Expedite abortion law challenge, groups ask

While the law’s sponsor, Rep. Robin Lundstrum, R-Elm Springs, said its purpose is simply to “clean up antiquated language,” the clinics say it was designed to put them out of business.

Attorneys for Planned Parenthood and Little Rock Family Planning Services — which together provide abortion services at three locations in Arkansas — have asked a judge to expedite their challenge of a state law before it goes into effect on July 30.

If Act 383 of 2017 goes into effect as scheduled, it will subject the providers to unconstitutional mandatory license suspension or revocation based on routine results of unannounced inspections that could occur at any time, the attorneys said in a motion filed Monday.

Planned Parenthood of Arkansas & Eastern Oklahoma, doing business as Planned Parenthood Great Plains, operates abortion clinics in Little Rock and Fayetteville. On June 20, it joined with Little Rock Family Planning Services, which operates a clinic in Little Rock, in challenging Section 2 of the newly passed law.

While the law’s sponsor, Rep. Robin Lundstrum, R-Elm Springs, said its purpose is simply to “clean up antiquated language,” the clinics say it was designed to put them out of business. They want U.S. District Judge James Moody Jr. to declare the law unconstitutional, in violation of the equal protection provision of the 14th Amendment.

In asking Moody to decide the matter quickly, the clinics argued that they are entitled to relief “as a matter of law,” negating a need for a hearing.

The lawsuit names as defendants Nathaniel Smith, as director of the state Department of Health, and the department itself. The state hasn’t yet responded to the lawsuit.

An expedited schedule won’t prejudice the department because the plaintiffs are raising “purely legal issues and there are no facts in dispute,” the clinics’ attorneys said.

“The summary judgment motion raises only one relatively straightforward legal issue: whether the Mandatory Suspension/Revocation Provision’s differential treatment of [the clinics] violates the Equal Protection Clause,” the attorneys noted.

The law, passed in this year’s regular legislative session, “sets forth mandatory, draconian, and medically unjustifiable licensing penalties for abortion facilities only,” according to the plaintiffs. The request filed Monday says the challenged provision “dictates that the Defendant must suspend or revoke the license of an abortion facility if it is found to have violated any law or regulation, no matter how minor, and regardless of whether the deficiency poses any threat to patient safety or health — despite the fact that no other licensed healthcare facility in the state is subject to such penalties.”

Before the new legislation, “all other licensed facilities are subject to license revocation or suspension only if the Department deems it warranted by a particular deficiency,” the filing states.

Past inspections indicate that minor deficiencies that pose no threat to patient health or safety are routine, but they have “never previously been the basis for a license revocation or suspension,” the clinics’ attorneys say. “However, once the Act goes into effect, revocation or suspension will be mandatory regardless of the nature of the deficiency.”

The plaintiffs offer examples of the types of violations for which the clinics have been cited in recent years. They include a failure to document that an emergency contact list is updated every six months; failure to label the dates that disinfection monitoring supplies were opened or prepared; failure to remedy a torn cover on a piece of furniture; a need to remove a stain on a ceiling tile; and a need to test high-level disinfectant solution more frequently.

“Accordingly,” their motion says, “the Court should expedite proceedings in this case so that Plaintiffs are not forced to live under a licensing scheme in which routine results from a surprise inspection could trigger unconstitutional penalties at any time.”

The clinics are subject to inspection by the department at any time, the motion points out.

The motion to expedite notes that unless Moody agrees to speed up the pace and orders the department to respond sooner than normal, it will have until Aug. 1, two days after the law’s effective date, to oppose the motion.

On the day the suit was filed alongside another federal lawsuit challenging four other abortion laws passed in Arkansas this year, Arkansas Attorney General Leslie Rutledge said through a spokesman that she “will continue to wholeheartedly defend laws in Arkansas that are intended to protect both mothers and their babies.”

The case challenging four laws was filed on behalf of Dr. Frederick Hopkins of Little Rock Family Planning Services by the American Civil Liberties Union of Arkansas and the Center for Reproductive Rights, based in New York City. U.S. District Judge Kristine Baker has scheduled a preliminary injunction hearing in that case for July 13.

In reference to both suits, Rita Sklar, executive director of the ACLU of Arkansas, said, “Arkansas politicians have passed laws that defy decency and reason just to make it difficult or impossible for a woman to get an abortion.” She also accused legislators of creating “burdensome bureaucratic hurdles that invade patient privacy.”

Planned Parenthood has offered medication abortions at its two licensed abortion facilities, one each in Little Rock and Fayetteville, for seven years. Little Rock Family Planning Services has operated a licensed abortion clinic in Little Rock since 1973, and currently provides abortions by medication and surgery.