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.

Northwest Arkansas Democrat-Gazette - - NORTHWEST ARKANSAS - LINDA SATTER

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.

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