Arkansas Abortion Providers Get Shut Down Order Blocked for Now

Arkansas may not enforce an order requiring abortion clinics to stop providing surgical abortions in most circumstances during the coronavirus pandemic, a federal court in the state said.

Little Rock Family Planning Services is likely to win on its claim that a cease-and-desist order issued by the state health department that prohibits it from performing surgical abortions except when necessary to protect a patient’s health or life, is unconstitutional, the U.S. District Court for the Eastern District of Arkansas said Tuesday.

The April 10 cease-and-desist order grew out of the department’s interpretation of an executive order issued by Gov. Asa Hutchinson (R) intended to stop the spread of Covid-19, the disease caused by the virus. The department issued a directive saying elective surgeries should be postponed unless necessary to protect the patient.

The department threatened to suspend LRFP’s license if it didn’t stop performing surgical abortions. Neither the executive order nor the directive has an expiration date.

The provisions, as interpreted by the state, likely violate women’s constitutional due process rights to end pregnancies before viability, Judge Kristine G. Baker said in issuing a temporary restraining order halting the state from prohibiting virtually all abortions after 10 weeks gestation.

Prohibitions on previability abortions are unconstitutional as a matter of law under binding U.S. Supreme Court precedent, Baker said. The state’s limited exception didn’t change the analysis, she said.

Baker also provisionally granted the providers’ request to file a supplemental complaint that added the claims over the Covid-19 order to an existing lawsuit challenging other abortion restrictions.

The TRO expires April 28. A motion for a preliminary injunction is pending.

The court distinguished this case from one pending against Texas, in which the Fifth Circuit recently allowed clinics to continue providing medication abortions, but has blocked providers’ efforts to perform most surgical abortions. Unlike Akansas’s order, the Texas order has an end date, it said.

Federal courts in Ohio, Oklahoma, and Alabama also have blocked the states from using Covid-19 orders to prohibit previability abortions. Suits also are pending in Louisiana and Tennessee.

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.

The case is Little Rock Family Planning Servs. v. Rutledge, E.D. Ark., No. 19-cv-449, 4/14/20.