By Dave Andrusko
On Friday the Arkansas Attorney General’s office asked U.S. District Judge Brian Miller “to dismiss a Little Rock abortion clinic’s legal challenge to a statewide directive requiring patients scheduled for non-emergency surgeries to be tested for covid-19 within 48 hours of the procedure,” according to Linda Satter of the Arkansas Democrat-Gazette.
As NRL News Today reported last week, Judge Miller, having replaced Judge Kristine Baker who took herself off the case, rejected a request by the ACLU for a temporary restraining order to block a rule requiring a negative coronavirus test 48 hours before any elective surgery, which includes elective abortions.
But, as Satter wrote, the request by Little Rock Family Planning Services, the state’s lone provider of surgical abortions
for a permanent injunction still remains. That request seeks a ruling that the directive is unconstitutional as applied to abortion clinics and an order preventing its enforcement long-term.
The basic ACLU argument was and is that for some women reaching the outer limits of permissible abortions in Arkansas (21.6 weeks), the 48 hour testing requirement was so “burdensome” it prevented them from obtaining their abortions.
But as Judge Miller noted in his decision,
“ADH [Arkansas Department of Health] states that, despite the difficulties faced by Jane Does 1–4, the COVID-19 testing requirement is not so burdensome as to prevent women from receiving surgical abortion. It points out that it performed an unannounced inspection of LRFP’s facility on May 1, and found that LRFP performed four surgical abortions between April 27 and May 1, and that all four women had timely COVID-19 testing results.”
In his Friday filing Assistant Solicitor General Dylan Jacobs noted that fact. Jacobs also wrote that starting yesterday, the 48 hour requirement had been changed to 72 hours which “makes compliance even more manageable.”
Jacobs “argued that the lawsuit should now be dismissed because the clinic lacks legal standing — a vested interest in the outcome — to pursue the case on behalf of its patients,” Satter wrote. “He also argued that several state officials named as plaintiffs are protected from suit by sovereign immunity, which shields them from actions taken to carry out their duties.”
The ACLU continues to try to evade the requirements of the Executive Order issued by Gov. Asa Hutchinson on March 11 and extended on May 5 for an additional 45 days. and put into practice by the state health department. The governor declared a state of emergency “giving the Health Department authority to impose restrictions necessary to combat the coronavirus. ” That included limiting surgeries to “out-patient” procedures, which included surgical abortions.