BACK IN COURT: Little Rock Family Planning

Little Rock Family Planning Services asked a federal court today for a temporary restraining order against the state’s order Friday that the clinic cease providing surgical abortions. It is the state’s only surgical abortion provider.

Gov. Asa Hutchinson was asked about the lawsuit over the abortion clinic closure at his daily coronavirus briefing. He said it was not unexpected but said the state used the same process in stopping abortions Friday that it would apply to any other medical provider. “They chose to take it into court, we’ll see what the court says on that.” He seemed to say all surgical abortions were deemed no medically necessary, a position the state had NOT taken for several days last week.

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The state acted on the pretext that surgical abortions limit protective gear needed in responding to the coronavirus, though the governor has said repeatedly that Arkansas’s low hospitalization rate is a sign efforts to restrict social contact here are working. The state has also objected to travel of women from other states, some with coronavirus hotspots, to seek procedures in Arkansas. The state told the clinic it could lose its license if it didn’t obey the directive.

The state acted Friday after a week in which Gov. Asa Hutchinson and Health Director Nate Smith had declined to say abortions were explicitly targeted by a directive to postpone “elective” medical procedures of all sorts. Anti-abortion legislators were furious and finally the state acted. It modified its interpretation of the original directive on elective procedures to say abortions were not “medically necessary” except to save the life of a woman or her health, meaning failure of a major organ.

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The motion filed today says on behalf of the clinic and Dr. Thomas Tvedten and patients that the state has eliminated the right of women who are more than 10 weeks pregnant to “freely access” surgical abortion care. Pharmaceutical abortions for women up to 10 weeks pregnant are still available at Family Planning Services and one other provider. But several politicians want those procedures stopped, too.

The filing came with exhibits detailing the progress of state efforts to limit medical procedures and including state Sen. Trent Garner’s declaration that the first directive on elective procedures effectively banned abortions. For several days at least, it did not.

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The ACLU, representing the clinic, said in a news release:

Arkansas’ move to block abortion access comes even as the state allows other medical providers to exercise their independent professional judgment and provide care to patients that cannot be safely postponed, including orthodontists who are permitted to schedule visits to adjust wires on patients’ braces, and dentists who can see patients for a cracked tooth.

“Arkansas politicians have been trying to restrict and ban access to abortion for years — passing no fewer than 12 abortion restrictions in 2019 alone,” said Holly Dickson, interim executive director and legal director at the ACLU of Arkansas. “This latest orchestrated attack has nothing to do with public health and everything to do with politicians using the pandemic to violate the constitution and further their extreme agenda.”

“As health care professionals, the health and safety of our patients is our foremost concern, and we are committed to doing everything we can to protect them, our staff, and our community while providing access to essential health care,” said Lori Williams, clinical director at Little Rock Family Planning Services. “Even during a pandemic, pregnant people require health care — whether it is abortion care or prenatal care and childbirth services — and that care cannot be delayed until after the crisis is over.”

The motion says women scheduled for abortions were turned away Friday and 20 more are scheduled, including 12 for whom a pharmaceutical solution is not an option. The motion says plaintiffs had tried to resolve the issue short of litigation, but the state didn’t respond.

The affidavit from clinic director Lori Williams details the clinic’s practice and explains why many women seek a surgical abortion even. She said their procedures require little in the way of protective gear required in coronavirus treatment, primarily gloves and a face mask. She notes that women already face many obstacles and delays in seeking an abortion.

For example, a substantial percentage of our patients are poor or have low incomes, and struggle to raise the finances needed to obtain abortion care. Moreover, as the patient’s gestational age increases, so does the cost of getting an abortion, which can further prolong her access to care. Some of our patients face issues with unsupportive or abusive partners, or a lack of access to medical care to confirm the pregnancy. Some patients, particularly those who are younger or have irregular periods, may not recognize that they are pregnant right away. Others may experience difficulties navigating the medical system, including finding a provider and scheduling an appointment.

 

Based on my counseling conversations with patients, I know that the time, money and effort required to make the necessary plans to come to LRFP cause anxiety and stress, which would only be exacerbated by further travel and logistical arrangements. The need to arrange for time off work on multiple days can be very challenging, and many LRFP patients are in low-wage jobs where they likely do not receive vacation or sick days. Taking time off means less pay, which is extremely burdensome for many lower-income women who struggle to raise the funds for abortion care. These women also routinely report that they risk their employment and confidentiality by asking for time off. Patients who already have children must typically arrange and potentially pay for childcare during the time they are traveling to the clinic and receiving care. Patients must also arrange and pay for transportation, which presents a major challenge in rural Arkansas. There are few public-transportation options, and rural residents often live far away from health-care providers.

The mandated delays imposed by Arkansas law compound the challenges that women face in obtaining abortion care. Arkansas law forces patients to delay their abortions for at least 72 hours after receiving State-mandated in-person counseling. Similarly, Arkansas law requires that an unemancipated minor patient obtain either parental consent or a judicial order excusing them of that requirement before they can receive abortion care. For those that choose to involve a parent, negotiating a time when a parent (who may have work and other obligations) can accompany them to the clinic may delay them from accessing care. And for those who cannot involve a parent, navigating the judicial system in order to obtain the required order waiving Arkansas’s consent requirement likewise causes them to delay their abortion.

 

Every day that one of our patients remains pregnant, she experiences additional financial, emotional, and physical consequences.

The filing notes the state’s claim of a need to preserve medical gear, but also noted small hospitals had been exempted and  also exempted “circumstances that would increase the “threat to the patient’s life if the procedure is not performed,” risk of “progression of staging of a disease or condition if surgery is not performed,” or “there is a risk that the patient’s condition will rapidly deteriorate if surgery is not done.”

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The clinic took steps to respond:

In the meantime, beginning in mid-March 2020, LRFP began to put in place measures to protect its patients and staff by reducing the spread of infection while ensuring that patients in need of time-sensitive abortion care could continue to access our services. LRFP determined that it would cease providing basic gynecological care—i.e., pap smears, STD testing, and contraceptive counseling and services—and that, where possible and permitted by law, prescriptions would be administered over the phone. LRFP also began performing enhanced telephonic and in-person screening of patients for COVID-19 symptoms, and staggering patient appointment times to reduce the number of patients at the facility at any given time, minimizing possibilities for exposure.

LRFP then expanded upon and formalized these precautions in its April 2, 2020 COVID-19 Response Protocol (“LRFP Protocol”).7 That protocol sets forth detailed information about (1) postponement of LRFP services for which delay would not risk harm to the patient (i.e., certain gynecological care); (2) screening patients for symptoms of infection, both telephonically and on site; (3) staggering appointment times in order to minimize in-person contact and shorten the time patients spend in clinical space; (4) spacing individuals at least 6 feet apart in waiting areas to comply with the State’s and CDC’s “social distancing” guidelines; (5) limiting visitors and support people by requiring that they sit in cars or return home until patients are ready to be picked up; (6) performing temperature checks on all individuals entering the building (including staff); and (7) enhancing infection control protocols with frequent clinic sanitization and education of patient etiquette.8 Given these changes, LRFP has only 6-8 patients in the waiting area at any given time, patients undergoing treatment are in individual rooms, and patients are never within 6 feet of each other, including during recovery. In addition, and where applicable, LRFP counsels its patients to seek care at a clinic closer to their home in order to minimize the patient’s travel and risk of exposure during the COVID-19 pandemic.

The LRFP Protocol also states that “LRFP is aware of the PPE shortage our healthcare system is currently facing,” and “is committed to using only the PPE that is necessary to protect [its] patients and staff.”9 As explained above, neither LRFP, nor abortion care in general, requires extensive PPE. LRFP is self-sustaining in terms of PPE for the next several months, and is prepared to switch to cloth/reusable masks should it become necessary. LRFP placed an order for additional PPE through NAF earlier this month, but that order has not yet been filled. LRFP has no intention of utilizing any State PPE stockpiles or resources.

The state was informed of all this. Meanwhile, the normal daily protests outside the clinic increased substantially between April 4 and April 10. Those protestors, the complaint said, didn’t abide by state social distancing guidelines, clumping together in a group of 15 or so.

Major medical groups endorse the continuation of abortion care, Williams said.

Without knowing how long the COVID-19 Abortion Ban will last, it is impossible to estimate how many women will lose their ability to abortion care as a result. As stated, women whose pregnancies exceed 21.6 weeks LMP during the ban will necessarily lose their right to access care under Arkansas law. Additionally, women who do not exceed 21.6 weeks LMP during the Ban’s pendency may nonetheless lose access to abortion care as a result of a backlog in abortion procedures not performed while the Ban is in place. LRFP’s capacity to see surgical abortion patients is approximately 20 to 25 patients per day. Thus, for each day that the COVID-19 Abortion Ban remains in effect, roughly two dozen women that would have otherwise received care are added to an ever-growing “waitlist” that will far exceed LRFP’s immediate capacity.

Pregnant women need medical care, Williams noted. The longer a woman is forced to seek that care, the more burden she adds to the health system. Williams concluded:

In short, enforcement of the COVID-19 Abortion Ban would be devastating, with life-altering consequences for the women and families who come to us in a time of need (e.g., forcing a woman to carry an unwanted pregnancy to term). It would also be an untenable situation for the physicians and staff at LRFP, including myself, who are dedicated to providing compassionate and nonjudgmental health care to our patients.

The filing came in a pending lawsuit challenging other state limitations on surgical abortion.

Judge Kristine Baker has the case. It seeks an ex parte, or immediate ruling without a hearing, because of harm to patients and the clinic and says such an order is justified on the merits. An appeals court covering Texas has upheld a similar ruling in Texas, overruling the district judge. Arkansas is in a different judicial circuit, but it is strongly conservative in abortion rulings.