The state Health Department issued today the rules that will guide resumption of so-called elective medial procedures effective Monday.

They promptly drew a question from the ACLU, which said a testing requirement could be a bar to abortion,

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Gov. Asa Hutchinson and Health Director Nate Smith said earlier this week that the total ban would be lifted gradually. They said it was safe to do so because the state had adequate supplies of personal protective equipment for health workers and hospitals weren’t unduly burdened with coronavirus patients.

The key part of the new directive:

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This directive emphasizes the need for facilities to understand their capabilities (e.g., beds, testing, ORs) as well as potential constraints (e.g. workforce, supply chain), while watching for possible subsequent waves of the virus, which may require a return to prior restrictions.

Elective procedures shall be limited as follows:

1. Only outpatients with no plans for overnight stay.

2. An American Society of Anesthesiologists rating of I or II. If they are a II-rating, their disease process should be well controlled.

3. No contact with known COVID-19 patients during the past 14 days.

4. Patients must be asymptomatic for COVID-19 per ADH guidelines.

5. Start with a small initial volume of cases and increase incrementally as PPE availability and number of statewide occurrences dictate.

6. Each institution must have an ample supply of PPE for resuming elective procedures while maintaining a reserve should there be a resurgence of the virus. The acquisition of PPE is a matter for each institution to address and is not the responsibility of ADH.

7. For an asymptomatic patient to be a candidate for a procedure, he/she must have at least one negative COVID-19 NAAT test within 48 hours prior to the beginning of the procedure.

These requirements pertain to all elective procedures, including dental, eye, nasopharyngeal, chest surgery, and colonoscopy. Small rural hospitals under 60 beds and critical access hospitals, though strongly advised to follow this directive to maximize resources and minimize risk, are excluded from this directive. The April 3, 2020 directive’s exemptions for medically necessary procedures to preserve a patient’s life or health also remain in effect.

The ACLU of Arkansas issued the following statement:

“While we are still reviewing the governor’s latest order, given the widespread unavailability of testing, we have serious concerns that it will continue to act as a ban on abortion care,” said Holly Dickson, ACLU of Arkansas interim executive director and legal director.

“Arkansas is the only state in the nation that is barring a pregnant person from getting an abortion even if their time to do so is about to expire. Forcing people to stay pregnant and have a child against their will is always unconscionable and unconstitutional. But doing so now, when people are already struggling just to keep their families safe and to put food on the table and keep a roof over their heads – is just unimaginable.”

The governor said yesterday that some hospitals had surplus resources for testing and the state is promoting a “surge” in testing today and tomorrow, but for symptomatic people. UAMS is among the facilities that are said to be well-supplied and Chancellor Cam Patterson said it would provide tests without charge.

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Would UAMS test a potential abortion patient who is asymptomatic and hasn’t been exposed to another infected person? Will private labs provide services to an abortion provider, given the pressure that has been put on medical facilities, doctors real estate agents and others to hamper clinic activities.

A federal court case is proceeding between Little Rock Family Planning Services, the only surgical abortion provider in Arkansas, and Attorney General Leslie Rutledge. Arguments are due Monday and Tuesday in the case before Judge Kristine Baker. An 8th Circuit Court of Appeals ruling reinstated an earlier ban that Judge Baker had set aside.