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West Alabama Women's Center v. Miller

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

October 26, 2017

WEST ALABAMA WOMEN'S CENTER, et al., on behalf of themselves and their patients, Plaintiffs,
v.
DR. THOMAS M. MILLER, in his official capacity as State Health Officer, et al., Defendants.

          OPINION

          MYRON H. THOMPSON, UNITED STATES DISTRICT JUDGE.

         In West Alabama Women's Center v. Miller, 217 F.Supp.3d 1313 (M.D. Ala. 2016) (Thompson, J.), this court preliminarily enjoined enforcement of two Alabama statutes, enacted on May 12, 2016, that regulate abortions and abortion clinics. The court must now address whether the two laws should be permanently enjoined. Based on the following findings of fact and conclusions of law, this court holds that they should be. While the court parrots many of its earlier findings and conclusions, it substantially and importantly expands on some as well.

         I. INTRODUCTION

         The first challenged statute, the “school-proximity law, ” provides that the Alabama Department of Public Health may not issue or renew licenses to abortion clinics located within 2, 000 feet of a K-8 public school. See 1975 Ala. Code § 22-21-35. The second statute, the “fetal-demise law, ” effectively criminalizes the most common method of second-trimester abortion--the dilation and evacuation, or D&E, procedure--unless the physician induces fetal demise before performing the procedure. See 1975 Ala. Code § 26-23G-1 et seq.

         The plaintiffs are West Alabama Women's Center (a reproductive-health clinic in Tuscaloosa, Alabama) and its medical director and Alabama Women's Center (a reproductive-health clinic in Huntsville, Alabama) and its medical director. The plaintiffs sue on behalf of themselves and their patients. The defendants are the State Health Officer, the State Attorney General, and the district attorneys for Tuscaloosa and Madison Counties, where the clinics are located. All defendants are sued in their official capacities.

         The plaintiffs claim that the school-proximity and fetal-demise laws unconstitutionally restrict abortion access in Alabama in violation of the Due Process Clause of the Fourteenth Amendment. Jurisdiction is proper under 28 U.S.C. §§ 1331 (federal question) and 1343 (civil rights).

         Based on the record (including evidence presented at a hearing), the court holds both laws unconstitutional. The evidence compellingly demonstrates that the school-proximity law would force the closure of two of Alabama's five abortion clinics, which together perform 72 % of all abortions in the State. Meanwhile, the fetal-demise law would prohibit the most common method of second-trimester abortions in Alabama, effectively terminating the right to an abortion in Alabama at 15 weeks. Because these laws clearly impose an impermissible undue burden on a woman's ability to choose an abortion, they cannot stand.

         II. HISTORICAL BACKGROUND

         Previously, this court described in some detail a “climate of hostility, ” both non-violent and violent, surrounding the provision of legal abortions in Alabama. Planned Parenthood Se., Inc. v. Strange, 33 F.Supp.3d 1330, 1334 (M.D. Ala. 2014) (Thompson, J.). Doctors trained in and willing to provide abortion care in Alabama are rare, and face retaliation and harassment on a daily basis as a result of their work. For example, protesters have repeated gathered outside one of the plaintiff physician's private medical practice and the clinic carrying signs calling her “a murderer”. Robinson White Decl. (doc. no. 54-4) ¶¶ 8-10. A group also launched a public campaign to convince a hospital to revoke her admitting privileges; this effort included protests in front of the hospital, televised press conferences, and leafletting cars and stores near the hospital. Id. at ¶ 9. Providers of abortion services face difficulties recruiting, hiring, and retaining staff willing to provide abortion care in the face of this stigma and constant uncertainty as to the clinics' continued existence. Women seeking abortion services in Alabama suffer distinct threats to their privacy: anti-abortion protesters regularly protest outside of clinics and harass patients as they exit and enter; at times, protesters have brought cameras and posted photos of clinic patients and their license plates online. Second Gray Decl. (doc. no. 54-1) ¶ 28. “As of 2001, there were 12 clinics providing abortions in the State. Today, that number has dwindled to five.” Planned Parenthood Se., Inc. v. Strange, 33 F.Supp.3d 1330, 1334 (M.D. Ala. 2014) (Thompson, J.).

         In addition, against this historical backdrop and as outlined in the court's preliminary-injunction opinion, W. Ala. Women's Ctr., 217 F.Supp.3d at 1319, abortion clinics and their physicians have been subject to a number of regulations in Alabama. In just the last six years, Alabama has passed a host of legislation to regulate how and where abortion care can be provided. The court, however, now mentions only some of those laws.

         In 2011, the State prohibited abortions at 20 or more weeks after fertilization--that is, 22 weeks after the last menstrual period[1]--unless a woman's condition necessitates an abortion to avert her death or “serious risk of substantial and irreversible physical impairment of a major bodily function.” 1975 Ala. Code § 26-23B-5.

         In 2013, the State enacted a law requiring all abortion clinics to meet the same building safety codes applicable to ambulatory surgical centers. 1975 Ala. Code § 26-23E-9. Under that requirement, abortion clinics must meet the standards of the “NFPA 101 Life Safety Code 2000 edition, ” id., which include requirements for egress, fire protection, sprinkler systems, alarms, emergency lighting, smoke barriers, and special hazard protection. To comply with that law, abortion clinics in Alabama conducted extensive renovations or had to purchase new spaces and relocate.

         That same year, the State required all physicians who perform abortions in the State to hold staff privileges at a hospital within the same statistical metropolitan area as the clinic. See 1975 Ala. Code § 26-23E-4(c). This court held the staff-privileges requirement to be unconstitutional. See Planned Parenthood Se., Inc. v. Strange, 33 F.Supp.3d 1330 (M.D. Ala. 2014) (Thompson, J.); see also Planned Parenthood Se., Inc. v. Strange, 172 F.Supp.3d 1275, (M.D. Ala. 2016) (Thompson, J.) (determining appropriate relief).

         In 2014, the State extended from 24 to 48 hours the time physicians must wait between providing informed consent explanations to patients and conducting the abortion procedure. See 1975 Ala. Code § 26-23A-4.

         Also in 2014, Alabama enacted a law modifying the procedures for minors seeking to obtain an abortion. At the time, minors who were unable or unwilling to obtain written consent from their parent or guardian could instead seek judicial approval from a juvenile judge or county court. The new law authorized presiding judges to appoint a guardian ad litem to represent “the interests of the unborn child, ” and required that the county district attorney be notified and joined as a party. 1975 Ala. Code § 26-21-4(i)-(j). These provisions were declared unconstitutional. See Reprod. Health Servs. v. Marshall, ___ F.Supp.3d ___, No. 2:14- CV-1014-SRW, 2017 WL 3223916 (M.D. Ala. July 28, 2017) (Walker, M.J.).

         In 2016, on the same day, Alabama enacted the two statutes now challenged in this litigation: the school-proximity law and the fetal-demise law.

         This year, the Alabama legislature passed a proposed constitutional amendment that declares the State's public policy is “to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life, ” and “to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.” 2017 Ala. Laws Act 2017-188 (H.B. 98) . Alabamians will vote on the amendment in November 2018.

         The vast majority of abortions performed in Alabama occur in the remaining five outpatient clinics.[2] The plaintiffs operate two of the clinics: the Alabama Women's Center, located in Huntsville, and the West Alabama Women's Center, in Tuscaloosa.[3] Together, these two clinics provided 72 % of all abortions in Alabama in 2014. Second Johnson Decl. Ex. D (doc. no. 54-2) at 35.

         The Alabama Women's Center, which opened in 2001, is the only abortion clinic in Huntsville, in the far northern part of the State. The Huntsville metropolitan area, with a population of 417, 593, is Alabama's second largest urban area.[4] In addition to abortion services, the Huntsville clinic provides contraceptive counseling and care, testing and treatment for sexually transmitted infections, pap smears, pregnancy testing, and referrals for prenatal care and adoption. In 2014, approximately 14 % of the abortions in Alabama took place at the Huntsville clinic. Second Johnson Decl. Ex. D (doc. no. 54-2) at 35.

         The West Alabama Women's Center began operations in 1993 and is the only abortion clinic in Tuscaloosa and all of west Alabama. The Tuscaloosa metropolitan area is Alabama's fifth largest urban area. The Tuscaloosa clinic provides reproductive health services to women, including abortions, birth control, treatment for sexually transmitted infections, pregnancy counseling, and referrals for prenatal care and adoption. In 2014, approximately 58 % of the abortions in Alabama took place at the Tuscaloosa clinic, far more than at any other clinic. Second Johnson Decl. Ex. D (doc. no. 54-2) at 35.

         The Tuscaloosa and Huntsville clinics are the only clinics in Alabama that perform abortions at or after 15 weeks of pregnancy. Prior to 15 weeks, most abortions are performed either through the use of medication or the dilation and curettage method, the latter of which uses suction to empty the contents of the uterus. Because, starting at 15 weeks, it ordinarily is not possible to complete an abortion using suction alone, patients must go to clinics that offer D&E. The D&E procedure is a surgical abortion method where a physician uses instruments and suction to remove the fetus and other contents of the uterus. In 2014, the Huntsville and Tuscaloosa clinics provided about 496 abortions starting at 15 weeks, all of which were D&E abortions. AWC Summary of Abortions Performed, Pls.' Ex. 17; WAWC Summary of Abortions Performed, Pls.' Ex. 16. That said, the vast majority of abortions performed by the Huntsville and Tuscaloosa clinics occur prior to 15 weeks and therefore do not involve D&E.

         III. LITIGATION BACKGROUND

         The court will not go into the history of this litigation, which was outlined in the preliminary-injunction opinion, see W. Ala. Women's Ctr., 217 F.Supp.3d at 1320-21, other than to add that, after the preliminary injunction was issued, the parties asked the court to enter a final judgment based on the existing record without conducting any further discovery or evidentiary proceedings. The court granted the parties' joint motion to do so, and now makes its final findings of fact and enters its final conclusions of law.

         IV. LEGAL STANDARDS

         In its most recent discussion of a woman's right to an abortion, the Supreme Court opened its opinion with this succinct statement: “[A] statute which, while furthering a valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends.” Whole Woman's Health, 136 S.Ct. at 2309 (quoting Casey, 505 U.S. at 877 (plurality opinion)).

         Women have a substantive due-process right to terminate a pregnancy before the fetus is viable. To determine whether that right has been violated, the governing standard is “undue burden.” Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 876-79 (1992) (plurality opinion).[5] In Casey, a plurality of the Court concluded that, if a government regulation has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus, ” the regulation is an undue burden on a woman's right to have an abortion and is unconstitutional. Id. at 877. Casey recognized that a woman's right of privacy extends to freedom “from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Id. at 896 (majority opinion) (quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)).

         “[T]he heart of this test is the relationship between the severity of the obstacle and the weight of the justification the State must offer to warrant that obstacle. ... [T]he more severe the obstacle a regulation creates, the more robust the government's justification must be, both in terms of how much benefit the regulation provides towards achieving the State's interests and in terms of how realistic it is the regulation will actually achieve that benefit.” Planned Parenthood Se., Inc. v. Strange, 9 F.Supp.3d 1272, 1287 (M.D. Ala. 2014) (Thompson, J.); see also Whole Woman's Health, 136 S.Ct. at 2309 (the undue-burden analysis requires a court to “consider the burdens a law imposes on abortion access together with the benefits those laws confer”); Planned Parenthood of Wis. v. Van Hollen, 738 F.3d 786, 798 (7th Cir. 2013) (Posner, J.) (“The feebler the [state interest], the likelier the burden, even if slight, [is] to be ‘undue' in the sense of disproportionate or gratuitous.”).

         The undue-burden test requires courts to examine “the [challenged] regulation in its real-world context.” Planned Parenthood Se., Inc. v. Strange, 9 F.Supp.3d 1272, 1287 (M.D. Ala. 2014) (Thompson, J.); Casey, 505 U.S. at 888-98 (majority opinion) (examining the effects of the spousal notification provision on women in abusive relationships). In Whole Woman's Health, the Supreme Court endorsed the district court's consideration of the actual impact of the challenged laws on the Texas abortion clinics and their patients. Whole Woman's Health, 136 S.Ct. at 2312. In concluding that the law imposed an undue burden, the district court, and then the Supreme Court, considered several facts, including that half of Texas clinics closed after enforcement of the law commenced; that clinicians from the El Paso clinic would be unable to gain admitting privileges at hospitals, because not once did they transfer an abortion patient to a hospital; and that the closures resulted in an almost 30-fold increase in the number of women of reproductive age more than 200 miles from a clinic. Id. at 2312-13.

         Courts must consider the burdens imposed by the new law or regulation against the backdrop of existing laws and regulations on abortion in the jurisdiction as well as others enacted at the same time. As Judge Posner explained, “[w]hen one abortion regulation compounds the effects of another, the aggregate effects on abortion rights must be considered.” Planned Parenthood v. Van Hollen, 738 F.3d 786, 796 (7th Cir. 2013), cert. denied, 134 S.Ct. 2841 (2014); accord Planned Parenthood Arizona, Inc. v. Humble, 753 F.3d 905, 915 (9th Cir. 2014) (Fletcher, J.) (describing relevant factors to burdens analysis as including “the ways in which an abortion regulation interacts with women's lived experience, socioeconomic factors, and other abortion regulations”), cert. denied, 135 S.Ct. 870 (2014).

         States may have myriad interests in regulating abortion. These interests may come in all shapes and forms, from protecting fetal life or maternal health to regulating the medical profession. Nevertheless, the State's interests--however legitimate--cannot “place[] a substantial obstacle in the path of a woman's choice [to have a pre-viability abortion].” Whole Woman's Health, 136 S.Ct. at 2309 (quoting Casey, 505 U.S. at 877 (plurality opinion)). And a State's interests surely cannot swallow the right. See Casey, 505 U.S. at 846 (reaffirming the essential holding of Roe v. Wade, 410 U.S. 113 (1973) that “[b]efore viability, the State's interests are not strong enough to support ... the imposition of a substantial obstacle to the woman's effective right to elect the procedure”). The court will now apply the undue-burden test to the facts of this case.

         V. THE SCHOOL-PROXIMITY LAW

         The school-proximity law provides that the Alabama Department of Public Health “may not issue or renew a health center license to an abortion clinic or reproductive health center that performs abortions and is located within 2, 000 feet of a K-8 public school.” 1975 Ala. Code § 22-21-35(b). The parties agree that both the Tuscaloosa and Huntsville clinics are located within 2, 000 feet of at least one K-8 public school. Order on Pretrial Hearing (doc. no. 93), Stip. 3(b) at 13. Each clinic is licensed by the Department; if the school-proximity law were to take effect, the parties agree the Department could not renew either clinic's license to continue operations at its existing location.

         Because no legislative findings accompany the school-proximity law, the court is without an explanation from the legislature of the purpose for the law. The plaintiffs have submitted newspaper articles, to which the State has not objected, that report that Reverend James Henderson, a leader of anti-abortion protesters outside the Huntsville clinic, drafted the bill that ultimately became the school-proximity law, with the purpose of shutting down the Huntsville clinic. Newspaper Article, Second Johnson Decl. Ex. H (doc. no. 54-2) at 56. Another article reported that Governor Robert Bentley's staff offered Henderson assistance in seeking sponsors for the bill. Id. Ex. I at 61.

         The State has asserted that the purpose of the school-proximity law was to further two interests: minimizing disturbance in the educational environment and supporting a parent's right to control his or her children's exposure to the subject of abortion.

         With regard to these interests, the State acknowledges two things. First, the State's interests are threatened by demonstrations outside the clinics, but not by the clinics themselves. Tr. of Final Pre-Trial Status Conf. (doc. no. 99) at 35:1-11. Thus, the school-proximity law attempts to serve the State's interests through an expressed means (the 2000-foot prohibition on clinics) to an unexpressed end (the relocation of the demonstrations away from public K-8 schools). Second, the State does not contend, and the court finds no evidence, that the demonstrators had any effect on the educational environment inside any school; the State concedes that its only concern is disruption outside of schools due to the presence of protesters near the clinics. Id. at 37:9-21.

         In the absence of legislative findings, the court will now, as discussed below, make findings based on the “judicial record” as to the State's two asserted interests. Whole Woman's Health, 136 S.Ct. at 2310 (“[T]he relevant statute here does not set forth any legislative findings. Rather, one is left to infer that the legislature sought to further a constitutionally acceptable objective. ... For a district court to give significant weight to evidence in the judicial record in these circumstances is consistent with this Court's case law.”).

         The court is persuaded that the school-proximity law would impose a substantial obstacle on a woman's right to obtain a pre-viability abortion. As discussed below, the evidence presented to the court reflects that the State's asserted interests are only minimally, if at all, furthered by the law, while the burden imposed on a woman's right to obtain an abortion is substantial.

         A. State's Interests

         The State's interests are furthered by neither the law's means (the 2000-foot prohibition on clinics) nor its end (the relocation of the demonstrations).

         In Tuscaloosa, a middle school sits just within 2, 000 feet of the clinic, but a vast wooded area separates the school and the clinic. Map, Second Gray Decl. Ex. E (doc. no. 54-1) at 77 (showing Tuscaloosa clinic at 1, 986 feet away from middle school); Pl. Ex. 27 (satellite view showing wooded area separating clinic and school); Tr. Vol. II (doc. no. 111) at 106:4-9. Up to five protesters (but usually fewer than that) stand outside the clinic on weekdays, but they are neither visible nor audible to children entering, exiting, or inside the school. Second Gray Decl. (doc. no. 54-1) at ¶ 35; Tr. Vol. II (doc. no. 111) at 104:15-20, 108:24-25 - 109:1-5. Indeed, this court has been presented with no evidence that the children (or parents) at the Tuscaloosa school are even aware that an abortion clinic is located nearby.[6] Because the record does not reflect that any K-8 public school children within 2, 000 feet of the Tuscaloosa clinic are even aware of the clinic or the demonstrations at the clinic, the school-proximity law does not serve either of the State's asserted purposes of minimizing disruption or supporting a parent's right to control his or her children's exposure to the subject of abortion.

         (Image Omitted)

         The Tuscaloosa clinic (A) and its protesters (B) are separated from the nearest school (C) by a large wooded area.

         Pl. Ex. 27 (excerpt).

         The State does not dispute that, while the law impacts the Tuscaloosa clinic, it was targeted to the “perceived problem” at the Huntsville clinic. Tr. Vol. III (doc. no. 112) at 14:12-16.

         In Huntsville, two to 15 protesters stand outside the clinic on weekdays. Tr. Vol. I (doc. no. 110) at 168:5-12 (medical director of Huntsville clinic estimates two to five protesters on a regular basis and up to 10 protesters on weekdays); Second Johnson Decl. (doc. no. 54-2) ¶ 31 (owner of Huntsville clinic estimates five to 15 protesters). Occasionally larger crowds of protesters congregate on weekends, when school is not in session. Tr. Vol. I (doc. no. 110) at 169:5-10; Johnson Dep., Def. Ex. 20 (doc. no. 81-20) at 3:13-18 (describing large rallies with up to 150 protesters). Demonstrators may yell at patients as they enter or exit the clinic. Tr. Vol. I (doc. no. 110) at 216:9-11.

         Two public schools that include some or all of grades K-8--Highlands Elementary School and the Academy for Academics and Arts--are located within 2, 000 feet of the Huntsville clinic.

         The respective entrances to Highlands and the clinic are on different streets, and they are approximately three blocks apart. Id. at 176:18-19, 177:5-6. It is not necessary to drive past the clinic to access the school. Id. at 176:20-23. The record contains absolutely no evidence of concerns expressed by the school's students or their parents about the Huntsville clinic or the demonstrations near it. Thus, as to Highlands, the court finds the State's two interests (minimizing disruption and supporting a parent's right to control their children's exposure to the subject of abortion) would not in any way be furthered by the closing or relocation of the Huntsville clinic.

         (Image Omitted)

         The Huntsville clinic (A) and the two schools, the Academy for Academics and Arts (B) and Highlands Elementary School (C).

         Pl. Ex. 31 (excerpt).

         The Academy for Academics and Arts sits diagonally across a five-lane street from, and to the east of, the Huntsville clinic. Published newspaper articles report that some parents have complained about the presence of protesters near the clinic.[7] But the record reflects no disturbance to the educational environment: no evidence suggests that protests are visible or audible from inside the school; no evidence suggests the classroom setting has been in any way disturbed by the protests; and no evidence suggests that children are hindered or disturbed while entering or exiting the school. In fact, although demonstrators sometimes stand across the street from the Huntsville clinic and close to an Academy driveway, that driveway is not the school's primary driveway and is not typically used by parents who are dropping off or picking up children. Instead, it is used by parents and others to access an attached parking lot if they need to enter the school for business or opt to walk their child into the school, and even then no evidence suggests that children have been hindered or disturbed in those instances. Tr. Vol. II (doc. no. 111) at 26:21-25 - 27:1-3. The entrance used by parents during normal drop-off and pick-up is accessed from another street on the opposite side of the school, and the driveway used by buses bringing children to and from the school is on the same street as the clinic but further up the road. Id. at 27:21-25 - 28:1-8; Tr. Vol. I (doc. no. 110) at 174:16-23; Pl. Ex. 33 (depicting traffic flow at the Academy). Because there is no evidence of disruption to the school's educational environment, the court finds the State's interest in limiting disruption in the educational environment would not be measurably advanced by the closing or relocation of the Huntsville clinic.

         (Image Omitted)

         Traffic pattern at Huntsville's Academy for Academics and Arts. Pl. Ex. 33.

         Also as to the Academy, the State's interest in supporting a parent's right to control his or her children's exposure to the subject of abortion would be only weakly furthered by the closing or relocation of the Huntsville clinic. The State failed to present evidence of a significant problem: the record contains one report of one mother who had to respond to questions from her son, an Academy student, about the subject of abortion after he witnessed a protest. Newspaper Article, Def. Ex. 16 (doc. no. 81-16).

         In addition, the State's statutory means (the closing or relocation of the Huntsville clinic) will not lead to the State's intended end (the relocation of demonstrations away from the Academy). The evidence reflects, and the court so finds, that protests will continue at the Huntsville clinic's current location even if the school-proximity law were to take effect. Anti-abortion protesters have demonstrated not just outside the Huntsville clinic, but also outside the private practice of the clinic's medical director, Dr. Yashica Robinson White, as well as a hospital where she holds admitting privileges. Robinson White Decl. (doc. no. 54-4) ¶¶ 8-10; Tr. Vol. I (doc. no. 110) at 179:2-16; 180:14-20. Because Robinson White previously used the Huntsville clinic's current site for her private obstetrics and gynecology practice, and two and as many as 10 protesters routinely demonstrated outside the facility on weekdays, protests occurred at the site even before it became an abortion clinic. Robinson White Decl. (doc. no. 54-4) ¶ 10; Tr. Vol. I (doc. no. 110) at 166:22-25 - 167:1-5. Robinson White credibly testified that, if the law were to go into effect and the clinic were to close, she would again use the facility for her private practice, which would likely engender protests again. Tr. Vol. I (doc. no. 110) at 181:22-25 - 182:1-12; Robinson White Decl. (doc. no. 54-4) ¶ 16. Moreover, Robinson White testified that, if the clinic closed, she would perform abortions at the facility[8] through her private practice, all but guaranteeing continued protests at the site, irrespective of the passage of the law. Id. As a result, the law will not stop protests at the site.

         Based on the judicial record, the court therefore finds that the school-proximity law would provide little to no benefit to the State's asserted interests in minimizing disruption and supporting a parent's right to control his or her children's exposure to the subject of abortion.[9]

         B. Burdens Imposed on Women

         In addition to examining the State's asserted interests, the court must also “consider the burdens [the] law imposes on abortion access.” Whole Woman's Health, 136 S.Ct. at 2309.

         The parties do not dispute that, if the school-proximity law goes into effect, the State Health Department could not renew the licenses of the Huntsville and Tuscaloosa abortion clinics at their existing locations. After the expiration of their existing licenses, the clinics would need to relocate or shut down. The court finds, based on the judicial record, that the Tuscaloosa clinic and the Huntsville clinic would not be able to relocate and that, as a result, the two clinics would have to shut down if the law were to take effect. Tr. Vol. I (doc. no. 110) at 164:19-25 - 165:1-18; Second Gray Decl. (doc. no. 54-1) ¶ 34; Second Johnson Decl. (doc. no. 54-2) ¶ 3.

         The evidence credibly shows that, because each clinic incurred significant expenses as a result of the surgical-center requirement imposed on abortion providers by the State in 2013, neither clinic would be financially able to relocate now. Because the Huntsville clinic was not able to bring its old building into compliance with the surgical-center standards, it was forced to relocate to a new facility (the place where Robinson White had leased space for her private practice), which cost $ 530, 000 to purchase and more than $ 100, 000 for building renovations. Tr. Vol. I (doc. no. 110) at 160:23-24, 162:1-4. To cover those expenses, Dalton Johnson, the clinic owner, and Robinson White, the medical director and sole physician, incurred significant personal financial debt. Second Johnson Decl. (doc. no. 54-2) ¶ 16 (“In order to purchase the facility, I cashed in all of my retirement savings; borrowed from my life insurance policy; refinanced the mortgage on the Madison Street building and pulled all the equity out of it; took out a $ 100, 000 line of credit; and spent money I had inherited from my father, who had recently passed away. In addition, Dr. Robinson White and I each maxed out every one of our credit cards.”); Tr. Vol. I (doc. no. 110) at 162:11-18 (Robinson White explaining that the clinic owner removed “all of the equity” from his mortgage on the prior clinic facility; and that she and the clinic owner “emptied” their savings accounts, “took all of the cash value” out of their insurance policies, obtained a line of credit through a bank, and “maxed out” all of their credit cards). Johnson remains hundreds of thousands of dollars in debt from these expenses. Second Johnson Decl. (doc. no. 54-2) ¶ 17 (describing outstanding debt on $ 100, 000 line of credit; $ 90, 000 owed to life insurance policy; and hundreds of thousands of dollars remaining on mortgages for both prior and current clinic facilities). The testimony of Robinson White, which the court found highly credible, establishes that she and Johnson have sacrificed significant personal financial resources to continue operating the Huntsville clinic.

         The Tuscaloosa clinic spent $ 130, 000 to renovate its existing facility to comply with the surgical-center requirements. Second Gray Decl. (doc. no. 54-1) ¶ 32. Purchasing a new facility now would require the Tuscaloosa clinic's owner to use retirement funds or go into debt, which she would not be able to pay off at this stage of her career. Id. ¶ 34.

         The Tuscaloosa and Huntsville clinics could not rely on leasing a new facility. Anti-abortion protesters in Alabama have targeted the landlords that lease space to organizations and individuals that provide abortions. After demonstrations targeted the former landlord of the Tuscaloosa clinic, the landlord did not renew the clinic's lease. Id. ¶ 31. Similarly, during an earlier search for a Huntsville facility, Johnson hired real estate agents and engaged in an extensive six-month search, but “each and every time [h]e would meet with the owner or real estate agent of a building [h]e wanted to lease, the moment [h]e informed prospective lessors that [h]e intended to operate an abortion clinic in the space, they would not lease to [him].” Johnson Decl. (doc. no. 54-2) ¶¶ 12, 14. Robinson White explained that, during the Huntsville clinic's recent relocation, the stigma surrounding abortion made it difficult to find a banker and closing attorney to work with them. Tr. Vol. I. (doc. no. 110) at 165:2-11. These difficulties are consistent with the court's previous finding that abortion providers in Alabama face a “climate of extreme hostility to the practice of abortion.” Planned Parenthood Se., 33 F.Supp.3d at 1334. Against this backdrop, the plaintiffs have credibly demonstrated that they would not be able to relocate; the clinics would finally be forced to close.

         The State contends that the burdens analysis should not consider the probable closure of the Huntsville and Tuscaloosa clinics because whether the clinics close depends on “the idiosyncrasies of [the clinics'] specific financial position.” Def. Br. (doc. no. 81) at 9. In other words, the State seems to argue that the court should not consider the actual financial circumstances of the clinics in assessing whether the law would impose an undue burden Alabama women's right to choose an abortion. This contention misapprehends the undue-burden case law.

         As this court has previously explained, the undue-burden analysis requires an examination of the “real-world context” of the challenged statute and its actual effects--and not just those circumstances that are directly attributable to the statute. Planned Parenthood Se., 9 F.Supp.3d at 1285-87. In Casey, the Supreme Court's evaluation of the burdens imposed by a spousal-notification law took into consideration the reality that many women live in abusive relationships, and that requiring notification to an abusive spouse could impose a potentially insurmountable barrier to obtaining an abortion for those women. See Casey, 505 U.S. at 888-898 (majority opinion). Contrary to the State's reasoning, it was not relevant to the Court's analysis that the spousal-notification law did not cause the women to live in abusive relationships, or that the idiosyncrasies of different relationships would result in varying impacts on different women. The Court carefully considered the real-world context in which the law would play out, and, based on that context, determined that the notification requirement would have imposed a substantial obstacle to access to abortion.

         Moreover, “[w]hen one abortion regulation compounds the effects of another, the aggregate effects on abortion rights must be considered.” Van Hollen, 738 F.3d at 796 (Posner, J.). Here, the financial peril of the remaining clinics is a direct result of earlier legislation regulating abortion in the State. The court cannot ignore, and in fact must take into consideration, the financial pressures on the plaintiff clinics resulting from those laws in assessing whether the school-proximity law imposes an undue burden.

         Similarly, courts have repeatedly recognized that legislation that imposes substantial costs on abortion providers places burdens on women's access to abortion because the costs discourage other clinics from opening or filling the gaps caused by closures. In Whole Woman's Health, the Supreme Court observed that the costs of $ 1 to $ 3 million required to achieve compliance with Texas's surgical-center requirement were “considerable.” 136 S.Ct. at 2318. Evidence of those costs, the Court reasoned, “supports the conclusion that more surgical centers will not soon fill the gap when licensed facilities are forced to close.” Id.; see also Casey, 505 U.S. at 901 (plurality opinion) (finding that recordkeeping requirements, which “[a]t most ... increase the cost of some abortions by a slight amount” do not impose an undue burden, but acknowledging that “at some point increased cost could become a substantial obstacle”); Tucson Woman's Clinic v. Eden, 379 F.3d 531, 542 (9th Cir. 2004) (concluding that application of new licensing and regulatory scheme to abortion facilities, which would have required abortion providers to expend “[t]ens of thousands of dollars, ” contributed to undue-burden finding).

         Because new abortion clinics are very unlikely to sprout up to fill the gaps, the closure of two of Alabama's five abortion clinics would leave only three abortion clinics operating in the State--one each in Birmingham, Montgomery and Mobile--while the rest of Alabama, including the highly populated metropolitan areas of Huntsville and Tuscaloosa, would have no licensed abortion providers at all. The resulting burdens on women would be substantial.[10]

         First, women would lose the right to obtain an abortion in Alabama altogether when they reached 15 weeks of pregnancy, because the Tuscaloosa and Huntsville clinics are the only providers of abortions beginning at 15 weeks of pregnancy.[11]

         Second, while abortions before 15 weeks would remain available in Alabama, women who would currently rely on the Huntsville or Tuscaloosa clinics would need to travel significantly greater distances. This burden would become particularly devastating for low-income women who represent the majority of women seeking abortions in Alabama. Katz Decl. (doc. no. 54-11) ¶ 15; see also Second Henshaw Decl. (doc. no. 54-3) ¶ 9 (half of all abortion recipients in the United States have incomes below the federal poverty level). In particular, 82 % of the Tuscaloosa clinic patients live at or below 110 % of the federal poverty level. Gray Decl. (doc. no. 54-1) ¶ 45. In Huntsville, over 60 % of the clinic's patients receive financial assistance from the government. Tr. Vol. I (doc. no. 110) at 206:18-23. If the Huntsville clinic closed, a woman in Huntsville would need to travel at least 200 miles round-trip to Birmingham for the next-closest abortion provider. Without a clinic in Tuscaloosa, a woman there would need to travel at least 110 miles round-trip to Birmingham. Multiple studies have concluded that longer travel distances to access an abortion provider correlate with fewer women obtaining abortions. Second Henshaw Decl. (doc. no. 54-3) ¶¶ 4-8, 19. The court has previously discussed the serious impact of the “first 50 miles” of travel on women seeking abortions, and that “when a clinic closes, the largest effects are actually felt by women who, prior to the closure, needed to travel only short distances, less than 50 miles.” Planned Parenthood Se., 33 F.Supp.3d at 1358-60. The Supreme Court has also recognized that longer travel distances, when taken together with other burdens, increase the burdens on women seeking an abortion. Whole Woman's Health, 136 S.Ct. at 2313 (citing evidence that, after regulation took effect, the number of women living more than 150 and 200 miles from an abortion provider skyrocketed). Here, without the school-proximity law, women in Huntsville and Tuscaloosa could obtain an abortion with a short trip within the city. If the law were to take effect, women in those cities would be required to arrange lengthy out-of-town trips, including obtaining access to transportation, time off from work, childcare, and lodging. Alabama law already requires women to make two trips to the clinic: one to satisfy the informed consent requirement, and one--at least 48 hours later--for the procedure.[12] But not all women have the means to do so, which would either prevent such women from obtaining an abortion altogether or delay their ability to obtain one. Second Henshaw Decl. (doc. no. 54-3) ¶¶ 14, 24 (noting that half of women who experience unwanted delay in obtaining abortions attributed the delay to arrangements such as raising funds, transportation, locating an abortion provider, and organizing childcare).

         The increased difficulty of accessing an abortion clinic would be compounded by the three remaining abortion clinics' lack of sufficient capacity to meet the new demand. As a result, not all women who would choose to have an abortion could obtain one. The Huntsville and Tuscaloosa clinics have performed the majority of abortions in Alabama in recent years: combined, they performed 72 % of all abortions in Alabama in 2014, 60 % of all abortions in 2013, and 55 % of all abortions in 2012. Second Johnson Decl. Ex. D (doc. no. 54-2) at 35-37. Together, the Huntsville and Tuscaloosa clinics performed 5, 833 abortions in 2014, ...


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