Pro-abortion judge takes herself off case challenging Arkansas restrictions on abortion during COVID-19 pandemic

By Dave Andrusko

An update to a story we filed late Friday, based on a brief four-page order handed down by a federal judge. The context is the weeks-long battle over a prohibition on “non-emergency medical procedures” waged by the ACLU against the state of Arkansas.

In a “shocker,” (as we described it), U.S. District Judge Kristine Baker 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.

Linda Satter, who does yeoman work on the abortion issue for the Arkansas Democrat-Gazette, offered more detail in a story headlined. “Abortion provider objects to directive” Filing says virus testing a hurdle” that ran on early Saturday morning.

Spoiler Alert. The pro-abortion judge who had handled the case bowed out.

In a nutshell, the ACLU, which is representing Little Rock Family Planning Services, tried yet again to evade the requirements of (in this case the second) Executive Order issued by Gov. Hutchinson and put into practice by the state health department.

As NRL News Today has written on several occasions, the ACLU was particularly annoyed by the first of three criteria, which had to be met: (1) a patient tests 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.

The ACLU went back to Judge Kristin Baker. Satter writes

Attorneys for the Arkansas Civil Liberties Union, which was already pursuing legal action on behalf of the clinic in response to state directives, tried to file the emergency motion in an ongoing case before U.S. District Judge Kristine Baker. Baker recently sided with the clinic and blocked the state from enforcing one of its virus directives, only to be overturned by the 8th U.S. Circuit Court of Appeals.

Satter then speculates on Judge Baker’s motives for saying no, which make perfect sense:

But Baker, mindful of being scolded by the 8th Circuit for allowing the clinic to seek relief from the earlier directive through an existing case, refused to accept the filing. She instead transferred it to the U.S. district clerk’s office for reassignment to another judge.

Refiled as a new case, the ACLU lawyers are now before U.S. District Judge Brian Miller.

The ACLU argues, “Once again, Arkansas is putting up medically unnecessary and insurmountable obstacles for patients seeking abortion care,” according to Jennifer Dalven, director of the ACLU Reproductive Freedom Project.

The gist of their complaint is that some women near the legal limit for abortion in Arkansas–21.6 weeks from the beginning of a woman’s last menstrual period—are unable to secure an abortion. “In many cases,” the ACLU contends, because “[COVID-19] tests and testing resources are in short supply and results are generally not available within two days.”

It is not entirely clear, but the “many” totaled either three or four women, one of whom had first tried to get an abortion in Texas.

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