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Law360 (April 23, 2020, 10:00 PM EDT) -- The Eleventh Circuit on Thursday shut down Alabama's attempt to lift a block on its order banning abortions during the coronavirus pandemic, saying the state doesn't have "carte blanche" to impose such measures even during a public health emergency.
A three-member panel denied the state's emergency motion to pause a federal judge's temporary order blocking the Board of Public Health and Gov. Kay Iveyto's April 3 mandate postponing abortions, unless they are necessary for the mother's life and health, until April 30.
"While states and the federal government have wide latitude in issuing emergency orders to protect public safety or health, they do not have carte blanche to impose any measure without justification or judicial review," the panel wrote, pushing back at the state's claim that postponing abortions was a valid exercise of its power to fight the pandemic by preserving medical equipment.
The state told the appeals court on April 16 that U.S. District Judge Myron H. Thompson's decision granting part of a preliminary injunction to reproductive rights groups that let certain abortions proceed "intrudes upon the sovereignty of the state at the very time its police powers are at their zenith."
"The district court's injunction thus threatens to inhibit a swift response just when it is needed most, and it does so needlessly because the underlying order is, by the court's own finding, facially constitutional," the state said in its brief.
But in addition to misconstruing precedent regarding state police during an emergency, the panel said Thursday the state failed to clearly lay out what the ban entails.
"Given the state's varied interpretations of the April 3 order, the plaintiffs cannot be forced to guess whether their conduct is prohibited and then face prosecution if they choose incorrectly," the panel wrote.
Judge Thompson's ruling determined that the state's order violated the 14th Amendment rights of patients by unconstitutionally implementing a pre-viability ban.
"The COVID-19 crisis leaves the court and the parties in uncharted territory," Judge Thompson wrote. "But this much is clear: For at least some women, a mandatory postponement until April 30 would operate as a prohibition of abortion, entirely nullifying their right to terminate their pregnancies, or would impose a substantial burden on their ability to access an abortion."
Counsel for the parties did not respond to requests for comment.
Circuit Judges Beverly B. Martin, Adalberto Jordan and Robin S. Rosenbaum sat on the panel.
The Alabama abortion providers are represented by Randall C. Marshall and Brock Bone of the ACLU of Alabama, Alexa Kolbi-Molinas and Meagan Burrows of the ACLU Foundation and Carrie Y. Flaxman and Susan Lambiase of the Planned Parenthood Federation of America.
Alabama is represented by Edmund G. LaCour Jr., James W. Davis and Brad A. Chynoweth of the state attorney general's office.
The case is Robinson et al. v. Attorney General, State of Ala. et al., case number 20-11401, in the U.S Court of Appeals for the Eleventh Circuit.
--Editing by Jay Jackson Jr.
For a reprint of this article, please contact reprints@law360.com.
