Robinson v. Attorney Gen., No. 20-11401-B

• Decision Date: 23 April 2020
• Docket Number: No. 20-11401-B
• Citation: 957 F.3d 1171
• Parties: Yashica ROBINSON, M.D., on behalf of themselves, their patients, physicians, clinic administrators, and staff, Alabama Women’s Center, on behalf of themselves, their patients, physicians, clinic administrators, and staff, Reproductive Health Services, on behalf of themselves, their patients, physicians, clinic administrators, and staff, West Alabama Women’s Center, on behalf of themselves, their patients, physicians, clinic administrators, and staff, Plaintiffs - Appellees, Planned Parenthood Southeast Inc., on behalf of themselves, their patients, physicians, clinic administrators, and staff, Plaintiff, v. ATTORNEY GENERAL, State of Alabama, Scott Harris, M.D., in his official capacity as the State Health Officer at the Alabama State Department of Public Health, Defendants - Appellants, Robert L. Broussard, in his official capacity as District Attorney for Madison County, et al., Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

957 F.3d 1171

Yashica ROBINSON, M.D., on behalf of themselves, their patients, physicians, clinic administrators, and staff, Alabama Women’s Center, on behalf of themselves, their patients, physicians, clinic administrators, and staff, Reproductive Health Services, on behalf of themselves, their patients, physicians, clinic administrators, and staff, West Alabama Women’s Center, on behalf of themselves, their patients, physicians, clinic administrators, and staff, Plaintiffs - Appellees,Planned Parenthood Southeast Inc., on behalf of themselves, their patients, physicians, clinic administrators, and staff, Plaintiff,

v. ATTORNEY GENERAL, State of Alabama, Scott Harris, M.D., in his official capacity as the State Health Officer at the Alabama State Department of Public Health, Defendants - Appellants,Robert L. Broussard, in his official capacity as District Attorney for Madison County, et al., Defendants.

No. 20-11401-B

United States Court of Appeals, Eleventh Circuit.

April 23, 2020

Alexa Kolbi-Molinas, Andrew D. Beck, American Civil Liberties Union Foundation, New York, NY, Carrie Y. Flaxman, Planned Parenthood Federation of America, Washington, DC, Susan Lambiase, Planned Parenthood Federation of America, New York, NY, Randall C. Marshall, American Civil Liberties Union, Montgomery, AL, for Plaintiff-Appellees.

Edmund Gerard LaCour, Jr., Alexander Barrett Bowdre, Brad A. Chynoweth, James W. Davis, Steven Marshall, Brenton M. Smith, Alabama Attorney General's Office, Constitutional Defense Division, Montgomery, AL, for Defendant-Appellant Attorney General.

Edmund Gerard LaCour, Jr., Alexander Barrett Bowdre, Brad A. Chynoweth, James W. Davis, Steven Marshall, Brenton M. Smith, Alabama Attorney General's Office, Constitutional Defense Division, Montgomery, AL, Dana H. Billingsley, Phillip Brian Hale, Alabama Department of Public Health, Office of General Counsel, Montgomery, AL, for Defendant-Appellant Scott Harris.

Matthew James Clark, Foundation for Moral Law, Montgomery, AL, Marcia S. Cohen, Marcia S. Cohen, PA, St. Petersburg, FL, Wallace Mills, Wallace D. Mills, PC, Montgomery, AL, Elizabeth Baker Murrill, Attorney General's Office, Department of Justice, Baton Rouge, LA, Robert D. Segall, Copeland Franco Screws & Gill, PA, Montgomery, AL, for Amicus Curiae.

Edward Lawrence White, American Center for Law and Justice, Ann Arbor, MI, for American Center for Law and Justice.

Elizabeth Baker Murrill, Attorney General's Office, Department of Justice, Baton Rouge, LA, for States of Alaska, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.

John Edward Hall, Covington & Burling, LLP, Washington, DC, for National Organization for Women Foundation, Feminist Majority Foundation, Legal Momentum, National Black Womens Reproductive Justice Agenda, Jewish Women International, Civil Liberties and Public Policy Program, In Our Own Voice, Lawyers Committee for Civil Rights under Law, Leadership Conference on Civil and Human Rights, National Abortion Federation, National Advocates for Pregnant Women, National Alliance to End Sexual Violence, National Association for the Advancement of Colored People, National Coalition Against Domestic Violence, National Council of Jewish Women, National Domestic Violence Hotline, National Network to End Domestic Violence, Sistersong Women of Color Reproductive Justice Collective, Southern Poverty Law Center, Spark Reproductive Justice Now!, Inc., Transformative Justice Coalition, and Womens Law Project.

Anisha S. Dasgupta, NY Office of the Attorney General, Division of Appeals and Opinions, New York, NY, for States of New York, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and District of Columbia.

Nicole A. Saharsky, Mayer Brown, LLP, Washington, DC, for American College of Obstetricians and Gynecologists, American Academy of Family Physicians, American Academy of Nursing, American Academy of Pediatrics, American College of Osteopathic Obstetricians and Gynecologists, American College of Physicians, American Psychiatric Association, American Society of Reproductive Medicine, American Urogynecologic Society, National Association of Nurse Practitioners in Women’s Health, North American Society for Pediatric and Adolescent Gynecology, Society for Adolescent Health and Medicine, Society of Family Planning, Society for Maternal-Fetal Medicine, Society of Gynecologic Surgeons, and Society of OB/GYN Hospitalists.

On Appeal from the United States District Court for the Middle District of Alabama

BEFORE MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.

JORDAN, Circuit Judge.

The Alabama Attorney General, Steve Marshall, and the Alabama State Health Officer, Dr. Scott Harris, move for a stay of a preliminary injunction that enjoins certain applications of a public health order issued in response to the COVID-19 pandemic in Alabama. For the reasons which follow, we deny the motion for a stay, and in a separate order we expedite the appeal.

I

On March 13, 2020, the Governor of Alabama declared a state public health emergency due to the outbreak of the novel coronavirus known as COVID-19. Dr. Harris subsequently issued a series of orders to combat the spread of the virus. One of these orders, published on March 27, 2020, mandated the postponement of "all dental, medical, or surgical procedures," with two exceptions: (a) those "necessary to treat an emergency medical condition;" and (b) those "necessary to avoid serious harm from an underlying condition or disease, or necessary as a part of a patient’s ongoing and active treatment." Initially, the order was to remain in effect until April 17, 2020, but on April 3, 2020, Dr. Harris issued an amended order which is substantively identical to the March 27 order but applies until April 30, 2020. Both orders provide that they may be extended or relaxed depending on the circumstances. A violation of the March 27 or April 3 orders constitutes a misdemeanor. See Ala. Code § 22-2-14.

The plaintiffs—Dr. Yashica Robinson, the Alabama Women’s Center, Reproductive Health Services, and the West Alabama Women’s Center—are abortion providers in Alabama. After Dr. Harris issued the March 27 order, counsel for the plaintiffs reached out to the Alabama Department of Public Health to determine whether the order would be applied to their clinics. On March 29, the chief counsel to the Attorney General stated in response: "[W]e are unable to provide ... a blanket affirmation that abortions will, in every case, fall within one of the exemptions." D.E. 73 at 48 ¶¶ 14, 71 (attachment 7). Because they were concerned about being prosecuted for exercising their medical judgment, on March 30 the plaintiffs sought a temporary restraining order preventing enforcement of the March 27 order as applied to pre-viability abortions.¹

The district court held a hearing on the motion for a TRO that same day. At the hearing, counsel for the state said that the March 27 order applies to abortions, and that abortion procedures do not fall into the enumerated exceptions unless they are required to protect the life or health of the mother. See D.E. 98 at 20–21. Based on these representations, the district court issued a TRO. See D.E. 83.

Two days later, on April 1, the state filed a motion to dissolve the TRO in which it clarified that during the TRO hearing it "did not mean to suggest" that protecting the life or health of the mother "are the only circumstances where an abortion would fit within one of the two exceptions." D.E. 89 at 26, n.30. In response, the district court held another hearing on April 3 to discuss the state’s revised interpretation of the March 27 order. During this hearing, the district court understood the state to be making several clarifications as to the scope of the March 27 order and its exceptions. See D.E. 137 at 10–12. These clarifications indicated, in pertinent part, that an abortion could go forward if:

• as with all other medical procedures, a doctor determines that one of the exceptions in the order applies;

• a healthcare provider determines that a patient will lose her right to lawfully seek an abortion in Alabama based on the order’s mandatory delays, given that under Alabama law, abortion becomes illegal when the probable postfertilization age of the fetus is at least 20 weeks, see Ala. Code § 26-23B-5 ; or

• a healthcare provider determines that an abortion may not be delayed "in a healthy way."

See D.E. 111 at 10–13. The district court adopted these clarifications in an order staying the TRO in part. See id. It did so to make the state’s clarifications binding. See D.E. 137 at 13.

As noted above, on April 3 Dr. Harris issued an amended order which is substantively identical to the March 27 order but applies through April 30. On April 5, the state submitted additional clarifications as to how it interpreted the April 3 order. The state clarified that:

• "a healthcare provider’s assertion that a procedure meets one of the exceptions [in the order] is not conclusive proof that the procedure meets one of the exceptions";

• although "[t]he fact that a delay would render a procedure unavailable could be relevant to determining whether it is currently necessary to perform the procedure[,] ... any healthcare provider would still need to make an individualized determination for his or her patient as to whether losing the ability to have a procedure performed would cause serious harm to the patient"; and

• while a procedure may be performed if it cannot be delayed in a "healthy way," the risk to a patient’s health must be "sufficiently ‘serious .’ "

See D.E. 120 at 2–3 (emphasis added).

The next day, however, during the hearing on the plaintiffs’ motion for a preliminary injunction, Dr. Harris changed the state’s interpretation...