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Abortion laws set for return to court today

Judge asked for 2nd look in light of justice’s opinion by Neal Earley | December 22, 2020 at 6:59 a.m.

A federal judge in Little Rock today is set once again to rule on whether to halt the implementation of a set of Arkansas abortion restrictions.

With four laws placing strong regulations on abortion in Arkansas possibly taking effect this week, the American Civil Liberties Union continued its legal fight Monday to stop that from happening.

U.S. District Court Judge Kristine G. Baker will weigh whether to block implementation of those laws, as she has in the past.

In its court filing Monday, the ACLU, representing Dr. Frederick Hopkins and Little Rock Family Planning Services, where he works, argued that if the laws took effect it could stop scheduled abortion procedures from taking place this week.

"Access to abortion care is already severely limited in Arkansas, and these laws would push reproductive care even further out of reach," said Holly Dickson, executive director of the ACLU of Arkansas, in a statement. "We won't stand by while politicians try to punish, stigmatize, or deny people the freedom to make their own personal decisions about their families and their health."

The plaintiffs represented by the ACLU are seeking a temporary restraining order and will seek a preliminary injunction, Dickson said, both of which would block the laws from taking effect.

Today's hearing comes a week after the 8th U.S. Circuit Court of Appeals cleared the way for those laws to take effect, dissolving a Baker ruling that had blocked their implementation.

ACLU officials indicated last week that the organization would again petition Baker to prevent the laws from taking effect or take the case to the U.S. Supreme Court.

In court filings Monday, Arkansas Attorney General Leslie Rutledge said the plaintiffs waited too long after the 8th Circuit decision to file a challenge.

"The supposed emergency justifying expedited amendment here is entirely of Hopkins's own creation and amounts to the same sort of 'procedurally suspect' maneuvering that the Eighth Circuit criticized in a separate case involving Hopkins's employer, Little Rock Family Planning Services, which he seeks to add as a plaintiff here," Rutledge wrote on behalf of the state.

Rutledge's office couldn't be reached for comment Monday.

The latest legal challenge is part of a years-long fight against a set of abortion laws passed by the Arkansas Legislature in 2017 -- Acts 45, 1018, 733 and 603.

Act 45 bans dilation and evacuation, a common procedure for second-trimester abortions, while Act 1018 requires doctors to inform police if anyone 16 or younger gets an abortion. Act 733 prohibits sex-selective abortions and requires doctors to seek the medical records of any woman seeking an abortion who knows the sex of her fetus. Act 603 regulates the disposal of fetal remains.

Proponents of the laws say they are necessary regulations enacted by the Legislature, while those against them argue they restrict a constitutionally protected right.

After the Legislature passed the laws, Baker issued a preliminary injunction blocking them from taking effect. Since then, the laws have been caught in a protracted legal fight as to whether they are constitutional.

In August, a three-judge panel of the 8th Circuit reversed Baker's injunction, sending the case back to her courtroom to be reexamined in light of a recent decision by the U.S. Supreme Court.

In a 5-4 decision, the Supreme Court struck down a Louisiana law that would have left the state with one doctor able to perform abortions. If it had been upheld, the law would have banned doctors from providing abortions unless they had admitting privileges at a hospital within 30 miles.

While that ruling was favorable to abortion proponents, Chief Justice John Roberts wrote a concurring opinion that disagreed with the court majority's reasoning for tossing the Louisiana law.

Roberts' opinion said courts should not weigh a law's benefits against the burdens it imposes on abortion access. Instead, Roberts said courts should weigh whether a law imposes a "substantial obstacle" to abortion.

Baker should reconsider the Arkansas case in light of Roberts' concurring opinion, the 8th Circuit ruled.

In an August motion, asking the full 8th Circuit to rehear the matter and override the panel, the Arkansas plaintiffs argued that the panel erroneously found that Roberts' lone opinion overruled requirements established in a previous case.

"A single Justice's commentary cannot rewrite a Supreme Court precedent," the plaintiffs argued.

Last week, the 8th Circuit decided against reconsidering its ruling, clearing the way for the laws to take effect this week unless Baker again enjoins it.

Information for this article was contributed by Dale Ellis of the Arkansas Democrat-Gazette.


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