State de­fends laws on abor­tion ahead of hear­ing on halt

Northwest Arkansas Democrat-Gazette - - FRONT PAGE - LINDA SATTER

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.

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