Court urged to skip review of Arkansas abortion law

Arkansas Attorney General Leslie Rutledge has formally asked the 8th U.S. Circuit Court of Appeals to refuse to rehear arguments about a 2015 state law that restricts access to abortion.

On July 28, a three-judge panel of the St. Louis-based appellate court overturned U.S. District Judge Kristine Baker’s 2016 order blocking the Abortion Inducing Drugs Safety Act, also known as Act 577 of 2015, from going into effect.

The law was intended to take effect Jan. 1, 2016, but Baker blocked its enforcement first through a temporary restraining order, and then March 14, 2016, through a longer-lasting preliminary injunction, after Planned Parenthood sued.

The only abortions Planned Parenthood provides at its two Arkansas clinics — one each in Little Rock and Fayetteville — are medication-induced abortions. Its lawsuit complained that Act 577 would effectively force women in Arkansas to obtain surgical abortions, which are available at only the Little Rock Family Planning Clinic, and that would force some women to drive unreasonably long distances, effectively preventing some from obtaining abortions.

Baker agreed with Planned Parenthood, but the panel of judges that heard oral arguments on March 7 vacated her injunction. The panel remanded the case to Baker with instructions to make a more complete estimate of the number of women burdened by the law before deciding whether to block its enforcement.

Planned Parenthood has asked that the panel decision be reviewed “en banc,” or by the entire appeals court, which consists of 14 judges. The “en banc” court could overturn the panel’s decision.

But Rutledge filed a request with the appeals court on Thursday opposing the “en banc” request.

She argued that “this case concerns whether Arkansas may require abortion providers to maintain an arrangement with a physician who has the skills necessary to handle emergencies and complications associated with abortion-inducing drugs to ensure continuity of patient care.”

She said a 2016 U.S. Supreme Court case cited by Planned Parenthood in seeking the full-court review is different from the case at hand, which “does not require that abortion providers have admitting privileges within a 30-mile radius, a bi-county area, a metropolitan area, or anywhere else.”

The case cited by Planned Parenthood, Whole Women’s Health v. Hellerstedt, struck down a Texas law requiring provider admitting privileges, but the requirement in the Arkansas law isn’t similar, Rutledge said. Arguing that the cases are similar “amounts to little more than puffery masquerading as legal analysis,” the attorney general’s office filing asserted.

State attorneys said Arkansas lawmakers enacted the law in response “to medical evidence that abortion-inducing drugs are associated with an increased risk of complications relative to surgical abortion.” However, Planned Parenthood attorneys have called medication abortion a “safe, early form of abortion.”

“To ensure that patients who experience complications

have access to a physician with the skills necessary to advise patients on those complications and treat them, that act requires providers of drug-induced abortions to give patients ‘the name and phone number’ of a physician who has contracted with the provider and ‘agreed to handle complications’ and ‘emergencies associated with the use or ingestion of the abortion-inducing drug,’” the state’s filing states.

It said Act 577 also requires that the contracting physician have “active admitting privileges and gynecological/surgical privileges at a hospital designated to” handle emergencies related to abortion-inducing drugs.

Baker determined that the access burdens created by the law outweighed its safety concerns and that practices already in place by Planned Parenthood were sufficient to ensure that women receiving medication abortions through the clinics receive continuity of care after they have left the clinic.

Planned Parenthood attorneys said they couldn’t find any doctor willing to serve as an uncompensated contract physician because of the personal and professional consequences of being associated with an abortion provider, even if they support access to abortion.

Noting that the threejudge panel remanded the case to Baker to make more specific findings on the number of women who might be burdened by the law, the attorney general said there is no reason to rehear the matter. State attorneys said the other states’ rulings, which Planned Parenthood contends create conflicts with the panel’s ruling, aren’t similar to the Arkansas case.

Planned Parenthood’s “other attempts to manufacture conflicts justifying rehearing similarly lack merit,” Rutledge’s office wrote.