West Alabama Women's Center et al v. Miller

Filing 22

OPINION. Signed by Honorable Judge Myron H. Thompson on 8/13/2015. (kh, ) (Main Document 22 replaced on 8/13/2015) (kh, ).

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
WEST ALABAMA WOMEN’S
)
CENTER and WILLIAM J.
)
PARKER, M.D., on behalf of )
themselves and their
)
patients,
)
)
Plaintiffs,
)
)
v.
)
)
DONALD E. WILLIAMSON,
)
M.D., in his official
)
capacity as State Health
)
Officer,
)
)
Defendant.
)

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

OPINION
This

lawsuit

is

an

‘as-applied’

challenge

by

a

licensed abortion clinic in the State of Alabama and
its

new,

sole

Administrative
that,

in

order

doctor
Code

against
§

to

a

regulation,

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

perform

abortions

at

Alabama

requiring

the

clinic,

either the doctor must have ‘admitting privileges’ at a
local

hospital

‘covering

or

the

physician’

clinic

who

has

must
such

contract

with

privileges.

a

The

plaintiffs, West Alabama Women’s Center and Dr. William
J. Parker, on behalf of themselves and their patients,
claim that this regulation is unconstitutional under
the Due Process Clause of the Fourteenth Amendment, as
enforced through 42 U.S.C. § 1983 and as applied to
them, because it violates their patients’ rights to
liberty and privacy and their right to pursue their
business and profession.

The defendant is Dr. Donald

E. Williamson, in his official capacity as the State
Health Officer.

Jurisdiction is proper under 28 U.S.C.

§ 1331 (federal question) and 28 U.S.C. § 1343 (civil
rights).
Previously, based on a limited record, the court
granted

the

plaintiffs’

motion

for

a

temporary

restraining order against the regulation as applied to
them.

This opinion explains why.

I.

LEGAL STANDARD

To demonstrate that a temporary restraining order
is warranted, the plaintiffs must show: (1) that there
2

is a substantial likelihood of success on the merits of
their suit; (2) that they will suffer irreparable harm
absent

injunctive

relief;

(3)

that

the

harm

to

the

plaintiffs absent an injunction would outweigh the harm
to the defendant from an injunction; and (4) that an
injunction is in the public interest.

Ingram v. Ault,

50 F.3d 898, 900 (11th Cir. 1995).

II. BACKGROUND
This case focuses on a regulation promulgated by
the

Alabama

State

Board

of

Health:

Administrative Code § 420-5-1-.03(6)(b).

Alabama

Before diving

into the question at hand, some history is helpful to
understand the legal context of this challenge.
The regulation took effect in 2007.1
either

that

a

doctor

who

performs

It requires

abortions

have

admitting privileges at a local hospital or that the

1. As the defendant notes, a regulation imposing
similar requirements was first enacted in 2003. It was
then amended in 2006, and these amendments took effect
in 2007.
3

clinic where an abortion is performed to contract with
a

local

covering

privileges.

physician

with

such

admitting

See Ala. Admin. Code § 420-5-1-.03(6)(b).

In 2013, Alabama enacted a statute that would have
superseded this regulation.
Code

§ 26-23E-4(c),

performing

required

abortions

local hospital.

The new statute, 1975 Ala.

have

that

every

admitting

physician

privileges

at

a

In effect, it would have eliminated

the alternative covering-physician arrangement.
Five abortion clinics were operating in the State
at

the

time,

only

two

of

which

were

staffed

by

physicians who had local admitting privileges.

The

other

the

three,

to

that

point,

had

complied

with

regulation by contracting with a covering physician.
Before
clinics
lawsuit

the

relying
in

this

statute
on

requirement

abortions

have

into

covering

court

statute’s

went

physicians

to

enjoin

that

all

admitting

effect,

the

brought

enforcement
physicians

privileges.

three

See

of

a
the

providing
Planned

Parenthood Se., Inc. v. Bentley (Strange I), 951 F.
4

Supp. 2d 1280 (M.D. Ala. 2013) (Thompson, J.) (granting
plaintiffs’

motion

for

temporary

restraining

order);

Planned Parenthood Se., Inc. v. Strange (Strange II), 9
F. Supp. 3d 1272, 1289 n.31 (M.D. Ala. 2014) (Thompson,
J.) (granting in part and denying in part the parties’
motions for summary judgment); Parenthood Se., Inc. v.
Strange (Strange III), 33 F. Supp. 3d 1330, 1337 (M.D.
Ala. 2014) (Thompson, J.) (finding that 1975 Ala. Code
§ 26-23E-4(c) creates an undue burden at least as to
the plaintiff clinics); Planned Parenthood Se., Inc. v.
Strange (Strange IV), 33 F. Supp. 3d 1381 (M.D. Ala.
2014) (supplementing liability opinion with evidentiary
findings).

Importantly, the plaintiff clinics did not

challenge the State’s regulation because they did not
need

to--they

remained

able

to

comply

with

the

regulation by contracting with a covering physician.
This court found the new statute unconstitutional,
at least as applied to the three clinics that brought
the suit.
court’s

Strange III, 33 F. Supp. 3d at 1378.

decision

as

to

the
5

scope

of

relief

The

remains

pending.

By agreement of the parties until relief is

decided, a temporary restraining order prohibiting any
enforcement

of

the

statute

in

the

State

remains

in

effect.
Because the statute requiring that all physicians
have admitting privileges has been enjoined, the two
alternative
remain:

routes

admitting

for

compliance

privileges

for

in
the

the

regulation

doctor

covering-physician contract for the clinic.

or

a

And though

the regulation has been amended in light of the statute
and in the wake of the Strange litigation, it still
allows for compliance by either route.2

2.
More specifically, the regulation now states
that the statutory requirement that all physicians
obtain staff privileges is “stayed until such time that
the restraining order is lifted or there has been a
final disposition allowing for enforcement of this
requirement in Planned Parenthood Southeast, et al. v.
Strange, et al., Civil Action No. 2:13-cv-504-MHT,” and
that, “until that time,” clinics may comply with the
regulation by contracting with a covering physician.
Although the revised language of the regulation is
a bit abstruse, it appears that both sides in this
litigation agree that the current regulation retains
the same two alternative routes for compliance: staff
(continued...)
6

Until

December

2014,

the

West

Alabama

Women’s

Center in Tuscaloosa had no trouble complying with the
regulation.
privileges

Its doctor, Louis Payne, had admitting
at

the

local

however, has changed.

hospital.

The

situation,

Dr. Payne retired in December

2014, and, although the Center has found a replacement
doctor, he does not have staff privileges at the local
hospital.
covering

Nor has the Center been able to find a
physician,

that

is,

one

who

has

local

admitting privileges and who willing to contract with
it.

Because the Center cannot meet either requirement

of the regulation, it has been closed since January
2015.

The Center now brings this suit asking the court

to declare the regulation unconstitutional as applied
to it so that the clinic may reopen.
For over 20 years before its recent closure, the
Women’s Center provided reproductive health services to
women in Alabama, including abortions, birth control,

privileges for the doctor
contract for the clinic.
7

or

a

covering-physician

treatment

for

sexually

transmitted

infections,

pregnancy counseling, and referral for adoption.
relevant

to

this

case,

Dr.

abortions at the clinic.

Payne

performed

As

all

the

Early-term abortions (which

is how the court will refer to all abortions prior to
16 weeks postfertilization) make up the vast majority
of the procedures performed at the Center.

In 2012 and

2013, about 80 % of the abortion procedures at the
Center

were

performed

postfertilization,
procedures
During

were

that

procedures

prior

and

almost

before

16

same

period,

performed

96

to
%

weeks
the

at

of

10

weeks

the

abortion

postfertilization.
remaining

the

4

Center

%

of
were

mid-second-trimester abortions (which is how the court
will refer to abortions between 16 weeks and 20 weeks
postfertilization).

Subject

to

a

health-exception,

Alabama’s legal limit for obtaining an abortion is 20
weeks postfertilization.

1975 Ala. Code § 26-23B-5(a).

By 2013, around 40 % of the abortions in Alabama
took place at the Women’s Center, far more than at any
8

other clinic.

In 2012, the Center performed two times

more

procedures

abortion

2013,

the

latest

year

than

any

for

other

which

clinic;
State

the

statistics, that gap increased to 2.5.

in
has

The Center was

the only clinic open five days a week, including on
Saturdays,

and

was

the

only

Alabama’s fifth largest city.
of

only

two

abortions

clinics

in

throughout

clinic

in

Tuscaloosa,

Additionally, it was one

the
the

State

that

first

performed

20

weeks

postfertilization, and it provided around 75 % of the
State’s mid-second-trimester abortions.
In these 20 years, the Center’s license has never
been placed on probation, suspended, or revoked for
failure to meet any safety regulation.

During the past

five years, less than one-tenth of one percent of the
Center’s patients were transferred to a hospital for
observation or a complication.

The Center has never

been closed for failing to treat its patients properly.
On

the

other

hand,

attacks

on

the

Center

have

forced it to suspend operations on several occasions.
9

In 1997, “a person opposed to abortion climbed onto the
roof of [the Center] and dropped a lit flare into the
air-conditioning unit.
of

the

clinic

damage.

The

identified.”
About

on

a

The flare lit the entire inside

fire,

causing

perpetrator

of

over

the

$ 400,000

arson

was

of

never

Strange III, 33 F. Supp. 3d at 1333.

decade

later,

“a

man

intentionally

drove

through the front of the [Center], eventually fleeing
and engaging police in a chase.”
has

received

bomb

threats

and

Id.

Also, the Center

had

gunshots

fired

through its windows.

In addition to these violent acts

towards

Dr.

clinic

the

Center,

administrator,

their home.

Payne

have

and

Gloria

encountered

Gray,

the

protestors

at

A few months ago, protestors handed out

flyers near Gray’s home with her name, photograph, and
home

address,

a

tactic

which

has

led

against abortion providers in the past.
1333

(noting

that

an

Alabama

doctor

to

violence

See id. at
who

provided

abortions was murdered after he was identified in an
anti-abortion

poster

at

a
10

Montgomery

rally

that

contained his name, photo, and contact information).
This

history

mirrors

the

larger

history

of

“severe

violence against abortion providers in Alabama and the
surrounding regions,” including threats, shootings, and
bombings that left at least one doctor and one police
officer dead.

Id.

Dr. Payne retired on December 31, 2014, leaving the
Women’s Center without a doctor with local admitting
privileges.
closed.

Since

that

time,

the

Center

has

been

However, it found a replacement, Dr. William

Parker, an Alabama native, to move to Tuscaloosa to
practice

at

the

board-certified

Center.

OB/GYN

with

Dr.

Parker

subspecialty

is

a

training

in

family planning, contraception, and abortion, and with
over 20 years of experience in women’s health.
currently

on

the

Medicine,

and

he

hospital there.
of

States,

faculty
holds

of

Northwestern

admitting

He is

School

privileges

at

of
the

He has performed abortions in a number

including

Alabama

11

and

Mississippi,

and

currently provides abortions at the Montgomery clinic
when the primary physician is unavailable there.3
After
Parker

agreeing

attempted

to

to

join

meet

the

the

Women’s

legal

provide abortions in Alabama.

Center,

Dr.

requirements

to

First, he looked into

getting local admitting privileges at the only hospital
in the Tuscaloosa area, which required that he perform
a number of hysterectomies and laparotomies at
hospital.

that

However, the reality is that, because Dr.

Parker is a full-time abortion provider and because
complications

from

abortions

are

so

rare,

he

would

never be able to do the required amount of procedures.
Indeed,

out

of

the

estimated

10,000

abortions

Dr.

Parker has performed in the last three years on women
up

to

20

weeks

postfertilization,

only

two

of

his

patients were transferred to the hospital, and one of
the two went for observation only.

Dr. Parker has in

3.
Even though he does not have staff privileges
at any local hospital in Alabama, Dr. Parker is
authorized to perform abortions at the Montgomery
clinic because that clinic has a contract with a
covering physician.
12

fact never had a patient who needed a hysterectomy from
an abortion complication.
Realizing this obstacle, Dr. Parker met with the
hospital board in charge of reviewing his application
for

admitting

Instead

of

privileges

performing

to

propose

these

an

procedures

alternative.
on

his

own

patients (who would not need them because of the low
complication rate from abortions), Dr. Parker proposed
a proctoring arrangement where he could work with other
OB/GYNs associated with the University of Alabama and
perform the required number of procedures, under their
guidance, on their patients.

The board stated in a

letter that this was an “outstanding idea.”

Decl. of

William J. Parker, Ex. B (doc. no. 4-12) at 2.

The

group of local OB/GYNs affiliated with the University
signaled

its

agreement

to

be

the

proctors

in

this

arrangement, writing to the board that Dr. Parker’s
suggestion was “wonderfully innovative” and that it was
“the

rest

gynecology

of

the

staff’s)

medical

staff[’s]

obligation
13

to

(specifically
support

this

Id., Ex. C (doc. no. 4-13) at 2.4

process.”
Women’s

Center

even

reopened

for

a

brief

The

period,

believing that it had an agreement.
This seeming agreement quickly fell apart.

The

OB/GYNs who originally had signaled they would proctor
backed

out,

replacement.

and

Dr.

Parker

could

not

find

any

In any case, the board, which Dr. Parker

had heard was going to approve his proctoring proposal,
did not.

Instead, it stated that he must satisfy the

proctoring

requirement

with

his

own

patients,

an

impossible task for a full-time abortion provider and
given the low number of complications from abortion.
When

Dr.

Parker’s

attempt

to

acquire

admitting

privileges began to break down, the Center sought out a
covering physician instead.
of

the

OB/GYNs

from

the

As could be expected, none
University

group

agreed

contract with the Center as a covering physician.

to
The

4.
While a low-quality photocopy makes this
exhibit difficult to read, the plaintiffs cite this
letter’s text in their briefing and the defendant does
not dispute the accuracy of this language.
14

Center then turned to the other OB/GYNs in Tuscaloosa.
Those efforts likewise failed.

One practice refused

point blank to provide covering physicians; the only
other practice in the area is headed by a physician
with well-known anti-abortion views.

All

solo

serve

practitioners

clinic’s

covering

also

refused

physician.

to
One

of

the

local

as

the

the

solo

practitioners specifically refused to sign a covering
physician

agreement

because

of

concerns

about

reputational harm.
The Women’s Center then pursued its last resort and
applied to the Department of Public Health for a waiver
of

the

regulation

admitting
clinic

requiring

privileges

to

application

contract
for

at
a

the

its
local

covering

waiver,

the

doctor
hospital

have

or

the

In

the

explained

Dr.

physician.
Center

to

Parker’s safety record and noted that it had policies
and procedures in place if complications were to arise
at the clinic or after the patient had been discharged.
These policies include a 24-hour hotline and a protocol
15

for

the

Center

to

communicate

physicians at emergency rooms.
the

waiver

request,

and

the

with

any

treating

The Department denied
Center

remains

closed

today.
Absent

the

temporary

restraining

order

now

in

effect, financial constraints would have, as of August
4, 2015, forced the Center to fire its staff whom it
had continued paying since being closed, and the Center
would likely have shut down permanently.

III. DISCUSSION
The Alabama State Board of Health has the authority
to

promulgate

licensing

of

rules
abortion

and

regulations

clinics

Admin. Code § 420-5-1-.01.

in

concerning

the

State.

the
Ala.

The Board’s administrative

arm is the Department of Public Health, and the head of
Department is the State Health Officer, the defendant.
The regulation at issue here, Ala. Admin. Code.
§ 420-5-1-.03(6)(b), provides that under current state
law,

one

of

two

requirements
16

related

to

abortion

follow-up care must be met before any facility within
the State may perform an abortion: (1) the physician
who performs the abortion “shall have staff privileges
at

an

acute

metropolitan

care

hospital

statistical

within

area

as

the

same

the

standard

abortion

or

reproductive health center is located, that permit him
or her to perform dilation and curettage, laparotomy
procedures,

hysterectomy,

reasonably

necessary

complications”;
abortion
physician
contract.”

or,

clinic

to
in

shall

services

and

...

the

any

other

treat

procedures

abortion-related

alternative,

obtain
through

“outside
a

valid

(2)

the

covering
written

Ala. Admin. Code. § 420-5-1-.03(6)(b).5

To

be qualified as a clinic’s covering physician, a doctor
must have admitting privileges as described above, and
the contract must require that the doctor be “available
to

treat

and

manage

all

complications

reasonably arise as a result of an abortion.”

5. See supra, note 1.
17

that
Id.

may

These
within

two

the

alternative
regulation

requirements

as

part

are

described

the

abortion

of

provider’s responsibility to “ensure that all patients
receive

adequate

follow-up

care,”

that

is,

care

relating to any complication that may arise following
the procedure.

Id.

The failure to comply with these

regulations can lead to suspension or revocation of a
clinic’s license, 1975 Ala. Code § 22-21-25, and the
operation of any unlicensed clinic can lead to criminal
penalties.

1975 Ala. Code § 22-21-33(a).

The plaintiffs make two separate claims for relief.
First, they argue that the regulation violates their
patients’

due-process

rights

to

liberty

and

privacy

guaranteed by the Fourteenth Amendment and imposes an
undue burden on a woman’s right to choose to have an
abortion.
violates

Second,
their

own

they

argue

due-process

that

the

rights

regulation
under

the

Fourteenth Amendment to pursue their chosen business
and profession.
Admin.

Code

They ask the court to declare Ala.

§ 420-5-1-.03(6)(b)
18

unconstitutional

as

applied to them only; in other words, they ask the
court

to

enjoin

the

enforcement

of

the

regulation

against them, but they do not challenge the regulation
facially or as it applies to other clinics in Alabama.
The
whether

court
the

now

turns

plaintiffs

to

have

the

question

shown

that

at

a

hand:

temporary

restraining order was warranted to suspend enforcement
of the regulation against them and to allow the Center
to reopen.

A. Substantial Likelihood of Success on the Merits
1. Administrative Exhaustion
The
temporary
granted

State

restraining
because

administrative
that

the

Health

the

Officer
order

should

plaintiffs

remedies.

plaintiffs

first

argues
not

failed

Specifically,

should

have

that

have
to
he

petitioned

a

been

exhaust
contends
for

an

amendment or repeal of the challenged regulation under
the Alabama Administrative Code in addition to applying
for a waiver.

The court disagrees.
19

Most

simply,

“there

plaintiff

exhaust

his

filing

suit

a

under

is

no

requirement

administrative
§ 1983.”

remedies

Beaulieu

v.

that

a

before
City

of

Alabaster, 454 F.3d 1219, 1226 (11th Cir. 2006) (citing
Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496,
508 (1982)).

As such, any administrative exhaustion

requirement is inapplicable here.6

Indeed, requiring

6.
Beaulieu went on to note that a claim still
must meet “constitutional ripeness requirements.”
454
F.3d at 1227. “To determine whether a claim is ripe [a
court] must evaluate: (1) the fitness of the issues for
judicial decision; and (2) the hardship to the parties
of withholding court consideration. In applying the
fitness and hardship prongs [the court] must consider
the following factors: (1) whether delayed review would
cause hardship to the plaintiffs; (2) whether judicial
intervention
would
inappropriately
interfere
with
further administrative action; and (3) whether the
courts would benefit from further factual development
of the issues presented.” Id. (internal citations and
quotations marks omitted).
This case is ripe.
As discussed below, without
judicial intervention, the Women’s Center will close
and the right of many Alabama women to choose to have
an abortion will be curtailed severely and, in some
cases, denied. Moreover, further administrative action
through the petition process would be both inapt, as
any petition would cover far more than the plaintiffs
are requesting, and futile, as the State Health Officer
has already declared the covering-physician requirement
(continued...)
20

all

plaintiffs

state

to

go

government

through

when

a

they

petition

allege

process

in

constitutional

violations under § 1983 against the State undermines
the

congressional

intent

review under § 1983.
In
waiver

any

case,

certainly

to

establish

federal-court

See Patsy, 457 U.S. at 503-504.7

the

plaintiffs’

fulfilled

the

application

general

for

purposes

a
of

exhaustion by bringing the issue to the state agency’s
attention before pursuing litigation in federal court.

“essential” in his denial of the plaintiffs’ waiver
application. State Department of Public Health Response
to Plaintiffs’ Request for Waiver (doc. no. 4-6) at 3.
Last, the factual record has been developed through
adequate briefing, which includes the application for
and denial of a waiver.
7. The State Health Officer cites Woodford v. Ngo,
548 U.S. 81 (2006), in support of his exhaustion
argument.
Woodford concerns the Prison Litigation
Reform Act (PLRA), 42 U.S.C. § 1997e et seq., which
carves out an exception to the general rule that § 1983
cases
do
not
require
administrative
exhaustion.
However, the court can find no authority indicating
that the PLRA exception has swallowed the rule, nor has
the State Health Officer cited any cases that take this
statutory rule from the PLRA and apply it to all § 1983
cases.
Indeed, Beaulieu affirmed that there is no
general exhaustion requirement for § 1983 cases ten
years after the PLRA passed.
21

See Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir.
2004)

(finding

that

“the

purpose

of

administrative

exhaustion ... is to put the administrative authority
on notice of all issues in contention and to allow the
authority an opportunity to investigate those issues.”)
(internal quotation marks omitted).
Furthermore, the State Health Officer’s contention
that

the

plaintiffs

also

should

have

petitioned

change the rule misunderstands their claims.

to

A person

who pursues the petitioning process seeks to change a
regulation

as

a

whole.

See

Ala.

Admin.

Code

§ 420-1-2-.04 (“Any person may petition the Board to
adopt, amend or repeal a rule.”).

The State Health

Officer acknowledges as much, noting that consideration
of

a

petition

[would]

apply

would
with

allow

equal

for

force

one
to

regulation
all

abortion or reproductive health centers.”

...

“that

licensed

Def. Opp. to

Pl. Mot. for Temporary Restraining Or. (doc. no. 17) at
13.

But this is simply not what the plaintiffs seek to

do.

The plaintiffs here bring an as-applied challenge;
22

that is, they argue only that the regulation should not
be applied to the Center and Dr. Parker.

They make no

claim as to the regulation as it operates in the State
generally, and it would be illogical indeed if they
were

required

to

seek

a

change

they

may

not

even

endorse in order to exhaust their claims.
Finally,

even

if

the

exhaustion

requirement

did

apply here, it would not have defeated the plaintiffs’
motion

for

a

temporary

implausible to require

restraining

order.

It

is

that any plaintiff seeking a

temporary restraining order against an immediate and
irreparable harm must go through a lengthy, potentially
fruitless

rulemaking

process.

As

background,

if

a

person petitions for a rule change, the Health Officer
has a maximum of 90 days (60 days plus a potential 30day extension) to either deny the rule or initiate the
rulemaking process.

Id. § 420-1-2-.06.

If the Board

does not immediately deny the petition, it is unclear
from state regulations how long it would have to change
the regulation or even if it would have to change the
23

regulation at all.
down

to

this:

Thus, the State’s argument comes

any

party

suffering

immediate

and

irreparable harm to their federal constitutional rights
because of a state regulation must engage in a lengthy
rulemaking process before seeking redress in federal
courts.

That

would

defeat

the

very

purpose

of

a

temporary restraining order.

See Fletcher v. Menard

Corr.

1173

Ctr.,

623

F.3d

1171,

(7th

Cir.

2010)

(“[T]here is no duty to exhaust, in a situation of
imminent

danger,

if

there

are

no

administrative

remedies for warding off such a danger”).
In short, there is no exhaustion requirement here.
Even if there were, the plaintiffs have fully exhausted
their claims.

In any event, exhaustion would not have

defeated

plaintiffs’

the

motion

for

a

temporary

restraining order.

2.
The

plaintiffs

Undue-Burden Test
have

put

forth

two

theories

for

relief: that the regulation imposes an undue burden and
24

that it violates the plaintiffs’ right to pursue their
chosen

business

and

profession.

consider only one at this time.

The

court

need

The court is persuaded

that the plaintiffs have a substantial likelihood of
success on their argument that the Alabama regulation
requiring either local staff privileges or a covering
physician,

as

applied

to

the

West

Alabama

Women’s

Center, would impose an undue burden on a woman’s right
to

choose

to

have

an

abortion

in

violation

of

the

Fourteenth Amendment’s Due Process Clause.
“An undue burden is an unconstitutional burden,”
and a “finding of an undue burden is a shorthand for
the conclusion that a state regulation has the purpose
or effect of placing a substantial obstacle in the path
of a woman seeking an abortion of a nonviable fetus.”
Planned Parenthood of Se. Pennsylvania v. Casey, 505
U.S. 833, 877 (1992) (plurality opinion).

This court

has

actual

held

intended
determine

that,

“to

obstacle
whether,

determine

is

whether

substantial[,]

examining
25

the

an

the

court

regulation

in

or

must
its

real-world context, the obstacle is more significant
than is warranted by the State’s justifications for the
regulation.”
(M.D.

Ala.

omitted);

Strange III, 33 F. Supp. 3d 1330, 1337
2014)

see

(Thompson,

also

Planned

J.)

(internal

Parenthood

of

citations
Wisconsin,

Inc. v. Van Hollen, 738 F.3d 786, 798 (7th Cir. 2013)
(“The feebler the medical grounds, the likelier the
burden, even if slight, to be ‘undue’ in the sense of
disproportionate or gratuitous.”);

Planned Parenthood

Arizona, Inc. v. Humble, 753 F.3d 905, 914 (9th Cir.
2014)

(holding

context-specific,

that
and

“the
that

undue
both

burden

the

test

severity

is

of

a

burden and the strength of the state’s justification
can

vary

depending

on

the

circumstances”);

but

see

Whole Woman’s Health v. Cole, 790 F.3d 563, at n.33
(5th

Cir.)

(rejecting

this

context-specific

test),

modified, 790 F.3d 598 (5th Cir.), stayed by 135 S. Ct.
2923 (2015).
Turning to the undue-burden test, the court will
address

the

obstacles

and
26

justifications

for

the

regulation,

Alabama

Administrative

Code

§ 420-5-1-.03(6)(b), as applied to plaintiffs, and then
evaluate whether the obstacles are more severe than
warranted by the State’s justifications.

a. Obstacles
The plaintiffs argue that the regulation has forced
the Women’s Center to close and will cause it to remain
closed, resulting in the continuing denial of the right
to obtain an abortion for many women and presenting
serious

difficulties

in

obtaining

an

abortion

for

others.
The court must take a two-step inquiry to address
this argument: first, whether the regulation will force
the Center to remain closed; and second, if the Center
remains closed, and no other clinic takes its place,
determining
abortions.

the

effect

on

Alabama

women

who

seek

See Strange III, 33 F. Supp. 3d at 1342.

27

i. The Effect on the Center
The question in this section is whether the Center
will ever be able to reopen.

This question boils down

to whether a doctor with local staff privileges will
ever be willing to associate with the Center, either by
providing

abortions

there

or

serving

as

a

covering

physician.
As a threshold,

based on

the record before the

court, Dr. Parker will not be able to obtain staff
privileges

by

number

of

procedures on his patients at the local hospital.

To

obtain

to

staff

performing

privileges

the

that

required

would

enable

him

provide abortions at the Center, Dr. Parker first would
have to perform 10 hysterectomies and 10 laparotomies
at Tuscaloosa’s only hospital.

This requirement is

impossible

entire

for

a

doctor

whose

practice

is

providing abortions, because of the extreme rarity of
these

complication-related

patients.
Parker

has

procedures

for

abortion

To put this requirement in perspective, Dr.
never

had

a
28

patient

who

suffered

a

complication

from

abortion

requiring

a

hysterectomy.

Only two of his last 10,000 patients who were up to 20
weeks pregnant have been hospitalized and one of them
simply went in for observation.

Although Dr. Parker

attempted to set up a proctoring agreement in which he
would help other doctors to perform these procedures on
their patients, the hospital eventually rejected that
arrangement.
believe

that

Moreover,
the

the

court

hospital--again,

has

no

the

only

cause

to

one

in

Tuscaloosa, and thus the only one that would be able to
grant

staff

locality

privileges

that

requirement--would

meet

consider

the
the

regulation’s
entreaty

of

any other doctor differently.
The only way, then, for the Center to remain open
would be to associate a doctor, with local admitting
privileges, to perform abortions or to contract as a
covering physician.

As discussed above, Dr. Parker’s

past attempts to work with local OB/GYNs shows that
this is highly unlikely.

When he tried to set up a

proctoring arrangement, which another OB/GYN group and
29

the hospital originally received enthusiastically, this
plan

fell

apart

after

the

suddenly reversed course.

group

and

the

hospital

Reaching out for a covering

physician in Tuscaloosa was equally unavailing.

Dr.

Parker and the Center contacted every OB/GYN practice
and solo practitioner in Tuscaloosa, except one with
known strong anti-abortion views, and all refused.

One

solo practitioner specifically stated she would not be
a covering physician for fear of reputational harm.
This

fits

within

the

observed in Strange.
have

faced

associated

severe
with

ramifications

have

general

pattern

the

court

Abortion providers in Alabama

harassment
abortion
been

and

in
felt

stigma

any
even

for

way;
by

being

similar
covering

physicians, who handle only complication-related care
and do not perform abortions themselves.
33 F. Supp. 3d at 1349.

Strange III,

In Huntsville, when a doctor

with an OB/GYN practice agreed to perform abortions as
part of her practice, anti-abortion protestors started
confronting her patients, leading her to close down her
30

obstetrics practice entirely.8

Id.

Another doctor

lost patients from her private practice en masse after
her role as Huntsville clinic’s covering physician was
revealed publicly; the negative publicity also forced
her to remove her children from their school.
1350.

Id. at

Finally, a doctor who originally agreed to be a

covering physician in Montgomery backed out after she
realized her anonymity might be compromised.

Id.

This

threat of economic ruin, combined with the palpable
threat of violence discussed above, keeps even those
doctors in Alabama who do not have a moral or ethical
opposition

to

abortion

from

providing

abortions.

Indeed, it even prevents these doctors from serving as
covering physicians.
Nor is it likely that another doctor will fill the
current

void

scarcity

of

in

Tuscaloosa.

abortion

doctors

There
...

is

a

“severe

nationwide

and

8.
To protect the anonymity of any doctor not
specifically named in the parties’ filings, the court
generally
refers
to
them
by
feminine
pronouns,
regardless of their gender.
31

particularly in the South,” with no residency program
offering training in performing abortion in Louisiana,
Alabama, or Mississippi.

Id. at 1348.

As discussed in

Strange, it is most unlikely that doctors with local
admitting privileges in Alabama will decide to start
performing

abortions

or

that

doctors

who

move

from

out-of-state could obtain local admitting privileges.
Id.

Indeed, if a doctor like Dr. Parker

(who has

impressive credentials, a personal connection to the
State, and a willingness to risk the danger of being an
abortion

provider)

cannot

either

obtain

admitting

privileges or find a covering physician, it is unlikely
that any doctor can.
Finally,
Health

has

“essential,”

as

discussed

called

the

indicating

above,

the

Department

covering-physician
it

will

not

of

requirement
reverse

its

decision to refuse a waiver.
For these reasons, the court finds that

if the

regulation remains in effect as applied to the Women’s
Center and Dr. Parker, the Center will remain closed,
32

likely

permanently

eliminating

access

to

abortion

services in Tuscaloosa.

ii. The Effect on Women
By

closing

down

operations

at

the

Center,

the

regulation seems to impose severe and, in some cases
insurmountable, obstacles on women who seek abortions
in this State in several ways.
First, Tuscaloosa is the fifth-largest city in the
State; until recently, women who lived in the city were
able

to

obtain

abortions

outside the city.

without

having

to

travel

Now, any woman in Tuscaloosa seeking

an early-term abortion must travel nearly 60 miles to
the closest provider, in Birmingham, or over 100 miles
to the next closest provider in Montgomery.
has

previously

discussed

the

serious

The court

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
33

miles.”

Strange III, 33 F. Supp. 3d at 1358-60.

This

circumstance imposes the same burden.
Moreover, obtaining an abortion after 16 weeks now
has become especially onerous for a woman who lives in
Tuscaloosa, or who lives closer to Tuscaloosa than to
Huntsville.

Huntsville is near the northern border of

the State--100 miles from Birmingham, 150 miles from
Tuscaloosa, and 200 miles from Montgomery.
by

any

travel

measure,
some

even

for

women

distance.

And

already
these

This is far
prepared

distances

to
are

compounded by the fact that the Center is the only
provider in the State that performs abortions through
the

mid-second

trimester

on

Saturdays.

As

the

plaintiffs point out, Saturdays have been the Center’s
busiest days because it is often the only day that
patients can get off work or find someone to accompany
them to the clinic.
For

many

women,

the

plaintiffs

obstacles are insurmountable.

argue,

these

The plaintiffs present

evidence that over the past several months, the Center
34

has received numerous calls from women seeking help
because they are unable to travel the distance; the
administrator of the Huntsville clinic stated the same.
Indeed, the statistical evidence bears out the severity
of this impact.
have

treated

While the clinics that remain open

hundreds

more

patients

this

year

as

compared to years past, the data suggest that these
clinics have not come close to filling fully the gap
left by the Center closure--and thus, hundreds fewer
women have been able to obtain an abortion this year.
Yet

even

for

women

who

are

able

to

obtain

an

abortion elsewhere, the “array of harms” imposed by the
Center’s closure remain significant.
F. Supp. 3d at 1356-57.

Strange III, 33

This is particularly true for

women in poverty, as most of the Center’s patients are.
In 2014, 82 % of the Center’s patients were living at
or below 110 % of the federal poverty level.

As this

court previously explained, for women in poverty,
“going to another city to procure an
abortion is particularly expensive and
difficult. Poor women are less likely
to own their own cars and are instead
35

dependent on public transportation,
asking
friends
and
relatives
for
rides, or borrowing cars; they are
less likely to have internet access;
many already have children, but are
unlikely to have regular sources of
child care; and they are more likely
to work on an hourly basis with an
inflexible schedule and without any
paid time off or to receive public
benefits
which
require
regular
attendance at meetings or classes.
A
woman who does not own her own car may
need to buy two inter-city bus tickets
(one for the woman procuring the
abortion, and one for a companion) in
order to travel to another city.
Without regular internet access, it is
more difficult to locate an abortion
clinic in another city or find an
affordable hotel room. The additional
time to travel for the city requires
her to find and pay for child care or
to miss one or several days of work.
Furthermore, at each juncture, a woman
may have to tell relatives, romantic
partners, or work supervisors why she
is
leaving
town:
to
procure
an
abortion.
And, in light of the
pervasive
anti-abortion
sentiment
among
many
in
Alabama,
such
disclosures
may
present
risks
to
women’s
employment
and
safety.
Finally, ... many low-income women
have never left the cities in which
they live.
The idea of going to a
city where they know no one and have
never visited, in order to undergo a
procedure that can be frightening in
itself, can present a significant
36

psychological
hurdle.
This
psychological hurdle is as serious as
a burden as the additional costs
represented by travel.”
Strange III, 33 F. Supp. 3d at 1357 (internal citations
omitted).

As a result, regulations such as the one at

issue here, which purportedly enhance women’s health,
cause delays which increase the risk of complications
if

the

woman

is

able

to

eventually

obtain

the

procedure.
Further, based on the limited record, women seeking
mid-second-trimester abortions are among those for whom
the burdens of travel and other related hurdles are
most

severe.

low-income
abortions

The

women
because

plaintiffs
are

more

present
likely

difficulties

in

evidence

to

have

securing

that
later

financial

and logistical arrangements cause unwanted delay.

A

declaration from the administrator of the Huntsville
clinic--the
abortions

State’s

through

the

only

remaining

mid-second

provider

of

trimester--confirms

that his patients have reported delays in obtaining the
procedure due to travel that has become necessary as a
37

result

of

the

Center’s

closure.

Similarly,

clinic

administrator Gray recounts an example in which one
young

woman

arrived

with

her

father

at

the

Women’s

Center, but was turned away because it was closed.
pregnancy

was

already

extremely

close

to

the

Her
legal

limit, and, by the time she would have been able to
obtain an abortion in Huntsville, it would have been
too

late.

This

shows

that

for

patients

in

their

mid-second trimester, delays may lead to an outright
denial

of

the

restrictions

on

right
the

to

choose,

provision

of

given
abortion

Alabama’s
later

in

pregnancy.
Second, the closure of the Center predictably has
stretched the capacity of the clinics that remain open.
As explained above, until it closed, the Women’s Center
provided the most abortions in Alabama by a substantial
margin, performing more than 40 % of the abortions in
the

State.

performed

It

is

abortions

one

of

only

throughout

38

two

the

providers

second

that

trimester,

and it performed about 75 % of the mid-second-trimester
abortions in the State.
At least some of the clinics that remain open are
now operating at or very near maximum capacity.

And as

discussed above, it is statistically implausible that
the increase in the number of procedures provided by
the remaining clinics has covered fully the needs of
women who might have sought care at the Center.

This

fact makes it extremely likely that women in Alabama
will

be

or

already

have

been

unable

to

obtain

the

abortions they seek due to capacity constraints.
For

example,

since

the

Center

has

closed,

the

Huntsville clinic has seen more than a 57 % increase in
the

number

of

women

obtaining

abortions

there

as

compared with last year, and triple the number of women
obtaining

abortions

mid-second-trimester
time-consuming,

this

after

16

abortion
additional

weeks.

Because

procedures
influx

are
of

more

patients

seeking mid-second-trimester abortions has reduced the
clinic’s capacity to provide early-term abortions.
39

The

Huntsville clinic administrator has stated that due to
the

increased

number

of

patients

seeking

both

first-trimester and second-trimester abortions at his
clinic, he fears that his clinic soon will be forced to
institute a waiting list to prioritize those women with
the most urgent needs, further delaying all

women’s

access to care.
This capacity constraint is the result of a longer
history

in

the

State

of

clinic

closures,

and

the

inability of new clinics to open to meet the demand.
Whereas

in

2001

there

were

12

clinics

providing

abortions in Alabama, that number had dwindled to five
by the end of 2014; with the Center’s closure, there
are now only four in operation.

This steady decline

can be understood in the context of the climate of
hostility in the State towards the procedure and its
providers, as discussed above.
33 F. Supp. 3d at 1334.

See also Strange III,

It is also clearly correlated

to state regulations, such as this one, which make it
impossible for new doctors to begin practicing here due
40

to

that

climate.

clear,

doctors

As

who

this

are

lawsuit

not

makes

already

abundantly

practicing

in

Alabama are unable to comply with the regulation at
issue--and thus will be unable to practice here at all,
without

court

intervention--not

because

they

are

unqualified, but because they cannot find sufficient
support among peers in the local medical community who
are not influenced by this climate of hostility.

The

effect, of course, is that the capacity of abortion
providers

in

this

state--already

constricted--is

not

likely to expand again.
Finally,

because

travel-related

obstacles

and

a

statewide capacity constraint caused by the Center’s
closure appear to have made it more difficult to obtain
an abortion in Alabama, there is now likely to be a
greater

risk

exercise
child”
medical

that

their

will

women

ability

attempt

supervision,

life and health.”

to

who

to

“desperately

decide

obtain

“with

whether

an

to

abortion

corresponding

seek
have

to
a

without

dangers

to

Strange III, 33 F.Supp.3d at 1363;
41

Strange II, 9 F. Supp. 3d 1272, 1289 n.31 (M.D. Ala.
2014); see also Planned Parenthood of Wisconsin, Inc.
v. Van Hollen, --- F. Supp. 3d. ----, 2015 WL 1285829,
at *42 n.31 (W.D. Wis. 2015) (Conley, J.) (crediting
evidence that “epidimologic data indicate an inverse
relationship between the availability of legal abortion
and

resorting

to

illegal

abortion

associated

with

remarkable increased risks of death or morbidity, which
includes

septic

abscess,

loss

abortion,
of

uterine

uterus

infection,

and/or

ovaries

pelvic
and

infertility.”) (internal citations omitted).
The plaintiffs submit evidence that the remaining
providers already are witnessing the manifestation of
that risk.

One woman showed up to the Center after it

had closed and threatened to take measures into her own
hands because she was unable to travel the distance to
another clinic.

Similarly, the Huntsville clinic has

received at least two calls per month from women who,
after explaining that they plan to attempt to terminate
the pregnancy on their own because they cannot travel
42

to Huntsville, have sought advice as to what pills they
can take to self-induce abortion.
In sum, based on the evidence now before the court,
the regulation’s effect on women seeking abortions at
the

Center

is

profound.

Patients

who

live

in

Tuscaloosa now need to travel outside of the city to
procure an abortion, causing delays that increase the
risk of the procedure if they are able to obtain it
elsewhere, and

causing women to suffer other harms,

including financial difficulties, psychological stress,
and being prevented from obtaining an abortion at all.
For

all

Alabama

women,

the

closure

of

the

largest

abortion provider in the State, one of two providers in
the State that administers abortions after 16 weeks,
has

reduced

the

provided here.

number

of

abortions

that

can

be

Finally, and as chillingly recounted

above, closing the Center has increased the risk that
women will take their abortion into their own hands.

43

b. Justifications
Having established the weight of the obstacles, the
court

will

now

turn

scales--determining
justifications

to

the

for

the

the

other

strength

side

of

regulation.

the
“In

of

the

State’s
order

to

evaluate the weight of the state interest involved in a
particular

case

case-specific

...

the

factors.

court

These

must

to

include

factors

look

the

extent of the anticipated benefit, the likelihood of
the

anticipated

benefit,

the

means

a

regulation

employs, and the political history and context of the
regulation.”

Strange III, 33 F. Supp. 3d at 1365.

As discussed above, a clinic can comply with the
regulation
admitting
physician.
who

by

either

privileges

employing
or

a

doctor

contracting

with

with
a

local

covering

Both prongs are meant to ensure that women

obtain

abortions

receive

adequate

complication-related care; they do so by authorizing
two alternative models for continuity of care.

44

“Continuity of care is the goal of ensuring that a
patient receives high-quality care not only during a
certain

procedure

but

also

after

it,

including

treatment of complications and any necessary follow-up
care.”

Strange

III,

33

F.

Supp.

3d

at

1363.

In

Strange, the court heard evidence on three approaches
to

providing

context.9

continuity

of

See id. at 1363-66.

care

in

the

abortion

Because the differences

among these three models reflect the positions of the
parties here as well, the court reviews them below.
The first model, which the

court will

call the

‘consulting-physician’ model, ensures that the clinic
physician

remains

readily

available

to

consult

with

other physicians who provide complication-related care,
and

that

lines

of

communication

remain

open

and

9. The parties in Strange presented evidence on
these approaches to continuity of care as they relate
to complications from early-term abortions.
Because
neither party here has argued that models for adequate
continuity
of
care
would
be
any
different
for
complications
that
could
arise
from
a
mid-second-trimester abortion, the court will adopt
this framework for the purposes of considering this
motion as well.
45

accessible between the abortion clinic and its patients
following any procedure.
have

24-hour

staff

member

needs

at

any

telephone
who

can

time

and

Under this model, patients
access

to

remotely
make

an

on-call

assess

the

patient’s

as

referrals

Strange III, 33 F. Supp. 3d at 1364.

clinic

necessary.

Some calls to the

clinic’s number may require the clinic staff member to
reassure the patient that her symptoms are normal; to
give instructions for in-home treatment, such as to
take extra-strength Tylenol; or to schedule the woman
for a follow-up visit at the clinic.

Other calls may

require the clinic staff member to notify the clinic’s
doctor, who will then assess next steps.
determines

that

the

woman

should

If the doctor

be

immediately

assessed or treated for a complication, she will be
directed

to

the

nearest

emergency

room;

and

emergency-room doctors are trained to provide care for
all abortion complications.
that

a

procedure

complication
itself,

the

In the rare circumstance

arises
patient
46

during
will

the
be

abortion

transferred

directly to the nearest hospital.
clinic

physician

will

hospital physicians.

In either case, the

communicate

directly

Id. at 1364-65.

with

the

This is the

model that best reflects the Center’s emergency-care
protocol.
The second approach to continuity of care is the
covering-physician model.

A clinic that follows this

approach maintains an agreement with a physician who
has admitting privileges at a local hospital.
1365.

Id. at

In the event of a complication that requires

treatment at a hospital, the covering physician will
meet the patient at the hospital to admit the patient,
or will assume care after the patient has been assessed
and treated by an emergency-room doctor.
The third approach to complication care is what the
court has termed the ‘country-doctor’ model.
to

this

model

requires

the

doctor

who

Adhering

performs

the

abortion to provide care for almost any complications
that arise, though a specialist may get involved with
certain treatments.

Id.

As such, the clinic physician
47

herself must have staff privileges at a local hospital
near the abortion clinic.10
The covering-physician model and the country-doctor
model reflect the two approaches to continuity of care
10.
In Strange, the court found that “the
country-doctor approach, while carrying an intuitive
appeal, does not reflect the practice of 21st century
medicine, as it relates to simple, low-risk surgeries
and medical treatment.” Strange III, 33 F. Supp. 3d at
1371.
The court concluded that, while “there is a
range of disagreement within the medical community
regarding the appropriate model of complication care
for minor surgeries and medication-based procedures
like early-term abortion,” the country-doctor model
“falls outside that range of disagreement.”
Id. at
1364.
Because the Strange plaintiffs did not provide
mid-second-trimester abortions at their clinics, the
court did not hear evidence in that case regarding
those procedures, the types of complications that can
arise from them, and what impact that may have on
assessing standards for complication-related care.
As
such, the court refrains, at this point, from drawing
any conclusions as to the range of reasonable medical
opinion regarding procedures that would ensure adequate
continuity
of
care
for
clinics
that
provide
mid-second-trimester abortions.
However, the court also notes that this general
question is not presented by this case.
The question
here
is
context-specific:
whether
the
Center’s
emergency-care
protocol
is
sufficient
to
provide
high-quality continuity of care when Dr. Parker is
administering abortions in its clinic.
48

authorized

by

the

two

alternative

regulation’s requirements.

prongs

of

the

However, because under the

current state of the law a clinic can comply with the
regulation by contracting with a covering physician,
the

court

satisfied

assumes
by

the

continuity of care.

that

the

State’s

interest
approach

covering-physician

is
to

Therefore, it will compare the

Center’s protocol to that baseline model.
The plaintiffs argue that at least as to abortions
provided

by

Dr.

Parker,

the

Center’s

emergency-care

protocol is sufficient to ensure adequate continuity of
care and that requiring the Center to contract with a
covering physician would not benefit patient health in
any meaningful way.

The plaintiffs support their claim

in two ways: first, they contend that, while abortions
are safe generally, Dr. Parker has an extraordinary
safety record; second, they contend that the Center’s
emergency-care
high-quality

protocol

is

continuity

as
of

covering-physician model.
49

effective
care

at

ensuring
as

the

To

assess

requirement

could

whether

the

meaningfully

covering-physician
further

the

State’s

interest in continuity of care, the court will first
put its use in context.

As the court has explained

previously,

from

complications

early-term

abortions,

which are the vast majority of the procedures performed
at the Center, are “vanishingly rare.”
F. Supp. 3d at 1364.
a

recent

study

Strange III, 33

The plaintiffs present data from
showing

that

only

0.89 %

of

first-trimester abortions cause any complication of any
kind and that only 0.05 % of first-trimester abortions
cause a complication that requires hospital-based care.
These

statistics

Strange,

that

suggest,

“clinics

do

as

the

court

found

not

make

frequent

use

in
of

their covering physicians because the procedures they
perform are extremely safe and because, where possible,
the

clinics

themselves

provide

complication

care.”

Strange III, 33 F. Supp. 3d at 1370 n.23.
Of course, the Women’s Center and Dr. Parker also
provide

some

second-trimester
50

abortions,

and

complication
captured

by

rates
the

for

these

statistics

procedures

cited

are
But

above.

not
Dr.

Parker’s complication rate over the past three years-which

includes

procedures

performed

up

to

20

weeks

postfertilization, Alabama’s legal limit--is even lower
than

that

general

first-trimester

complication

rate.

Dr. Parker estimates that the number of his patients
who have been transferred to the hospital over the past
three years is two out of 10,000, or 0.02 %.

This

evidence suggests that the chances are similarly low
here that the Center would make use of its covering
physician at all.
Moreover,
admission,
that

a

when

the

clinic

a

complication

regulation
patient

itself

would

requires
does

ever

be

not

hospital
guarantee

seen

by

the

covering physician, even if the Center were to contract
with

one.

First,

the

regulation

itself

does

not

actually require a clinic to make use of the covering
physician in the case of any complication: to comply
with

the

regulation,

a

clinic
51

need

only

maintain

a

contract

promising

availability.

the

covering

physician’s

Second, if a patient who experiences

complications lives outside the Tuscaloosa area--as do
at least some of the Center’s patients--the fact that
the

Center

physician

might
who

have

contract

admit

could

a

her

with

to

a

the

covering

Tuscaloosa

hospital is unlikely to affect her complication-related
care

in

any

way,

as

she

will

(and

should)

seek

emergency care closer to home.
This

background

context

suggests

that

there

is

likely only a tiny number of women who would ever come
into contact with the Center’s covering physician, if
it had one.
this

tiny

Yet the plaintiffs argue that, even for

fraction

of

women,

the

covering-physician

requirement does not confer any health benefit that
enhances the quality or continuity of care, due to the
robustness

of

the

Center’s

emergency-care

protocol.

The court will examine the plaintiffs’ contention for
two

sets

of

patients

who

might

seek

complication-related care during or after obtaining an
52

abortion: patients who are transferred directly from
the clinic to a hospital where the covering physician
has

privileges,

and

patients

who

seek

complication-related care after being discharged.
First, in the extremely rare event that any patient
needs

to

be

abortion

transferred

procedure,

to

the

the

hospital

Center’s

during

an

emergency-care

protocol requires Dr. Parker and clinic staff to alert
911

and

provide

the

hospital

to

the

the

hospital’s

pending

emergency

transfer;

department

to

with

necessary information about the patient’s case; and to
send a copy of the patient’s medical records to the
hospital
arrives

along
at

the

with

the

patient.

hospital,

she

will

When
be

the

patient

assessed

and

triaged by emergency-room staff and she may then be
seen by the hospital’s OB/GYN or another specialist.
The Center would communicate directly with the hospital
and Dr. Parker would be available for consultation with
the

hospital’s

physicians

at

patient’s course of treatment.
53

any

time

during

the

If the Center had a covering physician, that doctor
would be contacted at the soonest possible point in
time

in

this

process;

would

be

relayed

necessary

information about the patient; and, if she could, would
meet

the

Because

patient
this

relationship
working

at

the

doctor

with

facilitate

their

to

assume

would

have

a

clinic,

the

relationship

hospital

she

might

with

Dr.

Parker

communication--though

care.

contractual
have
that
as

some
could

explained

above, the rarity of complications means that the two
doctors

would

not

However,

there

is

be
no

in

regular

guarantee

communication.

that

the

covering

physician will reach the hospital to admit the patient
before

the

patient

is

assessed

or

treated

by

the

emergency-room physicians; that the covering physician
will be any more knowledgeable about the patient or her
condition than would be the hospital physicians; or
that the covering physician will be any more qualified
to

treat

physicians.

the

patient

than

would

be

the

hospital

Moreover, because Dr. Parker and staff
54

from the Center communicate directly with the hospital
and

provide

consultation

as

necessary,

the

patient

continues to have an advocate for her care even after
she has been transferred.
Second,

the

Center’s

policies

also

ensure

that

patients will receive adequate continuity of care after
they have been discharged.

As a preliminary matter,

the Center will not perform abortions at all unless Dr.
Parker

will

be

available

following the procedure.
at

the

Center

and

for

at

least

72

hours

After obtaining an abortion

being

discharged

for

recovery,

patients are provided 24-hour telephone access to the
Center’s

medical

staff.

If

a

woman

suspects

a

complication, she can call the hotline number to speak
to a registered nurse employed by the Center or, as
necessary, to Dr. Parker.
that

the

woman

should

If Dr. Parker determines

be

assessed

immediately

hospital, he will direct her to the nearest one.

at

a

If he

knows where she intends to go, he will call ahead to
the hospital to provide any pertinent information about
55

the

patient;

if

he

does

not,

he

will

provide

his

contact information to the patient and emphasize that
she should ask the hospital to contact him.
If the Center had a covering physician, and if the
covering physician had staff privileges at the hospital
nearest to the patient, then the Center might notify
the

covering

patient

to

regulation
Moreover,

physician
the

does
as

in

so

that

hospital

she

could

herself.

not

require

the

previous

the

admit

However,

Center

scenario,

to

the

do

there

the

is

so.
no

guarantee that the covering physician will arrive at
the

hospital

before

the

patient

or

before

she

is

treated by the emergency-room doctor; will be any more
knowledgeable

about

the

patient

than

the

hospital

staff; or will be any more qualified to treat her.
While

the

State

Health

Officer

points

to

a

concern--first articulated by clinic administrator Gray
during a deposition taken in Strange--that a covering
physician, at the very least, would be respectful of
the patient’s choice to have an abortion (perhaps in
56

contrast to other hospital physicians), the court will
not

allow

hypothetical

personal

biases

to

influence

whether some women can be denied the constitutional
right to choose.

Cf. Palmore v. Sidoti, 466 U.S. 429,

433 (1984) (“Private biases may be outside the reach of
the law, but the law cannot, directly or indirectly,
give them effect.”).

And without any evidence before

it to the contrary, the court assumes that any doctor
charged with the care of a patient will treat that
patient to the best of her ability, notwithstanding any
personal biases she may hold about the patient’s choice
to obtain an abortion.
Finally, the State Health Officer contends that the
regulation

is

sufficiently

justified,

by

two

past

incidents that occurred at other clinics in the State,
to

be

support

enforced
for

the

against

the

plaintiffs,

covering-physician

given

requirement

that
is

within the range of reasonable medical opinion and that
States have discretion to regulate medical procedures
when there is medical and scientific uncertainty as to
57

the safety benefits and risks of those procedures.

But

the fact that a regulation “conceivably might, in some
cases,

lead

to

better

justify the regulation.

health”

does

not,

in

itself,

Strange III, 33 F. Supp. 3d at

1340-41 (citing Doe v. Bolton, 410 U.S. 179 (1973));
see also Strange II, 9 F. Supp. 3d at 1287 (“Not every
legitimate

state

interest

obstacles....”).

will

justify

the

justifications

Rather,

any

and

all

for

a

regulation must be weighed against the obstacles it
imposes on women who seek abortion, and a regulation
that could eliminate access to abortion for some women
entirely must be supported by a weighty justification
indeed.
Moreover, the case that the State Health Officer
relies on for support of this argument, Gonzalez v.
Carhart,

550

U.S.

124

(2007),

is

inapposite

here.

Gonzalez was a facial challenge to a ban on a certain
type of abortion procedure; in that case, the Supreme
Court held that the ban was “not invalid on its face
where

there

is

uncertainty
58

over

whether

the

barred

procedure
health,

is

ever

given

procedures

the

that

alternatives.”

necessary

to

availability
are

preserve
of

considered

a

woman’s

other
to

abortion
be

Id., 550 U.S. at 166-167.

safe

In other

words, the Court found that the justification for the
law (the State’s interest in the life of the fetus)
outweighed

the

weak

obstacle

created

by

the

law

(a

prohibition on an abortion procedure that provided what
the

Court

characterized

as

an

uncertain

benefit

to

women’s health and for which there was an alternative).
The scales in this case are reversed.

Here, the

evidence suggests that the regulation’s justification
of protecting women’s health as applied to this clinic
is

weak,

given

the

Center

and

Dr.

Parker’s

strong

safety records, while the obstacles for the Center and
Alabama women exercising their constitutional right to
choose to have an abortion loom large.

See Van Hollen,

2015 WL 1285829 at *10 (“As this court explained in its
preliminary

injunction

opinion,

unlike

cases

where

courts have considered a regulation adopted to respect
59

the potential life of the unborn or to further the
integrity and ethics of the medical community,

see,

e.g., Gonzales, 550 U.S. at 157, there is no other
legitimate state interest or interests at play [in this
case,]

which

would

counter-balance

any

arguable

uncertainty in the medical community as to the medical
rationale underlying this regulation. .... Accordingly,
the court must balance health interests against health
interests....”).
Furthermore, the fact that the plaintiffs challenge
the application of the regulation to only the Center
makes

any

evidence

as

to

certain

events

that

have

occurred at other reproductive health centers in the
State in the past less compelling, for this clinic has
an impeccable safety record.
In sum, walking through each of these scenarios
makes

clear

that

the

State

Health

Officer’s

justifications for the regulation are slight insofar as
the

regulation

Center.

The

applies

to

the

West

covering-physician
60

Alabama

Women’s

requirement,

the

State’s

baseline

for

continuity

of

care,

seems

provide little to no realistic benefit here.
of

the

Center’s

patients,

if

any,

would

to

Very few
come

into

contact with a covering physician, if the Center had
one;

for

those

patients

that

might,

the

Clinic’s

emergency-care protocol makes any relative benefit to
continuity of care gained from a covering physician
marginal at best.

c. Substantial Obstacle?
Now

the

court

substantial-obstacle
that

the

obstacles

turns
test:

to
Have

imposed

by

the
the

heart

of

plaintiffs

the

the
shown

regulation

are

substantially likely to be more severe than warranted
by the defendant’s justifications for the regulation?
Strange III, 33 F. Supp. 3d at 1377.

If so, the burden

is undue, and is therefore unconstitutional.

And on

the record now before the court, the answer is “Yes.”
The

plaintiffs

have

presented

evidence

that

the

obstacles imposed on the Center and its patients by the
61

regulation loom large.

The Center itself is unable to

operate, even though it has a highly qualified doctor
on staff.

Women who would otherwise obtain an abortion

at the Center now need to travel much further, imposing
financial and psychological hardships and delaying and
probably preventing their access to care.

Capacity has

been reduced at clinics statewide, especially for women
seeking mid-second-trimester abortions

(an especially

vulnerable group), causing further delays and harms for
women in the State.

Finally, these obstacles create a

significant risk that some women who cannot otherwise
obtain

an

abortion

at

the

clinic

will

attempt

to

self-induce, with corresponding risks to their health
and safety.
On the other side, on the record currently before
the court, the justifications for the regulation as it
would be applied to the Center seem to be weak.

The

Center’s

that

its

care;

that

shared

with

patients
pertinent

emergency-care
have

24-hour

patient

protocol
access

information
62

to

ensures
medical

will

be

doctors who provide complication-related treatment; and
that Dr. Parker will be available for consultation with
those

doctors

and,

when

communicate with them.

possible,

will

directly

The continuity of care provided

by the Center according to this procedure would not be
meaningfully

different

from

that

covering-physician requirement.

ensured

by

the

Cf. Van Hollen, 2015

WL 1285829 at *1 (“While ... sometimes it is necessary
to reduce access to insure safety, this is decidedly
not one of those instances.”).

Any impact on patient

health would be speculative, and any benefit would be,
at

best,

marginal.

Yet

even

that

marginal

benefit

would be reversed by the increased dangers to health
resulting from self-induced abortion.
As the court has previously explained, “the more
severe

an

obstacle

a

regulation

creates,

the

more

robust the government’s justification must be, both in
terms

of

how

much

benefit

the

regulation

provides

towards achieving the State’s interest and in terms of
how realistic it is the justification will actually
63

achieve that benefit.”
1287.

Strange II, 9 F. Supp.3d at

Here, because the obstacles to women caused by

the regulation are so severe, the defendant must come
forward

with

justifications

that

are

robust to justify such obstacles.
Health Officer has not.

sufficiently

So far, the State

The court therefore agrees,

for now, that the plaintiffs have demonstrated that the
regulation imposes a substantial obstacle to a woman’s
right to choose abortion.

As such, the plaintiffs have

shown a substantial likelihood of success on the merits
of this claim.

B. Irreparable Harm
There are ongoing and imminent irreparable harms to
the plaintiffs and their patients.

As detailed above,

it appears from the record that the enforcement of the
regulation

as-applied

to

the

Center

is

an

ongoing

infringement on the constitutionally protected privacy
interests of Alabama women.
Supp. 2d at 1289.

See Strange I, 951 F.

“[C]ourts presume that violations to
64

the fundamental right to privacy are irreparable.”

Id.

(citing Deerfield Med. Ctr. v. City of Deerfield Beach,
661

F.2d

328,

Moreover,

if

338
a

(5th

temporary

Cir.

Unit

B

restraining

1981)11).

Nov.
order

is

not

issued, the Center will be forced to close, very likely
permanently.
paid

staff

Although the Center has been able to keep
since

January

while

trying

to

come

into

compliance with the regulation, it will no longer have
the funds to operate if immediate relief is not given.
This would make the ongoing violation of many Alabama
women’s fundamental rights permanent and would force
the clinic administrator to lose her entire business.
Both of these are irreparable harms.12

Id.

11. The Eleventh Circuit has adopted as precedent
all decisions of the former Fifth Circuit rendered
prior to October 1, 1981, and all Former Fifth Circuit
Unit B and non-unit decisions rendered after October 1,
1981. See Stein v. Reynolds Secur., Inc., 667 F.2d 33,
34 (11th Cir. 1982); Bonner v. City of Prichard, 661
F.2d 1206, 1207 (11th Cir. 1981) (en banc).
12. The former Fifth Circuit used a “sliding scale”
standard when evaluating whether to issue a temporary
restraining order or preliminary injunction. See Siff
v. State Democratic Executive Comm., 500 F.2d 1307,
(continued...)
65

The

State

Health

Officer

responds

that

the

plaintiffs have not shown why a temporary restraining
order

is

needed

to

address

the

plaintiffs’

alleged

harms because the harm is not proven; because the lack
of

other

abortion

providers

is

not

due

to

the

1309 (5th Cir. 1974) (explaining that “a sliding scale
must be applied in considering the probability of
plaintiffs’ winning on the merits and plaintiffs’
irreparable injury in the absence of interlocutory
relief.”); State of Tex. v. Seatrain Int’l, S. A., 518
F.2d 175, 180 (5th Cir. 1975) (“[N]one of the four
prerequisites has a fixed quantitative value. Rather, a
sliding scale is utilized, which takes into account the
intensity of each in a given calculus.”); Florida Med.
Ass’n, Inc. v. U. S. Dep’t of Health, Ed. & Welfare,
601 F.2d 199, 203 n.2 (5th Cir. 1979) (“[A] sliding
scale
can
be
employed,
balancing
the
hardships
associated with the issuance or denial of a preliminary
injunction with the degree of likelihood of success on
the merits.”).
Because this precedent is binding in
the Eleventh Circuit, see supra, n.11, it must be
followed “absent an intervening Supreme Court decision
or en banc circuit decision.” See Monroe Cnty., Florida
v. U.S. Dep’t of Labor, 690 F.2d 1359, 1363 (11th Cir.
1982). The Eleventh Circuit has not directly referred
to the sliding-scale standard when evaluating whether a
temporary restraining order or preliminary injunction
is warranted.
In any case, whether or not the former Fifth
Circuit rule controls, the result is not different here
because the plaintiffs have met their burden as to each
prong.
66

regulation; and because there is no recent development
that

justifies

immediate

relief.

All

of

these

arguments lack merit.
First, as discussed in detail above, the clinic’s
permanent

closure

will

both

decrease

the

access

to

abortion for many Alabama women and deny it altogether
for others.

These are not speculative harms.

Second, the argument that the court cannot consider
the

lack

of

early-term

or

capacity

at

other

clinics

mid-second-trimester

to

provide

abortions

when

assessing irreparable harm likewise lacks merit.

The

court cannot divorce the regulation at issue from its
“real-world
1330.

context.”

Strange

III,

33

F.

Supp.

3d

Although the State Health Officer maintains it

is the other clinics’ “choice” not to open for longer
hours or provide mid-second-trimester abortions, that
assumes there are doctors willing and able to perform
abortions that live in Alabama and simply are not being
asked.

That assumption is misplaced.

The history of

violence and the continued extreme hostility towards
67

abortion providers has created a shortfall of clinics
and doctors in Alabama.

Id. at 1333-36.

In lieu of

local doctors, three of the four other clinics around
the

State

have

doctors

provide abortions.

from

out-of-state

Id. at 1343-47.

come

to

These doctors will

not move to Alabama--in part because of the extreme
stigma--and

therefore

likely

cannot

increase

the

capacity at the other clinics to match the 40 % drop
from

the

Center’s

mid-second-trimester
clinics

are

closing.
abortions,

already

And
all

near

of

as

to

the

other

capacity,

and

mid-second-trimester abortion procedures take longer to
complete

than

early-term

abortions.

In

sum,

when

examining the real-world context, the Health Officer’s
“choice” is a false one.
Finally, the Health Officer contends there is not a
“threatened--or

even

recent--development

entry of a temporary restraining order.”

justifying
Def. Opp. to

Pl. Mot. for Temporary Restraining Order (doc. no. 17)
at 25.

This dovetails with his argument, which will be
68

addressed below, that the plaintiffs are not entitled
to a temporary restraining

order, because the

legal

status quo has not changed.

Put differently, the State

Health Officer argues that, because the clinic has been
closed since January and because the plaintiffs did not
bring

this

pressing

motion

until

irreparable

July,

harm

for

there

must

which

not

a

be

a

temporary

restraining order is needed.
The permanent closure of the Center is an imminent
irreparable
order.

harm

requiring

a

temporary

restraining

After six months of retaining paid staff, the

Center will have to shut down entirely if not granted
immediate injunctive relief.
opening

a

Given the difficulty of

reproductive-health

clinic

that

provides

abortions, finding a doctor and qualified staff, and
complying with the regulations in Alabama, there is a
definite possibility the Center would never reopen and
no

other

clinic

will

replace

it.

If

the

Center

permanently closed during the pendency of this case,
then any as-applied relief the court may give would be
69

meaningless.

This would cut against the purpose of

pre-trial injunctive relief “to preserve the court’s
power to render a meaningful decision after a trial on
the merits.”
424

F.3d

Alabama v. U.S. Army Corps of Engineers,

1117,

1128

(11th

Cir.

2005)

(internal

quotation marks omitted).
Furthermore,

while

the

Health

Officer’s

contends

that the fact that the Center’s has been closed since
January means there is no pressing recent development
to necessitate immediate relief, this argument rings
hollow.
could

It is unclear when he believed the plaintiffs
have

filed

a

temporary

restraining

order.

Certainly, it was not when the regulation was passed
(the Center would not have had standing because its
doctor had admitting privileges); nor was it before the
Center had to close temporarily in January (the claim
could have faced a ripeness question if the plaintiffs
did not first pursue getting admitting privileges or
seeking a covering physician

in the community); nor

before plaintiffs sought a waiver under state law (the
70

claim would again have faced ripeness issues and the
Health

Officer

exhaustion

would

issue

have

discussed

also

raised

above).

the

same

Perhaps,

the

plaintiffs could have filed between May and July, but
the

window

they

used

to

file--seven

weeks--can

be

justified by “good faith efforts to investigate the
facts and the law.”

Marks Org., Inc. v. Joles, 784 F.

Supp. 2d 322, 333 (S.D.N.Y. 2011) (Wood, J.).
plaintiffs’

actions

demonstrate

the

The

“equitable,

diligent, good-faith, vigilant conduct required of a
litigant seeking equitable relief,” Arthur v. Allen,
574 F. Supp. 2d 1252, 1256 (S.D. Ala. 2008) (Steele,
J.); see also id. (denying a § 1983 suit on the eve of
execution after the defendant had

multiple years

to

file a particular claim), and they should not be barred
from relief from irreparable harm because of good-faith
steps to reopen the Center short of litigation.

See

Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567,
576

(5th

Cir.

1974)

(“The

purpose

of

a

preliminary

injunction is always to prevent irreparable injury so
71

as

to

preserve

the

court’s

ability

meaningful decision on the merits.

to

render

a

It often happens

that this purpose is furthered by preservation of the
status quo, but not always.
status

quo

irreparable

itself

is

injury,

If the currently existing

causing

it

is

one

of

necessary

the

to

parties

alter

the

situation so as to prevent the injury.”).

C. Balance of the Hardships
The State Health Officer claims that a temporary
restraining

order

would

harm

him

because

the

plaintiffs’ delay in filing the temporary restraining
order did not give him a fair chance to respond and
because patient health at the Tuscaloosa clinic would
suffer.
As

to

the

first

harm,

the

plaintiffs

did

not

unnecessarily delay nor was the Health Officer harmed
by any such delay.

The plaintiffs “delay” in filing

the lawsuit after the January closure can be attributed
to their efforts to comply with the regulation until
72

they

filed

in

fact-gathering

mid-May

and

necessary

for

filed in early July.

then,
the

likely,

lawsuit

to

until

the
they

In the context of the temporary

restraining order, the Health Officer also received a
similar amount of time to respond as the State did in
Strange.
As to the second harm, the record suggests that the
State

Health

Officer’s

concern

about

safety

is

overstated given the comparable procedures the Center
uses to communicate with emergency rooms during any
complication.
dispute”

At

whether

minimum,
this

“the

regulation

parties
improves

health at the Tuscaloosa clinic at all.
F.

Supp.

2d

at

1290.

“The

heartily

second

women’s

Strange I, 951
harm

is

minor,

particularly given the temporary nature of the order,”
id., as well as the limited as-applied scope of the
requested relief.
On the other hand, the record indicates that the
Center will shut down permanently if as-applied relief
is

not

granted,

eliminating
73

the

ability

to

get

an

abortion

in

Tuscaloosa

capacity

throughout

and

the

drastically

State.

Thus,

reducing
while

the

plaintiffs show concrete, serious harms, the defendant
faces only speculative harm from the temporary break in
its enforcement of the regulation as-applied to the
Tuscaloosa clinic.

The balance of the hardships weighs

heavily in the plaintiffs’ favor.

D. Public Interest
A

temporary

restraining

order

may

be

imposed

because it is in the public interest to preserve the
court’s

ability

merits.

to

make

a

meaningful

ruling

on

the

As discussed above, doing so often requires

preserving the status quo.

See, e.g., Strange I, 951

F. Supp. 2d at 1290 (“The court finds that it is in the
public interest to preserve the status quo and give the
court an opportunity to evaluate fully the lawfulness
of

HB

57

patients,

without
or

the

subjecting
public

at

potential harms.”).
74

the
large

plaintiffs,
to

any

of

their
its

Here, the State Health Officer contends that the
regulation is the status quo, because the regulation
(and the requirements it imposes on the Center) have
been in effect there for a number of years.

The tacit

argument is that, because the legal status quo has not
changed,

the

plaintiffs’

request

for

a

temporary

restraining order should be assessed differently and
more carefully than a challenge to a law that has just
passed

through

a

legislature

effect.

Compare

id.

temporary

restraining

but

(where
order

has

not

plaintiffs

to

stop

a

yet

taken

moved

new

law

for
from

taking effect).
But this conception of the status quo views the
regulation in a vacuum.

The true ‘status quo’ is a

regulation with which the Center can comply based on
circumstances

within

the

Center’s

control--and

based on the fear of stigma or violence.
by

maintaining

a

good

safety

record

not

For example,
and

a

strong

reputation in the medical community, the Center should,
theoretically,

be

able

to
75

employ

a

doctor

with

admitting privileges or

to contract with a covering

physician.
But this is exactly what has changed.

The Center

can no longer comply with the regulation even though,
given the evidence now before the court, the Center
itself

maintains

a

spotless

safety

record,

and

the

Center’s policies to protect the health of its patients
are robust.

Indeed, the sudden reversal of other local

OB/GYNs

were

who

at

first

enthusiastic

to

help

Dr.

Parker obtain admitting privileges cannot be explained
on any grounds except by looking to the fact that the
Center

provides

access

to

a

procedure

controversial within this State: abortion.

that

is

But this is

also a procedure that women have a fundamental right to
access, should they so choose.
Put differently, a narrow conception of the ‘status
quo’ as it plays out in many cases does not fit here.
Matters as sensitive to our State’s political landscape
as

abortion

broader

regulations

landscape--that

must
is,
76

be
by

viewed

within

examining

how

that
they

operate in the real world.

Therefore, in maintaining

the status quo, the court must look to a state of
affairs in which the Center’s ability to comply with
the regulation is based on its own merits.

Given the

climate in this State today, there is no way the Center
can do so with the regulation now in effect.

As a

result, the court must grant plaintiffs a reprieve from
the regulation.
With this in mind, the relief the court granted on
the temporary-restraining order will be doubly limited.
First, as with all temporary-restraining orders, it is
limited in time.

Second, it is limited in scope.

The

plaintiffs will be able to maintain this reprieve only
if, in the meantime and while this temporary injunction
remains in effect, they continue with their good-faith
attempts to comply with the regulation (by continuing
to

seek

out

physicians

whose

association

with

clinic would bring the Center into compliance).

the

To be

sure, the evidence reflects that their goal will be
difficult,

if

not

impossible,
77

to

achieve.

Nevertheless, at this juncture, the court will give the
Health Officer the benefit of the doubt that, despite
the

severely

hostile

environment

the

plaintiffs

confront, they will still be able to comply with the
regulation.

* * *
In a typical case regarding a regulation by the
State that imposes no harm and may even help people,
the

court

has

no

role

to

play.

judgments of state officials.

It

respects

the

Even in the case of

regulating a fundamental right like abortion, the court
would not interfere with the State Board of Health’s
judgment about a regulation that imposes only a minimal
obstacle on women and could, theoretically, safeguard
women’s health.
Here, the court does not have that typical case:
because of the circumstances in which it must operate,
this regulation imposes a harm on women.

It imposes

such a harm because circumstances here have transformed
78

a facially neutral regulation into one that actually
prevents women from exercising their fundamental right
to

obtain

an

abortion.

These

circumstances

have

resulted in a climate in which any physician associated
with abortion in this State is stigmatized, harassed,
and

even

threatened

with

violence.

The

same

has

occurred even to covering physicians, who would simply
be

caring

for

women

who

have

already

received

abortion and now may need urgent medical help.

an
The

court’s obligation to protect the right cannot sway in
light of these tactics.
At oral argument for a recent death-penalty case,
Justice Alito posed the question: “[I]s it appropriate
for

the

judiciary

to

countenance

what

amounts

to

a

guerilla war against the death penalty which consists
of efforts to make it impossible for the States to
obtain drugs that could be used to carry out capital
punishment with little, if any, pain?”

Transcript of

Oral Argument at 14:20-25, Glossip v. Gross, 135 S. Ct.
2726 (2015) (No. 14-7955).
79

Because the Supreme Court

took as a basic premise that the death penalty was
constitutional,

the

implication

was

“No”:

the

Court

would not allow the State’s interest to be subverted in
that way.13
the

As such, when circumstances have shifted

balance

between

individual’s

the

State’s
rights,

fundamental

interest
the

and

scales

the
were

adjusted to address the imbalance.
Here,

the

same

question

could

be

asked:

Is

it

appropriate for the judiciary to countenance efforts by
those

opposed

through

a

to

abortion

confluence

of

to

create

violence

and

circumstances,
hostility

to

abortions in the community, in which abortion clinics
find it impossible to comply with otherwise neutral
regulations

because

they

cannot

find

local

doctors

willing to perform abortions or to associate with those
who do?
court

The implication here, too, could be “No”: this
should

not

stand

by

to

allow

a

woman’s

13. In drawing this parallel, the court does not in
any way suggest that opponents to the death penalty are
in fact waging a “guerrilla war.”
80

fundamental right to obtain an abortion to be subverted
in that way.
Thus,

it

could

be

argued

circumstances--for

which

abortions

responsible--have

are

not

those

who

that,
wish

because

to

greatly

provide
thwarted

the ability of women to obtain an abortion, the State,
in fashioning a regulation governing abortion, should
address the imbalance.

And one way to correct the

imbalance would be to place on the State an obligation
to create a regulation that realistically serves the
State’s

interests

while,

at

the

same

time,

realistically serving women’s interests in the exercise
of

their

abortion.

constitutionally

given

right

to

obtain

an

Whether the state should, in fact, bear this

obligation here, the court does not reach at this time.
DONE, this the 13th day of August, 2015.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE