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West Alabama Women's Center v. Miller
Citations: 217 F. Supp. 3d 1313; 2016 U.S. Dist. LEXIS 149251; 2016 WL 6395904Docket: CIVIL ACTION NO. 2:15cv497-MHT
Court: District Court, M.D. Alabama; October 27, 2016; Federal District Court
Providers of abortion and reproductive-health services in Alabama have challenged two 2016 state statutes: the "school-proximity law," which prohibits the licensing of abortion clinics within 2,000 feet of K-8 public schools, and the "fetal-demise law," which criminalizes the dilation and evacuation (D&E) method of second-trimester abortion unless fetal demise is induced beforehand. The plaintiffs, West Alabama Women’s Center and Alabama Women’s Center, along with their medical directors, argue that these laws impose unconstitutional restrictions on abortion access under the Due Process Clause of the Fourteenth Amendment. The defendants include state officials sued in their official capacities. Jurisdiction is established under federal question and civil rights statutes. The court is currently considering the plaintiffs’ motion for a preliminary injunction, which it intends to grant for both laws based on evidence presented during a hearing. The opinion also outlines a historical context of prior regulations affecting abortion clinics in Alabama, including a ban on abortions after 20 weeks, requirements for clinics to meet ambulatory surgical center standards, and a prior unconstitutional staff-privileges requirement for physicians. Additionally, the informed-consent waiting period was increased from 24 to 48 hours in 2014. In the past 15 years, Alabama has seen a significant decline in abortion clinics, from 12 in 2001 to just five currently operational. The plaintiffs manage two of these clinics: the Alabama Women’s Center in Huntsville and the West Alabama Women’s Center in Tuscaloosa, which together accounted for 72% of all abortions in Alabama in 2014. The Huntsville clinic, established in 2001, is the only abortion provider in its area, serving a population of 417,593. It offers various reproductive health services, with about 14% of Alabama's abortions conducted there in 2014. The West Alabama Women’s Center, operational since 1993, is the sole clinic in Tuscaloosa and west Alabama, performing approximately 58% of the state's abortions that year. Both clinics are unique in that they perform abortions after 15 weeks, utilizing the D&E surgical method, with a total of about 560 such procedures conducted in 2014. The litigation began in July 2015, initiated by the Tuscaloosa clinic after the retirement of its only physician with hospital staff privileges, challenging a regulation from the Alabama Department of Public Health requiring all abortion providers to have staff privileges at a local hospital. The court temporarily restrained enforcement of this regulation, which led to a waiver for the Tuscaloosa clinic while the department amended the regulation to allow clinics to operate without staff privileges if they provide patients with their medical records before leaving the clinic. Additional laws affecting abortion were enacted in May 2016. After receiving court approval, the Tuscaloosa clinic and its medical director amended their complaint to contest a newly amended regulation and two laws that affected both the Tuscaloosa and Huntsville clinics. The Huntsville clinic and its medical director were subsequently added as plaintiffs, while the State Attorney General and two district attorneys were named as defendants. On July 13, 2016, the parties reached an agreement for a temporary restraining order against the enforcement of the two laws, lasting until three weeks post-hearing on the plaintiffs’ preliminary-injunction motion. A settlement regarding the amended regulation was later agreed upon, leading to the dismissal of that claim. The court conducted a preliminary injunction hearing from October 4 to 6, 2016, after which the temporary restraining order on the school-proximity and fetal-demise laws was set to expire on October 27, 2016. To establish the appropriateness of a preliminary injunction, plaintiffs must demonstrate: 1) a substantial likelihood of prevailing on the merits; 2) irreparable injury if the injunction is not granted; 3) that the threatened injury to the plaintiff outweighs any damage to the opposing party; and 4) that issuing the injunction will not harm the public interest. The burden of proof lies with the plaintiff for all four criteria. Specifically, to meet the likelihood of success requirement, plaintiffs must show the statute likely violates women's substantive due process rights regarding abortion access. This is assessed using the "undue burden" standard, which dictates that any regulation imposing a significant obstacle to a woman seeking an abortion of a nonviable fetus is unconstitutional. This principle is rooted in precedents established in *Planned Parenthood of Southeastern Pennsylvania v. Casey* and *Whole Woman’s Health v. Hellerstedt*, which affirm that government regulations cannot impose substantial barriers on the right to choose an abortion while furthering legitimate state interests. The undue-burden analysis mandates that courts evaluate both the burdens imposed by abortion laws and their associated benefits. The severity of the obstacle created by a regulation directly correlates with the robustness of the government's justification for that regulation. A more severe obstacle requires a stronger justification in terms of the benefits provided and the likelihood of achieving those benefits. The weaker the state interest, the more likely even minor burdens will be deemed "undue." The Alabama school-proximity law prohibits the issuance or renewal of health center licenses for abortion clinics within 2,000 feet of K-8 public schools. Both the Tuscaloosa and Huntsville clinics are affected by this law, with their licenses set to expire on December 31, 2016, should the law take effect. There are no legislative findings explaining the law's purpose. Evidence submitted by plaintiffs, including newspaper articles, suggests that the law was initiated by anti-abortion advocate Reverend James Henderson to close the Huntsville clinic, with assistance from Governor Bentley’s staff in seeking legislative sponsorship. The State claims the law serves two interests: minimizing disturbances in educational environments and supporting parental control over children's exposure to abortion. However, the State acknowledges that disturbances are caused by demonstrators, not the clinics themselves, and that the law’s intent is to relocate protests away from schools. The court must now derive findings regarding these asserted interests from the judicial record, as the statute lacks explicit legislative findings. This approach aligns with existing case law, allowing the district court to weigh the evidence presented. The court finds that plaintiffs are likely to succeed in arguing that the school-proximity law significantly obstructs women's substantive due-process rights to obtain a pre-viability abortion. The law's 2,000-foot restriction on clinic locations does not effectively advance the State’s purported interests in minimizing disruption or protecting parental rights regarding children's exposure to abortion. Evidence shows that a middle school near the Tuscaloosa clinic is separated by a wooded area, and students are neither aware of the clinic nor its demonstrators, undermining the law's justification. In Huntsville, while there are protests outside the clinic, there is no evidence of concern from local students or parents. The entrances to nearby schools are located on different streets, and accessing the schools does not require passing the clinic, further indicating that the law does not fulfill its intended purposes regarding the Huntsville clinic either. Overall, the record suggests that the law imposes a significant burden on abortion access without serving the State's claimed interests. Parents have raised concerns about protestors near an abortion clinic, yet there is no evidence that these protests disrupt the educational environment of a nearby academy. Protests are neither visible nor audible from within the school, and there is no indication that students are disturbed during arrival or departure. The driveway where demonstrators stand is not utilized for dropping off children but is instead used for accessing a parking lot. The main entrance for drop-off is located on a different street, and school buses operate further up the road. The state's interest in minimizing disruption or controlling children's exposure to abortion topics is minimally served by closing or relocating the clinic, as evidenced by only one instance where a mother addressed her child's questions about abortion due to the protests. Furthermore, the nature of the law does not prevent students from encountering protests in the city, regardless of the clinic's location. Evidence suggests that protests would persist even if the clinic were relocated, as anti-abortion demonstrations have historically occurred at the site, including when it was previously used for obstetric and gynecological services by the clinic's medical director. This director plans to continue her practice at the facility, indicating that protests would likely continue at that location regardless of legal changes. Additionally, if the law takes effect, the clinic might close, but the director has stated her intention to perform abortions there, further ensuring ongoing demonstrations. The court determines that the school-proximity law is unlikely to serve the State’s stated goals of reducing disruption and enhancing parental control regarding abortion exposure. The evidence presented does not substantiate that the law promotes these interests, leading the court to assign it minimal weight in its evaluation. The law would significantly burden women's access to abortion services, as it would prevent the State Health Department from renewing licenses for the Huntsville and Tuscaloosa clinics, necessitating their relocation or closure by December 31, 2016. The court concludes that relocating is impractical for both clinics, which would likely have to shutter if the law is enacted. The Huntsville clinic has already faced substantial financial strain due to previous surgical-center requirements, incurring debts exceeding $530,000 for relocation and renovations, which the clinic owner and Dr. Robinson White covered through personal loans and savings, resulting in significant personal debt. Similarly, the Tuscaloosa clinic has spent $130,000 on renovations to meet prior requirements, and any further relocation would require the owner to utilize retirement funds or incur debt that would be unmanageable. The clinics also face challenges in leasing new spaces due to targeted actions from anti-abortion protestors against landlords of abortion service facilities, further complicating their operational viability. Demonstrations against the former landlord of the Tuscaloosa clinic led to the non-renewal of its lease. Johnson's extensive six-month search for a new facility in Huntsville was unsuccessful, as every potential lessor refused to lease space once informed the clinic would operate as an abortion provider. During the relocation of the Huntsville clinic, the stigma attached to abortion also hindered efforts to secure financing and legal assistance. These challenges align with the court's earlier findings of a hostile environment for abortion providers in Alabama, suggesting that relocating the clinics is not feasible. The State argues that the financial positions of the clinics should not factor into the burdens analysis regarding their closure. However, this interpretation misrepresents the undue-burden case law, which emphasizes understanding the "real-world context" of the statute's effects. The Supreme Court's ruling in Casey acknowledged that certain requirements could create substantial obstacles, such as spousal notification in abusive relationships. Similarly, costs imposed on abortion providers, regardless of their financial situations, can burden women's access to abortion services. The Supreme Court's decision in Whole Woman’s Health highlighted that substantial compliance costs could hinder the availability of surgical centers. If two of Alabama's five abortion clinics close, only three would remain, leaving significant populations in Huntsville and Tuscaloosa without access to licensed abortion providers, creating substantial burdens on women seeking these services. Women in Alabama would face significant restrictions on obtaining abortions, as only the Tuscaloosa and Huntsville clinics would provide services after 15 weeks of pregnancy. Although abortions before this period would still be available, women relying on these clinics would have to travel much farther, disproportionately impacting low-income women, who make up half of all abortion recipients in the state. For instance, if the Huntsville clinic closed, women there would need to travel at least 200 miles round-trip to Birmingham, while those in Tuscaloosa would face a 110-mile round-trip. Research indicates that increased travel distances correlate with lower abortion rates. The court has noted the severe effects of traveling distances under 50 miles, and the Supreme Court has acknowledged that longer distances, combined with other obstacles, further burden women seeking abortions. If the school-proximity law were enacted, women in Huntsville and Tuscaloosa would have to arrange long-distance trips, which could be unfeasible for those without adequate resources, potentially leading to delays or preventing access altogether. Half of women who experience delays attribute them to logistical challenges like transportation, funding, and childcare. Furthermore, the remaining three abortion clinics in Alabama would not have the capacity to meet the increased demand; the Huntsville and Tuscaloosa clinics historically performed the majority of abortions, accounting for 72% in 2014 and 60% in 2013. The three remaining clinics, which collectively performed 2,218 abortions in 2014, could only accommodate a maximum of 4,500 abortions under ideal conditions, which depend on unrealistic staffing expansions due to the prevailing stigma surrounding abortion in the state. In 2014, the Mobile and Birmingham clinics performed a total of 1,342 abortions and estimate they could increase this to 2,700 annually with expanded capacity to operate four days a month. However, they face staffing challenges that hinder expansion. Current clinics do not plan to provide abortions at or beyond 15 weeks, and the implementation of a school-proximity law would exacerbate existing demands, as the remaining clinics cannot meet the potential increased demand. Increased capacity would likely incur significant costs and lead to longer travel times for women, resulting in delays that pose higher medical risks and increased costs for later-term abortions. If delays extend past 20 weeks, abortions would become illegal in Alabama, except for specific circumstances. For women in abusive situations, delays may prevent them from obtaining an abortion altogether, particularly if they require confidentiality. Additionally, the quality of care may decline in overburdened clinics, which would affect the individualized attention and support women receive. Collectively, these factors create substantial barriers to accessing abortion services, potentially leading some women to seek unsafe alternatives due to restricted access and heightened obstacles. The Tuscaloosa clinic has encountered instances of self-abortion attempts, particularly during its temporary closure in 2015, with women seeking abortions despite the clinic being closed; one woman notably threatened self-harm. During this period, the Huntsville clinic received increased calls from women unable to access abortion providers, some expressing intentions to self-induce abortions. The Tuscaloosa medical director reported treating women who attempted self-abortion using dangerous methods, such as ingesting turpentine. If the proposed school-proximity law is enacted, it is expected that self-abortion attempts would rise. The Tuscaloosa and Huntsville clinics account for over 70% of abortions in Alabama and are the only facilities providing abortions at 15 weeks of pregnancy. If these clinics were forced to cease operations under the new law, access to abortions in Alabama would be severely diminished, creating substantial burdens for women seeking pre-viability abortions. The analysis of the undue burden focuses on balancing the state's interests against the obstacles the law creates. The judicial record indicates that the state’s interests are minimal and should carry little weight, while the law would impose significant burdens on women’s access to abortion. Consequently, the court preliminarily concludes that the school-proximity law does not provide sufficient benefits to justify these burdens and thus is deemed unconstitutional as it constitutes an undue burden on abortion access. Additionally, the state argues it can regulate businesses near schools, citing First Amendment challenges to zoning laws. However, this argument misinterprets the undue-burden analysis, as established by the Supreme Court, which requires a comprehensive examination of the judicial record regarding the law’s impact on abortion access. The analysis of laws regulating abortion access requires a rigorous judicial review, distinct from the less strict scrutiny applied to economic legislation. In contrast to zoning cases where government authority is broad, the standard of review hinges on the nature of the threatened right. For instance, restrictions on liquor establishments near schools often receive judicial deference, as seen in Davidson v. City of Clinton. However, when constitutionally protected interests are at stake, such regulations may fail to meet legal scrutiny, as demonstrated by Larkin, which invalidated a statute allowing schools and churches to veto liquor licenses nearby. The State's reliance on the First Amendment's secondary effects doctrine, upheld in City of Renton regarding adult theaters, is flawed when applied to abortion clinics. The State argues it has an interest in regulating the secondary effects of abortion clinics, such as demonstrations and the impact on children. However, the secondary-effects doctrine is specific to First Amendment claims, which are not currently at issue. The Supreme Court has also rejected the use of this doctrine for speech deemed disturbing or offensive, as established in Boos v. Barry and Reno v. American Civil Liberties Union. Therefore, even under the Renton framework, the State cannot compel abortion clinics to relocate due to public reactions to protests. Alternatives to regulating clinic locations could include implementing "time, place, and manner" restrictions on demonstrations, as endorsed in McCullen v. Coakley. Ultimately, it is the legislature's responsibility to determine the most effective regulatory measures. The court finds that the school-proximity law imposes substantial obstacles on women's rights to obtain abortions and does not significantly advance the State's interests, confirming its preliminary ruling of unconstitutionality. Regarding irreparable harm, implementation of the law effective January 1, 2017, would force the Tuscaloosa and Huntsville clinics to close, with the Tuscaloosa clinic ceasing abortion services by November 2016. Such business closures constitute irreparable harm, supported by precedent. Alabama women seeking pre-viability abortions would experience immediate harm, as access would be severely restricted, requiring lengthy travel to obtain services, leading to delays, increased medical risks, and potential loss of access due to time constraints. The court emphasizes that the law infringes upon women's constitutionally protected privacy rights, and irreparable harm is presumed in ongoing threats to this right. The plaintiffs have demonstrated a need for a preliminary injunction to prevent further irreparable injury. In assessing the balance of hardships, the State has not shown any significant harm from an injunction, with the minor inconvenience of a legislative law not taking effect being outweighed by the substantial harm to plaintiffs and women in Alabama. The State has not established that its interests are significantly threatened by delaying the implementation of a law restricting abortion, which would not impose serious hardship on the State. Conversely, plaintiffs would face immediate closure of abortion services before January 1, 2017, creating substantial barriers for women, including denial of abortions at 15 weeks and increased health risks from limited access to care. The balance of hardships favors the plaintiffs, who demonstrate concrete harms, while the State's potential harms remain speculative and unproven in relation to its claimed interests. In assessing the public interest regarding a preliminary injunction, it is deemed beneficial to maintain the status quo to allow for a thorough evaluation of the law's legality without inflicting potential harms on plaintiffs, their patients, or the public. The public has no interest in enforcing a likely unconstitutional statute, and the State has failed to show that the school-proximity law effectively serves its stated goals of minimizing educational disruption or protecting children. Instead, the law appears to encourage disturbances by rewarding protesters, contradicting its intended purpose. The court also evaluates the Alabama Unborn Child Protection from Dismemberment Abortion Act, referred to as the fetal-demise law, which criminalizes dismemberment abortions, defined as extracting a living unborn child in pieces. A health exception exists for circumstances where a mother's medical condition necessitates an abortion to prevent death or serious physical impairment. Violations of this law can result in civil suits or criminal penalties, including fines and imprisonment. The legal document outlines the implications of a fetal-demise law, which the parties agree effectively bans the standard dilation and evacuation (D&E) abortion method if fetal demise is not induced beforehand. Standard D&E is a surgical procedure typically performed after 15 weeks of pregnancy, involving cervical dilation, removal of the fetus with forceps, and suction to clear the uterus. This method is characterized as a "dismemberment abortion" due to the separation of fetal tissues during the process. It is noted for its safety, with a complication rate of less than 1%, and is the predominant method for second-trimester abortions in Alabama, specifically utilized by the Tuscaloosa and Huntsville clinics. The court assesses the likelihood of success for plaintiffs challenging the fetal-demise law under the Casey undue-burden standard, which states that a law cannot impose a substantial obstacle to a woman’s right to choose abortion while serving a valid state interest. The court finds that the plaintiffs are likely to succeed in their challenge, despite the absence of legislative findings detailing the law’s purpose. The State claims the law reflects interests in respect for human life, medical ethics, and societal compassion, which the court accepts as legitimate for the purposes of its analysis. The plaintiffs argue that Alabama's fetal-demise law imposes unnecessary medical procedures on women seeking pre-viability abortions, increasing their health risks. They contend that if the law is enacted, they would cease performing dilation and evacuation (D&E) abortions due to ethical concerns, effectively making abortions unavailable in Alabama after 15 weeks. The State counters that fetal demise can be safely achieved before a standard D&E through procedures like umbilical-cord transection, digoxin injection, and potassium-chloride injection. The court's assessment hinges on whether these methods are feasible, noting the absence of legislative findings supporting their safety and effectiveness. The court concludes that existing evidence suggests the proposed fetal-demise methods are not feasible for use in local clinics. Specifically, regarding umbilical-cord transection, the procedure requires cervical dilation and ultrasound guidance to locate and cut the umbilical cord. However, multiple factors complicate this process: visualization becomes significantly impaired once the amniotic membrane is punctured and the fluid drains, which makes it difficult to locate the cord. Furthermore, as the uterus contracts upon fluid drainage, the tissues become crowded, hindering the physician's ability to identify and access the cord with surgical instruments. Thus, the court finds umbilical-cord transection to be an impractical method for achieving fetal demise prior to a standard D&E procedure. Cord transection as a method for second-trimester abortion poses significant health risks, including blood loss, infection, and uterine injury, particularly due to the challenges associated with the procedure at various gestational ages. At 15 weeks, the umbilical cord is very thin, akin to a piece of yarn, and can become flaccid as amniotic fluid drains, complicating its location. The introduction of instruments into the uterus inherently increases the risk of complications, which is exacerbated in cases of blind searching for the cord. Expert testimony indicated that attempts to use cord transection for inducing fetal demise prior to intact dilation and evacuation (D&E) were abandoned due to patient safety concerns, as it took up to 13 minutes for the fetal heartbeat to cease after the cord was cut, during which time patients experienced contractions and blood loss. The outpatient settings of clinics in Tuscaloosa and Huntsville further compound these risks, as they lack immediate access to blood services and specialized medical equipment found in hospitals. Additionally, the argument that cord transection is a viable option is based on a single flawed study, a retrospective case series, which lacks reliability due to potential omissions and incomplete records. Approximately 10% of subjects were excluded from the study for this reason, raising further doubts about its validity and the purported medical benefits of the procedure. The study on umbilical cord transection to induce fetal demise before second-trimester dilation and evacuation (D&E) is criticized for lacking critical methodological components. It does not include a control group, making it impossible to compare outcomes effectively. Important details, such as the number of attempts required to successfully transect the cord and the gestational age distribution of the subjects, are absent, which are crucial for evaluating risk levels associated with the procedure. Additionally, the conditions under which the study was conducted differ significantly from those at the Tuscaloosa and Huntsville clinics, where necessary anesthesia options are unavailable. This discrepancy raises concerns about the safety and applicability of the study's findings to these clinics. The potential risks of cord transection are considerable, yet the study does not provide sufficient evidence to quantify these risks, compelling the court to conclude that mandating this procedure could impose unjustified harm on patients, as it lacks a solid medical basis. The ethical implications are significant; physicians may cease performing standard D&E if required to implement fetal demise procedures, as there is no medical benefit to subjecting patients to potentially dangerous interventions. Furthermore, training for the cord transection procedure is not accessible to the physicians at the relevant clinics, presenting an additional barrier to its implementation. Umbilical cord transection poses significant risks to women seeking pre-viability abortions due to technical difficulties, potential harm, insufficient research on associated risks, and lack of training. The procedure is deemed unfeasible for clinics in Tuscaloosa and Huntsville, raising concerns about requiring women to undergo a poorly studied and risky method. The court questions the morality of subjecting women to such procedures when there is no documented medical benefit. In contrast, digoxin injections, used to induce fetal demise, are also problematic. The procedure involves a painful, invasive process requiring ultrasound guidance, with a failure rate of 5% to 15% due to various factors, including patient obesity and anatomical positioning. Many patients at the relevant clinics are obese, complicating needle access. Furthermore, uterine fibroids can obstruct the injection path. Digoxin injections are considered experimental for women under 18 weeks of pregnancy, which is when most second-trimester abortions occur in Alabama. These factors contribute to the conclusion that digoxin injections are not a reliable or feasible method for causing fetal demise. Induced terminations of pregnancy in Alabama indicate that approximately two-thirds of abortions at or after 15 weeks occur between 15 to 18 weeks. Research primarily focuses on digoxin injection for pregnancies at or after 18 weeks, with limited studies on its use at 17 weeks and none on its efficacy or safety prior to 17 weeks. Requiring digoxin injection before 18 weeks subjects women to an experimental procedure with unknown risks, as initial injections fail to induce fetal demise in 5 to 15% of cases, and there is no established protocol for subsequent doses. The state contends that alternative methods could be used if the initial injection fails, but no viable alternatives exist. Successful administration of digoxin at or after 18 weeks still involves significant health risks, including increased likelihood of extramural delivery, hospitalization, and infection, compared to standard dilation and evacuation (D&E) procedures. The Society of Family Planning noted that any purported benefits of digoxin would need to outweigh these documented risks, which include spontaneous labor and increased vomiting. Logistically, requiring digoxin injections complicates access to abortion care, necessitating multiple clinic visits: one for informed consent, another for the injection 48 hours later, and a final visit 24 hours later to confirm fetal demise before proceeding with the D&E procedure. This process could require women to make at least three visits over four days for a procedure that lasts only 10 to 15 minutes, adding to the burdens faced in accessing abortion services. Under specific circumstances, a physician may need to administer digoxin prior to cervical dilation for a D&E procedure, requiring the patient to attend an additional visit between the digoxin injection and the procedure itself. This is particularly burdensome for low-income women, who make up the majority of patients at clinics in Tuscaloosa and Huntsville, with many receiving financial assistance. The court, referencing Planned Parenthood Southeast Inc. v. Strange, notes that low-income women often lack reliable transportation, childcare, and paid time off from work, making multiple trips to the clinic financially and logistically challenging. For those traveling long distances, the requirement for a digoxin injection could result in significant work absence, potentially delaying or preventing access to abortion. The court concludes that digoxin injections are not a feasible method for inducing fetal demise before D&E due to their unreliability, associated risks, and logistical burdens. Similarly, potassium chloride injections, which require inserting a long needle into the fetal heart under ultrasound guidance, are deemed infeasible. This method is invasive, painful, and technically difficult, with expert testimony indicating that even skilled practitioners may struggle to successfully administer the injection. Furthermore, the required training for administering potassium chloride is not available to physicians at the Tuscaloosa and Huntsville clinics, further complicating its use. Potassium-chloride injection is not part of the training for OB/GYN residents or family-planning fellows, as it is primarily used for high-risk, multi-fetal pregnancy reductions. Only maternal-fetal-medicine fellows, who undergo three years of specialized training, are taught this procedure. For physicians at the Tuscaloosa and Huntsville clinics to offer potassium-chloride injections, they would require training that is currently unavailable in Alabama, as no local hospitals provide such training to unaffiliated physicians. Even a tertiary academic hospital, like the University of Alabama at Birmingham, performs fewer than ten procedures annually, making it impractical to establish a training program. The procedure carries serious risks, including potential cardiac arrest if potassium chloride is inadvertently injected into the patient's circulation, and risks of uterine perforation and infection due to the nature of transabdominal injections. There are no studies assessing the safety or efficacy of potassium-chloride injections prior to standard dilation and evacuation (D&E) procedures. Furthermore, potassium-chloride injections cannot be performed on all women seeking D&E due to complications arising from factors like obesity, fetal and uterine positioning, and uterine fibroids, which are prevalent in the clinics’ patient population. Overall, the procedure is deemed unnecessary and potentially harmful, lacking medical benefits. Given the technical difficulties, health risks, and lack of feasible training options, the court concludes that potassium-chloride injection is not a viable method for fetal demise in abortion cases in Alabama. The court emphasizes the need to balance the state's interests with the obstacles that laws impose on women’s access to abortion when determining if a law constitutes an undue burden on the right to terminate a pregnancy before viability. The court recognizes the legitimacy of the State's interests but concludes that these interests cannot justify a complete denial of women's constitutional right to terminate a pregnancy before fetal viability. The State argues that the fetal-demise law is acceptable because women can still terminate pregnancies at or after 15 weeks. However, the court finds that the proposed fetal-demise methods are not feasible for use in Alabama clinics, which would effectively eliminate access to pre-viability abortions for women at or after 15 weeks. Consequently, the court preliminarily determines that the fetal-demise law imposes an undue burden on abortion access and is likely unconstitutional. The court also finds that the requirement of irreparable harm is met, as Alabama women would lose the right to obtain a pre-viability abortion upon reaching 15 weeks, along with harm to their privacy rights. In balancing harms, the court notes that the potential harm to plaintiffs outweighs the State’s concerns over not implementing a probably unconstitutional law. Lastly, it is deemed to be in the public interest to maintain the status quo while the court fully evaluates the law, as there is no public interest in enforcing a likely unconstitutional statute. Additionally, the court observes that the Eleventh Amendment may prevent relief against an unconstitutional provision if state officials lack enforcement authority. The Ex Parte Young exception to the Eleventh Amendment does not permit abortion providers to challenge the private civil-enforcement provision of an abortion regulation statute, but it does apply to the statute’s criminal-liability provision. Consequently, the preliminary injunction issued by the court does not include the private civil-enforcement provisions of the fetal-demise law. Conversely, the court will preliminarily enjoin enforcement of the school-proximity and fetal-demise laws overall. In 2014, Alabama recorded 8,080 abortions, with only a small fraction (23 in hospitals and 6 in physician offices) performed in those settings. The court primarily focuses on abortions conducted outside hospitals, referencing three operational clinics: Reproductive Health Services in Montgomery and Planned Parenthood clinics in Birmingham and Mobile. The court clarifies gestational age is calculated from the last menstrual cycle, differing from post-fertilization age. The State conceded that there is no evidence indicating the Tuscaloosa clinic was intentionally included in the school-proximity law. Complaints from local parents about anti-abortion protestors near the Huntsville clinic were noted, but the State did not contest the burden on women if the Huntsville and Tuscaloosa clinics were to close. Women in these areas may have to travel roughly 400 miles round-trip to access abortion services in Atlanta, which poses significant hurdles, especially for those relying on public transportation, requiring at least a 12-hour round trip. A study cited indicates that the potential closure of the clinics could lead to a 70% reduction in the number of Alabama women obtaining abortions after 15 weeks of pregnancy, a significant concern given that 560 procedures were performed at that gestational age in 2014. Courts have previously ruled against allowing access to out-of-jurisdiction services as a remedy for local restrictions. Posner, J. rejected the argument that the availability of late second-trimester abortions in Chicago justifies the closure of Wisconsin’s only clinic performing such procedures, stating that measuring harm to a constitutional right by its exercise in another jurisdiction is a flawed assumption. The court noted that it need not decide whether to consider out-of-state options since it would reach the same conclusion regardless. Additionally, it highlighted the historical context of self-induced abortions, referencing a study from 1936 where rural Black women in Georgia used turpentine for this purpose. The court emphasized that the temporary closure of clinics would impose significant burdens on women in Alabama seeking abortions, even if the clinics did not permanently shut down. While it found the justifications for the school-proximity law weak, the court indicated that its decision does not rest solely on that assessment. It preliminarily enjoined enforcement of this law against the Tuscaloosa and Huntsville clinics, acknowledging the risk of irreparable harm from closure, especially for small, family-run businesses. The Eleventh Circuit considers Deerfield Medical Center as binding precedent, and despite potential justifications for the law based on demonstrations, the court deemed the 2000-foot restriction excessively broad. There was no evidentiary basis for the Tuscaloosa clinic to cease operations due to its proximity to a middle school, or for the Huntsville clinic in relation to Highlands Elementary School. The law lacks a definition for 'fetal demise,' but the parties agreed it pertains to the termination of a heartbeat, which the court also recognized as its meaning. The court distinguishes between 'standard D&E' and 'intact D&E' (or 'D&X'), noting that intact D&E involves removing the fetus intact and is prohibited under the Federal Partial-Birth Abortion Ban Act of 2003, unless fetal demise is induced beforehand. Standard D&E does not involve induced fetal demise and is the primary method for second-trimester abortions, as the induction method is more costly, complicated, and requires hospital settings due to state regulations. Consequently, induction is largely inaccessible for women seeking second-trimester abortions in Alabama. The state does not claim that the ban on dismemberment abortion is intended to prevent fetal pain, which is biologically relevant only after 29 weeks—beyond both the procedure's typical timing and Alabama's abortion limit. Two-thirds of patients in Alabama undergo standard D&E between 15 to 18 weeks of pregnancy. The state argues that a health exception applies if a physician fails to transect the umbilical cord, but the court finds that this exception does not alter the procedure's unavailability to Alabama women. Additionally, the court assesses the credibility of expert testimonies, deeming Dr. Anne Davis, a plaintiff's expert, as highly credible and knowledgeable about abortion procedures, while giving less weight to Dr. Joseph Biggio, the state's expert, due to his limited expertise in outpatient abortion settings and his theoretical rather than practical knowledge on related procedures. The court ultimately rejects the defense's claim that umbilical cord transection could be feasible in the Tuscaloosa and Huntsville clinics, based on the differences in practice environments. An expert at a major academic hospital testified that advanced ultrasound machines, essential for locating the umbilical cord, are absent in the Tuscaloosa and Huntsville clinics, which lack necessary technology costing between $50,000 to $100,000. Tertiary care is characterized as specialized medical treatment involving complex procedures by specialists in advanced facilities. The State argues, referencing Gonzales, that women unable to obtain an abortion due to anatomical issues should pursue an as-applied challenge, which is suitable for specific conditions where a procedure is necessary. However, the current record indicates a broad range of conditions affecting the feasibility of digoxin injection, suggesting no clear group of women can bring such a challenge. One expert noted that from 2007 to 2011, to comply with federal regulations, his employer mandated digoxin injections for abortions at or after 20 weeks, differentiating this from the legal requirement for all standard D&E procedures, as the first dose could be skipped without legal repercussions. Further clarification on this issue is anticipated in later proceedings. Amniocentesis is mentioned as a high-risk testing procedure, with the State claiming risks from digoxin are similar. The expert highlighted that complications from digoxin could severely affect women in unsupportive or abusive environments, referencing Casey's ruling against spousal notification requirements for similar reasons. The State contended that risks introduced by fetal-demise procedures do not differ from those in standard D&E, but the expert countered that the risk of extramural delivery specifically associated with digoxin does not apply to standard D&E. Digoxin injection introduces a new risk category in second-trimester abortion procedures. The court evaluates whether the ban presents "significant health risks" to women without considering if alternative procedures introduce new risks. In Huntsville, 17.6% and in Tuscaloosa, 25.2% of residents live below the poverty line, complicating access to care. Patients face challenges such as arranging childcare, traveling long distances, and affording accommodations, with some resorting to sleeping in the clinic's parking lot due to financial constraints. The unreliability of digoxin may extend the procedure duration. If the physician fails to locate the fetal heartbeat, potassium chloride may be injected elsewhere, necessitating a larger volume or more time for fetal demise. Training in the procedure reportedly requires observation of 100 to 200 cases. Alabama's hostile environment for abortion providers is likely to deter new trained practitioners. Existing adverse outcome reports do not quantify risk levels due to lack of data on the frequency of potassium chloride injections. The court has raised the Ex Parte Young issue without prior briefing and will reconsider it if requested by any party.