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Judge lets abortions in state go on for now

Order scheduled to expire in 14 days by Linda Satter | April 15, 2020 at 7:27 a.m.
U.S. District Judge Kristine Baker

A federal judge issued a temporary order Tuesday afternoon allowing Little Rock Family Planning Services, the only provider of surgical abortions in the state, to resume the procedures.

U.S. District Judge Kristine Baker's 22-page order, issued on an emergency basis without waiting for the state to respond to the clinic's request for it a day earlier, prohibits the state from enforcing two recent directives. The first is an April 3 directive from the state Department of Health banning "elective procedures" at surgical centers statewide during the coronavirus pandemic. The second is a cease-and-desist order that the department issued Friday to the clinic after determining that it had violated the earlier order by performing abortions not necessary to protect the life and health of the woman.

Medication-induced abortions, which are offered by the Family Planning clinic, as well as a Planned Parenthood clinic in Little Rock, weren't affected by the state directives. However, medication abortions are available only in some pregnancies and only through the 10th week of gestation. They used to be available at a second Planned Parenthood clinic in Fayetteville, but that clinic closed last year in a dispute with its landlord and hasn't yet found a place in Northwest Arkansas to relocate.

In issuing the cease-and-desist order, the department noted Friday that it had evidence that the Family Planning clinic was performing surgical abortions on out-of-state patients, who Gov. Asa Hutchinson warned, could be spreading the disease.

Baker's temporary restraining order will automatically expire in exactly 14 days, at 3:30 p.m. April 28, after which time, she said, she will reconsider the matter after reviewing written arguments. The clinic seeks a longer-lasting preliminary injunction after the temporary restraining order expires.

"Attorney General Leslie Rutledge is extremely disappointed in today's decision to blatantly disregard good public health guidelines," her spokeswoman, Amanda Priest, said shortly after the order was issued. Priest said Rutledge was also disappointed that Baker halted the department's directive "without allowing the state to be heard."

She added, "the Attorney General will take immediate steps to see this decision is reversed."

The American Civil Liberties Union of Arkansas, through the law firm O'Mulvany and Myers of New York City and Little Rock attorney Bettina Brownstein, filed the restraining order request as a motion in another abortion lawsuit filed last year on the clinic's behalf. The attorneys cited the interest of judicial economy and Baker's deep familiarity with the issues, which are similar.

Baker found that the clinic would be "irreparably harmed" if the cease-and-desist order continued to be enforced and said there were no benefits of the directives that could outweigh the burdens they impose on women seeking abortions in Arkansas.

Baker said the clinic is likely to prevail on their assertions that the covid-19 abortion directives unconstitutionally restrict pre-viability abortions and as such, "are facially unconstitutional." She said the directives also "will inflict serious physical, emotional and psychological injuries on [the clinic's] patients by forcing them to delay, or altogether forgo, access to abortion care."

The case in which the motion was filed challenges 2019 Arkansas legislation that would outlaw abortions after 18 weeks of pregnancy, prohibit abortions when a fetal diagnosis of Down Syndrome is likely and require all doctors providing abortions in Arkansas to be board-certified or board-eligible OB/GYNs, which the clinic has said would force it to shut down.

"With this order, the court has ensured that essential, time-sensitive health care can continue, and rebuffed Arkansas' attempts to restrict access to abortion," Ruth Harlow, senior staff attorney for the ACLU Reproductive Freedom Project, said in a prepared statement.

"As leading medical experts have recognized, Arkansas' and other states' attempts to prevent patients from accessing abortion care does nothing to protect people from the virus," Harlow added. "It just stops people from getting essential care and forces them to continue their pregnancies against their will, which requires substantially more health care resources."

The ACLU noted that the covid-19 abortion ban "comes even as the state allows other medical providers to exercise their independent professional judgment and provide care to patients that cannot be safely postponed, including orthodontists who are permitted to schedule visits to adjust wires on patients' braces, and dentists who can see patients for a cracked tooth."

Holly Dickson, interim director and legal director of the ACLU's Arkansas office, said "the state's action had nothing to do with public health, and everything to do with politicians using the pandemic as an excuse to violate the Constitution and further their extreme agenda."

"Even during a pandemic, pregnant people require health care -- whether it's abortion care or prenatal care and childbirth services -- and that care cannot be delayed until after the crisis is over," said Lori Williams, the clinic's clinical director.

Jerry Cox, president of the conservative Family Council, issued his own prepared statement saying, "this is a bad ruling. It goes against good standards for public health."

He noted, "we have ample evidence that women from neighboring states, including Covid-19 hotspots, are coming to Arkansas for abortions. Recreational visitors from out of state cannot come here to spend the night in a hotel or stay at a state park, but they can come here to get an abortion. That makes no sense."

Lt. Gov. Tim Griffin also criticized the ruling, saying, "this ruling is wrong and undermines the public health and safety of Arkansans" by allowing abortion clinics to flout the elective-surgery directive "while thousands of other medical professionals are complying with the directive."

Other states have also attempted to restrict access to abortion, or ban it altogether, during the coronavirus crisis. The ACLU said Arkansas has now joined Alabama, Ohio and Oklahoma in having those attempts blocked in response to litigation from the ACLU, Planned Parenthood and the Center for Reproductive Rights.

In Texas, Gov. Greg Abbott last month barred non-essential medical procedures so that health resources can go to treating coronavirus patients, and the state's attorney general said that providing abortions other than for an immediate medical emergency would violate the order. A federal district judge blocked the enforcement of the order, but a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans reversed the district judge.

The panel later allowed abortions to proceed if delays would place the pregnancy beyond the 22-week abortion cutoff, and separately clarified, after abortion providers asked the U.S. Supreme Court to intervene, that medication abortions can proceed during the pandemic. Abortion rights advocates have complained that the appeals court's rulings should have allowed all abortion proceedings to resume.

In Louisiana, an abortion provider in Shreveport has asked a federal judge to prevent any attempts by the state to ban abortions during the pandemic. Abortions are still being provided there.

In Nashville, Tenn., abortion providers filed an emergency motion Monday night saying abortions should be exempt from the governor's order blocking non-emergency health care procedures.

The American Medical Association has denounced efforts to "ban or dramatically limit women's reproductive health care at this time," according to the Tennessee case filings. And the ACLU of Arkansas said the American College of Obstetricians and Gynecologists has opposed attempts to restrict abortions during the pandemic.

Information for this article was contributed by staff members of The Associated Press and The Washington Post.

Metro on 04/15/2020

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