8th Circuit Court Gives Go-Ahead on Arkansas Abortion Law

Posted By Max Brantley, Arkansas Times Blog
LITTLE ROCK, Ark. (Arkansas Times) - An Arkansas law requiring abortion providers to have a contract with a physician with hospital admitting privileges can now be implemented. 
Federal district Judge Kristine Baker had previously filed an injunction preventing enforcement of that law, but that injunction was lifted today by the 8th U.S. Circuit Court of Appeals. 
The court said Baker had failed to "make factual findings estimating the number of women burdened by the statute, we vacate the preliminary injunction and remand for further proceedings. "
Planned Parenthood had sued over the law and Baker issued a 70-page ruling that essentially found it was a burden that added no protection to women's health. Planned Parenthood provides pharmaceutical abortions in the first nine weeks of pregnancy at medical clinics in Little Rock and Fayetteville. It had said physicians were fearful of reprisals if they entered an agreement to work with Planned Parenthood. The medicinal abortions are safe and complications rare. A two-pill regimen prompts a miscarriage. If the law is enforced and no physician steps forward, it would mean the end of medicinal abortions at Planned Parenthood and leave Arkansas with a single abortion provider, a clinic in Little Rock that also provides clinical abortions later in pregnancy.
The closure in Fayetteville means a 380-mile round trip to Little Rock for any woman there seeking an abortion. A 48-hour abortion wait law means many women would have to make two long trips.
The law was one of several intended to de facto make abortion unavailable in Arkansas. 
Planned Parenthood has two licensed physicians, but they don't have hospital privileges.
The 8th Circuit found that Planned Parenthood hadn't made a sufficient showing that it would likely prevail on the merits, a standard for issuance of a preliminary injunction. Baker had found otherwise. But the 8th Circuit said more information was needed on a specific class of women, not merely all women or all women seeking abortions:
... the district court was required to make a finding that the Act’s contractphysician requirement is an undue burden for a large fraction of women seeking medication abortions in Arkansas.
The district court did not make this finding. The court correctly held that individuals for whom the contract-physician requirement was an actual, rather than an irrelevant, restriction were women seeking medication abortions in Arkansas.
Nonetheless, it did not define or estimate the number of women who would be unduly burdened by the contract-physician requirement. Instead, it focused on amorphous groups of women to reach its conclusion that the Act was facially unconstitutional. 
The court acknowledged that the rule was relevant to women seeking abortions and that delays caused by it could lead to complications, but it said Baker had failed to estimate a number who'd risk complications.
The court said the record did an include an estimate of the number of women in the Fayetteville area who'd have been dissuaded from getting an abortion by the rule, but commented that, as a percentage of all women seeking medication abortions, it was fairly small.
On remand, we do not require the district court to calculate the exact number of women unduly burdened by the contract-physician requirement. We acknowledge that the “large fraction” standard is in some ways “more conceptual thanmathematical.”  Nonetheless, like the Sixth Circuit, we find that this standard is not entirely freewheeling and that we can and should define its outer boundaries. See id. (“[T]he term ‘large fraction,’ which, in a way, is more conceptual than mathematical, envisions something more than the 12 out of 100 women identified here.”). Thus, on remand, the district court should conduct fact finding concerning the number of women unduly burdened by the contract-physician requirement and determine whether that number constitutes a “large fraction.”
The court didn't take up the question of whether the law provided a benefit to women in increased regulation. But, in a footnote, it criticized Baker's finding of little compelling benefit from the state law.
In determining that the contract-physician requirement’s benefits would be “low and not compelling,” the district court concluded that Planned Parenthood’s current continuity-of-care protocols were adequate. Hellerstedt, however, compared H.B. 2  to Texas’s pre-existing law, not Texas abortion providers’ current protocols. See 136 S. Ct. at 2311 (“We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a ‘working arrangement’ with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.” (emphasis added)). Moreover, Planned Parenthood could unilaterally decide to discontinue its twenty-four-hour nurse-staffed phone line, end patient referrals to surgical providers, or stop consultations with emergency-room
Here is a statement from Arkansas Attorney General Leslie Rutledge:
“In a unanimous opinion, the 8th Circuit recognized that the lower court incorrectly analyzed the law,” said Attorney General Rutledge. “The injunction was vacated because Planned Parenthood failed to show that the state law is a substantial obstacle, preventing most women from having access to abortion services. This common sense law will help ensure that medication abortions are conducted in a safe, responsible manner and with appropriate protections for women. While the Court did not reach a final decision on the ultimate merits, today’s decision is an important notice to the lower court that this law has important benefits for patients. I will continue to defend Act 577 as Planned Parenthood continues its challenge.”

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