Federal District Judge Kristine Baker did not rule today on Planned Parenthood’s motion for a temporary restraining order that would have allowed medical abortions to resume in Arkansas.  She wants more information.

She asked the parties to submit briefs by noon Wednesday to address questions on how the court should proceed in responding to the 8th Circuit Court of Appeal’s decision to lift on Baker’s preliminary injunction against the state law and remand to her court because the court “failed to make factual findings estimating the number of women burdened by the statute.” 

The appeals court said Baker was required to find that the state law, which requires providers of medical abortion to contract with physicians with hospital admitting privileges, was an undue burden “for a large fraction of women seeking medication abortions in Arkansas.”

Baker has asked the parties to submit briefs answering several questions she has: What constitutes a “large fraction”? Planned Parenthood, in its motion today, said that 25 percent of Arkansas women would be unduly burdened; the state said 25 percent was not a large fraction. If she is assessing the burden, should she make findings on the benefit of the physician contract law? Does she reopen the case for a preliminary injunction to include new findings submitted on the numbers of women affected or does she restate her findings based on the evidence submitted in the original pleading? Baker is being cautious, asking the parties their interpretation of what is necessary to respond to the 8th Circuit.

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After the plaintiffs and the state submit their briefs, Baker may have a phone conference with attorneys in open court, or its possible the briefs will make it clear what her ruling should be and the conference won’t be necessary. At any rate, she said she acknowledged the urgency in the motion by the plaintiffs, which noted that Arkansas is the only state in the country where women may not legally obtain a medication abortion. Baker also reminded the state that its argument that women in Fayetteville were a mere 80 miles away from a provider of medical abortions — in Oklahoma — and therefore unburdened was something she could not consider in her ruling on how the law plays out in Arkansas.

The 8th Circuit’s decision allowing the state to bar abortions closed all but one abortion clinic, in Little Rock, that provides only clinical abortions. Its ruling came despite a ruling in Texas, upheld on appeal, that a restriction virtually identical to Arkansas’s was unconstitutional. The 8th Circuit has become one of the country’s most conservative appellate benches.