West Alabama Women's Center et al v. Miller

Filing 49

OPINION AND ORDER: it is ORDERED as follows: (1) Plfs West Alabama Women's Center and William J. Parker's 32 motion to lift the stay and file a supplemental complaint is granted; (2) This case is reopened; (3) The stay previously entered (doc. no. 31 ) is dissolved; (4) The proposed first supplemental complaint (doc. no. 32 -1) may be filed. Signed by Honorable Judge Myron H. Thompson on 7/5/2016. (wcl, )

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.
)
)
THOMAS M. MILLER,
)
M.D., in his official
)
capacity as State Health
)
Officer,
)
)
Defendant.
)

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

OPINION AND ORDER
Plaintiffs West Alabama Women’s Center, a Tuscaloosa
clinic

that

provides

reproductive-health
M.D.,

the

clinic’s

abortions

services,
physician,

and

and

other

J.

Parker,

William

filed

this

as-applied

Fourteenth Amendment challenge to an abortion regulation
with which they could not comply and which had forced the

clinic to close.

The defendant is the State Health

Officer for the Alabama Department of Public Health.
court

entered

enforcement

of

an
the

order

temporarily

regulation,

and

The

restraining

then

stayed

this

action at the request of the parties so as to give the
Department an opportunity to modify the regulation.
This litigation is currently before the court on West
Alabama and Parker’s motion to lift the stay and for
leave

to

continue

supplement
their

regulation,
challenges

challenge

albeit
to

their

two

as

complaint.
to

newly

recently

the

They

Health

amended,
enacted

seek

to

Department’s
and

to

statutes

add
that

primarily impact West Alabama and one other abortion
clinic in the State.

Based on the representations made

by the parties in briefs and at oral argument, the court
concludes that West Alabama and Parker’s motion should
be granted.

2

I. BACKGROUND
In

late

2014,

physician retired.

West

Alabama’s

sole,

long-serving

The clinic found a new physician,

Parker, who agreed to replace the retiring physician.
However, West Alabama and Parker were unable to comply
with

an

Alabama

Department

of

Health

regulation

applicable to abortion clinics and physicians.

That

regulation,

Code

Alabama

§ 420-5-1-.03(6)(b),
provider

must

Administrative

provided

maintain

staff

that

every

privileges

at

abortion
a

local

hospital or, alternatively, that any facility at which a
physician
abortions

without
must

admitting

maintain

a

privileges

contract

physician who has such privileges.1

with

provides
a

covering

While West Alabama’s

1. Enforcement of an Alabama statute requiring that
all physicians providing abortions have admitting
privileges was enjoined by this court in a separate
lawsuit, Planned Parenthood Se., Inc. v. Strange (Strange
III), 33 F. Supp. 3d 1330, 1378 (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).
See also Planned Parenthood Se., Inc. v.
Strange (Strange V), -- F. Supp. 3d --, 2016 WL 1167725
(M.D. Ala. March 25, 2016) (Thompson, J.) (declaring the

3

retiring physician had held staff privileges at a local
hospital, Parker was not able to obtain staff privileges
or secure a contract with a covering physician for the
clinic.

As a result, in January 2015, the clinic closed.

On July 10, 2015, West Alabama and Parker filed this
as-applied constitutional challenge to the regulation.
In early August 2015, after the parties had submitted
substantial evidence and briefed and orally argued the

admitting-privileges
requirement
facially
unconstitutional).
At the time this West Alabama
litigation commenced, the regulation had been amended in
light of the statute and in the wake of the Strange
litigation; it still allowed for compliance in either of
two ways. As this court previously explained in August
of last year, “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 privileges for the doctor
or a covering-physician contract for the clinic.”
W.
Ala. Women's Ctr. v. Williamson, 120 F. Supp. 3d 1296,
1301 n.2 (M.D. Ala. 2015) (Thompson, J.).
4

complex legal and factual issues, and because the clinic
was then set to lay off staff and shut down permanently,
the

court

temporarily

enjoined

enforcement

of

the

regulation until August 18 and promised that an opinion
would follow.

W. Ala. Women’s Ctr. v. Williamson, No.

15cv497, 2015 WL 4932810, at *1 (M.D. Ala. Aug. 4, 2015)
(Thompson, J.).

In mid-August, the court issued an

81-page opinion setting forth in detail the legal and
factual basis for the injunction.

W. Ala. Women’s Ctr.

v. Williamson, 120 F. Supp. 3d 1296 (M.D. Ala. 2015)
(Thompson, J.).
In

late

The clinic reopened shortly thereafter.

August,

after

the

injunction

had

been

extended by agreement of the parties, the court approved
a

stipulation

they

had

submitted.

The

stipulation

provided that, for one year, while the Health Department
sought to modify the regulation, this litigation would
be stayed and enforcement of the regulation would be
waived as to West Alabama.2

W. Ala. Women’s Ctr. v.

2. This waiver was subject
conditions not relevant here.
5

to

some

additional

Williamson,

No.

15cv497,

2015

WL

5164054,

at

*2

(M.D. Ala. Aug. 31, 2015) (Thompson, J.).
In June 2016, West Alabama and Parker filed the
pending

motion

to

lift

the

stay

and

for

leave

to

supplement their complaint as follows: to continue their
challenge to the abortion regulation, albeit as amended
since the stay was entered, and to add challenges to two
recently enacted Alabama statutes that primarily impact
West Alabama and one other abortion clinic.
During the stay, the regulation was amended to add
an additional alternative for compliance: any abortion
clinic that is unable to comply with the staff-privileges
or

covering-physician

compliance

by,

among

requirements
other

measures

may

remain

not

at

in

issue,

ensuring that every woman who receives an abortion at the
facility “receive[s] a copy of her medical record that
pertains
leaving

to

the

the

current

abortion

facility.”

procedure

Ala.

prior

Admin.

to

Code

§ 420-5-1-.03(6)(c)(4).
In their proposed supplemental complaint challenging

6

the amended regulation, West Alabama and Parker allege
that: “A patient’s medical records from [West Alabama]
contain her most personal and sensitive information.

In

addition to details of the abortion procedure itself,
this information includes but is not limited to ... the
patient’s medical and surgical history, including her HIV
status,
mental

history
health

of

sexually

history,

and

transmitted
her

infections,

pregnancy

history,

including number of children, miscarriages, and prior
abortions;

notes

from

the

patient’s

pre-abortion

counseling session about her reasons for seeking the
abortion; and the name and signature of the person who
will drive her home from the clinic.”
Compl. (doc. no. 32-1) at 16.

Proposed Suppl.

They further allege that:

“The medical records requirement jeopardizes the privacy
of [West Alabama]’s patients by increasing the likelihood
that

highly

sensitive

information,

including

the

patient’s decision to have an abortion, will be exposed
to third parties.”

Id. at 19.

And they continue that:

“Forcing a woman who has just had an abortion to receive

7

a copy of her medical record reflecting her entire sexual
and medical history and the care she received at [West
Alabama]

makes

abusive

partner

information.

it

substantially
(or

more

relative)

likely

will

learn

an

that

For victims of abuse, this could jeopardize

their wellbeing, safety, or even their lives.”
20.

that

Id. at

The Health Department adopted the amended regulation

despite

the

fact

that,

according

to

the

proposed

supplemental complaint, the department had, during the
comments period, "received multiple comments opposing the
medical records requirement on the basis that it would
pose an unacceptable threat to patient confidentiality
and singled out abortion providers for a requirement not
imposed on any other healthcare providers."

Id. at 11.

Since the stay was entered, the State Legislature
enacted and the Governor signed two new statutes the
plaintiffs also seek to challenge.

The first of these

is Senate Bill 205, which prohibits the licensure of
abortion clinics located within 2,000 feet of a K-8
public school, and which primarily impacts West Alabama

8

and one other abortion clinic.

This court will refer to

this Act as the “school-proximity law.”
The second newly enacted statute is Senate Bill 363,
the Alabama Unborn Child Protection from Dismemberment
Abortion

Act,

which

West

Alabama

and

Parker

allege

prohibits the dilation and evacuation (D&E) abortion
procedure used in second-trimester abortions, and which
primarily impacts West Alabama, the primary provider (and
one of only two providers) of second-trimester abortions
in the State.

Tr. of June 17, 2016, Telephone Conference

on Pls.’ Mot. to Suppl. (doc. no. 48) at 16-17.

Because

West Alabama and Parker refer to this act as the “D & E
law,” this court will temporarily do so as well.3

3. The court should not be understood to agree with
West Alabama and Parker that the statute in fact covers
or bans the D & E procedure; the statute’s coverage is
uncertain at this point. The court is merely relying--as
it must at this time--upon the allegations of the
proposed complaint.

9

II. DISCUSSION
West Alabama and Parker request that the court allow
them to supplement their complaint with three new claims:
(1)

a

challenge

to

the

regulation,

as

subsequently

amended; (2) a challenge to the school-proximity law; and
(3) a challenge to the D&E law.
Because the State Health Officer has conceded on the
record that it is appropriate to lift the stay and to
permit

supplementation

of

the

complaint

with

the

challenge to the amended regulation, id. at 4, the stay
will be lifted and West Alabama and Parker’s motion to
supplement will be granted as to that claim.4

The only

issue that needs discussion is whether to allow the
addition of the challenges to the school-proximity law

4. The State Health Officer also contends that West
Alabama and Parker are misreading the regulation as being
more burdensome than it actually is. West Alabama and
Parker respond that it is counsel for the State Health
Officer who is misreading the regulation--and that the
interpretation the State Health Officer offers is not
binding on the Department of Public Health. These are
substantive matters that remain to be litigated.
10

and

the

D&E

law

to

this

now-reopened

and

ongoing

litigation.

A. Legal Standard
Supplemental pleadings are governed by Federal Rule
of Civil Procedure 15(d), which provides:
“On motion and reasonable notice, the
court may, on just terms, permit a party
to
serve
a
supplemental
pleading
setting
out
any
transaction,
occurrence, or event that happened
after the date of the pleading to be
supplemented.
The court may permit
supplementation
even
though
the
original pleading is defective in
stating a claim or defense. The court
may order that the opposing party plead
to the supplemental pleading within a
specified time.”
“As

written,”

therefore,

“Rule

15(d)

contains

no

standards at all to guide the district court's analysis;
it merely authorizes the district court to permit service
of a supplemental pleading ‘on just terms.’”

U.S. ex

rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 7 (1st Cir.
2015), cert. denied, No. 15-1309, 2016 WL 1643545 (U.S.
June 27, 2016).

The Rule “is intended to give the court

11

broad discretion in allowing a supplemental pleading.”
Fed. R. Civ. P. 15(d) advisory committee’s note to 1963
amendment.

However, there is still the question of how

this discretion should be exercised.
Perhaps

most

important,

this

broad

discretion

obviously places upon a court a corresponding obligation
to

articulate

adequately

the

basis

for

any

decision

reached based on the exercise of that discretion--not
simply so as to facilitate appellate review, but also to
assure

that

the

discretion

is

exercised

based

upon

reasoned judgment and not arbitrarily or out of mere
instinct.
Toward
general

this

end,

guidelines.

courts
First,

have
“in

articulated
keeping

a

few

with

the

overarching flexibility of Rule 15, courts customarily
have treated requests to supplement under Rule 15(d)
liberally.”

Gadbois, 809 F.3d at 7.

(citation omitted).

See also Harris v. Garner, 216 F.3d 970, 984 (11th Cir.
2000) (noting "the liberal allowance of amendments or
supplements to ... pleading under Rule 15"). Indeed, the

12

Supreme Court has stated that supplementation can even
include new claims and new parties.

See Griffin v. Cty.

Sch. Bd. of Prince Edward Cty., 377 U.S. 218, 227 (1964).
"This liberality is reminiscent of the way in which
courts have treated requests to amend under Rule 15(a)'s
leave ‘freely give[n]’ standard.”
7 (citations omitted).

Gadbois, 809 F.3d at

As Judge Haynsworth famously put

it, “a supplemental pleading ... is a useful device,
enabling a court to award complete relief, or more nearly
complete relief, in one action, and to avoid the cost,
delay,

and

waste

of

separate

separately tried and prosecuted.
of

such

service

in

the

actions

which

must

be

So useful they are and

efficient

administration

of

justice that they ought to be allowed as of course, unless
some particular reason for disallowing them appears ...."
New Amsterdam Cas. Co. v. Waller, 323 F. 2d 20, 28-29
(4th Cir. 1963), cert. denied, 376 U.S. 963 (1964).
Nevertheless, while the court's discretion is broad,
and while that discretion should be exercised liberally,
it

is

not

unlimited.

First,

13

there

is

the

express

limitation that any supplementation must be based on a
"transaction, occurrence, or event that happened after
the

date

of

the

pleading

Fed. R. Civ. P. 15(d).
reasonable

to

be

supplemented."

And there is the obvious and

requirement

that

the

supplementation

have

"some relation" to what is sought to be supplemented.
Rowe

v.

U.S.

Fid.

&

Guar.

Co.,

421

F.2d

937,

943

(4th Cir. 1970).
Moreover,

experience,

as

revealed

in

case

law,

teaches that there are a number of factors that courts,
in reaching their reasoned judgment, should weigh when
relevant:

Would the supplementation be futile?

nonmovant be prejudiced?

Would a

Has there been unreasonable

delay in presenting the supplementation?

And would the

supplementation facilitate the efficient resolution of
current claims as well as any new ones?

Gadbois, 809

F.3d at 7; see also 6A Wright & Miller, Fed. Prac. &
Proc. Civ. § 1504 (3d ed.).

Of course, none of these

factors is necessarily dispositive in and of itself.
Rather,

the

court

must

"weigh

14

the

totality

of

circumstances."

Gadbois, 809 F.3d at 7.

"[e]verything depends on context."

Id.

In other words,
The bottom line

is: Would the supplementation promote “the efficient
administration of justice”?

New Amsterdam Cas. Co., 323

F. 2d at 28-29.

B. West Alabama and Parker’s Challenges
to the School-Proximity and D&E Laws
Applying the above principles and guidelines, the
court finds that supplementation with West Alabama and
Parker’s challenges to the school-proximity and D&E laws
is appropriate.

1. School-Proximity Law
There are a number of compelling reasons why West
Alabama and Parker's school-proximity claim should be
added to this litigation.
First, the stipulation the parties entered into as a
part of the stay of these proceedings expressly permitted
West Alabama and Parker, at the end of the stay, to “amend
the complaint” and “seek other appropriate relief,” W.

15

Ala. Women’s Ctr., 2015 WL 5164054, at *2--and notably
without setting forth any limitation on what that amended
complaint could include or what that other appropriate
relief could be.

Therefore, as a general matter, not

only does the school-proximity claim meet Rule 15(d)'s
requirement that it arise out of events that occurred
after this litigation was filed, but the stipulation
reflects that, as a practical matter, the litigation has
not progressed to the point where the parties no longer
expected new claims and new requests for relief based on
new events.
Second, the current plaintiffs, West Alabama and
Parker, are also plaintiffs for the school-proximity
claim.
Officer,

And the current defendant, the State Health
is

not

only

also

a

defendant

to

the

school-proximity claim, he is perhaps the only clearly
appropriate one for that claim.
of

the

school-proximity

Based on the plain text

law,

the

State

Health

Officer--who presides over the Alabama Department of
Public

Health--is

the

individual

16

responsible

for

enforcing the law.

The 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.”
Ex. B, Pls.’ Mot. to Lift Stay and to File Suppl. Compl.
(doc. no. 32-1) at 1.

Indeed, in proceedings in this

court, defense counsel conceded that the Health Officer
is responsible for declining to issue or renew a license
for a clinic that violates the law, and counsel admitted
that the Health Officer might even be the individual who
would measure the distance between a K-8 public school
and an abortion clinic or reproductive health center if
a dispute arose as to whether a facility’s license should
be renewed.
at 9-10.

Tr. of June 17, 2016, Telephone Conference
As no other State department, agency, or

official is mentioned in the statute by name, the State
Health Officer would likely be called upon to defend any
challenge

to

the

school-proximity

law,

whether

the

plaintiffs were permitted to supplement their original

17

complaint in this case or were forced to bring the
challenge in a separate suit.

See Am. Civil Liberties

Union v. Fla. Bar, 999 F.2d 1486, 1490 (11th Cir. 1993)
(“Under United States Supreme Court precedent, when a
plaintiff challenges the constitutionality of a rule of
law, it is the state official designated to enforce that
rule who is the proper defendant, even when that party
has made no attempt to enforce the rule.”). Thus, because
the parties appear to be appropriately the same, they
will, with the addition of the school-proximity claim,
save the costs, both in money and time, of litigating a
separate proceeding between them.
Third,

the

school-proximity

claim

and

this

litigation (in particular, the challenge to the original
regulation) bear a substantial legal and evidentiary
relationship to each other, and the resolution of the
school-proximity claim in the context of this ongoing
litigation

will

allow

for

a

more

expeditious resolution of that claim.

18

efficient

and

To begin, there is significant overlap between the
legal analysis that the court has already performed, at
length, in the litigation of the original claim in this
case and the analysis it will need to perform in the
litigation of the school-proximity claim.

In analyzing

the original regulation, this court applied the following
analysis: The court observed that “‘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.’”

W. Ala. Women's Ctr.,

120 F. Supp. 3d at 1307 (quoting Planned Parenthood of
Se. Pa. v. Casey, 505 U.S. 833, 877 (1992) (plurality
opinion)).
a

To determine whether the regulation imposed

substantial

obstacle,

this

court

asked

“whether,

examining the regulation in its real-world context, the
obstacle is more significant than is warranted by the
State's justifications for the regulation.” Id. (quoting
Planned Parenthood Se., Inc. v. Strange (Strange III),

19

33 F. Supp. 3d 1330, 1337 (M.D. Ala. 2014) (Thompson, J.)
(internal citations and additional citations omitted)).
The court analyzed “the obstacles and justifications for
the regulation ... , as applied to plaintiffs, and then
evaluate[d] whether the obstacles [were] more severe than
warranted by the State's justifications.”

Id.

See also

Whole Woman’s Health v. Hellerstedt, No. 15-274, 2016 WL
3461560, at *20 (U.S. June 27, 2016) (in applying the
undue-burden standard, considering closures of abortion
clinics due to an admitting-privileges requirement that
“meant fewer doctors, longer waiting times, and increased
crowding ... in

light

of

[the

requirement’s]

absence of any health benefit”).

virtual

In evaluating the

obstacles, the court undertook a “two-step inquiry ... :
[enquiring] first, whether the regulation will force
[West Alabama] to remain closed; and second, if [West
Alabama] remains closed, and no other clinic takes its
place, determining the effect on Alabama women who seek
abortions.”

W. Ala. Women's Ctr., 120 F. Supp. 3d at

1307.

20

While the justifications for the original regulation
differed from those that will probably be proffered for
the school-proximity law, the analytical approach the
parties and the court will employ for assessing the
constitutionality of the school-proximity law will likely
largely be the same.

Thus, it appears that the court and

the parties are already fully familiar with the complex
legal framework within which the school-proximity claim
will need to be considered.
But
evidence

more

important,

that

has

much,

already

if

been

not

most,

presented

of

the

to,

and

considered by, the court will likely be directly relevant
to consideration of the school-proximity claim.

Because

the original regulation would allegedly have resulted in
the permanent closure of West Alabama and because the
school-proximity

law

will

allegedly

result

in

West

Alabama's closure as well, a good bit of evidence already
presented to the court on the alleged impact of the
clinic's closure on Alabama women seeking an abortion,
see id. at 1309-1312, will most likely also be directly

21

relevant to the school-proximity claim.

Admittedly,

because the school-proximity law will allegedly result
in the closure of not only West Alabama but a second
abortion

clinic,

the

evidence

pertaining

to

the

school-proximity claim will likely be more extensive.
However, this difference does not detract from the fact
that a good deal of the evidence already before the court
will be relevant to the school-proximity claim.

Indeed,

neither West Alabama and Parker nor the State Health
Officer

disputes

Telephone

this.

Conference

at

See
14

Tr.

of

June

(counsel

for

17,

2016,

plaintiffs

stating that they intend to present much of the same
evidence on the school-proximity claim that this court
heard during the litigation of the initial challenge to
the staff privileges/covering physician regulation); id.
at 12 (counsel for State Health Officer stating that “a
lot of the evidence [presented as to the school-proximity
claim] would be the same” as that presented in the
original proceeding).

Without question, the litigation

of the school-proximity claim in this case will be much

22

less costly and time-consuming, and will thus better
promote “the efficient administration of justice.”

New

Amsterdam Cas. Co., 323 F. 2d at 28-29.
Fourth, one of the primary goals of Rule 15(d) is to
aid

in

the

parties.

complete
Id.

at

resolution

28

of

(explaining

disputes
that

between

supplemental

pleading “enabl[es] a court to award complete relief, or
more nearly complete relief, in one action, and to avoid
the cost, delay and waste of separate actions which must
be

separately

tried

and

prosecuted”).

As

already

observed, West Alabama and Parker filed the challenge to
the original regulation to prevent permanent closure of
the clinic due to a legal requirement enforced by the
State

Health

Officer;

now

the

regulation

has

been

amended, but West Alabama still faces the threat of
closure due to a law that will prevent the reissuance of
its license by the State Health Officer.

The dispute

between West Alabama and the Health Officer, therefore,
remains alive.

In this straightforward and compelling

sense, because this dispute over whether the clinic can

23

continue to operate has not been completely resolved,
supplementation is in the true spirit of Rule 15(d).
Fifth,

the

court

has

so

far

discussed

the

school-proximity claim's relationship with the challenge
to the original regulation.

The school-proximity claim

also bears a relationship to the challenge to the amended
regulation, a challenge which all parties agree should
now be part of this litigation.

Supplementation is

warranted, in this regard, because resolution of the
challenge to the amended regulation and that of the
school-proximity claim are somewhat interdependent.
West

Alabama

and

Parker’s

challenge

to

If
the

school-proximity law is unsuccessful and West Alabama is
forced

to

close

at

the

end

of

2016,

their

further

litigation of the amended-regulation challenge in this
court and on appeal would become moot; it would make
little sense to hold a trial or grant permanent relief
as to West Alabama and Parker’s amended-regulation claim
until a preliminary assessment is made that the clinic
is

likely

to

prevail

on

24

its

challenge

to

the

school-proximity law, and thus likely to remain open.
Given the interrelated nature of the two challenges, it
makes

sense

to

consider

them

in

one

lawsuit.

The

determination of how these claims should be resolved so
as to keep down litigation costs and conserve judicial
resources can be more easily and efficiently made in one
lawsuit rather than two.
Sixth,

the

posture

supplementation.

of

this

litigation

supports

Admittedly, on the one hand, there was

much evidentiary development in this case with regard to
the

original

regulation;

but

challenge
this

was

to
done

needed expeditious resolution.

the

Health

because

the

Department
challenge

However, on the other

hand, this court now has a new challenge to the regulation
as amended; the Health Officer has yet to respond to this
new claim; no uniform scheduling order with discovery and
other deadlines has ever been entered; and no pretrial
conference

has

been

held.

Supplementation

would

essentially come at the outset of the new challenge to
the amended regulation.

25

In conclusion, for the numerous reasons given above,
the

court

holds

appropriate

for

that

Rule

West

15(d)
Alabama

supplementation
and

is

Parker’s

school-proximity claim against the State Health Officer.

2. The D&E Law
Whether, with an eye on the big picture as well as
the details, supplementation is appropriate as to West
Alabama and Parker's challenge to the D&E law is a closer
question.

Unlike with regard to the original regulation

and the school-proximity law, West Alabama and Parker do
not contend that the D&E law, which they allege bans the
D&E abortion procedure, would result in the closure of
West Alabama.

Further, West Alabama and Parker have

named additional defendants in their challenge to the D&E
law.

However, for several reasons--including that the

D&E claim is sufficiently related to the claim that has
been and one of the two that will be presented in this
litigation--the court holds that the D&E claim should be
added to this litigation.

26

First, the same general circumstances that support
adding the school-proximity claim to this litigation also
support adding the D&E claim.

As a predicate for the

application of Rule 15(d), the D&E claim arose after the
original

complaint

was

filed.

The

parties’

stay

stipulation reflects that they understood that new claims
could be added to this litigation.
in

the

same

posture

in

this

And the D&E claim is

litigation

as

are

the

challenges to the new regulation and the school-proximity
law.
Second, the analysis of and evidence relevant to the
D&E claim will likely significantly overlap not only with
that previously presented with regard to the challenge
to the original regulation but also with that likely to
be

presented

challenge.

with

regard

to

the

school-proximity

Although the D&E law applies statewide, its

primary impact is alleged to be on West Alabama.

Because

West Alabama is one of only two clinics in the State that
provide abortions after 15 weeks and because all such
procedures

these

clinics

provide

27

(and

are

able

to

provide) are performed using the D&E method that they
contend

the

law

bans,

the

D&E

law

will

effectively

eliminate access to abortions after 15 weeks even though
the State allows abortion up to 20 weeks.5
17, 2016, Telephone Conference at 16.

Tr. of June

In short, for the

relevant group of women (those seeking D&E abortions),
the impact of the D&E law will, in a sense, be quite
similar

to

that

of

the

original

regulation

and

the

school-proximity law: West Alabama and the other clinic’s
doors will be shut to women in Alabama seeking abortions
after 15 weeks.
As a result, the undue-burden analysis discussed
above will in some measure also apply to West Alabama and
Parker's challenge to the D&E law, and the evidence
already received with regard to the original-regulation

5. West Alabama and Parker admit that abortions after
15 weeks may also be performed using an induction
procedure.
However, they contend that neither West
Alabama nor the other clinic that provides abortions
after 15 weeks is equipped to perform this procedure; it
involves the induction of labor and, accordingly, can be
a multi-day procedure. Induction must be performed in a
hospital, so neither clinic would be an adequate setting.
28

challenge

and

to

be

received

with

regard

school-proximity claim will be relevant.
applying

the

undue-burden

standard,

to

the

Admittedly, in

the

court

must

analyze the obstacles to abortion access for the “group
for whom the law is a restriction.”

Planned Parenthood

of Se. Pa. v. Casey, 505 U.S. 833, 894 (1992) (plurality
opinion).

While that group presumably would be smaller

in regards to the challenge to the D&E law, the evidence
and

analysis

of

the

impact

and

obstacles

would

nonetheless still overlap significantly.
Third, there is an important practical link between
the D&E law and the school-proximity law that supports
adding the D&E law claim to this litigation.

Were the

court

of

the

enjoined,

this

to

conclude

school-proximity

law

that
should

enforcement
not

be

decision would allegedly result in the closure of West
Alabama by the end of 2016, a result that would arguably
render the D&E challenge moot.

Permitting these claims

to be litigated together will avoid the possibility of
unnecessary adjudication of a claim and will eliminate

29

the possible need for coordination between different
courts.
Finally, the addition of the following different
defendants does not warrant denial of leave to supplement
this litigation with the challenge to the D&E law: Luther
Strange, in his official capacity as Alabama Attorney
General; Lyn Head, in her official capacity as District
Attorney for Tuscaloosa County; Robert L. Broussard, in
his official capacity as District Attorney for Madison
County; Dr. H. Joseph Falgout, in his official capacity
as Chairman of the Alabama Board of Medical Examiners;
and Dr. James E. West, in his official capacity as
Chairman of the Medical Licensure Commission of Alabama.
As

already

noted,

it

is

well-established

that

supplemental pleadings under Rule 15(d) are appropriate
vehicles for the addition of new parties--including new
defendants--involved

in

events

filing of the original complaint.
at

227.

The

inclusion

of

that

after

the

See Griffin, 377 U.S.

more

supplementation is nothing unusual.

30

arose

defendants

through

Moreover, as a practical matter, there is nothing
to indicate that the addition of these defendants would
make the resolution of any claim in these proceedings
less efficient.

Nor would these defendants' presence

prejudice the State Health Officer.

The State Health

Officer already has to defend two of the three claims in
this case.

Moreover, because there is an evidentiary

overlap between the school-proximity and D&E claims, the
State Health Officer, though not a party to the D&E claim,
will have the advantage, if he wants, of monitoring the
evidence that is developed with regard to that claim.
In any event, that a defendant defends fewer than
all the claims in a case is common, and nothing special
in this litigation makes it otherwise unusual.

To the

extent that the State Health Officer is uninvolved in the
enforcement

of

the

D&E

law,

he

need

not

actively

participate in defending against this claim.
***
In conclusion, because of the relationship, both as
to law and evidence, the D&E claim, the school-proximity

31

claim, and the amended-regulation challenge bear to the
claim this court has already addressed; because of the
relationship the three claims have among themselves;
because supplementation will not unfairly prejudice the
State Health Officer; and because of the current posture
of this litigation, the court concludes that it would be
more efficient and just to try the three claims together
in this lawsuit.

Or, to put it another way, the benefit

of trying these three claims together strongly outweighs
any disadvantage that might arise.
Moreover,

it

is

worth

noting

that,

because

the

amended regulation, the school-proximity law, and the D&E
law determine how, to what extent, and even whether, at
all, West Alabama can provide abortions, West Alabama and
Parker could certainly have brought a single lawsuit
challenging all three.

For the same reason, West Alabama

and Parker should now be able to add and challenge at one
time all three in this litigation.

32

C. Alabama Women’s Center and Robinson-White's
Challenges to the School-Proximity and D&E Laws
The court has already concluded that West Alabama
and

Parker

should

be

allowed

to

supplement

their

complaint with their challenges to the school-proximity
and the D&E laws.
court

is

The additional question now before the

whether,

with

the

proposed

supplemental

complaint, Alabama Women’s Center, located in Huntsville,
and its medical director, Yashica Robinson-White, M.D.,
should be allowed to join in these challenges. The answer
is yes.
First, West Alabama and Parker's claims and Alabama
Women’s Center and Robinson-White's claims are virtually
identical.

Indeed, it appears at this time that the law

and the evidence will be essentially the same.
In considering West Alabama’s claims, the court will
need

to

hear

availability

of

extensive

evidence

abortions--and,

with

regarding
respect

to

the
the

challenge to the alleged ban on D&E, mid-second-trimester
abortions--elsewhere in the State, in order to determine
how severely women’s rights would be burdened by the

33

inability

to

obtain

an

abortion

(or

mid-second-trimester abortion) at West Alabama.

a
See

Planned Parenthood Se., Inc. v. Strange (Strange III),
33 F. Supp. 3d 1330, 1342 (M.D. Ala. 2014) (Thompson, J.)
(assessing whether an abortion restriction imposed an
undue burden by “first, determining the effect of the
requirement

on

current

and

potential

abortion

providers”); see also West Ala. Women’s Ctr., 120 F.
Supp. 3d at 1309-12 (assessing the effect of the closure
of one clinic on women by considering evidence regarding
the capacity and accessibility of the other remaining
abortion providers in the State).

Whether the challenged

laws will force other clinics, such as Alabama Women’s
Center, to close or to stop providing certain procedures
is

directly

relevant--indeed,

central--to

adjudication of West Alabama’s claims.

the

Thus, the court

will need to hear evidence and determine the impact of
the

challenged

laws

on

Alabama

Women’s

Center

and

Robinson-White regardless of whether they are plaintiffs
in this case.

It would be a total waste for resources

34

and time to force Women's Center and Robinson-White to
file a separate lawsuit and present this evidence again.
Second, had West Alabama and Parker not sought to
include the Alabama Women’s Center and Robinson-White as
plaintiffs, these new plaintiffs certainly could have
moved to intervene, and this court would have granted
them

permission

to

do

so,

in

light

of

the

largely

overlapping evidence and because the new plaintiffs’
“claim[s] ... share[] with the main action [] common
question[s] of law or fact.”
(stating

circumstances

Fed. R. Civ. P. 24(b)

under

which

permissive

intervention is appropriate).
* * *

Accordingly, for the reasons stated above, it is
ORDERED as follows:
(1) Plaintiffs

West

Alabama

Women’s

Center

and

William J. Parker’s motion to lift the stay and file a
supplemental complaint (doc. no. 32) is granted.
(2) This case is reopened.

35

(3) The stay previously entered (doc. no. 31) is
dissolved.
(4) The

proposed

first

supplemental

complaint

(doc. no. 32-1) may be filed.
DONE, this the 5th day of July, 2016.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE