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Federal court strikes down an Alabama abortion law

Brandon Moseley

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Wednesday, federal appeals court struck down an Alabama state law, the Alabama Unborn Child Protection from Dismemberment Act, prohibiting physicians from providing dilation and evacuation (D&E). Abortion proponents argue that dilation and evacuation is a medically proven method for performing abortions. The decision from the Eleventh Circuit Court of Appeals in the case brought by the American Civil Liberties Union is the first by a federal appeals court on the constitutionality of a ban on the D&E procedure.

Alabama Governor Kay Ivey (R) issued a statement commenting on the 11th Circuit Court of Appeals, which affirmed the lower court decision striking down the Alabama Unborn Child Protection from Dismemberment Act.

“I was supportive of the bill when it passed through the Legislature in 2016, and I signed it as president of the Senate,” Gov. Ivey said. “I am disappointed in the court’s ruling today; however, we should not let this discourage our steadfast commitment to protect the lives of the unborn, even if that means taking this case to the U.S. Supreme Court. This ruling clearly demonstrates why we need conservative justices on the Supreme Court, and I look forward to the confirmation of Brett Kavanaugh.”

The ACLU of Alabama defended the abortion industry in court.

“Today, the court told Alabama politicians they can’t disregard a woman’s health and decision-making in favor of their ideological agenda,” said Randall Marshall, executive director of the ACLU of Alabama. “This ruling ensures that doctors can continue to use their best judgement to provide the care that is right for their patients.”

Andrew Beck, the senior staff attorney at the ACLU Reproductive Freedom Project, said, “The upshot of this ruling is that women’s health, not politics, will guide important medical decisions about pregnancy. Laws like this are part of a larger strategy by anti-abortion politicians to push abortion out of reach entirely. Today, the court affirmed a woman’s right to get the care she needs.”

While the Eleventh U.S. Circuit Court of Appeals criticized the Supreme Court’s abortion decisions, calling them an “aberration of constitutional law,” the court of appeals acknowledged it is not the Supreme Court, and thus affirmed the lower court’s decision that found Alabama’s law prohibiting dismemberment abortions of live unborn babies, known as Dilation and Extraction (D&E), violates the High Court’s decisions.

In her special concurrence, Judge Dubina wrote:

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“I write separately to agree on record with Justice Thomas’s concurring opinion in Gonzales v. Carhart, 550 U.S. 124, 168-69, 127 S. Ct. 1610, 1639-40 (2007) (Thomas, J., concurring), with whom then Justice Scalia also joined. Specifically, Justice Thomas wrote, ‘I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey [Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992)] and Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705 (1973), has no basis in the Constitution.’ Id. at 169, 127 S. Ct. at 1639. The problem I have, as noted in the Chief Judge’s opinion, is that I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.”

Kayla Moore, the President of the Montgomery based Foundation for Moral Law took issue with the ruling:

“Because the Eleventh Circuit had an amicus brief in front of it explaining why the court’s duty was to follow the Constitution instead of the Supreme Court, the court knew it had a duty to disregard Roe and protect the children’s right to live.” Moore added, “The Eleventh Circuit cannot wash its hands of the blood of the innocent by placing the blame on the Supreme Court. The victims of the Eleventh Circuit’s passivity are Alabama’s unborn children, who can now be murdered by having their limbs torn from their bodies while their hearts are still beating.”

In West Alabama Women’s Center v. Thomas Miller, Liberty Counsel filed an amicus brief on behalf of the American Association of Pro-Life Obstetricians and Gynecologists and American College of Pediatricians, defending the Alabama law that prohibits dismemberment abortions of live unborn babies based on the medical evidence of their ability to feel intense pain.

Liberty Counsel and Alabama’s Pro-Life legislators argue that the scientific evidence supports the assertion that unborn babies feel pain as early as eight weeks gestation.

The court used very graphic language to describe the abortion procedure:

“This case involves a method of abortion that is clinically referred to as Dilation and Evacuation (D & E). Or dismemberment abortion, as the State less clinically calls it. That name is more accurate because the method involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child. This is usually done during the 15- to 18-week stage of development, at which time the unborn child’s heart is already beating.”

“Under the Act, the one performing the abortion is required to kill the unborn child before ripping apart its body during the extraction. [citation omitted] Killing an unborn child and then dismembering it is permitted; killing an unborn child by dismembering it is not. The parties agree that for these purposes an unborn child is alive while its heart is beating, which usually begins around six weeks. See How Your Fetus Grows During Pregnancy, Am. Coll. of Obstetricians & Gynecologists (April 2018).”

The Alabama Legislature did not ban abortions in the state; but rather just this particularly type of abortion.

“In this method of ending a pregnancy, dismemberment abortion ‘requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina.’ [Stenberg v. Carhart, 530 U.S. 914, 958, 20 S. Ct. 2597, 2624 (2000)]. The practitioner then “uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the remainder of the body.”

“Alabama’s law is a common-sense solution to a barbaric and gruesome procedure,” said Mat Staver, Founder and Chairman of Liberty Counsel. “If the vilest criminal has human dignity that prevents cruel and unusual punishment, then how much more should laws protect an innocent unborn child from the most despicable form of torture and death? There are just seven countries in the world that allow children to endure this barbaric procedure and that disgraceful list includes the United States. We must make the womb a safe place again. This case or one like it cries out to the Supreme Court Justices to reverse the horrible abortion decisions. As the court correctly noted, the Supreme Court abortion decisions are an ‘aberration of constitutional law.’ This is true, but they also violate higher law and condone the worst kind of infanticide.”

The Alabama ACLU argued that leading medical experts such as the American College of Obstetricians and Gynecologists oppose this type of abortion restriction. An evidence-based and non-partisan report from the National Academies of Science, Engineering, and Medicine described D&E as a “superior method” of abortion, finding that it is extremely safe with minimal complications.

Similar bans in Kansas, Oklahoma, Louisiana, Texas, and Arkansas have all been blocked when challenged in court. The ACLU is challenging a similar law in Kentucky.

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Aerospace and Defense

Brooks releases road map for completing defense appropriations bill despite coronavirus crisis

Brandon Moseley

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Congressman Mo Brooks, R-Huntsville, on Wednesday released the House Armed Services Committee road map for completing the FY2021 National Defense Authorization Act despite the COVID-19 pandemic.

“National defense is the #1 priority of the federal government. Despite the once-in-a-century COVID-19 pandemic, the House Armed Services Committee stands fully committed to passing the annual National Defense Authorization Act,” Brooks said. “The NDAA has passed Congress 59 consecutive years. I will work to ensure FY 2021 is no different. I thank Chairman Smith and Ranking Member Thornberry for their leadership and commitment to passing the FY21 NDAA in the face of COVID-19 challenges. While the process will be different, I am confident the final House Armed Services Committee product will be no less effective at securing America.”

Committee Chairman Adam Smith and Ranking Member Mac Thornberry’s attached the March 31, 2020 letter providing HASC’s plan to have the NDAA ready for committee debate by May 1st.

The letter was addressed to Members of the Committee on Armed Services, including Brooks.

“We want to update HASC members and staff on plans for our committee during the month of April, given the nationwide disruption caused by the COVID-19 pandemic,” Smith and Thornberry wrote. “One challenge is deciding how to handle meetings of the committee and subcommittees since all such meetings for April will have to be held by conference call or video conference.”

“We must continue to exercise our oversight responsibilities and prepare to pass the Fiscal Year 2021 National Defense Authorization Act (NDAA) out of committee and off the House floor,” the letter continued. “Our goal is to have the bill ready to go by May 1st, and we will schedule the date of the mark up once the House schedule for the next few months becomes clear.”

“First, we want you all to understand that because of House rules we cannot hold public hearings or classified briefings in the formal sense like in normal circumstances,” they explained. “We will have to do what can best be called, informal events.”

“Public hearings are required to be open to the public,” the leaders of the HASC committee wrote. “They also require a quorum, involving the physical presence of members. Neither of these things are possible to achieve in conference calls or video conferences. Obviously, we also cannot have classified briefings over the phone or on video. There is no way to set up secure connections amongst the number of people that would have to be involved.”

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“Informal events, therefore, would take the form of the full committee or the subcommittees doing video or phone conferences and linking up the necessary members, staff, and witnesses,” the letter continued. “We have one such informal event, set for April 1st with Department of Defense officials to discuss their response to the pandemic. This will be a conference call.”

“We believe that future informal events like this for the month of April make sense, and welcome any suggestions from members on appropriate topics and witnesses,” Smith and Thornberry continued. “But, we hope members will keep in mind some of the responsibilities that will need to be balanced in deciding when to pull together such informal events. We face three significant limitations during the month of April when it comes to setting up these informal events. First, HASC staff and members, as they always are in the month leading up to finalizing full and subcommittee marks, are spending an enormous amount of time doing the work necessary to get the mark done. In fact, we did not plan on having a significant number of public hearings or briefings in April even before the shutdown happened due to this staff workload. Second, these are not normal times. As we’re sure all of you have been doing, we and the HASC staff and everyone at the Department have been fully engaged on managing the pandemic crisis. It is a complex problem and the Department plays a crucial role. We are all working countless angles to address the crisis and that crucial work must be given priority. Finally, efforts to prevent the spread of the virus among Department personnel and others will without question limit the ability of the Department and other witnesses to be available at times in the coming month.”

Smith and Thornberry wrote that these informal events are needed for to get the bill done, while exercising the necessary oversight of the Department.

The informal events are meant to substitute for normal public hearings and briefings and are not the only or even the main thing that the committee is doing.

Social distancing and the prohibition on meeting with more than ten present has made it difficult for Congress to fulfill many of its duties.

Congressman Mo Brooks is serving in his fifth term representing Alabama’s Fifth Congressional District. Brooks recently won the Republican primary. Since he has no Democratic opponent this means that Brooks has been effectively re-elected to his sixth term in Congress.

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As cases surpass 1,100 in Alabama, still no “stay-at-home” order

Chip Brownlee

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The number of positive novel coronavirus cases in Alabama rocketed past a thousand Wednesday, but the state still has no shelter-in-place order — and Gov. Kay Ivey’s office says she is not ready to implement one.

“The governor remains committed to exploring all options and has not ruled anything out, but she hopes that we do not need to take this approach,” Ivey’s spokesperson said Wednesday.

By 6 p.m., there were 1,108 confirmed cases of the virus and at least 28 deaths statewide related to COVID-19. Cases grew by triple digits again after a brief lull in new cases Tuesday. But the infections are also widespread. Cases have been reported in 62 of the state’s 67 counties — and not just in the more urban ones.

Only one city in the state, Birmingham, has issued a shelter-in-place order. The city is in Jefferson County, which, in coordination with the city, has taken a stricter approach to handling the coronavirus outbreak because it has the most cases in the state.

The cities of Montgomery and Tuscaloosa have also implemented curfews, but they have far fewer cases per capita than many other areas of the state. (No. 30 and 31 out of 67 counties in per capita cases.)

But some of the hardest-hit counties in the state are outside of Jefferson County, and the health departments in those counties do not have as much authority to issue their own directives as Jefferson County and Mobile County do. They’re the only two health departments in the state that are independent with the legal authority to act autonomously from the state health department.

Cities and counties in some of the hardest-hit areas like Lee and Chambers counties have also not issued shelter-in-place orders by municipal ordinance as has been the case in Jefferson County.

Lee County and Chambers County in East Alabama have the highest infection rates in the state, and the highest per capita number of cases, yet the cities and counties there are following a statewide order that is less restrictive than the measures in place in Birmingham, Tuscaloosa or Montgomery.

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Lee County has 83 cases, and Chambers County has 45. But per capita, Chambers County has 135 cases per 100,000. (For comparison, Jefferson County, where there are 302 cases, has only 46 cases per 100,000 people.) Chambers County also has the highest number of deaths per capita in the state, at 12 per 100,000 people.

The hospital that serves Lee, Chambers and the surrounding counties — East Alabama Medical Center — is currently treating 30 patients with a confirmed diagnosis of COVID-19. It has already discharged 16 other COVID-19 patients, and there are 12 more in the hospital with suspected cases of the virus.

While the hospital says it is currently stable in the number of ventilators and other equipment it has available, it is still asking for donations of some needed supplies like latex-free gloves and bleach wipes.

Aside from UAB in Birmingham, EAMC is currently treating the most COVID-19 patients, according to data APR collected over the past two days. As the state continues to avoid issuing a statewide stay-at-home or shelter-in-place order, East Alabama Medical Center is urging the residents in the area to act as if there has been an order issued.

“While there is not yet a mandate to shelter in place, EAMC encourages it as the best way to stop the spread of COVID-19,” the hospital said. “Community leaders, city officials and the media have shared this important message, but there are still reports of groups gathering, children playing in neighborhood parks, dinner parties, bible studies and other events.”

All of Alabama’s neighboring states have issued shelter-in-place orders. Mississippi, Georgia, Florida and Louisiana have done so. The governors of Mississippi, Florida and Georgia all decided to issue orders today after balking at the idea for weeks.

Ivey has taken steps to curb the spread of the virus. She and the Alabama Department of Health issued an order on March 19 that closed the state’s beaches and limited gatherings of 25 or more people. She’s also closed schools for the remainder of the academic year.

On Friday, March 27, Ivey ordered closed a number of different types of businesses including athletic events, entertainment venues, non-essential retail shops and service establishments with close contact. The state has also tightened its prohibition on social gatherings by limiting non-work related gatherings of 10 people or more.

Ivey’s order Friday is not that far off from a shelter-in-place order, but it lacks the force of telling the state’s residents to stay home if at all possible. A number of businesses and manufacturing facilities are also allowed to keep operating, though they have been encouraged to abide by social-distancing guidelines as much as possible.

But Ivey has said she doesn’t want to issue a shelter-in-place or stay-at-home order because she doesn’t want to put more stress on the economy.

“You have to consider all the factors, such as the importance of keeping businesses and companies open and the economy going as much as possible,” Ivey said on Friday.

Ivey’s spokesperson Wednesday said the governor has taken appropriate action thus far.

“In consultation with the Coronavirus Task Force, the governor and the Alabama Department of Public Health have taken aggressive measures to combat COVID-19,” her spokesperson, Gina Maiola, said. “The governor’s priority is protecting the health, safety and well-being of all Alabamians, and their well-being also relies on being able to have a job and provide for themselves and their families. Many factors surround a statewide shelter-in-place, and Alabama is not at a place where we are ready to make this call.”

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Governor

The behind-the-scenes efforts to combat COVID-19

Bill Britt

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Some days it seems the only visible action state government is taking is to update the public on the number of COVID-19 cases and those who have died from the disease.

But in these times of dire public uncertainty, Gov. Kay Ivey’s team is working diligently to solve a myriad of problems facing the state.

In fact, the governor’s Capitol office suites are a hive of activity solely aimed at protecting Alabamians.

Ivey has established three groups to assess and address the various situations facing every sector of state healthcare and emergency needs, as well as the economic concerns of individuals and businesses.

The groups are led by former C.E.O.s, health professionals, or military officers who have volunteered in this time of crisis.

Strategic Asset Team or S.A.T. is tasked with finding and vetting supplies ranging from Personal Protective Equipment (P.P.E.) to gloves, ventilators and more items needed by healthcare workers on the frontline of fighting the novel coronavirus.

Sourcing and procuring vital medical equipment is not easy and is made harder by scam artists and price gaugers who seek to profit from the calamity. The governor’s office estimates for every legitimate offer there are some 80 to 90 fraudulent ones.

S.A.T., along with government personnel, evaluates every possibility to obtain goods and equipment. Once a legitimate outlet is identified, the team moves quickly to test and acquire the needed supplies.

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The governor’s office has streamlined purchasing methods so that once a supplier is identified and the goods are proven worthy, the purchase can be made swiftly.

Another group led by Secretary of Commerce Greg Canfield is called the Business and Manufacturing Alliance, B.A.M.A., which is sourcing supplies from existing manufacturers in the state.

“From our perspective, we’re trying to do everything we can to identify and utilize the asset that we have in the state that is going to provide us with or produce the medical equipment and medical supplies that are needed,” said Canfield. From Toyota to Alabama Power and smaller companies like Mobile’s Calagaz Printing, the state is working to meet the challenges. “We are in talks with Hyundai about providing a connection to bring supplies out of Korea because they might be able to find alternate solutions for medical supplies,” said Canfield.

Global auto parts supplier Bolta with a facility at the Tuscaloosa County Airport Industrial Park is retooling its operation to produce plastics shields and goggles that doctors and nurses need in the emergency room.

Alabama-based research groups are pushing for breakthroughs in testing and vaccines.

BioGX Inc., a molecular diagnostics company, based at Innovation Depot, has joined B.D., a global medical technology company, to develop a new diagnostics tests that would increase the potential capacity to screen for COVID-19 by thousands of tests per day.

Birmingham-based Southern Research is collaborating with Tonix Pharmaceuticals Holding Group, a New York-based biopharmaceutical company, to test a potential COVID-19 vaccine.

Canfield and the B.A.M.A. group are daily finding other Alabama-based companies to battle the effects of the pathogen.

A third group known as Renewal is comprised of retired C.E.O.s whose goal is to make sure that those in need can cut through bureaucratic red-tape. They are charged with finding the best ways to streamline the government’s processes so that individuals and companies are not waiting for a government bureaucrat somewhere to press a button.

The Governor’s office is working in partnership with the state’s universities, businesses and others in an ongoing battle to curb the COVID-19 outbreak in the state.

In times of crisis governments always stumble getting out of the gate; that’s what happens.

The work presently being coordinated by the Governor’s staff and volunteers is not currently seen by the general public, but the efforts of these groups will affect the state now and in the future.

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Health

More than 200 people hospitalized with confirmed, suspected COVID-19

Chip Brownlee

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More than 200 people are hospitalized in Alabama with either a lab-confirmed case of the novel coronavirus that causes COVID-19, or a case the hospital suspects to be the virus but testing has not yet confirmed.

At least 120 people with lab-confirmed cases of the virus — about 12 percent of the state’s 1,000 confirmed cases, as of Wednesday morning — were hospitalized in ten of the state’s largest hospitals at the beginning of this week. The number is likely higher statewide.

The Alabama Department of Public Health has so far not provided regular updates on the number of hospitalizations in the state, but State Health Officer Dr. Scott Harris has said about 8 percent of confirmed cases are hospitalized. Hospitals are reporting their hospitalization numbers to the state using the Alabama Incident Management System.

These ten hospitals who responded, which represent about a third of the state’s hospital bed capacity, provided basic hospitalization numbers to APR over the past two days.

More than 200 people were hospitalized in these hospitals when those with suspected cases of the virus are included. From the ten hospitals that provided numbers, more than 85 people are hospitalized with a suspected case of the virus. The number is likely much higher because not all of the ten hospitals shared how many suspected cases they are treating.

If the number of patients who are awaiting test results for unknown respiratory illnesses is included, the number is even higher — more than 300. It’s likely hospitals are treating these patients as if they have COVID-19, out of an abundance of caution.

Not all of the suspected cases will turn out to be COVID-19, but over the last week, hospitals have seen many of their suspected cases turn into confirmed cases after receiving lab test results. Lab results from the state’s lab are taking more than four days, on average, several of the hospitals said.

The state’s largest hospital, UAB in Birmingham, actually saw its inpatient confirmed cases decline since Thursday, March 26. A hospital spokesperson said 52 people were hospitalized with a confirmed case of the virus as of Tuesday at 11 a.m., down from a high of 62 on March 26.

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Other hospitals are seeing their cases surge. East Alabama Medical Center in Opelika has seen its COVID-19 patient load more than double since last week. The hospital, as of Monday, was treating 20 people with a confirmed case of the virus and 31 more with a suspected case. At least seven people have died at EAMC since Friday.

Southeast Medical Center in Dothan is also seeing higher numbers of COVID-19 cases. It is treating 14 inpatient confirmed cases — up from four last week —  and 24 more inpatients are awaiting test results. It’s possible that some of these patients are not from Alabama.

These numbers are delayed and shouldn’t be misconstrued as totally reflective of what hospitals are handling right now. The number of people hospitalized for COVID-19 is likely to be much higher than we are able to report, because of testing result delays, other problems with data reporting and hospitals we weren’t able to gather data from.

Our data is limited because it only includes some of the state’s largest hospitals, and not all hospitals provided the same type of data to us. Some did not respond to our requests for information. But these estimates do show that the number of people hospitalized with COVID-19 in Alabama is higher than the percentage reported by the Department of Public Health.

The Alabama Department of Public Health is releasing more limited data than neighboring states. The Georgia Department of Public Health regularly releases hospitalization numbers and detailed demographic data on those who have died.

In that state, at least 885 people — about 21.5 percent of its confirmed cases — are hospitalized. Georgia also releases the number of negative test results from commercial labs. In Alabama, it’s hard to tell how many people have been tested because commercial labs are not required to report their negative tests.

Louisiana, which is in the midst of a crisis, also releases hospitalization numbers, negative test results, and specific data on how many people are intubated on ventilators. In that state, 1,355 people are hospitalized with the virus, and 5,237 people have tested positive. 239 people have died. More than 38,000 people have been tested in Louisiana for the virus.

In Alabama, the Department of Public Health says 7,774 people have been tested. At least a thousand have tested positive. Twenty-four people have died.

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