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Halt of 2 abortion laws upheld

Injunction on 3rd state restriction moot, 8th Circuit finds by Dale Ellis | January 6, 2021 at 7:09 a.m.

A three-judge panel on the 8th Circuit Court of Appeals has upheld a preliminary injunction preventing two Arkansas laws restricting abortion from going into effect and declaring the injunction of a third law moot.

U.S. District Judge Kristine G. Baker issued a 186-page order Aug. 6, 2019, granting a preliminary injunction in the matter of Little Rock Family Planning Services et al v. Arkansas Attorney General Leslie Rutledge et al that kept a trio of new laws restricting abortion in the state from taking effect.

Act 493 of 2019 bans providers from performing an abortion once the probable age of the fetus is determined to be greater than 18 weeks' gestation, with exceptions for a medical emergency or a pregnancy that results from rape or incest.

Act 619 of 2019 prohibits a provider from intentionally performing an abortion with knowledge that the pregnant woman seeks the abortion solely on the basis of a test indicating Down syndrome or any other reason to believe that the fetus has Down syndrome, with exceptions if the abortion is necessary to save the woman's life or to preserve her health or if the pregnancy is the result of rape or incest.

Act 700 of 2019 provides that a person who performs an abortion must be a licensed physician "board-certified or board-eligible in obstetrics and gynecology."

In its ruling, the 8th Circuit panel leaned heavily upon the viability and undue burden arguments brought before the U.S. Supreme Court in the 1992 Planned Parenthood of Southeastern Pennsylvania vs. Casey decision. In that ruling, the Supreme Court imposed a new standard to determine the validity of laws seeking to restrict abortion, asking whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."

The injunctions on Acts 493 and 619 were upheld on the basis that both statutes would create a legal barrier to abortion prior to the viability of the fetus, which is medically accepted to be 24 weeks. The opinion cited a U.S. Supreme Court precedent in Planned Parenthood of Southeastern Pennsylvania vs.Casey that states, "Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability."

Regarding Act 493, the court said, "As Defendants presented no generally accepted medical evidence that the attainment of viability has shifted to before eighteen weeks after gestation, we must affirm the district court's order preliminarily enjoining enforcement of Act 493, which effectively prohibits a substantial universe of pre-viability abortions."

Regarding Act 619, the court said, "Based on undisputed evidence that 'post-viability abortions are not performed in Arkansas currently,' the district court concluded that Act 619 'unconstitutionally restricts pre-viability abortions' and preliminarily enjoined Defendants from 'enforcing ... Act 619.'"

The judicial panel dismissed the appeal regarding Act 700 after the plaintiffs requested it do so on the grounds that, because Little Rock Family Planning Services had hired a board-certified physician, the law would no longer provide an impediment to providing abortion services.

"Defendants argue the appeal is not moot because 'Plaintiffs will seek yet another preliminary injunction from the district court as soon as they decide again that litigation would be more fruitful than compliance,'" the court said in its ruling. "[Little Rock Family Planning] replies that, if it does seek injunctive relief in the future, 'their entitlement to relief will depend on the facts presented at that time.'"

In conclusion, the 8th Circuit denied Rutledge's request that the case be reassigned to a different federal judge, saying in an earlier footnote that it rejected "as totally without merit Defendants' disrespectful argument that we direct the case be reassigned because the judge who issued the Preliminary Injunction order 'has a long history of unlawfully enjoining Arkansas laws.'"

In that same footnote, the panel went no easier on Little Rock Family Planning, saying that although attorneys for Rutledge had not included an order from Baker consolidating the case with another case -- Planned Parenthood of Arkansas and Eastern Oklahoma et al v. Jegley et al -- as one of the issues being appealed, attorneys for Planned Parenthood of Arkansas had filed a motion asking that the issue be dismissed from the appeal.

"Therefore, we do not consider this issue, and we deny LRFP's time-wasting motion to dismiss that part of the appeal," the panel said, before castigating both sides, saying, "In these motion wars, counsel of record for both sides lost sight of their duties to serve as officers of the court as well as vigorous advocates for their clients."

In its conclusion, the panel said that each party would bear its own costs of the appeal, and that under 42 U.S.C. § 1988(b) -- known as the "Civil Rights Attorney's Fees Award Act of 1976," that allows federal courts to award reasonable attorneys fees to the prevailing party in certain civil rights cases -- "There is no 'prevailing party' for purposes of 42 U.S.C. § 1988(b)."

Rutledge said she intends to continue her efforts to have the injunction dismissed and the laws put into effect.

"Following the 8th Circuit's decision against Arkansas's late-term abortion ban and Down-syndrome-selection ban, I plan to seek further review of this decision in order to uphold Arkansas's laws which protect the lives of the unborn and the health of the mothers," Rutledge said in a statement released by her office. "The Supreme Court must limit and ultimately overturn Casey and I plan to do everything in my power to see that they do."

The Arkansas ACLU applauded the ruling but said in a news release that it will continue to work against further restrictions to abortion in the state.

"While today's ruling is critical," said Holly Dickson, executive director of the ACLU of Arkansas, "the broader fight to ensure that people [who] have decided to have an abortion can actually get one is far from over. We will continue to defend the right of every Arkansan to make their own decisions about their lives and their health -- free from political interference or punishment."

Megan Burrows, a staff attorney at the ACLU Reproductive Freedom Project, said the ruling recognized that politicians should not have the final say in whether and when someone has a child.

"We wish that this were the end of the matter," Burrows said, "but unfortunately we know that there is still much work to do to stop the Legislature's relentless attempts to take that right away from patients."

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