Little Rock Family Planning Services has filed a “status report” with federal Judge Kristine Baker in support of its argument that at least six women will be denied abortions by the 8th Circuit Court of Appeal’s decision yesterday to reimpose the state abortion ban. Among others, it asks for a delay in a hearing because of the uncertain nature of state abortion rules.
A hearing had been set Friday morning. The clinic asks that it be canceled because it might be moot, depending on the final terms of a promised state order opening the day to elective procedures Monday, April 27.
The 8th Circuit Court of Appeals ruled yesterday that it was fine for the state to ban abortions until at least May 11 because of the supposed emergency conditions created by the coronavirus crisis.
Gov. Asa Hutchinson and Health Director Nate Smith announced yesterday that the ban on elective medical procedures — which had been used to ban abortions after a period of allowing them — was to be lifted Monday. Some restrictions are expected, including no overnight hospital stays and steps to be sure infected people aren’t treated. Smith had said yesterday the requirements might include a coronavirus test within 48 hours of a procedure.
A key point in the status report addresses the root of the 8th Circuit’s unsupported finding that a sufficient health emergency existed to deprive women of their constitutional right to an abortion in specific, timely cases:
During a press conference yesterday afternoon, Governor Hutchinson and ADH’s Dr. Nathaniel Smith announced that ADH will release today a Directive that will (i) replace the April 3 Directive, and (ii) be effective April 27, 2020.
During the press conference––and despite Defendants’ statement to this Court as recently as Tuesday, April 21 that a ban on surgical abortions is necessary in view of PPE-related “concern[s],” Dkt. 153––the Governor stated that Arkansas now feels “comfortable” with its PPE supply.
And––again, contrary to Defendants’ statements earlier this week that surgical abortion care must be banned in view of an urgent need to reduce social contacts, Dkt. 153––the Governor also previewed announcements coming next week regarding the re-opening of restaurants, gyms, beauty salons, and barbers.
Plaintiffs have yet to review the April 27 Directive, and it is unclear whether and to what extent the C&D Order will continue.
The absence of that directive so far is interesting. Might it be in a state that has been deficient in testing and has complained frequently about the shortage of necessary testing materials is hearing objections from doctors about that testing requirement? Given the difficulties, will it be required for EVERY medical procedure, from a cracked tooth to a breast implant to a so-called “elective” abortion that is no longer medically necessary if a woman is forced to deliver an unwanted or compromised child?
A hearing in the case was scheduled Friday morning.
Plaintiffs do not want to waste the time and resources of the Court, parties, or witnesses by taking live testimony at the evidentiary hearing scheduled for tomorrow, April 24, 2020, that could be mooted within a matter of days by the new, April 27 Directive. Plaintiffs therefore respectfully request that the Court cancel the hearing in view of the current uncertainty, and Plaintiffs will notify the Court next week regarding their intent relating to the First PI Motion. In requesting that the hearing be canceled, Plaintiffs expressly reserve the right to seek to schedule an evidentiary hearing at a future date in connection with any supplemented or revised First PI Motion, or any amended constitutional challenge
But it says relief from the court is still necessary.
Plaintiffs are scheduled to treat two women today who will soon be past the legal limit for abortion care in this State, and are irreparably harmed every day that the Ban on surgical abortion care is enforced.
UPDATE: Judge Baker postponed Friday’s hearing but said she continued to consider the clinic’s request for relief for two women whose time to obtain an abortion may expire. She ordered the state to respond to the request for an order preserving those women’s right to an abortion by 9:30 a.m. Monday. She gave the clinic until 9:30 a.m. Tuesday to respond to the state’s reply.