On Monday, more than three years after Planned Parenthood clinics in Arkansas challenged a new state law they said was impossible to comply with and was designed to end medication abortions statewide, they asked to dismiss the case.
While still contending that Act 577 of 2015 is unconstitutional, Planned Parenthood said a doctor who meets the contract-physician requirements of the law recently came forward offering to provide the services, making the hard-fought lawsuit moot.
Arkansas Attorney General Leslie Rutledge announced the development in a news release late Monday afternoon after Planned Parenthood announced it will comply with the law. She asked a federal appeals court to vacate a district judge's July 2 order preventing the law from being enforced.
"The removal of the preliminary injunction will allow Arkansas law to take effect, ensuring that women have access to reliable emergency health care following complications associated with medication abortions," Rutledge said. "After challenging this requirement for three years and claiming it could not comply, Planned Parenthood has finally agreed to follow this common-sense law."
The case is currently in the jurisdiction of the 8th U.S. Circuit Court of Appeals in St. Louis, after the state appealed U.S. District Judge Kristine Baker's July 2 order granting a preliminary injunction. In late August, the 8th Circuit denied the state's request to stay Baker's injunction, or prevent it from taking effect during the appeal process. That allowed abortion clinics in Little Rock and Fayetteville to continue providing medication-induced abortions while the appeal was pending.
Act 577 also affects Little Rock Family Planning Services, which provides both medication and surgical abortions in Little Rock but didn't join the lawsuit. It requires providers of the pill-induced method of abortion to have a signed contract with a physician who has hospital admitting privileges in the event of an emergency.
Both Little Rock Family Planning and Planned Parenthood, which operates one clinic each in Little Rock and Fayetteville, said the law was impossible for them to meet because they couldn't find a qualifying doctor willing to contract with an abortion provider. One complicating factor they cited was that many hospitals refuse to grant admitting privileges to doctors who are associated with abortion providers.
"It took us three years or more to find a doctor who would be willing to contract with us," attorney Bettina Brownstein of Little Rock said Monday. "Once it happened, we moved to dismiss our case."
She added, though, that the law is "still totally unconstitutional. It has nothing to do with women's health or safety."
Brownstein declined to name the doctor or identify the city in which the doctor practices. She said the doctor came forward "recently," out of the blue, after Dr. Stephanie Ho, an abortion doctor at Planned Parenthood's Fayetteville clinic, made repeated attempts at the judge's urging to find a doctor willing to be the contract physician.
"We kept trying and trying. The judge said we had to keep trying. And finally, somebody wonderful came forward," Brownstein said.
Little Rock Family Planning Services' director also testified during hearings in Baker's court about the impossibility of being able to find a cooperating physician.
Brownstein said the doctor who came forward isn't required by the law to work or live within any particular distance of a hospital or from the woman taking the abortion-inducing medication, and will be available to consult by telephone with other physicians -- such as those in emergency rooms -- in the event of an emergency.
Abortion providers testified that emergencies stemming from medication abortions are rare, and that the procedure is widely regarded as safe. For women who haven't yet reached their 10th week of pregnancy, the method is also an increasingly popular alternative to surgical abortions. Surgical abortions are required after the ninth week.
For a brief period earlier this year after the 8th Circuit dissolved an earlier injunction Baker issued, Arkansas became the first state in the nation to effectively ban medication abortions.
Barring a reversal by the 8th Circuit, Baker's latest injunction was to remain in effect until the law's constitutionality could be determined at a trial.
On July 28, 2017, a three-judge panel at the appellate court dissolved the injunction Baker issued in May 2016 and directed her to reconsider the matter after specifically determining whether a "large fraction" of Arkansas women seeking medication abortions would be unduly burdened by the law.
In response, Baker issued a 148-page order full of detailed mathematical calculations, finding that the law did unduly burden a "large fraction" of such women within the state. That order followed a 100-page order she had issued June 18 to block the law from taking effect on a temporary basis -- for up to 14 days -- until additional information was provided through legal briefs, other documents and testimony.
Baker noted that the U.S. Supreme Court has said that medication abortion is a "remarkably safe" procedure, and refused to hear any more arguments pertaining to safety.
In 2017, Planned Parenthood provided 843 medication abortions -- in which the first drug is taken at the clinic and the second is taken 48 hours later at home. Little Rock Family Planning provided 92 medication abortions and 2,334 surgical abortions during the same time period. Planned Parenthood doesn't provide surgical abortions.
Baker said that Section 1504(d) of Act 577 of 2015 would shut off medication abortion services at both of Planned Parenthood's clinics in the state, forcing women who live in Northwest Arkansas to make two 380-mile round trips to Little Rock for a surgical abortion, creating an "imminent threat" to their constitutional rights. Two trips are usually required because of another Arkansas law requiring women seeking medication abortions to visit the clinic at least 48 hours in advance of the procedure.
Metro on 11/06/2018