Arkansas Can Restrict Surgical Abortion Under Covid-19 Order

Abortion providers in Arkansas may not perform surgical abortions while an emergency order requiring elective surgeries to be postponed due to the coronavirus pandemic is in effect, the Eighth Circuit said Wednesday.

A lower court’s temporary restraining order prohibiting the state health department from enforcing the elective surgery directive against abortion providers was improper because the court didn’t follow the appropriate framework for deciding when a state may constrain constitutional rights in response to a public emergency, the U.S. Court of Appeals for the Eighth Circuit said.

The court issued a writ of mandamus and dissolved the TRO.

The directive was issued to effectuate an emergency order issued by Gov. Asa Hutchinson (R) in an attempt to stop the spread of Covid-19, the disease caused by the coronavirus. It requires all elective procedures that aren’t immediately necessary to save the health or life of a patient to be postponed.

Using a framework set out by the U.S. Supreme Court in 1905, the Eighth Circuit held the department can enforce the directive against abortion providers. The directive is substantially related to a public health crisis, as it is intended to ensure there are enough medical supplies to fight Covid-19 and to promote social distancing, the court said.

It also doesn’t “beyond all question” present a “plain, palpable invasion” of a fundamental right, the court said. The directive applies to all health-care providers and doesn’t single out abortion, the court said. It also doesn’t ban abortions altogether, as it doesn’t preclude drug-induced abortions and contains an emergency exception, the court said.

Additionally, the emergency order on which the directive is based expires on May 11, unless extended, the court said.

The “extraordinary” remedy of mandamus relief was justified here because the state had no other available remedy, as TROs aren’t appealable, the court said.

The court’s reasoning is similar to that of the Fifth Circuit, which also has issued a writ of mandamus dissolving a TRO that prohibited Texas from halting most abortions.

Judge Bobby E. Shepherd wrote the opinion, which was joined by Judge Ralph R. Erickson. Judge James B. Loken dissented.

The providers are represented by O’Melveny & Myers LLP, Bettina E. Brownstein Law Firm, the American Civil Liberties Union, and Mann & Kemp PLLC. The Arkansas Attorney General’s Office represents the state.

For additional legal resources, visit Bloomberg Law In Focus: Coronavirus (Bloomberg Law Subscription).

The case is In re Rutledge, 8th Cir., No. 20-1791, 4/22/20.