Four surgical abortions were performed last week at a Little Rock abortion clinic after state officials relaxed a covid-19 ban on surgical procedures, attorneys for the state said in a court filing Monday.
They used that as an example of how the new covid-19 directive, issued April 27 to replace a more stringent April 3 directive, isn't keeping women in Arkansas from obtaining abortions, as the Little Rock Family Planning clinic alleged in a request last week for relief from the latest directive's requirements.
The clinic is especially concerned about a requirement that negative covid-19 test results be obtained within 48 hours before any surgical procedure. They say that unfairly increases burdens on women seeking abortions, particularly those trying to obtain one before they are too far along on their pregnancy to legally obtain one under state law.
State law allows abortions through 21.6 weeks from the beginning of a woman's last menstrual period, and the clinic says three of its clients are in danger of going over that limit if they can't obtain test results quickly.
The April 27 directive from the state Department of Health is effective through Sunday, which is when Gov. Asa Hutchinson's 60-day emergency order authorizing the department to take unusual steps in light of the pandemic expires. However, Hutchinson could issue a new emergency order.
The American Civil Liberties Union of Arkansas sued over the first directive on the clinic's behalf, saying it thwarted a woman's legal right to a pre-viability abortion. Viability is the point at which a fetus can survive on its own outside the womb. That led U.S. District Judge Kristine Baker to issue a temporary restraining order on April 14 that kept the state from enforcing both the restrictions and a cease-and-desist order against the clinic, the state's only provider of surgical abortions.
However, a divided panel of the 8th U.S. Circuit Court of Appeals in St. Louis soon reversed Baker and dissolved the restraining order, allowing the Health Department to again prevent surgical abortions unless they were needed to protect the health or life of the mother.
After the department relaxed the surgical procedures ban, citing Arkansas' progress in "flattering the curve" of covid-19 cases, the clinic again sought relief from Baker last week.
This time, however, she refused to let them raise the issue as part of an existing abortion case and sent the case back to the U.S. District Clerk's office for random reassignment. It is now before U.S. District Judge Brian Miller.
"The plaintiffs seek a special late-term abortion exemption from Arkansas's requirement that during an international pandemic anyone seeking an elective-surgical procedure test negative for COVID-19," says the state's response, filed Monday.
Citing the 8th Circuit's April 22 order dissolving Baker's restraining order, the state attorneys wrote, "The Constitution does not require such an exemption ... Arkansas's requirement is only subject to challenge if it 'has no real or substantial relation to' the public health crisis , or 'is, beyond all question, a plain, palpable invasion of a woman's right to elective abortion.'"
They argued that a generally applicable public health directive that several women have complied with "isn't unconstitutional because it might prevent one mother from obtaining a pre-viability abortion." They also noted that the directive is "limited to a defined period."
The attorneys, all working under Attorney General Leslie Rutledge, noted that one of the reasons for the restrictions on surgical procedures -- the need to preserve personal protective equipment -- remains an issue. They cautioned that "a resurgence of the virus is still possible, and it is vital that state officials continue to be free to guide Arkansans through this crisis."
The filing notes that "so long as LRFP complies with the requirements of the April 27 directive, it may resume performing surgical abortions," noting that, like the earlier Health Department directive, "procedures necessary to preserve life or prevent grave bodily harm" are exempt from the restrictions.
"Arkansas officials have been working to ensure the availability of COVID-19 testing that meets the April 27 directive's requirements," the filing adds.
They said patients at the abortion clinic have been able to receive testing within 48 hours of an abortion, as the directive requires, and notes that the department inspected the clinic on Friday.
"In reviewing records of procedures, [department officials] determined that four women received surgical abortions at LRFP during the week of April 27," the attorneys said.
Metro on 05/05/2020