U.S. judge finds surgery directive covers abortions

He denies restraining order

A Little Rock abortion clinic's effort to get around a new Health Department directive that restricts surgical procedures was denied Thursday evening by a federal judge.

Last week, attorneys for the American Civil Liberties Union of Arkansas sought relief from a requirement that prohibits any surgical procedure unless the patient tests negative for the coronavirus within 48 hours of the surgery. They asked that the state be blocked from enforcing the testing requirement against anyone seeking an abortion, saying it could cause some women to delay their abortion until a date past the state's legal time limit for obtaining an abortion: 21 weeks and six days after a woman's last menstrual period.

The testing requirement is part of an April 27 directive that relaxed an April 3 ban on elective surgical procedures during the coronavirus pandemic. The latest directive allowed elective surgeries -- those not necessary to protect the health and life of the patient -- to proceed under certain conditions, one of which is the testing requirement.

The ACLU, which represents the Little Rock Family Planning Clinic, said the tests are hard to come by and that abortion-seeking women under a strict timetable shouldn't be subjected to the extra burden of obtaining test results in order to obtain the procedure.

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In denying a request for a temporary restraining order to immediately protect abortion patients, U.S. District Judge Brian Miller said, "this directive applies equally to all surgical procedures and does not single out abortion providers or surgical abortions."

Miller was assigned to the case after U.S. District Judge Kristine Baker, who presided over the clinic's earlier effort to block the April 3 directive as it applied to surgical abortions, declined to accept the new complaint as part of an ongoing case. Baker had granted the earlier request, saying the April 3 order unconstitutionally interfered with a woman's right to obtain a pre-viability abortion, but was overturned by a divided three-judge panel of the 8th U.S. Circuit Court of Appeals. The 8th Circuit also criticized her for allowing the ACLU to challenge the directive as part of an ongoing case.

Miller cited the 8th Circuit's admonition that when a state is faced with a public health crisis, it is permitted to take measures that may infringe on constitutional rights.

The earlier ruling, he said, "creates a very obvious problem for plaintiffs because the April 27 directive is much less burdensome" than the April 3 directive it addressed.

He said both directives were issued in response to the pandemic, and consequently, the April 27 directive "is not subject to constitutional challenge unless it has no real or substantial relation to the COVID-19 health crisis or is 'beyond all question, a plain, palpable invasion' of a woman's right to elective abortion."

In response, Jennifer Dalven, director of the ACLU's Reproductive Freedom Project, said in a prepared statement, "Make no mistake, Arkansas politicians are outright barring people who have decided to have an abortion from getting one and instead forcing them to stay pregnant and have a child against their will." She said preventing women from making a decision that is best for them and their families, especially "during the pandemic, when people are losing their jobs and doing everything they can just to keep their families healthy and make ends meet, is beyond cruel."

Attorney General Leslie Rutledge said, "today's decision ensures there are no exemptions for surgical abortions during this pandemic. Arkansas's reasonable directive sets standards to protect the health and safety of patients, health care professionals, and the public during the covid-19 emergency."

Attorneys for the state argued that the Family Planning clinic, which is the only provider of surgical abortions in the state, had performed abortions on four women during the previous week, the week the directive was issued. They said that indicated that the directive isn't interfering with women's ability to obtain abortions in Arkansas.

However, the clinic's director, Lori Williams, submitted an affidavit saying she has worked diligently since the April 27 directive to help abortion patients obtain tests, and that despite contacting more than 15 testing facilities in and around Little Rock, couldn't find one to test asymptomatic patients and reliably return results within 48 hours. Williams said that caused her to turn away eight abortion patients who couldn't meet the requirements.

Referring to declarations from four women the ACLU said would be affected by the new directive, including three who traveled from Louisiana and Texas to obtain abortions in Arkansas, Miller said, "the stories recounted by these women are awful."

One drove four hours to Little Rock to obtain an abortion but said she couldn't obtain a covid-19 test because she had no symptoms. By the time she left Little Rock on April 28, it was too late to get tested before she passed the legal cutoff on May 4, Miller noted.

Another, who also traveled more than four hours to Little Rock, said she found a clinic to test her but the lab couldn't guarantee results within 48 hours.

A third cited fluctuating legal obstacles that prevented her from obtaining an abortion in Texas. She said she then drove five hours to Little Rock, where she couldn't obtain a test, and then drove to Hot Springs for a test, only to be told that results could take five to seven days.

A fourth woman, who is a high-risk patient for pregnancy because of her age and medical history, isn't a party to the lawsuit but gave a statement saying she had the test in Hot Springs but the results didn't arrive in time for her abortion scheduled in Little Rock, so she had to return to Hot Springs for another test and still hadn't received the results two days later, when she filed her declaration. She said she may have to travel to another state to have an abortion but cannot financially afford it.

Medication abortions, which don't require surgery, are also available in Arkansas but only through the 10th week of pregnancy.

Miller said the testimony from the women "is very logical and is well-taken; however, it does not untie the connection between COVID-19 testing (and the other six requirements) and limiting the spread of the virus."

He also said that, "given the health crisis facing the world, the country and the state, the ADH's April 27 directive is reasonable."

He said the difficulty in obtaining tests and quick results "is mitigated by the fact that new COVID-19 testing facilities are coming online to alleviate this problem."

"This decision has been agonizingly difficult for two reasons," Miller said. "First, it presents the tug-of-war between individual liberty and the state's police power to protect the public during the existing, grave health crisis. Second, it affects four specific women, as well as unknown women, who, based on their declarations, are very troubled. There is a strong urge to rule for them because they are extremely sympathetic figures, but that would be unjust."

Metro on 05/08/2020