Attorney General Leslie Rutledge filed her response to the request by Little Rock Family Planning Services that a district judge should again issue a restraining order against a state directive that forced them to stop providing surgical abortions.
The 8th Circuit overruled that earlier order by Judge Kristine Baker. But the clinic, the only surgical abortion provider in Arkansas, filed a new motion saying that the rule had not been enforced equally against all medical providers as the state claimed and also that the 8th Circuit had gone where no other appeals court had gone in saying the expiration of the time period for a woman to have an abortion was no excuse for an exception to the state’s ban on what it calls an “elective procedure” allowed only to save a woman’s life or major organ. It said it had several patients facing this predicament. In theory, no state may bar a pre-viability abortion under existing court precedent.
Rutledge’s response today said the new filing amounts to “little more than” the assertion the 8th Circuit was wrong. But it also notes that the state ban on elective procedures ended today, with certain guidelines under a new executive order.
That new directive relaxes the restrictions on elective procedures and became effective this morning. It permits elective surgeries so long as practitioners take commonsense steps to control the spread of COVID-19 and conserve medical equipment.
Thus, whatever the merits of Plaintiffs’ claim that the April 3 directive would have prevented some women from obtaining an abortion, it is irrelevant now. LRFP may perform elective surgical abortions on the same terms as every other elective surgical provider in Arkansas. The Eighth Circuit has already blessed this statewide approach in dealing with the COVID-19 crisis, and it rejected Plaintiffs’ claim of entitlement to special treatment. This Court should decline Plaintiffs’ request that this Court ignore binding precedent and deny their latest frivolous motion.
The clinic has until tomorrow to respond to the state’s response. It may still provide chemical abortions in any case. It has said it is seeking to meet the terms of the new state directive for testing of patients seeking surgical abortions, but has said it expects that to be a potential bar to providing services.
UPDATE: Little Rock Family Planning also filed a “status report” this morning.
It notes the Health Department hasn’t yet formally withdrawn the earlier directive and is “working diligently” to comply with the new directive, including rapid testing. But it said it cannot comply with that new rule by tomorrow morning, the time limit in the current request for a restraining order.
It asks the court to reopen the earlier proceeding on the basis of new evidence, which other Appeals Courts have allowed. It asks for an extension until Thursday to file arguments. It would drop the pending request for a restraining order if that were to be done, lawyers said.