A federal judge in Little Rock heard about an hour's worth of arguments Friday on Planned Parenthood's request for a temporary injunction that would briefly restore the rights of women to obtain pill-induced abortions in Arkansas, but she held off on issuing a ruling until possibly next week.
U.S. District Judge Kristine Baker asked attorneys for Planned Parenthood and the state, which opposes the injunction, to submit written briefs by noon Wednesday to offer their interpretations of an 8th U.S. Circuit Court of Appeals directive last summer to help her decide how to proceed.
If she still has questions after reviewing the briefs, Baker said she may call a conference with attorneys before issuing a ruling.
At issue is a 2015 law requiring doctors who perform pill-induced abortions to have a signed contract with an obstetrician-gynecologist with hospital admitting privileges who will be available in the event of complications. The law carries civil and criminal penalties for any violations.
Planned Parenthood, which performs only pill-induced abortions at its two Arkansas clinics, has said it cannot find a single doctor meeting those requirements who is willing to contract with the organization.
Baker assured attorneys that she knows the matter is urgent but said she is unsure whether the 8th Circuit wants her to make additional findings before ruling or expects her to rely on the same information on which she based a preliminary injunction she granted March 14, 2016.
That injunction blocked enforcement of the new law until questions about its constitutionality could be resolved, which Planned Parenthood has contended could be done at trial. The St. Louis-based appellate court dissolved the injunction more than a year after it was issued, last July 28, without addressing the constitutional issues. A three-judge 8th Circuit panel said Baker first needed to determine the number of women who are likely to be burdened by the contract-physician requirement and whether that number constitutes a "large fraction" of the women seeking abortions in Arkansas.
The injunction remained in effect while Planned Parenthood appealed the pretrial ruling to the U.S. Supreme Court, which on May 29 listed the case among those it wouldn't consider. That let the 8th Circuit ruling stand, and without an injunction to stop the law's enforcement, it began taking effect May 31.
Both Planned Parenthood and the Little Rock Family Planning Services clinic, which provides surgical abortions and also performed medication abortions, stopped performing the pill-induced abortions May 29 to avoid violating the law.
In arguments Friday morning before Baker, Mai Ratakonda, a New York-based attorney for Planned Parenthood, argued that the Abortion-Inducing Drugs Safety Act, which was originally to take effect Jan. 1, 2016, does nothing to protect women's health -- its stated purpose -- and "will only burden a large fraction of women seeking abortions."
Arkansas Assistant Attorney General Nicholas Bronni argued that the law was enacted to ensure that women seeking medication abortions, which have "foreseeable complications," will have access to reliable follow-up care. He said his interpretation of the 8th Circuit directive is that "this court is required to conduct additional fact-finding," whether Planned Parenthood is seeking a temporary restraining order, which generally lasts only 14 days, or a longer-lasting preliminary injunction.
In her 2016 injunction, Baker concluded that the contract-physician requirement was "a solution in search of a problem."
She said the law, now codified as Arkansas Code Annotated 29-16-1501 through 1510, provided few, if any, tangible medical benefits over the continuity of care protocols already in place by Planned Parenthood, making the state's overall interest in regulating medical abortions through the requirement "low and not compelling."
In considering whether the contracting physician requirement burdened women's access to abortion, Baker found that Planned Parenthood couldn't find a physician willing to be the contract physician. She said that would result in the elimination of medication-abortion services in Arkansas, and cause both Planned Parenthood facilities in Arkansas to stop offering abortion services altogether, because the clinics do not perform surgical abortions.
Baker also found that Little Rock Family Planning Services, the only clinic in the state that provides surgical abortions, would then be the only abortion provider in the state. That, Baker said, would force women in the Fayetteville area to make two, 380-mile round trips to Little Rock to obtain an abortion. This is because another state law, Arkansas Code Annotated 20-16-1703(b)(1), requires women planning to have an abortion of any type to visit the clinic where the procedure is scheduled at least two days in advance, to receive state-mandated information "orally and in person."
The increased travel distances led Baker to conclude that "some women" in the Fayetteville area would postpone the procedures, leading to an increased risk of complications, and that others wouldn't have abortions. She said she wasn't presented with enough information to determine whether the Family Planning clinic could absorb a corresponding increase in abortions.
Bronni said Friday that Planned Parenthood has made only a half-hearted effort to find a contracting physician. He also scoffed at the opinion of a researcher who submitted an affidavit in support of Planned Parenthood saying the elimination of abortion services there would prevent 235 women who would otherwise have had an abortion from obtaining one.
Bronni also pointed out that there are two abortion-providing facilities, one of which is operated by another Planned Parenthood affiliate, just 80 miles from Fayetteville in another state.
Ratakonda countered that the court has already determined that Planned Parenthood made thorough efforts to find a contract physician. She argued that the researcher in question, Colleen Heflin of Syracuse University in New York, has thoroughly explained the reasons behind her opinion. And she said the court is prohibited by law from considering out-of-state providers.
Citing the lack of a "more rigorous" showing in 2016 that Planned Parenthood was likely to prevail at an eventual trial, the 8th Circuit panel dissolved Baker's injunction and remanded it to her for further proceedings.
While a temporary injunction acts as a stopgap measure to allow the parties time to develop further information in support of a longer-lasting preliminary injunction or a permanent injunction, Planned Parenthood hasn't asked for a preliminary injunction since the case was returned to Baker's court. Baker has tentatively set a trial on the merits of the case for the week of March 11, 2019, but said Friday that the date is "fluid" and was just meant "to get the ball rolling."
In very recent filings, Planned Parenthood has included researcher Heflin's calculations that the increased travel distances caused by the law will cause abortion rates in Arkansas to decrease by 15 percent to 40 percent, depending on from which counties a woman must travel to Little Rock.
Bronni said Friday that Heflin's affidavit amounts to a series of "fundamental mathematical errors" and noted that she hasn't been subjected to cross-examination about them.
He tried earlier this week to subpoena Heflin, as well as Dr. Stephanie Ho, the named plaintiff in the lawsuit who is a physician at the Fayetteville clinic, and Lori Williams, a nurse practitioner at the Little Rock Family Planning Services clinic, who isn't a plaintiff. But Planned Parenthood attorneys filed emergency motions to quash the subpoenas, and Baker granted them Thursday, saying the women weren't given enough time to make arrangements.
The 8th Circuit panel's ruling dissolving Baker's preliminary injunction noted that in a similar case in Texas called Whole Women's Health v. Hellerstedt, which the U.S. Supreme Court was considering at the time Baker issued her injunction, the high court ultimately found that a state law requiring abortion doctors in Texas to have hospital admitting privileges increased driving distances for abortion-seekers by decreasing the number of facilities providing abortions from about 40 to seven or eight.
The high court said that while the increased driving distances alone didn't necessarily mean the new Texas law had created an "undue burden" on women's access to abortion, the shrinking number of available abortion doctors, along with longer waiting times, did burden the women's access to abortions.
The Supreme Court also found that patients would be less likely to receive individualized attention and emotional support, and would be less able to seriously discuss their situations.
Metro on 06/09/2018