State, facility continue fight over abortion

The American Civil Liberties Union of Arkansas, which sued to obtain the order dissolved early last week by a divided three-judge panel of the 8th U.S. Circuit Court of Appeals, is now asking the same district judge, Kristine Baker, to issue a second temporary restraining order.

LITTLE ROCK — Attorneys for the state complained Monday that Little Rock Family Planning Services is again seeking a “special exemption” to carry out surgical abortions, despite an appellate court last week dissolving an order briefly allowed the procedures to resume.

On Monday, the state Department of Health replaced an April 3 order banning elective procedures statewide during the covid-19 pandemic with one allow the procedures to resume on a limited basis.

The state considers most surgical abortions to be elective procedures, which it defines as all surgeries not necessary to protect the health or life of the patient. But the clinic, which is the state’s only provider of surgical abortions, maintains abortions aren’t “elective” because they are time-sensitive and cannot be paused without dire consequences.

The American Civil Liberties Union of Arkansas, which sued to obtain the order dissolved early last week by a divided three-judge panel of the 8th U.S. Circuit Court of Appeals, is now asking the same district judge, Kristine Baker, to issue a second temporary restraining order.

The requested order would block enforcement of the surgical ban only when it would cause a woman seeking an abortion to delay the procedure beyond 21.6 weeks of pregnancy, after which time abortion is illegal in Arkansas, with some exceptions.

Attorneys for the state argued in court documents Monday the clinic’s latest request, filed late last week, ignores the new directive that they knew was coming and that relaxes restrictions on elective procedures. The ACLU, however, indicated last week it was skeptical about how the new order would affect the clinic.

On Friday, Baker denied the clinic’s request to issue a restraining order “ex-parte,” or immediately, without waiting for the state to respond, which is done in emergencies. She set expedited deadlines, however, for the state to respond to the request it called “frivolous,” and for the ACLU to reply, before she rules. The ACLU’s reply is due this morning.

On Monday, the attorney general’s office said although Arkansas has been praised for its efforts to slow the pandemic, a shortage of personal protective equipment “remains a concern.” The shortage was a key reason cited for the April 3 ban on elective procedures, and state attorneys said Monday “it is vital that state officials continue to be free to guide Arkansas through this crisis.”

The Health Department directives were issued under an emergency declaration issued by Gov. Asa Hutchinson expiring May 11, but can be renewed.

In seeking to bar the state from enforcing the elective-procedures ban with respect to women who would be legally unable to have an abortion after May 11, the ACLU “did not identify a single mother within that category, and no mother has sued,” the state argued Monday.

They referred to the clinic’s “vague statements that six unidentified patients ‘would be pushed past the legal limit for abortion care in Arkansas if forced to wait until May 11.’”

Attorneys for the state said the clinic “cannot show that any woman will be prevented from obtaining an abortion” because of the new order. “Any virus-free, asymptomatic patients are eligible to pursue an elective surgical abortion under the April 27 directive, including the six women Plaintiffs claim would have been unable to obtain one after May 11,” they said.

The new policy requires surgical patients to test negative for the coronavirus at least 48 hours before the procedure. Among other things, it also limits surgeries to out-patient procedures and requires the surgical facility to have an “ample supply” of personal protective equipment.

While the policy “relaxes its requirements regarding elective surgery, it bears no less of a ‘real and substantial relation to the State’s interest in protecting public health in the face of the COVID-19 pandemic,’” state attorneys wrote, quoting the 8th Circuit’s order dissolving Baker’s restraining order.

On April 7, inspectors did an unannounced inspection of the clinic that “revealed the facility was continuing to perform surgical abortions that were not medically necessary,” attorneys for the state wrote. On April 10, the Health Department ordered the clinic to “stop performing non-compliant surgeries.”

Baker also blocked the state from enforcing the cease-and-desist order, but the 8th Circuit panel dissolved that order too.