reiterating that “[b]efore viability, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy” (internal citations and quotation marks omitted)
How later courts described this case
- reiterating that “[b]efore viability, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy” (internal citations and quotation marks omitted)
- affirming an injunction despite a non-binding clarification from the State
- holding that “invalidating the statute entirely is not always necessary or justified” when “lower courts may be able to render narrower declaratory and injunctive relief”
- noting that “[t]he Supreme Court has recognized that fundamental rights include those guaranteed by the Bill of Rights as well as certain ‘liberty’ and privacy interests,” which include the right “to abortion” (internal citation marks omitted)
Written by the judges who cited it.
The opinion
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, )
) CIVIL ACTION NO.
v. ) 2:19cv365-MHT
) (WO)
STEVEN MARSHALL, in his )
official capacity as )
Alabama Attorney General, )
et al., )
)
Defendants. )
OPINION
In December 2019, a novel coronavirus, which causes
the disease now known as COVID-19, began to spread
quickly around the world. On March 13, 2020, the
President of the United States and the Governor of the
State of Alabama declared the COVID-19 outbreak both a
national and state emergency. Following these
declarations, Alabama’s State Health Officer issued a
series of orders suspending certain public gatherings.
One of these orders, published on March 27, 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 part of a patient’s
ongoing and active treatment.” State Health Order of
March 27, 2020 (doc. no. 88-1) at 6 ¶ 7.
Plaintiffs Yashica Robinson, M.D., Alabama Women’s
Center, Reproductive Health Services, and West Alabama
Women’s Center are abortion providers in Alabama. They
seek in this ongoing litigation to enjoin enforcement
against them of the State Health Officer’s March 27
“Order of the State Health Officer Suspending Certain
Public Gatherings Due to Risk of Infection by COVID-19,”
extended (with identical language as relevant here) on
April 3.1 See State Health Order of April 3, 2020 (doc.
1. This ongoing litigation was initiated in May 2019
to challenge an Alabama statute that imposed criminal
liability on abortion providers for nearly all abortions,
completed or attempted, regardless of fetal viability.
2
no. 109-1). The defendants are Steven Marshall, the
Attorney General, and Dr. Scott Harris, the State Health
Officer.2
For the reasons described below, the plaintiffs’
motion for a preliminary injunction will be granted in
See Robinson v. Marshall, 415 F. Supp. 3d 1053 (M.D. Ala.
2019) (Thompson, J.). Because the statute contravened
clear Supreme Court precedent, the court preliminarily
enjoined enforcement of the statute as applied to
pre-viability abortion. See id. On March 30, 2020, the
plaintiffs then moved to supplement their complaint to
challenge the March 27 state health order, and the court
granted the motion.
2. Additional defendants are the district attorneys
of the four counties where the plaintiff clinics are
located, the Chairman of the Alabama Board of Medical
Examiners, and the Chairman of the Medical Licensure
Commission of Alabama. See First Amended Complaint (doc.
no. 79) at 8-12 ¶¶ 20-28. These defendants were named
in the original complaint in this case, see Complaint
(doc. no. 1) at ¶¶ 18-25, but were voluntarily dismissed
without prejudice after they agreed to abide by any
relief issued by the court as to the statute originally
challenged. See Orders (doc. nos. 44, 49). They were
were added back in as parties in the amended complaint,
see First Amended Complaint (doc. no. 79) at 8-12
¶¶ 20-28, but have not appeared or participated in this
phase of the litigation. When the court refers to the
defendants in this opinion, the court is referring to
only Steven Marshall, the Attorney General, and Dr. Scott
Harris, the State Health Officer.
3
part, denied in part, and held in abeyance in part.3
I. BACKGROUND
In light of the ongoing COVID-19 emergency, Alabama’s
State Health Officer, Dr. Scott Harris, has issued a
series of state health orders suspending certain public
gatherings and placing limits on the performance of many
medical “procedures.” How the restrictions on medical
procedures apply to abortion was not immediately clear.
In part because abortion providers in Alabama operate in
an atmosphere of hostility, the plaintiffs sought
clarification of whether the restrictions allow the
continued performance of abortions. Repeated efforts to
3. In light of the temporary restraining order issued
in S. Wind Women’s Ctr. LLC v. Stitt, No. CIV-20-277-G,
2020 WL 1677094 (W.D. Okla. Apr. 6, 2020) (Goodwin, J.),
the motion for a preliminary injunction is held in
abeyance to the extent that it seeks relief prohibiting
application to all medication abortions of the medical
restrictions of the State Health Officer’s March 27, 2020
and April 3, 2020 state health orders (and to any future
orders extending the application of the medical
restrictions). The court will further consider whether
relief is appropriate on this issue.
4
clarify the application of the medical restrictions to
abortion, including by the plaintiffs and by this court,
have yielded multiple inconsistent interpretations put
forth by the defendants and their attorneys.
The initial state health order, entered on March 19,
2020, delayed “all elective dental and medical
procedures.” State Health Order of March 19, 2020 (doc.
no. 88-4) at 4 ¶ 6. On March 20, an assistant general
counsel for the Alabama Department of Public Health
confirmed to the plaintiffs’ counsel that the department
“ha[d] no plans to apply the order to the [abortion]
clinics.” Decl. of Pls.’ Counsel (doc. no. 73) at 46 ¶
4.
However, on March 27, the State Health Officer
amended the restriction on medical procedures in the
March 19 state health order, postponing “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
5
part of a patient’s ongoing and active treatment.” State
Health Order of March 27, 2020 (doc. no. 88-1) at 6 ¶ 7.
Counsel for the plaintiffs reached out again to the
Alabama Department of Public Health, seeking to confirm
that the March 27 state health order would still not be
applied to the clinics. See Decl. of Pls.’ Counsel (doc.
no. 73) at 47 ¶ 9-10. As the plaintiffs interpreted the
state health order, “medication abortion is not a
procedure within the terms of the order and ... surgical
abortion procedures fall within the exceptions.” Id. at
47 ¶ 10. On March 29, the chief counsel to the attorney
general stated in response to the questions from the
plaintiffs’ counsel that “we are unable to provide ... a
blanket affirmation that abortions will, in every case,
fall within one of the exemptions.” Id. at 48 ¶ 14. In
other words, under this interpretation, the restrictions
on medical procedures may prohibit some abortions. Given
this, the plaintiffs filed both a motion to file a
supplemental complaint and a motion for a temporary
restraining order and preliminary injunction, seeking to
6
immediately enjoin enforcement of the March 27 order
against abortion providers and abortion clinics.
During an emergency on-the-record hearing on March
30, this court asked counsel for the defendants whether
the State Health Officer had taken a position
interpreting the revised March 27 state health order.
See March 30, 2020, Hr’g Tr. (doc. no. 98) at 5:23-25,
21:17-22:1. Counsel for defendants represented that the
State Health Officer had taken a position and had
communicated that position to counsel’s office. See id.
at 6:1-7, 20:4-8, 22:2-5. Counsel explained that, per
the State Health Officer’s own interpretation, the March
27 state health order did apply to abortions and that
abortions would only meet the exceptions where required
to protect the life and health of the mother. See id.
at 20:22-21:1, 22:6-10. In response to these
representations, the court entered a broad temporary
restraining order enjoining the application of the March
27 state health order against abortion providers and
abortion clinics because the state health order, as so
7
described by defense counsel, operated as a prohibition
on abortion during the pendency of the order. See
Robinson v. Marshall, 2020 WL 1520243 (M.D. Ala. 2020)
(Thompson, J.), amended by Robinson v. Marshall, 2020 WL
1659700 (M.D. Ala. 2020), and appeal dismissed, No.20-
cv-11270-B (11th Cir. 2020).
As requested, the court gave the defendants 48 hours
to respond to the plaintiffs’ motion for a preliminary
injunction and indicated that, upon receipt of the
defendants’ response, the court would immediately
reconsider its decision. The court set the motion for a
preliminarily injunction for a fast-track hearing a week
later, on April 6.
Late in the day on April 1, before this court could
hold a preliminary injunction hearing, the defendants
filed a motion to dissolve the temporary restraining
order and a motion to stay enforcement of that order
pending appeal. In their briefs, the defendants advanced
a new interpretation of the March 27 state health order.
The defendants explained in a footnote that they actually
8
“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”
in the March 27 order. Defs.’ Br. in Support of Mot. to
Dissolve (doc. no. 89) at 26 n.30. Instead, the
defendants indicated, this was just one example of a
range of exceptions, though they did not affirmatively
provide any other examples of how the exceptions would
permit an abortion to proceed. See id. In an
accompanying declaration, Dr. Scott Harris, the State
Health Officer, explained 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 his or her
patient’s individual circumstances.” Decl. of State
Health Officer (doc. no. 88-15) at 6 ¶¶ 22-23. But Dr.
Harris still did not explain how the restrictions on
medical procedures and associated exceptions in the March
9
27 order applied to abortions. The plaintiffs and the
court were still in the dark on this point.
The court held an immediate hearing on April 3 to
discuss, among other things, the defendants’ revision in
their April 1 brief (allowable abortions not limited to
protecting the life or health of the mother) of their
prior interpretation in the March 30 hearing (abortions
limited to protecting the life or health of the mother),
both of which, according to defense counsel, were made
after talking with State Health Officer Harris. See
March 30, 2020, Hr’g Tr. (doc. no. 98) at 6:1-7, 20:4-8,
22:2-5; April 3, 2020, Hr’g Tr. (doc. no. 123) at 35:9-13,
37:13-14. During the April 3 hearing, the court
understood the defendants to make four critical
clarifications of the scope of the restrictions on
medical procedures and its exceptions. These
clarifications, however, were not in the March 27 state
health order, the defendants’ brief, or Dr. Harris’s
declaration. As a result, the court reduced the
defendants’ four April 3 clarifications to writing.
10
First, “[i]n general, for an abortion, like any other
procedure, a doctor should examine his or her
patient, consider all circumstances, and determine
whether one of the exceptions to the March 27 order
applies. If they do, the procedure can go forward.”
Robinson v. Marshall, 2020 WL 1659700, at *3 (M.D.
Ala. Apr. 3, 2020) (internal quotation marks,
alteration, and citation omitted).
Second, “if a healthcare provider determines, on a
case-by-case basis in his 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 ... then the
abortion may be performed without delay pursuant to
the exceptions in the March 27 order. The provider
may examine his or her patient as needed to make the
necessary determination regarding the age of the
fetus.” Id. (internal citation omitted).
Third, “[i]f a healthcare provider determines, again
11
on a case-by-case basis in his or her reasonable
medical judgment, that the abortion cannot be delayed
in a healthy way, then the abortion may be performed
without delay pursuant to the exceptions in the March
27 order.” Id. (internal quotation marks,
alteration, and citation omitted). “[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....” Id. (internal
quotation marks omitted).
Fourth, and finally, “[t]he reasonable medical
judgment of abortion providers will be treated with
the same respect and deference as the judgments of
other medical providers. The decisions will not be
singled out for adverse consequences because the
services in question are abortions or
abortion-related.” Id. (internal citation omitted).
Based largely upon these clarifications, the court
found that its initial March 30 temporary restraining
order “swept too broadly,” as the April 3 clarifications
12
“alleviated the court’s most serious concerns underlying
the issuance of its temporary restraining order.” Id.
The court thus narrowed its temporary restraining order
by granting the defendants’ motion to stay “to the extent
that the court adopts as its order the clarifications
agreed upon by the defendants.” Id. at *4. The court
did not stay the temporary restraining order in full
because the defendants’ clarifications of the state
health order were not otherwise binding.4
Also on April 3, in the midst of the court’s
resolution of the motion to stay, the State Health
Officer issued a new state health order that extended the
relevant restrictions on medical procedures until April
4. The court did not act on the motion to dissolve
the temporary restraining order because it lacked
jurisdiction to do so, given that the defendants had
filed an appeal from the temporary restraining order to
the Eleventh Circuit Court of Appeals. See Notice of
Appeal (doc. no. 94); see also Robinson v. Marshall, 2020
WL 1659700, at *1 (M.D. Ala. 2020) (Thompson, J.). The
appeal was later dismissed on April 4 pursuant to the
parties’ joint motion. See Letter from David J. Smith,
Clerk of Eleventh Circuit Court of Appeals, to Clerk,
Middle District of Alabama (doc. no. 122).
13
30. See State Health Order of April 3, 2020 (doc. no.
109-1). The restrictions on medical procedures in the
March 27 order are identical to the restrictions in the
April 3 order. As a result, the defendants agreed that
“to the extent that any provider could lawfully have
considered the April 17 expiration date from the March
27 order, that provider can instead consider the new
expiration date of April 30, 2020.” Order (doc. no. 113)
at 2.
On April 5, counsel for the defendants submitted
three additional written clarifications to the court’s
understanding of their April 3 oral clarifications. See
Defs.’ Notice (doc. no. 120).
First, the defendants additionally clarified that “a
healthcare provider’s assertion that a procedure
meets one of the exceptions is not conclusive proof
that the procedure meets one of the exceptions.” Id.
at 2.
Second, the defendants additionally clarified that
“any healthcare provider would still need to make an
14
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.”
Id. at 3.
Third, the defendants additionally clarified that
“the exceptions require that the risk to a patient’s
health be sufficiently serious.” Id. at 3 (internal
quotation marks, alteration, and citation omitted).
During the April 6 preliminary injunction hearing,
however, the State Health Officer, Dr. Scott Harris, put
forth yet another interpretation of the restrictions on
medical procedures. First, although the March 19 and
March 27 state health orders had been interpreted
differently, see Decl. of Pls.’ Counsel (doc. no. 73) at
46 ¶ 4 (“no plans to apply” March 19 order to abortion
clinics); id. at 48 ¶ 14 (“unable to provide ... blanket
affirmation that abortions will, in every case, fall
within one of the exemptions” to the March 27 order), Dr.
Harris explained that he meant for the two orders “to
have the same effect.” April 6, 2020, Hr’g Tr. (doc. no.
15
133) at 12:17. Second, just as the determination of
whether a particular procedure was elective or not in the
March 19 order was “left ... to the discretion of the
provider,” id. at 11:8, for the current restrictions on
medical procedures “[t]he providers are the ones who
determine whether their procedure fits in those
exceptions, not the health department.” Id. at 49:19-21.
Third, a provider can consider “whatever factors they
would deem ... appropriate” when making a determination
of whether the exceptions in a particular circumstance
have been satisfied. Id. at 15:25–16:8. Fourth, the
Department of Public Health does not intend for an
abortion provider to necessarily delay even a single
procedure as a result of the restrictions on medical
procedures. See id. at 50:5-14. Fifth, and finally, the
Department does not intend to review healthcare
providers’ decisions. See id. at 44:3-14.
To the extent that Dr. Harris’s April 6 testimony
represents the current interpretation of the restrictions
on medical procedures, it reveals substantial common
16
ground between the two parties. Dr. Harris, for
instance, made clear that the order was never intended
to establish a blanket ban on abortions, but rather that
the order contemplated “case-by-case determination[s].”
Id. at 18:1-8. Dr. Harris further emphasized that
providers, and not the Alabama Department of Health,
should decide which factors to consider in deciding
whether the order’s exceptions apply. See id. at 13:18-
21, 15:3-16:8. And Dr. Robinson, one of the plaintiffs
in this litigation and the medical director of the
plaintiff Alabama Women’s Center, agreed that providers
could delay abortions under certain circumstances. See,
e.g., id. at 139:20-23 (for patients presenting with
COVID-19 symptoms); id. at 155:8-10 (acknowledging
possibility that at least one abortion could be safely
postponed).
Nonetheless, Dr. Robinson testified that the
defendants’ additional written clarifications on April 5
to the court’s understanding of their representations on
April 3, caused her serious concern. According to her,
17
the written clarifications “made it very clear to me that
my medical judgment was not the final decision when it
came to the care decisions that I was making for my
patients. I don’t know who that is going to be left up
to, but it made it very clear to me ... that [my medical
judgment] would not be the final call.” Id. at 125:7-13.
With all of these varying interpretations of the
State’s public health orders in mind, including the
interpretations provided to the plaintiffs’ counsel
before the filing of the motion for temporary restraining
order, the court now turns to the plaintiffs’ motion for
a preliminary injunction.
II. LEGAL STANDARDS
For a preliminary injunction to issue, the plaintiffs
must establish the following: (1) a substantial
likelihood of success on the merits; (2) a substantial
threat of irreparable injury if the preliminary
injunction is not granted; (3) that the threatened injury
to the plaintiffs outweighs the threatened harm that the
18
injunction may cause the defendants; and (4) that
granting preliminary injunctive relief is not adverse to
the public interest. See Ferrero v. Associated
Materials, Inc., 923 F.2d 1441, 1448 (11th Cir. 1991);
Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983).
Further, where a court issues an injunction,
“invalidating the statute entirely is not always
necessary or justified;” rather, courts “may be able to
render narrower declaratory and injunctive relief.”
Ayotte v. Planned Parenthood of N. New England, 546 U.S.
320, 323 (2006).
III. DISCUSSION
A. Likelihood of Success on the Merits
On March 27, 2020, the State Health Officer released
an order that 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
19
part of a patient’s ongoing and active treatment.” State
Health Order of March 27, 2020 (doc. no. 88-1) at 6 ¶ 7.
On April 3, the State Health Officer entered a new order
with identical medical restrictions that extended their
expiration date from April 17 to April 30. See State
Health Order of April 3, 2020 (doc. no. 109-1). As
described above, these medical restrictions are
susceptible to multiple readings. Over the course of
this litigation, the defendants themselves have put forth
several divergent interpretations of the medical
restrictions, each with dramatically different
implications for the plaintiffs.
Under one of the interpretations put forth by the
defendants, for all of April, abortions can lawfully
proceed without delay only when necessary to protect
maternal life or maternal health. Based on the record
that is now before the court, the medical restrictions,
read pursuant to this interpretation, violate the
Fourteenth Amendment. The court has no enforceable
guarantee that the medical restrictions will not be
20
interpreted in this way by those tasked with their
enforcement through 1975 Ala. Code § 22-2-14 or other
mechanisms. See April 6, 2020, Hr’g Tr. (doc. no. 133)
at 44:15-25 (Dr. Harris disclaiming knowledge of how the
order might be enforced by others). The plaintiffs and
the court also cannot rely on the defendants’ non-binding
assurances that they will not return to this
interpretation. Accordingly, as explained below, the
court finds that the plaintiffs have demonstrated a
substantial likelihood of success on the merits.
1. Effects of Mandatory Postponement
On March 30, counsel for the defendants represented
that, under the medical restrictions, abortions could
lawfully proceed without delay only if they were
necessary to protect the life and health of the mother.
See March 30, 2020, Hr’g Tr. (doc. no. 98) at 20:22-21:1,
22:6-10. Under this reading, the medical restrictions
would mandate the postponement until at least April 30
of all abortions not performed to protect maternal life
21
or maternal health.5
On the limited record before the court, the precise
implications of the medical restrictions, interpreted in
this way, remain murky. The COVID-19 crisis leaves the
court and the parties in uncharted territory. But this
much is clear: for at least some women,6 a mandatory
postponement until April 30 would operate as a
5. This reading by the defendants is a plausible one.
The restrictions allow medical procedures only when
“necessary to treat an emergency medical condition” or
“to avoid serious harm from an underlying condition or
disease.” State Health Order of March 27, 2020 (doc. no.
88-1) at 6 ¶ 7. While there are other plausible
interpretations, the exception can be read to mandate
postponement of any abortion not necessary to protect the
life or health of the mother. And while the medical
restrictions also allow for procedures that are
“necessary as part of a patient’s ongoing and active
treatment,” id., the meaning of this provision, and
whether and how it applies to abortion, is far from clear.
6. Dr. Robinson acknowledged that, at least
hypothetically, it was “possible for there to be at least
one abortion that can be safely postponed in [her]
judgment.” April 6, 2020, Hr’g Tr. (doc. no. 133) at
155:8-10. But “[l]egislation is measured for consistency
with the Constitution by its impact on those whose
conduct it affects.... The proper focus of
constitutional inquiry is the group for whom the law is
a restriction, not the group for whom the law is
irrelevant.” Casey, 505 U.S. at 894.
22
prohibition of abortion, entirely nullifying their right
to terminate their pregnancies, or would impose a
substantial burden on their ability to access an
abortion. The court provides examples here, though it
cautions that the groups described do not constitute an
exhaustive accounting of the medical restrictions’ likely
effects.
First, for some group of women, a mandatory
postponement will make a lawful abortion literally
impossible. Under Alabama law, a woman’s window for
seeking a lawful abortion is limited: abortion becomes
illegal when the probable postfertilization age of the
fetus is at least 20 weeks. See 1975 Ala. Code, as
amended, § 26-23B-5. A mandatory postponement until
April 30 could thus extend a woman’s pregnancy beyond the
20-week boundary imposed by law, making an abortion
illegal. See id.; see also Pls.’ Mem. in Supp. of a
T.R.O. (doc. no. 73-1) at 2 (describing a woman who would
be “pushed past the legal limit for abortion in Alabama
if she does not obtain an abortion this week”).
23
For other women, a postponement would make securing
a lawful abortion far more difficult, or even impossible,
including because of major logistical hurdles. Take, for
instance, abortions performed after 14 weeks. Only one
clinic in Alabama can perform such abortions, see April
6, 2020, Hr’g Tr. (doc. no. 133) at 78:4-9, which are
normally a very small minority of all abortions performed
statewide. See Induced Termination of Pregnancy
Statistics (doc. no. 88-13) at 10. But if widespread
delays to abortions occur, that clinic’s limited capacity
will likely become a serious barrier that renders lawful
abortions entirely unavailable to some women in Alabama.
See April 6, 2020, Hr’g Tr. (doc. no. 133) at 114:7-
116:1. Women in Alabama might also face difficulty
traveling to a clinic, see id. at 92:16-19, particularly
if they live in the far reaches of the State; receiving
necessary time off, see id. at 92:11-15, or child care,
see id. at 92:24-93:1; and affording an abortion in the
first place, see id. at 92:5-10. (In Alabama, an abortion
requires two visits, so these obstacles must be navigated
24
twice. See, e.g., id. at 93:2-6.) A mandatory delay
would greatly exacerbate many of these difficulties,
unseating plans in the midst of a pandemic that has
yielded widespread job loss, financial difficulty, and
social isolation. See, e.g., id. at 113:11-13 (Dr.
Robinson noting that “[w]ith each week that the pregnancy
is delayed or termination of the pregnancy is delayed,
that means there is an increased cost to the patient”);
id. at 93:7-14 (noting the pandemic’s impact on women
seeking abortions, apart from the medical restrictions).7
It is abundantly clear, and the court now finds, that a
delay until April 30 will pose a tremendous, and
sometimes insurmountable, burden for many women in
Alabama.
Further, for some women, a postponement of an
abortion may cause serious harm, or a substantial risk
of serious harm, to that woman’s health. Dr. Robinson
7. The court finds that Dr. Robinson is an expert in
obstetrics and gynecology and abortion practice. See
April 6, 2020, Hr’g Tr. (doc. no. 133) at 72:21-24.
25
credibly testified that, for at least some women, even a
short delay can make an abortion (or the ongoing
pregnancy) substantially riskier. See, e.g., April 6,
2020, Hr’g Tr. (doc. no. 133) at 160:11-13 (discussing
the increase in risk to patients as time passes); id. at
84:10-21 (discussing conditions associated with
pregnancy); id. at 111:16-18 (noting that “each week that
the abortion is delayed, it increases the risk to the
patient”); id. at 112:18-24 (discussing risks of delay
for women at risk of domestic violence or who have
experienced rape); id. at 111:4-6 (noting that each week
of delay “increases the risk of mortality”); id. at
107:2-11 (reading from a report concluding that, while
complications are rare, the risk of serious complications
increases with delay8); id. at 110:2-5 (summarizing a
8. Dr. Robinson read from a report admissible as a
learned treatise. See Committee on Reproductive Health
Services: Assessing the Safety and Quality of Abortion
Care in the U.S., National Academies of Sciences,
Engineering, and Medicine, The Safety and Quality of
Abortion Care in the United States (2018); see also Fed.
R. Evid. 803(18).
26
report concluding that “every week an abortion is delayed
increases the risk [of mortality or death in the patient]
by approximately 38 percent”9); see generally id. at
39:17-40:4 (Dr. Harris agreeing regarding Alabama’s high
rate of childbirth complications and maternal mortality).
Abortion is a “very safe” procedure, id. at 110:24-25,
but, for some patients, the relative risk can
dramatically increase in a short time--and for these
patients, a mandatory delay would create a substantial
and serious risk of harm for many patients.
2. The Medical Restrictions’ Constitutionality
The court finds that, in light of these effects, the
plaintiffs have shown a substantial likelihood of success
on the merits. That is, it is substantially likely that
the medical restrictions, when interpreted to allow only
9. Here, Dr. Robinson was summarizing a section of a
learned treatise. See Linda A. Bartlett, Risk Factors
for Legal Induced Abortion-Related Mortality in the
United States, 103 Obstetrics & Gynecology 729, 731, 735
(2004); see also Fed. R. Evid. 803(18).
27
those abortions necessary to protect the life and health
of the mother, are unconstitutional. First, to the
extent that they are interpreted to prohibit certain
women from ever obtaining a pre-viability abortion--and
force them, instead, to carry their pregnancies to
term--the medical restrictions are very likely
unconstitutional on the record before the court. And,
second, to the extent that they impose substantial
burdens upon or create serious and substantial health
risks for women seeking abortions, they very likely pose
an unconstitutional burden.
The plaintiffs and the defendants posit two distinct
legal frameworks for this case. The plaintiffs suggest
that the substantive-due-process analysis of Roe v. Wade,
410 U.S. 113 (1973), Planned Parenthood of Southeast
Pennsylvania v. Casey, 505 U.S. 833 (1992), and other
related cases should govern. The defendants argue that
the court should instead turn to the State’s emergency
powers, as set forth in Jacobson v. Commonwealth of
Massachusetts, 197 U.S. 11 (1905), in reviewing the
28
order. The court need not decide which legal framework
applies, and instead assumes that they can and should be
applied together in these circumstances. Under either
framework, the plaintiffs have shown a substantial
likelihood that, if read to effect a postponement of any
abortion not required to protect the life and health of
the mother, the medical restrictions are
unconstitutional.
In Jacobson, amid a smallpox outbreak in Cambridge,
Massachusetts, the City (acting pursuant to a state
statute) mandated the vaccination of all of its citizens.
The Court upheld the statute against a Fourteenth
Amendment challenge, clarifying that the State’s action
was a lawful exercise of its police powers and noting
that, “[u]pon the principle of self-defense, of paramount
necessity, a community has the right to protect itself
against an epidemic of disease which threatens the safety
of its members.” Id. at 27. Still, while Jacobson urges
deferential review in times of emergency, it clearly
demands that courts enforce the Constitution. See id at
29
28. Indeed, Jacobson explicitly contemplates a backstop
role for the judiciary: “[I]f a statute purporting to
have been enacted to protect the public health, the
public morals, or the public safety, has no real or
substantial relation to those objects, or is, beyond all
question, a plain, palpable invasion of rights secured
by the fundamental law, it is the duty of the courts to
so adjudge, and thereby give effect to the Constitution.”
Id. at 30 (emphasis added); see also Casey, 505 U.S. at
857 (citing Jacobson for the proposition that “a State’s
interest in the protection of life falls short of
justifying any plenary override of individual liberty
claims”).
Under Jacobson, therefore, a State’s emergency
response can still be unlawful if it impinges on a
fundamental right in a “plain, palpable” way. Jacobson,
197 U.S. at 31.10 Abortion is a fundamental right. See,
10. The Jacobson Court--writing long before the
development of modern substantive-due-process
jurisprudence--found no clear invasion of any fundamental
right. “Whatever may be thought of the expediency of
30
e.g., Doe v. Moore, 410 F.3d 1337, 1343 (11th Cir. 2005)
(noting that “[t]he Supreme Court has recognized that
fundamental rights include those guaranteed by the Bill
of Rights as well as certain ‘liberty’ and privacy
interests,” which include the right “to abortion”
(internal citation marks omitted)). And so Jacobson asks
courts to protect it, even in times of emergency.
Here, the contours of the fundamental right at stake
are described in Roe, Casey, and subsequent cases. As
the Supreme Court has repeatedly re-affirmed, the
Fourteenth Amendment protects a woman’s right to
terminate her pregnancy. See, e.g., Stenberg v. Carhart,
530 U.S. 914, 921 (2000) (noting that the Supreme Court
“has determined and then redetermined that the
Constitution offers basic protection to the woman's right
to choose”).
this statute, it cannot be affirmed to be, beyond
question, in palpable conflict with the Constitution.”
Jacobson, 197 U.S. at 31. Its inquiry thus ended with
deference to the State’s chosen policy. But here, a
fundamental right is clearly at issue.
31
Still, the right to an abortion does have limits.
As the Court recognized in Casey, a State may regulate
pre-viability abortion to further its legitimate
interests, but only if the laws in question do not place
an “undue burden” on a woman’s right to end her pregnancy.
Casey, 505 U.S. at 876–79 (plurality opinion). Further,
Casey itself held that, as applied to a prohibition
(rather than a mere regulation) of pre-viability
abortion, the State’s interests must give way to a
woman’s right to terminate her pregnancy. “Before
viability, the State’s interests are not strong enough
to support a prohibition of abortion ....” Casey, 505
U.S. at 846 (opinion of the Court); see also Gonzales v.
Carhart, 550 U.S. 124, 146 (2007) (reiterating that
“[b]efore viability, a State may not prohibit any woman
from making the ultimate decision to terminate her
pregnancy” (internal citations and quotation marks
omitted)).
It is abundantly clear that the medical restrictions
in the state health order are unconstitutional to the
32
extent that they prevent a woman from obtaining an
abortion before viability--that is, where they effect a
prohibition on abortion. Although Casey did not consider
the interests presented by the defendants here
(preserving healthcare resources and reducing close
social contact), it plainly holds that the choice to
terminate a pregnancy before viability must belong to the
woman, not the State.11 Casey, 505 U.S. at 846 (opinion
of the Court); see also Gonzales, 550 U.S. at 146. To
fully prevent this choice (by, for example, mandating
that a woman’s abortion be delayed until it is illegal)
violates Casey’s central holding, and thus violates
Jacobson, too. See Jacobson, 197 U.S. at 31; see also
id. at 25 (“A local enactment or regulation, even if
based on the acknowledged police powers of a state, must
11. Indeed, the underlying logic of Casey centers on
dignity and autonomy. See Casey, 505 U.S. at 852 (noting
that, in the abortion context, “the liberty of the woman
is at stake in a sense unique to the human condition and
so unique to the law”). These essential values require
the court’s protection, even (or, maybe, especially) in
an emergency.
33
always yield in case of conflict ... with any right which
[the Constitution] gives or secures.”). On the record
before the court, even where the State’s interests are
reviewed with great deference, that violation is “plain,
palpable,” and constitutionally forbidden.12 Id. at 31.
12. Jacobson also discusses an exception for
“[e]xtreme cases,” when the police power is exerted “in
such circumstances, or by regulations so arbitrary and
oppressive in particular cases, as to justify the
interference of the courts to prevent wrong and
oppression.” Jacobson, 197 U.S. at 38. Jacobson
continues: “It is easy, for instance, to suppose the case
of an adult who is embraced by the mere words of the act,
but yet to subject whom to vaccination in a particular
condition of his health or body would be cruel and inhuman
in the last degree. We are not to be understood as
holding that the statute was intended to be applied to
such a case, or, if it was so intended, that the judiciary
would not be competent to interfere and protect the
health and life of the individual concerned.” Id. at
38-39. Jacobson thus recognizes the need for exemptions
to allow individuals to avoid serious, lasting
impacts--but, unlike in the case of abortion, it did not
face such an impact directly. See generally In re
Cincinnati Radiation Litig., 874 F. Supp. 796, 819 (S.D.
Ohio 1995) (noting that Jacobson “involved minimally
invasive procedures with no lasting side effects”). At
minimum, this exception makes clear that Jacobson does
not give blanket authority to the State, even in an
emergency.
34
But even where they operate as a “regulation” of
abortion, and not a “prohibition,” the medical
restrictions, if interpreted to mandate the postponement
of any abortion not necessary to protect the life and
health of the mother, are very likely unconstitutional.
The court finds it substantially likely that they pose
an “undue burden,” Casey, 505 U.S. at 786, that is so
extreme that the restrictions effect “a plain, palpable
invasion of rights secured by the fundamental law,”
Jacobson, 197 U.S. at 31.
Under the “undue burden” analysis, a regulation of
pre-viability abortion cannot survive if the “burdens a
law imposes on abortion access” outweigh its benefits.
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292,
2309 (2016). Put another way, “the court must determine
whether, examining the regulation in its real-world
context, the obstacle is more significant than is
warranted by the State’s justifications for the
regulation.” Planned Parenthood Se., Inc. v. Strange, 9
F. Supp. 3d 1272, 1287 (M.D. Ala. 2014) (Thompson, J.).
35
Considered in their real-world context, the medical
restrictions will pose a substantial obstacle to many
women in Alabama. In general, even a brief delay causes
serious challenges: a 24-hour waiting period, though
upheld in Casey, posed a close question for the Supreme
Court. As this court later noted, the one-day wait “seems
to have fallen just on the other side of the line from
being a substantial obstacle.” Planned Parenthood Se.,
Inc. v. Strange, 9 F. Supp. 3d 1272, 1286 (M.D. Ala.
2014) (Thompson, J).
Here, counted from the initial imposition of the
medical restrictions, a delay could exceed one month--
even if the restrictions are not extended--and the
lengthy postponement period sweeps in many women.13 The
13. The defendants have admitted that the course of
the pandemic could last three or four months, beginning
in early March. See April 6, 2020, Hr’g Tr. (doc. no.
133) at 37:21-22. The medical restrictions could
certainly be extended beyond April 30. See, e.g., id.
at 104:11-14 (Dr. Robinson explaining that she
understands the medical restrictions could be extended
past April 30).
36
possible implications of a postponement, applied across
the board, are varied and deeply troubling, as the court
discussed above. The medical restrictions would amplify
existing challenges, pose severe health risks, and render
abortions functionally unavailable for at least some
women. Most importantly, however, if the restrictions
are read to delay any abortion not necessary to protect
the life and health of the mother, then abortion
providers would be categorically unable to even consider
these factors in determining whether an abortion can or
should be postponed.
These extensive burdens must be balanced against the
interests put forth by the defendants: the preservation
of healthcare resources (including personal protective
equipment) and the prevention of close social contact.14
14. In Casey and its progeny, regulations of
abortions are typically justified by two legitimate
interests: “preserving and promoting fetal life,”
Gonzales v. Carhart, 550 U.S. 124, 145 (2007), and
protecting the health of the woman, see id. at 146. Here,
the court assumes that the defendants’ interests in
preserving healthcare resources and preventing social
37
See, e.g., April 6, 2020, Hr’g Tr. (doc. no. 133) at
10:19:11:1 (describing the interests motivating the
restrictions); id. at 8:3-9:3 (describing the State’s
interest in conserving personal protective equipment);
id. at 9:16-10:2 (social distancing); Decl. of State
Health Officer (doc. no. 88-15) at ¶ 24 (discussing
reasons for mandating delay of abortions). The court
recognizes the urgency and breadth of the State’s
COVID-19 response. But compared to the serious burdens
imposed by the medical restrictions, the benefits to the
State and the public fall far short.
First, most abortions and related appointments
require a limited amount of personal protective equipment
(PPE), and a delayed abortion does not erase even the
patient’s short-term need for medical care. For
instance, the defendants have stated that normal prenatal
visits and mandatory pre-abortion examinations can
contact may legitimately support a regulation of abortion
during an emergency.
38
proceed as scheduled under the medical restrictions.
See, e.g., April 3, 2020, Hr’g Tr. (doc. no. 123) at
42:4-16; see also Robinson v. Marshall, 2020 WL 1659700,
at *3 (M.D. Ala. 2020) (Thompson, J.) (court
memorializing this); Defs.’ Clarifications (doc. no. 120)
at 2-3 (not disputing it).
Beyond those appointments, abortions themselves
require only a limited amount of PPE.15 See Corr.
Robinson Decl. (doc. no. 99-1) at 13 ¶ 30 (discussing the
PPE required for a medication abortion); April 6, 2020,
Hr’g Tr. (doc. no. 133) at 54:14-55:2 (same); Corr.
Robinson Decl. (doc. no. 99-1) at 13 ¶ 30 (discussing the
15. Indeed, the State Health Officer conceded that
administering a medication abortion “may not itself”
require the use of PPE. Decl. of State Health Officer
(doc. no. 88-15) at ¶ 24. He justified delaying
medication abortions based on the risk of possible
complications requiring a surgical abortion or emergency
medical care. Decl. of State Health Officer (doc. no.
88-15) at ¶ 24. However, the rate of such complications
is extremely low, a fact that Dr. Harris admitted he did
not know when he made the decision that medication
abortions should be postponed. See, e.g., April 6, 2020,
Hr’g Tr. (doc. no. 133) at 79:2-15 (discussing the rate
of complications); id. at 55:23-56:1.
39
PPE required for procedural/surgical abortions); April
6, 2020, Hr’g Tr. (doc. no. 133) at 132:10-18 (same).
Further, the risk of a serious complication of abortion
is extremely low. See id. at 78:11-16. For some delays,
therefore, some amount of PPE will be conserved; for
other delays, a very small amount of PPE (if any) will
be conserved; and for other delays, any PPE conserved
will simply be re-routed to routine prenatal visits or,
often, appointments required to address the complications
of pregnancy.16 See, e.g., id. at 51:6-8 (Dr. Harris’s
expectation that a pregnant woman should continue to
receive prenatal care under the medical restrictions).
Indeed, as to hospital resources more generally, the
medical restrictions are very unlikely to make a
significant difference: the rate of abortions that
require hospitalization is extremely low. See, e.g.,
April 6, 2020, Hr’g Tr. (doc. no. 133) at 79:2-23
16. With respect to any PPE that is conserved, the
defendants have not put forward evidence regarding how
it might be used or re-directed to hospitals that are
experiencing shortages.
40
(discussing the rate of complications and noting that
most complications can be managed in an outpatient
setting). Put simply, even when measured on a very short
time horizon, the benefits of the medical restrictions
as applied to abortions, are limited, particularly
compared to the burdens that they impose.
Further, if an abortion is delayed and then does not
proceed, the medical restrictions may backfire over time:
PPE usage will often be higher and provider-patient
contact will likely increase. A typical uncomplicated
pregnancy will require multiple prenatal appointments and
delivery, each of which require PPE, even if there are
no unforeseen complications. See Corr. Robinson Decl.
(doc. no. 99-1) at 13 ¶ 32; April 6, 2020, Hr’g Tr. (doc.
no. 133) at 125:19-126:5 (Dr. Robinson); see also id. at
51:6-8 (Dr. Harris’s expectation that a pregnant woman
should receive prenatal care). A complicated pregnancy
would require far more. See Corr. Robinson Decl. (doc.
no. 99-1) at 13 ¶ 32. At least some of these needs will
emerge before the restrictions expire, especially if they
41
are further extended.
Thus, assuming that the defendants’ interests
posited here may be considered and granting them
substantial deference, the court finds that the burden
imposed by the medical restrictions is undue. Indeed,
it is substantially and plainly undue--enough that to
impose it impinges the right to an abortion in a “plain,
palpable” fashion. Jacobson, 197 U.S. at 31.17
Finally, the defendants also rely upon Smith v.
Avino, 91 F.3d 105, 109 (11th Cir. 1996), abrogated on
unrelated grounds by Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83 (1998), arguing that it supersedes the
Casey framework and imposes far more deferential review.
In Avino, reviewing an evening curfew imposed in the wake
of Hurricane Andrew, the Eleventh Circuit held that,
“when a curfew is imposed as an emergency measure in
17. As discussed above, the court assumes that
Jacobson applies and dictates substantial deference to
the state. If only Casey applies, the analysis here
remains valid and comes to the same conclusion--albeit
even more firmly, because the defendants’ stated
interests would be considered with greater scrutiny.
42
response to a natural disaster, the scope of review in
cases challenging its constitutionality is limited to a
determination whether the [executive’s] actions were
taken in good faith and whether there is some factual
basis for the decision that the restrictions ... imposed
were necessary to maintain order.” Avino, 91 F.3d at 109
(internal citations, alteration, and quotation marks
omitted). But unlike the instant case, Avino addressed
only temporary, partial restrictions on certain
fundamental rights, see id., and explicitly addressed
times “when a curfew is imposed ... in response to a
natural disaster.” Id. (emphasis added). This court
declines to extend it beyond those contexts.18
18. Further, in arguing that Avino should be extended
to state actions that impact fundamental rights in other
contexts, including where such rights may be permanently
denied, the defendant’s argument proves too much. In an
emergency, the defendants suggest, a reviewing court may
investigate only “whether the executive’s actions were
taken in good faith and whether there is some factual
basis for the decision that the restrictions imposed were
necessary to maintain order.” Avino, 91 F.3d at 109
(internal citations, alteration, and quotation marks
omitted). But under this logic, with only “good faith”
and “some factual basis,” government actors in any
43
Notably, the court’s conclusions come despite the
substantial deference to the State that Jacobson and
Avino recommend. In light of the ongoing emergency, the
court gives great weight to the State’s interests:
preventing social contact, preserving personal
protective equipment, and preserving other healthcare
resources. But the court must nonetheless intervene. A
fundamental right is at stake; that right, for some
women, is subject to a possible permanent denial, not a
mere delay or temporary denial; and, based on the Supreme
Court’s clear holdings on the right to an abortion, the
State’s asserted interests, even when viewed with a
tremendous degree of deference, cannot support the
accompanying deprivation of a Fourteenth Amendment right.
emergency could permanently curtail nearly any
constitutional right. Id. That assertion, which flows
directly from the State’s argument, is extreme, and
plainly false; Avino should not be read to stand for such
a broad proposition. Compare id. (asserting that
fundamental rights may be “temporarily limited or
suspended” in emergencies, citing Korematsu v. United
States, 323 U.S. 214 (1944)) with Trump v. Hawaii, 138
S. Ct. 2392, 2423 (2018) (noting that “Korematsu was
gravely wrong the day it was decided”).
44
The plaintiffs have, therefore, demonstrated a likelihood
of success on the merits.
3. Appropriate Remedy
Still, the medical restrictions’ constitutional
problems do not justify the plaintiffs’ requested remedy:
an injunction of the medical restrictions, as applied to
abortion providers, in their entirety. The court
declines to use a sledgehammer where a scalpel will do.
Cf. Ayotte v. Planned Parenthood of N. New England, 546
U.S. 320, 323 (2006) (holding that “invalidating the
statute entirely is not always necessary or justified”
when “lower courts may be able to render narrower
declaratory and injunctive relief”). Accordingly, rather
than enjoin the medical restrictions in full, the court
will enjoin them only to prevent those applications of
the medical restrictions that are inconsistent with the
mandates of the Constitution, as described above.
The defendants have put forward multiple
interpretations of the medical restrictions. Based upon
45
the defendants’ most recent clarifications, the medical
restrictions grant substantial leeway to providers acting
in their reasonable medical judgment (in contrast to the
previous interpretation, described above, which was far
more restrictive). For instance, the defendants have
clarified that the medical restrictions allow providers
to consider a range of factors in determining whether a
procedure can lawfully proceed as scheduled. When asked
which factors, Dr. Harris pointed only to providers’
clinical judgment. “[T]he clinician should use their
clinical judgment and consider whatever factors they
would deem would be appropriate to make that
determination [of whether a procedure falls within one
of the order’s exceptions].” April 6, 2020, Hr’g Tr.
(doc. no. 133) at 16:3-5 (testimony of Dr. Scott Harris)
(emphasis added). Ultimately, “[t]he providers are the
ones who determine whether their procedure fits in [the
order’s] exceptions, not the health department.” Id. at
49:19-21.
By the State Health Officer’s telling, then, an
46
abortion provider is permitted to consider all of those
factors that he or she reasonably deems relevant in
deciding whether an abortion can be delayed. As Dr.
Robinson credibly testified (and as the court now finds),
an abortion provider might reasonably consider many
factors, including: whether the woman’s abortion would
become riskier because of a substantial delay, see April
6, 2020, Hr’g Tr. (doc. no. 133) at 105:22-23; the
patient’s “socioeconomic factors, her medical history,
[or] the circumstances surrounding her decision to
proceed with an abortion,” id. at 158:21-23; and the
“logistics of getting back to the clinic, taking the time
off of work, [and] coordinating care for their children,”
id. at 114:1-2. Where these considerations (or others)
are relevant to a provider’s determination under the
medical restrictions, that provider may lawfully consider
them, and Dr. Harris explicitly disclaimed any interest
in second-guessing those decisions. See April 6, 2020,
Hr’g Tr. (doc. no. 133) at 44:3-10.
The court assumes that, if they were only read in
47
this way, the medical restrictions would not constitute
an unlawful prohibition of any woman’s abortion. Rather,
they would allow a provider to consider whether a
patient’s abortion must proceed as scheduled because that
patient will not, or likely will not, be able to terminate
her pregnancy if it is postponed.
Still, the plaintiffs have expressed a lingering
reticence to trust the representations of the defendants,
particularly with respect to non-binding interpretations
that emerged after multiple days of litigation. The
court finds these concerns warranted: “Mid-litigation
assurances are all too easy to make and all too hard to
enforce, which probably explains why the Supreme Court
has refused to accept them.” W. Alabama Women’s Ctr. v.
Williamson, 900 F.3d 1310, 1328 (11th Cir. 2018)
(affirming an injunction despite a non-binding
clarification from the State), cert. denied sub nom.
Harris v. W. Alabama Women’s Ctr., 139 S. Ct. 2606 (2019);
see also Stenberg v. Carhart, 530 U.S. 914, 940 (2000)
(cautioning against accepting an Attorney General’s
48
non-binding interpretation of a state law). Despite the
defendants’ most recent clarifications, therefore, an
injunction must issue.
A clear, enforceable standard is especially
essential given the long history of anti-abortion
sentiment in Alabama and nationwide. See, e.g., Planned
Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330,
1334 (M.D. Ala. 2014) (Thompson, J.), as corrected (Oct.
24, 2014), supplemented, 33 F. Supp. 3d 1381 (M.D. Ala.
2014), and amended, No. 2:13-cv-405-MHT, 2014 WL 5426891
(M.D. Ala. Oct. 24, 2014). Said history is no secret to
any abortion provider in Alabama--it is evident “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.” Id.19 As the
court noted, this observation “does not imply that such
19. Just last year, this court preliminarily enjoined
a law that imposed a “near-total ban on abortion.”
Robinson v. Marshall, 415 F. Supp. 3d 1053, 1055 (M.D.
Ala. 2019) (Thompson, J.).
49
activities are illegal, improper, or morally wrong;
indeed, the right to express deeply held beliefs is of
the utmost importance.” Id. But these events have
inarguably yielded a “climate of violence, harassment,
and hostility,” id., that pervades the day-to-day work
of abortion providers in Alabama.20
20. These challenges clearly persist. As one
example, Dr. Robinson regularly receives threatening and
harassing messages online and in person because she is
an abortion provider, including a recent social media
message expressing “hope” that she contracts COVID-19.
See Suppl. Robinson Decl. (doc. no. 110-1) at 3 ¶ 8;
Attachment 2 (doc. no. 110-2). Anti-abortion advocates,
including another physician, have also filed complaints
against Robinson with the Board of Medical Examiners.
See Suppl. Robinson Decl. (doc. no. 110-1) at 3 ¶ 8-9;
April 6, 2020, Hr’g Tr. (doc. no. 133) at 168:20-169:13.
Although these complaints have never been substantiated,
they have triggered investigations, which Dr. Robinson
must now report each time she renews her medical license.
See Suppl. Robinson Decl. (doc. no. 110-1) at 3 ¶ 8;
April 6, 2020, Hr’g Tr. (doc. no. 133) at 169:14-19.
Protesters have also filed complaints against AWC with
the Alabama Department of Public Health, which reliably
lead to investigations of the clinic, disrupting the
clinic’s practice though never leading to a finding of
any wrongdoing. See id. at 122:13-25. Dr. Robinson
testified that these tactics of protesters “keep[] me and
my staff constantly feeling on edge, I mean, wondering
from day to day what the next attack is going to be and
how effective they will be.” Id. The court finds Dr.
Robinson’s testimony credible.
50
In this environment, a provider might reasonably fear
that prosecutions under the medical restrictions will
proceed despite the defendants’ on-the-record
interpretations.21 But to proceed with lawful abortions,
providers must be confident that their exercise of
reasonable medical judgment will not be met with
unconstitutional or bad-faith prosecution. That is,
physicians acting lawfully cannot be left to “the tender
mercies of a prosecutor’s discretion and the vagaries of
a jury’s decision,” W. Alabama Women’s Ctr., 900 F.3d at
1329, or wrongly deterred from performing lawful
procedures in the first place. See generally Colautti
v. Franklin, 439 U.S. 379, 396 (1979) (“The prospect of
21. These fears are justified by, among other things,
recent events. Dr. Robinson testified that, since the
medical restrictions went into effect, protestors have
called the police asking them to “come and check on us,”
“thinking that we were supposed to be shut down” and
urging investigations from the police and the Department
of Public Health. April 6, 2020 Hr’g Tr. (doc. no. 133)
at 121:3-21. The police have responded in person at
least once since the pandemic began. See id. at
121:22-122:9. In general, these efforts (and others like
them) keep Dr. Robinson and her staff “constantly feeling
on edge.” Id. at 122:23.
51
such disagreement, in conjunction with a statute imposing
strict civil and criminal liability for an erroneous
determination ..., could have a profound chilling effect
on the willingness of physicians to perform abortions
near the point of viability in the manner indicated by
their best medical judgment.”).
Given these realities, guaranteeing practical,
reliable flexibility to abortion providers requires an
injunction. But the court’s injunction will be limited
in scope. It will essentially reduce to an order the
most recent representations made by the defendants (and,
in particular, by Dr. Scott Harris), rendering them
enforceable and locking them into place. To the extent
that the state health order is applied in a fashion
inconsistent with this mandate, and only to that extent,
it will be enjoined.
B. Irreparable Harm
The plaintiffs have demonstrated that the medical
restrictions, if left in place, would result in imminent,
52
irreparable harm to some, though not all, of their
patients. The medical restrictions are clearly
susceptible to an interpretation that would permanently
prevent or impose plainly undue burdens upon abortions
for some women, denying those women their fundamental
right to privacy. As the Eleventh Circuit has held, any
denial of that right constitutes “irreparable injury.”
Ne. Fla. Chapter of Ass’n of Gen. Contractors of Am. v.
City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th
Cir. 1990). The effects of such a denial are particularly
severe in the abortion context: the Seventh Circuit
recently noted that a “delay in obtaining an abortion can
result in the progression of a pregnancy to a stage at
which an abortion would be less safe, and eventually
illegal.” Planned Parenthood of Wisconsin, Inc. v. Van
Hollen, 738 F.3d 786, 796 (7th Cir. 2013). For those
women approaching 20 weeks of pregnancy, such harms are
especially acute. As described above, in the instant
case, these harms include an increase in medical risk,
see April 6, 2020, Hr’g Tr. (doc. no. 133) at 105:19-23,
53
106:17-107:11, 109:20-25, and serious logistical
challenges, id. at 112:25-114:4, including substantial
travel, see, e.g., id. at 92:16-19.
Moreover, the plaintiffs have demonstrated that,
despite the defendants’ clarifications stated on the
record, they remain at serious risk of prosecution,
including because, without an injunction, the defendants
would retain the option to revise their interpretation
of the medical restrictions. Such enforcement also poses
a threat of imminent harm.
C. The Balance of Hardships
The plaintiffs have shown that, with no injunction
in place, some women would very likely be forced to carry
their pregnancies to term; others would face serious
obstacles that render obtaining an abortion very
difficult. Further, they have demonstrated a meaningful
risk of unwarranted prosecutions that deter abortion
providers and, in turn, create a substantial obstacle for
women seeking abortions. These injuries are substantial.
54
In contrast, the state health order, as applied to
abortion providers, contributes relatively little to the
State’s efforts to preserve healthcare resources and
prevent close personal contact. (The court describes and
weighs these benefits in detail above.) As importantly,
the court’s injunction is narrow, minimizing harm to the
defendants by embracing recent clarifications made on the
record by the State Health Officer. In sum, the court
finds that the balance of hardships tips towards the
plaintiffs.
D. The Public Interest
The court also finds that a narrow preliminary
injunction serves the public interest. The defendants
have described serious and urgent conditions--conditions
that merit an equally serious and urgent response. But,
based on the current record, the defendants’ efforts to
combat COVID-19 do not outweigh the lasting harm imposed
by the denial of an individual’s right to terminate her
pregnancy, by an undue burden or increase in risk on
55
patients imposed by a delayed procedure, or by the cloud
of unwarranted prosecution against providers.
Still, the court recognizes the demands of the
ongoing crisis. By issuing a narrowly tailored
injunction, the court simultaneously insists, on the one
hand, that abortion providers shoulder some of the burden
of the State’s widespread response--and protects, on the
other, the right to privacy guaranteed by the United
States Constitution.
***
In accordance with this opinion, the court will issue
an appropriate injunction separately. The bond
requirement of Fed. R. Civ. P. 65(c) will be waived.
DONE, this the 12th day of April, 2020.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE