Arkansas may help define battle over abortion

When FAYETTEVILLE, ARK. — a patient arrived this spring at the only abortion clinic in western Arkansas, the doctor had startling news: A new state law had gone into effect, and clinics could no longer perform abortions via medication in the state.

“Wait — all of Arkansas?” the patient asked her doctor, Stephanie Ho.

“Yes,” Ho remembered replying.

Less than a month later, a judge suspended the law, which is now the focus of a legal fight as Arkansas tries to reinstate it. In the meantime, Ho is working at one of the three remaining abortion clinics in the state, aware that, at any moment, she might have to stop performing abortions again.

The fight in Arkansas could help define the looming legal battle over abortion, 45 years after the Supreme Court made it a constitutional right. There are 13 abortion cases currently before federal appeals courts, including the Arkansas case, and legal experts say any of them could be the first to reach the Supreme Court after Justice Anthony Kennedy’s retirement. Others include a parental consent law in Indiana, a ban on a common second-trimester abortion procedure in Alabama, and a requirement in Kentucky that ultrasounds be displayed and described.

The president’s nomination of Brett Kavanaugh, a conservative federal judge, for the Supreme Court has added urgency to the question of whether Roe v. Wade will survive the Trump administration. In response to questions about abortion during his confirmation hearings this week, Kavanaugh said he understood the significance and would respect the Supreme Court’s “precedent on precedent.”

But many legal experts say the more likely outcome of the change on the court, at least in the near term, will be less sweeping: States like Arkansas will get their way with smaller cases that reduce — but not eliminate — the right to an abortion.

Arkansas is in the heart of a broad band through the country’s middle and south where abortion access in most states is already down to a few clinics. This map formed gradually, abortion rights advocates say, as red states passed laws that tested the boundaries of abortion restrictions, and federal appeals courts — in particular in the 8th and 5th circuits — upheld them.

Federal appeals courts, the last stop before Supreme Court, have final say in most cases, because the Supreme Court takes very few.

When the medication abortion law went into effect in Arkansas, it left only one clinic for a state of 3 million. That meant women from northwest Arkansas, where Ho practices, had to either go out of state or make a 380-mile round trip to Little Rock for a surgical abortion.

Now the number of clinics is back up to three. But many other barriers remain: a ban on abortions after 20 weeks; a 48-hour waiting period, which requires women to make two or three trips to the clinic; parental consent for minors; doctors unable to dispense medication abortion pills remotely by video.

“If you’re a woman in Arkansas, and you’re almost 200 miles away from a clinic, have a 48-hour waiting period, and a job that doesn’t give you sick leave or flexible hours, then your access to abortion has already been banned,” said Helene Krasnoff, head of litigation at Planned Parenthood Federation of America. A regional branch of the organization, Planned Parenthood Great Plains, runs the clinic in Fayetteville, which provides medication abortion only.

The Arkansas law requires providers of medication abortion to have a written agreement with an obstetrician-gynecologist who has admitting privileges in a local hospital. Arkansas legislators who supported it said law protects women’s health by adding a layer of safety if something goes wrong.

But the clinics disagreed, saying the procedure, which involves taking pills, is very safe, and sued. Meanwhile, all three abortion clinics tried to comply with the law. Ho testified in late June letters were sent to all obstetrician-gynecologists in the state with admitting privileges, asking for required agreements. Planned Parenthood, which runs two of the clinics, including Ho’s, said it sent more than 200 letters. None of the doctors agreed.

“You go through all these years of training, you hit all your milestones, and here comes somebody who knows nothing about what you do and says you are not competent,” said Ho, a general practice doctor with training in performing abortions.

Abortion rights advocates argue the law in Arkansas should not survive because the Supreme Court already weighed in when it struck down a similar law in Texas in 2016. The justices ruled requiring hospital admitting privileges placed an undue burden on women seeking an abortion, violating their constitutional rights.

But because Arkansas is in the 8th Circuit, with judges who tend to be more hostile to abortion, the law stands a chance of being reinstated. Missouri and Louisiana also have laws similar to Texas in federal appeals courts now.