Challenge To Arkansas Law Continues As Medication Abortions Stalled In State

Jun 13, 2018

Supporters of Planned Parenthood gathered in front of the clinic in Little Rock, Ark., last February.
Credit Planned Parenthood Great Plains

A court case in Arkansas is proving to be a bellwether of abortion-restrictive laws in the region, as a similar case in Missouri attempts to give fewer options to women choosing to terminate pregnancy.

Women in Arkansas only have access to surgical abortions after the U.S. Supreme Court refused to rule on whether a state law restricting access to medication abortion is unconstitutional.

In briefs submitted Wednesday to the U.S. District Court for the Eastern District of Arkansas, attorneys for Planned Parenthood and the state Attorney General's office argue for and against allowing Federal Judge Kristine Baker to open the record from Planned Parenthood’s first attempt at a temporary restraining order to allow for additional fact finding.

While Planned Parenthood seeks a second temporary restraining order, only one clinic offering surgical abortions remains open in the state. That clinic, Little Rock Family Planning Services, is not associated with Planned Parenthood.

The two Planned Parenthood clinics, located in central and northwest Arkansas, are only authorized to perform medication abortions, a two-pill regimen used to terminate pregnancy. 

Bettina Brownstein, local counsel for Planned Parenthood, speaks with reporters following a hearing in U.S. District Court in Little Rock.
Credit Daniel Breen / KUAR News

Planned Parenthood argues that the law, which requires any medication abortion provider to have a contract with a doctor with admitting privileges at a local hospital, places an undue burden on women in the state by making some women travel hundreds of miles to Little Rock for an abortion.

Counsel for the state Attorney General’s office last week argued women in northwest Arkansas still have the option to drive 80 miles to a clinic in Oklahoma that provides abortion services. 

On Tuesday, medication abortions at nearby clinics in Missouri were halted, giving Arkansas women one less feasible out-of-state option for obtaining a medication abortion.

Though surgical and medication abortions continue in Oklahoma, that state’s legislature has taken both symbolic and legislative steps to restrict abortion; officially declaring the procedure murder and accusing the U.S. Supreme Court of overstepping its authority by allowing elective abortions to continue. Oklahoma also mandates a 72-hour waiting period and requires women to seek counseling before undergoing an abortion.

In Arkansas, much of the current case (Planned Parenthood of Arkansas & Eastern Oklahoma v. Jegley) builds upon precedents set by a case in Texas, commonly referred to as Whole Woman’s Health. The Supreme Court ruled 5-3 in that case that laws similar to the one in Arkansas likely put an undue burden on a "significant but ultimately unknowable" number of women. A law in Alabama was also struck down on similar grounds to the Texas case.

The Whole Woman’s Health case was central to Planned Parenthood’s first attempt at staying the Arkansas law; the case which the U.S. Supreme Court ultimately declined to hear. 

Before that case went to the Supreme Court, the 8th Circuit U.S. Court of Appeals vacated the temporary restraining order that had been put in place by U.S. District Judge Kristine Baker. While it prohibited the law from going into effect pending the Supreme Court’s hearing, the Court of Appeals mandated that Baker conduct additional fact finding as to how many women in Arkansas would be unduly burdened by the law.

Baker, in hearing Planned Parenthood’s request for a new temporary restraining order last week, said she needs more information about how she can legally go about the fact finding process.

The central question Baker posed is whether she can base her fact finding solely on materials from her court’s record from two years ago, the first time Planned Parenthood sought to block the law, or can base the fact finding process on additional information not originally included in the record at that time. 

Planned Parenthood attorneys Mai Ratakonda and Melissa Cohen meet following a hearing at the Richard Sheppard Arnold United States Courthouse in Little Rock.
Credit Daniel Breen / KUAR News

Planned Parenthood argues new information and events have transpired in the two years since the initial case that merit opening the record. Those include an updated label from the Food and Drug Administration for one of the abortion drugs central to the case, as well as more than two years of data on both the safety and popularity of medication abortion.

Lawyers for the state argue the court is not required to open the record, and shouldn’t. The brief, submitted by state Attorney General Leslie Rutledge, argues Planned Parenthood’s request to reopen the record signifies a lack of diligence in the original case against the law. The state also cites precedent that appeals courts generally specify when further requests for preliminary injunctions can be contemplated, and that, since the 8th Circuit U.S. Court of Appeals failed to do so, Planned Parenthood’s request for relief should end.

Both sides agree, however, that the ultimate decision rests with the court, and ultimately with Judge Kristine Baker. Planned Parenthood and lawyers for the state will attempt to sway that decision Thursday in a phone conference in open court.