(CN) — Arkansas’ ban on surgical abortions in the face of the Covid-19 pandemic is valid because it is temporary, an Eighth Circuit panel ruled Wednesday, blasting a federal judge who deemed the ban unconstitutional for second-guessing state officials.
Governor Asa Hutchinson, a Republican, has declined to issue the stay-at-home orders other governors have put in place to try to throttle transmission of the virus.
Arkansas has closed schools for the rest of the school year and forced restaurants and bars to close, but retail stores are open, churches are holding services and people can still gather in large groups so long as they can stay 6 feet apart.
With 2,276 confirmed Covid-19 cases and 42 deaths as of Wednesday, health experts believe hospitalizations have not yet peaked in the state.
Hutchinson declared a 60-day state of emergency on March 11 and directed the Arkansas Department of Health to do everything reasonably possible to fight the virus.
To conserve protective equipment for doctors and nurses, the state health department issued a directive on April 3 mandating postponement of all procedures not immediately medically necessary and warning violators could be charged with a misdemeanor punishable with an up to $500 fine and one month in jail.
Arkansas Department of Health inspectors showed up at Little Rock Family Planning Services Clinic on April 9 and found out it was still doing surgical abortions. The next day it sent the clinic a cease-and-desist order, stating, “Any further violations of the April 3 directive will result in an immediate suspension of your facility’s license.”
Little Rock Family Planning Services, its director Thomas Tvedten and Planned Parenthood had sued the state in federal court in June 2019 over new state laws banning abortions after 18 weeks of pregnancy, and if the sole reason for the abortion was tests showing the baby had Down syndrome and requiring abortion providers to be licensed in the state.
U.S. District Judge Kristine Baker, a Barack Obama appointee, issued an injunction, which Arkansas has appealed, last summer blocking those laws from taking effect. The clinic got Baker’s permission to challenge the Covid-19 abortion restrictions with a supplemental complaint in the same case.
The clinic claims in its complaint that Arkansas is trying to leverage the pandemic as part of its “long-running campaign to severely restrict” abortion access.
Baker granted the clinic a temporary restraining order on April 14, agreeing with its claims that it will not drain Arkansas’ stockpile of personal protective equipment for hospital staffers because it has its own protective gear.
“Further, there is record evidence that, if women are forced to continue their pregnancies, the PPE required for the associated pre-natal care and delivery would surpass that used at [Little Rock Family Planning Services Clinic] in providing abortion care,” Baker wrote.
She also said abortions will decrease demand for hospital beds. “Abortion is safer and does not burden hospitals as much as continued pregnancy, miscarriage management, and childbirth,” the judge wrote.
Arkansas appealed to the Eighth Circuit. A divided three-judge panel struck down the restraining order on Wednesday, citing a recent order from the Fifth Circuit that upheld Texas Governor Greg Abbott’s shut down of abortions and other elective surgeries to conserve protective gear for hospitals.
U.S. Circuit Judge Bobby Shepherd, a George W. Bush appointee, said Judge Baker had misinterpreted the Arkansas Department of Health’s directive as an outright ban on all abortions.
Shepherd noted the directive does not ban medication abortions and still allows surgical abortions if the mother’s life is danger. And it’s temporary – the directive will expire May 11 unless Governor Hutchinson extends the state of emergency.
“Such an expiration date makes the ADH directive a delay, not a ban. ‘The Supreme Court has repeatedly upheld a wide variety of abortion regulations that entail some delay in the abortion but that serve permissible government purposes,’” Shepherd wrote in a 24-page order for the St. Louis-based appellate court, citing the D.C. Circuit’s 2017 ruling in Garza v. Hargan.
Joined by U.S. Circuit Judge Ralph Erickson, a Donald Trump appointee, Shepherd wrote that Baker had “usurped the functions of the state government by second-guessing the state’s policy choices in responding to the Covid-19 pandemic.”
U.S. Circuit Judge James Loken dissented, but the George. W. Bush appointee did not issue an opinion explaining his views.
Little Rock Family Planning Services and Planned Parenthood are represented by the American Civil Liberties Union, O’Melveny & Myers and Little Rock attorney Bettina Brownstein.
“Arkansas now joins Texas as the only states where state politicians have succeeded in barring virtually all procedural abortions (sometimes referred to as surgical abortions) during the Covid-19 crisis. In four other states — Alabama, Ohio, Oklahoma, and Tennessee — courts have ruled that attempts to bar abortion care are unjustified by the pandemic and are unconstitutional,” the ACLU said in a statement. (Parentheses in original.)
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