In a shocker, federal judge does not give abortion clinic second TRO against Arkansas restrictions on abortion during COVID-19 pandemic

By Dave Andrusko

Judge Kristine Baker

In a stunning development, U.S. District Judge Kristine Baker today rejected the request of Arkansas’ lone surgical abortion facility for another Temporary Restraining Order, this time against Gov. Asa Hutchinson’s second Executive Order that addresses the question of under what conditions elective abortions would be allowed during the COVID-19 pandemic. 

In her brief four-page order, Judge Baker alluded to several timing issues but the core of her decision derives from  the following:

With its ruling in this case, the Eighth Circuit clarified the law to be applied under Jacobson v. Massachusetts, 197 U.S. 11 (1905), to these claims in the unprecedented and unusual circumstances presented by this pandemic.   …. That clarification regarding the substantive law to be applied in this case leads the Court to its result.

Arkansas AG Leslie Rutledge

As NRL News Today has reported previously, the state’s pro-life Attorney General, Leslie Rutledge, has slugged it out with the ACLU which is representing Little Rock Family Practice Services, for weeks. The 8th U.S. Circuit Court of Appeals was straightforward in its criticisms of how Judge Baker reached various conclusion, as we reported here.

But as the time approached for the expiration of Gov. Hutchinson’s first Executive Order, issued on April 3, the governor offered what Linda Satter of the Arkansas Democrat-Gazette called more “relaxed” criteria for when surgical abortions could be performed. (There were never any limitations on “medication” abortions which would not put the same strain on medical services that surgical abortions do and were more readily able to meet  the norm of “social distancing.”)

From the very moment the new criteria were announced, the ACLU was highly skeptical. The three key new provisions are that (1) a patient test negative for COVID-19 at least 48 hours before the surgical procedure; (2) surgeries are limited to “out-patient” procedures; and (3) the surgical facility must have an “amply supply” of PPE—Personal Protective Equipment.

Evidently, the ACLU persuaded itself such commonsense requirements were too “burdensome.”

At the time  this story is being composed, late Friday afternoon, the Attorney General’s office has not commented. As we understand it, Judge Baker has declined to preside over this particular lawsuit any longer. Assuming the plaintiffs continue to pursue the case, it would be in front of another judge, randomly assigned.

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