A federal judge vowed Thursday to give priority status to issuing a written order on the constitutionality of a new state law that imposes mandatory licensing suspensions on Arkansas abortion clinics the minute they are cited by the Health Department for any infraction.
Act 383 of 2017 applies only to abortion clinics and not to other state-regulated health clinics, which the clinics say puts the law in direct conflict with the equal protection provision of the 14th Amendment.
It would require an immediate penalty for any minor deficiency found during an inspection, even if the violation is for something unrelated to health or safety, such as failure to update telephone records or repair torn chair fabric.
Until the law took effect Aug. 1, abortion clinics were subjected to the same regulations as other health clinics regulated by the state Department of Health — such as surgical centers and live-birthing centers. Those regulations don’t impose immediate sanctions for violations found during routine annual inspections or other surprise inspections. They give the clinics a chance to remedy the violation or object to the citation.
Act 383 “is no way tied to violations that pose a threat to patient safety or health,” attorney Jennifer Keighley of the Planned Parenthood Federation of America argued Thursday before U.S. District Judge James Moody Jr. She said the state has already had the authority to immediately revoke or suspend an abortion clinic’s license for any health or safety threat, and the plaintiffs aren’t challenging that authority.
Assistant Attorney General Monty Baugh said the law was passed to protect the state’s interests in ensuring the health and safety of women in Arkansas as well as the dignity and life of unborn children. He said in court documents that abortion clinics “pose a unique risk of serious complications,” such as uterine rupture, infection and severe blood loss, which require specialized regulations.
That contention is adamantly opposed in a lawsuit filed June 20 by Planned Parenthood, which operates one clinic each in Little Rock and Fayetteville that provide medication-induced abortions; and Little Rock Family Planning Services, which provides medication-induced and surgical abortions. Together, they are the state’s only abortion clinics.
“Legal abortion is one of the safest and most common procedures in contemporary medical practice,” according to the lawsuit challenging the constitutionality of Act 383 and asking Moody to invalidate the law. “The United States Supreme Court recently affirmed that ‘abortions taking place in an abortion facility are safe — indeed safer than numerous procedures that take place outside of hospitals.’”
The lawsuit says the nation’s high court noted in a 2016 opinion in a case known as Whole Women’s Health v. Hellerstedt that childbirth and colonoscopies have higher mortality rates than abortion does.
The plaintiffs didn’t seek a preliminary injunction to temporarily halt the enforcement of the law until the merits of the lawsuit could be decided at an eventual trial. They instead asked Moody to permanently enjoin the law’s enforcement on the basis of legal arguments alone, citing Act 383’s unconstitutionality.
Moody set Thursday’s hearing to address that request. If he decides in the plaintiffs’ favor, that would be the end of the case. If not, the lawsuit would likely remain open until the merits of the case could be decided in a trial.
The state has filed a response to the lawsuit saying Act 383 was enacted to protect women from unsafe clinical practices and deficient record-keeping. But it hasn’t filed a motion to dismiss the suit or a motion citing its legal reasons why Moody should uphold the law.
In court Thursday, Baugh argued that the plaintiffs lack legal standing to pursue the case because they haven’t yet been injured by it. He also asserted that the clinics lack standing — a vested interest — to represent future patients who may be affected by the law. Baugh also argued the equal-protection issue isn’t “ripe” for court review and that there is no merit to the plaintiffs’ allegations.
“This law is the first of its kind,” Keighley said, explaining that the plaintiffs “are not aware” of any similar law in any other state.
She argued that Act 383 “will do nothing to advance the state’s purported interest in women’s health,” and could actually endanger women by making the services of the state’s widely spaced abortion clinics unavailable to them. Depending on which clinic’s services might be suspended, women seeking abortions might have to travel a long distance to obtain abortions elsewhere in a limited amount of time, she said.
Baugh said the new law requires each clinic to be licensed separately, so a violation by one clinic wouldn’t apply to another clinic owned by the same entity.
“There’s no question the law treats all abortion facilities different than all other licensed health-care facilities in the state,” Keighley argued, noting that the other clinics are all given a chance to correct violations before being branded with a license revocation or suspension.
Under the law of the 8th U.S. Circuit Court of Appeals, which has jurisdiction over federal courts in seven states including Arkansas, the Constitution’s assurance of equal protection applies to all clinics that “are similarly situated in all relevant respects,” even if the state wants to group various health clinics in different categories, Keighley said.
“The undisputed facts show there is no rational basis for this singling out” of abortion clinics, she argued. Among other things, she said, “There is not even a provision in the act that the violation be related to health care.”
While the state subjects all health clinics to at least annual inspections, it also dispatches inspectors to abortion clinics at any time in response to any private complaint, which the providers argue puts the clinics in imminent danger of being shut down in response to a complaint from someone who just wants to shut down abortion clinics.
She noted that it is “not so simple” to comply with every regulation, and that the Health Department has “wide discretion” to decide whether to cite a clinic for any particular violation.
Baugh argued that any license suspensions under the law remain in effect only while the violation is active.
But some violations are errors that cannot be remedied, and the law doesn’t allow for the setting aside of a mandatory penalty once a violation is cited, Keighley argued. She said that even though the law allows for a 30-day “stay” of any revocation or suspension while the clinic contests or remedies the violation, the clinic’s reputation would be damaged by the revocation or suspension.
Moody questioned some of Baugh’s arguments, such as when Baugh proclaimed that “Act 383 has never been applied to an abortion clinic.”
“Isn’t it fair that Act 383 can only be applied to an abortion clinic?” Moody asked, prompting Baugh to concede that was true.
Moody asked Baugh, “What is the state’s interest in singling out abortion clinics for mandatory” penalties, which he said is the same as “removing the discretionary component for abortion clinics.”
Baugh replied that the regulations that previously applied to abortion clinics “had no teeth,” leading the state to focus on helping women who develop complications after leaving an abortion clinic.
But, Moody said, any patient who leaves an outpatient surgery center and then has complications would be in the same position and would likely go to an emergency room for after-hours help.
“I’m still trying to get to the government’s argument on why they need to treat abortion clinics differently,” he said.
Baugh told the judge that abortion clinics need specific regulations because they “operate in relative secrecy, compared to others,” citing privacy fences surrounding some clinics.
“Yeah, because the others aren’t being bombed or shot at,” Moody replied. He told Baugh, “Certainly, this lock and key and barriers you’re referring to doesn’t keep out the Health Department.”