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story.lead_photo.caption U.S. District Judge Kristine Baker is shown in this file photo.

The 8th U.S. Circuit Court of Appeals' insistence that a federal judge in Little Rock determine whether a "large fraction" of women seeking medication abortions would be unduly burdened by a 2015 state law led to a 100-page order, filed Monday, that contains dozens of mathematical calculations.

In the end, U.S. District Judge Kristine Baker's findings came down to this:

• The contracted-physician requirement of Act 577 of 2015, codified as Arkansas Code Annotated 20-16-1501, will affect 100 percent of women seeking an abortion in Arkansas. This is because it effectively eliminates medication-induced abortion, which most patients favor, and it would force those preferring or requiring a surgical abortion to endure longer wait times and reduced quality of care at the only clinic in the state that could still provide abortions. Without the law, medication abortions can be performed at Planned Parenthood clinics in Little Rock and Fayetteville, and both medication abortions and surgical abortions can be performed at Little Rock Family Planning Services.

• By leaving Northwest Arkansas without any operational abortion provider, "depending on how the numerator and denominator of the 'large fraction' are manipulated, upwards of 28 percent to as low as 11 percent of all women seeking medication abortions will be forced to forgo any abortion altogether."

• In addition to those women who won't be able to have an abortion at all, "at least 43 percent and as many as 71 percent of all women seeking medication abortions in Arkansas will be forced to travel greater distances to receive an abortion," costing them travel expenses, child care expenses, possible lost wages and potentially putting them at risk of losing their jobs. Requiring abortion-seekers to travel to Little Rock from across the state is "especially difficult for low-income women," who comprise most of the patients at Planned Parenthood's Fayetteville clinic. The delays and extra costs of travel also will force those women into having later-term abortions that are riskier and more expensive.

Baker said she considered the burdens cumulatively, as the U.S. Supreme Court did in a 2016 case that has many similarities to the Arkansas case, to conclude that "for a large fraction of women seeking medication abortions in Arkansas, the contracted-physician requirement places a substantial obstacle in the path of a woman's choice."

She also noted that an unrelated precedent-setting opinion at the 8th U.S. Circuit Court of Appeals in St. Louis, which oversees federal courts in Arkansas and six other states, suggests that 18 percent constitutes a "large fraction."

In granting a 14-day restraining order that allowed medication abortion to resume in Arkansas after a brief hiatus, Baker found that the plaintiffs in a lawsuit challenging the contracted-physician requirement, Planned Parenthood and one of its abortion doctors, are likely to ultimately win their case.

She said this is because the requirement "places a substantial obstacle in the path of a woman's choice" for "a large fraction of women seeking medication abortions in Arkansas," a scenario that the U.S. Supreme Court has said is necessary to find the law unconstitutional.

The requirement is contained in Section 1504(d) of Act 577, also known as the Abortion-Inducing Drugs Safety Act, passed by legislators in 2015.

The law provides civil and criminal penalties to any doctor who performs medication abortions without a signed contract with a physician agreeing to handle complications.

It 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.

Planned Parenthood sued just before the law was to take effect, saying the contracted-physician requirement is unnecessary and impossible for clinics to meet, effectively banning medication-induced abortions.

The law was originally to take effect on Jan. 1, 2016, but Baker issued a temporary restraining order and then a preliminary injunction that together blocked it from taking effect until May 31 of this year.

That's two days after the U.S. Supreme Court declined to review a July 28 opinion in which the 8th Circuit dissolved Baker's injunction. The 8th Circuit had prevented its order from taking effect while Planned Parenthood petitioned the nation's highest court to hear the case.

This means that the law was in effect in Arkansas for only 19 days -- from May 31, the date the 8th Circuit officially returned the case to Baker's jurisdiction, until Monday, when Baker issued her 100-page order.

In those 19 days, all three of the state's abortion clinics reported having to cancel several appointments for medication abortions. Medication abortions are available only through the ninth week of pregnancy, making delays especially worrisome to women who are approaching that deadline.

In dissolving Baker's injunction, the 8th Circuit panel didn't wade into the merits of arguments about the law's constitutionality. The panel instead vacated Baker's injunction on the grounds that she was required to, but didn't, decide whether the contract-physician requirement was a burden for "a large fraction of women seeking medication abortions in Arkansas."

The 8th Circuit sent the case back to Baker with instructions to "conduct fact finding concerning the number of women unduly burdened ... and determine whether that constitutes a 'large fraction.'"

On Thursday, fueled by Baker's voluminous order dissecting the "large fraction" question from several different perspectives, Planned Parenthood renewed its 2016 request to turn the temporary injunction -- which expires at 5 p.m. July 2 -- into a longer-lasting preliminary injunction.

If granted, the injunction would hold until a trial is held on the constitutional question, probably several months from now.

In a telephone conference with attorneys Thursday afternoon, Baker emphasized that she wants to conduct the more intensive preliminary-injunction hearing, which may involve testimony, in time to rule on it before the temporary order expires.

She urged attorneys to work together to set aside time for the hearing this week. After attorneys for Planned Parenthood and the state contacted Baker's office Friday afternoon with the results of their discussions, the judge set the preliminary injunction hearing to begin at 1 p.m. Wednesday.

Baker said she expects the hearing to last a day or more, and indicated she would issue a written ruling by 5 p.m. the next Monday.

In her 100-page temporary restraining order, Baker put her foot down on hearing any more arguments from the state about the dangers of medication abortions, which the state has cited to justify the controversial requirement.

"The evidence in this case, and in the prior cases cited by the Court including Hellerstedt [a 2016 U.S. Supreme Court ruling on a similar Texas law that established the "large fraction" standard], is clear that the procedures are remarkably safe," Baker wrote.

"To the extent either party wishes to revisit the issue of dangerousness of first trimester and second trimester abortions, this Court determines that the Supreme Court has now spoken on this subject, and this Court is required to follow," she said.

She also wrote that "to the extent that the Legislature made factual findings that early-term abortions are unsafe, those findings were simply incorrect," and will be disregarded.

Baker explained that the nation's highest court has advised judges not to leave questions of medical uncertainty in the hands of legislators, and has declared that judges have "an independent constitutional duty to review factual findings where constitutional rights are at stake."

She added that Planned Parenthood "has provided medication abortions in Arkansas since 2008, and the record contains evidence that it is 'extremely rare' for [Planned Parenthood] to refer a patient to a local emergency room or for a patient to go to an emergency room on her own due to medication abortion complications."

Her order discussed a case from Wisconsin focusing on a similar law in which the 7th U.S. Circuit Court of Appeals in Chicago affirmed the district court, which found "there is no reason to believe" that the health of abortion-seeking women is endangered if their abortion doctors don't have hospital admitting privileges.

The 7th Circuit cited a brief filed in the Wisconsin case by the American College of Obstetricians and Gynecologists, the American Medical Association and the Wisconsin Medical Society. It said, "It is accepted medical practice for the hospital-based physicians to take over the care of a patient and whether the abortion provider has admitting privileges has no impact on the course of the patient's treatment."

The 7th Circuit, Baker said, "rejected the idea that such admitting privileges within 30 miles of a clinic were required to ensure the 'Good Housekeeping Seal of Approval' on doctors."

Planned Parenthood has said it has tried diligently but cannot find a physician willing to contract with its abortion doctors to comply with the 2015 law. Attorneys for the state have suggested the provider didn't try hard enough. But in her temporary order, Baker said it is clear that it would be nearly impossible for Planned Parenthood to find a physician with admitting privileges who is willing to contract with the provider.

Baker acknowledged in the order that states are allowed to enact regulations to protect the health of women seeking abortions or to further the state's interest in fetal life, as long as they don't pose an undue burden on the woman.

But she said she must consider whether requiring abortion providers in Arkansas to comply with the contracted-physician requirement furthers a legitimate state interest, "as compared to Arkansas' pre-existing regulations affecting abortions."

Metro on 06/24/2018

Print Headline: Judge's math found abortion law burdened 'large fraction'

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