The 8th U.S. Circuit Court of Appeals today lifted federal district Judge Kristine Baker’s injunction preventing enforcement of an Arkansas law requiring abortion providers to have a contract with a physician who has hospital admitting privileges.
The court said Baker had failed to “make factual findings estimating the number of women burdened by the statute, we vacate the preliminary injunction and remand for further proceedings. “
State Attorney General Leslie Rutledge cheered the ruling, a victory for opponents of abortion. Planned Parenthood, the plaintiff in the case, denounced it, said it was out of step with U.S. Supreme Court precedent and that its fight would continue.
Planned Parenthood had sued over the law and Baker issued a 70-page ruling that essentially found it was a burden that added no protection to women’s health. Planned Parenthood provides pharmaceutical abortions in the first nine weeks of pregnancy at medical clinics in Little Rock and Fayetteville. It had said physicians were fearful of reprisals if they entered an agreement to work with Planned Parenthood. The medicinal abortions are safe and complications rare. A two-pill regimen prompts a miscarriage. If the law is enforced and no physician steps forward, it would mean the end of medicinal abortions at Planned Parenthood and leave Arkansas with a single abortion provider, a clinic in Little Rock that also provides clinical abortions later in pregnancy.
The closure in Fayetteville means a 380-mile round trip to Little Rock for any woman there seeking an abortion. A 48-hour abortion wait law means many women would have to make two long trips.
The law was one of several intended to de facto make abortion unavailable in Arkansas.
Planned Parenthood has two licensed physicians, but they don’t have hospital privileges.
The 8th Circuit found that Planned Parenthood hadn’t made a sufficient showing that it would likely prevail on the merits, a standard for issuance of a preliminary injunction. Baker had found otherwise. But the 8th Circuit said more information was needed on a specific class of women, not merely all women or all women seeking abortions:
… the district court was required to make a finding that the Act’s contractphysician requirement is an undue burden for a large fraction of women seeking medication abortions in Arkansas.
The district court did not make this finding. The court correctly held that individuals for whom the contract-physician requirement was an actual, rather than an irrelevant, restriction were women seeking medication abortions in Arkansas.
Nonetheless, it did not define or estimate the number of women who would be unduly burdened by the contract-physician requirement. Instead, it focused on amorphous groups of women to reach its conclusion that the Act was facially unconstitutional.
The court acknowledged that the rule was relevant to women seeking abortions and that delays caused by it could lead to complications, but it said Baker had failed to estimate a number who’d risk complications.
The court said the record did an include an estimate of the number of women in the Fayetteville area who’d have been dissuaded from getting an abortion by the rule, but commented that, as a percentage of all women seeking medication abortions, it was fairly small.
On remand, we do not require the district court to calculate the exact number of women unduly burdened by the contract-physician requirement. We acknowledge that the “large fraction” standard is in some ways “more conceptual thanmathematical.” Nonetheless, like the Sixth Circuit, we find that this standard is not entirely freewheeling and that we can and should define its outer boundaries. See id. (“[T]he term ‘large fraction,’ which, in a way, is more conceptual than mathematical, envisions something more than the 12 out of 100 women identified here.”). Thus, on remand, the district court should conduct fact finding concerning the number of women unduly burdened by the contract-physician requirement and determine whether that number constitutes a “large fraction.”
The court didn’t take up the question of whether the law provided a benefit to women in increased regulation. But, in a footnote, it criticized Baker’s finding of little compelling benefit from the state law.
In determining that the contract-physician requirement’s benefits would be “low and not compelling,” the district court concluded that Planned Parenthood’s current continuity-of-care protocols were adequate. Hellerstedt, however, compared H.B. 2 to Texas’s pre-existing law, not Texas abortion providers’ current protocols. See 136 S. Ct. at 2311 (“We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a ‘working arrangement’ with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.” (emphasis added)). Moreover, Planned Parenthood could unilaterally decide to discontinue its twenty-four-hour nurse-staffed phone line, end patient referrals to surgical providers, or stop consultations with emergency-room
A happy news release from Attorney General Leslie Rutledge,
UPDATE: The Rutledge statement (which includes an exaggeration about what the court said about benefits of the law):
“In a unanimous opinion, the 8th Circuit recognized that the lower court incorrectly analyzed the law,” said Attorney General Rutledge. “The injunction was vacated because Planned Parenthood failed to show that the state law is a substantial obstacle, preventing most women from having access to abortion services. This common sense law will help ensure that medication abortions are conducted in a safe, responsible manner and with appropriate protections for women. While the Court did not reach a final decision on the ultimate merits, today’s decision is an important notice to the lower court that this law has important benefits for patients. I will continue to defend Act 577 as Planned Parenthood continues its challenge.”
Planned Parenthood issued this statement:
Planned Parenthood Great Plains (PPGP) condemns the 8th Circuit Court’s ruling delivered today, which overturned the lower court’s decision to temporarily block an unconstitutional measure that forces medication abortion providers to have a signed contract with a physician with admitting privileges in order to provide medication abortion. If this unconstitutional and medically unnecessary law, which provides no benefit to women, takes effect, Arkansans will lose access to safe, legal abortion at all but one health center in the entire state, and will completely lose access to medication abortion, a safe, effective, and early method of abortion. This would severely limit abortion access for women in Arkansas, forcing many women to travel out of state to access safe, legal medical care, if they can at all.
Right now, while PPGP evaluates all of its legal options, all services will continue at both health centers in Fayetteville and Little Rock. There will be no disruption to abortion services at Planned Parenthood health centers in Arkansas.
“PPGP is carefully evaluating all of our legal options and will leave no stone unturned in order to protect Arkansans and their right to access safe, legal abortion. Last year, in Whole Woman’s Health v. Hellerstedt, the Supreme Court of the United States clearly ruled that requiring admitting privileges for abortion providers and other medically unnecessary restrictions are unconstitutional. It is unfortunate we are now forced to continue litigating this fact long after the highest court in the land delivered its final say,” Planned Parenthood Great Plains President and CEO, Laura McQuade said.
“Let’s be clear, laws like this one have no basis in quality patient care and are intended to end access to safe, legal abortion. Ideological extremists in the statehouse, not medical experts, design these policies that have no basis in medical science. Every leading medical authority including American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association (AMA), condemn these restrictions and affirm that abortion is and will always be one of the safest medical procedures. PPGP is proud to provide high quality abortion care and we will find a path to keeping access open for the countless patients who rely on us,” McQuade said.