Lone surgical abortion facility in Arkansas withdraws lawsuit against COVID-19 related abortion requirements

By Dave Andrusko

U.S. District Court Judge Brian Miller
Photo: Arkansas State University

Arkansas’ lone surgical abortion facility has dropped its federal lawsuit against a directive from the state Health Department which included the provision requiring women to obtain negative covid-19 test results within 48 hours of the abortion.

Little Rock Family Planning Services, represented by the ACLU, asked “that the lawsuit filed May 1 on behalf of it and one of its doctors, Thomas Tvedten, be dismissed ‘without prejudice,’ which would allow it to be refiled ‘if additional factual developments so require,’” reported Linda Satter for the Arkansas Democrat-Gazette.

Although it “continues to believe the clinic and its patients were entitled to relief,” LRFPS withdrew its lawsuit after the 48 hour requirement was changed to require testing within 72 hours of any surgical procedure, Satter added.

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.

The lawsuit, in all its permutations, goes back to 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.

The ACLU went to a favored judge– U.S. District Judge Kristin Baker—who gave them what they wanted. Baker, in return, was politely but firmly rebuffed by the 8th U.S. Circuit Court of Appeals. She withdrew without an explanation and was replaced by U.S. District Court Judge Brian Miller who rejected a request by the ACLU for a temporary restraining order.

As did the 8th Circuit, Judge Miller found the limitations were “clearly related to the COVID-19 health crisis.” Moreover, “The April 27 directive’s COVID-19 testing requirement is not beyond all question, a plain, palpable invasion of the right to have an abortion. First, notwithstanding the parties’ history of fighting over abortion, the record does not support the position that the ADH promulgated the April 27 directive with an eye toward limiting abortions.”

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