Federal judge sends abortion-clinic case back to state court
An appeal of a state board’s finding that three abortion-providing clinics in Arkansas violated the Women’s Rightto-Know Act was returned to state court on Wednesday after a federal judge said he lacked jurisdiction.
On Jan. 22, just hours after Pulaski County Circuit Judge Tim Fox made a preliminary finding that billing restrictions imposed on the clinics were illegal, the attorney general’s office transferred the case to federal court.
Then late last month, an attorney for the clinics asked U.S. District Judge Billy Roy Wilson, to whom the case was assigned, to send the case back to Fox’s court, complaining that the attorney general’s office was engaging in improper “forum-shopping.”
In an order issued late Wednesday afternoon, Wilson said there are no federal claims pending in the case, which is an appeal of an administrative decision of the Arkansas Board of Health.
“It appears to me that the only issue currently raised in this case is whether the [board] has complied with the Arkansas Administrative Procedures Act, and whether it should be ordered to comply with the act,” Wilson wrote, explaining that without a federal claim to decide, he lacks jurisdiction.
The Board of Health found in October that the clinics — operated by Planned Parenthood and Little Rock Family Planning Services — had violated a state law barring clinics from collecting payment for abortion-related services during the state’s mandated 48-hour waiting period before the procedure.
Fox’s ruling temporarily blocked state regulators from continuing to impose the billing restrictions on the clinics. He said the prohibition will
remain effective until a trial is held or a higher court intervenes.
The state then chose to seek a federal court’s review of the case instead of appeal the preliminary ruling to the Arkansas Supreme Court.
Fox found a “substantial probability” that the billing law — Arkansas Code 20-16-1703 — is unconstitutional. He asked if either side knew of any similar state-imposed restrictions on how medical providers bill patients, noting that he hadn’t found any.
But when the case was transferred out of his court, he still hadn’t made a final decision and was considering whether to dismiss the appeal.
On Friday, attorneys for the state argued that the clinics
waited more than 30 days — the statutory time limit — to ask that the case be remanded to state court. They also said that attorneys for the clinics had withdrawn their remand motion upon realizing an “error” in it, so there was no remand motion for Wilson to decide.
The state attorneys said the only way Wilson could remand the case back to Fox’s court would be if he decided on his own that he lacked subject-matter jurisdiction. They said “no one disputes — nor could they — that this [federal] court clearly has subject-matter jurisdiction over this action. Therefore, remand is not permitted.” Wilson disagreed.
A little over an hour after Wilson’s order was filed, the attorney general’s office filed a notice that it intends to appeal the remand to the 8th U.S. Circuit Court of Appeals in St. Louis.