W. Ala. Women's Ctr. v. Miller (299 F. Supp. 3d 1244, 2017)

Myron H. Thompson, UNITED STATES DISTRICT JUDGE

In West Alabama Women's Center v. Miller , 217 F.Supp.3d 1313 (M.D. Ala. 2016) (Thompson, J.), this court preliminarily enjoined enforcement of two Alabama statutes, enacted on May 12, 2016, that regulate abortions and abortion clinics. The court must now address whether the two laws should be permanently enjoined. Based on the following findings of fact and conclusions of law, this court holds that they should be. While the court parrots many of its earlier findings and conclusions, it substantially and importantly expands on some as well.

I. INTRODUCTION

The first challenged statute, the "school-proximity law," provides that the Alabama Department of Public Health may not issue or renew licenses to abortion clinics located within 2,000 feet of a K-8 public school. See 1975 Ala. Code § 22-21-35. The second statute, the "fetal-demise law," effectively criminalizes the most common method of second-trimester abortion -the dilation and evacuation, or D & E, procedure-unless the physician induces fetal demise before performing the procedure. See 1975 Ala. Code § 26-23G-1 et seq.

The plaintiffs are West Alabama Women's Center (a reproductive-health clinic in Tuscaloosa, Alabama) and its medical director and Alabama Women's Center (a reproductive-health clinic in Huntsville, Alabama) and its medical director. The plaintiffs sue on behalf of themselves and their patients. The defendants are the State Health Officer, the State Attorney General, and the district attorneys for Tuscaloosa and Madison Counties, where the clinics are located. All defendants are sued in their official capacities.

The plaintiffs claim that the school-proximity and fetal-demise laws unconstitutionally restrict abortion access in Alabama in violation of the Due Process Clause of the Fourteenth Amendment. Jurisdiction is proper under 28 U.S.C. §§ 1331 (federal question) and 1343 (civil rights).

Based on the record (including evidence presented at a hearing), the court holds both laws unconstitutional. The evidence compellingly demonstrates that the school-proximity law would force the closure of two of Alabama's five abortion clinics, which together perform 72 % of all abortions in the State. Meanwhile, the fetal-demise law would prohibit the most common method of second-trimester abortions in Alabama, effectively terminating the right to an abortion in Alabama at 15 weeks. Because these laws clearly impose an impermissible undue burden on a woman's ability to choose an abortion, they cannot stand.

II. HISTORICAL BACKGROUND

Previously, this court described in some detail a "climate of hostility," both non-violent and violent, surrounding the provision of legal abortions in Alabama. Planned Parenthood Se., Inc. v. Strange , 33 F.Supp.3d 1330, 1334 (M.D. Ala. 2014) (Thompson, J.). Doctors trained in and willing to provide abortion care in Alabama are rare, and face retaliation and harassment on a daily basis as a result of their work. For example, protesters have repeated gathered outside one of the plaintiff physician's private medical practice and the clinic carrying signs calling her "a murderer". Robinson White Decl. (doc. no. 54-4) ¶¶ 8-10. A group also launched a public campaign to convince a hospital to revoke her admitting privileges; this effort included protests in front of the hospital, televised press conferences, and leafletting cars and stores near the hospital. Id. at ¶ 9. Providers of abortion services face difficulties recruiting, hiring, and retaining staff willing to provide abortion care in the face of this stigma and constant uncertainty as to the clinics' continued existence. Women seeking abortion services in Alabama suffer distinct threats to their privacy: anti-abortion protesters regularly protest outside of clinics and harass patients as they exit and enter; at times, protesters have brought cameras and posted photos of clinic patients and their license plates online. Second Gray Decl. (doc. no. 54-1) ¶ 28. "As of 2001, there were 12 clinics providing abortions in the State. Today, that number has dwindled to five." Planned Parenthood Se., Inc. v. Strange , 33 F.Supp.3d 1330, 1334 (M.D. Ala. 2014) (Thompson, J.).

In addition, against this historical backdrop and as outlined in the court's preliminary-injunction opinion, W. Ala. Women's Ctr. , 217 F.Supp.3d at 1319, abortion clinics and their physicians have been subject to a number of regulations in Alabama. In just the last six years, Alabama has passed a host of legislation to regulate how and where abortion care can be provided. The court, however, now mentions only some of those laws.

In 2011, the State prohibited abortions at 20 or more weeks after fertilization-that is, 22 weeks after the last menstrual period -unless a woman's condition necessitates an abortion to avert her death or "serious risk of substantial and irreversible physical impairment of a major bodily function." 1975 Ala. Code § 26-23B-5.

In 2013, the State enacted a law requiring all abortion clinics to meet the same building safety codes applicable to ambulatory surgical centers. 1975 Ala. Code § 26-23E-9. Under that requirement, abortion clinics must meet the standards of the "NFPA 101 Life Safety Code 2000 edition," id. , which include requirements for egress, fire protection, sprinkler systems, alarms, emergency lighting, smoke barriers, and special hazard protection. To comply with that law, abortion clinics in Alabama conducted extensive renovations or had to purchase new spaces and relocate.

That same year, the State required all physicians who perform abortions in the State to hold staff privileges at a hospital within the same statistical metropolitan area as the clinic. See 1975 Ala. Code § 26-23E-4(c). This court held the staff-privileges requirement to be unconstitutional. See Planned Parenthood Se., Inc. v. Strange , 33 F.Supp.3d 1330 (M.D. Ala. 2014) (Thompson, J.); see also Planned Parenthood Se., Inc. v. Strange , 172 F.Supp.3d 1275 (M.D. Ala. 2016) (Thompson, J.) (determining appropriate relief).

In 2014, the State extended from 24 to 48 hours the time physicians must wait between providing informed consent explanations to patients and conducting the abortion procedure. See 1975 Ala. Code § 26-23A-4.

Also in 2014, Alabama enacted a law modifying the procedures for minors seeking to obtain an abortion. At the time, minors who were unable or unwilling to obtain written consent from their parent or guardian could instead seek judicial approval from a juvenile judge or county court. The new law authorized presiding judges to appoint a guardian ad litem to represent "the interests of the unborn child," and required that the county district attorney be notified and joined as a party. 1975 Ala. Code § 26-21-4(i) - (j). These provisions were declared unconstitutional. See Reprod. Health Servs. v. Marshall , 268 F.Supp.3d 1261, No. 2:14-CV-1014-SRW, 2017 WL 3223916 (M.D. Ala. July 28, 2017) (Walker, M.J.).

In 2016, on the same day, Alabama enacted the two statutes now challenged in this litigation: the school-proximity law and the fetal-demise law.

This year, the Alabama legislature passed a proposed constitutional amendment that declares the State's public policy is "to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life," and "to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate." 2017 Ala. Laws Act 2017-188 (H.B. 98). Alabamians will vote on the amendment in November 2018.

The vast majority of abortions performed in Alabama occur in the remaining five outpatient clinics. The plaintiffs operate two of the clinics: the Alabama Women's Center, located in Huntsville, and the West Alabama Women's Center, in Tuscaloosa.

Together, these two clinics provided 72 % of all abortions in Alabama in 2014. Second Johnson Decl. Ex. D (doc. no. 54-2) at 35.

The Alabama Women's Center, which opened in 2001, is the only abortion clinic in Huntsville, in the far northern part of the State. The Huntsville metropolitan area, with a population of 417,593, is Alabama's second largest urban area. In addition to abortion services, the Huntsville clinic provides contraceptive counseling and care, testing and treatment for sexually transmitted infections, pap smears, pregnancy testing, and referrals for prenatal care and adoption. In 2014, approximately 14 % of the abortions in Alabama took place at the Huntsville clinic. Second Johnson Decl. Ex. D (doc. no. 54-2) at 35.

The West Alabama Women's Center began operations in 1993 and is the only abortion clinic in Tuscaloosa and all of west Alabama. The Tuscaloosa metropolitan area is Alabama's fifth largest urban area. The Tuscaloosa clinic provides reproductive health services to women, including abortions, birth control, treatment for sexually transmitted infections, pregnancy counseling, and referrals for prenatal care and adoption. In 2014, approximately 58 % of the abortions in Alabama took place at the Tuscaloosa clinic, far more than at any other clinic. Second Johnson Decl. Ex. D (doc. no. 54-2) at 35.

The Tuscaloosa and Huntsville clinics are the only clinics in Alabama that perform abortions at or after 15 weeks of pregnancy. Prior to 15 weeks, most abortions are performed either through the use of medication or the dilation and curettage method, the latter of which uses suction to empty the contents of the uterus. Because, starting at 15 weeks, it ordinarily is not possible to complete an abortion using suction alone, patients must go to clinics that offer D & E. The D & E procedure is a surgical abortion method where a physician uses instruments and suction to remove the fetus and other contents of the uterus. In 2014, the Huntsville and Tuscaloosa clinics provided about 496 abortions starting at 15 weeks, all of which were D & E abortions. AWC Summary of Abortions Performed, Pls.' Ex. 17; WAWC Summary of Abortions Performed, Pls.' Ex. 16. That said, the vast majority of abortions performed by the Huntsville and Tuscaloosa clinics occur prior to 15 weeks and therefore do not involve D & E.

III. LITIGATION BACKGROUND

The court will not go into the history of this litigation, which was outlined in the preliminary-injunction opinion, see W. Ala. Women's Ctr. , 217 F.Supp.3d at 1320-21, other than to add that, after the preliminary injunction was issued, the parties asked the court to enter a final judgment based on the existing record without conducting any further discovery or evidentiary proceedings. The court granted the parties' joint motion to do so, and now makes its final findings of fact and enters its final conclusions of law.

IV. LEGAL STANDARDS

In its most recent discussion of a woman's right to an abortion, the Supreme Court opened its opinion with this succinct statement: "[A] statute which, while furthering a valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends." Whole Woman's Health v. Hellerstedt , --- U.S. ----, 136 S.Ct. 2292, 2309, 195 L.Ed.2d 665 (2016) (quoting Casey , 505 U.S. at 877, 112 S.Ct. 2791 (plurality opinion)).

Women have a substantive due-process right to terminate a pregnancy before the fetus is viable. To determine whether that right has been violated, the governing standard is "undue burden." Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833, 876-79, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion). In Casey , a plurality of the Court concluded that, if a government regulation has "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus," the regulation is an undue burden on a woman's right to have an abortion and is unconstitutional. Id. at 877, 112 S.Ct. 2791. Casey recognized that a woman's right of privacy extends to freedom "from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id. at 896, 112 S.Ct. 2791 (majority opinion) (quoting Eisenstadt v. Baird , 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) ).

"[T]he heart of this test is the relationship between the severity of the obstacle and the weight of the justification the State must offer to warrant that obstacle.... [T]he more severe the obstacle a regulation creates, the more robust the government's justification must be, both in terms of how much benefit the regulation provides towards achieving the State's interests and in terms of how realistic it is the regulation will actually achieve that benefit." Planned Parenthood Se., Inc. v. Strange , 9 F.Supp.3d 1272, 1287 (M.D. Ala. 2014) (Thompson, J.); see also Whole Woman's Health , 136 S.Ct. at 2309 (the undue-burden analysis requires a court to "consider the burdens a law imposes on abortion access together with the benefits those laws confer"); Planned Parenthood of Wis. v. Van Hollen , 738 F.3d 786, 798 (7th Cir. 2013) (Posner, J.) ("The feebler the [state interest], the likelier the burden, even if slight, [is] to be 'undue' in the sense of disproportionate or gratuitous.").

The undue-burden test requires courts to examine "the [challenged] regulation in its real-world context." Planned Parenthood Se., Inc. v. Strange , 9 F.Supp.3d 1272, 1287 (M.D. Ala. 2014) (Thompson, J.); Casey , 505 U.S. at 888-98, 112 S.Ct. 2791 (majority opinion) (examining the effects of the spousal notification provision on women in abusive relationships). In Whole Woman's Health , the Supreme Court endorsed the district court's consideration of the actual impact of the challenged laws on the Texas abortion clinics and their patients. Whole Woman's Health , 136 S.Ct. at 2312. In concluding that the law imposed an undue burden, the district court, and then the Supreme Court, considered several facts, including that half of Texas clinics closed after enforcement of the law commenced; that clinicians from the El Paso clinic would be unable to gain admitting privileges at hospitals, because not once did they transfer an abortion patient to a hospital; and that the closures resulted in an almost 30-fold increase in the number of women of reproductive age more than 200 miles from a clinic. Id. at 2312-13.

Courts must consider the burdens imposed by the new law or regulation against the backdrop of existing laws and regulations on abortion in the jurisdiction as well as others enacted at the same time. As Judge Posner explained, "[w]hen one abortion regulation compounds the effects of another, the aggregate effects on abortion rights must be considered." Planned Parenthood v. Van Hollen , 738 F.3d 786, 796 (7th Cir. 2013), cert. denied , --- U.S. ----, 134 S.Ct. 2841, 189 L.Ed.2d 807 (2014) ; accord Planned Parenthood Arizona, Inc. v. Humble , 753 F.3d 905, 915 (9th Cir. 2014) (Fletcher, J.) (describing relevant factors to burdens analysis as including "the ways in which an abortion regulation interacts with women's lived experience, socioeconomic factors, and other abortion regulations"), cert. denied , --- U.S. ----, 135 S.Ct. 870, 190 L.Ed.2d 702 (2014).

States may have myriad interests in regulating abortion. These interests may come in all shapes and forms, from protecting fetal life or maternal health to regulating the medical profession. Nevertheless, the State's interests-however legitimate-cannot "place[ ] a substantial obstacle in the path of a woman's choice [to have a pre-viability abortion]." Whole Woman's Health , 136 S.Ct. at 2309 (quoting Casey , 505 U.S. at 877, 112 S.Ct. 2791 (plurality opinion)). And a State's interests surely cannot swallow the right. See Casey , 505 U.S. at 846, 112 S.Ct. 2791 (reaffirming the essential holding of Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) that "[b]efore viability, the State's interests are not strong enough to support ... the imposition of a substantial obstacle to the woman's effective right to elect the procedure"). The court will now apply the undue-burden test to the facts of this case.

V. THE SCHOOL-PROXIMITY LAW

The school-proximity law provides that the Alabama Department of Public Health "may not issue or renew a health center license to an abortion clinic or reproductive health center that performs abortions and is located within 2,000 feet of a K-8 public school." 1975 Ala. Code § 22-21-35(b). The parties agree that both the Tuscaloosa and Huntsville clinics are located within 2,000 feet of at least one K-8 public school. Order on Pretrial Hearing (doc. no. 93), Stip. 3(b) at 13. Each clinic is licensed by the Department; if the school-proximity law were to take effect, the parties agree the Department could not renew either clinic's license to continue operations at its existing location.

Because no legislative findings accompany the school-proximity law, the court is without an explanation from the legislature of the purpose for the law. The plaintiffs have submitted newspaper articles, to which the State has not objected, that report that Reverend James Henderson, a leader of anti-abortion protesters outside the Huntsville clinic, drafted the bill that ultimately became the school-proximity law, with the purpose of shutting down the Huntsville clinic. Newspaper Article, Second Johnson Decl. Ex. H (doc. no. 54-2) at 56. Another article reported that Governor Robert Bentley's staff offered Henderson assistance in seeking sponsors for the bill. Id. Ex. I at 61.

The State has asserted that the purpose of the school-proximity law was to further two interests: minimizing disturbance in the educational environment and supporting a parent's right to control his or her children's exposure to the subject of abortion.

With regard to these interests, the State acknowledges two things. First, the State's interests are threatened by demonstrations outside the clinics, but not by the clinics themselves. Tr. of Final Pre-Trial Status Conf. (doc. no. 99) at 35:1-11. Thus, the school-proximity law attempts to serve the State's interests through an expressed means (the 2000-foot prohibition on clinics) to an unexpressed end (the relocation of the demonstrations away from public K-8 schools). Second, the State does not contend, and the court finds no evidence, that the demonstrators had any effect on the educational environment inside any school; the State concedes that its only concern is disruption outside of schools due to the presence of protesters near the clinics. Id. at 37:9-21.

In the absence of legislative findings, the court will now, as discussed below, make findings based on the "judicial record" as to the State's two asserted interests. Whole Woman's Health , 136 S.Ct. at 2310 ("[T]he relevant statute here does not set forth any legislative findings. Rather, one is left to infer that the legislature sought to further a constitutionally acceptable objective.... For a district court to give significant weight to evidence in the judicial record in these circumstances is consistent with this Court's case law.").

The court is persuaded that the school-proximity law would impose a substantial obstacle on a woman's right to obtain a pre-viability abortion. As discussed below, the evidence presented to the court reflects that the State's asserted interests are only minimally, if at all, furthered by the law, while the burden imposed on a woman's right to obtain an abortion is substantial.

A. State's Interests

The State's interests are furthered by neither the law's means (the 2000-foot prohibition on clinics) nor its end (the relocation of the demonstrations).

In Tuscaloosa, a middle school sits just within 2,000 feet of the clinic, but a vast wooded area separates the school and the clinic. Map, Second Gray Decl. Ex. E (doc. no. 54-1) at 77 (showing Tuscaloosa clinic at 1,986 feet away from middle school); Pl. Ex. 27 (satellite view showing wooded area separating clinic and school); Tr. Vol. II (doc. no. 111) at 106:4-9. Up to five protesters (but usually fewer than that) stand outside the clinic on weekdays, but they are neither visible nor audible to children entering, exiting, or inside the school. Second Gray Decl. (doc. no. 54-1) at ¶ 35; Tr. Vol. II (doc. no. 111) at 104:15-20, 108:24-25-109:1-5. Indeed, this court has been presented with no evidence that the children (or parents) at the Tuscaloosa school are even aware that an abortion clinic is located nearby. Because the record does not reflect that any K-8 public school children within 2,000 feet of the Tuscaloosa clinic are even aware of the clinic or the demonstrations at the clinic, the school-proximity law does not serve either of the State's asserted purposes of minimizing disruption or supporting a parent's right to control his or her children's exposure to the subject of abortion.

The State does not dispute that, while the law impacts the Tuscaloosa clinic, it was targeted to the "perceived problem" at the Huntsville clinic. Tr. Vol. III (doc. no. 112) at 14:12-16.

In Huntsville, two to 15 protesters stand outside the clinic on weekdays. Tr. Vol. I (doc. no. 110) at 168:5-12 (medical director of Huntsville clinic estimates two to five protesters on a regular basis and up to 10 protesters on weekdays); Second Johnson Decl. (doc. no. 54-2) ¶ 31 (owner of Huntsville clinic estimates five to 15 protesters). Occasionally larger crowds of protesters congregate on weekends, when school is not in session. Tr. Vol. I (doc. no. 110) at 169:5-10; Johnson Dep., Def. Ex. 20 (doc. no. 81-20) at 3:13-18 (describing large rallies with up to 150 protesters). Demonstrators may yell at patients as they enter or exit the clinic. Tr. Vol. I (doc. no. 110) at 216:9-11.

Two public schools that include some or all of grades K-8-Highlands Elementary School and the Academy for Academics and Arts-are located within 2,000 feet of the Huntsville clinic.

The respective entrances to Highlands and the clinic are on different streets, and they are approximately three blocks apart. Id. at 176:18-19, 177:5-6. It is not necessary to drive past the clinic to access the school. Id. at 176:20-23. The record contains absolutely no evidence of concerns expressed by the school's students or their parents about the Huntsville clinic or the demonstrations near it. Thus, as to Highlands, the court finds the State's two interests (minimizing disruption and supporting a parent's right to control their children's exposure to the subject of abortion) would not in any way be furthered by the closing or relocation of the Huntsville clinic.

The Academy for Academics and Arts sits diagonally across a five-lane street from, and to the east of, the Huntsville clinic. Published newspaper articles report that some parents have complained about the presence of protesters near the clinic. But the record reflects no disturbance to the educational environment: no evidence suggests that protests are visible or audible from inside the school; no evidence suggests the classroom setting has been in any way disturbed by the protests; and no evidence suggests that children are hindered or disturbed while entering or exiting the school. In fact, although demonstrators sometimes stand across the street from the Huntsville clinic and close to an Academy driveway, that driveway is not the school's primary driveway and is not typically used by parents who are dropping off or picking up children. Instead, it is used by parents and others to access an attached parking lot if they need to enter the school for business or opt to walk their child into the school, and even then no evidence suggests that children have been hindered or disturbed in those instances. Tr. Vol. II (doc. no. 111) at 26:21-25-27:1-3. The entrance used by parents during normal drop-off and pick-up is accessed from another street on the opposite side of the school, and the driveway used by buses bringing children to and from the school is on the same street as the clinic but further up the road. Id. at 27:21-25-28:1-8; Tr. Vol. I (doc. no. 110) at 174:16-23;

Pl. Ex. 33 (depicting traffic flow at the Academy). Because there is no evidence of disruption to the school's educational environment, the court finds the State's interest in limiting disruption in the educational environment would not be measurably advanced by the closing or relocation of the Huntsville clinic.

Also as to the Academy, the State's interest in supporting a parent's right to control his or her children's exposure to the subject of abortion would be only weakly furthered by the closing or relocation of the Huntsville clinic. The State failed to present evidence of a significant problem: the record contains one report of one mother who had to respond to questions from her son, an Academy student, about the subject of abortion after he witnessed a protest. Newspaper Article, Def. Ex. 16 (doc. no. 81-16).

In addition, the State's statutory means (the closing or relocation of the Huntsville clinic) will not lead to the State's intended end (the relocation of demonstrations away from the Academy). The evidence reflects, and the court so finds, that protests will continue at the Huntsville clinic's current location even if the school-proximity law were to take effect. Anti-abortion protesters have demonstrated not just outside the Huntsville clinic, but also outside the private practice of the clinic's medical director, Dr. Yashica Robinson White, as well as a hospital where she holds admitting privileges. Robinson White Decl. (doc. no. 54-4) ¶¶ 8-10; Tr. Vol. I (doc. no. 110) at 179:2-16; 180:14-20. Because Robinson White previously used the Huntsville clinic's current site for her private obstetrics and gynecology practice, and two and as many as 10 protesters routinely demonstrated outside the facility on weekdays, protests occurred at the site even before it became an abortion clinic. Robinson White Decl. (doc. no. 54-4) ¶ 10; Tr. Vol. I (doc. no. 110) at 166:22-25-167:1-5. Robinson White credibly testified that, if the law were to go into effect and the clinic were to close, she would again use the facility for her private practice, which would likely engender protests again. Tr. Vol. I (doc. no. 110) at 181:22-25-182:1-12; Robinson White Decl. (doc. no. 54-4) ¶ 16. Moreover, Robinson White testified that, if the clinic closed, she would perform abortions at the facility through her private practice, all but guaranteeing continued protests at the site, irrespective of the passage of the law. Id. As a result, the law will not stop protests at the site.

Based on the judicial record, the court therefore finds that the school-proximity law would provide little to no benefit to the State's asserted interests in minimizing disruption and supporting a parent's right to control his or her children's exposure to the subject of abortion.

B. Burdens Imposed on Women

In addition to examining the State's asserted interests, the court must also "consider the burdens [the] law imposes on abortion access." Whole Woman's Health , 136 S.Ct. at 2309.

The parties do not dispute that, if the school-proximity law goes into effect, the State Health Department could not renew the licenses of the Huntsville and Tuscaloosa abortion clinics at their existing locations. After the expiration of their existing licenses, the clinics would need to relocate or shut down. The court finds, based on the judicial record, that the Tuscaloosa clinic and the Huntsville clinic would not be able to relocate and that, as a result, the two clinics would have to shut down if the law were to take effect. Tr. Vol. I (doc. no. 110) at 164:19-25-165:1-18; Second Gray Decl. (doc. no. 54-1) ¶ 34; Second Johnson Decl. (doc. no. 54-2) ¶ 3.

The evidence credibly shows that, because each clinic incurred significant expenses as a result of the surgical-center requirement imposed on abortion providers by the State in 2013, neither clinic would be financially able to relocate now. Because the Huntsville clinic was not able to bring its old building into compliance with the surgical-center standards, it was forced to relocate to a new facility (the place where Robinson White had leased space for her private practice), which cost $ 530,000 to purchase and more than $ 100,000 for building renovations. Tr. Vol. I (doc. no. 110) at 160:23-24, 162:1-4. To cover those expenses, Dalton Johnson, the clinic owner, and Robinson White, the medical director and sole physician, incurred significant personal financial debt. Second Johnson Decl. (doc. no. 54-2) ¶ 16 ("In order to purchase the facility, I cashed in all of my retirement savings; borrowed from my life insurance policy; refinanced the mortgage on the Madison Street building and pulled all the equity out of it; took out a $ 100,000 line of credit; and spent money I had inherited from my father, who had recently passed away. In addition, Dr. Robinson White and I each maxed out every one of our credit cards."); Tr. Vol. I (doc. no. 110) at 162:11-18 (Robinson White explaining that the clinic owner removed "all of the equity" from his mortgage on the prior clinic facility; and that she and the clinic owner "emptied" their savings accounts, "took all of the cash value" out of their insurance policies, obtained a line of credit through a bank, and "maxed out" all of their credit cards). Johnson remains hundreds of thousands of dollars in debt from these expenses. Second Johnson Decl. (doc. no. 54-2) ¶ 17 (describing outstanding debt on $ 100,000 line of credit; $ 90,000 owed to life insurance policy; and hundreds of thousands of dollars remaining on mortgages for both prior and current clinic facilities). The testimony of Robinson White, which the court found highly credible, establishes that she and Johnson have sacrificed significant personal financial resources to continue operating the Huntsville clinic.

The Tuscaloosa clinic spent $ 130,000 to renovate its existing facility to comply with the surgical-center requirements. Second Gray Decl. (doc. no. 54-1) ¶ 32. Purchasing a new facility now would require the Tuscaloosa clinic's owner to use retirement funds or go into debt, which she would not be able to pay off at this stage of her career. Id. ¶ 34.

The Tuscaloosa and Huntsville clinics could not rely on leasing a new facility. Anti-abortion protesters in Alabama have targeted the landlords that lease space to organizations and individuals that provide abortions. After demonstrations targeted the former landlord of the Tuscaloosa clinic, the landlord did not renew the clinic's lease. Id. ¶ 31. Similarly, during an earlier search for a Huntsville facility, Johnson hired real estate agents and engaged in an extensive six-month search, but "each and every time [h]e would meet with the owner or real estate agent of a building [h]e wanted to lease, the moment [h]e informed prospective lessors that [h]e intended to operate an abortion clinic in the space, they would not lease to [him]." Johnson Decl. (doc. no. 54-2) ¶¶ 12, 14. Robinson White explained that, during the Huntsville clinic's recent relocation, the stigma surrounding abortion made it difficult to find a banker and closing attorney to work with them. Tr. Vol. I. (doc. no. 110) at 165:2-11. These difficulties are consistent with the court's previous finding that abortion providers in Alabama face a "climate of extreme hostility to the practice of abortion." Planned Parenthood Se. , 33 F.Supp.3d at 1334. Against this backdrop, the plaintiffs have credibly demonstrated that they would not be able to relocate; the clinics would finally be forced to close.

The State contends that the burdens analysis should not consider the probable closure of the Huntsville and Tuscaloosa clinics because whether the clinics close depends on "the idiosyncrasies of [the clinics'] specific financial position." Def. Br. (doc. no. 81) at 9. In other words, the State seems to argue that the court should not consider the actual financial circumstances of the clinics in assessing whether the law would impose an undue burden Alabama women's right to choose an abortion. This contention misapprehends the undue-burden case law.

As this court has previously explained, the undue-burden analysis requires an examination of the "real-world context" of the challenged statute and its actual effects-and not just those circumstances that are directly attributable to the statute. Planned Parenthood Se. , 9 F.Supp.3d at 1285-87. In Casey , the Supreme Court's evaluation of the burdens imposed by a spousal-notification law took into consideration the reality that many women live in abusive relationships, and that requiring notification to an abusive spouse could impose a potentially insurmountable barrier to obtaining an abortion for those women. See Casey , 505 U.S. at 888-898, 112 S.Ct. 2791 (majority opinion). Contrary to the State's reasoning, it was not relevant to the Court's analysis that the spousal-notification law did not cause the women to live in abusive relationships, or that the idiosyncrasies of different relationships would result in varying impacts on different women. The Court carefully considered the real-world context in which the law would play out, and, based on that context, determined that the notification requirement would have imposed a substantial obstacle to access to abortion.

Moreover, "[w]hen one abortion regulation compounds the effects of another, the aggregate effects on abortion rights must be considered." Van Hollen , 738 F.3d at 796 (Posner, J.). Here, the financial peril of the remaining clinics is a direct result of earlier legislation regulating abortion in the State. The court cannot ignore, and in fact must take into consideration, the financial pressures on the plaintiff clinics resulting from those laws in assessing whether the school-proximity law imposes an undue burden.

Similarly, courts have repeatedly recognized that legislation that imposes substantial costs on abortion providers places burdens on women's access to abortion because the costs discourage other clinics from opening or filling the gaps caused by closures. In Whole Woman's Health , the Supreme Court observed that the costs of $ 1 to $ 3 million required to achieve compliance with Texas's surgical-center requirement were "considerable." 136 S.Ct. at 2318. Evidence of those costs, the Court reasoned, "supports the conclusion that more surgical centers will not soon fill the gap when licensed facilities are forced to close." Id. ; see also Casey , 505 U.S. at 901, 112 S.Ct. 2791 (plurality opinion) (finding that recordkeeping requirements, which "[a]t most ... increase the cost of some abortions by a slight amount" do not impose an undue burden, but acknowledging that "at some point increased cost could become a substantial obstacle"); Tucson Woman's Clinic v. Eden , 379 F.3d 531, 542 (9th Cir. 2004) (concluding that application of new licensing and regulatory scheme to abortion facilities, which would have required abortion providers to expend "[t]ens of thousands of dollars," contributed to undue-burden finding).

Because new abortion clinics are very unlikely to sprout up to fill the gaps, the closure of two of Alabama's five abortion clinics would leave only three abortion clinics operating in the State-one each in Birmingham, Montgomery and Mobile-while the rest of Alabama, including the highly populated metropolitan areas of Huntsville and Tuscaloosa, would have no licensed abortion providers at all. The resulting burdens on women would be substantial.

First, women would lose the right to obtain an abortion in Alabama altogether when they reached 15 weeks of pregnancy, because the Tuscaloosa and Huntsville clinics are the only providers of abortions beginning at 15 weeks of pregnancy.

Second, while abortions before 15 weeks would remain available in Alabama, women who would currently rely on the Huntsville or Tuscaloosa clinics would need to travel significantly greater distances. This burden would become particularly devastating for low-income women who represent the majority of women seeking abortions in Alabama. Katz Decl. (doc. no. 54-11) ¶ 15; see also Second Henshaw Decl. (doc. no. 54-3) ¶ 9 (half of all abortion recipients in the United States have incomes below the federal poverty level). In particular, 82 % of the Tuscaloosa clinic patients live at or below 110 % of the federal poverty level. Gray Decl. (doc. no. 54-1) ¶ 45. In Huntsville, over 60 % of the clinic's patients receive financial assistance from the government. Tr. Vol. I (doc. no. 110) at 206:18-23. If the Huntsville clinic closed, a woman in Huntsville would need to travel at least 200 miles round-trip to Birmingham for the next-closest abortion provider. Without a clinic in Tuscaloosa, a woman there would need to travel at least 110 miles round-trip to Birmingham. Multiple studies have concluded that longer travel distances to access an abortion provider correlate with fewer women obtaining abortions. Second Henshaw Decl. (doc. no. 54-3) ¶¶ 4-8, 19. The court has previously discussed the serious impact of the "first 50 miles" of travel on women seeking abortions, and that "when a clinic closes, the largest effects are actually felt by women who, prior to the closure, needed to travel only short distances, less than 50 miles." Planned Parenthood Se. , 33 F.Supp.3d at 1358-60. The Supreme Court has also recognized that longer travel distances, when taken together with other burdens, increase the burdens on women seeking an abortion. Whole Woman's Health , 136 S.Ct. at 2313 (citing evidence that, after regulation took effect, the number of women living more than 150 and 200 miles from an abortion provider skyrocketed). Here, without the school-proximity law, women in Huntsville and Tuscaloosa could obtain an abortion with a short trip within the city. If the law were to take effect, women in those cities would be required to arrange lengthy out-of-town trips, including obtaining access to transportation, time off from work, childcare, and lodging. Alabama law already requires women to make two trips to the clinic: one to satisfy the informed consent requirement, and one-at least 48 hours later-for the procedure. But not all women have the means to do so, which would either prevent such women from obtaining an abortion altogether or delay their ability to obtain one. Second Henshaw Decl. (doc. no. 54-3) ¶¶ 14, 24 (noting that half of women who experience unwanted delay in obtaining abortions attributed the delay to arrangements such as raising funds, transportation, locating an abortion provider, and organizing childcare).

The increased difficulty of accessing an abortion clinic would be compounded by the three remaining abortion clinics' lack of sufficient capacity to meet the new demand. As a result, not all women who would choose to have an abortion could obtain one. The Huntsville and Tuscaloosa clinics have performed the majority of abortions in Alabama in recent years: combined, they performed 72 % of all abortions in Alabama in 2014, 60 % of all abortions in 2013, and 55 % of all abortions in 2012. Second Johnson Decl. Ex. D (doc. no. 54-2) at 35-37. Together, the Huntsville and Tuscaloosa clinics performed 5,833 abortions in 2014, compared to 2,218 abortions provided by the three remaining clinics combined. Id. at 35. The three remaining clinics could not shoulder the plaintiff clinics' caseload.

As the directors of Alabama's three other clinics explained, if the Huntsville and Tuscaloosa clinics were to close, they project that they could at most reach a combined maximum capacity of 4,500 procedures per year (including the 2,218 they already provide), but this increase in capacity would depend on a significant expansion in staffing and services, which is unlikely in light of the climate surrounding abortion in Alabama. Ayers Decl. (doc. no. 54-7) ¶¶ 8-10; Fox Decl. (doc. no. 54-8) ¶¶ 4-5. For example, the Montgomery clinic performed fewer than 900 abortions in 2014; stretched its resources to perform 1,200 abortions because of the temporary closure of the Tuscaloosa clinic in 2015; and estimates that it could perform a maximum of 1,800 abortions per year at the outermost limit-an estimate dependent on recruiting additional physicians and support staff that it has previously struggled to hire because of the stigma surrounding abortion in Alabama. Ayers Decl. (doc. no. 54-7) ¶¶ 6-8. The Mobile and Birmingham clinics, which provided a combined total of 1,342 abortions in 2014, estimate that, with an expansion of capacity to provide abortions four days per month, they could perform 2,700 abortions per year-but they too are currently struggling to expand capacity because of staffing troubles. Fox Decl. (doc. no. 54-8) ¶ 5; Donald Decl. Ex. F, Induced Terminations of Pregnancy 2014 Report (doc. no. 81-14) at 19. Notably, none of the remaining clinics have plans to expand their services to provide abortions at or after 15 weeks, so women seeking abortions in that timeframe would simply be out of luck.

Also, capacity constraints, especially when combined with the increased travel times, would introduce delays in women obtaining abortions. Later-term abortions, if delayed past the 14th week of the pregnancy, carry greater medical risks and also increase the cost of the procedure; if the delay extends to the 22nd week of pregnancy, it would become illegal for a woman to obtain an abortion in Alabama, with certain exceptions for the life and health of the mother. 1975 Ala. Code § 26-23B-5.

For women in abusive relationships, delays could make the difference between obtaining or not obtaining an abortion at all: where a battered woman attempts to conceal her pregnancy from her abuser, she needs to be able to obtain an abortion before she starts to show; for a woman needing to pass her abortion off to an abusive partner as a miscarriage, she needs to receive a medication abortion (because it looks exactly like a miscarriage), which is only available until 10 weeks of pregnancy. In both scenarios, the longer the delay, the more likely the woman will not be able to get an abortion in time to conceal it from her abuser. To impose additional delay by requiring women to travel further will result in some women taking an unwanted pregnancy to term. Walker Decl. (doc. no. 54-9) ¶¶ 15-16.

Furthermore, the abortions that the remaining clinics could provide likely would not be equal in quality to the care provided prior to the law taking effect: in the crowded clinics that would surely result, women are "less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered." Whole Woman's Health , 136 S.Ct. at 2318. To assume otherwise flies in the face of "common sense," which "suggests that, more often than not, a physical facility that satisfies a certain physical demand will not be able to meet five times that demand without expanding or otherwise incurring significant costs." Id. at 2317. These factors, too, would impose a burden on women seeking an abortion.

Each of these factors-the unavailability of abortions beginning at 15 weeks, the increased travel times, and the reduced capacity, increased wait times, and potentially reduced quality of care at Alabama's three remaining clinics-would result in women facing significantly increased, and even insurmountable, barriers to obtaining an abortion.

Where these types of barriers exist, it is likely that some women will pursue risky alternatives. Cf. Whole Woman's Health , 136 S.Ct. at 2321 (Ginsburg, J., concurring) ("When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux , at great risk to their health and safety."); Planned Parenthood Se. , 33 F.Supp.3d at 1362-63 (describing greater risk that women would attempt to obtain an abortion illegally where travel-related obstacles and capacity constraints are imposed). The Tuscaloosa clinic has had firsthand experience with attempts to self-abort, including when the clinic was temporarily closed in 2015. During that time, women would nonetheless come to the clinic seeking an abortion-including one woman who threatened to stab herself in the stomach. Second Gray Decl. (doc. no. 54-1) ¶ 47. During the same time period, the Huntsville clinic experienced an increased number of calls from women who lived far away seeking abortions, some of whom said "outright that they would try to self-induce an abortion because they could not reach a provider." Second Johnson Decl. (doc. no. 54-2) ¶ 49. Recently, Tuscaloosa's medical director has treated multiple women who attempted to self-abort, such as a woman who consumed turpentine after consulting the Internet and learning about its use as a folk remedy. Tr. Vol. II (doc. no. 111) 69:1-9. So too can Alabama expect an increased level of self-abortions if the school-proximity law were to take effect.

In summary, because the Tuscaloosa and Huntsville clinics provide more than 70 % of abortions in Alabama and are the only providers of abortions beginning at 15 weeks of pregnancy, and because the two clinics would have to cease operations if the school-proximity law were to go into effect, the availability of abortions in Alabama would be significantly reduced, and abortions beginning at 15 weeks would become almost wholly unavailable. Thus, Alabama women attempting to obtain a pre-viability abortion would experience substantial, and even insurmountable, burdens if the school-proximity law were to take effect.

* * *

As stated above, "the more severe the obstacle a regulation creates, the more robust the government's justification must be, both in terms of how much benefit the regulation provides towards achieving the State's interests and in terms of how realistic it is the regulation will actually achieve that benefit." Planned Parenthood Se. , 9 F.Supp.3d at 1287. Here, because, as the judicial record reflects, the State's interests are so attenuated and because, as the judicial record further reflects, the school-proximity law would place substantial, and even insurmountable, burdens on Alabama women seeking to exercise their right to a pre-viability abortion, the court concludes that the law does not "confer[ ] benefits sufficient to justify the burdens upon access that [it] imposes." Whole Woman's Health , 136 S.Ct. at 2300. The court thus holds that the school-proximity law "constitutes an undue burden on abortion access" and is unconstitutional. Id.

C. State's Other Arguments

In its attempt to justify its regulatory approach, the State argues-relying principally on First Amendment challenges to zoning decisions-that governments routinely regulate the types of businesses that may operate near schools. See, e.g. , Def. Br. (doc. no. 81) at 44 (" '[T]here can be little doubt about the power of a state to regulate the environment in the vicinity of schools ... by exercise of reasonable zoning laws.' " (quoting Larkin v. Grendel's Den, Inc. , 459 U.S. 116, 121, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982) ). That argument misapprehends the nature of the undue-burden analysis, which is the controlling standard here. As the Supreme Court reaffirmed in Whole Woman's Health , the undue-burden analysis requires the court to consider, based on the judicial record, "the burdens a law imposes on abortion access together with the benefits those laws confer." 136 S.Ct. at 2309. That analysis must have bite: it would be erroneous to "equate the judicial review applicable to the regulation of a constitutionally protected liberty with the less strict review applicable where, for example, economic legislation is at issue." Id. In zoning cases, the government's authority is "undoubtedly broad," but "the standard of review is determined by the nature of the right assertedly threatened or violated rather than by the power being exercised or the specific limitation imposed." Schad v. Borough of Mount Ephraim , 452 U.S. 61, 68, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). Thus, in government regulation of liquor establishments in the vicinity of schools, "judicial deference is the watchword." Davidson v. City of Clinton, Miss. , 826 F.2d 1430, 1433 (5th Cir. 1987) (upholding a restriction on sale of alcohol within 500 feet of a school, as applied to a nightclub, as neither irrational nor arbitrary). Where constitutionally protected interests that warrant more searching review are threatened, by contrast, the State's cited examples for government regulation of the areas around schools have not withstood scrutiny and therefore do not support the State's position. See, e.g. , Larkin , 459 U.S. at 117, 103 S.Ct. 505 (invalidating, on Establishment Clause ground, statute that delegated authority to schools and churches to veto liquor licenses within 500 feet of their premises).

Similarly, the State's reliance on the First Amendment 'secondary effects' doctrine of City of Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), is mistaken. In that case, the Supreme Court upheld a city ordinance prohibiting adult movie theatres from operating within 1,000 feet of a school because the ordinance advanced the State's interests in eliminating the "undesirable secondary effects" of the theatres, such as crime, injury to retail trade, and depressed property values. 475 U.S. at 48-49, 106 S.Ct. 925. The State here asserts that it too has an interest in regulating "the undesirable secondary effects" of abortion clinics, implying the demonstrations and the impact on children who witness them are the secondary effects the law sought to curtail. Def. Br. (doc. no. 81) at 47. But the secondary-effects doctrine justifies only those State actions that would otherwise constitute an impermissible content-based infringement of First Amendment rights, which are not implicated here. Further, the Supreme Court has squarely rejected the doctrine's applicability to speech viewed as disturbing or offensive, specifically concluding that "[l]isteners' reactions to speech are not the type of 'secondary effects' we referred to in Renton. " Boos v. Barry , 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) ; accord Reno v. Am. Civil Liberties Union , 521 U.S. 844, 867-68, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (rejecting application of Renton 's secondary-effects doctrine to statute intended to protect children from offensive speech). Thus, even under Renton , the State could not force abortion clinics to relocate based on parents' reactions to protester speech.

Moreover, if the State seeks to regulate the areas around schools, other approaches could more effectively advance its asserted interests. For example, the State could have enacted a reasonable "time, place, and manner" restriction on demonstrations outside facilities "where abortions are offered or performed." McCullen v. Coakley , --- U.S. ----, 134 S.Ct. 2518, 2530-32, 189 L.Ed.2d 502 (2014) (approving such a buffer zone because it advanced public safety objectives in light of evidence of crowding, obstruction, and violence). Of course, it is not the province of this court to prescribe the most appropriate regulatory approach; however, it is worth noting that the court's decision does not leave the State without recourse to limit students' exposure to demonstrators.

The court's holding that the school-proximity law is unconstitutional still obtains.

VI. THE FETAL-DEMISE LAW

The court now turns to whether the fetal-demise law imposes an undue burden on women's access to pre-viability abortion in Alabama.

The Alabama Unborn Child Protection from Dismemberment Abortion Act, which the court calls the fetal-demise law, imposes a criminal penalty on physicians who purposely perform 'dismemberment abortions,' defined as "dismember[ing] a living unborn child and extract[ing] him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors, or similar instruments." 1975 Ala. Code § 26-23G-2(3). A health exception applies if the physician in reasonable medical judgment decides "the child's mother has a condition that so complicates her medical condition that it necessitates the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions." 1975 Ala. Code § 26-23G-2(6). A physician found to be in violation of this law may face a civil suit or a criminal penalty, consisting of either a fine of up to $ 10,000, imprisonment for up to two years, or both. While not mentioned explicitly in the language of the law, the parties agree that it would ban the most common method of abortion administered in Alabama at or after 15 weeks-standard D & E-if used without first inducing fetal demise.

The question before the court is whether the fetal-demise law has the purpose or effect of placing a substantial obstacle in the path of a woman's choice to obtain a pre-viability abortion. Whole Woman's Health , 136 S.Ct. at 2309 (quoting Casey , 505 U.S. at 878, 112 S.Ct. 2791 (plurality opinion)) ("[U]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right"). If it does, the law cannot stand.

This Casey undue-burden standard requires the court to "examin[e] the regulation in its real-world context" to determine whether the obstacles imposed by the law are substantial. Planned Parenthood Southeast, Inc. v. Strange , 33 F.Supp.3d 1330, 1337 (M.D. Ala. 2014)

(Thompson, J). In so doing, the court must consider both the effect of an abortion statute on the availability of abortion and the health risks the statute imposes on women. "[R]egulations which do no more than create a structural mechanism by which the State ... may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose." Gonzales v. Carhart , 550 U.S. 124, 146, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (internal citations and quotations omitted). Further, "the fact that a law which serves a valid purpose ... has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it." Id. at 158, 127 S.Ct. 1610. However, a statute designed to protect fetal life imposes a substantial obstacle, and therefore an undue burden, where it "forces a woman and her physician to terminate her pregnancy by methods more dangerous to her health than the method outlawed" or "subject[s] women to significant health risks." Planned Parenthood of Central Missouri v. Danforth , 428 U.S. 52, 79, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). Further, a law requiring the substitution of certain abortion procedures over others will not be upheld if it has the effect of inhibiting the vast majority of pre-viability abortions after a certain week threshold, and the law must allow continued use of "a commonly used and generally accepted method." Gonzales , 550 U.S. at 165, 127 S.Ct. 1610 ; see Stenberg v. Carhart , 530 U.S. 914, 945, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (holding that a law prohibiting the most common second-trimester abortion method, standard D & E, would impose an undue burden). A ban on a particular method can "be upheld only if there [are] safe alternative methods" available. Danforth , 428 U.S. at 77, 96 S.Ct. 2831.

For the reasons discussed below, the court finds the fetal-demise law effectively terminates the right to abortion for Alabama women at 15 weeks. Because it imposes an undue burden on the right of women in Alabama to obtain a pre-viability abortion, the court holds the fetal-demise law unconstitutional.

A. State's Interests

Because no legislative findings accompany the fetal-demise law, the court does not have an explanation from the legislature of the purpose for the law. The State argues that the law advances these interests: advancing respect for human life; promoting integrity and ethics of the medical profession; and promoting respect for life, compassion, and humanity in society at large. The court assumes the legitimacy of these interests. See Whole Woman's Health , 136 S.Ct. at 2310 (assuming that the State had legitimate state interests where the statute did not contain any legislative findings).

In any event, this court must now, based on the judicial record, make its own findings. Whole Woman's Health , 136 S.Ct. at 2310 ("[T]he relevant statute here does not set forth any legislative findings. Rather, one is left to infer that the legislature sought to further a constitutionally acceptable objective.... For a district court to give significant weight to evidence in the judicial record in these circumstances is consistent with this Court's case law.").

B. Burdens Imposed on Women

The plaintiffs assert that the fetal-demise law makes the safest and most common method of second-trimester abortions, standard D & E, essentially unavailable, therefore imposing an undue burden on Alabama women's right to pre-viability abortions. The State responds that fetal demise can be safely achieved before standard D & E with one of three procedures: umbilical-cord transection, potassium-chloride injection, and digoxin injection.

For the reasons discussed below, the court finds that the fetal-demise law imposes a substantial burden in at least two interacting ways: first, the law imposes significant health risks on most women who choose to have an abortion by requiring them to undergo a fetal-demise procedure that is unsafe or experimental; second, and as a result, the law makes standard D & E-the only method of second-trimester abortion available in Alabama as a practical matter-largely unavailable because no safe, non-experimental methods are feasible in the vast majority of cases.

Based on the following factual findings, the court concludes that the proposed fetal-demise methods are not feasible in the plaintiff clinics and that requiring the use of those methods would pose a substantial obstacle to women seeking second-trimester abortions in the State.

1. Impact on Health of Women Seeking Abortions in Alabama

The court's determination whether the law imposes a substantial obstacle to abortion access turns on whether the statute would effectively ban the most common second-trimester abortion method by requiring a procedure that is either unavailable or unsafe. See Stenberg , 530 U.S. at 945, 120 S.Ct. 2597 (finding that outlawing the most common second-trimester abortion method, standard D & E, would impose an undue burden upon a woman's right to terminate her pregnancy before viability). In Gonzales , the Court applied the Casey undue-burden standard to determine whether the federal Partial-Birth Abortion Ban Act of 2003 created a substantial obstacle to abortion access. Gonzales v. Carhart , 550 U.S. 124, 146, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007). In so doing, the Court spent a substantial portion of the opinion examining whether the Act would proscribe standard D & E, which, as will be discussed in detail below, is the most common method of performing abortions at and after 15 weeks, and is the same method at issue here. The Gonzales Court found that the federal ban would not substantially decrease the availability of second-trimester abortions because it prohibited only intact D & E, which was rarely administered, and because the law still allowed "a commonly used and generally accepted method", namely, standard D & E. Gonzales , 550 U.S. at 165, 127 S.Ct. 1610. The Court then addressed whether the ban would impose