The doctor who performed abortions for many years at the West Alabama Women’s Center in Tuscaloosa (“WAWC”) retired at the end of 2014. Pre-existing law (before we were able to strike down the hospital admitting requirements for doctors performing abortions, see Planned Parenthood v. Strange, infra) required that a physician either have admitting privileges OR have a contract with a back-up physician who has such privileges. This was never a problem for WAWC because the doctor performing abortions had admitting privileges from when he had a practice in Tuscaloosa. He ultimately had to give his practice up because of the backlash for performing abortions and performed only abortions at WAWC. WAWC performed approximately 40% of abortions in Alabama and is one of only two clinics in the state that offers early second trimester abortions.
The clinic found a new doctor willing to step in but the doctor was unable to get admitting privileges and WAWC has been unable to find a back-up physician willing to enter into an agreement with the clinic. The clinic has thus been closed since January 2015. This has resulted in a substantial, and detrimental, effect on the ability of women to obtain an abortion in Alabama. The nearest clinic that performs early second trimester abortions is in Huntsville and is operating at near capacity because of the increased number of women seeking services in Huntsville who would have gone to WAWC.
When the doctor could not get privileges and WAWC could not find a back-up doctor, the clinic filed for a waiver from the requirement from the Alabama Department of Public Health. The Department denied the waiver without explanation.
We subsequently filed an as-applied challenge to the requirements. Much of the expert testimony we were able to develop in our Planned Parenthood litigation supports the proposition that the requirement, as applied to WAWC, is both medically unnecessary and creates an undue burden on the right of women seeking an abortion in Alabama. We filed a motion for a temporary restraining order and/or preliminary injunction. The Court granted WAWC a TRO on August 4 and issued its opinion on August 13. West Alabama Women’s Center v. Williamson, 120 F.Supp.3d 1296 (M.D. Ala. 2015). The TRO was then extended until September 1.
Shortly after the opinion was issued, the Department agreed to issue the clinic a one year waiver from the regulation while the Department engages in rulemaking to amend the rule in order to meet the constitutional standard utilized by the Court. The case has been stayed pending that process. The State Board of Health initially rejected the rule change but at a subsequent meeting adopted the rule. However, a provision was added requiring the clinic to give every woman a copy of her medical records before she leaves. We believe this is an unnecessary, and unconstitutional, requirement that may place women in danger if the fact that an abortion was performed becomes known by others. We are challenging this change.
Through heavy procedural wrangling, the Alabama legislature enacted two abortion restriction bills which were signed by the Governor:
(1) prohibiting the Department of Public Health from licensing, or renewing the license of, an abortion clinic within 2000 feet of a public middle or elementary school. The law is designed to force the Huntsville clinic to move – it is across the street from a middle school. However, the law also affects the Tuscaloosa clinic. Combined, these two clinics perform the great majority of abortions in Alabama.
(2) prohibiting the use of dilation and evacuation (“D&E”) as a method to perform an abortion. D&E is the common procedure utilized for an abortion in the second trimester. The Huntsville and Tuscaloosa clinics are the clinics adversely affected by the passage of this law, along with women seeking such an abortion. We are also prepared to challenge this law (with National). Similar bans have been struck down in Kansas and Oklahoma, have failed to pass in South Dakota, Missouri, New Jersey, and have been proposed in several other states.
We moved for leave to file a supplemental complaint to challenge these in West Alabama Women’s Center v. Williamson which was granted. West Alabama Women’s Center v. Williamson, --- F.R.D. ---- 2016 WL 3621273 (M.D. Ala. July 5, 2016). The Court held a 2½ day evidentiary hearing and oral argument on October 4-6, 2016, on our motion for a preliminary injunction and subsequently ruled in our favor. West Alabama Women’s Center v. Williamson, --- F.Supp.3d ---- 2016 WL 6395904 (M.D. Ala. Oct. 27, 2016). We settled the medical records issue with the Department – a medical summary must be offered a patient but the patient may decline.
Following the preliminary injunction hearing, the parties agreed that no further evidence or discovery was necessary and moved the Court to consolidate the PI hearing with a trial on the merits. The Court granted the motion, ordered additional briefing, and will issue a final opinion and order.
In the meantime, the State appealed the preliminary injunction to the Eleventh Circuit. The appeal was fully briefed and oral argument scheduled on October 27, 2017. The day before the oral argument, Judge Thompson issued a final order with a permanent injunction and a 148 page decision. West Alabama Women’s Center v. Miller, --- F.Supp.3d ----, 2017 WL 4843230 (M.D. Ala. Oct. 26, 2017). Consequently, the appeal of the preliminary injunction was moot and the Eleventh Circuit dismissed the appeal. West Alabama Women’s Center v. Miller, 874 F.3d 1306 (11th Cir. 2017). The State filed its notice of appeal on November 22, 2017. Briefing is underway; the State has abandoned its defense of the 2000 foot law.