A federal judge's July 28 order blocking the enforcement of four abortion-restricting laws enacted this year by the Arkansas General Assembly should be reversed, attorneys for the state have argued in a 59-page brief filed at the 8th U.S. Circuit Court of Appeals in St. Louis.
The laws at issue are:
• Act 45, which would have taken effect July 30 and bans a common second-trimester procedure, dilation and evacuation, that supporters of the law have called "particularly barbaric" but foes say is the safest second-trimester abortion method available in outpatient facilities.
• Act 603, which also would have taken effect July 30 and governs the disposal of fetal remains after surgical abortions. Abortion opponents have said it requires that the remains of unborn children are treated with dignity and respect. Abortion-rights supporters said the law requires the consent of third parties prior to every abortion and can be interpreted to ban medication abortions.
• Act 1018, which also faced a July 30 effective date and requires doctors to notify local law enforcement agencies when an abortion has been performed on a girl who is 16 or younger. Supporters have said the law protects young girls from sexual predators, but detractors say it invades the privacy of girls and their families.
• Act 733, which was to go into effect Jan. 1. It requires doctors to seek a woman's previous medical records if she knows the sex of her fetus, to ensure the woman isn't using abortion as a means of sex selection. Foes of the law have said it adds an extra burden to a woman seeking an abortion and invades her privacy.
In the brief filed Friday, the first filing since Attorney General Leslie Rutledge's office filed a formal notice of appeal Aug. 25, attorneys for the state called the laws "four commonsense Arkansas abortion regulations," and chastised U.S. District Judge Kristine Baker's conclusion that they are likely unconstitutional.
"In addition to its groundless assertion that abortion is safer than pregnancy, the district court's opinion is riddled with error," the brief asserts. "It applies the wrong legal standards, confuses legal and factual conclusions, misconstrues statutory language, and fails to determine whether the challenged provisions would impose substantial obstacles on a large fraction of patients."
The attorneys for the state requested oral arguments of 25 minutes per side before a three-judge panel.
The brief says the 8th Circuit must examine Baker's finding that the four new laws' purported health benefits don't outweigh other burdens they impose; her concern that alternative abortion methods might be unavailable for some patients; her interpretation of the sex-selection ban and a fetal-remains amendment; and her finding that extending tissue-preservation and reporting requirements to children are unconstitutional.
It also says the 8th Circuit must consider whether Baker ignored the public's interests that the laws were designed to protect.
The brief calls the dilation and evacuation abortion method "a horrifying practice," saying it "requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living unborn child and tear it away from the remainder of the body."
It cites vivid descriptions of the "death-by-dismemberment" practice from previous opinions, detailing reports of pain experienced by the fetus and feelings of depression and self-hatred experienced by women who have undergone the procedure.
It also notes that the new law doesn't prohibit the procedure when it is necessary to prevent a serious health risk to the pregnant woman.
In defense of Act 603, which governs the disposition of fetal remains, the brief notes that the Arkansas Final Disposition Rights Act of 2009 establishes a hierarchy for determining who controls the disposition of the remains after an abortion, with that right passing to the "next qualifying person" when the first person doesn't exercise the right within two days of notification of death or five days of the death, whichever is earlier.
The brief notes that the existing law excludes from the decision-making process anyone younger than 18, convicts, and people who are estranged or lack affection, trust and regard for the decedent.
"Until recently, Arkansas law contained a special exemption permitting abortion providers to simply dispose of fetal remains as ordinary tissue," the brief states. "The amendments at issue here eliminated that special exemption while carefully preserving provisions allowing pathologists and physicians to conduct medically indicated follow-up examinations."
It says that "consequently, abortion providers are now required to treat fetal remains in the same respectful manner as other human remains."
In defense of Act 1018, the attorney general's office argues that under the Arkansas Child Maltreatment Act, as amended in 2016, doctors who perform abortions on girls younger than 14 must preserve fetal tissue and notify law enforcement officials where the girl resides.
It says, "That information is subject to the strictest confidentiality and may be used to open, continue, or supplement an existing investigation."
It says the amendments at issue extend existing requirements to girls ages 14, 15 and 16, which "corresponds with data demonstrating" that the risk of being a victim of forcible rape increases dramatically from ages 10 to 14, "where it peaks."
The filing also questions the reputation of Little Rock physician Frederick W. Hopkins, the named plaintiff in the case pursued by the American Civil Liberties Union of Arkansas and the Center for Reproductive Rights. Hopkins performs abortions at Little Rock Family Planning in Little Rock, the only clinic in the state that provides surgical abortions.
"The commonsense abortion regulations at issue here serve significant governmental objectives and do not impose an undue burden," argues the brief, filed by Assistant Attorney General Michael Cantrell and Arkansas Deputy Solicitor General Nicholas Bronni.
The plaintiffs in the case are expected to file a similar brief in defense of the injunction.
Metro on 12/03/2017