Medication-induced abortion is available again in Arkansas, starting today, after a federal judge issued a temporary restraining order Monday evening that prevents the state from enforcing a section of a 2015 law requiring abortion providers to contract with a second doctor who has hospital admitting privileges.
The restraining order issued by U.S. District Judge Kristine Baker expires at 5 p.m. July 2 -- exactly 14 days from the time it was filed. In that time, Planned Parenthood, which challenged the constitutionality of the section, could ask for the temporary order to be renewed for another two-week period or seek a preliminary injunction. A restraining order can only be renewed once. A preliminary injunction, which can be granted only after additional evidence is presented, would remain in effect until the law's constitutionality is determined.
Medication abortions, which begin with a pill administered at a clinic and conclude with a second pill administered at home, were halted in Arkansas on May 29, the day the U.S. Supreme Court declined to review Planned Parenthood's appeal of a federal appellate panel's ruling last July. That left in place the panel's ruling dissolving a preliminary injunction Baker issued in 2016 to stop enforcement of the law.
Little Rock attorney Bettina Brownstein said Monday evening that she planned to immediately call her clients -- Planned Parenthood and Dr. Stephanie Ho, who performs pill-induced abortion at the provider's Fayetteville clinic -- to let them know that the abortions may resume today. However, Brownstein noted that even though Baker's order took effect immediately, that doesn't mean the pill-induced abortions will actually resume today, because another Arkansas law requires women seeking an abortion to visit the clinic first to receive state-mandated written and oral information, and then wait at least two days before returning for the procedure.
Baker's restraining order also allows pill-induced abortions to resume at Planned Parenthood's facility in Little Rock and at Little Rock Family Planning Services. While Planned Parenthood provides only medication abortions, the Family Planning clinic provides both surgical and medication-induced abortions. Medication abortions, which are available for up to 70 days after a pregnant woman's last menstrual period, have been provided in Arkansas since 2008, while abortions have been available in the state for 30 years, according to Baker's order.
The temporary order prevents the enforcement of Section 1504(d) of Arkansas Act 577, codified at Arkansas Code Annotated 20-16-1504(d), which provides civil and criminal penalties to any doctor who performs medication abortions without a signed contract with a physician agreeing to handle complications. The section requires the contracted physician to "have active admitting privileges and gynecological/surgical privileges at a hospital designated to handle any emergencies associated with the use or ingestion of the abortion-inducing drug," and requires every patient to receive the name and phone number for the contracted physician and the hospital where the doctor maintains privileges.
Temporary restraining order in medication abortion caseView
Planned Parenthood sued just before the law was to take effect on Jan. 1, 2016, saying the contracted-physician requirement is unnecessary and impossible for them to meet. While legislators touted it as a safety measure for women, Planned Parenthood said its real intention was to eliminate a form of abortion that is increasing in popularity across the state and country.
Jessica Ray, a spokesman for Arkansas Attorney General Leslie Rutledge, who has defended the law, issued a statement Monday evening saying Rutledge "is disappointed in Judge Baker's decision to issue a temporary restraining order against an Arkansas law that protects the health of pregnant women. Judge Baker's ruling allows Planned Parenthood and Little Rock Family Planning Clinic to administer medication abortions without the necessary safety net available for women who experience emergencies and complications."
In dissolving Baker's previous injunction, the three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis said Baker needed to reconsider the issue after determining whether the contract-physician requirement would "operate as a substantial obstacle" for a "large fraction" of women seeking abortions in Arkansas.
Baker had previously found that by eliminating abortion in Arkansas outside Little Rock, the requirement would cause "some women" who live closer to Fayetteville to postpone the procedure, leading to an increased risk of complications, and would cause others not to have abortions at all.
In arguments Baker heard June 8 in an effort to settle the "large fraction" question, attorneys for Planned Parenthood cited an out-of-state researcher's calculations that the increased travel distances for Arkansas women forced to drive to Little Rock for an abortion would cause abortion rates in the state to decline by 15 percent to 40 percent, depending on which counties a woman was driving to Little Rock from. Nicholas Bronni, an attorney for Rutledge, countered that there are two facilities that provide abortion in Tulsa, just 80 miles from the Arkansas border. One is another Planned Parenthood clinic, he said.
In a 100-page order, Baker cited difficulties that many women, particularly poor women without transportation, will face in making two trips to Little Rock to obtain an abortion. She cited Ho's sworn statement that at least 57 percent of abortion patients at the Fayetteville clinic live at or below 110 percent of the federal poverty level.
She also cited Ho's unsuccessful efforts to find other doctors willing to contract with abortion providers, noting, "There is evidence in the record that physicians who provide abortions or associate with physicians who provide abortions risk being ostracized from their communities and face harassment and violence toward themselves, their families, and their private practices. Even if a physician is willing to take on these risks ... many private practice groups, hospitals, HMOs, and health networks will not permit physicians working for them to associate with abortion providers."
Citing the decrease in abortion providers created by the law and the burdens it will impose on women individually and collectively, she said that "at this point in the litigation ... the contracted physician requirement presents a significant burden to a large fraction of women seeking medication abortions in Arkansas." She cited evidence that 935 medication abortions were performed statewide in 2017 and that 71 percent of women who seek abortions have a strong preference for medication abortions.
"The law results in one-quarter of all medication abortion patients (and 36 percent of medication abortion patients in Fayetteville) being prevented from having an abortion entirely, according to expert testimony in the case," said a news release from Planned Parenthood Federation of America.
Metro on 06/19/2018
Print Headline: Judge blocks law inhibiting Rx abortions