Planned Parenthood Se., Inc. v. Strange

• Decision Date: 25 March 2016
• Docket Number: CIVIL ACTION NO. 2:13cv405-MHT
• Citation: 172 F.Supp.3d 1275
• 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

172 F.Supp.3d 1275

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.

CIVIL ACTION NO. 2:13cv405-MHT

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

Signed March 25, 2016

Alexa Kolbi-Molinas, Andrew David Beck, Jennifer Dalven, Julia Heather Kaye, Renee Paradis, Susan Talcott Camp, 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, Skye Lynn Perryman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, M. Wayne Sabel, Sr., Sabel & Sabel, P.C., Randall C. Marshall, ACLU of Alabama Foundation, Inc., Montgomery, AL, for Plaintiffs.

Kyle A. Beckman, Laura Elizabeth Howell, Office of the Alabama Attorney General, Phillip Brian Hale, Bethany Lynn Bolger, Patricia Elaine Ivie, Alabama Department of Public Health, James William Davis, State of Alabama, Montgomery, AL, Margaret Lindsey Fleming, Santa Rosa Beach, FL, for Defendants.

OPINION

Myron H. Thompson

, UNITED STATES DISTRICT JUDGE

Previously, this court found that an Alabama statute that requires abortion providers to obtain staff privileges at a local hospital unconstitutionally restricts the rights of women seeking abortions in Alabama. Planned Parenthood Se., Inc. v. Strange(Strange III), 33 F.Supp.3d 1330, 1378 (M.D.Ala.2014)

(Thompson, J.); see also Planned Parenthood Se., Inc. v. Strange(Strange II), 9 F.Supp.3d 1272 (M.D.Ala.2014) (Thompson, J.) (summary judgment opinion laying the foundation for the application of the undue-burden test in this case); Planned Parenthood Se., Inc. v. Bentley(Strange I), 951 F.Supp.2d 1280 (M.D.Ala.2013) (Thompson, J.) (temporarily enjoining the State from enforcing the staff-privileges requirement). The court must now determine the appropriate legal remedy. First, it will examine whether, as the State argues, a phrase may be severed from within the provision, leaving a revised statute to take effect. The answer is no. Next, the court will determine whether facial or as-applied relief is appropriate. The answer is facial relief. Finally, the court will determine whether injunctive relief is necessary or declaratory relief will suffice. The answer is a declaration is adequate.

I. SEVERABILITY

The Women's Health and Safety Act contains a host of provisions regulating the administration of abortions in Alabama. Most of the law has already gone into effect. The text of section 4 of the Act reads as follows:

“(a) Only a physician may perform an abortion.

“(b) During and after an abortion procedure performed at an abortion or reproductive health center, a physician must remain on the premises until all patients are discharged. The discharge order must be signed by the physician. Prior to discharge from the facility, the patient shall be provided with the name and telephone number of the physician who will provide care in the event of complications.

“(c) Every physician referenced in this section shall have staff privileges at an acute care hospital within the same standard metropolitan statistical area as the facility is located that permit him or her to perform dilation and curettage

, laparotomy procedures, hysterectomy, and any other procedures reasonably necessary to treat abortion-related complications.”

2013 Ala. Acts 79 § 4, codified at 1975 Ala. Code § 26–23E–4

.¹ The Act imposes criminal liability on administrators of abortion clinics for violating the provision. See 2013 Ala. Acts 79 § 12(c), codified at 1975 Ala. Code § 26–23E–12(c).

Subsection 4(c) of the Act, which imposes a staff-privileges requirement on physicians who perform abortions in the State, is the only part of the law at issue here, and it has been stayed pending the disposition of this litigation. In a previous opinion, this court found that the subsection was unconstitutional as applied to the plaintiffs in this case. Strange III, 33 F.Supp.3d at 1380

. The court explained that the enforcement of the subsection would unduly burden women seeking abortions in Alabama by having the effect of closing the only abortion clinics in Alabama's three largest cities: Montgomery, Mobile, and Birmingham; these closures would impose significant “financial difficulties and psychological obstacles” on women forced to travel increased distances to obtain an abortion and impose “severe and even, for some ..., insurmountable obstacles” on women who would seek to obtain an abortion at those clinics. Id. at 1363.

Prior to issuing an opinion outlining its final relief, the court solicited the views of the parties on whether subsection 4(c) may be severed to cure the constitutional infirmity. The parties agree that the subsection is severable in its entirety from the remainder of the statute. However, they dispute whether certain words can be struck from it, leaving a revised provision in effect. The State argues that the subsection contains three parts, each of which is severable from the others. Those are that a doctor must hold staff privileges (1) at an acute-care hospital (2) within the same metropolitan statistical area (3) that enable him or her to perform certain procedures. The State contends that the court has found constitutional infirmity only as to the requirement that staff privileges be held locally. Therefore, the State asks the court to strike only the words requiring that the privileges be held within the same metropolitan statistical area as the abortion facility, leaving the remainder of the subsection to go into effect. The plaintiffs respond that no portion of the subsection is severable.

The State's request would require the court to excise the words “within the same standard metropolitan statistical area as the facility is located” from the midst of the single sentence that comprises subsection 4(c). After striking this language, the subsection would read as follows:

“Every physician referenced in this section shall have staff privileges at an acute care hospital that permit him or her to perform dilation and curettage

, laparotomy procedures, hysterectomy, and any other procedures reasonably necessary to treat abortion-related complications.”

The court rejects the State's argument that subsection 4(c)'s single sentence is divisible into three distinct fragments, each operating independently of the others. Rather, as explained below, the requirement that the physician have staff privileges at a local hospital is an essential element of the subsection. Without it, the revised subsection would take on a strikingly different meaning.

A. Guiding Principles of Severability

Severability is a matter of state law, Leavitt v. Jane L., 518 U.S. 137, 139, 116 S.Ct. 2068, 135 L.Ed.2d 443 (1996)

, and the Alabama Supreme Court has developed rules to guide courts in deciding whether to sever parts from a larger legislative act. Under Alabama law, “[t]he guiding star in severability cases is legislative intent.” Beck v. State, 396 So.2d 645, 658 (Ala.1980).

The court must therefore determine whether the statute can be divided into parts that are “wholly 7 independent of each other,” or whether “the legislature intended [the invalid and remaining parts] as a whole.” King v. Campbell, 988 So.2d 969, 982 (Ala.2007)

. If the remaining portion of an act is “competent to stand without the invalid [portion],” id. at 983, the court may save the act by severing the offending portion. If, by contrast, the various parts of a statute are “so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently ... all the provisions which are thus dependent, conditional, or connected [to the invalid part] must fall with them.” Id. at 982

. Evaluating the importance of the invalid portion of the statute within the legislature's “general plan” for the law will assist in this determination. Id. (explaining that an invalid portion of a law should be severed to save the remaining provisions “unless the invalid portion is so important to the general plan and operation of the law in its entirety as reasonably to lead to the conclusion that it would not have been adopted if the legislature had perceived the invalidity of the part so held to be unconstitutional”). The court will now apply these principles to determine whether the metropolitan-area requirement is severable.

B. Evidence of Legislative Intent

This court has not previously decided what the Alabama Legislature intended in enacting subsection 4(c). As in its prior opinion, the court will assume for purposes of the current analysis that the purported legislative purposes argued by the State were the actual legislative intent behind the subsection.

Throughout the course of this litigation, the State has contended that the legislature had two purposes in enacting subsection 4(c). First, the State has asserted that the legislature's primary goal for the subsection was ensuring continuity of care, and that “the requirement furthers ‘continuity of care’ by improving care for women who experience complications and fostering improved follow-up care in general.” Strange III, 33 F.Supp.3d at 1363

. Second, the State has argued “that staff privileges serve a credentialing function, both as an initial screening mechanism and by providing ongoing review of physician quality.” Id.

As explained above, the State proposes that subsection 4(c) be modified to read as follows:

“Every physician referenced in this section shall have staff privileges at an acute care hospital that permit him or her to perform dilation and curettage

, laparotomy procedures, hysterectomy, and any other procedures reasonably...