UPDATE: The state Health Department today ordered Little Rock Family Planning Services to stop providing surgical abortions unless necessary to save the life or health of a woman. It is the only surgical abortion provider in the state.
The news follows by several hours Attorney General Leslie Rutledge’s threat of “decisive action” if abortions continued. She said she’d defend any state official challenged in court for such action.
This letter from Becky Bennett, chief of health facilities services, says that the clinic had been inspected in response to a complaint and was in compliance with operational rules. But it said:
This reverses Health Director Nate Smith, asked at a news conference Thursday about continued abortion clinic operations. He said the order to stop elective procedures was best left to a provider to decide what procedures could be postponed. The letter adopts language — “medically necessary” — that was not used in the original directive, but was used by Rutledge in justifying her threat this morning.
Little Rock Family Planning also provides pharmaceutical abortions — a two-pill regimen that causes a miscarriage early in pregnancy and will continue to do so. Planned Parenthood also provides pharmaceutical abortions, but not clinical abortions. Both had continued to operate as usual and Gov. Asa Hutchinson and Smith had resisted saying they believed either was in violation of the director to delay “elective” procedures.
Rules such as these, to ban abortion in the name of conserving medical supplies and potentially hospital bed space, have been struck down in other states. Little Rock Family Planning is familiar with use of federal court to prevent unconstitutional state attempts to put them out of business.
The ACLU of Arkansas, which has represented the clinic in federal court cases, issued this statement:
“We are reviewing the Attorney General’s statement and considering all our options, including litigation, for preserving access to abortion care in Arkansas.
“Effectively combating the spread of COVID-19 requires a government response that is grounded in science and public health, not politics,” Holly Dickson, the interim executive director and legal director of ACLU of Arkansas, said in a statement. “You can’t press pause on a pregnancy, even during a pandemic, and abortion is essential, time-sensitive health care that cannot be postponed.”
Legislative pressure from anti-abortion extremists has been strong and they reportedly had been pressing State Police to take some sort of enforcement action, though it’s unclear what that could be.
I’ve asked the health department for background on reaching the decision that an abortion could be deemed “unnecessary” except to save a life. That’s a women’s decision, not a bureaucrat’s or a politician’s. I’ve also asked if this order repudiates what Smith said Thursday at a news conference with the governor.
UPDATE: The department response:
The letter serves as the Department’s statement on this issue.
Friday, the governor acknowledged the new directive and Smith confirmed it applied to “elective” abortion. In his view, he said, that’s any abortion not done to save a life or health of a woman. The governor seemed to imply that this was understood to be covered in the original order, but that’s not true. Asked repeatedly for such an interpretation over several days, he and Smith refused to say that. And they dodged questions about impact on Arkansas women today, including ignoring one question on whether it meant “some woman is going to have a baby.”
Following is what I wrote earlier today about Rutledge’s threat. Her office hasn’t responded to my questions.
Attorney General Leslie Rutledge has threatened “decisive action” if abortions continue to be provided in Arkansas unless “immediately medically necessary to preserve the life or health of the mother.”
UPDATE: Watch this space. I think legislative pressure may force this issue into the open and, if so, then into federal court. Things are breaking in several locations.
She claims, as a pretext, “Postponing surgeries and procedures that are not immediately medically necessary will ensure the availability of hospital beds and personal protective equipment needed to respond to the COVID-19 pandemic.” This is not true in the case of pharmaceutical abortions, the only kind provided by Planned Parenthood, and also provided by the only surgical abortion provider in the state, Little Rock Family Planning Services.
It looks like the beginning of a direct attack on continued abortion services. She does so by adding her own words and interpretation to the Health Department order authorized by the governor on “elective surgeries.” Note, first, the word “surgeries.” Planned Parenthood performs no surgeries. It provides a two-pill regimen in the first 10 weeks of pregnancy that brings about a miscarriage.
The directive ordered in part (my emphasis):
Procedures, testing, and office visits that can be safely postponed shall be rescheduled to an appropriate future date.
A pharmaceutical abortion — safe and non-surgical — can’t be safely postponed without requiring a surgical procedure. Postponement is also harmful to a woman seeking a surgical abortion. Timeliness is vital. Abortion is necessary in any case because the pregnant woman says it is. Leslie Rutledge’s belief to the contrary is immaterial.
Rutledge adds language about the order that doesn’t exist. Her release with select emphasis:
Arkansas Attorney General Leslie Rutledge warns all licensed health care professionals and all licensed health care facilities, including abortion providers, that pursuant the April 3, 2020 Directive on Elective Surgeries issued by the Department of Health, they must postpone all surgeries and procedures that are not immediately medically necessary.
“Arkansans must work together to combat the COVID-19 pandemic,” said Attorney General Rutledge. “All medically unnecessary surgeries and procedures, including abortions, must be postponed until after this crisis has ended. Those who violate the Department of Health’s directive will be met with decisive action, and my office will forcefully defend the State officials involved in keeping Arkansans safe.”
Last Friday, the Department of Health issued a directive mandating that all surgeries and procedures that can be safely postponed to a further date be postponed while the COVID-19 emergency is ongoing. This prohibition applies throughout the State to all surgeries and procedures that are not immediately medically necessary, including routine dental and eye visits, as well as most scheduled healthcare procedures such as orthopedic surgeries or any type of abortion that is not immediately medically necessary to preserve the life or health of the mother.
“Medically necessary” is not a phrase found in the executive order. The order provides an exemption for life-saving measures in all procedures but doesn’t mention abortion.
Many questions are raised by this attack on a woman’s constitutional right to obtain an abortion, beginning with what “decisive action” is threatened and under what legal theory?
It is nothing more than a transparent effort to bully into effect a ban on abortion in Arkansas. Federal judges in multiple states have prevented Republican officials from using similar language drafted during the coronavirus crisis as a backdoor way to shut down abortion clinics. A Texas judge has stopped it twice, even though Rutledge hurried down to Texas to join its attorney general in getting his first order stayed by a federal appeals court. That judge noted the particular fallacy of Rutledge’s argument that preventing dispensation of a pill conserves protective medical gear and hospital beds.
Gov. Asa Hutchinson has repeatedly resisted declaring that his order was intended to halt all abortions, though he has objected directly to abortions being provided to women who travel from other states, particularly those with coronavirus hotspots. Dr. Nate Smith, the state health director, has also said the decision on the need to continue with a medical procedure is best left to the medical provider. Smith’s Health Department, by the way, is no bastion of pro-choice sentiment. It has zealously enforced a variety of rules aimed at curtailing abortion in Arkansas.
The failure of healthcare facilities to comply with the Department of Health’s directive will lead to administrative penalties, up to and including license suspension.
Are administrative penalties her decision?
Among the other questions I’ve sent Rutledge’s office:
Does the statement today mean that the attorney general is declaring that ONLY abortion to save the life or health of the mother is permissible?
If so, does health include mental health?
If so, is she disagreeing with Dr. Smith’s statement that medical necessity is a decision best for the provider to decide?
If so, does this threat apply to medicinal abortions? If so on this point, how do these procedures harm supplies of protective gear or use hospital beds?
Finally, does the attorney general plan action — and under what legal argument — to stop abortions that providers determine are necessary.
When this debate first arose, Rutledge deferred to the Health Department. No longer, it appears. Now she’s spoiling for a fight.
She’ll have cheerleaders:
Family Council President Jerry Cox issued a statement praising Attorney General Rutledge, Governor Hutchinson, and Secretary of Health Dr. Smith for their leadership during the pandemic.
“This is the right thing to do,” Cox said. “I have personally driven by Arkansas’ abortion facilities this week. Their parking lots have been full of cars, and some of the vehicles have had license plates from out of state. Telling abortion facilities that they cannot perform elective abortions during this time will help preserve medical resources and slow the spread of the coronavirus.”
Family Council will continue to monitor and report on this situation as it develops.
Where the rights of women and sexual minorities are to be trampled, the Family Council is there.