Attorneys challenging and defending three abortion laws passed in 2019 by Arkansas legislators are preparing to face off Sept. 23 in oral arguments, via videoconference, before a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis.
The laws being debated aren't currently being enforced, thanks to an injunction imposed Aug. 6, 2019, by U.S. District Judge Kristine Baker in Little Rock.
They are: Act 493, which prohibits abortions after 18 weeks of pregnancy, in contravention to established federal law that permits abortions until the point of viability, which for years has allowed abortions in Arkansas to be performed through 21.6 weeks of pregnancy; Act 619, dubbed the "Reason Ban" by the plaintiffs, which prevents a doctor from performing an abortion "with the knowledge" that a woman is seeking it "solely on the basis" of a prenatal diagnosis of Down syndrome; and Act 700, which requires doctors who perform abortions in Arkansas to be board-certified or board-eligible OB-GYNs.
Attorney General Leslie Rutledge has asked the panel to vacate Baker's injunction and allow the laws to be enforced. Groups on both sides of the debate have filed amicus, or friend-of-the-court, briefs in support of the opposing positions.
In issuing the preliminary injunction, which will remain in effect until the 8th Circuit overturns it or a different determination is made after a trial, Baker said the 18-week ban is unconstitutional under controlling U.S. Supreme Court precedent. She said the Down syndrome law unconstitutionally restricts pre-viability abortions. And she said the OB-GYN rule confers little, if any, benefit upon women seeking abortion in Arkansas.
On Aug. 21, Rutledge's office notified the 8th Circuit that on Aug. 6, the state Medical Board temporarily suspended the medical license of Tom Tvedten, one of the abortion doctors for the Little Rock Family Planning clinic, which is the plaintiff in the case along with Tvedten. Rutledge's letter said the board alleged that Tvedten "exhibited gross negligence and ignorant malpractice" in certifying a 12-year-old child diagnosed with post-traumatic stress disorder for a medical marijuana card, suggesting a therapeutic trial of edible marijuana without consulting the child's psychiatrists.
Rutledge's letter said the board called Tvedten's continued practice of medicine "a danger to the public" and suspended his license pending an Oct. 1 hearing. She noted it was Tvedten's second disciplinary action involving controlled substances.
"With this suspension, Tvedten cannot perform abortions," Rutledge told the appellate judges. "He thus has no standing to pursue his claims."
She said that erases the foundation for the injunction and that panel should vacate it on that basis alone.
In an Aug. 28 response, attorneys for the clinic said Tvedten is challenging his suspension, which "has nothing to do with his competence as an abortion care provider." They said it also doesn't remove his standing, or vested interest, in challenging the OB-GYN requirement.
Besides, they said, another board-certified OB-GYN, Dr. William Parker, agreed in August to provide abortions at the Little Rock clinic and serve as its medical director. But because Parker lives out of state and isn't able to move to Arkansas, the clinic may face a future threat from the requirement if it continues to exist. For that reason, its attorneys argue, it retains a valid standing for challenging Act 700.
The clinic asked the appellate court in a Sept. 3 motion to dismiss Rutledge's appeal of the part of the injunction concerning the OB-GYN requirement because the clinic has "recently been able to come into compliance" with the requirement, citing Parker's hiring.
"Because they no longer need emergency, injunctive relief, [the clinic] contacted the state to propose a joint motion dismissing as moot the OB/GYN Requirement-related part of this appeal and vacating that part of the district court's preliminary injunction," attorneys for the clinic argued.
But they said the state has refused to join in the motion or give a reason for declining the request.
On Friday, however, the state filed a copy of Parker's license to practice medicine in Arkansas, which indicates he obtained it on March 12. The document indicates he lives in Alabama. The state questioned the timing of the plaintiffs' request to dismiss the appeal of the OB-GYN injunction, calling it an attempt "to evade this court's review of the district court's preliminary injunction."
At the time Baker blocked enforcement of the laws, almost all abortions at the family planning clinic were provided by Tvedten and Dr. Thomas Horton, neither of whom were board-certified or certification-eligible. The two doctors provided 94% of abortions at the clinic between 2016 and 2019, the clinic says.
It notes that neither was able to qualify "without incurring the significant expense of restarting their medical training" to attain an "unnecessary" qualification for providing safe abortions.
Both doctors were assisted about every other month by Dr. Fred Hopkins, a board-certified OB-GYN in California who couldn't help out more in Arkansas because of his obligations at home.
The clinic reiterated that it made "significant efforts" to recruit other qualifying doctors but was unable to do so, which led to Baker's determination that the requirement would impermissibly and substantially burden patients' access to care in Arkansas.
Attorneys for the clinic recently noted that the state appealed Baker's injunction on Aug. 9, 2019, before the clinic's ability to comply with Act 700 materialized.
The state is also asking the panel to address its request for random reassignment of the case away from Baker upon ruling on her injunction. Attorneys cited the clinic's signaled intentions to seek another injunction from Baker in the future, if necessary, if the OB-GYN requirement still stands.