Arkansas order limiting abortions can go into effect, court rules

shutterstock 1031114452 Arkansas state capitol. | Paul Brady Photography/Shutterstock

A federal appeals court on Wednesday allowed a state order halting elective surgical abortions in Arkansas to go into effect. The measure was put in place to conserve medical resources during the coronavirus pandemic.

A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit decided 2-1 in favor of Arkansas on Wednesday, which had appealed a lower court's decision to halt the order. On April 14, a federal district court put a temporary restraining order on the state's act to stop non-medically necessary surgical abortions during the public health emergency caused by COVID-19.

The state's health department on April 3 had declared a halt to non-essential surgeries during the pandemic, and surgical abortions not deemed medically necessary by a doctor were included under the order. The Arkansas health department has reported 2,276 cases of COVID-19, as of Wednesday afternoon.

On April 9, health department inspectors arrived at Little Rock Family Planning Services (LRFP) unannounced, and found that the clinic was still providing surgical abortions. The next day, the health department sent the clinic a cease-and-desist letter ordering a stop to surgical abortions "except where immediately necessary to protect the life or health of the patient."

The Diocese of Little Rock's Respect Life Office told CNA on April 16 of a "particularly troubling" increase in abortions at the clinic, especially by women traveling from neighboring Texas and Louisiana, states which have halted elective abortions.

However, U.S. District Judge Kristine Baker on April 14 ruled that evidence sided with the abortion providers in their claim that the state's order would "inflict serious physical, emotional, and psychological injuries on (the abortion provider's) patients by forcing them to delay, or altogether forgo, access to abortion care." Baker put a temporary restraining order on the state's directive.

On Wednesday, the Eighth Circuit appeals court sided with Arkansas, granting it mandamus relief from the lower court's entry temporary restraining order. The state's directive "is facially neutral," the judges said, as its ban on non-essential medical procedures "applies to all types of surgical procedures" and not just abortions.

Judges Bobby Shepherd and Ralph Erickson said that the state "has satisfied its burden in demonstrating that it has no other means to obtain the relief that it seeks, that it is clearly and indisputably entitled to the writ, and that entry of the writ is appropriate under the circumstances." Judge James Loken dissented from the ruling.

After the appeals court decision, the American Civil Liberties Union tweeted "This isn't the end."

Eight states that have issued temporary bans on elective surgical abortions as non-essential medical procedures during the pandemic are fighting in court to keep the bans, many of which have been partially or completely stopped by federal courts.

Some elective abortions in Alabama, Oklahoma, Ohio, Iowa, Louisiana, and Tennessee have been allowed to continue.

Abortion supporters in Iowa reached an agreement with a state order outside of court. In Alaska, state officials delayed abortions until June and the action has not been legally challenged, as well as a state order banning non-essential abortions in Mississippi. Louisiana's order halting elective abortions has not yet been blocked in court.

The Fifth Circuit sided with Texas on April 7, but did temporarily allow for chemical abortions in the state to continue. Then on Wednesday it said the state's ban on chemical abortions could continue. The Sixth Circuit, meanwhile, allowed chemical abortions and some surgical abortions to continue in Ohio, on a case-by-case basis.

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