Robinson et al v. Marshall, et al., No. 2:2019cv00365 - Document 111 (M.D. Ala. 2020)

Court Description: OPINION AND ORDER directing that the defs' 95 MOTION to Stay enforcement of the 83 Temporary Restraining Order is GRANTED to the extent that the court adopts its order the clarifications agreed upon by the defs regarding the applic ation of the March 27 order to the plfs; the court does not, and cannot, address whether to grant or deny the defendants' 87 motion to dissolve the temporary restraining order since the court no longer has jurisdiction over the temporary r estraining order. However, as the court notes above, were the temporary restraining order to be remanded back to this court, the court would vacate it and impose relief to the extent indicated in today's order; further ORDERING that the hearing on the 73 motion for preliminary injunction will proceed on Monday, April 6, 2020, at 10:00 a.m., by videoconferencing. Signed by Honorable Judge Myron H. Thompson on 4/3/2020. (Attachments: # 1 civil appeals checklist). Furnished to calendar group, AG & Video conference group.(djy, )
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Robinson et al v. Marshall, et al. Doc. 111 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION 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, et al., Defendants. CIVIL ACTION NO. 2:19cv365-MHT (WO) OPINION AND ORDER This case challenges the application of the State Health Officer’s Suspending “Order Certain of Public the State Gatherings Health Due to Officer Risk of Infection by COVID-19,” published on March 27, 2020, to abortion providers and clinics. On March 30, this court entered a temporary restraining order enjoining enforcement of the March 27 order as to those providers and clinics, but it promised to reconsider upon the Dockets.Justia.com submission of the defendants’ written arguments. When the restraining immediate court order, the injunction abortion in entered its initial plaintiffs prohibiting Alabama--that is, had the they temporary sought delay sought of an any temporary relief broad enough to maintain the status quo. The court, concerned that the March 27 order could be read to effect a ban on abortions throughout the state, enjoined its enforcement. Based on the current record, however, the court now finds that its initial swept too broadly. temporary restraining order At an on-the-record hearing held by teleconference earlier today, the defendants provided numerous clarifications to the March 27 order that mitigated the court’s most immediate concerns about the order. While some postponements of abortions will undoubtedly occur, the March 27 order, as clarified by the Attorney call, allows General’s providers, Office during exercising 2 the conference their reasonable medical judgment, to protect the right to terminate a pregnancy and the safety of their patients. also acknowledges patients must that share abortion the providers societal burden But it and their caused by COVID-19. Now before the court are the defendants’ motion to stay enforcement pending appeal of and the temporary their restraining motion temporary restraining order. to order dissolve the For the reasons explained below, the defendants’ motion to stay will be granted to the extent that the court adopts as an order the clarifications described later in this order. the motion notice of to dissolve, appeal the filed with parties agree the Eleventh As to that the Circuit divests this court of jurisdiction over the defendants’ motion See to dissolve generally Green the temporary Leaf Nursery restraining v. E.I. order. DuPont De Nemours & Co., 341 F.3d 1292, 1309 (11th Cir. 2003) (“The filing of a notice of 3 appeal is an event of jurisdictional significance--it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” (internal quotation marks and citations omitted)). However, were the temporary restraining order to be remanded back to this court, the court would vacate it and impose relief to the extent indicated in today’s order. I. Background In December 2019, a novel coronavirus, which causes the disease now known as COVID-19, began to spread quickly around the world. See Declaration of State Health Officer (doc. no. 88-15) at 2 ¶ 2. 2020, the President of the United On March 13, States and the Governor of the State of Alabama declared the COVID-19 outbreak both a national and state emergency. at 2-3 ¶¶ 4, 8. 4 See id. Following these declarations, Alabama’s State Health Officer issued a series of orders suspending certain public gatherings. See State Health Order of March 88-4) 19, initially 2020 (doc. delayed “all no. elective at 2. dental procedures” from March 20 until April 6. 6, 9. The and order medical Id. at 4 ¶¶ At the time, an assistant general counsel for the Alabama Department of Public Health confirmed to the plaintiffs’ counsel that the order would not be applied to their abortion clinics. See Declaration of Plaintiffs’ Counsel (doc. no. 73) at 46 ¶ 4. As a result, the plaintiffs continued to perform abortions. See Declaration of Yashica Robinson, M.D. (doc. no. 73) at 20 ¶ 37; Declaration of Gloria Gray (doc. no. 73) at 36-37 at ¶¶ 15, 17. On March 27, the State Health Officer substantially revised the order, postponing “all dental, medical, or surgical procedures,” with two exceptions: (a) those “necessary to treat an emergency medical condition” and 5 (b) those “necessary to avoid serious harm from an underlying condition or disease, or necessary as part of a patient’s ongoing and active treatment.” State Health Order of March 27, 2020 (doc. no. 88-1) at 6 ¶ 7 (emphasis added). The March 27 order expires on April 17 at 5:00 p.m., by which time and date the State Health Officer relax it. will determine Id. at 6 ¶ 10. whether to extend or While it is in force, the defendant Attorney General of Alabama has determined that a violation of the March 27 order is punishable as a misdemeanor and subject to a fine. See Guidance for Law Enforcement (doc. no. 88-12) at 2. On March 30, after the plaintiffs’ counsel were unable to satisfactorily confirm the applicability of the March 27 order to abortions, see Declaration of Plaintiffs’ Counsel (doc. no. 73) at 47-48 ¶¶ 9-14, the plaintiffs filed a motion for a temporary restraining order and enforcement preliminary of the injunction, March 27 6 order seeking against to enjoin abortion providers and abortion clinics. Later that day, during an emergency on-the-record hearing, counsel for the defendants seemed to suggest in response to the court’s attempt at clarification that the only exception for abortions under the March 27 order would be limited to protecting the life and health of the mother. See April 2, 2020 Telephone Conference (doc. no. 98) at 20 ¶¶ 22-25, 21 ¶ 1, 22 ¶¶ 6-10. entered a temporary application of the restraining March 27 order order The court enjoining against the abortion providers until April 13, in part based upon such an understanding. defendants As 48 hours requested, to respond the to court the gave the plaintiffs’ motion for a preliminary injunction and indicated that, upon receipt of the defendants’ response, would immediately reconsider its decision. set the motion for a preliminary the court The court injunction for a hearing on April 6, one week before the expiration of the temporary restraining order. 7 Defendants subsequently clarified in their written submissions that they “did not mean to suggest that [protecting the life or health of the mother] are the only exceptions” for allowing an performed under the March 27 order. abortion to be Defs.’ Br. (doc. no. 89) at 26 n.30. At the same time, the State Health Officer in explained his declaration that while “abortions constitute ‘procedures’” under the order and that “no particular type of ... procedure categorically fits within one of the two exceptions,” the determination of whether an exception applies “should be made by a doctor using reasonable medical judgment based upon circumstances.” his or her patient’s individual Declaration of State Health Officer (doc. no. 88-15) at 6 ¶¶ 22-23. Along with its brief and evidentiary submissions, the defendants filed a motion to dissolve the temporary restraining order late in the day on April 1. On April 2, the court set the motion for a hearing the following 8 morning at 9:00 a.m. filed a notice In the interim, the defendants of appeal and a motion to stay enforcement of the temporary restraining order pending appeal. The court set the motion to stay for the 9:00 a.m. hearing as well. The hearing has now been held, and the court is now reconsidering its order in light of the motion to stay. II. Discussion As discussed earlier, when the court entered the initial temporary restraining order, the plaintiffs had sought an immediate injunction that would prevent the order from mandating the postponement of any abortion in Alabama. order could abortions The court, concerned that the March 27 be read to throughout effect the a temporary state, ban enjoined on its enforcement for 14 days. Based on the current record, however, the court now finds that its initial temporary 9 restraining order swept too broadly. At an on-the-record hearing held by teleconference earlier today, the defendants provided numerous clarifications to the March 27 order. clarifications concerns alleviated underlying restraining order. the the court’s issuance While of some most its These serious temporary postponements of abortions will undoubtedly occur, the clarified order allows providers, exercising their reasonable medical judgment, to protect their patients’ right to terminate a pregnancy and the safety of their patients. also recognizes that abortion providers and But it their patients, like all residents of Alabama, must adapt to the exigent circumstances caused by the global pandemic. As the court understands them, the defendants’ clarifications provide that: (1) In general, for an abortion, “[l]ike any other procedure, a doctor should examine his or her patient, consider all circumstances, and determine whether one 10 of the[] exceptions [to the March 27 order] applies. If they do, the procedure can go forward.” April 3, 2020 Telephone Conference Rough Draft (R.D.) Transcript at 46 ¶¶ 13-16; see also Declaration of State Health Officer (doc. no. 88-15) at 6 ¶ 23 (reasonable medical judgement standard). (2) Specifically, determines, on a if a case-by-case healthcare basis in his provider or her reasonable medical judgment, that a patient will lose her right to lawfully seek an abortion in Alabama based on the March 27 order’s mandatory delays (that is, that the patient will not be able to seek an abortion before the probable postfertilization age of the fetus is 20 weeks or more1), then the abortion may be performed without delay pursuant to the exceptions in the March 27 order. See April 3, 2020 R.D. Tr. at 1. Plaintiffs confirmed that at least 1-2 women would lose their right to an abortion (based upon the 20-week limitation under Alabama law) if their procedures were delayed until April 18 or later. See April 3, 2020 R.D. Tr. at 17 ¶ 1-5. 11 32 ¶ 9 - 34 ¶ 8. The provider may examine his or her patient as needed to make the necessary determination regarding the age of the fetus. See id. at 39 ¶¶ 11-19. (3) Further, a healthcare provider may also examine his or her patient to assess whether or not an abortion can “be delayed for two weeks in a healthy way” during the enforcement of the March 27 order, which expires in two weeks question); answer). on April see id. 17. at Id. at 39 ¶ 15-19 39 ¶ 14 (defense (court’s counsel’s If a healthcare provider determines, again on a case-by-case basis in his or her reasonable medical judgment, that the abortion cannot “be delayed ... in a healthy way,” id. at 39 ¶ 14, then the abortion may be performed without delay pursuant to the exceptions in the March 27 order. (4) The reasonable medical judgment of abortion providers will be treated with the same respect and deference as the judgments 12 of other medical providers. The decisions will not be singled out for adverse consequences because the services in question are abortions or abortion-related. See id. at the court’s 31 ¶ 24 - 32 ¶ 8. If either party disagrees with understanding of the defendants’ clarifications, they are to submit their concerns by 9:00 a.m. on April 6. Because they were made in coordination with the chief law enforcement officer of the State, the court understands and expects that the clarifications (and this order codifying them) will be communicated to and followed by law enforcement actors throughout the State. Finally, the court notes that it will reconsider this order upon any evidence that, under the auspices of the March 27 order, investigations are proceeding in bad faith against abortion providers acting in their reasonable singled medical out for judgment, adverse or that treatment 13 they by are being enforcement authorities. Also, the above analysis depends upon the limited duration of the March 27 order, which lasts until April 17. court will If the March 27 order is extended, the consider whether relief is warranted. additional or different Relatedly, the court’s decision today is based on the need to maintain the status quo during the limited period of the temporary restraining order. In other words, additional relief could be warranted should the current crisis last for a longer period of time. *** For the above reasons, it is ORDERED that the defendants’ motion to stay enforcement of the temporary restraining extent that order (doc. the court no. 95) adopts is granted to the as its order the clarifications agreed upon by the defendants regarding the application plaintiffs. of the March 27 order to the The court does not, and cannot, address 14 whether to grant or deny the defendants’ motion to dissolve the temporary restraining order (doc. no. 87) since the court no longer has jurisdiction over the temporary restraining order. However, as the court notes above, were the temporary restraining order to be remanded back to this court, the court would vacate it and impose relief to the extent indicated in today’s order. It is further ORDERED that the hearing on the motion for a preliminary injunction (doc. no. 73) will proceed on Monday, April 6, 2020, at 10:00 a.m. by videoconferencing. DONE, this the 3rd day of April, 2020. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE