Abortion-law legal costs growing

After spending $70,000 so far, state asks for 2nd hearing

Arkansas Attorney General Leslie Rutledge’s choice to continue to defend an Arkansas law restricting abortions will waste time and taxpayer money, opponents of the law say.

So far, the state has spent more than $70,000 on such things as fees to the challenging attorneys, court costs and travel to St. Louis for an appeal hearing. Not included in that total is the time spent by in-house attorneys and other staff members in the attorney general’s office working on the case.

In addition, the attorneys who succeeded in their constitutional challenge to the state’s abortion law are seeking additional money for their work in an earlier appeal by Rutledge’s office.

Now, with a potential new appeal forthcoming, the legal costs stand to rise even more.

On Wednesday, Rutledge announced that she would ask the 8th U.S. Circuit Court of Appeals to consider a full-court hearing on the law, which was struck down late last month by a three-judge panel.

On Friday, Judd Deere, a spokesman for the first-year Republican attorney general, said he was unable to speculate on the costs of further litigation. But, he said in a statement, “it is the duty of the Attorney General to defend the laws of the State.”

Whatever the cost, the head of the Arkansas chapter of the American Civil Liberties Union — one of the law’s challengers — said it makes no sense to devote more taxpayer money to a losing fight.

“There is no better return [on investment for the ACLU] because we’re going to win, and we know we’ll get the money back,” Rita Sklar said. “They may as well write the ACLU the check right now.”

The challenged law, and past abortion law challenges, have cost the state hundreds of thousands of dollars and untold man-hours, according to state records.

The Arkansas Human Heartbeat Protection Act was passed during the 2013 General Assembly. The law, which prohibits abortions after 12 weeks of pregnancy when a heartbeat can be detected, is the second-most-restrictive abortion law in the nation.

The measure was vetoed by former Democratic Gov. Mike Beebe, who said it appeared to be unconstitutional, but the veto was overridden.

Before going into effect in August 2013, the bill was challenged in the U.S. District Court for the Eastern District of Arkansas, where District Judge Susan Webber Wright issued a preliminary injunction halting it.

In March 2014, Wright found that the law did exactly what opponents said it did: It flew in the face of decades of U.S. Supreme Court rulings that gave constitutional protections in abortions performed before the fetuses are viable, or capable of living independently outside the womb. Until the Arkansas Legislature passed the 2013 law, Arkansas considered viability as beginning at 25 weeks of pregnancy.

In June 2014, attorneys involved in the challenge requested that the attorney general’s office, then held by Democrat Dustin McDaniel, pay them $76,560 in legal fees for 255 hours of work valued at $300 per hour.

Wright ruled that the state would pay the attorneys $65,580, plus court costs valued at $3,445.45. That was on top of fees of $505 and $233 for court filings.

State attorneys then appealed that ruling to the 8th U.S. Circuit Court of Appeals, where a three-judge panel heard oral arguments in January.

During that case, taxpayers paid $257.70 on airfare for Assistant Attorney General Colin Jorgensen to fly to and from St. Louis to argue the case before the judges panel.

Taxpayers also paid $133.32 for Jorgensen’s stay at a hotel, $24.18 for a meal at an airport Chili’s restaurant plus a $9.82 tip. They also paid $73 for a dinner at his hotel, including a 10-ounce steak that cost $36.

On May 27, the panel sided with Wright, noting that there was no evidence presented by state attorneys that 12-week-old fetuses were viable, which was the standard established in the 1973 U.S. Supreme Court ruling in Roe v. Wade.

Attorneys challenging the Arkansas law have asked for more than $51,000 in additional attorney and court costs. The federal appeals court has yet to rule on that request.

Holly Dickson, an attorney with the ACLU, said it is unclear how much another argument would cost, but Sklar said she was confident that the court’s ruling would be the same and that taxpayers would end up footing the bill.

While attorneys challenging the law have kept track of their hours, Rutledge’s office does not count the number of hours in-house attorneys work on individual cases. Jorgensen’s salary is $90,899.95 a year.

Sklar said she thinks many Arkansans would rather see state employees spend time on cases that aren’t doomed from the onset.

“As a taxpayer myself, I’d rather that they work on those issues and those lawsuits that will result in a benefit for the people of Arkansas,” Sklar said. “This is a lost cause. It’s a waste of taxpayers’ money.”

Arkansas isn’t the only state that has spent a good deal of money defending laws that have been challenged as unconstitutional.

Kelli Garcia, senior counsel for the National Women’s Law Center, said the taxpayers’ cost for attorneys fees, man-hours and internal resources should factor into lawmakers’ discussions when considering bills that are constitutionally suspect.

For example, Garcia said, South Dakota passed a series of abortion-related regulations in 2011 — including a ban on abortions after six weeks of pregnancy. The court proceedings continue, and the costs are rising. Her group estimates those costs as ranging between $1.7 million and $4 million over the four-year period.

“When you know these laws are blatantly unconstitutional on their face, it’s wrong to rack up a lot of bills,” Garcia said. “We’ve tried to bring the costs to the attention of legislators as they are making the decisions. It’s something they should be considering.”

Over the years, Arkansas has paid for court challenges in other abortion cases.

In 1994, U.S. District Judge Bill Wilson ordered the state to pay attorneys representing Little Rock Family Planning Services nearly $25,500 in costs and fees after the attorneys successfully argued that Amendment 68 — which at the time prevented public money from being spent on abortions other than to save the mother’s life — violated the federal Hyde Amendment, which allowed for abortions in the event of rape or incest.

In September 1999, the same medical practice won $103,050 in fees and nearly $16,000 in assorted court costs after a lower federal court declared a 1997 abortion law unconstitutional.

It’s legislation like the Arkansas Human Heartbeat Protection Act that prompted state Rep. Camille Bennett, D-Lonoke, to sponsor a bill earlier this year that would give lawmakers a tool to gauge a proposed statute’s constitutionality long before it becomes law.

Just as some bills require a “fiscal impact” statement, Bennett wanted lawmakers in committees to be able to press pause on a bill’s path to the governor’s desk until they could get a review by the attorney general’s office on the bill’s constitutionality and the likelihood of a legal challenge.

“Abortion as much as anything has been litigated, litigated and re-litigated. There is no telling how much money the state of Arkansas has spent litigating over and over and over on this issue,” Bennett said. “At a time when our state is trying to cut its budget and spend money as wisely as possible, it flabbergasts me that we continue to file legislation that we know as a matter of fact is unconstitutional.”

On Friday, Deere’s statement said: “The Attorney General is the State’s lawyer and stands ready to assist and advise members of the General Assembly.”

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