State defends laws on abortion ahead of hearing on halt
State attorneys filed hundreds of pages Tuesday in defense of three new abortion laws that are set to take effect July 30 and another that goes into effect on Jan. 1 unless a federal judge blocks them.
The documents, which include both a motion to dismiss an abortion doctor’s June 20 lawsuit and arguments opposing a requested preliminary injunction, were filed ahead of a Thursday afternoon hearing before U.S. District Judge Kristine Baker. She is to hear arguments on the injunction request beginning at 2 p.m. in her Little Rock courtroom and routinely takes such requests under advisement until issuing a written ruling.
The lawsuit was filed by Frederick Hopkins, an obstetrician-gynecologist who performs abortions at Little Rock Family Planning Services and is backed in his legal effort by the American Civil Liberties Union of Arkansas and the New Yorkbased Center for Reproductive Rights.
While the plaintiffs contend the laws were enacted to make it difficult, if not impossible, for a woman to obtain an abortion in Arkansas, Attorney General Leslie Rutledge said in Tuesday’s filings, “These laws further the state’s critically important interests in promoting respect for human life; protecting the integrity of the medical profession, safeguarding patients’ health and safety, and ensuring that those who sexually abuse young girls are brought to justice.”
Attorneys for the state also contend that Hopkins lacks legal standing — a vested interest in the outcome — to pursue the case.
The laws in question, each of which was passed in this year’s regular legislative session, are Act 45, also known as the Unborn Child Protection from Dismemberment Abortion Act; Act 733, the Prohibition Against Sex Discrimination by Abortion Act; Act 1018, which amended the Child Maltreatment
Act and concerns maintenance of forensic samples from abortions; and Act 603, an amendment to the Law on Disposition of Fetal Remains.
A second lawsuit challenges a fifth Arkansas law, which is also set to take effect July 30 unless halted by an injunction.
The plaintiffs — Little Rock Family Planning Services and Planned Parenthood, which operate abortion clinics in Little Rock and Fayetteville — say Act 383 of 2017 unconstitutionally singles out abortion clinics for rigorous penalties, including closure, in response to even minor deficiencies noted in routine or surprise inspections by the state. U.S. District Judge James Moody has set an Aug. 10 hearing in that case.
According to documents filed Tuesday by Assistant Attorney General Michael Cantrell, Acts 45, 733, 603 and 1018 were enacted, respectively, to “(1) end the inhumane practice of killing unborn children by tearing them limb from limb, (2) prohibit abortions performed solely on the basis of the unborn child’s sex, (3) ensure that providers of surgical abortion dispose of fetal remains in the same manner that state law requires for fetuses generally, and (4) extend long existing, post-surgical abortion reporting and investigatory requirements that apply to children who have abortions.”
Cantrell, along with Deputy Solicitor General Nicholas Bronni and Senior Assistant Attorney General Jennifer Merritt, said in the motion to dismiss that Hopkins, who performs first- and second-trimester abortions, only “very recently” began working at the clinic.
They said he shouldn’t be allowed to assert the legal rights of hypothetical future patients, noting that the law allows a litigant to assert the rights of a third party only when he has a “close relationship” with that person and the person cannot protect his or her own interests.
The attorneys said Hopkins wants to invalidate laws that allow him to be sued by those patients or their family members, which “presents a clear conflict of interest” between him and his patients.
The state’s motion to dismiss borrows language from the U.S. Supreme Court to describe the dilation and evacuation abortions that are the focus of Act 45.
It says the procedure “involves dilating a patient’s cervix to permit insertion of medical instruments into the uterus,” after which the doctor, “often guided by ultrasound, inserts grasping forceps through the woman’s cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman.”
The motion also cites a 2000 opinion from the nation’s highest court saying, “The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn limb from limb.”
Act 45 doesn’t ban the procedure when the fetus is killed by an injection in utero before the procedure begins, the motion states, noting that Hopkins himself has used the injections. It also asserts that “some physicians end the unborn child’s life by injecting its heart with potassium chloride … and others end the unborn child’s life by ‘transecting’ — or cutting — the umbilical cord, before removing it from the womb.”
The lawsuit calls the dilation and evacuation procedure the most common and safest kind of second-trimester abortion and says it was the only procedure used in 638 second-trimester abortions in Arkansas in 2015, according to the state Department of Health.
Act 733, which the lawsuit describes as extremely burdensome to doctors and intrusive on doctor-patient confidentiality, prohibits a doctor from performing an abortion when aware that the woman is seeking it solely because of the child’s sex.
It requires an abortion doctor to ask a woman first if she knows the sex of the fetus. If she does, the doctor must inform her that abortion cannot legally be used as a method of sex-selection of children, and the doctor must request medical records relating to her entire pregnancy history.
The act, which goes into effect Jan. 1, also directs the doctor to expend “reasonable time and effort” to obtain those records. A violation of the law is a misdemeanor, and a violator is subject to license suspension and revocation, as well as the possibility of being sued.
Act 1018, according to the state’s motion, amends the Child Maltreatment Act, described as “a law that has long required a physician who performs a surgical abortion on a child under 14 years old to preserve the fetal tissue in accordance with rules adopted by the state Crime Laboratory.” It says those rules “have long required physicians to notify the law enforcement agency in the jurisdiction where the child resides.” Noncompliance is considered unprofessional conduct.
“Act 1018 did not substantively alter the law, but merely raised the applicable reporting age to include 14- to 16-year-old girls,” according to the attorney general’s office, noting that Hopkins isn’t challenging the prior law but its application to 14- to 16-year-olds where there is no obvious sign of illegal sexual activity or abuse.
The state’s motion to dismiss describes Act 603 as an amendment “to provide that fetal remains from surgical abortions will be disposed of in accordance with the Arkansas Final Disposition Rights Act of 2009.”
The 2009 law already governed the final disposition of a body or a fetus, but it defined “fetal tissue” from an abortion as “human tissue” that didn’t fall under the law’s provisions, the attorneys said.
They said Act 603 removed “fetal tissue” from the definition of “human tissue,” and required a physician or facility that performs surgical abortions to abide by the law or face a misdemeanor charge.