Civil Liberties

Another Unconstitutional Abortion Restriction Struck Down in the South; Judge Asks What If Similar Laws Applied to Guns?

Alabama will have to reconsider a requirement that abortion clinic doctors have local hospital admitting privileges.


Planned Parenthood Southeast Advocates/Facebook

Alabama will have to reconsider a requirement that abortion-clinic doctors have hospital admitting privileges. In a 172-page court decision released Monday, U.S. District Judge Myron Thompson declared the requirement—part of a package of Alabama abortion regulations passed in 2013—unconstitutional and admonished state lawmakers for exceeding their authority in passing it. 

A similar law in Mississippi was deemed unconsitutional last week.

In Thompson's comprehensive decision, he said that evidence "compellingly demonstrates" that the requirement would result in three out of Alabama's five remaining abortion clinics closing. "Indeed, the court is convinced that, if this requirement would not, in the face of all the evidence in the record, constitute an impermissible undue burden, then almost no regulation, short of those imposing an outright prohibition on abortion, would," Thompson wrote. 

Drawing what some might see as an odd parallel (but many have pointed out here in the past), the Judge wrote that "the right to decide to have an abortion and the right to have and use firearms for self-defense" aren't all that different. For both, the Supreme Court has ruled that some regulation is okay but it must not "tread too heavily" on these protected rights. And both constitutional protections are rejected "as more or less important" to people based on their subjective beliefs.

"With this parallelism in mind," wrote Thompson,

the court poses the hypothetical that suppose … the federal or state government were to implement a new restriction on who may sell firearms and ammunition and on the procedure they must employ in selling such goods and that, further, only two vendors in the State of Alabama were capable of complying with the restriction: one in Huntsville and one in Tuscaloosa.

The defenders of this law would be called upon to do a heck of a lot of explaining–and rightly so in the face of an effect so severe. Similarly, in this case, so long as the Supreme Court continues to recognize a constitutional right to choose to terminate a pregnancy, any regulation that would, in effect, restrict the exercise of that right to only Huntsville and Tuscaloosa should be subject to the same skepticism.

He rejected the state's argument that new abortion clinics would open to take the place of those closing if only clinic administrators would pay doctors more competitively. 

In the words of the State's expert Dr. Peter Uhlenberg, describing the potential for new clinics opening, "If we think of this as a supply and demand and the demand is high, the market is there, there's no reason to expect that someone wouldn't step forward to provide that service."

As the discussion above makes clear, there are in fact several very good reasons to expect that no one would step in to provide abortion services. Many OB/GYNs in Alabama do not know how to perform an abortion because many residency programs in the region to not offer the training; many OB/GYNs have strong anti-abortion convictions; and others fear, reasonably, that they could not provide abortions without sacrificing another part of their practice or that providing abortions would expose them and their families to violence. The court finds, therefore, that the inability to obtain local abortion doctors is not a matter of money, but rather a reflection of the difficulty of pursuing that occupation in the State.

Judge Thompson extended an order blocking enforcement of the hospital admitting privileges rule and said he would issue a final order on the law after considering more arguments. Alabama Attorney General Luther Strange promised that his office would appeal the decision. In a statement, Gov. Robert Bentley said he was "extremely disappointed" by the ruling and would support the appeal.