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Alabama Loses Appeal on Coronavirus Abortion Restrictions

April 23, 2020, 10:49 PM

Alabama will remain partially blocked from imposing new restrictions on abortions in name of public health during the coronavirus pandemic, the Eleventh Circuit said.

Alabama State Health Officer Scott Harris mandated the postponement of “all dental, medical, or surgical procedures” except those “necessary to treat an emergency medical condition” or “to avoid serious harm from an underlying condition or disease, or necessary as a part of a patient’s ongoing and active treatment.”

The order is currently in effect until April 30, but may be extended. A violation would be a misdemeanor.

Planned Parenthood, the Alabama Women’s Center, and other abortion providers sued, and a federal court issued a preliminary injunction. It doesn’t entirely block the state from enforcing the order against abortion providers. But it does bar the state from “failing to allow healthcare providers to consider and base their decisions as to whether to provide an abortion without delay on certain factors,” including whether a delay would cause the patient to lose her legal right to an abortion under Alabama law after 20 weeks of pregnancy.

The injunction will remain in place, the U.S. Court of Appeals for the Eleventh Circuit said.

“The state argues that the order is a valid exercise of its power to issue public health orders during an emergency,” the court said. “But just as constitutional rights have limits, so too does a state’s power to issue executive orders limiting such rights in times of emergency.”

The state’s explanations for how it would enforce this order against abortion providers have shifted over time, the court said. Alabama previously said abortions would be banned unless they’re necessary to protect the life or health of the patient, although it later backed away from that position.

The district court reasonably determined that the state’s earlier position would likely place an undue burden on the constitutional right to obtain an abortion, the Eleventh Circuit said. And given the state’s shifting positions, the plaintiffs “cannot be forced to guess whether their conduct is prohibited and then face prosecution if they choose incorrectly,” it added.

The opinion was written by Judge Adalberto Jordan and joined by Judges Beverly B. Martin and Robin S. Rosenbaum.

Planned Parenthood has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Robinson v. Harris, 11th Cir., No. 20-11401, 4/23/20.

To contact the reporter on this story: Brian Flood in Washington at bflood@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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