Myron H. Thompson, UNITED STATES DISTRICT JUDGE.
Providers of abortion and other reproductive-health services in Alabama challenge two 2016 state statutes that regulate abortions and abortion clinics. The first statute, which the court will call the "school-proximity law," provides that the Alabama Department of Public Health may not issue or renew licenses to abortion clinics located within 2,000 feet of a K-8 public school. 1975 Ala. Code § 22-21-35. The second statute, which the court will call the "fetal-demise law," effectively criminalizes the most common method of second-trimester abortion — the dilation and evacuation, or D&E, procedure — unless the physician induces fetal demise before performing the procedure. 1975 Ala. Code § 26-23G-1 et seq.
The plaintiffs are West Alabama Women's Center (an abortion clinic in Tuscaloosa, Alabama) and its medical director and Alabama Women's Center (an abortion clinic in Huntsville, Alabama) and its medical director. The plaintiffs sue on behalf of themselves and their patients. The defendants are the State Health Officer, the State Attorney General, and the district attorneys for Tuscaloosa and Madison Counties. All defendants are sued in their official capacities.
The plaintiffs claim that the school — proximity and fetal — demise laws are unconstitutional restrictions on abortion access in the State of Alabama that violate the Due Process Clause of the Fourteenth Amendment. Jurisdiction is proper under 28 U.S.C. §§ 1331 (federal question) and 1343 (civil rights).
This litigation is now before the court on the plaintiffs' motion for a preliminary injunction. For reasons that follow, and based on the evidence presented at a hearing on October 4-6, 2016, the motion for a
Abortion clinics and their physicians have been subject to a number of regulations in Alabama. In just the last five years, Alabama has passed a host of legislation to regulate how and where abortion care can be provided. The court, however, now mentions only some of those laws.
In 2011, the State prohibited abortions at 20 or more weeks after fertilization, unless a woman's condition necessitates an abortion to avert her death or "serious risk of substantial and irreversible physical impairment of a major bodily function." 1975 Ala. Code § 26-23B-5.
In 2013, the State enacted a law requiring all abortion clinics to meet the same building safety codes applicable to ambulatory surgical centers. 1975 Ala. Code § 26-23E-9. Under that requirement, abortion clinics must meet the standards of the "NFPA 101 Life Safety Code 2000 edition,"
In 2013, the State also required all physicians who perform abortions in the State to hold staff privileges at a hospital within the same statistical metropolitan area as the clinic. 1975 Ala. Code § 26-23E-4(c). The court held the staff-privileges requirement to be unconstitutional.
Prior to 2014, Alabama law also required physicians to wait at least 24 hours after providing informed consent explanations to patients before conducting the abortion procedure. That year, the legislature extended the informed-consent waiting period from 24 hours to 48 hours. 1975 Ala. Code § 26-23A-4.
Two years later, Alabama enacted the two statutes now challenged in this litigation.
The number of clinics in Alabama has decreased significantly in the last 15 years: as of 2001, 12 clinics provided abortions in the State. Today, only five clinics continue to operate. The vast majority of abortions performed in Alabama occur in these five clinics.
The plaintiffs operate two of the clinics: the Alabama Women's Center, located in Huntsville, and the West Alabama Women's Center, in Tuscaloosa.
The Alabama Women's Center, which opened in 2001, is the only abortion clinic in Huntsville, in the far northern part of the State. The Huntsville metropolitan area, with a population of 417, 593,
The West Alabama Women's Center began operations in 1993 and is the only abortion clinic in Tuscaloosa and all of west Alabama. The Tuscaloosa metropolitan area is Alabama's fifth largest urban area. The Tuscaloosa clinic provides reproductive health services to women, including abortions, birth control, treatment for sexually transmitted infections, pregnancy counseling, and referrals for prenatal care and adoption. In 2014, approximately 58% of the abortions in Alabama took place at the Tuscaloosa clinic, far more than at any other clinic. Second Johnson Decl. Ex. D (doc. no. 54-2) at 35.
The Tuscaloosa and Huntsville clinics are the only ones in Alabama that perform abortions at or after 15 weeks of pregnancy.
In July 2015, after the retirement of its long-time, sole physician who had hospital staff privileges, the Tuscaloosa clinic, along with its new medical director, initiated this litigation to challenge an Alabama Department of Public Health regulation that required all physicians who perform an abortion procedure to have staff privileges at a local hospital or to have an outside covering physician with such privileges. Ala. Admin. Code r. 420-5-1-.03(6)(b). This court temporarily restrained enforcement of the regulation against the Tuscaloosa clinic.
In May 2016, while the stay was pending, the department amended the regulation to provide that an abortion clinic could operate without a physician with staff privileges or a covering physician as long as the clinic provided to all women undergoing an abortion before they left the clinic, a copy of their medical records.
On July 13, 2016, the parties agreed to an order temporarily restraining enforcement of the two laws until three weeks after the end of a hearing on the plaintiffs' preliminary-injunction motion. The parties later agreed to settle the challenge to the amended regulation, and the court entered a judgment dismissing that claim.
From October 4 through October 6, 2016, the court held a preliminary-injunction hearing, during which the court heard evidence and oral argument. The order temporarily restraining enforcement of the school-proximity and fetal-demise laws expires today, October 27, 2016.
To show that a preliminary injunction is appropriate, a plaintiff must show that "(1) there is a substantial likelihood that he ultimately will prevail on the merits of the claim; (2) he will suffer irreparable injury unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the public interest will not be harmed if the injunction should issue."
To satisfy the first prong of preliminary-injunction requirements, likelihood of success on the merits, the plaintiffs in this case must show that the statute is likely to violate the "substantive due process rights of the women who seek abortions from the plaintiff clinics."
The Supreme Court recently reiterated the undue burden standard, that "a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends."
The school-proximity law provides that the Alabama Department of Public Health "may not issue or renew a health center license to an abortion clinic or reproductive health center that performs abortions and is located within 2,000 feet of a K-8 public school." 1975 Ala. Code §-22-21-35(b). The parties agree that both the Tuscaloosa and Huntsville clinics are located within 2,000 feet of at least one K-8 public school. Order on Pretrial Hearing (doc. no. 93), Stip. 3(b) at 13. Each clinic is licensed by the department, and their existing licenses will expire December 31, 2016. Accordingly, if the school-proximity law were to take effect, the parties agree the department would not renew either clinic's license to continue operations at its existing location.
No legislative findings accompany the school-proximity law, so the court does not have an explanation from the legislature of the purpose for the law. The plaintiffs have submitted newspaper articles, to which the State has not objected, that report that Reverend James Henderson, a leader of anti-abortion protestors outside the Huntsville clinic, drafted the bill that ultimately became the school-proximity law, with the purpose of shutting down the Huntsville clinic. Newspaper Article, Second Johnson Decl. Ex. H (doc. no. 54-2) at 56. Another article reported that Governor Robert Bentley's staff offered Henderson assistance in seeking sponsors for the bill.
Nevertheless, the State has asserted that the school-proximity law furthers two interests: minimizing disturbance in the educational environment and supporting a parent's right to control their children's exposure to the subject of abortion.
With regard to these interests, the State acknowledges two things. First, the State's interests are threatened by demonstrations outside the clinics, but not by the clinics themselves. Tr. of Final Pre-Trial Status Conf. (doc. no. 99) at 35:1-11. Thus, the school-proximity law attempts to serve the State's interests through an expressed
In the absence of legislative findings, the court must now, based on the "judicial record," make findings as to the State's two asserted interests.
The court is persuaded that the plaintiffs are likely to succeed in their argument that the school-proximity law would impose a substantial obstacle on a woman's right to obtain a pre-viability abortion, in violation of her substantive due-process rights. As discussed below, the judicial record reflects that the State's asserted interests are only minimally, if at all, furthered by the law, while the burden imposed on a woman's right to obtain an abortion is substantial.
First of all, the State's interests are furthered by neither the law's means (the 2000-foot prohibition on clinics) nor its end (the relocation of the demonstrations). In Tuscaloosa, a middle school sits just within 2,000 feet of the clinic, but a vast wooded area separates the school and the clinic. Map, Second Gray Decl. Ex. E (doc. no. 54-1) at 77 (showing Tuscaloosa clinic at 1,986 feet away from middle school); Pl. Ex. 27 (satellite view showing wooded area separating clinic and school); Tr. Vol. II (doc. no. 111) at 106:4-9. Up to five protestors (but usually fewer than that) stand outside the clinic on weekdays, but they are neither visible nor audible to children entering, exiting, or inside the school. Second Gray Decl. (doc. no. 54-1) at ¶ 35; Tr. Vol. II (doc. no. 111) at 104:15-20, 108:24-25 - 109:1-5. Indeed, on the record currently before the court, there is absolutely no evidence that the children (or their parents) at the Tuscaloosa school are even aware that an abortion clinic is located nearby.
The State does not dispute that, while the law covers the Tuscaloosa clinic, it was targeted to the "perceived problem" at the Huntsville clinic. Tr. Vol. III (doc. no. 112) at 14:12-16. Indeed, the State relies on newspaper articles that describe parental complaints about demonstrations outside the Huntsville clinic.
In Huntsville, from 2 to 15 protestors stand outside the clinic on weekdays. Tr. Vol. I (doc. no. 110) at 168:5-12 (medical director of Huntsville clinic estimates 2 to 5 protestors on a regular basis and up to 10 protestors on weekdays); Second Johnson Decl. (doc. no. 54-2) ¶ 31 (owner of Huntsville clinic estimates 5 to 15 protestors). Occasionally larger crowds of protestors congregate on weekends, when school is not in session. Tr. Vol. I (doc. no. 110) at 169:5-10; Johnson Dep., Def. Ex. 20 (doc. no. 81-20) at 3:13-18 (describing large rallies with up to 150 protestors). Demonstrators may yell at patients as they enter or exit the clinic. Tr. Vol. I (doc. no. 110) at 216:9-11.
Two public schools that include some or all of grades K-8 — Highlands Elementary School and the Academy for Academics and Arts — are located within 2,000 feet of the Huntsville clinic. The entrances to Highlands and the clinic are on different streets, and they are approximately three blocks apart.
The Academy for Academics and Arts sits diagonally across a five-lane street from, and to the east of, the Huntsville clinic. Published newspaper articles report that some parents have complained about the presence of protestors near the clinic.
Also with regard to the Academy, the State's interest in supporting a parent's right to control their children's exposure to the subject of abortion would be very weakly furthered by the closing or relocation of the Huntsville clinic. The record reflects only that one mother was forced to respond to questions from her son, an Academy student, about the subject of abortion after he witnessed the protests. Newspaper Article, Def. Ex. 16 (doc. no. 81-16). Moreover, because the school-proximity law does not define all the locations where an abortion clinic may not operate, reality dictates that it is highly likely, if not inevitable, that regardless of whether an abortion clinic is located within or without 2,000 feet of a K-8 public school in Huntsville, K-8 public school students are, at one time or another in their travels throughout the city, going to witness demonstrations at that clinic regardless of a parent's best efforts to prevent it.
In addition, the State's statutory means (the closing or relocation of the Huntsville clinic) will not lead to the State's intended end (the relocation of demonstrations away from the Academy). The evidence reflects, and the court so finds, that protests will continue at the Huntsville clinic's current location even if the school-proximity law were to take effect. Anti-abortion protestors have demonstrated not just outside the Huntsville clinic, but also outside the private practice of the clinic's medical director, Dr. Yashica Robinson White, as well as a hospital where she holds admitting privileges. Robinson White Decl. (doc. no. 54-4) ¶¶ 8-10; Tr. Vol. I (doc. no. 110) at 179:2-16; 180:14-20. Because Robinson
Based on the current judicial record, the court finds that the school-proximity law is likely to provide little to no benefit to the State's asserted interests in minimizing disruption and supporting a parent's right to control their children's exposure to the subject of abortion. Because the court has found little to nothing in the record evidence that shows that the new school-proximity law advances the State's interests, the court accords it little to no weight in the balancing test.
In addition to examining the State's asserted interests, the court must also "consider the burdens [the] law imposes on abortion access."
The parties do not dispute that, if the school-proximity law goes into effect, the State Health Department could not renew the licenses of the Huntsville and Tuscaloosa abortion clinics at their existing locations after December 31, 2016. At that time, the clinics would need to relocate or shut down. The court finds, based on the credible record, that it would not be feasible for the Tuscaloosa clinic and the Huntsville clinic to relocate and that the two clinics would have to shut down if the law were to take effect. Tr. Vol. I (doc. no. 110) at 164:19-25-165:1-18; Second Gray Decl. (doc. no. 54-1) ¶ 34; Second Johnson Decl. (doc. no. 54-2) ¶ 3.
The current evidence credibly shows that, because each clinic incurred significant expenses as a result of the surgical-center requirement imposed on abortion providers by the State in 2013, it would not be financially feasible to relocate now. Because the Huntsville clinic could not bring its old building into compliance with the surgical-center standards, it was forced to relocate, requiring $ 530,000 to purchase a new facility (the place where Robinson White had leased space for her private practice) and more than $ 100,000 for building renovations. Tr. Vol. I (doc. no. 110) at 160:23-24, 162:1-4. To cover those expenses, Dalton Johnson, the clinic owner, and Robinson White incurred significant personal financial debt. Second Johnson Decl. (doc. no. 54-2) ¶ 16 ("In order to purchase the facility, I cashed in all of my retirement savings; borrowed from my life insurance policy; refinanced the mortgage on the Madison Street building and pulled all the equity out of it; took out a $ 100,000 line of credit; and spent money I had inherited from my father, who had recently passed away. In addition, Dr. Robinson White and I each maxed out every one of our credit cards."); Tr. Vol. I (doc. no. 110) at 162:11-18 (Robinson White explaining
The Tuscaloosa clinic spent $ 130,000 to renovate its existing facility to comply with the surgical-center requirements. Second Gray Decl. (doc. no. 54-1) ¶ 32. Purchasing a new facility now would require the Tuscaloosa clinic's owner to use retirement funds or go into debt, which she would not be able to pay off at this stage of her career.
The Tuscaloosa and Huntsville clinics also could not rely on leasing a new facility. Anti-abortion protestors in Alabama have also targeted the landlords that lease space to facilities used to provide abortions. After demonstrations targeted the former landlord of the Tuscaloosa clinic, the landlord did not renew the clinic's lease.
The State contends that the burdens analysis should not include the closure of the Huntsville and Tuscaloosa clinics because whether the clinics close depends on "the idiosyncrasies of [the clinics'] specific financial position." Def. Br. (doc. no. 81) at 9. In other words, the State seems to argue that the court should not consider the actual financial circumstances of the clinics. This contention misapprehends the undue-burden case law. As this court previously explained, the undue-burden analysis requires an examination of the "real-world context" of the challenged statute and its actual effects — and not just those circumstances that were directly attributable to the statute.
Similarly, courts have routinely recognized that imposing substantial costs on abortion providers to comply with a statute places burdens on women's access to abortion — regardless of the financial circumstances of the clinics. In
The likely closure of two of Alabama's five abortion clinics would leave only three abortion clinics operating in the State — one each in Birmingham, Montgomery and Mobile — while the rest of the State, including the highly populated metropolitan areas of Huntsville and Tuscaloosa, would have no licensed abortion providers at all. The resulting burdens on women would be substantial.
First, women would lose the right to obtain an abortion in Alabama when they reached 15 weeks of pregnancy altogether, because the Tuscaloosa and Huntsville clinics are the only providers of abortions beginning at 15 weeks of pregnancy.
Second, while abortions before 15 weeks would remain available in Alabama, women
Beyond the increased difficulties women would face in accessing an abortion clinic, the three remaining abortion clinics in Alabama would lack sufficient capacity to meet the new demand. As a result, not all women who would want to obtain an abortion could do so. The Huntsville and Tuscaloosa clinics have performed the majority of abortions in Alabama in recent years: combined, they performed 72% of all abortions in Alabama in 2014, 60% of all abortions in 2013, and 55% of all abortions in 2012. Second Johnson Decl. Ex. D (doc. no. 54-2) at 35-37. The three remaining clinics could not shoulder the plaintiff clinics' substantial caseload. Together, the Huntsville and Tuscaloosa clinics performed 5,833 abortions in 2014, compared to 2,218 abortions provided by the three remaining clinics.
The total maximum capacity for Alabama's three remaining clinics is 4,500 — but that number depends on a significant expansion in staffing and services which seems unrealistic in light of the climate surrounding abortion in Alabama. For example, the Montgomery clinic performed less than 900 abortions in 2014; stretched its resources to perform 1,200 abortions because of the temporary closure of the Tuscaloosa clinic in 2015; and estimates that it could perform a maximum of 1,800 abortions per year at the outermost limit — an estimate dependent on recruiting additional physicians and support staff that it has previously struggled to hire because of the stigma surrounding abortion. Ayers Decl. (doc. no. 54-7) ¶¶ 6-8. The Mobile and
Beyond the statistical reality that the remaining abortion clinics could not meet the demands of women in Alabama if the school-proximity law were to take effect, evidence in the record suggests that the dramatically expanded services that would need to be provided by the remaining clinics would be accompanied by costly side effects. To assume otherwise flies in the face of "common sense," which "suggests that, more often than not, a physical facility that satisfies a certain physical demand will not be able to meet five times that demand without expanding or otherwise incurring significant costs."
Also, capacity constraints, especially when combined with the increased travel times required for women to obtain an abortion, would introduce delays in women's abilities to obtain an appointment and ultimately an abortion. Later-term abortions, if delayed past the 14th week of the pregnancy, carry greater medical risks and also increase the cost of the procedure; if the delay extends to the 20th week of pregnancy, it would become illegal for a woman to obtain an abortion in Alabama, with certain exceptions for the life and health of the mother.
For women in abusive relationships, delays could make the difference between obtaining or not obtaining an abortion at all: where a battered woman attempts to conceal her pregnancy from her abuser through a medication abortion, she must do so in the first ten weeks of pregnancy or risk having her abuser learn of her abortion. Walker Decl. (doc. no. 54-9) ¶¶ 15-16. Furthermore, the abortions that the remaining clinics could provide likely would not equal in quality the care provided prior to the law taking effect: In the crowded clinics that would surely result, women are "less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered."
Each of these factors — the unavailability of abortions beginning at 15 weeks, the increased travel times, and the reduced capacity and increased wait times at Alabama's three remaining clinics — establishes that women will face significantly increased, and even insurmountable, barriers to obtaining an abortion.
Where these types of barriers exist, it is likely that some women will pursue risky alternatives.
In summary, because the Tuscaloosa and Huntsville clinics provide more than 70 % of abortions in Alabama and are the only providers of abortions beginning at 15 weeks of pregnancy, and because the two clinics would have to cease operations if the school-proximity law went into effect, the availability of abortions in Alabama would be significantly reduced, and abortions beginning at 15 weeks would become almost wholly unavailable. Thus, Alabama women attempting to obtain a pre-viability abortion would likely experience substantial, and even insurmountable, burdens if the school-proximity law were to take effect.
Because, as stated above, the undue-burden analysis involves a balancing test, the weight given to the State's interests impacts the weight of the burdens necessary to conclude that a statute unconstitutionally restricts abortion access. In other words, "the more severe the obstacle a regulation creates, the more robust the government's justification must be, both in terms of how much benefit the regulation provides towards achieving the State's interests and in terms of how realistic it is the regulation will actually achieve that benefit."
Here, because, as the current judicial record reflects, the State's interests are so attenuated and thus should be given little to no weight, and because, as the current judicial record further reflects, the school-proximity law would place substantial, and even insurmountable, burdens on Alabama women seeking pre-viability abortions, the court preliminarily concludes that the law does not "confer[ ] benefits sufficient to justify the burdens upon access that [it] imposes."
In its attempt to justify its regulatory approach, the State argues that governments routinely regulate the types of businesses that may operate near schools, relying principally on First Amendment challenges to zoning decisions.
Similarly, the State's reliance on the First Amendment `secondary effects' doctrine of
Moreover, if the State seeks to regulate the areas around schools, other approaches could effectively advance its asserted interests. For example, the State could have enacted a "time, place, and manner" restriction on demonstrations outside facilities "where abortions are offered or performed."
The court's preliminary holding that the school-proximity law is unconstitutional still obtains.
The court now turns to whether the plaintiffs have established irreparable harm. Effective January 1, 2017, if the school-proximity law were to go into effect, the Tuscaloosa and Huntsville clinics would have to lay off staff and close their businesses. Second Gray Decl. (doc. no. 54-1) ¶ 5; Johnson Decl. (doc. no. 54-2) ¶ 3. Indeed, the Tuscaloosa clinic would stop providing abortions and begin to wind down operations in November 2016. Second Gray Decl. (doc. no. 54-1) ¶¶ 5, 37-38. Business closure clearly qualifies as irreparable harm.
Moreover, Alabama women seeking pre-viability abortions would suffer immediate and irreparable harm as described above. Without injunctive relief, they could no longer obtain an abortion beginning at 15 weeks anywhere in Alabama. Before 15 weeks, women in Alabama's second largest metropolitan area would need to travel at least 200 miles round-trip to obtain an abortion in Alabama, while women in Alabama's fifth largest metropolitan area would need to travel at least 110 miles to do so; and the resulting burdens on Alabama's three remaining clinics would introduce significant delays to obtaining an abortion, translating into reduced quality of care, increased risk of medical complications, and for some women, no access to an abortion until, for reasons of health or law, it is too late.
Finally, by interfering in women's right to an abortion, the school-proximity law threatens their constitutionally protected privacy rights. "[T]he right of privacy must be carefully guarded for once an infringement has occurred it cannot be undone by monetary relief."
For all these reasons, the plaintiffs have met their burden of showing that a preliminary injunction is necessary to avoid irreparable injury.
The court turns next to whether the threatened harm to the plaintiffs outweighs whatever damage or harm a proposed injunction may cause the State.
The State has not asserted it will suffer any hardships if the school-proximity law were preliminarily enjoined. Nevertheless and presumably, the hardship it would suffer is that a law passed by legislators will not go into effect. This harm is minor given the temporary nature of a preliminary injunction.
In contrast, as stated, if the law were to go into effect, the plaintiffs would have to stop providing abortions before January 1, 2017, and, based on the current record, would close their doors. Women seeking an abortion will face substantial new obstacles following the closure, including the denial of abortions beginning at 15 weeks and accompanying health risks associated with reduced and delayed access to abortion care. Because the plaintiffs have shown concrete and serious harms, while the State faces only speculative harms and has not demonstrated the law will help it achieve its asserted State interests, the balance of hardships weighs heavily in the plaintiffs' favor.
Finally, the court addresses whether a preliminary injunction is in the public interest. Without question, it is in the public interest to preserve the status quo and give the court an opportunity to evaluate fully the lawfulness of the school-proximity law without subjecting the plaintiffs, their patients, or the public at large to any of its potential harms. Further, the
The court now turns to whether it should preliminarily enjoin enforcement of the fetal-demise law.
The Alabama Unborn Child Protection from Dismemberment Abortion Act, which the court calls the fetal-demise law, imposes a criminal penalty on physicians who purposely perform `dismemberment abortions,' defined as "dismember[ing] a living unborn child and extract[ing] him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors, or similar instruments." 1975 Ala. Code § 26-23G-2(3). A health exception applies if the physician in reasonable medical judgment decides that "the child's mother has a condition that so complicates her medical condition that it necessitates the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions." 1975 Ala. Code. § 26-23G-2(6). A physician found to be in violation of this law may face a civil suit or a criminal penalty, consisting of a fine up to $ 10,000, imprisonment for up to two years, or both. While not mentioned explicitly in the language of the law, the parties agree that it would ban the standard D&E method, if used without first inducing fetal demise.
Standard D&E is a surgical abortion method in which a woman's cervix is dilated only enough to allow passage of surgical instruments, after which the physician uses forceps to grasp the fetus and remove it, and uses suction to remove remaining contents of the uterus.
Standard D&E is considered an extremely safe abortion method, with a less than 1% chance of major complications.
The court must first determine whether there is a likelihood that the plaintiffs will succeed on their challenge to the fetal-demise law. The
Because no legislative findings accompany the fetal-demise law, the court does not have an explanation from the legislature of the purpose for the law. Nevertheless, the State argues that the law advances these interests: advancing respect for human life; promoting integrity and ethics of the medical profession; and promoting respect for life, compassion, and humanity in society at large.
The plaintiffs assert that the fetal-demise law would force Alabama women seeking pre-viability abortions to go through medically unnecessary procedures and subject them to heightened health risks. Furthermore, they state that, if the law were to go into effect they would stop performing D&E abortions altogether due to ethical concerns, thereby rendering abortions essentially unavailable in the State of Alabama starting at 15 weeks. The State responds that fetal demise can be safely achieved before standard D&E with one of these three procedures: umbilical-cord transection, digoxin injection, and potassium-chloride injection. As discussed earlier, the fetal-demise law criminalizes standard D&E unless fetal demise occurs before the procedure; accordingly, the court's determination whether the law imposes substantial obstacles to abortion access turns on the feasibility of the proposed fetal-demise methods.
As with the State's asserted interests, there are no legislative findings that these procedures are safe and effective. In any event, this court must now, based on the "judicial record," make its own findings in that regard.
To perform umbilical cord transection incident to standard D&E, the physician must first dilate the woman's cervix enough to allow the passage of instruments to transect the cord. Once the cervix is dilated, the physician uses the ultrasound machine to visualize the umbilical cord. As both parties' experts testified, the physician then punctures the amniotic membrane, inserts an instrument into the uterus, and tries to find the cord with a surgical instrument and cut it. The physician must then wait for the fetus to achieve asystole, or cessation of heart activity. Tr. Vol. I (doc. no. 110) at 77:13-21; Tr. Vol. II (doc. no. 111) at 123:8-124:18. Once asystole has occurred, the physician can perform standard D&E, removing fetal tissues and other contents of pregnancy.
The court finds that, for the following reasons, the umbilical cord transection procedure is not a feasible method of causing fetal demise before standard D&E.
(i) Multiple factors make cord transection technically difficult before a standard D&E procedure: (1) lack of visualization; (2) continuous shrinking of the uterus; and (3) the size of the umbilical cord. First, before the amniotic membrane is punctured, the physician is readily able to visualize the fetus and the umbilical cord due to the contrast on the ultrasound between the amniotic fluid and the uterine and fetal tissue. However, when the membrane surrounding the amniotic sac is punctured at the beginning of the procedure, the amniotic fluid drains from the uterus. Once the
(ii) Cord transection is not a feasible method for women seeking second-trimester abortion also because it carries significant health risks to the patient, including blood loss, infection, and injury to the uterus.
(iii) Umbilical cord transection also is not a feasible method because it is essentially an experimental procedure that carries no medical benefits to the patient. The State argues that umbilical cord transection is a viable, safe option before standard D&E based on a single study — indeed, the only existing study that has examined umbilical cord transection as a method for fetal demise before D&E. But the study raises more questions than it answers.
The study suffers from several flaws that render it unreliable. First, the article was a retrospective case series study, which means that the researchers were trying to answer a question by going through medical records after the data was collected for purposes other than research. While not the least reliable type of study, it is one of the least reliable. Because the study relies on medical records from a non-research context, there is no way of knowing how the underlying data was collected, or what data was omitted from the records. Tr. Vol. I (doc. no. 110) at 84:3 20. The study states that close to 10% of the original study group was excluded for incomplete records. Tocce, Kristina, et al., Umbilical Cord Transection to Induce Fetal Demise Prior to Second-Trimester D&E Abortion, 88 CONTRACEPTION 712, 713 (2013) (doc. no. 81-13).
Further, because of the study design, the article is missing details that would reliably establish risk levels. It does not have a control group, meaning that there is no way to compare the outcomes of the group that received cord transection and the group that did not receive cord transection. The study also does not report how much time or how many passes it took to successfully grasp and transect the cord in each case; as explained above, the more passes with instruments in the uterus, the greater the risk of injury to the uterus and infection. Finally, the study does not report week-by-week distribution of gestational age of the subjects, even though the success rate of cord transection procedures would be expected to vary across the gestational age due to the size of the umbilical cord. Tr. Vol. I (doc. no. 110) at 83:23-86:13; 125:14-22.
Moreover, it is not at all clear that the resources of where the transections in the study were performed are comparable to those of the Tuscaloosa and Huntsville clinics. The patients in the study underwent intracervical anesthetic blocks and IV
In sum, cord transection carries serious risks, but insufficient research has been conducted to quantify those risks. Requiring cord transection before standard D&E would force physicians to perform a procedure without much, if any, information about the likelihood of harm to the patient. Further, the law would force women to accept an uncertain, potentially grave risk of harm as the cost of undergoing standard D&E, which is well-documented for its low risks. The court simply cannot countenance requiring thousands of women to undergo a risky procedure based on one questionable study.
(iv) This risk of harm validates the plaintiff physicians' credible testimony that they would stop providing standard D&E if they were required to perform fetal demise procedures before standard D&E. Tr. Vol. I (doc. no. 110) at 212:4-14; Tr. Vol. II (doc. no. 111) at 48:24-49:6. Physicians have an ethical obligation not to subject patients to potentially harmful procedures without any medical benefit. The court finds that, due to these ethical concerns and the uncertain risk of harm, the plaintiff physicians are unlikely to continue to perform abortions at or after 15 weeks if required to use fetal-demise procedures.
(v) Cord transection is not a feasible fetal-demise method because training is unavailable. Given that cord transection is an experimental, technically difficult, and risky procedure, physicians would need training before performing it on patients. However, the physicians at the Tuscaloosa or Huntsville clinics have not been trained in the procedure, and it is unclear on the current record how they would get training. Because cord transection is not a common procedure before standard D&E, it would be difficult for physicians to even find cases to observe, especially in the early part of the second trimester. Tr. Vol. I (doc. no. 110) at 79:19-25.
The technical difficulties of performing umbilical cord transection, the potential for serious harm, the lack of sufficient research on risks associated with the procedure, and the unavailability of training all indicate that umbilical cord transection would impose substantial obstacles to women's right to terminate a pregnancy before viability if the fetal-demise law were to go into effect. Because the procedure is too risky, it is simply not a feasible option for the Tuscaloosa and Huntsville clinics.
The court is troubled by the State's argument that women should be required to undergo this inadequately studied, potentially risky procedure. Indeed, would we want ourselves or our families (our partners and children) to undergo a medical procedure for which the documented safety and effectiveness is comparably lacking and there is no potential medical benefit? If not, why should we ask otherwise of Alabama women seeking pre-viability abortions?
To inject digoxin, physicians begin by using an ultrasound machine to visualize the woman's uterus and the fetus. The physician then inserts a long surgical needle through the patient's skin, abdomen, and uterine muscle, in order to inject digoxin into the fetus. If the attempt to inject into the fetus fails, the physician may inject digoxin into the amniotic fluid, but evidence suggests this is generally less effective. Digoxin injection, when it works, takes up to 24 hours to stop the fetal heart. Physicians cannot accurately predict how long digoxin will take to work in a given patient. Tr. Vol. I (doc. no. 110) at 59:25-60:11, 68:6-9. Digoxin injections are painful and invasive because they are administered through a transabdominal needle without anesthesia. Tr. Vol. I (doc. no. 110) at 44:12-22, 75:25-76:6, 196:3-6.
The court concludes that digoxin injections are not a feasible method of causing fetal demise for the following reasons.
(i) Digoxin injections are not reliable for inducing fetal demise. When injected into the fetus or amniotic fluid, digoxin has a failure rate ranging between 5% and 15%. Tr. Vol. I (doc. no. 110) at 64:1-8; Tr. Vol. II (doc. no. 111) at 142:4-10. Furthermore, a variety of factors, such as uterine positioning, fetal positioning, obesity, and the presence of uterine fibroids, can affect whether the physician is actually able to inject digoxin into the fetus or the amniotic fluid successfully. First, obesity can make it difficult for physicians to guide the needle through the abdomen into the uterus, for two reasons: the additional tissue in the patient's abdomen reduces the quality of the ultrasound images, making it more difficult to find the fetus; and the needle must travel through more tissue in order to get to the uterus. Tr. Vol. I (doc. no. 110) at 40:11-20, 61:1-6; Tr. Vol. II (doc. no. 111) at 139:3-16. Many of the Tuscaloosa and Huntsville clinics' patients are obese; the medical director for the Huntsville clinic testified that about 40 % of her patients are obese. Tr. Vol. I (doc. no. 110) at 197:1-2; Tr. Vol. II (doc. no. 111) at 61:17-19. Second, fetal and uterine positioning can affect whether the physician is able to get to the fetus or the amniotic fluid with a needle. Tr. Vol. I (doc. no. 110) at 61:18-25. Third, uterine fibroids, which are benign tumors on the uterine walls affecting over half of women, can get in the needle's way, because they can become calcified and impenetrable. Tr. Vol. I (doc. no. 110) at 40:21-41:4, 61:18-23, 197:3-4. All four of these factors can make it difficult — or even impossible — for the needle to reach the fetus or the amniotic fluid.
(ii) Digoxin injections are experimental for women before 18 weeks of pregnancy, and most second-trimester abortions in Alabama are performed before 18 weeks of pregnancy. Donald Decl. Exs. A-C, Induced Terminations of Pregnancy occurring in Ala. (doc. no. 81-14) (showing that approximately two thirds of abortions at or
As mentioned above, a first dose of digoxin does not succeed in inducing fetal demise 5 to 15 % of the time. However, as with digoxin before 18 weeks, there is no study establishing appropriate dosage, potential risks, or time to fetal demise for the administration of a second injection of digoxin. Tr. Vol. II (doc. no. 111) at 142:12-25. The State argued that, in those 5 to 15 % of cases where an initial digoxin injection failed, the physician could try a different method of fetal demise. But, as discussed in this opinion, there are no other viable methods.
(iii) Even when administered successfully with one dose at or after 18 weeks, digoxin injections carry significant health risks. The parties' experts agreed, and the court so finds, that digoxin injections are associated with heightened risks of extramural delivery, infection, and hospitalization, compared to standard D&E alone: digoxin injection is six times more likely to result in hospitalization compared to injection of a placebo; it carries an increased risk of infection; and it is twice as likely than amniocentesis
(iv) The use of digoxin injections as a fetal-demise method would impose serious logistical obstacles to abortion access. Women undergoing digoxin injection would be required to make an additional trip to the clinic 24 hours prior to their D&E procedure appointment.
The burden of having to make multiple trips for the procedure is especially pronounced for low-income women. Most women who come to the Tuscaloosa and Huntsville clinics are low-income, and 60 % of patients at the Huntsville clinic receive financial assistance.
Based on the unreliability of the procedure, unknown risks for women before 18 weeks of pregnancy and for injecting a second dose of digoxin, increased risks of complications, the travel burden, and the pain and invasiveness of the procedure, the court finds that digoxin injection is not a feasible method of inducing fetal demise before standard D&E in Alabama clinics.
Physicians administer potassium-chloride injections by inserting a long surgical needle through the woman's skin, abdomen, and uterine muscle, and then into the fetal heart, using an ultrasound machine to guide the needle. When administered directly to the fetal heart, potassium chloride stops it almost immediately. As with digoxin injections, potassium-chloride injections are invasive and painful, because they are administered through a transabdominal surgical needle injection without anesthesia. Tr. Vol. I (doc. no. 110) at 44:12-22; 75:25-76:6; 196:3-6.
The court finds that, based on the current record, potassium-chloride injections are not a feasible method of causing fetal demise before standard D&E procedures for the following reasons.
(i) Injecting potassium chloride takes great technical skill and is extremely challenging. The physician's goal is to inject it directly into the fetal heart,
(ii) Physicians must receive extensive training to induce fetal demise through injection of potassium chloride, and that training is unavailable to the physicians at the Tuscaloosa and Huntsville clinics. Potassium-chloride injection is not taught to OB/GYN residents or to family-planning fellows, whose training involves abortion care, because it is generally only used for high-risk, multi-fetal pregnancy reductions (where one or more of the fetuses in the same pregnancy are terminated and the rest are carried to full-term). Tr. Vol. I (doc. no. 110) at 39:9-23. The only subspecialists who are trained to perform the injections are maternal-fetal-medicine fellows, who go through three years of highly supervised training to specialize in high-risk pregnancies. Tr. Vol. II (doc. no. 111) at 141:5-10. Learning the procedure would require observing at least ten to twenty procedures, according to the more conservative estimate.
(iii) Potassium-chloride injections carry serious risks to the patient. Because potassium chloride has harmful effects on the heart, inadvertently injecting it into the woman's circulation can endanger the patient. Tr. Vol. I (doc. no. 110) at 42:2-8; Biggio Decl. (doc. no. 81-1), ¶ 9. In one instance reported in the medical literature, a woman suffered cardiac arrest because potassium chloride was accidently injected into one of her blood vessels instead of the fetus. Tr. Vol. I (doc. no. 110) at 29:2-7. Injections of potassium chloride may also increase the risk of uterine perforation and infection, due to the inherent risks associated with transabdominal injections. Tr. Vol. I (doc. no. 110) at 29:3-5, 43:16-20, 80:6-8; II-121:5-9. That said, the risk of potassium-chloride injection before standard D&E is not quantifiable because there has been no study on the efficacy or safety of the procedure before standard D&E.
(iv) Potassium-chloride injections are not a feasible method also because they cannot be completed on every woman seeking standard D&E. As with digoxin injections, obesity, fetal and uterine positioning, and presence of uterine fibroids may complicate or even prevent the administration of the injections in many women. Tr. Vol. I (doc. no. 110) at 40:4-42:1. And as mentioned earlier, obesity is common in the Tuscaloosa and Huntsville clinics' patient population.
As with umbilical cord transection and digoxin injection, potassium-chloride injection is an unnecessary and potentially harmful medical procedure with no counterbalancing medical benefit for the patient. Because it is a technically challenging procedure that carries serious health risks, and because there is no practical way for the plaintiffs to receive training to perform the procedure safely, the court finds potassium-chloride injection to be an unavailable method for fetal demise for women seeking abortion in the state of Alabama.
As stated above, to determine whether a law regulating abortion constitutes an undue burden on the right to terminate a pregnancy before viability, the court must balance the State's interests underlying a law against the obstacles imposed
While the court assumes the State's interests are legitimate, it is clear that the State cannot pursue its interests in a way that completely denies women the constitutionally protected right to terminate a pregnancy before the fetus is viable. Here, the State contends that its interests are sufficiently strong to justify the burdens the fetal-demise law would impose on Alabama women because they would retain the ability to terminate pregnancy at or after 15 weeks. The State's argument is premised on the idea that it is feasible for the Tuscaloosa and Huntsville clinics to utilize the three fetal-demise methods examined above. However, for the reasons discussed above, the court concludes on the current record that the proposed fetal-demise methods are not feasible for inducing fetal demise before standard D&E at the Alabama clinics. Therefore, if the court were to allow the fetal-demise law to go into effect, Alabama women would likely lose their right to pre-viability abortion access at or after 15 weeks. The State's interests, although legitimate, are not sufficient to justify such a substantial obstacle to the constitutionally protected right to terminate a pregnancy before viability.
Because, as the current judicial record reflects, the State's interests are insufficient to overcome the denial of Alabama women's right to terminate a pregnancy before viability, and because, as the current judicial record further reflects, the fetal-demise law would likely place substantial, and even insurmountable, obstacles before Alabama women seeking pre-viability abortions, the court preliminarily concludes that the law does not "confer[ ] benefits sufficient to justify the burdens upon access that [it] imposes."
The second requirement for an order preliminarily enjoining enforcement of the fetal-demise law — irreparable harm — is satisfied. In the absence of an injunction, Alabama women would immediately lose the right to obtain a pre-viability abortion anywhere in the State when they reached 15 weeks of pregnancy.
As explained, in the absence of an injunction, Alabama women would immediately lose the right to obtain a pre-viability abortion anywhere in the State when they reached 15 weeks of pregnancy, whereas all the State will face is that a likely unconstitutional law passed by legislators will not go into effect. The threatened harm to the plaintiffs clearly outweighs whatever damage or harm a proposed injunction may cause the State.
Finally, it is in the public interest to preserve the status quo and give the court an opportunity to evaluate fully the lawfulness of the fetal-demise law without subjecting the plaintiffs, their patients, or the public at large to any of its potential harms. Furthermore, the public has no interest in the enforcement of a law likely to be unconstitutional.
However, the court notes
The court will, therefore, enter an order preliminarily enjoining enforcement of the school-proximity and fetal-demise laws. The injunction does not extend to the private civil-enforcement provisions of the fetal-demise law.
DONE, this 27th day of October, 2016.
