BACK IN COURT: Little Rock Family Planning

Federal Judge Kristine Baker
at 11:34 p.m. last night enjoined enforcement of a new state law outlawing the most common surgical procedure used in later-term clinical abortions as well as three other laws aimed at ending abortions in Arkansas. Most of the laws were to take effect Monday and would have crippled the last remaining provider of clinical abortions in the state.

The injunction stops enforcement until a full trial but it suggests success of the suit by Dr. Frederick Hopkins. Similar laws targeting the dilation and extraction procedure, the preferred method of second-trimester abortions, have failed elsewhere.


Little Rock Family Planning, where Hopkins works, is the only clinical abortion provider in the state.

The judge, in a 140-page opinion, also enjoined three other news laws: one that demands vast amount of personal records for a woman seeking an abortion; one that sets requirements for disposal of fetal remains (hotly controversial because notice is required of the father of an aborted fetus, someone who might be a rapist); and another raising to 17 from 14 the age of women receiving abortions for whom fetal tissue must be sent to the state Crime Lab.


Hopkins argued that the statutes threaten him with criminal penalties and “deny and burden patients’ constitutionally protected rights to decide to end a pre-viability pregnancy, to make independent decisions related to their pregnancy care, and to protect their private medical information.”  The judge agreed.

Reaction from pro-choice forces:


Talcott Camp, deputy director of the ACLU’s Reproductive Freedom Project: “We’re pleased to know these insulting, harmful, and unconstitutional laws will be enjoined while we fight them in court. By blocking these laws, the judge has prevented some of the most egregious burdens Arkansas politicians have tried to impose on women seeking abortion in the state.”

Rita Sklar, executive director of the ACLU of Arkansas: “Arkansas women can feel a little relief today, knowing that these laws are blocked from taking effect. Instead of protecting women’s health, Arkansas politicians have passed laws that defy decency and reason just to make it difficult or impossible for a woman to get an abortion. We’re fighting to see these laws struck down before they can be used to block a woman’s access to care.”

Statement from Nancy Northup, president and CEO of the Center for Reproductive Rights:

“Arkansas politicians made it their mission to rob women of their health care options this year. Today’s ruling elevates women’s health over four cruel and unconstitutional restrictions which ignore women’s dignity and privacy. The Center for Reproductive Rights will continue to stand with Arkansas women against attacks on their rights and vows to fight these restrictions until they are permanently blocked.”

A spokesman for Attorney General Leslie Rutledge said the state would appeal.Naturally. Rutledge is stridently anti-choice.

Baker’s ruling details the obstacles faced by women already under Arkansas law — limited availability of service, a 48-hour waiting period, three trips to a clinic for counseling before a later-term abortion, travel and other burdens, some emotional. She notes, too, that abortions are safer than carrying a child to term, contrary to the state’s assertion that the aim of all these laws is health of the mother. They are transparent efforts to achieve by obstacles what courts have said can’t be done constitutionally — outlaw abortions.

Two other laws remain under challenge. A hearing is set in federal court in August on a law requiring heightened inspection requirements for abortion clinics, more than for other medical offices. And another, which Baker had enjoined, requiring a doctor with admitting privileges at all clinics, even the Planned Parenthood clinics that only dispense miscarriage-inducing pills. The 8th Circuit Court of Appeals yesterday lifted an injunction on that law, a troubling ruling by an ultra-conservative panel of Republican judges.

There are important points throughout the ruling:


Baker explains that the D&E method of second-trimester abortion is safer for the woman than another procedure, known as induction. 95 percent of second-trimester abortions employ D&E. Little Rock Family Planning performs about 600 such procedures a year, among 3,000 abortions including those in the first trimester.

Among other points, the judge noted that making a woman request her medical records to supply to Little Rock Family Planning amounts to a disclosure to others that she is seeking an abortion, a fact that some fear to reveal. She wrote:

A few years ago, Little Rock Family Planning Services requested a woman’s medical records from another health care provider and that provider’s wife then reached out to the woman in an effort to dissuade her from having an abortion

The judge noted that law enforcement agencies are not always responsive to the clinic when it notifies them of the need to preserve tissue samples of young women who receive abortions.

On occasion, when a Little Rock Family Planning Services representative has spoken to local law enforcement about the existing law, personnel lecture the Little Rock Family Planning Services and “preach anti-abortion rhetoric, including telling [the representative] that the Clinic is taking a life.” 

The judge said Hopkins likely will succeed on the merits because the laws present substantial obstacles and undue burdens on women.

The clinic didn’t challenge the ban on so-called sex selection abortions, to avoid birth of a child of an undesired gender. The clinic said the doctor had never encountered such a request. But that restriction was in the law on disclosure of medical records that the judge did enjoin for violation of women’s privacy by disclosing to others plans to get an abortion.

The judge agreed with the clinic that the higher age for required tissue sample collection could have the effect of outlawing early pregnancy medical abortion for women that age because tissue samples resulting from miscarriages couldn’t be collected readily. With young women where no evidence of sexual abuse exists, the judge agreed with the argument that requiring that women of that age be told of law enforcement notification and required tissue sample collection for the state Crime Lab could serve to discourage abortions.

The required notice of abortion and transmittal of “crime lab” evidence will stigmatize these women and potentially subject them to a range of negative reactions that can occur in response to the revealed decision to end a pregnancy. 

The judge also accepted the argument that the expanded demands on disposal of fetal remains burdened women. She wrote, and I highlight because the issue has been argued, including by Democrats who unaccountably voted for the legislation

Here, the Tissue Disposal Mandate requires notice and consent to the disposition of embryonic and fetal tissue – and of every woman’s abortion – from a woman’s sexual partner or, if the woman and her sexual partner are minors, the parent or parents of both, in direct conflict with Supreme Court precedent.  …

That fact that both “parents” have disposition rights under the FDRA creates a requirement of notice and consent of the woman’s sexual partner and requires that, when the other “parent” is “absent,” then “reasonable efforts” need to be made to locate him prior to disposition.  ..

That the woman’s sexual partner could be difficult to locate, could withhold consent, could seek a different means of disposition, or could otherwise delay the abortion gives him “an effectivev veto” over her decision. Notice of abortion could subject some women to physical and psychological abuse.

When Rep. Kim Hammer passed this legislation, he defended it as giving a biological father a deserved voice. Baker quoted the relevant U.S. Supreme Court precedent:

“A husband has no enforceable right to require a wife to advise him before she exercises her personal choices,” including about pregnancy.

The judge observed the law gave disposal rights to a male 18 or over or parents if the pregnant woman was a minor and thus invalidates the required option of a judicial bypass to avoid notifying parents. She also observed, again with emphasis for the Democratic Party’s effort to alibi this bill:


The law mandates disclosure to a woman’s partner or spouse, even if that person is no longer in her life or is a perpetrator of sexual assault.

She noted that the legislature tried to clean up this flawed law by recent adoption of a rule that says the tissue disposal law doesn’t apply to medication abortions.  She commented:

The Court is unclear on the authority possessed by the Legislative Council and, therefore, unclear on the binding nature of this amendment to the Tissue Disposal Mandate. The Court also questions whether this amendment has to go through an approval process before being formally adopted.

Even if proper, the judge said the rule change didn’t make the law constitutional. Here’s the ruling, a monumental takedown of anti-abortion lawmaking as well as an informative explanation of each part of the process.