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Judge refuses to stay ruling on abortion; state wants pacts between providers, doctors

by Linda Satter | July 21, 2018 at 4:30 a.m.

A federal judge refused Friday to stay, or suspend, her July 2 injunction blocking the state from requiring abortion providers to contract with doctors with hospital privileges.

Attorneys for the state asked U.S. District Judge Kristine Baker to stay the injunction while they appealed it to the 8th U.S. Circuit Court of Appeals in St. Louis. A stay would allow the state to enforce Section 1504(d), also known as the contracted physician requirement, of the Abortion-Inducing Drugs Safety Act of 2015.

Planned Parenthood has challenged the constitutionality of the section, saying it would effectively end medication-induced abortion in Arkansas because neither they nor Little Rock Family Planning Services, which also provides abortions, have been able to find a physician willing to contract with them as the section requires.

Even physicians who are sympathetic to women seeking an abortion face severe repercussions from their fellow practitioners, hospitals and anti-abortion groups, the abortion providers say.

Planned Parenthood's 2015 lawsuit challenging the constitutionality of the section led to the injunction. In opposing the request for a stay, the provider's attorneys noted that the section has been under court scrutiny since before it could become effective Jan. 1, 2016, so allowing the injunction to remain in place would "maintain the status quo as it has been for the past 10 years."

Baker said in an order Friday that the state has not met its burden to receive a stay. Most importantly, she said, the state cannot show it is likely to succeed in defending the section's constitutionality.

"First," she said, "contrary to defendants' assertions, this Court recited and applied the correct standard to determine whether Section 1504(d) is constitutional." She noted that in her 148-page order granting the preliminary injunction she considered "whether the contract-physician requirement's benefits are substantially outweighed by the burdens it imposes on a large fraction of women seeking medication abortion in Arkansas."

She said she applied a legal standard that required her to weigh the section's benefits and burdens, and that attorneys for the state "present no argument or evidence" to demonstrate otherwise.

"Second," she said, she found that Planned Parenthood couldn't comply with the requirement, "for reasons discussed in the preliminary injunction order." She summarized several of those reasons, including testimony about a letter the abortion providers sent to every obstetrician/gynecologist in Arkansas they could find through the Arkansas Medical Society and the state Medical Board.

"Contrary to defendants' assertions," Baker said, the evidence demonstrated that Dr. Stephanie Ho, a physician at Planned Parenthood's Fayetteville clinic, and Planned Parenthood staff members "called at least 60 doctors" in their search for one who would agree to be the contract physician.

She added that "there is considerable evidence in the record that doctors are reluctant to associate with abortion providers, given the likely impact to an associating doctor's safety, job opportunities, and perceived standing in the local community."

"Third," Baker said, she has already extensively cited her reasons for crediting an expert witness for the plaintiffs over the testimony of the state's opposing expert. She found that the the plaintiffs' expert's "conclusions appear grounded in valid statistical methods and appear to be analytically sound."

The judge went on to emphasize several more points, refusing to revisit her previous findings that the section will delay abortions for some women, and denying that she ignored the state's interest in setting minimal continuity-of-care standards.

She also noted that in her injunction, she "agreed with the findings of multiple federal courts, based upon overwhelming record evidence, that medication abortions are safe."

The 8th Circuit dissolved a previous injunction that Baker had imposed to keep the state from enforcing the debated section of law. Her latest injunction followed the finding of additional facts, as directed by the appellate court.

Metro on 07/21/2018

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