Updated: Five Things to Know About Surgical Abortion in Arkansas During COVID-19

Updated 4/14/2020 at 5:15 PM — U.S. District Judge Kristine Baker has issued a temporary restraining that blocks the state from restricting surgical abortion at this time. Read more here.

Yesterday a surgical abortion facility in Little Rock filed a legal challenge against the State of Arkansas over health directives prohibiting elective surgical abortions during the COVID-19 outbreak.

Below are five things to know about the situation regarding abortion in Arkansas during the pandemic.

#1. The State’s Directive Against Surgical Abortion is Narrowly Tailored

The directive prohibits elective surgeries — like surgical abortions — that are not medically necessary.

The directive does not apply to chemical abortions, like abortions performed via the RU-486 regimen.

The directive doesn’t completely close any clinic in Arkansas.

The directive stops facilities from performing surgical abortions, but it doesn’t stop abortion clinics from providing other services like medical examinations.

The fact that the directive is narrowly tailored to apply only to surgical procedures could make it more defensible in court.

#2. The State Took Action After Abortionists Kept Performing Surgical Abortions During the Pandemic

Here’s the timeline that brought us to this point:

  • On March 30, Governor Hutchinson issued guidelines telling all medical clinics to postpone elective procedures, but abortion providers did not comply.
  • On April 3, Governor Hutchinson and Secretary of Health Dr. Nathaniel Smith issued a directive, with the force of law, specifically naming abortion providers. Again, abortionists kept performing surgical abortions.
  • On April 7, inspectors from the State of Arkansas found proof that elective surgical abortions were taking place despite the state’s directives and guidelines.
  • On Friday, April 10, Little Rock Family Planning Services — Arkansas’ only surgical abortion clinic — received a “cease and desist” letter and was told to stop performing surgical abortions or face penalties from the state.
  • Abortionists filed a legal challenge on April 13.

#3. The Surgical Abortion Facility in Little Rock Has Filed a Legal Challenge in U.S. District Judge Kristine Baker’s Court

On Monday attorneys for Little Rock Family Planning Services — the state’s only freestanding surgical abortion facility — filed a legal challenge in U.S. District Judge Kristine Baker’s court to block the state from restricting surgical abortions during the pandemic.

Considering Judge Baker’s track record, it seems likely she will side with the abortionists — which means Attorney General Rutledge’s office will have to appeal the case to the Eighth Circuit.

The Eighth Circuit is one of the more conservative circuits in America and has a good track record when it comes to abortion.

In light of that, there’s a very good possibility that Arkansas will win this lawsuit.

#4. The Directive Currently Does Not Apply to Chemical Abortions

Because the state’s directive is narrowly tailored to apply to surgical procedures, it does not affect chemical abortions.

In Arkansas, nearly 70% of all abortions are performed surgically. That means the state’s directive applies to the vast majority of abortions performed in Arkansas.

However, it does not apply to chemical abortions. That means that Planned Parenthood, Little Rock Family Planning Services, and other facilities are still able to administer abortion-inducing drugs like RU-486.

The fact that the directive is narrowly tailored to apply to surgical procedures could make it more defensible in court.

#5. Blocking Surgical Abortions is the Right Thing to Do

Abortion takes the life an unborn baby and carries serious risks and consequences for women.

However, prohibiting surgical abortions during a pandemic particularly makes sense.

Women from other states travel to Arkansas for abortion. Traveling like that increases the risk that people in Arkansas and elsewhere will be exposed to the coronavirus.

Surgical abortions also waste precious medical resources. Postponing surgical abortions during this time will help preserve those medical resources and slow the spread of the coronavirus.

Clinic Challenges State Over Surgical Abortions During Pandemic

FOR IMMEDIATE RELEASE
Monday, April 13, 2020

Little Rock, Ark. — On Monday attorneys for a surgical abortion facility in Little Rock issued a legal challenge over Arkansas’ directive against elective surgical abortions during the COVID-19 pandemic.

Family Council President Jerry Cox issued a statement saying, “It is completely irresponsible to let elective surgical abortions continue during the coronavirus outbreak. Surgical abortions waste precious medical resources. We have ample evidence that women from neighboring states, including COVID-19 hotspots, are coming to Arkansas for abortions. Traveling like that increases the risk that people in Arkansas and elsewhere will be exposed to the coronavirus. If we want to slow the spread of coronavirus, we need to put a stop to surgical abortions for the time being.”

Cox said it is reasonable to hold abortionists to the same standards as other healthcare professionals. “Abortionists routinely say that abortion is just another healthcare procedure. If that’s true, then they ought to be willing to abide by the same standards as other clinics. Doctors all over Arkansas have been forced to postpone elective surgeries until this pandemic passes. Abortionists should have to follow the same rules.”

Cox applauded Governor Hutchinson, Attorney General Rutledge, Secretary of Health Dr. Smith, and Arkansas Surgeon General Dr. Bledsoe for their leadership during the COVID-19 outbreak. “Arkansas has excellent leaders. They have done a fine job slowing the spread of the coronavirus. Ordering abortionists to stop performing elective surgical abortions was the right call, and I’m confident the courts will agree.”

Cox said he believes the state will win this lawsuit. “Attorney General Leslie Rutledge’s team will do a fine job defending the state against this lawsuit. The Fifth Circuit has let Texas restrict abortion procedures to protect public health during this pandemic. I am confident that Arkansas will ultimately win this case.”

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Arkansas A.G. Warns Abortion Facilities to Stop Doing Abortions During COVID-19 Outbreak

FOR IMMEDIATE RELEASE
Friday, April 10, 2020

Arkansas’ abortion facilities have continued performing abortions despite the COVID-19 outbreak and guidelines and directives from Governor Hutchinson and Secretary of Health Dr. Nathaniel Smith.

On Friday Arkansas Attorney General Leslie Rutledge issued a warning to all healthcare facilities in the state — including abortion facilities — that they must comply with the state’s public health directives by postponing surgeries that are not medically necessary.

“Arkansans must work together to combat the COVID-19 pandemic,” Attorney General Rutledge said in a written statement. “All medically unnecessary surgeries and procedures, including abortions, must be postponed until after this crisis has ended. Those who violate the Department of Health’s directive will be met with decisive action, and my office will forcefully defend the State officials involved in keeping Arkansans safe.” According to the A.G.’s statement, facilities that do not comply with the state’s public health directives could have their license suspended.

Family Council President Jerry Cox issued a statement praising Attorney General Rutledge, Governor Hutchinson, and Secretary of Health Dr. Smith for their leadership during the pandemic.

“This is the right thing to do,” Cox said. “I have personally driven by Arkansas’ abortion facilities this week. Their parking lots have been full of cars, and some of the vehicles have had license plates from out of state. Telling abortion facilities that they cannot perform elective abortions during this time will help preserve medical resources and slow the spread of the coronavirus.”

Family Council will continue to monitor and report on this situation as it develops.

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