The 8th Circuit Court of Appeals in a 2-1 decision today granted Attorney General Leslie Rutledge’s motion to overrule District Judge Kristine Baker’s temporary order preventing the state of Arkansas from halting virtually all surgical abortions at Little Rock Family Planning Services.

The appeals court said the unusual step of overruling a temporary order before a trial on the merits was justified here — as the 5th Circuit Court of Appeals did in a Texas case — because of the health threat of the coronavirus. The number of people testing positive and dying “continues to climb both in Arkansas and nationally,” the court said.

The state argued that demand on protective gear and the potential for hospitalization demanded an open-ended halt to abortions. The clinic said it had ample protective gear, required no hospital care for the patients and the ban effectively prevented either a safer procedure or any abortion at all.

But, the court said, “The “peak” of infections in Arkansas has not yet occurred, and if the State were “required to wait and appeal an adverse preliminary injunction, the harms from a . . . suspension of [the ADH directive] for all [surgical abortions] could not be put back in the bottle.”

The opinion was written by Judge Bobby Shepherd of El Dorado and joined by Ralph Erickson. James Loken dissented. The 8th Circuit is generally unfriendly to abortion rights and this isn’t the first time they have set back one of Baker’s carefully crafted opinions.

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The decision immediately halted procedural abortions in Arkansas, except those to save a life or a major organ. Barely three hours after the decision was issued, Gov. Asa Hutchinson announced the state would allow elective medical procedures to resume Monday, which should include surgical abortion if the clinic can meet the guidelines to be set by the Health Department for all medical facilities, including a test for coronavirus within 48 hours of the procedure.

The 8th Circuit’s dire depiction of Arkansas was effectively rebutted by the governor in his afternoon news conference. He said the state has plenty of protective medical gear, plenty of hospital space and the number of cases (not counting prisons) is declining. Bottom line: This anti-abortion court made a political decision and looks fairly stupid given subsequent events.

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The ACLU, which represented the clinic, issued a statement:

Arkansas now joins Texas as the only states where state politicians have succeeded in barring virtually all procedural abortions (sometimes referred to as surgical abortions) during the COVID-19 crisis. In four other state — AlabamaOhioOklahoma, and Tennessee — courts have ruled that attempts to bar abortion care are unjustified by the pandemic and are unconstitutional.

“This is decision contradicts everything leading medical experts have told us about abortion — that it is essential, time-sensitive health care, and it need not and must not be restricted during the COVID-19 crisis,”said Ruth Harlow, senior staff attorney, ACLU Reproductive Freedom Project. “Arkansas has singled pregnant patients out for denial of health care while it lets health care for others continue as the medical facts require. This case is far from over.”

“This ruling defies the advice of leading medical organizations who have warned that blocking abortion care will further endanger people’s health during this pandemic,” said Holly Dickson, interim executive director and legal director at the ACLU of Arkansas. “We’re reviewing the ruling and evaluating all options for preserving abortion access during this dangerous and difficult time. For the health and safety of all Arkansans, state officials need to focus on protecting people from the pandemic, not using the virus as an excuse to advance their own extremist political agendas.”

Leading medical organizations like the American College of Obstetricians and Gynecologists and the American Medical Association have opposed these attempts to restrict abortion during the pandemic. Both groups filed an amicus brief, noting that barring abortions “is likely to increase, rather than decrease, burdens on hospitals and use of PPE. At the same time, it will severely impair essential health care for women, and it will place doctors, nurses, and other medical professionals in an untenable position by criminalizing necessary medical care.”

Attorney General Leslie Rutledge:

With the Eighth Circuit’s decision, there is no longer a judge-made exemption for surgical abortions. Every non-medically necessary surgery must be postponed. The Eighth Circuit also confirmed the procedurally suspect nature of allowing abortion providers to hand-pick the judge that hear their cases.

“All medically unnecessary surgeries must be postponed, and this decision affirms that surgical abortions do not get special treatment,” said Attorney General Rutledge. “The Eighth Circuit agreed with Arkansas that the district court committed a clear abuse of discretion in creating a carve-out from state law for surgical abortions.”

Judge Baker had held that the state order effectively prevented all pre-viability abortions beyond 10 weeks (pharmaceutical abortion remains available for early-term abortions at Family Planning Services and Planned Parenthood.) This is unconstitutional, she said.

The 8th Circuit took a different view. It said the Supreme Court has held states may infringe on constitutional rights in health crises.

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Here, the ADH directive, pursuant to the Governor’s Executive Order, was issued in response to the impact of the COVID-19 pandemic in Arkansas. Accordingly, even assuming, arguendo, that the district court correctly interpreted the directive to be an outright ban on all pre-viability surgical abortions in Arkansas, the directive is not subject to constitutional challenge unless it “has no real or substantial relation to” the public health crisis, or “is, beyond all question, a plain, palpable invasion of” a woman’s right to elective abortion. Jacobson, 197 U.S. at 31; see also In re Abbott, 2020 1685929, at *8 (“[T]he effect on abortion arising from a state’s emergency response to a public health crisis must be analyzed under the standards in Jacobson.”). Aside from summarily stating that its conclusion is consistent with Jacobson, the district court failed to apply that requisite framework and, thus, abused its discretion.

Let us be real: This WAS intended by the state as an invasion of abortion rights. The record is that the governor and Health Department held off enforcement of the directive until pressured by anti-abortion legislators and others to act. It was a political act. The 8th Circuit said the record at the district court didn’t prove that.

The 8th Circuit said it wasn’t convinced Family Planning had sufficient stockpiles of emergency gear and otherwise concluded the directive was directly related to public health.

The court also said the governor’s order expires in 60 days, so it was a delay, not a ban. It was a ban for anyone who had a 60-day window, however.

The court, however, faulted Baker for not adequately analyzing whether the ban amounted “beyond question” to an “undue burden.” Baker’s finding was “second-guessing” of the state, about the benefits of coping with the virus crisis. It faulted her for not fact-finding for the number of women who might be affected by the ban, either by a more complicated method of abortion or entire loss of access. She found that a “large fraction” of women would be affected.

The opinion expressed negative thoughts on another point raised by the state, that the clinic had obtained the order from Baker with an amendment to a pending case over other state-imposed restrictions on abortion. But it said that part of Judge Baker’s decision was not reviewable. It is now moot.

The court accepted at face value that the elective procedure ban applied to all medical procedures. Family Planning argued that all practitioners had the discretion to decide whether certain procedures were necessary. The use of the phrase “medically necessary” was not included in the original order on elective procedures. But subsequently, amid the political furor, the state deemed it to mean, in the case of abortion, the life of a woman or threat to a major organ.

Anti-abortion crusader Jerry Cox of the Family Council was first out of the box with a comment:

“This is a very good decision. It is irresponsible to let abortionists keep performing surgical abortions at a time when other doctors and surgeons have been forced to postpone their operations. Why should abortion clinics be open for business as usual when so many other clinics are closed?”

Here’s the full opinion.