By Alana Semuels
A law that would have closed three of five abortion clinics in Alabama is unconstitutional, a federal judge ruled Monday, concluding in an extensive 172-page opinion that a "climate of extreme hostility" toward abortion already makes it difficult for doctors to perform and for women to access the procedure in the state.
The Alabama law would have required doctors who perform abortions to obtain admitting privileges at a local hospital. Since many of those doctors don't live in the state, it was unlikely any would be able to get privileges, wrote U.S. District Court Judge Myron Thompson.
The requirement "would have the effect of imposing a substantial obstacle for women who would seek abortions in Alabama," he said. "The law would therefore impose an undue burden on their constitutional right to an abortion."
Alabama Atty. Gen. Luther Strange has said he will appeal the decision.
But by invoking "undue burden," which was the foundation for a 1992 U.S. Supreme Court ruling, Thompson's opinion signals a shift in how some courts rule on these laws.
Laws requiring doctors who perform abortions to have admitting privileges have been passed and then challenged around the country, with varying results. A three-member panel of the U.S. 5th Circuit Court of Appeals upheld Texas' version of the law, while last week, a separate 5th Circuit panel blocked Mississippi's.
Similar laws are in effect in Missouri, North Dakota and Tennessee, and Louisiana's is set to take effect Sept. 1.
Legal experts say Thompson's opinion is notable not only because it took a detailed look at the Alabama law, the Women's Health and Safety Act, and the effects it would have on women and doctors, but the judge referred to a 1992 Supreme Court decision that set legal precedent.
In that case, Planned Parenthood vs. Casey, the justices ruled that states could not put an "undue burden" on women seeking an abortion. Thompson, using that line of reasoning, essentially said that to pass laws that create high obstacles for obtaining an abortion, the state must have a strong justification for doing so, according to Caitlin Borgmann, a professor of law at the City University of New York.
The "undue burden" argument has not been used frequently, but she said it could be a new way for judges to evaluate abortion laws. "The way the court has applied the Casey decision is helpful and logical; it could help judges balance states' justification for laws with their effects," she said.
Thompson carefully researched the difficulties of seeking and providing abortions in Alabama. He found that few of the doctors that provided abortions in Alabama actually lived in the state -- one lives in Nigeria, another in Chicago, another in Atlanta -- in part because of the hostility in Alabama toward abortion.
An Alabama abortion doctor was shot and killed in 1993. A clinic was burned down in 1997, and a remote-controlled bomb exploded outside a clinic in Birmingham in 1998. There were 12 abortion clinics in the state in 2001; now there are five.
During the 10-day bench trial, doctors told him that they feared for their safety and that of their families, Thompson wrote. Local hospitals told him that they would not grant admitting privileges to any doctors who performed abortions. And he discovered that no OB/GYN residency program in Louisiana, Alabama or Mississippi offered abortion training.
If the plaintiffs' clinics, which are in Mobile, Birmingham and Montgomery, closed because of the admitting privileges law, it is unlikely that other clinics would open, he concluded.
Even those doctors who are qualified to perform abortions and are supportive of abortion rights "are extremely unlikely to begin performing abortions in these three cities, due to the severe professional consequences of doing so, and the lingering threat of violence against abortion doctors, particularly in Alabama," he wrote.
In the Mississippi decision, the three-judge panel ruled that the state's admitting privileges law was unconstitutional because it would have closed the one remaining clinic in the state. Mississippi could not shift its constitutional duties to other states, the judges ruled.
In the Texas decision, on the other hand, a three-judge panel ruled that the state's admitting privileges law was constitutional. The Center for Reproductive Rights has asked the full 5th Circuit to rehear the case, and is awaiting a response.
Benjamin Clapper, executive director of the Louisiana Right to Life Federation, said he didn't believe that the Alabama decision was relevant to the Louisiana law, which may close three of the state's five clinics when it goes into effect in a few weeks.
Louisiana is in the 5th Circuit, where there are two contrasting decisions about admitting privileges laws; Alabama is in the 11th Circuit. Clapper contested the argument that the laws created unconstitutional burdens on access to abortion.
"The standard is an appropriate standard for surgical facilities," he said of his state's law. "It is not an undue burden for women; it is put in place to enhance the quality of care provided."
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