Federal judge says state can require COVID-19 tests before abortions

shutterstock 102119263 Arkansas state capitol. | Paul Brady Photography/Shutterstock

A federal judge in Arkansas on Thursday upheld the state's requirement that women obtain a negative coronavirus test before having an abortion.

Calling the decision "agonizingly difficult," Judge Brian Miller for the Eastern District Court of Arkansas said the state's testing mandate-which applies to all elective surgeries and not just abortions-is "reasonable" during the public health emergency and was not done "with an eye toward limiting abortions.

The judge noted that "it is undisputed that surgical abortions have still taken place."

The abortion clinic Little Rock Family Planning Services had requested a temporary injunction on the state health department's requirement that elective surgery patients obtain a negative new coronavirus (COVID-19) test result within 48 hours before the procedure.

Previously, the health department ordered a halt to non-essential surgeries on April 3 to preserve resources for treating COVID-19.

The Little Rock abortion clinic performed abortions while claiming they were offering "essential" procedures, and after the health department ordered them to stop on April 10, the clinic challenged the state in court. The diocese's Respect Life Office noted that women were traveling to the clinic for abortions from nearby states such as Texas and Louisiana.

The clinic won its case for a temporary restraining order at the district court level, but the Eighth Circuit appeals court subsequently overruled that decision and sided with the state.

The April 3 directive was updated April 24 to allow for some elective surgeries provided certain conditions were met. Elective abortions were included in the "non-essential" surgeries that were allowed to continue on April 24.

These conditions included no overnight stays, no contact with COVID-19 patients in the previous 14 days, and a negative COVID-19 test for patients within 48 hours of the surgery.

According to the clinic, which asked for a temporary injunction, three women were seeking to obtain "dilation and evacuation" abortions but were prevented from meeting the state's testing requirmenet. One woman said she was unable to get a COVID-19 test; another said the lab could not guarantee she would receive results in 48 hours. The third woman was unable to get an abortion in Texas, and drove to the Little Rock clinic; she was told the results of her test would not be available for several days.

In response, the state's health department said that four surgical abortions had still been performed at the clinic between April 27 and May 1, with COVID-19 test results having been obtained within 48 hours of the abortions, and thus the directive was not an "undue burden" on women seeking abortion.

In his decision on Thursday, Judge Miller said that the pandemic is a serious threat, noting that at the time of the opinion more than 70,000 people had died in the U.S. from the virus including more than 3,500 people in Arkansas.

He said the case "presents the tug-of-war between individual liberty and the state's police power to protect the public during the existing, grave health crisis," and noted that the three women as well as others "are very troubled. There is a strong urge to rule for them because they are extremely sympathetic figures, but that would be unjust."

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