Decision said to save access to abortions
Activists hail block on laws passed in ’17; state to appeal
Abortion providers in Arkansas hailed on Saturday a federal judge’s decision to halt new restrictions from the state Legislature, which the providers say are intended to make access to abortions all but extinct.
The American Civil Liberties Union of Arkansas, which provided legal support to the Little Rock physician who sued the state over four anti-abortion laws, said the ruling ensured Arkansans access to the procedures, for now.
A nearmidnight order on Friday from U.S. District Judge Kristine Baker of the Eastern District of Arkansas stopped three laws — including a ban on the pervasive procedure for second-trimester abortions — from taking effect Tuesday.
A fourth law requiring extensive medical records to be sought in later-term abortions would have taken effect later this year absent Baker’s ruling.
Attorney General Leslie Rutledge will appeal the order, a spokesman said, though it is unclear when state attorneys will begin that process.
Earlier this year, the Legislature, under Republican control in both chambers, passed the ban on the procedure used last year in all Arkansas abortions past 12 weeks. Lawmakers dubbed it “dismemberment” abortion.
They also passed laws that required abortion providers to obtain past medical records for women who know the sex of the fetus; required law enforcement officials to be notified of abortions performed on girls under 17; and mandated that doctors seek input of family members and sexual partners of the women over what to do with the fetal remains.
In essence, the new rules would have had the effect of driving out the state’s three remaining abortion providers, argued Dr. Frederick Hopkins of Little Rock Family Planning Services, which performed most of the state’s abortions last year. Hopkins is the plaintiff in the case.
Attorneys for the state disputed that argument, saying there still would be legal options for abortions if clinics comply with the laws.
There were 3,207 abortions performed in Arkansas last year, according to the state Department of Health. Less than 20 percent occurred after 12 weeks.
The legislation received the support of the conservative Family Council, whose president, Jerry Cox, said he
aimed to make Arkansas the “No. 1 pro-life state.”
“The fact that one judge would take it upon themselves to just obliterate very good pro-life laws … it’s just sad,” Cox said Saturday.
The ACLU and Planned Parenthood Great Plains, which operates clinics in Fayetteville and Little Rock, told lawmakers they would sue the state if the bills passed.
On Saturday, an attorney for the ACLU accused lawmakers of copying legislation from other states and national anti-abortion groups, leading Arkansas into an increasing number of costly lawsuits.
“Arkansans don’t pick them up by themselves,” said Bettina Brownstein, a lawyer who worked with the ACLU on the lawsuit before Baker.
Laws similar to Arkansas’ ban on dilation and evacuation procedures — “dismemberment” abortion to critics — have been enacted in West Virginia and Mississippi.
But courts in four other states halted such bans from taking effect.
Baker sided heavily with Hopkins, the Little Rock abortion provider, throughout her 140-page ruling.
She wrote repeatedly that the state had failed to provide evidence to support its claims that the laws fulfilled the state’s interest in protecting women and minors and honoring “respect for unborn life.”
Notably, Baker dismissed the testimony of a state witness, Dr. Richard Wyatt of Little Rock, who described the movements and heartbeats of a fetus at 14 weeks.
“This Court does not equate Dr. Wyatt’s use of ‘living baby’ with viability, as the term viability has been used by the courts in the abortion context,” Baker wrote.
Under existing law, Arkansas bans abortion past the 19th week of pregnancy.
Baker’s order came on the heels of a ruling earlier Friday by the 8th U.S. Circuit Court of Appeals in St. Louis to reverse a similar injunction she issued last year against a 2015 abortion law.
The appeals court ruling appeared to give the state clearance to enact rules requiring doctors who provide medical abortions — which uses pills rather than surgery — to contract with physicians with admitting privileges at hospitals. It could still take up to three weeks for the state to receive a court mandate allowing it to actively enforce the law.
Planned Parenthood says the law acted on by the 8th Circuit would force the closure of its clinics in Little Rock and Fayetteville, which provide only medical abortions.
That would leave Arkansas with a single abortion provider: Little Rock Family Planning Services.
In her decision to halt that law last year, Baker expressed concerns about the number of women who would choose to forgo abortions if faced with longer waits and travel times to Little Rock.
But the panel of judges on the 8th Circuit who overturned Baker’s injunction of the law said she had to provide a more complete estimate of the number of women the law would burden.
Baker did not provide an estimate in numbers in her ruling against the 2017 laws, but concluded they would burden a “large fraction” of women who seek abortions.
Judd Deere, a spokesman for the attorney general, said in a text message that Baker’s Friday ruling would similarly be appealed to the 8th Circuit. Rutledge is “hopeful” the injunction will be overturned there, he said.
Planned Parenthood has yet to say whether it will appeal the 8th Circuit’s decision regarding the 2015 law.
Neither of those cases has reached a conclusion in Baker’s court.
Her injunctions — the one handed down Friday is indefinite — are preliminary until she makes a final ruling on each lawsuit.
Baker has not yet said when she plans to make a ruling on the suit lodged against the 2015 law, which was argued in her court in March 2016. She also gave no indication when she may make a final ruling on the 2017 laws.
Planned Parenthood Great Plains has filed a separate federal suit in Little Rock challenging a 2017 law that orders new rules for the inspection of abortion clinics.
That lawsuit is before U.S. District Judge James Moody Jr., who has yet to issue a ruling. Without a court order, the law goes into effect Tuesday.