Linda Greenhouse, the former U.S. Supreme Court reporter for the New York Times, has an excellent opinion piece today on the mounting legal effort by anti-abortion forces to effectively stamp out
The article focuses on Arkansas’s effort to stamp out safe medicinal abortions in the first weeks of pregnancy.
The Arkansas law, cynically entitled the Abortion-Inducing Drug Safety Act, would leave only one of the state’s three abortion clinics in business because the other two, operated by Planned Parenthood, offer only medication abortions. Planned Parenthood conducted a statewide canvas of obstetrician/gynecologists and found none willing to enter into the required contract. The remaining clinic, in Little Rock, which currently offers both surgical and medication abortions, would have to limit its practice to surgical abortions, leaving Arkansas women with no medication option.
Federal District Judge Kristine G. Baker blocked the law’s enforcement after concluding that any medical benefit from the contract arrangement would be “incrementally small” while the burden on women’s access to abortion would be substantial. The law was “a solution in search of a problem,” the judge said. In a ruling last July vacating the district court injunction, the Eighth Circuit said that Judge Baker had “failed to make factual findings estimating the number of women burdened by the statute” and who would either forgo or postpone an abortion because of the law.
Only willful blindness to the facts of the case could have led the appeals court to fault Judge Baker’s description of the burden the law would impose. She explained that closing Planned Parenthood’s clinic in Fayetteville, in the northwest corner of the state, would require women there to make a 380-mile round trip to the remaining clinic in Little Rock not once, but twice, because Arkansas requires an in-person meeting between doctors and their abortion patients, followed by a 48-hour waiting period.
“Inability to travel to the sole remaining clinic in the state will lead some women to take desperate measures, such as attempting to self-abort or seeking care from unsafe providers,” Judge Baker wrote.
How many women? How many angels on the head of a pin? “We are left with no concrete District Court findings,” the Eighth Circuit complained in sending the case back to Judge Baker for further factual development. We are left to guess by what magic the judge can satisfy the appeals court’s burning curiosity.
The case is on appeal (a similar case succeeded in Texas) and Greenhouse hopes it’s an opportunity for the Supreme Court to tell lower courts that the Constitution still provides protection for abortions without undue state burdens. Trump’s appointment of anti-abortion judges makes clarity more urgent.
Greenhouse notes the Republican judges on the conservative 8th Circuit that made the decision. and sharply illustrates the flaws and contradictions in the Arkansas law.
In case anyone wonders why the anti-abortion forces would train their sights on medication abortion, which takes place only in the first 70 days of pregnancy, I think the reason is obvious: It empowers women because they take the second pill, misoprostol, at home. There is no need for medical apparatus nor, once the appropriate stage of pregnancy is confirmed, even for a doctor. The procedure is a perfect candidate for telemedicine, which some states are trying to bar while encouraging telemedicine for other simple procedures.
In March 2016, the Food and Drug Administration updated its label to take account of the new consensus. So that part of the Arkansas law, which Judge Baker had also enjoined, fell away. What was left was the contract-physician requirement, which makes no sense. Not only is medication abortion extremely safe, with a hospitalization rate of 0.06 percent, but any complications occur after a woman has left the doctor’s office and traveled some distance, perhaps a substantial one, back to her home. The law requires a contract with a physician anywhere in the state, making it unlikely that the contract doctor would even be at hand or would have privileges in a hospital near the woman’s home.
Further, Arkansas has responded to Planned Parenthood’s complaint about the distance that women would have to travel from Fayetteville by arguing that those woman could get abortions 80 miles away in Tulsa, Okla., rather than 190 miles away in Little Rock. The fact that Oklahoma has neither a contract-physician requirement nor a face-to-face consultation requirement (the consultation can be by telephone) strips from Arkansas any facade of sincerity about the asserted health-protective rationale for its law. The law is phony. It’s unconstitutional. It’s the Supreme Court’s next test.