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Ala. Abortion-Doctor Law Is Unconstitutional, District Court Rules

By Mark Wilson, Esq. on August 04, 2014 | Last updated on March 21, 2019

Hot on the heels of a similar ruling in Mississippi last week, a federal judge in Alabama has also declared part of the state's abortion law unconstitutional.

As in Mississippi, the issue in Alabama was the constitutionality of a state law requiring doctors administering abortions to have admitting privileges at local hospitals. (Laws requiring admitting privileges are being used to try to eliminate access to abortions in several states, mainly in the South.)

Judge Myron Thompson's 172-page opinion in Planned Parenthood v. Strange found that the Alabama's Women's Health and Safety Act of 2013 is an "impermissible undue burden" that would "have the striking result of closing three of Alabama's five abortion clinics, clinics which perform only early abortions, long before viability."

Paging Dr. Kafka

The meat of the opinion from the U.S. District Court for the Middle District of Alabama, Northern Division, lies in determining whether Alabama's law is actually necessary.

The state can regulate pre-viability abortion, but only if the state's interest in regulation outweighs "the character and magnitude of the asserted injury." This requires a court to look into not only the state's asserted justification for the regulation, but "the strength of the State's justifications for regulations." This is a nice way of saying, "We don't always believe you when you say you're restricting abortions for a good reason."

And they were not so strong. Because the state intentionally crafted a law full of Catch-22s and Hobson's choices, Judge Thompson didn't credit "women's safety" as the motivating factor in writing Alabama's law. For example, at one hospital, doctors who provide abortions must have performed at least 25 non-abortion OB/GYN procedures in the previous year in order to qualify for admitting privileges. Naturally, since the doctors in question perform only abortions, they don't have any evidence of such procedures and therefore don't qualify for admitting privileges. Even they did, doctors who perform only abortions don't see enough patients per year to maintain admitting privileges.

The opinion resounds with more examples of such situations, which one doesn't believe went unnoticed by the Alabama legislature when drafting the statute.

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It's Just Like Guns, Guys!

In an interesting appeal to the public consciousness, Judge Thompson ended his opinion by comparing restrictions on abortion to restrictions on the right to own firearms. Imagine, he said, if the state passed a law that had the effect of reducing to two the number of gun vendors in Alabama. "The defenders of this law would be called upon to do a heck of a lot of explaining -- and rightly so in the face of an effect so severe," Thompson wrote.

Even though he found the law unconstitutional, Judge Thompson threw the state a bone in the form of asking it what kind of relief the court could fashion, suggesting that perhaps at least part of the law could be salvaged. An interesting face-saving maneuver, especially since this is the third law of its kind to be struck down by a federal court (although the Texas law was unstruck in November).

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