State asks to dismiss surgeries challenge; Little Rock abortion clinic cites testing rule

Attorneys for Arkansas are asking a federal judge to dismiss a Little Rock abortion clinic's legal challenge to a statewide directive requiring patients scheduled for non-emergency surgeries to be tested for covid-19 within 48 hours of the procedure.

For one thing, the attorneys noted in a filing late Friday, the timetable has been relaxed -- effective Monday -- to require a negative test within 72 hours of the surgery.

On May 7, U.S. District Judge Brian Miller denied a request from Little Rock Family Planning Services to block the state from enforcing an April 27 directive from the state Health Department requiring the test within 48 hours of any surgery not deemed necessary to protect the patient's life or health. The directive applied to all non-essential surgeries in the state, which Attorney General Leslie Rutledge said included abortions.

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The clinic, contending that abortions are time-sensitive procedures, asked a judge to declare the directive unconstitutional as it applied to abortions, saying it created an additional, hard-to-meet obstacle for abortion-seeking patients, interfering with their constitutional right to obtain pre-viablity abortions. Represented by the American Civil Liberties Union of Arkansas, the clinic argued that the difficulty in obtaining tests in the short time period forced at least three women to delay the procedure beyond the 21.6-week legal cutoff for obtaining an abortion under Arkansas law.

While Miller denied the clinic's request for immediate relief in the form of a temporary restraining order, the clinic's request for a permanent injunction still remains. That request seeks a ruling that the directive is unconstitutional as applied to abortion clinics and an order preventing its enforcement long-term.

The state now says that in light of a decision announced Friday to extend by a day the time in which a patient must obtain a negative test, the complaint is basically moot. Attorneys for the state argued earlier that the Little Rock clinic had performed four abortions during the first week that the 48-hour rule applied, indicating it isn't impossible to meet.

Gov. Asa Hutchinson issued an executive order March 11 declaring a state of emergency in Arkansas, giving the Health Department authority to impose restrictions necessary to combat the coronavirus. The order was to expire in 60 days, but was extended on May 5 for another 45 days, through June 19.

The Health Department is regularly reassessing coronavirus-related restrictions as part of a plan to gradually reopen parts of society that were closed or partially closed after the pandemic led to state, national and international emergency declarations.

Miller, citing a recent opinion by the 8th U.S. Circuit Court of Appeals in St. Louis, said the state is permitted, when facing a public health crisis, to take measures that may infringe on constitutional rights. The 8th Circuit dissolved an injunction issued by an earlier judge, Kristine Baker, after the Health Department barred all non-emergency surgical procedures, including abortions, on April 3. Baker found that the ban was unconstitutional as it applied to women seeking abortions.

The ban was replaced by the April 27 directive that allowed non-emergency surgeries to resume under several conditions, including the 48-hour testing period.

The ACLU sees the Health Department restrictions as the state's way of clamping down on abortions by any means possible, as part of a national trend in Republican-led states. The ACLU has filed numerous lawsuits over efforts by Arkansas officials and lawmakers to restrict access to abortions.

The Family Planning clinic is the only provider of surgical abortions in the state. It and a Planned Parenthood clinic in Little Rock perform medication-induced abortions, which aren't affected by the Health Department directives. Medication abortions are available only through the 10th week of pregnancy and aren't recommended for all women.

Assistant Solicitor General Dylan Jacobs wrote that after the department further relaxed its testing requirement from 48 to 72 hours, that "makes compliance even more manageable."

He argued that the lawsuit should now be dismissed because the clinic lacks legal standing -- a vested interest in the outcome -- to pursue the case on behalf of its patients. He also argued that several state officials named as plaintiffs are protected from suit by sovereign immunity, which shields them from actions taken to carry out their duties.

Metro on 05/19/2020

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