Appeals court retains hold on Arkansas law regulating chemical abortions

By Dave Andrusko

Judge Kristine Baker

Here’s the latest update in the long, long saga of the impact of U.S. District Judge Kristine Baker’s July injunction preventing Arkansas from enforcing Act 577. (Hint, it is very complicated.)

The 2015 law 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.

Planned Parenthood told reporters Thursday that the day before the 8th Circuit Court of Appeals rejected the state’s request to put Baker’s injunction on hold (“stay”).

In granting the injunction, “Baker considered whether the contract-physician requirement’s benefits are substantially outweighed by the burdens it imposes on a large fraction of women seeking medication abortion in Arkansas,” according to Linda Satter of the Arkansas Democrat-Gazette. Baker said the burdens outweigh the benefits of the law.

(Baker’s junction is separate from the question of the law’s underlying constitutionality. Her injunction will stay in place until the law’s constitutionality is determined—or until the 8th Circuit grants the state’s appeal, which it did not do on Wednesday in a one page order.)

“The state’s appeal over the preliminary injunction halting the law is still pending before the appeals court, which had sided with the state over an earlier ruling by Baker against the restriction,” the AP’s Andrew DeMillo reported.

This is an allusion to a three judge panel of the Eight Circuit Court of Appeals which vacated the injunction. As NRL News Today readers may recall, on May 29, the U.S. Supreme Court upheld the three judge panel’s decision.

The state’s attorney general vowed to continue the fight.

“The denial of a stay pending resolution of the appeal allows Planned Parenthood and Little Rock Family Planning Services to continue providing medication abortions without access for women to reliable emergency health care following complications,” Attorney General Leslie Rutledge said in a statement. “Last year, the 8th Circuit unanimously ruled that Judge Baker was incorrect in her efforts to originally attempt to block this law. Attorney General Rutledge will continue to defend Arkansas law and fight to protect the lives of women across the state.”

Looking ahead, there is 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 in October 2017. That DHSS regulation 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.”