LR clinic pulls suit on testing

State altered rule that sparked case

Little Rock Family Planning Services asked Monday to drop its federal lawsuit challenging state directives that required abortion patients to obtain negative covid-19 test results within 48 hours of the procedure.

Noting that the directive that was challenged has since been changed to require testing within 72 hours of any surgical procedure, attorneys for the clinic said it is no longer seeking relief, though it continues to believe the clinic and its patients were entitled to relief.

The clinic is the only provider of surgical abortions in Arkansas. It asked that the lawsuit filed May 1 on behalf of it and one of its doctors, Thomas Tvedten, be dismissed “without prejudice,” which would allow it to be refiled “if additional factual developments so require.”

The American Civil Liberties Union of Arkansas filed suit on the clinic’s behalf over the state Department of Health Directive that took effect April 27 and allowed what the state considered to be non-emergency surgeries to resume with conditions, one of which was the testing requirement.

The ACLU, noting that covid-19 tests were hard to come by, said the directive was unconstitutional because it would force some women to delay their abortions beyond the legal cutoff for obtaining in Arkansas — 21.6 weeks of pregnancy. Federal law allows women to obtain abortions until a fetus is considered viable, or able to live independently outside the womb, which most states say is around 21 to 24 weeks.

U.S. District Judge Brian Miller on May 7 denied the clinic’s request for a temporary restraining order that would block the state from enforcing the testing requirement. He cited a recent order from the 8th U.S. Circuit Court of Appeals saying that when a state is faced with a public health crisis, it is entitled to take measures that may infringe on constitutional rights.

The 8th Circuit decision vacated a restraining order granted by another judge in response to an earlier lawsuit filed by the clinic protesting an April 3 directive that halted all “non-medically necessary” surgeries during the coronavirus pandemic, citing a need to save personal protective equipment.

The April 27 directive replaced the April 3 directive.

In a footnote of the dismissal request, the clinic’s attorneys said it and its patients are still treated differently from other physicians and patients in Arkansas, because “physicians other than abortion providers remain free to provide urgent healthcare according to the treating physician’s good-faith, independent judgment, regardless of whether and when” a negative covid-19 test result is obtained.