Has Gov. Asa Hutchinson effectively outlawed abortion in Arkansas?

Sen. Trent Garner thinks that’s the effect of a new executive order to suspend “elective medical procedures” on account of the coronavirus crisis.

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Is abortion an “elective” procedure? Abortion providers have argued otherwise in winning federal court orders against multiple state efforts to stop abortions on account of the coronavirus crisis. A Texas judge (Bush appointee) has ruled that when it comes to abortion the state can’t inject its “opinion” on what’s allowable when it comes to an abortion pre-viability. Arkansas Attorney General Leslie Rutledge intervened on behalf of shutting down women’s rights in that Texas case. The injunction has stayed while the Fifth Circuit Court of Appeals considers Texas’ appeal to enforce the executive order.

I had asked Gov. Asa Hutchinson if abortion — pharmaceutical and/or surgical — was covered by his order, issued Friday. He didn’t immediately respond, but the subject came up Monday at his coronavirus briefing and the answer fell well short of a declaration that abortions could no longer be provided in Arkansas. More updates below, but existing providers are still in business.

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Abortions are timely matters of health importance, not a procedure for scheduling at some future date more convenient to the state. They can be performed more easily and safely at the very earliest stages of pregnancy with a two-pill regimen. Handing out a pill doesn’t require the protective measures surgery requires. Garner’s suggestion it’s about health is a pretext for achieving a back-door end to abortion.

Planned Parenthood provides abortion services only by pills in Arkansas. Little Rock Family Planning Services provides both pharmaceutical and surgical abortion. I’m attempting to reach them to get a reaction to Garner’s assertion and whether they intend to remain in business next week.

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Little Rock Family Planning Services remains open, as its website indicates. Its attorney Bettina Brownstein, provided this statement Sunday:

Little Rock Family Planning Services is complying with the governor’s directive and is acting in the best interests of its patients.

She wouldn’t answer further questions. I note that none of the state’s guidance says flatly that any specific procedure may not be performed, only that procedures that can be “safely postponed” should be rescheduled.

Monday morning, Planned Parenthood responded with a statement from Brandon Hill, CEO of Planned Parenthood Great Plains:

“The priority of Planned Parenthood in Arkansas is the health and safety of our patients and staff, and ensuring that Arkansans can access essential health care. We are following the guidance of the Arkansas Department of Health by conserving needed health care resources and limiting persons within our health center.

We are dedicated and committed to our mission of providing the highest quality sexual and reproductive health care. Our doors are open, and we are continuing to see patients at our health center for necessary care, with appropriate screening precautions in place.”

Then came the governor’s briefing Monday afternoon.

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Andrew DeMillo of the Associated Press, noting the questions raised in this post Sunday, asked the governor if it was his “belief or expectation” that abortions should stop in Arkansas on account of last week’s directive.

He asked Health Director Nate Smith to field the question. Smith said:

“The way the directive is worded is that it applies to any procedures that can be put off, safely deferred. Our directive is not intended to replace a physician’s judgment on that. It says procedures, testing and office visits that can be rescheduled safely should be postponed.”

He added:  “I think that standard would apply across all practices. Anything that can be safely postponed should be.”

When DeMillo tried to follow up with a question about the freedom that interpretation seemed to give to doctors, Hutchinson interjected: “I think Dr. Smith answered that in reading the directive.” That ended the discussion.

Also Monday, Attorney General Leslie Rutledge issued a statement that fell short of declaring she’d attempt, as the Texas attorney general did, to interpret a similar directive as ending abortions in that state.

I asked her specifically if she’d “take action” as the Texas attorney general did.  The prepared response through a spokesperson:

The Attorney General will defend any actions against the State regarding the Department of Health directive ordering elective procedures to cease during this pandemic.

I followed up, asking if that means clinics ARE ordered to stop abortions.

Spokeswoman Amanda Priest responded:

I’ll refer you back to the Dept. of Health.

Calling abortion elective and enforcing that definition would make abortion impossible to obtain in Arkansas. That would be unconstitutional unless 50 years of precedent are about to be thrown out the window.

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Here’s the relevant part of the governor’s executive order.

Throughout February and March of 2020, the Centers for Disease Control and Prevention (CDC) and the Arkansas Department of Health (ADH) recommended that healthcare facilities and clinicians prioritize urgent and emergency visits and procedures for the coming several weeks. Please see CDC Health Care Facilities Guidance and ADH Health Facilities Guidance.

 

On March 30, 2020, a guidance letter was sent to all health facilities, including ambulatory surgery centers and abortion facilities. Please see ADH Guidance Letter. In view of the continued uncertainty and increase in cases of COVID-19, there are increasing concerns of staff and medical supplies capabilities in hospitals statewide.

 

The following mandatory actions can preserve staff, personal protective equipment (PPE), and patient care supplies; ensure staff and patient safety; and expand available hospital capacity during the COVID-19 pandemic.

 

 Procedures, testing, and office visits that can be safely postponed shall be rescheduled to an appropriate future date.

 Routine dental and eye care visits shall be postponed.

 Emergent, urgent and care designated as an exception below will continue.

 

 Small rural hospitals under 60 beds and critical access hospitals, though strongly advised to follow this directive to maximize resources, are excluded from this directive. Exceptions to this directive should be made in the following circumstances:

 If there is a threat to the patient’s life if the procedure is not performed.

 If there is a threat of permanent dysfunction of an extremity or organ system if the surgery is not done.

 If there is a risk of metastasis or progression of staging of a disease or condition if surgery is not performed.

 If there is a risk that the patient’s condition will rapidly deteriorate if surgery is not done, and there is a threat to life or an extremity or organ system or a threat of permanent dysfunction or disability

At least six states with anti-abortion governors have used the crisis as a pretext to outlaw abortion in all but the most extreme circumstances. Federal judges have stopped them, but the case in Texas might provide a friendly appeals court to carry through with it.

If this was Hutchinson’s intention in Arkansas, he should have been man enough to announce it. He was asked at his news conference today about reports that a variety of other elective procedures were proceeding as scheduled at Little Rock hospitals. Health Director Nate Smith said the state would act to stop such practices if they were occurring. I hope to ask him today about passing out a pill in a clinic setting.

UPDATE: More here on the national Republican strategy to use the pandemic as an excuse to end abortion.