Appellate judges hear sides in abortion law case

A three-judge panel of federal appellate judges spent half an hour Tuesday morning peppering attorneys for Arkansas and Planned Parenthood with questions about the benefits and burdens of a 2015 state law placing new restrictions on medication-induced abortions.

Nearly one year ago a federal judge in Little Rock blocked the state from enforcing the law Planned Parenthood contends is unconstitutional because it would force some women to drive unreasonably long distances to obtain surgical abortions, which would be available only in Little Rock. Planned Parenthood also said the law would unfairly limit women to surgical abortions, increasing safety risks.

The state’s appeal of U.S. District Judge Kristine Baker’s preliminary injunction, which led to Tuesday’s arguments, has stalled the case from going forward for a ruling.

The three judges who heard arguments at the 8th U.S. Circuit Court of Appeals’ headquarters in St. Louis were Circuit Judge Raymond Gruender of St. Louis, Chief Judge William Jay Riley of Omaha, Neb., and Senior U.S. District Judge James Gritzner of Des Moines, sitting by designation.

Gritzner posed most of the questions to Arkansas’ Deputy Solicitor General Nicholas Bronni, demanding to know why the state insists Baker’s ruling violates precedent and how exactly the law would benefit the state.

Gruender fired questions at Maithreyi Ratakonda of New York, representing Planned Parenthood of Arkansas and Eastern Oklahoma, about how diligently the health care provider tried to find Arkansas physicians with admitting privileges at a designated hospital to contract with Planned Parenthood to provide services in case of complications.

Act 577 requires providers of medication abortions to contract with a physician with admitting privileges at a designated hospital to be available in case of emergencies. Planned Parenthood said it sent out letters to 225 physicians — every obstetrician and gynecologist in the state — in search of any willing to contract with Planned Parenthood, but none responded positively. They said the doctors who explained their refusal noted they can face severe professional and personal consequences for being associated with an abortion provider, even if they support abortion access.

Planned Parenthood runs two clinics in Arkansas, one in Little Rock and one in Fayetteville. Both clinics offer numerous reproductive health services, including medication-induced abortions. But women seeking surgical abortions can get them only at one clinic in Little Rock, Little Rock Family Planning Services, unless they go to a private physician. Planned Parenthood contends the contracting physician requirement is a means of preventing its clinics from providing abortions.

When the lawsuit challenging Act 577 was filed in late December 2015, just before it was to take effect Jan. 1, 2016, it focused on a requirement doctors follow a certain protocol in administering abortion pills. Planned Parenthood said Act 577 required doctors to follow the outdated protocol of the U.S. Food and Drug Administration in lieu of the safer protocol the clinics use.

However, the issue became moot in March 2016, when the FDA updated its protocol to bring it in line with that used in Planned Parenthood clinics and by a growing number of practitioners across the country. That leaves the contracting requirement as the main focus of the lawsuit.

Baker’s 70- page preliminary injunction cited evidence of increased travel distances and costs, both monetary and otherwise, for those who must travel to a clinic multiple times to have an abortion may cause women not to obtain one at all, and would force some women into later abortions “that are both riskier and more expensive, if they can obtain them at all.”

The judge also noted in the order, “Inability to travel to the sole remaining clinic in the state will lead some women to take desperate measures, such as attempting to self-abort or seeking care from unsafe providers, which would further put their health at risk.”

Baker also cited evidence that 42 percent of abortion patients in the country have incomes below the poverty line, and cost is a significant barrier to access. She noted medication abortion has been provided in Arkansas since 2008, and the enforcement of the act creates a threat of irreparable harm to Planned Parenthood and its physician, Dr. Stephanie Ho, and the public interest, outweighing any immediate interests and potential injuries to the state.

“It seems to me that Planned Parenthood came armed with a lot of evidence on the undue burden,” Gritzner told Bronni, of the Arkansas attorney general’s office. “What’s the benefit to the state?”

Bronni said “the burdens here are essentially nonexistent.” He noted Arkansas is a largely rural state and most women live within easy access to Little Rock, so, “any impact on abortion access in Arkansas would be marginal.”

Gritzner also noted Act 577, known as the Abortion-Inducing Drugs Safety Act, “is essentially doing away with medication abortion” in Arkansas.

Bronni disagreed, saying the act doesn’t outlaw such abortions and “They simply have not shown that this will prevent women from having an abortion.”

Ratakonda told the judges, “The defendants suggest that Arkansas can constitutionally eliminate a safe, early form of abortion entirely, and shut down two of the three abortion providers in the state, all due to a requirement that provides no benefits.”

Gruender questioned Ratakonda repeatedly about how Planned Parenthood sought contract physicians to allow them to comply with the law, asking, “Was there any financial offer?”

Ratakonda said there was “no specific financial offer, but Planned Parenthood made very clear why they needed a contracted physician.”

“Are those letters in the record?” Gruender asked, to which Ratakonda replied, “Yes.”

He asked at another point if Planned Parenthood really believed if it offered extra compensation, no physicians would agree to contract with the clinic.

Ratakonda said it isn’t clear, but many of the doctors who refused noted their employers wouldn’t allow them to contract for Planned Parenthood.

“I could see why it would be difficult to get a doctor to volunteer,” Gruender said, emphasizing the last word.

The panel said it will issue an opinion on whether to uphold or reverse the preliminary injunction “in due time.”