Little Rock Family Planning Services, the only surgical abortion provider in the state, sought emergency relief Friday from a federal judge to prohibit the state's coronavirus rules from delaying the procedure past the legal cutoff for obtaining an abortion in Arkansas.
Attorneys for the Arkansas Civil Liberties Union, which was already pursuing legal action on behalf of the clinic in response to state directives, tried to file the emergency motion in an ongoing case before U.S. District Judge Kristine Baker. Baker recently sided with the clinic and blocked the state from enforcing one of its virus directives, only to be overturned by the 8th U.S. Circuit Court of Appeals.
But Baker, mindful of being scolded by the 8th Circuit for allowing the clinic to seek relief from the earlier directive through an existing case, refused to accept the filing. She instead transferred it to the U.S. district clerk's office for reassignment to another judge. It was shortly refiled as a new case before U.S. District Judge Brian Miller.
A draft of the filing was attached last week to the ACLU's motion seeking permission to file it and has already prompted written opposition from Attorney General Leslie Rutledge's office, which defends the state. It challenges a directive issued Monday by the state Department of Health, under an emergency order from Gov. Asa Hutchinson, that the ACLU says "is preventing patients from getting abortion care."
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The clinic's objections to the new directive, which loosened some restrictions on non-emergency surgical procedures that were forbidden in an April 3 directive, focus on a requirement that patients obtain a negative covid-19 test within 48 hours of the surgical procedure -- in the clinic's case, an abortion.
"Little Rock Family Planning and its patients have been working diligently to secure such tests -- but in many cases are unable to do so, as tests and testing resources are in short supply and results are generally not available within two days," the ACLU said in a news release about its latest filing.
"One patient was recently tested twice, and both times did not receive test results within the 48-hour window necessary to secure abortion care," the release said. "She is now within days of the legal limit for seeking abortion care in Arkansas."
Abortions are legal in Arkansas through 21.6 weeks from the beginning of a woman's last menstrual period. Medication abortions, which consist of taking two pills, aren't affected by the directives but are available only through the 10th week of pregnancy.
"Once again, Arkansas is putting up medically unnecessary and insurmountable obstacles for patients seeking abortion care," said Jennifer Dalven, director of the ACLU Reproductive Freedom Project. "The pandemic has put families that were already struggling under tremendous strain. They are losing their jobs and doing everything they can just to keep their families healthy and make ends meet. Now, in the middle of all this, Arkansas is forcing them to run around the state in search of tests that don't exist and when they can't get them, they are forced to continue pregnancies and have children they feel ill equipped to care for. It's beyond cruel."
The comments prompted this reply from Rutledge's spokeswoman, Amanda Priest: "Attorney General Rutledge has repeatedly stated that surgical abortions do not get special treatment during the pandemic."
Priest noted that the 8th Circuit agreed with that when it vacated Baker's recent order blocking enforcement of the first surgical-procedures directive as it pertained to abortions.
Priest added that Rutledge "stands ready to defend the Arkansas Health Department's directive which provides reasonable standards to implement surgical abortions and other medically elective procedures."
The ACLU has maintained that surgical abortions aren't elective procedures, but the state includes them in that category.
In his daily news conference on the pandemic, Hutchinson also noted that the 8th Circuit "said the restrictions are appropriate." He also noted that the directive "applies across the board to all elective procedures."
"If immediate relief is not granted," the ACLU said in its news release," the clinic "will have to turn away three individuals who are scheduled to have abortions today and who are within days of losing their right to have an abortion in Arkansas."
They said the first woman, identified as Jane Doe 1, is a single mother of two who lost her job as a result of the pandemic and is having a difficult pregnancy that sometimes makes it hard to care for her children. After her last pregnancy, she suffered from postpartum depression.
"Because she is struggling financially, she had to wait to seek an abortion until she got her tax refund."
No Jane Doe 2 was mentioned, but a second woman identified as Jane Doe 3 is said to be the mother of a toddler who also lost her job as a result of the pandemic and is experiencing painful, significant health problems. The ACLU said she first sought an abortion in Texas but it was canceled because of an executive order there barring abortions during the pandemic.
Jane Doe 4 has two children younger than 6, one of whom is autistic and non-verbal, according to the news release. It says her work hours have been severely curtailed because of the pandemic, and she may lose her job. It says she tried to have her "tubes tied" after the birth of her last child, but her doctor refused.
"She has been seeking an abortion since February, but because clinics in Texas and Arkansas were shut down" due to covid-19 orders in both states, "she is now within a week of losing her right to obtain an abortion."
Jane Doe 4 sought a test at a hospital but was turned away because she was asymptomatic and wasn't having a procedure there, the ACLU said.
Holly Dickson, interim and legal director of the ACLU of Arkansas, said, "We're asking the court to intervene so that not one more patient is cut off from care and forced to continue a pregnancy against their will."
Dickson noted that the 8th Circuit "is the only court to have permitted a state to prevent a person from getting an abortion, even if doing so would entirely bar them from getting an abortion."
Metro on 05/02/2020