Arkansas Democrat-Gazette

FOUR OTHER lawsuits challenge state abortion laws.

- LINDA SATTER

In addition to a lawsuit awaiting review by the 8th U.S. Circuit Court of Appeals, four other suits challengin­g Arkansas abortion laws are winding their way through the courts.

The other pending cases and their current statuses are as follows:

Planned Parenthood v. Cindy Gillespie, Director of the Arkansas Department of Human Services, case No. 4:15cv566.

Known as the Medicaid funding case, it led U.S. Circuit Judge Kristine Baker in 2016 to impose injunction­s preventing the state from cutting off the funds for Planned Parenthood services. Medicaid already didn’t cover abortion, so the services that Medicaid will no longer cover, under the 2015 directive, are family planning and preventive health care services such as cancer screenings, testing and treatment for sexually transmitte­d illnesses, and birth control.

A three-judge panel of the 8th Circuit later voided Baker’s injunction­s — first affecting only the three anonymous women who sued and later being applied to all Medicaid patients in Arkansas who use the services — without addressing the merits of the case. The appellate court said it couldn’t go further after deciding that the three anonymous women who sued didn’t have a constituti­onal right to pursue a private right of action.

While the issue of whether the women are entitled to pursue a private right of action has been decided — at least for now — in the seven states in the jurisdicti­on of the 8th Circuit, attorneys for Planned Parenthood have cited alternate rulings by several of the nation’s other circuit courts in an effort to keep the issue alive before Baker, who they say may still consider the core issues in the case.

Those issues are whether the Medicaid funding cutoff violated the federal Medicaid Act or the women’s due process and equal protection laws.

Late last month, Baker lifted a short stay that, at the state’s request, kept attorneys from starting the time-consuming process of gathering informatio­n to defend or attack the constituti­onal claims.

Baker said she will eventually set separate hearing dates on each argument, with one hearing focusing on whether the defunding violated the federal Medicaid Act and the other on whether it violated the plaintiffs’ constituti­onal rights.

Meanwhile, she hasn’t yet decided the state’s request that she decertify the class.

After the 8th Circuit refused to revisit the panel’s Aug. 16 ruling invalidati­ng the injunction­s, Planned Parenthood cut off services in January to Medicaid patients. It operates one clinic each in Little Rock and Fayettevil­le.

Planned Parenthood v. Pulaski County Prosecutor Larry Jegley and the state Medical Board, case No. 4:15cv784.

This case challenges the constituti­onality of Act 577 of 2015, which required physicians performing abortions in Arkansas to have admitting privileges at a local hospital, which abortion providers saw as a way to effectivel­y stop them from providing abortions.

Baker issued an injunction in March 2016 blocking enforcemen­t of the law, and the state appealed, leading the 8th Circuit to lift the injunction. However, the law still isn’t being enforced because the 8th Circuit agreed to stay its ruling to allow Planned Parenthood to petition the U.S. Supreme Court, citing conflictin­g rulings in other circuits across the country.

The Supreme Court hasn’t yet decided whether it will hear the appeal.

Planned Parenthood & Little Rock Family Planning Services v. Nathaniel Smith, director of the state Department of Health, case no. 4:17cv40.

This case challenges Section 2 of Act 383 of 2017, which was changed in the 2017 legislativ­e session to require mandatory license suspension­s of abortion clinics — but no other types of health clinics — if health inspectors find any violation during routine or surprise inspection­s, regardless of whether the violation concerns patient health or safety.

The case is assigned to U.S. District Judge James Moody Jr., who heard arguments Aug. 10 on the plaintiffs’ motion for a preliminar­y injunction to stop its enforcemen­t. Attorneys have submitted written briefs to bolster the arguments they made in the hearing, and they are awaiting a ruling.

Meanwhile, directors of the clinics said in December that surprise inspection­s occurred in December and minor infraction­s were found, leading them to fear the state would shut the clinics down. The state hasn’t done so, and Attorney General Leslie Rutledge’s office has argued that the lack of action demonstrat­es that the clinics’ concerns are overblown.

The clinics also say the law violates the Equal Protection Clause of U.S. Constituti­on by singling out abortion clinics.

Planned Parenthood v. Gillespie, case No. 18-591-1 in Washington County Circuit Court.

This case was filed March 2 and is Planned Parenthood’s appeal of the administra­tive decision that resulted in Medicaid funds being discontinu­ed.

The state Department of Human Services sought to terminate Planned Parenthood as a Medicaid provider after the governor cited widely distribute­d, secretly recorded videos, later discredite­d, that claimed to show unethical behavior at Planned Parenthood affiliates in other states. In the federal case, attorneys for the state argued that Planned Parenthood had to pursue an administra­tive remedy first.

The lawsuit says Planned Parenthood has 56 affiliates that provide medical services across the country and “each is an independen­t corporatio­n with its own independen­t board, CEO [chief executive officer], finances, operations, and decision-making.”

The affiliates must adhere to medical and other standards promulgate­d by Planned Parenthood’s national office, Planned Parenthood Federation of America, to operate under the name, it says.

It argues that the Planned Parenthood clinics in Arkansas “have never participat­ed in fetal tissue donation,” as the videos alleged of other affiliates, and that the Arkansas clinics were unfairly targeted by the governor.

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