A preliminary finding Tuesday by a Pulaski County circuit judge that billing restrictions imposed on three Arkansas abortion providers are illegal prompted lawyers for the attorney general to ask a federal court to take up the case.
Judge Tim Fox's order would have temporarily blocked state regulators from continuing to impose the restrictions on Little Rock Family Planning Services and Planned Parenthood clinics in Little Rock and Fayetteville, but it was nullified when state lawyers opted to ask the federal court to decide the issue.
The case arises from the clinics' appeal of an October state Board of Health finding that they had violated a provision of Arkansas Code 20-16-1703 -- a 2017 addition to the 2015 Woman's Right to Know Act.
The law bars the clinics from collecting payment for abortion-related services during the mandated 48-hour waiting period before the procedure.
The clinics' attorneys say the law costs their clients thousands of dollars and violates the state and federal constitutions, including protections for patient privacy and contract rights.
Fox said his first impression of the issue indicates a "substantial probability" that the billing law is unconstitutional. Significantly, the judge asked the sides whether they knew of any similar state-imposed restrictions on how medical providers bill patients. Fox said he hasn't been able to find any.
"I couldn't find there was any medical procedure other than this where there was a restriction ... on payment for any medical services," the judge said.
Fox also emphasized that he is still reviewing the pleadings in the case and was awaiting further briefs on whether the appeal should be dismissed.
State lawyers also could have opted for an appeal to the Arkansas Supreme Court. Tuesday's hearing was for the judge to address arguments that sovereign immunity bars the clinics from challenging the law.
Fox rejected that reasoning, telling Assistant Solicitor General Michael Cantrell, who represents the board, that a December ruling by the state high court distinguishes between lawsuits against the state, which are barred by the immunity doctrine, and appeals of state agency decisions like this, which go through circuit court. The high court has ruled that agency appeals generally do not have immunity protections.
Metro on 01/23/2019
CORRECTION: Pulaski County Circuit Judge Tim Fox’s oral order barring the Arkansas Department of Health from imposing billing restrictions on abortion providers was nullified Tuesday, the same day he made it, when state state attorneys transferred the case to federal court and out of his jurisdiction. An earlier version of this story incorrectly described the effect of Fox’s order.