Lawyers for the Arkansas Board of Health are calling on the state Supreme Court to lift a "wantonly unlawful" order prohibiting the agency from sanctioning the state's three abortion providers over some of their billing practices.
Pulaski County Circuit Judge Tim Fox exceeded his authority Thursday when he blocked state regulators from enforcing billing restrictions established by the Woman's Right to Know Act, lawyers for Attorney General Leslie Rutledge wrote in their petition to the state's high court.
Fox based his order on his determination that the portion of the law, Arkansas Code 20-16-1703, called into question by the Little Rock Family Planning Services and Planned Parenthood clinics in Little Rock and Fayetteville was likely unconstitutional. He ordered the Health Board not to enforce the measure until a trial can be held to determine whether the provision is legal.
Fox has no authority to take that "unprecedented and wantonly unlawful" action, the attorney general's office, representing the Health Board, complained to the high court.
Michael Cantrell and Dylan Jacobs, the assistant solicitors general representing the board, filed the 13-page petition with the Supreme Court about an hour before midnight Thursday, about 11 hours after Fox ruled. They are asking the high court to take emergency action on their request, ahead of an April 8 hearing scheduled by Fox.
The issue of the billing restrictions imposed on abortion providers by the 2017 Right to Know Act came before Fox in December, when the clinics appealed the Board's October finding that they had broken the law regarding some of their billing for patient services. The clinics have since asked to dismiss the appeal, reporting earlier this week that they have reached an accord with regulators.
That dismissal request effectively strips Fox of jurisdiction, the state lawyers argued to the Supreme Court. They further stated that Fox never had the authority to block the agency from enforcing the billing portion of the Right to Know Act because the clinics never asked him to do that.
Fox's findings on the law are also contradicted by a determination made by a federal judge who reviewed the appeal at the request of state attorneys before concluding he had no jurisdiction over the issue, the petition stated.
In his decision Thursday, Fox reported that his jurisdiction had been restored once the federal judge, Billy Roy Wilson, decided he had no authority to preside over the appeal.
Fox also noted that he had first acted in January but that the Board of Health had moved the appeal to federal court before his ruling could take effect, thus creating an "unnecessary delay" based on a "facially deficient" claim to the federal court.
The Board of Health, on an 11-2 vote, found that the clinics had improperly collected payment from patients for abortion-related services during a mandated 48-hour waiting period before the procedure.
The clinics' attorney, Bettina Brownstein of Little Rock, says the law violates the federal and state constitutions by requiring the clinics to provide certain services to women at least 48 hours before an abortion but bars them prohibiting from charging for those services at the time.
One board member has resigned over the vote, describing the board's decision as made without benefit of a fair hearing and aimed at punishing the abortion providers.
Metro on 03/30/2019