ATLANTA, Ga. — The 11th Circuit Court of Appeals has upheld a lower court decision that, while seeking to be “narrowly tailored” in scope, granted discretion to Alabama abortionists to determine on a case-by-case basis whether an abortion may or may not be postponed during the coronavirus crisis, whether for medical reasons or if waiting would put the abortion past the legal 20-week limit. At least one abortionist had feared she could be subject to prosecution while acting on her self-described “medical judgment” during the pandemic.
Judge Adalberto Jordan, nominated to the bench by then-President Barack Obama, wrote on Thursday that while the lower court injunction is “limited” and “does not block all enforcement of the medical restrictions in the April 3 order against abortion providers,” it simultaneously “prohibits 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.”
“These include whether the patient would lose her legal right to obtain an abortion under Alabama Code § 26-23B-5 if the procedure were delayed until after April 30,” he stated, noting that the State of Alabama conceded that abortionists possessed that discretion.
Jordan was joined in his opinion by Judges Beverly Martin, nominated to the bench by then-President Bill Clinton, and Judge Robin Rosenbaum, also nominated to the bench by then-President Barack Obama.
On March 13, Gov. Kay Ivey declared a state of emergency due to the coronavirus pandemic, and days later, Department of Health officer Dr. Scott Harris issued various orders that included a halt on “all dental, medical, or surgical procedures” except when “necessary to treat an emergency medical condition,” “to avoid serious harm from an underlying condition or disease,” or when then the procedure is “part of a patient’s ongoing and active treatment.”
The order did not specifically mention abortion, but in response to an inquiry, the Alabama attorney general’s office suggested that it did indeed apply, stating, “we are unable to provide … a blanket affirmation that abortions will, in every case, fall within one of the exemptions.”
The three abortion facilities in the state and Planned Parenthood Southeast then sued Harris and Attorney General Steven Marshall.
On March 30, U.S. District Judge Myron Thompson, nominated to the bench by then-President Jimmy Carter, issued a temporary restraining order against the State.
“Because Alabama law imposes time limits on when women can obtain abortions, the March 27 order is likely to fully prevent some women from exercising their right to obtain an abortion,” he outlined. “And for those women who, despite the mandatory postponement, are able to vindicate their right, the required delay may pose an undue burden that is not justified by the State’s purported rationales.”
“Based on the current record, the defendants’ efforts to combat COVID-19 do not outweigh the lasting harm imposed by the denial of an individual’s right to terminate her pregnancy, by an undue burden or increase in risk on patients imposed by a delayed procedure, or by the cloud of unwarranted prosecution against providers,” Thompson said.
On April 3, the Department of Health order was extended to April 30.
The State quickly clarified its stance, explaining to the court that it did not mean that health and life exceptions were the only justifications for abortion, but that it would also permit abortions if the delay meant the abortion could not commence “in a healthy way” or if the postponement equated to exceeding the legal 20-week limit.
However, it also noted that “a healthcare provider’s assertion that a procedure meets one of the exceptions [in the order] is not conclusive proof that the procedure meets one of the exceptions.” The State additionally stated that its “healthy way” terminology meant only cases where postponement would result in a “sufficiently serious” risk of harm to the mother.
But health official Harris further outlined that it is up to each individual facility to determine whether “their procedure fits into th[e] exceptions” based on their “clinical judgment” — not the Department of Health. He said that the order was always meant to be interpreted as a “case-by-case determination.”
Nonetheless, abortionist Yashica Robinson said that she still feared criminal prosecution from the State as pro-life opponents had called police, trying to shut down the Alabama Women’s Center because it was still operational.
The State’s clarification “made it very clear to me that my medical judgment was not the final decision when it came to the care decisions that I was making for my patients. I don’t know who that is going to be left up to, but it made it very clear to me … that [my medical judgment] would not be the final call,” she said, according to Thompson’s ruling.
According to Courthouse News, Robinson stated she had “significant concerns” about whether her judgment would be “treated with respect” by officials since she is an abortionist.
Judge Thompson similarly opined that he did not feel assured that Alabama would not return to its original interpretation limiting the exceptions to the health and life of the mother, remarking that the defendants had put forward “multiple inconsistent interpretations.” He granted a preliminary injunction against the State.
“[T]he plaintiffs have demonstrated that, despite the defendants’ clarifications stated on the record, they remain at serious risk of prosecution, including because, without an injunction, the defendants would retain the option to revise their interpretation
of the medical restrictions,” Thompson wrote.
“[T]o proceed with lawful abortions, providers must be confident that their exercise of reasonable medical judgment will not be met with unconstitutional or bad-faith prosecution. That is, physicians acting lawfully cannot be left to ‘the tender mercies of a prosecutor’s discretion and the vagaries of a jury’s decision,’ or wrongly deterred from performing lawful procedures in the first place.” he stated.
Thompson said that “guaranteeing practical, reliable flexibility to abortion providers requires an injunction,” but limited his restraining order to anything outside of what Harris had most recently represented to the court: that each facility may use their own “clinical judgment.”
The State appealed, and on Thursday, the 11th Circuit Court of Appeals upheld Thompson’s injunction, likewise finding that “the State has not been consistent in its position with respect to what the … orders mean.”
“Because of the state’s shifting interpretations of the March 27 and April 3 orders, the district court had ample authority to issue a preliminary injunction to preserve the status quo and prevent the state from reverting to its initial and more restrictive interpretations,” Jordan wrote.
It also declared that “just as constitutional rights have limits, so too does a state’s power to issue executive orders limiting such rights in times of emergency.”
“A mandatory postponement until April 30 — which is one month from when the state initially interpreted the order to apply to abortions on March 30 — could thus extend a woman’s pregnancy beyond this 20-week boundary, making abortion illegal after that point,” Jordan stated. “In addition, the district court found that, for other women, ‘a delay until April 30 will pose a tremendous, and sometimes insurmountable, burden,’ because of ‘major logistical hurdles.'”
The three-judge panel further noted that “the State agrees that the preliminary injunction is consistent with its latest interpretation of how the April 3 order should be read. A litigant who agrees with the substance of an order faces a steep uphill battle in seeking to have that order stayed on appeal. So it is here.”
However, as previously reported, Christians throughout history have decried abortion as murder. The late preacher Lee Roy Shelton wrote in “The Crimes of Our Times” in a section on abortion:
“When killing anyone, the murderer is guilty of taking the life which God has given, and therefore he is ‘playing God’ by saying when and how a man should die. But God doesn’t look lightly upon those who try to take His place.”
“God has given us the Sixth Commandment as a fence about human life to preserve it, for it is sacred to Him. Yes, the Bible declares human life to be sacred. It is a divine creation, mysterious and magnificent in its beginning and possibility, utterly beyond the control or comprehension of any human being. It is never to be taken away at the will of anyone, for how can they tell the full meaning of that life and what it will bring forth?”
“The revelation of God made to man out of His blessed Word proves that He has purposes for every individual and for the [human] race, stretching far beyond the present moment or manifestation; and to terminate a single life is to set yourselves up as wiser and superior to God. The immensity of the issues of death is so great that there can be no sin against humanity, and accordingly, against God, greater than that of taking a human life.”
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