Robinson et al v. Marshall, No. 2:2019cv00365 - Document 68 (M.D. Ala. 2019)

Court Description: OPINION. Signed by Honorable Judge Myron H. Thompson on 10/29/19. (djy, )
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Robinson et al v. Marshall Doc. 68 Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 1 of 17 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, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:19cv365-MHT (WO) OPINION 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, abortion. the Act imposes a near-total ban on It is set to take effect on November 15, 1. Because the current codification of Ala. Act No. 2019-189 at 1975 Ala. Code § 26-23H is subject to the editorial action of the Code Commissioner, the codification is tentative. Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 2 of 17 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 the of their patients, claiming that Act is unconstitutional under the Due Process Clause of the Fourteenth § 1983, Amendment, because as it enforced violates through their 42 U.S.C. 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. U.S.C. This court’s jurisdiction is proper under 28 § 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 2 Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 3 of 17 pre-viability abortion. I. To show LEGAL STANDARDS 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 likelihood of success must that show the to on Act substantive-due-process demonstrate a the the is rights 3 merits, likely of to substantial plaintiffs violate individuals the seeking Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 4 of 17 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 (1992) (plurality opinion). and then basic The Supreme Court “has determined redetermined protection to that the the woman’s Constitution right to offers choose.” Stenberg v. Carhart, 530 U.S. 914, 921 (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. opinion). Casey, 505 U.S. at 876–79 (plurality “An undue burden exists, and therefore a 4 Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 5 of 17 provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking viability.” an abortion Id. at 879. before the fetus attains 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, 136 S. Ct. 2292, 2309 (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 interests viability. are not “Before strong prohibition of abortion....” viability, enough to the State’s support a Casey, 505 U.S. at 846 (opinion of the Court); see Gonzales v. Carhart, 550 U.S. 124, 146 (2007). This bright-line rule governs bans, rather than mere regulations, of pre-viability abortion. 5 Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 6 of 17 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. case law supports the plaintiffs’ Here, clear 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 patients.2 argue that of their See Complaint (doc. no. 1) at 21. They the sue Act substantive-due-process under the Fourteenth in part on threatens rights, Amendment behalf their which to the are patients’ guaranteed United States 2. The plaintiffs also bring their claims on their own behalves. See Complaint (doc. no. 1) at 5-7. Because of clear precedent regarding third-party standing, however, the court reserves consideration of possible alternative grounds. 6 Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 7 of 17 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; Casey, 505 U.S. at 845 (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). cases emphasize “the central role of the These 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. similarly 379, 387 supports (1979). standing 7 Such for the a relationship plaintiffs at Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 8 of 17 bar--all are intimately involved in patients’ decisions regarding abortion generally Whole and Woman’s reproductive Health, 136 health. S. Ct. See 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 8 right to obtain a Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 9 of 17 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 to does fetus. so without regard the viability of the See id. This fact alone makes an injunction appropriate. 3. At this stage, although the plaintiffs are challenging the entire statute, the court considers only the Act’s applications to pre-viability abortion. The plaintiffs acknowledge that “a preliminary injunction as to pre-viability abortions is appropriate to preserve the status quo and prevent irreparable harm.” Plaintiff’s Repl. Mem. (doc. no. 66) at 2. 9 Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 10 of 17 As stated previously, banning abortion before viability violates Supreme Court precedent. See Casey, 505 U.S. at 879 (plurality opinion) (“[A] State may not prohibit any woman terminate from her making pregnancy the ultimate before decision viability.”); Woman’s Health, 136 S. Ct. at 2320. to Whole No alleged state interest can overcome this clear mandate. See Casey, 505 U.S. at 878 (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 10 Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 11 of 17 weeks); Preterm-Cleveland v. Yost, No. 1:19-CV-00360, 2019 WL 2869640 (S.D. Ohio 2019) (Barrett, J.) (granting a preliminary injunction of enforcement of a ban on abortion pregnancy); EMW care at Women’s and after Surgical six Ctr., weeks of 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 plaintiffs have shown a substantial likelihood of success on the merits of their claim. B. Irreparable Harm The imminent. plaintiffs’ alleged injury is concrete and Enforcement of the ban would yield serious and irreparable harm, violating the right to privacy 11 Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 12 of 17 and preventing women from obtaining abortions in Alabama.4 First, any ongoing violation of the constitutional right to privacy constitutes “irreparable injury.” See Ne. Fla. Chapter of Ass’n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990). “Invasions of privacy ... [can]not be compensated for by monetary damages.” Id. (citations omitted). The nature of the violation thus counsels in favor of an injunction. Even apart from this general principle, the enforcement of the Act would irreparably harm those who contemplate or seek, pre-viability abortion. but cannot lawfully obtain, a See Roe v. Wade, 410 U.S. 113, 153 (1973) (“The detriment that the State would impose 4. The plaintiffs argue, and the court agrees, that the defendant has conceded both “the existence of per se irreparable harm and that the public interest weighs in favor of the injunction” because neither was explicitly addressed in the defendant’s response. See Plaintiff’s Repl. Mem. (doc. no. 66) at 2 n.2. The court nonetheless discusses these factors. 12 Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 13 of 17 upon the pregnant woman altogether is apparent.”). substantial costs on women, by denying this choice A near-total ban imposes including those who are unable to obtain an abortion and those who “desperately seek to exercise their ability to decide whether to have a child” and thus “would take unsafe measures to end their pregnancies.” Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330, 1363 (M.D. Ala. 2014) (Thompson, J.). Finally, the law’s limited exceptions do not alter the court’s conclusion. “[A] medical exception cannot save an otherwise unconstitutional ban.” W. Alabama Women’s Ctr. v. Miller, 299 F. Supp. 3d 1244, 1283 (M.D. Ala. 2017) (Thompson, J.), aff’d sub nom. W. Alabama Women’s Ctr. v. Williamson, 900 F.3d 1310 (11th Cir. 2018), cert. denied sub nom. Harris v. W. Alabama Women’s Ctr., 139 S. Ct. 2606 (2019); see also Casey, 505 U.S. State may at 879 not (plurality prohibit any 13 opinion) woman (noting from that a obtaining a Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 14 of 17 pre-viability exceptions abortion are made “[r]egardless for particular of whether circumstances”). This is especially so when the exceptions are narrow, arguably ambiguous, or validated post-hoc. See Miller, 299 F. Supp. 3d at 1283. The court thus finds that, if not enjoined, the Act’s near-total ban on abortion would impose a substantial and irreparable harm, leaving many patients without recourse. This factor, too, points toward a preliminary injunction. C. The Balance of Hardships The balance of hardships plaintiffs.5 Because pre-viability abortions, the tilts Act the in favor prohibits outcome is state interest can prevail in this context. of the nearly all simple: no See Casey, 505 U.S. at 860 (opinion of the Court) (“[V]iability 5. Again, the defendant concedes as much. See Def.’s Opp’n (doc. no. 64) at 6 (noting that “the balance of the equities supports a preliminary injunction as applied to pre-viability abortions”). 14 Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 15 of 17 marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.”). Moreover, because the law will almost certainly be found unconstitutional, slight: Alabama has any “no cost to the legitimate State is interest in enforcing an unconstitutional [law].” KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). The balance of equities favors an injunction. D. The Public Interest Fourth, and finally, a furthers the public interest. preliminary injunction A preliminary injunction prohibiting enforcement of the Act will preserve the status quo, allowing the court to make a full ruling on the merits of the case without subjecting the plaintiffs, their patients, or the public to the ban’s potential impact. See generally Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1101 n.13 (11th Cir. 15 Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 16 of 17 2004) (noting that an injunction entered to preserve the status quo pending a final resolution is “perhaps the textbook definition of a preliminary injunction”). Further, “the public interest is promoted by the robust enforcement of constitutional rights.” Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., 698 F.3d 885, 896 (6th Cir. 2012). In contrast, the public has no interest in enforcing an unconstitutional statute, see KH Outdoor, 458 F.3d at 1272, particularly when “the legislation seems designed, as here, as a protest against Supreme Court decisions.” Reprod. Health Servs. of Planned Parenthood of St. Louis Region, Inc. v. Parson, 389 F. Supp. 3d 631, 637 (W.D. Mo. 2019) (Sachs, J.). injunction supports the public A preliminary interest, and so the fourth factor counsels in favor of an injunction. III. CONCLUSION Alabama’s abortion ban 16 contravenes clear Supreme Case 2:19-cv-00365-MHT-SMD Document 68 Filed 10/29/19 Page 17 of 17 Court precedent. individual to It violates privacy, to make personal dignity and autonomy.” (opinion of the Court). women to act decisions.” in the right “choices of central an to Casey, 505 U.S. at 851 It diminishes “the capacity of society, Id. at 860. and to make reproductive It defies the United States Constitution. The court will, therefore, enter an appropriate order preliminarily enjoining enforcement of the Act as applied to pre-viability abortion. Further, the court, in its discretion, will waive the bond requirement of Fed. R. Civ. Telecommunications P. v. 65(c). MCIMetro See Access BellSouth Transmission Servs., LLC, 425 F.3d 964, 971 (11th Cir. 2005). DONE, this the 29th day of October, 2019. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE