In Ruling Against Alabama’s Abortion Ban, Federal Judge Doesn’t Mince Words

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Analysis Abortion

In Ruling Against Alabama’s Abortion Ban, Federal Judge Doesn’t Mince Words

Imani Gandy

“Alabama’s abortion ban contravenes clear Supreme Court precedent,” Judge Thompson wrote. “It violates the right of an individual to privacy, to make 'choices central to personal dignity and autonomy.' It diminishes 'the capacity of women to act in society, and to make reproductive decisions.' It defies the United States Constitution.”

U.S. District Court Judge Myron Thompson blocked an Alabama law on Tuesday that would have banned abortion in the state almost entirely. Set to go into effect on November 15, the law threatened abortion providers with felony charges and up to 99 years in prison for performing an abortion, or ten years in prison for attempting one.

The law, named The Human Life Protection Act, is by far the most restrictive and severe abortion ban passed in any legislature this year. And considering the frenzy with which states have been passing pre-viability abortion bans, that is no small feat.

One would think that such a severe and blatantly unconstitutional law would engender a blistering court ruling, especially from Judge Thompson, who over the years has written lengthy rulings castigating previous attempts by Alabama lawmakers to restrict or ban abortion. In 2014, he wrote a 172-page opinion blocking Alabama’s admitting privileges law, which would have required providers to obtain admitting privileges at a local hospital. In 2016, he wrote a 102-page opinion blocking a couple of laws that would have banned abortion clinics near public K-8 schools and criminalized the most commonly used later abortion procedure, known as dilation and evacuation, or D and E, abortions.

But at 17 pages, Thompson’s order this week blocking Alabama’s attempt to criminalize abortion was muted. It’s almost as if he found having to write an order on the law to be a tedious affair.

Roe is gone. The chaos is just beginning.

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One gets the distinct impression that Thompson is tired of ruling on these abortion bans that Republican lawmakers in the state continue trying to force through, and saying the same things over and over again.

Dispensing with the long discussions about abortion jurisprudence that have accompanied his lengthier rulings, Thompson briefly acknowledged more than a dozen abortion rights cases—including the landmark decisions in Roe v. Wade and Planned Parenthood v. Casey—that say the same thing: Pre-viability abortion bans are unconstitutional under established law.

“Alabama’s abortion ban contravenes clear Supreme Court precedent,” Thompson wrote. “It violates the right of an individual to privacy, to make ‘choices central to personal dignity and autonomy.’ It diminishes ‘the capacity of women to act in society, and to make reproductive decisions.’ It defies the United States Constitution.”

Short staccato sentences. Not much more needs to be said about the matter.

Dr. Yashica Robinson, one of the plaintiffs in the case, called the win “critical” to patients and health-care providers. “The abortion care we provide is essential health care, and these ruthless attacks from anti-abortion politicians have no place in Alabama,” she said in a statement released by the American Civil Liberties Union, which represented the plaintiffs. “We will keep fighting to ensure that we can provide care that our patients need and to keep abortion accessible in our communities.”

Thompson understands this. In his 2014 ruling blocking Alabama admitting privileges requirements, Thompson discussed at length how targeted regulation of abortion providers (TRAP) legislation shrinks abortion access and stigmatizes low-income pregnant people. At the time, as reported by Rewire.News Vice President of Law and the Courts Jessica Mason Pieklo, he wrote that “it is essential to understand that the large majority of abortion patients, particularly in Alabama, survive on very low incomes.”

And in Tuesday’s ruling, Thompson reiterated the point: “A near-total ban imposes substantial costs on women, including those who are unable to obtain an abortion and those who ‘desperately seek to exercise their ability to decide whether to have a child’ and thus ‘would take unsafe measures to end their pregnancies’.”

Thompson’s ruling is a fairly standard recitation of abortion rights law, with one notable exception: He spent three pages on the issue of standing, affirming plaintiffs’ right to sue on behalf of their patients. This is notable, because take, for example, his 172-page order blocking Alabama’s admitting privileges law back in 2014: Thompson didn’t mention standing at all.

Why mention standing now?

The answer to that question lies with one of the cases that the U.S. Supreme Court will rule on this term: June Medical Services v. Gee. The case challenges Louisiana’s admitting privileges law. After conceding that the plaintiffs had standing to sue under Article III of the U.S. Constitution, Louisiana changed its mind and asked the Supreme Court to offer its opinion on the matter.

Despite decades of case law stating that providers have Article III standing to assert their patients’ due process rights, this principle has been called into question by states like Louisiana that are arguing that abortion providers’ interests are not necessarily aligned with their patients’. If providers are no longer permitted to sue on behalf of their patients, patients will have to sue for themselves. And if anti-choice advocates can ensure that no person seeking an abortion will want to do so, because doing so—even anonymously—might open them up to the sort of stigma and harassment that anti-choice activists mete out regularly, then abortion rights advocates may suffer setbacks when it comes to challenging these laws. It may become incredibly difficult for reproductive health-care providers and advocates to convince pregnant patients to sue on their behalf.

“Federal courts, including the Supreme Court, routinely allow providers to challenge abortion laws on behalf of patients,” Thompson wrote in Tuesday’s ruling. After citing several cases including Planned Parenthood v. Casey and a 1979 Supreme Court case called Colautti v. Franklin, Thompson noted that “under precedent that the Supreme Court has repeatedly reaffirmed, abortion providers may assert the substantive-due-process rights of their patients.”

Alabama is expected to appeal the ruling as part of the state’s—and larger anti-choice movement’s—efforts to get an abortion case before the Supreme Court that could undermine or overturn Roe. Like many state legislators who have been rushing pre-viability abortion bans through their legislatures, anti-choice Alabama lawmakers hope that the majority conservative court will reverse decades of established law governing abortion rights and permit states to enact pre-viability abortion bans.

Alabama’s attorney general, Steve Marshall, who seems nonplussed by the ruling blocking the law, admitted as much. “As we have stated before, the State’s objective is to advance our case to the U.S. Supreme Court, where we intend to submit evidence that supports our argument that Roe and Casey were wrongly decided and that the Constitution does not prohibit states from protecting unborn children from abortion,” Marshall said in an emailed statement to CBS News.

Alabama’s stated efforts to criminalize abortion notwithstanding, abortion is still legal in Alabama—and everywhere in the United States—for now, anyway.