UPDATE: Federal Judge Kristine Baker today issued a temporary restraining order in the ACLU’s attempt to prevent four anti-abortion restrictions in a 2017 Arkansas law from taking effect immediately.
The order is in place until Jan. 5.
It is a med school lesson on the dangers to which women are subjected by the state’s attempt to block the most commonly used second-trimester abortion procedure; thorough debunking of the state’s spurious pre-texts for claiming the law does not effectively prevent its use, and important information about the failures of local law enforcement to protect women.
She illustrates why providers are chilled from providing abortions by such laws.
It also demonstrates how the requirement for a production of medical records invades a woman’s privacy; debunks its arguments on prying into lives of women younger than 17 (virtually all of whom in the only provider’s experience have had parental consent).
The temporary restraining order is not as powerful as an injunction, but it is issued only if a judge finds threat of irreparable harm; public interest, and the likelihood of success.
Baker had earlier rejected a motion by the state to dismiss and allowed the plaintiff, Dr. Frederick Hopkins, to file an amended complaint adding a plaintiff, Little Rock Family Planning, and additional state defendants to ensure all bases are covered in the protracted legal wrangling, which will continue whether a temporary restraining order is issued.
The state passed a law to outlaw the most common and safest procedure for performing second-trimester abortions; to require reports to police of abortions for women younger than 16; to allow inspection of medical records for a woman who seeks an abortion after knowing the sex of the fetus, and setting rules for disposal of fetal remains.
Judge Baker enjoined the 2017 law under precedents in other states. The 8th Circuit lifted that order, citing a mixed ruling by the U.S. Supreme Court state in which Chief Justice John Roberts seemed to open the door for a move away from precedents. Roberts said the courts shouldn’t weigh obstacles against the benefits of such laws but only consider whether a law imposes a substantial obstacle to abortion.
That was at issue in whether Baker should again issue an order to stop the law from being enforced. The state contends the law does not present a substantial obstacle. The plaintiffs contend it will put Little Rock Family Planning out of the business of medical abortions and deprive three women of abortions scheduled this week. That, of course, was the aim of the law.
Baker wrote today:
Record evidence demonstrates the threat of irreparable harm if defendants are permitted to enforce these four laws which this Court determines Dr. Hopkins and LFRP are likely to succeed in proving are unconstitutional under the undue burden standard; women seeking abortion care in Arkansas with currently scheduled appointments and procedures will be barred from exercising their constitutional rights due to laws which this Court determines Dr. Hopkins and LFRP are likely to succeed in proving are unconstitutional under the undue burden standard.
For the reasons set forth in this Order, the Court grants Dr. Hopkins and LRFP’s motion for temporary restraining order and temporarily enjoins the enforcement of these four laws to preserve the status quo until the merits of Dr. Hopkins and LRFP’s pending motions, and defendants’ pending motions, are determined. Previously, this Court determined that “[t]he undue burden analysis requires this Court to ‘consider the burdens a law imposes on abortion access together with the benefits those laws confer.’”
Based on the Court’s findings, the Court determined that, under the Whole Woman’s Health analysis, each Mandate as challenged has the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus for whom the Mandate is relevant
From the ACLU:
In response to litigation from the ACLU, the ACLU of Arkansas, and the Center for Reproductive Rights, the U.S. District Court for the Eastern District of Arkansas issued an order blocking four anti-abortion laws in Arkansas hours after they took effect. While the laws were in effect today, clinics were forced to cancel appointments and were only able to offer medication abortion.
Last week, the Eighth Circuit Court of Appeals denied a request for en banc rehearing of an Aug. 2020 decision that paved the way for the abortion restrictions to go into effect. The ACLU and the Center for Reproductive Rights then asked the district court to block the laws that would completely prevent many people from obtaining abortion care, create intrusive and stigmatizing requirements that violate patients’ privacy rights, and leave the state with even more limited access to abortion. The litigation is supported by several medical experts and five previous Arkansas abortion patients who spoke to the devastating impact the laws would have if enforced.
“Access to abortion in Arkansas has been preserved — for now,” said Ruth Harlow, senior staff attorney in the ACLU’s Reproductive Freedom Project. “We are gratified that the court recognized the irretrievable harm these laws would cause to patients, and that it stepped in quickly. We have a fight ahead of us to ensure that no one is turned away, punished, or humiliated when trying to exercise their right to abortion in Arkansas — and we are not backing down.”
“We’re relieved these harmful and unconstitutional restrictions have once again been blocked by the courts,” said Holly Dickson, executive director of the ACLU of Arkansas. “These laws would decimate access to abortion in Arkansas at a time when families are already struggling to get care. It shouldn’t take a court order to force Arkansas politicians to respect the basic human rights of the people they serve. That’s why we’ll continue to fight in the courts, in the capitol, and in communities to defend the right of every Arkansan to make their own personal medical decisions.”
“Today, we got a preview of what would happen if these laws took effect permanently,” said Jenny Ma, senior staff attorney at the Center for Reproductive Rights. “It caused uncertainty about whether Arkansans can have access to abortion care and forced patients to be turned away, which is absolutely unacceptable. We will continue to fight these laws in court and are relieved they are blocked for now.”
The lawsuit was filed by the ACLU, the ACLU of Arkansas, the Center for Reproductive Rights, and the law firm of O’Melveny & Myers LLP on behalf of Frederick W. Hopkins, M.D., M.P.H. and Little Rock Family Planning Services.
From the attorney general
“I am disappointed in Judge Baker’s decision to again temporarily block Arkansas laws protecting young girls from predators and sex traffickers, protecting girls from sex-selective abortions, and prohibiting particularly barbaric abortion practices. Arkansas has repeatedly prevailed when it has appealed similar rulings by Judge Baker and will ultimately do so again.”