Judge restores right to medication abortion 

click to enlarge GIVING PLANNED PARENTHOOD SOME LOVE: A June 1 rally drew supporters to the corner of University Avenue and 12th Street.
  • GIVING PLANNED PARENTHOOD SOME LOVE: A June 1 rally drew supporters to the corner of University Avenue and 12th Street.

For more than two weeks, all women in Arkansas, and Arkansas alone, were denied access to a two-pill regimen to end an early pregnancy in the privacy of their homes. The three clinics in Arkansas that provided the pills were forced to stop May 29 after the U.S. Supreme Court declined to hear an appeal by Planned Parenthood of a lower court's ruling that halted an injunction against a state law.

JUDGE KRISTINE BAKER: Again issues temporary restraining order against state law on medication abortions.
  • JUDGE KRISTINE BAKER: Again issues temporary restraining order against state law on medication abortions.

But on Monday, U.S. District Judge Kristine Baker issued a temporary restraining order against enforcement of the law, Act 577 of 2015, and Arkansas women once again had access to a method of abortion available nationwide. Planned Parenthood clinics in Little Rock and Fayetteville, which had had to cancel 40 medication abortion appointments because of the Supreme Court's ruling, have resumed scheduling them.

The state law, passed in 2015, required providers of the pills — mifepristone (Mifiprex) and misoprostol — to contract with physicians with hospital privileges. It was a requirement legislators knew the providers could not meet, given the threats by anti-abortion activists that doctors face, and it left women with one option to end a pregnancy: surgery. Planned Parenthood Great Plains filed suit in federal court, and Baker granted a temporary restraining order in December 2015 and a preliminary injunction against the law in March 2016.

In granting a new temporary restraining order Monday, Baker said Planned Parenthood had demonstrated a likelihood to succeed with its argument that the law presents an undue burden to women's legal access to abortions and did little to advance the state's interest in protecting their health. "In regard to burdens," Baker wrote, "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 fraction of women in Arkansas seeking medication abortions." 

The temporary restraining order is in force for 14 days, through July 2. In the meantime, Planned Parenthood Great Plains will file for a permanent injunction.

Here are the facts:

A. The drugs — mifepristone and misoprostol — are not dangerous, as 18 years of clinical evidence has shown. The complication rate is less than 1 percent. A National Institutes of Health study published in 2015 put the rate of infection requiring hospitalization at 0.01 percent. They are safer than Tylenol or Viagra, the latter drug you will never see restricted by the legislature. The chance of fatality from the drugs is less than the chance of being hit by lightning. Planned Parenthood has a detailed protocol for dealing with complications.

B. Because of the drugs' safety record, the lawmakers who wrote the legislation did not do so out of concern for women's health. It was part of their ongoing campaign to strip women of the right to abortion granted by the U.S. Supreme Court under Roe v. Wade. For some it is ideological. For others it is political.

C. During the two weeks the law was enforced, the patients of Planned Parenthood's family health and reproductive health care clinic in Fayetteville had to make two round trips, each longer than five hours, to Little Rock for consultation and surgery — or seek care in other states.

D. During the two weeks the law was enforced, women who'd been the victims of sexual abuse and trauma and did not want to undergo a procedure that would require the insertion of instruments into the vagina — well, it was their tough luck.

E. The law meant that women for whom medication abortion was medically indicated because of uterine abnormalities had to choose a procedure their doctor wouldn't recommend.


The reason Arkansas women found themselves in this predicament is because of two startling court decisions. In response to the state's appeal of Judge Baker's preliminary injunction, a three-judge panel of the 8th Circuit Court of Appeals lifted the injunction in July 2017, and sent the case back to district court. The 8th Circuit said the district court hadn't provided numbers to show that a "large fraction of women seeking medication abortions" would be unduly burdened by the state law.

The 8th U.S. Circuit Court of Appeals is one of the most conservative in the country, with 10 of its 11 judges appointed by Republicans.

Before the 8th Circuit's ruling, however, the U.S. Supreme Court ruled in Whole Women's Health v. Hellerstadt that a similar Texas law requiring admitting privileges was unconstitutional.

Planned Parenthood asked for a rehearing by the whole court; that was denied in September 2017. The appeals court agreed in October 2017 to stay its ruling while Planned Parenthood petitioned the U.S. Supreme Court to hear its case against the 8th Circuit's ruling, so the law, which the legislature intended to go into effect Jan. 1, 2016, was still enjoined.

Planned Parenthood petitioned the Supreme Court in December 2017 to vacate the 8th Circuit ruling.

Unexpectedly, given the ruling in Whole Women's Health, the Supreme Court declined, without comment, to intervene. Because the liberal wing of the court did not dissent, court watchers have suggested that they may have held back for tactical reasons, perhaps because of the preliminary state of the case. That meant Arkansas's law could be enacted.

Planned Parenthood immediately went to Judge Baker seeking another temporary restraining order, saying there were numbers that would prove that the law was an undue burden. Baker held a hearing on the TRO on Friday, June 8, and instructed Planned Parenthood and state defendants to file briefs on how Baker should proceed, which they did on Wednesday, June 13.


The state of Arkansas has argued that Roe v. Wade did not grant women the right to a particular method of abortion.

In their brief submitted to Baker last Wednesday, lawyers for the state cited a June 11 ruling in district court in Missouri. There, a federal judge agreed that while the contract physician rule had "virtually no benefit," the court would not grant a preliminary injunction because women could get medication abortions in Kansas City and St. Louis. Planned Parenthood is discussing its next step in that case; it cost rural Missouri women the same loss of access.

In the Arkansas case, the appellate court has sought proof that a "large fraction" of women would be burdened. So what's a large fraction?

That number, as estimated by Planned Parenthood, is 25 percent of women who wish to obtain a medication abortion: Planned Parenthood says the law would force them to carry an unwanted pregnancy to term.

Hundreds of Arkansas women would be affected by the law: In 2017, Planned Parenthood's clinics in Little Rock and Fayetteville performed 843 medication abortions. Of those, 653 were in Fayetteville. If medication abortion were again illegal, something approximating that number of women would have to make two trips to Little Rock to exercise a constitutional right.

In the eyes of women wanting to end a pregnancy at home by using drugs and not on a surgical table, the burden is 100 percent.

Planned Parenthood noted in its court filings that the state's lawyers have not pointed to a single case in which a contract physician would have made a difference in the woman's treatment.


click to enlarge DR. STEPHANIE HO: Planned Parenthood's Fayetteville clinic director.
  • DR. STEPHANIE HO: Planned Parenthood's Fayetteville clinic director.

To the state's argument that there was no irreparable harm from enforcing the law, Baker noted that Planned Parenthood and Dr. Stephanie Ho, also a plaintiff, said the clinics were unable to comply with the law.

As Dr. Ho explained in a filing in federal court, she and other Planned Parenthood staff members in 2015 and 2016 contacted every OB/GYN they could identify from medical board records in Arkansas, asking if they would contract to provide the back-up care. None agreed. In 2017, they wrote again and followed up with phone calls, explaining the law and offering compensation. None agreed.

"Some physicians or group practices informed us that they do not support a woman's right to access abortion and would not help us," Ho's filing said. "Others stated that they simply could not work with us, and at some group practices, the front desk staff was so hostile once they heard we were calling from Planned Parenthood that they would not even let us speak to the physicians and refused to take messages," the filing said.

Lawyers for the state argued during Baker's June 8 TRO hearing that doctors may have refused to contract with clinics because the clinics' letters didn't specify compensation and it could have been interpreted as only the minimum wage. Baker, however, rejected that: "[D]octors face threats to their livelihoods and physical safety if they attempt to provide abortions or act as contracted physicians to abortion providers. The Court is skeptical that the compensation offered by plaintiffs would be enough to overcome these obstacles. These obstacles very likely keep even those doctors in Arkansas who may not have a moral or ethical opposition to abortion from providing abortions or serving as contracted physicians."


click to enlarge AT THE WOMEN'S MARCH: The right to abortion was a subject at the January event.
  • AT THE WOMEN'S MARCH: The right to abortion was a subject at the January event.

The two-week enforcement of the law prohibiting medication abortions caused women considerable distress, health professionals at Planned Parenthood's clinics said.

Soon after the Supreme Court's order, a patient who'd become pregnant because her IUD (an intrauterine contraceptive) had failed came to Dr. Ho at the Planned Parenthood clinic in Fayetteville for a medication abortion. The woman couldn't believe her ears when Ho told her she couldn't provide the care she needed, and in fact no one in Arkansas could. "She was, 'Wait, all of Arkansas?' " Ho said, and started to tear up. The patient, who'd been using contraception and did not want to have a baby, also did not want a surgical abortion. "We had to send one of our own patients out of state" to get a medical abortion, Ho said.

Surgical abortion, like medication abortion, "is incredibly safe," Ho said, calling that the "good news." But just because surgical abortion is safe, that does not justify making it the only option, she said. There are reasons — in addition to having to spend days of travel back and forth to Little Rock, arranging child care, time off work and shouldering that expense — why women choose medical over surgical.

Survivors of sexual abuse, for example, "prefer medication over surgical because metal instruments in the vagina are invasive and can invoke symptoms of PTSD," post-traumatic stress disorder, Ho said. Before the new TRO, all survivors of sexual assault in Arkansas had to "have a procedure that may worsen their emotional well-being," she said.

There are physical reasons why, if a woman can use a medication abortion, she should: abnormalities of the uterine cavity. Previous C-sections that have thickened the uterine wall. Uterine fibroids. These are patients, Lori Williams of Little Rock Family Planning said, that "are medically indicated" to receive medication abortions.

Another patient of Ho's during the two-week ban was a Spanish speaker who the clinic could not reach by phone to cancel her appointment. When she arrived and found out Planned Parenthood could no longer provide the medicine, she "burst into tears," Ho said. "She wanted things to get back to normal for her," and knew that abortion "was the right thing to do for herself and her family." But she was afraid of surgery. "She did not seem completely comfortable that there would be instruments going in and out of her vagina," Ho said, and she feared the procedure meant she would be cut open. The clinic, which has a Spanish speaker, let her know she would not be cut open, that the procedure was safe, and helped calm her fears and worked with the Little Rock clinic, which has no translator, to help her. The surgery went well. But, Ho said, "The fact of the matter is the state of Arkansas took away her right to choose the health care that's best for her."


click to enlarge ALSO AT THE RALLY: Passersby, for the most part, honked horns to show support for Planned Parenthood and women's rights.
  • ALSO AT THE RALLY: Passersby, for the most part, honked horns to show support for Planned Parenthood and women's rights.

The day after the Supreme Court's ruling, 60 people showed up at Planned Parenthood to don pink T-shirts and hold up signs at the corner of University Avenue and 12th Street to show their support for the clinic.

They heard from Planned Parenthood organizer Christina Mullinax and clinic manager Holly Salem how heartbreaking it was to call women to cancel their appointments. They heard from the leader of the Arkansas Abortion Support Network that the organization gets 10 calls a week from women seeking financial help getting an abortion.

Mullinax took it hard. "As soon as I learned" about the Supreme Court's ruling, she told the Times later, "it was like a gut punch."

Mullinax said patients began calling the Little Rock clinic after the court's order fearful the clinic would have to close and they would lose the services the clinic offers. "Our doors are open," Mullinax assured them. Planned Parenthood provides much more than medication abortion: It offers the full range of reproductive health care services, from primary care to contraception to testing for sexually transmitted diseases. The clinic also has a new specialty transgender clinic, where OB/GYN Dr. Janet Cathey, who instituted a transgender clinic at the University of Arkansas for Medical Sciences, sees patients.

Planned Parenthood is "doing everything within our power to fight" in the courts bad legislation that impacts women's health, Mullinax said last week.

"In 2015, we asked our supporters to contact the legislature and governor" to stop the medication abortion restriction, Mullinax said. "There was no precedent for what the 8th Circuit did and what the Supreme Court did in not hearing" Planned Parenthood's request for a hearing. "We're in uncharted territory in Arkansas."


click to enlarge MORE SUPPORTERS: Planned Parenthood's rally drew 60 pro-choice supporters, including former congressional candidate Gwen Combs (center).
  • MORE SUPPORTERS: Planned Parenthood's rally drew 60 pro-choice supporters, including former congressional candidate Gwen Combs (center).

If people doubt that Arkansas legislators' anti-abortion measures are more to bring an end to a practice they abhor than to protect the health of women, they have only to look at what the laws would do.

For example: The same law that requires the physician contracts also would have required that the drugs be administered at dosages recommended by the FDA. That doesn't sound bad until you know that physicians, with two decades of experience administering the oral abortifacients, knew a lower dose was just as effective and caused less cramping, and thus less pain. But pain was the legislators' goal and the law insisted on the higher dosage. Fortunately, after the law passed, the FDA, acknowledging the body of evidence that the dosage was unnecessarily high, lowered it, thus defanging that portion of the law.

Act 383, the work of Rep. Robin Lundstrum (R-Elm Springs) and Sen. Scott Flippo (R-Bull Shoals), professed to benefit women's health by subjecting clinics that provide abortions to stricter inspections. After it passed, the state Department of Health threatened to pull the Little Rock Planned Parenthood's license because it did not provide patients the phone number of the Red Cross as an emergency contact. Why that was ever part of the law is unclear because there is nothing the Red Cross could do in a health emergency.

At any rate, the clinic was inspected frequently before the passage of the law and continues to be. In 2016, it was cited for having discolored ceiling tiles. Some of the complaints come from anti-abortion picketers who daily seek to intimidate women entering the clinic.

Act 45, sponsored by Rep. Andy Mayberry (R-Hensley) and Sen. David Sanders (R-Little Rock), did not even pretend to address women's well-being. Instead, it theoretically placed the rights of the fetus over the rights of the woman, by prohibiting the safest, and thus most common, type of surgical abortion, dilation and evacuation (D&E), which they likened to slaughter. No exception for rape or incest was made. So while one state law maintains medication abortion is unsafe and requires women wanting to exercise their constitutional right to have surgical abortions, another maintains that surgical abortions are butchery and should also be illegal.

By doing away with D&E abortions, Mayberry, Sanders and supporters would subject women seeking a legal procedure to risky surgical alternatives highly likely to cause pain and sickness.

The federal court in Arkansas has issued a preliminary injunction against the D&E law, which is on appeal before the 8th Circuit.

In 2013, the state banned abortions after 20 weeks' gestation. The law provides exceptions in cases of rape, incest or to save a mother's life, but it does not include lethal fetal anomalies, some of which aren't detected until after 20 weeks. The constitutionality of the 20-week ban has not yet been challenged in court, likely because of the difficulty of finding a plaintiff.


Given such corrosive state laws, advocates of a woman's right to make her own health decisions have counted on the federal courts to preserve that right. The Supreme Court's refusal to hear an appeal of the preliminary injunction against Act 577 came as a shock to the many Arkansans who've fought in the courts and protested on the streets the Arkansas legislature's attempts to make abortion illegal. Women have taken it for granted, Mullinax said, "that the courts are going to save us."

At the June 1 rally at the Little Rock clinic, men and women waved their signs of support of Planned Parenthood and women's rights at the rush hour traffic. They got many approving honks. Only one driver, to the amusement of supporters, was rude: The man made a gagging gesture at them. Had he ever been pregnant and not wanting motherhood, he might not have.


Those who oppose a woman's right to determine when she should have a baby argue that pregnant women should carry their fetuses to term and then put them up for adoption and hope for the best. Many would even require women to carry to term fetuses so impaired that they will die immediately after birth, despite the physical risk to the mother that delivery presents and the attendant emotional distress.

The Times could find only two women who would discuss their abortions, and neither would do so using their real names for fear of being targeted by people who believed they'd done something immoral.

One, a woman in Northwest Arkansas we'll call Monica, had two medication abortions, both times at the insistence of the father. The father was physically and sexually abusive, she said, and told her if she carried to term he'd take the baby. She was a teenager. "I didn't really understand," Monica said. "I wish I would have had some legal advice."

Nevertheless, she does not regret the abortions. "Had that not been an option, my life would be completely different. I would have been bringing a child into that same abusive lifestyle."

Instead, she got some therapy, had healthy relationships, attended some college classes and has a job teaching yoga.

"I wanted to be a mom since I was little. Having to give up that baby was really difficult. But it seemed like the least selfish thing I could do," Monica said. The baby would have had "a pervert for a father."

Monica said she's "very at peace with the decision" and open to talking to women privately about her experience.

Another woman, who lives in Little Rock, chose abortion after the man who'd impregnated her left her for another woman. The woman, who we'll call Sarah, said she was in a new job, making only $16,000 a year, and neither emotionally or financially willing to bring a child into a broken family. It would have meant the end of her employment. It would have meant poverty for the child, or an adoption that may or may not have taken place in a timely way. Worse, she could have suffered complications giving birth and been unable to have a wanted child in the future.

Sarah said she never had a second thought about the abortion, and she does not believe that sweeping a six-week fetus from her womb made her a monster. She was grateful for the option. She now has a husband and a healthy baby.

Noting she is old enough to remember when abortion was illegal, Sarah said making abortion illegal will not end abortion. "It will only end safe abortion."



Subscribe to this thread:

Add a comment

More by Leslie Newell Peacock

  • Saturday To-Do: Bay, McCann at Boswell Mourot

    Kathy Bay's geometric abstractions and Jason McCann's painterly figurative work go on exhibit this week at Boswell Mourot Fine Art, 5815 Kavanaugh Blvd. A reception is set for 6-9 p.m. Saturday, April 27, at the gallery.
    • Apr 24, 2019
  • Wednesday To-Do: Reception, book-signing for Higgins Bond

    Hearne Fine Art, 1001 Wright Ave., will host a reception and book-signing at 5:30 p.m. Wednesday, Apri 24, with book illustrator Higgins Bond, a Little Rock native who has the distinction of being the first African-American woman to illustrate a U.S. Postal Service Stamp.
    • Apr 23, 2019
  • 'Washed Ashore: Art to Save the Sea' at the Clinton Center

    A walk along the Oregon shore, where trash was washing in, inspired the creation of sculpture made entirely of garbage from oceans and waterways.
    • Apr 22, 2019
  • More »

Readers also liked…

Latest in Cover Stories

Most Recent Comments


© 2019 Arkansas Times | 201 East Markham, Suite 200, Little Rock, AR 72201
Powered by Foundation