By Dave Andrusko
Where have we heard this before? On Monday U.S. District Judge Kristine Baker granted a 14-day temporary restraining order that blocks Arkansas from enforcing its law which requires abortion clinics providing chemical abortifacients to have a contract with another physician with admitting privileges at a local hospital who agrees to handle any complications. Judge Baker concluded this constituted an “undue burden” on the right to obtain a chemical [“medication”] abortion.
Judge Baker’s order is in force through July 2. “Arguments will be considered in the meanwhile, presumably, on whether to make the temporary order permanent,” The Arkansas Times reported.
Judge Baker had already been down this road before in 2015 when she issued a preliminary injunction against Arkansas’ “Abortion-Inducing Drugs Safety Act.” In July 2017, the Eight Circuit Court of Appeals vacated the injunction. To no one’s surprise, Planned Parenthood Great Plains appealed.
But on May 29, without comment, the United States Supreme Court rejected the appeal, which allowed Arkansas to enforce Act 577.
Undeterred, Planned Parenthood went back to Baker. As the Associated Press put it,
Even with justices saying as recently as three weeks ago that Arkansas could enforce the law, Baker said Monday that circumstances have changed since her initial ruling.
The state was not happy. The AP reported
“Attorney General (Leslie) 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,” spokeswoman Jessica Ray said. “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.”
As NRL News Today reported last month, based on what was said in court and Judge Baker’s track record, we knew, of course, she would grant Planned Parenthood what it wanted.
At the time the Arkansas Democrat-Gazette reported
Baker took the request under advisement, saying she wasn’t certain how she is supposed to proceed in response to an 8th U.S. Circuit Court of Appeals ruling last summer that dissolved a previous injunction she issued. …
Baker asked attorneys for Planned Parenthood Great Plains, which operates one clinic each in Little Rock and Fayetteville, to submit written briefs by noon Wednesday on how they believe she should proceed, such as whether she should make additional findings before deciding the injunction request. She told attorneys that if she still has questions after reviewing the briefs, she will hold a telephone conference with them in open court to address those questions before ruling on the injunction request.
In other words, Judge Baker was saying, “Hey guys, I know what the Eighth Circuit and the Supreme Court have said, so how do we get around it? Please advise by Wednesday and when it’s obvious you haven’t a leg to stand on, I’ll call you and we’ll figure out something.”
The AP reported, “Planned Parenthood said its two facilities and another unaffiliated clinic in Little Rock have stopped offering medication abortions because of the restriction.” Dutifully, Judge Baker wrote
In regard to burdens, considered cumulatively, the record evidence at this stage of the litigation demonstrates that the contracted physician requirement, given plaintiffs’ inability to comply with it, significantly burdens a large faction of women in Arkansas seeking medication abortions.
However, in an almost exact parallel case in Missouri, Planned Parenthood Great Plains and Planned Parenthood of the St. Louis Region and Southwest Missouri challenged a regulation issued by the Missouri Department of Health and Senior Services (DHSS) in October 2017 which required that abortion providers performing chemical abortions have two Ob-Gyns on call 24/7 who have admitting privileges.
On June 12 Judge Beth Phillips ruled that Planned Parenthood affiliates had not shown that the regulation “is a substantial burden to a large fraction of women seeking a medication abortion.”
The key paragraph in her ruling found that the plaintiffs contended
that many women prefer to have medication abortions. The Court does not doubt this fact; however, for purposes of the Constitution, women are not necessarily entitled access to the procedure that they prefer. … Here, there is a safe alternative to medication abortion available to women in Columbia, and Defendants are not currently precluding RHS from providing surgical abortions in Springfield. Therefore, Plaintiffs have not established that the regulation of medication abortions presents a substantial obstacle because the Constitution protects women’s right to an abortion, not women’s right to a particular method of abortion