Planned Parenthood Se., Inc. v. Strange
| Decision Date | 04 August 2014 |
| Docket Number | Civil Action No. 2:13cv405–MHT. |
| Citation | 33 F.Supp.3d 1330 |
| Parties | PLANNED PARENTHOOD SOUTHEAST, INC., on behalf of its patients, physicians, and staff, et al., Plaintiffs, v. Luther STRANGE, in his official capacity as Attorney General of the State of Alabama, et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
Alexa Kolbi–Molinas, Andrew David Beck, Jennifer Dalven, Julia Heather Kaye, Renee Paradis, American Civil Liberties Union Foundation, Jennifer R. Sandman, Maithreyi Ratakonda, Roger Kraus Evans, Planned Parenthood Federation of America, New York, NY, Carrie Y. Flaxman, Planned Parenthood Federation of America, Washington, DC, M. Wayne Sabel, Sr., Sabel & Sabel, P.C., Randall C. Marshall, ACLU Foundation of Alabama, Montgomery, AL, for Plaintiffs.
Kyle A. Beckman, Laura Elizabeth Howell, Office of the Alabama Attorney General, Margaret Lindsey Fleming, James William Davis, State of Alabama, Montgomery, AL, for Defendants.
In Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), the Supreme Court of the United States announced two principles that must govern this court's analysis of the right to choose to have an abortion. First, the Court reaffirmed “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State.” Id. at 846, 112 S.Ct. 2791 (1992) (majority opinion). Second, the Court endorsed “the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Id. However, in the controlling opinion, a plurality of the court announced that a State regulation goes too far in pursuing those legitimate interests when it imposes an “undue burden” on the woman's ability to choose an abortion. Id. at 874, 112 S.Ct. 2791 (joint opinion of O'Connor, Kennedy, and Souter, JJ.).
As a trial court in the trenches, this court must remain faithful to the rule of law and not to its own doubts—or convictions—about the correctness of established law. Thus, this court must now apply the principles announced in Casey to determine the constitutionality of the State of Alabama's recently enacted requirement that all doctors who provide abortions must have staff privileges to perform designated procedures at a local hospital, codified at 1975 Ala.Code § 26–23E–4(c).
In order to give “real substance to the woman's liberty,” id. at 869, 112 S.Ct. 2791, while at the same time fully honoring the State's ability to pursue, in good faith, its own acknowledged legitimate interests, this court concludes that it must hold that this requirement is unconstitutional. The evidence compellingly demonstrates that the requirement would have the striking result of closing three of Alabama's five abortion clinics, clinics which perform only early abortions, long before viability. Indeed, the court is convinced that, if this requirement would not, in the face of all the evidence in the record, constitute an impermissible undue burden, then almost no regulation, short of those imposing an outright prohibition on abortion, would.
The plaintiffs in this case, Reproductive Health Services, Planned Parenthood Southeast, and their administrators, operate abortion clinics in Montgomery, Birmingham, and Mobile, Alabama. They sued the Attorney General of Alabama, the District Attorneys for Montgomery, Jefferson, and Mobile Counties, and the State's Chief Medical Officer, challenging the constitutionality of Alabama's staff-privileges requirement, codified at 1975 Ala.Code § 26–23E–4(c). Jurisdiction is proper under 28 U.S.C. §§ 1331 (federal question) and 1343(a)(3)-(4) (civil rights). This court held a ten-day bench trial, and this matter is now before the court for resolution of the constitutionality of the staff-privileges provision.
Although the vast majority of those who oppose abortion do so in nonviolent ways, this court cannot overlook the backdrop to this case: a history of severe violence against abortion providers in Alabama and the surrounding region.
In 1993, a gunman shot and killed Dr. David Gunn, an Alabama resident who provided abortions throughout the State and in northern Florida. Dr. Gunn was the first doctor in the nation to be murdered for performing abortions. He became identifiable after his name, photo, and contact information were displayed on an anti-abortion poster at a rally in Montgomery. A second gunman later killed Dr. Gunn's replacement in northern Florida, along with his guard, and also wounded
that doctor's wife.
A few years later, in 1997, a person opposed to abortion climbed onto the roof of the West Alabama Women's Center in Tuscaloosa and dropped a lit flare into the air-conditioning unit. The flare lit the entire inside of the clinic on fire, causing over $400,000 of damage. The perpetrator of the arson was never identified.
The next year, a remote-control bomb was detonated outside New Woman All Women abortion clinic in Birmingham. The bomb killed a police officer standing outside the clinic and wounded
a nurse who had just walked out the clinic entrance. After a detailed investigation, the federal Bureau of Alcohol, Tobacco, and Firearms determined that the same individual responsible for the New Woman All Women bombing, Eric Robert Rudolph, also bombed another abortion clinic in the Atlanta area, a gay bar in Georgia, and, most notoriously, the 1996 Olympics.
In 2001, staff at the Pensacola clinic where Dr. Gunn had worked noticed a van circling the clinic. During a traffic stop, police noticed that there were a large number of semiautomatic weapons in the van but did not confiscate the weapons. Soon afterward, the van drove to Birmingham, where it began to circle the New Woman All Women clinic. The driver was identified as an abortion opponent.
Five or six years ago, a man intentionally drove through the front of the Tuscaloosa clinic, eventually fleeing and engaging police in a chase. Most recently, in 2012, a Pensacola clinic was firebombed.
Nationally, during the same period of time, other abortion doctors have been murdered, other clinics have been bombed and burned, and abortion providers have endured other, less dangerous forms of extreme harassment that exceed the boundaries of peaceful protest.
Against the backdrop of this history of violence, abortion providers and women seeking abortions in Alabama today live and work in a climate of extreme hostility to the practice of abortion. On a day-to-day basis, a provider or a patient sees this hostility when she opens the newspaper, drives by a group of protesters at a clinic, or learns that another piece of legislation concerning abortion has been enacted. Of course, the court does not imply that such activities are illegal, improper, or morally wrong; indeed, the right to express deeply held beliefs is of the utmost importance. But it is nonetheless necessary to recognize that such actions contribute to the climate surrounding the disputes in this case.
An Alabama resident reading the newspaper last year would have read that her elected officials were described as celebrating that they had “boldly defended the rights of the unborn,” AL.com Article, PX 30, as being “pleased with” the idea that a piece of legislation would “truly limit abortion in Alabama,” Decatur Daily Article, PX 31, and as believing that abortion regulations were “what God expects us to do,” Associated Press Article, PX 32. Similarly, the governing political party's platform recently stated: Alabama GOP 2013 Legislative Agenda, PX 29.
In fact, the State has enacted separate “abortion-related” legislation, id., in each of the last four years. See 2014 Ala. Acts 441 (extending informed-consent waiting period to 48 hours); 2013 Ala. Acts 79 (Women's Health and Safety Act); 2012 Ala. Acts 405 (Federal Abortion Mandate Opt Out Act); 2011 Ala. Acts 672 (Alabama Pain–Capable Unborn Child Protection Act).
The effect that this climate of violence, harassment, and hostility has on abortion providers in Alabama was palpable at the trial in this case. In their testimony, discussed at length below, the doctors described their daily fears for their professional livelihoods as well as their personal safety. One of the physicians described being followed and threatened by abortion opponents, and fearing for herself, her spouse, and her children every day that she goes to work in Alabama. Indeed, that fear was driven home to this court even in the conduct of the trial itself: in order to protect their identities, the doctors were referred to by pseudonyms throughout the case and would testify in open court only from behind a black curtain.1
In the context of this climate of hostility, the number of abortion clinics in the State has steadily declined. As of 2001, there were 12 clinics providing abortions in the State. Today, that number has dwindled to five.2
Nonetheless, it is significant that five clinics continue to provide legal abortions in the State of Alabama. The vast majority of abortions performed in Alabama occur in these five clinics. None occurs in private doctors' offices, but state records reveal a small number of abortions have been performed at hospitals.
The plaintiffs in this case operate three of the State's clinics. Reproductive Health Services operates a clinic in Montgomery, and Planned Parenthood operates one clinic in Birmingham and another in Mobile. Together these three clinics provided approximately 40 % of legal abortions...
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Planned Parenthood Se., Inc. v. Strange
...requirement of Alabama's Women's Health and Safety Act, 1975 Ala.Code § 26–23E–4(c). See Planned Parenthood S.E., Inc. v. Strange, 33 F.Supp.3d 1330, 2014 WL 3809403 (M.D.Ala.2014). Today, the court issues a supplemental opinion explaining how it had resolved certain evidentiary matters rel......