Planned Parenthood has asked a federal appeals court to prevent Arkansas from enforcing a 2015 law placing restrictions on medication-induced abortions until the U.S. Supreme Court reviews the case.
In a response filed Wednesday, Arkansas Attorney General Leslie Rutledge asked the 8th U.S. Circuit Court of Appeals in St. Louis to deny the request for a stay of a recent ruling, allowing the state to immediately implement Act 577 of 2015.
The law requires providers of medication-induced abortions to contract with a physician who has admitting privileges at one of several designated hospitals in case of complications or face criminal penalties. The requests filed this week at the 8th Circuit follow the court's refusal last week to reconsider a three-judge panel's July 28 ruling.
That ruling vacated a lower court's 2016 injunction blocking the law's enforcement until the merits of a lawsuit filed by Planned Parenthood Great Plains, which operates one clinic each in Little Rock and Fayetteville, can be decided. Planned Parenthood contends Arkansas legislators created the law, under the guise of safety concerns, for the purpose of putting the provider out of business and drastically reducing the number of abortions in the state.
Act 577 had two components. One of them, which was later mooted by a change in federal regulations, required Arkansas doctors who perform medication-induced abortions to use procedures that Planned Parenthood considered outdated. The other component, which remains a point of contention between the state and the abortion provider, requires such providers to partner with a contracting physician.
Planned Parenthood, which provides only medication abortions, contends that it has been unable to find a physician willing to contract with the clinic because of concerns about the public backlash against abortion providers.
Aside from Planned Parenthood, which also provides other family planning services, the law also affects Family Planning Services in Little Rock, which provides surgical and medication-induced abortions.
The law was to take effect on Jan. 1, 2016, but U.S. District Judge Kristine Baker blocked its enforcement, first through a temporary restraining order, and then, on March 16, 2016, through a longer-lasting preliminary injunction. The state's appeal to the 8th Circuit has prevented the setting of a trial date to decide the merits of the lawsuit.
Baker said the law would impose an unconstitutional undue burden on women seeking to terminate a pregnancy who would be forced to make a long drive, and incur associated extra costs, to travel to Little Rock for an abortion. She agreed with Planned Parenthood that those impediments, and the lack of a nonsurgical alternative, might stop some women from seeking the procedure at all, while others may attempt to self-abort or go to unsafe providers.
Attorneys for Planned Parenthood on Tuesday asked the 8th Circuit, which still has jurisdiction of the case, for time to formally request that the U.S. Supreme Court hear the case.
"If permitted to take effect, Arkansas' medically unnecessary abortion restriction -- which is strikingly similar to one the Supreme Court struck down just last year in Whole Woman's Health v. Hellerstedt ... will effectively ban medication abortion state-wide and leave only one remaining abortion provider," they argued.
Whole Woman's Health case struck down a Texas requirement that physicians performing abortions have hospital privileges. The high court said the requirement failed a balancing test between the burdens a law imposes on abortion access versus the benefits the law confers. Baker found that the "nearly identical" Arkansas law would impose more significant burdens than the Texas law.
"The Supreme Court is likely to grant review and reverse this Court's decision because it directly contravenes Whole Woman's Health and creates a circuit split on the application of the undue burden standard," Planned Parenthood attorneys argued. "In the meantime, a stay of this Court's mandate is necessary to maintain the status quo and ensure that Arkansas women can continue to access medication abortion and that women outside of the Little Rock area can continue to access abortion at all."
The attorneys noted that medication abortion is the only available abortion early in a woman's pregnancy and involves a combination of two pills: mifepristone and misoprostol. They pointed out that "the district court found, the record demonstrates, and the U.S. Supreme Court has recently confirmed that medication abortion is a very safe procedure, which has been provided safely to over two million women in the United States alone."
"When rare complications do arise, they occur after the woman has left the health center, and after she has taken the second medication at a location of her choosing," the attorneys said, emphasizing that all Planned Parenthood patients "receive specific instructions for home care and a phone number for a 24-hour hotline staffed by a registered nurse."
In "exceedingly rare" cases that require immediate treatment, Planned Parenthood said, the nurse will refer the patient to her local emergency room.
Because none of the three health centers in Arkansas that provide medication-induced abortions can comply with the law, its enforcement "will eliminate entirely the safe, early, non-surgical option of medication abortion," the filing states.
The filing also asserted that the 8th Circuit panel that vacated Baker's injunction -- Circuit Judge Raymond Gruender of St. Louis, Chief Judge William Riley of Omaha, Neb., and Senior U.S. District Judge James Gritzner of Des Moines -- "adopted a test for evaluating abortion restrictions that is contrary to the Supreme Court's binding precedent."
Rutledge's office cited "medical evidence" that it said Arkansas lawmakers relied on in enacting the Abortion-Inducing Drugs Safety Act; namely, that "abortion-inducing drugs are associated with an increased risk of complications relative to surgical abortion."
The state's brief noted that Baker "did not consider other provider practices or Arkansas' interest in setting minimal care standards."
It also criticized Baker's finding that the law would cause "some women" to postpone an abortion and face increased complications, or forgo an abortion altogether. Attorneys for the state noted that Baker "made no effort to define the relevant geographic area or 'some women' or to determine whether 'some' constituted a large fraction."
State attorneys also noted that Baker's ruling left the 8th Circuit panel, in its words, "with no concrete district court findings estimating the number of women who would be unduly burdened by the contract-physician requirement ... and whether they constitute a 'large fraction' of women seeking medication abortions in Arkansas."
The panel remanded the case to Baker to determine whether the proportion of women who might be unduly burdened by the law was sufficient to support a challenge to the law.
The attorney general's office argued that attorneys for Planned Parenthood misconstrued how the Hellerstedt ruling would apply to the Arkansas case.
"This Court should deny [Planned Parenthood's] motion because they have failed to demonstrate a reasonable probability that the Supreme Court will grant review, this Court has already determined that they are unlikely to prevail on the merits, there is no evidence that they (or the future patients they claim to represent) will suffer irreparable harm, and the balance of equities and public interest strongly favor denial," the attorney general's office argued.
Metro on 10/05/2017