoning

regulate

the

operate near schools.

decisions--that
types

of

governments

businesses

that

may

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, which is the controlling standard
here.

As the Supreme Court reaffirmed in Whole Woman’s

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.”

136 S. Ct. at 2309.
55

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,

legislation is at issue.”

for
Id.

example,

economic

In zoning cases, the

government’s authority is “undoubtedly broad,” but “the
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 schools, “judicial
deference

is

the

watchword.”

Davidson

v.

City

of

Clinton, Miss., 826 F.2d 1430, 1433 (5th Cir. 1987)
(upholding a restriction on sale of alcohol within 500
feet of a school, as applied to a nightclub, as neither
irrational

nor

arbitrary).

Where

constitutionally

protected interests that warrant more searching review
are threatened, by contrast, the State’s cited examples
for government regulation of the areas around schools

56

have not withstood scrutiny and therefore do not support
the State’s position.

See, e.g., Larkin, 459 U.S. at 117

(invalidating, on Establishment Clause ground, statute
that delegated authority to schools and churches to veto
liquor licenses within 500 feet of their premises).
Similarly,

the

State’s

reliance

on

the

First

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

Playtime

mistaken.

Theatres,

Inc.,

475

U.S.

41

(1986),

is

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, injury to retail trade, and depressed property
values.

475 U.S. at 48-49.

The State here asserts that

it too has an interest in regulating “the undesirable
secondary effects” of abortion clinics, implying the
demonstrations and the impact on children who witness
them are the secondary effects the law sought to curtail.
Def. Br. (doc.

no. 81) at 47.

57

But the secondary-effects

doctrine justifies only those State actions that would
otherwise

constitute

an

impermissible

content-based

infringement of First Amendment rights, which are not
implicated here.

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 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
speech).

intended

to

protect

children

from

offensive

Thus, even under Renton, the State could not

force abortion clinics to relocate based on parents’
reactions to protester speech.
Moreover, if the State seeks to regulate the areas
around schools, other approaches could more effectively
advance its asserted interests.

For example, the State

could have enacted a reasonable “time, place, and manner”
restriction on demonstrations outside facilities “where

58

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).
court

to

Of course, it is not the province of this

prescribe

the

most

appropriate

regulatory

approach; however, it is worth noting that the court’s
decision does not leave the State without recourse to
limit students’ exposure to demonstrators.
The court’s holding that the school-proximity law is
unconstitutional still obtains.

VI. THE FETAL-DEMISE LAW
The court now turns to whether the fetal-demise law
imposes

an

undue

burden

on

women’s

access

to

pre-viability abortion in Alabama.
The

Alabama

Unborn

Child

Protection

from

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

law,
who

imposes
purposely
59

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 “the
child’s mother has a condition that so complicates her
medical condition that it necessitates the abortion 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 either
a fine of 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

most

common

method

of

60

abortion

administered

in

Alabama

at

or

after

15

weeks--standard

D&E--if

used

without first inducing fetal demise.17
The

question

before

the

court

is

whether

the

fetal-demise law has the purpose or effect of placing a
substantial obstacle in the path of a woman’s choice to
obtain a pre-viability abortion. Whole Woman’s Health,
136 S. Ct. at 2309 (quoting Casey, 505 U.S. at 878
(plurality opinion)) (“[U]nnecessary health regulations
that

have

substantial

the

purpose

obstacle

to

or
a

effect
woman

of

seeking

impose an undue burden on the right”).

presenting
an

a

abortion

If it does, the

law cannot stand.
This Casey undue-burden standard requires the court
to “examin[e] the regulation in its real-world context”
to determine whether the obstacles imposed by the law are

17. 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

substantial.

Planned

Parenthood

Southeast,

Inc.

v.

Strange, 33 F. Supp. 3d 1330, 1337 (M.D. Ala. 2014)
(Thompson, J).

In so doing, the court must consider both

the effect of an abortion statute on the availability of
abortion and the health risks the statute imposes on
women.

“[R]egulations which do no more than create a

structural mechanism by which the State ... may express
profound

respect

for

the

life

of

the

unborn

are

permitted, if they are not a substantial obstacle to the
woman’s exercise of the right to choose.”

Gonzales v.

Carhart, 550 U.S. 124, 146 (2007) (internal citations and
quotations omitted).

Further, “the fact that a law which

serves a valid purpose ... has the incidental effect of
making it more difficult or more expensive to procure an
abortion cannot be enough to invalidate it.”

Id. at 158.

However, a statute designed to protect fetal life imposes
a substantial obstacle, and therefore an undue burden,
where it “forces a woman and her physician to terminate
her pregnancy by methods more dangerous to her health
than

the

method

outlawed”

62

or

“subject[s]

women

to

significant health risks.” Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. 52, 79 (1976).

Further,

a law requiring the substitution of certain abortion
procedures over others will not be upheld if it has the
effect of inhibiting the vast majority of pre-viability
abortions after a certain week threshold, and the law
must

allow

continued

use

of

generally accepted method.”
see

Stenberg

(holding

that

v.

Carhart,

a

law

“a

commonly

used

and

Gonzales, 550 U.S. at 165;
530

U.S.

prohibiting

914,
the

945

(2000)

most

common

second-trimester abortion method, standard D&E, would
impose an undue burden).

A ban on a particular method

can “be upheld only if there [are] safe alternative
methods” available.

Danforth, 428 U.S. at 77.

For the reasons discussed below, the court finds the
fetal-demise law effectively terminates the right to
abortion

for

Alabama

women

at

15

weeks.

Because

it

imposes an undue burden on the right of women in Alabama
to obtain a pre-viability abortion, the court holds the
fetal-demise law unconstitutional.

63

A. 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. 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.18
The court assumes the legitimacy of these interests.

See

Whole Woman’s Health, 136 S. Ct. at 2310 (assuming that
the

State

had

legitimate

state

interests

where

the

statute did not contain any legislative findings).
In any event, this court must now, based on the
judicial record, make its own findings.

Whole Woman’s

Health, 136 S. Ct. at 2310 (“[T]he relevant statute here

18. 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 Alabama; the State does not dispute this.
Tr. Vol. I (doc. no. 110) at 138:1-6.
64

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.”).

B. Burdens Imposed on Women

The plaintiffs assert that the fetal-demise law makes

the safest and most common method of second-trimester
abortions,

standard

D&E,

essentially

unavailable,

therefore imposing an undue burden on Alabama women’s
right to pre-viability abortions.

The State responds

that fetal demise can be safely achieved before standard
D&E

with

one

of

three

procedures:

umbilical-cord

transection, potassium-chloride injection, and digoxin
injection.
For the reasons discussed below, the court finds that
the fetal-demise law imposes a substantial burden in at
least

two

interacting

ways:
65

first,

the

law

imposes

significant health risks on most women who choose to have
an abortion by requiring them to undergo a fetal-demise
procedure that is unsafe or experimental; second, and as
a result, the law makes standard D&E--the only method of
second-trimester

abortion

available

in

Alabama

as

a

practical matter--largely unavailable because no safe,
non-experimental

methods

are

feasible

in

the

vast

majority of cases.
Based on the following factual findings, the court
concludes that the proposed fetal-demise methods are not
feasible in the plaintiff clinics and that requiring the
use of those methods would pose a substantial obstacle
to women seeking second-trimester abortions in the State.

1. Impact on Health of Women Seeking Abortions in
Alabama

The court’s determination whether the law imposes a

substantial obstacle to abortion access turns on whether
the

statute

would

effectively

ban

the

most

common

second-trimester abortion method by requiring a procedure
that is either unavailable or unsafe.
66

See Stenberg, 530

U.S. at 945 (finding that outlawing the most common
second-trimester abortion method, standard D&E, would
impose an undue burden upon a woman’s right to terminate
her pregnancy before viability).

In Gonzales, the Court

applied the Casey undue-burden standard to determine
whether the federal Partial-Birth Abortion Ban Act of
2003 created a substantial obstacle to abortion access.
Gonzales v. Carhart, 550 U.S. 124, 146 (2007).

In so

doing, the Court spent a substantial portion of the
opinion

examining

whether

the

Act

would

proscribe

standard D&E, which, as will be discussed in detail
below, is the most common method of performing abortions
at and after 15 weeks, and is the same method at issue
here.

The Gonzales Court found that the federal ban

would not substantially decrease the availability of
second-trimester abortions because it prohibited only
intact D&E, which was rarely administered, and because
the law still allowed “a commonly used and generally
accepted method”, namely, standard D&E.
U.S. at 165.

The Court then addressed whether the ban

67

Gonzales, 550

would impose serious health risks on women.

Gonzales,

550 U.S. at 161.
Here, the parties agree the fetal-demise law bans
standard

D&E,

the

most

commonly

used

method

for

second-trimester abortions in Alabama, when performed
without first inducing fetal demise.

The parties also

agree that, if there are not safe methods available for
inducing
Thus,

fetal

the

demise,

court

the

turns

to

law
an

is

unconstitutional.

examination

of

the

availability of the fetal-demise methods proposed by the
State and the health risks they impose on women seeking
abortion in Alabama.

If the fetal-demise requirement

prevents women from obtaining pre-viability abortions or
exposes

women

requirement

to

would

significant
impose

an

health

undue

risks,

burden

on

the
their

constitutional right to choose a pre-viability abortion.

a. Standard D&E
Before addressing the State’s proposed methods for

inducing fetal demise, the court now provides background
on the current landscape of second-trimester abortions
68

in

Alabama.

The

vast

majority

of

second-trimester

abortions in Alabama are performed using “standard D&E.”19
Standard D&E is a surgical abortion method that consists
of two parts: dilation of the cervix (the “D”) and
evacuation of the uterus (the “E”).
(doc. no. 54-4) ¶ 20.

Robinson White Decl.

First, a woman’s cervix is dilated

only enough to allow passage of surgical instruments.
Then, the physician evacuates the uterus using forceps
to grasp the fetus and remove it, and using suction to
remove remaining contents of the uterus.

It is important

to open the cervix gently, and then only a small amount,
for

safety

pregnancies.

reasons

and

to

preserve

it

for

future

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

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).
69

during the process of removing the fetus. Id. at 17:6-14.
Due to this separation of tissues, standard D&E falls
under the fetal-demise law’s definition of ‘dismemberment
abortions.’

Physicians start using the standard D&E

procedure around 15 weeks of pregnancy, before which they
can remove the fetus using only suction.
Standard D&E is considered an extremely safe abortion
method,

with

complications.
of

a

less

than

1

Id. at 17:17-18.

second-trimester

abortions

%

chance

of

major

Nationally, about 95 %
are

performed

through

standard D&E. Davis Decl. (doc. no. 54-5) ¶ 7. Standard
D&E is also the only abortion method that can be performed
in an outpatient setting in Alabama at or after 15 weeks.
Second Parker Decl. (doc. no. 54-6) ¶ 14; Tr. Vol. I
(doc. no. 110) at 189:8-11.
performed in one day.20

Typically, standard D&E is

Robinson White Decl. (doc. no.

20. Occasionally, a physician may determine that a
more gradual dilation is in the best interest of the
patient and will begin dilation the day prior to the
procedure. Second Parker Decl. (doc. no. 54-6) ¶ 13 (“I
perform the vast majority of D&E’s at WAWC as a one-day
procedure. However, there are some women for whom I wish
70

54-4) ¶ 20.

After dilation, the procedure takes between

10 to 15 minutes.
Due

to

its

Id. at 17:15-16.
low

risk

of

complications,

relative

simplicity, and short duration, standard D&E is the most
common method of second-trimester abortion in Alabama.
Second Parker Decl. (doc. no. 54-6) ¶ 14; Robinson White
Decl. (doc. no. 54-4) ¶ 23.

The ability to perform

standard D&E in one day and in outpatient settings is
particularly important because the vast majority of women
seeking abortions in Alabama rely on outpatient clinics.
Alabama hospitals provide very few abortions: in 2014,
hospitals provided 23 abortions in 2014, which amounted
to less than 0.3 % of all abortions in the state.

Donald

Decl. Exs. C & F, Induced Terminations of Pregnancy
Occurring

in

Ala.

(doc.

no.

81-14).21

Of

those

23

to achieve a more gradual and/or wider dilation of the
cervix, in which case I will administer osmotic dilators
to
begin
cervical
ripening
the
day
before
the
procedure.”).

21. Exhibits C and F provide the number of abortions
in Alabama as reported to the Alabama Department of
Public Health. After these exhibits were submitted, the
plaintiffs brought to the court’s attention that there
71

abortions performed in hospitals, seven were performed
after 15 weeks of pregnancy: six of these were induction
abortions, and the seventh was by standard D&E.

Id.

Induction is the only alternative to standard D&E in
Alabama after 15 weeks of pregnancy and is not available
in outpatient clinics.22
54-4) ¶ 24.

Robinson White Decl. (doc. no.

In other words, outpatient clinics performed

had been a clerical error in the reporting of standard
D&E procedures. To rectify this error, the plaintiffs
submitted
supplemental
declarations
and
exhibits
correcting the number of such procedures performed from
2012-2015.
See Second Robinson White Decl. (doc. no.
89-1); Third Gray Decl. (doc. no. 89-2); WAWC Summary of
Abortions Performed, Pls.’ Ex. 16; AWC Summary of
Abortions Performed, Pls.’ Ex. 17. The defendants did
not object to these corrected figures.
22. The induction method involves using 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.
State
regulations do not allow outpatient clinics to initiate
an abortion procedure that may entail more than 12 hours
of clinical involvement, which means that induction
abortion must be performed in a hospital. Tr. Vol. II
(doc. no. 111) at 43:8-24. The State does not dispute
that induction procedures are unavailable to women
seeking second-trimester abortions in outpatient clinics
in Alabama. See supra note 1.
72

standard D&E for 99 % of women undergoing abortions at
or after 15 weeks of pregnancy in Alabama in 2014. Donald
Decl. (doc. no. 81-14).
clinics

are

the

only

The Tuscaloosa and Huntsville
outpatient

providing standard D&E procedures.

clinics

in

Alabama

Accordingly, these

two clinics performed 99 % of abortions at or after 15
weeks in Alabama in 2014.

b. Umbilical-Cord Transection
One of the methods the State proposes the Alabama

clinics use to induce fetal-demise is umbilical-cord
transection.

To

perform

umbilical-cord

transection

incident to standard D&E, the physician must first dilate
the

woman’s

cervix

enough

to

allow

instruments to transect the cord.

the

passage

of

Once the cervix is

dilated, the physician uses an ultrasound machine to
visualize

the

umbilical

cord.

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
73

heart

activity.

123:8-124:18;
77:13-78:7.

Tr.

II

(doc.

no.

111)

at

Tr.

see

Vol.
Vol.

I

(doc.

no.

110)

at

Once asystole has occurred, the physician

can perform standard D&E, removing fetal tissues and
other contents of the uterus.
The court finds that, for the following reasons,
inducing fetal demise with umbilical-cord transection
prior to conducting standard D&E is not feasible or safe
in the plaintiff clinics, and therefore is not a method
that

allows

the

plaintiffs

to

comply

with

the

fetal-demise law.
(i)

Multiple

factors

make

cord

transection

technically difficult, and sometimes impossible, before
a

standard

D&E

procedure:

lack

of

visualization;

continuous shrinking of the uterus during the procedure;
and the size of the umbilical cord.

First, a physician

performing umbilical-cord transection must be able to do
so without much visual aid.

Before the amniotic membrane

is punctured, the physician is readily able to visualize
the fetus and the umbilical cord due to the contrast on

74

the ultrasound between the amniotic fluid and the uterine
and fetal tissue.

However, when the amniotic membrane

is punctured at the beginning of 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

because

dissipates along with the amniotic fluid.
(doc. no. 110) at 77:16-78:17.

the

contrast

Tr. Vol. I

Second, as the fluid

drains, the uterus contracts, pushing the contents of the
uterus

against

each

other.

Id.

Depending

on

the

gestational age, the cord may be very thin; at 15 weeks,
it is the width of a piece of yarn.23

Finally, as the

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

Id.

As a result, the

umbilical-cord transection method requires a physician

23. Because the vast majority of patients in Alabama
who receive standard D&E have the procedure between 15
and 18 weeks of pregnancy, the cord is quite narrow in
the majority of such procedures. See Donald Decl. Ex.
C, Induced Terminations of Pregnancy Occurring in Ala.
(doc. no. 81-14) (providing that 80 % of women who
received standard D&E in 2014 did so between 15 and 18
weeks LMP or 13 to 16 post-fertilization age).

75

to identify, reach, and transect a flimsy, roughly yarnsized cord without any visualization aid or space between
different types of tissues; should the physician fail and
grasp

the

fetal

tissues,

she

could

be

subject

to

prosecution for conducting a “dismemberment abortion”
under the fetal-demise law.
(ii)

Cord

transection

Id.
carries

significant

health

risks to the patient, including blood loss, infection,
and injury to the uterus.

See Gonzales, 550 U.S. at 161

(reiterating

jurisprudence

the

Court’s

that

abortion

regulations that pose “significant health risks” are
unconstitutional).
standard

D&E

heightened

to

risk

Performing cord transection before
achieve

of

fetal

serious

demise

blood

performing standard D&E alone.

loss

involves
compared

a
to

Cord transection is a

risky procedure: one of the experts in this case had
first-hand

experience

of

attempting

to

perform

cord

transection to comply with the federal ban on intact D&E
in a hospital setting.
and

her

colleagues

She credibly testified that she

stopped

76

attempting

the

procedure

because

of

concerns

about

patient

safety.

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
for the safety of their patients.
110) at 82:21 - 83:11.

Tr. Vol. I (doc. no.

As a result, the expert and her

colleagues abandoned the idea of using cord transection
as a standard practice before intact D&E.24

Id. at

83:4-15.
Moreover, cord transection increases the risk of
infection and uterine perforation compared to standard
D&E.

Every time a physician introduces an instrument

into the uterus, there is a risk of infection or uterine

24. 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. This argument, along with the general
discussion of the health exception, is addressed later
in this section.
77

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--which can take several passes
prior to the passes needed to perform standard D&E--the
risk of complications is greater than when performing
standard D&E alone.
These risks would be amplified in the outpatient
setting of the Tuscaloosa and Huntsville clinics, where
all abortions in Alabama at or after 15 weeks take place.
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

Moreover,

subspecialists
the

medical

such

as

equipment

anesthesiologists.
at

the

plaintiffs’

clinics, such as the ultrasound machines crucial to cord
transection, is not as advanced as what is available in
tertiary-care hospital settings.
110)

at

236:9-18.

The

lack

78

Tr. Vol. I (doc. no.
of

these

services

and

technologies would undoubtedly increase the risks of the
procedure.
(iii)
feasible

Umbilical-cord
method

because

transection
it

is,

for

purposes, an experimental procedure.25

is
all

also

not

intents

a

and

The State argues

that umbilical-cord transection is a viable, safe option
before standard D&E based on a single study--that is, 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

25. Of course, some people choose to undergo risky,
or even experimental, procedures when they foresee some
possibility of medical benefit; no one goes to the doctor
and elects to have an experimental procedure that only
increases the risk of complications and pain and confers
no medical benefit even in the best-case scenario. The
question at hand is whether a State can mandate a woman
to undergo an experimental procedure that is more likely
to harm her compared to the standard abortion procedure.
79

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

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.

Kristina

Tocce 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 did not utilize a control group, so there is

no way to compare the outcomes of the group that received
cord transection and a 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

80

the risk of injury to the uterus and infection.

Finally,

the study does not report week-by-week distribution of
gestational age of the subjects, even though the success
rate of cord transection procedures would be expected to
vary across the gestational age due to the changing size
of the umbilical cord.

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

83:23 - 86:13; 125:14-22.
Moreover, the resources of the facility where the
transections

in

the

study

were

performed

are

not

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, Tocce et al.,
supra, at 713 (doc. no. 81-13), neither of which are
available at the Tuscaloosa and Huntsville clinics, Tr.
Vol. II (doc. no. 111) at 11:2-20; Tr. Vol. I (doc. no.
110) at 137:9-24.

Comparing the study conditions to the

Tuscaloosa and Huntsville clinics appears to be like
comparing apples to oranges; the study provides paltry

81

evidence as to the safety of performing the procedure in
the Alabama clinics.
Cord

transection

carries

serious

risks,

and

insufficient research has been conducted to quantify
those risks.
D&E

would

Requiring cord transection before standard

force

physicians

to

perform

a

medically

unnecessary procedure without much, if any, information
about the likelihood of harm to the patient.

Further,

the law would force women to accept an experimental
procedure and exposure to a potentially grave risk of
harm as the cost of undergoing standard D&E, which is
well-documented for its low risks.
(iv) Not surprisingly given the potential health
risks and the experimental nature of cord transection
prior to D&E, no training is available for doctors within
Alabama

to

learn

to

perform

this

procedure.

The

physicians at the Tuscaloosa and Huntsville clinics have
not

been

trained

in

this

technically

challenging

procedure, and they are unlikely to be able to get any
training: because cord transection is not common, it

82

would

be

difficult

for

physicians

to

find

cases

to

observe, especially in the early part of the second
trimester.

Further, given the climate of hostility and

the difficulty of hiring doctors willing and able to
perform abortions in Alabama, attracting doctors already
trained in the procedure to work in the Huntsville and
Tuscaloosa clinics is unlikely.
opportunities

and

the

inability

The lack of training
to

recruit

trained

physicians renders the procedure unavailable in Alabama
as a practical matter.
(v) The risk of harm associated with cord transection
supports the plaintiff physicians’ credible and valid
concerns about being forced to perform this procedure
under the fetal-demise law.

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, experimental procedures
without any medical benefit and the patient’s consent.
The fetal-demise law forces women to either undergo a
risky procedure with no any medical benefit or give up

83

their right to pre-viability abortion; placing women in
such a predicament negates any opportunity for meaningful
consent.
***
In

sum,

the

court

finds

that

the

technical

difficulties of performing umbilical-cord transection,
combined

with

the

experimental,

potential

virtually

for

serious

unstudied

nature

harm,
of

the
the

procedure, and the unavailability of training, render
umbilical-cord transection unavailable as an option for
the

plaintiffs

requirement.

to

comply

with

the

fetal-demise

Thousands of women cannot be required to

undergo

a

risky

procedure

based

on

one

questionable

study.

See Danforth, 428 U.S. at 79 (striking down an

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

c. Potassium-Chloride Injection
Another method the State proposes the Alabama clinics

use

to

induce

fetal-demise
84

is

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.
fetal

heart,

immediately.

When administered directly to the

potassium

chloride

stops

it

almost

Potassium-chloride injections are invasive

and painful, because they are administered through a
transabdominal surgical needle without anesthesia.

Tr.

Vol. I (doc. no. 110) at 44:12-22; 75:25 - 76:6; 196:3-6.
The

procedure

is

generally

performed

as

a

means

of

selective fetal reduction--where one or more of fetuses
in the same pregnancy are terminated and the rest are
carried

to

abortions,

full-term--or

which

may

not

be

during

labor-induction

provided

in

outpatient

settings and very rarely performed in Alabama.

Tr. Vol.

I (doc. no. 110) at 37:10-20; Donald Decl. Ex. F, Induced
Terminations of Pregnancy 2014 Report (doc.
at

19

(showing

that

outpatient

induction abortions in 2014).

85

clinics

no.

81-14)

performed

no

The court finds that potassium-chloride injections
are not an available method for causing fetal demise
before standard D&E procedures in plaintiffs’ outpatient
clinics for the following reasons.
(i) Physicians must receive extensive training to
induce

fetal

demise

through

injection

of

potassium

chloride, and that training is unavailable to abortion
providers at outpatient clinics in Alabama.

Injecting

potassium chloride takes great technical skill and is
extremely challenging.

The physician’s goal is to inject

it directly into the fetal heart, which is smaller than
the size of a dime at 15 weeks of pregnancy.26
I

(doc.

potassium

no.

110)

at

chloride

significant

harm,

31:11.

into

the

such

Accidentally
woman’s
as

body

cardiac

Tr. Vol.
injecting
can

cause

arrest.

Potassium-chloride injection is not taught to OB/GYN

26. 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.
86

residents or to family-planning fellows, whose training
involves abortion care, because it is generally used only
for high-risk, multi-fetal pregnancy reductions.27

Tr.

Vol. I (doc. no. 110) at 39:9-25. The only subspecialists
who

are

trained

to

perform

the

injections

are

maternal-fetal medicine fellows, who complete three years
of highly supervised training to specialize in high-risk
pregnancies.

Tr. Vol. II (doc. no. 111) at 141:5-10.

Learning to perform these injections safely would require
observing approximately 100 to 200 procedures.

Id. at

60:7 - 61:9.28
Because

the

plaintiff

physicians

have

not

been

trained in potassium-chloride injections, they would need

27. As explained above, fetal reduction refers to a
procedure where one or more of the fetuses in the same
pregnancy are terminated and the rest are carried to
full-term, due to health risks of multiple gestations.

28. For the reasons discussed in the subsection below
about the parties’ experts, the court rejected the
State’s expert’s far lower estimate of the number of
procedures the clinic doctors would need to view in order
to be able to perform the procedure safely. In any case,
even if he were correct, there would be no practical way
for them to observe those procedures.

87

to receive training in order for this procedure to be a
meaningfully available method.29
impossible

for

these

However, it would be

physicians

to

receive

this

specialized training, because no hospital in Alabama
offers

training

on

potassium-chloride

injections

to

unaffiliated physicians not enrolled in their three-year
maternal-fetal medicine fellowship program.
(doc. no. 111) at 141:23-25.

Tr. Vol. II

Furthermore, because even

a major academic hospital such as the University of
Alabama at Birmingham has a caseload of fewer than 10
potassium-chloride injection procedures per year, even a
hypothetical ad-hoc training program would take more than
10 years for a sufficient number of cases to arise.

Id.

at 140:6-10.

29.
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).
88

(ii)

Potassium-chloride

risks to the patient.

injections

carry

serious

Because potassium chloride has

harmful effects on the heart, inadvertently injecting it
into the woman’s circulation can endanger the patient.
Tr. Vol. I (doc. no. 110) at 29:2-7; 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 42:2-8.
also

increase

Tr. Vol. I (doc.

Injections of potassium chloride may

the

risk

of

uterine

perforation

and

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

Id. at 29:3-5, 43:16-22,

80:6-8; Tr. Vol. II (doc. no. 111) at 21:5-9. No systemic
study on the efficacy or safety of the procedure before
standard

D&E

experimental.

is

available,

rendering

the

procedure

Tr. Vol. I (doc. no. 110) at 29:21-30:3,

44:4-11.
(iii) Physical conditions common to many women can
make potassium-chloride injection extremely difficult or

89

impossible.

Obesity, fetal and uterine positioning, and

presence

uterine

of

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.

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 139:3-15. Obesity is common
in

the

Tuscaloosa

and

Huntsville

clinics’

patient

population; indeed, about 40 % of the patients at the
Huntsville clinic 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 with a needle.
Tr. Vol. I (doc. no. 110) at 61:18-25.

Because fetal

positioning changes throughout pregnancy, a doctor is

90

unable to know whether fetal and uterine positioning pose
a problem for the injection until the woman receives an
ultrasound immediately prior to the procedure.

Third,

uterine fibroids, which are benign tumors on the uterine
walls affecting over half of women, can get in the
needle’s

way,

impenetrable.

because

they

can

become

calcified

and

Tr. Vol. I (doc. no. 110) at 40:21-41:4,

61:18-25, 197:3-4.

All four of these factors can make

it difficult--or even impossible--for the needle to reach
the fetus or even the amniotic fluid.

Thus, many women

seeking abortions in Alabama would not be good candidates
for potassium-chloride injections.
***
Because it is a technically challenging procedure
that carries serious health risks, because there is no
practical way for the plaintiffs or any other outpatient
abortion providers in Alabama to receive training to
perform

the

conditions

procedure
would

safely,

render

the

and

because

common

administration

of

potassium-chloride difficult or impossible for many women

91

who seek second-trimester abortions in Alabama, the court
finds

potassium-chloride

injection

unavailable

as

a

method for achieving fetal demise.

d. Digoxin Injection

The final method that the State argues the Alabama

clinics

could

use

to

induce

fetal-demise

standard D&E is digoxin injection.
physicians
visualize

begin
the

by

using

woman’s

an

uterus

prior

to

To inject digoxin,

ultrasound
and

the

machine

fetus.

to
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.
no.

110)

at

59:25-60:11,

92

Tr. Vol. I (doc.

68:6-9.

As

with

potassium-chloride
painful

and

injections,

invasive

digoxin

because

they

injections

are

are

administered

through a transabdominal needle without anesthesia.

Tr.

Vol. I (doc. no. 110) at 44:12-22, 75:25-76:6, 196:3-6.
The court concludes that digoxin injections are not
a feasible method of causing fetal demise in the Alabama
clinics for the following reasons.
(i) First, digoxin injections are not reliable for
inducing fetal demise.
amniotic

fluid,

When injected into the fetus or

digoxin

between 5 % and 15 %.

has

a

failure

rate

ranging

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

64:1-8; Tr. Vol. II (doc. no. 111) at 142:4-10.

The

State suggested that when fetal demise is not successful
after the first injection, a second injection of digoxin
could be attempted.

However, no study has established

the appropriate dosage, potential risks, or time to fetal
demise for administering a second injection of digoxin.
Tr. Vol. II (doc. no. 111) at 142:12-25.

Further,

performing a second injection is not acceptable medical
practice because its safety remains untested.

93

Davis

Decl. (doc. no. 54-5) ¶ 28.

The State further 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 earlier, there

are no other viable methods in the plaintiff clinics.
Requiring digoxin injection would force women to undergo
an unreliable method of fetal demise, and, in cases where
fetal demise is not achieved by the first injection,
would mandate physicians to experiment with the right
dosage for the second injection.
(ii) The lack of reliability is compounded by the
fact

that,

as

with

potassium-chloride

injections,

a

variety of factors, such as uterine positioning, fetal
positioning,

obesity,

and

the

presence

of

uterine

fibroids, can affect whether the physician is able to
inject digoxin into the fetus or the amniotic fluid
successfully.

As noted above, a high percentage of the

patients at the plaintiff clinics are obese, and over
half of all women suffer from fibroids.

Further, uterine

and fetal positioning can make the injection impossible,

94

and cannot be predicted ahead of the procedure.

As a

result, digoxin injections will not be possible for many
patients seeking to have an abortion at the plaintiff
clinics.
(iii) Digoxin injections are experimental during the
time period when most Alabama women receive abortions
using the D&E procedure.

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; Tr.

Vol. II (doc. no. 111) at 143:18-25.
no

studies

for

this

Because there are

gestational

period,

digoxin

injections remain experimental for women before 18 weeks
of

pregnancy--the

second-trimester

period

abortions

in

during
Alabama

which
are

most

performed.

Donald Decl. Ex. C, Induced Terminations of Pregnancy
Occurring in Ala. (doc. no. 81-14) (showing that 80 % of
abortions performed in 2014 at or after 15 weeks occurred

95

between 15 to 18 weeks).
of

umbilical-cord

As with the experimental nature

transection,

requiring

digoxin

injection before 18 weeks of pregnancy would force women
to

go

through

an

experimental,

potentially

harmful

medical procedure.
(iv) Even when effective at inducing fetal demise
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

infection,

hospitalization, and spontaneous labor and extramural
delivery--that

is,

the

unexpected

and

spontaneous

expulsion of the fetus from the uterus while the woman
is

outside

of

help--compared

a
to

clinic

setting

standard

D&E

without
alone.

any
There

medical
is

no

dispute among experts that digoxin injection is six times
more likely to result in hospitalization compared to
injection of a placebo; that it carries an increased risk
of infection over standard D&E; and that it is twice as

96

likely

as

delivery.

amniocentesis30

to

result

in

extramural

Tr. Vol. I (doc. no. 110) at 170:22-171:2,

153:15-154:6; Tr. Vol. II (doc. no. 111) at 153:2-8.
Spontaneous expulsion of the fetus can cause bleeding and
require

medical

attention,

upsetting to the woman.31

aside

from

being

very

Because of these documented

30. 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.
In addition to the
undisputed fact that digoxin injection is riskier than
amniocentesis, the analogy fails: amniocentesis is a
procedure that only a small subset of women--those with
high-risk pregnancies--elect to undergo in order to
obtain vital information about the health of the fetus.
In contrast, the digoxin injection (or other fetal-demise
method) would be State-mandated for all women, would
provide no benefit to the patient, and would not be in
any sense medically necessary.
31. 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).

97

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
infrequent

control
risks,

a

trial],

in

significant

safety would seem warranted.”

addition
increase

to

any

...

in

more
D&E

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

at 26:20-24, 28:2-7.32
One of the plaintiffs’ experts testified that between
2007 and 2011, in order to avoid the risk of violating
the

federal

partial-birth

abortion

ban,

his

former

32. 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
significant risk of spontaneous labor and 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 significant risk into second-trimester
abortion procedures.
More to the point, Casey simply
asks whether the law imposes “significant health risks”
on women, rather than asking whether an alternative
procedure introduces new types of risks. Casey, 505 U.S.
at 880.
98

employer required digoxin injections for abortions at or
after 20 weeks.
This

was

Tr. Vol. II (doc. no. 111) at 82:5-12.

before

more

research

on

digoxin

injections

showed that the procedure carries significant risks of
extramural delivery, infection, and hospitalization. Tr.
Vol. I (doc. no. 110) at 70:6-71:16. The expert explained
that

his

former

employer’s

past

practice

is

distinguishable from legally requiring digoxin use before
all standard D&E for two reasons.

First, in the case of

the employer’s elective digoxin use, when the first dose
failed, the physician could stop attempting fetal demise
and

perform

standard

D&E

without

facing

criminal

liability; therefore, the physician was not required to
administer

an

experimental

second

dose

of

digoxin.

Second, the policy was never applicable to pregnancies
before 18 weeks, because it would have been experimental
for those women.
showed

that

In other words, even before research

digoxin

injections

carry

significantly

greater risks of extramural delivery and hospitalization,
digoxin injections were never used for pregnancies before

99

18

weeks--the

time

during

which

the

majority

second-trimester abortions in Alabama are sought.

of
Were

the fetal-demise law to go into effect here, in contrast,
the physicians would have to use digoxin before 18 weeks,
and would have no other, non-experimental option were the
first injection unsuccessful; the patient would simply
be unable to have an abortion.
(iv) The use of digoxin injections as a fetal-demise
method

would

impose

abortion access.

serious

logistical

obstacles

to

For the vast majority of women in

Alabama, standard D&E is a one-day procedure.

Second

Parker Decl. (doc. no. 54-6) ¶ 13; Robinson White Decl.
(doc. no. 54-4) ¶ 20.
increases

the

procedure

Requiring a digoxin injection
from

one

day

to

two:

women

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

See Whole

Woman’s Health, 136 S. Ct. at 2313 (external factors that
affect women’s ability to access abortion care--such as
increased driving distance--should be considered as an

100

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 to

induce fetal demise, a patient seeking an abortion would
have to meet with the physician at least three times over
four days all for a 10- to 15-minute procedure: first,
to receive the required informed-consent warning; second,
at

least

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.
Vol. I (doc. no. 110) at 202:23 - 204:11.

Tr.

And, in the 5

to 15 % of cases where the first digoxin injection would
fail, an additional visit would be required.
The burden of having to make multiple trips for the
procedure is especially pronounced for the population of
women who seek second-trimester abortions in Alabama.
Most women who come to the Tuscaloosa and Huntsville
clinics

are

low-income:

82

101

%

of

patients

at

the

Tuscaloosa clinic live at or below 110 % of the federal
poverty level, and 60 % of patients at the Huntsville
clinic receive financial assistance.33

Second Gray Decl.

(doc. no. 54-1) ¶ 45; Tr. Vol. I (doc. no. 110) at
206:18-23.

Travel is not free, and the burdens of

additional trips is compounded by the fact that lowincome patients often do not have access to a car. Second
Katz Decl. (doc. no. 54-11) ¶ 22 (estimating more than
one in four patients does not have access to a car).

As

this court found in Planned Parenthood Southeast, Inc.
v. Strange, getting to an abortion clinic is expensive
and difficult for low-income women: they are more likely
to

depend

on

public

transportation,

ask

friends

or

relatives for rides, or borrow 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

33.
The court notes that 25.2 % of Tuscaloosa’s
population lives below the poverty line, as do 17.6 % of
Huntsville residents. Katz Decl. (doc. no. 54-11) ¶ 8.

102

regular attendance of meetings or classes.34

Planned

Parenthood Se., 33 F. Supp. at 1357; Second Katz Decl.
(doc. no. 54-11) ¶ 16-34.

Having to make yet 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 woman lives--and some women live
as far as five hours away by car, presumably far more by
bus--undergoing

digoxin

injection

before

D&E

could

require a woman to miss four or even five days of work.35

34. 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.
35. Dr. Robinson White credibly testified that
because at least 88 % of women live in a county with no
abortion provider, women travel from as far as
Mobile--which is about five hours away by car--to the
Huntsville clinic. Tr. Vol. I (doc. no. 110) at 207:89; see also Tr. Vol. I (doc. no. 110) at 203:8-13
103

Faced with what will be, for many, an insurmountable
financial and logistical burden, some low-income women
would not be able to have an abortion at all.
***
Because

the

court

has

found

that

umbilical-cord

transections and potassium-chloride injections are not
feasible and unsafe in the Alabama clinics, and therefore
unavailable, digoxin injection is the only remaining
alternative for inducing fetal demise.

Based on the

unreliability of the procedure, the experimental nature
of the procedure for women before 18 weeks of pregnancy
and for injecting a second dose of digoxin, the increased
risks of complications beyond standard D&E alone, the

(describing how the fetal-demise requirement would
increase the number of trips a woman seeking an abortion
would have to make from two to three or four); Tr. Vol.
II (doc. no. 111) at 37: 21 - 38:5 (explaining that women
travel to the Huntsville clinic from west Alabama and
southern Alabama).
Patients traveling these great
distances would either have to make at least three
lengthy round trips to the clinic over a four-day period,
or travel and stay in the area over the four days. Either
option would require the patient to take a number of days
off work, including an additional day in the event that
she would need to leave the day before to make it to the
appointment.
104

travel burden, and the pain and invasiveness of the
procedure, the court finds that digoxin injection is not
a

feasible

method

of

inducing

fetal

demise

before

standard D&E in Alabama clinics.

e. Findings on Experts
Before analyzing the impact of the proposed use of
these

three

methods

on

the

availability

of

second-trimester abortion in Alabama, the court pauses
here to explain certain findings with regard to the
testimony of the parties’ experts, both as a general
matter and on particular topics.
The court makes these general findings regarding two
of the experts who testified at the hearing.
Davis,

one

credible

of

and

the

plaintiffs’

knowledgeable

experts,

about

the

Dr. Anne

was

highly

fetal-demise

methods, the strengths and weaknesses of various types
of

studies,

particular,

the
the

provision

practical

of

abortion,

realities

of

and,

provision

in
of

abortion in outpatient clinics such as the Tuscaloosa and

105

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 has significantly
less expertise than the plaintiffs’ experts on abortion
in general, because he does not in any sense specialize
in abortion and has performed far fewer such procedures.
In particular, he did not evince significant knowledge
of

the

provision

of

abortion

in

outpatient-clinic

settings or the conditions that exist in those clinics,
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 based on those concerns.
While the State’s expert opined that umbilical-cord
transection
Huntsville

would

be

clinics,

feasible
the

court

in

the

found

Tuscaloosa
this

and

suggestion

unconvincing in part because he did not recognize the
differences between the type of specialized hospital
where he practices and the clinics.

106

Dr. Biggio practices

at a major academic hospital, and 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,

devices cost $ 50,000 to $ 100,000.
110) at 43:10 13, 198:16

199:9.

and

these

Tr. Vol. I (doc. no.
Likewise, in the case

that a patient experienced significant blood loss during
the

umbilical-cord

transection

procedure,

Dr.

Biggio

would have the resources of a major hospital--including
access to blood services--to address the problem, which
the plaintiff clinics lack.

Furthermore, the State’s

expert has never attempted umbilical-cord transection,
which rendered his testimony far less probative than that
of the plaintiff’s expert, Dr. Davis, who had.
While agreeing that plaintiff physicians would need
to observe a number of procedures in order to learn how
to perform a potassium-chloride injection safely, Dr.
Biggio estimated that it would take only 10-20 procedures
for the plaintiffs to learn to inject potassium chloride

107

for purposes of performing abortions in the outpatient
clinics.

Tr. Vol. II (doc. no. 111) at 119:6 14.

The

court viewed this estimate as unreasonably low given the
technical difficulty of the procedure, the severity of
the

potential

difference

in

health

risk

technological

to

the

and

woman,

and

emergency

the

resources

between the academic hospital where the State’s expert
works and the plaintiffs’ outpatient clinics.

Based on

these issues, as well the fact that the plaintiffs’
expert’s opinion was based on consultation with a leading
expert

in

credited

the
the

use

of

potassium

plaintiffs’

chloride,

expert’s

the

testimony

court

on

this

issue, and rejected that of the State’s expert.

2. Impact on Availability of Second-Trimester
Abortions
Having discussed the mechanisms and risks of the
three proposed fetal-demise methods, the court turns to
the aggregate impact of the law mandating fetal demise
before standard D&E on women’s access to second-trimester
abortions

in

Alabama.

As
108

mentioned

above,

the

undue-burden analysis requires the court to consider the
“real-world”
Accordingly,

impact
the

of

court

the

proposed

considers

the

regulation.

impact

of

the

fetal-demise law on the availability of abortions for
Alabama women at 15 or more weeks of pregnancy who would
otherwise receive a standard D&E abortion at either the
Huntsville or Tuscaloosa clinic.
The State argues that it has no obligation to come
up with one fetal-demise method that works for all women;
standard D&E itself does not work for every woman, and
the State is not requiring that any specific method be
used for all women because, in theory, women have three
options from which to choose.

However, if none of the

proposed fetal-demise methods works for women who would
otherwise have been able to receive standard D&E, the
fetal-demise

requirement

burden on those women.
expose

women

fetal-demise

to

would

impose

a

substantial

Furthermore, if available options

significant

requirement

would

health
impose

risks,
a

the

substantial

burden on women seeking to terminate their pregnancy.

109

Based on the factual findings discussed above, it is
clear

that

the

significantly

fetal-demise

reduce

access

requirement

would

to

pre-viability

second-trimester abortions in Alabama.

The court finds

it apparent that these burdens go beyond having “the
incidental effect of making it more difficult or more
expensive to procure an abortion,” Gonzales, 550 U.S. at
158; should the fetal-demise law stand, Alabama women
will be altogether unable to access a safe abortion at
or after 15 weeks of pregnancy.
There are a number of burdens that the vast majority
of woman seeking a second-trimester abortion would face
under

the

fetal-demise

law.

All

women

seeking

a

second-trimester abortion in Alabama would have to endure
a

medically

unnecessary,

invasive

procedure

that

increases the duration of the procedure as well as the
risk of complications.
(“The

American

Davis Decl. (doc. no. 54-6) ¶ 19

Congress

of

Obstetricians

and

Gynecologists (‘ACOG’) has stated that there is no sound
medical basis for requiring abortion providers to induce

110

fetal demise prior to performing a D&E. According to the
ACOG, ‘No evidence currently supports the use of induced
fetal demise to increase the safety of second-trimester
medical or surgical abortion.’”).

These women will be

unique: there is no other medical context that requires
a doctor--in contravention of her medical judgment and
the

best

interests

of

the

patient--to

administer

procedure that delivers no benefit to the patient.
at ¶ 18.

a

Id.

For many women, the fetal-demise law would

increase the length of the procedure from one day to
two--not including the mandatory visit 48 hours before
attempting

fetal

demise--increasing

costs of travel and/or lodging.

all

accompanying

This delay and extra

cost would be particularly burdensome for low-income
women, many of whom end up seeking a second-trimester
abortion

(rather

than

a

first-trimester

abortion)

precisely because of the time it took them to gather
money to cover these costs.
Other burdens of the fetal-demise law depend on the
gestational period of the woman seeking the abortion, who

111

can be put into two groups: those whose pregnancies are
between 15 and 18 weeks, and those whose pregnancies are
between

18

and

22

weeks.36

The

first

group

is

significantly larger than the second group: approximately
80 % of women who obtain abortions at or after 15 weeks
in Alabama do so between 15 and 18 weeks of pregnancy.
Donald Decl.

Ex. C, Induced Terminations of Pregnancy

2014 Report (doc.

no.

81-14) at 13.

This group, under

the fetal-demise law, would have no avenue for obtaining
an abortion in Alabama.
umbilical-cord

First, as discussed above,

transection

and

potassium-chloride

injections would be unsafe and are not at the plaintiff
clinics; even if they were attempted, the size of the
fetus

at

procedures

this

stage

extremely

of

pregnancy

technically

would

difficult.

make

the

Second,

digoxin injections are virtually unstudied for this group
of women--no data on dosage, safety, or side effects

36. Twenty-two weeks after the last menstrual cycle
is the latest point at which Alabama allows abortions,
unless a health exception can be invoked. 1975 Ala. Code
§ 26-23B-5.
112

exist; in other words, women would have to undergo an
experimental procedure with significant health risks in
order to have an abortion.

In sum, for women between 15

and 18 weeks of pregnancy--the majority of the population
affected by the law--none of the three procedures are
available in any practical sense in Alabama; in other
words, the fetal-demise law would operate as an absolute
barrier

to

these

women’s

access

to

pre-viability

abortions.
For those whose pregnancies are at 18 weeks or later,
their

access

to

pre-viability

abortion

would

be

substantially burdened by significant health risks that
would be absent if not for the fetal-demise requirement.
First, potassium-chloride injection is not available on
an outpatient basis in Alabama.

Second, while not as

difficult as in pre-18 week pregnancies, cord transection
is technically difficult, unreliable, and unsafe, due to
the significant risk of blood loss.

Third, digoxin

injections increase the risk of extramural delivery,
infection, and hospitalization and fail 5 to 15 % of the

113

time, and no appropriate dosage, timing, or side effects
of a second dose are known.

This means that in addition

to being subject to heightened risks of complications,
for up to one out of every six women undergoing the
procedure, digoxin would fail, and the patient would be
caught between a rock and a hard place: either elect an
experimental second dose of digoxin, undergo another
unsafe procedure with its attendant risks at the hands
of a physician with no training, or give up the right to
have an abortion.
The interplay among the three proposed fetal-demise
methods

illustrates

that

each

method

suffers

from

significant flaws, thereby significantly reducing the
availability of second-trimester abortions and making
obtaining an abortion substantially more burdensome. The
State’s claim that women have three options does not
negate the fact that for most women who would have been
previously able to get standard D&E--a safe and commonly
used

procedure

for

women

114

after

15

weeks

of

pregnancy--none of the three ‘alternatives’ would be safe
or feasible.
Indeed,

one

of

plaintiff’s

experts

credibly

testified about how the flaws in these fetal demise
methods could be expected to interact in the real world.
Dr. Davis testified that, because she was hoping to
perform an intact D&E, which she believed to be safer at
a later gestational age, she attempted fetal demise to
comply with the federal ban on intact D&E.

She first

tried digoxin, which failed to work; then she attempted
the potassium-chloride injection.

Despite being highly

trained in the field of abortion care, she was unable to
successfully inject potassium chloride into the fetal
heart, even at or after 20 weeks of pregnancy.
I (doc. no. 110) at 52:11 - 53:14, 136:7 16.
find it safe to perform cord transection.

Tr. Vol.

She did not

At that point,

she still had the option of performing standard D&E
without fetal demise, which is what she did.

However,

had the fetal demise requirement been in effect for

115

standard D&E, she would not have been able to provide the
abortion.
When a woman is forced to undergo an unwanted, risky,
invasive, and experimental procedure in exchange for
exercising her right to choose an abortion, her right is
substantially

burdened.

A

regulation

that

“as

a

practical matter, [] forces a woman and her physician to
terminate her pregnancy by methods more dangerous to her
health

than

the

method

outlawed”

constitutional challenge.

cannot

withstand

Danforth, 428 U.S. at 79.

Indeed, would we want ourselves, our spouses, or our
children to undergo an unnecessary medical procedure for
which

the

documented

comparably lacking?
should

not

ask

safety

and

effectiveness

is

The court finds that the State

otherwise

of

Alabama

women

seeking

pre-viability abortions.
The State suggests that mandating fetal demise does
not

burden

second-trimester

women’s
abortion

access
because

to

pre-viability

some

doctors

have

chosen to perform fetal-demise procedures before standard

116

or intact D&E.
distinction
surgical

between

elective

procedures.

requirement
physician

This argument fails to appreciate the

that

and

a

In

fetal
patient

and

the

government-mandated

absence

demise

must

be

can

discuss

of

a

legal

achieved,

the

risks

a

and

determine the best course of action for that woman’s
particular

medical

particular desires.

needs

and

based

on

that

woman’s

In that context, a physician and her

patient may elect a fetal-demise procedure because the
patient wants it.
On the other hand, when the State requires that every
woman getting a second-trimester abortion must go through
an extraneous procedure, what was an acceptable health
risk in the context of a physician recommending the
procedure and a patient giving informed consent turns
into a much higher risk, for two reasons: first, the
State is turning a rare procedure that was done only in
the context of pregnancy of multiples (potassium-chloride
injections)

or

late-stage

pregnancies

(digoxin

injections) into a requirement for practically all women

117

getting

an

abortion

at

or

after

15

weeks,

greatly

increasing the number of women who are subject to the
heightened health risks; second, the State is mandating
the procedure on women, even for whom the procedure is
especially risky, without their consent.

See Casey, 505

U.S. at 857 (stating that Roe v. Wade, 410 U.S. 113 (1973)
and

its

progeny

may

be

seen

as

a

rule

of

“bodily

integrity, with doctrinal affinity to cases recognizing
limits on governmental power to mandate medical treatment
or to bar its rejection.”).
Further,

the

court

cannot

find

that

the

health-exception functions as a fail-safe; it does not
nullify the burden the fetal-demise requirement creates
on women’s access to second-trimester abortion.

As noted

earlier, the statute provides that, 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

of

her

pregnancy to avert her death or to avert serious risk of
substantial and irreversible physical impairment of a

118

major bodily function, not including psychological or
emotional conditions.”

1975 Ala. Code § 26-23G-2(6).

The State argues that the health exception would kick in
in the situation in which a fetal-demise procedure fails
and poses a significant health risk to the patient.
particular,

the

State

argues

that

whenever

In
cord

transection fails, then the health exception would apply,
and

that

in

some

of

the

cases

where

digoxin

or

potassium-chloride injections fail, the health exception
might apply.
The State’s arguments are not convincing.

First,

the existence of a health exception does not address the
fact

that

no

training

is

available

for

technically

difficult procedures like potassium-chloride injections
and cord transection, or that no data are available on
the appropriate dosage, timing, and risks of digoxin for
women between 15 and 18 weeks of pregnancy, or for a
second

dose

of

digoxin

should

the

first

dose

fail.

Second, because the fetal-demise procedures themselves
impose significant health risks (and therefore the State

119

cannot constitutionally require them under Gonzales), a
health exception to address those health risks cannot
alter

the

fact

constitutional:

a

that

such

medical

procedures

exception

otherwise unconstitutional ban.

are

cannot

not

save

an

See Northland Family

Planning Clinic, Inc. v. Cox, 487 F.3d 323, 340 (6th Cir.
2007) (holding that a general ban on standard D&E imposed
an undue burden and that “it is unnecessary ... to address
exceptions

to

an

unconstitutional

and

unenforceable

general rule”).
Third, counsel’s assertion as to how the health
exception would be construed are not determinative of how
the exception would actually be enforced.
530

U.S.

at

941

(rejecting

interpretation

of

accepting

authoritative

as

the

the

statute
an

See Stenberg,

Attorney

and

General’s

warning

Attorney

against
General’s

litigation position when it does not bind state courts
or local law enforcement authorities); 1975 Ala. Code
§

12-17-184

independent

(showing
authority

that
to

district
prosecute

120

attorneys
“all

have

indictable

offenses”).

In fact, evidence suggests that the health

exception, as written, will not operate in the way that
the State’s counsel described, given the history and
usage of such exceptions in other abortion regulation
contexts

in

Alabama.

See,

e.g.,

Report

of

Induced

Termination of Pregnancy, ADPH-HS-10 (doc. no. 89-2) at
7.

Alabama prohibits abortion at or after 22 weeks

unless a health exception can be invoked; this health
exception’s language is identical to the one included in
the fetal-demise law.

According to hearing testimony and

the State administrative form for reporting abortions,
the Alabama Department of Public Health has interpreted
this

language

to

life-threatening

require

conditions

actual
such

serious
as

and

“severe

preeclampsia” or “life threatening sepsis,” rather than
the risks of developing such conditions.
(doc.

no.

111)

at

148:1-16.

In

other

Tr. Vol. II
words,

the

plaintiffs would have to wait until their patients are
in extremely serious danger before they could safely

121

invoke the health exception and proceed to performing a
D&E with first inducing fetal demise.
Even the plain language of the exception makes it
evident that it sets an extremely high threshold: the
exception would not apply unless there is a “serious risk
of substantial and irreversible physical impairment of a
major bodily function.”
(emphasis

added).

1975 Ala. Code § 26-23G-2(6)

The

words

“serious

risk”

and

“substantial” set the bar high; the word “irreversible”
raises

the

bar

to

another

level

entirely.

The

applicability of the health exception, by its terms,
turns on whether there is a serious risk of substantial,
permanent disability.

The physician could not invoke the

health exception where the patient, while at serious risk
of grave illness, would likely recover from the illness
eventually, no matter how long that recovery would take.
Take, for example, a patient undergoing serious blood
loss during an unsuccessful attempt at umbilical-cord
transection: if the physician assessed that patient as
being in a serious risk of being bedridden for six months

122

as a result of that blood loss, but thought that she
would probably recover without permanent disability, the
health exception would not apply.
limited

application,

the

Due to its extremely

health

exception

provides

vanishingly little protection for patients or doctors.
Most significantly, the exception would not protect
against

the

grave

health

risks

arising

from

cord

transection because the procedure does not ‘fail’ at a
discrete point that would trigger the health exception.
The

blood

procedure

loss
happens

accompanying
on

a

the

cord

continuum:

the

transection
longer

the

transection procedure takes, the greater the risk of
serious blood loss becomes.

Therefore, in order to

trigger the health exception, the physician would have
to make a difficult snap judgment on the murky issue of
whether the blood loss has reached a level at which the
health

exception

can

be

safely

triggered

and

the

physician can stop blindly attempting to transect the
cord and proceed to standard D&E.
statute’s

health

exception

123

is

To be sure, the
governed

by

a

reasonableness

standard;

reasonableness

would

be

however,
determined

here

that

post-hoc

in

a

proceeding in which the physician would face criminal
prosecution, in a State in which these physicians are
already working in a hostile climate.
The fetal-demise law also burdens Alabama women by
reducing

the

number

of

doctors

willing to perform abortions.
programs

train

doctors

in

in

Alabama

able

and

First, not all residency
standard

D&E,

so

finding

doctors trained in abortion care and willing to practice
in

Alabama

Practice

proves

difficult

Bulletin:

Second

for

abortion

Trimester

providers.

Abortion,

121

Obstetrics & Gynecology 1394, 1395 (2013) (“Dilation and
evacuation training is not available in all residency
programs, and many residents trained in D&E have not
performed a sufficient number of procedures to achieve
competency
requirement

in

the

tacks

technique.”)
on

an

The

fetal-demise

additional

training

requirement--training that is not readily available to
Alabama doctors--on the already few doctors trained in

124

standard D&E in Alabama.

Second, the fetal-demise law

would increase the difficulty of finding doctors to work
in Alabama because it imposes a requirement that doctors
could view as compromising their ethical obligations to
patients.

The

medical

directors

of

both

clinics

testified as to having difficulty finding doctors trained
and willing to provide abortion services; they further
testified that, if forced to induce fetal-demise before
every D&E, they would stop performing second-trimester
abortions

in

order

to

comply

with

their

ethical

obligation of beneficence--doing what is in the best
interest of patients.

Second Parker Decl. (doc. no.

54-6) ¶ 16; Robinson White Decl. (doc. no. 54-4) ¶ 25.
While the State argues it cannot be held responsible if
doctors elect not to perform abortions under the new
regulations, the court disagrees.

The law imposes an

affirmative obligation on doctors to perform an unsafe
procedure--with no medical benefit to the patient--for

125

which they are not trained.37

Doctors are subject to

liability for violations of ethical duties,38 and these
doctors

believe--in

part

based

on

guidance

from

the

American College of Obstetricians and Gynecologists, as
well

as

the

Society

of

Family

Planning--that

administering a risky, experimental procedure for which
they are not trained that delivers no benefit to the
patients violates that code of ethics.
(doc. no. 54-5) ¶ 18-19.
doctors

to

be

See Davis Decl.

The court cannot find these

unreasonable

for

refusing

to

expose

themselves to liability, in addition to the harassment

37. This is not a matter of giving doctors
“unfettered choice” in abortion procedures.
Gonzales,
550 U.S. at 163.
As the evidence demonstrated, the
fetal-demise
law
offers
doctors
no
“reasonable
alternative procedures.” Id. Here, doctors are required
to take an affirmative adverse action against patients
by performing one of the three risky fetal-demise
methods, or not performing the abortion at all.

38. Douglas NeJaime & Reva Siegel, Conscience Wars:
Complicity-Based Conscience Claims in Religion and
Politics, 124 Yale L.J. 2516, 2534 (“Licensing boards
enforce
professional
standards
against
healthcare
institutions, doctors, nurses and pharmacists. Tort law,
and specifically medical malpractice, provides redress
to patients injured by breaches of professional
duties.”).
126

and

abuse

abortions
concerns

they
in

and

already

face

Alabama.
the

as

Further,

climate

of

doctors
given

hostility

practicing
the

ethical

doctors

face,

combined with the testimony of both clinic directors
demonstrating the difficulty of finding doctors trained
and willing to perform abortions in Alabama, this ethical
hurdle will likely further dissuade other doctors from
coming to the State to take the place of the current
doctors.

While

constitute

an

these

undue

considerations

burden,

together

alone
with

may

the

not

other

findings by the court, they further contribute to the
court’s conclusion that the fetal-demise law would impose
a significant obstacle to abortion access at and after
15 weeks of pregnancy.
***
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 consider the State’s interests underlying a
law in conjunction with the obstacles imposed by the law
127

to

women’s

access

to

abortion

under

the

Casey

undue-burden test.
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: as important as the State’s
professed interests in the dignity of the fetal life and
the regulation of the medical profession, those interests
cannot

be

considered

in

isolation;

they

must

be

considered in the context of women’s right to elect a
pre-viability abortion, and that right must remain free
of undue state interference and substantial obstacles
regardless of the legitimacy of state interests.

Casey,

505 U.S. at 846. Indeed, the State does not contend that
the

fetal-demise

law

can

stand

in

the

absence

of

alternative procedures.
Here, the State contends that its interests are
sufficiently

strong

to

justify

the

burdens

the

fetal-demise law would impose on Alabama women because

128

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 only clinics that
provide

elective

pregnancy
before

to

abortions

utilize

performing

abortion method.

the

the

starting
three

most

at

15

weeks

fetal-demise

common

of

methods

second-trimester

However, for the reasons discussed

above, the court concludes 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

not

interests,

although

legitimate,

are

sufficient to justify such a substantial obstacle to the
constitutionally protected right to terminate a pregnancy
before viability.
Because the State’s interests are insufficient to
overcome the denial of Alabama women’s right to terminate
a pre-viability pregnancy at or after 15 weeks, and

129

because the fetal-demise law would place substantial, and
even

insurmountable,

obstacles

before

Alabama

women

seeking pre-viability abortions, the court concludes that
the law constitutes an undue burden on abortion access
and is unconstitutional.

VII. GONZALES

In briefs filed before the hearing as well as in the

briefs

filed

after

the

preliminary

injunction

was

entered, the State argued extensively that this case is
controlled by Gonzales v. Carhart, 550 U.S. 124 (2007),
which upheld a federal law banning the use of the intact
D&E abortion procedure against a broad facial challenge;
and that under Gonzales, the plaintiffs are not entitled
to relief.

On the contrary, the court’s holding today

is fully in keeping with Gonzales.

In upholding the ban

on intact D&E, the Gonzales Court first concluded that
the ban did not prohibit the most common procedure for
second-trimester

abortions,

standard

D&E,

and

then

analyzed whether the procedure that would remain legal
130

would in some circumstances pose more risk to the health
of the woman than the prohibited procedure of intact D&E.
Because the most common procedure--standard D&E--would
remain an available and viable option for all women, and
expert testimony conflicted as to whether the rarely used
procedure, intact D&E, was ever safer, the Court found
that the ban did not create a substantial obstacle to
obtaining an abortion.

In other words, because “there

is uncertainty over whether the barred procedure is ever
necessary

to

availability

preserve
of

a

other

woman’s

abortion

health,

given

the

that

are

procedures

considered to be safe alternatives,” the Court upheld
that ban on intact D&E.

Id. at 166-67.

While Gonzales

thus found that legislative factual findings were due
some

deference

amidst

circumstances

of

“medical

uncertainty,” the Court also noted that courts “retain[]
an independent constitutional duty to review factual
findings where constitutional rights are stake.”
165.

Consequently,

legislature

was

not

the

Court’s

“uncritical,”

131

deference
and

Id. at
to

the

legislative

findings were not given “dispositive weight.”

Id. at

165-66.
With regard to the fetal-demise law, the State argues
that

under

Gonzales,

any

time

there

is

medical

uncertainty about whether a procedure is safe or even
when

there

procedure,

are
the

unknown

risks

legislature

can

of

an

further

experimental
the

State’s

interest in promoting respect for fetal life by requiring
physicians to use that medical procedure to perform an
abortion.

The court disagrees, for several reasons.

First, the Court in Whole Woman’s Health squarely
rejected

a

reading

of

Gonzales--and

of

the

Court’s

abortion jurisprudence more broadly--as suggesting that
“that

legislatures,

and

not

courts,

must

resolve

questions of medical uncertainty.” Whole Woman’s Health,
136 S. Ct. at 2310.

The Court further contrasted the

undue-burden standard with the Court’s less searching
review of economic legislation under Williamson v. Lee
Optical of Oklahoma, Inc., 348 U.S. 483 (1955).
2309-10.

“Instead,

the

Court,

132

when

Id. at

determining

the

constitutionality

of

laws

regulating

abortion

procedures, has placed considerable weight upon evidence
and argument presented in judicial proceedings.”

Id. at

2310 (discussing Casey, 505 U.S. at 888-94, and Gonzales,
550

U.S.

at

reviewing

165-66).

Accordingly,

challenged

abortion

district

courts

regulations

must

“consider[] the evidence in the record-—including expert
evidence, presented in stipulations, depositions, and
testimony[,] [and] then weigh[] the asserted benefits
against the burdens.”

Id.; see also id. at 2324 (Thomas,

J., dissenting) (“[T]oday’s opinion tells the courts
that,

when

the

law's

justifications

are

medically

uncertain, they need not defer to the legislature, and
must instead assess medical justifications for abortion
restrictions by scrutinizing the record themselves.”).
In Whole Woman’s Health, the Court noted, “Unlike in
Gonzales, the relevant statute here does not set forth
any legislative findings.”

136 S. Ct. at 2310.

In the

absence of such findings, the district court there was
“left to infer that the legislature sought to further a

133

constitutionally

acceptable

objective”

and

to

“give

significant weight to evidence in the judicial record.”
Id.

Similarly, here, neither the school-proximity law

nor the fetal-demise law contained legislative findings.
Specifically, the fetal-demise law contained no findings
as

to

the

including

safety
the

of

alternative

three

abortion

methods,

alternatives--umbilical-cord

transection, potassium-chloride injection, and digoxin
injection--proposed by the State in this litigation, and
there is no other evidence that these alternatives have
been

subject

to

scrutiny

fact-finding process.

through

the

legislative

Moreover, there is no indication

that the Alabama legislature relied on the safety of
these alternatives in drafting the fetal-demise law.
Without such findings, the court accordingly “consider[s]
the evidence in the record--including expert evidence,”
and “give[s] significant weight” to that evidence.
at 2310.

Id.

The court concludes on that basis that both the

school-proximity law and the fetal-demise law, “while
furthering a valid state interest, ha[ve] the effect of

134

placing a substantial obstacle in the path of a woman’s
choice [to have an abortion of a nonviable fetus,” and
are therefore unconstitutional.

Id. at 2309 (quoting

Casey, 505 U.S. at 877 (plurality opinion)).
In

addition,

the

Court

in

Gonzales

addressed

a

statute that banned a rarely used abortion method, intact
D&E.
“a

550 U.S. at 155 (noting that intact D&E constitutes
small

fraction

abortions”).

of

the

overall

number

of

D&E

In finding that the ban did not create a

substantial obstacle, the Court relied heavily on the
fact that the most common procedure--standard D&E--would
remain available to all women under the statute.

Id.

at 150-54, 166-67 (noting “the availability of other
abortion

procedures

that

are

considered

to

be

safe

alternatives”); cf. Stenberg, 530 U.S. at 945-46 (holding
Nebraska ban on intact D&E unconstitutional because it
was broad enough to allow prosecution of “physicians who
use [standard] D&E procedures, the most commonly used
method

for

abortions”).

performing

pre-viability

trimester

By contrast, the Alabama fetal-demise law

135

second

has

the

effect

second-trimester
unavailable

to

of

rendering

abortion
women

in

the

method,
Alabama.

most

common

standard
Indeed,

D&E,

this

is

precisely the method that Gonzales took care to note
remained available.

Because Gonzales dealt with a ban

on one exceedingly rare form of abortion, it cannot be
read to suggest that statutes that effectively ban common
abortion methods--such as the fetal-demise law--should
be upheld.
To

the

extent

the

State

contends,

relying

on

Gonzales, that a court should wait until the laws are in
effect before determining whether they have imposed an
undue

burden

disagrees.

warranting

facial

relief,

this

court

This ‘wait-and-see’ approach would require

the court to wait--until the clinics close, until the
doctors are prosecuted, until women in Alabama cannot
access abortion--before holding an abortion regulation
to be facially invalid. By this time, however, the damage
will have been done.

In addition to the interim harm to

particular women’s constitutional rights to access a

136

pre-viability abortion--a harm that cannot be undone once
denied--the long-term viability of that right in the
State may have been irreversibly compromised: doctors may
not return to their practices; as the court’s findings
demonstrate, the plaintiff clinics--already in financial
peril--are not likely to reopen.

The court finds nothing

in the Supreme Court’s jurisprudence that requires courts
to witness the deterioration of a constitutional right
before acting to protect it.
Moreover, it is notable that the law at issue in
Gonzales was a federal statute that imposed a nationwide
ban, in contrast to the two Alabama statutes challenged
here.
attack”

Gonzales rejected the plaintiffs’ “broad, facial
against

as-applied

that

challenge

statute,
based

and

on

found

particular

that

an

factual

circumstances would have been more appropriate under the
circumstances.

550 U.S. at 133, 167-68.

As this court

has observed, Casey’s undue-burden standard requires a
“real-world

analysis”

of

an

abortion

regulation’s

effects, Planned Parenthood Se., 172 F. Supp. 3d at 1289,

137

including

such

relevant

factors

as

“the

nature

and

circumstances of the women affected by the regulation,
the availability of abortion services, both prior to and
under the challenged regulation, ... and the social,
cultural, and political context.”

Planned Parenthood

Se., 33 F. Supp. 3d at 1342; cf. Planned Parenthood
Arizona, Inc. v. Humble, 753 F.3d 905, 915 (9th Cir.
2014) (Fletcher, J.) (describing relevant factors to
burdens analysis as including “the ways in which an
abortion

regulation

interacts

with

women’s

lived

experience, socioeconomic factors, and other abortion
regulations”); Planned Parenthood v. Van Hollen, 738 F.3d
786, 796 (7th Cir. 2013), cert. denied, 134 S. Ct. 2841
(2014)

(“When

one

abortion

regulation

compounds

the

effects of another, the aggregate effects on abortion
rights must be considered.”).

In other words, the undue-

burden analysis focuses on factors that can vary greatly
between

jurisdictions;

a

regulation

that

places

a

substantial obstacle to women in one jurisdiction, based
on a number of these factors, may not pose such an

138

obstacle in another jurisdiction where those factors do
not exist.39

Gonzales’s reluctance to entertain a broad

challenge to a statute of nationwide application, in
light

of

the

jurisdiction-specific

factors

that

may

inform the undue-burden analysis, does not dissuade this
court from holding that the Alabama laws challenged here
create

a

substantial

obstacle

to

women

seeking

pre-

viability abortions in Alabama.

VIII. SCOPE OF RELIEF
Finally,

the

court

concludes

that

the

school-proximity law is unconstitutional both as applied
to the plaintiffs and facially and that the fetal-demise
law is unconstitutional as applied to the plaintiffs.40

39. Indeed, the court does not reach whether
Alabama’s fetal-demise law might be constitutional in
another jurisdiction where different conditions exist,
such as where abortions are routinely available in
specialized hospitals.

40. This court has previously discussed the law on
facial versus as-applied relief in another abortion
context. See Planned Parenthood Se., Inc. v. Strange,
172 F. Supp. 3d 1275, 1284 (M.D. Ala. 2016) (Thompson,
J.).
139

A

law

restricting

abortion

is

facially

unconstitutional if, “in a large fraction of the cases
in which [the law] is relevant, it will operate as a
substantial obstacle to a woman’s choice to undergo an
abortion.”

Casey, 505 U.S. at 895; accord Whole Woman’s

Health, 136 S. Ct. at 2320; see also Reproductive Health
Servs. v. Strange, --- F. Supp. 3d ----, 2016 WL 4607253,
at

*21-22

(M.D.

Ala.

Sept.

2,

2016)

(Walker,

M.J.)

(concluding that Whole Woman’s Health confirmed that
Casey’s large-fraction test applies to facial challenges
to a statute regulating abortion).

In the large-fraction

test, one must use as the denominator those cases “in
which the provision at issue is relevant,” which is a
narrower class than “pregnant women” or “the class of
women seeking abortions.”

Whole Woman’s Health, 136 S.

Ct. at 2320 (citing Casey, 505 U.S. at 894-95) (internal
quotations and alterations omitted).
The

plaintiffs

have

amply

demonstrated

that

the

school-proximity law is unconstitutional as applied to
them because the law imposes a substantial obstacle to

140

women

seeking

access

to

abortions

at

the

plaintiff

clinics. Whereas abortion in Tuscaloosa, Huntsville, and
the surrounding areas is currently relatively accessible,
the law would result in the closure of the clinics and
therefore

eliminate

the

availability

Alabama at or after 15 weeks.

of

abortion

in

Women at an earlier stage

of their pregnancies would be required to travel long
distances to obtain abortion care.

Nor would these women

be assured of the opportunity to obtain a timely abortion
elsewhere, and some women would not be able to receive
an abortion at all due to the delay or added travel time
and costs.

In contrast, the State has presented minimal

evidence that requiring the existing clinics to relocate
would further its asserted interests.
plaintiff

clinics

have

demonstrated

As such, the
that

their

substantive due process claim should prevail.
In addition, the school-proximity law is facially
unconstitutional.

As explained above, a law restricting

abortion is facially unconstitutional if, “in a large
fraction of the cases in which [the law] is relevant, it

141

will operate as a substantial obstacle to a woman’s
choice to undergo an abortion.”
888-95.

Casey, 505 U.S. at

During argument on the motion for preliminary

injunction, the plaintiffs contended that the fraction’s
denominator--the

class

of

women

for

whom

the

school-proximity law would be relevant--should be all
women

who

would

have

sought

abortion

Huntsville and Tuscaloosa clinics.

care

at

the

In contrast, the

State argued that the denominator should be all women who
receive abortion care at clinics throughout the State.
Under the plaintiffs’ reading, practically all women who
would have sought abortions in Huntsville and Tuscaloosa
would be burdened by those clinics’ closure.

But even

under the State’s approach, a large fraction of women in
Alabama would experience a substantial obstacle because
so many have relied on the Huntsville and Tuscaloosa
clinics.

Indeed, the majority of women who receive

abortions in Alabama do so at the plaintiff clinics--and
for the most recent year for which complete statistics
are available, 70 % of women who obtained abortions in

142

Alabama received them at one of those locations.

And of

course, all Alabama women seeking abortion at or after
15 weeks would experience a substantial obstacle, as the
only clinics they could have used would be closed.

Thus,

using either denominator, the court concludes that the
school-proximity

law

will

operate

as

a

substantial

obstacle, if not an absolute barrier, to a large fraction
of the women for whom the law is relevant.
Beyond the closure of the plaintiff clinics as a
result of the school-proximity law, all abortion clinics
in Alabama would suddenly find themselves under threat
of closure, dependent on the mercy of local zoning boards
and

school

decisions.
renewing

districts

making

school

construction

The law prohibits the Health Department from

the

license

of

any

abortion

clinic

located

within 2,000 feet of a K-8 school; it makes no exception
if a school is later built near a pre-existing clinic.
For example, if a K-8 public school were built within
2,000 feet of the Mobile abortion clinic on December 1,
2017, then that clinic too would be required to move or

143

close at the year-end expiration of its license; given
the difficulty of siting new clinics in Alabama’s climate
of hostility to abortion, the exclusion of areas within
2,000

feet

of

public

K-8

schools,

the

extensive

surgical-center requirements for buildings where Alabama
abortion clinics operate, and the financial circumstances
of any particular clinic, closure would be a significant
risk.41

This ever-present possibility would threaten the

right of all women in Alabama to access an abortion.
Accordingly, the court holds that school-proximity
law unconstitutional both facially and as applied to the
plaintiffs.

41. The
school-proximity
law
operates
in
conjunction with the surgical-center requirements law to
limit the locations where abortion clinics can be located
and to increase the expense of operating such clinics;
the combined impact of these laws contribute to the undue
burden on the right of women in Alabama to access a
pre-viability abortion.
See Planned Parenthood v. Van
Hollen, 738 F.3d 786, 798-99 (7th Cir. 2013), cert.
denied, 134 S. Ct. 2841 (2014) (Posner, J.) (“When one
abortion regulation compounds the effects of another, the
aggregate
effects
on
abortion
rights
must
be
considered.”).

144

Turning to the fetal-demise law, the parties agree
that the plaintiffs brought a facial challenge to that
statute.

However, as the Supreme Court observed that in

Whole Woman’s Health, a “final judgment should grant the
relief to which each party is entitled, even if the party
has not demanded that relief in its pleadings.”
Ct.

at

2307

(quoting

Fed.

R.

Civ.

P.

136 S.
54(c)).

Accordingly, although the plaintiffs there had brought
an

as-applied

challenge

as

to

the

Texas

statute’s

admitting-privileges requirement, because “the arguments
and evidence show[ed] that [the] statutory provision
[was] unconstitutional on its face,” the Court upheld the
district court’s grant of facial relief on that claim.42
Id.

42.
The Court further noted that the petitioners
had, “in addition to asking for as-applied relief, ...
asked for ‘such other and further relief as the Court may
deem just, proper, and equitable.’ Whole Woman's Health,
136 S. Ct. at 2307.
Here likewise, the plaintiffs
requested that the court grant “such other, further, and
different relief as the Court may deem just and proper.”
First Supplemental Compl. (doc. no. 50) at 31.

145

The question of as-applied and facial relief is
admittedly complex with regard to the fetal-demise law.
The parties disagree as to the appropriate test for when
facial relief may be granted.

While the court finds

unconvincing the State’s argument that Gonzales sets a
new

test

for

facial

relief

that

replaces

Casey’s

significant-fraction test, it need not decide the issue.
As discussed above, the parties’ arguments and evidence
clearly demonstrate that the fetal-demise law places an
undue burden on women seeking a pre-viability abortion
at the Huntsville and Tuscaloosa clinics.
is

no

question

unconstitutional

that
as

the

applied

Because there

fetal-demise
to

the

law

is

plaintiffs,

and

because the court can provide sufficient relief with an
as-applied

finding

discretion

grants

at

this

only

time,

the

as-applied

court

relief

in
on

its
the

fetal-demise law.
Finally, the court, as it did with the preliminary
injunction order, does not extend the final injunction

146

to the private civil-enforcement provisions under the
fetal-demise law.43

***
In summary, “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

At issue here is whether Alabama can pass a

school-proximity law whose effect is to shut down the
Huntsville

and

Tuscaloosa

clinics.

Similarly,

the

question for the fetal-demise law is whether the court
can let stand a statute whose effect will unquestionably

43. The parties did not object when the court did so
in the preliminary-injunction order.
There, the court
noted 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).
147

be to prevent women in Alabama from obtaining an abortion
after 15 weeks.

The answer to both questions is no.

The court will, therefore, enter an order enjoining
enforcement

of

the

school-proximity

and

fetal-demise

laws.
DONE, this 26th day of October, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE