The U.S. Supreme Court today refused to hear Planned Parenthood’s appeal of an 8th U.S. Circuit Court of Appeals decision that could force the end of medical abortions in Arkansas at clinics in Fayetteville and Little Rock and reduce the state to one operating
The Supreme Court refused to hear the case even though it had decided in a similar Texas case that a law requiring doctors performing abortions to have a contract with a doctor having hospital admitting privileges placed a substantial obstacle in the path of women seeking abortions.
Federal District Judge Kristine Baker had issued a temporary restraining order in a ruling on the similar 2015 Arkansas law. But she was reversed by the 8th Circuit. because it said Baker hadn’t specified how many women would be affected.
Planned Parenthood said it had found no doctors willing to enter a contract because of fear of retribution. The decision clears the way for the state to enforce its law
UPDATE: Bettina Brownstein, an attorney for plaintiffs, including Planned Parenthood and Little Rock Family Planning, which provides both medicinal and surgical abortions, said the decision means that as soon as the mandate is received, which could be at any time, the clinics will have to obey the law and stop providing drug abortions pending further court action.
But she said the plaintiffs would renew a request for a temporary restraining order from Judge Baker to hold the law in abeyance while testimony continues about the obstacles presented to women by the state law. The conservative posture of the 8th Circuit is problematic, she acknowledged. The developments are “very worrisome,” she said.
A Planned Parenthood spokesman told media that he couldn’t believe ultimately the court would say the Arkansas law didn’t create an impermissible obstacle to abortions for Arkansas women.
Brownstein naturally believes the 8th Circuit ruling was in clear error given the Texas precedent and holds out hope for an eventual win at the U.S. Supreme Court. But, in the meanwhile, the extent of availability of abortion in Arkansas will be restricted.
According to state statistics, 3,200 abortions were performed in Arkansas in 2016, of which 556 were nonsurgical, with 504 of those occurring in the first six weeks of pregnancy.
Linda Greenhouse, a former Supreme Court reporter for the Times, wrote recently about this case and its significance in national efforts by anti-abortion forces to make abortion de facto impossible to obtain, even with the protection of Roe v. Wade.
The case had been sent back to Baker for more factual development of the argument about obstacles to women., but the 8th Circuit lifted her restraining order.
The plaintiffs can still ask Baker to strike the law down, but the appeals court has set a proof standard that, as Greenhouse wrote, is akin to asking how many angels dance on the head of a pin.
Bloomberg’s court reporter observed:
The rejection opens up the possibility that the 2015 measure will take effect soon, though the clinics will have another chance to stop it at a lower court level. The justices rejected the appeal in a one-line order, without any published dissent, suggesting the court’s liberals made a tactical decision not to object publicly at this point.
Wrote a writer for
Lots of discussion here in the press room about the significance (if any) of the denial in the Arkansas case — particularly without relisting and without any public comment from any of the justices. The general thinking seems to be not to read too much into it given the preliminary posture of the case.
Bad news for women’s rights in Arkansas
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.
Sen. Tom Cotton injected a double dose of dishonesty into the discussion with this on Twitter:
The state of Arkansas has the right to hold abortion clinics to commonsense standards of safety, and I’m glad to see the Supreme Court unanimously reject this groundless lawsuit.
1) Medicinal abortions are safer than natural childbirth, for which similar restrictions are not applied. No common sense is at work here — only an artifice to make abortion unobtainable.
2) The suit is not
Here comes Attorney General Leslie Rutledge:
“As Attorney General, I have fully defended this law at every turn and applaud the Supreme Court’s decision against Planned Parenthood today. Protecting the health and well-being of women and the unborn will always be a priority. We are a pro-life state and always will be as long as I am Attorney General.”
UPDATE: Governor Hutchinson calls the ruling “good news.” His statement:
“The Supreme Court’s decision today was good news for those who are concerned about health and safety in the administration of medically induced abortions,” said Governor Hutchinson. “Not only does the Court’s action uphold Arkansas law but it also underscores the importance and necessity of protecting women, as well as the unborn, with common-sense measures.”