Judge blocks new Arkansas abortion laws just before midnight

Temporary restraining order stops state from enforcing 3 requirements

U.S. District Judge Kristine Baker is shown beside a screenshot of her order temporarily blocking three Arkansas abortion laws that were set to go into effect on Wednesday.

Three minutes and 41 seconds before three new abortion laws in Arkansas were scheduled to go into effect at the stroke of midnight, U.S. District Judge Kristine Baker blocked their enforcement with a temporary restraining order.

The order prevents the state, for up to 14 days, from enforcing Act 493, which bans abortion at 18 weeks of pregnancy; Act 619, which prohibits abortions based solely on the expectation that the fetus will have Down syndrome; and Act 700, which requires doctors performing abortions in Arkansas to be board-certified or board-eligible in obstetrics and gynecology.

The OB/GYN provision threatened to put the state's only clinic that provides surgical abortions, Little Rock Family Planning Services, out of business within a month by leaving it with only one qualifying physician -- a California doctor who comes to Arkansas for only a few days every other month. The clinic wouldn't be able to maintain its overhead with such a small amount of business, clinic director Lori Williams said.

[DOCUMENT: Read judge's order temporarily blocking three abortion laws » https://www.arkansasonline.com/724abortion]

Arkansas law currently allows abortions up to 21.6 weeks of pregnancy and allows any physician licensed to practice in the state to perform abortions.

The challenged laws are among at least 12 abortion-related laws enacted during this year's legislative session, reflecting a national trend toward increased abortion restrictions. Experts say the uptick is fueled by a more-conservative realignment of the U.S. Supreme Court and the corresponding hope by those opposed to abortion that the high court will leave at least some of the new restrictions in place.

In a lawsuit filed June 26 and backed by the American Civil Liberties Union, operators of Arkansas' three abortion clinics asserted that all three laws are unconstitutional and asked that they be enjoined from enforcement. Baker held a hearing Monday on the plaintiffs' request for a temporary restraining order and a preliminary injunction to keep the laws from taking effect until more evidence can be collected and Baker has time to consider striking them down permanently.

In Tuesday's 159-page order, Baker said the request for a preliminary injunction remains under advisement.

Attorneys for the state have described the laws as "common sense" and say they impose no burdens on women's access to abortion and shouldn't be blocked.

Jerry Cox, president of the Family Council, a conservative education and research organization based in Little Rock, has criticized the American Civil Liberties Union for "challenging laws designed to do things like ensure abortion doctors are properly certified ... and protect babies from being aborted simply because they have Down Syndrome."

At Monday's hearing, Baker heard from Jason Lindo, a professor of economics at Texas A&M University who specializes in econometrics. He testified that if Act 700 becomes law, 62% to 70% of the 3,167 women who seek abortion care in Arkansas each year would no longer be able to access the same care. He said the impact would be felt mostly by those seeking surgical abortions.

"Given that the vast majority of abortions provided in Arkansas over the past three years have been provided by physicians who will be forced to stop providing them under the OBGYN requirement, the OBGYN requirement represents a huge shock to abortion availability," he wrote in a declaration filed with the court.

Surgical abortion is the only means of terminating a pregnancy after 10 weeks from the date of a woman's last menstrual period. In Arkansas, it is offered only at Little Rock Family Planning Services. Planned Parenthood clinics -- one each in Little Rock and Fayetteville -- don't have the necessary equipment for performing surgical abortions and provide only medication-induced abortions, a two-step procedure in which the first drug is taken in the clinic and the second is taken at home.

Lindo said that while 2,212 women now obtain surgical abortions in Arkansas annually, the OB-GYN requirement would reduce that number to 252 women, at most.

"As a result of these substantial shortages, a large number of women will have to attempt to travel to more-distant providers to access care," further reducing abortion rates in the state, Lindo said.

He provided a county-by-county list of the distance to the nearest out-of-state providers of abortion, comparing those distances to the nearest abortion clinic in Arkansas currently.

"I have determined ... that there are currently five out-of-state abortion providers within 100 miles of Arkansas's borders, with three in Memphis and the others in Shreveport and Tulsa," Lindo wrote. "One additional clinic, in Jackson [Miss.], is within 150 miles of Arkansas's borders."

A statistics expert witness for the state, Tumulesh K.S. Solanky, testified that the average driving distance for Arkansas women to out-of-state clinics is 75.1 miles.

Williams testified Monday that if the OB/GYN requirement takes effect, the clinic would likely close its doors "within a month."

Lindo predicted that if the clinic shuts down, women in 32 counties will have to travel more than 150 miles to reach the nearest provider of surgical abortion, and women in four Arkansas counties would have to travel 200 to 220 miles.

The clinic is mostly owned by Dr. Thomas Tvedten, who provides most of the abortions but isn't an OB/GYN. Dr. Thomas Horton, who also isn't an OB/GYN, performs about 33% of the clinic's abortions, according to Lindo's research. The California doctor, Frederick Hopkins, performs only about 6% of the clinic's abortions, Lindo said.

Planned Parenthood's Little Rock clinic has two doctors who are board-certified OB/GYNs, but Act 700 would be an issue for its Fayetteville location, where Dr. Stephanie Ho, who isn't an OB/GYN, currently provides all medication abortions.

However, the Fayetteville clinic stopped providing abortions earlier this month while it searches for a new home in Northwest Arkansas, prompting it to withdraw from the preliminary injunction effort since the law wouldn't immediately affect it. It is expected to actively rejoin the lawsuit after it begins operating again.

Lindo's report to the court notes that the Fayetteville clinic has recruited a volunteer board-certified OB/GYN to provide medication abortions for three hours one night a week, through the summer.

Also scheduled to take effect today, but not part of the legal challenge before Baker, is Act 801, which mandates a three-day delay between the first and second visits a woman is required to make to an abortion clinic, replacing the current 48-hour delay.

Opponents of the new law complain that it will only add to many women's difficulty in taking time off work and obtaining transportation to make a long drive to an out-of-town clinic.

They say that if a woman opts to stay in a hotel between the first visit and the procedure, the 72-hour provision will require an extra night, at extra expense, further affecting poor women, in particular.

A Section on 07/24/2019