1/18/2021
Alerts not yet Supported for this Docket

CM/ECF - U.S. District Court: ALMD

U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:19-cv-00365-MHT-JTA

MHT-ClerkD

Robinson et al v. Marshall, et al. Assigned to: Honorable Judge Myron H. Thompson Referred to: Honorable Judge Jerusha T. Adams Case in other court: 20-11270-B
20-11401-B Cause: 42:1983 Civil Rights Act

Date Filed: 05/24/2019 Jury Demand: None Nature of Suit: 950 Constitutional - State Statute Jurisdiction: Federal Question

Plaintiff
Yashica Robinson M.D., on behalf of themselves, their patients, physicians, clinic administrators, and staff

represented by Alexa Kolbi-Molinas American Civil Liberties Union 125 Broad St.; 18th Floor New York, NY 10004 212-549-2633 Fax: 212-549-2650 Email: akolbi-molinas@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Brock Boone Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 (334) 956-8468 Fax: (334) 956-8481 Email: brock.boone@splcenter.org TERMINATED: 02/19/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carrie Y. Flaxman Planned Parenthood Federation of America 1110 Vermont Ave, NW - Ste 300 Washington, DC 20005 202-973-4830 Email: carrie.ﬂaxman@ppfa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Meagan Marlis Burrows American Civil Liberties Union Foundation 125 Broad St - 18th Floor New York, NY 10004 212-549-2633

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Plaintiff Alabama Women's Center on behalf of themselves, their patients, physicians, clinic administrators, and staff

CM/ECF - U.S. District Court: ALMD
Email: mburrows@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Randall Charles Marshall ACLU of Alabama Foundation, Inc. P.O. Box 6179 Montgomery, AL 36106-0179 334-420-1741 Fax: 334-269-5666 Email: rmarshall@aclualabama.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Lambiase Planned Parenthood Federation of America 123 William St - 9th Floor New York, NY 10038 212-261-4750 Fax: 212-247-6811 Email: susan.lambiase@ppfa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexa Kolbi-Molinas (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Brock Boone (See above for address) TERMINATED: 02/19/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carrie Y. Flaxman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Meagan Marlis Burrows (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Randall Charles Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Planned Parenthood Southeast Inc. on behalf of themselves, their patients, physicians, clinic administrators, and staff

CM/ECF - U.S. District Court: ALMD
Susan Lambiase (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brock Boone (See above for address) TERMINATED: 02/19/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carrie Y. Flaxman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Charles Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Reproductive Health Services on behalf of themselves, their patients, physicians, clinic administrators, and staff

Susan Lambiase (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexa Kolbi-Molinas (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Brock Boone (See above for address) TERMINATED: 02/19/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carrie Y. Flaxman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Meagan Marlis Burrows (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.almd.uscourts.gov/cgi-bin/DktRpt.pl?189899288222769-L_1_0-1

Randall Charles Marshall (See above for address) LEAD ATTORNEY
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Plaintiff West Alabama Women's Center on behalf of themselves, their patients, physicians, clinic administrators, and staff

CM/ECF - U.S. District Court: ALMD
ATTORNEY TO BE NOTICED
Susan Lambiase (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexa Kolbi-Molinas (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Brock Boone (See above for address) TERMINATED: 02/19/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carrie Y. Flaxman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Meagan Marlis Burrows (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Randall Charles Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Lambiase (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Steven Marshall in his ofﬁcial capacity as Alabama Attorney General

represented by Alexander Barrett Bowdre Alabama Atty General Ofﬁce 501 Washington Ave Montgomery, AL 36130 334-242-7300 Fax: 334-353-8400 Email: barrett.bowdre@alabamaag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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CM/ECF - U.S. District Court: ALMD
Andrew Reid Harris Alabama Attorney General's Ofﬁce 501 Washington Avenue Montgomery, AL 36130 334-353-8891 Email: reid.harris@alabamaag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad A. Chynoweth State of Alabama Ofﬁce of the Attorney General 501 Washington Avenue Post Ofﬁce Box 300152 Montgomery, AL 36130 334.242.7997 Fax: 334.353.8440 Email: Brad.Chynoweth@AlabamaAG.gov TERMINATED: 09/29/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brenton Merrill Smith Ofﬁce of the Attorney General of Alabama 501 Washington Avenue Montgomery, AL 36104 334-353-4336 Fax: 334-353-8400 Email: Brenton.Smith@AlabamaAG.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edmund Gerard LaCour , Jr. Ofﬁce of the Attorney General 501 Washington Ave Montgomery, AL 36130 334-353-2196 Fax: 334-242-4891 Email: elacour@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
James William Davis State of Alabama Ofﬁce of the Attorney General 501 Washington Avenue Montgomery, AL 36130 334-242-7300 Fax: 334-353-8400 Email: Jim.Davis@AlabamaAG.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant
Robert L. Broussard in his ofﬁcial capacity as District Attorney for Madison County TERMINATED: 04/24/2020

CM/ECF - U.S. District Court: ALMD
represented by Brad A. Chynoweth (See above for address) TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James William Davis (See above for address) TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Danny Carr in his ofﬁcial capacity as District Attorney of Jefferson County TERMINATED: 04/24/2020

Edmund Gerard LaCour , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Robert David Segall Copeland Franco Screws & Gill PO Box 347 Montgomery, AL 36101-0347 334-834-1180 Fax: 334-834-3172 Email: segall@copelandfranco.com TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Ashley Rich in her ofﬁcial capacity as District Attorney for Mobile County TERMINATED: 04/24/2020

Edmund Gerard LaCour , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Brad A. Chynoweth (See above for address) TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James William Davis (See above for address) TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Daryl D. Bailey in his ofﬁcial capacity as District Attorney

Edmund Gerard LaCour , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Robert David Segall (See above for address)

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for Montgomery County TERMINATED: 04/24/2020

CM/ECF - U.S. District Court: ALMD
TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Hays Webb in his ofﬁcial capacity as District Attorney of Tuscaloosa County TERMINATED: 04/24/2020

Edmund Gerard LaCour , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Brad A. Chynoweth (See above for address) TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James William Davis (See above for address) TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Scott Harris M.D., in his ofﬁcial capacity as the State Health Ofﬁcer at the Alabama State Department of Public Health TERMINATED: 06/08/2020

Edmund Gerard LaCour , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Brad A. Chynoweth (See above for address) TERMINATED: 09/29/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brenton Merrill Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dana Helton Billingsley Alabama Department of Public Health 201 Monroe Street; Suite 1540 Montgomery, AL 36104 334-206-7952 Fax: 334-206-5874 Email: dana.billingsley@adph.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

James William Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.almd.uscourts.gov/cgi-bin/DktRpt.pl?189899288222769-L_1_0-1

Phillip Brian Hale Alabama Department of Public Health
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Defendant Mark H. LeQuire M.D., in his ofﬁcial capacity as Chairman of the Alabama Board of Medical Examiners TERMINATED: 04/24/2020
Defendant James H. Walburn M.D., in his ofﬁcial capacity as Chairman of the Medical Licensure Commission of Alabama TERMINATED: 04/24/2020
Amicus Sixteen States States of Louisiana, Arkansas, Idaho, Indiana, Kentucky, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia

CM/ECF - U.S. District Court: ALMD
P O Box 303017 Montgomery, AL 36130-3017 334-206-5209 Fax: 334-206-5874 Email: brian.hale@adph.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edmund Gerard LaCour , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Eric Wilson Hunter Alabama Board of Medical Examiners P O Box 946 Montgomery, AL 36101 334-242-4116 Fax: 334-242-4155 Email: whunter@albme.org TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edmund Gerard LaCour , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Wallace Damon Mills Wallace D. Mills, P.C. 621 South Hull St. Montgomery, AL 36104 334-219-9111 Email: mills@wallacemills.com TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edmund Gerard LaCour , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Bryan McDaniel Taylor Bachus Brom & Taylor LLC 300 Vestavia Parkway Suite 3700 Birmingham, AL 35216 334-595-9650 Email: btaylor@bachusbrom.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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V. Movant Greater Birmingham Chapter of the National Organization for Women

CM/ECF - U.S. District Court: ALMD
Elizabeth Baker Murrill Louisiana Department of Justice 1885 N Third St Baton Rouge, LA 70802 225-456-7544 Email: murrille@ag.louisiana.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Scott St. John Louisiana Dept of Justice 1885 N Third St Baton Rouge, LA 70802 225-456-7544 Email: stjohnj@ag.louisiana.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Marcia S. Cohen National Organization for Women 111 2nd Ave NE - Ste 706 St. Petersburg, FL 33701 727-894-4446 Fax: 727-894-6251 Email: legal@now.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/24/2019
05/24/2019 05/24/2019 05/24/2019 05/24/2019 05/24/2019

# Docket Text
1 VERIFIED COMPLAINT for Declaratory and Injunctive Relief against Daryl D. Bailey, Robert L. Broussard, Danny Carr, Scott Harris, Mark H. LeQuire, Steven Marshall, Ashley Rich, James H. Walburn, & Hays Webb, ﬁled by Planned Parenthood Southeast Inc., West Alabama Women's Center, Yashica Robinson, Reproductive Health Services, & Alabama Women's Center. ( Filing fee $400 receipt number 4602053655.) (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet, # 3 Receipt)(am, ) (Entered: 05/24/2019)
2 Conﬂict Disclosure Statement ﬁled by Planned Parenthood Southeast Inc. (am, ) (Entered: 05/24/2019)
3 Conﬂict Disclosure Statement ﬁled by Reproductive Health Services. (am, ) (Entered: 05/24/2019)
4 Conﬂict Disclosure Statement ﬁled by West Alabama Women's Center. (am, ) (Entered: 05/24/2019)
5 Conﬂict Disclosure Statement ﬁled by Yashica Robinson. (am, ) (Entered: 05/24/2019)
6 Conﬂict Disclosure Statement ﬁled by Alabama Women's Center. (am, ) (Entered: 05/24/2019)

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05/24/2019 05/30/2019 05/30/2019 05/30/2019 05/30/2019 05/30/2019 05/31/2019
05/31/2019
05/31/2019
05/31/2019 05/31/2019 05/31/2019 05/31/2019 05/31/2019 05/31/2019

CM/ECF - U.S. District Court: ALMD
7 Summons Issued as to Daryl D. Bailey, Robert L. Broussard, Danny Carr, Scott Harris, Mark H. LeQuire, Steven Marshall, Ashley Rich, James H. Walburn, Hays Webb and mailed CMRRR w/copy of 1 Complaint. (am, ) (Entered: 05/24/2019)
8 Return Receipt Card showing service of summons & complaint signed by Kimie Bush for Mark H. LeQuire served on 5/28/2019, answer due 6/18/2019. (djy, ) (Entered: 05/31/2019)
9 Return Receipt Card showing service of summons & complaint signed by Kimie Bush for James H. Walburn served on 5/28/2019, answer due 6/18/2019. (djy, ) (Entered: 05/31/2019)
10 Return Receipt Card showing service of summons & complaint signed by Cheryle Franks for Hays Webb served on 5/28/2019, answer due 6/18/2019. (djy, ) (Entered: 05/31/2019)
11 Return Receipt Card showing service of summons & complaint signed by J. Braddock for Danny Carr served on 5/28/2019, answer due 6/18/2019. (djy, ) (Entered: 05/31/2019)
12 Return Receipt Card showing service of summons & complaint signed by W. Myrick for Scott Harris served on 5/29/2019, answer due 6/19/2019. (djy, ) (Entered: 05/31/2019)
13 Motion for Alexa Kolbi-Olinas to Appear Pro Hac Vice by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Attachments: # 1 Exhibit Certiﬁcate of Good Standing, # 2 Text of Proposed Order)(Marshall, Randall) Modiﬁed on 5/31/2019 to include name of attorney (qc/djy, ). (Entered: 05/31/2019)
14 Motion for Meagan Burrows to Appear Pro Hac Vice by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, West Alabama Women's Center. (Attachments: # 1 Exhibit Certiﬁcate of Good Standing, # 2 Text of Proposed Order)(Marshall, Randall) Modiﬁed on 5/31/2019 to include name of attorney (qc/djy, ). (Entered: 05/31/2019)
15 Motion for Carrie Flaxman to Appear Pro Hac Vice by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Attachments: # 1 Exhibit Certiﬁcate of Good Standing, # 2 Text of Proposed Order)(Marshall, Randall) Modiﬁed on 5/31/2019 to include name of attorney (qc/djy, ). (Entered: 05/31/2019)
16 NOTICE of Appearance by Dana Helton Billingsley on behalf of Scott Harris (Billingsley, Dana) (Entered: 05/31/2019)
17 Filing fee received for Alexa Kolbi-Olinas re: 13 motion appear pro hac vice: $ 50.00, receipt number 4602053706 (djy, ). (Entered: 05/31/2019)
18 Filing fee received for Meagan Burrows re: 14 motion appear pro hac vice: Filing fee: $ 50.00, receipt number 4602053707 (djy, ) Modiﬁed on 5/31/2019 to clarify text to reﬂect as re: 14 motion (qc/djy, ). (Entered: 05/31/2019)
19 Received pro hac vice Filing fee for Carrie Flaxman re: 15 motion: $ 50.00, receipt number 4602053708 (djy, ) (Entered: 05/31/2019)
20 ORDER granting 13 , 14 , and 15 Motions for Leave to Appear Pro Hac Vice by attorneys Flaxman, Burrows, and Kolbi-Olinas. Signed by Honorable Judge Myron H. Thompson on 5/31/19. (djy, ) (Entered: 05/31/2019)
***Attorney Carrie Y. Flaxman for Alabama Women's Center,Carrie Y. Flaxman for Reproductive Health Services,Carrie Y. Flaxman for Yashica Robinson,Carrie Y. Flaxman

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05/31/2019 05/31/2019 05/31/2019 06/03/2019 06/03/2019
06/03/2019
06/03/2019
06/03/2019 06/05/2019
06/06/2019 06/06/2019 06/06/2019 06/06/2019

CM/ECF - U.S. District Court: ALMD
for West Alabama Women's Center added pursuant to 15 motion to appear pro hac vice (NO PDF document attached to this notice). (djy, ) (Entered: 06/03/2019)
26 Return Receipt Card showing service of summons & complaint signed by Pam Crowe for Ashley Rich served on 5/29/2019, answer due 6/19/2019. (djy, ) (Entered: 06/04/2019)
27 Return Receipt Card showing service of summons & complaint signed by Suzy Vinson for Robert L. Broussard served on 5/29/2019, answer due 6/19/2019. (djy, ) (Entered: 06/04/2019)
***Attorney Phillip Brian Hale for Scott Harris added pursuant to 16 notice (NO PDF document attached to this notice). (djy, ) (Entered: 04/02/2020)
21 NOTICE of Appearance by Robert David Segall on behalf of Daryl D. Bailey, Danny Carr (Segall, Robert) (Entered: 06/03/2019)
22 Joint MOTION to Dismiss def Carr Without Prejudice by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Attachments: # 1 Text of Proposed Order)(Marshall, Randall) Modiﬁed on 6/6/2019 to clarify text to reﬂect as also ﬁled on behalf of Daryl Bailey and Danny Carr (qc/djy, ). (Entered: 06/03/2019)
23 Joint MOTION to Dismiss def Bailey Without Prejudice by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Attachments: # 1 Text of Proposed Order)(Marshall, Randall) Modiﬁed on 6/6/2019 to clarify text to reﬂect as also ﬁled on behalf of Danny Carr & Daryl Bailey (qc/djy, ). (Entered: 06/03/2019)
24 Joint MOTION to Dismiss def Harris Without Prejudice by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Attachments: # 1 Text of Proposed Order)(Marshall, Randall) Modiﬁed on 6/6/2019 to clarify text to reﬂect as also ﬁled on behalf of def Scott Harris (qc/djy, ). (Entered: 06/03/2019)
25 NOTICE of Appearance by Eric Wilson Hunter on behalf of Mark H. LeQuire (Hunter, Eric) (Entered: 06/03/2019)
28 Joint MOTION to Dismiss Defendant LeQuire Without Prejudice by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Attachments: # 1 Text of Proposed Order) (Marshall, Randall) Modiﬁed on 6/6/2019 to clarify text to reﬂect as also ﬁled on behalf of Mark LeQuire (qc/djy, ). (Entered: 06/05/2019)
29 Notice of Deﬁciency requiring ﬁling of Corporate Disclosure/Conﬂict Statement sent to Danny Carr; Corporate Disclosures due by 6/17/2019. (Attachments: # 1 standing order & format)(djy, ) (Entered: 06/06/2019)
30 Notice of Deﬁciency requiring ﬁling of Corporate Disclosure/Conﬂict Statement sent to Daryl Bailey; Corporate Disclosures due by 6/17/2019. (Attachments: # 1 standing order & format)(djy, ) (Entered: 06/06/2019)
31 Notice of Deﬁciency requiring ﬁling of Corporate Disclosure/Conﬂict Statement sent to Mark LeQuire; Corporate Disclosures due by 6/17/2019. (Attachments: # 1 standing order & format)(djy, ) (Entered: 06/06/2019)
32 Notice of Deﬁciency requiring ﬁling of Corporate Disclosure/Conﬂict Statement sent to Scott Harris; Corporate Disclosures due by 6/17/2019. (Attachments: # 1 standing order & format)(djy, ) (Entered: 06/06/2019)

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06/06/2019

CM/ECF - U.S. District Court: ALMD
33 Corporate/Conﬂict Disclosure Statement by Mark H. LeQuire re 31 Notice of Deﬁciency requiring ﬁling of Corporate Disclosure/Conﬂict Statement. (Hunter, Eric) (Entered: 06/06/2019)

06/06/2019

34 Corporate/Conﬂict Disclosure Statement by Scott Harris. (Billingsley, Dana) Modiﬁed on 6/7/2019 to reﬂect as satisfying 32 notice of deﬁciency (qc/djy, ). (Entered: 06/06/2019)

06/06/2019

35 Corporate/Conﬂict Disclosure Statement by Daryl D. Bailey. (Segall, Robert) Modiﬁed on 6/7/2019 to reﬂect as satisfying 30 notice of deﬁciency (qc/djy, ). (Entered: 06/06/2019)

06/06/2019

36 Corporate/Conﬂict Disclosure Statement by Danny Carr. (Segall, Robert) Modiﬁed on 6/7/2019 to reﬂect as satisfying 29 notice of deﬁciency (qc/djy, ). (Entered: 06/06/2019)

06/06/2019

37 NOTICE of Appearance by Brad A. Chynoweth on behalf of Robert L. Broussard, Steven Marshall, Ashley Rich, Hays Webb (Chynoweth, Brad) (Entered: 06/06/2019)

06/06/2019

38 NOTICE of Appearance by James William Davis on behalf of Robert L. Broussard, Steven Marshall, Ashley Rich, Hays Webb (Davis, James) (Entered: 06/06/2019)

06/06/2019

39 Corporate/Conﬂict Disclosure Statement by Robert L. Broussard. (Chynoweth, Brad) (Entered: 06/06/2019)

06/06/2019

40 Corporate/Conﬂict Disclosure Statement by Steven Marshall. (Chynoweth, Brad) (Entered: 06/06/2019)

06/06/2019

41 Corporate/Conﬂict Disclosure Statement by Ashley Rich. (Chynoweth, Brad) (Entered: 06/06/2019)

06/06/2019

42 Corporate/Conﬂict Disclosure Statement by Hays Webb. (Chynoweth, Brad) (Entered: 06/06/2019)

06/07/2019

43 Joint MOTION to Dismiss Dfts Broussard, Webb, and Rich Without Prejudice by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center, Steven Marshall, Robert L. Broussard, Ashley Rich, Hays Webb. (Attachments: # 1 Text of Proposed Order) (Marshall, Randall) Modiﬁed on 6/7/2019 to add as also ﬁled on behalf of Dfts Marshall, Broussard, Rich, & Webb (alm, ). (Entered: 06/07/2019)

06/07/2019

44 ORDER granting 22 , 23 , 24 , 28 , & 43 Joint Motions to Dismiss; Dfts Danny Carr, Daryl D. Bailey, Scott Harris, Mark H. LeQuire, Robert L. Broussard, Ashley Rich, and Hays Webb are dismissed without prejudice from this action, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 6/7/2019. (alm, ) (Entered: 06/07/2019)

06/11/2019

45 NOTICE of Appearance by Edmund Gerard LaCour, Jr on behalf of Steven Marshall (LaCour, Edmund) (Entered: 06/11/2019)

06/17/2019

46 WAIVER OF SERVICE Returned Executed by Planned Parenthood Southeast Inc., West Alabama Women's Center, Yashica Robinson, Reproductive Health Services, Alabama Women's Center. Steven Marshall waiver sent on 6/12/2019, answer due 8/12/2019. (Marshall, Randall) (Entered: 06/17/2019)

06/19/2019

47 NOTICE of Appearance by Wallace Damon Mills on behalf of James H. Walburn (Mills, Wallace) (Entered: 06/19/2019)

06/20/2019

48 Joint MOTION to Dismiss Defendant Walburn without prejudice by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Attachments: # 1 Text of Proposed Order) (Marshall, Randall) Modiﬁed on 6/20/2019 to clarify text to reﬂect as also ﬁled on behalf of James H. Walburn (qc/djy, ). (Entered: 06/20/2019)

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06/20/2019

CM/ECF - U.S. District Court: ALMD
49 ORDER, upon agreement of the parties, it is ORDERED that: (1) the 48 Joint MOTION to Dismiss is granted; (2) Defendant James H. Walburn, M.D., is dismissed without prejudice from this action, and is terminated as a party; (3) Defendant Walburn and his employees, agents, and successors in ofﬁce shall be bound by the terms of any injunctive (including but not limited to a temporary restraining order or preliminary injunction), declaratory, and/or other relief against the Alabama Attorney General and/or any of the other defs by any court in this action so long as such relief remains in effect as to any party, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 6/20/19. (Attachments: # 1 civil appeals checklist)(djy, ) (Entered: 06/20/2019)

06/21/2019

50 MOTION for Preliminary Injunction by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Attachments: # 1 Text of Proposed Order)(Kolbi-Molinas, Alexa) (Entered: 06/21/2019)

06/21/2019

51 MEMORANDUM in Support re 50 MOTION for Preliminary Injunction ﬁled by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Kolbi-Molinas, Alexa) (Entered: 06/21/2019)

06/25/2019 52 ANSWER to 1 Complaint,, by Steven Marshall.(Chynoweth, Brad) (Entered: 06/25/2019)

07/01/2019

53 Motion for Marcia Cohen to Appear Pro Hac Vice ( Filing fee $ 75.00 receipt number 4602054069.) by Greater Birmingham Chapter of the National Organization for Women. (Attachments: # 1 certiﬁcate of good standing, # 2 fee receipt)(djy, ) (Entered: 07/02/2019)

07/02/2019

54 TEXT ORDER granting 53 Motion for Marcia Cohen to Appear Pro Hac Vice. Signed by Honorable Judge Myron H. Thompson on 7/2/2019. (No pdf attached to this entry) (alm, ) (Entered: 07/02/2019)

07/03/2019

55 TEXT ORDER setting Telephone Conference for 7/15/2019 @ 02:45 PM before Honorable Judge Myron H. Thompson. Signed by Honorable Judge Myron H. Thompson on 7/3/19. Furnished to calendar group & AG. (No PDF document attached to this notice).(djy, ) (Entered: 07/03/2019)

07/08/2019

56 MOTION for Susan Lambiase to Appear Pro Hac Vice by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Attachments: # 1 Exhibit certiﬁcate of good standing, # 2 Text of Proposed Order)(Marshall, Randall) (Entered: 07/08/2019)

07/08/2019

57 Pro Hac Vice ﬁling fee received re 56 Motion: $ 75.00, receipt number 4602054144. (alm, ) (Entered: 07/09/2019)

07/08/2019

***Attorney Susan Lambiase for Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, and West Alabama Women's Center added. (NO PDF document attached to this notice-See Docket entry 56 ). (djy, ) (Entered: 07/09/2019)

07/09/2019

58 TEXT ORDER granting 56 Motion for Susan Lambiase Leave to Appear Pro Hac Vice. Signed by Honorable Judge Myron H. Thompson on 7/9/19. (NO PDF document attached to this notice). (djy, ) (Entered: 07/09/2019)

07/15/2019

59 STATUS REPORT (Joint Report of Parties' Pre-Status Conference Meet-and-Confer) by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Marshall, Randall) (Entered: 07/15/2019)

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07/15/2019 07/16/2019 07/16/2019 08/02/2019 08/05/2019 08/05/2019 08/06/2019 08/19/2019
08/19/2019 10/29/2019 10/29/2019
11/19/2019

CM/ECF - U.S. District Court: ALMD
60 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 7/15/2019 (PDF available for court use only). (Recording Time 2:52 - 3:40.) (ag, ) (Entered: 07/16/2019)
61 ORDER directing that on or before 8/5/2019, the def is to ﬁle a response to the plfs' 50 MOTION for Preliminary Injunction. Signed by Honorable Judge Myron H. Thompson on 7/16/19. (djy, ) (Entered: 07/16/2019)
62 ORDER directing that the issue of discovery is set for submission, without oral argument, on 8/19/2019, with the defendant to ﬁle a brief by 8/5/2019, and the plaintiffs to do the same by 8/19/2019. Signed by Honorable Judge Myron H. Thompson on 7/16/19. (djy, ) (Entered: 07/16/2019)
Mail Returned as Undeliverable. Copy of 61 & 62 orders sent to Susan Lambiase returned in mail with the following Notation, "Returned to sender" (NO PDF document attached to this notice). (djy, ) (Entered: 08/05/2019)
63 Response to Order re 62 Order,, Set Deadlines, by Steven Marshall. (LaCour, Edmund) (Entered: 08/05/2019)
64 RESPONSE to Motion re 50 MOTION for Preliminary Injunction ﬁled by Steven Marshall. (LaCour, Edmund) (Entered: 08/05/2019)
65 ORDER directing that, on or before 8/19/2019, plfs are to ﬁle a reply to def's 64 Response to the Motion ﬁled motion for preliminary injunction. Signed by Honorable Judge Myron H. Thompson on 8/6/19. (djy, ) (Entered: 08/06/2019)
66 REPLY to 64 Response to Motion re 50 MOTION for Preliminary Injunction ﬁled by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Kolbi-Molinas, Alexa) Modiﬁed on 8/20/2019 to clarify text to reﬂect as REPLY to 64 RESPONSE (qc/djy, ). (Entered: 08/19/2019)
67 Response to Order re 62 Order,, Set Deadlines, by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Kolbi-Molinas, Alexa) (Entered: 08/19/2019)
68 OPINION. Signed by Honorable Judge Myron H. Thompson on 10/29/19. (djy, ) (Entered: 10/29/2019)
69 PRELIMINARY INJUNCTION, In accordance with the opinion entered today, it isORDERED as follows: (1) plfs Dr. Yashica Robinson, M.D., Alabama Women's Center, Planned Parenthood Southeast, Inc., Reproductive Health Services, and West Alabama Women's Center's 50 motion for a preliminary injunction is granted to the extent set out below; (2) Def Steven Marshall, in his ofﬁcial capacity as Alabama Attorney General, and all those acting in concert with him are ENJOINED and RESTRAINED from: (a) enforcing Alabama Act No. 2019-189 as applied to pre-viability abortion, and (b) failing to give immediate notice of this preliminary injunction to all state and local ofﬁcials who are responsible for enforcing the requirements of Alabama Act No. 2019-189; (3) This preliminary injunction shall remain in effect until this court resolves the case in full; further ORDERING that the bond requirement of Fed. R. Civ. P. 65(c) is waived. Signed by Honorable Judge Myron H. Thompson on 10/29/19. (Attachments: # 1 civil appeals checklist)(djy, ) (Entered: 10/29/2019)
Case reassigned to Honorable Judge Jerusha T. Adams. Honorable Judge Stephen Michael Doyle no longer assigned to the case as presiding judge. (No PDF document attached to this notice). (djy, ) (Entered: 11/19/2019)

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02/04/2020 02/19/2020 02/19/2020 03/03/2020 03/30/2020 03/30/2020
03/30/2020
03/30/2020
03/30/2020 03/30/2020
03/30/2020
03/30/2020

CM/ECF - U.S. District Court: ALMD
70 MOTION to Withdraw as Attorney by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Boone, Brock) (Entered: 02/04/2020)
71 TEXT ORDER granting 70 Motion for Brock Boone to Withdraw as Attorney. Signed by Honorable Judge Myron H. Thompson on 2/19/2020. (NO PDF Document attached to this notice). (djy, ) (Entered: 02/19/2020)
*** Attorney Brock Boone terminated pursuant to 71 text order (NO PDF document attached to this notice). (djy, ) (Entered: 02/19/2020)
MEMORANDUM in Support re 80 MOTION for Leave to File Amicus Brief ﬁled by Sixteen States. (No PDF document attached to this notice-See docket entry 80 ). (djy, ) (Entered: 03/31/2020)
72 Emergency MOTION for Leave to File Supplemental Complaint by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Attachments: # 1 Exhibit Proposed Supplemental Complaint, # 2 Text of Proposed Order)(Marshall, Randall) (Entered: 03/30/2020)
73 Emergency MOTION for Temporary Restraining Order (requesting immediate action) by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Attachments: # 1 TRO Brief, # 2 Text of Proposed Order) (Marshall, Randall). Added MOTION for Preliminary Injunction on 3/30/2020 as shown in main PDF document; Exhibits 1 through 4 contained within main PDF document (qc/djy, ). (Entered: 03/30/2020)
MEMORANDUM OF LAW in Support re 73 Emergency MOTION for Temporary Restraining Order (requesting immediate action) MOTION for Preliminary Injunction ﬁled by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (NO PDF document attached to this notice-see docket entry 73 ). (djy, ) (Entered: 03/30/2020)
74 TEXT ORDER setting conference call re: 73 Emergency MOTION for Temporary Restraining Order on 3/30/2020 @ 2:45 PM before Honorable Judge Myron H. Thompson; counsel will be notiﬁed by e-mail with the conference call number and access code. Signed by Honorable Judge Myron H. Thompson on 3/30/2020. Furnished to calendar group & AG. (NO PDF document attached to this notice). (djy, ) (Entered: 03/30/2020)
75 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 3/30/2020 (PDF available for court use only). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 03/30/2020)
76 NOTICE by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center re 73 Emergency MOTION for Temporary Restraining Order (requesting immediate action) MOTION for Preliminary Injunction Supplemental Authority: Planned Parenthood v. Abbott (Attachments: # 1 Supplement Planned Parenthood v. Abbott)(Marshall, Randall) (Entered: 03/30/2020)
77 NOTICE by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center re 73 Emergency MOTION for Temporary Restraining Order (requesting immediate action) MOTION for Preliminary Injunction Supplemental Authority: Preterm-Cleveland v. AG of Ohio (Attachments: # 1 Supplement PretermCleveland v. AG of Ohio)(Marshall, Randall) (Entered: 03/30/2020)
78 ORDER directing that: (1) plfs' 72 Emergency MOTION for Leave to File

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1/18/2021
03/30/2020
03/30/2020 03/30/2020 03/30/2020 03/30/2020
03/30/2020 03/31/2020 04/01/2020

CM/ECF - U.S. District Court: ALMD
Supplemental Complaint is granted; (2) The plaintiffs shall ﬁle their proposed supplemental complaint, labelled as a "ﬁrst amended complaint," by 5:00 p.m. (central standard time) today; (3) The defendants may ﬁle objections to this order by 5 p.m. (central standard time) on 4/1/2020 ; The plaintiffs may ﬁle a response to the objections by 5:00 p.m. (central standard time) on April 3, 2020. Signed by Honorable Judge Myron H. Thompson on 3/30/2020. (djy, ) (Entered: 03/30/2020)
79 AMENDED COMPLAINT (First Amended Complaint) against Steven Marshall, Daryl D. Bailey, Robert L. Broussard, Danny Carr, Scott Harris, Mark H. LeQuire, Ashley Rich, James H. Walburn, & Hays Webb ﬁled by Planned Parenthood Southeast Inc., West Alabama Women's Center, Yashica Robinson, Reproductive Health Services, Alabama Women's Center. (Attachments: # 1 Exhibit A through D to First Amended Complaint) (Marshall, Randall) Modiﬁed on 3/31/2020 to clarify text to clearly identify exhibits (qc/djy, ). Modiﬁed on 4/2/2020 to reﬂect as also against Daryl D. Bailey, Robert L. Broussard, Danny Carr, Scott Harris, Mark H. LeQuire, Ashley Rich, James H. Walburn, & Hays Webb, these defs no longer terminated from case (qc/djy, ). (Entered: 03/30/2020)
80 MOTION for Leave to File Amicus Brief by Sixteen States. (Attachments: # 1 Proposed Amicus Brief, # 2 Text of Proposed Order Proposed Order)(Taylor, Bryan) Modiﬁed on 3/31/2020 to clarify text to correct name of ﬁling party (qc/djy, ). (Entered: 03/30/2020)
81 NOTICE of Appearance by Bryan McDaniel Taylor on behalf of Sixteen States (Taylor, Bryan) (Entered: 03/30/2020)
82 NOTICE of Appearance by Brenton Merrill Smith on behalf of Steven Marshall (Smith, Brenton) (Entered: 03/30/2020)
83 TEMPORARY RESTRAINING ORDER GRANTING plfs' 73 MOTION for Temporary Restraining Order; Defendants, their agents, and anyone acting in concert with them are TEMPORARILY RESTRAINED from enforcing, threatening to enforce, or otherwise requiring evidence of compliance with the March 27 order against or from abortion providers, clinics, and their staff. This temporary restraining order shall expire on 4/13/2020, at 5:00 p.m., unless extended by the court for good cause shown or by agreement of the parties; further ORDERING that the security requirement of Fed. R. Civ. P. 65(c) is waived and that this injunctive relief is effective upon service; further ORDERING that defs are to submit their response to plf's 73 motion for a preliminary injunction by 5:00 p.m. on Wednesday, 4/1/2020; Plfs will then have until 5:00 p.m. on 4/3/2020, to reply; The court will immediately begin to reconsider the temporary restraining order in light of defs' responses. Signed by Honorable Judge Myron H. Thompson on 3/30/2020. (Attachments: # 1 civil appeals checklist)(djy, ) (Entered: 03/30/2020)
84 ORDER Setting an evidentiary hearing on plfs' 73 MOTION for Preliminary Injunction for 4/6/2020 @ 10:00 AM before Honorable Judge Myron H. Thompson, by videoconferencing; Deputy Clerk of Court Trey Granger will contact the attorneys to make the arrangements. Signed by Honorable Judge Myron H. Thompson on 3/30/2020. Furnished to calendar group, AG and Videoconference. (djy, ) (Entered: 03/30/2020)
85 ORDER directing that the 80 MOTION for Leave to File Amicus Brief is set for Submission, without oral argument, on 4/3/2020, with the parties to ﬁle response on or before said date. Signed by Honorable Judge Myron H. Thompson on 3/31/2020. (djy, ) (Entered: 03/31/2020)
86 Objection to re 78 Order (Defendants' Objection to Order Granting Plaintiffs' Motion to File a Supplemental Complaint (Doc. 78)) ﬁled by Steven Marshall. (Davis, James). (Entered: 04/01/2020)

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04/01/2020

CM/ECF - U.S. District Court: ALMD
87 MOTION to Dissolve Temporary Restraining Order re 83 Temporary Restraining Order by Steven Marshall. (Chynoweth, Brad) . (Entered: 04/01/2020)

04/01/2020

88 Evidentiary Submission re 87 MOTION to Dissolve Temporary Restraining Order re 83 Temporary Restraining Order,,,,, Terminate Motions,,,,, Set Deadlines,,,, ﬁled by Steven Marshall. (Attachments: # 1 Exhibit 03-27-2020 ADPH Order on Statewide Social Distancing Requirements, # 2 Exhibit 3-23-2020 ADPH Order Adopting Deﬁntion of Deﬁnitive Care, # 3 Exhibit 3-20-2020 ADPH Order on Statewide Social Distancing, # 4 Exhibit 03-19-2020 ADPH Order on Statewide Social Distancing, # 5 Exhibit 03-17-2020 ADPH Order on Statewide Social Distancing, # 6 Exhibit 3-06-2020 ADPH Emergency Rule Adding COVID-19 as Notiﬁable Disease, # 7 Exhibit 03-13-2020 Governor's Proclamation of SOE, # 8 Exhibit 03-18-2020 Governor's Proclamation of SOE, # 9 Exhibit 03-20-2020 Governor's Proclamation of SOE, # 10 Exhibit 03-23-2020 Governor's Proclamation of SOE, # 11 Exhibit 03-26-2020 Governor's Proclamation of SOE, # 12 Exhibit 3-27-2020 AG Updated Guidance for Law Enforcement, # 13 Exhibit Induced Termination of Pregnancy Statistics for Alabama 2018, # 14 Exhibit Chart showing growth of COVID-19 in Alabama based on data from ADPH, # 15 Exhibit Scott Harris, MD - Declaration (signed) - 4.1.2020, # 16 Exhibit Declaration of Andy Mullins) (Chynoweth, Brad) (Entered: 04/01/2020)

04/01/2020

89 BRIEF/MEMORANDUM in Support re 87 MOTION to Dissolve Temporary Restraining Order re 83 Temporary Restraining Order,,,,, Terminate Motions,,,,, Set Deadlines,,,, , 73 Emergency MOTION for Temporary Restraining Order (requesting immediate action) MOTION for Preliminary Injunction and Opposition to Motion for Preliminary Injunction ﬁled by Steven Marshall. (Chynoweth, Brad) (Entered: 04/01/2020)

04/01/2020

90 NOTICE of Appearance by Alexander Barrett Bowdre on behalf of Steven Marshall (Bowdre, Alexander) (Entered: 04/01/2020)

04/01/2020

OPPOSITION to 73 Emergency MOTION for Temporary Restraining Order (requesting immediate action) MOTION for Preliminary Injunction by Steven Marshall. (NO PDF document attached to this notice-See Docket entry 89 ). (djy, ) (Entered: 04/07/2020)

04/02/2020

91 ORDER directing that a telephone conference to discuss the 87 MOTION to Dissolve Temporary Restraining Order is set for 4/3/2020 09:00 AM (CST) before Honorable Judge Myron H. Thompson directing the clerk to forward call-in information to the parties. Signed by Honorable Judge Myron H. Thompson on 4/2/2020. Furnished to calendar group & AG to forward call-in information to the parties.(djy, ). (Entered: 04/02/2020)

04/02/2020

92 Motion to Appear Pro Hac Vice by Sixteen States. (Attachments: # 1 Certiﬁcate of Good Standing of Joseph Scott St. John, # 2 Certiﬁcate of Good Standing of Elizabeth Baker Murrill)(Taylor, Bryan) (Entered: 04/02/2020)

04/02/2020

93 RESPONSE to Motion re 80 MOTION for Leave to File Amicus Brief ﬁled by Steven Marshall. (Davis, James) (Entered: 04/02/2020)

04/02/2020

94 NOTICE OF APPEAL as to 83 Temporary Restraining Order, by Steven Marshall (Davis, James) Modiﬁed on 4/2/2020 to clean up text. (dmn, ) Modiﬁed on 4/2/2020 to clarify text to reﬂect as also ﬁled on behalf of Scott Harris (qc/djy, ). (Entered: 04/02/2020)

04/02/2020

95 MOTION to Stay re 83 Temporary Restraining Order (Defendants' Request for Stay of Enforcement of Temporary Restraining Order) by Steven Marshall. (Davis, James). Modiﬁed on 4/2/2020 to clarify text to reﬂect as also ﬁled on behalf of Scott Harris (qc/djy, ). (Entered: 04/02/2020)

04/02/2020

96 ORDER Setting telephone conference re: 95 MOTION to Stay re 83 Temporary Restraining Order for 4/3/2020 @ 09:00 AM (CST) before Honorable Judge Myron

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04/02/2020 04/02/2020 04/02/2020
04/02/2020 04/02/2020 04/03/2020 04/03/2020 04/03/2020 04/03/2020 04/03/2020 04/03/2020

CM/ECF - U.S. District Court: ALMD
H. Thompson.. Signed by Honorable Judge Myron H. Thompson on 4/2/2020. Furnished to calendar group & AG.(djy, ) (Entered: 04/02/2020)
97 ORDER directing that the parties be prepared to discuss the following issues on the call tomorrow, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 4/2/2020. (djy, ) (Entered: 04/02/2020)
***Attorney James William Davis,Brad A. Chynoweth,Brenton Merrill Smith for Scott Harris added pursuant to 94 notice of appeal (NO PDF Document attached to this notice). (djy, ) (Entered: 04/02/2020)
98 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephone Conference Proceedings (PDF ACCESS RESTRICTED FOR 90 DAYS) held on March 30, 2020, before Judge Thompson. Court Reporter/Transcriber Starkie, Telephone number 334-2621221. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS. Redaction Request due 4/23/2020. Redacted Transcript Deadline set for 5/4/2020. Release of Transcript Restriction set for 7/1/2020. (djy, ) (Entered: 04/02/2020)
99 NOTICE by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center re 73 Emergency MOTION for Temporary Restraining Order (requesting immediate action) MOTION for Preliminary Injunction (Corrected Declaration of Yashica Robinson, M.D) (Attachments: # 1 Exhibit 1: Corrected Declaration)(Marshall, Randall) (Entered: 04/02/2020)
***Attorney Elizabeth Baker Murrill,Joseph Scott St. John for Sixteen States added pursuant to 92 motion (NO PDF document attached to this notice). (djy, ) (Entered: 04/07/2020)
100 Appeal Instructions sent to James W. Davis, counsel for Appellant Steve Marshall and Dr. Scott Harris, re 94 Notice of Appeal. A copy of the Transcript Information Form must be mailed to each court reporter from whom you are requesting a transcript. (Attachments: # 1 Transcript Information Form)(dmn, ) (Entered: 04/03/2020)
101 Transmission of 94 Notice of Appeal, 83 Temporary Restraining Order, 73 Emergency Motion for Temporary Restraining Order, and Docket Sheet to US Court of Appeals. (Attachments: # 1 Docket Sheet and Appeal Record)(dmn, ) (Entered: 04/03/2020)
102 USCA Case Number 20-11270-B for 94 Notice of Appeal ﬁled by Scott Harris, Steven Marshall. Fee Status: Fee Not Paid. Awaiting Appellant's Certiﬁcate of Interested Persons due on or before 4/17/2020 as to Appellant Attorney General, State of Alabama. Awaiting Appellee's Certiﬁcate of Interested Persons due on or before 5/1/2020 as to Appellee Alabama Women's Center. (dmn, ) (Entered: 04/03/2020)
103 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Motion Hearing held on 4/3/2020 re 95 MOTION to Stay re 83 Temporary Restraining Order ﬁled by Scott Harris, Steven Marshall (PDF available for court use only). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 04/03/2020)
104 (STRICKEN as an erroneous docket entry-Counsel states this was ﬁled in wrong court) NOTICE of Appearance by Alexa Kolbi-Molinas on behalf of Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center (KolbiMolinas, Alexa) Modiﬁed on 4/3/2020 (qc/djy, ). (Entered: 04/03/2020)
105 NOTICE of ERROR re 104 Notice of Appearance which is hereby STRICKEN pursuant to phone call from E-ﬁling counsel stating the document was ﬁled in the incorrect court.

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04/03/2020 04/03/2020
04/03/2020

CM/ECF - U.S. District Court: ALMD
Please disregard this entry. (djy, ) (Entered: 04/03/2020)
106 REPLY BRIEF re 73 Emergency MOTION for Temporary Restraining Order (requesting immediate action) MOTION for Preliminary Injunction ﬁled by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Marshall, Randall) (Entered: 04/03/2020)
107 RESPONSE to Motion re 80 MOTION for Leave to File Amicus Brief ﬁled by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Marshall, Randall) (Entered: 04/03/2020)
108 RESPONSE to 86 (OBJECTION) to 78 ORDER re 72 Emergency MOTION for Leave to File Supplemental Complaint ﬁled by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Marshall, Randall) Modiﬁed on 4/7/2020 to clarify text to reﬂect as RESPONSE to 86 OBJECTION (qc/djy, ). (Entered: 04/03/2020)
109 NOTICE by Scott Harris, Steven Marshall (Attachments: # 1 Exhibit April 3, 2020 Order of State Health Ofﬁcer Scott Harris)(Davis, James) (Entered: 04/03/2020)
110 NOTICE by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center (Attachments: # 1 Supplemental Declaration, # 2 Attachment 1, # 3 Attachment 2)(Marshall, Randall) . (Entered: 04/03/2020)
111 OPINION AND ORDER directing that the defs' 95 MOTION to Stay enforcement of the 83 Temporary Restraining Order is GRANTED to the extent that the court adopts its order the clariﬁcations agreed upon by the defs regarding the application of the March 27 order to the plfs; the court does not, and cannot, address whether to grant or deny the defendants' 87 motion to dissolve the temporary restraining order since the court no longer has jurisdiction over the temporary restraining order. However, as the court notes above, were the temporary restraining order to be remanded back to this court, the court would vacate it and impose relief to the extent indicated in today's order; further ORDERING that the hearing on the 73 motion for preliminary injunction will proceed on Monday, April 6, 2020, at 10:00 a.m., by videoconferencing. Signed by Honorable Judge Myron H. Thompson on 4/3/2020. (Attachments: # 1 civil appeals checklist). Furnished to calendar group, AG & Video conference group.(djy, ) (Entered: 04/03/2020)
112 Emergency MOTION to Clarify Order 111 by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Marshall, Randall) Modiﬁed on 4/7/2020 to clarify text to relate to 111 order (qc/djy, ). (Entered: 04/03/2020)
113 ORDER directing 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; plfs' 112 Emergency MOTION for clariﬁcation is GRANTED to that extent, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 4/3/2020. (djy, ) (Entered: 04/03/2020)
123 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephone Conference Proceedings (PDF ACCESS RESTRICTED FOR 90 DAYS) held on April 3, 2020, before Judge Thompson. Court Reporter/Transcriber Starkie, Telephone number 334-2621221. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS. Redaction Request due 4/24/2020.

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CM/ECF - U.S. District Court: ALMD
Redacted Transcript Deadline set for 5/4/2020. Release of Transcript Restriction set for 7/2/2020. (djy, ) (Entered: 04/06/2020)

04/05/2020

114 ORDER: It is ORDERED that, by 8:00 a.m. (central time) on 4/6/2020, each party shall ﬁle and share with opposing counsel: (1) A list of witnesses they plan to present at the 10:00 a.m. hearing; and 2) For each witness, a brief summary of each witness's anticipated testimony, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 4/5/2020. (wcl, ) (Entered: 04/05/2020)

04/05/2020

115 ORDER: It is ORDERED that: (1) By 8:00 a.m. (central time) on 4/6/2020, each party shall ﬁle and share with opposing counsel a list of exhibits they plan to use or may use at the 10:00 a.m. hearing. The lists should be divided into exhibits they intend to or may have admitted, and those which are demonstrative only. Each exhibit shall be numbered and brieﬂy described on the list (e.g., "defense exhibit 1: March 27 order") and demonstrative exhibits shall be labelled as such (e.g., "plf's demonstrative exhibit A: chart of XYZ"); (2) By 8:00 a.m. (central time) on 4/6/2020, each party shall email to courtroom deputy Anthony Green at Anthony_Green@almd.uscourts.gov, and to propord_Thompson@almd.uscourts.gov, each listed exhibit in printable PDF format, labelled in accordance with the list; (3) Before beginning to discuss an exhibit with a witness or with the court, counsel shall state on the record that they plan to refer to a particular exhibit, and shall wait until the courtroom deputy conﬁrms that all necessary court participants have the exhibit ready. Opposing counsel shall state on the record when they have the exhibit ready before them. At this point, questioning about or discussion of the exhibit may begin; (4) To the extent possible, the hearing will proceed as if it were taking place in a courtroom. Accordingly, all parties should dress in regular courtroom attire and avoid consuming food or beverages other than water during the hearing. Additionally, all parties should attempt to keep distractions such as pets, music, etc., out of their immediate environment during the hearing; (5) Each participant in the videoconference shall sit alone in proximity to the camera, so that their faces can be easily viewed while they are speaking; Each videoconference participant shall have ready during the hearing a piece of paper with the words "AUDIO OUT" printed in large letters, so that they can display this page in front of the camera in case of a disruption in audio; (6) If any party is disconnected from the hearing or needs to leave the hearing, they shall send a text to Anthony Green to let him know immediately, or in advance if possible, so that he can stop the proceedings if necessary until they can rejoin. Mr. Green will provide his cell phone number to counsel separately; (7) The court assumes that one or both parties may wish to invoke the rule on exclusion of witnesses under Rule 615 of the Federal Rules of Evidence. Accordingly, each party shall ensure that their witnesses do not view or listen to the proceedings prior to their testimony, unless the witness is speciﬁcally authorized to do so by the court. Signed by Honorable Judge Myron H. Thompson on 4/5/2020. (wcl, ) (Entered: 04/05/2020)

04/05/2020 116 Witness List by Scott Harris, Steven Marshall. (Davis, James) (Entered: 04/05/2020)

04/05/2020 117 Exhibit List by Scott Harris, Steven Marshall.. (Davis, James) (Entered: 04/05/2020)

04/05/2020

118 Witness List by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Marshall, Randall) (Entered: 04/05/2020)

04/05/2020

119 Exhibit List by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center.. (Marshall, Randall) (Entered: 04/05/2020)

04/05/2020 120 NOTICE by Scott Harris, Steven Marshall Regarding Their Clariﬁcations of the Public Health Order (LaCour, Edmund) (Entered: 04/05/2020)

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121 Exhibit List (First Supplemental Exhibit List) by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center.. (Marshall, Randall) (Entered: 04/06/2020)
ORDER of USCA as to 94 Notice of Appeal ﬁled by Scott Harris, Steven Marshall, 11th Circuit Appeal No. 20-11270-B: Joint Motion to voluntarily dismiss appeal ﬁled by Appellants Attorney General, State of Alabama and Scott Harris is GRANTED by clerk. (dmn, )(no pdf) Modiﬁed on 4/6/2020 to correct ﬁle date. Document entered on 4/4/2020, ﬁled on 4/6/2020. (dmn, ) (Entered: 04/06/2020)
122 Clerk's Entry of Dismissal issued as Mandate of USCA as to 94 Notice of Appeal ﬁled by Scott Harris, Steven Marshall, 11th Circuit Appeal No. 20-11270-B: Pursuant to Parties Joint motion for voluntary dismissal, FRAP Rule 42 and 11th Cir. R. 42-1(a), the above referenced appeal was duly entered dismissed on this date, effective April 6, 2020. (dmn, ) (Entered: 04/06/2020)
124 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 4/6/2020 (PDF available for court use only). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 04/06/2020)
125 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Motion Hearing held on 4/6/2020 re 73 Emergency MOTION for Temporary Restraining Order (requesting immediate action) MOTION for Preliminary Injunction ﬁled by Alabama Women's Center, West Alabama Women's Center, Yashica Robinson, Reproductive Health Services (PDF available for court use only). (Court Reporter Patricia Starkie.) (Attachments: # 1 Witness List) (ag, ) (Additional attachment(s) added on 4/9/2020: # 2 Exhibit Plaintiffs Exhibits List) (ag, ). (Additional attachment(s) added on 4/9/2020: # 3 Plaintiff Exhibit 4, # 4 Plaintiff Exhibit 5, # 5 Plaintiff Exhibit 6, # 6 Plaintiff Exhibit 7, # 7Plaintiff Exhibit 8, # 8 Plaintiff Exhibit 9, # 9 Plaintiff Exhibit 14, # 10Plaintiff Exhibit 15, # 11 Plaintiff Exhibit 17, # 12Plaintiff Exhibit 18, # 13 Plaintiff Exhibit 22) (ag, ). (Additional attachment(s) added on 4/9/2020: # 14 Plaintiff Exhibit 24) (ag, ). (Additional attachment(s) added on 4/9/2020: # 15Plaintiff Exhibit 23) (ag, ). (Additional attachment(s) added on 4/9/2020: # 16 Defendants Exhibit List) (ag, ). (Additional attachment(s) added on 4/9/2020: # 17 Defendant's Exhibit #1, # 18 Defendants Exhibit 2, # 19 Defendants Exhibit 3, # 20 Defendants EXhbit 4, # 21 Defendants Exhibit 5, # 22 Defendants Exhibit 7, # 23 Defendants Exhibit 8, # 24 Defendants Exhibit 9, # 25 Defendants Exhibit 10, # 26 Defendants Exhibit 11, # 27 Defendants Exhibit 12, # 28 Defendants Exhibit 13, # 29 Defendants Exhibit 14, # 30 Defendants Exhibit 15, # 31 Defendants Exhibit 16, # 32 Defendants Exhibit 17) (ag, ). Modiﬁed on 4/9/2020 (ag, ). (Entered: 04/06/2020)
126 MOTION for Extension of Deadline deadline for ﬁling response to Plaintiffs' First Amended Complaint re 79 Amended Complaint,,, (Defendants' Unopposed Motion to Extend the Deadline for a Responsive Pleading) by Scott Harris, Steven Marshall. (Davis, James) Modiﬁed on 4/10/2020 to correct event to Motion for extension of time to answer (qc/djy, ). (Entered: 04/07/2020)
127 Received Pro Hac Vice for Elizabeth Murrill re: 92 motion Filing fee: $ 75.00, receipt number 4602057512 (djy, ) (Entered: 04/07/2020)
128 Received Pro Hac Vice for Joseph St. John re: 92 motion Filing fee: $ 75.00, receipt number 4602057511. (djy, ) (Entered: 04/07/2020)
129 NOTICE by Scott Harris, Steven Marshall re 73 Emergency MOTION for Temporary Restraining Order (requesting immediate action) MOTION for Preliminary Injunction Notice of Supplemental Authority (Attachments: # 1 Exhibit Supplemental Authority (In

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re Abbott Case no. 20-50264 (5th Cir. Apr. 27, 2020)))(Davis, James) (Entered: 04/07/2020)
130 USCA Appeal Fees received $ 505 receipt number 4602057586 re 94 Notice of Appeal ﬁled by Scott Harris, Steven Marshall, 11th Circuit Appeal No. 20-11270-B. (dmn, ) (Entered: 04/07/2020)
131 NOTICE by Scott Harris, Steven Marshall Notice of Filing of Proposed Order (Attachments: # 1 Text of Proposed Order)(Davis, James) (Entered: 04/08/2020)
132 Proposed (Opinion) Findings of Fact by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Marshall, Randall) Modiﬁed on 4/9/2020 to clarify text to reﬂect as proposed opinion (qc/djy, ). (Entered: 04/08/2020)
133 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Evidentiary Hearing Proceedings via Video Conference (PDF ACCESS RESTRICTED FOR 90 DAYS) held on April 6, 2020, before Judge Thompson. Court Reporter/Transcriber Starkie, Telephone number 334-262-1221. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS. Redaction Request due 4/29/2020. Redacted Transcript Deadline set for 5/11/2020. Release of Transcript Restriction set for 7/7/2020. (djy, ) (Entered: 04/08/2020)
134 TEXT ORDER granting 126 Motion for Extension of Time and extending the deadline to respond to the First Amended Complaint to 4/27/2020. Signed by Honorable Judge Myron H. Thompson on 4/10/2020. (NO PDF Document attached to this notice). (djy, ) (Entered: 04/10/2020)
135 ORDER granting 92 Motion for Joseph Scott St. John and Elizabeth Baker Murrill Leave to Appear Pro Hac Vice. Signed by Honorable Judge Myron H. Thompson on 4/11/2020. (djy, ) (Entered: 04/11/2020)
136 ORDER granting 80 Motion for Leave to File amicus brief. Signed by Honorable Judge Myron H. Thompson on 4/11/2020. (djy, ) (Entered: 04/11/2020)
137 OPINION. Signed by Honorable Judge Myron H. Thompson on 4/12/2020. (djy, ) (Entered: 04/12/2020)
138 (DISSOLVED AS MOOT pursuant to 165 ORDER) PRELIMINARY INJUNCTION, in accordance with the opinion entered today, it is ORDERED as follows: (1) The 73 motion for a preliminary injunction ﬁled by the plfs, is granted in part, denied in part, and held in abeyance in part, as set forth in further detail below; (2) The motion is denied to the extent that it seeks a blanket injunction blocking all enforcement of the "medical restrictions" in the State Health Ofﬁcer's 3/27/2020, and 4/3/2020, state health orders against the plfs and their staff (or of any future order extending the application of the "medical restrictions"). "Medical restrictions" refers to paragraph 7 of the March 27 order and paragraph 14 of the April 3 order and to any identical language in any subsequently issued state health order. (3) The motion is granted to the following extent. The defendants Alabama State Health Ofﬁcer and Alabama Attorney General, and their ofﬁcers, agents, servants, employees, and attorneys, and other persons who are in active concert or participation with any of the aforementioned individuals, are each PRELIMINARILY ENJOINED and RESTRAINED from, when applying and enforcing the "medical restrictions," whether through Ala. Code 1975 22-2-14 or other mechanisms, failing to allow healthcare providers who are determining

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whether to postpone abortions to consider and to base their decisions on the following factors, using the providers' reasonable medical judgment exercised on a case-by-case, individualized basis, as further set out in order; (4) The preliminary injunction shall remain in effect until further order of the court; (5) In light of the temporary restraining order issued in S. Wind Women's Ctr. LLC v. Stitt, No. CIV20-277-G, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020) (Goodwin, J.), the motion is held in abeyance to the extent it seeks relief prohibiting application to all medication abortions of the medical restrictions of the State Health Ofﬁcer's 3/27/2020 and 4/3/2020 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; (6) The bond requirement of Fed. R. Civ. P. 65(c) is waived. Signed by Honorable Judge Myron H. Thompson on 4/12/2020. (Attachments: # 1 civil appeals checklist)(djy, ) Modiﬁed on 5/18/2020 (djy, ). (Entered: 04/12/2020)
139 NOTICE OF APPEAL by Scott Harris, Steven Marshall as to 138 Preliminary Injunction, 137 Opinion entered 4/12/2020. (Davis, James) Modiﬁed on 4/13/2020 to clean up text. (dmn, ) (Entered: 04/13/2020)
140 Appeal Instructions sent to James Davis, counsel for Appellant Steve Marshall and Dr. Scott Harris, re 139 Notice of Appeal. A copy of the Transcript Information Form must be mailed to each court reporter from whom you are requesting a transcript. (Attachments: # 1 Transcript Information Form)(dmn, ) (Entered: 04/13/2020)
141 Transmission of 139 Notice of Appeal, 138 Preliminary Injunction, 137 Opinion, and Docket Sheet to US Court of Appeals. (Attachments: # 1 Docket Sheet and Appeal Record)(dmn, ) (Entered: 04/13/2020)
142 AMICUS BRIEF (Statement of Interest) re 73 Emergency MOTION for Temporary Restraining Order (requesting immediate action) MOTION for Preliminary Injunction ﬁled by Sixteen States. (Taylor, Bryan) Modiﬁed on 4/14/2020 to clarify text to reﬂect as AMICUS BRIEF (qc/djy, ). (Entered: 04/14/2020)
143 ORDER denying as moot defendants' 87 MOTION to Dissolve 83 Temporary Restraining Order. Signed by Honorable Judge Myron H. Thompson on 4/15/2020. (djy, ) (Entered: 04/15/2020)
144 USCA Case Number 20-11401-B for 139 Notice of Appeal ﬁled by Scott Harris, Steven Marshall. Fee Status: Fee Not Paid. Awaiting Appellant's Certiﬁcate of Interested Persons due on or before 4/27/2020 as to Appellant Attorney General, State of Alabama. Awaiting Appellee's Certiﬁcate of Interested Persons due on or before 5/11/2020 as to Appellee Yashica Robinson. (dmn, ) (Entered: 04/15/2020)
145 OPINION AND ORDER directing that the defendants' 86 objections to the court's order granting plaintiffs' motion to ﬁle a supplemental complaint are overruled, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 4/16/2020. (Attachments: # 1 civil appeals checklist)(djy, ) (Entered: 04/16/2020)
146 TRANSCRIPT INFORMATION FORM by Scott Harris, Steven Marshall with the following notation, "All necessary transcript(s) on ﬁle" re 139 Notice of Appeal. (LaCour, Edmund) (Main Document 146 replaced on 4/16/2020) (dmn, ). Modiﬁed on 4/16/2020 to include properly formatted pdf and include additional text. (dmn, ) (Entered: 04/16/2020)
147 ORDER of USCA as to 139 Notice of Appeal ﬁled by Scott Harris, Steven Marshall, 11th Circuit Appeal No. 20-11401-B: Before the Court is Appellants' "Emergency Motion for Stay Pending Appeal." Appellees' response to the motion is due by 1:00 p.m. (EDT) on

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Tuesday, April 21, 2020. ENTERED FOR THE COURT - BY DIRECTION. (no cover letter recd) (dmn, ) (Entered: 04/17/2020)
148 Transcript Acknowledgment Part II and Part III received from Court Reporter Patricia Starkie on 11th Circuit Appeal No. 20-11401-B. All Transcripts on File. This is to certify that the transcript has been completed and ﬁled with the district court on 4/8/2020, 4/3/2020, 4/2/2020. Actual No. of Volumes and Hearing Dates: 3, 3/30/2020, 4/3/2020, 4/6/2020. (dmn, ) (Entered: 04/17/2020)
149 ORDER of USCA as to 139 Notice of Appeal ﬁled by Scott Harris, Steven Marshall, 11th Circuit Appeal No. 20-11401-B: Before the Court is "Appellants' Motion to Expedite Merits Appeal." Appellees' response to the motion is due by 7:00 p.m. (EDT) on Tuesday, April 21, 2020. ENTERED BY THE COURT - BY DIRECTION. (dmn, ) (Entered: 04/17/2020)
150 Joint MOTION to Dismiss Defendants Danny Carr, Daryl D. Bailey, Mark H. LeQuire, Robert L. Broussard, Ashley Rich, Hays Webb, and James H. Walburn, M.D., without prejudice by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Attachments: # 1 Text of Proposed Order)(Marshall, Randall) (Entered: 04/20/2020)
151 USCA Appeal Fees received $ 505 receipt number 4602057596 re 139 Notice of Appeal ﬁled by Scott Harris, Steven Marshall, 11th Circuit Appeal No. 20-11401-B. (dmn, ) (Entered: 04/21/2020)
152 PUBLISHED ORDER of USCA as to 139 Notice of Appeal ﬁled by Scott Harris, Steven Marshall, 11th Circuit Appeal No. 20-11401-B: Motion to Stay Pending Appeal ﬁled by Appellants Attorney General, State of Alabama and Scott Harris is DENIED (see attached order for complete text). (no USCA cover letter) (dmn, ) (Entered: 04/23/2020)
153 ORDER of USCA as to 139 Notice of Appeal ﬁled by Scott Harris, Steven Marshall, 11th Circuit Appeal No. 20-11401-B: "Appellants' Motion to Expedite Merits Appeal" is GRANTED as follows: The Court DIRECTS the Clerk to expedite the appeal for merits disposition purposes, including oral argument. The Court sets the following brieﬁng schedule: the response brief is due 5/6/2020, and the reply brief is due 5/13/2020. The Clerk is DIRECTED to place this appeal on the argument calendar for the week of 5/18/2020. (no USCA cover letter)(dmn, ) (Entered: 04/23/2020)
154 ORDER directing that: (1) the 150 Joint MOTION to Dismiss is granted; (2) Defs Danny Carr, Daryl D. Bailey, Mark H. LeQuire, Robert L. Broussard, Ashley Rich, Hays Webb, and James H. Walburn, M.D., are dismissed without prejudice from this action and are terminated as parties; (3) Defs Carr, Bailey, LeQuire, Broussard, Rich, Webb, and Walburn, and their employees, agents, and successors in ofﬁce, shall be bound by the terms of any injunctive relief (including but not limited to a temporary restraining order or preliminary injunction), declaratory relief, and/or other relief against the Alabama Attorney General and/or any of the other defendant(s) by any court in this action so long as such relief remains in effect as to the Alabama Attorney General and/or any other defendant(s). However, defs Carr, Bailey, LeQuire, Broussard, Rich, Webb, and Walburn, and their employees, agents, and successors, shall not be liable for any award of attorneys' fees, costs, or other monetary damages that might be included as part of such relief, as further set out in order; (4) the court's prior 44 and 49 Orders shall remain in effect. Signed by Honorable Judge Myron H. Thompson on 4/24/2020. (Attachments: # 1 civil appeals checklist)(djy, ) Modiﬁed on 5/22/2020 to correct a typographical error in the docket text (qc/wcl, ). (Entered: 04/24/2020)
155 NOTICE OF ERRATA: The court gives notice of the following errata inthe 137

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Opinion entered on 4/12/2020 as further set out. Signed by Honorable Judge Myron H. Thompson on 4/27/2020. (djy, ) (Entered: 04/27/2020)
156 MOTION TO DISMISS PARTIAl by Scott Harris, Steven Marshall. (Chynoweth, Brad) Modiﬁed on 4/30/2020 to correct event code used for docketing by counsel(qc/djy, ). (Entered: 04/27/2020)
157 BRIEF/MEMORANDUM in Support re 156 PARTIAL MOTION TO DISMISS ﬁled by Scott Harris, Steven Marshall. (Chynoweth, Brad) Modiﬁed on 4/30/2020 to clarify text as in support of partial motion to dismiss (qc/djy, ). (Entered: 04/27/2020)
158 ORDER directing that, on or before noon on 5/5/2020, the parties are to ﬁle a joint report, setting forth either their joint or separate positions, on the current status of the plaintiffs challenge to the "medical restrictions" in the April 3 state health order. Signed by Honorable Judge Myron H. Thompson on 5/1/2020. (djy, ) (Entered: 05/01/2020)
159 STATUS REPORT (Joint Report, see Order, doc. no. 158) by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Attachments: # 1 Exhibit A)(Marshall, Randall) (Entered: 05/05/2020)
160 ORDER of USCA as to 139 Notice of Appeal ﬁled by Scott Harris, Steven Marshall, 11th Circuit Appeal No. 20-11401-W: Motion to ﬁle a Amici Curiae brief is GRANTED. (dmn, ) (Entered: 05/05/2020)
161 ORDER of USCA as to 139 Notice of Appeal ﬁled by Scott Harris, Steven Marshall, 11th Circuit Appeal No. 20-11401-W: BY THE COURT: The parties' "Joint Motion to Voluntarily Dismiss Appeal" is GRANTED. This appeal is DISMISSED. The parties' request to transfer consideration of attorney's fees on appeal to the district court is GRANTED. See 11th Cir. R. 39-2(d). The Clerk's Ofﬁce is directed to close this matter. (dmn, ) (Entered: 05/05/2020)
162 ORDER directing as follows: (1) All deadlines in this case with regard to the plaintiffs' challenge to the "medical restrictions" in the March 27 and April 3 orders are postponed until the parties ﬁle another joint status report. With regard to this challenge, the court will not take any further action until after 5/16/2020; (2) the parties are to ﬁle another joint Status Report by no later than 5:00 pm on 5/16/2020. Signed by Honorable Judge Myron H. Thompson on 5/6/2020. (djy, ) (Entered: 05/06/2020)
163 STATUS REPORT (Joint -- see doc. no. 162) by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Marshall, Randall) Modiﬁed on 5/18/2020 to clarify text to reﬂect as also ﬁled on behalf of Steven Marshall and Scott Harris (qc/djy, ). (Entered: 05/15/2020)
164 ORDER, Pursuant to the parties' 163 joint status report, it is ORDERED that, on or before 5:00 p.m. on 5/22/2020, the parties are to ﬁle a joint motion to dismiss or a joint status report. Signed by Honorable Judge Myron H. Thompson on 5/18/2020. (djy, ) (Entered: 05/18/2020)
165 ORDER pursuant to the parties joint 163 Status Report, it is ORDERED that the 138 Preliminary Injunction entered on 4/12/2020 is dissolved as moot. Signed by Honorable Judge Myron H. Thompson on 5/18/2020. (djy, ) (Entered: 05/18/2020)
166 Notice of STIPULATED Partial Dismissal of the First Amended Complaint by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center, Steven Marshall, Scott Harris. (Marshall, Randall) Modiﬁed on

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05/22/2020 05/27/2020 05/28/2020 06/01/2020 06/01/2020 06/02/2020 06/02/2020 06/05/2020 06/08/2020
07/01/2020

CM/ECF - U.S. District Court: ALMD
5/22/2020 to clarify the docket text and to add the dfts as ﬁlers (qc/wcl, ). (Entered: 05/21/2020)
167 JUDGMENT: Pursuant to the parties' 166 stipulation of partial dismissal, it is the ORDER, JUDGMENT, and DECREE of the court that the following portions of the 79 ﬁrst amended complaint, concerning the 'medical restrictions' language in the now-expired April 3, 2020, public health order, are dismissed without prejudice: (1) the portions of Count I that concern the medical restrictions language in the nowexpired April 3 order, see id. paragraph 129; and (2) the entirety of Count II, see id. paragraphs 13031. Signed by Honorable Judge Myron H. Thompson on 5/22/2020. (Attachments: # 1 Civil Appeals Checklist) (wcl, ) (Entered: 05/22/2020)
168 ORDER: In light of the parties' 166 stipulation of partial dismissal and the court's subsequent 167 judgment, it is ORDERED that the 156 partial motion to dismiss is denied as moot. Signed by Honorable Judge Myron H. Thompson on 5/22/2020. (wcl, ) (Entered: 05/22/2020)
169 MOTION to Withdraw as Attorney by Daryl D. Bailey, Robert L. Broussard, Danny Carr, Scott Harris, Mark H. LeQuire, Steven Marshall, Ashley Rich, James H. Walburn, Hays Webb. (LaCour, Edmund) (Entered: 05/27/2020)
170 TEXT ORDER granting 169 Motion for Edmund LaCour to Withdraw as Attorney.. Signed by Honorable Judge Myron H. Thompson on 5/28/2020. (NO PDF document attached to this notice). (djy, ) (Entered: 05/28/2020)
171 Consent MOTION for Extension of Time to File Motion for Attorney's Fees by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Attachments: # 1 Text of Proposed Order)(Marshall, Randall) (Entered: 06/01/2020)
172 BILL OF COSTS (challenge to Public Health Ofﬁcer's March 27, 2020 emergency order) by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Marshall, Randall) (Entered: 06/01/2020)
173 ORDER granting 171 Motion for Extension of Time and that the plaintiffs are allowed until July 6, 2020, to ﬁle a motion for attorney's fees and non-taxable expenses. Signed by Honorable Judge Myron H. Thompson on 6/2/2020. (djy, ) (Entered: 06/02/2020)
174 Joint MOTION to Dismiss Defendant Harris by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Attachments: # 1 Text of Proposed Order)(Marshall, Randall) (Entered: 06/02/2020)
175 ANSWER to 79 First Amended Complaint by Steven Marshall.(Chynoweth, Brad) (Entered: 06/05/2020)
176 ORDER: it is ORDERED that: (1) The joint motion to dismiss (doc. no. 174 ) is granted. (2) Def Scott Harris is dismissed without prejudice from this action and is terminated as a party. (3) Def Harris and his employees, agents, and successors in ofﬁce shall be bound by the terms of any injunctive relief, as further set out in order. (4) The court's prior orders (doc. nos. 44 , 49 , and 154 ) shall remain in effect. Signed by Honorable Judge Myron H. Thompson on 6/8/2020. (Attachments: # 1 Civil Appeals Checklist) (cwl, ) (Entered: 06/08/2020)
177 MOTION for Attorney Fees by Alabama Women's Center, Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Marshall, Randall) (Entered: 07/01/2020)

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178 ORDER directing as follows: (1) plf's 177 MOTION for Attorneys' Fees and costs is set for ﬁnal submission, without oral argument, on 9/22/2020; (2) to the extent plfs initial submissions do not meet the requirements of this order, plfs are to ﬁle a supplemental brief and evidentiary materials by 8/17/2020, as further set out in order; (3) Defs are to ﬁle their brief and evidentiary materials by 9/8/2020, as further set out in order; (4) plfs may ﬁle a Reply Brief due by 9/22/2020; (5) The discussion of the evidence in the briefs must be accompanied by a speciﬁc reference, by page and line, to where the evidence can be found in the supporting and attached documents, afﬁdavits, depositions, etc. The parties are reminded of the following cautionary instructions from the Eleventh Circuit, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 7/6/2020. (djy, ) (Entered: 07/06/2020)

07/06/2020

179 ORDER, To clarify remaining issues, and because prior brieﬁng focused primarily on whether the Act should be preliminarily enjoined, the court will order brieﬁng on the following topics, as further set out in order; directing that the plaintiffs are to submit brieﬁng, discussing these three topics, by 7/20/2020, at 5:00 p.m.; The defendants are to ﬁle a reply by 8/3/2020, at 5:00 p.m. Signed by Honorable Judge Myron H. Thompson on 7/6/2020. (djy, ) (Entered: 07/06/2020)

07/08/2020

180 Consent MOTION for Extension of Deadline supplemental brieﬁng --currently due July 20 re 179 Order, by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Attachments: # 1 Text of Proposed Order)(Marshall, Randall) (Entered: 07/08/2020)

07/09/2020

181 ORDER GRANTING 180 unopposed MOTION to continue deadlines set forth in the court's 180 order; plfs' brief is due by 5:00 pm on 8/3/2020; defs' reply is due by 5:00 pm on 8/17/2020. Signed by Honorable Judge Myron H. Thompson on 7/9/2020. (djy, ) (Entered: 07/09/2020)

08/03/2020

182 Response to Order re 179 Order, by Alabama Women's Center, Planned Parenthood Southeast Inc., Reproductive Health Services, Yashica Robinson, West Alabama Women's Center. (Marshall, Randall) (Entered: 08/03/2020)

08/11/2020

183 MOTION for Order by Scott Harris, Steven Marshall. (Attachments: # 1 Exhibit Ex. 1 Proposed Order)(Davis, James) (Entered: 08/11/2020)

08/12/2020

184 ORDER GRANTING 183 joint motion foran order concerning costs and attorney' fees, as follows: (1) Plfs Yashica Robinson, M.D., Alabama Womens Center, Reproductive Health Services, and West Alabama Womens Center have asserted claims for costs and attorneys fees; (2) The court ﬁnds that plaintiffs are "prevailing parties" under 42 U.S.C. 198 (3) Pls, defs, and their counsel represent that the parties have negotiated an agreement to resolve all claims for costs and attorneys' fees: (4) In accordance with the parties' negotiated resolution, the court orders that the State of Alabama shall pay to the beneﬁt of counsel for plfs the sum of $ 451,351.60 (four hundred ﬁfty-one thousand three hundred ﬁfty-one and 60/100 dollars) in satisfaction of all claims for costs and attorneys' fees in this matter related to those claims in the First Amended Complaint concerning the State's health orders during the COVID-19 pandemic; (5) Such payments will satisfy all claims for attorneys' fees and costs, taxable and non-taxable, with respect to those claims concerning the State's health orders during the COVID-19 pandemic. Payment shall be made within forty-ﬁve (45) days of the entry of this order; further ORDERING plfs' 177 initial MOTION for Attorney Fees and costs is denied as moot. Signed by Honorable Judge Myron H. Thompson on 8/12/2020. (djy, ) (Entered: 08/12/2020)

08/17/2020 185 Response to Order re 179 Order ﬁled by Steven Marshall. (Chynoweth, Brad) Modiﬁed on 8/17/2020 to clarify the docket text (amf, ). (Entered: 08/17/2020)

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186 MOTION to Withdraw as Attorney by Steven Marshall. (Chynoweth, Brad) (Entered: 09/29/2020)
187 TEXT ORDER granting 186 Motion for Brad Chynoweth o Withdraw as Attorney. Signed by Honorable Judge Myron H. Thompson on 9/29/2020. (NO PDF document attached to this notice). (djy, ) (Entered: 09/29/2020)
*** Attorney Brad A. Chynoweth terminated pursuant to 187 Text order (NO PDF document attached to this notice). (djy, ) (Entered: 09/29/2020)
188 NOTICE of Appearance by Andrew Reid Harris on behalf of Steven Marshall (Harris, Andrew) (Entered: 10/05/2020)

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 Case 2:19-cv-00365-MHT-SMD Document 1 Filed 05/24/19 Page 1 of 28

IN THE UNITED STATES DISTRICT COURTE C E V E D

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

tiAY 21-1 A 8: 03

YASHICA ROBINSON,M.D., ALABAMA WOMEN'S CENTER, PLANNED PARENTHOOD SOUTHEAST INC., REPRODUCTIVE HEALTH SERVICES,and WEST ALABAMA WOMEN'S CENTER,on behalfof themselves,their patients, physicians, clinic administrators,and staff,

DERRA P. HACKETT,CL.K US. ISTRICT COURT
DiSTRICT ALA

Plaintiffs,

v.

STEVEN MARSHALL,in his official capacity as Alabama Attorney General, ROBERT L.BROUSSARD in his official capacity as District Attorney for Madison County,DANNY CARR in his official capacity as District Attorney for Jefferson County, ASHLEY RICH in her official capacity as District Attorney for Mobile County,DARYL CIVIL ACTION NO D.BAILEY,in his official capacity as District Attorney for Montgomery County,HAYS WEBB,in his official capacity as District Attorney for Tuscaloosa County,SCOTT HARRIS, M.D.,in his official capacity as the State Health Office at the Alabama State Department ofPublic Health, MARK H.LEQUIRE,M.D.,in his official capacity as Chairrnan of the Alabama Board of Medical Examiners, and JAMES H.WALBURN,M.D.,in
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his official capacity as Chairman of the Medical Licensure Commission of Alabama,
Defendants. VERIFIED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs, by and through their attorneys, bring this Complaint against the above-named Defendants, their employees,agents,and successors in office,and in support thereof state the following:
INTRODUCTION 1. This is a constitutional challenge,under 42 U.S.C.§ 1983,to House Bill 314(hereinafter"H.B.314"or"the Barn,attached hereto as Exhibit A,which bans nearly all abortions in Alabama. 2. People seek abortions for a multitude ofdiverse,complex,and interrelated factors that are intimately linked to their values and beliefs, culture and religion,health status and reproductive history,familial situation, educational and/or career goals, and resources and economic stability. 3. For over forty-six years—since the Supreme Court decided Roe v. Wade,410 U.S. 113(1973)—U.S.law has recognized the fundamental federal constitutional right to make the profoundly important and personal decision whether or not to terminate a pregnancy. The U.S. Supreme Court has repeatedly recognized that this right is central to obtaining equality and respecting the dignity,
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autonomy,and bodily integrity of all individuals. 4. By criminalizing the performance ofan abortion(or attempted
performance ofan abortion)at all points in pregnancy,H.B.314 directly conflicts with Roe and more than four decades of Supreme Court precedent affirming its central holding.
5. Indeed,H.B.314 was drafted by Eric Johnston ofthe Alabama ProLife Coalition, who said that he fully "expect[s]...holdings of unconstitutionality in the trial court and in the appellate court."' The Ban's sponsor in the Alabama House of Representatives, Republican State Representative Terri Collins, has likewise admitted that H.B. 314 is '`unconstitutional" and that "all our pro-life bills are unconstitutional right now."2
6. Even Govemor Kay Ivey acknowledged,upon signing H.B.314 into law,that Alabama's pre-1973 criminal abortion ban "has been rendered unenforceable as a result ofthe U.S.Supreme Court decision in Roe v. Wade and
1 All Things Considered:Author ofAlabama Restrictive Abortion Bill Wants to RevisitRoe v. , Wade Decision(National Public Radio broadcast May 16,2019)(transcript available at https://www.npr.org/2019/05/16/724089804/author-of-alabama-restrictive-abortion-bill-wantsto-revisit-roe-v-wade-decision). 2 Jenny Jarvie, Conservative states enact abortion bans in hope ofoverturning Roe vs. Wade, LOS ANGELE,S TIMES,May 11,2019,https://www.latimes.comination/la-na-abortion-bans-statesroe-wade-supreme-court-20190511-story.html.
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that H.B.314"may similarly be unenforceable."' 7. Absent an order from this Court,H.B.314 is scheduled to take effect
on November 15,2019,at which point Plaintiffs will be forced to stop providing and/or referring for abortions. Enforcement ofthe Ban will thereby inflict immediate and irreparable harm on Plaintiffs' patients by violating their constitutional rights,threatening their health and well-being,and forcing them to continue their pregnancies to term against their will.
8. Accordingly,Plaintiffs request this Court declare H.B.314 unconstitutional under more than four decades of binding Supreme Court precedent and enjoin its enforcement.
JURISDICTION AND VENUE 9. This Court has subject matterjurisdiction over Plaintiffs' federal claims pursuant to 28 U.S.C.§§ 1331 and 1343. 10. Plaintiffs' action for declaratory and injunctive relief is authorized by 28 U.S.C.§§ 2201 and 2202,Rules 57 and 65 ofthe Federal Rules ofCivil Procedure, and the general legal and equitable powers of this Court. 11. Venue is proper in this Court under 28 U.S.C.§ 1391(b)because a
3 Governor Ivey Issues Statement After Signing the Alabama Human Life Protection Act, Office ofthe Governor,May 15,2019,https://governor.alabama.gov/statements/governor-ivey-issuesstatement-after-signing-the-alabama-human-life-protection-act/.
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substantial part of the events or omissions giving rise to Plaintiffs' claims occur in thisjudicial district and because Defendants Marshall,Bailey,Harris,Lequire,and Walburn, who are sued in their official capacities, carry out their official duties at offices located in this district.
PLAINTIFFS 12. Plaintiff Yashica Robinson,M.D.,is a highly experienced,boardcertified OB-GYN and abortion provider,and is the Medical Director ofthe Alabama Women's Center("AWC")in Huntsville, Alabama.Dr.Robinson provides abortions, which would be banned by H.B.314,at AWC.Dr.Robinson sues on her own behalf and on behalf of her patients. 13. Plaintiff AWC has provided safe and legal abortions in Huntsville, Alabama,for nearly twenty years.In addition to providing abortions, which would be banned by H.B.314,AWC also provides a range of high-quality reproductive health services,including contraceptive counseling and care,testing and treatment for sexually transmitted infections, pregnancy testing and options counseling, and referrals for prenatal care and adoption services. Plaintiff AWC is the sole abortion clinic in Huntsville. AWC sues on its own behalf and on behalf of its patients, clinic administrator, physicians,and staff. 14. PlaintiffPlanned Parenthood Southeast,Inc.("PPSE")is a not-for profit corporation,organized under the laws of Georgia.PPSE,which operates
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seven health centers in Alabama,Georgia,and Mississippi, provides comprehensive reproductive health care,including family planning services, testing and treatment for sexually transmitted infections, cancer screening and treatment, pregnancy testing and all options counseling,and,at four health centers in Georgia,medication abortion. Through a corporate predecessor,PPSE has provided care in Alabama since 1930.PPSE operates two health centers in Alabama,in Birmingham and Mobile.It is currently building a new facility in Birmingham where it will relocate, and renovating its Mobile health center. PPSE has provided abortions in Alabama in the past, and intends to provide abortions again in the near future,before the end ofthe year.In the meantime,PPSE refers its Alabama patients seeking abortions to other providers,including the other Plaintiffs.PPSE sues on its own behalf and on behalfofits patients,clinic administrators, physicians, and staff.
15. Plaintiff Reproductive Health Services("RHS")has provided safe and legal abortion services in Montgornery, Alabama,for nearly four decades.In addition to providing abortions, which would be banned by H.B.314,RHS provides a range of high-quality reproductive health care services,including routine pap smears and well-woman exams;testing for sexually transmitted infections; contraceptive counseling and care,including Depo Provera shots; pregnancy testing and all options counseling; and referrals for pre-natal care and/or
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adoption services. RHS is the only abortion clinic in Montgomery.RHS sues on its own behalf and on behalf ofits patients,clinic administrator, physicians,and staff.
16. Plaintiffs West Alabama Women's Center("WAWC")has provided safe and legal abortions in Tuscaloosa,Alabama,for more than two decades.In addition to providing abortions, which would be banned by H.B. 314,WAWC also provides a range of high-quality reproductive health services,including contraceptive counseling and care,testing and treatment for sexually transmitted infections, pregnancy testing and options counseling, and referrals for prenatal care and adoption services. WAWC is the sole abortion facility in Tuscaloosa. WAWC sues on its own behalf and on behalf of its patients, clinic administrator, physicians, and staff.
DEFENDANTS 17. Defendant Steve Marshall is the Attorney General ofthe State of Alabama,located at 501 Washington Avenue, Montgomery,Alabama.The Attorney General may,at"any time he[]deems proper, ...superintend and direct
the prosecution aany criminal case in any ofthe courts ofthis state," Ala. Code §
36-15-14,and may also "direct any district attorney to aid and assist in the investigation or prosecution of any case in which the state is interested," id. at § 36-15-15. As such,Defendant Marshall is responsible for criminal enforcement of H.B. 314 and Ala. Code § 26-23E-12(c). Defendant Marshall is sued in his official
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capacity. 18. Defendant Robert L. Broussard is District Attorney for Madison
County,located at 100 North Side Square,Huntsville, Alabama. District attorneys have the power to "draw up all indictments and to prosecute all indictable offenses" within theirjurisdiction. Ala. Code § 12-17-184(2). As such,Defendant Broussard is responsible for criminal enforcement of, inter alia, H.B. 314 and Ala. Code § 26-23E-12(c),in Huntsville. Defendant Broussard is sued in his official capacity.
19. Defendant Danny Carr is District Attorney for Jefferson County, located at 801 Richard Arrington Jr. Blvd. N Birmingham, Alabama. District attorneys have the power to "draw up all indictments and to prosecute all indictable offenses" within theirjurisdiction. Ala. Code § 12-17-184(2). As such,Defendant Carr is responsible for criminal enforcement of, inter alia, H.B. 314 and Ala. Code § 26-23E-12(c),in Birmingham.Defendant Carr is sued in his official capacity.
20. Defendant Ashley Rich is District Attorney for Mobile County, located at 205 Government Street, Mobile, Alabama. District attorneys have the power to "draw up all indictments and to prosecute all indictable offenses" within theirjurisdiction. Ala.Code § 12-17-184(2). As such,Defendant Rich is responsible for criminal enforcement of, inter alia, H.B. 314 and Ala. Code § 2623E-12(c),in Mobile.Defendant Rich is sued in her official capacity.
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21. Defendant Daryl D.Bailey is District Attorney for Montgomery County,located at 251 South Lawrence Street, Montgomery,Alabama. District attorneys have the power to "draw up all indictments and to prosecute all indictable offenses" within theirjurisdiction. Ala.Code § 12-17-184(2). As such,Defendant Bailey is responsible for criminal enforcement of, inter alia, H.B. 314 and Ala. Code § 26-23E-12(c),in Montgomery.Defendant Bailey is sued in his official capacity.
22. Defendant Hays Webb is District Attorney for Tuscaloosa County, located at 714 Greensboro Avenue,Suite 410,Tuscaloosa,Alabama. District attorneys have the power to "draw up all indictments and to prosecute all indictable offenses" within theirjurisdiction. Ala. Code § 12-17-184(2). As such,Defendant Webb is responsible for criminal enforcement of,inter alia, H.B.314 and Ala. Code § 26-23E-12(c),in Tuscaloosa. Defendant Webb is sued in his official capacity.
23. Defendant Scott Harris, M.D.,is the State Health Officer at the Alabama State Department ofPublic Health("ADPW),located at 201 Monroe Street, Montgomery,Alabama. Among other things,he is responsible for supervising and directing all activities of ADPH,pursuant to Ala. Code § 22-2-2 et seq.,including the licensing,inspecting,and disciplining of abortion or reproductive health care centers,see id. at § 22-21-20 etseq.; Ala. Admin.Code r.
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420-5-1-.01 et seq. As such, Defendant Harris is responsible for ensuring that patient care at abortion clinics is "rendered in accordance with all applicable .. state ...laws," Ala. Admin.Code r. 420-5-1-.03(1),including H.B.314. Defendant Harris is sued in his official capacity.
24. Defendant Mark H.Lequire,M.D.,is the Chairman ofthe Alabama Board of Medical Examiners("ALBME'),located at 848 Washington Avenue, Montgomery,Alabama. The Board of Medical Examiners may,on its own motion, investigate any evidence which appears to show that a physician is or may be guilty ofany ofthe acts,offenses,or conditions set forth in Ala.Code § 34-24-360, which includes, inter alia, conviction of a felony and '`unprofessional conduct," as defined in the Alabama Administrative Code,and recommend or request that the Medical Licensure Commission of Alabama suspend or revoke the license of a physician. See id. at § 34-24-361; Ala. Admin. Code r. 540-X-1-.07. As such, Defendant Lequire is responsible for initiating actions that could result in penalties or other adverse actions taken against physicians' licenses relating to violations of H.B. 314. Defendant Lequire is sued in his official capacity.
25. Defendant James H. Walburn,M.D.,is the Chairman ofthe Medical Licensure Commission of Alabama("MLCA"),located at 848 Washington Avenue,Montgomery,Alabama.The MLCA shall have the power and duty to suspend,revoke,or restrict any license to practice medicine or osteopathy in the
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State of Alabama or place on probation or fine any licensee whenever the licensee shall be found guilty on the basis of substantial evidence of, inter alia, conviction ofa felony or'`unprofessional conduct," as defined in the Alabama Administrative Code.See Ala. Code § 34-24-360; Ala. Admin.Code r. 545-X-1-.06; Ala. Admin. Code r. 545-X-4-.06.In addition,the MLCA is authorized to "call upon the attorney general, district attorney, or other prosecuting attorneys of this state to assist in any request." Ala. Admin.Code r. 545-X-1-.06(5). As such,Defendant Walburn is responsible for imposing penalties or taking other adverse actions against physicians' licenses relating to violations ofH.B.314.Defendant Walburn is sued in his official capacity.
STATUTORY FRAMEWORK 26. The Ban makes it a crime "for any person to intentionally perform or attempt to perform an abortior'at any stage in pregnancy,except to avert death or "serious health risk." H.B. 314 § 4. 27. The Ban's exception for"serious health risk[s]"is extremely limited and would be difficult,ifnotimpossible,to comply with. For example,the exception requires sign-offfrom a second,and in some cases third,physician,see id. at §§ 3(6), 4(b);it requires certain abortions be performed in a hospital,see id. at § 3(6); and because the definitions are nearly identical, it provides no guidance for physicians to distinguish between a "serious health risk," see id. at § 3(6), and a "medical
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emergency," see id. at § 3(4). 28. In addition to the foregoing exceedingly narrow exception, the Ban
excludes from the definition of abortion a procedure to terminate the pregnancy in cases where the fetus "would die after birth or shortly thereafter or be stillborn." H.B.314§ 3(1),(3).
29. Performance of an abortion in violation of the Ban constitutes a Class A felony, which is punishable by imprisonrnent for 10-99 years. H.B. 314 § 6(a); Ala. Code § 13A-5-6(a)(1).
30. Attempted performance of an abortion in violation of the Ban constitutes a Class C felony, which is punishable by irnprisonment for 1-10 years. H.B. 314 § 6(b); Ala. Code § 13A-5-6(a)(3).
31. Anyone who refers a person for an abortion performed in violation of H.B. 314 may be subject to liability for criminal solicitation or conspiracy, which are Class B felonies punishable by imprisonment for 2-20 years, Ala. Code § 13A4-1,id. at § 13A-4-3,id. at § 13A-5-6,or as an accomplice or for aiding and abetting the performance of an abortion, which carries the same penalties as performing the abortion directly in violation ofH.B.314—a class A felony punishable by imprisonment for 10-99 years, Ala. Code § 13A-2-23, id. at § 13A5-6.
32. Any physician who performs or attempts to perform, or refers for, an 12

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abortion in violation of the Ban may also be subject to medical license probation, suspension,revocation,or restriction and/or fines or other disciplinary action.See Ala. Code § 34-24-360; Ala. Admin. Code r. 545-X-1-.06; Ala. Admin. Code r. 545-X-4-.06; Ala.Code § 34-24-53;Ala. Code § 34-24-361; Ala. Admin.Code r. 540-X-1-.07.
33. Any administrator of a licensed abortion clinic who "knowingly and willfully permits" a physician to perform or attempt to perform,or refer for, abortions in violation of H.B.314 shall be guilty of a Class C felony, which is punishable by imprisonment for 1-10 years. See Ala. Code § 26-23E-12; Ala. Code § 26-23E-6; Ala. Code § 13A-5-6(a)(3).
34. The Ban is set to take effect on November 15,2019,which is six months from the date of the Governor's signature. H.B. 314 § 10. Upon that date, the Plaintiffs will face, inter alia, severe criminal penalties and the risk of adverse licensure and/or disciplinary action, if they continue to perform and/or refer for abortions.
FACTUAL ALLEGATIONS Abortion in Alabama
35. There are only three outpatient clinics currently providing abortions in the state of Alabama—Plaintiff AWC in Huntsville;PlaintiffRHS in Montgomery; and Plaintiff WAWC in Tuscaloosa. While PlaintiffPPSE is not currently providing
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abortions in Alabama,it has done so in the past,and intends to provide them again in the near future.
36. According to published statistics,less than 0.001% ofabortions
perforrned in the entire state were provided in Alabama hospitals in 2017.4 37. Abortion is one of the safest medical procedures in the United States
and is substantially safer than continuing a pregnancy through to childbirth. 38. Abortion is also extremely common;approximately one in four
women in this country will have an abortion by age forty-five.5 39. Some people have abortions because they conclude that it is not the
right time to become a parent given their age,desire to pursue their education
and/or career, or because they feel they lack the necessary financial resources or level ofpartner or familial support or stability. Many are already mothers;indeed,
a majority of women having abortions(59%)already have at least one child.6
4 Ala.Dep't of Health, Ala. Center for Health Statistics, Vital Statistics,Induced Terminations of Pregnancy, Residents ofAlabama,2017, http://www.alabamapublichealth.gov/healthstats/assets/ITOP_2017AL%20.pdf. 5 See Guttrnacher Institute,Abortion Is a Common Experiencefor U.S. Women,Despite Dramatic Declines in Rates,(Oct. 19,2017),https://www.guttmacher.org/newsrelease/2017/abortion-common-experience-us-women-despite-drarnatic-declines-rates. Although abortion bans,like H.B.314,have a disparate impact on women—in particular, women ofcolor,low-income women,and young women—these bans also inflict irreparable constitutional and dignitary harm on members of transgender and gender non-binary communities who likewise need access to abortion services. 6 See Guttmacher Institute, Characteristics of U.S. Abortion Patients in 2014 and Changes Since 2008,(May 2016),https://www.guttmacher.org/report/characteristics-us-abortion-patients-2014.
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40. Some people seek abortions to preserve their life or health; some because they have become pregnant as a result of rape; and others because they decide not to have children at all.
41. Some people who have suffered trauma,such as sexual assault or domestic violence, may be concerned that pregnancy,childbirth,and/or an additional child may exacerbate already extremely difficult and dangerous situations for them and put them at risk of greater sexual or physical violence or worse.
42. Some people decide to have an abortion because of an indication or diagnosis of a fetal medical condition or anomaly. Some families do not feel they have the resources—financial,medical,educational,or emotional—to care for a child with special needs or to simultaneously provide for the children they already have.
43. Ultimately,the decision to terminate a pregnanc.y for any reason is motivated by a combination of diverse,complex,and interrelated factors that are intimately related to the individual's values and beliefs, culture and religion, health status and reproductive history,familial situation,and resources and economic stability.
Alabama's Targeted Campaign Against Abortion 44. H.B.314 is the culmination ofa near-decade long campaign by the
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Alabama legislature to eliminate legal abortion in Alabama. 45. Since 2011,the Alabama legislature has enacted a multitude oflaws
aimed at restricting and ultimately outlawing abortion in the state. This campaign has contributed to, as this Court has recognized,"a climate ofextreme hostility" for"abortion providers and women seeking abortions in Alabama today."Planned Parenthood Se., Inc. v. Strange,33 F.Supp.3d 1330, 1334(M.D. Ala.2014) (Thompson, J).
46. In 2011,the Legislature banned abortions starting at 20 weeks,with exceptions only for abortions necessary to avert death or "serious risk of substantial and irreversible physical impairment of a major bodily function." Ala. Code § 26-23B-5.
47. In 2013,the Legislature imposed burdensome building requirements on abortion clinics,see Ala. Code § 26-23E-9,that forced multiple Alabama abortion clinics to undergo extensive and expensive renovations, and even purchase and relocate to entirely new properties.
48. Also in 2013,the Legislature required all physicians performing abortions in Alabama to hold staff privileges at a hospital within the same statistical metropolitan area as the clinic. See Ala. Code § 26-23E-4(c). That requirement was found unconstitutional by this Court,see, e.g.,Strange,33 F. Supp.3d 1330;Planned Parenthood Se., Inc. v. Strange, 172 F.Supp.3d 1275
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(M.D. Ala. 2016)(Thompson,J.)(determining appropriate relief), and,after the Supreme Court in Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292(2016), struck a virtually identical law,the Attorney General dismissed his appeal stating "there is now no good faith argument that the law is constitutional under controlling precedent." Mot.to Dismiss Appeal,Planned Parenthood Se.,Inc. v. Strange,No. 16-11867(11th Cir. July 15,2016). Cf. W.Alabama Women's Ctr. v. Williamson,120 F.Supp.3d 1296,1317(M.D.Ala. 2015)(enjoining as unconstitutional regulation requiring clinics to contract with physician with admitting privileges).
49. In 2014,the Legislature increased the mandatory wait period between when physicians must provide state-mandated information to patients and when patients can lawfully obtain an abortion from 24 hours to 48 hours. See Ala. Code § 26-23A-4.
50. Also in 2014,the Legislature altered thejudicial bypass process through which a minor may seek a court order waiving the State's requirement she obtain parental consent prior to an abortion.See Ala.Code §§ 26-21-1,etseq. "Appl[ying]38 years ofSupreme Court authority on the subject,as all lower federal courts are bound to do," this Court declared the revisions violated "a pregnant minor's long-established constitutional righ t[s]." Reprod. Health Servs. v. Marshall,268 F.Supp.3d 1261, 1295(M.D. Ala.2017)(Walker,M.J.),appeal
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pending, No. 17-13561 (11th Cir.). 51. In 2016,the Legislature prohibited the ADPH from issuing or
renewing licenses for abortion clinics located within 2,000 feet of a K-8 public school, which would have had the effect ofclosing two ofthe state's then-five clinics and the only clinics in the state providing abortions in the second trimester. Ala. Code § 22-21-35(b). This Court held that law unconstitutional and enjoined its enforcement. W.Alabama Women's Ctr. v. Miller,299 F.Supp.3d 1244,1280-81 (M.D. Ala.2017),aff'd sub nom. W. Alabama Women's Ctr. v. Williamson,900 F.3d 1310(11th Cir. 2018),pet.for cert. pending Harris v. W.Alabama Women's Ctr., No. 18-837(2019).
52. Also in 2016, Alabama banned the most common method of secondtrimester abortion and the only method available in the outpatient setting, effectively banning abortion throughout the state starting at 15 weeks. Once again, this Court issued a permanent injunction against the ban,finding that, were the law to stand,"Alabama women w[ould]be altogether unable to access a safe abortion at or after 15 weeks of pregnancy."Id. at 1244.
The Ban's Impact on Plaintiffs' Patients 53. If allowed to take effect, the Ban will essentially eliminate legal abortion in Alabama.
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54. The impact of the Ban will fall disproportionately on Black women and people who are low-income.
55. Statistics show that in 2017,Black people made up less than 30% of Alabama's population,7 but over 60% of people who obtained abortions in Alabama.'
56. The majority of Plaintiffs' patients are low-income. 57. Being forced to continue a pregnancy against one's will can pose a risk to a person's physical, mental,and emotional health,and even their life, as well as to the stability and well-being oftheir family,including existing children. 58. Even for someone who is otherwise healthy and has an uncomplicated pregnancy,carrying that pregnancy to term and giving birth poses serious medical risk and can have long-term medical and physical consequences. For someone with a medical condition caused or exacerbated by pregnancy,these risks are increased. 59. Forced pregnancy poses a heightened risk in Alabama,and to Black women,in particular.
7 See U.S. Census Bureau, American FactFinder, ACS Demographic and Housing Estimates, 2013-2017 American Community Survey 5-Year Estimates, Alabama,2017, https://factfinder.census.gov/bkmk/table/1.0/en/ACS/17_5YR/DP05/0400000USO. 8 Ala. Dep't of Health, Ala. Center for Health Statistics, Vital Statistics,Induced Terminations of Pregnancy, Residents ofAlabama,2017, http://www.alabamapublichealth.gov/healthstats/assets/ITOP_2017AL%20.pdf.
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60. According to ADPH,nearly two-thirds of Alabama counties lack
hospitals that offer obstetrical care.9
61. Moreover,while the number ofreported pregnancy-related deaths
across the country has steadily increased from 7.2 deaths per 100,000 live births in
1987,to 18.0 deaths per 100,000live births in 2014,10 in Alabama,Black women are
nearly five times more likely to die from pregnancy-related causes than White women.11
62. In addition, Alabama is among the five states with the highest infant mortality rate in the country.12
Injunctive Relief
63. If the Ban is allowed to take effect, Plaintiffs' patients will be subject
to significant and irreparable harm to their constitutional rights for which no
9 Jessica Ravitz,Alabama says it wants to protect life. How does that claim stack up outside the womb?,CNN,May 16,2019,https://www.cnn.com/2019/05/16/health/alabama-treatment-ofliving/index.html. 1° National Center for Chronic Disease Prevention and Health Promotion,Division of Reproductive Health,Pregnancy Mortality Surveillance System,Aug.7,2018, https://www.cdc.gov/reproductivehealth/maternalinfanthealth/pregnancy-mortality-surveillancesystem.htm?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Freproductivehealth%2Fmat ernalinfanthealth%2Fpmss.html. 11 Society for Maternal-Fetal Medicine,Maternal Mortality Facts & Figures:Alabama,Dec.4, 2018,https://s3.amazonaws.com/cdn.smfm.org/mortality_records/2-:state_slug.pdf(accessed via https://www.smfm.org/data/mortality-map). 12 Centers for Disease Control and Prevention,National Center for Health Statistics,Infant Mortality Rates by State: 2017,last updated Jan. 15,2019, https:llwww.cdc.gov/nchs/pressroom/sosmap/infant_mortality_rates/infant_mortality.htm.
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adequate remedy at law exists. By preventing Plaintiffs' patients from obtaining an abortion in Alabama,the Ban will also inflict significant and irreparable medical, emotional,dignitary,and other harms for which no adequate remedy at law exists.
64. Enforcement of the Ban will cause irreparable harm by threatening Plaintiffs and their physicians, clinic administrators, and other staff with substantial criminal and/or licensure penalties for providing abortion services and referring for abortion services.
CLAIM FOR RELIEF (Substantive Due Process — Plaintiffs' Patients' Right to Privacy) 65. Plaintiffs repeat the factual allegations set forth above as fully set forth herein. 66. By prohibiting an individual from making the ultimate decision whether to terminate a pregnancy prior to viability, H.B. 314 violates the rights to liberty and privacy secured to Plaintiffs' patients by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
REQUEST FOR RELIEF WHEREFORE,Plaintiffs respectfully request this Court:
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A. Enter ajudgment declaring H.B.314 violates the Fourteenth Amendment to the United States Constitution and a preliminary and permanent injunction,restraining Defendants, their employees,agents,and successors in office from enforcing H.B.314;
B. To award Plaintiffs their costs and expenses,including reasonable attorneys'fees pursuant to 42 U.S.C.§ 1988;and
C. To grant any additional relief as may be just and proper.
Respectfully submitted this 24th day of May,2019.
Randall C. Marshall Randall C. Marshall ASB-3023-A56M Brock Boone ASB-2864-L11E ACLU OF ALABAMA P.O. Box 6179 Montgomery, AL 36106-0179 (334)420-1741 (334)420-1747 nnarshall@aclualabama.org bboone@aclualabama.org Attorneysfor Plaintiffs Alexa Kolbi-Molinas* New York State Bar No.4477519
22

Case 2:19-cv-00365-MHT-SMD Document 1 Filed 05/24/19 Page 23 of 28
Meagan Burrows* New York State Bar No.5341904 AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 akolbi-molinas@aclu.org mburrows@aclu.org (212)549-2633 Attorneysfor Plaintiffs Robinson, AWC, RHS,and WAWC. Carrie Y. Flaxman* District of Columbia Bar #458681 Planned Parenthood Federation of America 1110 Vermont Avenue,NW,Suite 300 Washington, D.C. 20005 carrie.flaxman@ppfa.org (202)973-4830 Attorneyfor PlaintiffPlanned Parenthood Southeast, Inc. *Pro hac vice motionsforthcoming
23

Case 2:19-cv-00365-MHT-SMD Document 1 Filed 05/24/19 Page 24 of 28
DECLARATION I declare under penalty ofperjury under the laws ofthe United States of America that the statements contained in the Complaint are true and correct to the best of my knowledge and belief.
,104LCe0e/(,,NT& 10 ashica Robinson,NUJ Medical Director Alabama Women's Center Executed on: 5f2.21161

Case 2:19-cv-00365-MHT-SMD Document 1 Filed 05/24/19 Page 25 of 28
DECLARATION I declare under penalty of perjury under the laws of the United States of America that the statements contained in the Complaint are true and correct to the best of my knowledge and belief.
Dalto Johnso Owner and Administrator Alabama Women's Center
Executed on: 5/22/ cl

Case 2:19-cv-00365-MHT-SMD Document 1 Filed 05/24/19 Page 26 of 28
DECLARATION I declare under penalty ofperjury under the laws ofthe United States of America that the statements contained in the Complaint are true and correct to the best of my knowledge and belief.
•
L. F President and ChiefExecutive Officer Planned Parenthood Southeast,Inc.
Executed on:

Case 2:19-cv-00365-MHT-SMD Document 1 Filed 05/24/19 Page 27 of 28
DECLARATION I declare under penalty ofperjury under the laws ofthe United States of America that the staternents contained in the Complaint are true and correct to the best of my knowledge and belief.

Jun Ayers Owner and Administrator Reproductive Health Services

Executed on:

?

Case 2:19-cv-00365-MHT-SMD Document 1 Filed 05/24/19 Page 28 of 28
DECLARATION I declare under penalty ofperjury under the laws ofthe United States of America that the statements contained in the Complaint are true and correct to the best of my knowledge and belief.
Gloria Gray Owne and Administrator West Alabama Women's Center Executed on:34../ /2,6

Case 2:19-cv-00365-MHT-SMD Document 1-1 Filed 05/24/19 Page 1 of 11
EXHIBIT A

Case 2:19-cv-00365-MHT-SMD Document 1-1 Filed 05/24/19 Page 2 of 11

1

HB314

2

198038-3

3

By Representatives Collins, Rowe, Mooney, Wilcox, Estes,

4

Lipscomb, Isbell, Ellis, Lee, Allen, Faust, Brown (K), Pettus,

5

Greer, Kiel, Nordgren, Reynolds, Drake, Wood (R), Ball, Fridy,

6

Rich, Ingram, Shiver, Wood (D), Simpson, Kitchens, Marques,

7

Weaver, South, Faulkner, Shaver, Holmes, McMillan, Whorton,

8

Farley, Hurst, Standridge, Crawford, Sorrell, Brown (C),

9

Robertson, Whitt, Moore (P), Wheeler, Carns, Oliver, Garrett,

10

Sullivan, Gaston, Blackshear, Fincher, Wingo, Hill, Ledbetter,

11

Baker, Dismukes, Stadthagen, Poole, Clouse, McCutcheon, Shedd,

12

Sorrells, Pringle, Harbison, Hanes and Easterbrook

13

RFD: Judiciary

14

First Read: 02-APR-19

Case 2:19-cv-00365-MHT-SMD Document 1-1 Filed 05/24/19 Page 3 of 11

HB314

1

2

ENROLLED, An Act,

3

Relating to abortion; to make abortion and attempted

4

abortion felony offenses except in cases where abortion is

5

necessary in order to prevent a serious health risk to the

6

unborn child's mother; to provide that a woman who receives an

7

abortion will not be held criminally culpable or civilly

8

liable for receiving the abortion; and in connection therewith

9

would have as its purpose or effect the requirement of a new

10

or increased expenditure of local funds within the meaning of

11

Amendment 621 of the Constitution of Alabama of 1901, now

12

appearing as Section 111.05 of the Official Recompilation of

13

the Constitution of Alabama of 1901, as amended.

14

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

15

Section 1. This act shall be known as The Alabama

16

Human Life Protection Act.

17

Section 2. Legislative Findings.

18

(a) This state's statute criminalizing abortion,

19

Section 13A-13-7, Code of Alabama 1975, has never been

20

repealed. It has remained unenforceable as a result of the

21

U.S. Supreme Court decision in Roe v. Wade, 410 U.S. 113

22

(1973) and its progeny, which struck down as unconstitutional

23

a Texas statute criminalizing abortion and which effectively

24

repealed by implication and made unenforceable all other state

25

statutes criminalizing abortion.

Page 1

Case 2:19-cv-00365-MHT-SMD Document 1-1 Filed 05/24/19 Page 4 of 11

HB314

1

(b) On November 6, 2018, electors in this state

2

approved by a majority vote a constitutional amendment to the

3

Constitution of Alabama of 1901 declaring and affirming the

4

public policy of the state to recognize and support the

5

sanctity of unborn life and the rights of unborn children. The

6

amendment made it clear that the Constitution of Alabama of

7

1901 does not include a right to an abortion or require the

8

funding of abortions using public funds.

9

(c) In present state law, Section 13A-6-1, Code of

10

Alabama 1975, defines a person for homicide purposes to

11

include an unborn child in utero at any stage of development,

12

regardless of viability.

13

(d) In the United States Declaration of

14

Independence, the principle of natural law that "all men are

15

created equal" was articulated. The self-evident truth found

16

in natural law, that all human beings are equal from creation,

17

was at least one of the bases for the anti-slavery movement,

18

the women's suffrage movement, the Nuremberg war crimes

19

trials, and the American civil rights movement. If those

20

movements had not been able to appeal to the truth of

21

universal human equality, they could not have been successful.

22

(e) Abortion advocates speak to women's rights, but

23

they ignore the unborn child, while medical science has

24

increasingly recognized the humanity of the unborn child.

Page 2

Case 2:19-cv-00365-MHT-SMD Document 1-1 Filed 05/24/19 Page 5 of 11

HB314

1

(f) Recent medical advances prove a baby's heart

2

starts to beat at around six weeks. At about eight weeks, the

3

heartbeat can be heard through an ultrasound examination. A

4

fetal Doppler can detect a fetal heartbeat as early as 10

5

weeks.

6

(g) Ultrasound imaging shows the developing child in

7

utero.

8

(h) As early as six weeks after fertilization, fetal

9

photography shows the clear development of a human being. The

10

Alabama Department of Public Health publication "Did You Know

11

. ." demonstrates through actual pictures at two-week

12

intervals throughout the entire pregnancy the clear images of

13

a developing human being.

14

(i) It is estimated that 6,000,000 Jewish people

15

were murdered in German concentration camps during World War

16

II; 3,000,000 people were executed by Joseph Stalin's regime

17

in Soviet gulags; 2,500,000 people were murdered during the

18

Chinese "Great Leap Forward" in 1958; 1,500,000 to 3,000,000

19

people were murdered by the Khmer Rouge in Cambodia during the

20

1970s; and approximately 1,000,000 people were murdered during

21

the Rwandan genocide in 1994. All of these are widely

22

acknowledged to have been crimes against humanity. By

23

comparison, more than 50 million babies have been aborted in

24

the United States since the Roe decision in 1973, more than

25

three times the number who were killed in German death camps,

Page 3

Case 2:19-cv-00365-MHT-SMD Document 1-1 Filed 05/24/19 Page 6 of 11

HB314

1

Chinese purges, Stalin's gulags, Catbodian killing fields, and

2

.the Rwandan genocide,combined.

3

(j) The cases of Roe v. Wade and its progeny have

4

engendered much civil litigation and legislative attempts to

5

reign in so called abortion rights. Roe v. Wade attempted to

6

define when abortion of an unborn child would be legal. Judges

7

and legal scholars have disagreed and dissented with its

8

finding.

9

Section 3. As used in this act, the following terms

10

shall have the following meanings:

11

(1) ABORTION. The use or prescription of any

12

instrument, medicine, drug, or any other substance or device

13

with the intent to terminate the pregnancy of a woman known to

14

be pregnant with knowledge that the termination by those means

15

will with reasonable likelihood cause the death of the unborn

16

child. The term does not include these activities if done with

17

the intent to save the life or preserve the health of an

18

unborn child, remove a dead unborn child, to deliver the

19

unborn child prematurely to avoid a serious health risk to the

20

unborn child's mother, or to preserve the health of her unborn

21

child. The term does not include a procedure or act to

22

terminate the pregnancy of a woman with an ectopic pregnancy,

23

nor does it include the procedure or act to terminate the

24

pregnancy of a woman when the unborn child has a lethal

25

anomaly.

Page 4

Case 2:19-cv-00365-MHT-SMD Document 1-1 Filed 05/24/19 Page 7 of 11

HB314

1

(2) ECTOPIC PREGNANCY. Any pregnancy rešultifig frOM

2

either a fertilized egg that has implanted or attached outside

3

the uterus or a fertilized egg implanted inside the cornu of

4

the uterus.

5

(3) LETHAL ANOMALY. A condition from which an unborn

6

Child would die after birth or shortly thereafter or be

7

stillborn.

8

(4) MEDICAL EMERGENCY. A condition which, in

9

reasonable medical judgment, so complicates the medical

10

condrition of the pregnant woman that her pregnancy must be

11

terminated to avoid a serious health risk as defined in this

12

act.

13

(5) PHYSICIAN. A person licensed to practice

14

medicine and surgery or osteopathic medicine and surgery in

15

Alabama.

16

(6) SERIOUS HEALTH RISK TO THE UNBORN CHILD'S

17

MOTHER. In reasonable medical judgment, the child's mother has

18

a condition that so complicates her medical condition that it

19

necessitates the termination of her pregnancy to avert her

20

death or to avert serious risk of substantial physical

21

impairment of a major bodily function. This term does not

22

include a condition based on a claim that the woman is

23

suffering from an emotional condition or a mental illness

24

which will cause her to engage in conduct that intends to

25

result in her death or the death of her unborn child. However,

Page 5

Case 2:19-cv-00365-MHT-SMD Document 1-1 Filed 05/24/19 Page 8 of 11

HB314

1

the condition may exist if a second physician who is licensed

2

in Alabama as a psychiatrist, with a minimum of three years of

3

clinical experience, examines the woman and documents that the

4

woman has a diagnosed serious mental illness and because of

5

it, there is reasonable medical judgment that she will engage

6

in conduct that could result in her death or the death of her

7

unborn child. If the mental health diagnosis and likelihood of

8

conduct is confirmed as provided in this act, and it is

9

determined that a termination of her pregnancy is medically

10

necessary to avoid the conduct, the termination may be

11

performed and shall be only performed by a physician licensed

12

in Alabama in a hospital as defined in the Alabama

13

Administrative Code and to which he or she has admitting

14

privileges.

15

(7) UNBORN CHILD, CHILD or PERSON. A human being,

16

specifically including an unborn child in utero at any stage

17

of development, regardless of viability.

18

(8) WOMAN. A female human being, whether or not she

19

has reached the age of majority.

20

Section 4. (a) It shall be unlawful for any person

21

to intentionally perform or attempt to perform an abortion

22

except as provided for by subsection (b).

23

(b) An abortion shall be permitted if an attending

24

physician licensed in Alabama determines that an abortion is

25

necessary in order to prevent a serious health risk to the

Page 6

Case 2:19-cv-00365-MHT-SMD Document 1-1 Filed 05/24/19 Page 9 of 11

HB314

1

unborn child's mother. Except in the case of a medical

2

emergency as defined herein, the physician's determination

3

shall be confirmed in writing by a second physician licensed

4

in Alabama. The confirmation shall occur within 180 days after

5

the abortion is completed and shall be prima facie evidence

6

for a permitted abortion.

7

Section 5. No woman upon whom an abortion is

8

performed or attempted to be performed shall be criminally or

9

civilly liable. Furthermore, no physician confirming the

10

serious health risk to the child's mother shall be criminally

11

or civilly liable for those actions.

12

Section 6. (a) An abortion performed in violation of

13

this act is a Class A felony.

14

(b) An attempted abortion performed in violation of

15

this act is a Class C felony.

16

Section 7. This act shall not apply to a physician

17

licensed in Alabama performing a termination of a pregnancy or

18

assisting in performing a termination of a pregnancy due to a

19

medical emergency as defined by this act.

20

Section 8. The construction of existing statutes and

21

regulations that regulate or recognize abortion in Alabama

22

that are in conflict with or antagonistic to this act shall be

23

repealed as null and void and shall recognize the prohibition

24

of abortion as provided in this act. If this act is challenged

25

and enjoined pending a final judicial decision, the existing

Page 7

Case 2:19-cv-00365-MHT-SMD Document 1-1 Filed 05/24/19 Page 10 of 11

H3314

1

statutes and regulations that regulate or recognize abortion

2

shall remain in effect during that time.

3

Section 9. Although this bill would have as its

4

purpose or effect the requirement of a new or increased

5

expenditure of local funds, the bill is excluded from further

6

requireMent8 and application under AMendment 621, now

7

appearing as Section 111.05 of the Official RecoMpilation of

8

the Constitution of AlabaMa of 1901, as amended, because the

9

bill defines a new crime or amends the definition of an

10

existing crime.

11

Section 10. This act shall become effective six

12

month$ following its passage and approval by the Governor, or

13

jt.s otherwise becoming law.

Page 8

Case 2:19-cv-00365-MHT-SMD Document 1-1 Filed 05/24/19 Page 11 of 11

HB314

1 2

3

4

Speaker of the House of Representatives

5

6

President and Presiding Officer of the Senate

7

House of Representatives

8

I hereby certify that the within Act originated in

9

and was passed by the House 30-APR-19.

10

11

Jeff Woodard

12

Clerk

13

14

15

16

Senate

17

14-MAY-19

Passed

Page 9

Case 2:19-cv-00365-MHT-SMD Document 1-2 Filed 05/24/19 Page 1 of 3

JS 44 (Rev. 12/12)

CIVIL COVER SHEET

The JS 44 civil cover sheet and the infcirmation contained herein neither replace nor supplement the filing and service of plewlings or otherpapers as requfred by law, except as provided by local rules ofcourt. This form,approved by the Judicial Conference ofthe United States in September 1974,is required for the use ofthe Clerk ofCourt for the purpose ofinitiating the civil docket:sheet. (SEEINSTRUCTIONSON NF.XTPAGEOF THISFORM.)

I.(A) PLAINTIFFS Yashica Robinson, M.D., Alabama Women's Center, Planned

R it:C Ntg-il DEFENDANTS
Steven Marshall, in his official capacity as la

ttomey General,

Parenthood Southeast inc., Reproductive Health Services, Wett Alabama Women's Center

Robert L. Broussard, in his official capacity as Dištrict Attomey for Madison County,(see attacttili,nteyn2on OZentrit3)3

(b) County ofResidence ofFirst Listed Plaintiff, Madison (EXCEPTIN US.PLAINTIFFCASES)

County ofResidence ofFirst Listed Defendant Montgomery (IN US.PLAINTIFFCASESONLY)

(C) Attorneys(Firm Name,Address, and Telephone Number)
Randall C. Marshall and Brock Boone, ACLU of Alabama, P.O. Box

NOTE: TINHELATNRDACCTOONFDLEAmNNDiICtri?i,.i.vc5ifStTMRoIVCKITECTIOPUeRlTtiT

Attorneys afKnown)

' 'r-H- F D!S TRIM- ALA

6179, Montgomery,AL 36106-0179,(334)420-1741 (see attachmentfor

more counsel)

II. BASIS OF JURISDICTION(Placean "X"inOneBox Only)

0 I U.S. Government Plaintiff

ki 3 Federal Question (U.S. Government Nota Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X"in OneBoxfor Plaintiff

(For Diversity Cases Only)

and One BoxförDefendant)

PTF DEF

PTF DEF

Citizen ofThis State

0 1 0 I incOrporated or Principal Place

0 4 04

of Business In This State

0 2 U.S. Government Defendant

0 4 Diversity (Indicate Cilizenship ofParties in Item III)

Citizen of Another State

0 2 0 2 Incorporated and Principal Place ofBusiness In Another State

0 5 05

Citizen or Subject ofa Foreign Country

0 3 0 3 Foreign Nation

0 6 06

IV. NATURE OF SUIT(Place an "X"in One Box Only)

7.77.7TORTS"="TAVPLTZ

j7iFORFEFFURERIENALTYn 7-5ZiWA7RANKRUPTCY77,t'l vale17:1'0THERSTA

Mr4

0 110 Insurance

PERSONAL INJURY

PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal 28 USC 158

0 375 False Claims Act

0 120 Marine

0 310 Airplane

0 365 Personal Injury -

ofProperty 21 USC 881 0 423 Withdrawal

0 400 State Reapportionment

0 130 Miller Act

0 315 Airplšpe Product

Product Liability 0690 Othet

28 USC 157

0 410 Antitrust

0 140 Negotiable Instrument

Liability

0 367 Health Care/

0 430 Banks and Banking

0 150 Recovery ofOverpayment 0 320 Assault, Libel&

Pharmaceutical

‘,1,PROPERTY'RIGHTS2-7,-,0 450 Commerce

& Enforcement ofJudgment

Slander

Personal Injury

0 820 Copyrights

0 460 Deportation

0 151 Medicare Act

0 330 Federal Employers'

Product Liability

0 830 Patent

0 470 Racketeer Influenced and

0 152 Recovery of Defaulted

Liability

0 368 Asbestos Personal

0 840 Trademark

Corrupt Organizations

Student Loans

0 340 Marine

Injury Product

0 480 Consumer Credit

(Excludes Veterans)

0 345 Marine Product

Liability

'.7.7 ".`7,710.71,1.7LABOR7.---

'f,;:itSOCIAVSECURITV Wei 0 490 Cable/Sat TV

0 153 Recovery ofOverpayment

Liability

PERSONALPROPERTY 0 710 Fair Labor Standards 0 861 HIA(1395ff)

0 850 Securities/Comitiodities/

of Veteran's Benefits

0 350 Motor Vehicle

0 370 Other Fraud

Act

0 862 Black Lung(923)

Exchange

0 160 Stockholders' Suits

0 355 Motor Vehicle

0 371 Truth in Lending 0 720 Labor/Management

0 863 DIWC/DIWW(405(g)) 0 890 Other Statutory Actions

0 190 Other Contract

Product Liability

0 380 Other Personal

Relations

0 864 SSID Title XVI

0 891 Agricultural Acts

0 195 Contract Product Liability 0 360 Other Personal

Property Damage 0 740 Railway Labor Act

0 865 RSI(405(g))

0 893 Environmental Matters

0 196 Franchise

Injury

0 385 Property Damage 0 751 Family and Medical

0 895 Freedom of Information

0 362 Personal Injury -

Product Liability

Leave Act

Act

Medical Malptactice

0 790 Other Labor Litigation

0 896 Athitrafien

11— :bREALIPROPERTY,,„ , 'X •• GIITSt.,:-,., ,,PRISONER PETITIONS,:. 0 791 Employee Retirement ,oLFEDERAUTAXSUITS--,,,e:, 0 899 Administrative Procedure

0 210 Land Condemnation

0 440 Other Civil Rights

Habeas Corpus:

Income Security Act

0 870 Taxes(U.S. Plaintiff

Act/Review or Appeal of

0 220 Forecloanre

0 441 Voting

0 230 Rent Lease & Ejectment 0 442 Employment

0 463 Alien Detainee 0 510 Motions to Vacate

or Defendant) 0 871 IRS—Third Party

Agency Decision
IF: 950 Constitutionality of

0 240 Torts to Land

0 443 Housing/

Sentence

26 USC 7609

State Statutes

0 245 Tort Product Liability

Accommodations 0 530 General

0 290 All Other Real Property 0445 Amer. w/Disabilities - 0 535 Death Penalty

'-:DIMIGRATION:

Employment

Other:

0 462 Naturalization Applidation

0 446 Amer.w/Disabilities - 0 540 Mandamus& Other O 465 Other Immigration

Other

O 550 Civil Rights

Actions

O 448 Education

O 555 Prison Condition

O 560 Civil Detainee -

Conditions of

Confinement

V. ORIGIN (Place an'X"in One Box Only)

X I Original

0 2 Rethoved from

Proceeding

State Court

O 3 Remanded fit= Appellate Court

O 4 Reinstated or O 5 Transferred fa:nu

Reopeped

Another District

(specift)

O 6 Multidistrict Litigation

Cite the U.S. Civil Statute under which you are filing(Do notcitejurisdictionalsteno& unless diversity):
42 U.S.C.§ 1983 VI. CAUSE OF ACTION
Briefdescription ofcause:
Challenge to abortion ban under the Fourteenth Amendment to the U.S. Constitution

VII. REQUESTED IN COMPLAINT:

[71 CHECK IF THIS IS A CLASS ACTION UNDER RULE 23,F.R.Cv.P.

DEMAND $

CHECK YES only ifdemanded in complaint: JURY DEMAND: O Yes X No

VIII. RELATED CASE(S)

IF ANY

(See instructions): JUDGE Hon. Myron H. Thom son

DOCKET NUMBER 2:15-cv-00497

DATE
05/24/2019
FOR OFFICE USE ONLY

ATURE FIATT(N F CORt De •
41v-

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG.JUDGE

Case 2:19-cv-00365-MHT-SMD Document 1-2 Filed 05/24/19 Page 2 of 3
ATTACHMENT TO CIVIL COVER SHEET
ADDITIONAL PLAINTIFFS'COUNSEL
Alexa Kolbi-Molinas* Meagan Burrows* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 akolbi-molinas@aclu.org mburrows@aclu.org (212)549-2633
Attorneysfor Plaintiffs Robinson,AWC,RHS,and WAWC
Carrie Y.Flaxman* Planned Parenthood Federation of America 1110 Vermont Avenue,NW,Suite 300 Washington, D.C. 20005 canie.flaxman@ppfa.org (202)973-4830
Attorneyfor PlaintiffPlanned Parenthood Southeast,Inc.
*Pro hac vice motionsforthcoming
ADDITIONAL DEFENDANTS
Danny Carr,in his official capacity as District Attorney for Jefferson County;
Ashley Rich,in her official capacity as District Attorney for Mobile County;
Daryl D.Bailey,in his official capacity as District Attorney for Montgomery County;
Hays Webb,in his official capacity as District Attorney for Tuscaloosa County; Dr.James H. Walburn,in his official capacity as Chairman ofthe Medical Licensure Commission of Alabama;

Case 2:19-cv-00365-MHT-SMD Document 1-2 Filed 05/24/19 Page 3 of 3
Dr. Mark H.Lequire,in his official capacity as Chairman ofthe Alabama Board of Medical Examiners; and Dr.Scott Harris,in his official capacity as the State Health Office at the Alabama State.

Case 2:19-cv-00365-MHT-SMD Document 1-3 Filed 05/24/19 Page 1 of 1

z

Court Name: U S DISTRICT COURT - AL/M
Division: Receipt Number: 4602053655 Cashier ID: bhill Transaction Date: 05/24/2019 Payer Name: ACLU OF ALABAMA FOUNDATION

CIVIL FILING FEE

For: ACLU OF ALABAMA FOUNDATION

Case/Party: D-ALM-2-19-CV-000365-001

Amount:

$400.00

CHECK Check/Money Order Num: 9953 Amt Tendered: $400.00

Total Due: $400.00 Total Tendered: $400.00 Change Amt: $0.00

2:19-cv-00365-MHT-SMD

Robinso- h et al v. Marshall et al

 
 Case 2:19-cv-00365-MHT-JTA Document 68 Filed 10/29/19 Page 1 of 17

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,

)

)

v.

)

)

STEVEN MARSHALL, in his )

official capacity as

)

Alabama Attorney General, )

)

Defendant.

)

CIVIL ACTION NO. 2:19cv365-MHT (WO)

OPINION

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,

1. Because the current codification of Ala. Act No. 2019-189 at 1975 Ala. Code § 26-23H is subject to the editorial action of the Code Commissioner, the codification is tentative.

Case 2:19-cv-00365-MHT-JTA Document 68 Filed 10/29/19 Page 2 of 17
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
2

Case 2:19-cv-00365-MHT-JTA Document 68 Filed 10/29/19 Page 3 of 17
pre-viability abortion.
I. LEGAL STANDARDS 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
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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

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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.
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II. DISCUSSION 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 under the Fourteenth Amendment to the United States
2. The plaintiffs also bring their claims on their own behalves. See Complaint (doc. no. 1) at 5-7. Because of clear precedent regarding third-party standing, however, the court reserves consideration of possible alternative grounds.
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Constitution. Federal courts, including the Supreme Court,
routinely allow providers to challenge abortion laws on behalf of patients. See, e.g., Stenberg, 530 U.S. at 922–23; Casey, 505 U.S. at 845 (opinion of the Court). See generally Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 738 F.3d 786, 794 (7th Cir. 2013) (“[T]he cases are legion that allow an abortion provider, such as Planned Parenthood of Wisconsin or Milwaukee Women’s Medical Services, to sue to enjoin as violations of federal law ... state laws that restrict abortion.”); Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 917-18 (9th Cir. 2004) (collecting cases). These cases emphasize “the central role of the physician, both in consulting with the woman about whether or not to have an abortion, and in determining how any abortion was to be carried out.” Colautti v. Franklin, 439 U.S. 379, 387 (1979). Such a relationship similarly supports standing for the plaintiffs at
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bar--all are intimately involved in patients’ decisions

regarding abortion and reproductive health.

See

generally Whole Woman’s Health, 136 S. Ct. at 2323

(Thomas, J., dissenting) (“[T]he Court has ... accepted

doctors’ and clinics’ vicarious assertion of the

constitutional rights” of patients).

In sum, under precedent that the Supreme Court has

repeatedly reaffirmed, abortion providers may assert

the substantive-due-process rights of their patients.

The plaintiffs may do so here. The court thus turns to

the constitutional arguments that they raise in favor

of a preliminary injunction.

2. Substantive Due Process The court is persuaded that the plaintiffs are likely to succeed in showing that the Act violates an individual’s constitutional right to obtain a

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pre-viability abortion,3 and thus that it violates her constitutional rights. And the defendant agrees. See Def.’s Opp’n (doc. no. 64) at 3 (conceding that, as to pre-viability abortion, the ”[p]laintiffs are likely to prevail before this Court and should be granted a preliminary injunction”); id. at 5 (stating that the plaintiffs are likely to prevail on their challenge to the Act as applied to pre-viability abortion).
The Act imposes criminal liability on any person who “intentionally perform[s] or attempt[s] to perform an abortion,” with limited exceptions for serious health risks to the mother. Ala. Act No. 2019-189 § 4. It does so without regard to the viability of the fetus. See id.
This fact alone makes an injunction appropriate.
3. At this stage, although the plaintiffs are challenging the entire statute, the court considers only the Act’s applications to pre-viability abortion. The plaintiffs acknowledge that “a preliminary injunction as to pre-viability abortions is appropriate to preserve the status quo and prevent irreparable harm.” Plaintiff’s Repl. Mem. (doc. no. 66) at 2.
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As stated previously, banning abortion before viability violates Supreme Court precedent. See Casey, 505 U.S. at 879 (plurality opinion) (“[A] State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”); Whole Woman’s Health, 136 S. Ct. at 2320. No alleged state interest can overcome this clear mandate. See Casey, 505 U.S. at 878 (plurality opinion); Isaacson v. Horne, 716 F.3d 1213, 1229 (9th Cir. 2013) (“[B]ecause Arizona’s twenty-week law acts as a prohibition of, and not merely a limitation on the manner and means of, pre-viability abortions, under long-established Supreme Court law no state interest is strong enough to support it.”).
Thus, as a ban on pre-viability abortion, the Act contravenes established law. Cf. Edwards v. Beck, 786 F.3d 1113, 1117 (8th Cir. 2015) (invalidating law that banned “abortions after 12 weeks’ gestation”); Horne, 716 F.3d at 1229 (enjoining a ban on abortion at 20
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weeks); Preterm-Cleveland v. Yost, No. 1:19-CV-00360, 2019 WL 2869640 (S.D. Ohio 2019) (Barrett, J.) (granting a preliminary injunction of enforcement of a ban on abortion care at and after six weeks of pregnancy); EMW Women’s Surgical Ctr., P.S.C. v. Beshear, No. 3:19-CV-178-DJH, 2019 WL 1233575, at *1 (W.D. Ky. 2019) (Hale, J.) (temporarily enjoining enforcement of a bill that “would effectively ban the vast majority of abortions in the Commonwealth of Kentucky”); Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536, 544 (S.D. Miss. 2018) (Reeves, J.) (enjoining a ban on abortion beginning at 15 weeks). The plaintiffs have shown a substantial likelihood of success on the merits of their claim.
B. Irreparable Harm The plaintiffs’ alleged injury is concrete and imminent. Enforcement of the ban would yield serious and irreparable harm, violating the right to privacy
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and preventing women from obtaining abortions in Alabama.4
First, any ongoing violation of the constitutional right to privacy constitutes “irreparable injury.” See Ne. Fla. Chapter of Ass’n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990). “Invasions of privacy ... [can]not be compensated for by monetary damages.” Id. (citations omitted). The nature of the violation thus counsels in favor of an injunction.
Even apart from this general principle, the enforcement of the Act would irreparably harm those who contemplate or seek, but cannot lawfully obtain, a pre-viability abortion. See Roe v. Wade, 410 U.S. 113, 153 (1973) (“The detriment that the State would impose
4. The plaintiffs argue, and the court agrees, that the defendant has conceded both “the existence of per se irreparable harm and that the public interest weighs in favor of the injunction” because neither was explicitly addressed in the defendant’s response. See Plaintiff’s Repl. Mem. (doc. no. 66) at 2 n.2. The court nonetheless discusses these factors.
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upon the pregnant woman by denying this choice altogether is apparent.”). A near-total ban imposes substantial costs on women, including those who are unable to obtain an abortion and those who “desperately seek to exercise their ability to decide whether to have a child” and thus “would take unsafe measures to end their pregnancies.” Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330, 1363 (M.D. Ala. 2014) (Thompson, J.).
Finally, the law’s limited exceptions do not alter the court’s conclusion. “[A] medical exception cannot save an otherwise unconstitutional ban.” W. Alabama Women’s Ctr. v. Miller, 299 F. Supp. 3d 1244, 1283 (M.D. Ala. 2017) (Thompson, J.), aff’d sub nom. W. Alabama Women’s Ctr. v. Williamson, 900 F.3d 1310 (11th Cir. 2018), cert. denied sub nom. Harris v. W. Alabama Women’s Ctr., 139 S. Ct. 2606 (2019); see also Casey, 505 U.S. at 879 (plurality opinion) (noting that a State may not prohibit any woman from obtaining a
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pre-viability abortion “[r]egardless of whether exceptions are made for particular circumstances”). This is especially so when the exceptions are narrow, arguably ambiguous, or validated post-hoc. See Miller, 299 F. Supp. 3d at 1283.
The court thus finds that, if not enjoined, the Act’s near-total ban on abortion would impose a substantial and irreparable harm, leaving many patients without recourse. This factor, too, points toward a preliminary injunction.
C. The Balance of Hardships The balance of hardships tilts in favor of the plaintiffs.5 Because the Act prohibits nearly all pre-viability abortions, the outcome is simple: no state interest can prevail in this context. See Casey, 505 U.S. at 860 (opinion of the Court) (“[V]iability
5. Again, the defendant concedes as much. See Def.’s Opp’n (doc. no. 64) at 6 (noting that “the balance of the equities supports a preliminary injunction as applied to pre-viability abortions”).
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marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.”).
Moreover, because the law will almost certainly be found unconstitutional, any cost to the State is slight: Alabama has “no legitimate interest in enforcing an unconstitutional [law].” KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). The balance of equities favors an injunction.

D. The Public Interest

Fourth, and finally, a preliminary injunction

furthers the public interest. A preliminary injunction

prohibiting enforcement of the Act will preserve the

status quo, allowing the court to make a full ruling on

the merits of the case without subjecting the

plaintiffs, their patients, or the public to the ban’s

potential impact.

See generally Klay v. United

Healthgroup, Inc., 376 F.3d 1092, 1101 n.13 (11th Cir.

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2004) (noting that an injunction entered to preserve the status quo pending a final resolution is “perhaps the textbook definition of a preliminary injunction”).
Further, “the public interest is promoted by the robust enforcement of constitutional rights.” Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., 698 F.3d 885, 896 (6th Cir. 2012). In contrast, the public has no interest in enforcing an unconstitutional statute, see KH Outdoor, 458 F.3d at 1272, particularly when “the legislation seems designed, as here, as a protest against Supreme Court decisions.” Reprod. Health Servs. of Planned Parenthood of St. Louis Region, Inc. v. Parson, 389 F. Supp. 3d 631, 637 (W.D. Mo. 2019) (Sachs, J.). A preliminary injunction supports the public interest, and so the fourth factor counsels in favor of an injunction.
III. CONCLUSION Alabama’s abortion ban contravenes clear Supreme
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Court precedent. It violates the right of an

individual to privacy, to make “choices central to

personal dignity and autonomy.” Casey, 505 U.S. at 851

(opinion of the Court). It diminishes “the capacity of

women to act in society, and to make reproductive

decisions.” Id. at 860. It defies the United States

Constitution.

The court will, therefore, enter an appropriate

order preliminarily enjoining enforcement of the Act as

applied to pre-viability abortion. Further, the court,

in its discretion, will waive the bond requirement of

Fed. R. Civ. P. 65(c).

See BellSouth

Telecommunications v. MCIMetro Access Transmission

Servs., LLC, 425 F.3d 964, 971 (11th Cir. 2005).

DONE, this the 29th day of October, 2019.

/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

 
 Case 2:19-cv-00365-MHT-JTA Document 79 Filed 03/30/20 Page 1 of 41

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, M.D., ALABAMA WOMEN’S CENTER, PLANNED PARENTHOOD SOUTHEAST INC., REPRODUCTIVE HEALTH SERVICES, and WEST ALABAMA WOMEN’S CENTER, on behalf of themselves, their patients, physicians, clinic administrators, and staff,

CIVIL ACTION NO.2:19-cv-365MHT-JTA

Plaintiffs,

v.

STEVEN MARSHALL, in his official capacity as Alabama Attorney General,

Defendants.

FIRST AMENDED COMPLAINT

Plaintiffs, by and through their attorneys, bring this Supplemental and

Partially Verified Complaint against the above-named Defendants, their

employees, agents, and successors in office, and in support thereof state the

following:

INTRODUCTION

1. This is a constitutional challenge, under 42 U.S.C. § 1983, to House

Bill 314 (hereinafter “H.B. 314” or “the 2019 Ban”), attached hereto as Exhibit A,

Case 2:19-cv-00365-MHT-JTA Document 79 Filed 03/30/20 Page 2 of 41
which bans nearly all abortions in Alabama. 2. This is also a constitutional challenge to the Alabama State Public
Health Officer’s March 27, 2020 emergency order (the “March 27 Order” or “Order”) attached hereto as Exhibit B, as applied to prohibit pre-viability abortions in Alabama.
3. People seek abortions for a multitude of diverse, complex, and interrelated factors that are intimately linked to their values and beliefs, culture and religion, health status and reproductive history, familial situation, educational and/or career goals, and resources and economic stability.
4. For over forty-six years—since the Supreme Court decided Roe v. Wade, 410 U.S. 113 (1973)—U.S. law has recognized the fundamental federal constitutional right to make the profoundly important and personal decision whether or not to terminate a pregnancy. The U.S. Supreme Court has repeatedly recognized that this right is central to obtaining equality and respecting the dignity, autonomy, and bodily integrity of all individuals.
5. By criminalizing the performance of an abortion (or attempted performance of an abortion) at all points in pregnancy, H.B. 314 directly conflicts with Roe and more than four decades of Supreme Court precedent affirming its central holding.
6. Indeed, H.B. 314 was drafted by Eric Johnston of the Alabama Pro2

Case 2:19-cv-00365-MHT-JTA Document 79 Filed 03/30/20 Page 3 of 41
Life Coalition, who said that he fully “expect[s] . . . holdings of unconstitutionality in the trial court and in the appellate court.”1 The 2019 Ban’s sponsor in the Alabama House of Representatives, Republican State Representative Terri Collins, has likewise admitted that H.B. 314 is “unconstitutional” and that “all our pro-life bills are unconstitutional right now.”2
7. Even Governor Kay Ivey acknowledged, upon signing H.B. 314 into law, that Alabama’s pre-1973 criminal abortion ban “has been rendered unenforceable as a result of the U.S. Supreme Court decision in Roe v. Wade” and that H.B. 314 “may similarly be unenforceable.” 3
8. Likewise, by using the State Public Health Officer’s emergency powers to criminalize pre-viability abortions, the March 27 Order directly conflicts with Roe and more than four decades of Supreme Court precedent affirming its central holding and is unconstitutionally vague.
9. Absent an order from this Court, H.B. 314 is scheduled to take effect
1 All Things Considered: Author of Alabama Restrictive Abortion Bill Wants to Revisit Roe v. Wade Decision (National Public Radio broadcast May 16, 2019) (transcript available at https://www.npr.org/2019/05/16/724089804/author-of-alabama-restrictive-abortion-bill-wantsto-revisit-roe-v-wade-decision). 2 Jenny Jarvie, Conservative states enact abortion bans in hope of overturning Roe vs. Wade, LOS ANGELES TIMES, May 11, 2019, https://www.latimes.com/nation/la-na-abortion-bans-statesroe-wade-supreme-court-20190511-story.html. 3 Governor Ivey Issues Statement After Signing the Alabama Human Life Protection Act, Office of the Governor, May 15, 2019, https://governor.alabama.gov/statements/governor-ivey-issuesstatement-after-signing-the-alabama-human-life-protection-act/.
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on November 15, 2019, at which point Plaintiffs will be forced to stop providing and/or referring for abortions. Enforcement of the 2019 Ban will thereby inflict immediate and irreparable harm on Plaintiffs’ patients by violating their constitutional rights, threatening their health and well-being, and forcing them to continue their pregnancies to term against their will.
10. Further, absent an order from this Court, the March 27 Order will force Plaintiffs to stop providing pre-viability abortions for the duration that the March 27 Order, or any amended or subsequent version thereof, remains in effect. Enforcement of the March 27 Order will thereby inflict immediate and irreparable harm on Plaintiffs’ patients by violating their constitutional rights, threatening their health and well-being, and forcing them to continue their pregnancies to term against their will.
11. Accordingly, Plaintiffs request (1) this Court declare H.B. 314 unconstitutional under more than four decades of binding Supreme Court precedent and enjoin its enforcement; and (2) this Court declare the March 27 Order unconstitutional, as applied to ban pre-viability abortion, under more than four decades of binding Supreme Court precedent and to enjoin its enforcement.
JURISDICTION AND VENUE 12. This Court has subject matter jurisdiction over Plaintiffs’ federal claims pursuant to 28 U.S.C. §§ 1331 and 1343.
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13. Plaintiffs’ action for declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal and equitable powers of this Court.
14. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occur in this judicial district and because Defendants Marshall, Bailey, Harris, Lequire, and Walburn, who are sued in their official capacities, carry out their official duties at offices located in this district.
PLAINTIFFS 15. Plaintiff Yashica Robinson, M.D., is a highly experienced, boardcertified OB-GYN and abortion provider, and is the Medical Director of the Alabama Women’s Center (“AWC”) in Huntsville, Alabama. Dr. Robinson provides pre-viability abortions, which are banned under H.B. 314 and the March 27 Order, as applied by Defendants Marshall and Harris. Dr. Robinson sues on her own behalf and on behalf of her patients. 16. Plaintiff AWC has provided safe and legal abortions in Huntsville, Alabama, for nearly twenty years. In addition to providing abortions, which are banned under H.B. 314 and the March 27 Order, as applied by Defendants Marshall and Harris, AWC also provides a range of high-quality reproductive health services, including contraceptive counseling and care, testing and treatment
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for sexually transmitted infections, pregnancy testing and options counseling, and referrals for prenatal care and adoption services. Plaintiff AWC is the sole abortion clinic in Huntsville. AWC sues on its own behalf and on behalf of its patients, clinic administrator, physicians, and staff.
17. Plaintiff Planned Parenthood Southeast, Inc. (“PPSE”) is a not-for profit corporation, organized under the laws of Georgia. PPSE, which operates seven health centers in Alabama, Georgia, and Mississippi, provides comprehensive reproductive health care, including family planning services, testing and treatment for sexually transmitted infections, cancer screening and treatment, pregnancy testing and all options counseling, and, at four health centers in Georgia, medication abortion. Through a corporate predecessor, PPSE has provided care in Alabama since 1930. PPSE operates two health centers in Alabama, in Birmingham and Mobile. It is currently building a new facility in Birmingham where it will relocate, and renovating its Mobile health center. PPSE has provided abortions in Alabama in the past, and intends to provide abortions again in the near future, before the end of the year. In the meantime, PPSE refers its Alabama patients seeking abortions to other providers, including the other Plaintiffs. PPSE sues on its own behalf and on behalf of its patients, clinic administrators, physicians, and staff.
18. Plaintiff Reproductive Health Services (“RHS”) has provided safe and 6

Case 2:19-cv-00365-MHT-JTA Document 79 Filed 03/30/20 Page 7 of 41
legal abortion services in Montgomery, Alabama, for nearly four decades. In addition to providing abortions, which are banned by H.B. 314 and the March 27 Order, as applied by Defendants Marshall and Harris, RHS provides a range of high-quality reproductive health care services, including routine pap smears and well-woman exams; testing for sexually transmitted infections; contraceptive counseling and care, including Depo Provera shots; pregnancy testing and all options counseling; and referrals for pre-natal care and/or adoption services. RHS is the sole abortion clinic in Montgomery. RHS sues on its own behalf and on behalf of its patients, clinic administrator, physicians, and staff.
19. Plaintiff West Alabama Women’s Center (“WAWC”) has provided safe and legal abortions in Tuscaloosa, Alabama, for more than two decades. In addition to providing abortions, which would be banned by H.B. 314 and the March 27 Order, as applied by Defendants Marshall and Harris, WAWC also provides a range of high-quality reproductive health services, including contraceptive counseling and care, testing and treatment for sexually transmitted infections, pregnancy testing and options counseling, and referrals for prenatal care and adoption services. WAWC is the sole abortion clinic in Tuscaloosa. WAWC sues on its own behalf and on behalf of its patients, clinic administrator, physicians, and staff.
DEFENDANTS 7

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20. Defendant Steve Marshall is the Attorney General of the State of Alabama, located at 501 Washington Avenue, Montgomery, Alabama. The Attorney General may, at “any time he [] deems proper, . . . superintend and direct the prosecution of any criminal case in any of the courts of this state,” Ala. Code § 36-15-14, and may also “direct any district attorney to aid and assist in the investigation or prosecution of any case in which the state is interested,” id. at § 36-15-15. As such, Defendant Marshall is responsible for criminal enforcement of H.B. 314, Ala. Code § 26-23E-12(c), and the March 27 Order. Defendant Marshall is sued in his official capacity.
21. Defendant Robert L. Broussard is District Attorney for Madison County, located at 100 North Side Square, Huntsville, Alabama. District attorneys have the power to “draw up all indictments and to prosecute all indictable offenses” within their jurisdiction. Ala. Code § 12-17-184(2). As such, Defendant Broussard is responsible for criminal enforcement of, inter alia, H.B. 314, Ala. Code § 26-23E-12(c), and the March 27 Order in Huntsville. Defendant Broussard is sued in his official capacity.
22. Defendant Danny Carr is District Attorney for Jefferson County, located at 801 Richard Arrington Jr. Blvd. N., Birmingham, Alabama. District attorneys have the power to “draw up all indictments and to prosecute all indictable offenses” within their jurisdiction. Ala. Code § 12-17-184(2). As such, Defendant
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Carr is responsible for criminal enforcement of, inter alia, H.B. 314, Ala. Code § 26-23E-12(c), and the March 27 Order in Birmingham. Defendant Carr is sued in his official capacity.
23. Defendant Ashley Rich is District Attorney for Mobile County, located at 205 Government Street, Mobile, Alabama. District attorneys have the power to “draw up all indictments and to prosecute all indictable offenses” within their jurisdiction. Ala. Code § 12-17-184(2). As such, Defendant Rich is responsible for criminal enforcement of, inter alia, H.B. 314, Ala. Code § 26-23E12(c), and the March 27 Order in Mobile. Defendant Rich is sued in her official capacity.
24. Defendant Daryl D. Bailey is District Attorney for Montgomery County, located at 251 South Lawrence Street, Montgomery, Alabama. District attorneys have the power to “draw up all indictments and to prosecute all indictable offenses” within their jurisdiction. Ala. Code § 12-17-184(2). As such, Defendant Bailey is responsible for criminal enforcement of, inter alia, H.B. 314, Ala. Code § 26-23E-12(c), and March 27 Order in Montgomery. Defendant Bailey is sued in his official capacity.
25. Defendant Hays Webb is District Attorney for Tuscaloosa County, located at 714 Greensboro Avenue, Suite 410, Tuscaloosa, Alabama. District attorneys have the power to “draw up all indictments and to prosecute all indictable
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offenses” within their jurisdiction. Ala. Code § 12-17-184(2). As such, Defendant Webb is responsible for criminal enforcement of, inter alia, H.B. 314, Ala. Code § 26-23E-12(c), and March 27 Order in Tuscaloosa. Defendant Webb is sued in his official capacity.
26. Defendant Scott Harris, M.D., is the State Health Officer at the Alabama State Department of Public Health (“ADPH”), located at 201 Monroe Street, Montgomery, Alabama. Defendant Harris promulgated the March 27 Order pursuant to Ala. Code § 22-2-2(4), which authorizes the State Health Officer, on behalf of the State Board of Health, to direct that conditions prejudicial to health in public places within the State be abated. Among other things, he is responsible for supervising and directing all activities of ADPH, pursuant to Ala. Code § 22-2-2 et seq., including the licensing, inspecting, and disciplining of abortion or reproductive health care centers, see id. at § 22-21-20 et seq.; Ala. Admin. Code r. 420-5-1-.01 et seq. As such, Defendant Harris is responsible for ensuring that patient care at abortion clinics is “rendered in accordance with all applicable . . . state . . . laws,” Ala. Admin. Code r. 420-5-1-.03(1), including H.B. 314 and the March 27 Order. Defendant Harris is sued in his official capacity.
27. Defendant Mark H. Lequire, M.D., is the Chairman of the Alabama Board of Medical Examiners (“ALBME”), located at 848 Washington Avenue, Montgomery, Alabama. The Board of Medical Examiners may, on its own motion,
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investigate any evidence which appears to show that a physician is or may be guilty of any of the acts, offenses, or conditions set forth in Ala. Code § 34-24-360, which includes, inter alia, conviction of a felony and “unprofessional conduct,” as defined in the Alabama Administrative Code, and recommend or request that the Medical Licensure Commission of Alabama suspend or revoke the license of a physician. See id. at § 34-24-361; Ala. Admin. Code r. 540-X-1-.07. As such, Defendant Lequire is responsible for initiating actions that could result in penalties or other adverse actions taken against physicians’ licenses relating to violations of H.B. 314 and the March 27 Order.. Defendant Lequire is sued in his official capacity.
28. Defendant James H. Walburn, M.D., is the Chairman of the Medical Licensure Commission of Alabama (“MLCA”), located at 848 Washington Avenue, Montgomery, Alabama. The MLCA shall have the power and duty to suspend, revoke, or restrict any license to practice medicine or osteopathy in the State of Alabama or place on probation or fine any licensee whenever the licensee shall be found guilty on the basis of substantial evidence of, inter alia, conviction of a felony or “unprofessional conduct,” as defined in the Alabama Administrative Code. See Ala. Code § 34-24-360; Ala. Admin. Code r. 545-X-1-.06; Ala. Admin. Code r. 545-X-4-.06. In addition, the MLCA is authorized to “call upon the attorney general, district attorney, or other prosecuting attorneys of this state to
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assist in any request.” Ala. Admin. Code r. 545-X-1-.06(5). As such, Defendant Walburn is responsible for imposing penalties or taking other adverse actions against physicians’ licenses relating to violations of H.B. 314 and the March 27 Order. Defendant Walburn is sued in his official capacity.
STATUTORY & LEGAL FRAMEWORK H.B. 314
29. The 2019 Ban makes it a crime “for any person to intentionally perform or attempt to perform an abortion” at any stage in pregnancy, except to avert death or “serious health risk.” H.B. 314 § 4.
30. The 2019 Ban’s exception for “serious health risk[s]” is extremely limited and would be difficult, if not impossible, to comply with. For example, the exception requires sign-off from a second, and in some cases third, physician, see id. at §§ 3(6), 4(b); it requires certain abortions be performed in a hospital, see id. at § 3(6); and because the definitions are nearly identical, it provides no guidance for physicians to distinguish between a “serious health risk,” see id. at § 3(6), and a “medical emergency,” see id. at § 3(4).
31. In addition to the foregoing exceedingly narrow exception, the 2019 Ban excludes from the definition of abortion a procedure to terminate the pregnancy in cases where the fetus “would die after birth or shortly thereafter or be stillborn.” H.B. 314 § 3(1), (3).
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32. Performance of an abortion in violation of the 2019 Ban constitutes a Class A felony, which is punishable by imprisonment for 10-99 years. H.B. 314 § 6(a); Ala. Code § 13A-5-6(a)(1).
33. Attempted performance of an abortion in violation of the 2019 Ban constitutes a Class C felony, which is punishable by imprisonment for 1-10 years. H.B. 314 § 6(b); Ala. Code § 13A-5-6(a)(3).
34. Anyone who refers a person for an abortion performed in violation of H.B. 314 may be subject to liability for criminal solicitation or conspiracy, which are Class B felonies punishable by imprisonment for 2-20 years, Ala. Code § 13A4-1, id. at § 13A-4-3, id. at § 13A-5-6, or as an accomplice or for aiding and abetting the performance of an abortion, which carries the same penalties as performing the abortion directly in violation of H.B. 314—a class A felony punishable by imprisonment for 10-99 years, Ala. Code § 13A-2-23, id. at § 13A5-6.
35. Any physician who performs or attempts to perform, or refers for, an abortion in violation of the 2019 Ban may also be subject to medical license probation, suspension, revocation, or restriction and/or fines or other disciplinary action. See Ala. Code § 34-24-360; Ala. Admin. Code r. 545-X-1-.06; Ala. Admin. Code r. 545-X-4-.06; Ala. Code § 34-24-53; Ala. Code § 34-24-361; Ala. Admin. Code r. 540-X-1-.07.
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36. Any administrator of a licensed abortion clinic who “knowingly and willfully permits” a physician to perform or attempt to perform, or refer for, abortions in violation of H.B. 314 shall be guilty of a Class C felony, which is punishable by imprisonment for 1-10 years. See Ala. Code § 26-23E-12; Ala. Code § 26-23E-6; Ala. Code § 13A-5-6(a)(3).
37. H.B. 314 is set to take effect on November 15, 2019, which is six months from the date of the Governor’s signature. H.B. 314 § 10. Upon that date, the Plaintiffs will face, inter alia, severe criminal penalties and the risk of adverse licensure and/or disciplinary action, if they continue to perform and/or refer for abortions.
The March 27 Order 38. In March 2020, the United States declared a state of emergency and Governor Ivey proclaimed a state of emergency in Alabama in response to the COVID-19 virus. 39. The COVID-19 virus has reached every state in the country, with 644 confirmed cases in Alabama and 3 deaths as of midday on March 28, 2020. 40. On March 19, 2020, the State Health Officer, pursuant to his authority to direct that conditions prejudicial to health in public places be abated, Ala. Code. § 22-2-2(4), issued an order stating, inter alia, that “effective immediately all
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elective dental and medical procedures shall be delayed.”4 The March 19 Order did not define or otherwise explain what constitutes an “elective” medical procedure.
41. At a press conference held the same day, the State Health Officer stated, in reference to the March 19 Order: “This is not a closure of offices for physicians or dentists or optometrists. Those offices remain open and those professionals continue to care for their patients. They are still available to care for urgent and emergent situations, but all elective procedures shall be delayed. I would remind people that ‘elective’ can be somewhat subjective. CMS [Centers for Medicare & Medicaid Services] issued guidance last night that’s available on their website about what could be considered an elective procedure.” Ala. Pub. Health Training Network (“ALPHTN”), COVID-19 Alabama Update, YouTube (Mar. 19, 2020) at 5:00–5:27, https://youtu.be/vAj6vz2bd28.
42. The CMS guidance referenced by the State Health Officer emphasizes suggests “the following factors to be considered as to whether planned surgery should proceed”: Current and projected COVID-19 cases in the facility and region; Supply of [Personal Protective Equipment (“PPE”)] to the facilities in the system; Staffing availability; Bed availability, especially intensive care unit (ICU) beds
4 Available at https://www.alabamapublichealth.gov/legal/assets/order-adph-cov-gatherings031920.pdf.
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Ventilator availability; Health and age of the patient, especially given the risks of concurrent COVID-19 infection during recovery; Urgency of the procedure.5
43. On March 20, 2020, the State Health Officer issued an amended order that did not alter the language concerning elective medical and surgical procedures.6
44. On March 20, 2020, counsel for Plaintiffs spoke to counsel for ADPH who confirmed that ADPH did not intend the Orders to apply to abortions. Counsel for ADPH also stated that they had spoken to RHS and approved of the measures they were taking to protect patient and staff health in light of the COVID-19 crisis, while continuing to provide essential medical services.
45. Even prior to the issuance of the emergency orders, Plaintiffs had taken numerous proactive steps to “flatten the curve,” including by imposing stringent social distancing measures at their clinics.
46. Between March 20-27, Plaintiffs continued to perform pre-viability abortions, while taking all necessary steps to protect patients and staff from exposure to and transmission of COVID-19.
5 See CMS, Adult Elective Surgery and Procedures Recommendations (“CMS Recommendations”) (emphasis added), https://www.cms.gov/files/document/31820-cms-adultelective-surgery-and-procedures-recommendations.pdf. 6 March 20, 2020 Amended Order of the State Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by Covid-19, http://alabamapublichealth.gov/legal/assets/order-publicgathering-032020.pdf.
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47. Plaintiffs’ continued provision of abortions, under circumstances modified to respond to the COVID-19 crisis, was consistent with guidance issued by leading national medical associations, including the Ambulatory Surgery Center Association, American College of Surgeons, American College of Obstetricians and Gynecologists (“ACOG”), the American Association of Gynecologic Laparoscopists, and others, as well as the federal Centers for Medicare and Medicaid Services.7
48. During this time Plaintiffs Robinson and AWC received phone calls from anti-abortion protesters demanding to know why they were still open and providing services. Plaintiff Robinson also saw numerous social media posts from anti-abortion activists urging their supporters to call the Governor and Attorney General and demand the closure of AWC pursuant to the emergency orders.
49. Also during this time, newspaper articles were published in Alabama stating that ADPH had deemed abortion clinics “essential” businesses.
7 See, e.g., Am. Surgical Ctr. Ass’n, COVID-19: Guidance for ASCs on Necessary Surgeries (last updated Mar. 19, 2020), https://www.ascassociation.org/asca/resourcecenter/ latestnewsresourcecenter/covid-19/covid-19-guidance; Am. Coll. of Surgeons, COVID-19: Recommendations for Management of Elective Surgical Procedures (Mar. 13, 2020), https://www.facs.org/about-acs/covid-19/information-for-surgeons/elective-surgery; Am. Ass’n of Gynecologic Laparoscopists et al., Joint Statement on Elective Surgery During COVID-19 Pandemic (Mar. 16, 2020), https://www.aagl.org/news/joint-society-message-on-covid-19; ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortionaccess-during-the-covid-19-outbreak.
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50. On March 27, the State Public Health Officer issued a second amended order stating, in relevant part, that effective March 28, 2020 at 5:00 P.M.
“all medical or surgical procedures shall be postponed until further notice, subject to the following exceptions:”
(a) Medical or surgical procedures necessary to treat an emergency medical condition, which is defined as a “medical condition manifesting itself by acute symptoms of sufficient severity … such that the absence of immediate medical attention could reasonably be expected . . . to result in placing the health of the person in serious jeopardy or causing serious impairment to bodily functions or serious dysfunction of bodily organs.”
(b) Medical or surgical procedures “necessary to avoid serious harm from an underlying condition or disease, or necessary as part of a patient’s ongoing and active treatment.”
March 27 Order. 51. The March 27 Order stated that “[t]his Order shall remain in full force
and effect until 5:00 P.M. on April 17, 2020[,]” and that prior to that date “a determination shall be made whether to extend this Order—or, if circumstances permit, to relax this Order.”
52. The March 27 Order was also promulgated as an emergency rule, which is not set to expire for 120 days. See Ala. Admin. Code 420-4-1-.13 ER, attached hereto as Exhibit C.
53. The State Public Officer has repeatedly indicated that crisis conditions
will continue for a significant period of time. This is consistent with the statements of federal and state officials and other medical professionals who expect a surge of
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infections that will test the limits of an increasingly burdened health care system, as well as the most recent statement by the President (as of March 30, 2020) that federal guidelines would recommend that social distancing measures be in place until at least April 30, 2020.
54. On the afternoon of March 27, Plaintiffs’ counsel reached out to ADPH, explaining that Plaintiffs had “already taken all necessary and feasible steps to protect the health and safety of their patients and staff while continuing to provide only that care which is essential to patient health and cannot be delayed without risk to patient health” and setting forth Plaintiffs’ understanding that “medication abortion is not a procedure within the terms of the order and that surgical abortion procedures fall within the exceptions.” Plaintiffs’ counsel requested that ADPH inform counsel if it “disagrees and intends to enforce the order against the clinics” before the March 28 5:00 PM effective date of the order so that Plaintiffs could seek the appropriate legal relief.
55. Counsel for ADPH did not respond, and instead referred the request for clarification to the Office of the Attorney General who responded that evening stating only that “[a]s the order indicates, procedures are exempt from mandatory postponement only if they meet the criteria set out in 7a. or b,” and referring Plaintiff’s counsel to the Attorney General’s Guidance for Law Enforcement concerning the March 27 Order, attached hereto as Exhibit D.
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56. This guidance explains that each violation of the March 27 Order constitutes a misdemeanor under Ala. Code § 22-2-14. The guidance goes on to state (emphasis in the original): “While the unprecedented nature of this pandemic and the government’s evolving response seem to demand some restraint related to criminal enforcement of this order, if a violator has been made aware of the state health order and the refusal to comply presents a threat to public health and safety, [criminal penalties] are available as an enforcement tool.” Id.
57. On March 28, 2020, Plaintiffs’ counsel again wrote to counsel for the ADPH and the Attorney General requesting clarification, reasserting that Plaintiffs’ “interpret the order not to apply to medication abortion because it is neither a surgery nor a procedure, or to apply to surgical abortions because they fall within the exceptions” and requesting that the AG or the ADPH inform Plaintiffs’ counsel if they disagree with this interpretation before the effective time of the Order, so that Plaintiffs may seek the appropriate legal relief.
58. Receiving no response, on the morning of March 29, Plaintiffs’ counsel once again wrote to Defendants’ counsel, informing them of Plaintiffs’ intention to sue if assurances that Plaintiffs could continue to provide abortion care were not forthcoming.
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59. Later that afternoon, the Office of the Attorney General responded stating: “Per the order, we are unable to provide you with a blanket affirmation that abortions will, in every case, fall within one of the exemptions.”
60. Given the risk of criminal and licensure penalties, and the refusal of the Department or Attorney General to provide any guidance other than that it is their position that at least some pre-viability abortions constitute criminal acts, Plaintiffs, their physicians, and staff have been forced to cancel scheduled appointments and to stop providing abortion care.
FACTUAL ALLEGATIONS Abortion in Alabama
61. There are only three outpatient clinics currently providing abortions in the state of Alabama—Plaintiff AWC in Huntsville; Plaintiff RHS in Montgomery; and Plaintiff WAWC in Tuscaloosa. While Plaintiff PPSE is not currently providing abortions in Alabama, it has done so in the past, and intends to provide them again in the near future.
62. AWC is the only clinic in the state providing abortions after 14 weeks LMP.
63. The window during which a patient can obtain an abortion in Alabama is limited. Pregnancy is generally forty weeks in duration, and Alabama prohibits abortion except in narrow circumstances after twenty weeks. Ala. Code §
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26-23B-5.
64. According to 2017 data made available by the State, less than 0.001%
of abortions performed in the entire state were provided in Alabama hospitals in
2017.8 The data for 2018 is the same.9
65. Abortion is one of the safest medical procedures in the United States
and is substantially safer than continuing a pregnancy through to childbirth.
66. Complications from abortion are rare, and when they occur they can
usually be managed in an outpatient clinic setting, either at the time of the abortion
or in a follow-up visit.
67. Abortion is also extremely common; approximately one in four
women in this country will have an abortion by age forty-five.10
68. Some people have abortions because they conclude that it is not the
right time to become a parent given their age, desire to pursue their education
8 Ala. Dep’t of Health, Ala. Center for Health Statistics, Vital Statistics, Induced Terminations of Pregnancy, Residents of Alabama, 2017, http://www.alabamapublichealth.gov/healthstats/assets/ITOP_2017AL%20.pdf. 9 Ala. Dep’t of Health, Ala. Center for Health Statistics, Vital Statistics, Induced Terminations of Pregnancy, Residents of Alabama, 2018, http://www.alabamapublichealth.gov/healthstats/assets/itop2018al%20.pdf. 10 See Guttmacher Institute, Abortion Is a Common Experience for U.S. Women, Despite Dramatic Declines in Rates, (Oct. 19, 2017), https://www.guttmacher.org/newsrelease/2017/abortion-common-experience-us-women-despite-dramatic-declines-rates. Although abortion bans, like H.B. 314, have a disparate impact on women—in particular, women of color, low-income women, and young women—these bans also inflict irreparable constitutional and dignitary harm on members of transgender and gender non-binary communities who likewise need access to abortion services.
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and/or career, or because they feel they lack the necessary financial resources or level of partner or familial support or stability. Many are already mothers; indeed, a majority of women having abortions (59%) already have at least one child.11
69. Some people seek abortions to preserve their life or health; some because they have become pregnant as a result of rape; and others because they decide not to have children at all.
70. Some people who have suffered trauma, such as sexual assault or domestic violence, may be concerned that pregnancy, childbirth, and/or an additional child may exacerbate already extremely difficult and dangerous situations for them and put them at risk of greater sexual or physical violence or worse.
71. Some people decide to have an abortion because of an indication or diagnosis of a fetal medical condition or anomaly. Some families do not feel they have the resources—financial, medical, educational, or emotional—to care for a child with special needs or to simultaneously provide for the children they already have.
72. Ultimately, the decision to terminate a pregnancy for any reason is motivated by a combination of diverse, complex, and interrelated factors that are
11 See Guttmacher Institute, Characteristics of U.S. Abortion Patients in 2014 and Changes Since 2008, (May 2016), https://www.guttmacher.org/report/characteristics-us-abortion-patients-2014.
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intimately related to the individual’s values and beliefs, culture and religion, health status and reproductive history, familial situation, and resources and economic stability.
73. There are two main methods of abortion: medication abortion and procedural abortion.
74. Medication abortion involves the patient ingesting a combination of two pills: mifepristone and misoprostol. The patient takes the mifepristone in the health center and then, typically twenty-four to forty-eight hours later, takes the misoprostol at a location of their choosing, most often at their home, after which they expel the contents of the pregnancy in a manner similar to a miscarriage.
75. ACOG has stated that “[m]edical abortion can be provided safely and effectively via telemedicine with a high level of patient satisfaction . . . [and] the model appears to improve access to early abortion in areas that lack a physician health care provider.”12
76. Using telemedicine for medication abortion would be particularly beneficial during the COVID-19 crisis; however Alabama law requires a medically unnecessary “in-person” physical exam for every medication abortion patient, see Ala. Code 26-23E-7, and imposes medically unnecessary ultrasound and laboratory
12 ACOG, Medical Management of First-Trimester Abortion, Practice Bulletin No. 143, at 12 (2014).
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testing requirements, see, e.g. Ala. Code § 26-23A-4(a), Ala. Admin. Code 420-51-.03, that effectively prohibit the use of telemedicine.
77. This medically unnecessary restriction is inconsistent with the recent statements of the Alabama Board of Medical Examiners (“ALBME”) “encourage[ing] [health care providers] to communicate with patients, and provide telehealth services, through remote technologies,” including the “the prescribing of controlled substances using telemedicine . . . to patients for whom they have not conducted an in-person medical evaluation.” 13
78. Medication abortion is available in Alabama up to 10 weeks, as measured from the last menstrual period (“LMP”).
79. For some patients, medication abortion is contraindicated or there are other factors that would necessitate a procedural abortion, such as when the patient has an allergy to the medications or other medical conditions that make procedural abortion relatively safer.
80. Despite sometimes being referred to as “surgical abortion,” procedural abortion is not what is commonly understood to be “surgery”; it involves no incision, no need for general anesthesia, and no requirement of a sterile field.
13 ALMBE, Joint Notice of Enforcement Discretion by the [ALBME] and the Alabama State Board of Pharmacy (emphasis in original), https://www.alabamapublichealth.gov/legal/assets/notice-examiner-pharmacy-enforcement032320.pdf
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81. In the procedural abortion known as aspiration, the clinician uses gentle suction from a narrow, flexible tube to empty the contents of the patient’s uterus. Before inserting the tube through the patient’s cervix and into the uterus, the clinician may dilate the cervix using medication and/or small, expandable rods.
82. Beginning around fifteen weeks LMP, clinicians generally must use instruments to complete the procedure, a technique called dilation and evacuation (“D&E”).
83. Neither method of abortion requires extensive PPE, particularly as compared to the PPE required for multiple pre-natal visits and labor and delivery.
84. Patients generally seek abortion as soon as they are able, but many face logistical obstacles that can delay access to abortion care. Patients will need to schedule an appointment, gather the resources to pay for the abortion and related costs, and arrange transportation to a clinic, and possibly time off of work (without paid sick leave) or childcare during appointments.
85. Delays result in higher financial and emotional costs to the patient. Although abortion is a very safe medical procedure, the health risks associated with it increase with gestational age.
86. These obstacles and delays are only exacerbated when a patient can no longer obtain an abortion in the city where or close to where she lives, and must instead travel extended distances to obtain abortion services.
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87. The COVID-19 pandemic has only exacerbated existing burdens on patients seeking abortion care. It has people’s ability to use public transit, caused layoffs and other work disruptions, shuttered schools and childcare facilities, and otherwise limited patients’ options for transportation and childcare support during a time of recommended social-distancing and shelter-in-place orders. Indeed, jobless claims are soaring due to the virus.
Pregnancy and the COVID-19 Crisis 88. While pregnancy can be a blessing for many families, even an uncomplicated pregnancy poses challenges to a woman’s entire physiology and stresses most major organs. 89. A pregnant woman’s response to infections is also altered by her physiology, which puts her at greater risk for certain infections. 90. While much is unknown about COVID-19, ACOG has warned that “pregnant women are known to be at greater risk of severe morbidity and mortality
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from other respiratory infections such as influenza and SARS-CoV. As such, pregnant women should be considered an at-risk population for COVID-19.”14
91. Moreover, there is a 15 to 20 percent risk of miscarriage present in every pregnancy. Complications from miscarriage can lead to infection, hemorrhage, surgery, and even death.
92. Even an uncomplicated pregnancy can suddenly become lifethreatening during labor and delivery. Furthermore, one-third of pregnancies result in a caesarean section (C-section) delivery. Even though C-section deliveries are relatively common, it is still a significant abdominal surgery that carries risks of hemorrhage, infection and injury to internal organs. And even a vaginal delivery can lead to injury, such as injury to the pelvic floor.
93. Published research shows patients who are denied a wanted abortion face serious consequences, including greater likelihood of living in poverty, staying in abusive relationships, and experiencing mental health issues, as well as increased chances of suffering health consequences from continuing a pregnancy, than patients able to obtain abortion care.
14 ACOG, Practice Advisory - Novel Coronavirus 2019 (COVID-19) (last updated Mar. 13, 2020), https://www.acog.org/clinical/clinical-guidance/practice-advisory/articles/2020/03/ novel-coronavirus-2019; see also Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID-19 and Pregnant Women (last updated Mar. 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/pregnant-women-faq.html.
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94. Pregnant patients have a minimum of one prenatal care visit per month, which increases as pregnancy progresses; that number is higher for highrisk pregnancies or where there are other pregnancy complications. PPE is used at every visit. Moreover, a pregnant patient may make multiple visits to the hospital before she is in active labor.
95. An actual birth is attended by multiple medical care providers at the hospital, including, but not limited to, nursery personnel, a labor and delivery nurse, an OB tech, a physician, and an anesthesiologist and involves extensive PPE. For an uncomplicated pregnancy, the patient is going to remain in the hospital at least 24-48 hours; for a C-section up to 72-96 hours; and for a more complicated or risky pregnancy, potentially even longer.
Alabama’s Targeted Campaign Against Abortion 96. H.B. 314 is the culmination of a near-decade long campaign by the Alabama legislature to eliminate legal abortion in Alabama. 97. Since 2011, the Alabama legislature has enacted a multitude of laws aimed at restricting and ultimately outlawing abortion in the state. This campaign has contributed to, as this Court has recognized, “a climate of extreme hostility” for “abortion providers and women seeking abortions in Alabama today.” Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330, 1334 (M.D. Ala. 2014) (Thompson, J).
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98. In 2011, the Legislature banned abortions starting at 20 weeks, with exceptions only for abortions necessary to avert death or “serious risk of substantial and irreversible physical impairment of a major bodily function.” Ala. Code § 26-23B-5.
99. In 2013, the Legislature imposed burdensome building requirements on abortion clinics, see Ala. Code § 26-23E-9, that forced multiple Alabama abortion clinics to undergo extensive and expensive renovations, and even purchase and relocate to entirely new properties.
100. Also in 2013, the Legislature required all physicians performing abortions in Alabama to hold staff privileges at a hospital within the same statistical metropolitan area as the clinic. See Ala. Code § 26-23E-4(c). That requirement was found unconstitutional by this Court, see, e.g., Strange, 33 F. Supp. 3d 1330; Planned Parenthood Se., Inc. v. Strange, 172 F. Supp. 3d 1275 (M.D. Ala. 2016) (Thompson, J.) (determining appropriate relief), and, after the Supreme Court in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), struck a virtually identical law, the Attorney General dismissed his appeal stating “there is now no good faith argument that the law is constitutional under controlling precedent.” Mot. to Dismiss Appeal, Planned Parenthood Se., Inc. v. Strange, No. 16-11867 (11th Cir. July 15, 2016). Cf. W. Ala. Women’s Ctr. v. Williamson, 120 F. Supp. 3d 1296, 1317 (M.D. Ala. 2015) (enjoining as
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unconstitutional regulation requiring clinics to contract with physician with admitting privileges).
101. In 2014, the Legislature increased the mandatory wait period between when physicians must provide state-mandated information to patients and when patients can lawfully obtain an abortion from 24 hours to 48 hours. See Ala. Code § 26-23A-4 . By requiring some of the state-mandated counseling to occur inperson, this law effectively imposes a two-trip requirement on most patients seeking an abortion. Id.
102. Also in 2014, the Legislature altered the judicial bypass process through which a minor may seek a court order waiving the State’s requirement she obtain parental consent prior to an abortion. See Ala. Code §§ 26-21-1, et seq. “Appl[ying] 38 years of Supreme Court authority on the subject, as all lower federal courts are bound to do,” this Court declared the revisions violated “a pregnant minor’s long-established constitutional right[s].” Reprod. Health Servs. v. Marshall, 268 F. Supp. 3d 1261, 1295 (M.D. Ala. 2017) (Walker, M.J.), appeal pending, No. 17-13561 (11th Cir.).
103. In 2016, the Legislature prohibited the ADPH from issuing or renewing licenses for abortion clinics located within 2,000 feet of a K-8 public school, which would have had the effect of closing two of the state’s then-five clinics and the only clinics in the state providing abortions in the second trimester.
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Ala. Code § 22-21-35(b). This Court held that law unconstitutional and enjoined its enforcement. W. Ala. Women’s Ctr. v. Miller, 299 F. Supp. 3d 1244, 1280–81 (M.D. Ala. 2017), aff’d sub nom. W. Ala. Women’s Ctr. v. Williamson, 900 F.3d 1310 (11th Cir. 2018), pet. for cert. pending Harris v. W. Ala. Women’s Ctr., No. 18-837 (2019).
104. Also in 2016, Alabama banned the most common method of secondtrimester abortion and the only method available in the outpatient setting, effectively banning abortion throughout the state starting at 15 weeks. Once again, this Court issued a permanent injunction against the ban, finding that, were the law to stand, “Alabama women w[ould] be altogether unable to access a safe abortion at or after 15 weeks of pregnancy.” Id. at 1244.
The 2019 Ban and March 27 Order’s Impact on Plaintiffs’ Patients 105. If allowed to take effect, the 2019 Ban and March 27 Order will essentially eliminate legal abortion in Alabama. 106. Pre-viability abortions are “necessary to avoid serious harm from an underlying condition” because forcing anyone to continue a pregnancy against their will threatens serious harm to their health, and therefore previability abortions fit within the exceptions to the March 27 Order. 107. Medication abortions, which involve the patient taking one medication by mouth in the clinic and additional medications later when she is at
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home, are not medical or surgical “procedures” within the meaning of the March 27 Order.
108. Because the plain language of the March 27 Order should exempt previability abortions, Plaintiffs have no way of knowing which pre-viability abortions are considered criminal acts under the March 27 Order.
109. Accordingly, Plaintiffs have already started cancelling and turning away patients, and will continue to have to do so while the March 27 Order remains in effect.
110. By targeting pre-viability abortion, the March 27 Order is likely to increase the need for other pregnancy-related healthcare and attendant need for medical facilities, personnel, and PPE during the COVID-19 crisis.
111. The impact of the 2019 Ban and the March 27 Order will fall disproportionately on Black women and people who are low-income.
112. Statistics show that in 2017, Black people made up less than 30% of Alabama’s population,15 but over 60% of people who obtained abortions in Alabama.16
15 See U.S. Census Bureau, American FactFinder, ACS Demographic and Housing Estimates, 2013-2017 American Community Survey 5-Year Estimates, Alabama, 2017, https://factfinder.census.gov/bkmk/table/1.0/en/ACS/17_5YR/DP05/0400000US0. 16 Ala. Dep’t of Health, Ala. Center for Health Statistics, Vital Statistics, Induced Terminations of Pregnancy, Residents of Alabama, 2017, http://www.alabamapublichealth.gov/healthstats/assets/ITOP_2017AL%20.pdf.
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113. The majority of Plaintiffs’ patients are low-income. 114. Many of Plaintiffs’ patients do not have access to reliable transportation or the financial resources to travel to a distant city or state to obtain medical care, nor do those who are victims of domestic violence, who must overcome exceptional hurdles to obtain an abortion without their abusers’ knowledge. 115. The COVID-19 pandemic and its fallout do not reduce patients’ needs for abortion; if anything, they make timely access to abortion even more urgent, while raising additional obstacles for patients seeking that care. Now, during the COVID-19 pandemic, patients must navigate pre-existing barriers against the backdrop of job insecurity, more limited ability to access public transit, and limited childcare assistance due to mandatory social distancing and shelter in place orders. 116. Without access to legal abortion in Alabama, patient care will be delayed, if not outright denied, subjecting patients to increased risks to their health and lives. 117. Being forced to continue a pregnancy against one’s will can pose a risk to a person’s physical, mental, and emotional health, and even their life, as well as to the stability and well-being of their family, including existing children. 118. When Plaintiffs had to cancel patients’s appointments because of the March 27 Order, their patients were devastated. Many of the calls ended in tears.
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Because of the cancellations, one will no longer be able to get an abortion at the Tuscaloosa clinic where they had already been seen for the state-mandated counseling and would only be able to get an abortion at all if she can manage to get to Huntsville.
119. All of Plaintiffs’ patients are in a terrible state of limbo. They do not know if they will be able to get the care they seek. They must live day to day with the tremendous anxiety that comes with not knowing whether they will face the life-altering consequences of being forced to have a child against their will.
120. Even if the March 27 Order is lifted on April 17, Plaintiff AWC, the only clinic in the state that provides abortions after 14 weeks, may not have the capacity to meet the increased patient load.
121. Even for someone who is otherwise healthy and has an uncomplicated pregnancy, carrying that pregnancy to term and giving birth poses serious medical risk and can have long-term medical and physical consequences. For someone with a medical condition caused or exacerbated by pregnancy, these risks are increased.
122. Forced pregnancy poses a heightened risk in Alabama, and to Black women, in particular.
123. According to ADPH, nearly two-thirds of Alabama counties lack
35

Case 2:19-cv-00365-MHT-JTA Document 79 Filed 03/30/20 Page 36 of 41
hospitals that offer obstetrical care.17
124. Moreover, while the number of reported pregnancy-related deaths
across the country has steadily increased from 7.2 deaths per 100,000 live births in
1987, to 18.0 deaths per 100,000 live births in 2014,18 in Alabama, Black women
are nearly five times more likely to die from pregnancy-related causes than White
women.19
125. In addition, Alabama is among the five states with the highest infant
mortality rate in the country.20
Injunctive Relief
126. The 2019 Ban and March 27 Order will subject Plaintiffs’ patients to
significant and irreparable harm to their constitutional rights for which no adequate
remedy at law exists. By preventing Plaintiffs’ patients from obtaining an abortion
in Alabama, the 2019 Ban and March 27 Order will also inflict significant and
17 Jessica Ravitz, Alabama says it wants to protect life. How does that claim stack up outside the womb?, CNN, May 16, 2019, https://www.cnn.com/2019/05/16/health/alabama-treatment-ofliving/index.html. 18 National Center for Chronic Disease Prevention and Health Promotion, Division of Reproductive Health, Pregnancy Mortality Surveillance System, Aug. 7, 2018, https://www.cdc.gov/reproductivehealth/maternalinfanthealth/pregnancy-mortality-surveillancesystem.htm?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Freproductivehealth%2Fmat ernalinfanthealth%2Fpmss.html. 19 Society for Maternal-Fetal Medicine, Maternal Mortality Facts & Figures: Alabama, Dec. 4, 2018, https://s3.amazonaws.com/cdn.smfm.org/mortality_records/2-:state_slug.pdf (accessed via https://www.smfm.org/data/mortality-map). 20 Centers for Disease Control and Prevention, National Center for Health Statistics, Infant Mortality Rates by State: 2017, last updated Jan. 15, 2019, https://www.cdc.gov/nchs/pressroom/sosmap/infant_mortality_rates/infant_mortality.htm.
36

Case 2:19-cv-00365-MHT-JTA Document 79 Filed 03/30/20 Page 37 of 41
irreparable medical, emotional, dignitary, and other harms for which no adequate remedy at law exists.
127. Enforcement of the 2019 Ban and March 27 Order will cause irreparable harm by threatening Plaintiffs and their physicians, clinic administrators, and other staff with substantial criminal and/or licensure penalties for providing abortion services and referring for abortion services.
CLAIMS FOR RELIEF Count I
(Substantive Due Process – Plaintiffs’ Patients’ Right to Privacy) 128. Plaintiffs repeat the factual allegations set forth above as fully set forth herein. 129. By prohibiting an individual from making the ultimate decision whether to terminate a pregnancy prior to viability, H.B. 314 and the March 27 Order violate the rights to liberty and privacy secured to Plaintiffs’ patients by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Count II (Due Process -- Void for Vagueness) 130. Plaintiffs repeat the factual allegations set forth above as fully set forth herein.
37

Case 2:19-cv-00365-MHT-JTA Document 79 Filed 03/30/20 Page 38 of 41
131. By stating that that the March 27 Order makes at least some previability abortions criminal, notwithstanding that the plain language of the March 27 Order should permit all pre-viability abortions, but refusing to provide guidance necessary for Plaintiffs to determine which abortions are considered criminal under Defendants’ interpretation of the Order, Defendants have prevented Plaintiffs from understanding what conduct is prohibited and put them at risk of arbitrary and discriminatory enforcement in violation of their due process rights.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request this Court:
A. Enter a judgment declaring H.B. 314 violates the Fourteenth Amendment to the United States Constitution and a preliminary and permanent injunction, restraining Defendants, their employees, agents, and successors in office from enforcing H.B. 314;
B. Enter a judgment declaration that the March 27 Order, as applied to pre-viability abortions, violates the Fourteenth Amendment to the United States Constitution, and issue a temporary restraining order, preliminary injunction, and permanent injunction, restraining Defendants, their employees, agents, and successors in office from enforcing the March 27 Order to ban pre-viability abortions.
38

Case 2:19-cv-00365-MHT-JTA Document 79 Filed 03/30/20 Page 39 of 41
D. To award Plaintiffs their costs and expenses, including reasonable
attorneys’ fees pursuant to 42 U.S.C. § 1988; and
E. To grant any additional relief as may be just and proper.
Respectfully submitted this 30th day of March, 2020.
/s/ Randall C. Marshall Randall C. Marshall ASB-3023-A56M ACLU OF ALABAMA P.O. Box 6179 Montgomery, AL 36106-0179 (334) 265-2754 rmarshall@aclualabama.org
Attorneys for Plaintiffs
Alexa Kolbi-Molinas* New York State Bar No. 4477519 Meagan Burrows* New York State Bar No. 5341904 AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 akolbi-molinas@aclu.org mburrows@aclu.org (212) 549-2633
Attorneys for Plaintiffs Robinson, AWC, RHS, and WAWC.
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Case 2:19-cv-00365-MHT-JTA Document 79 Filed 03/30/20 Page 40 of 41
Carrie Y. Flaxman* District of Columbia Bar #458681 Planned Parenthood Federation of America 1110 Vermont Avenue, NW, Suite 300 Washington, D.C. 20005 carrie.flaxman@ppfa.org (202) 973-4830 Attorney for Plaintiff Planned Parenthood Southeast, Inc. *Admitted pro hac vice
40

Case 2:19-cv-00365-MHT-JTA Document 79 Filed 03/30/20 Page 41 of 41
CERTIFICATE OF SERVICE I hereby certify that on March 30, 2020, I electronically filed the foregoing with the Clerk of Court for the United States District Court for the Middle District of Alabama using the CM/ECF system, thereby serving all counsel of record.
/s/ Randall Marshall Randall Marshall Attorney for Plaintiffs Yashica Robinson, M.D., Alabama Women’s Center, Reproductive Health Services, and West Alabama Women’s Center
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 Case 2:19-cv-00365-MHT-JTA Document 83 Filed 03/30/20 Page 1 of 12

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,

)

)

v.

)

)

STEVEN MARSHALL, in his )

official capacity as

)

Alabama Attorney General, )

et al.,

)

)

Defendants.

)

CIVIL ACTION NO. 2:19cv365-MHT (WO)

TEMPORARY RESTRAINING ORDER

Plaintiffs Yashica Robinson, M.D., Alabama Women’s

Center, Reproductive Health Services, and West Alabama

Women’s Center have moved for an ex parte temporary

restraining order (“TRO”) pursuant to Rule 65(b)(1) of

the Federal Rules of Civil Procedure. They seek to

enjoin enforcement of the State Public Health Officer’s

“Order of the State Health Officer Suspending Certain

Public Gatherings Due to Risk of Infection by

Case 2:19-cv-00365-MHT-JTA Document 83 Filed 03/30/20 Page 2 of 12
COVID-19”, published on March 27, 2020. Emergency oral argument, with counsel for both plaintiffs and defendants, was held on the motion today. For the reasons described below, plaintiffs’ motion for a temporary restraining order will be granted.
I. Legal Standard To demonstrate that a temporary restraining order is warranted, plaintiffs must show: (1) that there is a substantial likelihood of success on the merits of their suit; (2) that they will suffer irreparable harm absent injunctive relief; (3) that the harm to plaintiffs absent an injunction would outweigh the harm to the defendants from an injunction; and (4) that an injunction is in the public interest. See Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995).
II. Background On March 27, 2020, responding to the COVID-19 pandemic, Alabama’s State Health Officer issued an
2

Case 2:19-cv-00365-MHT-JTA Document 83 Filed 03/30/20 Page 3 of 12
order suspending certain public gatherings.1 The March 27 order was promulgated by the State Health Officer pursuant to his authority to direct that conditions prejudicial to health in public places be abated, see Ala. Code § 22-2-2(4), and it is in full force until at least 5:00 p.m. on April 17, 2020.
Among many other prohibitions, the March 27 order mandates that “all dental, medical, or surgical procedures shall be postponed until further notice,” subject to exceptions for procedures necessary to treat an “emergency medical condition,” necessary to “avoid serious harm from an underlying condition or disease,” or “necessary as part of a patient’s ongoing and active treatment.” While the order itself is arguably not clear,2 the State’s attorney, in his oral
1. The State Health Officer had issued a number of previous orders, but plaintiffs were assured that the earlier orders would not be enforced against providers of abortions. No such assurance was provided regarding the most recent order.
2. Prior to today’s hearing, plaintiffs sought clarification regarding the application of the order to abortion, which the State declined to provide.
3

Case 2:19-cv-00365-MHT-JTA Document 83 Filed 03/30/20 Page 4 of 12
representations on the record, took the position that the March 27 order requires the postponement of any abortion that is not medically necessary to protect the life or health of the mother. This is extremely broad, and includes not only procedural abortions, but also those which are obtained through simply taking medication--the method by which the vast majority of abortions in Alabama are conducted.
Plaintiffs moved for a temporary restraining order and a preliminary injunction, seeking to enjoin enforcement of the March 27 order as it relates to the provision of abortions in Alabama.
III. Discussion A. Substantial Likelihood of Success on the Merits Plaintiffs have established a likelihood of success on the merits of their claim that the March 27 order violates their patients’ right to privacy under the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment to the United States
4

Case 2:19-cv-00365-MHT-JTA Document 83 Filed 03/30/20 Page 5 of 12

Constitution protects a woman’s right to terminate her

pregnancy. See Planned Parenthood of Southeastern Pa.

v. Casey, 505 U.S. 833, 871 (1992) (plurality opinion).

A State may regulate abortion to further its legitimate

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 878.

In evaluating regulations of pre-viability

abortion, 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). In

contrast, in evaluating a ban on pre-viability

abortion, no state interest can prevail: “Before

viability, the State’s interests are not strong enough

5

Case 2:19-cv-00365-MHT-JTA Document 83 Filed 03/30/20 Page 6 of 12
to support a prohibition of abortion....” Casey, 505 U.S. at 846 (opinion of the Court).
Put simply, “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.). Here, plaintiffs have demonstrated a likelihood of success on the merits. As interpreted by the State’s attorney, the March 27 order implements a blanket postponement of all abortions, medication or procedural, that are not necessary to preserve the life or health of the mother. Because Alabama law imposes time limits on when women can obtain abortions, the March 27 order is likely to fully prevent some women from exercising their right to obtain an abortion. And for those women who, despite the mandatory postponement, are able to vindicate their right, the required delay may pose an undue burden that is not justified by the State’s purported rationales.
6

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Defendants argued orally that the undue-burden framework is inapplicable to the March 27 order. Rather, they suggest, the March 27 order’s constitutionality rests upon the State’s broad emergency powers. Given the risks of immediate harm described below, the court opts not to delay the restraining order to accommodate further briefing. However, the court will give defendants until 5:00 p.m. on April 1 to present these arguments in full, and will then take them up at the hearing regarding a preliminary injunction. In the meantime, based on the current record, the court finds that plaintiffs have shown a likelihood of success on the merits.

B. Irreparable Harm

Plaintiffs have also demonstrated imminent,

irreparable harm to their patients.

Plaintiffs’

patients will be delayed in, and in some cases

permanently prevented from, exercising their right to

privacy--a denial of which constitutes “irreparable

7

Case 2:19-cv-00365-MHT-JTA Document 83 Filed 03/30/20 Page 8 of 12
injury.” See Ne. Fla. Chapter of Ass’n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990). Indeed, 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).
Plaintiffs have further demonstrated that their provision of abortions would risk violating the dictates of the March 27 order, as it is understood by the State, and that they must either stop providing abortions or risk criminal penalties, licensure sanctions, or both. The March 27 order’s limited medical exceptions do not alleviate these harms. Indeed, even with these exceptions, providers performing abortions that they deem medically necessary risk subjecting themselves to “the tender mercies of a prosecutor’s discretion and the vagaries of a jury’s decision” regarding the exceptions’ applicability. W.
8

Case 2:19-cv-00365-MHT-JTA Document 83 Filed 03/30/20 Page 9 of 12
Alabama Women’s Ctr. v. Williamson, 900 F.3d 1310, 1329 (11th Cir. 2018), cert. denied sub nom. Harris v. W. Alabama Women’s Ctr., 139 S. Ct. 2606 (2019). In light of the fraught choice that the March 27 order presents, plaintiffs have clearly demonstrated a risk of irreparable harm.
C. The Balance of Hardships Plaintiffs have also demonstrated that their imminent injuries outweigh the harm that a temporary restraining order might cause to defendants. Plaintiffs allege, at minimum, a temporary denial of their constitutional rights; for some women, the March 27 order likely would entirely prevent them from terminating their pregnancy. In contrast, the State’s interest in immediate enforcement of the March 27 order--a broad mandate aimed primarily at preventing large social gatherings--against abortion providers does not, based on the current record, outweigh plaintiffs’ concerns. Again, the court will consider
9

Case 2:19-cv-00365-MHT-JTA Document 83 Filed 03/30/20 Page 10 of 12
defendants’ arguments regarding the State’s emergency powers when it takes up the matter in full at the forthcoming hearing. Further, the court is swiftly setting this motion for a preliminary injunction hearing, where it will hear both sides in detail. Until then, however, the balance of equities favors a temporary restraining order to preserve the status quo.
D. The Public Interest Finally, the court finds that a temporary restraining order serves the public interest, including by temporarily maintaining the status quo until the court can fully resolve the issues on the merits. Despite the serious conditions described by defendants and the dire need for medical equipment across the United States, the benefits of some potential increase in the availability of equipment (some of which may be ill-suited to the task of disease containment) do not outweigh the serious, and, in some cases, permanent, harms imposed by the denial of an individual’s right to
10

Case 2:19-cv-00365-MHT-JTA Document 83 Filed 03/30/20 Page 11 of 12
privacy. A temporary restraining order therefore serves the public interest.
*** Accordingly, it is ORDERED that plaintiffs’ motion for a temporary restraining order (doc. no. 73) is granted. Defendants, their agents, and anyone acting in concert with them are TEMPORARILY RESTRAINED from enforcing, threatening to enforce, or otherwise requiring evidence of compliance with the March 27 order against or from abortion providers, clinics, and their staff. This temporary restraining order shall expire on April 13, 2020, at 5:00 p.m., unless extended by the court for good cause shown or by agreement of the parties. It is further ORDERED that the security requirement of Fed. R. Civ. P. 65(c) is waived and that this injunctive relief is effective upon service. It is further ORDERED that defendants are to submit their response to plaintiffs’ motion for a preliminary
11

Case 2:19-cv-00365-MHT-JTA Document 83 Filed 03/30/20 Page 12 of 12
injunction by 5:00 p.m. on Wednesday, April 1, 2020. Plaintiffs will then have until 5:00 p.m. on April 3, 2020, to reply. The court will immediately begin to reconsider the temporary restraining order in light of defendants’ responses.
DONE, this the 30th day of March, 2020.
/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

 
 Case 2:19-cv-00365-MHT-JTA Document 111 Filed 04/03/20 Page 1 of 15

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,

)

)

v.

)

)

STEVEN MARSHALL, in his )

official capacity as

)

Alabama Attorney General, )

et al.,

)

)

Defendants.

)

CIVIL ACTION NO. 2:19cv365-MHT (WO)

OPINION AND ORDER

This case challenges the application of the State

Health Officer’s “Order of the State Health Officer

Suspending Certain Public Gatherings Due to Risk of

Infection by COVID-19,” published on March 27, 2020, to

abortion providers and clinics. On March 30, this

court entered a temporary restraining order enjoining

enforcement of the March 27 order as to those providers

and clinics, but it promised to reconsider upon the

Case 2:19-cv-00365-MHT-JTA Document 111 Filed 04/03/20 Page 2 of 15
submission of the defendants’ written arguments. When the court entered its initial temporary
restraining order, the plaintiffs had sought an immediate injunction prohibiting the delay of any abortion in Alabama--that is, they sought temporary relief broad enough to maintain the status quo. The court, concerned that the March 27 order could be read to effect a ban on abortions throughout the state, enjoined its enforcement.
Based on the current record, however, the court now finds that its initial temporary restraining order swept too broadly. At an on-the-record hearing held by teleconference earlier today, the defendants provided numerous clarifications to the March 27 order that mitigated the court’s most immediate concerns about the order. While some postponements of abortions will undoubtedly occur, the March 27 order, as clarified by the Attorney General’s Office during the conference call, allows providers, exercising their reasonable
2

Case 2:19-cv-00365-MHT-JTA Document 111 Filed 04/03/20 Page 3 of 15
medical judgment, to protect the right to terminate a pregnancy and the safety of their patients. But it also acknowledges that abortion providers and their patients must share the societal burden caused by COVID-19.
Now before the court are the defendants’ motion to stay enforcement of the temporary restraining order pending appeal and their motion to dissolve the temporary restraining order. For the reasons explained below, the defendants’ motion to stay will be granted to the extent that the court adopts as an order the clarifications described later in this order. As to the motion to dissolve, the parties agree that the notice of appeal filed with the Eleventh Circuit divests this court of jurisdiction over the defendants’ motion to dissolve the temporary restraining order. See generally Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1309 (11th Cir. 2003) (“The filing of a notice of appeal is an event of
3

Case 2:19-cv-00365-MHT-JTA Document 111 Filed 04/03/20 Page 4 of 15
jurisdictional significance--it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” (internal quotation marks and citations omitted)). However, were the temporary restraining order to be remanded back to this court, the court would vacate it and impose relief to the extent indicated in today’s order.
I. Background In December 2019, a novel coronavirus, which causes the disease now known as COVID-19, began to spread quickly around the world. See Declaration of State Health Officer (doc. no. 88-15) at 2 ¶ 2. 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. See id. at 2-3 ¶¶ 4, 8.
4

Case 2:19-cv-00365-MHT-JTA Document 111 Filed 04/03/20 Page 5 of 15
Following these declarations, Alabama’s State Health Officer issued a series of orders suspending certain public gatherings. See State Health Order of March 19, 2020 (doc. no. 88-4) at 2. The order initially delayed “all elective dental and medical procedures” from March 20 until April 6. Id. at 4 ¶¶ 6, 9. At the time, an assistant general counsel for the Alabama Department of Public Health confirmed to the plaintiffs’ counsel that the order would not be applied to their abortion clinics. See Declaration of Plaintiffs’ Counsel (doc. no. 73) at 46 ¶ 4. As a result, the plaintiffs continued to perform abortions. See Declaration of Yashica Robinson, M.D. (doc. no. 73) at 20 ¶ 37; Declaration of Gloria Gray (doc. no. 73) at 36-37 at ¶¶ 15, 17.
On March 27, the State Health Officer substantially revised the order, postponing “all dental, medical, or surgical procedures,” with two exceptions: (a) those “necessary to treat an emergency medical condition” and
5

Case 2:19-cv-00365-MHT-JTA Document 111 Filed 04/03/20 Page 6 of 15
(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 (emphasis added). The March 27 order expires on April 17 at 5:00 p.m., by which time and date the State Health Officer will determine whether to extend or relax it. Id. at 6 ¶ 10. While it is in force, the defendant Attorney General of Alabama has determined that a violation of the March 27 order is punishable as a misdemeanor and subject to a fine. See Guidance for Law Enforcement (doc. no. 88-12) at 2.
On March 30, after the plaintiffs’ counsel were unable to satisfactorily confirm the applicability of the March 27 order to abortions, see Declaration of Plaintiffs’ Counsel (doc. no. 73) at 47-48 ¶¶ 9-14, the plaintiffs filed a motion for a temporary restraining order and preliminary injunction, seeking to enjoin enforcement of the March 27 order against abortion
6

Case 2:19-cv-00365-MHT-JTA Document 111 Filed 04/03/20 Page 7 of 15

providers and abortion clinics.

Later that day,

during an emergency on-the-record hearing, counsel for

the defendants seemed to suggest in response to the

court’s attempt at clarification that the only

exception for abortions under the March 27 order would

be limited to protecting the life and health of the

mother. See April 2, 2020 Telephone Conference (doc.

no. 98) at 20 ¶¶ 22-25, 21 ¶ 1, 22 ¶¶ 6-10. The court

entered a temporary restraining order enjoining the

application of the March 27 order against abortion

providers until April 13, in part based upon such an

understanding. 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 preliminary injunction for a

hearing on April 6, one week before the expiration of

the temporary restraining order.

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Defendants subsequently clarified in their written submissions that they “did not mean to suggest that [protecting the life or health of the mother] are the only exceptions” for allowing an abortion to be performed under the March 27 order. Defs.’ Br. (doc. no. 89) at 26 n.30. At the same time, the State Health Officer explained in his declaration 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.” Declaration of State Health Officer (doc. no. 88-15) at 6 ¶¶ 22-23.
Along with its brief and evidentiary submissions, the defendants filed a motion to dissolve the temporary restraining order late in the day on April 1. On April 2, the court set the motion for a hearing the following
8

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morning at 9:00 a.m. In the interim, the defendants filed a notice of appeal and a motion to stay enforcement of the temporary restraining order pending appeal. The court set the motion to stay for the 9:00 a.m. hearing as well. The hearing has now been held, and the court is now reconsidering its order in light of the motion to stay.
II. Discussion As discussed earlier, when the court entered the initial temporary restraining order, the plaintiffs had sought an immediate injunction that would prevent the order from mandating the postponement of any abortion in Alabama. The court, concerned that the March 27 order could be read to effect a temporary ban on abortions throughout the state, enjoined its enforcement for 14 days. Based on the current record, however, the court now finds that its initial temporary restraining order
9

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swept too broadly. At an on-the-record hearing held by

teleconference earlier today, the defendants provided

numerous clarifications to the March 27 order. These

clarifications alleviated the court’s most serious

concerns underlying the issuance of its temporary

restraining order.

While some postponements of

abortions will undoubtedly occur, the clarified order

allows providers, exercising their reasonable medical

judgment, to protect their patients’ right to terminate

a pregnancy and the safety of their patients. But it

also recognizes that abortion providers and their

patients, like all residents of Alabama, must adapt to

the exigent circumstances caused by the global

pandemic.

As the court understands them, the defendants’

clarifications provide that:

(1) In general, for an abortion, “[l]ike any other

procedure, a doctor should examine his or her patient,

consider all circumstances, and determine whether one

10

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of the[] exceptions [to the March 27 order] applies. If they do, the procedure can go forward.” April 3, 2020 Telephone Conference Rough Draft (R.D.) Transcript at 46 ¶¶ 13-16; see also Declaration of State Health Officer (doc. no. 88-15) at 6 ¶ 23 (reasonable medical judgement standard).
(2) Specifically, 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 (that is, that the patient will not be able to seek an abortion before the probable postfertilization age of the fetus is 20 weeks or more1), then the abortion may be performed without delay pursuant to the exceptions in the March 27 order. See April 3, 2020 R.D. Tr. at
1. Plaintiffs confirmed that at least 1-2 women would lose their right to an abortion (based upon the 20-week limitation under Alabama law) if their procedures were delayed until April 18 or later. See April 3, 2020 R.D. Tr. at 17 ¶ 1-5.
11

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32 ¶ 9 - 34 ¶ 8. The provider may examine his or her patient as needed to make the necessary determination regarding the age of the fetus. See id. at 39 ¶¶ 11-19.
(3) Further, 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” during the enforcement of the March 27 order, which expires in two weeks on April 17. Id. at 39 ¶ 14 (court’s question); see id. at 39 ¶ 15-19 (defense counsel’s answer). If a healthcare provider determines, again on a case-by-case basis in his or her reasonable medical judgment, that the abortion cannot “be delayed ... in a healthy way,” id. at 39 ¶ 14, then the abortion may be performed without delay pursuant to the exceptions in the March 27 order.
(4) The reasonable medical judgment of abortion providers will be treated with the same respect and deference as the judgments of other medical
12

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providers. The decisions will not be singled out for

adverse consequences because the services in question

are abortions or abortion-related.

See id. at

31 ¶ 24 - 32 ¶ 8.

If either party disagrees with the court’s

understanding of the defendants’ clarifications, they

are to submit their concerns by 9:00 a.m. on April 6.

Because they were made in coordination with the chief

law enforcement officer of the State, the court

understands and expects that the clarifications (and

this order codifying them) will be communicated to and

followed by law enforcement actors throughout the

State.

Finally, the court notes that it will reconsider

this order upon any evidence that, under the auspices

of the March 27 order, investigations are proceeding in

bad faith against abortion providers acting in their

reasonable medical judgment, or that they are being

singled out for adverse treatment by enforcement

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authorities. Also, the above analysis depends upon the limited duration of the March 27 order, which lasts until April 17. If the March 27 order is extended, the court will consider whether additional or different relief is warranted. Relatedly, the court’s decision today is based on the need to maintain the status quo during the limited period of the temporary restraining order. In other words, additional relief could be warranted should the current crisis last for a longer period of time.
*** For the above reasons, it is ORDERED that the defendants’ motion to stay enforcement of the temporary restraining order (doc. no. 95) is granted to the extent that the court adopts as its order the clarifications agreed upon by the defendants regarding the application of the March 27 order to the plaintiffs. The court does not, and cannot, address
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whether to grant or deny the defendants’ motion to dissolve the temporary restraining order (doc. no. 87) since the court no longer has jurisdiction over the temporary restraining order. However, as the court notes above, were the temporary restraining order to be remanded back to this court, the court would vacate it and impose relief to the extent indicated in today’s order.
It is further ORDERED that the hearing on the motion for a preliminary injunction (doc. no. 73) will proceed on Monday, April 6, 2020, at 10:00 a.m. by videoconferencing.
DONE, this the 3rd day of April, 2020. /s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

 
 Case 2:19-cv-00365-MHT-JTA Document 137 Filed 04/12/20 Page 1 of 56

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,

)

)

v.

)

)

STEVEN MARSHALL, in his

)

official capacity as

)

Alabama Attorney General, )

et al.,

)

)

Defendants.

)

CIVIL ACTION NO. 2:19cv365-MHT (WO)

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.

Case 2:19-cv-00365-MHT-JTA Document 137 Filed 04/12/20 Page 2 of 56
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.
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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

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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

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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

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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

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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

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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.20cv-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

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“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

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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

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 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

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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

Case 2:19-cv-00365-MHT-JTA Document 137 Filed 04/12/20 Page 13 of 56
“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

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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

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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

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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

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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 13:1821, 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

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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

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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

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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

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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

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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.
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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”).
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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

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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.
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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).
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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).
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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
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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
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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

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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.
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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
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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.
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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.
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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.).
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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).
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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
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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.
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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.
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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.
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(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
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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.
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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
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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”).
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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
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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

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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

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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
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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.).
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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.
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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.
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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,
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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

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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.
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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
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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

 
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 20-11401-B _________________________
YASHICA ROBINSON, M.D., on behalf of themselves, their patients, physicians, clinic administrators, and staff, ALABAMA WOMEN’S CENTER, on behalf of themselves, their patients, physicians, clinic administrators, and staff, REPRODUCTIVE HEALTH SERVICES, on behalf of themselves, their patients, physicians, clinic administrators, and staff, WEST ALABAMA WOMEN’S CENTER, on behalf of themselves, their patients, physicians, clinic administrators, and staff,
Plaintiffs - Appellees,
PLANNED PARENTHOOD SOUTHEAST INC., on behalf of themselves, their patients, physicians, clinic administrators, and staff,
Plaintiff,
versus
ATTORNEY GENERAL, STATE OF ALABAMA, SCOTT HARRIS, M.D., in his official capacity as the State Health Officer at the Alabama State Department of Public Health,
Defendants - Appellants,
ROBERT L. BROUSSARD, in his official capacity as District Attorney for Madison County, et al.,

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Defendants. __________________________ On Appeal from the United States District Court for the Middle District of Alabama __________________________ BEFORE MARTIN, JORDAN, and ROSENBAUM, Circuit Judges. JORDAN, Circuit Judge. The Alabama Attorney General, Steve Marshall, and the Alabama State Health Officer, Dr. Scott Harris, move for a stay of a preliminary injunction that enjoins certain applications of a public health order issued in response to the COVID-19 pandemic in Alabama. For the reasons which follow, we deny the motion for a stay, and in a separate order we expedite the appeal.
I On March 13, 2020, the Governor of Alabama declared a state public health emergency due to the outbreak of the novel coronavirus known as COVID-19. Dr. Harris subsequently issued a series of orders to combat the spread of the virus. One of these orders, published on March 27, 2020, 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 a part of a patient’s ongoing and active treatment.” Initially, the order was to remain in effect until April 17, 2020, but on April 3, 2020, Dr. Harris issued an amended order which is substantively identical to the March 27 order but applies until April 30, 2020. Both orders provide that they may be extended or relaxed depending on the circumstances. A violation of the March 27 or April 3 orders constitutes a misdemeanor. See Ala. Code § 22-2-14. The plaintiffs—Dr. Yashica Robinson, the Alabama Women’s Center, Reproductive
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Health Services, and the West Alabama Women’s Center—are abortion providers in Alabama. After Dr. Harris issued the March 27 order, counsel for the plaintiffs reached out to the Alabama Department of Public Health to determine whether the order would be applied to their clinics. On March 29, the chief counsel to the Attorney General stated in response: “[W]e are unable to provide . . . a blanket affirmation that abortions will, in every case, fall within one of the exemptions.” D.E. 73 at 48 ¶¶ 14, 71 (attachment 7). Because they were concerned about being prosecuted for exercising their medical judgment, on March 30 the plaintiffs sought a temporary restraining order preventing enforcement of the March 27 order as applied to pre-viability abortions.1
The district court held a hearing on the motion for a TRO that same day. At the hearing, counsel for the state said that the March 27 order applies to abortions, and that abortion procedures do not fall into the enumerated exceptions unless they are required to protect the life or health of the mother. See D.E. 98 at 20–21. Based on these representations, the district court issued a TRO. See D.E. 83.
Two days later, on April 1, the state filed a motion to dissolve the TRO in which it clarified that during the TRO hearing it “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.” D.E. 89 at 26, n.30. In response, the district court held another hearing on April 3 to discuss the state’s revised interpretation of the March 27 order. During this hearing, the district court understood the state to be making several clarifications as to the scope of the March 27 order and its exceptions. See D.E. 137 at 10–12. These clarifications indicated, in pertinent part, that an abortion could go forward if:
1 This issue arose in the course of ongoing litigation between the parties regarding a different Alabama statute. See D.E. 1. The plaintiffs amended their complaint and moved for a TRO on March 30, three days after the March 27 order was issued.
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x as with all other medical procedures, a doctor determines that one of the exceptions in the order applies;
x a healthcare provider determines that a patient will lose her right to lawfully seek an abortion in Alabama based on the order’s mandatory delays, given that under Alabama law, abortion becomes illegal when the probable postfertilization age of the fetus is at least 20 weeks, see Ala. Code § 26-23B-5; or
x a healthcare provider determines that an abortion may not be delayed “in a healthy way.”
See D.E. 111 at 10–13. The district court adopted these clarifications in an order staying the TRO
in part. See id. It did so to make the state’s clarifications binding. See D.E. 137 at 13.
As noted above, on April 3 Dr. Harris issued an amended order which is substantively
identical to the March 27 order but applies through April 30. On April 5, the state submitted
additional clarifications as to how it interpreted the April 3 order. The state clarified that:
x “a healthcare provider’s assertion that a procedure meets one of the exceptions [in the order] is not conclusive proof that the procedure meets one of the exceptions”;
x although “[t]he fact that a delay would render a procedure unavailable could be relevant to determining whether it is currently necessary to perform the procedure[,] . . . any healthcare provider would still need to make an 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”; and
x while a procedure may be performed if it cannot be delayed in a “healthy way,” the risk to a patient’s health must be “sufficiently ‘serious.’”
See D.E. 120 at 2–3 (emphasis added).
The next day, however, during the hearing on the plaintiffs’ motion for a preliminary
injunction, Dr. Harris changed the state’s interpretation again. He testified that healthcare
providers would be “the ones who determine whether their procedure fits into th[e] exceptions [in
the order], not the health department,” based on their “clinical judgment.” D.E. 133 at 49. He
further explained that providers may “consider whatever factors they would deem would be
appropriate to make that determination.” Id. at 16.
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Dr. Robinson testified that the state’s April 5 clarifications “made it very clear to [her] that [her] medical judgment was not the final decision when it came to the care decisions that [she] was making for [her] patients.” Id. at 125. She said that she does not “know who that is going to be left up to, but it made it very clear to [her] . . . that [her judgment] would not be the final call.” Id. She has “significant concerns about whether [her] medical judgment will be treated with the same respect as other physicians” due to the history of hostility towards her as an abortion provider in Alabama. See id. at 116–117. For instance, during the COVID-19 crisis, protesters had already called the police on her facility, trying to shut it down. See id. at 121. She is concerned that, if she violates the April 3 order, she will be subject to misdemeanor charges. See id. at 166.
Although the district court did not determine that the April 3 order—as interpreted by Dr. Harris at the preliminary injunction hearing—was unconstitutional, it explained that the plaintiffs “cannot rely on the defendants’ non-binding assurances that they will not return to” their earlier interpretation of the order: that abortions may proceed without delay only if they are necessary to protect the mother’s life or health. See D.E. 137 at 20–21. Based on the evidence presented at the preliminary injunction hearing, the district court determined that the medical restrictions, as read pursuant to the state’s earlier interpretation, violate the Fourteenth Amendment. See id. at 20. Accordingly, it concluded that the plaintiffs demonstrated a substantial likelihood of success on the merits and granted a preliminary injunction. See id. at 21.
The preliminary injunction issued by the district court is a limited one. It does not block all enforcement of the medical restrictions in the April 3 order against abortion providers. See D.E. 138 at 2. Instead, consistent with Dr. Harris’ testimony, it prohibits the state from failing to allow healthcare providers to consider and base their decisions as to whether to provide an abortion without delay on certain factors. See id. at 2–4. These include whether the patient would lose
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her legal right to obtain an abortion under Alabama Code § 26-23B-5 if the procedure were delayed until after April 30. See id. at 3.
The state, through Attorney General Marshall and Dr. Harris, appealed. The state also filed an emergency motion to stay the preliminary injunction pending appeal.
II In reviewing a motion to stay a preliminary injunction pending appeal, we consider the following factors: “(1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits, (2) whether the applicant will be irreparably injured absent a stay, (3) whether the issuance of the stay will substantially injure the other parties interested in the proceeding, and (4) where the public interest lies.” Democratic Exec. Committee of Fla. v. Lee, 915 F.3d 1312, 1317 (11th Cir. 2019) (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). The first two factors “are the most critical.” Nken, 556 U.S. at 434; Lee, 915 F.3d at 1317. “It is not enough that the chance of success on the merits be better than negligible. . . . By the same token, simply showing some possibility of irreparable injury . . . fails to satisfy the second factor.” Nken, 556 U.S. at 434–35 (citations and internal quotation marks omitted). The district court, in granting a preliminary injunction, did not definitively rule on the merits of the case. Today, we likewise do not conclusively resolve the merits of the state’s appeal. Because a preliminary injunction is reviewed under the deferential abuse of discretion standard, see Benisek v. Lamone, 138 S. Ct. 1942, 1943 (2018), the narrow question for us is whether the state has made a strong showing that the district court abused its discretion.
III The state argues that it is “almost certain” to succeed on the merits because (1) the plaintiffs lack standing to bring a pre-enforcement challenge, as they have not demonstrated a
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credible threat of injury; and (2) the April 3 order is a constitutional emergency measure issued pursuant to the state’s police powers. See Motion for Stay at 11, 13–19. We consider each argument below.
A We have explained that “[w]hen the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Am. Charities for Reasonable Fundraising Regulation, Inc. v. Pinellas Cty., 221 F.3d 1211, 1214 (11th Cir. 2000) (citations and internal quotation marks omitted). Thus, a plaintiff may establish standing to bring an as-applied/ pre-enforcement challenge by showing that either “(1) [she] was threatened with prosecution; (2) prosecution is likely; or (3) there is a credible threat of prosecution.” Id. (citation and internal quotation marks omitted). At this stage, the plaintiffs have established a credible threat of prosecution, a standard we have described as “quite forgiving.” Wollschlaeger v. Governor, 848 F.3d 1293, 1305 (11th Cir. 2017) (en banc) (citation and internal quotation marks omitted). Dr. Robinson testified that she is concerned that if she violates the April 3 order, she will be subject to misdemeanor charges. See D.E. 133 at 166. Indeed, under Alabama law, a violation of the March 27 or April 3 orders is a misdemeanor punishable by a fine of between $25 and $500 per each day of violation. See Ala. Code § 22-2-14. If the state were to abide by Dr. Harris’ interpretation of the April 3 order at the preliminary injunction hearing—which would permit the plaintiffs to provide abortion services that they deem necessary in their clinical judgment—it is unlikely that they would face prosecution. But we are
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not persuaded that Dr. Harris’ interpretation of the order at the preliminary injunction hearing diminishes the plaintiffs’ reasonable fear of prosecution.
First, Dr. Harris admitted that his statements about or interpretations of the order do not bind Alabama prosecuting authorities. Indeed, he testified that he has “no idea” how law enforcement officials would interpret or enforce the April 3 order. See D.E. 133 at 44. As we have explained, “[m]id-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. Ala. Women’s Ctr. v. Williamson, 900 F.3d 1310, 1328 (11th Cir. 2018). See also Stenberg v. Carhart, 530 U.S. 914, 940–41 (2000) (declining to accept the attorney general’s “narrowing interpretation” of the state’s abortion statute as “authoritative” because it did not bind the state courts or local law enforcement authorities).2
Second, the state says that the district court’s limited preliminary injunction “more-or-less memorializes Dr. Harris’ testimony of how the order will be enforced[.]” Motion for Stay at 19. That is true. But the fact that the state nevertheless vigorously opposes the preliminary injunction suggests that it does not intend to enforce the April 3 order consistently with Dr. Harris’ testimony at the April 6 hearing and may revert to its earlier interpretations. See, e.g., Wollschlaeger, 848 F.3d at 1305 (explaining that we may infer the state’s intent to enforce certain provisions of a statute from the fact that it has “vigorously defended the [law] in court” after it was challenged).
Third, the state has not been consistent in its position with respect to what the March 27 and April 3 orders mean. Dr. Harris’ testimony at the April 6 preliminary injunction hearing conflicted with the state’s earlier interpretation of the order expressed at the TRO hearing: that the order proscribed abortion procedures unless they are necessary for the mother’s life or health. Dr.
2 The state could have presented the testimony of Attorney General Marshall or another member of his office as to how prosecutorial discretion would be exercised with respect to the April 3 order. But it did not offer any such testimony.
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Harris’ testimony also contradicted the state’s interpretation of the order stated in the “clarifications” filed on April 5. Given the state’s varied interpretations of the April 3 order, the plaintiffs cannot be forced to guess whether their conduct is prohibited and then face prosecution if they choose incorrectly. See id. at 1306 (explaining that a letter from the Board of Medicine interpreting the challenged law did not diminish the doctors’ reasonable fear of prosecution because the letter contradicted earlier positions taken by the Board).3
B Turning to the terms of the preliminary injunction, we note at the outset that this is an atypical case. That is because the state concedes that the substance of the district court’s preliminary injunction is consistent with its own (and latest) interpretation of the April 3 order. See Motion for Stay at 4 (“[T]he problem is not so much the substance of the district court’s addendum to the emergency health order. The problem is that the district court crafted it at all . . .”); id. at 19 (conceding that the injunction “more-or-less memorializes Dr. Harris’ testimony of how the order will be enforced”). “The chief function of a preliminary injunction is to preserve the status quo until the merits of the controversy can be fully and fairly adjudicated.” Ne. Fla. Ch. of Ass’n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1284 (11th Cir. 1990). Because of the state’s shifting interpretations of the March 27 and April 3 orders, the district court had ample authority to issue a preliminary injunction to preserve the status quo and prevent the state from reverting to its initial and more restrictive interpretations. See generally 11A Charles Alan Wright, Arthur Miller, & Mary Kay Kane, Federal Practice and Procedure § 2948 (3d ed. 2013 & 2019 supp.) (preservation of the status quo through a preliminary injunction “is unobjectionable when used simply to
3 To the extent that the state argues in its reply that its interpretation of the March 27 and April 3 orders has remained consistent throughout, that contention is flatly refuted by the record.
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articulate the desire to prevent [the] defendant from changing the existing situation to [the] plaintiff’s irreparable detriment”). We therefore struggle to see how the state can show a strong likelihood of success on the merits or irreparable harm.
1 The state argues that the order is a valid exercise of its power to issue public health orders during an emergency. It relies on Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), and Smith v. Avino, 91 F.3d 105 (11th Cir. 1996), abrogated on other grounds by Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998). But just as constitutional rights have limits, so too does a state’s power to issue executive orders limiting such rights in times of emergency. In Jacobson, the Supreme Court rejected the defendant’s argument that compulsory vaccination violated his Fourteenth Amendment rights, explaining that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” 197 U.S. at 27. But its ruling was not an absolute blank check for the exercise of governmental power. The Court explained that “if 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 courts to so adjudge, and thereby give effect to the Constitution.” Id. at 31. Similarly, in Smith, we upheld a curfew that was imposed in the aftermath of Hurricane Andrew against the plaintiff’s constitutional challenges. See 91 F.3d at 107–10. But we did not hold that courts cannot review emergency orders or invalidate them when appropriate. Instead, we explained that “when a curfew is imposed as an emergency measure in response to a natural disaster, the scope of review in cases challenging its constitutionality is limited to a determination
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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.” Id. at 109 (citations and internal quotation marks omitted). So, while states and the federal government have wide latitude in issuing emergency orders to protect public safety or health, they do not have carte blanche to impose any measure without justification or judicial review.
The district court considered Jacobson and Smith, but read them together with cases holding that the Fourteenth Amendment generally protects a woman’s right to terminate her pregnancy. See D.E. 137 at 28–45. The Supreme Court established in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 878 (1992) (plurality opinion), that an “undue burden” on a woman’s right to have an abortion renders a restriction unconstitutional if the law’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” This standard “requires that courts 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).
Reading these two lines of cases together, the district court concluded that the April 3 order (if applied to proscribe abortions unless necessary for the mother’s life or health) imposed a “plain, palpable invasion of rights,” yet had “no real or substantial relation” to the state’s goals. See Jacobson, 197 U.S. at 31. See D.E. 137 at 28–42. Based on the evidence presented at the preliminary injunction hearing, and its factual findings—which the state does not challenge—the district court was permitted to reach this conclusion and to issue a status quo preliminary injunction to ensure that the state did not deviate from Dr. Harris’ interpretation of the April 3 order at the preliminary injunction hearing.
The district court found that “for at least some women, a mandatory postponement until
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April 30 would operate as a prohibition of abortion, entirely nullifying their right to terminate their pregnancies[.]” D.E. 137 at 22–23. This is because under Alabama law abortion becomes illegal when the probable postfertilization age of the fetus is at least 20 weeks. See Ala. Code § 26-23B-5. A mandatory postponement until April 30—which is one month from when the state initially interpreted the order to apply to abortions on March 30—could thus extend a woman’s pregnancy beyond this 20-week boundary, making abortion illegal after that point. See D.E. 137 at 23.
In addition, the district court found that, for other women, “a delay until April 30 will pose a tremendous, and sometimes insurmountable, burden,” because of “major logistical hurdles.” Id. at 24–25. For example, Dr. Robinson testified that her clinic is the only abortion facility in Alabama that provides termination of pregnancy beyond 14 weeks of gestational age. See id. at 24; D.E. 133 at 114. If physicians in Alabama are forced to postpone abortion services until after April 30, she explained that her clinic likely will not have the capacity to care for all of the patients who seek an abortion after that gestational age, but who must have the procedure before the expiration of the 20-week limit under Alabama law. See D.E. 133 at 114–16. The district court further found that other obstacles women face in seeking to obtain an abortion—such as difficulty traveling to a clinic, receiving necessary time off, arranging child care, or affording an abortion in the first place—would be “greatly exacerbate[d]” by a mandatory delay, particularly “in the midst of a pandemic that has yielded widespread job loss, financial difficulty, and social isolation.” D.E. 137 at 25.
Finally, the district court found that for other women, postponing an abortion may cause “serious harm, or a substantial risk of serious harm, to that woman’s health,” explaining that Dr. Robinson “credibly testified that, for at least some women, even a short delay can make an
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abortion (or the ongoing pregnancy) substantially risker.” Id. at 25–26. The district court relied on Dr. Robinson’s testimony that “the risk of a serious complication increases with weeks’ gestation,” and that “each week that the abortion is delayed, it increases the risk to the patient.” D.E. 133 at 107, 111; D.E. 137 at 26. Dr. Robinson summarized a report concluding that “every week that an abortion is delayed [it] increases the risk [of mortality or death in the patient] by approximately 38 percent.” D.E. 133 at 110. For patients who are victims of domestic violence or rape, Dr. Robinson testified that delaying the abortion may also result in increased intimate partner violence or an increased emotional and mental toll on the patient. See id. at 112.
In light of these effects, the district court concluded that the medical restrictions in the April 3 order—if applied to proscribe abortions unless necessary to protect the health or life of the mother—are substantially likely to be unconstitutional. See D.E. 137 at 28. And to the extent that the April 3 order effectively operates as a prohibition on a woman’s right to obtain an abortion before viability, the district court concluded that it is substantially likely to be unconstitutional as applied. See D.E. 137 at 32–33. On this record, the state has not shown a strong likelihood that the district court erred in reaching these conclusions. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 146 (2007) (“Before viability, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy.”) (citation and internal quotation marks omitted).
The district court also concluded that, even where the April 3 order does not operate as a complete prohibition, a mandatory one-month postponement of abortion is also substantially likely to impose an “undue burden” under Casey. See D.E. 137 at 35–37. It reached this conclusion based on its findings that the delay would “amplify existing challenges, pose severe health risks, and render abortions functionally unavailable for at least some women,” but would only minimally serve the state’s interests. See id. at 37–38. Based on the district court’s underlying and
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unchallenged factual findings, the state has not shown a strong likelihood of demonstrating error in this regard either.
2 The state argues that applying the April 3 order to abortion providers serves three interests: (1) it frees up hospital capacity for the influx of patients suffering from COVID-19; (2) it preserves personal protective equipment (PPE) for medical workers caring for COVID-19 patients; and (3) it slows the spread of the virus by reducing social interactions. See Motion for Stay at 2, 10, 19. Dr. Harris testified as to these interests, though in general terms, at the preliminary injunction hearing. See D.E. 133 at 10–13, 21. Of course, these interests are presumably served by Dr. Harris’ current interpretation of the April 3 order, and the preliminary injunction merely preserves that interpretation—the status quo—while preventing the state from going back to any prior and more restrictive interpretations. So the preliminary injunction advances the state’s interests co-extensively with Dr. Harris’ interpretation of the order. For the sake of completeness, however, we add the following with respect to the evidence presented at the preliminary injunction hearing on the state’s interests. With respect to the conservation of hospital resources, the district court found that the “medical restrictions are very unlikely to make a significant difference” because “the rate of abortions that require hospitalization is extremely low.” D.E. 137 at 40. This finding is supported by Dr. Robinson’s testimony that abortions in Alabama are typically not performed in hospitals, that significant complications arise from an abortion procedure less than 0.5% of the time, and that less than 0.01% of complications resulting from an abortion require hospital care. See D.E. 133 at 100, 78, 154. Significantly, the state presented no contrary evidence, and Dr. Harris admitted he had “no data” to support the assertion that abortions may result in
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complications which require emergency medical care and tax the health care system. See id. at 54.
The district court also found that “most abortions and related appointments require a limited amount of personal protective equipment . . . and a delayed abortion does not erase even the patient’s short-term need for medical care.” D.E. 137 at 38. This is because normal prenatal visits and mandatory pre-abortion examinations are permitted to proceed as scheduled under the order. See id. at 39. Beyond these appointments, the district court found—again based on Dr. Robinson’s testimony—that “abortions themselves only require a limited amount of PPE.” Id. at 39.
In addition, the district court found that if an abortion is delayed and then does not proceed (e.g., if the delay results in the woman not being able to access an abortion within the permitted time limit under Alabama law), the restrictions “may backfire over time,” as prenatal care requires more PPE. See id. at 41. For example, Dr. Robinson testified that a typical uncomplicated pregnancy requires 10–13 prenatal visits—all of which require medical providers to use PPE—and a complicated pregnancy would require far more. See D.E. 133 at 125–27, 131. Dr. Harris did not disagree. See id. at 52. The district court found, based on Dr. Robinson’s testimony, that at least some of these needs would emerge before the order expires, especially if it is extended further. See D.E. 137 at 41–42. Again, the state presented no contrary evidence.4
In view of these factual findings, which are amply supported by the record, the district court did not err in concluding that the burdens imposed by the medical restrictions as interpreted at the TRO hearing are undue under Casey, and that they impinge the right to an abortion in a “plain, palpable” fashion under Jacobson, 197 U.S. at 31. See id. at 42. We note again that at the
4 Although not expressly addressed in the district court’s order, the record also reflects that providing certain abortion services (e.g., medication abortions) involves limited social interaction. See D.E. 133 at 141–42 (describing the interactions required for surgical and medication abortions).
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preliminary injunction hearing the state did not present any evidence that applying the April 3 order to proscribe pre-viability abortions would in fact free up hospital space for COVID-19 patients or PPE for medical providers. In fact, Dr. Harris admitted that the state “did not attempt” to evaluate how much PPE different types of doctors use “at all.” D.E. 133 at 22. As the district court noted, with respect to any PPE that is conserved from delaying abortion procedures, the state did not present any evidence regarding how such resources might be used or re-directed to hospitals that are experiencing shortages. See D.E. 137 at 40, n.16. Based on the record before us, the state’s concerns that it would lack hospital space or PPE to treat COVID-19 patients as a result of those resources being utilized for women obtaining abortions are “hypothetical scenarios,” as the record is “devoid of evidence that there is a risk that these scenarios would occur” if we do not grant the state’s motion for a stay. See S. Wind Women’s Ctr. LLC v. Stitt, 2020 WL 1860683, at *3 (10th Cir. 2020) (Lucero, J., concurring).
3 The state relies on the Fifth Circuit’s decision in In re Abbott, -- F.3d --, No. 20-50264, 2020 WL 1685929 (5th Cir. Apr. 7, 2020), and the Eighth Circuit’s decision in In re Rutledge, -F.3d --, No. 20-1791, 2020 WL 1933122 (8th Cir. Apr. 22, 2020) (agreeing with Abbott). In Abbott, a divided Fifth Circuit panel granted a writ of mandamus directing the district court to vacate a TRO which exempted abortions from a Texas executive order postponing non-essential surgeries and procedures due to the COVID-19 epidemic. See Abbott, 2020 WL 1685929, at *1– 2. In Rutledge, a divided Eighth Circuit panel issued a writ of mandamus directing the district court to vacate a TRO which prohibited Arkansas officials from applying to surgical abortions a healthcare directive postponing non-medically necessary surgeries due to the COVID-19 epidemic. See Rutledge, 2020 WL 1933122, at *2. Assuming without deciding that the majority
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opinions in Abbott and Rutledge are persuasive, they are distinguishable for several reasons. The Fifth and Eighth Circuits respectively concluded that the district courts in Abbott and
Rutledge made several legal errors. The Abbott district court failed to consider Jacobson, and it also failed to analyze the Texas COVID-19 order under the Casey undue-burden test. See Abbott, 2020 WL 1685929, at *8, 11. According to the Fifth Circuit, the district court should have “carefully pars[ed]” the evidence to determine whether the order imposed “burdens on abortion that ‘beyond question’ exceed its benefits in combatting the epidemic Texas now faces.” Id. at *11. The Rutledge district court “summarily” explained that its TRO was consistent with Jacobson, but the Eighth Circuit took issue with the TRO because the district court similarly “failed to apply [the] requisite [Jacobson] framework and, thus, abused its discretion.” Rutledge, 2020 WL 1933122, at *5. Here, in contrast, the district court applied both the Jacobson framework and the Casey undue-burden test. See D.E. 137 at 29–33. The district court also carefully weighed the evidence presented at the preliminary injunction hearing, determining that the burdens on abortion created by the state’s initial interpretations of the March 27 and April 3 orders far exceeded the orders’ benefits in combatting the COVID-19 epidemic. See id. at 23–27, 36–42.
In addition, the district court in Abbott interpreted Texas’ COVID-19 order as an “outright ban” on pre-viability abortions and restrained the state from applying it to abortion procedures altogether. See Abbott, 2020 WL 1685929, at *1. The district court in Rutledge likewise issued a TRO that flatly prevented state officials from enforcing Arkansas’ health directive against surgical abortion providers. See Rutledge, 2020 WL 1933122, at *2. Here, however, there is no blanket prohibition of the April 3 order. The state may still require the delay of abortions which providers, in their reasonable clinical judgment, determine can be postponed. The district court’s
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preliminary injunction maintains the status quo, and is narrowly tailored to balance the state’s need to combat the COVID-19 epidemic and the right to access an abortion.5
We repeat again—for this is a point worth repeating—that the state agrees that the preliminary injunction is consistent with its latest interpretation of how the April 3 order should be read. See Motion for Stay at 4, 19. A litigant who agrees with the substance of an order faces a steep uphill battle in seeking to have that order stayed on appeal. So it is here.
IV We deny the motion to stay the district court’s preliminary injunction pending appeal. On this record, the state has not made a “strong showing that it is likely to succeed on the merits” of its appeal or that it will be “irreparably injured absent a stay.” Lee, 915 F.3d at 1317. MOTION FOR STAY PENDING APPEAL DENIED.
5 We note also that both Abbott and Rutledge are TRO cases. Here, in contrast, we have a preliminary injunction issued after an evidentiary hearing.
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 Case 2:19-cv-00365-MHT-JTA Document 73 Filed 03/30/20 Page 1 of 71

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, M.D., et al.,

Plaintiffs,
v.
STEVEN MARSHALL, in his official capacity as Alabama Attorney General, et al.,

CIVIL ACTION Case No. 2:19-cv-365-MHT-JTA

Defendants.

PLAINTIFFS’ EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiffs Yashica Robinson, M.D., Alabama Women’s Center, Reproductive Health Services, and West Alabama Women’s Center, on behalf of themselves and their patients, their clinic administrators, physicians, and staff, hereby respectfully move this Court for an emergency temporary restraining order (“TRO”) pursuant to Rule 65(b)(1) of the Federal Rules of Civil Procedure, blocking enforcement of the State Public Health Officer’s March 27, 2020 “Order of the State Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19” against pre-viability abortions.
Immediate injunctive relief is necessary to prevent imminent and irreparable harm: If this Court does not enter an injunction by 8:00 p.m. today (March 30, 2020), Plaintiffs will be forced to start canceling the more than twenty abortions scheduled for tomorrow alone (March 31, 2020), including at least one patient who will be pushed past the legal limit for abortion in Alabama if she does not obtain an abortion this week. See Decl. of Yashica Robinson, MD. in Support of Pls.’ Mot. for a TRO and Prelim. Inj., attached hereto as

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Ex. 1, ¶ 7. Plaintiffs have additional patients scheduled for the remainder of this week, and absent emergency relief from this Court, they will ultimately be forced to cancel and turn away hundreds of additional patients. Id. at ¶¶ 7–8, 55; see also Decl. of Gloria Gray in Support of Pls.’ Mot. for a TRO and Prelim. Inj., attached hereto as Ex. 2, ¶¶ 17–20; Decl. of Jane Doe in Support of Pls.’ Mot. for a TRO and Prelim. Inj., attached hereto as Ex. 3, ¶¶ 10–17.
Plaintiffs also seek a preliminary injunction pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, blocking enforcement of the March 27 Order, to protect current and future patients from imminent and irreparable harm to their health, safety, and constitutional right to decide whether and when to bear a child.
The issuance of a temporary restraining order without a hearing and without notice to Defendants or providing them an opportunity to respond is warranted. First, Plaintiffs have set forth specific facts in sworn declarations,1 attached hereto, showing that immediate and irreparable injury, loss or damage will result to Plaintiffs’ patients before Defendants can be heard in opposition: Specifically, that at least one of Plaintiffs’ patients scheduled for an abortion tomorrow will be permanently deprived of their ability to obtain a legal abortion in Alabama, and, in the midst of a global pandemic, either forced to carry their pregnancy to term against their will or forced to attempt to travel to another state in order to exercise their constitutional right to abortion. See Fed. R. Civ. P. 65(b)(1)(A); see also Cooper v. City of Dothan, No. 1:15-
1 Although Federal Rule of Civil Procedure 65(b)(1) requires the request for an ex parte TRO set forth specific facts in “an affidavit or verified complaint,” a sworn declaration pursuant to 28 U.S.C. § 1746 is considered equivalent to an affidavit under federal law. See 28 U.S.C. § 1746; accord Spencer v. Donohue, No. 19-12346, 2019 WL 5680810, at *2 (E.D. Mich. Aug. 30, 2019), report and recommendation adopted, No. 19-12346, 2019 WL 4254085 (E.D. Mich. Sept. 9, 2019) (“Such a verification [for an ex parte TRO pursuant to R. 65(b)] must comply with 28 U.S.C. § 1746, which authorizes litigants to provide unsworn declarations in lieu of affidavits under oath, providing in pertinent part that such unsworn declaration or verification be subscribed in writing as true under penalty of perjury, dated, and in substantially the following form: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”)
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CV-425-WKW, 2015 WL 10013003, at *1–2 (M.D. Ala. June 18, 2015) (granting ex parte TRO in case challenging undifferentiated bond amounts for misdemeanor offenses resulting in minimum 3-day jail sentence); Ellis v. Jackson Nat’l Life Ins. Co.. No. 2:11-CV-1064-WKW, 2011 WL 6300608, at *2 (M.D. Ala. Dec. 15, 2011) (granting ex parte TRO to prevent distribution of proceeds of life insurance policy before dispute over beneficiaries could be resolved).
Second, Plaintiffs have made multiple attempts to contact counsel for the Alabama Department of Public Health (“ADPH”) and the Attorney General by phone and email—on March 27, 28, and 29—to resolve this matter without litigation, and have expressly informed Defendant that Plaintiffs would be seeking emergency relief if the matter could not otherwise be resolved. These efforts to resolve the matter have been unsuccessful. See Decl. of Randall Marshall in Support of Pls.’ Mot. for a TRO and Prelim. Inj., attached hereto as Ex. 4, ¶¶ 2–15. This is more than sufficient to meet Plaintiffs’ obligations to give notice and, given the threat of imminent and irreparable harm, no further notice should be required. See Fed. R. Civ. P. 65(b)(1)(B); see also Jackson Nat’l Life Ins. Co., 2011 WL 6300608 at *1–2 (finding single phone call to nonmovant’s counsel sufficient to grant ex parte TRO).
As detailed more fully in the accompanying Memorandum of Law, Plaintiffs satisfy the remaining requirements for a TRO and subsequent preliminary injunctive relief. See McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998). Because the application of the March 27 Order to previability abortions contravenes binding Supreme Court precedent and because forcing pregnant people to remain pregnant against their will does not maintain social distancing or otherwise preserve health care resources in the midst of the COVID-19 crisis, Plaintiffs have established a substantial likelihood of success on the merits of their claim
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that the March 27 Order violates Plaintiffs’ patients’ right to privacy under the Fourteenth Amendment to the U.S. Constitution. Further, Plaintiffs have established that enforcement of the Ban will inflict irreparable constitutional, medical, emotional, psychological, and other harms on Plaintiffs’ patients for which there is no adequate remedy at law. The balance of equities likewise weighs firmly in Plaintiffs’ favor and the relief Plaintiffs have requested will further the public interest.
Finally, Plaintiffs respectfully request this Court exercise its discretion to waive the Federal Rule of Civil Procedure 65(c) security requirement. See BellSouth Telecomms., Inc. v. MCIMetro Access Transmission Servs., LLC, 425 F.3d 964, 971 (11th Cir. 2005).
Accordingly, and for the reasons set forth in the accompanying Memorandum of Law, Plaintiffs respectfully request this Court:
(1) Issue a TRO without notice or hearing enjoining Defendants from enforcing the March 27 Order against previability abortions;
(2) Issue a preliminary injunction enjoining Defendants from enforcing the March 27 Order against previability abortions prior to the expiration of the TRO.
If the Court wishes to schedule a hearing prior to issuing a TRO, Plaintiffs respectfully request that the Court schedule the hearing as soon as possible. Plaintiffs’ counsel will make themselves available for a telephonic or video conference hearing at the Court’s earliest convenience.

Dated: March 30, 2020

Respectfully submitted,

/s/Alexa Kolbi-Molinas Alexa Kolbi-Molinas* New York State Bar No. 4477519
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Meagan Burrows* New York State Bar No. 5341904 AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 akolbi-molinas@aclu.org mburrows@aclu.org (212) 519-7845 Randall C. Marshall ASB-3023-A56M P.O. Box 6179 Montgomery, AL 36106-0179 (334) 265-1747 rmarshall@aclualabama.org Attorneys for Plaintiffs Yashica Robinson, M.D., Alabama Women’s Center, Reproductive Health Services, and West Alabama Women’s Center *Admitted Pro Hac Vice
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CERTIFICATE OF SERVICE I hereby certify that on March 30, 2020, I electronically filed the foregoing with the Clerk of Court for the United States District Court for the Middle District of Alabama using the CM/ECF system, thereby serving all counsel of record, and served the State Public Health Officer, Proposed Defendant Scott Harris, by and through his attorneys through the email addresses below: ● Brian Hale, brian.hale@adph.state.al.us ● Dana Billingsly, dana.billingsley@adph.state.al.us
/s/ Randall Marshall Randall Marshall Attorney for Plaintiffs Yashica Robinson, M.D., Alabama Women’s Center, Reproductive Health Services, and West Alabama Women’s Center

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EXHIBIT 1

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, M.D., et al., Plaintiffs,
v. STEVEN MARSHALL, et al.,
Defendants.

CIVIL ACTION Case No. 2:19-cv-365-MHT-JTA

DECLARATION OF YASHICA ROBINSON, M.D., IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
I, Yashica Robinson, M.D., declare and state as follows: 1. I am a board-certified obstetrician-gynecologist (OB/GYN) with more than a
decade of experience providing comprehensive reproductive health care to women, including abortion. I graduated from Talladega College, in Alabama, in 1998; from Morehouse School of Medicine, in Atlanta, in 2004; and completed my residency in OB/GYN at the University Of Alabama School Of Medicine, Birmingham, in 2008.
2. Over the past eleven years, I have worked in private practice as an OB/GYN and have also provided abortion services to women in Alabama at a number of different abortion clinics throughout the state. As a National Health Service Corps Scholar, I committed to spending at least four years of my practice in a health professional shortage area—an area or population designated by the federal government with a shortage of primary care medical, dental, or mental and behavioral health providers. I served that commitment in Opelika, and continued

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to practice as an OB/GYN in that community until 2015. Throughout this time, I also provided abortions in Huntsville, Birmingham, and Mobile.
3. I opened my private OB/GYN practice in Huntsville in 2013, and from 2013-15, I maintained private OB/GYN practices in both Opelika and Huntsville. Today, I split my time between my private practice in Huntsville, where I provide a spectrum of gynecological and obstetric care (except for abortion), and the Alabama Women’s Center (AWC), the sole abortion clinic in Huntsville, where I serve as the Medical Director and provide abortion care.
4. AWC has provided safe and legal abortions in Huntsville, Alabama, for nearly two decades. AWC sues on behalf of its patients, clinic administrator, physicians, and staff.
5. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin the application of Alabama State Health Officer Scott Harris’s March 27, 2020 Order (the “March 27 Order”) to prohibit pre-viability abortions. I am familiar with the March 27 Order. Although I read its terms to permit medication and procedural (also known as surgical) abortions, I understand that the Alabama Department of Public Health (which licenses AWC), and the Attorney General (who could prosecute me for each violation of the Order) take the position that some—perhaps most— pre-viability abortions are prohibited. Therefore, absent an order from this Court, I cannot risk performing abortions, except in extremely narrow circumstances.
6. The facts I state here are based on my personal experience, information obtained in the course of my duties at AWC and in my private OB/GYN practice, and personal knowledge that I have acquired through my service at AWC and at my private OB/GYN practice. The opinions in this declaration are my expert opinions as an ob-gyn and abortion provider. My expert opinions are based on my education, training, professional experience, and review of
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relevant medical literature. All of my opinions in this declaration are expressed to a reasonable degree of medical certainty. If called and sworn as a witness, I could and would testify competently thereto.
7. Absent an order from this court by Monday, March 30, 2020 at 8:00 P.M. preventing the March 27 Order from being applied to prohibit performing pre-viability abortions in Alabama, I will be forced to cancel the appointments of 21 abortion patients currently scheduled for Tuesday, March 31. Three of these patients are already nearing or on the verge of reaching the limit for obtaining an abortion in Alabama right now (18.5 weeks LMP, 20.3 weeks LMP and 21.4 weeks LMP) and, if forced to delay care until April 18, will no longer be able to obtain an abortion at all. Indeed, the patient who will be 21.4 weeks LMP on Tuesday, and will lose her ability to obtain a legal abortion in Alabama altogether unless she is seen on Thursday at the latest. Two more of these patients (one at 15.6 weeks and the other at 16.4 weeks), will be nearing the limit by April 18; if the Order is extended, or they face logistical barriers (scheduling, transit, finances) after April 18 that further delays their access to care, they may also be pushed past the legal limit.
8. Moreover, between now and April 17, 2020 5:00 pm (the date the Order is set to expire, if not extended), AWC has 45 patients currently scheduled. And this is a drastic underestimate of the number of patients AWC will—if it is able—actually end up caring for between now and April 17, as our schedule fills up quickly as the week progresses. All of these patients—and the many other patients who will be unable to schedule any appointment until at least April 18, if not for much longer—will be seriously and irreparably harmed as a result. Legal Abortion in the United States and Alabama & AWC’s Provision of Abortion Care
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9. Legal abortion is one of the safest medical procedures in the United States and is substantially safer than continuing a pregnancy through to childbirth.1 Complications from abortion are rare, and when they occur they can usually be managed in an outpatient clinic setting, either at the time of the abortion or in a follow-up visit. Major complications—defined as complications requiring hospital admission, surgery, or blood transfusion—occur in less than one-quarter of one percent (0.23%) of all abortion cases: in 0.31% of medication abortion cases, in 0.16% of first-trimester in-clinic abortion cases, and in 0.41% of in-clinic cases in the second trimester or later.2 Abortion-related emergency room visits constitute just 0.01% of all emergency room visits in the United States.3 Abortion is also extremely common; approximately one in four women in this country will have an abortion by age forty-five.4
10. There are two main methods of abortion: medication abortion and surgical abortion. Both methods are safe, effective means to terminating a pregnancy.5 Medication abortion involves a combination of two pills: mifepristone and misoprostol.6 The patient takes the mifepristone in the clinic and then, typically twenty-four to forty-eight hours later, takes the misoprostol at a location of their choosing, most often at their home, after which they expel the contents of the uterus in a manner similar to a miscarriage. Medication abortion is neither a
1 Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States 77–78, 162–63 (2018). 2 Ushma Upadhyay et al., Incidence of Emergency Department Visits and Complications After Abortion, 125 Obstetrics & Gynecol. 175 (2015). 3 Ushma Upadhyay, et al., Abortion-related Emergency Room Visits in the United States: An Analysis of a National Emergency Room Sample, 16:88BMC Med. 1, 1 (2018). 4 See Guttmacher Inst., Abortion Is a Common Experience for U.S. Women, Despite Dramatic Declines in Rates (Oct. 19, 2017), https://www.guttmacher.org/news-release/2017/abortion-commonexperience-us-women-despite-dramatic-declines-rates. 5 Luu Doan Ireland et al., Medical Compared With Surgical Abortion for Effective Pregnancy Termination in the First Trimester, 126 Obstetrics & Gynecol. 22, 22 (2015). 6 Nat’l Acads., supra note 1, at 51.
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“surgery” nor a “procedure.” In Alabama, medication abortion is available up to 70 days or 10.0 weeks, as measured from a woman’s last menstrual period (“LMP”).
11. Surgical abortion, despite its name, is not what is commonly understood to be “surgery”—it involves no incision and no need for general anesthesia. In the first trimester, surgical abortions are generally performed using suction curettage technique, which involves using a curette connected to a suction apparatus to gently empty the contents of the uterus. This procedure typically takes five to ten minutes. Starting around 15 weeks LMP, abortions are generally performed using a method called the dilation and evacuation (“D&E”), in which clinicians dilate the cervix further and use instruments to empty the uterus. In Alabama, abortions may not be performed at and after 22.0 weeks LMP (the law uses post-fertilization dating, which is 20 weeks), except in extremely narrow circumstances.
12. For some patients, medication abortion is contraindicated, and/or there are factors that counsel in favor of a surgical abortion, including patients with medical conditions that make surgical abortion a safer and/or more appropriate course.7
13. At AWC, we provide medication abortions up to 10 weeks LMP and surgical abortions up to 21.6 weeks LMP. We are the only provider in the state that provides abortion after 14 weeks LMP.
14. In 2019 AWC performed 1939 abortions. Of those, 732 were medication abortion and 1207 were surgical abortions. Of those 1207 surgical abortions, 412 were performed on patients at and after 13 weeks LMP, meaning that none of those patients would have been eligible for medication abortion.
7 Nat’l Acads., supra note 1, at 51–52.
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15. In January and February 2020, AWC performed 360 abortions, 147 of which were medication abortions and 213 of which were surgical abortions. Of those 213 surgical abortions, 77 were performed on patients at and after 13 weeks LMP, meaning that none of those patients would have been eligible for medication abortion.
16. In my experience, individuals seek abortion for a multitude of complicated and personal reasons. Indeed, a majority of women having abortions in the United States already have at least one child.8 Some patients have abortions because they conclude that it is not the right time to become a parent or have additional children, they desire to pursue their education or career, or they lack the necessary financial resources or a sufficient level of partner or familial support or stability. Other patients seek abortions because continuing with the pregnancy could pose a greater risk to their health, especially if their past pregnancies have been high-risk.9
17. While our patients generally seek abortion as soon as they are able, many face logistical obstacles that can delay access to abortion care. Some patients may not discover they are pregnant until later in their pregnancies, others may experience difficulties navigating the medical system, including finding a provider and scheduling an appointment. Many of my patients are also struggling financially; indeed, approximately 60% are on Medicaid, which (except in very limited circumstances) does not cover the cost of abortion.10 Patients need to gather the resources to pay for the abortion and related costs, figure out transportation to a clinic, arrange for time off of work (which is often unpaid, as many patients lack paid time off or sick
8 Guttmacher Inst., Induced Abortions in the United States 1 (Sept. 2018), https://www.guttmacher.org/sites/default/files/factsheet/fb_induced_abortion.pdf; see also Jenna Jerman et al. , Characteristics of U.S. Abortion Patients in 2014 and Changes Since 2008, Guttmacher Inst. 6, 7 (May 2016), https://www.guttmacher.org/sites/default/files/report_pdf/characteristics-us-abortion-patients-2014.pdf. 9 M. Antonia Biggs et al., Understanding Why Women Seek Abortions in the US, 13:29 BMC Women’s Health 1, 7 (2013). 10 Alabama prohibits public insurance, including Medicaid, and insurance purchased on the state health exchange from covering abortion services except in the very limited circumstances where a patient’s physical health or life is at risk, or where the pregnancy is a result of rape or incest.
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leave), and, for the vast majority of women seeking abortions who are mothers already, possibly arrange childcare.11
18. The COVID-19 pandemic has likely only exacerbated all of this. As a result of COVID-19, and associated social distancing measures, patients have been laid off work or faced other work disruptions, placing them in precarious financial situations that may make it even harder to afford an abortion and associated costs, on top of their cost of living. The crisis has also resulted in the closing down of schools in Alabama and has imposed restrictions on childcare facilities,12 which may make it even harder to arrange child care, and may make it more difficult or risky to access public transportation in order to travel to the clinic.
19. On top of all this are delays imposed by Alabama abortion restrictions. For example, Alabama law already forces patients to delay their abortions for at least 48-hours after receiving state-mandated counseling and materials, despite the fact that, in my experience, patients rarely take those materials. This means patients who struggle to navigate getting time off of work and coordinate transportation or childcare must do so on two separate occasions. Under Alabama law, our minor patients, unless emancipated, must also obtain either parental consent or a judicial order excusing them of that requirement before they can receive abortion care. For those that choose to involve a parent, negotiating a time when a parent (who may have work and other obligations) can accompany them to the clinic may delay them from accessing care. And for those who choose not to involve a parent, navigating the judicial system in order to obtain the
11 Jerman et al., supra note 8 at 8–10; Sarah E. Baum et al., Women’s Experience Obtaining Abortion Care in Texas After Implementation of Restrictive Abortion Laws: A Qualitative Study, 11 PLoS One 1, 7–8, 11 (2016); Lawrence B. Finer et al. , Timing of Steps and Reasons for Delays in Obtaining Abortions in the United States, 74 Contraception 334, 335 (2006). 12 See Associated Press, Alabama Infections Top 120, U.S. News (Mar. 21, 2020 12:22 PM), https://www.usnews.com/news/best-states/alabama/articles/2020-03-21/alabama-infections-top-120-state-backs-offdaycare-closings.
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required order waiving Alabama’s consent requirement will likewise force them to delay their abortion.
20. Although abortion is always a very safe medical procedure, the health risks associated with it increase with gestational age.13 As ACOG and other well-respected medical professional organizations have observed, abortion “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”14
21. Moreover, although so much is unknown about COVID-19, including whether it can complicate pregnancy, ACOG has warned that pregnant women should be considered an “atrisk population for COVID-19” because pregnant people may be exposed to additional health risks from the virus.15 AWC’s Efforts to Prevent COVID-19 Spread and Conserve Needed Resources
22. In response to the COVID-19 pandemic, AWC is following Centers for Disease Control (CDC) and National Abortion Federation (NAF) safety guidelines, and has taken extensive steps to help reduce and prevent the transmission of the virus and ensure that our public health system has the resources needed to respond to the public health crisis, while continuing to provide time-sensitive reproductive health care like abortion.
23. Approximately two weeks ago, we changed the way we are scheduling patients at AWC. While we used to do wave scheduling—scheduling several patients’ appointments for
13 Nat’l Acads., supra note 1, at 77–78, 162–63. 14 ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortionaccess-during-the-covid-19-outbreak. 15 ACOG, Practice Advisory - Novel Coronavirus 2019 (COVID-19) (last updated Mar. 13, 2020), https://www.acog.org/clinical/clinical-guidance/practice-advisory/articles/2020/03/ novel-coronavirus-2019; see also Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID-19 and Pregnant Women (last updated Mar. 16, 2020), https://www.cdc.gov/coronavirus/2019ncov/hcp/pregnant-women-faq html.
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each hour slot, and permitting them to arrive in waves—we have altered our scheduling practices to ensure that we are able to comply with social distancing guidance and ensure that patients are appropriately spaced at least 6 feet apart in our clinic. At this time, we are also no longer permitting patients to bring guests into the building, with only very limited exceptions for essential guests (i.e., a parent for a minor and a translator).
24. We have also instituted protocols to screen for COVID-19 when patients arrive. We are taking the temperature of all clinic staff before they clock in in the morning, as well as everyone else who comes in our doors. We have a controlled access facility that requires patients to buzz in for entry. We have posted a sign on the front door that informs patients that their temperature will be checked upon presentation for care. The sign also informs patients of the common symptoms associated with COVID-19 (fever, cough, shortness of breath, sore throat, or flu-like symptoms) and requests that if they have been experiencing those symptoms, they not enter the building and instead call the clinic for instructions. Our sign also alerts patients that if they have recently traveled internationally or by air within the last 14 days, or have been in close proximity with anyone with a confirmed or presumed positive case of COVID-19, that they should call us. If, after reading the sign, a patient requests entry through buzzing in, our nurse has a stand set up at the front to take their temperature.
25. Once the patient enters the clinic, they are given hand sanitizer and sent to our waiting area, where we are making sure to separate our patients so they are all at least 6 feet apart. We have removed all the magazines, books, and other objects from both the waiting rooms and exam rooms. We are asking all patients to make sure they wash their hands and sanitize often, cover any cough or sneeze, and immediately discard used tissues. As is our standard
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practice, we also disinfecting the waiting room, exam rooms and recovery rooms, and all frequently touched surfaces, on a continuous basis throughout the day.
26. While we are working extremely hard to ensure we comply with CDC, ACOG, NAF and Alabama safety guidelines surrounding COVID-19, we could do even more were our hands not tied by Alabama’s restrictions on abortion care.
27. For example, Alabama law mandates that we provide most patients with some of the state-mandated counseling, in-person, at least 48-hours prior to their abortion. This forces patients to leave their home to travel to the clinic for an additional visit, and interact with more people for longer periods of time, thereby increasing their risk of exposure to COVID-19. State law also requires that we perform an in-person physical exam, including an ultrasound and laboratory testing, before every medication abortion patient. This physical exam is not medically necessary in all cases.
28. But for these medically unnecessary requirements I would be able to complete counseling visits and provide abortion care to some medication abortion patients via telemedicine without them having to visit the clinic. In other words, these restrictions on my ability to exercise my medical judgment and provide care prevent me from being able to further limit the number of patients in the clinic at any given time, and reduce the amount of time any given patient has to spend outside their home during COVID-19.
29. If Alabama really cared about reducing the spread and transmission of COVID19, it would lift the ban on abortion providers’ use of telemedicine to complete state-mandated counseling, and lift the in-person physical exam requirement, and permit us to use our best clinical judgment to ensure that patients are able to minimize time spent outside their homes during this public health crisis.
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30. Neither medication nor surgical abortion requires extensive amounts of PPE. For the laboratory exam and the state-mandated ultrasound that must be performed before every abortion, we use only non-sterile gloves. To hand the patient pills for a medication abortion requires no PPE at all. For procedural abortions, the physician uses only sterile gloves during the procedure, a gown, a surgical mask and reusable eyewear, and the assistant uses only a surgical mask, gloves, and reusable eyewear.
31. We do not use N-95 masks to perform abortions, which I understand to be the PPE item is that most effective for preventing against transmission of COVID-19 and is currently in short supply. Likewise, all of our procedures are performed in our own outpatient facilities, so we are not using any hospital resources that may be needed for COVID-19 response; no hospital staff or supplies, no hospital beds, let alone intensive care unit (ICU) beds, and no ventilators.
32. Caring for pregnant patients who are continuing their pregnancies requires significantly more patient interaction with the healthcare system and significantly more PPE. A typical pregnancy is generally forty weeks in duration. Even an uncomplicated pregnancy requires a minimum of one prenatal appointment per month, along with additional appointments to complete labs and ultrasounds. Each separate encounter with a health care provider requires the use of gloves, a face mask, and other forms of PPE. For a complicated or high risk pregnancy, the number of visits can double; indeed, starting at 26 weeks LMP, patients with high risk pregnancies are often coming in twice a week for routine monitoring visits, which may also involve an ultrasound and non-stress test (NST) evaluations. During each of these visits, the clinician will be wearing gloves at a minimum; with COVID-19, many may also be wearing masks for both their protection and the protection of the patient.
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33. An abortion, by contrast, requires only a maximum of 2-3 visits, and could require even less but for Alabama’s restrictions on the use of telemedicine and mandatory in-person physical exam requirement.
34. Furthermore, every time a pregnant person presents to the hospital for evaluation prior to labor, which could happen multiple times, they will be interacting with more people and increasing the hospital’s use of PPE. An actual birth—attended by multiple medical care providers, including, but not limited to, nursery personnel, a labor and delivery nurse, an OB tech, a physician, and an anesthesiologist—could involve anywhere from seven to ten gowns, masks, and sterile gloves. For an uncomplicated pregnancy, the patient is going to remain in the hospital at least 24-48 hours in the state of Alabama, for a c-section up to 72-96 hours, and for a more complicated pregnancy, potentially even longer. Again, this means that the patient will require a use of a hospital bed or room, and will require the time and attention of hospital staff, who will have to use PPE during interactions with the patient.
35. In sum, forcing a patient to carry an unwanted pregnancy to term will not only increase the risks to their health (associated with pregnancy and contracting COVID-19) and well-being, but will also increase the duration and frequency of their interactions with medical clinicians and the amount of PPE expended on their care, which may inhibit public health officials’ ability to further reduce transmission of COVID-19 and the current strain on the medical system. The March 27, 2020 Order and Threatened Enforcement
36. On March 19, 2020, I became aware that the Alabama Department of Public Health (ADPH) issued an order that required the postponement of all “elective medical procedures” effective immediately.
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37. I considered the implications of the order on the care I offer both at my private OBGYN practice and at AWC. While I cancelled surgical cases at my OBGYN practice that I considered to be elective and could be postponed, I did not cancel my appointments with my pregnant patients, who, even early in their pregnancies, must be seen at a minimum of once every month. Likewise, I did not cancel any abortion procedures scheduled at AWC because, in my medical opinion, abortion is not an “elective” procedure and I was advised by my attorneys that the ADPH agreed that abortions were not covered by the March 19, 2020 order.
38. We have a consistent and organized presence of protesters outside our clinic, even during the COVID-19 crisis, often more than 10 at a time. On March 23, we received a call from an anti-abortion protestor demanding to know why AWC was still open and providing care. Shortly thereafter, we received a call from the ADPH, requesting that AWC send them any policies put in place in response to the COVID-19 pandemic by the end of day. In response, we sent ADPH a copy of the patient notice sign posted outside our door, explained that, in response to the coronavirus pandemic, we are following CDC and NAF safety guidelines, and described the stringent precautions to keep our patients and staff safe and healthy. We received no response.
39. I have also seen social media postings from March 23 and 24, attached hereto as Attachments 1 and 2, from an anti-abortion group known as “Abolitionists of Alabama,” encouraging their followers to try reporting us for continued provision of care, and to call the Governor and Attorney General (AG) to issue a complaint and demand that they shut us down.
40. On March 27, 2020, I discovered that State Health Officer Scott Harris had issued another order on behalf of the Alabama State Board of Health, mandating the postponement of “all dental, medical and surgical procedures . . . until further notice,” except those procedures
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“necessary to treat an emergency medical condition,” defined by the Order, and those “necessary to avoid serious harm from an underlying condition or disease, or necessary as part of a patient’s ongoing and active treatment.”
41. In my professional medical opinion, pregnancy is an “underlying condition” and performing an abortion on a pregnant patient who wishes to terminate the pregnancy is “necessary in order to avoid serious harm” to that patient that would arise if the patient were forced to remain pregnant against their will.
42. I understand that the March 27 Order went into effect on March 28 at 5:00 pm, and is set to remain in full force and effect until at least 5:00 P.M. on April 17, 2020. However, I also understand that, by its own terms, the order contemplates that it may be extended past the April 17 date. As a healthcare provider, it is my opinion that it is extremely unlikely that the COVID-19 crisis will be resolved in three weeks from now. In fact, I don’t believe we have even hit the peak of the crisis yet; the numbers of COVID-19 cases across the country are increasing day by day, and many states are just beginning to take the crisis seriously and institute responsive measures.
43. Since the March 27 order was issued, my attorneys have informed me that they have reached out to ADPH and the AG to confirm whether they interpret the March 27 order to prohibit the continued provision of abortion care. It is my understanding that the only guidance we have received is that the Attorney General has indicated that at least some pre-viability abortions are prohibited under the March 27 Order. I also understand that the AG has issued enforcement guidance for the order, which makes clear that violators may be charged with a criminal misdemeanor and subject to stiff financial penalties. Harms Caused by the Order and the ADPH and AG’s Refusal to Clarify its Application
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44. Based on the refusal of ADPH and the AG to provide any clarification about their interpretation of the March 27 Order other than that they think it prohibits at least some previability abortions, and because of the risks not only of criminal prosecution but to my medical license and AWC’s license, I cannot take the risk of continuing to perform most abortions. The ADPH and the AG will not even confirm whether they interpret medication abortion to be permissible under the order, even though it is not considered by medical professionals, including abortion providers, to be a “medical or surgical procedure.” And even if the ADPH and/or the AG consider some abortions to be permissible under the Order, I cannot know for certain what standards they will use to determine whether and when a particular abortion falls into a “permissible” category, and whether those standards will align with my best clinical judgment as a medical professional. As a result, I am deeply concerned about performing abortions even in what I consider to be emergent circumstances.
45. Indeed, based on my experience providing abortion care for over a decade in an extremely hostile environment, I legitimately fear that the views of law enforcement or ADPH will not align with my clinical judgment. I and the rest of my staff at AWC are under intense scrutiny all the time. Since I have been practicing, the state legislature has waged an unrelenting campaign against abortion, enacting new laws aimed at restricting access to abortion that make it increasingly more difficult for Alabama abortion clinics to keep their doors open and for patients to access care. We have to spend significant amounts of time making sure that we are in compliance with every new law, rule, and regulation governing our practice, so as to avoid being shut down, and thus forced to stop providing compassionate reproductive health care to our patients. In light of my experience providing abortion care in Alabama, navigating laws and regulations governing my practice, and interfacing with the ADPH and AG, I am deeply
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concerned that if I do not interpret the Order extremely narrowly, I will be putting myself and my staff at AWC in jeopardy. With criminal penalties and my livelihood on the line, I can’t take that risk. Nor can I in good conscience impose that risk on the other physician who provides care at AWC and the rest of my staff at the clinic. The Impact of the March 27 Order on My Patients
46. Patients delayed in accessing abortion as a result of the Order will suffer increased risks to their physical health from remaining pregnant for longer against their will,16 including possible increased risk of contracting COVID-19.17 These pregnant patients may also suffer heightened emotional distress or anxiety as a result of this public health crisis, which has pushed hospitals and the medical professional to a breaking point; they may be concerned that if they face issues with their pregnancy, a medical facility or hospital may struggle to accommodate them and their partners or support people, or that (by virtue of seeking medical care) they may be exposed to COVID-19, which they may be more susceptible to because they are pregnant.
47. Assuming some of these patients are still able to obtain abortions after the Order expires, or because they have managed to travel to another state, many will face increased financial and health costs related to abortion, as they will have been pushed later into pregnancy, when abortion is more expensive, and the procedure is more complicated, and thus carries with it greater risks. Pushing patients to obtain care later in their pregnancies will not only risk harm to their physical and mental health and financial well-being; it will also risk exacerbating the COVID-19 crisis by increasing duration and frequency of patient interactions with the outside world and the use of PPE. For example, many of the medication abortion patients will no longer
16 Nat’l Acads., supra note 1, at 77–78. 17 Ctrs. for Disease Control & Prevention, supra note 15.
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be eligible for medication abortion, and will instead require surgical abortions instead, necessitating correspondingly greater amounts of clinician-patient contact and PPE.
48. On top of all that, forcing all of the patients still able to legally obtain an abortion in Alabama to attempt to obtain them at the same time—after the Order expires and before they reach the point in pregnancy at which abortion is no longer available in the state—will create a crush of demand that health centers are unlikely to be able to meet. As the only clinic in the state that provides care after 14 weeks LMP, AWC will be especially hard-hit if patients are forced to delay their abortion care later into the second-trimester of their pregnancies. I am concerned that we may not have the capacity to care for the number of patients who will need our services if, as a result of the delay imposed by the Order, AWC becomes the only clinic in the state where they can come for care.
49. While we would of course do our utmost to try to meet patient demands on our services, we do not have the ability to drastically expand our provision of care. Besides myself, AWC employs only one other physician; because of zoning rules, we cannot provide care on weekends, so would have to find a way to see as many patients as we comfortably schedule (and as we could physically safely care for) between 8:00 am and 5:00 pm during the weekdays (which is the only time frame during which we are able to provide, also due to zoning rules). Alabama’s mandatory two-trip and 48-hour waiting period requirements, as well as its ban on the use of telemedicine for abortion, will only increase our scheduling difficulties, and the risk that at least some people forced to delay as a result of the Order will be unable to obtain abortions in the Alabama at all.
50. Other patients, rather than wait for the Order to expire—or because they simply cannot afford to wait, given where they are at in their pregnancies—may attempt to travel
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hundreds of miles out of state to try to obtain an abortion. This requires them to overcome all of the logistical barriers associated with accessing abortion discussed above, including finding and paying for transportation and (if needed) childcare, and trying to obtain time off work (which may only be unpaid, forcing them to forgo wages, and/or putting them at risk of losing their job). And, as explained above, all of this may be more difficult and costly in the midst of the current COVID-crisis, given the limitations it has placed on public transit and childcare options.
51. Moreover, given the logistical hurdles of traveling out-of-state, particularly during the COVID-19 pandemic, these patients are also likely to obtain abortions later than they would have had they accessed care from AWC or other provides, which—as noted above—entails greater risks and costs than an earlier procedure. And efforts to travel are also likely to expose both patients and other people to additional risk of contagion, at a time when states, including Alabama, have urged their citizens to reduce travel and stay at home as much as possible in order to reduce the rate of transmission of COVID-19.
52. For other patients, travel to another state will simply not be possible, particularly during the pandemic. Most of my patients at AWC are poor or low-income and already struggle mightily to raise the money to afford an abortion, as well as related costs like travel, childcare, etc. And it has forced some of them into even more precarious financial situations as a result of layoffs or hour cuts associated with COVID-19 crisis. For example, the other day we treated a patient at AWC who works in the restaurant industry, and relayed that her employer had cut down her hours to just one day a week, since the restaurant was now only doing take-out as a result of the pandemic, and could not afford to pay all staff for full-time work. She expressed concern over how she would make ends meet working just one day a week. Patients like these,
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who already struggle to afford the costs associated with accessing abortion, will be even less likely to be able to obtain timely care if we are forced to stop providing in Alabama.
53. Finally, some patients, including those who are unable overcome the logistical and financial barriers associated with accessing care out of state, and those foreclosed from accessing abortion at all given gestational age limits, will be forced to carry to term against their will. As a result, these patients will have to seek out and obtain prenatal care and will eventually go into labor and give birth which, as discussed above, only increases their interactions with the health care system and requires more health care resources, not less. Moreover, studies have shown that patients who are denied a wanted abortion (in contrast to those able to obtain abortion care) face serious consequences, including greater likelihood of living in poverty, staying in abusive relationships, and experiencing mental health issues, as well as increased chances of suffering health consequences from continuing a pregnancy.18
54. We know from experience that when patients cannot access the services they need to terminate a pregnancy within the healthcare system, some will find ways to do so outside the healthcare system, not all of which may be safe. I know personally of women who have attempted to self-induce abortion by ingesting drugs or herbs they purchased or read about on the internet. If attempts to self-induce give rise to additional health problems, some of these patients may be forced to seek emergent medical care, thereby increasing their interactions with the outside world and further taxing the medical system as it works to respond to the COVID-19 crisis. In other words, if women end up having to present to the hospital after resorting to potentially dangerous measures to self-induce at home, the medical system will be forced to
18 Advancing New Standards in Reproductive Health, Turnaway Study (2020), https://www.ansirh.org/research/turnaway-study.
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Case 2:19-cv-00365-MHT-JTA Document 73 Filed 03/30/20 Page 27 of 71 expend a lot more resources (human and PPE) on their care than if we had allowed them to obtain a safe abortion within the healthcare system in the first place.
55. In sum, if the Order is permitted to be applied to ban pre-viability abortion procedures, forcing us to cancel the appointments we have scheduled through April 17, and to refrain from scheduling any new appointments until at least April 18 (or, if the Order is extended, for an indefinite period of time), it will not only inflict extreme and irreparable harm to our patients, it will also risk exacerbating the COVID-19 crisis, thereby undermining the stated purpose Order itself.
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Case 2:19-cv-00365-MHT-JTA Document 73 Filed 03/30/20 Page 28 of 71 I declare under penalty of perjury that the foregoing is true and correct. Executed March 30, 2020
/s Yashica Robinson Yashica Robinson, M.D.
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ATTACHMENT 1

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ATTACHMENT 2

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EXHIBIT 2

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, M.D., et al,

Plaintiffs,
v.
STEVEN MARSHALL, in his official capacity as Alabama Attorney General, et al.,

CIVIL ACTION Case No. 2:19-cv-365-MHT-JTA

Defendants.

DECLARATION OF GLORIA GRAY IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
I, Gloria Gray, hereby declare and state the following:
1. I am the owner and administrator of the West Alabama Women’s Center, Inc. (“WAWC” or the Clinic”), located in Tuscaloosa, Alabama, which I co-founded with Dr. Louis Payne in 1993. WAWC is and always has been the only licensed abortion clinic in Tuscaloosa, and indeed today is one of only three health centers providing abortion care in all of Alabama. I submit this declaration in support of Plaintiffs’ Motion for a Temporary Restraining Order and/or Preliminary Injunction.
Provision of Abortion Care at WAWC 2. WAWC generally provides abortion care up to 14 weeks of pregnancy as measured from
the first day of a patient’s last menstrual period (“lmp”). Prior to the COVID-19 crisis, on one or two days a month we had a doctor who was able to provide care up to 17 weeks of pregnancy, but

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because of the crisis that physician was not able to come to the Clinic in March and I do not know when they may be able to do so again.
3. We provide two methods of abortion. We provide surgical abortions (also known as aspiration or procedural abortion) up to 14 weeks lmp.
4. WAWC also provides medication abortion up to 10 weeks lmp. 5. In January of this year, we provided 240 abortions. In February, we provided 227 abortions. 6. Alabama law requires patients seeking an abortion to make two trips to the clinic at least 48 hours apart. At the first visit, the patient must obtain state-mandated information. She must then make a separate trip to the clinic, no sooner than 48 hours later, in order to obtain the abortion. I understand that in some states this pre-abortion counseling is provided over the phone or via video which would eliminate the need for the first trip, but Alabama law does not permit this. 7. Our patients seek abortion care for a variety of reasons. Some are not ready to become parents. Many already have a child and do not have the financial or emotional resources to add an additional child to their family. Some are students who want to complete their education before having children. Some do not want to be tied financially or emotionally to the putative father. In some instances, they fear abuse if their pregnancy is discovered or fear that having a child with an abusive partner will make it more difficult for them to leave. Some have health conditions that are exacerbated by their pregnancy. Some are pregnant as a result of rape.
WAWCs Response to the COVID-19 Outbreak 8. WAWC is committed to doing everything it can to protect the health of its patients and
staff while still providing essential health care services. In response to the COVID-19 outbreak,

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even before the State Health Officer issued his orders, we started taking measures to minimize the risk of transmission of the virus and have continued to add additional measures.
9. For example, staff members screen all patients by telephone before they come to the clinic to determine if they have symptoms of COVID-19 or have been exposed to someone with COVID19. We will not schedule an appointment who reports such symptoms or exposure.
10. When a patient arrives at the Clinic, we review these questions; patients with symptoms or who have had contact with a person with a positive test must return home. In addition, we take the temperature of every patient. Patients with fevers of 100 or greater must return home. Patients who are not screened out are provided with hand sanitizer upon entry.
11. We follow the same protocol of screening and taking the temperature for staff. 12. We are also limiting the number of people who enter the clinic and ensuring that patients maintain a safe distance from one another in the waiting room and recovery area. We have removed furniture from the waiting room so that patients sit further apart. If there are too many patients at the Clinic at any one time, we require some patients to wait outside until it is their turn to be seen. 13. To reduce the risk of transmission, unfortunately, we are no longer able to allow support people to wait with patients in the Clinic. We make an exception for one family member in the case of a patient under 18. 14. We use personal protective equipment as appropriate, but we do not have any of the N95 respirator masks that I understand are in critically short supply.
Impact on Patients of the State Public Health Officer’s Order 15. On March 27, the State Public Health Officer issued an order (the “Order”) stating that
“all medical or surgical procedures shall be postponed until further notice” with exceptions only for “procedures necessary to treat an emergency medical condition” and those “necessary to avoid

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serious harm from an underlying condition or disease, or necessary as part of a patient’s ongoing and active treatment.”
16. As I understand it, the State has been entirely unwilling to provide any guidance as to whether we can continue to provide surgical abortion, or even medication abortion, under this Order. But the State has made clear that criminal penalties will nonetheless apply for violations.
17. Because the State has been unwilling to provide any clarification about its interpretation of the Order and because violation carries criminal penalties, absent relief from this Court, WAWC is no longer providing abortion care.
18. This has tremendous repercussions for our patients who rely on us. In a typical week, we provide approximately 50-60 abortions. This week, we have already had to cancel 17 patients who were scheduled to be seen on Monday or Tuesday. Absent an order from this Court, we will need to proceed with further cancellations.
19. These first cancellations were just devastating to our patients. Some had had to travel several hours to get to us for the first state-mandated visit. The majority of our patients have very low-incomes. Many are parents of dependent children. It took everything some of them had to find a way to get to us the first time. Learning that after all that they wouldn’t be able to get the care they needed nearly broke them. Many calls ended in tears.
20. At least one of the patients we had to cancel will now be past our limit to provide abortion care and her only option to get an abortion in Alabama will be to travel to Huntsville (if she can do so) if and when the Court issues an order allowing the clinics to resume providing care. Other patients scheduled for later this week are in the same situation.
21. Similarly, some patients who are scheduled to receive a medication abortion will be delayed such that medication is no longer an option for them. These patients must then instead have a surgical abortion, if they are able to have one at all. This is a perverse outcome. Medication

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abortion allows the patient to be in the clinic for a shorter amount of time, thus reducing the risk for COVID-19 exposure for patients and staff, and requires the use of less personal protective equipment than a surgical abortion. In addition, increased travel can mean increased exposure.
22. I worry that many of our patients who cannot be seen at our facility will not be able to seen at all. Obtaining transportation is extremely challenging for many of our patients during the best of times. Many do not have cars and must depend on friends or relatives to drive them to the Clinic, both for the state-mandated counseling and for the abortion. Securing the money for gas is also problematic for many patients with limited resources. The COVID-19 crisis has only exacerbated these problems.
23. In addition, the cost of the abortion increases as the pregnancy advances, particularly if one is no longer eligible for an aspiration abortion. Paying for an abortion (and the associated costs of childcare and transportation) has always been very difficult for our patients. That is even more true now with so many people losing their jobs due to crisis.
24. Forcing us to stop providing abortion care harms our patients in multiple ways. Depending on how long this crisis continues, some may still be able to get abortions, but even they will be delayed which increases both the risks of an abortion and its cost. But many others will be denied an abortion entirely, for a number of reasons. In some instances, by the time the Order is lifted they will be at a gestational age that requires them to travel several hours to Huntsville which for the reasons I explained above many will not be able to do. For others, the advance in the gestational age of the pregnancy will mean that the price will have increased such that they are no longer be able to afford the abortion. And in still other cases, they will be past the legal limit in Alabama. Every one of these patients will suffer the tremendous anxiety that comes with not knowing whether they will face the life-altering consequences of having to continue a pregnancy against their will.

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I declare under penalty of perjury that the foregoing is true and correct.

Executed March 29, 2020

/s Gloria Gray Gloria Gray

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EXHIBIT 3

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, M.D. et al.,

Plaintiffs,

CIVIL ACTION

v.

Case No. 2:19-cv-365-MHT-JTA

STEVEN MARSHALL, in his official capacity as Alabama Attorney General, et al.,

Defendants.

DECLARATION OF JANE DOE1 IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
I, Jane Doe, declare and state the following: 1. I am in my mid-20s and I have a young daughter. I adore her. She is my everything.
2. I am separated from my husband, but we are working hard to try to figure things out so that we can get back together for us and for our daughter.
3. I knew now was not the time for us to add another child to our family so I am on birth control. But unfortunately, my birth control failed.
4. Now I am pregnant. Never in a million years did I think I would need an abortion, but I know I can’t have a baby now for a lot of reasons.
5. I am struggling to put my marriage back together. Having a baby now would put way too much stress on us and I worry it would ruin any chance we have of being a family again.

1 Jane Doe is a pseudonym. A motion to file a pseudonymous declaration and a brief in support is forthcoming.

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6. And, to be honest, I just don’t have the financial or emotional resources to have another child right now. I worry that if I had another child right now I wouldn’t be able to care for that baby and my daughter in the way that I want to and that they deserve.
7. I know adoption is an option. But I have been through a pregnancy and given birth to a child and I know myself. I don’t think that, at the end of nine months of pregnancy and childbirth, I could place my child for adoption.
8. In addition, I had very serious complications at the end of my pregnancy and during childbirth. I also had post-partum depression following the birth of my daughter. I worry that if forced to continue my pregnancy and deliver, I could have suffer these complications again and that this time I might not survive.
9. Given all of these considerations, it is clear to me that I cannot continue this pregnancy.
10. Given that decision, I scheduled an appointment for abortion in my home state. However, before the date of my appointment, the clinic called and said that it had to cancel because of the COVID-19 crisis.
11. Determined to not have another child, I next scheduled an appointment in a neighboring state. There too, before the date of my appointment, the clinic called to cancel explaining that the state was forcing them to stop providing abortions.
12. Then my husband found a clinic in Tuscaloosa, Alabama that was able to see me. However, they told us that Alabama state law requires patients to come in for an initial visit at least 48 hours before they can have the abortion. They were willing to see me on Saturday to start the process and that meant on Monday I would finally be able to have the abortion I need.
13. Tuscaloosa is over a four hour drive from where I live. Going there would mean staying overnight in a motel for two nights. Although money is tight, I felt like I had no choice.
14. On Saturday, I came in for my initial visit. Part way though my session, the clinic informed me that the state had taken some new action that meant that I probably wasn’t going to be able to have the abortion on Monday.
15. I was devastated. I know this is not the right time in my life to have another child. I am a very responsible person and I need to be able to take care of my children on my own and to be the kind of mother I want to be and that I am to my daughter. I can’t do that with a new baby right now.
16. Plus, based on my experience with my prior pregnancy, I am terrified that if I continue this pregnancy I will not live through it. And then what will happen to my daughter and this new baby?

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17. For the sake of me, my daughter, and other people like us, I ask that the Court allow the clinics to continue to provide abortion care.
I declare under penalty of perjury that the foregoing is true and correct.

Executed: March 29, 2020

/s/ Jane Doe_______________________ Jane Doe

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EXHIBIT 4

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, M.D, et al., Plaintiffs,
v. STEVEN MARSHALL, et al.,
Defendants.

CIVIL ACTION Case No. 2:19-cv-365-MHT-SMD

DECLARATION OF RANDALL C. MARSHALL IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION Randall C. Marshall declares and states the following:
1. I am the Executive Director of the American Civil Liberties Union of Alabama and one of the counsel of record in this case.
2. On Friday, March 20, 2020, plaintiffs’ counsel became aware of a March 19 Order of the State Health Officer Suspending Certain Public Gatherings Due to the Risk of Infection by COVID-19 (Applicable Statewide) (copy attached as Attachment 1). Paragraph 6 of the order stated: “Effective immediately, all elective dental and medical procedures shall be delayed.” Paragraph 9 made the order effective until April 6, 2020, with the possibility that it could be extended beyond that date.
3. I called the Department of Public Health’s general counsel’s office to speak with general counsel about the applicability of paragraph 6 of that order to

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Alabama clinics that provided abortion services. As no one was then currently available, I left a message about why I was calling.
4. Within an hour, Assistant General Counsel Dana Billingsley returned my call. After a brief discussion about the order, I directly asked Ms. Billingsley whether the Department intended to apply the order to the clinics. She responded that the Department “has no plans to apply the order to the clinics.” She then sent me a copy of CMS elective surgery guidelines and a copy of a slightly amended order that did not alter paragraph 9 of the original order.
5. During that conversation, Ms. Billingsley mentioned that ADHP had spoken to Reproductive Health Services in Montgomery and the Department was satisfied that the clinic was taking appropriate measures, including instituting a system to allow social distancing.
6. After reviewing the amended order, I sent Ms. Billingsley a confirming email that the Department would not apply the elective surgery language to Alabama providers of abortion services. A copy of the email is attached as Attachment 2. There was no further correspondence between us regarding the March 19 Order or the amended Order issued March 20.
7. We relayed the Department’s assurances to our clients so that they could continue to provide services as scheduled.
8. On Friday, March 27, plaintiffs’ counsel became aware of a new amended order stating that:

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Effective March 28, 2020 at 5:00 P.M., all dental, medical, or surgical procedures shall be postponed until further notice, subject to the following exceptions:
a. Dental, medical, or surgical procedures necessary to treat an emergency medical condition. For purposes of this order, “emergency medical condition” is defined as a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances, and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected by a person’s licensed medical provider to result in placing the health of the person in serious jeopardy or causing serious impairment to bodily functions or serious dysfunction of bodily organs.
b. Dental, medical, or surgical procedures necessary to avoid serious harm from an underlying condition or disease, or necessary as part of a patient’s ongoing and active treatment.
9. I called the number on Ms. Billingsley’s signature block from her emails
to me and left a message that we wanted to get clarity from the Department that the
amended order still would not be applied to the clinics.
10. When I didn’t receive a call back, I sent an email to Ms. Billingsley and
Brian Hale, General Counsel, explaining why we believed that the March 27 Order
could not be applied to the clinics: “We believe that medication abortion is not a
procedure within the terms of the order and that surgical abortion procedures fall
within the exceptions. If the department disagrees and intends to enforce the order
against the clinics, please let us know before the effective date and time of the order
so that we may seek the appropriate legal relief.” A copy of the email is attached as
Attachment 3.
11. Later that evening, I received an e-mail from Katherine Green
Robertson, Chief Counsel to the Attorney General, stating that the “Alabama

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Department of Public Health referred your inquiry to our office.” She went on to say: “As the order indicates, procedures are exempt from mandatory postponement only if they meet the criteria set out in 7a. or b.” She also sent a link to a March 21, 2020, memorandum from the Attorney General which made clear that violation of the State Health Officer’s Order was subject to criminal enforcement. A copy of the email is attached as Attachment 4.
12. The next morning, March 28, I responded to Ms. Robertson’s email, and sent a copy to Ms. Billingsley and Mr. Hale, again seeking the Attorney General’s, and the Department’s, intention of applying the March 27 Order to the clinics. A copy of the email is attached as Attachment 5.
13. We did not receive a response to that email and thus no indication whether the State, or the Department, will seek to enforce the Order against the clinics. Because of the imminent threat of criminal prosecution of the clinics and their doctors, we sent a final email to counsel of record at the Attorney General’s office and to general counsel for the Department asking for a direct response in order to avoid litigation. A copy of the email is attached as Attachment 6.
14. We received a response stating: “Per the order, we are unable to provide you with a blanket affirmation that abortions will, in every case, fall within one of the exemptions.” A copy of the email is attached as Attachment 7.
15. Given the State’s position, plaintiffs are in the crosshairs of being second guessed and prosecuted for their medical judgment. Hence, they seek emergency relief from the Court.

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I declare under penalty of perjury that the foregoing is true and correct. Executed on March 30, 2020.
/s/ Randall C. Marshall Randall C. Marshall

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ATTACHMENT 1

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ATTACHMENT 2

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ATTACHMENT 3

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ATTACHMENT 4

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ATTACHMENT 5

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ATTACHMENT 6

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ATTACHMENT 7

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Case 2:19-cv-00365-MHT-JTA Document 73-1 Filed 03/30/20 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, M.D., et al., Plaintiffs,
v. STEVEN MARSHALL, et al.,
Defendants.

CIVIL ACTION Case No. 2:19-cv-365-MHT-JTA

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTIVE RELIEF Pursuant to Federal Rule of Civil Procedure 65, Plaintiffs Yashica Robinson, M.D.,
Alabama Women’s Center, Reproductive Health Services, and West Alabama Women’s Center, on behalf of themselves and their patients, their clinic administrators, physicians, and staff, move for a temporary restraining order, followed by a preliminary injunction, to enjoin the application of the State Public Health Officer’s March 27, 2020 emergency order insofar as it prohibits previability abortions in Alabama. See Scott Harris, M.D., M.P.H., State Health Officer, “Order of the State Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19,” Mar. 27, 2020 (“March 27 Order”), attached to Pls.’ Supplemental and Partially Verified Compl. for Declaratory and Injunctive Relief as Ex. B.
Because of Defendants’ interpretation of the March 27 Order, Plaintiffs have already been forced to start cancelling abortions scheduled for today (March 30, 2020). If this Court does not enter an injunction by 8:00 p.m. today (March 30, 2020), Plaintiffs will be forced to start

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canceling the more than twenty abortions scheduled for tomorrow alone (March 31, 2020), including at least one patient who will be pushed past the legal limit for abortion in Alabama if she does not obtain an abortion this week. Plaintiffs have additional patients scheduled for the remainder of this week. Absent relief from this Court, they will be forced to cancel those patients, and deny care to hundreds of additional new patients who call needing care, as well.
As the American College of Obstetricians and Gynecologists (“ACOG”) has recognized, abortion care is essential care because it cannot be delayed without risking the health and safety of the patient.1 Indeed, as set forth further below, the Alabama Department of Public Health (“ADPH” or “the Department”) previously agreed, having advised counsel for Plaintiffs that the Department had no intention to enforce earlier emergency orders to prohibit abortions. Decl. of Randall Marshall in Support of Pls.’ Mot. for TRO and Prelim. Inj. (“Marshall Decl.”), attached to Pls.’ Mot. for TRO and Prelim. Inj. as Ex. 4. On March 27, 2020, however, the Department issued a new order mandating the postponement of all surgical and medical procedures not necessary to treat an “emergency medical condition” or “avoid serious harm from an underlying condition,” after 5:00 p.m. on March 28th. March 27 Order at 4. As explained below, Plaintiffs believe that, as with the earlier emergency order, the plain language of the March 27 Order permits pre-viability abortions. However, as of yesterday afternoon, the Attorney General refused to provide any further guidance as to how it is interpreting the scope of the Order other than to make plain that in its view some—and perhaps most—abortions are not permitted. The Attorney General did make clear, however, that violation of the March 27 Order carries criminal penalties. Given the Defendants’
1 ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortionaccess-during-the-covid-19-outbreak.
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clear intiention to apply the March 27 Order to at least some pre-viability abortions, the refusal to provide any clairty on how the Order will be interpreted, and the Order’s criminal and licensure penalities, Plaintiffs cannot continue to provide abortion services absent relief from this Court.
During the COVID-19 outbreak, Plaintiffs—like all healthcare providers—have an important role to play in serving their communities, including by taking steps to reduce the transmission and spread of COVID-19, while continuing to provide essential healthcare services. However, as explained below, forcing a pregnant person to stay pregnant against their will does not reduce the risk of transmission of the virus nor does it preserve health care resources. To the contrary, because a pregnant person needs medical care whether they decide to have an abortion or continue their pregnancy, forcing a person to stay pregnant against their will not only taxes an already overburdened health care system, but also increases the risks of transmission of the virus and harm from the virus itself, because pregnant people face increased risks from respiratory viruses.
Absent an immediate order from this Court, Defendants’ actions will deny Plaintiffs’ patients their right to access safe and legal pre-viability abortion in Alabama. The use of the State Health Officer’s emergency powers in this manner violates nearly five decades of Supreme Court precedent that prohibits states from banning abortion before viability, and is, therefore, unconstitutional. There is no health and safety justification for forcing Alabamians to remain pregnant against their will in the midst of a pandemic. Accordingly, Plaintiffs seek to restrain and preliminarily enjoin Defendants, their officers, agents, servants, employees, and attorneys, and any persons in active concert or participation with them from enforcing the March 27 Order to prohibit pre-viability abortions.
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STATEMENT OF FACTS A. The Emergency Orders
In March 2020, the United States declared a state of emergency, and Governor Ivey proclaimed a state of emergency in Alabama.2 The virus has reached every state in the country, with 644 confirmed cases in Alabama and 3 deaths as of midday on March 28, 2020.3 Federal and
state officials and medical professionals expect a surge of infections that will test the limits of an increasingly burdened health care system.4
In light of this new reality, on March 19, 2020, the State Health Officer, pursuant to his
authority to direct that conditions prejudicial to health in public places be abated, Ala. Code. § 22-
2-2(4), issued an order stating, inter alia, that “effective immediately all elective dental and
medical procedures shall be delayed.” See Scott Harris, M.D., M.P.H., State Health Officer, Order
of the State Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by
COVID-19, Mar. 19, 2020 (“March 19 Order”).5 The March 19 Order did not define or otherwise
explain what constitutes an “elective” medical procedure. However, at a press conference held the
same day, the State Health Officer stated:
This is not a closure of offices for physicians or dentists or optometrists. Those offices remain open and those professionals continue to care for their
2 See Proclamation No. 9994, 85 Fed. Reg. 15,337, 2020 WL 1272563 (Mar. 13, 2020); Governor Kay Ivey, Proclamation of the Governor, “State of Emergency: Coronavirus (COVID-19),” Mar. 13, 2020, https://governor.alabama.gov/assets/2020/03/2020-03-13-Initial-COVID-19-SOE.pdf. 3 ADPH, Alabama’s COVID-19 Data and Surveillance Dashboard, https://alpublichealth maps.arcgis.com/apps/opsdashboard/index.html#/6d2771faa9da4a2786a509d82c8cf0f7; Ctrs. for Disease Control & Prevention, Cases in U.S. (last updated Mar. 25, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. 4 Ctrs. for Disease Control & Prevention, Interim Guidance for Healthcare Facilities: Preparing for Community Transmission of COVID-19 in the United States (last updated Feb. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/guidance-hcf html. 5 Available at https://www.alabamapublichealth.gov/legal/assets/order-adph-cov-gatherings-031920.pdf.
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patients. They are still available to care for urgent and emergent situations, but all elective procedures shall be delayed. I would remind people that ‘elective’ can be somewhat subjective. CMS [the federal Centers for Medicare & Medicaid Services] issued guidance last night that’s available on their website about what could be considered an elective procedure.
Ala. Pub. Health Training Network (“ALPHTN”), COVID-19 Alabama Update, YouTube (Mar.
19, 2020) at 5:00–5:27, https://youtu.be/vAj6vz2bd28. The CMS guidance referenced by the State
Health Officer emphasizes suggests “the following factors to be considered as to whether planned
surgery should proceed.” Centers for Medicare & Medicaid Services, CMS Adult Elective Surgery
and Procedures Recommendations (“CMS Recommendations”) (emphasis added).6
● Current and projected COVID-19 cases in the facility and region; ● Supply of PPE [“Personal Protective Equipment”] to the facilities in the system; ● Staffing availability; ● Bed availability, especially intensive care unit (ICU) beds ● Ventilator availability ● Health and age of the patient, especially given the risks of concurrent COVID-19
infection during recovery; ● Urgency of the procedure.
Id. On March 20, 2020, the State Health Officer issued an amended order that did not alter the
language concerning elective medical and surgical procedures. See Scott Harris, M.D., M.P.H.,
State Health Officer, Amendment to Emergency Order Suspending Public Gatherings Due to Risk
of Infection by COVID-19 (Applicable Statewide), Mar. 20, 2020 (“March 20 Order”).7
On March 20, 2020, counsel for Plaintiffs spoke to counsel for ADPH who confirmed that
ADPH did not intend the Orders to apply to abortions. Marshall Decl. ¶ 4. Counsel for ADPH also
stated that the Department had spoken to Plaintiff RHS and the Department was satisfied that the
clinic was taking appropriate measures, including instituting a system to allow social distancing.
6Available at https://www.cms.gov/files/document/31820-cms-adult-elective-surgery-and-proceduresrecommendations.pdf. 7 Available at http://alabamapublichealth.gov/legal/assets/order-publicgathering-032020.pdf.
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Id. ¶ 5. Between March 20-27, Plaintiffs continued to perform pre-viability abortions, while taking

all necessary steps to protect patients and staff from exposure to and transmission of COVID-19.

Id. ¶ 7; Decl. of Gloria Gray in Support of Pls.’ Mot. for TRO and Prelim. Inj. (“Gray Decl.”) ¶¶

8–14 ; Decl. of Yashica Robinson, M.D., in Support of Pls.’ Mot. for TRO and Prelim. Inj.

(“Robinson Decl.”) ¶¶ 22–25, 31, 36–37.

On March 27, the State Public Health Officer issued a second amended order stating, in

relevant part, that effective March 28, 2020 at 5:00 P.M. “all medical or surgical procedures shall

be postponed until further notice, subject to the following exceptions:”:

(a) Medical or surgical procedures necessary to treat an emergency medical condition, which is defined as a “medical condition manifesting itself by acute symptoms of sufficient severity … such that the absence of immediate medical attention could reasonably be expected . . . to result in placing the health of the person in serious jeopardy or causing serious impairment to bodily functions or serious dysfunction of bodily organs.”

(b) Medical or surgical procedures “necessary to avoid serious harm from an underlying condition or disease, or necessary as part of a patient’s ongoing and active treatment.”

March 27 Order at 4 (emphasis added). The March 27 Order stated that “[t]his Order shall remain

in full force and effect until 5:00 P.M. on April 17, 2020[,]” and that prior to that date “a

determination shall be made whether to extend this Order—or, if circumstances permit, to relax

this Order.” The March 27 Order was also promulgated as an emergency rule, which is not set to

expire for 120 days. See Ala. Admin. Code 420-4-1-.13 ER, attached to Pls.’ Supplemental and

Partially Verified Compl. for Declaratory and Injunctive Relief as Ex. C . There is good reason to

believe the Order will be extended, as the State Public Officer, like many others, has indicated that

crisis conditions will continue for a significant period of time. See ALPHTN, COVID-19 Alabama

Update Press Conference, YouTube (Mar. 17, 2020) at

17:14–17:30,

https://youtu.be/jjM8vdNbmM0 (“So I think with the respiratory infections, a three or four month 6

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course is a reasonable place to start guessing how long it’s going to last, but you know we certainly hope that with these mitigation strategies it won’t last that long but it’s just unknown because it’s a new virus.”). Indeed, just four days before the March 27 Order was issued, extending the original March 19 and 20 Orders by almost two weeks, he warned, “I would say Alabamians ought to be prepared that that might happen that they [the emergency orders] might be extended.” ALPHTN, COVID-19 Alabama Update, YouTube (Mar. 23, 2020) at 27:09–27:14, https://youtu.be/tFPiYNlQl0. And yesterday, President Trump announced the extension of social distancing recommendations through the end of April.8. B. Abortion in Alabama
Abortion is one of the safest medical procedures in the United States and is substantially safer than continuing a pregnancy through to childbirth. Robinson Decl. ¶ 9. While pregnancy can be a blessing for many families, even an uncomplicated pregnancy poses challenges to a woman’s entire physiology and stresses most major organs. For example, during pregnancy the heart rate increases in order to pump 30-50 percent more blood. By the second trimester, the heart is already doing 50 percent more work than usual, and that heightened rate continues throughout the rest of the pregnancy. Because of the increased blood flow, a woman’s kidneys become enlarged and the liver must produce more clotting factors to prevent the woman from bleeding to death. However, this latter change increases the risks of blood clots or thrombosis. During pregnancy, a woman’s lungs must also work harder to clear both the carbon dioxide produced by her own body and the carbon dioxide produced by the fetus. Yet her very ability to breathe in the first place is hampered by the fetus growing in the woman’s abdomen, leaving most pregnant women feeling chronically
8 Bobby Allyn, To Fight Virus, Trump Extends Social Distancing Guidelines for 30 More Days, NPR, Mar. 29, 2020, https://www npr.org/2020/03/29/821976925/coronavirus-cases-soar-across-the-u-s-and-officials-say-worse-is-yetto-come
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short of breath. Every organ in the abdomen—e.g., intestines, liver, spleen—is increasingly compressed throughout pregnancy by her expanding uterus. A pregnant woman’s response to infections is also altered by her physiology. She is at greater risk for certain infections. Indeed, while much is unknown about COVID-19, ACOG has warned that “pregnant women are known to be at greater risk of severe morbidity and mortality from other respiratory infections such as influenza and SARS-CoV. As such, pregnant women should be considered an at-risk population for COVID-19.”9 Moreover, there is a 15 to 20 percent risk of miscarriage present in every pregnancy. Complications from miscarriage can lead to infection, hemorrhage, surgery, and even death.
Even an uncomplicated pregnancy can suddenly become life-threatening during labor and delivery. Furthermore, one-third of pregnancies result in a caesarean section (C-section) delivery. Even though C-section deliveries are relatively common, it is still a significant abdominal surgery that carries risks of hemorrhage, infection and injury to internal organs. And even a vaginal delivery can lead to injury, such as injury to the pelvic floor. A recent longitudinal study shows that when pregnant people are denied access to desired abortions, their overall health, and the health of their family is consistently worse as compared to those who were able to obtain an abortion.
By contrast, complications from abortion are rare, and when they occur they can usually be managed in an outpatient clinic setting, either at the time of the abortion or in a follow-up visit.
9 ACOG, Practice Advisory - Novel Coronavirus 2019 (COVID-19) (last updated Mar. 13, 2020), https://www.acog.org/clinical/clinical-guidance/practice-advisory/articles/2020/03/ novel-coronavirus-2019; see also Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID-19 and Pregnant Women (last updated Mar. 16, 2020), https://www.cdc.gov/coronavirus/2019ncov/hcp/pregnant-women-faq html.
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Robinson Decl. ¶ 9. Although abortion is a very safe medical procedure, the health risks associated with it increase with gestational age. Id. at ¶ 20. As ACOG and other well-respected medical professional organizations have observed, specifically in relation to the COVID-19 pandemic, abortion is “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”10
Abortion is also extremely common; approximately one in four women in this country will have an abortion by age forty-five. Robinson Decl. ¶ 9. The decision to terminate a pregnancy is informed by a combination of diverse, complex, and interrelated factors that are intimately related to the individual’s values and beliefs, culture and religion, health status and reproductive history, familial situation, and resources and economic stability. Id. at ¶ 16; Gray Decl. ¶ 7. Some people have abortions because they conclude that it is not the right time to become a parent given their age, desire to pursue their education and/or career, or because they feel they lack the necessary financial resources or level of partner or familial support or stability. Robinson Decl. ¶ 16; Decl. of Jane Doe ¶¶ 2–6, 15 (“Doe Decl.”); Gray Decl. ¶ 7. Many are already mothers; indeed, a majority of women having abortions (59%) already have at least one child. Robinson Decl. ¶ 16. Some people seek abortions to preserve their life or health; some because they have become pregnant as a result of rape; and others because they decide not to have children at all. Id.; Doe Decl. ¶ 8, 16; Gray Decl. ¶ 7. Some people who have suffered trauma, such as sexual assault or domestic violence, may be concerned that pregnancy, childbirth, and/or an additional child may exacerbate already extremely difficult and dangerous situations for them and put them at risk of greater sexual or physical violence or worse. Gray Decl. ¶ 7. Some people decide to have an
10 ACOG et al., supra.
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abortion because of an indication or diagnosis of a fetal medical condition or anomaly. Robinson Decl. ¶ 16; Suppl. Compl. ¶ 71. Some families do not feel they have the resources—financial, medical, educational, or emotional—to care for a child with disabilities or complex medical conditions or to simultaneously provide for the children they already have. Robinson Decl. ¶ 16.
There are two main methods of abortion: medication abortion and procedural abortion. Id. at ¶ 10. Medication abortion involves the patient ingesting a combination of two pills: mifepristone and misoprostol. Id. The patient takes the mifepristone in the health center and then, typically twenty-four to forty-eight hours later, takes the misoprostol at a location of their choosing, most often at their home, after which they expel the contents of the pregnancy in a manner similar to a miscarriage. Id. Medication abortion is available in Alabama up to 10 weeks, as measured from the last menstrual period (“LMP”). Id.
Despite sometimes being referred to as “surgical abortion,” procedural abortion is not what is commonly understood to be “surgery”; it involves no incision, no need for general anesthesia, and no requirement of a sterile field. Id. at ¶ 11. For some patients, medication abortion is contraindicated or there are other factors that would necessitate a procedural abortion, such as when the patient has an allergy to the medications or other medical conditions that make procedural abortion relatively safer. Id. at ¶ 12. In the procedural abortion known as aspiration, the clinician uses gentle suction from a narrow, flexible tube to empty the contents of the patient’s uterus. Id. at ¶ 11. Before inserting the tube through the patient’s cervix and into the uterus, the clinician may dilate the cervix using medication and/or small, expandable rods. Id. Beginning around fifteen weeks LMP, clinicians generally must use instruments to complete the procedure, a technique called dilation and evacuation (“D&E”). Id. at ¶ 11; see also generally W. Ala. Women’s Ctr. v. Miller, 217 F. Supp.3d 1313, 1320, 1336–37 (M.D. Ala. 2016) (describing abortion procedures).
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Neither method of abortion requires extensive PPE, particularly as compared to the PPE required for multiple pre-natal visits and labor and delivery. Id. at ¶ 30. Indeed, pregnant patients have a minimum of one prenatal care visit per month, which increases as pregnancy progresses; that number is higher for high-risk pregnancies or where there are other pregnancy complications. Id. at ¶ 32. PPE is used at every visit. Id. Moreover, a pregnant patient may make multiple visits to the hospital before she is in active labor. Id. at ¶ 34 An actual birth is attended by multiple medical care providers, involves extensive PPE, and can require a hospital stay ranging from 24-96 hours, or even longer. Id.
Currently, there are only three licensed abortion clinics in Alabama: Plaintiff Reproductive Health Services (“RHS”) in Montgomery; Plaintiff West Alabama Women’s Center (“WAWC”) in Tuscaloosa; and Plaintiff Alabama Women’s Center (“AWC”) in Huntsville. Gray Decl. ¶ 1; Suppl. Compl. ¶ 16. AWC is the only clinic in the state that provides abortion care after 14 weeks LMP. Robinson Decl. ¶ 13. These outpatient clinics provide over 99% of abortions performed in the state.11
The window during which a patient can obtain an abortion in Alabama is limited. Pregnancy is generally forty weeks in duration, and Alabama prohibits abortion except in narrow circumstances after twenty weeks. Id. at ¶¶ 11, 32,; see also Ala. Code § 26-23B-5. Patients generally seek abortion as soon as they are able, but many face logistical obstacles that can delay access to abortion care. Robinson Decl. ¶ 17. Patients will need to schedule an appointment, gather the resources to pay for the abortion and related costs, and arrange transportation to a clinic, and
11 Ala. Dep’t of Health, Ala. Center for Health Statistics, Vital Statistics, Induced Terminations of Pregnancy, Residents of Alabama, 2018, http://www.alabamapublichealth.gov/healthstats/assets/itop2018al%20.pdf
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possibly time off of work (without paid sick leave) or childcare during appointments. Gray Decl. ¶¶ 6, 19, 22-23; Robinson Decl. ¶ 17. Delays result in higher financial and emotional costs to the patient. Gray Decl. ¶ 19. These obstacles and delays are only exacerbated when a patient can no longer obtain an abortion in the city where or close to where she lives, and must instead travel extended distances to obtain abortion services. Gray Decl. ¶ 20. These burdens fall most heavily on the low-income women who make up the vast majority of Plaintiffs’ patients, many of whom do not have access to reliable transportation or the financial resources to travel to a distant city or state to obtain medical care, and also on those who are victims of domestic violence, who must overcome exceptional hurdles to obtain an abortion without their abusers’ knowledge. Suppl. Compl. ¶ 113; Gray Decl. ¶ 22-23; Robinson Decl. ¶ 17. See generally Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330, 1355–60 (M.D. Ala. 2014). The COVID-19 pandemic has only exacerbated existing burdens on patients seeking abortion care. Robinson Decl. ¶ 18. It has limited public transit availability, caused layoffs and other work disruptions, shuttered schools and childcare facilities, and otherwise limited patients’ options for transportation and childcare support during a time of recommended social-distancing and shelter-in-place orders. Gray Decl. ¶ 23; Robinson Decl. ¶ 18.
Meanwhile, Alabama law contains a web of medically unnecessary abortion restrictions that impose burdens that weigh even more heavily during the current pandemic and that further undermine any conceivable state interest in this case. Robinson Decl. ¶ 19. For example, Alabama law imposes an entirely unnecessary and unjustified “two-visit” requirement on most patients seeking abortions, see Ala. Code § 26-23A-4(a) (requiring most patients to be provided certain state-mandated abortion counseling “in-person” at least 48 hours prior to the abortion); Robinson Decl. ¶ 19. In addition, Alabama law requires an “in person” physical exam for every medication
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abortion patient, see Ala. Code § 26-23E-7, and also imposes medically unnecessary ultrasound and laboratory testing requirements, see, e.g., Ala. Code § 26-23A-4(b)(4); Ala. Admin. Code 4205-1-.03(4)(d); Robinson Decl. ¶ 19, that effectively prohibit the use of telemedicine—even though “[m]edical abortion can be provided safely and effectively via telemedicine with a high level of patient satisfaction . . . [and] the model appears to improve access to early abortion in areas that lack a physician health care provider.”12 In fact, the Alabama Board of Medical Examiners (“ALBME”) has issued an order “encourage[ing] [health care providers] to communicate with patients, and provide telehealth services, through remote technologies,” including the “the prescribing of controlled substances using telemedicine . . . to patients for whom they have not conducted an in-person medical evaluation.”.13 The State Public Health Officer could further minimize risks to patients and health care providers, while preserving access to essential health care and PPE, by similarly using his broad emergency powers to waive these medically unnecessary in-person requirements, but has not done so. Robinson Decl. ¶ 29. C. Plaintiffs’ Response to the COVID-19 Crisis and Emergency Orders
Plaintiffs are committed to doing their part to “flatten the curve,” protect patients and staff, and minimize the use of PPE. Indeed, even before the State Health Officer issued any emergency orders, Plaintiffs had taken numerous proactive steps in this direction, including by imposing stringent social distancing measures at their clinics. Gray Decl. ¶¶ 8-14; Robinson Decl. ¶¶ 22-26. Plaintiffs’ continued provision of abortions, under circumstances modified to respond to the
12 ACOG, Medical Management of First-Trimester Abortion, Practice Bulletin No. 143, at 12 (2014). 13 ALBME, Joint Not. of Enforcement Discretion by the [ALBME] and the Alabama State Board of Pharmacy (emphasis in original), Mar. 23, 2020, https://www.alabamapublichealth.gov/legal/assets/notice-examinerpharmacy-enforcement-032320.pdf
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COVID-19 crisis, was consistent with guidance issued by leading national medical associations,
including:
● The Ambulatory Surgery Center Association’s COVID-19: Guidance for ASCs for Necessary Surgery, issued March 18, 2020, which states that consideration of whether delay of a surgery is appropriate must account for risk to the patient of delay, “‘including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.’”14
● The Joint Statement by ACOG, the American Association of Gynecologic Laparoscopists, et al., on Elective Surgeries,15 issued March 16, 2020, which states that “Obstetric and gynecologic procedures for which a delay will negatively affect patient health and safety should not be delayed. This includes gynecologic procedures and procedures related to pregnancy for which delay would harm patient health. Obstetrician–gynecologists and other health care practitioners should be aware of the unintended impact that policies responding to COVID-19 may have, including limiting access to time-sensitive obstetric and gynecological procedures.”
● The Joint Statement by the ACOG, the American Board of Obstetrics & Gynecology, et al., on Abortion Access During the COVID-19 Outbreak,16 issued March 18, 2020, which states that to “the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure’ because it ‘is an essential component of comprehensive health care’ and ‘a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”
The continued provision of abortion care was likewise consistent with the CMS guidance initially
relied upon by the Department. See CMS Recommendations. As demonstrated above, abortion is
time-sensitive medical care. Id. (factors to be considered in deciding whether surgeries should
proceed include “[u]rgency of the procedure”). Moreover, because medication abortion occurs at
14 See also Am. Surgical Ctr. Ass’n, COVID-19: Guidance for ASCs on Necessary Surgeries (last updated Mar. 19, 2020), https://www.ascassociation.org/asca/resourcecenter/ latestnewsresourcecenter/covid-19/covid-19-guidance (quoting Am. Coll. of Surgeons, COVID-19: Recommendations for Management of Elective Surgical Procedures (Mar. 13, 2020), https://www facs.org/aboutacs/covid-19/information-for-surgeons/elective-surgery).
15 Am. Ass’n of Gynecologic Laparoscopists et al., Joint Statement on Elective Surgery During COVID-19 Pandemic (Mar. 16, 2020), https://www.aagl.org/news/joint-society-message-on-covid-19/.
16 ACOG et al., supra.
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home, because over 99% of procedural abortions in Alabama are performed in the outpatient setting, and because complications from abortion requiring hospital treatment are vanishingly rare, neither method of abortion burdens hospital staff and facilities, let alone requires the use of ICU beds and ventilators. Robinson Decl. ¶ 31. Similarly, because neither method requires an inpatient hospital stay, neither method leaves a patient at risk for contracting COVID-19 during recovery. See CMS Recommendations (factors to be considered in deciding whether surgeries should proceed include surgeries’ impact on “the supply of [PPE], hospital and intensive care unit beds, and ventilators”). D. The March 27 Order and the Resulting Impact
In the week between the March 20 and March 27 Orders, news articles reported that abortion was considered an “essential” health procedure under the emergency orders.17 Plaintiffs received calls from anti-abortion protesters demanding to know why they were still open, and antiabortion activists are believed to have contacted the Governor and the Attorney General to complain that abortion clinics were still open, see Robinson Decl. ¶¶ 38-39; “Abolitionists of Alabama” Messages, attached to Robinson Decl. as Attachments 1 & 2.
On March 27, 2020, the Department issued a new order mandating the postponement of all surgical and medical procedures not necessary to treat an “emergency medical condition”18 or
17 See, e.g., Abbey Crain, Alabama abortion clinics deemed essential amid COVID-19 business closures, AL.com, Mar. 25, 2020, https://www.al.com/news/2020/03/alabama-abortion-clinics-deemed-essential-amid-covid-19business-closures.htm 18 The Order defines an “emergency medical condition” as “a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances, and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected by a person’s licensed medical provider to result in placing the health of the person in serious jeopardy or causing serious impairment to bodily functions or serious dysfunction of bodily organs.” March 27 Order at 4.
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“avoid serious harm from an underlying condition.” March 27 Order at 4. That afternoon, counsel

for Plaintiffs reached out to counsel for ADPH, stating:

As you know we represent Alabama abortion providers. They have already taken all necessary and feasible steps to protect the health and safety of their patients and staff while continuing to provide only that care which is essential to patient health and cannot be delayed without risk to patient health.

We have now become aware of a new order effective March 28, 2020, at 5 p.m. regarding postponement of dental, medical or surgical procedures with exceptions.

As you may know, the Joint Statement by the American College of

Obstetricians and Gynecologists, the American Board of Obstetrics &

Gynecology, et al., on Abortion Access During the COVID-19 Outbreak,

issued March 18, 2020, states that to “the extent that hospital systems or

ambulatory surgical facilities are categorizing procedures that can be delayed

during the COVID-19 pandemic, abortion should not be categorized as such

a procedure” because it “is an essential component of comprehensive health

care” and “a time-sensitive service for which a delay of several weeks, or in

some cases days, may increase the risks [to patients] or potentially make it

completely

inaccessible.” See https://www.acog.org/news/news-

releases/2020/03/joint-statement-on-abortion-access-during-the-covid-19-

outbreak.

We believe that medication abortion is not a procedure within the terms of the order and that surgical abortion procedures fall within the exceptions. If the department disagrees and intends to enforce the order against the clinics, please let us know before the effective date and time of the order so that we may seek the appropriate legal relief.

Email from Randall Marshall to Dana Billingsley (Mar. 27, 2020, 4:00 p.m.), attached to Marshall
Decl. as Attachment 3. Counsel for ADPH did not respond, and instead referred the request for
clarification to the Office of the Attorney General who responded that evening, as follows:
The Alabama Department of Public Health referred your inquiry to our office. As the order indicates, procedures are exempt from mandatory postponement only if they meet the criteria set out in 7a. or b.

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The Attorney General has issued enforcement guidance that is available for your review at the following link: https://www.alabamaag.gov/Documents/files/03-27-2020GuidanceEnforcementStateHealthOrder.pdf. Email from Katherine Robertson to Randall Marshall (Mar. 27, 2020, 8:23 p.m.), attached to Marshall Decl. as Attachment 4. The Attorney General’s “Guidance for Law Enforcement” explains that each violation of the March 27 Order constitutes a misdemeanor under Ala. Code § 22-2-14. See Steve Marshall, Attorney General, Guidance for Law Enforcement, Mar. 27, 2020, attached to Pls.’ Supplemental and Partially Verified Compl. for Declaratory and Injunctive Relief as Ex. D. The guidance goes on to state (emphasis in the original): “While the unprecedented nature of this pandemic and the government’s evolving response seem to demand some restraint related to criminal enforcement of this order, if a violator has been made aware of the state health order and the refusal to comply presents a threat to public health and safety, [criminal penalties] are available as an enforcement tool.” Id. On March 28, 2020, Plaintiffs’ counsel again wrote to counsel for the ADPH and the Attorney General requesting clarification: As noted in our original email, we interpret the order not to apply to medication abortion because it is neither a surgery nor a procedure, or to apply to surgical abortions because they fall within the exceptions. If the Attorney General or the Department disagrees and intends to enforce the order against the clinics and physicians that provide medication and/or surgical abortions, please let us know before the effective date and time of the order so that we may seek the appropriate legal relief. Email from Randall Marshall to Katherine Robertson (Mar. 28, 2020, 9:27 a.m.), attached to Marshall Decl. as Attachment 5. Receiving no response, on the morning of March 29, Plaintiffs’ counsel once again wrote to Defendants’ counsel, informing them of Plaintiffs’ intention to sue if assurances that they could
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continue to provide abortion care were not forthcoming. Email from Randall Marshall to Katherine Robertson et al. (Mar. 29, 2020, 9:11 a.m.), attached to Marshall Decl. as Attachment 6.. Later that afternoon, Plaintiffs received an email from the Office of the Attorney General, stating: “Per the order, we are unable to provide you with a blanket affirmation that abortions will, in every case, fall within one of the exemptions.” Email from Katherine Robertson to Randall Marshall (Mar. 29, 2020, 2:23 p.m.), attached to Marshall Decl. as Attachment 7. Plaintiffs filed the instant request for injunctive relief the next day.
Plaintiffs have already had to cancel appointments for 17 patients who were scheduled for this week. Gray Decl ¶ 18. If an injunction does not issue, they will be forced to cancel or turn away hundreds more. Gray Decl. ¶ 18; Robinson Decl. ¶¶ 7-8. Patients that have already had their appointments cancelled have been devastated; in many instances the calls cancelling the appointments have ended in tears. Gray Decl. ¶19; Doe Decl. ¶¶ 15-16. In the best case scenario, absent an injunction, patients will have their abortions delayed, increasing the risk to their health and the cost of the procedure. Gray Decl. ¶ 24; Robinson Decl. ¶¶ 7-8, 46-47, 50-51. In many other instances, however, they will be unable to have an abortion at all and will be forced to bear a child against their will. Gray Decl. ¶ 24; Robinson Decl. ¶¶ 7-8, 52-54. All will face the enormous anxiety and distress of not knowing whether they will be able to get the care they need. See generally Doe Decl.; Gray Decl. ¶ 24; Robinson Decl. ¶¶ 46-54.
ARGUMENT Plaintiffs seek an ex parte TRO, and thereafter, a preliminary injunction, to prevent the March 27 Order from inflicting imminent and irreparable injury on Plaintiffs’ patients who will be deprived health care necessary to protect themselves from serious harm, along with ability to exercise their constitutional rights. As set forth in Plaintiffs’ motion the requirements for an ex
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parte TRO have been met. See Fed. R. Civ. P. 65(b)(1). Moreover, as is discussed further below, Plaintiffs are entitled to injunctive relief because the following four factors weigh heavily in Plaintiffs’ favor: (1) whether the movant has a substantial likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether threatened injury to the movant outweighs any damage the proposed injunction would cause the opposing party; and (4) whether entry of relief in Plaintiffs’ favor is in the public interest. See McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998).
Here, Defendants interpretation of the March 27 Order to prohibit pre-viability abortions directly contravenes decades of binding Supreme Court precedent, and is wholly unjustified by the current crisis. Moreover, injunctive relief will prevent severe and irreparable harm to Plaintiffs’ patients; is consistent with the balance of hardships; and serves the public interest. Accordingly, this Court should grant Plaintiffs’ request for injunctive relief. I. PLAINTIFFS WILL SUCCEED ON THE MERITS OF THEIR SUBSTANTIVE
DUE PROCESS CLAIM. Plaintiffs are certain to succeed on the merits of their claim that applying the March 27 Order to prohibit pre-viability abortions violates Plaintiffs’ patients’ constitutional rights. As this Court recently recognized, “banning abortion before viability violates Supreme Court precedent” and “contravenes established law.” Robinson v. Marshall, 415 F. Supp. 3d 1053, 1057–58 (M.D. Ala. 2019). Specifically, as this Court recognized, the Supreme Court held in Roe v. Wade, 410 U.S. 113 (1973), that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution protects a woman’s right to choose abortion, 410 U.S. at 153–54, and that prior to viability, a state may not ban abortion, id. at 163–65. Rather, a state may proscribe abortion only after viability, and even then, it must allow abortion where necessary to preserve the life or health
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of the patient. Id. at 163–64. The Supreme Court has repeatedly reaffirmed this core holding, including as recently as 2016. See, e.g., Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 846, 871 (1992)..
Unsurprisingly, attempts to ban abortion prior to viability have been uniformly rejected by appellate courts across the country. See, e.g., Jackson Women’s Health Org. v. Dobbs, 951 F.3d 246, 248 (5th Cir. 2020) (per curiam) (“Jackson III”) (ban on abortions starting at six weeks); Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 268–69 (5th Cir. 2019) (“Jackson II”) (ban on abortions starting at fifteen weeks); MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 772–73 (8th Cir. 2015) (ban on abortions after six weeks), cert. denied, 136 S. Ct. 981 (2016); Edwards v. Beck, 786 F.3d 1113, 1117–19 (8th Cir. 2015) (ban on abortions after twelve weeks), cert. denied, 136 S. Ct. 895 (2016); Isaacson v. Horne, 716 F.3d 1213, 1217, 1231 (9th Cir. 2013) (ban on abortions starting at twenty weeks), cert. denied, 571 U.S. 1127 (2014); Jane L. v. Bangerter, 102 F.3d 1112, 1117–18 (10th Cir. 1996) (ban on abortions starting at twenty weeks), cert. denied, 520 U.S. 1274 (1997); Sojourner T. v. Edwards, 974 F.2d 27, 29, 31 (5th Cir. 1992) (ban on all abortions), cert. denied, 507 U.S. 972 (1993); Guam Soc’y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1368–69, 1371–72 (9th Cir. 1992) (ban on all abortions), cert. denied, 506 U.S. 1011 (1992).
Defendants may argue that the March 27 Order is not a ban because it permits some— albeit an unknown quantity—pre-viability abortions that Defendants believe fit the Order’s exceptions. Defendants may also argue that because of the current crisis, this Court should apply the undue burden balancing test that applies to abortion regulations, rather than the “bright-line rule” set forth above that governs abortion bans. Robinson, 415 F. Supp. 3d at 1056. Under that balancing test, a regulation that, “while furthering [a] valid state interest, has the effect of placing
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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 (alteration in the original) (quoting Casey, 505 U.S. at 877). This test “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Id. at 2309. 19
Neither argument withstands scrutiny. “Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Casey, 505 U.S. at 879. Thus, the availability of abortions for some women “does not [] alter the nature of the burden” the March 27 Order imposes on those whom ADPH or the Attorney General deem do not meet its exceptions. Horne, 716 F.3d at 1227. Indeed, as this Court and others have specifically recognized, “[a] medical exception cannot save an otherwise unconstitutional ban,” Robinson, 415 F. Supp. 3d at 1058 (internal quotation marks and citation omitted); see also Horne, 716 F.3d. at 1227 (holding a “law’s emergency exception does not transform it from a ban into a limitation as to the mode or manner of conducting abortions . . . even with a medical emergency exception, a proscription on a woman's choice to undergo an abortion remains invalid.); West Ala. Women’s Center v. Miller, 299 F. Supp. 3d 1244, 1283 (M.D. Ala. 2017) (“WAWC III”) (holding that a “health-exception . . . does not nullify the burden the fetal-demise requirement creates on women's access to secondtrimester abortion”). What is more, the Department’s and Attorney General’s refusals to provide any guidance as to what the exceptions mean, and the Attorney General’s written guidance
19 Defendants may additionally argue that the March 27 Order is not a ban because it is limited in duration, even though no one—particularly not Defendants—can say with any certainty how limited it actually is. This is irrelevant. First, there is no authority holding that a state may ban abortion for weeks at a time, so long as it intends to lift the ban at some unknown point in the future. Second, it is extremely unlikely that the crisis will be over in a matter of weeks. See supra.. Third, even a three-week delay unnecessarily jeopardizes patient health, and will prevent some patients from obtaining an abortion altogether. Robinson Decl. ¶¶ 7-8, 46-55. As set forth below, no state interests justify these harms.
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concerning prosecution of violations of the March 27 Order, make it extremely unlikely that except in extraordinary circumstances any provider would risk the “tender mercies of a prosecutor’s discretion and the vagaries of a jury’s decision” and continue to provide abortions under the Order. West Ala. Women’s Center v. Williamson, 900 F.3d 1310, 1329 (11th Cir. 2018); Robinson Decl. ¶¶ 44-45.
Perhaps more importantly, even if there were emergency circumstances that could justify governmental action forcing pregnant people to remain pregnant against their will – and even if it were appropriate to balance the burdens of banning abortions against the benefits it confers – the application of the March 27 Order to pre-viability abortions would be unconstitutional. As detailed below, nothing about the COVID-19 crisis justifies banning abortion and the burdens imposed by doing so are significant.
First, the State cannot demonstrate that prohibiting abortion, a “time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible,” ACOG et al., supra, advances any COVID-19 related interests. The stated purpose of the March 27 Order is to implement “further social distancing measures . . . to prevent the spread of COVID-19.” March 27 Order at 1.20 However, patients who are prohibited from obtaining abortions must seek prenatal care and will likely have to make at least one (if not multiple) trips to health care facilities—meeting with multiple health care providers—for the duration of the March 27 Order, as well as any likely extension of that (or a subsequent) order. Robinson Decl. ¶¶ 32-33, 35. Those with complicated pregnancies will require even more interventions. Id. at ¶ 32. Some of these patients will ultimately give birth, requiring
20 Although the March 27 Order does not state that the preservation of PPE is one of its purposes, as explained above, see supra, the provision on abortion care uses little PPE and far less than what is needed for prenatal care and delivery.
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the patient to be admitted to one of the State’s already over-burdened hospitals for multiple days. Id. at ¶ 34.21 By contrast, over 99% of abortions in Alabama are performed outside the hospital in Plaintiffs’ outpatient facilities. See id. at ¶ 31. Moreover, prohibiting abortion will force some patients to attempt to travel to other states to try to access abortion care, and potentially using public transportation, even though public health experts have advised the public to minimize activities outside the home. Id. at ¶¶ 50-51. Finally, because “pregnant women are known to be at greater risk of severe morbidity and mortality from other respiratory infections such as influenza and SARS-CoV,” and should be considered an “at-risk population for COVID-19,”22 forcing people to remain pregnant against their will actually increases the risk to the public health.
Second, circumstances strongly suggest that what began as a reasonable public health approach to the COVID-19 crisis, has now devolved into a politically-motivated attempt to use the State Public Health officer’s emergency powers to prohibit abortions. See Marshall Decl. ¶¶ 2-14; Robinson Decl. ¶¶ 38-40; see also n.17, supra. To begin with, the plain language of the March 27 Order should not apply to pre-viability abortions. The March 27 Order contains two exceptions: one for immediate emergency medical care and one for care that is necessary to avoid serious harm to the patient—regardless of whether the patient’s condition has deteriorated to the point that the need for medical care is urgent and regardless of whether a given procedure could be delayed for some set period of time without unduly jeopardizing patient health. All abortions protect the health
21 See, e.g., Jayme Fraser & Matt Wynn, US hospitals will run out of beds if coronavirus cases spike, USA TODAY, Mar. 13, 2020 (estimating that there will be 12-14 seriously ill patients per available hospital bed in Alabama), https://www.usatoday.com/in-depth/news/investigations/2020/03/13/us-hospitals-overwhlemed-coronavirus-casesresult-in-too-few-beds/5002942002/. 22 ACOG, Practice Advisory - Novel Coronavirus 2019 (COVID-19) (last updated Mar. 13, 2020), https://www.acog.org/clinical/clinical-guidance/practice-advisory/articles/2020/03/novel-coronavirus-2019; see also Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID-19 and Pregnant Women (last updated Mar. 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/pregnant-women-faq.html.
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of the person who does not want to continue their pregnancy to term. See Robinson Decl. ¶ 41. By taking the position that the March 27 Order nonetheless bans some pre-viability abortions, the Attorney General belies an intention to prohibit abortion for its own sake. This is not a legitimate state interest. See Casey, 505 U.S. at 877 (“A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”).
Nor is there any rational justification for the Department’s and Attorney General’s refusal to clarify that medication abortion, which only involves taking medications by mouth, is not “surgery” or a “procedure” under the terms of the March 27 Order. Indeed, it is difficult to imagine any context other than abortion where the ADPH would refuse to clarify for its licensees the terms of its own orders—particularly where violations of that order carry criminal penalties. Moreover, as discussed above, as between medication or procedural abortions—let alone as between any abortion at all and continuing a pregnancy to term—medication abortion requires the least health care resources and uses the least PPE. Robinson Decl. ¶ 30. Once again, the refusal to provide any clarity as to what abortions ADPH or the Attorney General believe constitute criminal acts under the March 27 Order belies a desire to prohibit abortion, not to preserve even some access to essential health care.
Moreover, prohibiting patients from exercising their constitutional right to abortion becomes even more difficult to justify when viewed against the other activities that are still permissible in Alabama. As just one example, the need for social distancing clearly is not so great as to prevent the Alabama Alcoholic Beverage Control Board from issuing an “emergency rule”
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permitting the sale of alcoholic beverages for off-site consumption using “curbside pick-up or take-out services.” Ala. Admin. Code r. 20-X-6-.19 (Mar. 24, 2020).23 Indeed, the State Public Health Officer has effectively deemed such businesses “essential,” and refrained from ordering their closure or from prohibiting their employees traveling to and from work every day and interacting with customers. See March 27 Order. However, Plaintiffs and their staff cannot continue to interact with their patients to provide time-sensitive, constitutionally protected medical services – even to hand them medications – except in extremely narrow circumstances.
What is more, Paragraph 9 of the March 27 Order expressly permits “organizers and sponsors of otherwise suspended events” to seek an exemption from the Order’s terms, and states “[w]hile the State Health Officer is under no obligation to grant such an exemption, it shall be fairly considered based on the following criteria”:
a. Effective measures have been taken to identify those attending the event who may potentially be affected with COVID-19, including but not limited to personal testing for the disease or submission of current medical clearances to the organizer. b. Effective measures have been taken to prevent the spread of infection even by those that are infected while not symptomatic, including the provision of anti-infection measures such as proper face masks [PPE], personal sanitation measures, and other measures that may be considered proper. As the Department is aware, Plaintiffs have taken substantial steps to be able to continue to provide essential health care—care that is “central to personal dignity and autonomy,” Robinson, 415 F. Supp. 3d at 1059—while protecting their patients and staff. Marshall Decl. ¶¶ 6-7; Robinson Decl. ¶¶ 22-26; see also Gray Decl. ¶¶ 8-14. Yet, while the Department is apparently willing to at least consider whether these measures may be sufficient to allow sponsored gatherings to take place in
23 Available at, https://www.alabamapublichealth.gov/legal/assets/order-abc-curbside-sales032420.pdf.
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Alabama in the midst of the COVID-19 crisis, neither the Department or the Attorney General is willing to consider these measures sufficient to permit individuals to exercise their constitutional right to decide whether and when to bear a child. In effect, the State has effectively achieved through emergency measures in 2020 what the legislature could not in 2019: a near-total ban on abortions.
While the benefits of prohibiting pre-viability abortion during the COVID-19 crisis are virtually non-existent (if not wholly pretextual), the burdens are significant. Indeed, this Court has addressed the effects of preventing patients from accessing abortion—even temporarily—imposes on women in Alabama no less than four times over the past six years. See Robinson, 415 F. Supp. 3d at 1058-59; Miller, 217 F. Supp. 3d at 1327–1332; W. Ala. Women’s Ctr. v. Williamson, 120 F. Supp. 3d 1296, 1309–12 (M.D. Ala. 2015); Strange, 33 F. Supp. 3d at 1355–63. As applied, the March 27 Order will prevent women who would have obtained abortions from obtaining them to the detriment of their health and wellbeing; delay others’ access to abortion, also to the detriment of their health and wellbeing; and impose other physical, emotional, and dignitary harms on patients and their families. Doe Decl. ¶¶ 5-6, 15-16; Gray Decl. ¶¶ 7, 18-24; Robinson Decl. ¶¶ 46-55. And “[e]very one of them will suffer the anxiety that comes with not knowing whether they will face the life-altering consequences of having to continue a pregnancy against their will.” Gray Decl. ¶ 24. Moreover, as discussed above, while abortion is always safer than continuing a pregnancy to term, the risks of carrying a pregnancy to term are heightened in light of the COVID19 crisis. These burdens will fall particularly harshly on racial minorities, people with lowincomes, and people experiencing domestic violence and abuse—communities already hard-hit by the physical, economic, and social implications of the COVID-19 crisis. Suppl. Compl. ¶¶ 111115. Further, prohibiting abortion increases the risk that some people “who desperately seek to
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exercise their ability to decide whether to have a child [will] take unsafe measures to end their pregnancies.” Strange, 33 F. Supp. 3d at 1363; see also W. Ala. Women’s Ctr., 120 F. Supp. 3d at 1309-12. Finally, when the March 27 Order is finally lifted, it is likely to strain the capacity of existing remaining providers to care for women in need of abortion services. Robinson Decl. ¶¶ 48-49. As such, the burdens of the March 27 Order, as applied by Defendants, far outweigh its putative benefits and is therefore unconstitutional. See Casey, 505 U.S. at 878 (“Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”); see also Hellerstedt, 136 S. Ct. at 2309. II. PLAINTIFFS’ PATIENTS WILL SUFFER IRREPARABLE HARM IF THE
MARCH 27 ORDER IS ENFORCED AGAINST PRE-VIABILITY ABORTIONS. Plaintiffs’ patients will suffer serious and irreparable harm in the absence of a temporary restraining order and preliminary injunction. First, the application of the March 27 Order to previability abortions violates the constitutional right to privacy, which inflicts per se irreparable harm. See Robinson, 415 F. Supp. 3d at 1058 (“[A]ny ongoing violation of the constitutional right to privacy constitutes ‘irreparable injury.’”) (internal citations omitted); see also Ne. Fla. Chapter of Ass’n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (citing Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B Nov. 1981)); Planned Parenthood Se., Inc. v. Bentley, 951 F. Supp. 2d 1280, 1289 (M.D. Ala. 2013). And, as demonstrated above, forcing patients to forgo abortion care and remain pregnant against their will inflicts serious physical, emotional, and psychological consequences that alone constitute irreparable harm. See also Roe, 410 U.S. at 153 (“The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.”); Bentley, 951 F. Supp. 2d at
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1289. This “disruption or denial of . . . patients’ health care cannot be undone after a trial on the merits.” Planned Parenthood of Kan. & Mid-Mo. v. Andersen, 882 F.3d 1205, 1236 (10th Cir. 2018) (internal quotation marks omitted), cert. denied sub nom. Andersen v. Planned Parenthood of Kan. & Mid-Mo., 139 S. Ct. 638 (2018). That the State would inflict these irreparable harms on Alabamians in the midst of an unprecedented global pandemic, putting them at greater risk of complications from COVID-19, only underscores the need for injunctive relief. III. THE BALANCE OF HARMS AND PUBLIC INTEREST SUPPORT INJUNCTIVE
RELIEF. Plaintiffs’ requested relief will “essentially continue[] the status quo,” tipping the balance of equities toward Plaintiffs and serving the public interest. Jackson Women’s Health Org. v. Currier, 940 F. Supp. 2d 416, 424 (S.D. Miss. 2013), aff’d, 760 F.3d 448 (5th Cir. 2014). In addition, given the likelihood that the March 27 Order will be extended, it is likely that many of Plaintiffs’ patients will be forced to forgo an abortion entirely and carry an unwanted pregnancy to term. Where civil rights are at stake, an injunction serves the public interest because the injunction “would protect the public interest by protecting those rights to which it too is entitled.” Nat’l Abortion Fed’n v. Metro. Atlanta Rapid Transit Auth., 112 F. Supp. 2d 1320, 1328 (N.D. Ga. 2000); see also Jackson Women’s Health Org., 940 F. Supp. 2d at 424 (“[T]he grant of an injunction will not disserve the public interest . . . when an injunction is designed to avoid constitutional deprivations.”). Moreover, as set forth more fully above, the non-existent benefits of forcing patients to remain pregnant against their will is outweighed by the harm of eliminating abortion access in the midst of a pandemic that increases the risks of continuing an unwanted pregnancy, as well as the risks of traveling to other states in search of time-sensitive medical care.
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Particularly where Plaintiffs are already taking steps to protect the safety of their patients and staff, injunctive relief here is supported by the balance of harms and the public interest. IV. A BOND IS NOT NECESSARY IN THIS CASE.
This Court should waive the Federal Rule of Civil Procedure 65(c) bond requirement. As the Eleventh Circuit held in BellSouth Telecommunications, Inc. v. MCIMetro Access Transmission Services, LLC, “it is well-established that ‘the amount of security required by the rule is a matter within the discretion of the trial court . . . [, and] the court may elect to require no security at all.’” 425 F.3d 964, 971 (11th Cir. 2005) (quoting City of Atlanta v. Metro. Atlanta Rapid Transit Auth., 636 F.2d 1084, 1094 (5th Cir. Unit B 1981)). The Court should use its discretion to waive the requirement in this case, as the preliminary injunction will not result in a monetary loss for Defendant. Moreover, Plaintiffs are healthcare providers dedicated to serving low-income and underserved communities, and a bond would strain their already-limited resources.
CONCLUSION For these reasons, this Court should grant Plaintiffs’ motion for a temporary restraining order and, following that, a preliminary injunction to enjoin enforcement of the March 27 Order to prohibit pre-viability abortions.
Dated: March 30, 2020
Respectfully submitted, /s/Alexa Kolbi-Molinas Alexa Kolbi-Molinas * New York State Bar No. 4477519 Meagan Burrows * New York State Bar No. 5341904 29

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AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 akolbi-molinas@aclu.org mburrows@aclu.org (212) 519-7845 Randall C. Marshall ASB-3023-A56M P.O. Box 6179 Montgomery, AL 36106-0179 (334) 265-1747 rmarshall@aclualabama.org Attorneys for Plaintiffs Yashica Robinson, M.D., Alabama Women’s Center, Reproductive Health Services, and West Alabama Women’s Center *Admitted Pro Hac Vice
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CERTIFICATE OF SERVICE I hereby certify that on March 30, 2020, I electronically filed the foregoing with the Clerk of Court for the United States District Court for the Middle District of Alabama using the CM/ECF system, thereby serving all counsel of record, and served the State Public Health Officer, Proposed Defendant Scott Harris, by and through his attorneys through the email addresses below: ● Brian Hale, brian.hale@adph.state.al.us ● Dana Billingsly, dana.billingsley@adph.state.al.us
/s/ Randall Marshall Randall Marshall Attorney for Plaintiffs Yashica Robinson, M.D., Alabama Women’s Center, Reproductive Health Services, and West Alabama Women’s Center
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Case 2:19-cv-00365-MHT-JTA Document 73-2 Filed 03/30/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, M.D, et al.,

Plaintiffs,

v.

CIVIL ACTION

STEVEN MARSHALL, et al.,

Case No. 2:19-cv-365-MHT-SMD

Defendants.

[PROPOSED] TEMPORARY RESTRAINING ORDER Plaintiffs Yashica Robinson, M.D., Alabama Women’s Center, Reproductive Health Services, and West Alabama Women’s Center have moved for an ex parte temporary restraining order (“TRO”) pursuant to Rule 65(b)(1) of the Federal Rules of Civil Procedure, seeking to block enforcement of the State Public Health Officer’s March 27, 2020 “Order of the State Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19” (the “March 27 Order”) to prohibit pre-viability abortions. The Court, having considered the pleadings, legal authority, and argument presented in support of Plaintiffs’ Motion, as well as the sworn declarations submitted with that Motion, has found and concluded, for the specific reasons required under Federal Rule of Civil Procedure 65(d) that Plaintiffs have shown (1) a likelihood of success on the merits, (2) that they will suffer irreparable harm if a TRO is not granted, (3) that the balance of equities tip in Plaintiffs’ favor, and (4) that a temporary restraining order is in the public interest. Plaintiffs have established a likelihood of success on the merits of their claim that the March 27 Order violates Plaintiffs’ patients’ right to privacy under the Fourteenth Amendment

Case 2:19-cv-00365-MHT-JTA Document 73-2 Filed 03/30/20 Page 2 of 3
of the U.S. Constitution by banning pre-viability abortions, and that nothing about the COVID19 crisis justifies forcing Plaintiffs’ patients to continue their pregnancies against their will. Plaintiffs have also established that, absent emergency relief preventing the enforcement of the March 27 Order, Plaintiffs’ patients will be denied the ability to have an abortion and will therefore suffer irreparable constitutional, medical, emotional, psychological, and other harms, for which there is no adequate remedy at law. Finally, the balance of hardships favors Plaintiffs because a TRO would preserve the status quo and a TRO is in the public interest.
The Court further finds that issuance of a temporary restraining order without a hearing and without notice to Defendants or providing them an opportunity to respond is warranted. Plaintiffs have made a showing that immediate and irreparable injury will result to Plaintiffs’ patients before Defendants can be heard in opposition if the March 27 Order is enforced. Further, Plaintiffs have certified that they informed Defendants that Plaintiffs would seek emergency relief if the matter could not otherwise be resolved. See Decl. of Randall Marshall in Support of Pls.’ Mot. for a TRO and Prelim. Inj. (Doc. No. ___).
The Court also finds that no security is required under Fed. R. Civ. P. 65(c). IT IS THEREFORE ORDERED that Defendants, as well as their agents, employees, servants, attorneys, successors and any persons in active concert or participation with them, are TEMPORARILY RESTRAINED from enforcing, threatening to enforce, or otherwise requiring Plaintiffs to show compliance with the March 27 Order. This Temporary Restraining Order shall expire on _________, 2020 at _______ _.m., unless extended by the Court for good cause shown, or by agreement of the parties. IT IS FURTHER ORDERED that the security requirement of Fed. R. Civ. P. 65(c) is waived and that this injunctive relief is effective upon service.
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Case 2:19-cv-00365-MHT-JTA Document 73-2 Filed 03/30/20 Page 3 of 3 Done this ____ day of _______________, 2020.
MYRON H. THOMPSON UNITED STATES DISTRICT JUDGE
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 Case 2:19-cv-00365-MHT-JTA Document 163 Filed 05/15/20 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, M.D, et al., Plaintiffs,
v. STEVEN MARSHALL, et al.,
Defendants.

CIVIL ACTION Case No. 2:19-cv-365-MHT-SMD

Joint Status Report Per the Court’s May 6, 2020 Order (Doc. No. 162), the Parties submit the following report setting forth their joint position on the current status of Plaintiffs’ challenge to the “medical restrictions” contained in the March 27, 2020 and the April 3, 2020 state health orders: 1. On March 30, 2020, Plaintiffs sought leave to file a Supplemental Complaint (Doc. No. 72) and filed a Motion for Temporary Restraining Order and Preliminary Injunction (Doc. No. 73) against the medical restrictions in the March 27 Order. The Court granted both leave to file an Amended Complaint and a Temporary Restraining Order the same day. Doc. Nos. 78, 83, 145. 2. Following a telephone conference with the Parties, on April 3 the Court modified the Temporary Restraining Order. Doc. No. 111. That same day, the State issued the April 3 Order, which contained the same medical restrictions. 1 Doc. No. 113. The April 3 Order was set to expire at 5:00 p.m. on April 30, 2020. Id.

1 Because the “medical restrictions” language continued in the March 27 Order merged into the April 3 Order, the parties will refer to the April 3 Order as the operative order.

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3. The Court conducted an evidentiary hearing on April 6 and granted the Preliminary Injunction on April 12. Doc. Nos. 124, 138. Defendants appealed the Preliminary Injunction on April 13 (Doc. No. 139) and filed a partial Motion to Dismiss on April 27. Doc. No. 156.
4. The April 3 Order expired at 5:00 p.m. on April 30, 2020. 5. On April 28, the State Health Officer issued an order effective April 30, 2020 at 5:00 P.M. until 5:00 P.M. on May 15, 2020, or until rescinded by the State Health Officer. See Doc. No. 159-1 ¶¶ 1, 14–15. The April 28 Order contains different language regarding “medical restrictions” than in ¶ 14 of the April 3 Order. 6. Specifically, the April 28 Order permits “dental, medical, and surgical procedures” to proceed “unless the State Health Officer or his designee determines that performing such procedures, or any category of them (whether statewide or regionally), would unacceptably reduce access to personal protective equipment or other resources necessary to diagnose and treat COVID19.” See Doc. No. 159-1 ¶ 12. 7. On May 8, the State Health Officer issued an order amending the April 30 Order (the “May 8 Order,” attached here as Exhibit A). The May 8 Order is effective until 5:00 P.M. on May 22, 2020 or until rescinded by the State Health Officer. See May 8 Order ¶¶ 16–17. 8. The May 8 Order contains the same language concerning dental, medical, and surgical procedures as contained in the April 28 Order. See id. ¶ 14. 9. The Parties agree that the April 12 Preliminary Injunction (Doc. No. 138) is now moot to the extent it was tied to the pre-existing “medical restrictions” language, which has since been lifted. 10. Accordingly, on May 5, the Parties submitted a joint motion to the Eleventh Circuit, pursuant to Fed. R. Civ. App. 42(b) and 11th Cir. R. 42-1(a), to dismiss the State’s appeal (Doc.
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No. 139) of the Preliminary Injunction (Doc. No. 138), and to transfer jurisdiction over any claim for attorneys’ fees on appeal to this Court.
11. That same day, the Eleventh Circuit granted the Parties’ motion, dismissed the State’s appeal of the Preliminary Injunction, and transferred consideration of attorney’s fees on appeal to this Court. See Doc. No. 161 at 2.
12. Now that jurisdiction has returned to this Court, the Parties believe it would be appropriate for this Court to dissolve the Preliminary Injunction as moot.
13. Defendants represent that they have no intention at this time to impose restrictions on dental, medical, or surgical procedures in future emergency orders.
14. On the basis of the Defendants’ representation, the Parties are discussing the terms of a joint dismissal without prejudice, pursuant to Fed. R. Civ. P. 41, of those portions of the First Amended Complaint (Doc. No. 79) concerning the medical restrictions language in the nowexpired April 3 Order.
15. Accordingly, the Parties propose to file a joint motion to dismiss without prejudice on or before 5:00 p.m. on May 22. If the Parties cannot come to an agreement on the terms of the dismissal, the Parties will file a joint status report on or before 5:00 p.m. on May 22, laying out the Parties’ respective positions on the appropriate resolution of the matter.

Steve Marshall, Attorney General
Edmund G. LaCour Jr. (ASB-9182-U81L) Solicitor General
A. Barrett Bowdre (ASB-2087-K29V) Deputy Solicitor General
/s James W. Davis

Respectfully submitted,
/s/Alexa Kolbi-Molinas Alexa Kolbi-Molinas * New York State Bar No. 4477519 Meagan Burrows * New York State Bar No. 5341904 AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004

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James W. Davis (ASB-4063-I58J) Brad A. Chynoweth (ASB-0030-S63K) Brenton M. Smith (ASB-1656-X27Q)
Assistant Attorneys General
OFFICE OF ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130-0152 Telephone: (334) 242-7300 Fax: (334) 353-8400 Edmund.LaCour@AlabamaAG.gov Barrett.Bowdre@AlabamaAG.gov Jim.Davis@AlabamaAG.gov Brad.Chynoweth@AlabamaAG.gov Brenton.Smith@AlabamaAG.gov

akolbi-molinas@aclu.org mburrows@aclu.org (212) 519-7845
Randall C. Marshall ASB-3023-A56M P.O. Box 6179 Montgomery, AL 36106-0179 (334) 265-1747 rmarshall@aclualabama.org
Attorneys for Plaintiffs Yashica Robinson, M.D., Alabama Women’s Center, Reproductive Health Services, and West Alabama Women’s Center

Counsel for Defendants Steve Marshall and *Admitted Pro Hac Vice State Health Officer Scott Harris

4

Case 2:19-cv-00365-MHT-JTA Document 163 Filed 05/15/20 Page 5 of 14 CERTIFICATE OF SERVICE
I hereby certify that on May 15, 2020, I electronically filed the foregoing with the Clerk of Court for the United States District Court for the Middle District of Alabama using the CM/ECF system, thereby serving all counsel of record.
/s/ Randall Marshall Randall Marshall Attorney for Plaintiffs Yashica Robinson, M.D., Alabama Women’s Center, Reproductive Health Services, and West Alabama Women’s Center
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EXHIBIT A

Case 2:19-cv-00365-MHT-JTA Document 163 Filed 05/15/20 Page 7 of 14
ORDER OF THE STATE HEALTH OFFICER SUSPENDING CERTAIN PUBLIC GATHERINGS
DUE TO RISK OF INFECTION BY COVID-19
(APPLICABLE STATEWIDE)
AMENDED MAY 8, 2020
WHEREAS Coronavirus Disease 2019 (COVID-19) has been detected in Alabama; and WHEREAS the appearance of COVID-19 in the State poses the potential of widespread exposure to an infectious agent that poses significant risk of substantial harm to a large number of people; and WHEREAS the State Board of Health has designated COVID-19 to be a disease of epidemic potential, a threat to the health and welfare of the public, or otherwise of public health importance; and WHEREAS on March 13, 2020, on recommendation of the State Health Officer, Kay Ivey, Governor of the State of Alabama, declared a state public health emergency exists in the State of Alabama; and WHEREAS on March 16, 2020, the Jefferson County Health Officer, in response to a rapidly growing number of cases of COVID-19 being detected in Jefferson County, issued an order suspending certain public gatherings in that county; and WHEREAS on March 17, 2020, the State Health Officer issued a similar order for counties surrounding Jefferson, including Blount, St. Clair, Shelby, Tuscaloosa, and Walker Counties, and WHEREAS on March 19, 2020, the State Health Officer issued an order, and on March 20, 2020, March 27, 2020, April 3, 2020, and April 28, 2020, amended orders, of statewide application suspending certain public gatherings; and WHEREAS social-distancing and related measures remain necessary on a statewide basis to prevent the spread of COVID-19; and WHEREAS Ala. Code § 22-2-2(4) authorizes the State Health Officer, on behalf of the State Board of Health, to direct that conditions prejudicial to health in public places within the State be abated; NOW THEREFORE, THESE PREMISES CONSIDERED, it is ordered that the following Safer at Home order be implemented statewide:
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1. Recommendations for individuals. Effective April 30, 2020, at 5:00 P.M., all individuals—and especially vulnerable persons—are encouraged to exercise personal responsibility in slowing the spread of COVID-19 by:
a. Minimizing travel outside the home, especially if sick;
b. Wearing face coverings around people from other households when it is necessary to leave the home;
c. Washing hands frequently with soap and water or hand sanitizer, especially after touching frequently used items or surfaces;
d. Refraining from touching one’s face;
e. Sneezing or coughing into a tissue, or the inside of one’s elbow; and
f. Disinfecting frequently used items and surfaces as much as possible.
“Vulnerable persons” means individuals 65 years and older or individuals with serious underlying health conditions, including high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune system is compromised such as by chemotherapy for cancer and other conditions requiring such therapy.
2. Quarantine for infected persons. Effective immediately, any person who has tested positive for COVID-19—other than institutionalized persons—shall be quarantined to their place of residence for a period of 14 days, or other period of time as directed by the State Health Officer, or his designee, after receiving positive test results. Any person quarantined pursuant to this provision shall not leave their place of residence for any reason other than to seek necessary medical treatment. Any person requiring assistance while under quarantine may contact Alabama Voluntary Organizations Active in Disaster, http://alvoad.communityos.org/cms. While under quarantine, the person shall take precautions as directed by his or her health care provider or the Alabama Department of Public Health to prevent the spread of the disease to others.
3. Non-work related gatherings. Effective May 11, 2020, all non-work related gatherings of any size that cannot maintain a consistent six-foot distance between persons from different households are prohibited.
Organizers of religious gatherings are strongly encouraged to read and implement the Alabama Department of Public Health’s “Guidelines for Places of Worship,” available at https://alabamapublichealth.gov/covid19/assets/cov-sah-worship.pdf.
4. Protections for employees. Effective May 11, 2020, and unless otherwise permitted or required by this order, all employers shall take reasonable steps, where practicable as work duties permit, to protect their employees by:
a. maintaining six feet of separation between employees;
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b. regularly disinfecting frequently used items and surfaces;
c. encouraging handwashing;
d. preventing employees who are sick from coming into contact with other persons;
e. facilitating remote working arrangements; and
f. minimizing employee travel.
In addition to complying with the requirements of this paragraph, employers are strongly encouraged to read and implement the Alabama Department of Public Health’s “Guidelines for Safeguarding All Businesses,” available at https://alabamapublichealth.gov/covid19/assets/covsah-businesses.pdf.
5. Protections for customers, etc. Effective May 11, 2020, and unless otherwise permitted or required by this order, the operator of any business, government office, or other establishment open to the public shall take reasonable steps, where practicable, to protect their customers, constituents, or other guests by:
a. maintaining six feet of separation between such persons (except for those persons who share the same household); and
b. regularly disinfecting frequently used items and surfaces.
6. Retailers. Effective May 11, 2020, all retail stores shall comply with the following rules:
a. Emergency maximum occupancy rate. Occupancy shall be limited to no more than 50 percent of the normal occupancy load as determined by the fire marshal. This “emergency maximum occupancy rate” shall be posted in a conspicuous place, and enough staff shall be posted at the store entrances and exits to enforce this requirement.
b. Social distancing. An employee of the retail store may not knowingly allow customers or patrons to congregate within six feet of a person from another household.
c. Sanitation. The retail store shall take reasonable steps to comply with guidelines on sanitation from the Centers for Disease Control and Prevention (CDC) and the Alabama Department of Public Health.
7. Close-contact service providers. Effective May 11, 2020, close-contact service providers—such as barber shops, hair salons, waxing salons, threading salons, nail salons and spas, body art facilities, tattoo services, and massage therapy establishments and services—shall comply with the following rules:
a. Social distancing. Employees shall not knowingly allow clients or persons accompanying a client to congregate within six feet of a person from another household.
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b. Facial coverings. Each employee shall wear a mask, or other facial covering that covers his or her nostrils and mouth, at all times while providing services within 6 feet of a client.
c. Hand sanitation.
(i) Employees shall wash their hands thoroughly with soap and water immediately before providing services within 6 feet of a client.
(ii) Employees of all close-contact service providers are encouraged—and employees providing nail services or facial services are required—to wear gloves when providing services within 6 feet of a client. To the extent employees wear gloves when providing services, they should use a new pair of gloves for each client and should put them on immediately after washing their hands.
In addition to complying with the requirements of this paragraph, close-contact service providers are strongly encouraged to read and implement the Alabama Department of Public Health’s “Guidelines for Close Contact Personal Service Businesses,” available at https://alabamapublichealth.gov/covid19/assets/cov-sah-close-contact.pdf.
8. Athletic facilities. Effective May 11, 2020, athletic facilities—such as fitness centers and commercial gyms, spas, and yoga, barre, and spin facilities—shall comply with the following rules:
a. Social distancing.
(i) Employees shall not knowingly allow patrons or guests to congregate within six feet of a person from another household.
(ii) Employees shall not knowingly allow patrons or guests to participate in any of the athletic activities prohibited in paragraph 9—including sports that involve interaction with another person of closer than 6 feet and activities that require use of shared sporting apparatus and equipment.
(iii) Employees must take reasonable steps to prevent people from congregating in lobby areas, break rooms, and other common areas.
b. Limits on facility access. An athletic facility must limit facility occupancy to 50 percent of the normal occupancy load as determined by the fire marshal. Athletic facilities must also prohibit patrons and guests from accessing showers, hot tubs, steam rooms, lockers, saunas and other recreational water or spa facilities. Pools may be open subject to the social-distancing rules of this paragraph.
c. Facial coverings. Each employee shall wear a mask or other facial covering that covers his or her nostrils and mouth at all times while in regular interaction with clients or guests.
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In addition to complying with the requirements of this paragraph, operators of athletic facilities are strongly encouraged to read and implement the Alabama Department of Public Health’s “Guidelines for Athletic Facilities,” available at https://alabamapublichealth.gov/covid19/assets/cov-sah-athletic-facilities.pdf.
9. Higher-risk businesses and activities. Effective May 11, 2020, and notwithstanding any other provision of this order, the following businesses, venues, and activities shall not take place or be closed to spectators, audience members, or members of the public to which these businesses, venues, and activities are normally open:
a. Entertainment venues as follows:
(i) Night clubs
(ii) Bowling alleys
(iii) Arcades
(iv) Concert venues
(v) Theaters, auditoriums, and performing arts centers
(vi) Tourist attractions (including museums and planetariums)
(vii) Racetracks
(viii) Indoor children’s play areas
(ix) Adult entertainment venues
(x) Casinos
(xi) Bingo halls
(xii) Venues operated by social clubs
b. Athletic activities as follows:
(i) Sports that involve interaction with another person of closer than 6 feet
(ii) Activities that require use of shared sporting apparatus and equipment
(iii) Activities on commercial or public playground equipment
10. Beaches. Effective May 11, 2020, anyone using the beaches must maintain a consistent six-foot distance between himself or herself and all persons from a different household. For purposes of this section, the term “beach” means the sandy shoreline area abutting the Gulf of Mexico, whether privately or publicly owned, including beach access points.
5

Case 2:19-cv-00365-MHT-JTA Document 163 Filed 05/15/20 Page 12 of 14
11. Senior Citizen Centers. Effective March 20, 2020, all regular programs at Senior Citizen Centers shall be ended except that Senior Citizen Centers and their partners are urged to assure that their clients continue to receive needed meals via curbside pick-up or delivery.
12. Educational institutions and child day care facilities. Effective March 20, 2020, the following shall be closed:
a. In-person instruction or classes at all schools, public and private, including but not limited to: elementary, secondary, postsecondary, technical, or specialty schools, and colleges and universities.
(i) This order is not intended to prevent any employers from making continued necessary staffing decisions. Employers are authorized to advise employees to work from home or maintain flexible work schedules. If working from home is not feasible, the employee should practice social distancing, maintaining consistent six-foot distance between persons, for the duration of this order and follow public health guidelines.
(ii) This order shall not apply to daytime special activities programs provided by local boards of education for children, ages 6 through 12 as of March 13, 2020, of first responders (including EMS and fire services) and licensed health-care providers and their essential employees; and essential employees of the following categories of employers: state and local governments, law enforcement, hospitals, nursing home/long-term care facilities, (including assisted living and specialty-care assisted living facilities), end-stage renal disease treatment centers, pharmacies, and grocery stores. In these special activities programs, 12 or more children shall not be allowed in any one room at the same time, and operators of these programs are encouraged to use enhanced sanitation practices consistent with guidance from the CDC and the Alabama Department of Public Health.
b. Facilities providing child day care, including any child day care facility described in Ala. Code § 38-7-2, at which 12 or more children are in a room or other enclosed space at the same time. Center employees are encouraged to use enhanced sanitation and socialdistancing practices consistent with guidance from the CDC and the Alabama Department of Public Health. This Order does not change the Minimum Standards for Day Care promulgated by the Alabama Department of Human Resources, except that 12 or more children shall not be allowed in a room or other enclosed space at the same time.
13. Hospitals and similar institutions. Effective March 20, 2020, all Hospitals and Nursing Home/Long Term Care Facilities (including Assisted Living and Specialty Care Assisted Living Facilities) shall prohibit visitation of all visitors, as defined by the facility, and non-essential health care personnel, except for certain compassionate care situations such as maternity, end-of-life, and support for persons with disabilities.
14. Medical procedures. Effective April 30, 2020, at 5:00 P.M., dental, medical, or surgical procedures may proceed unless the State Health Officer or his designee determines that
6

Case 2:19-cv-00365-MHT-JTA Document 163 Filed 05/15/20 Page 13 of 14
performing such procedures, or any category of them (whether statewide or regionally), would unacceptably reduce access to personal protective equipment or other resources necessary to diagnose and treat COVID-19. Providers performing these procedures shall follow all applicable COVID-19-related rules adopted by a state regulatory board or by the Alabama Department of Public Health. In the absence of such rules, providers should take reasonable steps to comply with applicable COVID-19-related guidelines from the Centers for Medicare and Medicaid Services (CMS) and the CDC, including “Re-opening Facilities to Provide Non-emergent NonCOVID-19 Healthcare: Phase I” from CMS, available at https://www.cms.gov/files/document/covid-flexibility-reopen-essential-non-covid-services.pdf, and “Infection Control Guidance for Healthcare Professionals about Coronavirus (COVID-19)” from the CDC, available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/infectioncontrol.html.
15. Restaurants and similar establishments. Effective May 11, 2020, all restaurants, bars, breweries, or similar establishments shall operate as follows:
a. Such establishments may continue to offer food for take-out or delivery provided the social distancing protocols, including maintaining a consistent six-foot distance between persons, are followed.
b. Such establishments are strongly encouraged to offer online ordering and curbside pickup of food.
c. Hospital food service areas are excluded from this order provided they have their own social distancing plan.
d. Insofar as such establishments offer on-premises consumption of food or drink, they must limit the party size at tables to no more than eight persons and maintain at least six feet of separation between people seated at different tables, booths, chairs, or stools.
e. Each employee shall wear a mask or other facial covering that covers his or her nostrils and mouth at all times while in regular interaction with patrons or guests.
f. Such establishments must disallow self-service by guests at drink stations, buffets, or salad bars.
In addition to complying with the requirements of this paragraph, establishments subject to this paragraph are strongly encouraged to read and implement the Alabama Department of Public Health’s “Guidelines for Restaurants and Bars,” available at https://alabamapublichealth.gov/covid19/assets/cov-sah-restaurants-bars.pdf.
16. Duration. This Order shall remain in full force and effect until 5:00 P.M. on May 22, 2020. Prior to 5:00 P.M. on May 22, 2020, a determination shall be made whether to extend this Order—or, if circumstances permit, to relax this Order.
7

Case 2:19-cv-00365-MHT-JTA Document 163 Filed 05/15/20 Page 14 of 14
17. Preemption. To the extent this Order conflicts with any order previously issued by the State Health Officer concerning COVID-19 mitigation measures, this Order supersedes and preempts the conflicting provisions of the previously issued order effective on the dates specified above. This Order also supersedes and preempts all orders previously issued by the Jefferson and Mobile County Health Officers concerning COVID-19 mitigation measures, and this Order shall remain in full force and effect until rescinded or modified by order of the State Health Officer or its expiration. After the date this order is issued, the Jefferson and Mobile County Health Officers are authorized, after approval by the State Health Officer, to implement more stringent measures as local circumstances require.
This Order also supersedes and preempts any county and municipal orders or ordinances, whenever adopted, that purport to impose less stringent COVID-19-related curfew or quarantine measures.
Done on this 8th day of May, 2020.
_________________________ Scott Harris, M.D., M.P.H. State Health Officer
8

 
 Case 2:19-cv-00365-MHT-JTA Document 166 Filed 05/21/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, M.D, et al., Plaintiffs,
v. STEVEN MARSHALL, et al.,
Defendants.

CIVIL ACTION Case No. 2:19-cv-365-MHT-SMD

Notice of Stipulated Partial Dismissal of the First Amended Complaint Per the Court’s May 18, 2020 Order (Doc. No. 164), and pursuant to Federal Rule of Procedure 41(a)(1)(A)(ii), the Parties stipulate to a partial dismissal, without prejudice, of claims in the First Amended Complaint (Doc. No. 79) pertaining to the “medical restrictions” language. In support of this Notice, the Parties state as follows: 1. On March 30, 2020, Plaintiffs sought leave to file a Supplemental Complaint (Doc. No. 72) and filed a Motion for Temporary Restraining Order and Preliminary Injunction (Doc. No. 73) against the medical restrictions in the March 27 Order. The Court granted both leave to file an Amended Complaint and a Temporary Restraining Order the same day. Doc. Nos. 78, 83, 145. 2. Following a telephone conference with the Parties, on April 3 the Court modified the Temporary Restraining Order. Doc. No. 111. That same day, the State issued the April 3 Order, which contained the same medical restrictions.1 Doc. No. 113. The April 3 Order was set to expire at 5:00 p.m. on April 30, 2020. Id.

1 Because the “medical restrictions” language continued in the March 27 Order merged into the April 3 Order, the parties will refer to the April 3 Order as the operative order.

Case 2:19-cv-00365-MHT-JTA Document 166 Filed 05/21/20 Page 2 of 5
3. The Court conducted an evidentiary hearing on April 6 and granted the Preliminary Injunction on April 12. Doc. Nos. 124, 138. Defendants appealed the Preliminary Injunction on April 13 (Doc. No. 139) and filed a partial Motion to Dismiss on April 27. Doc. No. 156.
4. The April 3 Order expired at 5:00 p.m. on April 30, 2020. 5. On April 28, the State Health Officer issued an order effective April 30, 2020 at 5:00 P.M. until 5:00 P.M. on May 15, 2020, or until rescinded by the State Health Officer. See Doc. No. 159-1 ¶¶ 1, 14–15. The April 28 Order contained different language regarding “medical restrictions” than in ¶ 14 of the April 3 Order. 6. Specifically, the April 28 Order permitted “dental, medical, and surgical procedures” to proceed “unless the State Health Officer or his designee determines that performing such procedures, or any category of them (whether statewide or regionally), would unacceptably reduce access to personal protective equipment or other resources necessary to diagnose and treat COVID-19.” See Doc. No. 159-1 ¶ 12. 7. On May 8, the State Health Officer issued an order amending the April 30 Order. The May 8 Order is effective until 5:00 P.M. on May 22, 2020 or until rescinded by the State Health Officer. See Doc. No. 163, Ex. A ¶¶ 16–17. 8. The May 8 Order contains the same language concerning dental, medical, and surgical procedures as contained in the April 28 Order. See id. ¶ 14. 9. The Parties agreed that the April 12 Preliminary Injunction (Doc. No. 138) was moot to the extent it was tied to the pre-existing “medical restrictions” language, which has since been lifted. 10. Accordingly, on May 5, the Parties submitted a joint motion to the Eleventh Circuit, pursuant to Fed. R. Civ. App. 42(b) and 11th Cir. R. 42-1(a), to dismiss Defendants’ appeal (Doc.
2

Case 2:19-cv-00365-MHT-JTA Document 166 Filed 05/21/20 Page 3 of 5
No. 139) of the Preliminary Injunction (Doc. No. 138), and to transfer jurisdiction over any claim for attorney’s fees on appeal to this Court.
11. That same day, the Eleventh Circuit granted the Parties’ motion, dismissed Defendants’ appeal of the Preliminary Injunction, and transferred consideration of attorney’s fees on appeal to this Court. See Doc. No. 161 at 2.
12. Per the Parties’ request in the May 15 Joint Status Report (Doc. No. 163), on May 18 this Court ordered that the Preliminary Injunction be dissolved as moot. See Doc. No. 165.
13. In that Joint Status Report, Defendants represented that they have no intention at that time to impose restrictions on dental, medical, or surgical procedures in future emergency orders. See Doc. No. 163 at 2. Defendants’ representation continues to this day.
14. On the basis of Defendants’ representation, and pursuant to Federal Rule of Procedure 41(a)(1)(A)(ii), the Parties now stipulate to the dismissal, without prejudice, of those portions of the First Amended Complaint (Doc. No. 79) concerning the medical restrictions language in the now-expired April 3 Order.
15. Specifically, the Parties stipulate to the dismissal of the following claims without prejudice:
a. The portions of Count I concerning the medical restrictions language in the now-expired April 3 Order, see Doc. No. 79 ¶ 129; and
b. The entirety of Count II, see id. ¶¶ 130–31. 16. The Parties intend to discuss whether it will be possible to come to a negotiated agreement on attorney’s fees relating to the challenge to the medical restrictions language. To facilitate these discussions, Plaintiffs intend to move for an unopposed extension of time to file a motion for attorney’s fees after dismissal as set forth above.
3

Case 2:19-cv-00365-MHT-JTA Document 166 Filed 05/21/20 Page 4 of 5

Respectfully submitted,

Steve Marshall, Attorney General
Edmund G. LaCour Jr. (ASB-9182-U81L) Solicitor General
A. Barrett Bowdre (ASB-2087-K29V) Deputy Solicitor General
/s James W. Davis James W. Davis (ASB-4063-I58J) Brad A. Chynoweth (ASB-0030-S63K) Brenton M. Smith (ASB-1656-X27Q)
Assistant Attorneys General
OFFICE OF ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130-0152 Telephone: (334) 242-7300 Fax: (334) 353-8400 Edmund.LaCour@AlabamaAG.gov Barrett.Bowdre@AlabamaAG.gov Jim.Davis@AlabamaAG.gov Brad.Chynoweth@AlabamaAG.gov Brenton.Smith@AlabamaAG.gov

/s/Alexa Kolbi-Molinas Alexa Kolbi-Molinas * New York State Bar No. 4477519 Meagan Burrows * New York State Bar No. 5341904 AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 akolbi-molinas@aclu.org mburrows@aclu.org (212) 519-7845
Randall C. Marshall (ASB-3023-A56M) ACLU OF ALABAMA FOUNDATION P.O. Box 6179 Montgomery, AL 36106-0179 (334) 420-1741 rmarshall@aclualabama.org
Attorneys for Plaintiffs Yashica Robinson, M.D., Alabama Women’s Center, Reproductive Health Services, and West Alabama Women’s Center

Counsel for Defendants Steve Marshall and *Admitted Pro Hac Vice State Health Officer Scott Harris

4

Case 2:19-cv-00365-MHT-JTA Document 166 Filed 05/21/20 Page 5 of 5 CERTIFICATE OF SERVICE
I hereby certify that on May 21, 2020, I electronically filed the foregoing with the Clerk of Court for the United States District Court for the Middle District of Alabama using the CM/ECF system, thereby serving all counsel of record.
/s/ Randall Marshall Randall Marshall Attorney for Plaintiffs Yashica Robinson, M.D., Alabama Women’s Center, Reproductive Health Services, and West Alabama Women’s Center
5

 
 Case 2:19-cv-00365-MHT-JTA Document 167 Filed 05/22/20 Page 1 of 2

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,

)

)

v.

)

)

STEVEN MARSHALL, in his

)

official capacity as

)

Alabama Attorney General, )

et al.,

)

)

Defendants.

)

CIVIL ACTION NO. 2:19cv365-MHT (WO)

JUDGMENT

Pursuant to the parties’ stipulation of partial

dismissal (doc. no. 166), it is the ORDER, JUDGMENT,

and DECREE of the court that the following portions of

the first amended complaint (doc. no. 79), concerning

the ‘medical restrictions’ language in the now-expired

April 3, 2020, public health order, are dismissed

without prejudice: (1) the portions of Count I that

Case 2:19-cv-00365-MHT-JTA Document 167 Filed 05/22/20 Page 2 of 2
concern the medical restrictions language in the now-expired April 3 order, see id. ¶ 129; and (2) the entirety of Count II, see id. ¶¶ 130–31.
DONE, this the 22nd day of May, 2020. /s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

Case 2:19-cv-00365-MHT-JTA Document 167-1 Filed 05/22/20 Page 1 of 3 "DPQZPGUIJTDIFDLMJTUJTBWBJMBCMFBUUIFXFCTJUFGPSUIF64$"UI$JSDVJUBUXXXDBVTDPVSUTHPW
&GGFDUJWFPO%FDFNCFSUIFGFFUPGJMFBOBQQFBMJT
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate’s jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 132728 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93

Case 2:19-cv-00365-MHT-JTA Document 167-1 Filed 05/22/20 Page 2 of 3
L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits: (a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
Rev.: 3/2011

Case 2:19-cv-00365-MHT-JTA Document 167-1 Filed 05/22/20 Page 3 of 3 3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of
Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant. 4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
Rev.: 3/2011

 
 Case 2:19-cv-00365-MHT-JTA Document 174 Filed 06/02/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, M.D, et al., Plaintiffs,
v. STEVEN MARSHALL, et al.,
Defendants.

CIVIL ACTION Case No. 2:19-cv-365-MHT-JTA

JOINT MOTION TO DISMISS DEFENDANT HARRIS On March 30, 2020, Plaintiffs filed an Emergency Motion to File a Supplemental Complaint in the above-captioned action challenging H.B. 314, in order to challenge the medical restrictions, as applied to pre-viability abortion, contained in the State Health Officer’s March 27, 2020 emergency health order. See Doc. No. 72. At that time, Plaintiffs re-named the State Health Officer, Dr. Scott Harris, as a Defendant.1 See id. at 5 n.6; Doc. No. 79 ¶ 26. The Court granted the motion but allowed Defendants to file objections. Doc. No. 78. After considering the Attorney General’s and Defendant Harris’s objections (Doc. No. 86), the Court overruled the objections. Doc. No. 145. On May 22, 2020, this Court granted the Parties’ stipulated dismissal of the challenge to the now-expired medical restrictions language. Doc. No. 167. In view of the above, the Parties agree that Defendant Harris’s participation in the ongoing challenge to H.B. 314 is no longer necessary and thus file this joint motion for dismissal. In support of this Motion, the Parties state as follows:

1 Scott Harris was previously named as a Defendant in this suit but was voluntarily dismissed, along with all the other original Defendants except for Defendant Marshall, on June 7, 2019, pursuant to a stipulation. See Doc. No. 44.

Case 2:19-cv-00365-MHT-JTA Document 174 Filed 06/02/20 Page 2 of 4
1. Plaintiffs contend that Defendant Harris is a proper Defendant in the challenge to H.B. 314. However, in an effort to streamline this action, Plaintiffs agree to dismiss Defendant Harris without prejudice from the action on the following conditions.
2. Defendant Harris and his employees, agents, and successors in office agree to be bound by the terms of any injunctive (including but not limited to a temporary restraining order or preliminary injunction), declaratory, and/or other relief issued against the Attorney General and/or any other Defendant(s) in this action so long as such relief remains in effect as to the Alabama Attorney General and/or any other Defendant(s). However, Defendant Harris shall not be liable for any award of attorney’s fees, costs, or other monetary damages that might be included as part of such relief related to H.B. 314.
3. It is further understood and agreed that Harris and his employees, agents, and successors in office shall only be bound by injunctive, declaratory, and/or other relief falling within the preceding paragraph to the extent such relief remains binding against the Attorney General and/or any other Defendant(s) in this action. Harris and his employees, agents, and successors in office shall not be bound by any relief as to the Attorney General and/or any other Defendant(s) that subsequently is reversed, vacated, set aside, or otherwise limited. However, it is understood and agreed that Harris, his employees, agents, and successors in office will take no enforcement action against any Plaintiff premised on anything that occurred while such relief was in effect.
5. Pursuant to this Court’s General Order and the Civil and Criminal Administrative Procedures regarding Electronic Case Filing, it is hereby certified that all signing parties have agreed to the electronic filing of this document by one party with electronic signatures of counsel for Plaintiffs and for Harris.
2

Case 2:19-cv-00365-MHT-JTA Document 174 Filed 06/02/20 Page 3 of 4

Respectfully submitted,

Steve Marshall, Attorney General
A. Barrett Bowdre (ASB-2087-K29V) Deputy Solicitor General
/s James W. Davis James W. Davis (ASB-4063-I58J) Brad A. Chynoweth (ASB-0030-S63K) Brenton M. Smith (ASB-1656-X27Q)
Assistant Attorneys General
OFFICE OF ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130-0152 Telephone: (334) 242-7300 Fax: (334) 353-8400 Barrett.Bowdre@AlabamaAG.gov Jim.Davis@AlabamaAG.gov Brad.Chynoweth@AlabamaAG.gov Brenton.Smith@AlabamaAG.gov

/s/Randall C. Marshall Randall C. Marshall (ASB-3023-A56M) ACLU OF ALABAMA FOUNDATION P.O. Box 6179 Montgomery, AL 36106-0179 (334) 420-1741 rmarshall@aclualabama.org
Attorneys for Plaintiffs Yashica Robinson, M.D., Alabama Women’s Center, Reproductive Health Services, and West Alabama Women’s Center
*Admitted Pro Hac Vice

Counsel for Defendants Steve Marshall and State Health Officer Scott Harris

3

Case 2:19-cv-00365-MHT-JTA Document 174 Filed 06/02/20 Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that on June 2, 2020, I electronically filed the foregoing with the Clerk of Court for the United States District Court for the Middle District of Alabama using the CM/ECF system, thereby serving all counsel of record.
/s/ Randall Marshall Randall Marshall Attorney for Plaintiffs Yashica Robinson, M.D., Alabama Women’s Center, Reproductive Health Services, and West Alabama Women’s Center

Case 2:19-cv-00365-MHT-JTA Document 174-1 Filed 06/02/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, M.D, et al., Plaintiffs,
v. STEVEN MARSHALL, et al.,
Defendants.

CIVIL ACTION Case No. 2:19-cv-365-MHT-JTA

[PROPOSED] ORDER GRANTING THE PARTIES’ JOINT MOTION TO DISMISS DEFENDANT HARRIS
Upon agreement of the Parties, it is ORDERED that: 1. The joint motions to dismiss (Doc. No. ___) is granted. 2. Defendant Harris is dismissed without prejudice from this action and is terminated as a party. 3. Defendant Harris and his employees, agents, and successors in office shall be bound by the terms of any injunctive (including but not limited to a temporary restraining order or preliminary injunction), declaratory, and/or other relief against the Alabama Attorney General and/or any of the other Defendant(s) by any court in this action so long as such relief remains in effect as to the Alabama Attorney General and/or any other Defendant(s). However, Defendant Harris and his employees, agents, and successors in office shall not be liable for any award of attorney’s fees, costs, or other monetary damages that might be included as part of such relief related to H.B. 314. Nor shall Defendant Harris and his employees, agents, and successors in office be bound by any relief that subsequently is reversed, vacated, set aside, or otherwise limited as to the Alabama Attorney General and/or any other Defendant(s). However, Defendant Harris and his

Case 2:19-cv-00365-MHT-JTA Document 174-1 Filed 06/02/20 Page 2 of 2 employees, agents, and successors in office in office shall take no enforcement action against any Plaintiff premised on events that occurred while such relief was in effect.
DONE, this ___ day of June, 2020. THE HONORABLE MYRON H. THOMPSON UNITED STATES DISTRICT JUDGE
2

 
 Case 2:19-cv-00365-MHT-JTA Document 156 Filed 04/27/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, et al.

)

)

Plaintiffs,

)

)

v.

)

)

STEVEN MARSHALL, in his

)

official capacity as Attorney General of )

the State of Alabama, et al.,

)

)

Defendants.

)

CASE NO. 2:19-cv-00365-MHT-JTA

PARTIAL MOTION TO DISMISS OF DEFENDANTS ATTORNEY GENERAL STEVE MARSHALL AND
STATE HEALTH OFFICER SCOTT HARRIS

Defendants Steve Marshall, sued in his official capacity as Alabama Attorney General, and

Dr. Scott Harris, sued in his official capacity as State Health Officer, hereby move the Court

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss all claims in

Plaintiffs’ First Amended Complaint (doc. 79) that challenge the constitutionality of Dr. Harris’s

March 27 and April 3 orders issued in response to the COVID-19 pandemic1 on the following

grounds:

1. Plaintiffs lack standing to bring an as-applied, pre-enforcement challenge to Dr. Harris’s

orders.

2. To the extent Plaintiffs seek an order requiring Defendants to follow state law in enforcing

Dr. Harris’s orders, sovereign immunity deprives the Court of jurisdiction to order such

relief. See Pennhurst v. State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984).

1 Defendants do not move to dismiss any claims in the First Amended Complaint that challenge the constitutionality of The Alabama Human Life Protection Act, Alabama Act 2019-189.
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3. Plaintiffs fail to state a claim upon which relief can be granted on the merits of their constitutional challenges to Dr. Harris’s orders.
Respectfully submitted, Steve Marshall,
Attorney General Edmund G. LaCour Jr. (ASB-9182-U81L)
Solicitor General A. Barrett Bowdre (ASB-2087-K29V)
Deputy Solicitor General /s Brad A. Chynoweth James W. Davis (ASB-4063-I58J) Brad A. Chynoweth (ASB-0030-S63K) Brenton M. Smith (ASB-1656-X27Q)
Assistant Attorneys General
OFFICE OF ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130-0152 Telephone: (334) 242-7300 Fax: (334) 353-8400 Edmund.LaCour@AlabamaAG.gov Barrett.Bowdre@AlabamaAG.gov Jim.Davis@AlabamaAG.gov Brad.Chynoweth@AlabamaAG.gov Brenton.Smith@AlabamaAG.gov Counsel for Defendants Steve Marshall and State Health Officer Scott Harris
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Case 2:19-cv-00365-MHT-JTA Document 156 Filed 04/27/20 Page 3 of 3 CERTIFICATE OF SERVICE
I hereby certify that on April 27, 2020, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record.
s/ Brad A. Chynoweth Counsel for Defendants Steve Marshall and State Health Officer Harris
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 Case 2:19-cv-00365-MHT-JTA Document 157 Filed 04/27/20 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, et al.

)

)

Plaintiffs,

)

)

v.

)

)

STEVEN MARSHALL, in his

)

official capacity as Attorney General of )

the State of Alabama, et al.,

)

)

Defendants.

)

CASE NO. 2:19-cv-00365-MHT-SMD

BRIEF IN SUPPORT OF DEFENDANTS’ PARTIAL MOTION TO DISMISS

STEVE MARSHALL Attorney General
Edmund G. LaCour Jr. (ASB-9182-U81L) Solicitor General
A. Barrett Bowdre (ASB-2087-K29V) Deputy Solicitor General
James W. Davis (ASB-4063-I58J) Brad A. Chynoweth (ASB-0030-S63K) Brenton M. Smith (ASB-1656-X27Q)
Assistant Attorneys General
OFFICE OF ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130-0152 Telephone: (334) 242-7300 Fax: (334) 353-8400 Edmund.LaCour@AlabamaAG.gov Barrett.Bowdre@AlabamaAG.gov Jim.Davis@AlabamaAG.gov Brad.Chynoweth@AlabamaAG.gov Brenton.Smith@AlabamaAG.gov
Counsel for Defendants Steve Marshall and Dr. Scott Harris

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TABLE OF CONTENTS
INTRODUCTION .....................................................................................................................1

LEGAL STANDARD................................................................................................................2

FACTS

............................................................................................................................3

ARGUMENT.............................................................................................................................6

I. Plaintiffs Lack Standing to Bring an As-Applied, Pre-Enforcement Challenge ............................................................................................................6
II. To the Extent Plaintiffs Seek an Order Requiring Defendants to Follow State Law in Enforcing Dr. Harris’s Orders, Sovereign Immunity Deprives the Court of Jurisdiction to Order Such Relief .................................8
III. Plaintiffs’ Substantive Due Process Claim in Count I Fails Because Dr. Harris’s Orders Are Constitutional Exercises of the State’s Police Powers in Response to an Emergency .............................................................10
IV. Plaintiffs Fail to State a Claim in Count II That the Order is Void for Vagueness .........................................................................................................15
CONCLUSION .......................................................................................................................18

CERTIFICATE OF SERVICE ..............................................................................................20

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Defendant Steve Marshall, sued in his official capacity as Alabama Attorney General, and Dr. Scott Harris, sued in his official capacity as State Health Officer, file this brief in support of their Partial Motion to Dismiss all claims from Plaintiffs’ First Amended Complaint challenging the constitutionality of Dr. Harris’s March 27 and April 3, 2020 orders (“the orders”) requiring certain medical procedures to be postponed in response to the COVID-19 health crisis.
INTRODUCTION This case began as a constitutional challenge to The Alabama Human Life Protection Act, Ala. Act 2019-189 (hereinafter “the Act”), under the abortion rights framework set out in Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833 (1992). See docs. 1, 1-1. But on March 30, 2020, Plaintiffs’ filed an Emergency Motion to File a Supplemental Complaint to challenge the constitutionality of Dr. Harris’s order requiring the postponement of medical procedures in response to COVID-19 as it relates to pre-viability abortions. See docs. 72, 72-1. The Court allowed Plaintiffs to file a First Amended Complaint and subsequently overruled Defendants’ objection to the order granting Plaintiffs leave to amend. See docs. 78, 86, 145. As a result, this case now encompasses two distinct constitutional claims: one involving the constitutionality of the Act under a straightforward application of Roe and Casey, and the second involving the constitutionality of Dr. Harris’s completely unrelated orders under an emergency powers framework. Plaintiffs’ constitutional challenge to Dr. Harris’s orders fails to overcome threshold jurisdictional defects and also fails on the merits. Plaintiffs allege Dr. Harris’s orders ban pre-viability abortions and seek an injunction preventing their enforcement as to previability abortions. See doc. 79 at p. 38. Dr. Harris’s orders do not ban pre-viability abortions but instead constitute valid emergency regulations issued under the State’s police powers that apply
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equally to all medical providers, not just abortion clinics. Accordingly, Plaintiffs are not entitled to the relief requested, and Defendants respectfully request that Plaintiffs’ challenges to Dr. Harris’s orders be dismissed.
LEGAL STANDARD “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility requires “more than a sheer possibility that a defendant has acted unlawfully” and more than labels, conclusions, “formulaic recitation of the elements,” or “naked assertions.” Id. (citing Twombly, 550 U.S. at 555–57). Legal conclusions and mixed questions of law and fact do not receive the presumption of truth even at the pleading stage. Id.; Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003) (“[U]nsupported conclusions of law or of mixed fact and law have long been recognized not to prevent a Rule 12(b)(6) dismissal.” (quoting Marsh v. Butler County, 268 F.3d 1014, 1036 n.16 (11th Cir. 2001)) (alteration in original) (internal quotations omitted)). Further, “[a] complaint is subject to dismissal under Rule 12(b)(6) when its allegations on their face, show that an affirmative defense bars recovery on the claim.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). On a motion to dismiss, “the court limits its consideration to the pleadings and exhibits attached thereto.” Thaeter v. Palm Beach Cty. Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006) (quoting Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (per curiam) (internal quotation marks omitted)). “[A]s early as possible,” a district court should resolve “[f]acial challenges to the legal sufficiency of a claim or defense, such as a motion to dismiss based on failure to state a claim for relief.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367, 1367 n.35 (11th Cir. 1997). Such
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disputes “always present[] a purely legal question; there are no issues of fact because the allegations contained in the pleading are presumed to be true.” Id. at 1367 (citing Mitchell v. Duval Cty. Sch. Bd., 107 F.3d 837, 838 n.1 (11th Cir. 1997)). A district court abuses its discretion by allowing nonmeritorious claims to proceed to discovery. See id. at 1367–68; see also Butler v. Sukhoi Co., 579 F.3d 1307, 1314 (“Inasmuch as the complaint was insufficient as a matter of law to establish a prima facie case that the district court had jurisdiction, the district court abused its discretion in allowing the case to proceed and granting discovery on the jurisdictional issue.”).
FACTS In March 2020, the United States declared a state of emergency and Governor Kay Ivey proclaimed a state of emergency in Alabama in response to the COVID-19 virus. Doc. 79 ¶ 38. Plaintiffs allege that as of midday on March 28, 2020, there were 644 confirmed COVID-19 cases in Alabama and 3 confirmed deaths. Id. ¶ 39. The Court may take judicial notice that as of midday April 27, 2020, there were 6,429 confirmed COVID-19 cases and 219 confirmed COVID-19 deaths.1 On March 19, 2020, Dr. Harris, pursuant to his authority to direct that conditions prejudicial to health in public places be abated, ALA. CODE § 22-2-14(4), issued an emergency order stating in part “effective immediately all elective dental and medical procedures shall be delayed.” Doc. 79 ¶ 40. Dr. Harris stated at a press conference that same day that his order did not require medical offices to be closed but that “all elective procedures shall be delayed.” Id. ¶ 41.
1 See Alabama Department of Public Health COVID-19 Data and Surveillance Dashboard, ALA. DEP’T OF PUBLIC HEALTH, https://alpublichealth.maps.arcgis.com/apps/opsdashboard/index.html #/6d2771faa9da4a2786a509d82c8cf0f7 (last visited Apr. 27, 2020). For historical data on the spread of COVID-19 in Alabama derived from ADPH data, see also Alabama coronavirus data and mapping dashboard, ALA. POLITICAL REPORTER, https://www.alreporter.com/mappingcoronavirus-in-alabama/ (last visited Apr. 27, 2020).
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He stated that “‘elective’ can be somewhat subjective” but referred medical providers to guidance on the Centers for Medicare & Medicaid Services (“CMS”) website for “what could be considered an elective procedure.” Id. The CMS elective surgery and procedures recommendations provided factors for medical providers to consider in determining whether to postpone a procedure, such as “[c]urrent and projected COVID-19 cases in the facility and region; Supply of [Personal Protective Equipment (“PPE”)] to the facilities in the system; Staffing availability; Bed availability, especially intensive care unit (ICU) beds; Ventilator availability; Health and age of the patient, especially given the risks of concurrent COVID-19 infection during recovery; [and] Urgency of the procedure.” Id. ¶ 42.
On March 20, 2020, Dr. Harris issued an amended order that did not alter the language concerning elective medical and surgical procedures. Doc. 79 ¶ 43. Plaintiffs allege that same day “counsel for Plaintiffs spoke to counsel for ADPH who confirmed that ADPH did not intend the Orders to apply to abortions.” Id. ¶ 44. Plaintiffs allege that they took steps to prevent the spread of COVID-19 in their clinics, but they did not postpone any abortions in response to the March 20 order. Id. ¶¶ 46–47.
On March 27, 2020, Dr. Harris issued an amended order that required medical procedures to be postponed as follows:
7. Effective March 28, 2020 at 5:00 P.M., all dental, medical, or surgical procedures shall be postponed until further notice, subject to the following exceptions: a. Dental, medical, or surgical procedures necessary to treat an emergency medical condition. For purposes of this order, “emergency medical condition” is defined as a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances, and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected by a person’s licensed medical provider to result in placing the health of the person in
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serious jeopardy or causing serious impairment to bodily functions or serious dysfunction of bodily organs. b. Dental, medical, or surgical procedures necessary to avoid serious harm from an underlying condition or disease, or necessary as part of a patient’s ongoing and active treatment. Doc. 79 ¶ 50; Doc. 79-1, Ex. C, at 4.2 Dr. Harris’s March 27 order has been superseded by an April 3, 2020 order that contains identical language on postponing medical procedures. See doc. 109-1 at 11. The April 3 order is set to remain in effect until April 30, 2020, but states that prior to this date “a determination shall be made whether to extend this Order—or, if circumstances permit, to relax this Order.” Id. The April 3 order was promulgated as an emergency rule, which is not set to expire for 120 days. ALA. ADMIN. CODE r. 420-4-1-.13 (Apr. 3, 2020) (emergency rule); see Doc. 109-1 at 1. Plaintiffs allege that they requested clarification from ADPH on the order and “set[] forth the Plaintiffs’ understanding that ‘medication abortion is not a procedure within the terms of the order and that surgical abortion procedures fall within the exceptions.’” Doc. 79 ¶ 54. ADPH referred the request to the Office of the Attorney General who responded that “[a]s the order indicates, procedures are exempt from mandatory postponement only if they meet the criteria set out in 7a. or b,” and referred Plaintiffs’ counsel to the Attorney General’s Guidance for Law Enforcement concerning the March 27 order. Id. ¶ 55. The Attorney General’s guidance states that violations of the ADPH Order are punishable as a misdemeanor under Alabama Code § 22-2-14, and that § 7 of the March 27 Order “applies to all healthcare facilities and providers, without exception,” and that it “does not offer a total
2 The documents submitted as exhibits to Plaintiffs’ First Amended Complaint are adopted by reference and constitute a part of their pleading. See FED. R. CIV. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). The orders themselves are emergency rules that have the force of law.
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exemption for any specific type of provider or clinic.” Doc. 79-1, Ex. D. The guidance states that the order “provides exemptions from mandatory postponement only for two distinct classes of procedures: a) those necessary to treat an ‘emergency medical condition’; and b) those necessary to avoid serious harm from an underlying condition or disease, or are necessary as part of a patient’s ongoing and active treatment.” Id.
ARGUMENT Plaintiffs allege in Count I that because pre-viability abortions are not categorically exempt from the orders’ mandatory postponement of all medical procedures that do not fit within the order’s exceptions, the order violates the substantive due process right of their patients to be free from undue burdens to their access to pre-viability abortions. See doc. 79 ¶¶ 105–08, 129. They allege in Count II that the orders are unconstitutionally vague. Id. ¶ 131. They request a declaratory judgment that “the March 27 Order, as applied to pre-viability abortions, violates the Fourteenth Amendment to the United States Constitution” and request a permanent injunction restraining Defendants “from enforcing the March 27 Order to ban pre-viability abortions.” Id. at 38. But nothing in the orders or the Attorney General’s guidance interprets them to ban pre-viability abortions. Plaintiffs accordingly fail to state a claim for the relief requested, i.e., a categorical exemption for pre-viability abortion. I. Plaintiffs Lack Standing to Bring an As-Applied, Pre-Enforcement Challenge Plaintiffs fail to meet their burden of making plausible allegations of threatened unconstitutional enforcement of the orders sufficient to invoke Article III standing. To have Article III standing, a “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (first citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); and then citing Friends of the Earth, Inc. v. Laidlaw Envtl.
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Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)). “The plaintiff[s], as the party invoking federal jurisdiction, bears the burden of establishing” their standing to sue. Id. Because a court lacks jurisdiction if a plaintiff lacks standing, “a court must satisfy itself that the plaintiff has standing before proceeding to consider the merits of her claim, no matter how weighty or interesting.” Lewis v. Governor of Ala., 944 F.3d 1287, 1296 (11th Cir. 2019).
Pre-enforcement challenges are “the exception,” not the norm. Am. Charities for Reasonable Fundraising Regulation, Inc., v. Pinellas County, 221 F.3d 1211, 1214 (11th Cir. 2000). To establish standing to bring a pre-enforcement challenge, a plaintiff must “demonstrate that a ‘credible threat of an injury exists,’ not just a speculative threat which would be insufficient for Article III purposes.” Id. (quoting Kirby v. Siegelman, 195 F.3d 1285, 1290 (11th Cir. 1999)). “[T]his standard can be met by showing that either ‘(1) plaintiff was threatened with prosecution; (2) prosecution is likely; or (3) there is a credible threat of prosecution.’” Id. (quoting Jacobs v. The Fla. Bar, 50 F.3d 901, 904 (11th Cir. 1995)). If the plaintiff fails to make this showing, then the pre-enforcement challenge is not ripe for review. See id. at 1214–15.
Here, “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” and thus fail to make plausible allegations of threatened unconstitutional enforcement. Iqbal, 556 U.S. at 679. The only factual allegations Plaintiffs make are that the Attorney General would not confirm Plaintiffs’ view that “medication abortion is not a procedure within the terms of the order and that surgical abortion procedures fall within the exceptions.” Doc. 79 ¶ 54. The Attorney General stated what is evident from the plain language of the orders themselves, namely that “‘procedures are exempt from mandatory postponement only if they meet the criteria set out in 7a. or b.’” Id. ¶ 55.
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But the only credible threat of enforcement supported by these factual allegations is that Plaintiffs’ provision of abortion services would be treated like any other medical, dental, or surgical procedure subject to Dr. Harris’s orders. Plaintiffs cannot support any threat of unconstitutional conduct by Defendants based on allegations that Dr. Harris’s order would be applied in a facially neutral, non-discriminatory manner. Nor can Plaintiffs rely on sheer speculation that Defendants’ enforcement of Dr. Harris’s orders will be motivated by animus against abortion providers. See Elend v. Basham, 471 F.3d 1199, 1206 (11th Cir. 2006) (“It is not enough that the [plaintiff]’s complaint sets forth facts from which we could imagine an injury sufficient to satisfy Article III’s standing requirements.” (internal quotation and citation omitted)).
Plaintiffs’ remaining allegations, such as the allegation that Dr. Harris’s orders are guilty of “targeting pre-viability abortion,” (doc. 79 ¶ 110), are “conclusory and not entitled to be assumed true.” Iqbal, 556 U.S. at 681; see also id. at 680–81 (holding allegations that government officials “knew of, condoned, and willfully and maliciously” subjected plaintiff to harsh conditions of confinement “as a matter of policy, solely on account” of his race and religion were “bare” and “conclusory” allegations “not entitled to be assumed true.”). Since “[t]he party invoking federal jurisdiction bears the burden of establishing” standing, Spokeo, 136 S. Ct. at 547, Plaintiffs’ threadbare allegations of threatened unconstitutional enforcement of Dr. Harris’s order fail to satisfy their burden. II. To the Extent Plaintiffs Seek an Order Requiring Defendants to Follow State Law in
Enforcing Dr. Harris’s Orders, Sovereign Immunity Deprives the Court of Jurisdiction to Order Such Relief Plaintiffs repeatedly allege that Defendants are simply wrong in how they interpret Dr. Harris’s order, and that abortions are always necessary under one of the exemptions contained in the orders. See, e.g., doc. 79 ¶ 106 (“Pre-viability abortions are ‘necessary to avoid serious harm from an underlying condition’ because forcing anyone to continue a pregnancy against their will
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threatens serious harm to their health, and therefore previability abortions fit within the exceptions to the March 27 Order”); ¶ 107 (“Medication abortions . . . are not medical or surgical ‘procedures’ within the meaning of the March 27 Order”); ¶ 108 (“Because the plain language of the March 27 Order should exempt pre-viability abortions, Plaintiffs have no way of knowing which previability abortions are considered criminal acts under the March 27 Order.”).
These allegations seek federal court imprimatur of Plaintiffs’ interpretation of state law. “But when the claim of entitlement to relief is based on a violation of state law, sovereign immunity applies.” S&M Brands, Inc. v. Ga. ex rel. Carr, 925 F.3d 1198, 1204 (11th Cir. 2019) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984)). Federal courts cannot hear claims against state officials for alleged violations of state law. Pennhurst, 465 U.S. at 121. Sovereign immunity bars such claims, no matter the form of relief sought, as nothing more than claims against the state itself. Id.; see also Alexander v. Chattahoochee Valley Cmty. Coll., 325 F. Supp. 2d 1274, 1295 (M.D. Ala. 2004) (“Federal courts do not have jurisdiction to order state officials to comply with state law.”) Plaintiffs cannot “boost the claim over the sovereignimmunity bar” with “conclusory allegations that the same conduct that violates state law also violates the U.S. Constitution.” S&M Brands, 925 F.3d at 1204.
When Plaintiffs request a federal court order exempting pre-viability abortions from Dr. Harris’s orders because “the plain language of the March 27 Order should exempt pre-viability abortions,” their claim is that Defendants are not following state law. The Attorney General has issued guidance stating that Dr. Harris’s order “does not offer a total exemption for any specific type of provider or clinic,” but that all medical procedures are subject to mandatory postponement unless they fall within one of the two exceptions on a case-by-case basis. See doc. 79 ¶ 55; doc. 79-1, Ex. D.
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Plaintiffs allege, in essence, that the Attorney General is mistaken, and that Dr. Harris’s order contains a categorical exemption for pre-viability abortions. But the Court lacks jurisdiction to resolve this dispute or order corresponding injunctive relief because it turns on the interpretation and enforcement of state law. See S&M Brands, 925 F.3d at 1204 (stating that where “claim necessarily relied on a determination that state officials had not complied with state law,” the claim was “barred by sovereign immunity.”). The Fifth Circuit recently warned that Pennhurst deprived a district court of jurisdiction to second-guess Texas state health officials’ determination that medication abortions were “procedures” subject to mandatory postponement in response to the COVID-19 health emergency. See In re Abbott, No. 20-50296, 2020 WL 1911216, at *15, __ F. 3d __ (5th Cir. Apr. 20, 2020) (Abbott II). Nor does the Court have the power to enjoin Defendants to follow their own understanding of how to enforce the orders. See Valentine v. Collier, No. 2020207, 2020 WL 1934431, at *4, __ F.3d __ (5th Cir. Apr. 22, 2020) (staying injunction that “largely overlap[ped]” with Texas officials’ own policies notwithstanding district court’s rationale that it would “promote compliance” with state policies since “Pennhurst plainly prohibits such an injunction”). Indeed, “it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.” Pennhurst, 465 U.S. at 106.
Since “[s]tate sovereign immunity limits federal court jurisdiction,” S&M Brands, 925 F.3d at 1204, the Court lacks jurisdiction to resolve Plaintiffs’ claims based on proper interpretation of state law or to order Defendants to follow state law. III. Plaintiffs’ Substantive Due Process Claim in Count I Fails Because Dr. Harris’s
Orders Are Constitutional Exercises of the State’s Police Powers in Response to an Emergency Plaintiffs bring their substantive due process challenge to The Human Life Protection Act and Dr. Harris’s orders together in a single count. See doc. 79 ¶¶ 128–29. This is telling, as
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Plaintiffs assume Casey’s undue burden framework applies equally to a law that facially prohibits abortions, subject to two exceptions, and a facially neutral mandatory postponement of elective medical procedures issued in response to a public health emergency. But under the constitutional framework for evaluating a state’s exercise of its emergency powers, Plaintiffs fail to state a claim in Count I as to Dr. Harris’s orders.
As the Eleventh Circuit has held, “[i]n an emergency situation, fundamental rights . . . may be temporarily limited or suspended.” Smith v. Avino, 91 F.3d 105, 109 (11th Cir. 1996), abrogated on other grounds by Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998). Thus, while it may be that “[u]nder usual and normal circumstances and as a general proposition” the State may not require a woman to postpone an abortion by a few weeks if it is safe to do so, “the circumstances existing at th[is] time [a]re not usual, nor [a]re they normal.” Id. Rather, in an emergency situation like the pandemic we now face, “governing authorities must be granted the proper deference and wide latitude necessary for dealing with the emergency.” Id. The standard of review of a state’s emergency order set forth in Avino is highly deferential, and “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.” Id.
The Supreme Court has also long recognized the importance of a state’s emergency powers in decisions like Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905). In passing on the constitutionality of a mandatory smallpox vaccination requirement, Jacobson stated “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” Jacobson, 197 U.S. at 29. The Court upheld the vaccination requirement because acting “[u]pon the principle of self-defense, of paramount necessity, a community has the
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right to protect itself against an epidemic of disease which threatens the safety of its members”— even if that response comes at a cost to individual freedoms. Id. at 27. Thus, constitutional rights, such as the right to abortion, may be burdened in times of emergency. As the Supreme Court put it, “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” Jacobson, 197 U.S. at 29.
As in Avino, the standard of review of a state’s emergency powers in Jacobson is highly deferential. An emergency measure fails to pass constitutional muster under Jacobson only “if 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.” 197 U.S. at 31 (emphasis added); see also In re Abbott, 954 F.3d 772, 784-85 (5th Cir. 2020) (Abbott I) (applying Jacobson to grant Texas emergency mandamus relief to vacate a TRO entered by the district court in response to the state’s COVID-19 health orders).3
First, Dr. Harris’s health order bears a “real or substantial relation” to the crisis the State faces. Dr. Harris’s order bears a real and substantial relation to the State’s need to preserve social distancing to prevent the spread of COVID-19, the State’s need to conserve PPE for use by those treating COVID-19 patients, and the State’s need to free up hospital resources in anticipation of a surge of COVID-19 patients. Plaintiffs allege on the face of the First Amended Complaint that these interests are served specifically by postponing the procedures performed at Plaintiffs’ clinics that are not covered by the exceptions in the health orders. See, e.g., doc. 79 ¶ 66 (acknowledging abortion can sometimes result in complications requiring hospitalization); ¶ 76 (acknowledging
3 The Fifth Circuit stated in Abbott I that “Jacobson remains good law.” Abbott I, 954 F.3d at 785.
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that even medication abortion requires an in-person physical exam); ¶ 83 (acknowledging abortions performed at clinics use PPE).
Second, Plaintiffs cannot meet their burden under Jacobson of showing Dr. Harris’s order is “beyond all question, in palpable conflict with the Constitution.” Jacobson, 197 U.S. at 31 (emphasis added). What the Fifth Circuit found of the Texas order could well be said of Alabama’s: “The order is a concededly valid public health measure that applies to all surgeries and procedures, does not single out abortion, and merely has the effect of delaying certain non-essential abortions. Moreover, the order has an exemption for serious medical conditions, comporting with Jacobson’s requirement that health measures ‘protect the health and life’ of susceptible individuals.” Abbott I, 954 F.3d at 789 (quoting Jacobson, 197 U.S. at 39).4
Importantly, it is not enough for Plaintiffs to allege that the health order burdens their right to abortions, or even that such a burden would be found unlawful in normal times. The Supreme Court explained in Planned Parenthood v. Casey that states are generally prohibited from placing an “undue burden” on the right to obtain a pre-viability abortion, and that a law normally imposes an “undue burden” when it places “a substantial obstacle in the path of a woman seeking an abortion.” 505 U.S. 833, 878 (1992). But the Court also made clear that “[n]ot all burdens on the right to decide whether to terminate a pregnancy will be undue.” Id. at 876. That is, even if a state regulation “increas[es] the cost or decreas[es] the availability,” or otherwise makes it “more difficult or more expensive to procure an abortion,” that “cannot be enough to invalidate it” if the
4 For the same reasons that Dr. Harris’s order satisfies both factors of the Jacobson analysis, it satisfies the standard under Avino that the order was “taken in good faith and whether there is some factual basis for the decisions that the restrictions . . . imposed were necessary to maintain order.” Avino, 91 F.3d at 109.
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law serves a “valid purpose . . . not designed to strike at the right itself.” Id. at 874 (emphasis added).
Thus, if a law does present an obstacle to a woman’s access to abortion, the next step is to “consider the burden 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). Grafted into Jacobson’s framework, this burden balancing means that Plaintiffs must make plausible allegations that Dr. Harris’s health order “imposes burdens on abortion that ‘beyond question’ exceed its benefits in combating the epidemic [Alabama] now faces.” Abbott I, 954 F.3d at 790.
Plaintiffs’ allegations fail to carry that burden—indeed, Plaintiffs’ First Amended Complaint does not even acknowledge it must make such allegations as it assumes the orders must be evaluated as bans on pre-viability abortion under ordinary circumstances. Dr. Harris’s order imposes only a temporary burden on abortion access by requiring providers to postpone procedures that, in their professional medical judgment, can safely be postponed. Delay of a few weeks for public health reasons does not amount to a total denial. Cf. Casey, 505 U.S. at 886. Nor does the health order single out Plaintiffs’ patients. Rather, it applies to every physician and every clinic and every medical procedure in the State. Clearly the order is not “designed to strike at the right itself.” Id.
As for the benefits of the health order, Plaintiffs cannot dispute the State’s interests in preserving PPE and hospital capacity, as well as in promoting social distancing to reduce coronavirus’s spread in the coming weeks. Plaintiffs’ own First Amended Complaint alleges that their clinics use PPE, that abortion procedures can result in complications requiring further medical attention, and that healthcare providers at the clinics cannot maintain adequate distance from the
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patients to ensure that they do not spread the virus to each new patient they see. See doc. 79 ¶¶ 66, 76, 83.
Plaintiffs have not shown that the temporary burden imposed on them “beyond all question” exceeds the benefits to the public health in light of the State’s compelling need to preserve limited medical resources over the next few weeks. Thus, they fail to state a claim as to Count I. IV. Plaintiffs Fail to State a Claim in Count II That the Order is Void for Vagueness
Plaintiffs allege in Count II of the First Amended Complaint that the March 27 order is void for vagueness. Doc.79 at ¶ 130–31. This claim also fails on the merits.
“To state a void-for-vagueness claim, the language of the [law] itself must be vague.” Indigo Room, Inc. v. City of Fort Myers, 710 F.3d 1294, 1302 (11th Cir. 2013) (quoting Diversified Numismatics, Inc. v. City of Orlando, 949 F.2d 382, 387 (11th Cir. 1991)). Vagueness arises when a law either “fails to provide a person of ordinary intelligence fair notice of what is prohibited” or “is so standardless that it authorizes or even encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008) (citing Hill v. Colorado, 530 U.S. 703, 732 (2000)). “But ‘perfect clarity and precise guidance have never been required.’” Williams, 553 U.S. at 304 (citing Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989)).
A close case arising under a statute does not render it unconstitutionally vague. Williams, 553 U.S. at 306. One could imagine a close case “under virtually any statute.” Id. But requiring proof beyond a reasonable doubt to support a conviction addresses any issues posed by such close cases. Id. Vagueness occurs not because of “the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is.” Id.
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Further, laws that require application to real-world facts contrast significantly with the
standardless statutory term held to be unconstitutionally vague in Johnson v. United States. See
135 S. Ct. 2551, 2557–59 (2015). In that case, the Supreme Court held the term “violent felony,”
defined in relevant part under the Armed Career Criminal Act as a crime that “involves conduct
that presents a serious risk of physical injury to another,” was unconstitutionally vague. Id.
However, the central feature of the Court’s vagueness analysis was that the Court’s precedent
required a judge to apply this definition “not to real-world facts or statutory elements,” but rather
“to a judicially imagined ‘ordinary case’ of a crime.” Id. at 2557. The inability of a judge to
consider the concrete facts of the underlying crime created a completely indeterminate standard.
Id. at 2558. See also Session v. Dimaya, 138 S. Ct. 1204, 1232 (2018) (Gorsuch, J., concurring in
part and concurring in the judgment) (stating with respect to a statutory definition of “crime of
violence” identical to that in Johnson that “[t]he statute doesn’t even ask for application of
common experience. Choice, pure and raw, is required. Will, not judgment, dictates the result.”).
The Court in Johnson contrasted this abstract statutory definition with statutory terms that
are applied to concrete situations as follows:
As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as “substantial risk” to real-world conduct; “the law is full of instances where a man’s fate depends on his estimating rightly . . . some matter of degree,” Nash v. United States, 229 U.S. 373, 377, 33 S. Ct. 780, 57 L. Ed. 1232 (1913). The residual clause, however, requires application of the “serious potential risk” standard to an idealized ordinary case of the crime. Because “the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect,” this abstract inquiry offers significantly less predictability than one “[t]hat deals with the actual, not with an imaginary condition other than the facts.” International Harvester Co. of America v. Kentucky, 234 U.S. 216, 223, 34 S. Ct. 853, 58 L. Ed. 1284 (1914). 135 S. Ct. at 2561.
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The requirement for a medical provider—or even specifically an abortion provider—to conduct their practice according to a general standard does not make that standard vague. In a case decided the same day as Roe v. Wade, the Supreme Court held that restricting abortion to only those cases that doctors determined were “necessary” was not unconstitutionally vague. Doe v. Bolton, 410 U.S. 179, 191–92 (1973). Likewise, the Court similarly concluded in United States v. Vuitch that a District of Columbia statute outlawing abortion unless “necessary for the preservation of the mother’s life or health” presented no vagueness problem because “whether a particular operation is necessary for a patient’s physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered.” 402 U.S. 62, 72 (1971). Additionally, citing Bolton and Vuitch, the Fifth Circuit held that a statute prohibiting doctors from dispensing controlled substances “other than in the course of his professional practice” did not present vagueness issues. United States v. Collier, 478 F.2d 268, 272 (5th Cir. 1973).5 A law is not vague merely because it requires a physician to “make a professional judgment as to whether a patient’s condition is such” that it satisfies a particular standard. Id.
Plaintiffs’ claim thus fails because the order need not provide “perfect clarity and precise guidance.” Williams, 553 U.S. at 304 (quoting Ward, 491 U.S. at 794 ). Just because it may be difficult in some cases to determine whether an abortion falls into one of the two exceptions outlined in the order does not mean that those exceptions are vague. Id. at 306. Here, an abortion fits into an exception if it is necessary to treat an “emergency medical condition,” “to avoid a serious harm from an underlying condition or disease,” or if it is “necessary as part of a patient’s ongoing and active treatment.” Doc. 79-1, Ex. C at 4. These exceptions present an objective
5 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the Fifth Circuit Court of Appeals issued before the close of business on September 30, 1981.
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standard—a prosecutor would need to show beyond a reasonable doubt that the particular factual circumstances of an abortion recipient did not fall into one of those categories. Although close cases could, in theory, arise even under these exceptions, there is no question about what exactly needs to be shown, and therefore no vagueness. See Williams, 553 U.S. at 306.
Although Plaintiffs allege that the orders are vague because they may be required to exercise their own professional judgment in determining whether a particular patient’s abortion would fit into one of the exceptions, “the law is full of instances where a man’s fate depends on his estimating rightly . . . some matter of degree.” Johnson, 135 S. Ct. at 2557 (quoting Nash, 229 U.S. at 377). Plaintiffs, like the abortion providers in Bolton and Vuitch and the prescribing doctor in Collier, have an objective standard to apply to their treatment. See 410 U.S. at 191–92; 402 U.S. at 72; 478 F.2d at 272. Asking them to apply their own medical judgment to a particular set of facts—something doctors do every day—does not render the orders unconstitutionally vague on their face. Accordingly, Count II of Plaintiffs’ First Amended Complaint fails as a matter of law.6
CONCLUSION For the reasons stated above, Defendants’ Partial Motion to Dismiss should be granted, and the Court should dismiss all claims from Plaintiffs’ First Amended Complaint challenging the constitutionality of Dr. Harris’s March 27 and April 3 orders.
Respectfully submitted, Steve Marshall,
Attorney General
6 Defendants preserve their objection to the Court’s order permitting Plaintiffs to supplement their complaint to add their challenge to the State’s health orders to a separate challenge to the Alabama Human Life Protection Act. While both claims are related to abortion, they are governed by different case law and the resolution of one will not resolve the other. See doc. 86.
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Edmund G. LaCour Jr. (ASB-9182-U81L) Solicitor General
A. Barrett Bowdre (ASB-2087-K29V) Deputy Solicitor General
/s Brad A. Chynoweth James W. Davis (ASB-4063-I58J) Brad A. Chynoweth (ASB-0030-S63K) Brenton M. Smith (ASB-1656-X27Q)
Assistant Attorneys General OFFICE OF ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130-0152 Telephone: (334) 242-7300 Fax: (334) 353-8400 Edmund.LaCour@AlabamaAG.gov Barrett.Bowdre@AlabamaAG.gov Jim.Davis@AlabamaAG.gov Brad.Chynoweth@AlabamaAG.gov Brenton.Smith@AlabamaAG.gov Counsel for Defendants Steve Marshall and State Health Officer Scott Harris
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Case 2:19-cv-00365-MHT-JTA Document 157 Filed 04/27/20 Page 22 of 22 CERTIFICATE OF SERVICE
I hereby certify that on April 27, 2020, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record.
s/ Brad A. Chynoweth Counsel for Defendants Steve Marshall and Dr. Scott Harris
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 Case 2:19-cv-00365-MHT-JTA Document 175 Filed 06/05/20 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, M.D., et al., Plaintiffs,
v. STEVEN MARSHALL, in his official capacity as Alabama Attorney General,
Defendant.

) ) ) ) ) CASE NO. 2:19-cv-00365-MHT-JTA ) ) ) ) )

ANSWER OF ALABAMA ATTORNEY GENERAL STEVE MARSHALL Alabama Attorney General Steve Marshall, sued in his official capacity, answers Plaintiffs’ First Amended Complaint (doc. 79) as set out below.1
INTRODUCTION 1. The allegations of paragraph 1 do not require a response as it is a description of the nature of Plaintiffs’ claims. Defendant denies that Plaintiffs are entitled to the relief requested under a proper interpretation of the United States Constitution. 2. The allegations of paragraph 2 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167). 3. Admitted that some individuals seek abortions for a variety of reasons.

1 The First Amended Complaint renamed Danny Carr, Daryl Bailey, Mark LeQuire, Robert Broussard, Ashley Rich, Hays Webb, and James Walburn as Defendants, but these Defendants were dismissed by the April 24, 2020 Order of the Court pursuant to an agreement of the parties. Doc. 154. State Health Officer Dr. Scott Harris was also renamed as a Defendant in the First Amended Complaint. However, the Court dismissed without prejudice all portions of Count I that concern the medical restrictions language contained in Dr. Harris’s April 3 health order and the entirety of Count II. Doc. 167. As a result, Plaintiffs and Dr. Harris filed a Joint Motion to Dismiss him from this suit. Doc. 174. Thus, Attorney General Steve Marshall is the sole remaining Defendant.

Case 2:19-cv-00365-MHT-JTA Document 175 Filed 06/05/20 Page 2 of 17
4. The allegations of paragraph 4 do not require a response as the law speaks for itself. Defendant denies that the United States Constitution guarantees a right to abortion or that Plaintiffs are entitled to the relief requested under a proper interpretation of the United States Constitution.
5. The allegations of paragraph 5 do not require a response as they are a statement of a legal conclusion. Defendant denies that Plaintiffs are entitled to the relief requested under a proper interpretation of the United States Constitution. Defendant wishes to enforce the challenged law and intends to argue in this case that H.B. 314 is constitutional under a proper interpretation of the United States Constitution.
6. Admitted that Eric Johnston and Representative Terri Collins were quoted as making these statements in the sources cited by Plaintiffs, and that Rep. Collins sponsored H.B. 314. Defendant denies the remaining allegations of paragraph 6.
7. Admitted that Governor Kay Ivey released a statement upon signing H.B. 314 that quoted H.B. 314’s statement that Alabama’s prior statute criminalizing abortion has remained “unenforceable as a result of the U.S. Supreme Court decision in Roe v. Wade,” and that Gov. Ivey’s statement said, regarding H.B. 314, that “at least for the short term, this bill may similarly be unenforceable.” Defendant denies the remaining allegations of paragraph 7.
8. The allegations of paragraph 8 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167).
9. Admitted that H.B. 314 was scheduled to take effect on November 15, 2019, until it was enjoined by the October 29, 2019 Order of the Court (doc. 69). Defendant denies the remaining allegations of paragraph 9.
10. The allegations of paragraph 10 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167).
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11. Admitted that Plaintiffs seek declaratory and injunctive relief preventing the enforcement of H.B. 314. The remaining allegations of paragraph 11 do not require a response insofar as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167).
JURISDICTION AND VENUE 12. Admitted. 13. Admitted that these statutes and rules of procedure authorize Plaintiff’s complaint for declaratory and injunctive relief. Defendant denies that Plaintiffs are entitled to the relief requested under a proper interpretation of the United States Constitution. 14. Admitted that venue is proper in the Middle District of Alabama.
PLAINTIFFS 15. Admitted that Dr. Robinson is the Medical Director of the Alabama Women’s Center (“AWC”) in Huntsville, Alabama, that Dr. Robinson performs abortions, and that H.B. 314 would criminally prohibit abortions under the terms set out in H.B. 314. Defendant lacks sufficient information to admit or deny the remaining allegations in paragraph 15 and therefore denies them. Defendant denies that Dr. Robinson may represent the interests of third parties. 16. Admitted that AWC is the only abortion clinic in Huntsville, Alabama. Defendant lacks sufficient information to admit or deny the remaining allegations in paragraph 16 and therefore denies them. Defendant denies that AWC may represent the interests of third parties. 17. Admitted that Planned Parenthood Southeast, Inc. (“PPSE”) has facilities in Birmingham and Mobile, Alabama. Defendant lacks sufficient information to admit or deny the remaining allegations in paragraph 17 and therefore denies them. Defendant denies that PPSE may represent the interests of third parties.
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18. Admitted that Reproductive Health Services (“RHS”) is the only abortion clinic in Montgomery, Alabama. Defendant lacks sufficient information to admit or deny the remaining allegations in paragraph 18 and therefore denies them. Defendant denies that RHS may represent the interests of third parties.
19. Admitted that West Alabama Women’s Center (“WAWC”) is the only abortion facility in Tuscaloosa, Alabama. Defendant lacks sufficient information to admit or deny the remaining allegations in paragraph 19 and therefore denies them. Defendant denies that WAWC may represent the interests of third parties.
DEFENDANTS 20. Admitted. 21. The allegations of paragraph 21 do not require a response as this defendant has been dismissed. 22. The allegations of paragraph 22 do not require a response as this defendant has been dismissed. 23. The allegations of paragraph 23 do not require a response as this defendant has been dismissed. 24. The allegations of paragraph 24 do not require a response as this defendant has been dismissed. 25. The allegations of paragraph 25 do not require a response as this defendant has been dismissed. 26. The allegations of paragraph 26 do not require a response as this defendant has a joint motion for dismissal pending.
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27. The allegations of paragraph 27 do not require a response as this defendant has been dismissed.
28. The allegations of paragraph 28 do not require a response as this defendant has been dismissed.
STATUTORY & LEGAL FRAMEWORK H.B. 314
29. The allegations of paragraph 29 do not require a response as the law speaks for itself.
30. The allegations of paragraph 30 do not require a response as the law speaks for itself.
31. The allegations of paragraph 31 do not require a response as the law speaks for itself.
32. The allegations of paragraph 32 do not require a response as the law speaks for itself.
33. The allegations of paragraph 33 do not require a response as the law speaks for itself.
34. The allegations of paragraph 34 do not require a response as the law speaks for itself.
35. The allegations of paragraph 35 do not require a response as the law speaks for itself.
36. The allegations of paragraph 36 do not require a response as the law speaks for itself.
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37. Admitted that H.B. 314 was set to take effect on November 15, 2019, until it was enjoined by the October 29, 2019 Order of the Court (doc. 69), that H.B. 314 would criminally prohibit abortions under the terms set out in H.B. 314, and that persons in violation of H.B. 314 would face the risk of criminal penalties.
The March 27 Order 38. The allegations of paragraphs 38 – 60 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167).
FACTUAL ALLEGATIONS 61. Admitted that AWC, RHS, and WAWC are the only three abortion clinics in the State. Defendant lacks sufficient information to admit or deny the remaining allegations in paragraph 61 and therefore denies them. 62. Defendant lacks sufficient information to admit or deny the allegations in paragraph 62 and therefore denies them. 63. Admitted that pregnancy is generally forty weeks in duration, and that Alabama law prohibits abortions where the probable postfertilization age of the unborn child is 20 or more weeks, subject to the exceptions contained in Alabama Code § 26-23B-5. The remaining allegations of paragraph 63 are denied. 64. Admitted that according to the publications cited very few abortions performed in Alabama in 2017 and 2018 were performed in hospitals. Defendant refers to the complete contents of the publications themselves for specific numbers of abortions performed in hospitals versus abortion clinics. 65. Denied.
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66. Denied. 67. Admitted that the publication cited states that one in four women will have an abortion by age forty-five. Defendant denies the remaining allegations of paragraph 67. 68. Admitted that some individuals seek abortions for a variety of reasons, and that the publication cited states 59% of women having abortions already have at least one child. 69. Admitted that some individuals seek abortions for a variety of reasons. 70. Admitted that some individuals seek abortions for a variety of reasons. 71. Admitted that some individuals seek abortions for a variety of reasons. 72. Admitted that some individuals seek abortions for a variety of reasons. 73. Admitted with the addition that “procedural abortion” is also commonly referred to as “surgical abortion.” 74. Defendant lacks sufficient information to admit or deny the allegations in paragraph 74 and therefore denies them. 75. Defendant lacks sufficient information to admit or deny the allegations in paragraph 75 and therefore denies them. 76. The allegations of paragraph 76 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, denied. 77. The allegations of paragraph 77 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, denied. 78. Defendant lacks sufficient information to admit or deny the allegations in paragraph 78 and therefore denies them.
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79. Defendant lacks sufficient information to admit or deny the allegations in paragraph 79 and therefore denies them.
80. Admitted that “procedural abortion” is commonly referred to as “surgical abortion.” Defendant lacks sufficient information to admit or deny the remaining allegations in paragraph 80 and therefore denies them.
81. Defendant lacks sufficient information to admit or deny the allegations in paragraph 81 and therefore denies them.
82. Defendant lacks sufficient information to admit or deny the allegations in paragraph 82 and therefore denies them.
83. The allegations of paragraph 83 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, denied.
84. Defendant lacks sufficient information to admit or deny the allegations in paragraph 84 and therefore denies them.
85. The allegations of paragraph 85 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, denied.
86. The allegations of paragraph 86 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, denied.
87. The allegations of paragraph 87 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, denied.
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Pregnancy and the COVID-19 Crisis 88. The allegations of paragraph 88 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, Defendant lacks sufficient information to admit or deny the allegations in paragraph 88 and therefore denies them. 89. The allegations of paragraph 89 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, Defendant lacks sufficient information to admit or deny the allegations in paragraph 89 and therefore denies them. 90. The allegations of paragraph 90 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, Defendant lacks sufficient information to admit or deny the allegations in paragraph 90 and therefore denies them. 91. The allegations of paragraph 91 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, Defendant lacks sufficient information to admit or deny the allegations in paragraph 91 and therefore denies them. 92. The allegations of paragraph 92 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, Defendant lacks sufficient information to admit or deny the allegations in paragraph 92 and therefore denies them. 93. The allegations of paragraph 93 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167);
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otherwise, Defendant lacks sufficient information to admit or deny the allegations in paragraph 93 and therefore denies them.
94. The allegations of paragraph 94 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, Defendant lacks sufficient information to admit or deny the allegations in paragraph 94 and therefore denies them.
95. The allegations of paragraph 95 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, Defendant lacks sufficient information to admit or deny the allegations in paragraph 95 and therefore denies them.
96. Defendant objects to the allegations in this paragraph as argument and denies the same.
97. Defendant admits that the Alabama Legislature has passed legislation to promote Alabama’s strong interest in protecting human life and has passed legislation related to abortion to protect public safety. The allegations regarding Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330 (M.D. Ala. 2014), do not require a response as the decision speaks for itself. Defendant objects to the remaining allegations in this paragraph as argument and denies the same.
98. The allegations of paragraph 98 do not require a response as the law speaks for itself.
99. The allegations of paragraph 99 do not require a response as the law speaks for itself. Defendant otherwise denies the allegations in paragraph 99.
100. The allegations of paragraph 100 do not require a response as the law and the decisions cited speak for themselves.
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101. The allegations of paragraph 101 do not require a response as the law speaks for itself.
102. The allegations of paragraph 102 do not require a response as the law and the decision cited speak for themselves.
103. The allegations of paragraph 103 do not require a response as the law and the decisions cited speak for themselves.
104. The allegations of paragraph 104 do not require a response as the law speaks for itself. Defendant otherwise denies the allegations in paragraph 104.
105. The allegations of paragraph 105 do not require a response insofar as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, the allegations of paragraph 105 do not require a response as the law speaks for itself.
106. The allegations of paragraph 106 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167).
107. The allegations of paragraph 107 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167).
108. The allegations of paragraph 108 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167).
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109. The allegations of paragraph 109 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167).
110. The allegations of paragraph 110 do not require a response as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167).
111. The allegations of paragraph 111 do not require a response insofar as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, denied.
112. Admitted that the statistical sources cited state the conclusions alleged in paragraph 55. Defendant otherwise denies the allegations of paragraph 112.
113. Defendant lacks sufficient information to admit or deny the allegations in paragraph 113 and therefore denies them.
114. Defendant lacks sufficient information to admit or deny the allegations in paragraph 114 and therefore denies them.
115. The allegations of paragraph 115 do not require a response insofar as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, Defendant lacks sufficient information to admit or deny the allegations in paragraph 115 and therefore denies them.
116. The allegations of paragraph 116 do not require a response insofar as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, denied.
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117. Admitted that pregnancy carries some risk of adverse physical or mental consequences. Defendant otherwise denies the allegations of paragraph 117.
118. The allegations of paragraph 118 do not require a response insofar as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, Defendant lacks sufficient information to admit or deny the allegations in paragraph 118 and therefore denies them.
119. The allegations of paragraph 119 do not require a response insofar as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, Defendant lacks sufficient information to admit or deny the allegations in paragraph 119 and therefore denies them.
120. The allegations of paragraph 120 do not require a response insofar as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, Defendant lacks sufficient information to admit or deny the allegations in paragraph 120 and therefore denies them.
121. The allegations of paragraph 121 do not require a response insofar as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, admitted that pregnancy carries some risk of adverse physical or mental consequences. Defendant denies the remaining allegations of paragraph 121.
122. Admitted that pregnancy carries some risk of adverse medical or physical consequences. Defendant otherwise denies the allegations of paragraph 122.
123. Admitted that the article cited states that 29 of 67 Alabama counties have hospitals that offer obstetrical care according to a statement made by an Alabama Department of Public
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Health employee. Defendant lacks sufficient information to admit or deny the remaining allegations in paragraph 123 and therefore denies them.
124. Admitted that the first source cited reports that nationally there were 7.2 pregnancyrelated deaths per 100,000 live births in 1987 and 18.0 in 2014. Admitted that the second source cited reports that black women were nearly three times more likely to die from pregnancy-related causes than white women on a national level and nearly five times more likely to die from pregnancy-related causes than white women in Alabama. Defendant lacks sufficient information to admit or deny the remaining allegations in paragraph 124 and therefore denies them.
125. Admitted that the source cited reports that Alabama is among the five states with the highest infant mortality rate. Defendant lacks sufficient information to admit or deny the remaining allegations in paragraph 125 and therefore denies them.
Injunctive Relief 126. The allegations of paragraph 126 do not require a response insofar as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, denied. 127. The allegations of paragraph 127 do not require a response insofar as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, denied.
CLAIM FOR RELIEF Count I
128. Defendant reincorporates his responses to the previous allegations in paragraphs 1 – 127.
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129. The allegations of paragraph 129 do not require a response insofar as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167); otherwise, the allegations of paragraph 129 do not require a response as they are a statement of a legal conclusion. Defendant denies that Plaintiffs are entitled to the relief requested under a proper interpretation of the United States Constitution.
Count II 130. Defendant reincorporates his responses to the previous allegations in paragraphs 1 – 129. 131. The allegations of paragraph 131 do not require a response insofar as Count II has been dismissed in its entirety pursuant to the Court’s May 22, 2020 Order (doc. 167).
REQUEST FOR RELIEF Plaintiffs’ Request for Relief does not require a response insofar as the claims against Dr. Harris’s health orders have been dismissed pursuant to the Court’s May 22, 2020 Order (doc. 167). As to Plaintiffs’ claims against H.B. 314, Defendant denies that Plaintiffs are entitled to the relief requested under a proper interpretation of the United States Constitution.
ADDITIONAL DEFENSES 1. As to all of his responses above, Defendant denies any allegation not specifically admitted in this Answer. 2. Plaintiffs fail to state a claim upon which relief can be granted. 3. There is no right to abortion in the United States Constitution. 4. Roe v. Wade, 410 U.S. 113 (1973), Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and their progeny were wrongly decided and should be overruled.
15

Case 2:19-cv-00365-MHT-JTA Document 175 Filed 06/05/20 Page 16 of 17
5. Plaintiffs lack standing to the extent they fail to allege they will suffer any violation of their own rights as opposed to the constitutional rights of third parties.
6. The clinic plaintiffs lack standing because they do not face criminal prosecution under the challenged law.
7. The named plaintiffs lack standing to assert the rights of third parties not before the court, and cases holding to the contrary should be overruled.
Respectfully submitted, Steve Marshall
Attorney General A. Barrett Bowdre (ASB-2087-K29V)
Deputy Solicitor General
s/ Brad A. Chynoweth James W. Davis (ASB-4063-I58J) Brad A. Chynoweth (ASB-0030-S63K) Brenton M. Smith (ASB-1656-X27Q)
Assistant Attorney General Office of the Attorney General 501 Washington Avenue Montgomery, Alabama 36130-0152 (334) 242-7300 Barrett.Bowdre@AlabamaAG.gov Jim.Davis@AlabamaAG.gov Brad.Chynoweth@AlabamaAG.gov Brenton.Smith@AlabamaAG.gov Counsel for Attorney General Steve Marshall
16

Case 2:19-cv-00365-MHT-JTA Document 175 Filed 06/05/20 Page 17 of 17
CERTIFICATE OF SERVICE I hereby certify that on the 5th day of June, 2020, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send a copy to the following: Randall C. Marshall ACLU OF ALABAMA P.O. Box 6179 Montgomery, AL 36106-0179 (334) 420-1741 (334) 420-1747 rmarshall@aclualabama.org Alexa Kolbi-Molinas Meagan Burrows AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2633 akolbi-molinas@aclu.org mburrows@aclu.org Carrie Y. Flaxman Planned Parenthood Federation of America 1110 Vermont Avenue, NW, Suite 300 Washington, D.C. 20005 (202) 973-4830 carrie.flaxman@ppfa.org Counsel for Plaintiffs
s/Brad A. Chynoweth Counsel for Attorney General Steve Marshall
17

 
 Case 2:19-cv-00365-MHT-JTA Document 176 Filed 06/08/20 Page 1 of 3

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,

)

)

v.

)

)

STEVEN MARSHALL, in his

)

official capacity as

)

Alabama Attorney General, )

et al.,

)

)

Defendants.

)

CIVIL ACTION NO. 2:19cv365-MHT (WO)

ORDER

Upon agreement of the parties, it is ORDERED that:

(1) The joint motion to dismiss (doc. no. 174) is

granted.

(2) Defendant Scott Harris is dismissed without

prejudice from this action and is terminated as a

party.

(3) Defendant Harris and his employees, agents, and

successors in office shall be bound by the terms of any

Case 2:19-cv-00365-MHT-JTA Document 176 Filed 06/08/20 Page 2 of 3

injunctive relief (including but not limited to a

temporary restraining order or preliminary injunction),

declaratory relief, and/or other relief against the

Alabama Attorney General and/or any of the other

defendant(s) by any court in this action so long as

such relief remains in effect as to the Alabama

Attorney General and/or any other defendant(s).

However, defendant Harris and his employees, agents,

and successors shall not be liable for any award of

attorneys’ fees, costs, or other monetary damages that

might be included as part of such relief. Nor shall

defendant Harris and his employees, agents, and

successors be bound by any relief that subsequently is

reversed, vacated, set aside, or otherwise limited as

to the Alabama Attorney General and/or any other

defendant(s).

However, defendant Harris and his

employees, agents, and successors in office shall take

no enforcement action against any plaintiff premised on

events that occurred while such relief was in effect.

2

Case 2:19-cv-00365-MHT-JTA Document 176 Filed 06/08/20 Page 3 of 3
(4) The court’s prior orders (doc. nos. 44, 49, and 154) shall remain in effect.
DONE, this the 8th day of June, 2020.
/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

 
 Case 2:19-cv-00365-MHT-JTA Document 183 Filed 08/11/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, M.D, et al.,

Plaintiffs, v. STEVEN MARSHALL, et al.,

CIVIL ACTION Case No. 2:19-cv-365-MHT-SMD

Defendants.

JOINT MOTION FOR ENTRY OF ORDER CONCERNING COSTS AND ATTORNEYS’ FEES All parties to this action move for entry of an order implementing their agreements concerning claims for costs and attorneys’ fees. In support of this motion, the parties state as follows: 1. Plaintiffs have asserted claims for costs and attorneys’ fees. See docs. 172, 177. 2. The parties have discussed these issues and agree that the State of Alabama shall pay to counsel for Plaintiffs the sum of $451,351.60 (four hundred fifty-one thousand three hundred fifty-one and 60/100 dollars) in satisfaction of all claims for costs and attorneys’ fees in this matter related to those claims in the First Amended Complaint concerning the State’s health orders during the COVID-19 pandemic.

1

Case 2:19-cv-00365-MHT-JTA Document 183 Filed 08/11/20 Page 2 of 3

3. To effectuate the parties’ agreement and resolve the issue of fees and

costs, the parties jointly move for an order requiring the payment of the agreed

amount within forty-five (45) days of the order.

4. A proposed order, to which all parties consent, is attached for the

Court’s consideration.

Respectfully submitted,

Steve Marshall,

/s/Alexa Kolbi-Molinas

Attorney General

Alexa Kolbi-Molinas *

New York State Bar No. 4477519

/s James W. Davis

Meagan Burrows *

James W. Davis (ASB-4063-I58J) New York State Bar No. 5341904

Brad A. Chynoweth (ASB-0030-

AMERICAN CIVIL LIBERTIES

S63K)

UNION FOUNDATION

Brenton M. Smith (ASB-1656-X27Q) 125 Broad Street, 18th Floor

Assistant Attorneys General

New York, NY 10004

akolbi-molinas@aclu.org

OFFICE OF ATTORNEY

mburrows@aclu.org

GENERAL

(212) 519-7845

501 Washington Avenue

Montgomery, Alabama 36130-0152 Randall C. Marshall (ASB-3023-

Telephone: (334) 242-7300

A56M)

Jim.Davis@AlabamaAG.gov

P.O. Box 6179

Brad.Chynoweth@AlabamaAG.gov Montgomery, AL 36106-0179

Brenton.Smith@AlabamaAG.gov (334) 265-1747

rmarshall@aclualabama.org

Counsel for Defendants Steve

Marshall and State Health Officer Attorneys for Plaintiffs Yashica

Scott Harris

Robinson, M.D., Alabama Women’s

Center, Reproductive Health Services,

and West Alabama Women’s Center

*Admitted Pro Hac Vice

2

Case 2:19-cv-00365-MHT-JTA Document 183 Filed 08/11/20 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on August ___, 2020, I electronically filed the foregoing with the Clerk of Court for the United States District Court for the Middle District of Alabama using the CM/ECF system, thereby serving all counsel of record.
/s/ James W. Davis James W. Davis Attorney for the Defendants
3

Case 2:19-cv-00365-MHT-JTA Document 183-1 Filed 08/11/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YASHICA ROBINSON, M.D, et al.,

Plaintiffs, v. STEVEN MARSHALL, et al.,

CIVIL ACTION Case No. 2:19-cv-365-MHT-SMD

Defendants.

ORDER ON COSTS AND ATTORNEYS’ FEES Upon consideration of the parties’ joint motion for an order concerning costs and attorneys’ fees (doc. no. ____), it is ORDERED that the motion is granted as follows: 1. Plaintiffs Yashica Robinson, M.D., Alabama Women’s Center, Reproductive Health Services, and West Alabama Women’s Center have asserted claims for costs and attorneys’ fees. 2. The Court finds that Plaintiffs are “prevailing parties” under 42 U.S.C. § 1988. 3. Plaintiffs, Defendants, and their counsel represent that the parties have negotiated an agreement to resolve all claims for costs and attorneys’ fees.

Case 2:19-cv-00365-MHT-JTA Document 183-1 Filed 08/11/20 Page 2 of 2
4. In accordance with the parties’ negotiated resolution, the Court orders that the State of Alabama shall pay to the benefit of counsel for Plaintiffs the sum of $451,351.60 (four hundred fifty-one thousand three hundred fifty-one and 60/100 dollars) in satisfaction of all claims for costs and attorneys’ fees in this matter related to those claims in the First Amended Complaint concerning the State’s health orders during the COVID-19 pandemic.
5. Such payments will satisfy all claims for attorneys’ fees and costs, taxable and non-taxable, with respect to those claims concerning the State’s health orders during the COVID-19 pandemic. Payment shall be made within forty-five (45) days of the entry of this order.
DONE, this the _____ day of __________, 2020.
_______________________________ UNITED STATES DISTRICT JUDGE

 
 Case 2:19-cv-00365-MHT-JTA Document 184 Filed 08/12/20 Page 1 of 3

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,

)

)

v.

)

)

STEVEN MARSHALL, in his

)

official capacity as

)

Alabama Attorney General, )

et al.,

)

)

Defendants.

)

CIVIL ACTION NO. 2:19cv365-MHT (WO)

ORDER

Upon consideration of the parties’ joint motion for

an order concerning costs and attorneys’ fees (doc. no.

183), it is ORDERED that the motion is granted as

follows:

1. Plaintiffs Yashica Robinson, M.D., Alabama

Women’s Center, Reproductive Health Services, and West

Alabama Women’s Center have asserted claims for costs

and attorneys’ fees.

Case 2:19-cv-00365-MHT-JTA Document 184 Filed 08/12/20 Page 2 of 3
2. The court finds that plaintiffs are “prevailing parties” under 42 U.S.C. § 1988.
3. Plaintiffs, defendants, and their counsel represent that the parties have negotiated an agreement to resolve all claims for costs and attorneys’ fees.
4. In accordance with the parties’ negotiated resolution, the court orders that the State of Alabama shall pay to the benefit of counsel for plaintiffs the sum of $ 451,351.60 (four hundred fifty-one thousand three hundred fifty-one and 60/100 dollars) in satisfaction of all claims for costs and attorneys’ fees in this matter related to those claims in the First Amended Complaint concerning the State’s health orders during the COVID-19 pandemic.
5. Such payments will satisfy all claims for attorneys’ fees and costs, taxable and non-taxable, with respect to those claims concerning the State’s health orders during the COVID-19 pandemic. Payment
2

Case 2:19-cv-00365-MHT-JTA Document 184 Filed 08/12/20 Page 3 of 3
shall be made within forty-five (45) days of the entry of this order.
It is further ORDERED that plaintiffs’ initial motion for attorneys’ fees and costs (doc. no. 177) is denied as moot.
DONE, this the 12th day of August, 2020. /s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE