State claims law protects women in abortion cases

AG’s office answers lawsuit that says it punishes clinics

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.