Abortion clinics, state lawyers spar in filings

A war of words between attorneys fighting and defending three new Arkansas abortion laws continued last week with a bevy of increasingly acrimonious filings.

Attorneys for the state who are tasked with defending the laws want U.S. District Judge Kristine Baker to dismiss a June 26 lawsuit through which abortion clinics in Little Rock obtained a temporary ban on the laws’ enforcement that expires at 11:45 p.m. Tuesday. The state also asked the judge to hold another hearing to allow them to further cross-examine witnesses before deciding whether to turn the 14-day temporary restraining order into a longer-lasting preliminary injunction.

Meanwhile, attorneys for the abortion clinics — Little Rock Family Planning Services and the Little Rock office of Planned Parenthood — are asking the judge to reject the dismissal request and to expand the ban indefinitely based on testimony she has already heard and documents she has already seen.

Baker denied the state’s request for another hearing Friday evening, saying the state had the opportunity to cross-examine the witnesses in a July 22 hearing and that both sides have had a chance to address any new

matters in supplemental filings that she will consider in deciding whether to grant an injunction. An injunction would stop enforcement of the laws until their constitutionality can be determined.

Baker issued the temporary restraining order late July 23, just 3 minutes and 41 seconds before the laws were scheduled to go into effect July 24.

EXPERT EXAMINATION

On Tuesday, Attorney General Leslie Rutledge’s office sought an additional hearing, complaining that they were denied an opportunity to adequately question Jason Lindo, a key witness for the plaintiffs, during an abbreviated June 22 hearing because they hadn’t been given an advance copy of the data on which he relied.

Lindo, an economics professor, calculated percentages of women who he said would be affected by Act 700, which requires all abortion providers in the state to be board-certified in obstetrics and gynecology or board-eligible for certification. Baker cited his calculations in granting the restraining order.

The attorneys for the state also asserted that another hearing is warranted “to address multiple legal errors in this Court’s order” temporarily blocking the laws’ enforcement.

The plaintiffs responded Wednesday with their own strongly worded arguments calling the state attorneys’ remarks “plainly false and a bald-faced misrepresentation of the records,” insisting that the state had been provided the necessary information before the hearing, although the data contained one duplicate entry that Lindo immediately corrected while noting that it didn’t change his findings.

“Defendants’ repeated attempt to make more of this is a distortion of the record that should not be indulged,” the plaintiffs argued through attorneys Leah Godesky and Kelly Scavone, both of New York City. They called the state’s assertion of being denied an opportunity “divorced from reality.”

The plaintiffs’ attorneys also criticized the state’s reference to Baker’s “legal errors,” saying the “purported” errors weren’t specified and would be better addressed in written arguments.

In addition to Act 700, Baker temporarily blocked enforcement of Act 493, which bans abortion at 18 weeks of pregnancy, and Act 619, which prohibits abortions based solely on the likelihood of fetal Down Syndrome.

The U.S. Supreme Court has said abortions can be performed up to the time a fetus is viable, or capable of living independently outside the womb, which is generally 24 weeks of pregnancy. Abortions in Arkansas are currently provided up to 21 weeks and six days from a woman’s last menstrual period. Arkansas law doesn’t currently prohibit abortions based on the reason a woman is seeking it.

Also on Wednesday, the state filed a 98-page brief setting out its arguments against a preliminary injunction. The brief was signed by five attorneys under Rutledge, led by Solicitor General Nicholas Bronni. It was followed by a 70-page brief the plaintiffs filed Thursday in opposition to the state’s motion to dismiss.

The state’s brief against an injunction repeated its arguments that the three laws passed during this spring’s legislative session are “commonsense abortion regulations” that each “benefits society, mothers and the medical profession in a myriad of ways while imposing no real (or legally cognizable) burden.”

ABORTION DANGER

The attorneys reiterated that “abortion is a particularly dangerous business,” in support of their contention that a requirement is needed to protect women against incompetent doctors.

“Board certification is now standard in the medical profession, and it serves a critical role in safeguarding both the medical profession and the patients that it serves,” the brief says. It notes that to become a board-eligible OBGYN, a physician must complete a four-year residency in the specialty and then must pass a written examination. To become board-certified, it says, the doctor must demonstrate clinical competence and pass an oral examination before a panel of the American Board of Obstetricians and Gynecologists.

The plaintiffs presented testimony July 22 from several doctors who said that physicians without the OB-GYN designation are just as qualified to perform abortions as doctors meeting the requirement.

In defending the Down Syndrome law, attorneys for the state argued that people with the condition, which occurs when a person has an extra chromosome, usually have “mild developmental disabilities” and may have other medical problems but that medical and educational advances “have dramatically improved their quality of life.”

They noted that in the 1930s, the average life expectancy for children born with Down Syndrome was nine years while today it is over 60 and said that most people with the syndrome today “lead happy and fulfilling lives.” They attached survey results and provided a history of discrimination against people with disabilities in America.

The brief cited a recent review of 24 studies showing that between 61% and 93% of women have an abortion when the syndrome is indicated in a prenatal test. “In medicine,” it says, “there is a disturbing degree of factual distortion concerning Down Syndrome, leading to the senseless eradication of unborn children suspected to have the condition.”

18 WEEKS

The state also defended The Cherish Act, which prohibits abortions after 18 weeks’ gestation except in cases of rape, incest and when necessary to save the woman’s life. The attorneys argued that “the vast majority of all the countries on the globe prohibit abortions after 18 weeks,” and contended that “an abortion at this stage of a pregnancy inevitably destroys a child who has taken on ‘the human form’ in all relevant respects.”

“The Cherish Act demonstrates the need to revisit the unworkable and ahistorical viability standard,” the attorneys added.

In yet another filing Thursday, attorneys for the state demonstrated the growing discord between the two parties by saying, “Plaintiffs’ latest supplemental filing supporting their belatedly filed preliminary injunction motion contains more errors than it’s possible to brief in just 24 hours.”

In a 70-page brief filed Thursday opposing the motion to dismiss, the plaintiffs said that if the new laws are allowed to take effect, they “would outright ban some women from obtaining pre-viability abortions based on the point in pregnancy at which they are seeking care and their reason for seeking care and would otherwise eliminate abortion care in Arkansas for at least 62 to 70% of women who seek such care in the state.”

They restated Baker’s findings in her temporary restraining order, in which she said the plaintiffs showed that Act 700 fails to address any significant health-related problems more effectively than existing law and that the clinics couldn’t meet its requirement despite reasonable efforts to comply.

The plaintiffs said the state’s motion to dismiss is “heavy on rhetoric and alternative facts and light on relevant legal authority. In fact, it is completely out of step with controlling Supreme Court and Eighth Circuit precedent protecting women’s right to pre-viability abortion care and prohibiting state regulations of abortion that impose significant burdens on access to care while conferring no medical or safety benefit.”

In yet another filing Thursday, attorneys for the state demonstrated the growing discord between the two parties by saying, “Plaintiffs’ latest supplemental filing supporting their belatedly filed preliminary injunction motion contains more errors than it’s possible to brief in just 24 hours.”

OB-GYN REQUIREMENT

The plaintiffs reiterated their assertion that “legal abortion is one of the safest medical procedures available in the United States,” and noted that “while most abortions in Arkansas occur during the first trimester, women also seek pre-viability abortions in the second trimester, including after 18 weeks.”

They said that Little Rock Family Planning Services and Planned Parenthood “operate the only remaining abortion-providing health centers in the state,” with the Family Planning clinic providing medication abortion up to 10 weeks last menstrual period and surgical abortion up to 21 weeks and six days, “which is before any pregnancy can become viable.” Planned Parenthood provides only medication abortions, which are available up to 10 weeks’ gestation.

The OB-GYN requirement of Act 700 treats abortion differently than other comparable medical procedures, the attorneys for the clinics argued, noting that “abortion is already singled out as highly regulated in Arkansas.”

They reiterated that there is no medical justification for the OB-GYN provision. They went on to say the clinics’ inability to meet its provisions would put them out of business because the majority of their physicians aren’t certified or board-eligible. They argued that the number of qualified physicians they have would reduce their business to a crawl, preventing the facilities from meeting overhead costs necessary to continue operating.