Medication-induced abortion remains available in Arkansas under a ruling issued Monday evening by a federal judge who said she has reviewed several more years of data and several new U.S. Supreme Court rulings since she first blocked the state from enforcing a 2015 law restricting the practice.
The law, Act 577 of 2015, also known as the Abortion-Inducing Drugs Safety Act, requires doctors who perform pill-induced abortions to first secure a contract with a second obstetrician/gynecologist who has hospital admitting privileges and agrees to treat the patient if complications arise.
It's a requirement that Planned Parenthood, which provides medication abortions at its clinics in Little Rock and Fayetteville, and Little Rock Family Planning Services, which provides medication and surgical abortions, say is impossible for them to meet because of the stigma doctors face if they associate with abortion doctors and the potential harassing or even violent consequences. Neither clinic was aware of any private physicians in Arkansas who perform abortions.
U.S. District Judge Kristine Baker first issued a preliminary injunction in May 2016 that prevented the state from enforcing the new law, which legislators touted as a means of protecting women and ensuring continuity of care after the two-step procedure that involved one pill administered by a doctor and a second taken at home. The procedure is available only through a woman's ninth week of pregnancy.
But a doctor and a nurse practitioner who have provided abortions for years testified last week that the requirement is unnecessary because the increasingly popular nonsurgical procedure is safe and they have never had to admit a medication-abortion patient to a hospital. The law is seen by abortion supporters as a way to prevent Planned Parenthood from providing abortions, making it harder for all women in Arkansas to obtain them.
Baker's first injunction was dissolved last July 28 by a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis. An opinion written by Judge Raymond Gruender of St. Louis, who has been named as one of President Trump's many potential nominees to the U.S. Supreme Court after the recent retirement of Justice Anthony Kennedy, remanded the case to Baker to flesh out her ruling. Specifically, the 8th Circuit instructed Baker to determine whether a "large fraction" of Arkansas women seeking medication abortions would by unduly burdened by the law.
The 8th Circuit's order was put on pause, however, while Planned Parenthood appealed to the U.S. Supreme Court, which on May 29 declined to hear the case, allowing the 8th Circuit ruling to stand.
Meanwhile, the U.S. Supreme Court has made other rulings, particularly in a Texas case known as Hellerstedt, declaring that a contracted-physician requirement in Texas places a substantial obstacle in the path of a woman's choice for a large fraction of women seeking medication abortions.
Baker relied on the Hellerstedt case, the high court's resolution of other factual disputes and updated statistics from both sides of the lawsuit to issue a 14-day temporary restraining order that was set to expire at 5 p.m. Monday. Her latest ruling, which came in the form of a 148-page written order, was filed about 5:30 p.m. Monday, extending the temporary order. It will remain in effect until a trial on the law's constitutionality is held and the judge decides whether to make the injunction permanent. Baker has already determined that Planned Parenthood is likely to prevail.
Reaction was swift.
"Attorney General [Leslie] Rutledge is extremely disappointed in Judge Baker's decision .... allowing Planned Parenthood and Little Rock Family Planning Clinic to provide medication abortions without protecting the health of pregnant women," Rutledge's spokesman, Jessica Ray, said Monday evening.
She added, "Under this preliminary injunction, medication abortion providers can now administer these procedures without the necessary safety net available to women who experience emergencies and complications. Last year, the 8th Circuit unanimously ruled that Judge Baker's original attempt to block this law was incorrect. Today's order is completely inconsistent with the 8th Circuit's decision and Attorney General Rutledge will appeal to the 8th Circuit and do everything in her power to protect the lives of Arkansas women."
Bettina Browstein of Little Rock, one of the attorneys for Planned Parenthood, responded by saying, "Attorney General Rutledge -- that fine legal scholar -- has obviously not read this opinion," and also has apparently not read the U.S. Supreme Court's opinion in Hellerstedt finding that a contracted-physician requirement provides no added benefit for women, while creating an undue burden on their right to obtain an abortion.
Brownstein said she was "extremely pleased" with Baker's order, noting, "I didn't think she could possibly be more rigorous and detailed than she was in her TRO. This is quite an impressive order, a thorough piece of work."
The 148-page preliminary injunction order includes much of the reasoning from the 100-page temporary restraining order issued June 18 but includes additional information that was provided since then through legal briefs, documents and testimony at a hearing last week.
"Let's be honest," Brownstein said. "The attorney general wants to shut down abortion clinics. ... Let's not insult women and say this is about their health. She is using the subterfuge of saying this law is to help women's health." In fact, Brownstein said, "they provide fabulous abortion care at both" Planned Parenthood and Little Rock Family Planning Services.
Baker has noted that the U.S. Supreme Court has declared that medication abortion is a "remarkably safe" procedure.
In addition to citing the high court's clarification of several legal issues since her first injunction on March 14, 2016, Baker noted that also in that time, "many more district courts have examined these issues and permitted parties to develop factual and legal arguments related to similar disputes in other states."
Baker said that Planned Parenthood -- the only provider that is a plaintiff in the lawsuit -- has provided medication abortions in Arkansas since 2008. She recited ways in which abortions in Arkansas are already "heavily regulated," including that only physicians who are currently licensed to practice in Arkansas may perform abortions, and that each abortion patient shall have access to 24-hour telephone consultation with either a registered nurse or a physician associated with the abortion facility. Counseling must be provided to each patient before an abortion, and each patient is to be assessed for post-abortion counseling.
She cited the fact that abortion patients can only be released upon a physician's orders, that detailed written instructions are provided to abortion patients when they leave the clinic, along with emergency contact numbers, and that the patients' medical records must be maintained and stored.
Each abortion facility must have written procedures for an emergency transfer of a patient to an acute care facility, and must have available equipment for handling an emergency. The Arkansas Department of Health may revoke a facility's license for any practices detrimental to a patient's health.
In 2017, Planned Parenthood physicians provided 843 medication abortions, 653 of which were performed at its Fayetteville health center. Little Rock Family Planning provided 92 medication abortions and 2,334 surgical abortions during the same period.
In her latest order, Baker cited evidence that the "vast majority" of hospitals don't provide abortions and don't provide hospital privileges to doctors who provide abortions.
She reviewed Planned Parenthood's numerous efforts to try to recruit a contracting physician and again noted that if the Fayetteville clinic stops performing abortions, women in the Fayetteville area would be required to travel 380 miles to make one trip to Little Rock to access surgical abortion services. Another Arkansas law known as the informed consent provision requires that women visit the clinic at least 48 hours in advance of the procedure, requiring two trips.
"For now, this Court finds ... that Section 1504(d) causes ongoing and imminent irreparable harm to the plaintiffs and their patients," Baker said. She said that information developed so far indicates that the section "will force [Planned Parenthood's] two abortion clinics to cease providing medication abortions, the only type of abortion offered by those two clinics, leaving Arkansas with only one abortion clinic, which is located in Little Rock and provides only surgical abortions. Those women who live in Northwest Arkansas and seek a medication abortion are now faced with the prospect of making two 380-mile round trips to Little Rock for a surgical abortion."
Even considering abortion providers in surrounding states, Baker said, "it is not a short distance to an alternative provider for most women seeking a medication abortion in Arkansas ... Since the record at this stage of the proceedings indicates that Arkansas women seeking medication abortions face an imminent threat to their constitutional rights, the Court concludes they will suffer irreparable harm without preliminary relief."
Metro on 07/03/2018