Federal Judge Kristine Baker issued a temporary restraining order at 4:45 p.m. today that prevents the state from enforcing a new law that Planned Parenthood said would put it out of the business of providing early term abortions by a drug protocol that causes miscarriages in the first eight weeks of pregnancy.
The 2015 law would require clinics providing the drug to have an agreement with an outside doctor with hospital admitting privileges. It also would prevent a widely used drug protocol in favor of an outdated manufacturer’s recommended protocol that is more expensive. The law was to take effect Jan. 1.
Planned Parenthood issued this release:
U.S. District Judge Kristine G. Baker issued a temporary restraining order against portions of an Arkansas law that restricts access to the abortion pill, according to court records.
Planned Parenthood filed a lawsuit on Monday against portions of Act 577 (also known as the “Abortion-Inducing Drugs Safety Act”).
The organization sought to block two portions of the law.
The first section of Act 577 Planned Parenthood seeks to block is 1504(d), which requires all physicians who provide medication abortion to have a signed contract with a physician who agrees to handle complications and emergencies and who maintains specific admitting privileges at a hospital, as described in the law, the lawsuit states.
The second section of the law that Planned Parenthood seeks to block is 1504(a), which will require that medication abortions be provided using an “inferior, outdated protocol” that appears on the final printed labeling for the medication, according to the lawsuit.
On Thursday, Baker granted the temporary restraining order against those two sections of the law, setting the order to expire on January 14, 2016, at 4:45 p.m., court records state.
The law is scheduled to take effect on Friday, but the restraining order prevents those two sections from going into effect.
Planned Parenthood has said the law would put its two Arkansas clinics out of the business of providing abortions. That would leave one abortion provider in Arkansas, which has also indicated it would stop providing medical abortions and provide only surgical procedures.
Supporters of the law have claimed it was passed in the interest of women. It is no such thing. It is cookie cutter legislation developed by anti-abortion forces to further hamper access to abortion and discourage a procedure used extensively in the U.S., even where fetal heartbeat tests and waiting periods have also been imposed by law, as Arkansas has done. It is the first instance of the legislature requiring a drug protocol by statute.
In the two-week period, a hearing will be scheduled on whether the order should be made extended or made permanent. Attorney General Leslie Rutledge has defended the law and can be expected to continue to do so.
UPDATE: Indeed, said a statement from Rutledge’s office:
“The Court has granted a short, 14-day restraining order to allow the parties time to more fully present evidence and argument in this case. The restraining order is limited to enforcement of portions of the Act against the specific plaintiffs in this case; therefore, the Act, including those portions, will still take effect tomorrow. Act 577 of 2015 was passed by the General Assembly and seeks to ensure medication abortions are conducted in a safe, responsible manner and with appropriate protections in the case of adverse effects. Attorney General Rutledge will fully defend this statute and believes it will ultimately be upheld.”
In other words, the state would prosecute the other abortion provider in LIttle Rock, if it continued the drug regimen.
Gov. Asa Hutchinson issued a statement about the order:
“This was a ruling on a preliminary motion, and we are hopeful that when the case is considered in full that the Judge will support the law. “The legislature passed HB 1394, sponsored by Rep. Charlene Fite, earlier this year, which established the Abortion-Inducing Drugs Safety Act. On March 20, I signed it into law because I agreed with the legislature’s intent to protect women by requiring physicians to follow procedures approved by the U.S. Food and Drug Administration for these abortion drugs and to have the abortion clinic’s doctor associate with a physician who has hospital privileges. This is a common sense approach for safety and I am hopeful the Court agrees that this is a proper purpose for the legislature to act. “As made evident by their lawsuit, Planned Parenthood places a premium on the convenience of abortion providers over the health and welfare of women seeking these procedures.”
The judge’s ruling indicated she sees things differently.
The judge’s ruling cited testimony from Planned Parenthood about the safety of the drug procedure and the millions of times it has been used. She noted testimony from the leading ob/gyn medical group that the drug regimen used by Planned Parenthood was superior to the regimen the Arkansas legislature was trying to impose. It is safer, faster and less expensive, doctors say, though Arkansas Republican legislators claim otherwise.
Judge Baker rejected the state’s argument that a Jane Doe plaintiff was necessary to sue the state. She noted ample precedent for clinics to sue when legislatures attempt to unconstitutionally restrict abortion.
The judge indicated the suit appears, based on precedent, to have a good chance to succeed on the merits. For example, from a landmark Pennsylvania case:
The court retains an independent constitutional duty to review [a legislature’s] factual findings where constitutional rights are at stake. . . . Uncritical deference to [the legislature’s] factual findings in these cases is inappropriate.”
She acknowledged a ruling in the 8th Circuit, that includes Arkansas, required abortion providers in Missouri to have an arrangement with a doctor with hospital admitting privileges.
But here, she said:
Based on the current record before the Court, at this early stage of the proceeding, the Court finds that, in the case of medication abortion, any benefit of admitting privileges in terms of continuity of care is incrementally small. Nothing in the statute requires a contracted physician who has admitting privileges to care for a patient who has complications from a medication abortion or to see the patient before the complications arise, accompany the patient to the hospital, treat her there, visit her, or call her. Further, if the medication abortion patient takes her additional pill or pills to complete the medication abortion procedure and has complications later near her home, not the clinic or the location where the doctor has admitting privileges, the patient is likely to go to the nearest hospital emergency room if she is experiencing complications—a hospital at which the contracted physician under this provision is not likely to have admitting privileges, especially in this case based on the patient population as described by PPH and Dr. Ho. Further, based on the record before the Court at this stage of the proceeding, the Court concludes, at least preliminarily, that emergency room physicians are well qualified to evaluate and treat most complications that can arise after a medication abortion and, when necessary, have immediate access to consultation with on-call specialists.
Regardless of whether this Court examines if the Act furthers the legislature’s stated purpose, even if this Court accepts that this portion of the Act meets rational basis review, the Court is persuaded, for now, that PPH and Dr. Ho have a substantial likelihood of success on their argument that this portion of the Act as applied to PPH and Dr. Ho would result in an undue burden and would have the effect of placing a substantial obstacle in the path of a woman’s right to choose to have an abortion of a nonviable fetus.
The burden on abortion imposed by this portion of the Act as applied to PPH and Dr. Ho,
at least based on the record before the Court at this stage of the proceeding, appears greater than in the cases in which the Fourth and Fifth Circuits have upheld similar admitting privileges requirements because the plaintiffs in those cases failed to satisfy the courts that the challenged atutes would lead to a substantial decline in the availability of abortion.
In Arkansas, there’s been testimony that no doctor could be found to work with the clinics, with some saying they feared “stigma and harassment.”
The judge commented: “If the Act goes into effect, PPH and Dr. Ho represent that only one health center in the state—located in Little Rock—will provide abortions. They also represent that these abortions will only be surgical. Removing medication abortion as an option for women will result in serious negative consequences for those women for whom medication abortion is medically indicated.” She noted that the majority of medical abortions are performed in Fayetteville, a 380
0-mile roundtrip to the remaining abortion provider in Little Rock. Another law that requires a 48-hour waiting period means those women will have to make the trip more than once, she noted.
These women will have to arrange the necessary funds, transportation, child care, and time off work required to travel to the sole remaining abortion provider in the state twice. Some women forced to make the trips will be unable to do so because of these obstacles,. Others will be delayed by the increased travel distances and increases in costs, forcing these women into later abortions that are both riskier and more expensive, if they can obtain them at all. Inability to travel to the sole remaining clinic in the state will lead some women to take desperate measures, such as attemptin g to self-abort or seeking care from unsafe providers, which would further put their health at risk
The judge seemed skeptical, too, of the legislature determining the best drug protocol — that followed uniformly around the country or an old drug manufacturer recommendation long ignored.
This Court determines that, based on the record before the Court at this stage of the proceeding and at least for now, the FPL regimen does not appear to be the current standard of care and that it appears to be inferior to the evidence-based regimen used currently by PPH and Dr. Ho and by abortion providers around the country today.
As a technical matter, the suit names prosecutors in Pulaski and Washington counties as defendants. They are enjoined from enforcing the law.