A federal appeals court is to hear arguments Wednesday o̶n̶ ̶w̶h̶e̶t̶h̶e̶r̶ ̶a̶ ̶f̶e̶d̶e̶r̶a̶l̶ ̶j̶u̶d̶g̶e̶ ̶i̶n̶ ̶L̶i̶t̶t̶l̶e̶ ̶R̶o̶c̶k̶ ̶h̶a̶d̶ ̶t̶h̶e̶ ̶a̶u̶t̶h̶o̶r̶i̶t̶y̶ ̶t̶o̶ ̶b̶l̶o̶c̶k̶ ̶t̶h̶e̶ ̶s̶t̶a̶t̶e̶ ̶f̶r̶o̶m̶ ̶e̶n̶f̶o̶r̶c̶i̶n̶g̶ ̶a̶ ̶l̶a̶w̶ ̶t̶h̶a̶t̶ ̶s̶e̶t̶s̶ ̶n̶e̶w̶ ̶r̶e̶s̶t̶r̶i̶c̶t̶i̶o̶n̶s̶ ̶o̶n̶ ̶m̶e̶d̶i̶c̶a̶t̶i̶o̶n̶-̶i̶n̶d̶u̶c̶e̶d̶ ̶a̶b̶o̶r̶t̶i̶o̶n̶s̶ ̶i̶n̶ ̶t̶h̶e̶ ̶s̶t̶a̶t̶e̶.̶ on the state’s appeal of an injunction issued by a federal judge that prevents the state from cutting off Medicaid funding for three women who filed a lawsuit over the state’s discontinuation of Medicaid funding for Planned Parenthood services. *
U.S. District Judge Kristine Baker issued a preliminary injunction March 14 that prohibited the state from enforcing Act 577 of 2015. The injunction kept in place a temporary prohibition on enforcing the law that Baker imposed in response to a lawsuit filed in late December. The law had been scheduled to go into effect on Jan. 1.
Meanwhile, attorneys for Planned Parenthood of the Heartland, which operates clinics in Little Rock and Fayetteville that provide medication abortions, continued Friday to urge Baker to enlarge a preliminary injunction in another case. That injunction prevents the state from withholding Medicaid funds to pay for Planned Parenthood services obtained by three women.
The women, known only as Jane Does 1, 2 and 3, want Baker's order preventing the state from cutting off Medicaid funds for Planned Parenthood services to apply to all women across the state who are on Medicaid.
In the case focusing on medication abortions, a main complaint in the lawsuit concerned the protocol that doctors follow in administering the medication.
Act 577 required doctors to follow the U.S. Food and Drug Administration protocol that Planned Parenthood and some private doctors considered outdated. However, that issue became moot in March when the FDA changed the protocol, bringing it in line with the protocol being used in Planned Parenthood clinics and by a growing number of other practitioners across the country.
That leaves another part of Act 577 as the main focus of the lawsuit: the requirement that abortion providers contract with a physician who has admitting privileges at a designated hospital. Planned Parenthood sees the requirement as legislators' way of forcing Planned Parenthood to stop providing abortions, saying that few physicians want to publicly align themselves with Planned Parenthood out of concern for their privacy and safety.
Planned Parenthood clinics in Arkansas already didn't provide surgical abortions, for which they refer patients to the Little Rock Family Planning Clinic.
In a brief filed Aug. 25 with the 8th U.S. Circuit Court of Appeals in St. Louis, which will be the site of the oral arguments Wednesday morning, attorneys for the state contend that Act 577 is necessary to ensure abortion patients' safety. They say that when complications occur with medication abortions, they can be fatal, can involve severe blood loss and can lead to serious infections.
Patients who experience complications often end up at emergency rooms, with doctors who often aren't trained in how to handle the complications and with whom many women aren't forthright out of fear of being stigmatized, the state attorneys say.
They contend that the contract-physician requirement "offers multiple benefits, including ensuring continuity of care, protecting the integrity of the medical profession, and preserving and protecting Arkansans' access to critical emergency care."
Planned Parenthood says the requirement not only intimidates physicians but also greatly limits the availability of locations where a woman can have an abortion, putting an "undue burden" on them by requiring them to travel long distances for care.
In response, the state cites the presence of facilities in surrounding states -- in Memphis, Shreveport, Tulsa, and Jackson, Miss. -- while noting that 98.9 percent of Arkansas women live within 150 miles of those facilities, and the remaining 1.1 percent live within 200 miles of them.
Though it isn't one of the issues before the three-judge panel of the 8th Circuit on Wednesday, Planned Parenthood has asked to add a challenge to its lawsuit over Act 577. The provider now wants to challenge the law's requirement that women have follow-up visits within 14 days of taking an abortion pill, to ensure the abortion is complete.
Attorneys for the state have objected to the plaintiffs being allowed to add a challenge several months after the lawsuit was filed.
Attorneys for the state also object to Baker granting a protective order in the case on Feb. 1 to shield from public view "all confidential and sensitive documents, testimony, interrogatories, correspondence and any other material or information," including the identities of physicians who have agreed or might agree to contract with Planned Parenthood.
The only physician who has been identified is Stephanie Ho, a Planned Parenthood physician who is a plaintiff in the case.
Planned Parenthood of Arkansas and Eastern Oklahoma, which is a plaintiff in both the medication abortion case and the case involving Medicaid funding, has been operated by Planned Parenthood of the Heartland in Des Moines, Iowa, but will be moved under the control of Planned Parenthood Great Plains in Overland Park, Kan., as of Oct. 20, which the provider says is part of a geographical reorganizing.
In response to state attorneys' concerns about the change, Planned Parenthood attorneys said Friday that regardless of which affiliate the Arkansas and east Oklahoma group is under, the group cannot continue providing free services to all its Medicaid patients while the case is pending, even if Baker decides not to expand the preliminary injunction to include all Medicaid patients.
If the expansion motion is still pending at the time of the changeover, the Arkansas clinics won't provide the services without payment, according to documents filed Friday. Any patients who cannot pay for services will be directed to another Medicaid provider, the filing said.
Metro on 09/19/2016
*CORRECTION: A three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis will hear oral arguments Wednesday on the state’s appeal of a March 14 preliminary injunction issued by U.S. District Judge Kristine Baker. The injunction prevents the state from cutting off Medicaid funding for three women who filed a lawsuit over the state’s discontinuation of Medicaid funding for Planned Parenthood services, at least until the lawsuit is decided. In this story, it was incorrectly reported that the 8th Circuit would address a different federal case about Planned Parenthood.