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West Alabama Women's Center v. Williamson

United States Court of Appeals, Eleventh Circuit

August 22, 2018

WEST ALABAMA WOMEN'S CENTER, on behalf of themselves and their patients, WILLIAM J. PARKER, M.D., on behalf of himself and his patients, ALABAMA WOMEN'S CENTER, YASHICA ROBINSON WHITE, M.D., Plaintiffs-Appellees,
v.
DONALD E. WILLIAMSON, in his official capacity as State Health Officer, et al., Defendants, THOMAS M. MILLER, M.D., in his official capacity as State Health Officer, ATTORNEY GENERAL, STATE OF ALABAMA, LYN HEAD, in her official capacity as District Attorney for Tuscaloosa County, ROBERT L. BROUSSARD, in his official capacity as District Attorney for Madison County, Defendants-Appellants.

          Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:15-cv-00497-MHT-TFM

          Before ED CARNES, Chief Judge, DUBINA, Circuit Judge, and ABRAMS, [*] District Judge.

          ED CARNES, CHIEF JUDGE

         Some Supreme Court Justices have been of the view that there is constitutional law and then there is the aberration of constitutional law relating to abortion.[1]If so, what we must apply here is the aberration.

         I. BACKGROUND

         A. The Act

         This case involves a method of abortion that is clinically referred to as Dilation and Evacuation (D & E). Or dismemberment abortion, as the State less clinically calls it. That name is more accurate because the method involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child. This is usually done during the 15 to 18 week stage of development, at which time the unborn child's heart is already beating.[2]

         At that stage of pregnancy, it is settled under existing Supreme Court decisions that the State of Alabama cannot forbid this method of abortion entirely. See Stenberg, 530 U.S at 945-46, 120 S.Ct. at 2617. Recognizing that, the State has instead sought to make the procedure more humane by enacting the Alabama Unborn Child Protection from Dismemberment Abortion Act, which forbids dismembering a living unborn child. See Ala. Code § 26-23G-2(3).

         Under the Act, the one performing the abortion is required to kill the unborn child before ripping apart its body during the extraction. See id. Killing an unborn child and then dismembering it is permitted; killing an unborn child by dismembering it is not. The parties agree that for these purposes an unborn child is alive while its heart is beating, which usually begins around six weeks. See How Your Fetus Grows During Pregnancy, Am. Coll. of Obstetricians & Gynecologists (April 2018), http://www.acog.org/patients/faqs/ how-your-fetus-grows-during- pregnancy. The Act does have an exception permitting the dismemberment of a living unborn child if “necessary to prevent serious health risk to the unborn child's mother.” Ala. Code § 26-23G-3(a). Dismemberment abortions of a living unborn child that do not fit within that exception are crimes punishable by up to two years imprisonment and fines of $10, 000. Id. § 26-23G-7.

         B. Procedural History

         The plaintiffs are the West Alabama Women's Center, the Alabama Women's Center, and the medical directors of both clinics.[3]In 2016 the plaintiffs sued on behalf of themselves and their present and future patients, claiming that the Act was unconstitutional on its face.[4]

         They then moved for a preliminary injunction barring enforcement of the Act. After holding an evidentiary hearing the district court entered an order preliminarily enjoining enforcement of the Act. In the course of doing so, the court issued an opinion with findings that there are no safe and effective ways for abortion practitioners to comply with the Act by killing the unborn child before dismembering it.

         The State appealed the district court's order. Briefs were filed, the attorneys and three judges prepared for oral argument, but on the very eve of it, the district court issued a permanent injunction and replaced its previous opinion with a longer one. Because of that we had to dismiss as moot the State's appeal from the preliminary injunction. See Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 314, 119 S.Ct. 1961, 1966 (1999) (“Generally, an appeal from the grant of a preliminary injunction becomes moot when the trial court enters a permanent injunction, because the former merges into the latter.”). To keep things going, the State immediately filed an appeal from the judgment granting the permanent injunction; we issued a new briefing schedule and reset oral argument.

         In its opinion accompanying the permanent injunction, the district court found that the Act would effectively eliminate pre-viability abortion access at or after the 15-week mark because none of the State's proposed fetal demise methods were feasible. The court reasoned that the State's proffered interests - which it only assumed were legitimate - could not justify placing what it found to be “substantial, and even insurmountable, obstacles before Alabama women seeking pre-viability abortions.” As a result, the court ruled that the Act “constitutes an undue burden on abortion access and is unconstitutional, ” and it granted as-applied injunctive relief to the plaintiffs. This is the State's appeal.

         II. STANDARDS OF REVIEW

         “We review a district court's decision to grant a permanent injunction for an abuse of discretion.” Estate of Brennan ex rel. Britton v. Church of Scientology Flag Serv. Org., Inc., 645 F.3d 1267, 1272 (11th Cir. 2011). The district court's conclusions of law we review de novo. Id. Its findings of fact we review for clear error. Id. “A finding of fact is clearly erroneous [only] if, upon reviewing the evidence as a whole, we are left with the definite and firm conviction that a mistake has been committed.” U.S. Commodity Futures Trading Comm'n v. Hunter Wise Commodities, LLC, 749 F.3d 967, 974 (11th Cir. 2014) (quotation marks omitted). And “[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511 (1985). The grip of the clearly erroneous standard is even tighter when the district court hears testimony, giving it the opportunity to observe the demeanor of witnesses. See id. at 575, 105 S.Ct. at 1512 (findings based on the credibility of live witnesses are entitled to “even greater deference” because “only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said”).

         The State tries to slip the grip of that narrow standard by contending that most of the facts here are not “adjudicative facts” to which the clear error standard applies but “legislative facts” that we decide de novo. But they aren't. “Legislative facts are established truths, facts or pronouncements that do not change from case to case but apply universally, while adjudicative facts are those developed in a particular case.” United States v. Bowers, 660 F.2d 527, 531 (5th Cir. Unit B 1981) (quotation marks omitted).

         We have recognized a distinction between legislative facts and adjudicative facts in two contexts, neither of which exists here. First, in the area of administrative law, legislative facts can be found in a rulemaking proceeding, while adjudicative facts must be found on a case by case basis through hearings. See, e.g., Broz v. Heckler, 721 F.2d 1297, 1299 (11th Cir. 1983) (holding that the effect of a claimant's age on his ability to work was an adjudicative fact to be determined on a case by case basis). Second, in criminal cases, when a district court takes judicial notice of an adjudicative fact Federal Rule of Evidence 201(f) requires that the court instruct the jury “that it may or may not accept the noticed fact as conclusive.” Fed.R.Evid. 201(f); see also Bowers, 660 F.2d at 531. Not so with a legislative fact.

         The State has not cited, nor have we found, any authority suggesting that the facts on which this case turns are legislative instead of adjudicative.[5]So the clear error standard applies when we get to the facts, but we will begin our discussion with the applicable abortion law.

         III. DISCUSSION

         A. Abortion Law

         The Supreme Court has interpreted the Fourteenth Amendment to bestow on women a fundamental constitutional right of access to abortions. See Roe v. Wade, 410 U.S. 113, 153-54, 93 S.Ct. 705, 727 (1973). About twenty years after a majority of the Court had discovered that right lurking somewhere in the “penumbras of the Bill of Rights” as illuminated by the “concept of ordered liberty, ” id. at 152, 93 S.Ct. at 726, a majority of the Court devised an “undue burden” test to go with it, see Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 964, 112 S.Ct. 2791, 2866 (1992) (Rehnquist, C.J., dissenting) (“The end result of the joint opinion's paeans of praise for legitimacy is the enunciation of a brand new standard for evaluating state regulation of a woman's right to abortion -the ‘undue burden' standard.”). The Court's most recent articulation of that test goes like this:

[T]here exists an undue burden on a woman's right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the purpose or effect of the provision is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.

Whole Woman's Health, 136 S.Ct. at 2300 (quotation marks omitted).

         Over the past couple of decades the Supreme Court has issued several decisions drawing and redrawing the contours of the undue burden standard. Three of those decisions bear on the outcome of this case. First, in Stenberg, the Court struck down a Nebraska law that banned partial birth abortion.[6]530 U.S. at 946, 120 S.Ct. at 2617. The Court found two fatal flaws in that law: (1) it could be construed to ban not only partial birth abortion, but also dismemberment abortion, which is “the most commonly used method for performing previability second trimester abortions, ” id. at 945-46, 120 S.Ct. at 2617; and (2) it had no exception allowing partial birth abortion to preserve the health of the mother, id. at 930, 120 S.Ct. at 2609.

         Seven years later the Court upheld a federal ban on partial birth abortion. Gonzales, 550 U.S. at 133, 127 S.Ct. at 1619. In light of Stenberg the government conceded that the ban would be invalid if it covered dismemberment abortions. Id. at 147, 127 S.Ct. at 1627. But unlike the law at issue in Stenberg, the Court did not construe the federal ban to forbid dismemberment abortions. Id. at 150, 127 S.Ct. at 1629. Because the federal ban advanced legitimate interests and also permitted dismemberment abortions, the Court held that it did not impose an undue burden on a woman's right to choose an abortion. Id. at 160, 164, 127 S.Ct. at 1634-35, 1637; see also id. at 158, 127 S.Ct. at 1633 (“Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.”).

         The Gonzales Court upheld the federal ban despite its lack of an exception permitting partial birth abortion if necessary to preserve the health of the mother, which was one of the fatal flaws afflicting the Nebraska law in Stenberg. Compare id. at 161, 127 S.Ct. at 1635, with Stenberg, 530 U.S. at 930, 120 S.Ct. at 2609. The Court explained that the ban would have been invalid if it subjected women to “significant health risks.” Gonzales, 550 U.S. at 161, 127 S.Ct. at 1635. But there was medical disagreement about whether, given the continuing availability of dismemberment abortions, the federal ban on partial birth abortions “would ever impose significant health risks on women.” And lawmakers have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Id. The Court reasoned that:

Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. The medical uncertainty over whether the [federal ban] creates significant health risks provides a sufficient basis to conclude in this facial attack that the [federal ban] does not impose an undue burden.

Id. at 162-64, 127 S.Ct. at 1636-37 (citation omitted).

         Most recently, in Whole Woman's Health, the Court struck down two Texas regulations that required abortion practitioners to have certain qualifications and abortion clinics to have meet certain physical requirements. 136 S.Ct. at 2300. The Fifth Circuit had reversed the district court for “substituting its own judgment for that of the legislature when it conducted its undue burden inquiry, in part because medical uncertainty underlying a statute is for resolution by legislatures, not the courts.” Id. at 2309 (quotation marks omitted). The Supreme Court responded:

The statement that legislatures, and not courts, must resolve questions of medical uncertainty is . . . inconsistent with [the Supreme] Court's case law. Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings. In Casey, for example, we relied heavily on the District Court's factual findings and the research-based submissions of amici in declaring a portion of the law at issue unconstitutional.

Id. at 2310. After declining to defer to the Texas legislature, the Court struck down the regulations because they “provide[ ] few, if any, health benefits for women, pose[ ] a substantial obstacle to women seeking abortions, and constitute[ ] an ‘undue burden' on their constitutional right to do so.” Id. at 2318.

         B. The State's Interest

         One requirement that Casey and its progeny establish, which is carried in the “purpose or effect” language of the opinions, is that a state regulation that applies to pre-viability stage abortions must have a legitimate or valid purpose other than simply reducing the number of abortions. See id. at 2300. The district court did not decide whether the State had a legitimate interest in requiring that the unborn child be humanely killed before it is torn apart. It only assumed the State did. But, to borrow Holmes' words from another setting, “[t]his is not a matter for polite assumptions; we must look facts in the face.” Frank v. Mangum, 237 U.S. 309, 349, 35 S.Ct. 582, 595 (1915) (Holmes, J., dissenting).

         The facts that show the State's interests furthered by the Act are those that describe what the method of abortion involves. See Gonzales, 550 U.S. at 156, 127 S.Ct. at 1632 (“A description of the prohibited abortion procedure demonstrates the rationale for the [prohibition].”). So we will look those facts in the face, setting them out in language that does not obscure matters for people who, like us, are untrained in medical terminology. See Stenberg, 530 U.S. at 957-58, 120 S.Ct. at 2623 (Kennedy, J., dissenting) (‚ÄúRepeated references to sources understandable only to a trained ...


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