State claims law pro­tects women in abor­tion cases

AG’s of­fice an­swers law­suit that says it pun­ishes clin­ics

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

Arkansas At­tor­ney Gen­eral Les­lie Rut­ledge’s of­fice con­tends in court doc­u­ments filed this week that Act 383 of 2017, set to take ef­fect Sun­day, is de­signed to pro­tect women from un­safe clin­i­cal prac­tices and de­fi­cient record-keep­ing at the state’s three abor­tion clin­ics.

The at­tor­neys for the state were re­spond­ing to a law­suit filed June 20 by abor­tion providers Planned Par­ent­hood, which op­er­ates one clinic each in Lit­tle Rock and Fayetteville, and Lit­tle Rock Fam­ily Plan­ning Ser­vices, which op­er­ates a clinic in Lit­tle Rock.

The law­suit, backed by the Amer­i­can Civil Lib­er­ties Union of Arkansas, con­tends that Act 383 un­con­sti­tu­tion­ally sin­gles out abor­tion clin­ics for ex­ces­sive reg­u­la­tions, mak­ing it eas­ier for au­thor­i­ties to pe­nal­ize the clin­ics, or shut them down al­to­gether, for mi­nor in­frac­tions.

U.S. District Judge James Moody Jr. has set a hear­ing for Aug. 10 on the providers’ re­quest for a pre­lim­i­nary in­junc­tion to stop the law from be­ing en­forced un­til its con­sti­tu­tion­al­ity can be de­cided. The plain­tiffs con­tend the con­sti­tu­tional vi­o­la­tions are so clear that a hear­ing isn’t even nec­es­sary.

In re­sponse to the plain­tiffs’ re­quest for an ex­pe­dited de­ci­sion, Moody or­dered at­tor­neys for the state to re­spond to the law­suit by 5 p.m. Mon­day — one day short of a week be­fore the law’s ef­fec­tive date.

In that re­sponse, Deputy At­tor­ney Gen­eral Monty Vaughan Baugh urged Moody to re­ject the in­junc­tion re­quest, de­scrib­ing the new law as one that “ra­tio­nally pro­motes women’s health by strength­en­ing en­force­ment of laws and reg­u­la­tions that pro­tect women who have abor­tions from un­safe clin­i­cal prac­tices and de­fi­cient med­i­cal record-keep­ing at abor­tion clin­ics.”

Baugh said the law “clar­i­fies the scope of pe­ri­odic in­spec­tions by the Arkansas De­part­ment of Health, re­quires that the De­part­ment adopt ap­pro­pri­ate rules on the keep­ing of pa­tients’ med­i­cal records and con­sent forms, and sets forth statu­tory re­quire­ments for pro­cess­ing vi­o­la­tions of health safety vi­o­la­tions.”

In ad­di­tion, he said, it “de­fines the re­quire­ments for no­tice, es­tab­lishes the right and re­quire­ments for ad­min­is­tra­tive hear­ings on a no­tice of pend­ing ad­verse ac­tion against a li­censee, and pro­vides for op­por­tu­nity of a li­censee to ap­peal from a de­ter­mi­na­tion of li­cense sus­pen­sion or re­vo­ca­tion.”

He noted that the state De­part­ment of Health hasn’t re­voked ei­ther provider’s op­er­at­ing li­cense, so nei­ther should be af­fected by the new law, “un­less ei­ther abor­tion fa­cil­ity vi­o­lates healthy safety laws and reg­u­la­tions.”

Baugh ar­gued that the clin­ics don’t have stand­ing to sue over the act be­cause it hasn’t af­fected them yet. Even if they did, he said, the clin­ics’ com­plaint has no merit.

The providers con­tend that the Equal Pro­tec­tion Clause of the U.S. Con­sti­tu­tion pro­hibits the state from en­forc­ing a li­cens­ing scheme for abor­tion clin­ics with­out also re­quir­ing other health fa­cil­i­ties — such as am­bu­la­tory sur­gi­cal cen­ters and free­stand­ing birth cen­ters — to fol­low the same law.

But, Baugh said, the state’s “statu­tory and reg­u­la­tory scheme gov­ern­ing the li­cens­ing of abor­tion fa­cil­i­ties is sep­a­rate and dis­tinct from those gov­ern­ing these health fa­cil­i­ties. Be­cause abor­tion clin­ics are unique and dif­fer­ently sit­u­ated,” Act 383 doesn’t vi­o­late the clin­ics’ right to equal pro­tec­tion un­der the law.

He noted that the Health De­part­ment’s reg­u­la­tions gov­ern­ing hos­pi­tals and re­lated in­sti­tu­tions is 407 pages long, com­pared to 36 pages of reg­u­la­tions gov­ern­ing abor­tion fa­cil­i­ties.

The at­tor­ney ar­gued that abor­tion is a unique pro­ce­dure, un­like oth­ers per­formed in sur­gi­cal cen­ters or free-stand­ing birthing cen­ters, and that abor­tions “pose a unique risk of se­ri­ous com­pli­ca­tions,” in­clud­ing uter­ine rup­ture, in­fec­tion and more than half a liter of blood loss.

He said the plain­tiffs’ clin­ics “have been cited for nu­mer­ous in­stances of inat­ten­tive­ness to po­ten­tial sources of in­fec­tion that can af­fect their pa­tients,” coun­ter­act­ing the plain­tiff’s com­plaints about be­ing writ­ten up for mi­nor in­frac­tions such as torn cloth stools in exam rooms.

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