Judge again stops enforcement of state anti-abortion law | Arkansas Blog

Monday, June 18, 2018

Judge again stops enforcement of state anti-abortion law

Posted By on Mon, Jun 18, 2018 at 6:15 PM

JUDGE KRISTINE BAKER: Again stops enforcement of Arkansas anti-abortion law.
  • JUDGE KRISTINE BAKER: Again stops enforcement of Arkansas anti-abortion law.
Federal Judge Kristine Baker has again temporarily stopped Arkansas from enforcing a law that ended medical abortions in Arkansas.

She says Planned Parenthood of the Great Plains, which operates clinics in Little Rock and Fayetteville, has demonstrated a likelihood to succeed with its argument that an Arkansas law presents an undue burden to women's legal access to abortions in Arkansas and did little for the state.

In regard to burdens, considered cumulatively, the record evidence at this stage of the litigation demonstrates that the contracted physician requirement, given plaintiffs’ inability to comply with it, significantly burdens a large faction of women in Arkansas seekin g medication abortions. 
She said evidence showed the requirement in the law gave little benefit to women in a safe procedure. (It is safer than childbirth and Planned Parenthood has a detailed protocol for dealing with complications.)

Baker's order is in force for 14 days through July 2. Arguments will be considered in the meanwhile, presumably, on whether to make the temporary order permanent.

The law prevents medicine abortions — a two-pill regimen in the first 10 weeks of pregnancy that is completed at home — from being provided by clinics that don't have an agreement with a doctor with hospital admitting privileges. Because of threats from anti-abortion forces, doctors are reluctant to enter an agreement with the clinics.

Baker had enjoined the law previously, but the 8th Circuit U.S. Court of Appeals lifted the injunction. It said Baker had acted without exploring sufficiently exactly how many women would be affected. This was a decision at variance with an appeals court ruling in Texas that said a virtually identical law was unconstitutional.

But the decision had the effect of stopping medicine abortions at the Planned Parenthood clinics in Little Rock and Fayetteville and also at the one other abortion provider in the state, which is in Little Rock. That clinic still may perform surgical abortions.

Here's the judge's 100-page ruling.

Attorney General Leslie Rutledge, a foe of women's medical rights, undoubtedly will appeal. More to come.

UPDATE from Rutledge:

Attorney General Rutledge is disappointed in Judge Baker’s decision to issue a temporary restraining order against an Arkansas law that protects the health of pregnant women. Judge Baker’s ruling allows Planned Parenthood and Little Rock Family Planning Clinic to administer medication abortions without the necessary safety net available for women who experience emergencies and complications. Last year, the 8th Circuit unanimously ruled that Judge Baker’s original attempt to block this law was incorrect. This order is completely inconsistent with the 8th Circuit’s decision and should not stand. 

To the state's argument that there was no irreparable harm from enforcing the law, Baker wrote:

PPAEO and Dr. Ho allege that enforcement and enactment of Section 1504(d) causes irreparable harm because plaintiffs are unable to comply and the contracted physician requirement therefore eliminates medication abortions in Fayetteville and Little Rock, forcing any woman in Arkansas who seeks an abortion to drive to Little Rock for a surgical abortion

Defendants contest these assertions, arguing that there is no irreparable harm caused to Arkansas women by the contracted physician requirement  Also, reiterating their prior argument, defendants argue that the contracted physician requirement does not irreparably harm Arkansas women seeking medication abortions because out-of-state abortion providers remain a viable option.

Defendants argue that, even if this Court cannot consider out-of-state abortion providers in the undue burden analysis, such providers may be considered in the irreparable harm analysis. Defendants cite no authority for this proposition.

For now, this Court finds, based on the state of the record before the Court at this stage of the proceeding, that Section 1504(d) causes ongoing and imminent irreparable harm to the plaintiffs and their patients. As detailed above, the record at this stage of the proceeding indicates that Section 1504(d) will force PPAEO’s two abortion clinics to cease providing medication abortions, the only type of abortion offered by those two clinics, leaving Arkansas with only one abortion clinic, which is located in Little Rock and provides only surgical abortions. Those women who live in Northwest Arkansas and seek a medication abortion are now faced with the prospect of making two 380-mile round trips to Little Rock for a surgical abortion

Further, it makes little sense for this Court to disregard out-ofstate providers at the “burden” stage of this analysis, as this Court concludes is required by established precedent, but, on the other hand, consider out-of-state providers to determine if “irreparable harm” has or will occur. To do so would lead to absurd results, and this Court declines to do so. 
UPDATE: Here is Planned Parenthood’s statement:

Today, a federal district court granted a temporary restraining order against an abortion restriction that took effect last month. The law bans access to medication abortion, making Arkansas the first state to do so. It also ends access to any type of abortion at all but one health center in the state. After the Supreme Court allowed the law to take effect, health center staff were forced to immediately call patients to inform them they would no longer be able to access their medication abortion. Women were left scrambling to alter their work and child care schedules, and to secure additional funds required to undergo the state-mandated counseling process over again for a surgical abortion or to travel out of state, further delaying care. Some of these patients were already en route to the health center when they received the call.

The law results in one-quarter of all medication abortion patients (and 36 percent of medication abortion patients in Fayetteville) being prevented from having an abortion entirely, according to expert testimony in the case. The temporary restraining order issued today will immediately restore access to medication abortion for women who have been making last-minute arrangements to travel out of state or have had to travel hundreds of miles to seek surgical abortion from the last remaining provider in Little Rock.

The district court said today, the law “...imposes significant burdens on a large fraction of Arkansas women seeking medication abortions against a near absence of evidence that the law promotes any state interest or provides any benefits to those women.” Furthermore, the district court recognized the restriction “...causes ongoing and imminent irreparable harm to the
plaintiffs and their patients.” The order will remain in place for two weeks, during which time the plaintiffs will ask the court for a preliminary injunction blocking the law as the case proceeds.

Mainstream medical groups oppose this restriction, including the esteemed American Congress of Obstetricians and Gynecologists (ACOG), which wrote: “The requirement...does nothing to enhance the quality or safety of abortion care, and in fact creates a grave risk to public health.” Abortions are very safe. Studies, including those from the Centers for Disease Control and Prevention, demonstrate that abortion has a more than 99 percent safety record. In those rare cases when complications do occur, they present much like miscarriage symptoms, which OB-GYNs and other physicians treat every day.

Statement from Dawn Laguens, Executive Vice President, Planned Parenthood Federation of America:

“After more than two weeks of talking with patients experiencing distress and frustration as a result of this law, we are pleased the district court has eased their burden, for now. We will never stop fighting for every person’s right to control their own bodies, including the right to decide if and when to become a parent.”

Statement from Brandon Hill, President & CEO, Planned Parenthood Great Plains:

“Today’s ruling is a victory for the women of Arkansas. For more than two weeks, our patients had to live with uncertainty, enduring the cancellation of appointments and a lack of options. The court’s decision offers relief to our patients, at least for now. We will continue to do everything we can to protect our patients’ right to safe, legal abortion.”

In 2016, the Supreme Court ruled in Whole Woman’s Health v. Hellerstedt that abortion restrictions that are medically unnecessary and burden women are unconstitutional. In that landmark decision, the Supreme Court struck down a Texas law requiring that abortion providers hold hospital admitting privileges. In line with that ruling, the district court previously blocked the nearly identical Arkansas law, finding that rather than protecting women’s health and safety, the law is instead “a solution in search of a problem.” Yet, the Eighth Circuit refused to block the law, requiring additional findings from the district court to block an abortion restriction, even though the law will end abortion in Fayetteville and affect all women seeking medication abortion in the state. This law will harm all Arkansas women, but it will be hardest for people who already face barriers to care, including people of color, young people, and people with low incomes.

While Arkansas politicians are doing everything they can to block access to abortion, support for access to safe, legal abortion is at a record high, with nearly 70 percent of Americans supporting Roe v. Wade — the highest rate since the case was decided more than 40 years ago.

Here’s a timeline on this case, compiled by Planned Parenthood (defendants include prosecutors who must enforce the law):

Planned Parenthood v. Jegley

Spring 2015: Arkansas passed Act 577, set to take effect on Jan 1, 2016

Dec. 28, 2015: Planned Parenthood filed suit to block the law. The court granted a temporary restraining order on December 31, 2015, which prevented the Act from taking effect.

March 14, 2016: A federal district court entered a preliminary injunction, which the state then appealed to the Eighth Circuit Court of Appeals.

June 2016: The United States Supreme Court ruled that similar medically unnecessary abortion restrictions (including an admitting privileges requirement) in Texas are unconstitutional.

July 28, 2017: The Eighth Circuit ruled to overturn the preliminary injunction. In response, Planned Parenthood petitioned for a rehearing en banc.

Sept. 27, 2017: The Eighth Circuit denied our petition for a rehearing.

Oct. 3, 2017: Planned Parenthood filed a motion with the Eighth Circuit to keep the Act from taking effect while it petitions the U.S. Supreme Court to review the case. The Eighth Circuit agreed to keep the prelims inary injunction in place while we file a writ in the Supreme Court.

December 21, 2017: Planned Parenthood petitioned the Supreme Court of the United States to review and correct the Eighth Circuit Court of Appeals decision to vacate its preliminary injunction.

May 29, 2018: The Supreme Court declined to intervene. The law immediately went into effect and patients were turned away from their abortion appointments.

May 29, 2018: Planned Parenthood filed for emergency relief (Temporary Restraining Order) in federal district court.

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