Agency set to again take on abortion law
Latest ruling in case supports enforcement
Planned Parenthood will try again, in a hearing set to begin at 10 a.m. Friday in Little Rock, to get a federal judge to issue an injunction to halt the enforcement of a law that effectively stops the clinics from performing abortions in Arkansas.
The hearing was requested after the U.S. Supreme Court declined last week to review a federal appellate court’s ruling that had dissolved a previous injunction U.S. District Judge Kristine Baker issued in 2016.
That injunction had stopped enforcement of a law passed by state legislators in 2015 requiring any doctor who performs a pill-induced abortion to have a signed contract with an obstetrician-gynecologist with hospital admitting privileges who will be available in the event of complications. Without such a contract, a doctor performing a medication abortion would face civil and criminal penalties.
Planned Parenthood, which performs only pill-induced abortions at its two Arkansas clinics, one each in Little Rock and Fayetteville, said it cannot find a single doctor meeting those
requirements who is willing to contract with the organization.
Neither the state Medical Board nor the state Department of Health keeps track of how many physicians in the state have hospital admitting privileges, which allow doctors to admit patients and use the hospital’s facilities.
However, many hospitals across the country won’t grant admitting privileges to a doctor who performs abortions, often because the hospital is religion-based or, doctors said, because abortion can create a backlash in the community and attract protests by anti-abortion activists that could endanger the welfare of hospital staff members.
Stephanie Ho, the sole named plaintiff in the Arkansas case and a doctor who provides medication-induced abortions at the Fayetteville clinic, said in an affidavit that in 2015 and 2016, she and other Planned Parenthood staff members contacted every ob-gyn in Arkansas that they could find, to no avail. She said they renewed the effort in August, again finding no doctors with admitting privileges who were willing to contract with the agency.
“Some physicians or group practices informed us that they do not support a woman’s right to access abortion and would not help us,” Ho said. “Others stated that they simply could not work with us, and at some group practices, the front desk staff was so hostile … that they would not even let us speak to the physicians and refused to take messages.”
According to the Medical Board, there are 6,445 medical doctors in Arkansas, about 335 of which are obstetricians and gynecologists.
The Health Department requires all Arkansas physicians who are granted hospital admitting privileges to meet a host of educational and legal requirements, and each hospital has its own set of requirements as well, some of which seek to prevent the hospital from becoming embroiled in abortion politics, doctors said.
Some doctors have admitting privileges at several hospitals, while others don’t seek hospital privileges at all because they don’t work with patients in a hospital setting or they don’t want to adhere to all the requirements, such as attending hospital meetings.
Patients can be admitted to hospitals regardless of whether their physicians have admitting privileges or contracts with other doctors with admitting privileges. But according to a 2015 report by the American Public Health Association, nine states enacted hospital admitting privilege laws between 2011 and 2015, as a means of “targeted regulation of abortion providers.” The nine states included Texas but not Arkansas. The other states are Alabama, Kansas, Louisiana, Mississippi, North Dakota, Oklahoma, Tennessee and Wisconsin.
In a 70-page order granting the previous injunction to halt the Arkansas law March 14, 2016, Baker said: “There is evidence in the record that physicians who provide abortions or associate with physicians who provide abortions risk being ostracized from their communities and face harassment and violence toward themselves, their family, and their private practices. Even if a physician is willing to take on these risks, there is evidence … that many private practice groups, hospitals, HMOs, and health networks will not permit physicians working for them to associate with abortion providers.”
She determined that the access burdens created by the law — such as forcing women to drive to Little Rock from the far corners of the state to visit the only clinic that provides surgical abortions or visit clinics out of state, often after taking off work, arranging for baby sitters or finding rides — outweighed its safety concerns.
Three months later, on June 27, 2016, the U.S. Supreme Court ruled 5-3 in a case known as Hellerstedt v.
Virginia that Texas couldn’t place restrictions that create an undue burden for women seeking abortions. The case centered on a Texas law that was similar to the Arkansas law, but the Texas law required the abortion doctor to have the hospital admitting privileges and required the designated hospital to be within 30 miles of the doctor’s office.
The majority opinion was written by Justice Stephen Breyer and was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. It said the admitting privileges requirement and another provision of Texas law requiring abortion clinics to have costly hospital-grade facilities don’t offer medical benefits sufficient to justify the burdens that each provision places on women’s access to abortion.
“Each places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution,” Breyer wrote of the Texas law.
A three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis — consisting of then-Chief Judge William Jay Riley of Omaha, Neb., Circuit Judge Raymond Gruender of St. Louis and U.S. District Judge James E. Gritzner of Iowa, sitting by designation — dissolved Baker’s injunction against the Arkansas law July 28 and remanded the case to her court for more specifics on the number of women who would forgo or delay abortions because of the law. The panel didn’t rule on the constitutionality of the law.
The 8th Circuit let the injunction stand while Planned Parenthood appealed to the U.S. Supreme Court, but the law — which was first scheduled to go into effect Jan. 1, 2016 — officially took effect Thursday, when the case was transferred back to Baker’s court.
Since then, the law has effectively prohibited any medication-induced abortions in Arkansas. This has affected not only Planned Parenthood’s two clinics, but the only other abortion provider in the state, Little Rock Family Planning Services, which still provides surgical abortions — in which the fetus is removed with instruments, with or without anesthesia, on one visit.
Updated statistics cited in court documents say that in 2017, 653 women received medication abortions at Planned Parenthood’s Fayetteville clinic and 190 women underwent the procedure through the Little Rock clinic, for a total of 843 medication abortions performed at the health centers in 2017.
The documents said Little Rock Family Planning reported providing 92 medication abortions and 2,334 surgical abortions in 2017.
Medication abortion involves a combination of two prescription pills: mifepristone, which blocks the hormone progesterone, which is necessary to maintain pregnancy. It is administered at the clinic. Then, 24 to 48 hours later, the woman takes a second drug, misoprostol, which causes the uterus to contract and expel its contents.
While the numbers indicate that more women sought surgical abortions rather than medication abortions, Ho and a representative of Little Rock Family Planning indicated that women in Arkansas are increasingly seeking medication abortions. But the pill-induced abortions are available only in the first nine weeks of pregnancy. They are prohibited for women who are further along, including those who didn’t know they were pregnant that early.
Ho cited a national statistic that in 2011, 71 percent of women favored medication abortion. She cited another national report that in 2014, medication abortions accounted for 31 percent of all nonhospital abortions and 45 percent of abortions before nine weeks’ gestation.
Ho said her patients who have had strong preferences for pill-induced abortions have said they are afraid of a surgical procedure; believe medication abortion is more natural, like a miscarriage; or want to complete the procedure in the privacy of their own homes, or with another person there to support them.
In an affidavit, Lori Williams, a nurse practitioner who is clinical director of Little Rock Family Planning Services, said some patients, such as victims of sexual assault, want to avoid having instruments in their vaginas. She said other patients have medical conditions, such as severe vaginismus or large fibroids, “that make medication abortion medically indicated.”
Cost is generally not a factor in a woman’s decision to opt for surgical or medication abortion, according to the providers. While the in-office surgical procedure costs $600 to $700, depending on whether sedation is required, the cost for medication abortion is “not a significant difference,” according to Little Rock Family Planning Services.
Patients are required to pay for the procedure upfront, and insurance companies rarely pay for abortions in Arkansas — usually requiring that the procedure be medically necessary.
Planned Parenthood’s renewed motion for a temporary restraining order cites various figures in which researchers determined how many women would be negatively affected by the law’s restrictions, depending on how far they must travel to Little Rock from various counties and surrounding states, in an effort to satisfy the 8th Circuit panel’s directions.
“Approximately half of women seeking abortions in the United States are poor, which is commonly defined at being at or below 100 percent of the federal poverty level,” according to Colleen Heflin, a senior research associate at Syracuse University. She said in an affidavit, “I understand that this is the case for medication abortion patients at the Fayetteville health center as well, with 57 percent of them being at or below 110 percent of the federal poverty level.”
Although Planned Parenthood said in 2015 that the new law was designed to put its clinics out of business, Ho said last week that she has several other patients besides abortion patients to keep her and the clinic busy.
Emily Miller, a spokesman for Planned Parenthood Great Plains, which operates both Arkansas clinics, said Friday that “medication abortion isn’t the largest part of the services they offer” and that “our doors are still open.”
According to the Medical Board, there are 6,445 medical doctors in Arkansas, about 335 of which are obstetricians and gynecologists.