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Robinson v. Marshall

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

October 29, 2019

YASHICA ROBINSON, M.D., et al., on behalf of themselves, their patients, physicians, clinic administrators, and staff, Plaintiffs,
STEVEN MARSHALL, in his official capacity as Alabama Attorney General, Defendant.



         This lawsuit challenges a 2019 Alabama statute, Ala. Act No. 2019-189, that imposes criminal liability on abortion providers for nearly all abortions, completed or attempted, regardless of fetal viability.[1] In essence, the Act imposes a near-total ban on abortion. It is set to take effect on November 15, 2019.

         The plaintiffs are providers of abortion services: Dr. Yashica Robinson, M.D.; Alabama Women's Center; Planned Parenthood Southeast, Inc.; Reproductive Health Services; and West Alabama Women's Center. They sue on behalf of their patients, claiming that the Act is unconstitutional under the Due Process Clause of the Fourteenth Amendment, as enforced through 42 U.S.C. § 1983, because it violates their patients' substantive-due-process rights to liberty and privacy. They also sue on behalf of themselves. The defendant is the State Attorney General, sued in his official capacity. This court's jurisdiction is proper under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343(a)(3) & (4) (civil rights).

         The case is now before the court on the plaintiffs' motion for a preliminary injunction (doc. no. 50). For the reasons detailed below, the motion will be granted with respect to any and all applications of the Act to pre-viability abortion.


         To show that a preliminary injunction is appropriate, the plaintiffs must demonstrate that (1) there is a substantial likelihood that they ultimately will prevail on the merits of the claim; (2) they will suffer irreparable injury unless the injunction issues; (3) the threatened injury to them outweighs whatever damage the proposed injunction may cause the defendant; and (4) the public interest will not be harmed if the injunction should issue. See Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983). The plaintiffs bear the burden to make each showing. See McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998).

         Here, in order to demonstrate a substantial likelihood of success on the merits, the plaintiffs must show that the Act is likely to violate the substantive-due-process rights of individuals seeking abortions in Alabama. The Fourteenth Amendment to the United States Constitution protects a woman's right to terminate her pregnancy. “The woman's right to terminate her pregnancy before viability, ” the Supreme Court has stated, is “a rule of law and a component of liberty we cannot renounce.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 871 (1992) (plurality opinion). The Supreme Court “has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose.” Stenberg v. Carhart, 530 U.S. 914, 921 (2000).

         This right, however, has limits. As the Court recognized in Casey, the State has legitimate interests in protecting maternal health and the potential life of the fetus. A State may regulate abortion to further those interests, but only if the laws in question do not pose an “undue burden” to a woman's right to end her pregnancy. Casey, 505 U.S. at 876-79 (plurality opinion). “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id. at 879. In evaluating regulations of pre-viability abortion, then, courts must “consider[] the burdens a law imposes on abortion access together with the benefits those laws confer.” Whole Woman's Health v. Hellerstedt, 136 S.Ct. 2292, 2309 (2016).

         But unlike laws that regulate the performance of pre-viability abortion, bans on pre-viability abortion require no balancing at all. The United States Constitution forbids the prohibition of abortion prior to fetal viability. “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 Gonzales v. Carhart, 550 U.S. 124, 146 (2007). This bright-line rule governs bans, rather than mere regulations, of pre-viability abortion.


         A. Substantial Likelihood of Success on the Merits

         1. Justiciability

         As a threshold matter, the plaintiffs' success on the merits requires a justiciable case. Here, clear case law supports the plaintiffs' standing to bring suit--a fact that the defendant has acknowledged. See Def.'s Opp'n (doc. no. 64) at 12 (citing precedent that “allows abortion clinics and abortion doctors to assert constitutional claims” on behalf of their patients).

         The plaintiffs sue in part on behalf of their patients.[2]See Complaint (doc. no. 1) at 21. They argue that the Act threatens their patients' substantive-due-process rights, which are guaranteed ...

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