Robinson v. Marshall

• Decision Date: 29 October 2019
• Docket Number: CIVIL ACTION NO. 2:19cv365-MHT
• Citation: 415 F.Supp.3d 1053
• Parties: Yashica ROBINSON, M.D., et al., on behalf of themselves, their patients, physicians, clinic administrators, and staff, Plaintiffs, v. Steven MARSHALL, in his official capacity as Alabama Attorney General, Defendant.
• Court: U.S. District Court — Middle District of Alabama

415 F.Supp.3d 1053

Yashica ROBINSON, M.D., et al., on behalf of themselves, their patients, physicians, clinic administrators, and staff, Plaintiffs,

v.Steven MARSHALL, in his official capacity as Alabama Attorney General, Defendant.

CIVIL ACTION NO. 2:19cv365-MHT

United States District Court, M.D. Alabama, Northern Division.

Signed October 29, 2019

Alexa Kolbi-Molinas, Pro Hac Vice, Meagan Marlis Burrows Pro Hac Vice, American Civil Liberties Union, New York, NY, Brock Boone, Randall Charles Marshall, ACLU of Alabama, Montgomery, AL, Carrie Y. Flaxman, Planned Parenthood Federation of America, Washington, DC, Susan Lambiase, Planned Parenthood Federation of America, New York, NY, for Plaintiffs.

Brad A. Chynoweth, Edmund Gerard LaCour, Jr., James William Davis, State of Alabama Office of the Attorney General, Montgomery, AL, for Defendant.

OPINION

Myron H. Thompson, UNITED STATES DISTRICT JUDGE

This lawsuit challenges a 2019 Alabama statute, Ala. Act No. 2019-189, that imposes criminal liability on abortion providers for nearly all abortions, completed or attempted, regardless of fetal viability.¹ In essence, the Act imposes a near-total ban on abortion. It is set to take effect on November 15, 2019.

The plaintiffs are providers of abortion services: Dr. Yashica Robinson, M.D.; Alabama Women's Center; Planned Parenthood Southeast, Inc.; Reproductive Health Services; and West Alabama Women's Center. They sue on behalf of their patients, claiming that the Act is unconstitutional under the Due Process Clause of the Fourteenth Amendment, as enforced through 42 U.S.C. § 1983, because it violates their patients' substantive-due-process rights to liberty and privacy. They also sue on behalf of themselves. The defendant is the State Attorney General, sued in his official capacity. This court's jurisdiction is proper under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343(a)(3) & (4) (civil rights).

The case is now before the court on the plaintiffs' motion for a preliminary injunction (doc. no. 50). For the reasons detailed below, the motion will be granted with respect to any and all applications of the Act to pre-viability abortion.

I. LEGAL STANDARDS

To show that a preliminary injunction is appropriate, the plaintiffs must demonstrate that (1) there is a substantial likelihood that they ultimately will prevail on the merits of the claim; (2) they will suffer irreparable injury unless the injunction issues; (3) the threatened injury to them outweighs whatever damage the proposed injunction may cause the defendant; and (4) the public interest will not be harmed if the injunction should issue. See Cate v. Oldham , 707 F.2d 1176, 1185 (11th Cir. 1983). The plaintiffs bear the burden to make each showing. See McDonald's Corp. v. Robertson , 147 F.3d 1301, 1306 (11th Cir. 1998).

Here, in order to demonstrate a substantial likelihood of success on the merits, the plaintiffs must show that the Act is likely to violate the substantive-due-process rights of individuals seeking abortions in Alabama. The Fourteenth Amendment to the United States Constitution protects a woman's right to terminate her pregnancy. "The woman's right to terminate her pregnancy before viability," the Supreme Court has stated, is "a rule of law and a component of liberty we cannot renounce." Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833, 871, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion). The Supreme Court "has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose." Stenberg v. Carhart , 530 U.S. 914, 921, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000).

This right, however, has limits. As the Court recognized in Casey , the State has legitimate interests in protecting maternal health and the potential life of the fetus. A State may regulate abortion to further those interests, but only if the laws in question do not pose an "undue burden" to a woman's right to end her pregnancy. Casey , 505 U.S. at 876–79, 112 S.Ct. 2791 (plurality opinion). "An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Id. at 879, 112 S.Ct. 2791. In evaluating regulations of pre-viability abortion, then, courts must "consider[ ] the burdens a law imposes on abortion access together with the benefits those laws confer." Whole Woman's Health v. Hellerstedt , ––– U.S. ––––, 136 S. Ct. 2292, 2309, 195 L.Ed.2d 665 (2016).

But unlike laws that regulate the performance of pre-viability abortion, bans on pre-viability abortion require no balancing at all. The United States Constitution forbids the prohibition of abortion prior to fetal viability. "Before viability, the State's interests are not strong enough to support a prohibition of abortion...." Casey , 505 U.S. at 846, 112 S.Ct. 2791 (opinion of the Court); see Gonzales v. Carhart , 550 U.S. 124, 146, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007). This bright-line rule governs bans, rather than mere regulations, of pre-viability abortion.

II. DISCUSSION

A. Substantial Likelihood of Success on the Merits

1. Justiciability

As a threshold matter, the plaintiffs' success on the merits requires a justiciable case. Here, clear case law supports the plaintiffs' standing to bring suit--a fact that the defendant has acknowledged. See Def.'s Opp'n (doc. no. 64) at 12 (citing precedent that "allows abortion clinics and abortion doctors to assert constitutional claims" on behalf of their patients).

The plaintiffs sue in part on behalf of their patients.² See Complaint (doc. no. 1) at 21. They argue that the Act threatens their patients' substantive-due-process rights, which are guaranteed under the Fourteenth Amendment to the United States Constitution.

Federal courts, including the Supreme Court, routinely allow providers to challenge abortion laws on behalf of patients. See, e.g. , Stenberg , 530 U.S. at 922–23, 120 S.Ct. 2597 ; Casey , 505 U.S. at 845, 112 S.Ct. 2791 (opinion of the Court). See generally Planned Parenthood of Wisconsin, Inc. v. Van Hollen , 738 F.3d 786, 794 (7th Cir. 2013) ("[T]he cases are legion that allow an abortion provider, such as Planned Parenthood of Wisconsin or Milwaukee Women's Medical Services, to sue to enjoin as violations of federal law ... state laws that restrict abortion."); Planned Parenthood of Idaho, Inc. v. Wasden , 376 F.3d 908, 917-18 (9th Cir. 2004) (collecting cases). These cases emphasize "the central role of the physician, both in consulting with the woman about whether or not to have an abortion, and in determining how any abortion was to be carried out." Colautti v. Franklin , 439 U.S. 379, 387, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979). Such a relationship similarly supports standing for the plaintiffs at bar--all are intimately involved in patients' decisions regarding abortion and reproductive health. See generally Whole Woman's Health , 136 S. Ct. at 2323 (Thomas, J., dissenting) ("[T]he Court has ... accepted doctors' and clinics' vicarious assertion of the constitutional rights" of patients).

In sum, under precedent that the Supreme Court has repeatedly reaffirmed, abortion providers may assert the substantive-due-process rights of their patients. The plaintiffs may do so here. The court thus turns to the constitutional arguments that they raise in favor of a preliminary injunction.

2. Substantive Due Process

The court is persuaded that the plaintiffs are likely to succeed in showing that the Act violates an individual's constitutional right to obtain a pre-viability abortion,³ and thus that it violates her constitutional rights. And the defendant agrees. See Def.'s Opp'n (doc. no. 64) at 3 (conceding that, as to pre-viability abortion, the "[p]laintiffs are likely to prevail before this Court and should be granted a preliminary injunction"); id. at 5 (stating that the plaintiffs are likely to prevail on their challenge to the Act as applied to pre-viability abortion).

The Act imposes criminal liability on any person who "intentionally perform[s] or attempt[s] to perform an abortion," with limited exceptions for serious health risks to the mother. Ala. Act No. 2019-189 § 4. It does so without regard to the viability of the fetus. See id.

This fact alone makes an injunction appropriate. As stated previously, banning abortion before viability violates Supreme Court precedent. See Casey , 505 U.S. at 879, 112 S.Ct. 2791 (plurality opinion) ("[A] State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability."); Whole Woman's Health , 136 S. Ct. at 2320. No alleged state interest can overcome this clear mandate. See Casey , 505 U.S. at 878, 112 S.Ct. 2791 (plurality opinion); Isaacson v. Horne , 716 F.3d 1213, 1229 (9th Cir. 2013) ("[B]ecause Arizona's twenty-week law acts as a prohibition of, and not merely a limitation on the manner and means of, pre-viability abortions, under long-established Supreme Court law no state interest is strong enough to support it.").

Thus, as a ban on pre-viability abortion, the Act contravenes established law. Cf. Edwards v. Beck , 786 F.3d 1113, 1117 (8th Cir. 2015) (invalidating law that banned "abortions after 12 weeks' gestation"); Horne , 716 F.3d at 1229 (enjoining a ban on abortion at 20 weeks); Preterm-Cleveland v. Yost , 394 F.Supp.3d 796 (S.D. Ohio 2019) (Barrett, J.) (granting a preliminary injunction of enforcement of a ban on abortion care at and after six weeks of pregnancy); EMW Women's Surgical Ctr., P.S.C. v. Beshear , No. 3:19-CV-178-DJH, 2019 WL 1233575, at *1 (W.D. Ky. 2019) (Hale, J.) (temporarily enjoining enforcement of a bill that "would effectively ban the vast majority of abortions in the Commonwealth of Kentucky"); Jackson Women's Health Org. v. Currier , 349 F. Supp. 3d 536, 544 (S.D. Miss. 2018) (Reeves, J.) (enjoining a ban on abortion beginning at 15 weeks). The...