Abor­tion by med­i­ca­tion case re­turns to lower court

Pro-life groups cheer Supreme Court choice

The Washington Times Weekly - - National - BY ALEX SWOYER

The Supreme Court de­clined to hear a case chal­leng­ing Arkansas’ re­stric­tions on med­i­ca­tion-in­duced abor­tions, ef­fec­tively clear­ing a path for the law to take ef­fect while lower courts con­tinue to spar over whether the rules are too strict.

Pro-life groups cheered the de­ci­sion while pro-choice groups said it marked a ma­jor set­back, and warned Arkansas could end up with just a sin­gle func­tion­ing clinic of­fer­ing sur­gi­cal abor­tions, if two oth­ers that of­fer med­i­ca­tion abor­tions close.

Planned Par­ent­hood had al­ready be­gun telling pa­tients Tues­day that it could no longer of­fer them med­i­ca­tion abor­tions.

The jus­tices didn’t com­ment on why they de­clined to hear the case, and le­gal schol­ars warned not to read too much into the de­ci­sion, which re­turns the chal­lenge to the 8th U.S. Cir­cuit Court of Ap­peals.

That ap­peals court had ruled the law could go into ef­fect, though it put its rul­ing on hold while the jus­tices de­cided whether to take the case. An­a­lysts said they expect the 8th Cir­cuit to dis­solve that hold, al­low­ing the law to quickly take ef­fect.

“Pro­tect­ing the health and well-be­ing of women and the un­born will al­ways be a pri­or­ity. We are a pro-life state and al­ways will be as long as I am at­tor­ney gen­eral,” said Arkansas At­tor­ney Gen­eral Les­lie Rut­ledge, whose of­fice has de­fended the law.

Med­i­ca­tion abor­tions oc­cur dur­ing the first trimester and have been used by Planned Par­ent­hood clin­ics for more than a decade. The abor­tion oc­curs af­ter a preg­nant per­son takes two oral pills.

Arkansas’ law doesn’t ban the use of the pills, but re­quires abor­tion providers who is­sue the pills to sign a con­tract with a doc­tor who has ad­mit­ting priv­i­leges to a nearby hos­pi­tal in case of emer­gency com­pli­ca­tions.

It was en­acted in 2015 as part of a broader set of re­stric­tions on abor­tion ac­cess, sim­i­lar to laws in other con­ser­va­tive­lean­ing states.

The Arkansas Leg­is­la­ture pointed to re­search con­clud­ing that com­pli­ca­tions from med­i­ca­tion abor­tions had led to eight deaths and hundreds of blood trans­fu­sions, hos­pi­tal­iza­tions and in­fec­tions.

Planned Par­ent­hood of Arkansas and East­ern Ok­la­homa sued, ar­gu­ing the law would halt op­er­a­tions at two of the state’s re­main­ing three abor­tion clin­ics. The or­ga­ni­za­tion said that would force women to drive hundreds of miles to ob­tain le­gal abor­tions.

“Arkansas is now shame­fully re­spon­si­ble for be­ing the first state to ban med­i­ca­tion abor­tion. This danger­ous law im­me­di­ately ends ac­cess to safe, le­gal abor­tion at all but one health cen­ter in the state. If that’s not an un­due bur­den, what is?” said Dawn Laguens, ex­ec­u­tive vice pres­i­dent of Planned Par­ent­hood Fed­er­a­tion of Amer­ica.

A district judge agreed and ini­tially blocked the law, say­ing it created too many hur­dles for women. The 8th Cir­cuit, though, erased that rul­ing, with the ap­peals court judges say­ing the lower court didn’t do enough to prove the bur­den. Specif­i­cally, the district judge didn’t es­ti­mate how many women would have to travel in­creased dis­tances, nor cal­cu­late how many would likely de­lay an abor­tion or forgo one al­to­gether, the ap­peals court said.

The case could come back to the Supreme Court af­ter the lower courts sort out those is­sues.

“It is not as though the court is en­dors­ing the 8th Cir­cuit’s ap­proach, just choos­ing not to re­view it at this time,” said I. Glenn Co­hen, a law pro­fes­sor at Har­vard Uni­ver­sity.

Tues­day’s re­fusal also doesn’t tip the jus­tices’ hand about what would hap­pen then, said Rachel Re­bouche, a law pro­fes­sor at Tem­ple.

“I don’t think the court’s de­ci­sion to­day in­flu­ences the bal­anc­ing ap­proach set out in Whole Wo­man’s Health. A new opin­ion by the 8th [Cir­cuit] might and might mean that the case will come be­fore the [Supreme Court] again,” she said.

The last ma­jor abor­tion case to reach the jus­tices was in 2016, when the high court bat­ted down a Texas law that also re­quired doc­tors per­form­ing abor­tions to have ad­mit­ting priv­i­leges in hos­pi­tals no more than 30 miles from the abor­tion fa­cil­ity.

Texas would have closed roughly half of their abor­tion clin­ics if the law had remained in place.

The jus­tices, in a 5-3 rul­ing known as Whole Wo­man’s Health v. Heller­st­edt, said the state law would have created a ma­jor bur­den on many women’s right to an abor­tion.

The Arkansas con­tro­versy, while it has sim­i­lar­i­ties to Texas’s law, cen­ters on a par­tic­u­lar type of abor­tion.

Kristi Ham­rick, pres­i­dent of Stu­dents for Life of Amer­ica, said the law pro­vides for com­mon sense health and safety stan­dards.

“Abor­tion ven­dors com­plain that holding them ac­count­able for their sloppy stan­dards might re­sult in some clin­ics clos­ing, which just goes to il­lus­trate how anti-wo­man the abor­tion in­dus­try re­ally is,” said Ms. Ham­rick.

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