The battle between the state and two clinics over the fate of three new Arkansas abortion laws that have been barred from taking effect advanced Monday at the 8th U.S. Circuit Court of Appeals in St. Louis.
In a 54-page brief, attorneys for the clinics -- Planned Parenthood and Little Rock Family Planning Services -- urged a three-judge panel of appellate judges to keep in place a district judge's preliminary injunction blocking the laws from taking effect while their constitutionality is under review.
The laws, all passed during the 2019 legislative session, are Act 493, which bans abortions after 18 weeks of pregnancy with exceptions for medical emergencies, rape or incest; Act 619, which prohibits abortions based on a prenatal Down syndrome indication; and Act 700, which requires physicians performing abortions to be board-certified or certification-eligible obstetrician-gynecologists.
The OB-GYN requirement "would bar most women who seek abortion care in Arkansas from accessing it, while offering no offsetting benefit," the brief argues.
Because all of the laws violate binding U.S. Supreme Court precedent, U.S. District Judge Kristine Baker properly found that the clinics are likely to prevail on their arguments that the laws violate constitutional due process, attorneys for the clinics wrote.
In a brief filed at the 8th Circuit on Oct. 29 to appeal the Aug 6. injunction, attorneys for the state referred to the three laws as "commonsense abortion regulations."
They complained that the judge treated the 18-week ban and the Down syndrome law "as blanket prohibitions on pre-viability abortions and enjoined them with little analysis."
They also complained that Baker ignored evidence that the OB-GYN requirement provided more benefits for abortion-seeking women than are available under existing law. Under existing law, they pointed out, any Arkansas-licensed doctor, even an ophthalmologist, can legally perform an abortion.
Existing law imposes four requirements on abortion practitioners: that they be state-licensed doctors, that they obtain consent from the patient, that they keep a record of obtaining consent and that they report all abortions provided.
Baker determined, "based on well-substantiated findings," that the OB-GYN requirement "has little (if any) benefit, and imposes significant burdens on access to pre-viability abortion care," the clinics responded.
Viability is the point at which a fetus is considered able to live independently outside the womb, which doctors have agreed is generally 24 or 25 weeks' gestation. In Arkansas, surgical abortions are provided through 21.6 weeks of pregnancy, in line with U.S. Supreme Court precedent, which legalizes abortion until a fetus is considered viable. Medication abortions are provided up to 10 weeks from the last menstrual period.
'MORE THAN 25 LAWS'
"In recent years, Arkansas has enacted more than 25 laws that obstruct access to abortion," the clinics argued to the 8th Circuit judges. "The three challenged here are the latest in that campaign."
They noted that Act 493, the 18-week ban, is a Class D felony punishable by up to six years in prison and a fine of up to $10,000, and also subjects doctors to mandatory license suspension or revocation.
Act 619, which the clinics refer to "the reason ban," is also a Class D felony, carries a mandatory license revocation and renders the physician liable for actual and punitive damages to the woman receiving an abortion, or to the parent or legal guardian if she is a minor or mentally incompetent.
Similarly, a violation of Act 700, the OB-GYN requirement, is a Class D felony that may result in the revocation, suspension or nonrenewal of the doctor's or facility's professional license.
"Arkansas imposes no analogous medical-specialty requirement on any other comparable medical procedures -- not administration of oral medications other than abortion pills, not outpatient procedures of comparable or greater medical risk (such as colonoscopies or tonsillectomies), not pregnancy or birthing care at a birthing center (even though carrying to term, labor, and delivery pose significantly greater risk than abortion), and not miscarriage management," the clinics' attorneys wrote.
They added that abortion care is already "highly regulated in Arkansas," listing six regulations requiring, among other things, that a patient supply her medical history and receive counseling; that certain types of medical devices and qualified personnel be on hand; and that the abortion doctor has a signed contract with a specialist who has active hospital admitting privileges. In addition, they noted, the state regularly inspects abortion facilities.
Little Rock Family Planning Services operates a clinic that provides surgical and medication abortions, while Planned Parenthood has a clinic in Little Rock that provides only medication abortions. A second Planned Parenthood clinic in Fayetteville is closed while searching for a new location in which to operate in Northwest Arkansas.
The clinics' brief said most of Little Rock Family Planning's abortion services were provided by two doctors, one of whom isn't an OB-GYN and the other of whom completed an OB-GYN residency but isn't board-certified or certification-eligible. Those two doctors received assistance once every other month from an out-of-state physician who flew in from California but isn't able to increase his schedule in Arkansas because of his full-time obligations in California.
The clinic has extended offers to two other doctors, but neither can commit to providing full-time or long-term care, the brief states.
The clinics and one of the doctors sued in June, after extensive, unsuccessful efforts to comply with the OB-GYN requirement, maintaining that the three new laws directly contravene decades of binding legal precedent holding that a state may not ban or unduly burden access to pre-viability abortion. That case was consolidated with this one, since they involved similar issues.
The brief rehashed some of the expert testimony at a hearing preceding Baker's ruling, saying Baker weighed the benefits and burdens of the OB-GYN requirement in finding that it unduly burdens a large fraction of women seeking abortions in Arkansas, and that those burdens "substantially outweigh" any state interest or benefit to those women.
"After considering thousands of pages of materials and hearing from nine witnesses during an eight-hour hearing, the district court properly preliminarily enjoined the three challenged laws in a detailed, 186-page opinion," the clinics' attorneys old the 8th Circuit.
They said Baker found that the 18-week ban and the Down syndrome ban unconstitutionally prohibit pre-viability abortions, and found the OB-GYN requirement unconstitutional "because it affords little (if any) benefit, yet precludes 62 [%] to 70% of women who currently seek Arkansas abortion care from doing so and imposes undue burden on even women who are able to obtain care."
The clinics' attorneys said the state's brief didn't allege legal errors in Baker's findings and that there is no need for oral arguments.
"If allowed to take effect, these restrictions would completely block many people from obtaining abortion care and would eventually leave the state with a single health center providing only limited abortion care," the ACLU of Arkansas said Monday. Holly Dickson, legal director, added that "these extreme bans and restrictions would decimate abortion access in Arkansas."
The lawsuit was filed by the ACLU, Planned Parenthood Federation of America and the law firm of O'Melveny & Myers on behalf of Little Rock Family Planning, Planned Parenthood Great Plains and two abortion doctors.
Metro on 01/01/2020
CORRECTION: O’Melveny and Myers, a law firm in New York City, was among those who filed a federal lawsuit in Little Rock last year on behalf of Little Rock Family Planning Services, Planned Parenthood Great Plains and two physician providers. The spelling of the firm’s name was incorrect in an earlier version of this article.