3 abortion clinics’ fears baseless, state filing says
Health inspectors’ recent unannounced visits to the three abortion clinics in Arkansas merely demonstrate that the clinics’ concerns over a new state law are overblown, attorneys for the state said in a new court filing.
The assertion was made in response to Dec. 13 filings by attorneys for Planned Parenthood, which operates clinics in Little Rock and Fayetteville, and Little Rock Family Planning Services, which operates a clinic in Little Rock, informing U.S. District James Moody Jr. that the state had recently cited two of the clinics for minor infractions, putting them in danger of being shut down under the new law. They urged Moody to immediately void the new law.
Moody is presiding over a lawsuit and injunction request the clinics filed June 20, through the American Civil Liberties Union of Arkansas, challenging the constitutionality of Section 2 of Act 383 of 2017, and asking that Moody prohibit it from being enforced.
The section imposes mandatory licensing suspensions on abortion clinics — but not other health clinics — if health inspectors find any violation during routine or surprise inspections, regardless of whether the violation concerns patients’ health and safety.
“From the outset,” attorneys for the state said in the filing Friday, the lawsuit “has been based on nothing more than [the clinics’] speculation that, if one of their abortion facilities were found to be in violation of any of the Department of Health’s regulations, Arkansas Code Annotated Section 20-9-302 would require the Department to suspend or revoke its license to operate.”
In fact, they said, “the re-
sults of [the plaintiffs’] annual inspections showed that their speculation was erroneous.”
Since Moody held a hearing Aug. 10 on the clinics’ motion for a permanent injunction to void the law, which he took under advisement while awaiting additional filings by both sides, officials found one violation apiece in surprise November inspections at the Little Rock Family Planning Clinic and Planned Parenthood’s Fayetteville clinic.
Little Rock Family Planning was cited for failing to list the local phone number for the American Red Cross on its emergency contacts list, while the Fayetteville clinic was cited for using cloth booties to cover stirrups on an ultrasound exam table without changing or cleaning them between patients, according to an affidavit filed Friday by Becky Bennett, section chief of Health Facility Services for the Health Department.
Attorneys for the clinics argued that the citations put the clinics in danger and indicated an urgent need for an immediate finding that the law violates the equal protection clause of the U.S. Constitution.
But attorneys for the state said, “Plaintiffs corrected those violations; the Department requested confirmation of the corrections; Plaintiffs provided that confirmation; and the matters are now closed. Plaintiffs’ licenses are and have for all relevant times remained in good standing. Thus, Plaintiffs have still failed to present a justiciable case or controversy, and their claims still have no merit.”
Deputy Attorney General Monty Baugh called the clinics’ supplementary arguments filed in December “inaccurate” and “a preposterous interpretation of the Act.”
He said the Health Department notified each facility by letter of the violations found, and the letters said the department understood that the violations had already been corrected.
“The Department simply required Plaintiffs to fax a statement to the Department within thirty days confirming the violations had been corrected,” Baugh wrote.
He said the clinics “erroneously refer to those letters as ‘Notices of Suspension,’ going so far as to use capitalization to imply that this is actually the official title of the document. But a cursory review shows the opposite. The phrase ‘Notice of Suspension’ appears nowhere on the letters, and for good reason — the letters did not operate to suspend Plaintiffs’ licenses.”
On the day after the clinics filed their supplementary arguments based on the letters, the department informed them that their licenses wouldn’t be suspended, he said, adding, “Indeed, because the violations had been corrected, no suspension could be issued. “
To challenge a state law in federal court, a plaintiff must demonstrate he has suffered a particular, concrete injury — not an injury that is “conjectural or hypothetical, ” Baugh wrote.
“Pre-enforcement, Plaintiffs disingenuously claimed that it was just a matter of time before their facilities would be inspected, they would be found to be in violation of Department regulations, and would thereafter be subject to a mandatory license suspension. Yet contrary to Plaintiffs’ speculation, their facilities were inspected, violations were found, and all of their licenses remain in good standing.”
He said that while the clinics claim the post-inspection letters “constitute some type of penalty, punishment, or sanction,” the letters merely gave formal notice of violations and alerted them that their operating licenses would be suspended if they didn’t correct the violations or request a hearing within 30 days.
Baugh argued that the clinics’ worries about the repercussions of the inspections, then, “are likewise much ado about nothing.”
The deputy attorney general also argued that the clinics’ claims that the new regulations are imposed on abortion facilities alone, in violation of the Equal Protection clause, are “absolutely false,” as any health facility’s re-use of unsterilized cloth coverings on exam table surfaces violates a Health Department requirement to guard against cross-contamination of patients, which “applies not only to abortion facilities but to all licensed health-care facilities.”
Baugh also argued that “maintaining a readily available list of emergency contact numbers, including the American Red Cross, is a historical requirement based on common-sense practice.”
The clinics said last month that they had never had the Red Cross number on their emergency list, and had never before been cited for not including it.