De­ci­sion said to save ac­cess to abor­tions

Ac­tivists hail block on laws passed in ’17; state to ap­peal

Northwest Arkansas Democrat-Gazette - - FRONT PAGE - JOHN MORITZ

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.

Baker

Rut­ledge

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