Two of the three abortion clinics in Arkansas have been cited for minor infractions noticed during surprise inspections last month by the state Health Department and now face being shut down if the state enforces a new law that is the subject of a pending federal lawsuit.
That's what directors of the clinics said in affidavits filed Wednesday in a lawsuit pending before U.S. District Judge James Moody Jr. that challenges the constitutionality of Section 2 of Act 383 of 2017, which imposes mandatory licensing suspensions on abortion clinics -- and only abortion clinics -- upon being cited for any infraction, regardless of whether it concerns patients' health and safety.
The plaintiffs -- Planned Parenthood's two clinics, one in Little Rock and one in Fayetteville, and the Little Rock Family Planning Clinic -- say the law violates equal-protection provisions of the U.S. Constitution.
Moody heard arguments Aug. 1, the day after the law went into effect, on the plaintiffs' request for a permanent injunction to stop its enforcement, but he hasn't yet ruled.
Attorneys have been submitting written briefs to bolster their written arguments, but the plaintiffs' deadline for submitting briefs has already expired, and the documents filed Wednesday sought permission to add details of the latest development to existing briefs. It said attorneys for the state didn't oppose the request as long as they also are allowed to file extra arguments in response.
"Since briefing and oral argument on this motion, additional factual developments have occurred that further illustrate the unconstitutionally of the Act, and that quell any possible concerns regarding the ripeness of Plaintiffs' claims and/or Plaintiffs' standing to assert these claims," wrote Little Rock attorney Bettina Brownstein, who filed the case June 20 on behalf of the American Civil Liberties Union of Arkansas.
She asked Moody to immediately enter a declaratory judgment that the law violates the Equal Protection Clause of the Constitution and is void.
Section 2, enacted during this year's state legislative session, imposes mandatory licensing penalties on abortion facilities in Arkansas when a violation of any kind is documented. There is no similar mandatory requirement for other health care facilities in the state that are are also subject to Health Department inspections.
The clinics contend the new law imposes "draconian and medically unjustifiable penalties on abortion facilities, and abortion facilities alone," as a means of trying to put the clinics out of business.
Until the law took effect, abortion clinics in Arkansas were subject to the same regulations as other clinics regulated by the state, such as surgical centers and birthing centers. The law still gives those clinics a chance to remedy the violation or object to the citation.
Notices received last week by Little Rock Family Planning and the Planned Parenthood clinic in Fayetteville, as a result of surprise November inspections of all three clinics, included notices of suspension of the facilities' licenses, though they also say the infractions have apparently been corrected, and request statements from the facilities confirming that understanding.
"You have thirty (30 days) from the mailing of this notice to respond with the confirmation or ask for a hearing," states a letter from Becky Bennett, section chief of Health Facility Services for the department. She added, "If you fail to do so, the license will be suspended. The suspension shall remain in effect until all violations have been corrected."
"However supportively phrased, ... the letter still constitutes a notice of suspension," said Lori Williams, clinic director of Little Rock Family Planning Services, in an affidavit.
She added, "LRFP has been providing high-quality abortion care and other reproductive health care for decades. It has been continuously licensed as an abortion clinic since the mid-1980s. The clinic has never before received a notice of suspension. Unless LRFP acts in accordance with [the health department's] instructions there, the letter makes clear that LRFP's 'license will be suspended.'"
The infraction cited at the Little Rock clinic was the clinic's failure to list the Red Cross' phone number on its emergency contact sheet -- something Williams said surprised her, "because the LRFP emergency contact sheet had been closely reviewed during numerous inspections before, over a period of many years, and [the health department] had never cited LRFP for not having the Red Cross on that sheet or called our attention to the need to add the Red Cross number."
The clinic's health care practices, whether for abortions or other gynecological or family planning care, "has never involved the Red Cross in any way or given rise to any need or occasion to call the Red Cross," Williams wrote.
She added that the surprise inspection of the clinic on Nov. 20 and 21 lasted a full day on the 20th and a half-day on the 21st.
Similarly, Aaron Samulcek, interim president and chief executive officer of Planned Parenthood Great Plains, which operates one clinic each in Little Rock and Fayetteville, said inspectors made an unannounced 1½-day inspection of the Little Rock clinic on Nov. 8 and 9. He said that at the conclusion of the inspection, the inspectors couldn't confirm whether any deficiencies would be cited -- in contrast to the practice at the close of previous inspections.
"Our staff was very anxious to receive the final results," he said, "given that even the most minor of deficiencies would result in licensing penalties."
He said inspectors arrived unannounced at the Fayetteville clinic Nov. 14, again conducted a lengthy inspection, and in an exit interview indicated a concern that "we were using washable cloth booties in our stirrups in our ultrasound examination room," which surprised the staff, since the clinic has used the booties for years without any complaints from inspectors.
On Dec. 7, Planned Parenthood received word from the department about both inspections, informing them that the Little Rock facility wouldn't be cited for any deficiencies but the Fayetteville clinic would be cited over the booties.
As Williams said, Samulcek noted that the clinic received by email a "notice of suspension" that said the clinic's license "will be suspended" unless the deficiency is corrected in 30 days or the clinic contests the citation.
Even if the department doesn't publicize the notice of suspension, "anti-choice advocates routinely request copies of our inspection documents," Samulcek's affidavit said. "Indeed, just earlier this week, our staff was informed of a pending public records request for all of PPGP's inspection documents for the past three years."
He said the department said the suspension notice will be released as a part of the request, and, "I am concerned that anti-choice advocates will characterize the notice of suspension as providing evidence that PPGP is an unsafe provider whose licensure status is in jeopardy."
Attorney General Leslie Rutledge's office, which is defending the new law, is expected to respond to the filing but didn't comment on it Wednesday.
Metro on 12/14/2017