JUDGE KRISTINE BAKER

Federal Judge Kristine Baker has issued a temporary restraining order barring the state from enforcing an executive order preventing surgical abortions at Little Rock Family Planning Services for the duration of the coronavirus crisis.

Advertisement

The clinic, the only surgical abortion provider in that state, was ordered to cease without notice Friday with women, one 17 weeks pregnant, in the waiting room. It contends this presents an undue burden, an unconstitutional restriction on abortion and done only under a pretext to conserve medical gear that might be needed for the crisis.

Here’s her 22-page order, issued late this afternoon.

Advertisement

The judge has under consideration a request for a preliminary injunction, an order that, if issued, would signal the likelihood of prevailing on the merits of the complaint at a full hearing.

The temporary order is in effect through 3:30 p.m. April 28, unless extended. The court will reconsider the matter after the state defendants submit written arguments.

Advertisement

The request was filed Monday. The state had not yet responded, but it can be expected to seek to reinforce the ban. Baker has ruled on the side of abortion rights a number of times and been turned back in some cases by the conservative 8th U.S. Circuit Court of Appeals.

The clinic’s lawyer, Bettina Brownstein, said full abortion services would resume immediately. She had no other comment.

From the ACLU, which is representing the clinic:

“With this order, the court has ensured that essential, time-sensitive health care can continue, and rebuffed Arkansas’ attempts to restrict access to abortion,” said Ruth Harlow, senior staff attorney, ACLU Reproductive Freedom Project. “As leading medical experts have recognized, Arkansas’ and other states’ attempts to prevent patients from accessing abortion care does nothing to protect people from the virus. It just stops people from getting essential care and forces them to continue their pregnancies against their will, which requires substantially more health care resources.”

Arkansas’ move to block abortion access comes even as the state allows other medical providers to exercise their independent professional judgment and provide care to patients that cannot be safely postponed, including orthodontists who are permitted to schedule visits to adjust wires on patients’ braces, and dentists who can see patients for a cracked tooth.

“We are pleased that the court blocked this latest attempt by Arkansas to restrict abortion access,” said Holly Dickson, interim executive director and legal director at the ACLU of Arkansas. “The state’s action had nothing to do with public health, and everything to do with politicians using the pandemic as an excuse to violate the constitution and further their extreme agenda.”

The state Health Department, which stopped abortions with an order Friday, said it would not comment on pending litigation.

Advertisement

From Attorney General Leslie Rutledge’s office:

Attorney General Rutledge is extremely disappointed in today’s decision to blatantly disregard good public health guidelines and temporarily halt the Health Department’s directive without allowing the State to be heard. The Attorney General will take immediate steps to see this decision is reversed.

Long-time abortion foe Jerry Cox of the Family Council:

“This is a bad ruling. It goes against good standards for public health. Why should abortion clinics be open when so many other clinics are closed?”

The judge’s opinion has a different on health standards and whether all clinics are completely closed.

Gov. Asa Hutchinson  declined comment.

Thanks The state had ordered in March the postponement of all “elective” medical procedures. But it had resisted forcing an end to abortion services, including pharmaceutical abortions early in pregnancy provided by Family Planning and Planned Parenthood. Legislative pressure grew and the Health Department issued new guidance Friday saying only “medically necessary” abortions could be performed. But it substituted its judgment for what is medically necessary for that of doctors, which Health Director Nate Smith had said was better practice and is allowed in other areas of practice. Now, said the governor, only abortions necessary to save a woman’s life or prevent t impairment of a major organ qualifies. He ignored a question about whether this meant some women would be forced to carry a pregnancy to term that they didn’t want.

Little Rock Family Planning, represented by the ACLU, filed the request for the order as a supplement to a pending case challenging another abortion law restriction still pending before the 8th Circuit. The complaint said the procedures were safe, was an important part of health care, that women faced obstacles in obtaining the service and there were risks to health when abortion care is delayed or denied. The clinic also argues that it makes no demands on health equipment or hospital beds, the pretext for closing it.

The judge ruled many of the facts were similar to the existing case and allowed the clinic to join it with this issue. She wrote:

On the limited record before it, the Court finds that the Supplemental Complaint Plaintiffs have demonstrated a likelihood of success on their substantive due process argument, irreparable harm should the temporary restraining order not be granted, and that the balance of the equities and the public interest will be served by a temporary restraining order.

In discussing her reasoning, the judge observed that the state had been “targeted” in its approach to limiting normal activities during the pandemic. She cited the order on delay of medical procedures that could be “safely postponed” and some exceptions. But she also noted that Smith had said April 3 the order was not intended to replace a physician’s judgment. She also quoted Gov. Asas Hutchinson on the number of hospital beds that are empty, a point he made even more forcefully at a briefing today at which he said he was “confident” earlier concerns about a lack of hospital bed space in the state were no longer applicable.

As late as April 9, Smith said it would be left to providers to determine what could be postponed. That was reversed by the April 10 order.

Advertisement

From the face of the April 3, 2020, ADH Directive and the April 10, 2020, ADH Ceaseand-Desist Order, defendants appear to have created a conflict or narrowing of the exceptions available to LRFP and its clinicians when determining how to proceed with surgical abortion patient care in Arkansas. The Court is aware of no clarification provided by defendants with respect to this apparent conflict.

The judge quoted the “reality” of abortion services in Arkansas. Mandatory counseling, wait times and return visits are required. They may not be provided by telemedicine. The directive on social distancing limits the number of people who may be in the clinic and the number of procedures that may be performed. Those who do attend must have contact with others, increasing their risk or contracting coronavirus.

This Court has previously examined the law generally directed at pre-viability abortions and the types of abortions offered in Arkansas. The Court concludes that, at this stage of the proceedings, and on the record evidence currently before the Court, the Supplemental Complaint Plaintiffs are likely to prevail on their argument that the Challenged Provisions unconstitutionally restrict pre-viability abortions and, therefore, are facially unconstitutional. The Challenged Provisions prohibit virtually all pre-viability abortions after 10 weeks LMP and prohibit virtually all pre-viability abortions for patients for whom medication abortion is contraindicated. That the ADH Cease-and-Desist Order allows for a very narrow exception for surgical abortions “immediately necessary to protect the life or health of the patient” does not change the Court’s analysis.

The Supreme Court has said states can’t prohibit abortion pre-viability, the judge said. Even weighing supposed benefits of the ban, it places an undue burden on women.

She accepts for now the argument that the state’s pretext doesn’t apply to the Family Planning Services. It is self-sustaining in equipment and has no plans to call on the state for help. It has also adopted social distancing protocols.  Furthermore, “Numerous medical experts have determined that abortion care remains critical, time-sensitive health care that should not be delayed even during this pandemic.” This is in keeping with Supreme Court guidance.

The state order prohibits virtually all abortions after 10 weeks of pregnancy and also those that shouldn’t be done by pills. She said out-of-state providers weren’t a good option. She wrote:

Further, the record supports a finding that enforcement of the Challenged Provisions against LRFP will inflict serious physical, emotional, and psychological injuries on LRFP’s patients by forcing them to delay, or altogether forgo, access to abortion care. When the Court examines the burdens that the Challenged Provisions impose on access to abortion, which is a fundamental right, together with the benefits that the Challenged Provisions are likely to confer, the Court determines that the Supplemental Complaint Plaintiffs are likely to prevail on the merits of their substantive due process claim.

She cited a Supreme Court case upholding a compulsory smallpox vaccination. The state has police power to protect public health, it says. But,

if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution. the police power of a state, whether exercised directly by the legislature, or by a local body acting under its authority, may be exerted in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression.

The report that at least one Arkansas legislator was in a noisy clump of non-distancing protestors Friday when the state arrived to shut the clinic down is indication that this was about politics, not public health.

Four courts have made similar rulings. Baker noted that a divided Fifth Circuit Court of Appeals had overruled a similar order in Texas. But in Texas, the order expires April 21. That the Arkansas order is in force indefinitely “readily distinguishes this case.”

She said no harm would accrue to the state defendants, including Attorney General Leslie Rutledge, from stopping the directive. The objections from abortion foes — think Sen. Trent Garner and Sen. Jason Rapert, along with Rutledge — will be loud, but the only damage to them is losing a round in court.

The judge justified an ex parts order, without hearing from the other party, on account or the potential for harm to women.

The Supplemental Complaint Plaintiffs turned away numerous women seeking care at LRFP on April 10, 2020, and would have to do the same each day thereafter for an indefinite period of time due to the Challenged Provisions. Based on record evidence, there were 8 patients at LRFP to receive surgical abortion care on April 10, 2020, who LRFP had to turn away due to the Challenged Provisions, including a patient at 17 weeks LMP. The Supplemental Complaint Plaintiffs present record evidence that, during the week of April 14, 2020, LRFP has 26 patients scheduled to receive surgical abortion care, including: (1) 12 patients who are more than 10 weeks LMP (i.e., patients who are not candidates for a medication abortion); (2) 8 patients who are more C than 12 weeks LMP and will soon require a D&E instead of an aspiration abortion to terminate their pregnancies if their abortions are delayed; and (3) 3 patients who are more than 17 weeks LMP and will soon require a 2-day procedure instead of a 1-day procedure and very soon will be past Arkansas’s legal limit for abortion care