The ACLU went back to federal court last night in behalf of women denied an abortion in Arkansas before a state ban expires.
The American Civil Liberties Union and the ACLU of Arkansas filed emergency legal action tonight on behalf of Little Rock Family Planning to ensure patients in Arkansas can get an abortion if delaying their abortion until the expiration of the state’s emergency order would push them past the state’s legal limit for abortion care.
Earlier today, the Eighth Circuit Court of Appeals issued an opinion permitting the state of Arkansas to ban procedural abortions during the COVID-19 pandemic. In doing so, Arkansas became the only state permitted to ban a person from getting abortion, even if postponing their care would entirely bar them from getting an abortion. The ruling reverses an earlier ruling by the District Court for the Eastern District of Arkansas blocking the state’s efforts to use the guise of the public health crisis to prevent abortion services.
“We cannot sit by as patients in Arkansas are forced to continue a pregnancy and have a child against their will,” said Ruth Harlow, senior staff attorney, ACLU Reproductive Freedom Project. “Abortion is essential, time-sensitive health care — and banning it is unconscionable and unconstitutional at any time. But to do so during a pandemic, when people are already struggling with so much — losing work, keeping their families healthy, and making ends meet — is unthinkably cruel. It’s clear the state’s actions are simply about furthering an anti-abortion agenda, and we are fighting back.”
“People can’t pause their pregnancies, but this politically-motivated ban would force some people to delay care to the point when abortion would no longer be a legal option,” said Holly Dickson, interim executive director and legal director at the ACLU of Arkansas. “We’re asking the court to intervene and preserve access to those patients for whom a delay would mean being completely cut off from care and forced to continue pregnancies against their will.”
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.”
This lawsuit was brought by the American Civil Liberties Union (ACLU), the ACLU of Arkansas, the law firm of O’Melveny & Myers, and Little Rock lawyer Bettina Brownstein on behalf of Little Rock Family Planning Services.
The 8th Circuit upended precedent yesterday by barring surgical abortion as long as a state ban was in place, ignoring evidence that enforcement was selective, not beneficial to the state for health purposes and essentially a response to political pressure. The proof of its lack of emergency justification was Gov. Asa Hutchinson’s announcement three hours after the court order came down that the ban on all elective procedures would be lifted Monday.
The latest filing is filed in behalf of a Jane Doe who seeks anonymity “due to her reasonable fear of harassment by anti-abortion extremists and retaliation by prospective employers.”
The filing is accompanied by numerous new exhibits addressing what the 8th Circuit perceived to be factual shortcomings in the original case, including expert testimony on the health damage in denial of abortion access and the fact that the state’s elective procedure ban is not being applied equally to all medical providers. Dentists, for example, may fix a cracked tooth, but women are barred from abortion. The suit also filed information obtained from public records that indicate other medical facilities have continued procedures during the shut-down period. The records don’t reflect any were swooped down upon as Little Rock Family Planning was and ordered to cease, with patients in the waiting room.
Without a restraining order, the request says, Little Rock Family Planning will have to turn away two women today who will soon be past the limit for a legal abortion.
Clinic Director Lori Williams also submitted a statement:
Under the terms of the April 3 Directive Regarding Elective Surgeries from the Arkansas Department of Health (Dkt. 134-7), LRFP can continue providing surgical abortions to the extent that LRFP clinicians exercise their good-faith, professional judgment to determine that the procedure cannot “be safely postponed,” is “urgent,” or delay would “risk … progression of staging of a … condition.”
Pursuant to the C&D Order (Dkt. 134-1), however, LRFP’s clinicians cannot exercise their professional judgment to determine whether to provide surgical abortion care. Rather, LRFP must “immediately cease and desist the performance of surgical abortions, except where immediately necessary to protect the life or health of the patient.”
LRFP is scheduled to provide surgical abortion care to at least six patients who would be pushed past the legal limit for abortion care in Arkansas if forced to wait until May 11, 2020 (or longer), including two who are scheduled to begin a two-day procedure tomorrow, April 23, 2020.
The ACLU lawyers said they’d notified the state of their intention to file this request. The state did not respond and, as of this morning, had made no filing in the case.