U.S. District Judge Myron Thompson Monday morning ordered a lawsuit over an Alabama abortion regulation to go to trial, saying there were significant points of dispute over how new admitting privileges requirements for physicians would affect the state’s five abortion clinics.
In an 86-page decision, Thompson denied requests for summary judgment from both sides on several claims. However, the judge wrote that there was “a genuine dispute of material fact” on whether clinics could comply with the regulation, and what impact they would have on the three clinics that sued to overturn it. The clinics, including Montgomery-based Reproductive Health Services, have said they will be forced to shut their doors if the requirement becomes law.
Thompson seemed skeptical of state arguments that admitting privileges — agreements signed between physicians and hospitals to admit a certain number of patients in a given time period — could be a constitutional way of protecting fetal life. The state has argued that it has a compelling interest to do so.
The judge wrote that the court “cannot find that (the requirement) was passed with a fetal-protective purpose. But nor can the court rule out the possibility.” However, Thompson went on to write that protecting fetal life would be unconstitutional if it was done coercively.
“A statute which attempts to save fetal lives (that is, stop abortions) by using the State’s coercive power to make access to abortion more difficult is interfering with the core of the constitutional abortion right: the right of a woman to make the final decision about whether to have an abortion,” the judge wrote.
The admitting privileges requirement could only meet the state’s stated goal, Thompson wrote, if it was coercive. That would be unconstitutional, he wrote, because the state can only use persuasive methods to discourage women from having abortions.
“It is clear that admitting privileges as a prerequisite to obtaining an abortion will save no fetal lives — unless the requirement closes abortion clinics or reduces their capacity,” Thompson wrote. “Therefore, if (the requirement) was intended to protect fetal lives, it operates only through coercive means, specifically by closing down clinics or limiting their capacity.”
Prior to passage of the law, state regulations required at least one physician affiliated with an abortion clinic to have admitting privileges.
Supporters of the law, signed by Gov. Robert Bentley last year, said admitting privileges would ensure the health of women undergoing abortions by ensuring quick access to hospital care in the event of complications. Opponents, pointing to the safety of most abortion procedures, said it would be impossible for a physician at a clinic to meet the minimum number of patients required to obtain most privileges, and said the real aim of the regulation is to limit access to abortion services in the state.
The judge temporarily blocked the admitting privileges requirement last June, following the suit by Reproductive Health Services and clinics operated by Planned Parenthood in Birmingham and Mobile. The suit did not address other measures of the law, including requirements that abortion clinics be built up to ambulatory clinic requirements, and a section that makes it a felony for a nurse, nurse practitioner or physician’s assistant to perform abortions. Those have taken effect.
Both sides in the case Monday expressed optimism about a coming trial. Staci Fox, CEO of Planned Parenthood Southeast, said in a statement that she was “confident the court will ultimately rule on the side of Alabama women, who deserve to make their own private health care decisions without the interference of politicians.”
“If this dangerous law goes into effect, three-fifths of the licensed health centers that provide safe, legal abortion in Alabama would be forced to stop providing abortions immediately, leaving many women without access to safe, constitutionally protected medical care,” the statement said.
Andrew Brasher, solicitor general for the state of Alabama, said in a statement that he was content with the decision.
“We are pleased that Judge Thompson granted the state summary judgment on three out of four of plaintiffs’ claims, and we intend to vigorously defend the law against the remaining claim at trial,” the statement said.
– posted by Brian Lyman