Little Rock Family Planning Services, the state's only provider of surgical abortions, filed a legal challenge Monday morning to the state Health Department's "cease and desist" order Friday prohibiting all surgical abortions from going forward during the covid-19 pandemic.
The motion by the American Civil Liberties Union of Arkansas was filed in an ongoing federal abortion lawsuit, rather than as a separate lawsuit, "to promote the economy and speedy disposition" of the matter.
The ACLU said it was necessary "to prevent the state from using the guise of the covid-19 crisis to prevent people from obtaining abortion care."
But Jerry Cox, president of the conservative group Family Council, said in a news release that "ordering abortionists to stop performing elective surgical abortions was the right call, and I'm confident the courts will agree."
The department issued a directive April 3 ordering the postponement during the pandemic of "elective" surgeries "that can be safely postponed," citing the need to conserve health care resources. It applied to all surgical centers, including the abortion clinic, but the term "elective" wasn't defined.
The department on Friday accused the clinic of violating the prohibition on elective services, ordering it to stop performing all surgical abortions "not immediately necessary to protect the life or health" of the mother. It said that "any further violations" of the April 3 directive will result in suspension of the clinic's license.
The order followed accusations that the clinic was ignoring the April 3 directive by operating on out-of-state patients that Gov. Asa Hutchinson warned could spread the disease.
The ACLU responded that "You can't press pause on a pregnancy even during a pandemic and abortion is essential, time-sensitive health care that cannot be postponed."
At his daily coronavirus briefing Monday, Hutchinson said the lawsuit "is not unexpected, but in terms of our actions, we took the same action toward this clinic as we would any other clinic that was violating a directive. ... They chose to take it into court. We'll see what the court says on that."
Asked where he draws the line on elective surgery, Hutchinson replied, "The line of distinction was between medication abortions and surgical abortions."
Surgical abortions accounted for the vast majority of the 3,069 abortions performed in Arkansas in 2018, according to the department. Medication-induced abortions, which weren't covered by the order, comprised fewer than a third of all abortions that year.
Medication-induced abortion, a two-step process involving one pill administered at a clinic and a second one later at home, are still available at the Little Rock clinic as well as at the Planned Parenthood clinic in Little Rock, which isn't equipped to provide surgical abortions. But medication abortions are only available through the 10th week of pregnancy.
Another Planned Parenthood clinic in Fayetteville closed last year while searching for a new location in which to open in northwest Arkansas.
Monday's filing notes that despite the name, surgical abortion "involves no incision or general anesthesia," but consists of either aspiration abortion, which takes five to 10 minutes, or dilation and evacuation, which is usually a one-day procedure.
The motion to add a supplemental complaint in an ongoing lawsuit over the constitutionality of three Arkansas laws was filed in a case presided over by U.S. District Judge Kristine Baker, who last year declared the three laws unconstitutional and enjoined the state from enforcing them. The appeal is pending before the 8th U.S. Circuit Court of Appeals in St. Louis.
The three laws blocked by Baker's preliminary injunction last year were a ban on abortions after 18 weeks' gestation, a ban on any abortion sought when there is a prenatal diagnosis or likelihood of Down syndrome and a requirement that abortion doctors be board-certified or board-eligible OB/GYNs, which the clinic said would put it out of business.
Monday's filing said the state is "exploiting the pandemic" to severely restrict or end altogether access to abortion in Arkansas, "effectively nullifying" Baker's injunction in the existing case.
Attorneys said the original lawsuit complains that the three enjoined laws would obstruct women's access in the state to critically necessary health care, which Baker agreed with after hearing extensive testimony from experts and clinicians in a hearing in July.
"Nothing in the current crisis" justifies the harm to women's constitutional rights, as well as the related financial, physical, psychological and emotional burdens, attorneys for the clinic argued. In fact, they said, "prohibiting abortion during the pandemic will not achieve any of the state's public-health objectives and is in fact likely to exacerbate the crisis."
The filing states that the covid-19 abortion ban "violates nearly five decades of unbroken Supreme Court precedent holding that a state may not ban abortion before the point of fetal viability."
Viability is the point at which a fetus is capable of surviving on its own, outside the womb. Viability is generally considered to occur at about 24 weeks, and state laws differ somewhat on the point at which abortions are prohibited, to comply with the precedent. In Arkansas, abortions are performed through 21.6 weeks of pregnancy.
"If the Covid-19 Abortion Ban is enforced, women in Arkansas would be forced to resort to carrying pregnancies to term against their will," the filing states.
Some other states with Republican governors have taken measures to restrict abortions during the pandemic. On Friday, while overturning a lower-court order blocking Texas' enforcement of an abortion ban during the pandemic, the 5th U.S. Circuit Court of Appeals allowed abortions to proceed if delays would place the pregnancy beyond the 22-week cutoff for abortions.
Monday's request for a court order blocking Arkansas from enforcing the surgical abortion ban notes that manufacturers and churches remain open, "and medical providers around the state are free to exercise their independent professional judgment to provide patients with all surgical and dental care that they determine cannot be safely postponed." It says that the state nevertheless seeks to leverage the health care crisis "to continue its unrelenting campaign" against abortion.
The motion notes that the clinic has no plans to use the state's personal protective equipment resources, and that more of such equipment would be needed if women are forced to continue their pregnancies.
"Pre-viability abortion care decreases rather than exacerbates demand for hospital capacity," it argues.
Even if the ban lasts only weeks, as the state has said, a delayed abortion will push some women to a more complex procedure, and other women "will be pushed past the point in pregnancy where abortion is legal in Arkansas," attorneys argued.
The clinic has scheduled 26 surgical abortions for this week, starting today, the filing states, noting that the number includes at least 12 patients who aren't candidates for medication abortion.
Metro on 04/14/2020