Probably the single most important constitutional issue facing women who seek abortions is whether a state may enact a sham health law which, on its surface, appears designed to make abortions safer — but which, in reality, is designed to create regulatory burdens that limit access to abortions. An Alabama law that was declared unconstitutional on Monday is one of the most aggressive examples of these sham health laws.
Under this law, every doctor performing abortions in Alabama must “have staff privileges at an acute care hospital within the same standard metropolitan statistical area as the facility is located that permit him or her to perform dilation and curettage, laparotomy procedures, hysterectomy, and any other procedures reasonably necessary to treat abortion-related complications.” Clinic administrators who employ doctors in violation of this law face felony charges, and the clinic can lose its license to operate. Moreover, as Judge Myron Thompson explains in his opinion striking down the law, it “would have the striking result of closing three of Alabama’s five abortion clinics.”
In striking down this law, Judge Thompson begins with the Supreme Court’s decision in Planned Parenthood v. Casey, a vague opinion that has largely enabled anti-abortion judges to uphold restrictions on women’s reproductive health while simultaneously allowing judges who support the right to choose to do the opposite. As Thompson interprets the Supreme Court’s precedents, his court “must determine whether, examining the regulation in its real-world context,” it imposes an obstacle to women’s right to choose an abortion that “is more significant than is warranted by the State’s justifications for the regulation.”
His opinion is long — sweeping through a full 172 pages of discussion of the Alabama law, its impact on women and health providers and its inadequate justification as a health law. According to Thompson, “none of the doctors who provide abortions in Montgomery, Birmingham, and Mobile would be able to obtain staff privileges that satisfy the requirements” of the Alabama law, and “no doctors who currently hold or could obtain such privileges would begin performing abortions in those cities.” The doctors who currently perform abortions in these cities do not live in Alabama, and many hospitals will only grant staff privileges to physicians who live locally. Others won’t grant privileges to these doctors because they object to abortion on religious or other grounds, or because doctors who perform abortions are unlikely to admit enough patients to justify granting them privileges at a hospital.
Nor are any new doctors likely to step forward if the current abortion providers are no longer able to do so in Alabama. Judge Thompson outlines numerous reasons why this is the case — fear of professional consequences, a general decline in abortion providers, especially in the South — but one part of his analysis stands out. Even doctors who believe that women should have greater access to abortion are unlikely to perform this procedure because they fear outright terrorism by abortion opponents. “In 1993,” Thompson explains, “a gunman shot and killed Dr. David Gunn, an Alabama resident who provided abortions throughout the State and in northern Florida. Dr. Gunn was the first doctor in the nation to be murdered for performing abortions.” A few years later, an abortion clinic in West Alabama was firebombed.
Meanwhile, some of the doctors who currently perform abortions in the state testified to their fear for their own safety. “Every time I go to work,” one doctor testified, “whether it’s in Birmingham or Mobile, I’m always afraid that there will be somebody who is in the crowd who is passionate enough about the topic that they’re willing to shoot. I worry about my children. I worry about my husband, my extended family.” Because of this fear, “her home is under FBI surveillance and has a security system. She also takes additional precautionary measures in order to maintain anonymity, including disguising her clothes, covering her face, and renting a different car every time she drives from her Atlanta residence to an Alabama clinic.”
So the Alabama law would stop several existing providers from performing abortions, and no one else is likely to step up to replace them. Meanwhile, Thompson lays out just how unnecessary the law is if it is justified as a health regulation. “it is first necessary to recognize how vanishingly rare it is for women to have serious complications from early-term abortions,” Thompson writes. “Complications that require hospitalization occur in only 0.05 to 0.3 % of such abortions.” Indeed, according to one doctor’s testimony, “penicillin is more than two to three times more likely to kill a patient than an early-term abortion.”
So there is no good reason to require abortion providers to have hospital admission privileges, much less the very specific privileges required by this Alabama law. And the law works significant harm to a woman’s right to choose in Alabama. Given this imbalance, Judge Thompson strikes the law.
It is an open question, however, whether Thompson’s decision will survive further review. Thompson’s opinion will appeal to the United States Court of Appeals for the Eleventh Circuit, a court which includes some very conservative judges. Moreover, even if the Eleventh Circuit upholds Thompson’s decision, the conservative Fifth Circuit recently upheld a similar Texas law. When federal appeals courts divide in similar cases, the Supreme Court often steps in to resolve the dispute.
If the justices do step in, that is probably bad news for Team Choice. Justice Anthony Kennedy, the ostensible swing vote in abortion cases, has not cast a pro-choice vote in the last 22 years.