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APPEAL,CONSOL,JTR,PROTO

U.S. District Court Eastern District of Arkansas (Central Division) CIVIL DOCKET FOR CASE #: 4:19-cv-00449-KGB

Little Rock Family Planning Services et al v. Rutledge et al Assigned to: Judge Kristine G. Baker Lead case: 4:15-cv-00784-KGB Member case: (View Member Case) Correspondence Case: 4:19-cvcor-00449
Case in other court: USCA8, 19-02690
USCA8, 20-01791 Cause: 42:1983 Other Civil Rights

Date Filed: 06/26/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Little Rock Family Planning Services

represented by Bettina E. Brownstein Betinna E. Brownstein Law Firm 904 West Second Street Suite 2 Little Rock, AR 72201 501-920-1764 Email: bettinabrownstein@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly M. Scavone O'Melveny & Myers LLP Times Square Tower 7 Times Square New York, NY 10036 212-326-2254 Email: kscavone@omm.com TERMINATED: 04/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kendall Turner O'Melveny & Myers LLP 1625 Eye Street, NW Washington, DC 20006-4001 202-383-5300 Email: kendallturner@omm.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ared.uscourts.gov/cgi-bin/DktRpt.pl?459381231938273-L_1_0-1

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Leah Godesky O'Melveny & Myers LLP Times Square Tower 7 Times Square New York, NY 10036 212-326-2254 Email: lgodesky@omm.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Meagan M. Burrows American Civil Liberties Union 125 Broad Street Suite 1800 New York, NY 10004-2400 212-549-2633 Email: mburrows@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca R. Jackson Attorney at Law 904 West Second Street Little Rock, AR 72201 314-440-6265 Email: beckywesth@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Talcott Camp American Civil Liberties Union 125 Broad Street Suite 1800 New York, NY 10004-2400 212-549-2633 Fax: 212-549-2650 Email: tcamp@aclu.org TERMINATED: 06/08/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ared.uscourts.gov/cgi-bin/DktRpt.pl?459381231938273-L_1_0-1

Taylor Simeone O'Melveny & Myers LLP 1999 Avenue of the Stars, 8th Floor Los Angeles, CA 90067 310-553-6700 Email: tsimeone@omm.com TERMINATED: 04/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
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Plaintiff Planned Parenthood of Arkansas & Eastern Oklahoma doing business as Planned Parenthood Great Plains
https://ecf.ared.uscourts.gov/cgi-bin/DktRpt.pl?459381231938273-L_1_0-1

Brooke-Augusta Ware Mann & Kemp, PLLC 221 West Second Street, Suite 408 Little Rock, AR 72201 501-222-7378 Email: brooke@mannkemp.com ATTORNEY TO BE NOTICED
represented by Bettina E. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sandman Planned Parenthood Federation of America 123 William Street Suite 900 New York, NY 10038 212-261-4584 Email: jennifer.sandman@ppfa.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly M. Scavone (See above for address) TERMINATED: 04/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kendall Turner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Leah Godesky (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maithreyi Ratakonda Planned Parenthood Federation of America 123 William Street Suite 900 New York, NY 10038 212-261-4405 Email: mai.ratakonda@ppfa.org LEAD ATTORNEY PRO HAC VICE
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ATTORNEY TO BE NOTICED

Taylor Simeone (See above for address) TERMINATED: 04/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Brooke-Augusta Ware (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Stephanie Ho M.D., on behalf of herself and her patients

Susan Talcott Camp (See above for address) TERMINATED: 06/08/2020 ATTORNEY TO BE NOTICED
represented by Bettina E. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Sandman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kelly M. Scavone (See above for address) TERMINATED: 04/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kendall Turner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Leah Godesky (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ared.uscourts.gov/cgi-bin/DktRpt.pl?459381231938273-L_1_0-1

Maithreyi Ratakonda (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
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Taylor Simeone (See above for address) TERMINATED: 04/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Brooke-Augusta Ware (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Thomas Tvedten M.D., on behalf of himself and his patients

Susan Talcott Camp (See above for address) TERMINATED: 06/08/2020 ATTORNEY TO BE NOTICED
represented by Ashley Robertson O'Melveny & Myers LLP 1625 Eye Street, NW Washington, DC 20006-4001 202-383-5185 Email: arobertson@omm.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bettina E. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher P. Burke O'Melveny & Myers LLP Times Square Tower 7 Times Square New York, NY 10036 212-728-5834 Fax: 212-326-2061 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kelly M. Scavone (See above for address) TERMINATED: 04/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ared.uscourts.gov/cgi-bin/DktRpt.pl?459381231938273-L_1_0-1

Kendall Turner (See above for address) LEAD ATTORNEY
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PRO HAC VICE ATTORNEY TO BE NOTICED

Leah Godesky (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Maya Zagayer O'Melveny & Myers LLP 1999 Avenue of the Stars, 8th Floor Los Angeles, CA 90067 310-246-6751 Email: mzagayer@omm.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Meagan M. Burrows (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca R. Jackson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth E. Harlow American Civil Liberties Union 125 Broad Street Suite 1800 New York, NY 10004-2400 212-549-2601 Email: rharlow@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Taylor Simeone (See above for address) TERMINATED: 04/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Brooke-Augusta Ware (See above for address) ATTORNEY TO BE NOTICED

https://ecf.ared.uscourts.gov/cgi-bin/DktRpt.pl?459381231938273-L_1_0-1

Susan Talcott Camp (See above for address)
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V. Defendant Leslie Rutledge in her ofﬁcial capacity as Attorney General of the State of Arkansas

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TERMINATED: 06/08/2020 ATTORNEY TO BE NOTICED
represented by Nicholas Jacob Bronni Arkansas Attorney General's Ofﬁce Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201-2610 501-682-6302 Email: nicholas.bronni@arkansasag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dylan L. Jacobs Arkansas Attorney General's Ofﬁce Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201-2610 501-682-2700 Email: dylan.jacobs@arkansasag.gov ATTORNEY TO BE NOTICED
Jennifer L. Merritt Arkansas Attorney General's Ofﬁce Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201-2610 501-682-1319 Fax: 501-682-2591 Email: jennifer.merritt@arkansasag.gov ATTORNEY TO BE NOTICED
Julia C. Benaﬁeld Arkansas Attorney General's Ofﬁce Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201-2610 501-682-2007 Email: julie.benaﬁeld@arkansasag.gov ATTORNEY TO BE NOTICED
Michael Cantrell Arkansas Attorney General's Ofﬁce Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201-2610 501-682-2401 Email: michael.cantrell@arkansasag.gov ATTORNEY TO BE NOTICED

https://ecf.ared.uscourts.gov/cgi-bin/DktRpt.pl?459381231938273-L_1_0-1

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Defendant Larry Jegley in his ofﬁcial capacity as Prosecuting Attorney of Pulaski County
Defendant Matt Durrett in his ofﬁcial capacity as Prosecuting Attorney of Washington County
https://ecf.ared.uscourts.gov/cgi-bin/DktRpt.pl?459381231938273-L_1_0-1

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Vincent Moore Wagner Arkansas Attorney General's Ofﬁce Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201-2610 501-682-8090 Email: vincent.wagner@arkansasag.gov ATTORNEY TO BE NOTICED
represented by Nicholas Jacob Bronni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dylan L. Jacobs (See above for address) ATTORNEY TO BE NOTICED
Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED
Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED
Michael Cantrell (See above for address) ATTORNEY TO BE NOTICED
Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas Jacob Bronni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dylan L. Jacobs (See above for address) ATTORNEY TO BE NOTICED
Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED
Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED
Michael Cantrell
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(See above for address) ATTORNEY TO BE NOTICED

Defendant
Sylvia D Simon M.D., in her ofﬁcial capacity as Chairman of Arkansas State Medical Board

Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas Jacob Bronni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dylan L. Jacobs (See above for address) ATTORNEY TO BE NOTICED

Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED

Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED

Michael Cantrell (See above for address) ATTORNEY TO BE NOTICED

Defendant
Robert Breving, Jr M.D., in his ofﬁcial capacity as member of the Arkansas State Medical Board

Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas Jacob Bronni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dylan L. Jacobs (See above for address) ATTORNEY TO BE NOTICED

Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED

Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED

https://ecf.ared.uscourts.gov/cgi-bin/DktRpt.pl?459381231938273-L_1_0-1

Michael Cantrell (See above for address) ATTORNEY TO BE NOTICED
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Defendant
Veryl D Hodges D.O., in his ofﬁcial capacity as member of the Arkansas State Medical Board

Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas Jacob Bronni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dylan L. Jacobs (See above for address) ATTORNEY TO BE NOTICED

Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED

Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED

Michael Cantrell (See above for address) ATTORNEY TO BE NOTICED

Defendant
John H Scribner M.D., in his ofﬁcial capacity as member of the Arkansas State Medical Board

Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas Jacob Bronni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dylan L. Jacobs (See above for address) ATTORNEY TO BE NOTICED

Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED

Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED

Michael Cantrell (See above for address) ATTORNEY TO BE NOTICED

https://ecf.ared.uscourts.gov/cgi-bin/DktRpt.pl?459381231938273-L_1_0-1

Vincent Moore Wagner
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Defendant Omar T Atiq M.D., in his ofﬁcial capacity as member of the Arkansas State Medical Board

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(See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas Jacob Bronni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dylan L. Jacobs (See above for address) ATTORNEY TO BE NOTICED

Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED

Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED

Michael Cantrell (See above for address) ATTORNEY TO BE NOTICED

Defendant
Rhys L Branman M.D., in his ofﬁcial capacity as member of the Arkansas State Medical Board

Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas Jacob Bronni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dylan L. Jacobs (See above for address) ATTORNEY TO BE NOTICED

Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED

Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED

Michael Cantrell (See above for address) ATTORNEY TO BE NOTICED

https://ecf.ared.uscourts.gov/cgi-bin/DktRpt.pl?459381231938273-L_1_0-1

Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
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Defendant Rodney Grifﬁn M.D., in his ofﬁcial capacity as member of the Arkansas State Medical Board

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represented by Nicholas Jacob Bronni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dylan L. Jacobs (See above for address) ATTORNEY TO BE NOTICED

Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED

Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED

Michael Cantrell (See above for address) ATTORNEY TO BE NOTICED

Defendant
Marie Holder in her ofﬁcial capacity as member of the Arkansas State Medical Board

Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas Jacob Bronni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dylan L. Jacobs (See above for address) ATTORNEY TO BE NOTICED

Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED

Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED

Michael Cantrell (See above for address) ATTORNEY TO BE NOTICED

Defendant
https://ecf.ared.uscourts.gov/cgi-bin/DktRpt.pl?459381231938273-L_1_0-1

Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
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Brian T Hyatt M.D., in his ofﬁcial capacity as member of the Arkansas State Medical Board

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represented by Nicholas Jacob Bronni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dylan L. Jacobs (See above for address) ATTORNEY TO BE NOTICED

Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED

Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED

Michael Cantrell (See above for address) ATTORNEY TO BE NOTICED

Defendant
Larry D Lovell "Buddy" in his ofﬁcial capacity as member of the Arkansas State Medical Board

Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas Jacob Bronni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dylan L. Jacobs (See above for address) ATTORNEY TO BE NOTICED

Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED

Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED

Michael Cantrell (See above for address) ATTORNEY TO BE NOTICED

Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED

Defendant

Timothy C Paden M.D., in his ofﬁcial capacity as member of

represented by Nicholas Jacob Bronni (See above for address)

https://ecf.ared.uscourts.gov/cgi-bin/DktRpt.pl?459381231938273-L_1_0-1

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the Arkansas State Medical Board

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dylan L. Jacobs (See above for address) ATTORNEY TO BE NOTICED

Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED

Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED

Michael Cantrell (See above for address) ATTORNEY TO BE NOTICED

Defendant
Don R Phillips M.D., in his ofﬁcial capacity as member of the Arkansas State Medical Board

Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas Jacob Bronni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dylan L. Jacobs (See above for address) ATTORNEY TO BE NOTICED

Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED

Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED

Michael Cantrell (See above for address) ATTORNEY TO BE NOTICED

Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED

Defendant

William L Rutledge M.D., in his ofﬁcial capacity as member of the Arkansas State Medical Board

represented by Nicholas Jacob Bronni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.ared.uscourts.gov/cgi-bin/DktRpt.pl?459381231938273-L_1_0-1

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Dylan L. Jacobs (See above for address) ATTORNEY TO BE NOTICED

Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED

Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED

Michael Cantrell (See above for address) ATTORNEY TO BE NOTICED

Defendant
David L Staggs M.D., in his ofﬁcial capacity as member of the Arkansas State Medical Board

Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas Jacob Bronni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dylan L. Jacobs (See above for address) ATTORNEY TO BE NOTICED

Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED

Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED

Michael Cantrell (See above for address) ATTORNEY TO BE NOTICED

Defendant
Nathaniel Smith M.D., M.P.H., in his ofﬁcial capacity as Director and State Health Ofﬁcer of the Arkansas Department of Health

Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas Jacob Bronni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.ared.uscourts.gov/cgi-bin/DktRpt.pl?459381231938273-L_1_0-1

Dylan L. Jacobs

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(See above for address) ATTORNEY TO BE NOTICED
Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED
Julia C. Benaﬁeld (See above for address) ATTORNEY TO BE NOTICED
Michael Cantrell (See above for address) ATTORNEY TO BE NOTICED
Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/26/2019 06/26/2019
06/26/2019 06/26/2019
06/26/2019
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# Docket Text
1 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF against All Defendants ﬁled by All Plaintiffs (Fee of $400 paid. Receipt Number LIT072757.) (Attachments: # 1 Civil Cover Sheet) (jbh) (Entered: 06/27/2019)
2 PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION by All Plaintiffs. (jbh) (Redacted Document added as a replacement to the Main Document on 6/28/2019 at the request of the ﬁling party and pursuant to instruction from Chambers) (jak) (Entered: 06/27/2019)
3 PLAINTIFFS' MOTION FOR EXPEDITED CONSOLIDATION OR, IN THE ALTERNATIVE, TO GIVE NOTICE OF A RELATED CASE by All Plaintiffs. (jbh) (Entered: 06/27/2019)
4 BRIEF IN SUPPORT OF PLAINTIFFS' 2 MOTION FOR A TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION ﬁled by All Plaintiffs. (jbh) (Docket text modiﬁed on 6/27/2019 to establish linkage) (jak) (Entered: 06/27/2019)
5 BRIEF IN SUPPORT OF PLAINTIFFS' 3 MOTION FOR EXPEDITED CONSOLIDATION OR, IN THE ALTERNATIVE, TO GIVE NOTICE OF A RELATED CASE ﬁled by All Plaintiffs. (jbh) (Docket text modiﬁed on 6/27/2019 to establish linkage) (jak) (Entered: 06/27/2019)
6 PLAINTIFF PLANNED PARENTHOOD OF ARKANSAS & EASTERN OKLAHOMA'S DISCLOSURE UNDER FEDERAL RULE OF CIVIL PROCEDURE 7.1 by Planned Parenthood of Arkansas & Eastern Oklahoma. (jbh) (Entered: 06/27/2019)
7 PLAINTIFF LITTLE ROCK FAMILY PLANNING SERVICES' DISCLOSURE UNDER FEDERAL RULE OF CIVIL PROCEDURE 7.1 by Little Rock Family Planning Services. (jbh) (Entered: 06/27/2019)
8 MOTION for Leave to Appear pro hac vice by Meagan Burrows. (Fee of $100 paid. Receipt number LIT072751). Filed by Little Rock Family Planning Services, Thomas Tvedten. (jbh) (Entered: 06/27/2019)

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9 MOTION for Leave to Appear pro hac vice by Leah Godesky. (Fee of $100 paid; receipt number LIT072753). Filed by All Plaintiffs. (jbh) (Entered: 06/27/2019)

06/26/2019

10 MOTION for Leave to Appear pro hac vice by Kendall Turner. (Fee of $100 paid; receipt number LIT072756). Filed by All Plaintiffs. (jbh) (Entered: 06/27/2019)

06/26/2019

11 MOTION for Leave to Appear pro hac vice by Taylor Simeone. (Fee of $100 paid; receipt number LIT072754). Filed by All Plaintiffs. (jbh) (Entered: 06/27/2019)

06/26/2019

12 MOTION for Leave to Appear pro hac vice by Kelly Scavone. (Fee of $100 paid; receipt number LIT072755). Filed by All Plaintiffs. (jbh) (Entered: 06/27/2019)

06/26/2019

13 MOTION for Leave to Appear pro hac vice by Susan Talcott Camp. (Fee of $100 paid; receipt number LIT072752). Filed by Little Rock Family Planning Services, Thomas Tvedten. (jbh) (Entered: 06/27/2019)

06/27/2019

14 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 3 Motion to Consolidate Cases. The Clerk of the Court is directed to transfer this case to United States District Judge Kristine Baker for consolidation with case 4:15CV00784-KGB. Signed by Judge Billy Roy Wilson on 6/27/19. (mmb) (Entered: 06/27/2019)

06/27/2019

15 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) NOTICE OF REASSIGNMENT. Pursuant to 14 Order, the Clerk's ofﬁce has reassigned the case to Judge Kristine G. Baker. (jak) (Entered: 06/27/2019)

06/27/2019

Cases associated. Create association to 4:15-cv-00784-KGB per 14 Order. (jak) (Entered: 06/27/2019)

06/27/2019

NOTICE OF DOCKET CORRECTION 4 Brief in Support, 5 Brief in Support. CORRECTION: The docket text for docket entry 4 was modiﬁed to establish linkage to 2 Motion for Temporary Restraining Order and or Preliminary Injunction. The docket text for docket entry 5 was modiﬁed to establish linkage to 3 Motion for Expedited Consolidation. (jak) (Entered: 06/27/2019)

06/27/2019

Summons Issued as to All Defendants and returned to counsel. (jbh) (Entered: 06/27/2019)

06/28/2019

16 NOTICE OF DOCKET CORRECTION re 2 PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION. CORRECTION: The original document was submitted in error (un-redacted image ﬁle). The correct document was substituted as the main document for docket entry 2 based on the request from the ﬁling party and pursuant to instruction from Chambers. (jak) (Entered: 06/28/2019)

07/01/2019

17 NOTICE of Appearance by Nicholas Jacob Bronni on behalf of All Defendants (Bronni, Nicholas) (Entered: 07/01/2019)

07/01/2019

18 NOTICE of Appearance by Vincent Moore Wagner on behalf of All Defendants (Wagner, Vincent) (Entered: 07/01/2019)

07/01/2019

19 MOTION to Extend Time for Defendants to Respond to Complaint and Motion for Temporary Restraining Order or Preliminary Injunction, MOTION to Shorten Time for Plaintiffs to Respond to this Motion () by All Defendants (Bronni, Nicholas) (Entered: 07/01/2019)

07/01/2019

20 MOTION for Leave to Appear pro hac vice by Maithreyi Ratakonda ﬁled by all Plaintiffs. Fee $100 received. Receipt #LIT072815. (fjg) (Entered: 07/01/2019)

07/01/2019 21 ORDER directing plaintiffs to respond to 19 defendants' motion by 5:00 p.m. C.T. on

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07/02/2019 07/02/2019 07/03/2019 07/03/2019
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7/2/2019. Signed by Judge Kristine G. Baker on 7/1/2019. (jbh) (Entered: 07/01/2019)
22 MOTION for Reconsideration re 15 Notice of Reassignment, 14 Order on Motion to Consolidate Cases, Defendants' Expedited Motion to Reconsider Ex Parte Consolidation Order, MOTION to Shorten Time for Plaintiffs to Respond to this Motion () by All Defendants (Bronni, Nicholas) (Entered: 07/01/2019)
23 BRIEF IN SUPPORT re 22 Motion for Reconsideration,, Motion to Shorten Time, and Statement Opposing "Related Case" Designation ﬁled by All Defendants. (Attachments: # 1 Exhibit Exhibit 1)(Bronni, Nicholas) (Entered: 07/01/2019)
24 ORDER directing plaintiffs to respond to defendants' expedited 22 motion to reconsider ex parte consolidation order by 4:00 p.m. C.T. on 7/3/2019. Signed by Judge Kristine G. Baker on 7/2/2019. (jbh) (Docket text modiﬁed on 7/3/2019 to establish linkage) (jak) (Entered: 07/02/2019)
25 RESPONSE in Opposition re 19 MOTION to Extend Time for Defendants to Respond to Complaint and Motion for Temporary Restraining Order or Preliminary Injunction MOTION to Shorten Time for Plaintiffs to Respond to this Motion ﬁled by All Plaintiffs. (Attachments: # 1 Exhibit Email from Attorney Brioni to Court, # 2 Exhibit Email from Attorney Godesky to Attorney Brioni, # 3 Exhibit Email from Attorney Brioni to Godesky)(Brownstein, Bettina) (Entered: 07/02/2019)
26 MOTION for Discovery Defendants' Motion for Expedited Prehearing Discovery; and Brief in Support, MOTION to Expedite , MOTION to Shorten Time to Respond to This Motion () by All Defendants (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4)(Bronni, Nicholas) (Entered: 07/02/2019)
27 ORDER granting 8 , 9 , 10 , 11 , 12 , 13 , 20 motions for admission pro hac vice of attorneys Meagan Burrows, Leah Godesky, Kendall Turner, Taylor Simeone, Kelly Scavone, Susan Talcott Camp, and Maithreyi Ratakonda. Signed by Judge Kristine G. Baker on 7/2/2019. (jbh) (Entered: 07/03/2019)
NOTICE OF DOCKET CORRECTION re 24 Order. CORRECTION: The docket text was modiﬁed to establish linkage to 22 Motion as marked on the Order. (jak) (Entered: 07/03/2019)
28 RESPONSE in Opposition re 22 MOTION for Reconsideration re 15 Notice of Reassignment, 14 Order on Motion to Consolidate Cases, Defendants' Expedited Motion to Reconsider Ex Parte Consolidation Order MOTION to Shorten Time for Plaintiffs to Respond to this Motion (Plaintiffs' Response To Defendants' Motion For Reconsideration Of The Consolidation Order And Opposition to Plaintiffs' Request For Related-Case Designation) ﬁled by Stephanie Ho, Little Rock Family Planning Services, Planned Parenthood of Arkansas & Eastern Oklahoma, Thomas Tvedten. (Attachments: # 1 Exhibit 1)(Godesky, Leah) (Entered: 07/03/2019)
29 ORDER denying 22 defendants' expedited motion to reconsider ex parte consolidation order. Signed by Judge Kristine G. Baker on 7/5/2019. (jbh) (Entered: 07/05/2019)
30 ORDER directing plaintiffs to respond to 26 motion by 12:00 p.m. C.T. on 7/8/2019 and taking under advisement defendants' request for expedited discovery. Signed by Judge Kristine G. Baker on 7/5/2019. (jbh) (Entered: 07/05/2019)
31 ORDER AND NOTICE OF HEARING denying 19 defendants' request to extend to 7/22/2019, defendants' time to respond to the complaint and to respond to the request for temporary restraining order and/or preliminary injunction; denying 25 plaintiffs' request that the Court, if it grants defendants' request for an extension, also grant plaintiffs' motion for temporary restraining order; and granting 19 defendants' request to conduct a

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hearing on plaintiffs' motion for a temporary restraining order and/or preliminary injunction on 7/22/2019. A hearing on the motion for temporary restraining order and/or preliminary injunction will be conducted on 7/22/2019, at 9:00 a.m. Parties are directed to exchange copies of exhibits and written lists of witnesses by 12:00 p.m. on 7/18/2019. Rebuttal exhibits and written lists of rebuttal witnesses are due by 12:00 p.m. on 7/19/2019. Objections to the Court's consideration of exhibits are due by 8:00 a.m. on 7/22/2019. Defendants' responsive pleading remains due on 7/18/2019. Defendants' response to plaintiffs' motion for temporary restraining order and/or preliminary injunction is due by 9:00 a.m. C.T. on 7/17/2019. Plaintiffs' reply brief in support of their motion for temporary restraining order and/or preliminary injunction is due by 9:00 a.m. C.T. 7/19/2019. Signed by Judge Kristine G. Baker on 7/5/2019. (jbh) (Entered: 07/05/2019)
32 NOTICE of Withdrawal re 2 Motion for Temporary Restraining Order and/or Preliminary Injunction by Stephanie Ho, Planned Parenthood of Arkansas & Eastern Oklahoma. (Attachments: # 1 Declaration of Brandon J. Hill, PhD)(Godesky, Leah)(Docket text mModiﬁed on 7/8/2019 to establish linkage) (jak) (Entered: 07/06/2019)
NOTICE OF DOCKET CORRECTION re 32 Notice. CORRECTION: The docket text was modiﬁed to establish linkage to 2 MOTION for Temporary Restraining Order and/or Preliminary Injunction. (jak) (Entered: 07/08/2019)
33 RESPONSE in Opposition re 26 MOTION for Discovery Defendants' Motion for Expedited Prehearing Discovery; and Brief in Support MOTION to Expedite MOTION to Shorten Time to Respond to This Motion ﬁled by Stephanie Ho, Little Rock Family Planning Services, Planned Parenthood of Arkansas & Eastern Oklahoma, Thomas Tvedten. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Godesky, Leah) (Entered: 07/08/2019)
34 ORDER directing the parties to meet and confer regarding any outstanding discovery requests by 12:00 p.m. noon C.T. on Thursday, 7/11/2019; and further directing the parties to ﬁle a joint status report by 10:00 a.m. C.T. on Friday, 7/12/2019, describing any outstanding disputes regarding discovery that the parties request the Court resolve. Defendants' 26 motion for expedited prehearing discovery remains under advisement. Signed by Judge Kristine G. Baker on 7/9/2019. (ljb) (Entered: 07/09/2019)
35 NOTICE of Appearance by Michael Cantrell on behalf of All Defendants (Cantrell, Michael) (Entered: 07/09/2019)
36 BRIEF IN SUPPORT re 2 Motion for Preliminary Injunction,, Motion for TRO, (Plaintiffs Little Rock Family Planning Services And Dr. Thomas Tvedten's Supplemental Memorandum Of Law In Support Of Their Motion For A Temporary Restraining Order And/Or Preliminary Injunction) ﬁled by Little Rock Family Planning Services, Thomas Tvedten. (Godesky, Leah) (Entered: 07/10/2019)
37 DECLARATION (Supplemental Expert Declaration Of Jason Lindo, Ph.D., In Support Of Plaintiffs' Motion For a Temporary Restraining Order And/Or Preliminary Injunction) by Little Rock Family Planning Services, Thomas Tvedten. re 2 Motion for Preliminary Injunction,, Motion for TRO, ﬁled by Thomas Tvedten, Stephanie Ho, Planned Parenthood of Arkansas & Eastern Oklahoma, Little Rock Family Planning Services. (Godesky, Leah) (Entered: 07/10/2019)
38 MOTION to Strike 36 Brief in Support, 37 Declaration, MOTION TO STRIKE OR TO PERMIT DEFENDANTS TIME TO RESPOND TO NEW MOTION FOR TRO/PI by All Defendants (Bronni, Nicholas) (Entered: 07/10/2019)
39 RESPONSE in Opposition re 38 MOTION to Strike 36 Brief in Support, 37 Declaration,

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MOTION TO STRIKE OR TO PERMIT DEFENDANTS TIME TO RESPOND TO NEW MOTION FOR TRO/PI (Plaintiffs Little Rock Family Planning Services And Dr. Thomas Tvedten's Opposition To Defendants' Motion To Strike) ﬁled by Little Rock Family Planning Services, Thomas Tvedten. (Godesky, Leah) (Entered: 07/11/2019)

07/12/2019

40 STATUS REPORT Jointly Filed with Plaintiffs by Omar T Atiq, Rhys L Branman, Robert Breving, Jr, Matt Durrett, Rodney Grifﬁn, Veryl D Hodges, Marie Holder, Brian T Hyatt, Larry Jegley, Larry D Lovell, Timothy C Paden, Don R Phillips, Leslie Rutledge, William L Rutledge, John H Scribner, Sylvia D Simon, Nathaniel Smith, David L Staggs. (Bronni, Nicholas) (Entered: 07/12/2019)

07/12/2019

41 ORDER denying 38 motion to strike or request for additional time to respond to plaintiffs' motion for a temporary restraining order/preliminary injunction hearing. Signed by Judge Kristine G. Baker on 7/12/2019. (jbh) (Entered: 07/12/2019)

07/15/2019

42 ORDER denying without prejudice 26 motion for expedited prehearing discovery. If they wish to do so, defendants may renew their motion for expedited discovery after the hearing set for 7/22/2019. Signed by Judge Kristine G. Baker on 7/15/2019. (ljb) (Entered: 07/15/2019)

07/17/2019

43 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order ﬁled by All Defendants. (Cantrell, Michael) (Entered: 07/17/2019)

07/17/2019

44 ADDENDUM ﬁled by Rodney Grifﬁn, Veryl D Hodges, Marie Holder, Brian T Hyatt, Larry Jegley, Larry D Lovell, Timothy C Paden, Don R Phillips, Leslie Rutledge, William L Rutledge, John H Scribner, Sylvia D Simon, Nathaniel Smith, David L Staggs to 43 Response in Opposition to Motion. (Attachments: # 1 Exhibit A1 to A10, # 2 Exhibit A11 to A20, # 3 Exhibit A21 to A28)(Cantrell, Michael) (Entered: 07/17/2019)

07/17/2019

45 ADDENDUM ﬁled by Omar T Atiq, Rhys L Branman, Robert Breving, Jr, Matt Durrett, Rodney Grifﬁn, Veryl D Hodges, Marie Holder, Brian T Hyatt, Larry Jegley, Larry D Lovell, Timothy C Paden, Don R Phillips, Leslie Rutledge, William L Rutledge, John H Scribner, Sylvia D Simon, Nathaniel Smith, David L Staggs to 43 Response in Opposition to Motion. (Attachments: # 1 Exhibit B1 to B10, # 2 Exhibit B11 to B20, # 3 Exhibit B21 to B30)(Cantrell, Michael) (Entered: 07/17/2019)

07/17/2019

46 ADDENDUM ﬁled by Omar T Atiq, Rhys L Branman, Robert Breving, Jr, Matt Durrett, Rodney Grifﬁn, Veryl D Hodges, Marie Holder, Brian T Hyatt, Larry Jegley, Larry D Lovell, Timothy C Paden, Don R Phillips, Leslie Rutledge, William L Rutledge, John H Scribner, Sylvia D Simon, Nathaniel Smith, David L Staggs to 43 Response in Opposition to Motion. (Attachments: # 1 Exhibit B31 to B41, # 2 Exhibit B53 to B59)(Cantrell, Michael) (Entered: 07/17/2019)

07/17/2019

47 ADDENDUM ﬁled by Omar T Atiq, Rhys L Branman, Robert Breving, Jr, Matt Durrett, Rodney Grifﬁn, Veryl D Hodges, Marie Holder, Brian T Hyatt, Larry Jegley, Larry D Lovell, Timothy C Paden, Don R Phillips, Leslie Rutledge, William L Rutledge, John H Scribner, Sylvia D Simon, Nathaniel Smith, David L Staggs (Attachments: # 1 Exhibit C1 to C10)(Cantrell, Michael) (Entered: 07/17/2019)

07/17/2019

48 ADDENDUM ﬁled by Omar T Atiq, Rhys L Branman, Robert Breving, Jr, Matt Durrett, Rodney Grifﬁn, Veryl D Hodges, Marie Holder, Brian T Hyatt, Larry Jegley, Larry D Lovell, Timothy C Paden, Don R Phillips, Leslie Rutledge, William L Rutledge, John H Scribner, Sylvia D Simon, Nathaniel Smith, David L Staggs to 43 Response in Opposition to Motion. (Attachments: # 1 Exhibit F1 to F10)(Cantrell, Michael) (Entered: 07/17/2019)

07/17/2019

49 ADDENDUM ﬁled by Omar T Atiq, Rhys L Branman, Robert Breving, Jr, Matt Durrett, Rodney Grifﬁn, Veryl D Hodges, Marie Holder, Brian T Hyatt, Larry Jegley, Larry D

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Lovell, Timothy C Paden, Don R Phillips, Leslie Rutledge, William L Rutledge, John H Scribner, Sylvia D Simon, Nathaniel Smith, David L Staggs to 43 Response in Opposition to Motion. (Attachments: # 1 Exhibit G1 Decl. of Allan Parker with 15 afﬁdavits of women hurt by abortion, # 2 Exhibit G2 Decl. of Millie Lace, # 3 Exhibit G3 Decl. of Mischa Martin, # 4 Exhibit G4 Decl. of Kristie Hayes, # 5 Exhibit G5 Decl. of Mary Silﬁes, # 6 Exhibit G6 Decl. of Kathi Aultman, # 7 Exhibit G7 Decl of Donna Harrison, # 8 Exhibit G8 Decl. of Tumulesh Solanky, # 9 Exhibit G9 Planned Parenthood Moving Ark Dem Gaz, # 10 Exhibit H2 Decl. of Judy McGruder)(Cantrell, Michael) (Entered: 07/17/2019)
50 NOTICE by All Defendants re 43 Response in Opposition to Motion NOTICE OF EXHIBITS FILED CONVENTIONALLY (Cantrell, Michael) (Entered: 07/17/2019)
51 NOTICE of Filing of Exhibits re 49 Addendum Attachment 10 Exhibit H2 Declaration of Judy McGruder ﬁled by All Defendants. H1 Lucas DVD and H2 Judy's Story DVD ﬁled conventionally and maintained in the Clerk's ofﬁce. (fjg) (Entered: 07/17/2019)
52 NOTICE of Appearance by Jennifer L. Merritt on behalf of All Defendants (Merritt, Jennifer) (Entered: 07/17/2019)
53 EXHIBITS to 43 Response in Opposition to Motion ﬁled by Omar T Atiq, Rhys L Branman, Robert Breving, Jr, Matt Durrett, Rodney Grifﬁn, Veryl D Hodges, Marie Holder, Brian T Hyatt, Larry Jegley, Larry D Lovell, Timothy C Paden, Don R Phillips, Leslie Rutledge, William L Rutledge, John H Scribner, Sylvia D Simon, Nathaniel Smith, David L Staggs. (Attachments: # 1 Exhibit B42 - B52, # 2 Exhibit C11 - C14, # 3 Exhibit D1 - D6, # 4 Exhibit E1 - E6, # 5 Exhibit F11 - F18)(fjg) (Entered: 07/17/2019)
54 Witness List (purs. to FRCvP 26(a)(3)(A)(ii)) by Omar T Atiq, Rhys L Branman, Robert Breving, Jr, Matt Durrett, Rodney Grifﬁn, Veryl D Hodges, Marie Holder, Brian T Hyatt, Larry Jegley, Larry D Lovell, Timothy C Paden, Don R Phillips, Leslie Rutledge, William L Rutledge, John H Scribner, Sylvia D Simon, Nathaniel Smith, David L Staggs.(Bronni, Nicholas) (Entered: 07/18/2019)
55 Witness List by Little Rock Family Planning Services, Thomas Tvedten (Attachments: # 1 Exhibit A - Exhibit List)(Godesky, Leah) (Entered: 07/18/2019)
56 Second MOTION for Discovery Defendants' Renewed Motion for Expedited Prehearing Discovery, or Alternatively to Strike the Declarations of Jason Lindo; and Brief in Support, MOTION to Shorten Time to Respond to this Motion () by All Defendants (Attachments: # 1 Exhibit Attachment 1)(Bronni, Nicholas) (Entered: 07/18/2019)
57 MOTION to Dismiss by All Defendants (Cantrell, Michael) (Entered: 07/18/2019)
58 BRIEF IN SUPPORT re 57 Motion to Dismiss ﬁled by All Defendants. (Cantrell, Michael) (Entered: 07/18/2019)
59 NOTICE re 56 motion that the Court will hold a conference with the parties via telephone on Friday, 7/19/2019, at 2:00 p.m. C.T. Signed by Judge Kristine G. Baker on 7/18/2019. (ljb) (Entered: 07/18/2019)
60 RESPONSE in Opposition re 56 Second MOTION for Discovery Defendants' Renewed Motion for Expedited Prehearing Discovery, or Alternatively to Strike the Declarations of Jason Lindo; and Brief in Support MOTION to Shorten Time to Respond to this Motion (Supplemental Opposition to Motion for Expedited Discovery and Cross Motion for a Protective Order) ﬁled by Stephanie Ho, Little Rock Family Planning Services, Planned Parenthood of Arkansas & Eastern Oklahoma, Thomas Tvedten. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Godesky, Leah) (Entered: 07/18/2019)

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61 REPLY to Response to Motion re 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order (Reply In Support of Plaintiffs' Motion For A Temporary Restraining Order And/Or Preliminary Injunction) ﬁled by Little Rock Family Planning Services, Thomas Tvedten. (Godesky, Leah) (Entered: 07/19/2019)
62 DECLARATION (Supplemental Declaration Of Brandon J. Hill, PhD) by Little Rock Family Planning Services, Thomas Tvedten. re 2 Motion for Preliminary Injunction,, Motion for TRO, ﬁled by Thomas Tvedten, Stephanie Ho, Planned Parenthood of Arkansas & Eastern Oklahoma, Little Rock Family Planning Services. (Attachments: # 1 Rebuttal Declaration Of Linda W. Prine, M.D., # 2 Rebuttal Expert Declaration Of Jason Lindo, PH. D.)(Godesky, Leah) (Entered: 07/19/2019)
63 DECLARATION of Christopher Attig by Little Rock Family Planning Services, Thomas Tvedten. re 2 Motion for Preliminary Injunction,, Motion for TRO, ﬁled by Thomas Tvedten, Stephanie Ho, Planned Parenthood of Arkansas & Eastern Oklahoma, Little Rock Family Planning Services. (Godesky, Leah) (Entered: 07/19/2019)
64 ORDER - COURTROOM AND MEDIA PROTOCOL regarding the hearing to begin on 7/22/2019. Signed by Judge Kristine G. Baker on 7/19/2019. (ljb) (Entered: 07/19/2019)
65 Witness List by Little Rock Family Planning Services, Thomas Tvedten(Godesky, Leah) (Entered: 07/19/2019)
66 Witness List (purs. to FRCvP 26(a)(3)(A)(ii)) by Omar T Atiq, Rhys L Branman, Robert Breving, Jr, Matt Durrett, Rodney Grifﬁn, Veryl D Hodges, Marie Holder, Brian T Hyatt, Larry Jegley, Larry D Lovell, Timothy C Paden, Don R Phillips, Leslie Rutledge, William L Rutledge, John H Scribner, Sylvia D Simon, Nathaniel Smith, David L Staggs.(Bronni, Nicholas) (Entered: 07/19/2019)
67 NOTICE of Appearance by Julia C. Benaﬁeld on behalf of All Defendants (Benaﬁeld, Julia) (Entered: 07/19/2019)
68 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) MINUTES for proceedings held before Judge Kristine G. Baker: MOTION HEARING held on 7/19/2019 re 56 Second MOTION for Discovery, Defendants' Renewed Motion for Expedited Prehearing Discovery, or Alternatively to Strike the Declarations of Jason Lindo; and Brief in Support MOTION to Shorten Time to Respond to this Motion ﬁled by Brian T Hyatt, et al. After arguments from counsel, the Court issued a ruling and will enter a separate written order. (Present for plaintiffs: Leah Godesky and Bettina Brownstein; Present for defendants: Vincent Wagner and Nicholas Bronni)(Court Reporter Elaine Hinson) (tmw) (Entered: 07/19/2019)
69 PROTECTIVE ORDER. Signed by Judge Kristine G. Baker on 7/19/2019. (ljb) (Entered: 07/19/2019)
70 ORDER allowing the following individuals to bring a cell phone, laptop computer, or personal digital assistant into the courthouse in Little Rock, Arkansas on 7/22/2019 for a hearing in this case: Meagan Burrows, Leah Godesky, Kelly Scavone, Taylor Simeone, Mai Ratakonda, Francesa Riggione, Elizabeth Drew, Toni Hamp, Donna J. Harrison, M.D., Kathi Aultman, M.D., Tumulesh K.S. Solanky, Ph.D., and Judy McGruder. Signed by Judge Kristine G. Baker on 7/19/2019. (jak) (Entered: 07/19/2019)
71 ORDER denying without prejudice 56 defendants' renewed motion for expedited prehearing discovery. Signed by Judge Kristine G. Baker on 7/19/2019. (ljb) (Entered: 07/19/2019)
72 NOTICE of Appearance by Dylan L. Jacobs on behalf of All Defendants (Jacobs, Dylan) (Entered: 07/20/2019)

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73 DECLARATION REBUTTAL DECLARATION OF DR. KATHI AULTMAN AND EXHIBITS A29 TO A43 & H3 TO H4 by Omar T Atiq, Rhys L Branman, Robert Breving, Jr, Matt Durrett, Rodney Grifﬁn, Veryl D Hodges, Marie Holder, Brian T Hyatt, Larry Jegley, Larry D Lovell, Timothy C Paden, Don R Phillips, Leslie Rutledge, William L Rutledge, John H Scribner, Sylvia D Simon, Nathaniel Smith, David L Staggs. (Cantrell, Michael) (Entered: 07/20/2019)
74 Witness List by Little Rock Family Planning Services(Godesky, Leah) (Entered: 07/20/2019)
75 MOTION to Strike Certain Declarations and Attachments Thereto by Little Rock Family Planning Services, Thomas Tvedten (Attachments: # 1 Memorandum of Law in Support) (Godesky, Leah) (Entered: 07/21/2019)
76 MOTION to Strike 61 Reply to Response to Motion, 63 Declaration, 62 Declaration, Motion to Strike Belatedly Filed Supplemental Declarations; Motion to Strike Reply Brief by All Defendants (Jacobs, Dylan) (Entered: 07/22/2019)
77 ORDER authorizing Dr. Janet Cathey, Dr. Tom Tvedten, Dr. Frederick Hopkins, Dr. Jason Lindo, Dr. Linda Prine, and Lori Williams to bring a cell phone, laptop computer, or personal digital assistant into the courthouse in Little Rock, on Monday, 7/22/2019, subject to the rules in this order. Signed by Judge Kristine G. Baker on 7/22/2019. (jbh) (Entered: 07/22/2019)
78 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) MINUTES for proceedings held before Judge Kristine G. Baker: MOTION HEARING held on 7/22/2019 re 2 MOTION for Preliminary Injunction, MOTION for Temporary Restraining Order ﬁled by Plaintiffs. After arguments from counsel and witness testimony, the Court took the matter under advisement. A separate written order will be entered. (Present for plaintiffs: Leah Godesky, Kelly Scavone, Taylor Simeone, Megan Burrows, Maithreyi Ratakonda and Bettina Brownstein; Present for defendants: Jennifer Merritt, Nicolas Bronni, Dylan Jacobs, Julia Benaﬁeld, Michael Cantrell, and Vincent Wagner) (Court Reporters Elaine Hinson, Judy Ammons, and Christa Jacimore) (tmw) (Entered: 07/22/2019)
79 NOTICE by Little Rock Family Planning Services, Thomas Tvedten re 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order (Notice Of Correction Of The Record) (Attachments: # 1 Declaration of Jason Lindo, PH. D.)(Godesky, Leah) (Entered: 07/23/2019)
80 MOTION to Strike 79 Notice (Other), Motion to Strike Latest Lindo Declaration and for Other Relief by All Defendants (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Bronni, Nicholas) (Entered: 07/23/2019)
81 SEALED EXHIBITS. (fjg) (Entered: 07/23/2019)
82 RESPONSE in Opposition re 80 MOTION to Strike 79 Notice (Other), Motion to Strike Latest Lindo Declaration and for Other Relief ﬁled by Stephanie Ho, Little Rock Family Planning Services, Planned Parenthood of Arkansas & Eastern Oklahoma, Thomas Tvedten. (Attachments: # 1 Exhibit 1)(Godesky, Leah) (Entered: 07/23/2019)
83 TEMPORARY RESTRAINING ORDER granting 2 plaintiffs' motion for a temporary restraining order and/or preliminary injunction to the extent the motion seeks a temporary restraining order, and denying 75 and 76 motions to strike. This Order shall expire on 8/6/2019 at 11:45 p.m. Signed by Judge Kristine G. Baker on 7/23/2019. (thd) (Entered: 07/23/2019)
84 TRANSCRIPT of Hearing on Motion for Temporary Restraining Order/Preliminary

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Injunction held on 7/22/2019, before Judge Kristine G. Baker. Court Reporters Elaine Hinson, Judy Ammons, and Christa Jacimore. Transcript may be viewed only at the public terminals in the Clerk's ofﬁce. Copies of transcript are only available through the Ofﬁcial Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 8/1/2019. Redaction Request due 8/15/2019. Redacted Transcript Deadline set for 8/26/2019. Release of Transcript Restriction set for 10/23/2019. (fcd) (Entered: 07/25/2019)
85 TRANSCRIPT of Telephone Conference held on 7/19/2019, before Judge Kristine G. Baker. Court Reporter Elaine Hinson. Transcript may be viewed only at the public terminals in the Clerk's ofﬁce. Copies of transcript are only available through the Ofﬁcial Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 8/1/2019. Redaction Request due 8/15/2019. Redacted Transcript Deadline set for 8/26/2019. Release of Transcript Restriction set for 10/23/2019. (fcd) (Entered: 07/25/2019)
86 MOTION for Discovery Motion for Expedited Preliminary-Injunction-Proceeding Discovery, MOTION to Shorten Time () by All Defendants (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Jacobs, Dylan) (Entered: 07/25/2019)
87 ORDER denying defendants' request to shorten plaintiffs' time to respond to the motion to dismiss. The merits of defendants' motion to dismiss remain under advisement, No. 57 . Signed by Judge Kristine G. Baker on 7/26/2019. (jbh) (Docket text modiﬁed on 7/29/2019 to correct the description of the document ﬁled)(jak) (Entered: 07/26/2019)
88 ORDER setting brieﬁng schedule with respect to plaintiffs' request for a preliminary injunction. Signed by Judge Kristine G. Baker on 7/26/2019. (jbh) (Entered: 07/26/2019)
89 ORDER directing plaintiffs to respond to 86 defendant's motion by 12:00 p.m. noon C.T. on Monday, 7/29/2019. Signed by Judge Kristine G. Baker on 7/26/2019. (jbh) (Entered: 07/26/2019)
90 Emergency MOTION to Enforce (Plaintiffs' Emergency Motion For An Order Enforcing Plaintiffs' Conﬁdentiality Designations And Imposing Sanctions) by Stephanie Ho, Little Rock Family Planning Services, Planned Parenthood of Arkansas & Eastern Oklahoma, Thomas Tvedten (Attachments: # 1 Exhibit 1)(Godesky, Leah) (Entered: 07/29/2019)
91 NOTICE OF HEARING on 90 plaintiffs' emergency motion for an order enforcing plaintiffs' conﬁdentiality designations and imposing sanctions: Hearing set for 7/29/2019 at 11:00 AM in Courtroom #4C before Judge Kristine G. Baker. The Court speciﬁcally directs that attorney Michael Cantrell be present on behalf of defendants. A representative for plaintiffs must also be present. (jbh) (Entered: 07/29/2019)
92 RESPONSE in Opposition re 86 MOTION for Discovery Motion for Expedited Preliminary-Injunction-Proceeding Discovery MOTION to Shorten Time (LRFP Plaintiffs' Opposition To Defendants' Motion For Expedited Preliminary-InjunctionProceeding Discovery And Motion To Quash Jegley Deposition Notice) ﬁled by Stephanie Ho, Little Rock Family Planning Services, Planned Parenthood of Arkansas & Eastern Oklahoma, Thomas Tvedten. (Attachments: # 1 Exhibit 1)(Godesky, Leah) (Entered: 07/29/2019)
93 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) MINUTES for proceedings held before Judge Kristine G. Baker: MOTION HEARING held on 7/29/2019 re 90 Emergency MOTION to Enforce (Plaintiffs' Emergency Motion For An Order Enforcing Plaintiffs' Conﬁdentiality Designations And Imposing Sanctions)

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ﬁled by Little Rock Family Planning Services, et al. After arguments from counsel, the Court took the matter under advisement. A separate written order will be entered. (Present for plaintiff: Bettina Brownstein, Lea Godesky, Mai Ratakonda, Meagan Burrows, Susan Camp; Present for defendants: Michael Cantrell, Nicolas Bronni and Dylan Jacobs) (Court Reporter Margie Kruse) (tmw) (Entered: 07/29/2019)
NOTICE OF DOCKET CORRECTION re 87 Order. CORRECTION: The docket text was modiﬁed to correct the description of the document ﬁled as "ORDER denying defendants' request to shorten plaintiffs' time to respond to the motion to dismiss. The merits of defendants' motion to dismiss remain under advisement, No. 57 ". (jak) (Entered: 07/29/2019)
94 ORDER declining to incorporate all the exhibits from Planned Parenthood Arkansas and Eastern Oklahoma v. Jegley, Case No. 4:15-cv-00784-KGB, into the record in this case; and taking under advisement 86 defendants' motion for expedited preliminary-injunctionproceeding discovery. Signed by Judge Kristine G. Baker on 7/29/2019. (jbh) (Entered: 07/29/2019)
95 REQUEST for For Preliminary-Injunction Hearing by Omar T Atiq, Rhys L Branman, Robert Breving, Jr, Matt Durrett, Rodney Grifﬁn, Veryl D Hodges, Marie Holder, Brian T Hyatt, Larry Jegley, Larry D Lovell, Timothy C Paden, Don R Phillips, Leslie Rutledge, William L Rutledge, John H Scribner, Sylvia D Simon, Nathaniel Smith, David L Staggs. (Bronni, Nicholas) (Entered: 07/30/2019)
96 ORDER denying 80 defendants' motion to strike latest declaration of Jason Lindo, Ph.D., and for other relief. Signed by Judge Kristine G. Baker on 7/30/2019. (jbh) (Entered: 07/30/2019)
97 ORDER denying 86 defendants' motion for expedited preliminary-injunction-proceeding discovery and to shorten plaintiffs' time to respond to this motion. Signed by Judge Kristine G. Baker on 7/30/2019. (jbh) (Entered: 07/30/2019)
98 RESPONSE re 95 Request, (Plaintiffs' Opposition To Defendants' Request For A Preliminary Injunction Hearing) by Little Rock Family Planning Services, Thomas Tvedten (Godesky, Leah) (Entered: 07/31/2019)
99 DECLARATION of Leah Godesky, Esq. In Opposition to Defendants' Request For A Preliminary Injunction Hearing by Little Rock Family Planning Services, Thomas Tvedten. re 95 Request, ﬁled by Brian T Hyatt, Omar T Atiq, Marie Holder, Veryl D Hodges, Robert Breving, Jr, Larry D Lovell, Sylvia D Simon, Timothy C Paden, Rodney Grifﬁn, Nathaniel Smith, John H Scribner, Matt Durrett, Larry Jegley, William L Rutledge, Leslie Rutledge, Don R Phillips, David L Staggs, Rhys L Branman. (Attachments: # 1 Exhibit 1 - FILED UNDER SEAL, # 2 Exhibit 2 - FILED UNDER SEAL, # 3 Exhibit PX0062 - FILED UNDER SEAL)(Godesky, Leah) (Entered: 07/31/2019)
100 SEALED EXHIBIT. (fjg) (Entered: 07/31/2019)
101 SEALED EXHIBIT. (fjg) (Entered: 07/31/2019)
102 SEALED EXHIBIT. (fjg) (Entered: 07/31/2019)
103 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order ﬁled by All Defendants. (Attachments: # 1 Exhibit H6 Tvedten DUI Letter and Incident Report, # 2 Exhibit H7 - Solanky Testimony Excerpts from Jegley, # 3 Exhibit H8 - Williams and Heﬂin Declaration Excerpts from Jegley, # 4 Exhibit H9 - State Data Exhibit from Jegley, # 5 Exhibit H10 - Harrison Supplemental Declaration, # 6 Exhibit H11 - Ho and Williams Testimony Excerpts from Jegley, # 7

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Exhibit H12 - De Baca Declaration from Jegley, # 8 Exhibit H13 - Redacted Solanky Supplemental Declaration)(Cantrell, Michael) (Entered: 07/31/2019)

07/31/2019

104 BRIEF IN SUPPORT re 4 Brief in Support (Second Supplemental Brief In Support Of The LRFP Plaintiffs' Motion For Preliminary Injunction 2 ) ﬁled by Little Rock Family Planning Services, Thomas Tvedten. (Godesky, Leah) (Entered: 07/31/2019)

07/31/2019 105 SEALED Exhibits (jap) (Entered: 07/31/2019)

08/01/2019

106 RESPONSE in Opposition re 104 Second Supplemental Brief in Support ﬁled by All Defendants. (Bronni, Nicholas)(Docket text modiﬁed on 8/2/2019 to correct the linkage) (jak) (Entered: 08/01/2019)

08/01/2019

108 RESPONSE in Opposition re 57 MOTION to Dismiss ﬁled by Stephanie Ho, Little Rock Family Planning Services, Planned Parenthood of Arkansas & Eastern Oklahoma, Thomas Tvedten. (Godesky, Leah) (Entered: 08/01/2019)

08/02/2019

NOTICE OF DOCKET CORRECTION re 106 Response. CORRECTION: The docket text was modiﬁed to correct the linkage to 104 Second Supplemental Brief in Support. (jak) (Entered: 08/02/2019)

08/02/2019

109 MOTION to Strike and for Other Appropriate Relief by All Defendants (Attachments: # 1 Exhibit A - ECF Notice of Pls.' Brief Filing, # 2 Exhibit B - Docket Sheet, # 3 Exhibit C Jegley PI Hearing Excerpt)(Bronni, Nicholas) (Entered: 08/02/2019)

08/02/2019 110 SEALED EXHIBITS. (fjg) (Entered: 08/02/2019)

08/02/2019

111 ORDER denying 95 defendants' request for a hearing. Signed by Judge Kristine G. Baker on 8/2/2019. (jbh) (Entered: 08/02/2019)

08/05/2019

112 TRANSCRIPT of Motion Hearing held on 7/29/2019, before Judge Kristine G. Baker. Court Reporter Margaret M. Kruse. Transcript may be viewed only at the public terminals in the Clerk's ofﬁce. Copies of transcript are only available through the Ofﬁcial Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 8/12/2019. Redaction Request due 8/26/2019. Redacted Transcript Deadline set for 9/5/2019. Release of Transcript Restriction set for 11/4/2019. (fcd) (Entered: 08/05/2019)

08/05/2019

113 MOTION for Leave to File Amicus Reply by Curtis J Neeley, Jr. (jak) (Entered: 08/05/2019)

08/05/2019

114 BRIEF IN SUPPORT re 113 Motion for Leave to File Reply ﬁled by Curtis J Neeley, Jr. (jak) (Entered: 08/05/2019)

08/05/2019

115 AMICUS REPLY re 113 Motion for Leave to File by Curtis J Neeley, Jr. (jak) (Entered: 08/05/2019)

08/05/2019 116 SEALED RESPONSE. (fjg) (Entered: 08/05/2019)

08/05/2019

117 RESPONSE in Opposition re 109 MOTION to Strike and for Other Appropriate Relief ﬁled by Little Rock Family Planning Services, Thomas Tvedten. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 - FILED UNDER SEAL)(Godesky, Leah) (Entered: 08/05/2019)

08/05/2019

118 NOTICE by Little Rock Family Planning Services, Thomas Tvedten (Notice Of Filing Of Documents Under Seal) (Godesky, Leah) (Entered: 08/05/2019)

08/06/2019

119 PRELIMINARY INJUNCTION. Signed by Judge Kristine G. Baker on 8/6/2019. (jbh) (Entered: 08/06/2019)

08/06/2019 120 NOTICE OF APPEAL as to 29 Order on Motion for Reconsideration, Order on Motion to Shorten Time, 14 Order on Motion to Consolidate Cases, 119 Preliminary Injunction by

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Omar T Atiq, Rhys L Branman, Robert Breving, Jr, Matt Durrett, Rodney Grifﬁn, Veryl D Hodges, Marie Holder, Brian T Hyatt, Larry Jegley, Larry D Lovell, Timothy C Paden, Don R Phillips, Leslie Rutledge, William L Rutledge, John H Scribner, Sylvia D Simon, Nathaniel Smith, David L Staggs. (Bronni, Nicholas) (Entered: 08/06/2019)

08/06/2019 121 MOTION for Leave to File Reply by All Defendants (Attachments: # 1 Document Proposed Reply Brief)(Bronni, Nicholas) (Entered: 08/06/2019)

08/07/2019

122 NOTIFICATION OF APPEAL and NOA SUPPLEMENT as to 120 Notice of Appeal re 29 Order, 14 Order, and 119 Preliminary Injunction. NOTIFICATION TO COUNSEL: REQUEST FOR TRANSCRIPTS SHOULD BE FILED WITH THE DISTRICT COURT CLERK. (cmn) (Entered: 08/07/2019)

08/09/2019

123 USCA Docketing Letter and Brieﬁng Schedule as to 120 Notice of Appeal, ﬁled by Brian T Hyatt, Omar T Atiq, Marie Holder, Veryl D Hodges, Robert Breving, Jr, Larry D Lovell, Sylvia D Simon, Timothy C Paden, Rodney Grifﬁn, Nathaniel Smith, John H Scribner, Matt Durrett, Larry Jegley, William L Rutledge, Leslie Rutledge, Don R Phillips, David L Staggs, Rhys L Branman. USCA Case Number 19-2690. Transcript due by 9/18/2019.(cmn) (Entered: 08/12/2019)

08/12/2019

124 RESPONSE in Opposition re 90 Emergency MOTION to Enforce (Plaintiffs' Emergency Motion For An Order Enforcing Plaintiffs' Conﬁdentiality Designations And Imposing Sanctions) ﬁled by All Defendants. (Attachments: # 1 Exhibit A - Defendants' Notice, # 2 Exhibit B - July 29, 2019 Email)(Cantrell, Michael) (Entered: 08/12/2019)

08/14/2019 08/21/2019

125 USCA Appeal Fees received $505 receipt number LIT073473 re 120 Notice of Appeal, ﬁled by Brian T Hyatt, Omar T Atiq, Marie Holder, Veryl D Hodges, Robert Breving, Jr, Larry D Lovell, Sylvia D Simon, Timothy C Paden, Rodney Grifﬁn, Nathaniel Smith, John H Scribner, Matt Durrett, Larry Jegley, William L Rutledge, Leslie Rutledge, Don R Phillips, David L Staggs, Rhys L Branman. (cmn) (Entered: 08/14/2019)
126 TRANSCRIPT REQUEST by Omar T Atiq, Rhys L Branman, Robert Breving, Jr, Matt Durrett, Rodney Grifﬁn, Veryl D Hodges, Marie Holder, Brian T Hyatt, Larry Jegley, Larry D Lovell, Timothy C Paden, Don R Phillips, Leslie Rutledge, William L Rutledge, John H Scribner, Sylvia D Simon, Nathaniel Smith, David L Staggs re 120 Notice of Appeal, (Cantrell, Michael) (Entered: 08/21/2019)

09/09/2019 09/09/2019

127 MOTION for Protective Order by Stephanie Ho, Little Rock Family Planning Services, Planned Parenthood of Arkansas & Eastern Oklahoma, Thomas Tvedten (Attachments: # 1 Exhibit 1 - FILED UNDER SEAL, # 2 Exhibit 2 - FILED UNDER SEAL, # 3 Exhibit 3 - FILED UNDER SEAL, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6 - FILED UNDER SEAL)(Godesky, Leah) (Entered: 09/09/2019)
128 SEALED EXHIBITS. (bmd) (Entered: 09/09/2019)

09/23/2019 129 RESPONSE in Opposition re 127 MOTION for Protective Order ﬁled by All Defendants. (Cantrell, Michael) (Entered: 09/23/2019)

09/25/2019

130 STATUS REPORT (REDACTED) by Little Rock Family Planning Services, Thomas Tvedten. (Attachments: # 1 Redacted Lori Williams Declaration, # 2 Natalie Gladstein Declaration, # 3 Redacted Declaration)(Godesky, Leah) (Entered: 09/25/2019)

09/25/2019 04/13/2020
04/13/2020

131 SEALED DOCUMENT. (llg) (Entered: 09/25/2019)
132 MOTION for Leave to File a Supplemental Complaint by Little Rock Family Planning Services, Thomas Tvedten (Attachments: # 1 Exhibit 1)(Godesky, Leah) (Entered: 04/13/2020)
133 BRIEF IN SUPPORT re 132 Motion for Leave to File a Supplemental Complaint ﬁled by

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Little Rock Family Planning Services, Thomas Tvedten. (Godesky, Leah)[STRICKEN FROM THE RECORD PER 175 ORDER](jak) (Entered: 04/13/2020)
134 MOTION for Temporary Restraining Order and/or, MOTION for Preliminary Injunction () by Little Rock Family Planning Services, Thomas Tvedten (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18) (Godesky, Leah)[STRICKEN FROM THE RECORD PER 175 ORDER] (jak) (Entered: 04/13/2020)
135 BRIEF IN SUPPORT re 134 Motion for TRO,,, Motion for Preliminary Injunction,, ﬁled by Little Rock Family Planning Services, Thomas Tvedten. (Godesky, Leah)[STRICKEN FROM THE RECORD PER 175 ORDER] (jak) (Entered: 04/13/2020)
136 MOTION for Leave to Appear pro hac vice by Ashley Robertson. Fee $100 receipt number AAREDC-3682450. Filed by Thomas Tvedten (Attachments: # 1 Afﬁdavit Declaration of Ashley Robertson)(Brownstein, Bettina) (Entered: 04/14/2020)
137 MOTION for Leave to Appear pro hac vice by Christopher Burke. Fee $100 receipt number AAREDC-3682456. Filed by Thomas Tvedten (Attachments: # 1 Afﬁdavit Declaration of Christopher Burke)(Brownstein, Bettina) (Entered: 04/14/2020)
138 MOTION for Leave to Appear pro hac vice by Maya Zagayer. Fee $100 receipt number AAREDC-3682459. Filed by Thomas Tvedten (Attachments: # 1 Afﬁdavit Declaration of Maya Zagayer)(Brownstein, Bettina) (Entered: 04/14/2020)
139 MOTION for Leave to Appear pro hac vice by Ruth Harlow. Fee $100 receipt number AAREDC-3682465. Filed by Thomas Tvedten (Attachments: # 1 Afﬁdavit Declaration of Ruth Harlow)(Brownstein, Bettina) (Entered: 04/14/2020)
140 NOTICE of Appearance by Brooke-Augusta Ware on behalf of All Plaintiffs (Ware, Brooke-Augusta) (Entered: 04/14/2020)
141 TEMPORARY RESTRAINING ORDER. Signed by Judge Kristine G. Baker on 4/14/2020. (jbh) [VACATED PER 175 ORDER] (jak) (Entered: 04/14/2020)
142 AMENDED COMPLAINT / First Supplemental Complaint for Injunctive and Declaratory Relief re 141 against All Defendants, ﬁled by Little Rock Family Planning Services, Thomas Tvedten(Godesky, Leah) [STRICKEN FROM THE RECORD PER 175 ORDER] (jak) (Entered: 04/14/2020)
143 ORDER granting 136 , 137 , 138 , 139 motions for admission pro hac vice of attorneys Ashley Robertson, Christopher Burke, Maya Zagayer, and Ruth E. Harlow. Ashley Robertson, Christopher Burke, Maya Zagayer, and Ruth E. Harlow shall appear as counsel for plaintiffs. Signed by Judge Kristine G. Baker on 4/15/2020. (jbh) (Entered: 04/15/2020)
144 MOTION to Withdraw as Attorney as to Kelly M. Scavone and Taylor S. Simeone only by Stephanie Ho, Little Rock Family Planning Services, Planned Parenthood of Arkansas & Eastern Oklahoma, Thomas Tvedten (Godesky, Leah) (Entered: 04/15/2020)
145 USCA Docketing Letter. Petition for Writ of Mandamus has been ﬁled. (ajt) (Entered: 04/16/2020)
146 ORDER granting 144 motion to withdraw Kelly M. Scavone and Taylor S. Simeone as counsel of record for plaintiffs; and directing the Clerk of Court to terminate Kelly M. Scavone and Taylor S. Simeone as counsel of record for plaintiffs. Plaintiffs will continue

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to be represented in this matter by their remaining counsel of record. Signed by Judge Kristine G. Baker on 4/16/2020. (jbh) (Entered: 04/16/2020)
147 ORDER: The Court will hold a hearing on the motion for preliminary injunction on Friday, 4/24/2020, beginning at 9:00 a.m. CT in Little Rock Courtroom 4C, imposing the conditions and setting forth the deadlines in this Order. Signed by Judge Kristine G. Baker on 4/16/2020. (jbh) [VACATED PER 175 ORDER] (jak) (Entered: 04/16/2020)
148 NOTICE of Hearing: TELPHONE CONFERENCE set for 4/17/2020 at 03:00 PM before Judge Kristine G. Baker. (tmw)[VACATED PER 175 ORDER] (jak) (Entered: 04/17/2020)
149 MOTION for Discovery (Expedited Pre-Hearing) by Stephanie Ho, Little Rock Family Planning Services, Planned Parenthood of Arkansas & Eastern Oklahoma, Thomas Tvedten (Attachments: # 1 Exhibit 1)(Godesky, Leah) [STRICKEN FROM THE RECORD PER 175 ORDER] (jak) (Entered: 04/17/2020)
150 BRIEF IN SUPPORT re 149 Motion for Discovery (Expedited Pre-Hearing) ﬁled by Stephanie Ho, Little Rock Family Planning Services, Planned Parenthood of Arkansas & Eastern Oklahoma, Thomas Tvedten. (Godesky, Leah) [STRICKEN FROM THE RECORD PER 175 ORDER] (jak) (Entered: 04/17/2020)
151 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) MINUTES for proceedings held before Judge Kristine G. Baker: TELEPHON CONFERENCE held on 4/17/2020. The Court took certain matters under advisement; Plaintiffs to submit subpoenas to the Court; The defendants to report to the Court availability of certain witnesses by 10:00 a.m. on Monday, April 20, 2020; The Court will issue a written order thereafter. (Present for plaintiffs: Leah Godesky, Bettina Brownstein, Kendall Turner, Brook Augusta Ware and Ruth Harlow; Present for defendants: Dylan Jacobs, Jennifer Merritt, and Vincent Wagner) (Court Reporter Elaine Hinson) (tmw) (Entered: 04/17/2020)
152 ORDER directing the parties to abide by the evidentiary procedures outlined in this Order; and holding in abeyance the 149 Supplemental Complaint Plaintiffs' motion for expedited pre-hearing discovery. Defendants need not respond to the Supplemental Complaint Plaintiffs' six interrogatories or three requests for production at this time. Signed by Judge Kristine G. Baker on 4/20/2020. (jbh) [VACATED PER 175 ORDER] (jak) (Entered: 04/20/2020)
153 RESPONSE in Opposition re 134 MOTION for Temporary Restraining Order and/or MOTION for Preliminary Injunction , 132 MOTION for Leave to File a Supplemental Complaint ﬁled by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Jacobs, Dylan) [STRICKEN FROM THE RECORD PER 175 ORDER](jak) (Entered: 04/21/2020)
154 ORDER vacating the portion of the 141 Temporary Restraining Order issued on 4/14/2020, enjoining defendants from "enforcing the Challenged Provisions against any providers of surgical abortions in Arkansas to bar all surgical abortions, 'except where immediately necessary to protect the life or health of the patient.'". Signed by Judge Kristine G. Baker on 4/22/2020. (jbh) [VACATED PER 175 ORDER](jak) (Entered: 04/22/2020)
155 OPINION of USCA as to 145 Petition for Writ of Mandamus. (ajt) (Entered: 04/22/2020)
156 USCA JUDGMENT as to 145 Petition for Writ of Mandamus: Petition for writ of mandamus has been considered by the court and is granted in part. The district court is ordered to dissolve the TRO of 04/14/2020, in accordance with the opinion of this court.

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The emergency motion to stay the ex parte TRO and for a temporary administrative stay is denied as moot. (ajt) (Entered: 04/22/2020)
157 MANDATE of USCA in accordance with the opinion and judgment of 04/22/2020 as to 145 Petition for Writ of Mandamus. (ajt) (Entered: 04/22/2020)
158 REPLY to Response to Motion re 132 MOTION for Leave to File a Supplemental Complaint ﬁled by Little Rock Family Planning Services, Thomas Tvedten. (Attachments: # 1 Exhibit 1)(Godesky, Leah) [STRICKEN FROM THE RECORD PER 175 ORDER](jak) (Entered: 04/22/2020)
159 DECLARATION of Reginald Rogers by Omar T Atiq, Rhys L Branman, Robert Breving, Jr, Matt Durrett, Rodney Grifﬁn, Veryl D Hodges, Marie Holder, Brian T Hyatt, Larry Jegley, Larry D Lovell, Timothy C Paden, Don R Phillips, Leslie Rutledge, William L Rutledge, John H Scribner, Sylvia D Simon, Nathaniel Smith, David L Staggs. re 153 Response in Opposition to Motion, ﬁled by Brian T Hyatt, Omar T Atiq, Marie Holder, Veryl D Hodges, Robert Breving, Jr, Larry D Lovell, Sylvia D Simon, Timothy C Paden, Rodney Grifﬁn, Nathaniel Smith, John H Scribner, Matt Durrett, Larry Jegley, William L Rutledge, Leslie Rutledge, Don R Phillips, David L Staggs, Rhys L Branman. (Jacobs, Dylan) [STRICKEN FROM THE RECORD PER 175 ORDER](jak) (Entered: 04/22/2020)
160 AFFIDAVIT in Support re 134 MOTION for Temporary Restraining Order and/or MOTION for Preliminary Injunction (Plaintiffs' Additional Evidentiary Submissions in Support of their Motion for a Preliminary Injunction) ﬁled by Little Rock Family Planning Services, Thomas Tvedten. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40)(Godesky, Leah) [STRICKEN FROM THE RECORD PER 175 ORDER](jak) (Entered: 04/22/2020)
161 MOTION for Leave to Appear pro hac vice by Jennifer Sandman. Fee $100 receipt number AAREDC-3688899. Filed by Stephanie Ho, Little Rock Family Planning Services (Attachments: # 1 Afﬁdavit)(Brownstein, Bettina) [STRICKEN FROM THE RECORD PER 175 ORDER](jak) (Entered: 04/22/2020)
162 MOTION for Leave to File / Plaintiffs' Motion for Leave to Use a Pseudonym and for a Protective Order by Little Rock Family Planning Services, Thomas Tvedten (Godesky, Leah) [STRICKEN FROM THE RECORD PER 175 ORDER] (jak) (Entered: 04/22/2020)
163 BRIEF IN SUPPORT re 162 Motion for Leave to File ﬁled by Little Rock Family Planning Services, Thomas Tvedten.(Godesky, Leah) [STRICKEN FROM THE RECORD PER 175 ORDER](jak) (Entered: 04/22/2020)
164 MOTION for Temporary Restraining Order and/or, MOTION for Preliminary Injunction () by Little Rock Family Planning Services, Thomas Tvedten (Attachments: # 1 Exhibit 1 - Godesky Declaration, # 2 Exhibit 2 - Williams Declaration)(Godesky, Leah) [STRICKEN FROM THE RECORD PER 175 ORDER] (jak) (Entered: 04/22/2020)
165 BRIEF IN SUPPORT re 164 Motion for TRO,, Motion for Preliminary Injunction, ﬁled by Little Rock Family Planning Services, Thomas Tvedten. (Godesky, Leah)

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[STRICKEN FROM THE RECORD PER 175 ORDER](jak) (Entered: 04/22/2020)

04/23/2020 166 STATUS REPORT by Little Rock Family Planning Services, Thomas Tvedten. (Godesky, Leah)[STRICKEN FROM THE RECORD PER 175 ORDER](jak) (Entered: 04/23/2020)

04/23/2020

167 ORDER canceling the preliminary injunction hearing set for 4/24/2020; shortening the defendants' time to respond to the 164 Supplemental Complaint Plaintiffs' second motion for an ex parte temporary restraining order and/or preliminary injunction to Monday, 4/27/2020, at 9:30 a.m. CT; shortening the Supplemental Complaint Plaintiffs' time to ﬁle a reply in support of its second motion for an ex parte temporary restraining order and/or preliminary injunction to Tuesday, 4/28/2020, at 9:30 a.m. CT; and taking under advisement all of the issues raised in the parties' ﬁlings and this Order. Signed by Judge Kristine G. Baker on 4/23/2020. (jbh) [VACATED PER 175 ORDER] (jak) (Entered: 04/23/2020)

04/27/2020

168 RESPONSE in Opposition re 164 MOTION for Temporary Restraining Order and/or MOTION for Preliminary Injunction ﬁled by All Defendants. (Jacobs, Dylan) [STRICKEN FROM THE RECORD PER 175 ORDER](jak) (Entered: 04/27/2020)

04/27/2020

169 STATUS REPORT by Little Rock Family Planning Services, Thomas Tvedten. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Godesky, Leah) [STRICKEN FROM THE RECORD PER 175 ORDER](jak) (Entered: 04/27/2020)

04/28/2020

170 ORDER construing a portion of the 169 status report as a request to stay brieﬁng on the 164 second motion for a preliminary injunction and/or temporary restraining order and granting that request. The Court will not require the Supplemental Complaint Plaintiffs to ﬁle a reply in support of their second motion for a temporary restraining order and/or preliminary injunction by Tuesday, 4/28/2020. The Court continues to hold under advisement all issues raised in the parties' ﬁlings and in this Order. Signed by Judge Kristine G. Baker on 4/28/2020. (jbh) [VACATED PER 175 ORDER] (jak) (Entered: 04/28/2020)

05/01/2020

171 MOTION for Leave to File (Motion to Substitute Proposed Supplemental Complaint) by Little Rock Family Planning Services, Thomas Tvedten (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Godesky, Leah) [STRICKEN FROM THE RECORD PER 175 ORDER](jak) (Entered: 05/01/2020)

05/01/2020

172 BRIEF IN SUPPORT re 171 Motion for Leave to File ﬁled by Little Rock Family Planning Services, Thomas Tvedten. (Godesky, Leah) [STRICKEN FROM THE RECORD PER 175 ORDER](jak) (Entered: 05/01/2020)

05/01/2020

173 MOTION for Temporary Restraining Order and/or, MOTION for Preliminary Injunction () by Little Rock Family Planning Services, Thomas Tvedten (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7) (Godesky, Leah) [STRICKEN FROM THE RECORD PER 175 ORDER](jak) (Entered: 05/01/2020)

05/01/2020

174 BRIEF IN SUPPORT re 173 Motion for TRO,, Motion for Preliminary Injunction, ﬁled by Little Rock Family Planning Services, Thomas Tvedten. (Godesky, Leah) [STRICKEN FROM THE RECORD PER 175 ORDER](jak) (Entered: 05/01/2020)

05/01/2020

175 ORDER denying 132 Supplemental Complaint Plaintiffs' request to ﬁle a supplemental complaint in this action; striking from this action the 142 Supplemental Complaint Plaintiffs' ﬁrst supplemental complaint for injunctive and declaratory relief and 133 , 134 , 135 , 149 , 150 , 153 , 158 , 159 , 160 , 161 , 162 , 163 , 164 , 165 , 166 , 168 , 169 , 171 , 172 , 173 , 174 all other ﬁlings related to the supplemental complaint for injunctive and declaratory relief made by the Supplemental Complaint Plaintiffs and defendants; vacating this Court's 141 , 147 , 148 , 152 , 154 , 167 , 170 prior Orders impacted by this

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decision; and directing the Clerk of Court to ﬁle provisionally the 142 Supplemental Complaint Plaintiffs' ﬁrst supplemental complaint for injunctive and declaratory relief and 133 , 134 , 135 , 149 , 150 , 153 , 158 , 159 , 160 , 161 , 162 , 163 , 164 , 165 , 166 , 168 , 169 , 171 , 172 , 173 , 174 all other ﬁlings related to the supplemental complaint for injunctive and declaratory relief as a separate action and to reassign by random assignment the new case. Signed by Judge Kristine G. Baker on 5/1/2020. (jbh) (Entered: 05/01/2020)
176 MOTION to Withdraw as Attorney Susan Talcott Camp by All Plaintiffs (Camp, Susan) (Entered: 05/13/2020)
177 ORDER granting 176 motion to withdraw Susan Talcott Camp as counsel of record for plaintiffs; and directing the Clerk of Court to terminate Susan Talcott Camp as counsel of record for plaintiffs. Plaintiffs will continue to be represented in this matter by their remaining counsel of record. Signed by Judge Kristine G. Baker on 6/8/2020. (jbh) (Entered: 06/08/2020)
178 OPINION of USCA as to 120 Notice of Appeal, ﬁled by Brian T Hyatt, Omar T Atiq, Marie Holder, Veryl D Hodges, Robert Breving, Jr, Larry D Lovell, Sylvia D Simon, Timothy C Paden, Rodney Grifﬁn, Nathaniel Smith, John H Scribner, Matt Durrett, Larry Jegley, William L Rutledge, Leslie Rutledge, Don R Phillips, David L Staggs, Rhys L Branman. (ajt) (Entered: 01/05/2021)
179 USCA JUDGMENT as to 120 Notice of Appeal, ﬁled by Brian T Hyatt, Omar T Atiq, Marie Holder, Veryl D Hodges, Robert Breving, Jr, Larry D Lovell, Sylvia D Simon, Timothy C Paden, Rodney Grifﬁn, Nathaniel Smith, John H Scribner, Matt Durrett, Larry Jegley, William L Rutledge, Leslie Rutledge, Don R Phillips, David L Staggs, Rhys L Branman: It is hereby ordered and adjudged that the district court's order preliminarily enjoining enforcement of Act 493 and Act 619 is afﬁrmed. It is further ordered that the appeal of the preliminary injunction of Act 700 is dismissed as moot, and the matter is remanded to the district court with instructions to vacate this part of its Preliminary Injunction order. Defendant's appeal from the district court's consolidation orders is dismissed, and its request that the case be reassigned on remand is denied. (ajt) (Entered: 01/05/2021)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DMSION

LITTLE ROCK FAMILY PLANNING SERVICES, PLANNED PARENTHOOD OF ARKANSAS & EASTERN OKLAHOMA, DIBIA PLANNED PARENTHOOD GREAT PLAINS, STEPHANIE Ho, M.0., and THOMAS TvEDTEN, M.D., on behalf of themselves and their patients,
Plaintiffs,

JAM
By:~~.&1-1-...,....~'-F:~~~

v.

LESLIE RUTLEDGE, in her official capacity as Attorney General ofthe State of Arkansas; LARRY JEGLEY, in his official capacity as Prosecuting Attorney of Pulaski County; MATT DURRETT, in his official capacity as Prosecuting Attorney of Washington County; SYLVIA D. SIMON, M.D., in her official capacity as Chairman of Arkansas State Medical Board; ROBERT BREVING JR., M.0., VERYL 0. HODGES, 0.0., JOHN H. SCRIBNER, M.O., OMAR T. ATIQ, M.O., RHYS L. BRANMAN, M.O., RODNEY GRIFFIN, M.O., MRS. MARIE HOLDER, BRIANT. HYATT, M.D., MR. LARRY 0. "BUDDY" LOVELL, TIMOTHY C. PADEN, M.D., DON R. PHILLIPS, M.O., WILLIAM L. RUTLEDGE, and M.D., DAVID L. STAGGS, M.D., in their official capacities as officers and members of the Arkansas State Medical Board, and NATHANIEL SMITH, M.D., M.P.H., in his official capacity as Director and State Health Officer ofthe Arkansas Department of Health,

CIVIL ACTION
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
d This case assigned to D i s t r i ~ i l / ~
and to Magistrate Judge

Defendants.

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TABLE OF CONTENTS

Page

INTRODUCTION ......................................................................................................................... 1 JURISDICTION AND VENUE .................................................................................................... 3 PLAINTIFFS ................................................................................................................................. 4 DEFENDANTS ............................................................................................................................. 5 THE CHALLENGED RESTRICTIONS ....................................................................................... 7 FACTUAL ALLEGATIONS ...................................................................................................... 11 CLAIMS FOR RELIEF ............................................................................................................... 33 INJUNCTNE RELIEF ................................................................................................................ 35 REQUEST FOR RELIEF ............................................................................................................ 35

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Plaintiffs Little Rock Family Planning Services ("LRFP"), Planned Parenthood of Arkansas & Eastern Oklahoma, d/b/a Planned Parenthood Great Plains ("PPAEO"), Dr. Stephanie Ho, and Dr. Thomas Tvedten, on behalf of themselves and their patients, by and through their attorneys, bring this Complaint against the above-named Defendants, their employees, agents, and successors in office, and in support thereof state the following:
INTRODUCTION 1. In recent years, Arkansas has engaged in a targeted campaign against abortion, enacting more than 25 laws aimed at obstructing and interfering with women's access to abortion care in the State, including at least 12 enacted in 2019 alone. 2. Plaintiffs in this case challenge three recently enacted abortion restrictions (together, "the Restrictions"), which fly directly in the face oflongstanding Supreme Court precedent and are the latest in Arkansas's unrelenting campaign to deny women the health care they seek and to which they are entitled. 3. Plaintiffs seek declaratory and injunctive relief from these three Restrictions on behalf ofthemselves and their patients under the United States Constitution and 42 U.S.C. § 1983. Without this relief, the Restrictions will have a devastating effect on women seeking to access abortion in the state. 4. The Restrictions are:
a. Arkansas Act 493 of2019, to be codified at Ark. Code Ann. §§ 20-16-2003(9) to 2004(b) (the "18-Week Ban"), attached as Exhibit 1;
b. Arkansas Act 619 of 2019, to be codified at Ark. Code Ann.§ 20-16-2003 (the "Reason Ban"), attached as Exhibit 2; and
c. Arkansas Act 700 of 2019, to be codified at Ark. Code Ann.§ 20-16-605 (the

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''OBGYN Requirement''), attached as Exhibit 3. 5. All Restrictions are set to take effect 90 days after sine die adjournment ofthe General Assembly, which was April 24, 2019. They are all therefore scheduled to take effect on July 24, 2019. 1 6. In direct conflict with the Supreme Court's ruling in Roe v. Wade, 410 U.S. 113 (1973), and more than four decades of precedent affirming Roe's central holding, the 18-Week Ban and the Reason Ban (together, the "Bans'') criminalize pre-viability abortions. Specifically, the 18Week Ban makes it a crime to perform an abortion after 18 weeks of pregnancy, as measured from the first day of a woman's last menstrual period ("LMP"), despite the fact that viability does not occur until well after 18 weeks. And the Reason Ban criminalizes the provision of pre-viability abortion, ifthe provider has "knowledge" that the woman's decision to terminate her pregnancy is based on a test result, prenatal diagnosis, or "any other reason to believe" that the embryo or fetus has Down syndrome. The Bans therefore outright forbid women from exercising their constitutionally protected right to a pre-viability abortion in Arkansas, in violation ofthe Fourteenth Amendment to the United States Constitution, under a long line ofunbroken, binding precedent, and will inflict irreparable harm on Arkansas women ifthey are allowed to take effect. 7. Similarly, in forbidding highly qualified, trained physicians from providing abortion care in Arkansas simply because they are not board-certified or board-eligible in obstetrics/gynecology ("OBGYN"), the OBGYN Requirement provides absolutely no medical or safety benefits, and instead substantially burdens access to abortion in blatant violation ofthe Supreme Court's ruling in Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2310-14 (2016). The OBGYN Requirement also violates Plaintiffs' and their patients' rights to equal
1 See Ark. Att'y Gen. Op. No. 2019-034 (May 15, 2019), https://www.arkansasag.gov/assets/ opinions/2019-034.pdf.
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protection of the laws, as guaranteed by the Fourteenth Amendment to the U.S. Constitution, because it treats providers and patients differently than it treats providers of comparable procedures and patients seeking comparable procedures, without adequate justification. The OBGYN Requirement, too, is therefore unconstitutional.
8. All three Restrictions threaten Plaintiffs with stiff criminal penalties. 9. Unless this Court grants Plaintiffs the relief they seek, all three Restrictions will require Plaintiffs to tum away women seeking abortion care. As a result, some women will be forced to delay their access to abortion (increasing risk to their health and wellbeing); others will have to travel hundreds of miles to obtain care (and incur all the associated economic and logistical burdens); others will attempt to seek abortions outside the medical system; and still others will be prevented from obtaining abortion care entirely, forced to carry their pregnancies to term against their will. 10. Accordingly, to protect themselves and their patients from these constitutional violations and to avoid irreparable harm, Plaintiffs seek declaratory and injunctive relief to prevent enforcement ofthese three Restrictions.
JURISDICTION AND VENUE 11. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343(a)(3). 12. Plaintiffs' claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 ofthe Federal Rules of Civil Procedure, and the general legal and equitable powers ofthis Court. 13. Venue is appropriate under 28 U.S.C § 1391(b), because a substantial part ofthe events or omissions giving rise to Plaintiffs' claims occur in this judicial district and the majority of the Defendants, who are sued in their official capacity, carry out their official duties at offices
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located in this district. PLAINTIFFS
14. PlaintiffLRFP is a professional limited liability corporation that is licensed to do business in Arkansas. It has provided high quality reproductive health care in Arkansas since 1973. LRFP offers miscarriage care and basic gynecological care, including pap smears, sexually-transmitted-disease testing, contraceptive counseling and services, and abortion services. It operates a clinic in Little Rock that provides both medication and surgical abortion care. Medication abortions are offered up to IO weeks LMP and surgical abortions are offered until twenty-one weeks and six days ("21.6") LMP, a point in pregnancy at which a fetus is never viable. LRFP brings this action on behalf of itself, its patients, and the physicians and staff it employs to provide services to its patients.
15. Plaintiff PPAEO is an Oklahoma not-for-profit corporation licensed to do business in Arkansas. The health-care services provided by PPAEO at its two Arkansas health centers include well-woman exams, testing and treatment for sexually transmitted infections, provision of birth control and emergency contraception, HIV testing and care, pregnancy testing, screening for vaginal infections, human papillomavirus ("HPV") vaccinations, transgender health services, and menopausal services. It operates two of the three abortion-providing health centers in the state, located in Little Rock and Fayetteville. PPAEO provides medication abortions in Arkansas to women up to 10 weeks LMP. PPAEO or predecessor organizations have provided high quality reproductive health care in Arkansas for more than thirty years, and have offered medication abortion since 2008. PPAEO brings this action on behalf of itself, its patients, and the physicians and staff it employs to provide services to its patients.
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16. Plaintiff Stephanie Ho, M.D., is a board-certified family-medicine physician licensed to practice medicine in Arkansas. She has been providing health care in Arkansas since 2008, and medical services, including medication abortion, at PPAEO's Fayetteville health center since 2013. Dr. Ho provides medication abortions up to 10 weeks LMP. Dr. Ho is not board-eligible or board-certified in OBGYN. Dr. Ho sues on her own behalfand on behalf of her patients.
17. Plaintiff Thomas Tvetden, M.D., is a physician licensed to practice medicine in Arkansas and is the part owner and Medical Director ofLRFP. He has provided medical care in Arkansas for more than four decades, and abortion care for more than three decades. He currently provides medication abortion up to 10 weeks LMP and surgical abortion up to 21.6 weeks LMP. Dr. Tvedten is not board-eligible or board-certified in OBGYN. Dr. Tvedten sues on his own behalfand on behalf of his patients.
DEFENDANTS 18. Defendant Leslie Rutledge is the Attorney General ofArkansas. She is responsible for bringing an action for injunctive relief against any abortion provider who purposely, knowingly, or recklessly violates the Bans, so as to prevent the abortion provider from performing or inducing or attempting to perform or induce further abortions in violation of the Bans. See Act 493 (Ark. Code§ 20-16-2006(e)(l)-(2)); Act 619 (Ark. Code§ 20-162006(d)( 1)-(2)). She and her agents and successors are sued in their official capacities. 19. Defendants Larry Jegley and Matt Durrett are the Prosecuting Attorneys for Pulaski and Washington Counties, respectively, located at 224 South Spring Street, Little Rock, AR 72201 and 280 N. College Ave., Suite 301, Fayetteville, AR 72701. Prosecuting attorneys "shall commence and prosecute all criminal actions in which the state or any county in his
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district may be concerned." Ark. Code§ 16-21-103 (2019). Defendants Jegley and Durrett are therefore responsible for criminal enforcement of Act 493, Act 619, and Act 700 in Pulaski and Washington Counties. Plaintiff LRFP's health center is located in Pulaski County and Plaintiff PPAEO's health centers are located in Pulaski and Washington Counties. Defendants Jegley and Durrett are also responsible for bringing a cause of action for injunctive relief against abortion providers who purposely, knowingly, or recklessly violate the 18-Week Ban so as to prevent them from performing or inducing and from attempting to perform or induce further abortions in violation ofthe Ban. See Act 493 (Ark. Code§ 20-16-2006(e)(l)-(2)). Defendants Jegley and Durrett and their agents and successors are sued in their official capacities.
20. Defendant Sylvia D. Simon, M.D. is Chair ofthe Arkansas State Medical Board. Defendants Robert Breving Jr., M.D., Veryl D. Hodges, D.O., John H. Scribner, M.D., Omar T. Atiq, M.D., Rhys L. Branman, M.D., Rodney Griffin, M.D., Mrs. Marie Holder, Brian T. Hyatt, M.D., Mr. Larry D. "Buddy" Lovell, Timothy C. Paden, M.D., Don R. Phillips, M.D., William L. Rutledge, M.D., and David L. Staggs, M.D. are members of the Arkansas State Medical Board. The State Medical Board is responsible for licensing medical professionals under Arkansas law. See Ark. Code§ 17-95-410 (2019). The Board and its members are responsible for imposing licensing penalties under the Bans and the OBGYN Requirement and imposing licensing penalties for unprofessional conduct, which includes criminal conviction under statutes such as the Bans and the OBGYN Requirement. See Ark. Code § 17-95-409(a)(2)(A), (D) (2019). Defendants and their successors in office are sued in their official capacity.
21. Defendant Nathanial Smith, M.D., M.P.H., is the Director and State Health Officer ofthe Arkansas Department ofHealth, the agency charged with enforcing the 18-Week Ban and the license revocation part ofthe OBGYN Requirement. See Ark. Act 493 (2019) (Ark.
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Code Ann. § 20-16-2006(c)) (tasking Arkansas Department ofHealth with levying civil penalties for violation). Defendant Smith is sued in his official capacity.
THE CHALLENGED RESTRICTIONS The 18-Week Ban
22. The 18-Week Ban criminalizes the provision ofabortion care after 18 weeks LMP (i.e., beginning at 18.1 weeks LMP)2 in almost all cases. See Ark. Act 493, § 20-16-2004(b) (2019). Specifically, the Ban prohibits a person from "intentionally or knowingly" performing, inducing, or attempting to perform or induce an abortion ifthe "probable gestational age" is determined "to be greater than eighteen (18) weeks[]," as measured "from the first day of the last menstrual period ofthe pregnant woman." Id. § 20-16-2004(b); id § 20-16-2003(9).
23. The Ban is subject only to two extremely limited exceptions that permit abortions after 18 weeks LMP: (1) in the case of a "medical emergency," narrowly defined as "a condition that ... necessitates an abortion to preserve the life ofthe pregnant woman ... or when the continuation ofthe pregnancy will create a serious risk of substantial and irreversible impairment ofa major bodily function," id. § 20-16-2004(b); id § 20-16-2003(6), (7); and (2) where the pregnancy is the result of rape or incest, as defined by Arkansas code, id. § 20-16-2004(b).
24. The 18-Week Ban also imposes new reporting mandates to ensure compliance. It requires physicians who perform abortions where the "gestational age is greater than eighteen (18) weeks" to file a report with the Department ofHealth ''within fifteen (15) days ofthe abortion," detailing (among other things) the date on which the abortion was performed; the abortion method; the "probable gestational age" ofthe embryo/fetus and the method used to calculate it; a statement declaring that the abortion was necessitated by a medical emergency; the
2 Hereinafter referred to as "after 18 weeks."
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specific medical indications supporting the abortion and medical emergency; and the probable health consequences of the abortion and specific method used. See id. § 20-16-2004(c)(1 )-{2). 3
25. These reporting requirements are enforceable 10 days after either the effective date ofthe 18-Week Ban or the date that the reporting forms the Department ofHealth must create within 30 days ofthe 18-Week Ban's effective date become available, whichever occurs later. See id§ 20-16-2005(a)-{b).
26. A violation ofthe 18-Week Ban is a Class D felony, which is punishable by up to six years in prison and a fine ofup to $10,000. See id § 20-16-2006(a)(l); Ark. Code§§ 5-4201, -401. "A woman upon whom an abortion has been performed, induced, or attempted in violation of' the Ban may also may bring a civil action for violation ofthe 18-Week Ban. See id. § 20-16-2006(d).
27. Any physician who violates the prohibition is subject to mandatory license suspension or revocation by the Arkansas State Medical Board, see id § 20-16-2006(b), and may be sued by a prosecuting attorney with appropriate jurisdiction or the Attorney General to enjoin the physician from performing or attempting to perform any further abortions in violation ofthe 18-Week Ban. See id. § 20-16-2006(e)(l)-{2).
The Reason Ban 28. The Reason Ban makes it a crime for a physician to intentionally perform or attempt to perform an abortion ifthe clinician has "knowledge" that a pregnant woman is seeking an abortion "solely on the basis" of: (1) a test "indicating" Down syndrome; (2) a

3 The Ban does not make clear whether or how abortions performed after 18 weeks LMP under the rape or incest exception must be reported.
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prenatal diagnosis of Down syndrome; or (3) "[a]ny other reason to believe" the fetus has Down syndrome. Ark. Act 619, § 20-16-2003 (2019). 4
29. In addition, the Reason Ban mandates that, before providing abortion care, the physician who is providing the abortion ask the pregnant woman if she is aware of any test results, prenatal diagnosis, or any other evidence that the fetus may have Down syndrome. See id § 20-16-2003(b)(l). If the woman answers in the affirmative, the physician must: (1) inform the woman that Arkansas law prohibits abortion solely on the basis of an indication or belief that the fetus has Down syndrome, see id § 20- l 6-2003(b)(2)(A), and (2) delay the abortion by at least fourteen days while he/she requests and waits to receive the woman's medical records, to be used to determine whether she has previously had an abortion "after she became aware oftest results, prenatal diagnosis, or any other evidence that the unborn child may have had Down syndrome," id § 20-16-2003(b)(2)(B), (3).
30. The Ban exempts a clinician from its rigid requirements in only very narrow cases, namely: (1) when performance of an abortion is necessary to save the life or preserve the health of the pregnant woman, see id § 20-16-2002(l)(B)(i); and (2) when a pregnancy resulted from rape or incest, see id. § 20-16-2003(d).
31. Violation ofthe Ban constitutes a Class D felony, which is punishable by up to six years in prison and a fine ofup to $10,000. See id § 20-16-2004; Ark. Code§§ 5-4-201, -401 (2019). In addition, the Ban requires the Arkansas State Medical Board to revoke the license of a physician who violates its mandate, see id § 20-16-2005(c), and makes that physician liable in a civil action for actual and punitive damages to any "woman who receives an abortion in
4 Act 619 defines "Down syndrome" as "a chromosome disorder associated with either: (A) An extra copy of chromosome 21, in whole or in part; or (B) An effective trisomy for chromosome 21." Id. § 2016-2002(2).
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violation of [the Ban] without being informed ofthe prohibition" imposed by the Act, or "the parent or legal guardian ofthe woman if the woman is [an unemancipated] minor, or the legal guardian of the woman if the woman has been adjudicated incompetent," id.§ 20-162005(b)(1 }-(2).
32. A physician who knowingly violates the Reason Ban may also be subject to a cause of action for injunctive relief, brought by either the Attorney General or "the spouse, parent, guardian, or current or former licensed health provider ofthe woman who received or attempts to receive an abortion in violation of[the Ban]," so as to prevent the physician from performing further abortions in violation ofthe Reason Ban. Id. § 20-16-2005(d)(l)-(2).
The OBGYN Requirement 33. The OBGYN Requirement makes it a crime for a person to perform or induce an abortion, ifthat person is not board-certified or board-eligible in OBGYN. See Ark. Code§ 2016-605(a). 34. Under current law, a "physician licensed to practice medicine in the State of Arkansas" can provide abortion care. Ark. Code§ 5-61-IOI(a) (2019). 35. Providing an abortion in violation ofthe OBGYN Requirement is a Class D felony, punishable by up to six years in prison and a fine ofup to $10,000. See Ark. Code Ann. §§ 5-4-201, -401. It may also result in the revocation, suspension, or nonrenewal of the professional license ofthe physician or abortion facility. See Ark. Act 700, § 20-16-605(b) (2019). 36. Arkansas has never before enacted a comparable board-certification or medicalspecialty requirement specific to doctors providing abortion care.
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FACTUAL ALLEGATIONS Abortion Practice and Safety 37. Legal abortion is one of the safest medical procedures in the United States, and is far safer than continuing a pregnancy through to childbirth. Abortion-related mortality is also lower than that for colonoscopies, plastic surgery, and adult tonsillectomies. Abortion is safe and effective (and complications are very rare) regardless of the method of abortion used. 38. Less than 1% of women obtaining abortions experience a serious complication. The risk of a woman experiencing a complication that requires hospitalization is even lower, approximately 0.3%. Like the risk of mortality, the risk of a serious complication increases as a woman's pregnancy advances. 39. Legal abortion is not only extremely safe but also common; approximately one in four women in this country will have an abortion by age forty-five. 40. Women seek abortion for a multitude of complicated and personal reasons that are closely tied to each individual woman's values, culture and religion, health and reproductive history, family situation and support system, educational or career goals, and resources and financial stability. 41. Some women have abortions because they conclude that it is not the right time to become a parent given their age, desire to pursue their education or career, or because they feel they lack the necessary financial resources or level of partner or familial support or stability. 42. Other women are already mothers; indeed, a majority of women having abortions in the United States already have at least one child, and among 2017 abortion patients in Arkansas, approximately 65% had one or more previous live births. These women may already
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be struggling to adequately provide for their existing children and may be concerned about their ability to make ends meet if they add another child to their family.
43. Indeed, the vast majority-approximately 75%--of abortion patients are poor or low-income. Poverty is a significant problem in Arkansas, the country's fifth-poorest state.
44. Other women seek abortions because continuing with the pregnancy could pose a risk to their health, and still others because of an indication or diagnosis of a fetal medical condition or anomaly. Some families simply do not feel that they have financial, medical, educational, or emotional resources to care for a child with special needs or to do so alongside providing for the children they already have.
45. In states across the country, such as Colorado, Illinois, and Montana, a variety of medical providers, including midwives, nurse practitioners, and physician assistants, may legally provide both medication and surgical abortion.
Abortion Care in Arkansas 46. The vast majority of women who seek abortion care in Arkansas (as in the nation as a whole) do so in the first trimester of pregnancy, when the pregnancy is at or less than 14 weeks LMP. 47. There are two methods of abortion: medication abortion and surgical abortion. Medication abortions, which are provided in the first trimester, typically through approximately 10 weeks LMP, involve the ingestion oftwo types of medications (pills) at least one day apart to induce an early miscarriage. Medication abortion requires no anesthesia or sedation; the patient simply takes the pills. LRFP and PPAEO provide medication abortion up to l Oweeks LMP, which is a pre-viability point in pregnancy.
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48. Medication abortion is extremely safe. One recent, comprehensive report by the National Academies of Sciences, Engineering, and Medicine ("National Academies") (which was established by Congress to provide objective advice on matters related to science and technology) found that "[t]he risks of medication abortion are similar in magnitude to the risks of taking commonly prescribed and over-the-counter medications such as antibiotics and NSAIDs [nonsteroidal anti-inflammatory drugs]," such as ibuprofen. In the rare case where complications do arise, a clinician trained in providing abortion care can safely and effectively handle them, either by providing care themselves on an outpatient basis or, where necessary, referring the patient to a tertiary care facility for additional treatment.
49. LRFP and PPAEO have policies and practices in place to ensure safe administration ofmedication abortion. For example, a woman who has taken mifepristone at a health center is given a 24-hour hotline number that she can call with any questions or concerns, and patients are also provided with the name and phone number of a contracted OBGYN physician who has agreed to serve as the collaborative medical doctor for purposes of compliance with Arkansas Code § 20-16-1504. If patients call the hotline, a registered nurse or physician is always available. In most cases where a patient calls the hotline, her questions and concerns can be addressed over the phone. In the exceedingly rare case that the nurse or physician determines that a patient should be evaluated or treated immediately, she or he will refer the patient to the nearest emergency room.
50. Surgical abortions, which are provided in both the first and second trimesters, are performed by dilating (opening) the uterine cervix and then using gentle suction and/or instruments to empty the contents ofthe uterus. Despite being characterized as "surgical," these procedures are not surgical in the usual sense: they do not involve any incision into the woman's
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skin and in many cases can be performed with only local anesthesia. Surgical abortion is only available in Arkansas at LRFP up to 21.6 weeks LMP, which is a pre-viability point in pregnancy.
51. Surgical abortion, like medication abortion, is extremely safe. Its mortality rates are lower than those of colonoscopies, adult tonsillectomies, and childbirth. As with medication abortion, complications are extremely rare and may be handled safely and effectively by any clinician with adequate training in abortion care, either on an outpatient basis or (where necessary) via a referral.
52. It is common for a woman who can choose between a medication and surgical abortion (i.e., a women who is less than 10 weeks LMP) to have a preference for a surgical procedure. Although there are many reasons for this (and other women have a preference for medication abortion), many women prefer the surgical option because it requires fewer visits to the clinic, and thus is associated with a lower burden in terms of funding and time. Other women choose a surgical abortion because the procedure itself is shorter in duration, and women are generally able to return to work and other responsibilities shortly after the procedure. Some women have pre-existing medical conditions that eliminate medication abortion as a viable option.
53. Although most abortions in Arkansas occur during the first trimester, women also seek abortions in the second trimester, including after 18 weeks LMP, for a number of reasons. For example, some patients (especially those with irregular menstrual cycles) may not realize they are pregnant for weeks or months. A woman may then be further delayed while she confirms the pregnancy, researches her options, makes the decision to have an abortion, contacts a provider, and schedules an appointment. Patients often are also delayed in obtaining funds
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necessary for the procedure and related expenses (travel and childcare), as well as by difficulties in making the necessary logistical arrangements (e.g., obtaining time off work and arranging transporting and childcare). In 2018, approximately 170 ofLRFP's patients obtained abortions after 18 weeks LMP.
54. These delays are exacerbated by the fact that Arkansas law requires any woman who wishes to have an abortion to visit the abortion provider at least 48 hours (soon to be 72 hours) before the procedure will be performed. 5 During the initial visit, the State mandates that the patient receive certain information. The patient must then wait at least 48 hours before returning for the second visit, when she can receive the abortion. Accordingly, each of Plaintiffs' patients must make at least two separate visits to a clinic, at least two (soon to be three) full days apart. In the case of medication abortions and certain surgical abortions, the patient will have to make a third visit to the clinic for pre- or post-procedure care.
55. These barriers are particularly problematic for patients living in or near poverty or without insurance, as well as for patients who cannot take multiple days off from work in close proximity without jeopardizing their jobs or the confidentiality of their pregnancy and abortion decision. Other patients cannot arrange childcare for multiple days, or cannot do so without compromising the confidentiality of their decision. These individual circumstances all can lead to further delays.
56. Accordingly, even some ofLRFP's patients who begin the process of scheduling their first visit before 18 weeks LMP may be past the 18-week mark by the time oftheir scheduled
5 On April 20, 2019, Arkansas enacted a new law that will increase the mandated delay from 48 to 72 hours. Like the current, 48-hour mandated delay, the new law allows one narrow exception: immediate termination of the pregnancy is allowed where necessary ''to avert [the pregnant woman's] death" or where "delay will cause substantial and irreversible impairment of a major bodily function." 2019 Ark. Act 801, § 20-16-1109, -l 703(b), -1706. This law goes into effect on July 24, 2019. See Ark. Att'y Gen. Op. No. 2019-034 (May 15, 2019), https://www.arkansasag.gov/assets/opinions/2019-034.pdf.
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procedure. And some ofLRFP's and PPAEO's patients who would prefer to obtain medication abortion (which is available only up to 10 weeks LMP) may be unable to do so, given the practical complications of obtaining this care in time.
57. As a result of Plaintiffs' patients' work and family obligations and other scheduling constraints, Arkansas's mandatory delay and minimum-two-trip requirement forces many patients to delay their abortions by several days or more. Although abortion is safer than carrying a pregnancy to term, delay increases the risks associated with the procedure.
58. Before providing any abortion care, Plaintiffs provide non-directive patient counseling, which means they listen to, support, and inform the patient, without directing her course of action. That process is designed to ensure that patients are well-informed with respect to all their options, including terminating the pregnancy, carrying the pregnancy to term and parenting, and carrying the pregnancy to term and placing the baby for adoption. In addition, the process is designed to ensure that the woman's choice is voluntary and not coerced.
59. Although some of Plaintiffs' patients disclose information about their reasons for seeking an abortion during these non-directive discussions, Plaintiffs do not require that patients disclose any or all of their reasons for seeking an abortion, consistent with best medical practices.
Arkansas Already Extensively Regulates Abortion 60. Extensive regulations relating to abortion care are also currently enforced. For example:
a. Any woman seeking an abortion must be evaluated via a medical history, a physical examination, counseling, and laboratory tests. See Ark. Admin. Code. 007.05.2-8.
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b. Facilities providing abortions must have various medical tools available to assist
in the event of complications. See id.
c. Arkansas regulations require abortion facilities to have a certain number of
qualified personnel available to provide direct patient care. See id. 007.05.2-7.
d. Arkansas abortion facilities must also satisfy a variety of ongoing obligations to
educate staff about best practices and to assess their own services. See id. 007.05.1-10, 2-5, 2-
6(G), 2-7(D).
61. In recent years, Arkansas has engaged in a targeted campaign to restrict access to
abortion care. It enacted more than 25 laws obstructing and interfering with women's access to
abortion care in the State,6 including at least 12 enacted in 2019 alone.7
6 See, e.g., 2018 Ark. Act 234, § 19 (prohibiting expenditure of state funds for abortion referrals in public schools and for abortion services); 2018 Ark. Act 243, § 24 (same); 2018 Ark. Act 244, § 25 (same); ARK. CODE ANN.§§ 20-16-1801 to 1807 (2019) (banning most common method of second-trimester abortion); id.§ 20-16-1801 (requiring physicians to delay a woman's abortion while they request and wait for a woman's medical records); id.§ 20-16-lOS(a)(l) (requiring disclosure of abortion and preservation offetal tissue for abortion patients under the age of 17); id.§§ 20-17-801, 802 (imposing burdensome and confusing requirements regarding disposal offetal tissue); id.§ 20-9-302 (mandating the imposition of extreme penalties, such as license revocation, for violation ofthe many requirements imposed on abortion providers); id.§§ 20-16-801 to 817 (mandating parental consent for a minor's abortion); id. § 20-16-1504 (banning off-label use of abortion inducing drugs, and requiring any facility providing medication abortion to "have a signed contract with a physician who agrees to handle complications" who has "active admitting privileges and gynecological/surgical privileges at a hospital designated to handle any emergencies associated with the use or ingestion of the abortion-inducing drug"); id. § 20-16-1703 (mandating 48-hour delay before an abortion and two, in-person trips to facility); id. § 20-16-1602 (banning public funding to any individual or entity that provides, counsels in favor of, or refers for abortion); id. §§ 20-16-1301 to 1307 (banning abortion at 12 weeks, requiring abdominal ultrasound to detect fetal cardiac activity, and mandating disclosure of cardiac activity if present) (ban at 12 weeks struck down by Edwards v. Beck, 786 F.3d 1113 (8th Cir. 2015)); id. §§ 20-16-1401 to 1410 (banning abortion after 20 weeks post-fertilization); id. § 23-79-156 (banning abortion coverage in state insurance exchange plans). 7 In addition to the three laws Plaintiff has challenged here: ARK. CODE ANN.§ 20-16-605 (2019) (imposing additional abortion-related reporting requirements on physicians and facilities); id. § 5-61-301 to 304 (asking the Supreme Court to overturn Roe v. Wade and providing that, upon reversal, state law will prohibit abortions except to save the life ofa pregnant woman); id. § 20-9-203(b)(l) (imposing additional requirements on abortion facilities); id. § 20-16-604, -811, -1109 (imposing additional reporting requirements and penalties on doctors providing abortions); id. § 20-16-1703, -1706 (extending waiting period between doctor providing required disclosures to woman seeking abortion and provision of
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The 18-Week Ban Prohibits Abortion Before Viability 62. If it takes effect, the 18-Week Ban would ban all pre-viability abortions after 18 weeks LMP, except those that fall within the stringently narrow exceptions. The 18-Week Ban will therefore prohibit LRFP, Arkansas's only provider ofabortions after 18 weeks LMP, from providing pre-viability abortions to its patients. 63. Many ofLRFP's patients who seek care after 18 weeks LMP are facing very difficult circumstances, yet the vast majority ofthose patients would fall outside the Ban's narrow exceptions. Some ofthese patients may have health conditions that are caused or exacerbated by their pregnancies, but that do not fit within the 18-Week Ban's exception for a "medical emergency ... necessitat[ing] an abortion" to save their life or prevent substantial and irreversible impairment of a major bodily function, Ark. Act 493, § 20-16-2004(b); id § 20-162003(6), (7); others may learn only shortly before or after 18 weeks LMP that their fetus has a severe anomaly that would make life extremely difficult and painful; others are in violent or abusive relationships and may be concerned that carrying to term will tether them to their abuser; still others may, as a result ofthe trauma they have endured, be unable to raise the fact that they were raped or survivors of incest and thus unable to avail themselves ofthe exception allowing abortion in those circumstances. 64. Absent an injunction, LRFP will have no choice but to turn away patients in need of abortion care after 18 weeks LMP. 65. This will seriously and irreparably harm LRFP's patients by outright denying them access to pre-viability abortion in Arkansas and violating their constitutional rights.
abortion from 48 to 72 hours, and increasing infonnation doctor must provide); id. § 20-16-1703(b)(9), 1704(b)(6) (imposing additional disclosure requirements on doctors providing abortion-inducing drugs); 2019 Ark. Act 877, § 23 (prohibiting expenditure of state funds for abortion referrals in public schools and for abortion services); 2019 Ark. Act 752, § 18 (same); 2019 Ark. Act 727, § 24 (same).
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The Reason Ban Prohibits Abortion Before Viability And Is Unconstitutionally Vague 66. Down syndrome is the common name for a genetic anomaly, known as Trisomy 21,
which results from an extra copy (full or partial) ofthe twenty-first chromosome. The medical conditions and abilities ofpeople with Down syndrome varies considerably, and the specific manifestation ofDown syndrome cannot be known before birth. Many people with Down syndrome require significant care, sometimes stretching through adulthood.
67. A variety of"screens" and more accurate diagnostic tests can help detect genetic, chromosomal, or structural anomalies like Down syndrome. But no screens are available before 10 weeks LMP, and most women do not receive a confirmed Down syndrome diagnosis until the second trimester.
68. The American College ofObstetricians and Gynecologists ("ACOG"), the preeminent professional association for OBGYNs, recommends that all women be counseled about prenatal genetic screening and diagnostic testing options as early as possible in the pregnancy, ideally at the first prenatal visit. ACOG further recommends that all women, regardless of age, be offered the option of screening or diagnostic testing for fetal genetic disorders, and that women with positive screening test results be offered counseling and diagnostic testing.
69. Women who receive a positive Down syndrome test result or diagnosis are typically referred by a high-risk OBGYN to a genetic counselor for significant counseling. Counseling is intended to provide comprehensive, objective, and individualized counseling that addresses both the scientific aspect of any test result or diagnosis (e.g., the reliability of specific test results) and the psychological effects ofthe results on the woman and any family members involved in her decision making. A woman grappling with a Down syndrome diagnosis or
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another fetal anomaly is facing an extraordinarily complex decision that she should be able to make through self-reflection and discussion with anyone whom she chooses to involve in the process (such as her spouse, partner, friend, or family member). It is critically important that women have the information and support they need to make this serious decision, and also the ability to terminate a pregnancy safely, ifthat is what they decide is best for them.
70. LRFP is aware that some ofits patients seek abortions based solely or in part on a prenatal diagnosis of Down syndrome. These patients typically come to the clinic only after having already undergone extensive counseling with genetic counselors and/or maternal-fetal medicine physicians, as well as engaged in extensive reflection and conversation with the most important people in their lives.
71. The Reason Ban prohibits LRFP and its physicians and staff from intentionally performing or attempting to perform an abortion with "knowledge" that a pregnant woman is seeking an abortion "solely on the basis of' a Down syndrome diagnosis, indication, or "[a]ny other reason to believe that an unborn child has Down [s]yndrome." Act 619, § 20-16-2003. It bans abortions in these circumstances at any point in pregnancy, including the pre-viability period in which LRFP provides care.
72. The Reason Ban fails to define what constitutes "knowledge" sufficient to give rise to the Reason Ban's severe criminal, civil, and licensure penalties. Similarly, the Reason Ban fails to define when an abortion is sought "solely on the basis of' a Down syndrome diagnosis, indication, or other reason to believe the fetus has Down syndrome. Without further definition of this terminology, LFRP cannot know the standard by which Defendants will judge its conduct.
73. The Reason Ban also mandates that, before providing an abortion, the clinician ask the pregnant woman if she is aware of any test results, prenatal diagnosis, or any other
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evidence that the fetus may have Down syndrome. See Act 619, § 20-16-2003(b)(l). If the
woman answers in the affirmative, the physician must: (1) inform the woman that Arkansas law prohibits abortion solely on the basis ofan indication, diagnosis or beliefthat the fetus has Down syndrome, id. § 20-16-2003(b)(2)(A), and (2) request the medical records ofthe pregnant woman relevant to determining whether she has previously obtained an abortion after she became aware of any indication that the fetus might have Down syndrome, id. § 20-16-2003(b)(2)(B). When the law requires the clinician providing the abortion to request these records, the clinician "shall not perform an abortion until the physician spends at least fourteen (14) days to obtain the medical records." Id § 20-16-2003(b)(3).
74. Because ofthe Reason Ban's severe penalties, and because of its ambiguities, LRFP cannot be certain that even good-faith efforts to comply with the Reason Ban will satisfy its requirements. Accordingly, ifthe Reason Ban takes effect, LRFP will be unable to provide an abortion for a woman ifthey have "knowledge" that Down syndrome is a woman's "sole" reason for terminating the pregnancy. LRFP will cease providing care in these circumstances solely to avoid the Reason Ban's significant civil, criminal, and disciplinary sanctions. Accordingly, the Reason Ban will outright deny women access to pre-viability abortion in Arkansas based on the reason they seek abortion care, thereby violating their constitutional rights. LRFP wishes to continue providing safe and compassionate abortion care to patients who have knowingly and voluntarily decided to terminate their pregnancies, regardless oftheir reason for doing so.
The OBGYN Requirement Unconstitutionally Burdens Women While Providing No Benefits
75. Under current law, a "physician licensed to practice medicine in the State of
Arkansas" may provide abortion care. See Ark. Code§ 5-61-IOl(a) (2019).
76. But under the OBGYN Requirement, a clinician is prohibited from providing
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abortions unless she is "a physician licensed to practice medicine in the state of Arkansas" who is "board-certified or board-eligible in obstetrics and gynecology." Ark. Act 700, § 20-16605(a). The Requirement will accordingly prohibit LRFP's and PPAEO's qualified physicians from continuing to provide abortion care, which they have done safely and effectively in Arkansas for years. It will also unreasonably deprives women oftheir choice of provider and unnecessarily narrow the type of qualified and skilled provider that an abortion clinic can employ.
77. Arkansas does not impose a limit like the OBGYN Requirement on any other comparable medical procedure. It does not require board-certification or board-eligibility (much less board-certification or -eligibility in a specific specialty) for prescription of oral medication, except medications used to provide abortions. Nor does Arkansas impose these requirements for outpatient procedures of comparable or greater medical risk, such as colonoscopies or tonsillectomies. Arkansas law contains no requirement of a particular specialty, boardcertification, or board-eligibility for physicians offering pregnancy or birthing care at a birthing center, even though carrying to term, labor, and delivery pose significantly greater risk to women than abortion. And Arkansas law is bereft of any such qualification requirements for providers ofmiscarriage management, even though that care is near identical to abortion care from a technical perspective. In short, it subjects abortion providers and patients receiving abortion care to unequal treatment, without adequate justification.
LRFP 78. Dr. Tvedten is the primary provider at LRFP. He has been practicing medicine in Arkansas since the late 1970s, and was first trained to provide abortion care more than 30 years ago by an experienced Arkansas abortion provider and family physician. Dr. Tvedten has safely
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provided abortion care up to 21.6 weeks LMP for more than 15 years, and has trained numerous physicians to provide abortion care. He currently provides medication abortion up to IO weeks LMP and surgical abortion up to 21.6 weeks LMP.
79. Dr. Horton also provides abortion care at LRFP. Dr. Horton has more than two decades of experience providing abortion care to thousands of women in Tennessee and Arkansas. He completed four years ofresidency in OBGYN and passed the written examination for the American Board of Obstetrics and Gynecology in June 2002 and June 2013. Because he lives and mostly practices in Tennessee, he provides abortion care at LRFP only approximately one week per month.
80. Board-certified OBGYN Dr. Fred Hopkins assists LRFP by providing abortions at the clinic, but lives in California and can fly in to provide care only approximately once every other month. He is able to provide abortion care up to 24 weeks LMP, and has done so (to the extent permitted by state law) for the past twenty years. Dr. Hopkins is not able to assist at LRFP on a more permanent, or even more frequent, basis because ofhis personal and professional responsibilities in California.
81. Dr. Charlie Browne is a board-certified OBGYN licensed to provide care at LRFP who lives and works in Seattle, Washington. Although he has not worked at LRFP since 2012, he recently agreed to provide care during one week in July 2019, ifthe OBGYN Requirement goes into effect. He will not be able to provide care at LRFP after that time, given his professional and personal obligations in Seattle and the burden and strain that traveling to Arkansas would impose on him and his practice in Washington.
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PPAEO 82. Dr. Ho is currently the only abortion provider at PPAEO's Fayetteville clinic. She completed her family-planning residency at the University of Arkansas in 2011, and has been providing medical care in the State since 2008. During her residency, she was trained to provide surgical and medication abortion care by an experienced family-medicine physician who was on the faculty at the University of Colorado Health Sciences Center. In the course of her medical career, she has provided thousands of abortions. Because Dr. Ho cannot provide such care under the OBGYN Requirement, her employment contract with PPAEO will be substantially and negatively affected. 83. Earlier this year, and in response to PPAEO's extensive effort to identify a boardcertified or board-eligible OBGYN who can provide care at the Fayetteville health center, a board-certified OBGYN, Dr. Kathleen Paulson, agreed to provide medication abortion at the Fayetteville health center on a volunteer basis, ifthe OBGYN Requirement takes effect. Dr. Paulson has a full-time job and therefore can provide care for only three hours a week, and only in the evening. She is unsure whether and how frequently she can provide abortion care at the Fayetteville health center in the future. 84. Dr. Janet Cathey and Dr. Dudley Rodgers are board-certified OBGYNs who provide medical services at PPAEO's Little Rock clinic. Due to personal and professional obligations and limitations, they cannot provide care to more patients or travel to Fayetteville.
There is No Medical Justification for the OBGYN Requirement 85. Drs. Tvedten, Horton, and Ho have been providing safe abortion care for decades. They are extremely well qualified and experienced in doing so. Indeed, Ors. Tvedten and Horton have trained numerous physicians to provide safe abortion care. And Dr. Ho will be responsible
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for training her replacement who will provide medication abortion care if the OBGYN Requirement goes into effect.
86. If Act 700 takes effect, it will prohibit Dr. Ho, the sole provider of medication abortion at PPAEO's Fayetteville health center, and LRFP's two primary providers, Dr. Thomas Tvedten and Dr. Thomas Horton, as well as other health-care providers who already possess, or could acquire, the necessary education and training to safely and effectively provide abortion services, from providing such care solely because they are not board-certified or board-eligible OBGYNs. Dr. Tvedten is not an OBGYN and cannot become a board-certified or board-eligible OBGYN without the enormous outlay of time and expense required to restart medical training after decades of safely providing care to patients in Arkansas. Dr. Horton completed his residency in OBGYN, but he is neither board-eligible nor board-certified because he did not become board-certified within eight years of finishing his residency (which he completed in 2002) and thus is no longer considered an Active Candidate under the Arkansas Board of OBGYN's rules. In order to regain eligibility for certification, he would have to complete a minimum of six months of supervised training, which would provide no medical benefit to his patients and which he cannot do given his personal and financial obligations, as well as his professional obligations to his practice and his patients. Dr. Ho is a family-medicine doctor; as such, she is neither a board-certified OBGYN, nor eligible for such certification. She could not become such without abandoning her patients and practice to begin her medical training anewwhich, as an established physician who has provided high quality medical services for many years, she cannot do.
87. Moreover, the OBGYN Requirement interferes with Dr. Ho's contract with PPAEO, under which she has agreed to provide medical care, including medication abortion. If
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the OBGYN Requirement takes effect, it will substantively and negatively affect Dr. Ho's employment contract because Dr. Ho will no longer be able to provide abortion care.
88. Board-certification or -eligibility in OBGYN is not relevant to the safe provision ofabortion care. Training, rather than specialty, determines competence to provide abortion care, and a wide variety of clinicians can and do safely and routinely provide abortion services.
In fact, across the nation, abortion care is safely provided around the country up to at least 22
weeks LMP by non-OBGYN providers, and roughly one third of abortion providers come from specialties other than OBGYN. Medical schools and teaching hospitals around the country routinely use non-OBGYN faculty members to train residents and fellows in the provision of abortion care. Moreover, competence in abortion care is not a prerequisite for becoming a board-certified or eligible OBGYN. OBGYN residents can opt out ofany abortion training, and many board-certified OBGYNs have never even observed an abortion.
89. Prominent medical professional organizations agree that laws like the OBGYN Requirement are unjustified and unjustifiable. For example, ACOG has recognized that clinicians from many medical specialties can provide safe abortion care and that requiring boardcertification in OBGYN is "medically unnecessary" and "designed to reduce access to abortion." The President ofthe American College of Physicians has likewise opined that "[t]here is no evidence that these requirements improve patient safety; they just serve to reduce patient access to care."8 Professional medical organizations and organizations such as the National Academies
8 See Press Release, American College of Obstetricians and Gynecologists, ACOG Leads Coalition of Major Medical Organi:zations in Submitting Amicus Brief in June Medical Services L.L.C. v. Gee (May 21, 2019), https://www.acog.org/About-ACOG/News-Room/News-Releases/2019/Amicus-Brief-in-JuneMedical-Services-LLC-v-Gee?IsMobileSet=false (quoting from amicus brief).
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have also specifically endorsed the provision ofabortion care by clinicians other than boardcertified OBGYNs.9
90. There is no need for a clinician to be a board-certified or -eligible OBGYN to provide abortion care in general, but the OBGYN Requirement is especially unwarranted with respect to medication abortion. A variety of health professionals, including non-physicians, routinely prescribe medications to their patients for a variety ofconditions-including medications that have significantly higher complication rates than medication abortion-and, in other states, regularly prescribe medication abortion. Moreover, in Arkansas, medicationabortion providers are already required to have a contract with a back-up OBGYN provider. See Ark. Code§§ 20-16-1504 (2016) (requiring medication-abortion providers to contract with physician with certain hospital admitting privileges).
Impact of the OBGYN Requirement 91. LRFP and PPAEO cannot feasibly replace Drs. Tvedten, Horton, and Ho. Both have worked diligently to do so, with no success. Neither Dr. Hopkins (at LRFP) nor Ors. Cathey and Rodgers (at PPAEO Little Rock) are able to increase the hours they spend at these health centers ifthe Requirement takes effect, given their substantial personal and professional commitments and limitations. Accordingly, LRFP and PPAEO both began attempting to recruit board-certified or -eligible OBGYNs shortly after the OBGYN Requirement was signed into law. LRFP and PPAEO each sent a letter to all identified OBGYNs in the State, explaining that the OBGYN Requirement had passed, explaining its impact, and soliciting interest in joining their
9 See AM. ACADEMY OF f AMILY PHYSICIANS, RECOMMENDED CURRICULUM GUIDELINES FOR f AMILY MEDICINE RESIDENTS: WOMEN'S HEALTH AND GYNECOLOGIC CARE 9 (Aug. 2018); AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, COMMITTEE OP. No. 612 (Nov. 2014); National
Academy of Sciences, Engineering, and Medicine, The Sqfety and Quality ofAbortion Care in the United States, 163-165 (The National Academies Press 2018).
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respective staffs. LRFP and PPAEO also attempted to identify board-certified or board-eligible OBGYNs through repeated professional-network outreach and word ofmouth
92. To date, LRFP has received no responses to its letter, and its efforts to identify through professional networks a physician licensed to practice in Arkansas who could satisfy the requirement have been unsuccessful.
93. Through its extensive outreach efforts, PPAEO Fayetteville was able to secure the limited services of one board-certified OBGYN, Dr. Kathleen Paulson, who agreed to provide medication abortion one night a week on a volunteer basis for a three-hour window oftime, ifthe OBGYN Requirement goes into effect. She is uncertain, however, for how long she will be able to provide this limited volunteer service.
94. This lack ofresponse is no aberration. This is not the first time that LRFP and PPAEO have been forced to engage in extensive efforts seeking physicians with specific, medically irrelevant qualifications to ensure they can keep providing abortion care or to attempt to expand access, and received few responses.
95. The lack ofresponse to PPAEO and LRFP's outreach makes sense. Abortion providers face bombings and death threats, and some have been murdered. Dr. Horton was the victim ofa bomb threat that prompted a hospital evacuation. So, too, was Dr. Tvedten. Dr. Tvedten also faced anti-abortion activists distributing flyers on the grounds of his children's school that provided Dr. Tvedten's name, picture, and home address, and labeled him and his family as complicit in murder. LRFP's Clinical Director suffered anti-abortion activists mailing her photograph and a letter impugning her as an abortion provider to 800 ofher neighbors. And one of the doctors who trained Dr. Hopkins to provide abortion care was murdered in his church by an anti-choice extremist in 2009; he had previously been shot in both arms in 1993 by another anti-
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choice extremist. Another provider and friend ofDr. Hopkins was shot and nearly killed in 1994 and stabbed in 2000 by anti-abortion extremists.
96. Even when they do not face violence, abortion providers face profound stigma and harassment. The stigma and harassment abortion is particularly strong in Arkansas and surrounding areas. Anti-abortion activists crowd outside LRFP nearly every day that its doors are open to patients, shouting at the physicians. Dr. Tvedten reports past problems renewing leases for his clinic, faced with a landlord who refused to be associated with abortion care. Many providers who would otherwise be willing to provide abortions do not do so because of the immense personal and professional stigmatization that would result.
97. One way this stigma manifests is that working as an abortion provider can make it difficult (or impossible) to maintain or find a job in private practice. Dr. Horton was rejected from two jobs for which he applied in 2004 and 2005 after he informed his interviewers that he provided abortion care. Dr. Ho faced a similar incident. And in 2005, Dr. Horton was fired from a hospital job after he provided abortion care that one of his colleagues requested for a patient. Dr. Tvedten reports that physicians in Arkansas who provide abortion care generally jeopardize their ability to retain positions or admitting privileges at hospitals. In fact, Dr. Tvetden gave up his family practice in 1999 because he knew it would be extremely difficult, if not impossible, to attract potential partners and patients while he was continuing to provide abortion care in Arkansas. And one of the Arkansas physicians who trained Dr. Tvedten to provide abortion care was forced to abandon his provision of abortion care because of the harassment he and his family practice partners faced at their offices and homes, which negatively affected their ability to continue their family practice and attract patients, as well as the physician's ability to maintain positive, collaborative relationships with his practice partners.
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98. In short, despite their best efforts to comply with the OBGYN Requirement, Plaintiffs' capacity to provide abortions will be enormously reduced if it goes into effect.
99. Based on data from the last three years, an average of3,167 women have obtained abortions from Arkansas providers annually, with nearly 90% ofthose abortions provided by Drs. Tvedten, Horton, and Ho, whom the OBGYN Requirement would force to cease providing care. Approximately 70% of Arkansas abortion procedures over the last three years were surgical abortions at LRFP (2,212), and nearly half (45%) ofthose patients terminated their pregnancies at or after 10 weeks LMP, meaning that medication abortion was not an option for them.
100. Ifthe OBGYN Requirement takes effect, at least 62-70% ofwomen who seek abortion care in Arkansas will be unable to obtain the care that they otherwise would in the State. Said differently, at most 955-1,207 ofthe 3,167 women who currently obtain abortion care in Arkansas each year would be able to obtain the same abortion care in Arkansas that they would absent the OBGYN Requirement.
101. LRFP will almost certainly be forced to close because it will not be economically feasible to continue operating while providing no services other than abortions provided by Dr. Hopkins three days every-other month. If LRFP closes, even ifthe remaining PPAEO providers continue providing medication abortions, zero surgical abortions would be available in Arkansas. Thus, at least 70% of the women who seek abortion care in Arkansas annually would be unable to obtain the care that they otherwise would, but-for the OBGYN Requirement. Although there would theoretically be sufficient capacity in this scenario for women seeking medication abortion, it would be available for women in the Fayetteville area only during a single, threehour window each week that may be logistically impossible for many women.
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102. If LRFP closes and Dr. Paulson is no longer able to provide medication abortions, PPAEO Little Rock will be the State's sole provider, where a maximum of956 medication (i.e., pre-10 week LMP) abortions could be provided annually. Although PPAEO would theoretically have sufficient capacity to provide all the medication abortions sought in the State, women in and around Fayetteville who otherwise would have sought care at PPAEO Fayetteville will need to overcome a substantial travel distance from Fayetteville to Little Rock to receive care. And 100% of Arkansas' 2,212 annual surgical abortion patients would still be left without the care that they would otherwise seek, absent the OBGYN Requirement. Thus, even under the highly unrealistic assumption that all medication-abortions patients could overcome the burdens associated with traveling to a distant provider, approximately 70% of the 3,167 women who would otherwise obtain abortion care in Arkansas would still be unable to do so.
103. Even under the best-case scenario (i.e., LRFP somehow manages to continue operations and Dr. Paulson continues providing care at PPAEO Fayetteville), women's ability to access abortion in the State would be nearly as bleak. In that scenario, LRFP's annual capacity would be only approximately 252 women-a mere 11.4% ofthe women who seek surgical abortion care in Arkansas each year. 10 Thus, even this overly optimistic scenario would leave approximately 62% of women unable to obtain in Arkansas the care that they otherwise would.
104. Ifthe OBGYN Requirement takes effect, women seeking medication and surgical abortion in Arkansas will be forced to travel much greater distances to access the care they desire and need. For example, ifLRFP is forced to cease or severely restrict its provision of abortion care, women in and around Little Rock who cannot obtain care at PPAEO Little Rock will be
10 Even assuming some surgical-abortion patients could obtain medication-abortion care because they are less than IO weeks LMP, at least approximately 42% of women in this scenario would still be unable to obtain any type of abortion care in Arkansas, given the capacity constraints of the medication-abortion providers in the State.
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forced to travel either (i) approximately 380 miles round trip to PPAEO Fayetteville (assuming they are seeking medication abortion up to 10 weeks LMP and PPAEO Fayetteville can provide the requisite care, given Dr. Paulson's limited availability), or (ii) out of state, such as the approximately 300-mile round-trip journey to Memphis, Tennessee (the next-nearest provider from Little Rock). Similarly, if PPAEO Fayetteville is forced to reduce its provision of medication abortion because Dr. Paulson cannot continue providing care, women in and around Fayetteville seeking medication abortions will be forced to either travel approximately 380 miles round trip to PPAEO Little Rock or out ofstate (such as the approximately 220-mile roundtrip journey to Tulsa, Oklahoma).
105. Increases in travel distance are associated with substantial impacts on women's ability to access care. Even a 25-mile increase in travel distance can reduce abortion rates by 10%, with those women forced to carry to term against their will. That is because traveling increased distances to access health-care services is associated with substantial economic, logistical, and emotional burdens. These burdens are particularly devastating to the poor and low-income women who comprise a large portion ofLRFP's and PPAEO's patient populations.
106. Across the United States, most women who obtain abortion care are poor or low income, and it is no different in Arkansas. Between 2016 and 2018, for example, 61 % of PPAEO Fayetteville's medication-abortion patients were at or below 110% ofthe federal poverty level. One third ofLRFP's patient population receives financial assistance that is available only to women who are at or below 110% ofthe federal poverty guidelines.
107. The OBGYN Requirement's enforcement would impose significant logistical and financial obstacles that hann poor and low-income women seeking abortions in Arkansas. Specifically, the OBGYN Requirement will prevent some women from obtaining an abortion,
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delay other women's access to that care, jeopardize women's confidentiality and employment, increase the risk that victims of domestic violence will experience physical violence or other abuse, and put women and their families at risk of deepening poverty, hunger, or eviction. The financial burdens and logistical obstacles associated with increased travel can be insurmountable for many poor and low-income women.
108. Moreover, the delay caused by these burdens will (i) increase the risks associated with the procedure itself; (ii) push a woman past the point at which medication abortion is an option; (iii) push a woman into the second trimester, requiring a more complex procedure; and (iv) push a woman past Arkansas's legal limit for abortion-whether the current limit at 21.6 weeks LMP, or the new limit the State seeks to impose after 18 weeks LMP.
CLAIMS FOR RELIEF COUNTI
(Substantive Due Process) 109. Plaintiffs re-allege and incorporate by reference the allegations contained in paragraphs I through 109. 110. By imposing a ban on abortion prior to viability, the 18-Week Ban violates Plaintiffs' patients' right to privacy guaranteed by the Fourteenth Amendment to the United States Constitution. 111. By imposing a ban on abortion prior to viability, the Reason Ban violates Plaintiffs' patients' right to privacy guaranteed by the Fourteenth Amendment to the United States Constitution. 112. Similarly, because the OBGYN Requirement has no medical or safety benefit and imposes significant burdens on women seeking abortion in Arkansas, it violates Arkansas women's
33

Case 4:19-cv-00449-KGB Document 1 Filed 06/26/19 Page 36 of 57
right to privacy guaranteed by the Fourteenth Amendment to the United States Constitution. COUNT II
(Equal Protection) 113. Plaintiffs re-allege and incorporate by reference the allegations contained in paragraphs 1 through 109. 114. The OBGYN Requirement violates Plaintiffs' right to equal protection ofthe laws, as guaranteed by the Fourteenth Amendment to the U.S. Constitution, by imposing-without adequate justification-professional qualification requirements on abortion providers that Arkansas law does not impose on medical-care providers who perform comparable (or riskier) procedures. 115. The OBGYN Requirement violates the equal protection ofPlaintiffs' patients by treating patients who seek abortion services differently than patients who seek comparable health care services, without adequate justification.
COUNT III (Contracts Clause) 116. Plaintiffs re-allege and incorporate by reference the allegations contained in paragraphs 1 through 109. 117. The OBGYN Requirement, as applied to Dr. Ho and PPAEO, violates the Contracts Clause ofthe U.S. Constitution. Ifthe Requirement goes into effect, Dr. Ho will not be able to provide abortion care. Her provision of such care was the essence ofher employment contract with PPAEO. Thus, if the Requirement goes into effect, Dr. Ho's employment contract with PPAEO will be substantially and negatively affected.
34

Y' t

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COUNTIV (Unconstitutional Vagueness) 118. Plaintiffs re-allege and incorporate by reference the allegations contained in paragraphs 1 through 109. 119. The Reason Ban is unconstitutionally vague because it fails to give fair notice ofthe conduct prohibited, in violation ofthe Due Process Clause ofthe Fourteenth Amendment. It is impossible to detennine what the Ban requires when it criminalizes performing an abortion with "knowledge" that a pregnant woman is seeking abortion "solely on the basis" of: (1) a test indicating Down syndrome; (2) a prenatal diagnosis of Down syndrome; or (3) any other reason to believe the fetus has Down syndrome. Act 619, § 20-16-2003. As a result, Plaintiffs are left to guess at the meaning ofthese provisions-specifically, what constitutes "knowledge" and "solely on the basis of'-and what actions they may take without facing criminal prosecution. Because of the lack of precise standards to judge compliance, Defendants will be free to interpret these provisions in a discriminatory and inconsistent basis.
INJUNCTIVE RELIEF 120. If the Acts are allowed to take effect, Plaintiffs and their patients will be subject to irreparable harm for which no adequate remedy at law exists. 121. Enforcement ofthe Acts will cause irreparable hann by threatening Plaintiffs and their staff with substantial criminal penalties for providing abortion services; and by substantially burdening-or preventing altogether-Plaintiffs' patients' access to abortion in Arkansas.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs ask this Court: A. To immediately issue preliminary and permanent injunctive relief, restraining
35

Case 4:19-cv-00449-KGB Document 1 Filed 06/26/19 Page 38 of 57
Defendants, their employees, agents, and successors in office from enforcing Acts 493,619, and 700;
B. To enter a judgment declaring that Acts 493,619, and 700 violate the Due Process Clause ofthe Fourteenth Amendment to the U.S. Constitution;
C. To enter a judgment declaring that Act 700 violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution;
D. To enter a judgment declaring that Act 700, as applied to PPAEO and Dr. Ho, violates the Contracts Clause ofthe U.S. Constitution;
E. To enter a judgment declaring that Act 619 is invalid because it is unconstitutionally vague;
F. To award Plaintiffs their attorneys' fees and costs pursuant to 42 U.S.C. § 1988; and G. To grant such other and further reliefas the Court deems just and proper.
36

Case 4:19-cv-00449-KGB Document 1 Filed 06/26/19 Page 39 of 57

Dated: June 26, 2019

Rebecca Rhodes Jackson (AR Bar No. 2017079) 904 West 2nd Street Little Rock, AR 7220 I (314) 440-6265 beckywesth@gmail.com
On Behalf of the Arkansas Civil Liberties Union Foundation, Inc. Attorney for Plaintiff LFRP and Dr. Thomas Tveden
Bettina Brownstein (AR Bar No. 85019) Bettina E. Brownstein Law Firm 904 West 2nd Street, Suite 2 Little Rock, AR 7220 I (501) 920-1764 bettinabrownstein@gmail.com
On Behalf of the Arkansas Civil Liberties Union Foundation, Inc. Attorneyfor Plaintiff

37

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Meagan Burrows* Susan Talcott Camp* American Civil Liberties Union Foundation 125 Broad St, I 8th Floor New York, NY 10001 mburrows@aclu.org tcamp@aclu.org (212) 549-2633 Attorneys for Plaintiffe LRFP and Dr. Thomas Tvedten
Maithreyi Ratakonda* Planned Parenthood Federation ofAmerica 123 William St., 9th Fl. New Y01k, NY I0038 mai.ratakonda@ppfaorg (212) 261-4405
Attorneyfor Plaintiffe PPAEO and Dr. Stephanie Ho
* Motion for admission pro hac vice forthcoming

O'MELVENY & MYERS LLP Leah Godesky* Kelly Scavone* Times Square Tower 7 Times Square New York, New York I0036 lgodesky@omm.com kscavone@omm.com Tel: (212) 326-2254 Fax: (212) 326-2061
Kendall Turner* 1625 Eye St. NW Washington, DC 20006 (202) 383-5300 kendallturner@omm.com
Taylor Simeone* 1999 Avenue ofthe Stars Los Angeles, CA 90067 tsimeone@omm.com (310) 553-6700
Attorneys for Plaintiffe

38

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EXHIBIT 1

Case 4:19-cv-00449-KGB Document 1 Filed 06/26/19 Page 42 of 57

Stricken language would be deleted from and underlined language would be added to present law. Act 493 of the Regular Session

1 State of Arkansas 2 92nd General Assembly

As Engrossed: H2/19/19 S3/7/19
A Bill

3 Regular Session, 2019

HOUSE BILL 1439

4

5 By: Representatives Lundstrum, Barker, Bentley, Cavenaugh, Cloud, Crawford, Dotson, M Gray,

6 Ladyman, McCollum, Petty, Richmond, Slape, Penza, B. Smith, C. Cooper, Sullivan, Christiansen

7 By: Senators Rapert, J. Cooper, B. Davis, Hester

8

9

For An Act To Be Entitled

10

AN ACT TO CREATE THE CHERISH ACT; TO PROHIBIT

11

ABORTIONS AFTER EIGHTEEN (18) WEEKS' GESTATION EXCEPT

12

IN A MEDICAL EMERGENCY; AND FOR OTHER PURPOSES.

13

14

15

Subtitle

16

TO CREATE THE CHERISH ACT; AND TO

17

PROHIBIT ABORTIONS AFTER EIGHTEEN (18)

18

WEEKS' GESTATION EXCEPT IN A MEDICAL

19

EMERGENCY.

20

21

22 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:

23

24

SECTION 1. Arkansas Code Title 20, Chapter 16, is amended to add an

25 additional subchapter to read as follows:

26

Subchapter 20 - Cherish Act

27

28

20-16-2001. Title.

29

This subchapter shall be known and may be cited as the "Cherish Act".

30

31

20-16-2002. Legislative findings and intent.

32

(a) The General Assembly finds that:

33

(l)(A) The United States is one (1) of only seven (7) nations in

34 the world that permits nontherapeutic or elective abortion on request after

35 the twentieth week of gestation.

36

(B) Fully seventy-five percent (75%) of all nations do not

111111111111111 1111111111

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1 permit abortion after twelve (12) weeks' gestation, except to save the life

2 and preserve the physical health of the mother;

3

(2) Medical and other authorities now know more about human

4 prenatal development than ever before, including without limitation:

5

(A) Between five (5) and six (6) weeks' gestation, an

6 unborn human being's heart begins to beat;

7

(B) An unborn human being begins to move about in the womb

8 at approximately eight (8) weeks' gestation;

9

(C) At nine (9) weeks' gestation, all basic physiological

10 functions, buds for teeth, eyes, and external genitalia are present;

11

(D)(i) An unborn human being's vital organs begin to

12 function at ten (10) weeks' gestation.

13

(ii) Hair, fingernails, and toenails begin to form

14 at ten (10) weeks' gestation;

15

(E)(i) At eleven (11) weeks' gestation, an unborn human

16 being's diaphragm develops, which can result in hiccups.

17

(ii) In addition, an unborn human being begins to

18 move about freely in the womb; and

19

(F)(i) At twelve (12) weeks' gestation, an unborn human

20 being can open and close his or her fingers, make sucking motions, and sense

21 stimulation from outside the womb.

22

(ii) At this stage, the unborn human being takes on

23 "the human form" in all relevant aspects as stated in Gonzales v. Carhart,

24 550 U.S. 124. 160 (2007);

25

(3) The United States Supreme Court has recognized that a state

26 has an "important and legitimate interest in protecting the potentiality of

27 human life" in Roe v. Wade, 410 U.S. 113, 162 (1973), and, specifically, that

28 "the state has an interest in protecting the life of the unborn" as discussed

29 in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 2

30 873 (1992);

31

(4)(A) The majority of abortion procedures performed after

32 fifteen (15) weeks' gestation are dismemberment abortions as defined by§ 20-

33 16-1802, which are prohibited under the Arkansas Unborn Child Protection from

34 Dismemberment Abortion Act, § 20-16-1801 et seq.

35

(B) The performance of these types of abortions for

36 nontherapeutic or elective reasons is a barbaric practice that is dangerous

2

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1 for the pregnant woman and demeaning to the medical profession;

2

(5) Most obstetricians and gynecologists practicing in this

3 state do not offer or perform nontherapeutic or elective abortions;

4

(6)(A) According to a 2004 article, abortion can cause

5 significant physical and psychological risks to the pregnant woman that

6 increase with gestational age.

7

(B) Specifically, the relative physical and psychological

8 risks escalate exponentially as gestational age increases in abortions

9 performed after eight (8) weeks' gestation;

10

(7) In the vast majority of uncomplicated pregnancies, the

11 maternal health risks of undergoing an abortion become greater than the risks

12 of carrying a pregnancy to term as the second trimester progresses;

13

(8) In abortions performed after fifteen (15) weeks' gestation,

14 there is a higher risk that a pregnant woman will require a hysterectomy,

15 other reparative surgery, or blood transfusions; and

16

(9) The state has "legitimate interests from the outset of

17 pregnancy in protecting the health of women" as determined by Planned

18 Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 847 (1992),

19 as the "medical, emotional, and psychological consequences of abortion are

20 serious and can be lasting" as stated in H.L. v. Matheson, 450 U.S. 398, 411

21 (1981).

22

(b) It is the intent of the General Assembly to restrict the practice

23 of nontherapeutic or elective abortions to the period up to the eighteenth

24 week of gestation.

25

26

20-16-2003. Definitions.

27

As used in this subchapter:

28

(1) "Abortion" means the use or prescription of any instrument,

29 medicine, drug, or any other substance or device:

30

(A) To terminate the pregnancy of a woman known to be

31 pregnant with an intention other than to:

32

(i) Increase the probability of a live birth;

33

(ii) Preserve the life or health of the unborn

34 child;

35

(iii) Terminate an ectopic pregnancy; or

36

(iv) Remove a dead unborn child who died in utero as

3

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1 the result of natural causes, accidental trauma, or a criminal assault on the

2 pregnant woman or her unborn child; and

3

(B) That causes the premature termination of the

4 pregnancy;

5

(2) "Attempt to perform or induce an abortion" means an act or

6 an omission of a statutorily required act that, under the circumstances as

7 the actor believes them to be, constitutes a substantial step in a course of

8 conduct planned to culminate in the performance or induction of an abortion

9 in this state in violation of this subchapter;

10

(3) "Conception" means the fusion of human spermatozoon with a

11 human ovum;

12

(4) "Gestation" means the time that has elapsed since the first

13 day of the woman's last menstrual period;

14

(5) "Human being" means an individual member of the species Homo

15 sapiens from and after the point of conception;

16

(6) "Major bodily function" means the functions of the body,

17 including without limitation functions of the immune system, normal cell

18 growth, and digestive, bowel, bladder, neurological, brain, respiratory,

19 circulatory, endocrine, and reproductive functions;

20

(7) "Medical emergency" means a condition that, on the basis of

21 the physician's good-faith clinical judgment, necessitates an abortion to

22 preserve the life of a pregnant woman whose life is endangered by a physical

23 disorder, physical illness, or physical injury, including a life endangering

24 physical condition arising from the pregnancy itself, or when the

25 continuation of the pregnancy will create a serious risk of substantial and

26 irreversible impairment of a major bodily function;

27

(8) "Physician" means a person licensed to practice medicine in

28 this state, including a medical doctor; and

29

(9) "Probable gestational age" means the age of an unborn human

30 being as calculated from the first day of the last menstrual period of the

31 pregnant woman.

32

33

20-16-2004. Abortion limited to eighteen (18) weeks' gestation.

34

(a) Except in a medical emergency or if the pregnancy results from a

35 rape under§ 5-14-103 or incest under§ 5-26-202 1 a person shall not perform,

36 induce, or attempt to perform or induce an abortion unless the physician or

4

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1 referring physician has:

2

(1) Made a determination of the probable gestational age of the

3 unborn human being according to standard medical practices and techniques

4 used in the medical community; and

5

(2) Documented the probable gestational age in the medical

6 records of the pregnant woman and, if required, in a report with the

7 Department of Health as described in subsection (c) of this section.

8

(b) Except in a medical emergency or if the pregnancy results from a

9 rape under§ 5-14-103 or incest under§ 5-26-202 1 a person shall not

10 intentionally or knowingly perform, induce, or attempt to perform or induce

11 an abortion of an unborn human being if the probable gestational age of the

12 unborn human being is determined to be greater than eighteen (18) weeks'

13 gestation.

14

(c)(l) If a physician performs or induces an abortion on an unborn

15 human being whose gestational age is greater than eighteen (18) weeks, the

16 physician shall file a report with the department within fifteen (15) days of

17 the abortion.

18

(2) The report described in subdivision (c)(l) of this section

19 shall contain:

20

(A) The date that the abortion was performed;

21

(B) The specific method used for the abortion;

22

(C) The probable gestational age of the unborn human being

23 and the method used to calculate gestational age;

24

(D) A statement declaring that the abortion was

25 necessitated by a medical emergency;

26

(E) The specific medical indications supporting the

27 abortion and medical emergency;

28

(F) The probable health consequences of the abortion and

29 of the specific method used; and

30

(G) The signature of the physician attesting that the

31 information stated is true and correct to the best of his or her knowledge.

32

(3) A report made under subsection (c) of this section shall not

33 contain the name of the pregnant woman upon whom the abortion was performed

34 or any other information or identifiers that would make it possible to

35 identify, in any manner or under any circumstances, a woman who obtained or

36 sought to obtain an abortion.

5

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1

2

20-16-2005. Reporting forms.

3

(a) Within thirty (30) days of the effective date of this subchapter,

4 the Department of Health shall create forms required by this subchapter.

5

(b) The reporting requirements shall be enforceable ten (10) days

6 after either the effective date of this subchapter or the date that the forms

7 described in subsection (a) of this section become available, whichever

8 occurs later.

9

10

20-16-2006. Penalties - Additional enforcement.

11

(a)(l) A person who purposely or knowingly violates this subchapter is

12 guilty of a Class D felony.

13

(2) A woman upon whom an abortion is performed, induced, or

14 attempted in violation of this subchapter shall not be prosecuted for

15 conspiracy to commit a violation of this subchapter.

16

(b) A physician who purposely or knowingly violates this subchapter

17 commits an act of unprofessional conduct that shall result in the Arkansas

18 State Medical Board suspending or revoking his or her license.

19

(c) A physician who purposely or knowingly delivers to the Department

20 of Health any report required under this subchapter that he or she knows is

21 false is subject to a civil penalty or fine up to two thousand dollars

22 ($2,000) per violation imposed by the department.

23

Cd) A woman upon whom an abortion has been performed, induced, or

24 attempted in violation of this subchapter may bring an action against the

25 person who purposely, knowingly, or recklessly performed, induced, or

26 attempted the abortion in violation of this subchapter for actual and

27 punitive damages.

28

(e)(l) A cause of action for injunctive relief against a person who

29 has purposely, knowingly, or recklessly violated this subchapter may be

30 maintained by:

31

(A) A prosecuting attorney with appropriate jurisdiction;

32 or

33

(B) The Attorney General.

34

(2) The injunction shall prevent the abortion provider from

35 performing or inducing and from attempting to perform or induce further

36 abortions in violation of this subchapter.

6

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1

(f) If judgment is rendered in favor of the plaintiff in an action

2 described in this section, the court shall also render judgment for a

3 reasonable attorney's fee in favor of the plaintiff against the defendant.

4

(g) If judgment is rendered in favor of the defendant and the court

5 finds that the plaintiff's suit was frivolous and brought in bad faith, the

6 court shall render judgment for a reasonable attorney's fees in favor of the

7 defendant against the plaintiff.

8

(h) Damages or attorney's fee shall not be assessed against the woman

9 upon whom an abortion was performed or induced or attempted to be performed 10 or induced except under subsection (d) of this section.

11

12

20-16-2007. Construction.

13

This subchapter does not:

14

(1) Create or recognize a right to abortion;

15

(2) Create or recognize a right to a particular method of

16 abortion; or

17

(3) Make lawful an abortion that is currently unlawful under any

18 law of this state.

19

20

20-16-2008. Right of intervention.

21

(a) The General Assembly by joint resolution may appoint one (1) or

22 more of its members who sponsored or cosponsored this subchapter in his or

23 her official capacity to intervene as a matter of right in any case in which

24 the constitutionality of this law is challenged.

25

(b) The Governor may also intervene as a matter of right in any case

26 in which the constitutionality of this law is challenged.

27

28

/s/Lundstrum

29

30

31

APPROVED: 3/15/19

32

33

34

35

36

7

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EXHIBIT2

Case 4:19-cv-00449-KGB Document 1 Filed 06/26/19 Page 50 of 57

Stricken language would be deleted from and underlined language would be added to present law. Act 619 of the Regular Session

1 State of Arkansas

Bfii19 As EngrosseA

S3/14/19

2 92nd General Assembly

3 Regular Session, 2019

SENATE BILL 2

4

5 By: Senators T. Garner, B. Ballinger, Bledsoe, A. Clark, J. Cooper, B. Davis, L. Eads, J. English, Flippo,

6 K Hammer, Hester, Hill, Irvin, B. Johnson, M Johnson, Rapert, Rice, G. Stubblefield, J. Sturch, D.

7 Wallace

8 By: Representatives Barker, Beck, Bentley, Breaux, Brown, Capp, Christiansen, Cloud, C. Cooper,

9 Crawford, Della Rosa, Evans, C. Fite, M Gray, Hawks, Kelly, Lundstrum, Maddox, Penzo, Petty, Rye, B.

10 Smith, S. Smith, Speaks, Vaught

11

12

For An Act To Be Entitled

13

AN ACT TO CREATE THE DOWN SYNDROME DISCRIMINATION BY

14

ABORTION PROHIBITION ACT; TO PROHIBIT ABORTION

15

BECAUSE THE UNBORN CHILD HAS OR MAY HAVE DOWN

16

SYNDROME; AND FOR OTHER PURPOSES.

17

18

19

Subtitle

20

TO CREATE THE DOWN SYNDROME

21

DISCRIMINATION BY ABORTION PROHIBITION

22

ACT.

23

24

25 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:

26

27

SECTION 1. Arkansas Code Title 20, Chapter 16, is amended to add an

28 additional subchapter to read as follows:

29

Subchapter 20 - Down Syndrome Discrimination by Abortion Prohibition Act

30

31

20-16-2001. Title.

32

This subchapter shall be known and may be cited as the "Down Syndrome

33 Discrimination by Abortion Prohibition Act".

34

35

20-16-2002. Definitions.

36

As used in this subchapter:

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1

(l)(A) "Abortion" means the act of using or prescribing any

2 instrument, medicine, drug, or any other substance, device, or means with the

3 intent to terminate the clinically diagnosable pregnancy of a woman, with

4 knowledge that the termination by any of those means will with reasonable

5 likelihood cause the death of the unborn child.

6

(B) An act under subdivision (l)(A) of this section is not

7 an abortion if the act is performed with the intent to:

8

(i) Save the life or preserve the health of the

9 unborn child or the pregnant woman;

10

(ii) Remove a dead unborn child caused by

11 spontaneous abortion; or

12

(iii) Remove an ectopic pregnancy;

13

(2) "Down Syndrome" means a chromosome disorder associated with

14 either:

15

(A) An extra copy of the chromosome 21, in whole or in

16 part; or

17

(B) An effective trisomy for chromosome 21;

18

(3) "Physician" means a person licensed to practice medicine in

19 this state, including a medical doctor and a doctor of osteopathy; and

20

(4) "Unborn child" means the offspring of human beings from

21 conception until birth.

22

23

20-16-2003. Prohibition - Down Syndrome.

24

(a) A physician shall not intentionally perform or attempt to perform

25 an abortion with the knowledge that a pregnant woman is seeking an abortion

26 solely on the basis of:

27

(1) A test result indicating Down Syndrome in an unborn child;

28

(2) A prenatal diagnosis of Down Syndrome in an unborn child; or

29

(3) Any other reason to believe that an unborn child has Down

30 Syndrome.

31

(b)(l) Before performing an abortion, the physician performing the

32 abortion shall ask the pregnant woman if she is aware of any test results,

33 prenatal diagnosis, or any other evidence that the unborn child may have Down

34 Syndrome.

35

(2) If the pregnant woman knows of any test results, prenatal

36 diagnosis, or any other evidence that the unborn child may have Down

2

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1 Syndrome, the physician who is performing the abortion shall:

2

(A) Inform the pregnant woman of the prohibition of

3 abortion contained in subsection (a) of this section; and

4

(B) Request the medical records of the pregnant woman

5 relevant to determining whether she has previously aborted an unborn child or

6 children after she became aware of any test results, prenatal diagnosis, or

7 any other evidence that the unborn child may have had Down Syndrome.

8

(3) When the physician performing the abortion is required to

9 request the medical records of the pregnant women under subdivision (b)(2)(B)

10 of this section, the physician shall not perform an abortion until the

11 physician spends at least fourteen (14) days to obtain the medical records

12 described in subdivision (b)(2)(B) of this section.

13

(c) If this section is held invalid as applied to the period of

14 pregnancy prior to viability, then this section shall remain applicable to

15 the period of pregnancy subsequent to viability.

16

(d) This section does not apply to an abortion performed on a pregnant

17 woman if the pregnancy is the result of rape or incest.

18

19

20-16-2004. Criminal penalties.

20

A physician or other person who knowingly performs or attempts to

21 perform an abortion prohibited by this subchapter is guilty of a Class D

22 felony.

23

24

20-16-2005. Civil penalties and professional sanctions.

25

(a)(l) A physician who knowingly violates this subchapter is liable

26 for damages and shall have his or her medical license revoked as applicable.

27

(2) The physician may also be enjoined from future acts

28 prohibited by this subchapter.

29

(b)(l) A woman who receives an abortion in violation of this

30 subchapter without being informed of the prohibition of abortion for the

31 purposes of aborting an unborn child diagnosed with Down Syndrome, the parent

32 or legal guardian of the woman if the woman is a minor who is not

33 emancipated, or the legal guardian of the woman if the woman has been

34 adjudicated incompetent, may commence a civil action for any reckless

35 violation of this subchapter and may seek both actual and punitive damages.

36

(2) Damages may include without limitation:

3

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1

(A) Money damages for any psychological and physical

2 injuries occasioned by the violation of this subchapter; and

3

(B) Statutory damages equal to ten (10) times the cost of

4 the abortion performed in violation of this subchapter.

5

(c) A physician or other person who performs an abortion in violation

6 of this subchapter shall be considered to have engaged in unprofessional

7 conduct and his or her license to provide healthcare services in this state

8 shall be revoked by the Arkansas State Medical Board.

9

(d)(l) A cause of action for injunctive relief against any physician

10 or other person who has knowingly violated this subchapter may be maintained

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(A) A person who is the spouse, parent, guardian, or

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14 attempts to receive an abortion in violation of this subchapter; or

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(B) The Attorney General.

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(2) The injunction shall prevent the physician or other person

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20-16-2006. Exclusion of liability for a woman who undergoes

20 prohibited abortion.

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(a) A woman who receives or attempts to receive an abortion in

22 violation of this subchapter shall not be prosecuted under this subchapter

23 for conspiracy to violate this subchapter or otherwise be held criminally or

24 civilly liable for any violation of this subchapter.

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(b) In a criminal proceeding or action brought under this subchapter,

26 a woman who receives or attempts to receive an abortion in violation of this

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35 the sealing of the record and exclusion of individuals from the courtroom or

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As Engrossed: S2/28/19 S3/14/19

SB2

1 from public disclosure.

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20-16-2007. Right of intervention.

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The General Assembly by joint resolution may appoint one (1) or more of

5 its members who sponsored or cosponsored this subchapter in his or her

6 official capacity to intervene as a matter of right in any case in which the

7 constitutionality of this law is challenged.

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/s/T. Garner

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EXHIBIT 3

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Stricken language would be deleted from and underlined language would be added to present law. Act 700 of the Regular Session

1 State of Arkansas 2 92nd General Assembly

A Bill

3 Regular Session, 2019

SENATE BILL 448

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5 By: Senator G. Stubblefield

6 By: Representative Barker

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For An Act To Be Entitled

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AN ACT TO REQUIRE PHYSICIANS TO HAVE CERTAIN

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QUALIFICATIONS IN ORDER TO PERFORM ABORTIONS; TO

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REPEAL THE PRESUMPTION OF VIABILITY OF A FETUS AT THE

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TWENTY-FIFTH WEEK OF PREGNANCY; AND FOR OTHER

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PURPOSES.

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Subtitle

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TO REQUIRE PHYSICIANS TO HAVE CERTAIN

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QUALIFICATIONS TO PERFORM ABORTIONS; AND

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TO REPEAL THE PRESUMPTION OF VIABILITY OF

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A FETUS AT THE TWENTY-FIFTH WEEK OF

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PREGNANCY.

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24 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:

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SECTION 1. Arkansas Code Title 20, Chapter 16, Subchapter 6, is

27 amended to add an additional section to read as follows:

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20-16-605. Qualifications to perform an abortion.

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(a) A person shall not perform or induce an abortion unless that

30 person is a physician licensed to practice medicine in the state of Arkansas

31 and is board-certified or board-eligible in obstetrics and gynecology.

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(b) A violation of this section is a Class D felony and may result in

33 the revocation, suspension, or nonrenewal of the professional license of an

34 abortion facility or physician.

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SECTION 2. Arkansas Code§ 20-16-702(3), concerning the definition of

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EXHIBIT3

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SB448

1 "viable fetus" regarding abortions, is amended to read as follows:

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(3) "Viable fet1:1:s" meaas a fet1:1:s whieh eaa live 01:1:tside the wem.b

3 "Viability" means the state of fetal development when, in the judgment of the

4 physician based on the particular facts of the case before him or her and in

5 light of the most advanced medical technology and information available to

6 him or her, there is a reasonable likelihood of sustained survival of the

7 unborn child outside the body of the mother, with or without artificial life

8 support.

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SECTION 3. Arkansas Code§ 20-16-703 is repealed.

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20 16 703, P£es1:1:m.ptiea ef viability,

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Fe£ the p1:1:£pese ef this s1:1:behapte£, a fet1:1:s shall be p£es1:1:m.ed aet ta be

13 viable p£ie£ ta the ead ef the tweaty fifth week ef the p£egaaaey,

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APPROVED: 4/4/19

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 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 1 of 159

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES, et al.,

PLAINTIFFS

v.

Case No. 4:19-cv-00449-KGB

LESLIE RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas, et al.,

DEFENDANTS

TEMPORARY RESTRAINING ORDER Before the Court is a motion for a temporary restraining order and/or preliminary injunction

filed by separate plaintiffs Little Rock Family Planning Services (“LRFP”) and Thomas Tvedten, M.D., on behalf of himself and his patients.1 Plaintiffs bring this action seeking declaratory and

injunctive relief on behalf of themselves and their patients under the United States Constitution

and 42 U.S.C. § 1983 to challenge three Acts passed by the Arkansas General Assembly: (1)

Arkansas Act 493 of 2019, which bans abortion “where the pregnancy is determined to be greater

than 18 weeks,” as measured from the first day of a woman’s last menstrual period (“LMP”) in

nearly all cases (“Act 493”); Arkansas Act 619, which prohibits a physician from intentionally

performing or attempting to perform an abortion “with the knowledge” that a pregnant woman is

seeking an abortion “solely on the basis” of: a test “indicating” Down syndrome; a prenatal

diagnosis of Down syndrome; or “[a]ny other reason to believe” the “unborn child” has Down

syndrome (“Act 619”); and (3) Arkansas Act 700 of 2019, which provides that “[a] person shall

not perform or induce an abortion unless that person is a physician licensed to practice medicine

in the state of Arkansas and is board-certified or board-eligible in obstetrics and gynecology.”

1 Not all named plaintiffs in this lawsuit join the motion for temporary restraining order and/or preliminary injunction (Dkt. Nos. 2, 32).

Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 2 of 159

(“Act 700” or the “OBGYN requirement”). This Court has jurisdiction under 28 U.S.C. §§ 1331

and 1343(a)(3).

For the reasons set forth below, the Court grants plaintiffs’ motion for a temporary

restraining order and has under advisement the request for preliminary injunction (Dkt. No. 2).

The Court also denies the pending motions to strike filed by both parties (Dkt. Nos. 75, 76).

I.

Procedural History

Plaintiffs filed their complaint and motion for a temporary restraining order and/or

preliminary injunction on June 26, 2019 (Dkt. Nos. 1, 2). The challenged Acts take effect on July

24, 2019. On July 1, 2019, defendants filed a motion to extend time for defendants to respond to

the complaint and motion for a temporary restraining order and/or preliminary injunction (Dkt.

No. 19). The Court set July 17, 2019, as the deadline for defendants to file their written response

and July 19, 2019, as plaintiffs’ deadline to file a written reply (Dkt. No. 31). The Court also set

the hearing on plaintiffs’ motion for temporary restraining order and/or preliminary injunction for

July 22, 2019 (Id.). The Court set the deadline for filing exhibits and witnesses lists in advance of

the hearing for July 18, 2019, and the deadline for the filing of rebuttal exhibits and witnesses in

advance of the hearing for July 19, 2019 (Id.).

In response to a motion for expedited prehearing discovery filed by defendants, the Court

instructed the parties to meet and confer regarding any outstanding discovery requests and to file

a joint status report on July 12, 2019 (Dkt. No. 34). On July 10, 2019, plaintiffs filed a

supplemental declaration, and in response defendants sought to strike the supplemental declaration

or to extend the time to respond to the motion for temporary restraining order and/or preliminary

injunction (Dkt. Nos. 37, 38). Plaintiffs opposed the motion to strike the supplement declaration

and the request to extend the time to respond to the motion (Dkt. No. 39). The Court denied the

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motion to strike or request for additional time to respond to the motion, observing in part that any alleged prejudice would be limited and mitigated if the Court “treats plaintiffs’ motion as one for temporary restraining order, then such an order—whether granted or denied—would expire 14 days from the date it is entered, and the Court may permit all parties to address further the merits of this expedited matter prior to a hearing on plaintiffs’ request for a preliminary injunction.” (Dkt. No. 41, at 2).
The parties timely filed their joint status report on July 12, 2019, and reported that they required the Court to resolve three remaining discovery disputes (Dkt. No. 40). In that same status report, the parties represented that certain information would be turned over contingent upon the entry of a protective order that was still being negotiated by the parties. The Court then entered an order denying without prejudice defendants’ motion for expedited prehearing discovery, resolving only the three remaining discovery disputes the parties had been unable to resolve at this stage of the proceeding (Dkt. No. 42).
On July 18, 2019, defendants filed a renewed motion for expedited prehearing discovery (Dkt. No. 56). In that motion, defendants argued that, because plaintiffs insisted upon an “unreasonably broad definition of ‘confidential information,’” the parties could not agree on the terms of a protective order, and therefore defendants had not received agreed-upon discovery (Id., at 1). In response, plaintiffs pointed out that they sent a proposed protective order to defendants on July 10, 2019, but defendants did not respond until July 15, 2019, with a counterproposal (Dkt. No. 60, at 4). Plaintiffs responded on July 16, 2019, rejecting the counterproposal (Id.). Defendants did not file a renewed motion until July 18, 2019, after filing a written response to the motion for temporary restraining order and/or preliminary injunction. On July 19, 2019, the Court
3

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denied defendants’ renewed motion for expedited prehearing discovery and entered a protective order (Dkt. Nos. 69, 70).
On Saturday, July 20, 2019, a day after the deadline for disclosing rebuttal exhibits and witnesses had elapsed, defendants filed a new declaration that totaled 272 pages, with attachments; plaintiffs also filed a supplemental rebuttal witness list (Dkt. Nos. 73, 74). Then, on Sunday, July 21, 2019, plaintiffs filed a motion to strike certain declarations introduced by defendants, including the declaration filed on Saturday, July 20, 2019 (Dkt. No. 75). Also on Sunday, July 21, 2019, defendants filed a motion to strike certain declarations introduced by plaintiffs and to strike plaintiffs’ reply brief (Dkt. No. 76).
On July 22, 2019, the Court held a hearing on plaintiffs’ motion for temporary restraining order and/or preliminary injunction at which the Court received testimony from certain witnesses and additional documents were discussed and introduced. At the conclusion of the hearing, plaintiffs objected to defendants’ request to introduce as a hearing exhibit in this matter the entire record from Planned Parenthood Arkansas and Eastern Oklahoma v. Jegley, Case No. 4:15-cv00784-KGB, on the basis that defendants failed to refer to, or move to introduce, any specific portions of that record in response to plaintiffs’ motion for temporary restraining order and/or preliminary injunction here. Plaintiffs generally are correct. Defendants have not pointed to any specific evidence in the Jegley record that they wish for the Court to consider. The Court is not obligated to hunt through the record to find evidence that supports defendants’ positions. U.S. v. Stuckey, 255 F.3d 528, 531 (8th Cir. 2001) (citing U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). Defendants are directed to cite the Court to specific portions of the Jegley record, if they intend for the Court to consider those portions of the record in ruling on the current motion.
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In ruling on plaintiffs’ motion for temporary restraining order and/or preliminary injunction, the Court has considered the record before it as of the conclusion of the July 22, 2019, hearing. Given the voluminous number of last-minute filings, including filings the Court received on July 23, 2019, regarding these issues, the Court concludes that defendants, despite being represented at the hearing through their counsel, have not had a sufficient opportunity to challenge the basis for plaintiffs’ requested relief. Therefore, the Court only considers the motion for temporary restraining order at this time. McLeodUSA Telecomms. Servs. v. Qwest Corp., 361 F. Supp. 2d 912, 918 n.1 (N.D. Iowa 2005).
Further, given the limited nature of a temporary restraining order, the Court declines to strike the declarations filed by any party prior to the July 22, 2019, hearing and instead will give them the weight to which they are entitled at this stage of the proceedings. See Wounded Knee Legal Def./Offense Comm. v. Fed. Bureau of Investigation, 507 F.2d 1281, 1286-87 (8th Cir. 1974). For this reason, the Court denies the pending motions to strike (Dkt. Nos. 75, 76).
II. Findings Of Fact The Court makes the following findings of fact. To the extent the findings of fact in this Order contradict the findings of fact made in the Court’s prior Orders, the findings of fact in this Order control. Further, the Court will address these and additional factual matters in the context of its discussion of the legal issues; in that context, the Court also makes findings of fact. In making the following findings of fact and conclusions of law, the Court has considered the record as a whole. The Court has observed the demeanor of witnesses and has carefully weighed their testimony and credibility in determining the facts of this case and drawing conclusions from those facts. All findings of fact contained herein that are more appropriately considered conclusions of law are to be so deemed. Likewise, any conclusions of law more appropriately considered a
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finding of fact shall be so classified. The Court has considered and weighed all the evidence presented in the record at this stage; the Court has resolved any disputes consistent with the statements in this Order.
1. Charlie Browne, M.D., a board-certified obstetrician-gynecologist (“OBGYN”) offers an affidavit in support of plaintiffs’ motion (Dkt. No. 2, at 24-28; Decl. of Charlie Browne, M.D., ¶ 1). Dr. Browne is a Clinical Assistant Professor at the University of Washington Medical Center, Department of Obstetrics and Gynecology in Seattle, Washington, and Clinical Faculty at Pacific Northwest University College of Osteopathic Medicine in Yakima, Washington (Id.). He is also the Medical Director of All Women’s Care in Seattle Washington, the Medical Director of All Women’s Health in Tacoma, Washington, and the Director of Second-Trimester Services of Planned Parenthood of Greater Washington & Northern Idaho (Id.). In these positions, Dr. Browne provides abortion care and other gynecological services (Id.).
2. Dr. Browne avers that, based upon his experience and training, a medical provider does not need to be a board-certified or board-eligible OBGYN to have the education, training, and skills necessary to provide safely and competently abortion care (Decl. of Charlie Browne, M.D., ¶ 6). In his experience, there is no difference in the abilities, qualifications, or skills of nonOGBYN practitioners and OBGYNs who have received the necessary training to provide abortion care (Id.).
3. Dr. Browne further avers that being a board-eligible or board-certified OBGYN does not make an abortion provider any more equipped to handle the “rare complications that may arise from an abortion.” (Id., ¶ 7). Dr. Browne explains that “in the rare event of a serious complication, the patient would need to be transferred to a hospital for emergency care, regardless of whether the physician providing abortion care is a board-certified OGBYN (Id.). In his
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experience, serious complications arising from either medication or surgical abortions are rare (Decl. of Charlie Browne, M.D., ¶ 7).
4. From August 2010 to December 2010, Dr. Browne provided abortion care for LRFP approximately once every four to six weeks for two to three days at a time (Id., ¶ 8). Between 2011 and July 2012, he also provided abortion care at LRFP approximately two to three weeks per year (Id.). After 2012, Dr. Browne had to stop providing abortion care at LRFP since it takes him approximately six to seven hours to travel to LRFP from his home and because the time away from his home was disruptive professionally (Id., ¶¶ 9-10).
5. Dr. Browne also avers that providing abortion care at LRFP was difficult and stressful due to harassment he experienced while working at the clinic (Decl. of Charlie Browne, M.D., ¶ 11). Every time Dr. Browne travelled to LRFP, he encountered protestors attempting to block the entrance to LRFP’s parking lot (Id.). He also states that the harassment and stigma he experienced in Arkansas was “far more prevalent and aggressive than any [he had] experienced as an abortion provider elsewhere.” (Id., ¶ 12). For these reasons, Dr. Browne has not returned to LRFP for the past seven years (Id., ¶ 13).
6. Dr. Browne states that LRFP staff reached out to him in March 2019 to see if he would be willing to provide abortion care at LRFP when the OBGYN requirement is set to take effect (Decl. of Charlie Browne, M.D., ¶ 14). Dr. Browne has agreed to do so but only for two to three days in July 2019 (Id.). He cannot commit to providing care after that time given his professional and personal obligations in Seattle, Washington (Id.).
7. Janet Cathey, M.D., a board-certified OBGYN licensed to practice medicine in Arkansas and Oklahoma, has presented her declaration in support of plaintiffs’ motion (Dkt. No. 2, at 36-41, Decl. of Janet Cathey, M.D.)). Dr. Cathey avers that she provides medical services,
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including medication abortion, at Planned Parenthood of Arkansas and Eastern Oklahoma’s (“PPAEO”) health center in Little Rock, Arkansas (Id., ¶ 1).
8. In early 2018, Dr. Cathey was asked by PPAEO to provide reproductive health care services at PPAEO’s health center in Little Rock (“PPAEO Little Rock”), and in May 2018, she began working at the health center in Little Rock (Id., ¶ 3).
9. At LRFP’s Little Rock health center, Dr. Cathey provides family planning services, transgender care, and medication abortions (Id., ¶ 4). She also has administrative responsibilities, including overseeing clinical staff, teaching medical students, and acting as director of Planned Parenthood Great Plains’ transgender care program (Decl. of Janet Cathey, M.D., ¶ 4). Since she started in this position through April 30, 2019, she has provided 229 medication abortions (Id., ¶ 5).
10. Dr. Cathey is one of only two physicians providing medication abortion at PPAEO’s Little Rock health center (Id., ¶ 6). The other physician, Dudley Rodgers, M.D., is a board-certified OBGYN who provides only medication abortion approximately one day per week (Id.). Dr. Rodgers is semi-retired and does not provide medical care anywhere else, due in part to health issues that prevent him from providing patient care for long hours or multiple days a week (Id.).
11. Dr. Cathey currently provides medical care at PPAEO’s Little Rock health center three days per week for approximately eight to ten hours a day (Decl. of Janet Cathey, M.D., ¶ 7). She also works as a medical consultant for Social Security disability reviews and completes PPAEO administrative responsibilities two other days of the week (Id.). Dr. Cathey’s administrative responsibilities include providing non-clinical services to her transgender patients, mentoring medical students regarding abortion care, transgender care, and other medical care,
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including gynecological procedures (Id.). Dr. Cathey also avers that she expects her non-clinical responsibilities to increase (Id.).
12. Dr. Cathey avers that, during the three days that she provides patient care, her schedule is at capacity (Decl. of Janet Cathey, M.D., ¶ 8). Due to patient demand, Dr. Cathey is planning to add another half day a week to provide patient care, including care to patients seeking medication abortions, transgender care, and family planning (Id.). She states that providing care three and a half days per week “is the absolute maximum amount of time” she can devote to patient care (Id.).
13. Dr. Cathey also notes that she cannot take on additional hours to provide medical care because of physical limitations resulting from a spinal cord injury she sustained in a 2009 car accident (Id., ¶ 9). Because of her injuries, she originally stopped providing patient care, and though she now practices medicine, she continues to have physical restrictions (Decl. of Janet Cathey, M.D., ¶ 9).
14. Dr. Cathey also avers that she sees a significant number of transgender and family planning patients and that she is the only physician at PPAEO’s Little Rock health center who provides care for these patients (Id., ¶ 10). It is Dr. Cathey’s understanding that the only other health center in Arkansas who maintains a dedicated transgender care program is the University of Arkansas for Medical Sciences (“UAMS”) clinic, which provides transgender care “only one half day per week.” (Id.).
15. In sum, due to her other personal and professional responsibilities, Dr. Cathey cannot see any more medication abortion patients other than those she is able to see in three and a half days per week (Id., ¶ 11).
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16. Dr. Cathey also avers that, based upon her experience, she does not believe that requiring all abortion providers to be board-certified or board-eligible OBGYNs provides “any benefit whatsoever to patients.” (Decl. of Janet Cathey, M.D., ¶ 12). She notes that clinicians from a range of specialties, including family medicine, can become trained to provide abortion care (Id.). She maintains that there is nothing about being a board-certified or board-eligible OBGYN that makes a physician better, safer, or more effective at providing abortion care (Id.).
17. Dr. Cathey states that many family medicine physicians and other clinicians undergo training to provide safely abortion care (Id., ¶ 13). She further states that family medicine medical students are “just as skilled and qualified to provide abortion care as the OBGYN students.” (Decl. of Janet Cathey, M.D., ¶ 14).
18. Dr. Cathey states that “restricting the number of clinicians who can provide abortion in the state to only board-certified or board-eligible OBGYNs will actually harm patients, as it can force patients to unnecessarily delay their access to care or prevent them from obtaining an abortion altogether.” (Id., ¶ 15 (emphasis in original)). She notes that, between the years of 2016 and 2018, 48% of the medication abortion patients seen at PPAEO’s Little Rock health center had incomes at or below 110% of the federal poverty level (Id.).
19. Dr. Cathey notes that there are already very few abortion providers in Arkansas, which she attributes to “the intense stigma and harassment that abortion providers face here.” (Id., ¶ 16). When her children were younger and in school, Dr. Cathey did not want to provide abortions because she feared the harassment that her children would likely face (Id.).
20. Lori Freedman, Ph.D., an associate professor in the Department of Obstetrics, Gynecology and Reproductive Sciences at the University of California, San Francisco, offers her declaration in support of plaintiffs’ motion (Dkt. No. 2, at 47-57, Decl. of Lori Freedman, Ph.D.).
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Dr. Freedman’s work focuses on qualitative health research, clinician training and practice, medical ethics in reproductive health, and health care practices of religiously affiliated institutions (Id., ¶ 3). She has studied barriers to the provision of abortion care (Id.). In particular, she has researched “why doctors with abortion training do not integrate abortion care into their practice post-residency.” (Id.).
21. In her opinion, in addition to violence and harassment, the intense stigmatization of abortion providers makes it difficult, if not impossible in certain areas, to find and retain abortion providers (Decl. of Lori Freedman, Ph.D., ¶ 4).
22. Dr. Freedman explains that “no-abortion” policies in private practice groups, hospital maintenance organization (“HMOs”), and hospitals often prevent physicians from providing abortions (Id., ¶ 11). She also states that physicians are often asked to sign contracts stating that they will not provide abortions at the offices of their practice and that they will not provide abortions offsite (Id.).
23. Of five doctors who had been asked to be medical directors at an abortion clinic, four of them told Dr. Freedman that they had declined because their own group practices would not permit it (Id.). Additionally, Dr. Freedman states that, in her research, she has encountered situations where senior physicians threatened to ostracize younger physicians who performed abortions (Decl. of Lori Freedman, Ph.D., ¶ 12). She also states that physicians interviewing for post-residency positions have told her that they fear broaching the subject of abortion with potential employers (Id.).
24. Dr. Freedman also avers that physicians who provide abortions frequently lose referrals from medical providers who oppose abortion, thereby placing their practices in jeopardy
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(Id., ¶ 13). Additionally, Dr. Freedman notes that doctors may decline to provide abortions because they worry about losing existing patients who are opposed to abortion (Id.).
25. Furthermore, Dr. Freedman points out that physicians who wish to perform abortions often must choose whether to maintain a general obstetrics and gynecology practice or provide abortions, but not both (Decl. of Lori Freedman, Ph.D., ¶ 14).
26. Dr. Freedman also notes that abortion providers are routinely ostracized in their communities through acts such as being denied membership to social organizations and the bullying of their children at school (Id., ¶ 15). She also states that physicians cite the effects of picketing by protestors as a reason not to provide abortions (Id.).
27. Dr. Freedman states that violence against abortion providers is an ongoing concern and that, as recently as 2015, there were three murders and nine attempted murders of abortion clinic staff in the United States (Id., ¶ 18). She states that the threat of violence “significantly deters many physicians from providing abortion and increases physicians’ reluctance to associate themselves with abortion clinics and providers in any way.” (Decl. of Lori Freedman, Ph.D., ¶ 19).
28. Dr. Freedman states that Arkansas “fits the profile of a state hostile to the provision of abortion care where abortion providers are likely to experience the highest levels of stigma and harassment.” (Id., ¶ 20).
29. Dr. Freedman also states that further evidence she has reviewed indicates that abortion providers in Arkansas experience extreme levels of harassment and effects of stigma, including being forced by their partners to choose between private practice and continuing to provide abortion care, being subjected to picketing and harassment, and being unable to attract qualified OBGYNs or other providers to work at their clinics (Id., ¶ 21).
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30. Dr. Freedman testified that abortion providers are less likely to be able to resist the effects of stigma and harassment in Arkansas cities that lack a professional community that normalizes abortion care (Id., ¶ 23).
31. Stephanie Ho, M.D., a board-certified family medicine physician, offers her declaration in support of plaintiffs’ motion (Dkt. No. 2, at 89-103; Decl. of Stephanie A. Ho, M.D.)).
32. Dr. Ho states that she cannot become a board-certified or board-eligible OBGYN because she did not complete a residency in obstetrics and gynecology and that she cannot do so now due to the time and resources necessary to conduct a residency at this stage of her career (Id., ¶ 7).
33. Dr. Ho further states that surgical abortions cannot be performed at PPAEO’s Fayetteville health center (“PPAEO Fayetteville”) because it does not meet the state’s requirement governing facilities where surgical abortions are performed (Id., ¶ 10).
34. Dr. Ho explains that Arkansas law requires women who seek abortion care to come to the health center to receive certain state-mandated information in person from a physician and then to wait at least 48 hours before having an abortion (Id., ¶ 14).
35. Dr. Ho. further explains that a patient seeking medication abortion services must therefore come to the health center for one appointment, and at least 48 hours later, she must return to take a mifepristone pill and be given four misoprostol pills to administer at home (Decl. of Stephanie A. Ho, M.D., ¶ 15). The patient must also make a follow-up appointment for approximately two weeks later (Id.).
36. Dr. Ho further states that medication abortion is extremely safe and that 97.4% of medication abortion cases are successful under the regimen just described (Id., ¶ 16).
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37. Dr. Ho notes that a woman who takes mifepristone at a PPAEO health center has access to a 24-hour hotline number that she can call with any questions or concerns and that patients are provided with the name and number of a contracted OBGYN physician who has agreed to serve as the collaborative medical doctor to PPAEO abortion providers in Fayetteville and Little Rock (Id., ¶ 17).
38. Dr. Ho states that most patients who call the hotline “simply need reassurance that their symptoms (like bleeding and cramping) are normal and will subside.” (Decl. of Stephanie A. Ho, M.D., ¶ 18). In the “exceedingly rare case” that the nurse or physician on the hotline believes that immediate medical treatment is necessary, the patient is referred to the nearest emergency room, one of PPAEO’s physicians is notified, and health center staff follow up with the patient within 24 hours (Id.).
39. Dr. Ho notes that, during the course of her medical career, she has performed procedures that are much more complicated and have higher complication rates than medication abortion, including: induced and managed labor, delivery of babies, and tubal ligations (Id., ¶ 20).
40. Dr. Ho further states that PPAEO drafted a job opening for a board-certified or board-eligible OBGYN to provide abortion care at the Fayetteville health center (Id., ¶ 23). This posting was listed on social media, and a letter was sent to all identified OBGYNs in Arkansas (Decl. of Stephanie A. Ho, M.D., ¶ 24).
41. PPAEO also took out an ad in the Journal of the Arkansas Medical Society seeking a board-certified or board-eligible OBGYN (Id., ¶ 25). PPAEO staff personally contacted physicians to see if they would provide abortion services (Id.).
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42. In May 2019, Kathleen Paulson, M.D., a board-certified OBGYN, contacted PPAEO to state that she would be willing to provide medication abortion at the Fayetteville health center on a volunteer basis if the OBGYN requirement were to go into effect (Id., ¶ 26).
43. To date, no other OBGYNS have responded to PPAEO’s efforts to locate a boardcertified or board-eligible OBGYN willing to provide medication abortion at PPAEO’s health centers (Decl. of Stephanie A. Ho, M.D., ¶ 29).
44. Dr. Ho states that she has experienced stigma as an abortion provider in Arkansas, including being informed by a potential employer that the potential employer was not interested in being associated with an abortion provider (Id.).
45. Dr. Ho states that, from 2016 to 2018, 61% of the medication abortion patients in Fayetteville had incomes at or below 110% of the federal poverty level (Id., ¶ 35).
46. Frederick W. Hopkins, M.D., M.P.H., a board-certified OBGYN, offers his declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 119-136; Decl. of Frederick W. Hopkins, M.D., M.P.H.).
47. Dr. Hopkins points out that, during his OBGYN residency, he did not receive any formal training in abortion care and that “[a]bortion care is not a requirement to complete an OBGYN residency, and most OBGYN residencies did not provide that training.” (Id., ¶ 13).
48. Dr. Hopkins states that “[l]egal abortion is one of the safest medical procedures in the United States” and that “approximately 1 in 4 women in the U.S. obtains an abortion by the age of 45.” (Id., ¶ 21). Dr. Hopkins further explains that a “majority of women having abortions in the United States already have one child.” (Id.).
49. Dr. Hopkins further states that there are two types of abortions in the United States: medication abortion and surgical abortion (Id., ¶ 23).
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50. Dr. Hopkins also states that, regardless of the method of abortion, “serious complications are extremely rare, occurring in less than 0.5% of all cases.” (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 26). The types of complications that may occur following an abortion include infection, prolonged heavy bleeding, uterine perforation, cervical laceration, and retained tissue (Id., ¶ 27). Dr. Hopkins states that in the “vast majority of cases” such complications can be handled in an outpatient office setting (Id.).
51. Dr. Hopkins also explains that a woman’s risk of pregnancy-related death is estimated to be 8.8 per 100,000 live births, whereas less than one woman dies for every 100,000 abortion procedures (Id., ¶ 28).
52. Additionally, according to Dr. Hopkins, abortion-related mortality is significantly lower than mortality for other common outpatient procedures, including colonoscopies, plastic surgery, dental procedures, or adult tonsillectomies (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 28).
53. Dr. Hopkins asserts that “no fetus is viable at 18 weeks LMP.” (Id., ¶ 29). Instead, he notes that “[i]t is commonly accepted in the field of OBGYN that a normally developing fetus will not attain viability until at least 24 weeks LMP,” and he also explains that not all fetuses attain viability even at that stage (Id.).
54. Dr. Hopkins states that patients can delay abortions for several reasons, including because they do not realize that they are pregnant until later in their pregnancy, difficulty in obtaining funds for the abortion and related expenses, and Arkansas’ mandated waiting period (Id., ¶¶ 30-31).
55. Additionally, Dr. Hopkins explains that some patients seek abortions at or after 18 weeks LMP because they discover a fetal anomaly, some of which cannot be tested for until 18 to
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20 weeks LMP (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 32). In other circumstances, the results from prenatal tests performed at 18 to 20 weeks LMP are inconclusive and require referrals to other medical professionals and additional testing, all of which can lead to further delay (Id.). Finally, some women seek abortions at or after 18 weeks LMP because they have a medical condition that does not become apparent until that time or an existing medical condition that worsens during the course of pregnancy (Id., ¶ 33).
56. Dr. Hopkins further states that, if Act 493 takes effect, he will be forced to stop providing safe and effective pre-viability abortion care that his patients want and need (Id., ¶ 34). He further states that, as a result of Act 493 taking effect, some of his patients will be forced to delay their abortion care, at risk to their health, while they attempt to obtain an abortion out of state (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 34). He also states that others will be prevented from obtaining an abortion altogether and be forced to carry their pregnancies to term against their will, at the expense of their health (Id.).
57. Dr. Hopkins states that, if the OBGYN requirement goes into effect, Dr. Tvedten, Dr. Horton, and Dr. Ho will be unable to provide abortions (Id., ¶ 35).
58. In Dr. Hopkins’ experience training non-OBGYNs to provide abortions, “there is no difference in the abilities or skills between non-OBGYN practitioners and OBGYNs who have received the necessary training.” (Id., ¶ 36). Dr. Hopkins points out that the OBGYN requirement would allow a physician with no training in abortion to perform abortions while preventing other qualified clinicians with actual training and competency in abortion from providing such care (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 36).
59. Dr. Hopkins further states that it is not necessary to be an OBGYN, much less a board-certified or board-eligible OBGYN, to be a competent abortion provider (Id., ¶ 37).
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According to Dr. Hopkins, the American College of Obstetricians and Gynecologists (“ACOG”), a “highly regarded, reliable, and extensively cited authority in my field,” recommends expanding the trained pool of non-OBGYN abortion providers, including family physicians and advanced practice physicians (Id.). Dr. Hopkins also notes that board-eligibility and board-certification are not required to practice medicine, and he also notes that “[a]t no point in the OBGYN boardeligibility or board-certification process must a physician demonstrate competence in the performance of abortions.” (Id., ¶ 35 n.13). Dr. Hopkins also states that studies recognize that non-OBGYNs are just as qualified and skilled in abortion care as OBGYNs (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 37).
60. Dr. Hopkins states that “[a]ny clinician with adequate training in abortion care can safely and effectively handle” the most common abortion complications, even though such complications are rare (Id., ¶ 38).
61. In the event a significant complication does arise from an abortion, Dr. Hopkins states that an abortion provider would transfer or direct the patient to the nearest hospital to receive the required care (Id., ¶ 39). If the complication is retained tissue following a medication abortion, Dr. Hopkins states that ACOG Practice Bulletin 143 states that the abortion provider should be trained in surgical abortion “or should be able to refer to a clinician trained in surgical abortion.” (Id.).
62. Dr. Hopkins travels to Arkansas to provide care at LRFP only approximately once every two months (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 42). When he comes to Arkansas, he does so for “three to four days every other month.” (Id., ¶ 44). Since Dr. Hopkins lives in California, each visit to Arkansas requires a day to arrive and to return, so his total duration away from California is five to six days for each visit (Id.).
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63. Due to Arkansas’ 48-hour mandated delay for abortion patients, LRFP treats patients only on Wednesdays, Fridays, and Saturdays, so Dr. Hopkins does not see patients for the entire time he in in Arkansas (Id., ¶ 45). Typically, patients will come in one day for the mandated counseling and two days later for the abortion (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 45).
64. If the 48-hour waiting period is extended to 72-hours, then Dr. Hopkins will attempt to remain in Arkansas for a full five days, versus his regular three to four days (Id., ¶ 47). But, due to his professional obligations in California, he cannot visit Arkansas more frequently than he currently does (Id.). This is because he holds several clinical and teaching positions in California (Id., ¶ 48). He is unable to give up his current positions and relationships with patients who rely upon him in California (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 49).
65. Additionally, Dr. Hopkins will not relocate to Arkansas because his ability to earn a living in Arkansas would be “extremely uncertain.” (Id., ¶ 50). He predicts that, if he moved to Arkansas, then the Arkansas legislature would pass a new law designed to prevent him from providing abortion care (Id.).
66. Dr. Hopkins also notes that there are usually protestors outside of LRFP (Id., ¶ 51). He is personally familiar with other abortion providers who have been murdered and attacked (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 51). These dangers are “constantly” on Dr. Hopkins’ mind when he travels to Arkansas, and this is another reason he cannot move to Arkansas to provide full-time care at LRFP (Id.).
67. Thomas Russell Horton, Jr., M.D., a staff physician at LRFP, offers his declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 145-155; Decl. of Thomas Russell Horton, Jr., M.D.).
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68. Dr. Horton completed his residency in obstetrics and gynecology, but he is not board-eligible or board-certified in obstetrics and gynecology (Id., ¶ 5). Dr. Horton will not be able to provide abortion care if the OBGYN requirement goes into effect (Id.).
69. Dr. Horton began working as a staff physician with LRFP in February 2010 (Id., ¶ 11). Previously, Dr. Horton had provided abortion care in Tennessee up to approximately 15 weeks LMP, so he received training from Dr. Tvedten for performing surgical abortions up to 21.6 weeks LMP (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 11).
70. As a staff physician for LRFP, Dr. Horton works “one day per week and primarily perform[s] one-day surgical procedures, up to 18 weeks LMP.” (Id., ¶ 12). He also performs multiday procedures up to 21.6 weeks LMP when he works two or more days per week (Id.).
71. Dr. Horton has performed thousands of abortions at LRFP “with a very low rate of complications.” (Id., ¶ 13).
72. Dr. Horton states that becoming a board-certified OBGYN would not make him any more qualified to perform or to handle appropriately the rare complications that may arise following an abortion (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 18). According to Dr. Horton, “training and competence in abortion procedures is not a requirement for either board certification or board eligibility in OBGYN.” (Id.). He also notes that abortion care is not a requirement for completing an OBGYN residency and that many OBGYNs never receive any training for providing abortion care (Id.).
73. Dr. Horton further explains that, to become a board-eligible or board-certified OBGYN, a physician must first complete his or her residency in obstetrics and gynecology and then pass a written examination known as the American Board of Obstetrics and Gynecology (“ABOG”) Qualifying Examination (Id., ¶ 19).
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74. After a physician becomes board-eligible, the physician has eight years from the date of completing his or her residency to become board-certified (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 20). If the physician does not become board-certified within those eight years, the physician loses his or her board-eligible status and must complete, at a minimum, an additional six months of supervised practice and assessment in a hospital associated with an accredited OBGYN residency program before he or she may become eligible for certification again (Id.).
75. Further, to become an ABOG board-certified OBGYN, a physician must: (1) be board-eligible; (2) satisfy certain prerequisites to becoming a candidate for certification, which includes preparing a comprehensive case list and obtaining unrestricted hospital privileges; and (3) sit for and pass another oral examination (Id., ¶ 21).
76. Dr. Horton completed his residency in OBGYN and passed the written examination for ABOG in June 2002 and June 2013, but he never obtained the necessary case list that is required to be a candidate for board certification (Id., ¶ 22). Dr. Horton states that being a board-certified OBGYN is not relevant or necessary to the provision of abortion care, and he also notes that completing the prerequisites for board-certification would have required him to take significant time away from providing care to his patients (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 22).
77. Since Dr. Horton did not become board-certified within eight years of completing his residency, he is no longer board-eligible; to retain his board eligibility, he would have to complete a minimum of six months of supervised training (Id., ¶ 23). Dr. Horton states that this is not a feasible option for him because he cannot leave his practice for the required six months to complete the training (Id.). He notes that the required training would provide no medical benefits to his patients (Id.).
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78. Dr. Horton states that, if the OBGYN requirement goes into effect, he will no longer be able to provide abortion care in Arkansas since he is not and cannot become either a boardeligible or board-certified OBGYN (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 24).
79. Dr. Horton also states that he “regularly” experiences harassment due to his work as an abortion provider (Id., ¶ 26). He notes that every day he has worked at LRFP “there have been protestors and picketers attempting to block the entrance to the parking lot.” (Id.). He further notes that the “protestors often shout at me upon arrival and say things such as: ‘Don’t kill those babies, Dr. Horton.’” (Id.).
80. On June 10, 2009, Dr. Horton was the subject of a bomb threat at the Memphis Center for Reproductive Health (“MCRH”) in Memphis, Tennessee (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 27). An individual called MCRH and informed the clinic staff that there was a bomb in Dr. Horton’s car (Id.). The clinic staff were forced to evacuate the clinic (Id.).
81. Dr. Horton’s ability to maintain or find a job in private practice have been directly affected by his work as an abortion provider (Id., ¶ 28). Around 2004 and 2005 in Memphis, Dr. Horton applied to several jobs as a generalist in private practice, but he did not receive any job offers and was not able to find other work due to his work as an abortion provider (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 28). In 2005, Dr. Horton was in the final round of interviews for a position in private practice in Richmond, Virginia, when he asked the prospective employer if he would be allowed to continue providing abortion care in Memphis while working in private practice; he did not receive a job offer and never heard from that prospective employer again (Id.). In 2005, while working at the Baptist Memorial Hospital-Crittenden in Arkansas, he was approached by one of the labor-and-delivery nurses at the hospital regarding abortion care (Id.). Afterward, he was informed that his services were no longer needed at that hospital (Id.). He later
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found out that a different OBGYN resident filled the position Dr. Horton had occupied at that hospital (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 28).
82. Many of Dr. Horton’s patients at LRFP are low-income and have a difficult time paying for an abortion (Id., ¶ 30). His patients may have to borrow money from a friend or a family member for the abortion or to rent a car or pay for a hotel in Little Rock (Id.). His patients often delay their care while they raise the necessary funds and make logistical arrangements (Id.).
83. Patients who are poor or low-income usually have jobs in which they do not get vacation or sick time, and it is difficult for such patients to take even a half day off work to be seen at LRFP (Id., ¶ 31). Dr. Horton states that, if such patients must take significant time off to travel out of state for a surgical abortion, they may lose their jobs (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 31). Additionally, patients often have difficulty obtaining child care; Dr. Horton states that on several occasions, patients have brought young children with them to their appointments at LRFP (Id., ¶ 32). He also states that, for women who do not want to or cannot bring their children with them to their appointments, finding child care for a whole day or more to travel out of state would be extremely difficult, if not impossible (Id.).
84. Dr. Horton states that, if the OBGYN requirement goes into effect, then those patients who cannot obtain sufficient funds to travel out of state will be forced to either attempt to self-induce an abortion or carry their pregnancies to term against their will (Id., ¶ 33).
85. Sheila M. Katz, Ph.D., offers her declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 162-189; Decl. of Sheila M. Katz, Ph.D.). Dr. Katz is an assistant professor of sociology at the University of Houston, in Houston, Texas (Id., ¶ 9). Her research has included qualitative methods and data analysis regarding women’s experiences of poverty, and her expertise
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includes the consequences and social policy determinants of women’s poverty nationwide, as well as regional and geographical similarities and differences across the United States (Id.).
86. The United States Department of Health and Human Services defines the federal poverty guideline as an income of under $12,490.00 per year for a single person, with $4,420.00 added per year for each additional member of the household (Id., ¶ 12).
87. According to 2017 Census Bureau data, Arkansas is the fifth poorest state in the United States, and its official poverty rate was 18.1% statewide (Decl. of Sheila M. Katz, Ph.D., ¶ 14). The poverty rate for women in Arkansas is even higher, at 19.5% (Id.).
88. The federal poverty guideline, while widely used, is considered by some to be an inadequate measure of poverty in the United States (Id., ¶ 17). Thus, in addition to those who fall below the federal poverty line, most poverty researchers consider individuals and family between 100% and 200% of the federal poverty line to be “low-income.” (Id., ¶ 18).
89. In Arkansas, 46.8% of families headed by single mothers with dependent children are living at or below 125% of the federal poverty line, and 37.5% are living at less than 100% of the federal poverty line (Decl. of Sheila M. Katz, Ph.D., ¶ 19).
90. Further, many poor individuals are part of the “working poor,” which Dr. Katz defines as those working at minimum wage or earning so little that they cannot meet basic needs for themselves or their family (Id., ¶ 20). The Bureau of Labor Statistics defines the “working poor [as] people who spent at least 27 weeks in the labor force . . . but whose incomes still fell below the official poverty level.” (Id.).
91. According to Dr. Katz, a woman working full-time (40 hours a week) earning minimum wage in Arkansas now has annual earnings of approximately $19,240.00, which is just
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above the federal poverty threshold if she has one child in her household and below the poverty line if she has more children (Id., ¶ 21).
92. Dr. Katz states that the fair market rent, as designated by the United States Department of Housing and Urban Development, is $702.00 for a one-bedroom apartment and $831.00 for a two-bedroom apartment in Little Rock, Arkansas (Decl. of Sheila M. Katz, Ph.D., ¶ 22). If a woman in Little Rock has a full-time job earning the minimum wage, she would pay approximately 44% of her monthly income for a one-bedroom apartment and approximately 52% of her monthly income for a two-bedroom apartment (Id.).
93. In Arkansas, 17.6% of families headed by single mothers are living in “deep poverty,” which Dr. Katz characterizes as a household that lives at or below 50% of the federal poverty line (Id., ¶ 24).
94. In addition, 17 counties in Arkansas suffer from “persistent poverty,” which Dr. Katz defines as a county where the poverty rate has been at or above 20% for the past 30 years (Id., ¶ 25).
95. Dr. Katz explains that Arkansas women living in deep or persistent poverty face the greatest logistical, financial, and psychological hurdles to accessing health care services since they are the least likely to have adequate transportation, childcare, and financial resources and support (Decl. of Sheila M. Katz, Ph.D., ¶ 26).
96. Over two-thirds of women who obtain abortions in Arkansas already have at least one child (Id., ¶ 27).
97. Dr. Katz states that it is her understanding that women in and around Little Rock who can now obtain both medication and surgical abortion through 21.6 weeks LMP at LRFP may be forced to travel out of state to obtain that care from the next closest provider (Id., ¶ 28). She
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states that the next-closest abortion provider is in Memphis, Tennessee, which is an approximately 300-mile round trip journey from Little Rock (Id.). Dr. Katz also states that such a journey would have to be made twice, as Tennessee requires “multiple, in person visits to the abortion clinic separated by at least 48 hours before a woman can obtain an abortion (Decl. of Sheila M. Katz, Ph.D., ¶ 28).
98. Dr. Katz is familiar with the research analyzing the effect of increased travel on women’s ability to obtain abortions, and she states that this research shows that increasing the distance that women must travel to access abortion services presents significant logistical and financial hurdles (Id., ¶ 30).
99. Dr. Katz states that for those women who do not own or have access to vehicles, the only significant intercity transportation between Little Rock and Memphis—other than flying—is a private bus service, such as Greyhound (Id., ¶ 34). A single round-trip Greyhound bus ticket between Little Rock and Memphis costs between $24.00 and $85.00 (Id.). If a woman must bring someone to accompany her in the event a sedative is used, this cost doubles (Decl. of Sheila M. Katz, Ph.D., ¶ 34). Further, a woman travelling by private bus may have to pay for the cost of taxi or bus fares to and from the private bus station in both Little Rock and Memphis (Id.). Moreover, given Tennessee’s 48-hour waiting requirement, either two bus trips would be required, or the woman would have to pay for two nights hotel accommodations in Memphis, which Dr. Katz says cost anywhere from $50.00 to $75.00 per night (Id.).
100. Dr. Katz also points out that many poor and low-income women in Arkansas “likely do not own or have access to cars that are reliable enough to make a trip of the length required.” (Id., ¶ 36). Dr. Katz notes that, even if a low-income woman owns a car, it may be shared among adults, and it may not be reliable enough for intercity trips (Decl. of Sheila M. Katz, Ph.D., ¶ 36).
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Dr. Katz also points out that the cost of gas for round-trip car travel from Little Rock to Memphis is approximately $23.00 (Id., ¶ 37).
101. Dr. Katz explains that low-wage workers often have no access to paid time off or sick days and that seeking uncompensated time off can be a struggle for low-wage workers who often have less autonomy in setting their work schedules (Id., ¶ 39). Further, low-wage workers often work unpredictable, varied, or evening jobs (Id.). Dr. Katz states that the additional time off required by travel may make it difficult for a poor or low-income woman to keep her abortion confidential from her supervisor or other employees (Decl. of Sheila M. Katz, Ph.D., ¶ 39).
102. Also, Dr. Katz points out that intercity travel for an abortion requires a woman to miss work (Id., ¶ 40). In the event a woman can get time off, she is likely to forego wages in addition to paying for transportation and lodging (Id.). At the minimum wage in Arkansas of $9.25, foregoing two eight-hour shifts to travel to and attend abortion counseling and procedure appointments would result in $148.00 in lost wages, which is almost 10% of a woman’s monthly income if she works a full-time minimum wage job (Id.). These lost wages are on top of the cost of the abortion and other logistical costs (Decl. of Sheila M. Katz, Ph.D., ¶ 40).
103. Dr. Katz points out that, for those women seeking an abortion who already have a child, they must either pay the cost of an additional round-trip bus ticket for her child or pay the cost of childcare for the entire time she is travelling (Id., ¶ 41). Alternatively the woman may be able to leave her child with a trusted family member or friend, though this may require that the woman disclose why she is travelling (Id.).
104. In sum, according to Dr. Katz, the total additional financial burden that a woman in or around Little Rock would have to incur to obtain a surgical abortion if she were forced to travel to Memphis would amount up to approximately $468.00, including lost wages, but not including
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childcare, food, or the cost of the procedure itself (Id., ¶ 44). For a woman working full-time and making Arkansas minimum wage, this is over a quarter of her monthly salary of $1,603.00 (Decl. of Sheila M. Katz, Ph.D., ¶ 44).
105. Dr. Katz also points out that a low-income woman may never have travelled outside the metropolitan or rural area where she lives, so even if she is able to gather the money necessary to make the trip, “the social-psychological hurdles of making multiple trips to an unfamiliar city, where she may know no one, may impede her.” (Id., ¶ 47). Accordingly to Dr. Katz, many of the women she has spoken to in her research indicate that, if a service is not available in their town or within a reasonable distance, “that service might as well not exist.” (Id.).
106. Dr. Katz points out that poor and low-income women attempt to meet unexpected expenses in three ways: (1) by making sacrifices in other areas, such as by not paying rent or utilities, drastically reducing food budgets, or foregoing needed medical care; (2) by borrowing money through payday loans; and (3) by borrowing money from a boyfriend or partner (Id., ¶¶ 5052). Dr. Katz explains that in her own interviews with poor and low-income women, such women talk about the economic necessity of relying on or returning to an abusive ex-boyfriend to help make ends meet when faced with an unexpected crisis (Decl. of Sheila M. Katz, Ph.D., ¶ 52).
107. Dr. Katz is also familiar with studies analyzing the effect of increased travel on women’s ability to obtain abortions (Id., ¶ 54). The “Turnaway Study” found that the most common reason women were delayed in accessing abortion care was because of travel and procedure costs (Id., ¶ 55). Furthermore, that study also cited that women reported that they experienced delay as a result of having to get time off work, finding child care, and not having anyone to travel with them (Id.).
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108. Another study found that the most common reason for delay was that it took a long time to make abortion care arrangements and that poverty made women twice as likely to be delayed in making the arrangements to seek an abortion (Decl. of Sheila M. Katz, Ph.D., ¶ 56).
109. In the “Shelton Study,” researchers concluded that “the farther a woman has to travel to obtain an abortion, the less likely she is to obtain one.” (Id., ¶ 57). Furthermore, a recent study of Texas women seeking an abortion after the implementation of a law restricting abortion access documented that women were worried that they would suffer stigma if they utilized their social networks to overcome the barriers of travelling long distances to obtain abortion care (Id., ¶ 58).
110. Dr. Jason Lindo, Ph.D., a professor of economics at Texas A&M University, presents his declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 200-237; Decl. of Jason Lindo, Ph.D.). He has been a research associate at the National Bureau of Economic Research (“NBER”) since 2014 (Id., ¶ 5).
111. It is Dr. Lindo’s understanding that there are three types of abortions currently provided in Arkansas: (1) medication abortions that are available only up to 10 weeks LMP; (2) aspiration surgical procedures that are available until approximately 13 weeks LMP; and (3) dilation and evacuation (“D&E”) surgical procedures, which are performed until 21.6 weeks LMP (Id., ¶ 11).
112. Dr. Lindo explains that it is his understanding that medication abortions in Arkansas require three trips and that, under a new law set to take effect on July 24, 2019, the mandated delay between the first and second visits will increase to 72 hours (Id., ¶ 12).
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113. As for surgical abortions, Dr. Lindo explains that two trips are required, though a third visit may be necessary for some D&E procedures performed later in the second trimester (Decl. of Jason Lindo, Ph.D., ¶ 13).
114. Dr. Lindo notes that LRFP is owned and operated by Dr. Tvedten, who provides approximately 61% of the abortion care at LRFP (Id., ¶ 14(a)). Dr. Horton provides approximately 33% of the clinic’s abortion care, and the remaining six percent of the clinic’s abortion care has been provided by Dr. Hopkins (Id.). Neither Dr. Tvedten nor Dr. Horton are board-certified or board-eligible OBGYNs (Id.).
115. Dr. Rodgers and Dr. Cathey provide medication abortions at PPAEO’s Little Rock health center (Decl. of Jason Lindo, Ph.D., ¶ 14(b)). Through April 2019, Dr. Cathey has provided 229 medication abortions while Dr. Rodgers has provided 199 medication abortions in the same time (Id.).
116. Between May 1, 2016, and April 30, 2019, LRFP provided 7,010 abortions, including 6,128 (or 87%) to Arkansas residents, 483 (or 7%) to Tennessee residents, and 188 (or 2.7%) to Mississippi residents (Decl. of Jason Lindo, Ph.D., ¶ 15).
117. Between 2016 and 2019, approximately 75.5% of LRFP’s procedures were aspiration abortions (5,291); approximately 19.2% were D&E abortions (1,346), and approximately 5.3% were medication abortions (376) (Id., ¶ 16).
118. Dr. Lindo analyzed several academic studies published in peer-reviewed journals that have documented that abortion regulations can have impacts on women’s ability to access abortion care (Id., ¶ 21). While there are some differences across these studies in terms of the data that were used and the set of outcomes that were evaluated, all three determined that increases in
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distance to the nearest clinic caused by regulation-induced clinic closures caused significant reductions in abortions obtained from medical professionals (Id., ¶ 24).
119. Dr. Lindo also evaluated the effects in Arkansas when the contracted physician requirement eliminated the availability of medication abortion in Arkansas from May 31 through June 18, 2018 (Decl. of Jason Lindo, Ph.D., ¶ 32). Dr. Lindo concludes that the contracted physician requirement reduced the number of abortions obtained from Arkansas providers by Arkansas residents by 17-27% (Id., ¶ 35).
120. Dr. Lindo also projects that Dr. Hopkins will likely be able to serve 42 women every other month, an estimate based upon the fact that Dr. Hopkins has served, at most, 21 women in any given day in the last three years (Id., ¶ 49(c)).
121. Dr. Lindo projects that Dr. Paulson will be able to provide abortions to a maximum of 12 patients per week (Id.).
122. Based upon his past capacity to provide abortions, Dr. Lindo estimates that Dr. Rodgers will be able to provide 480 medication abortions annually (Decl. of Jason Lindo, Ph.D., ¶ 50 (Table 8)). Furthermore, taking into account that Dr. Cathey intends to add a half day to her provision of abortion care, Dr. Lindo estimates that she will be able to provide 476 medication abortions annually (Id.).
123. Dr. Lindo has examined the likely effects of the OBGYN requirement on Arkansas women’s ability to access abortion care (Id., ¶ 41). To do so, Dr. Lindo presents his supplemental declaration (Dkt. No. 37; Supp. Decl. of Jason Lindo, Ph.D.).
124. Dr. Lindo points out that he has learned that, during the week of July 1, 2019, PPAEO stopped providing medication abortions at its Fayetteville health center (Id., ¶ 2). Accordingly, he has evaluated the likely effects of the OBGYN requirement under the current
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changed circumstances where PPAEO Little Rock and LRFP are the only providers of abortion care in Arkansas (Id.).
125. Dr. Lindo evaluates the effects of the OBGYN requirement under these changed circumstances in three different scenarios: (1) no OBGYN requirement; (2) the OBGYN requirement goes into effect and LRFP is forced to close; and (3) the OBGYN requirement goes into effect and LRFP stays open, allowing Dr. Hopkins to provide abortions every other month (Id., ¶ 3).
126. In order to ensure that he does not conflate the effects of PPAEO Fayetteville not offering abortions with the effects of the OBGYN requirement, Dr. Lindo’s supplemental declaration focuses upon women who have historically been served by LRFP and PPAEO Little Rock (Supp. Decl. of Jason Lindo, Ph.D., ¶ 8). In particular, his supplemental declaration focuses “on the 2,614 women annually served at these two locations over the past three years.” (Id.). Thus, according to Dr. Lindo, he is providing a conservative estimate of the effect of the OBGYN requirement since more than 2,614 women are likely to seek abortions in Little Rock annually, given that medication abortions are no longer available at PPAEO Fayetteville (Id.).
127. Dr. Lindo also explains that, based upon an average from 2016 to 2019, 2,779 Arkansas residents obtain an abortion each year (Decl. of Jason Lindo, Ph.D., ¶ 51). Dr. Lindo’s declaration also states that, based upon a three-year average, 1,927 Arkansas women seek surgical abortions in Arkansas annually (Id., ¶ 61).2
2 The Court calculates this sum from Table 11 in Dr. Lindo’s declaration. Dr. Lindo states that 1,134 Arkansans received surgical abortions in Arkansas at less than or equal to 10 weeks LMP and that 793 Arkansas residents obtained surgical abortions in Arkansas at greater than 10 weeks LMP.
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128. Dr. Lindo concludes that, of the 2,212 women who annually obtain surgical abortions in Arkansas, none of them will be able to do so if the OBGYN requirement goes into effect and LRFP is forced to close (Supp. Decl. of Jason Lindo, Ph.D., ¶ 10). Put another way, of the 2,614 women who obtain abortions in Little Rock annually, 2,212 (or 85%) of those women will not be able to obtain the same type of care in Arkansas that they otherwise would, absent the OBGYN requirement (Id., ¶ 10).
129. Dr. Lindo also performed calculations that assume that some women who would have received surgical abortions will substitute for medication abortions. Dr. Lindo estimates that LRFP and PPAEO Little Rock currently have the capacity to provide up to 4,664 abortions annually and that, if the OBGYN requirement goes into effect and LRFP is forced to close, that number will fall to 956,3 which is the sum of Dr. Rodgers and Dr. Cathey’s total estimated capacity (Id., ¶ 11). Accordingly, 1,658 (or 63%) of the 2,614 women who otherwise would obtain abortion care in Little Rock annually will not be able to access any type of abortion care in Arkansas if the OBGYN requirement goes into effect and LRFP closes (Id.). And 1,658 (or 52%) of the 3,167 women who have historically obtained abortion care in Arkansas annually (including at PPAEO Fayetteville) will not be able to access any type of abortion care in Arkansas (Supp. Decl. of Jason Lindo, Ph.D., ¶ 11).
130. Dr. Lindo also projects that, if the OBGYN requirement goes into effect and LRFP does not close, the availability of surgical abortions at LRFP will increase from 0 to 252 compared to the scenario where LRFP closes (Id., ¶ 12). Accordingly, in this scenario, all but 252 of the women who would otherwise seek surgical abortions would have no provider in Arkansas (Id., ¶ 13). Typically, 2,212 women have obtained surgical abortions each year in Little Rock (Id., ¶ 12).
3 480+476=956. 33

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131. As such, according to Dr. Lindo, 1,960 (or 75%) of the 2,614 women who obtain abortions in Little Rock annually will not be able to obtain the same type of care in Arkansas that they would otherwise seek, absent the OBGYN requirement (Supp. Decl. of Jason Lindo, Ph.D., ¶ 13). Additionally, these 1,960 are 62% of the 3,167 women who would historically have obtained abortion care in Arkansas annually (including PPAEO Fayetteville) but who will not be able to obtain the same type of care in Arkansas that they would have, absent the OBGYN requirement (Id.).
132. Dr. Lindo does account for the possibility that PPAEO Little Rock could provide up to 956 medication abortions annually for women who would historically have obtained abortion care in Arkansas. In conjunction with the 252 surgical abortions that LRFP could provide it if remains open despite the OBGYN requirement, this means that 1,406 (or 54%) of the 2,614 women who otherwise would obtain care in Little Rock annually will not be able to access any type of abortion care in Arkansas (Id., ¶ 14). Furthermore, 1,406 (or 44%) of the 3,167 women who have historically obtained abortion care in Arkansas annually (including at PPAEO Fayetteville) will not be able to obtain any type of abortion care in Arkansas (Id.).
133. Kathleen Paulson, M.D., a board-certified OBGYN licensed to practice medicine in Arkansas, offers her declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 248-250; Decl. of Kathleen Paulson, M.D.). Dr. Paulson provides medical services, including outpatient gynecologic care and women’s wellness care, at a medical center in Fayetteville, Arkansas (Id., ¶ 1).
134. Linda W. Prine, M.D., a board-certified family physician, offers her declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 252-261; Decl. of Linda W. Prine, M.D.). Dr. Prine is a professor of family medicine and community health at the Icahn School of Medicine at Mount
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Sinai, and she also holds teaching positions at the Harlem Family Medicine Residency Program and the Mount Sinai Downtown Residency in Urban Family Medicine (Id., ¶ 4). She also maintains an active medical practice, including as a clinician at Planned Parenthood of New York City (Id.). Dr. Prine has provided medication and surgical abortion care to women up to sixteen weeks LMP, and over the last eighteen years, she has trained thousands of clinicians to provide abortion care (Id., ¶ 5). She states that those clinicians have come from several specialties, including family medicine, pediatrics, OBGYN, and internal medicine (Decl. of Linda W. Prine, M.D., ¶ 5).
135. Dr. Prine knows of numerous family medicine practitioners who provide abortion care up to 24 weeks or more LMP (Id., ¶ 7). Furthermore, she has trained advanced practice clinicians, such as nurse practitioners, to provide abortion care (Id., ¶ 8). She states that it is well established that advanced practice clinicians can provide surgical abortion as safely and effectively as physicians (Id.).
136. Dr. Prine explains that the scope of practice for family medicine practitioners is significantly more complex than abortion care; specifically, she notes that managing a patient’s diabetes, heart disease, hypertension, and/or HIV/AIDS, or performing any number of other minor outpatient surgical procedures is more complex than abortion care (Decl. of Linda W. Prine, M.D., ¶ 16). She further notes that family practitioners provide miscarriage management, prenatal care, and delivery to low-risk patients (Id.). Dr. Prine states that miscarriage management involves many of the same skills required for abortion providers and that delivery, even to low-risk patients, has a higher complication rate than providing abortions (Id., ¶ 17).
137. In Dr. Prine’s experience, residents from all specialties can become qualified abortion providers (Id., ¶ 20). According to Dr. Prine, one third of abortion providers in this
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country come from specialties other than OBGYN and that, based upon her experience, there is no difference in the training of an OBGYN resident and other clinicians in these skills (Decl. of Linda W. Prine, M.D., ¶ 20).
138. Dr. Prine points out that ACOG characterizes requirements “that clinic physicians be board certified obstetricians-gynecologists despite the fact that clinicians in many medical specialties can provide safe abortion services” as “medically unnecessary requirements designed to reduce access to abortion.” (Id., ¶ 21). Additionally, the American Academy of Family Physicians (“AAFP”) adopted in 2014 a resolution opposing laws that “impose[] on abortion providers unnecessary requirements that infringe on the practice of evidence-based medicine.” (Id., ¶ 22). Dr. Prine opines that the OBGYN requirement is the type of unnecessary requirement to which the AAFP policy refer, as it restricts access to abortion care with no medical benefit to patients (Id.). Dr. Prine also points out that the American Public Health Association likewise recognizes that training, not specialty, determines competence in providing abortion care (Id., ¶ 24).
139. Dr. Prine cites a comprehensive report by the National Academies of Sciences, Engineering, and Medicine that states that family medicine physicians, among other clinicians, can “safely and effectively” provide medication and surgical abortions (Decl. of Linda W. Prine, M.D., ¶ 26). This report concluded medication and suction aspiration abortions performed by family medicine physicians had high success rates and that “[a]ll complications were minor and managed effectively at rates similar to those in OB/GYN practices and specialty abortion clinics.” (Id., ¶ 27). The report further concluded that “OB/GYNs, family medicine physicians, and other physicians with appropriate training and experience can provide D&E abortions.” (Id.).
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140. Dr. Prine concludes that restricting the provision of abortion care to board-certified or board-eligible OBGYNs is not medically justified and provides no medical benefit (Id., ¶ 29).
141. Dr. Prine also submits a supplemental declaration in support of plaintiffs’ motion (Dkt. No. 62-1; Supp. Decl. of Linda W. Prine, M.D.). Dr. Prine “strongly disagree[s]” with any contention that abortion creates or causes psychological or emotional problems that do not already exist or would have arisen regardless of the procedure (Id., ¶¶ 2-3). Citing reports from the National Academies of Sciences, Engineering and Medicine, the American Psychological Association (“APA”) Task Force on Mental Health and Abortion, and the Academy of Medical Royal Colleges, Dr. Prine states that “the rates of mental health problems for women with an unwanted pregnancy are the same whether they have an abortion or give birth” and that “there is no evidence that abortion gives rise to serious psychological and emotional harms.” (Id., ¶ 5).
142. Dr. Alison Stuebe, M.D., M.Sc., Fellow of the American College of Obstetrics and Gynecology (“F.A.C.O.G.”), provides her declaration in support of plaintiffs’ motion (Dkt. No. 21, at 290-301; Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G.). Dr. Stuebe is a board-certified maternal-fetal medicine specialist (“MFM”) and OBGYN (Id., ¶ 1). As an MFM, Dr. Stuebe specializes in the management of high-risk pregnancies; MFMs obtain three additional years of fellowship training, beyond the standard residency period for an OBGYN (Id.).
143. Dr. Stuebe is an associate professor in the Department of Obstetrics and Gynecology and the Department of Maternal and Child Health at the University of North Carolina (“UNC”) School of Medicine (Id., ¶ 3). She also serves as the Associate Director for Research and Development at the UNC Center for Maternal and Infant Health (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 3). Since 2008, Dr. Stuebe has trained hundreds of medical students, residents, and fellows in OBGYN (Id.).
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144. Dr. Stuebe also maintains an active clinic practice focusing on care for women with high-risk pregnancies (Id., ¶ 5). A substantial part of her clinical work consists of conducting ultrasound and prenatal diagnostic tests and counseling women about fetal abnormalities (Id.).
145. Since UNC is a state hospital, Dr. Stuebe cares for patients from a wide range of socioeconomic and cultural backgrounds, including women who are undocumented immigrants without health insurance and women who are UNC employees with private insurance (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 6).
146. While Dr. Stuebe currently does not provide medication or surgical abortions as part of her clinical practice, she does currently assist women in terminating pregnancies involving fetal anomalies through medical induction of labor at the hospital (Id., ¶ 7).
147. In her MFM practice, Dr. Stuebe regularly treats and counsels with pregnant women about genetic and other fetal anomalies (Id., ¶ 12). Because of her education, training, and clinic work, Dr. Stuebe is very familiar with the genetic anomaly Trisomy 21, which is commonly referred to as Down syndrome (Id., ¶¶ 12-13). While there are various risk factors for Down syndrome, Dr. Stuebe states that there is no way to predict before pregnancy whether a woman will have a fetus with Down syndrome (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 14).
148. Dr. Stuebe explains that there are a number of screening and diagnostic tests available to determine the presence of certain genetic, chromosomal, and structural anomalies, including Down syndrome (Id., ¶ 17). Screening tests cannot diagnose any anomaly and only indicate a likelihood or probability that one or more anomalies exist (Id., ¶ 18). Screening tests usually screen for a range of anomalies at the same time and may indicate a likelihood of more than one anomaly at once (Id.). Diagnostic tests, on the other hand, determine the existence or
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non-existence of anomalies with near certainty (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 18).
149. ACOG and the Society of Maternal Fetal Medicine (“SMFM”) recommend that all women be counseled about prenatal genetic screening and diagnostic testing options as early as possible in pregnancy, ideally at the first prenatal visit (Id., ¶ 19). They also recommend that all women be offered the option of aneuploidy screening or diagnostic testing for fetal genetic disorders and that all women with positive screening test results be offered further counseling and diagnostic testing (Id.). If a genetic disorder or other major structural abnormality is detected prenatally, ACOG recommends that the option of pregnancy termination should be discussed (Id.).
150. The typical approach to genetic screening in pregnancy includes the assessment for common fetal aneuploidies, i.e., an abnormal number of chromosomes, including Trisomy 21 (Down syndrome), Trisomy 13, and Trisomy 18 (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 20).
151. There are multiple Down syndrome screening tests used during pregnancy: the fetal cell-free DNA test; nuchal translucency and serum-marker screening tests; maternal serum quadruple marker (“Quad Screening”) tests; and targeted ultrasound examination (Id., ¶ 22).
152. Cell-free DNA testing can be performed as early as 10-12 weeks LMP, and results are usually available within 7 days (Id., ¶ 22(a)). Cell-free DNA tests detect approximately 99% of pregnancies affected with Down syndrome, though false positive results are higher for low-risk women (Id.). ACOG, therefore, advises that women should not take irreversible action based upon a cell-free DNA test result alone (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 22(a)).
153. In the first trimester, generally between 10-14 weeks LMP, clinicians specially trained in diagnostic medical sonography can perform nuchal translucency testing (Id., ¶ 22(b)).
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Nuchal translucency testing is typically done in tandem with serum-marker screening tests, which measure two hormones in the pregnant woman’s blood (Id.). These first-trimester screens are less sensitive than the cell-free DNA test, as they detected approximately 82-87% of pregnancies affected with Down syndrome (Id.).
154. In the second trimester, a quadruple-marker screening test is available that measures the levels of four different hormones in the pregnant woman’s blood (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 22(c)). Quad screening detects approximately 81% of pregnancies affected by Down syndrome (Id.).
155. Another second trimester screening test is the targeted ultrasound examination (Id., ¶ 22(d)). This test examines the fetal anatomy for markers that indicate increased risks of Down syndrome and is typically performed between 18-20 weeks LMP (Id.). These tests are difficult to complete before 18 weeks LMP and associated cardiac anomalies may not be visible until 19-20 weeks LMP (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 22(d)). Accordingly, clinicians do not typically perform targeted ultrasound examinations until at least 18 weeks LMP (Id.).
156. If a screening test indicates an increased probability of a fetal genetic condition or aneuploidy, Dr. Stuebe offers a diagnostic test to confirm whether the genetic condition indicated by the screening test is present (Id., ¶ 23). There are two techniques for obtaining fetal cells for diagnostic testing: chorionic villus sampling (“CVS”) and amniocentesis (Id., ¶ 24).
157. CVS analyzes a sample of cells taken from the placenta and is generally performed between 10-14 weeks LMP, though it can be performed earlier (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 24(a)). CVS carries a slightly higher risk of pregnancy loss compared to amniocentesis, though there is debate among OBGYNs regarding the cause of this higher risk (Id.).
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158. Amniocentesis analyzes fetal skin cells in a sample of amniotic fluid taken from the gestational sac and is generally performed beginning at approximately 15 weeks LMP (Id., ¶ 24(b)).
159. Once cells are obtained via CVS or amniocentesis, genetic testing is performed (Id.) The most common type of test is a karyotype analysis, and to perform this test, cells are cultured for 7-14 days, and the number of chromosomes present are assessed during cell division (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 24(c)). The diagnostic accuracy of karyotype analysis for Down syndrome is greater than 99%, and final test results take 7-14 days (Id.). It is possible, however, to receive preliminary results in 24-48 hours via a technique called fluorescence in situ hybridization (Id.).
160. Dr. Stuebe states that most women do not receive a confirmed diagnosis of Down syndrome until well into the second trimester of pregnancy (Id., ¶ 25). Further, amniocentesis is more widely available than CVS and cannot be performed until 15 weeks LMP, and test results from amniocentesis are often unavailable until 17 weeks LMP (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 25). Furthermore, a clinician performing an ultrasound may not be able to detect any associated anatomical abnormalities before approximately 18 weeks LMP (Id.).
161. Since fetal anatomy can be assessed adequately only after about 18 weeks LMP, women do not undergo routine ultrasound assessment of anatomy before then; as a result, most women will not be aware of a fetal structural anomaly until at least 18 weeks LMP (Id., ¶ 27). Furthermore, Dr. Stuebe states that the optimal time to assess for congenital heart defects is between 18-20 weeks LMP (Id.). Since many women carrying a fetus with an identified anomaly seek further genetic testing, most women with a prenatal diagnosis of a structural anomaly do not
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have access to information to make decisions regarding the pregnancy until at least 19-20 weeks LMP (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 27).
162. Dr. Stuebe states that Act 619 will encourage women to withhold screening and diagnostic test results from medical providers she visits for care, which could have negative consequences for both the clinician-patient relationship and the woman’s health, especially since understanding the meaning and reliability of various screening and diagnostic tests can be difficult (Id., ¶ 29).
163. Additionally, Dr. Stuebe states that Act 493 will “make it extremely difficult, if not impossible, for women to take the time necessary to confirm a diagnosis of Down syndrome or another fetal anomaly, and make an informed, autonomous decision regarding whether to carry to term or terminate the pregnancy.” (Id., ¶ 30). Specifically, amniocentesis results are unavailable before 16-17 weeks LMP, and targeted ultrasound examinations cannot be performed reliably until approximately 18 weeks LMP, at the earliest (Id.). Dr. Stuebe states that Act 493 creates artificial time pressure that could lead women and their families to rush their decision-making process for no medically justified reason (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 30).
164. Dr. Thomas Tvedten, M.D., the part owner and Medical Director of LRFP, provides his declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 371-384; Decl. of Thomas Tvedten, M.D.). Dr. Tvedten first began training to provide abortion care in 1985 at Women’s Community Health in Little Rock, a clinic that used to provide abortion care in Arkansas (Id., ¶ 5). Dr. Tvedten was trained by an experienced abortion provider and family medicine physician who had been providing abortion care in Arkansas since the 1970s (Id.). Dr. Tvedten began by first learning, and then providing, first trimester abortion care (Id., ¶ 6). After speaking to other providers and observing them perform second trimester procedures, Dr. Tvedten expanded the scope of his
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practice to second trimester procedures, eventually performing procedures up to approximately 21 weeks, 6 days LMP (Decl. of Thomas Tvedten, M.D., ¶ 7). Dr. Tvedten has consistently provided abortion care up to 21.6 weeks LMP for more than 15 years (Id.).
165. Starting in 2004, after the Federal Drug Administration (“FDA”) approved Mifeprex for combined use with misoprostol for early non-surgical abortion, Dr. Tvedten began providing medication abortion up to 10 weeks LMP (Id., ¶ 8).
166. Dr. Tvedten has also trained numerous providers to provide both medication and surgical abortions (Id., ¶ 9). Family planning and OBGYN residents and medical students regularly come to LRFP to observe Dr. Tvedten performing abortion procedures and to receive training (Decl. of Thomas Tvedten, M.D., ¶ 9). Furthermore, many OBGYNs in Arkansas refer patients to Dr. Tvedten for abortion care that they are not trained to or are unable to provide (Id., ¶ 10).
167. Dr. Tvedten states that, while complications arising from either medication or surgical abortion are extremely rare, he is trained to handle effectively and safely any issue that may arise, either by providing the follow-up care himself or by referring his patients to a “tertiary care facility.” (Id., ¶ 11).
168. Dr. Tvedten takes steps to ensure that he is always up to date on the latest advances in abortion care (Id., ¶ 12). For example, he attends yearly conference on abortion care to further his education (Decl. of Thomas Tvedten, M.D., ¶ 12). He also discusses abortion care and complex abortion cases with other providers, including his OBGYN colleagues, and he reads practice bulletins issued by medical authorities such as ACOG (Id.). He also reviews articles published in peer-reviewed medical journals, such as Obstetrics & Gynecology, Contraception, the Journal of the American Medical Association, and other sources on this topic (Id.).
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169. At LRFP, Dr. Tvedten and two other physicians provide surgical abortions up to 21.6 weeks LMP and medication abortions up to 10 weeks LMP (Id., ¶ 15). LRFP is one of three abortion clinics in Arkansas and is the only one that offers surgical abortions (Decl. of Thomas Tvedten, M.D., ¶ 15). Accordingly, LRFP is the only option for women seeking abortion care after 10 weeks LMP in Arkansas (Id.).
170. Dr. Tvedten points out that Arkansas law currently requires that LRFP patients who seek an abortion must make at least two-in-person trips to the clinic—first for the state-mandated informed consent process, including a non-directive discussion regarding their options, and the second for additional, non-directive counseling and the abortion itself, after a mandatory delay of at least 48 hours (Id., ¶ 20). For patients receiving abortion care at 18 to 21.6 weeks LMP, which is a two-day procedure, that law results in at least three trips (Id.). Dr. Tvedten points out that a new law, set to take effect on July 24 of this year, increases the mandatory delay period to at least 72 hours (Decl. of Thomas Tvedten, M.D., ¶ 20 (citing Ark. Act. 801, to be codified at §§ 20-161109, -1703(b), -1706)).
171. Dr. Tvedten is not a board-certified or board-eligible OBGYN (Id., ¶ 23). He cannot become either because he did not complete an OBGYN residency and cannot feasibly do so now, given “the extraordinary time and resources that would be needed to pursue a new specialty at this stage” of his career (Id.). If the OBGYN requirement goes into effect, Dr. Tvedten will be forced to stop providing abortion care to his patients or risk incurring significant penalties (Id.).
172. Dr. Tvedten also states that the only other physicians currently providing abortions at LRFP every week is Dr. Horton, who lives in Memphis, Tennessee, and generally provides care at LRFP approximately one day a week (Decl. of Thomas Tvedten, M.D., ¶ 24).
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173. Dr. Tvedten further states that LRFP does not employ on a full-time basis or receive full-time assistance from any physicians who are board-certified or board-eligible OBGYNs (Id., ¶ 25). The only board-certified or board-eligible OBGYN who provides care at LRFP is Dr. Hopkins, but he can travel to Arkansas to provide abortion care at LRFP only approximately once every-other month (Id., ¶ 26).
174. Dr. Tvedten states that, over the past four years, LRFP has undertaken significant efforts to try to find an OBGYN who would be willing to assist LRFP in continuing to provide abortion care, including by providing abortions at LRFP or on a part-time or full-time basis (Id., ¶ 27). These efforts included renewed efforts after the Arkansas legislature passed the OBGYN requirement (Decl. of Thomas Tvedten, M.D., ¶ 27). Despite their efforts, LRFP has not been able to identify a single board-eligible or board-certified OBGYN provider who can provide full-time or near-full-time care at LRFP (Id.).
175. In Dr. Tvedten’s experience, many of the physicians who provide abortion care in Arkansas permanently reside in other states and only travel to Arkansas to provide abortion care because there are no local physicians willing to provide abortion care here (Id., ¶ 28).
176. According to Dr. Tvedten, locally-based physicians who do provide abortion in Arkansas face stigmatization that may jeopardize their ability to continue to provide other care, retain positions or admitting privileges at hospitals, and protect their families from harassment (Id., ¶ 29).
177. Dr. Tvedten states that one of the Arkansas physicians from whom he first received training in abortion care, Dr. James Guthrie, was forced to abandon his provision of abortion care altogether because of the harassment that he and his family practice partners faced at the hands of
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the anti-abortion activists who picketed his family practice clinic and the homes of the physicians with whom he shared this practice (Decl. of Thomas Tvedten, M.D., ¶ 30).
178. Dr. Tvedten agreed to assist Dr. Guthrie in finding a replacement provider, and he eventually stayed on to provide abortion care on a permanent basis (Id., ¶ 31).
179. Dr. Tvedten recalls conversations with his former medical school classmates, and he relates that “they scoffed at the idea of providing abortion care in the state, given the stigma associated with it and the accompanying risk that providing abortion would harm their ability to maintain the private practices and positions at hospitals.” (Id.).
180. Dr. Tvedten also gave up his family practice in large part because of his knowledge that the political climate and stigma surrounding abortion care would make it extremely difficult, if not impossible, to attract potential partners and patients to a separate practice while he continues to provide abortion care (Id., ¶ 33).
181. Dr. Tvedten states that, just a few years ago, anti-abortion activists found out where his children attend school and distributed flyers at the school grounds with his name, picture, and home address on them, labelling him as “complicit in murder.” (Decl. of Thomas Tvedten, M.D., ¶ 34). He and his family have also been subject to picketing at their private residence (Id.).
182. Dr. Tvedten has, in recent years, had conversations with local physicians who, despite considering themselves pro-choice and supportive of the full range of reproductive health care, including abortion care, have abandoned any idea of providing abortion care in Arkansas given the stigma associated with it (Id., ¶ 35).
183. Dr. Tvedten states that, due to LRFP’s inability to attract another full-time provider who is a board-eligible or board-certified OBGYN, LRFP will almost certainly have to be shut down entirely, absent some unanticipated development (Id., ¶ 36). He also states that, if LRFP
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remains open due to Dr. Hopkins’ provision of care, LRFP would still have to restrict significantly its provision of abortion care (Decl. of Thomas Tvedten, M.D., ¶ 36).
184. Indeed, in Dr. Tvedten’s opinion, even if LRFP is not forced to close immediately, if LRFP cannot employ a full-time board-certified or board-eligible OBGYN, then LRFP will be forced to close eventually (Id., ¶ 37).
185. In the event Act 493 takes effect, Dr. Tvedten and other physicians at LRFP will stop performing abortions in cases where the pregnancy is determined to be greater than 18 weeks LMP (Id., ¶ 42).
186. Dr. Tvedten is aware that some of LRFP’s patients seek abortions after receiving a fetal diagnosis, including diagnoses of Down syndrome (Id., ¶ 44). In order to avoid the penalties set forth in Act 619, Dr. Tvedten states that he and the other physicians at LRFP will have no choice to stop performing abortions when they have “knowledge” that the woman is seeking the abortion “solely” due to a test result indicating Down syndrome (Decl. of Thomas Tvedten, M.D., ¶ 46).
187. Lori Williams, M.S.N., A.P.R.N., a nurse practitioner and Clinical Director of LRFP, offers her declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 388-403; Decl. of Lori Williams, M.S.N., A.P.R.N.). Ms. Williams has worked at LRFP since 2004 and has been the Clinical Director since 2007 (Id.). Since 2010, she has been a part owner of LRFP (Id., ¶ 5).
188. As LRFP’s Clinical Director, Ms. Williams is responsible for all aspects of the dayto-day operations, including overseeing patient care in coordination with the physicians and other health-care professionals, supervising staff, maintaining policies and procedures, and ensuring that LRFP complies with all laws and regulations (Id., ¶ 8).
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189. Ms. Williams states that “[a]bortion is one of the safest medical procedures currently available to women in the United States” and that “[i]t is substantially safer than giving birth . . . .” (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 9).
190. Ms. Williams states that only three physicians currently provide care at LRFP: Dr. Tvedten, Dr. Horton, and Dr. Hopkins (Id., ¶ 11). She states that all three of these doctors are extremely experienced in abortion care and that they can handle any complications that may arise, including by providing treatment at LRFP and by referring patients to a local hospital when necessary (Id.).
191. LRFP offers medication abortion from the point in pregnancy when an intrauterine pregnancy can be confirmed (typically 5-6 weeks LMP) to 10 weeks LMP (Id., ¶ 13). LRFP offers aspiration abortion from approximately 3-4 weeks LMP through approximately 13 weeks LMP and typically performs a D&E procedure beginning around 14 weeks LMP through 21.6 weeks LMP (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 14). Ms. Williams notes that aspiration and D&E abortions do not involve incisions (Id.).
192. Ms. Williams states that it is common for a woman who can choose between a medication and surgical abortion to have a strong preference for a surgical abortion (Id., ¶ 15). She states that while there are many reasons for this, “many women prefer the surgical option because it requires fewer visits to the clinic, and thus is associated with a lower burden in terms of funding and time.” (Id.).
193. LRFP currently provides patient care three days per week, and to accommodate the 48-hour mandated waiting period, LRFP typically provides care on three staggered days each week (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 17). She also states that LRFP can safely and
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effectively “provide abortion care up to approximately 20-25 women each day, depending on the variables associated with the specific patient-care needs presented on any given day.” (Id.).
194. LRFP operates with substantial fixed costs each month, the most significant of which is overhead related to LRFP’s 13 full-time staff members (Id., ¶ 19).
195. Ms. Williams states that, in 2018, LRFP provided approximately 170 second trimester abortions after 18 weeks LMP (Id., ¶ 21).
196. At the hearing, Ms. Williams testified that LRFP has patients who currently receive abortions that would no longer be able to obtain those services with LRFP if Act 493 goes into effect.
197. Ms. Williams further states that, if Act 493 takes effect, LRFP will stop providing abortions after 18 weeks LMP, and she asserts that this will force women to travel out of state for another abortion care provider (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶¶ 22-23). Ms. Williams notes that a significant number of LRFP’s patients are poor or low income and receive financial assistance to cover part of the costs of their abortion care (Id., ¶ 23).
198. Ms. Williams also states that, from conversations with patients, she understands that the efforts required to make the necessary plans to come to LRFP cause anxiety and stress, which are exacerbated by travel and logistical arrangements (Id., ¶ 24). She notes that the need to arrange for time off work on multiple days can be challenging and that many LRFP patients are in low-wage jobs where they are unlikely to receive vacation or sick days (Id.). She notes that her patients report that they risk their employment and confidentiality by asking for time off (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 24).
199. Furthermore, based upon her counseling with patients, Ms. Williams knows that making the necessary arrangements and raising funds for travel and other costs associated with
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coming to LRFP can force patients to delay seeking care (Id., ¶ 25). She also notes that transportation presents a major challenge in rural Arkansas, as there are few public-transportation options and rural residents often live far away from health-care providers (Id.). According to Ms. Williams, “[n]umerous patients who come to the clinic for abortion care in the second trimester, including after 18 weeks LMP, have conveyed to me during the counseling process that they would have preferred to have obtained an abortion sooner but were delayed due to the logistical challenges described above (Id.).
200. Ms. Williams also notes that the risks associated with abortion procedures increase as the pregnancy progresses and that delay may worsen any maternal health conditions associated with the pregnancy (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 26).
201. Ms. Williams states that she is “aware that some of our patients seek abortions after receiving a fetal diagnosis, including Down syndrome.” (Id., ¶ 29). She notes that while LRFP does ‘not require patients . . . to tell us the reason or reasons they are seeking an abortion, patients who are seeking an abortion after a fetal diagnosis usually disclose this fact . . . .” (Id.). She also notes that these patients come to LRFP “from across Arkansas and out-of-state, with many referred . . . from Maternal Fetal Medicine specialists.” (Id.). Ms. Williams avers that, if Act 619 goes into effect, the physicians at LRFP will stop performing abortions when they know that a patient is seeking an abortion solely based on a test result indicating Down syndrome, a prenatal diagnosis of Down syndrome, or any other reason to believe that the fetus has Down syndrome (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 31).
202. Ms. Williams furthers states that, if Act 619 goes into effect, and LRFP is forced to turn away these patients, all these patients will have to seek abortion care out-of-state, as patients do not receive a Down syndrome diagnosis until after 10 weeks LMP and thus cannot seek a
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medication abortion at another Arkansas provider (Id., ¶ 32). Ms. Williams notes that, by forcing women to travel out-of-state, Act 619 will cause extreme hardship and delay for many of LRFP’s patients (Id.). She also notes that many of LRFP’s patients will be prevented from obtaining an abortion (Id.).
203. Ms. Williams notes that Dr. Hopkins is the only doctor who performs abortion care at LRFP who is a board-certified or board-eligible OBGYN (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶¶ 34-35).
204. On April 2, 2019, LRFP sent a letter to all OBGYNs listed on the Arkansas medicalboard licensure list describing LRFP and soliciting interest in providing care at the clinic (Id., ¶ 36). LRFP received no responses (Id.).
205. This letter states that LRFP is looking for a part-time, board-certified OBGYN to contract with LRFP to provide abortion services (Dkt. No. 2-1, at 404). The letter also states that LRFP sees patients three days a week, malpractice insurance would be paid by LRFP, and that the compensation for services is generous and based upon the number of procedures completed per day (Id.).
206. Furthermore, Ms. Williams has raised the need for a board-certified or boardeligible OBGYN with numerous professionals at the National Abortion Federation (“NAF”), and on April 1, 2019, she submitted a request to a NAF program that matches abortion providers with clinics around the country (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 37). Through those efforts, LRFP came into contact with two physicians who expressed preliminary interest in a position at LRFP, but neither lives in Arkansas or is licensed to practice in Arkansas (Id.).
207. Ms. Williams also notes that there are protestors outside the clinic nearly every day and that the “harassment and intimidation is immediately apparent to any prospective physician or
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staff member (Id., ¶ 39). Furthermore, medical residents who receive abortion training at LRFP “frequently express concern about driving in their own vehicles to the clinic and wearing scrubs that identify them as medical providers.” (Id.).
208. Third-party vendors have refused to do business with LRFP because LRFP provides abortion care (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 40). Ms. Williams relates an instance where an oxygen supplier ceased to do business with LRFP after anti-abortion activists informed the supplier that LRFP provides abortion care (Id.).
209. Anti-abortion activists mailed Ms. Williams’ photograph and a letter to 800 of her neighbors and went door-to-door in her neighborhood, informing members of her community that she is involved in abortion care (Id., ¶ 41).
210. In addition to LRFP’s efforts to comply with the OBGYN requirement, LRFP has sent letters to Arkansas OBGYNs on at least two other occasions to solicit interest in assisting LRFP to provide abortion care or in joining the staff in various capacities (Id., ¶ 42).
211. LRFP sent a letter in early 2015 to all Arkansas OBGYNs listed in the medicalsociety directory but received no response except from Dr. Cathey (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 42; Dkt. No. 2-1, at 405-06). LRFP against sent a letter on January 18, 2016, to all Arkansas OBGYNs listed on the medical board licensure list, but they received no response (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 42; Dkt. No. 2-1, at 407).
212. While Dr. Browne and Dr. Hopkins have agreed to provide limited care at LRFP, LRFP has not identified any board-certified or board-eligible OBGYN who is available to provide care between August 12 and October 20, 2019, the next week that Dr. Hopkins can provide care at LRFP (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 47).
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213. According to Ms. Williams, if Dr. Browne and Dr. Hopkins provide care at LRFP under the OBGYN requirement, they will spend the first of their three days at the clinic satisfying the state-manded informed-consent requirements which will need to occur at least 72 hours before any procedure (Id., ¶ 48). Dr. Tvedten would not be able to continue working at the clinic only to obtain patient informed consents, as LRFP cannot afford to keep him on staff for such a limited role (Id., ¶ 48). LRFP cannot charge patients for the initial visit at that visit (Id.). Dr. Browne and Dr. Hopkins would then need to spend their second and third days at LRFP performing procedures (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 48).
214. Ms. Williams states that LRFP would not be an economically viable medical practice if it were able to provide patient care only three days a week every-other month, or even three days a week every month (Id., ¶ 49). Even if LRFP could come up with the funds to pay staff to provide care only three days every other or each month, Ms. Williams states that this would keep LRFP from retaining the highly trained and skilled staff that it needs to operate the clinic (Id., ¶ 50).
215. Plaintiffs also present the affidavit of Brandon J. Hill, Ph.D., the chief executive officer of Planned Parenthood Great Plains (“PPGP”) (Dkt. No. 62, at 1-3; Decl. of Brandon J. Hill, Ph.D.). Dr. Hill states that PPGP is currently working to open a new health center in Little Rock in August of 2019 (Id., ¶ 2). PPGP is seeking a new location due to size constraints at their current facility, and PPGP has purchased a property for its new facility (Id., ¶ 4). PPGP will not, however, be able to provide surgical abortions at the new facility or provide care for more medication abortion patients due to the “capacities of [its] providers . . . .” (Id., ¶ 6).
216. Plaintiffs also present the affidavit of Christopher Attig, an individual who lives in Little Rock, Arkansas, and who has a son with Down syndrome (Dkt. No. 63; Decl. of Christopher
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Attig). Mr. Attig opines that Act 619 does “nothing to honor, protect, or help my son and other people diagnosed with Down syndrome.” (Id., ¶ 5). Instead, Mr. Attig believes that Act 619 “uses my son and other children diagnosed with Down syndrome as political tools to criminalize and restrict abortion.” (Id.). He further states that children with Down syndrome require special support that “can be very expensive and difficult to find,” and in his opinion “the lack of accessible and affordable medical services and therapies needed to support a child diagnosed with Down syndrome” is one of the factors that influences a woman’s decision to abort a pregnancy when Down syndrome is indicated (Id., ¶ 6).
217. Defendants present various declarations from other cases not before the Court. Ms. Ashleigh Moon filed an affidavit in Planned Parenthood of Indiana and Kentucky, et al. v. Commissioner, Indiana State Department of Health, et al., 1:16-cv-763-TWP-DML (S.D. Ind.), and defendants have filed that declaration here (Dkt. No. 45-1, at 53-55). Ms. Moon avers that she had a difficult pregnancy and that she was advised by her physicians to have an abortion and told that her child would suffer from genetic abnormalities (Id., ¶¶ 1-14). Ms. Moon states that her child was born premature, survived, and is “genetically perfect.” (Id., ¶¶ 14-15).
218. Defendants also present the declaration of Michele Mazelin, which was filed in Planned Parenthood of Indiana and Kentucky, et al. v. Commissioner, Indiana State Department of Health, et al., 1:16-cv-763-TWP-DML (S.D. Ind.) (Dkt. No. 45-1, at 57-59). Ms. Mazelin avers that she was pregnant with twins and that she was pressured by a treating physician to have amniocentesis (Id., ¶ 5).
219. Defendants present the declaration of Steven E. Calvin, M.D., which was filed in Planned Parenthood of Indiana and Kentucky, et al. v. Commissioner, Indiana State Department of Health, et al., 1:16-cv-763-TWP-DML (S.D. Ind.) (Dkt. No. 45-1, at 61-68; Decl. of Steven E
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Calvin, M.D.). Dr. Calvin avers that women have described to him that they have felt pressure to undergo prenatal screening and to have an abortion if Down syndrome is detected (Id., ¶ 20). Dr. Calvin also states that “[a] fetus at 10 weeks and later has arms, legs, and a head” and is not confusable with medical material that may be the product of surgery (Id., ¶ 26).
220. Defendants present the affidavit of Ashley K. Fernandes, M.D., Ph.D., which was filed in Preterm-Cleveland, et al. v. Lance Himes, Director, et al., 1:18-cv-109 (S.D. Ohio) (Dkt. No. 45-2, at 2-12; Decl. of Ashley K. Fernandes, M.D., Ph.D.). Dr. Fernandes avers that genetic counselors and physicians are biased against “unborn persons with DS . . . .” (Id., ¶ 8).
221. Defendants present the declarations of Kelly Kuhns, Susan Scheid, Susan Gill, and Jaclyn Keough, which were filed in Preterm-Cleveland, et al. v. Lance Himes, Director, et al., 1:18-cv-109 (S.D. Ohio) (Dkt. No. 45-2, at 26-40). Each of these individuals has a child with Down syndrome.
222. Defendants present the declaration of Dennis M. Sullivan, M.D., which was filed in Preterm-Cleveland, et al. v. Lance Himes, Director, et al., 1:18-cv-109 (S.D. Ohio) (Dkt. No. 45-3, at 89-98; Decl. of Dennis M. Sullivan, M.D.). Dr. Sullivan opines that the medical profession is biased to prefer abortions after a diagnosis of Down syndrome (Id., ¶ 15).
223. Defendants present the declaration of Robin Lynn Treptow, Ph.D., which was filed in Preterm-Cleveland, et al. v. Lance Himes, Director, et al., 1:18-cv-109 (S.D. Ohio) (Dkt. No. 46-1, at 2-4; Decl. of Robin Lynn Treptow, Ph.D.). Dr. Treptow has a son with Down syndrome, and she states that medical professionals have a bias against individuals with Down syndrome (Id., ¶¶ 2,6).
224. Defendants also present the affidavit of Allan Parker, the president of The Justice Foundation (Dkt. No. 49-1, at 1-3). Attached to Mr. Parker’s declaration are fifteen affidavits from
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Arkansas women. Each of these affiants states that she regrets her abortion (Dkt. No. 49-1, at 427).
225. Defendants also present the declaration of Millie Lace, the founder and director of Concepts of Truth, Inc. (“Concepts”) (Dkt. No. 49-2; Decl. of Millie Lace). Ms. Lace avers that Concepts is a non-profit organization that provides counseling for pregnant women (Id., ¶ 3). Ms. Lace states that she had an abortion on the advice of her physician, which caused her both physical and psychological pain (Id., ¶ 8). Ms. Lace further states that “Concepts informs women of the truth that an abortion terminates the life of a whole living human being,” and she avers that “[f]ollowing the counseling that Concepts provides, about 85% of all of the women who originally thought they wanted to have an abortion change their minds or otherwise decide to carry their baby to full term and birth.” (Id., ¶ 15). Ms. Lace also states that Concepts provides counseling to women who have had abortions, and she reports that “between 65% and 75% of the women report that they felt they were misled by the abortion clinic and that their decisions were uninformed and in many ways pressured or coerced.” (Id., ¶ 16).
226. Defendants present the declaration of Mischa Martin, the Director of the Division of Children and Family Services (“DCFS”) at the Arkansas Department of Human Services (“DHS”) (Dkt. No. 49-3; Decl. of Mischa Martin). Ms. Martin states that the Arkansas Safe Haven law allows a mother to give up custody of any baby up to 30 days told at any hospital emergency room or law enforcement agency without facing prosecution for endangering or abandoning a child (Id., ¶ 2). Ms. Martin explains that, once a baby is given up under the Safe Have law, DCFS places the baby with an “adoptive home.” (Id., ¶ 5). Ms. Martin further explains the process for screening prospective adoptive parents (Id., ¶ 8).
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227. Defendants also present the affidavit of Kristie Hayes, the Program Administrator for the Income Support Group within the Arkansas Department of Human Services (Dkt. No. 494; Decl. of Kristie Hayes). Ms. Hayes states that DHS provides “Limited Pregnant Women Medicaid,” “Full Pregnant Women Medicaid,” “Unborn Child Medicaid Coverage,” and “Newborn Medicaid.” (Id., ¶¶ 2-6). Ms. Hays also explains that the ARKids First Program covers children in households up to 142% or 211% of the federal poverty level (Id., ¶ 7). Ms. Hayes states that for families raising a child with Down syndrome, the child is eligible for ARKids and The Tax Equity and Fiscal Responsibility Act (“TEFRA”) Medicaid program (Id., ¶ 9). She also points out that families with children that have Down syndrome may be eligible for Supplemental Security Income (“SSI”) or Developmental Disabilities Services (Decl. of Kristie Hayes, ¶¶ 1011).
228. Defendants also present the declaration of Mary Silfies (Dkt. No. 49-5, at 1-3; Decl. of Mary Silfies). She is “part of a sidewalk prayer ministry group that often goes” to LRFP on Wednesdays and Fridays, if LRFP is open (Id., ¶ 1). She states that every participant “is required to sign a Statement of Peace, outlining the behavior that is expected,” and she further states that her group does “not engage in any behavior that would be considered harassing.” (Id., ¶¶ 2-3). Ms. Silfies states that LRFP has installed water sprinklers to discourage her group (Id., ¶ 4).
229. Ms. Silfies states that “[i]t is not unusual to observe ambulances being called” to LRFP, and she attaches a spreadsheet that she received in response to filing a Freedom of Information Act request with Little Rock’s ambulance service (Decl. of Mary Silfies, ¶ 5). This spreadsheet appears to show 64 instances since 1999 when an ambulance has been called to LRFP’s address (Dkt. No. 49-5, at 4-5). Ms. Silfies states that the three ambulance calls to LRFP in 2019 were all made on days when Dr. Tvedten was working (Id., ¶ 7). She says that she knows
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this because she was on the sidewalk when the ambulances were called, she recognizes Dr. Tvedten, and she makes “a personal note of who the abortionist is each time I am there.” (Id.).
230. Defendants present the declaration of Kathi Aultman, M.D. (Dkt. No. 49-6, at 124; Decl. of Kathi Aultman, M.D.). Dr. Aultman is a Fellow of the American College of Obstetricians and Gynecologists (Id., ¶ 1). Dr. Aultman describes the requirements for board certification for OBGYNs, including a four-year specialized residency (Id., ¶ 12). Dr. Aultman states that “[p]eer-reviewed studies demonstrate that board certified physicians are better doctors.” (Id., ¶ 17). She points to studies that purport to show that board-certified physicians are less likely to be disciplined by state medical boards (Id.). She also points to studies that show that physicians who have been in practice longer may be more likely to provide poor care (Id., ¶ 19).
231. Dr. Aultman describes ABOG’s “maintenance of certification” (“MOC”) process, wherein board-certified physicians engage in continuing professional development (Id., ¶¶ 22-23).
232. Dr. Aultman also states that medication abortions are riskier than aspiration abortions, and she states that “medication abortion patients are likely to require surgical follow-up treatment for retained products or bleeding.” (Id., ¶ 27). She also states that all OBGYNs are trained to evacuate the uterus in the first and second trimesters (Id., ¶ 28).
233. Dr. Aultman opines that “[c]omplications from abortion are significantly underreported.” (Id., ¶ 29). She states that this is because some states do not report their data and because “women are often ashamed to tell anyone that they had an abortion . . . .” (Id.). Dr. Aultman also says there is no support for the statement that abortion is less risky than childbirth (Id., ¶ 31). She also asserts that the low mortality and morbidity rates for early abortions masks the risk associated with abortions at 21 weeks LMP or greater (Id., ¶¶ 33-34).
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234. Dr. Aultman states that, according to the FDA, there have been 22 deaths “associated with the administration of Mifepristone.” (Id., ¶ 46).
235. Defendants also present the rebuttal declaration of Dr. Aultman (Dkt. No. 73; Rebuttal Decl. of Kathi Aultman, M.D.). Dr. Aultman has reviewed the “17 affidavits and declarations . . . in the record of this case from women who have been hurt by abortion.” (Id., ¶ 3). Dr. Aultman states that these affidavits and declarations are “consistent with the experiences of the women I have encountered in my work as a physician and advocate for women and their health issues.” (Id.).
236. Dr. Aultman relates an incident where she provided gynecologic care to a young woman, and she states that that the young woman claimed that she suffered adverse psychological effects after aborting her pregnancy (Id., ¶ 5).
237. Dr. Aultman also states that she provided care to a woman who came to see her “for continuous spotting and bleeding several months following an abortion.” (Rebuttal Decl. of Kathi Aultman, M.D., ¶ 6). Dr. Aultman avers that she learned that the young woman “was given vaginal medication” and “was instructed to sit on the toilet and push.” (Id.). Ms. Aultman states that she further learned that the young woman then “delivered a 20+ week baby boy into the toilet” and that the “baby drowned in the toilet water.” (Id.).
238. Dr. Aultman claims that there is “no mechanism for recording or reporting” medical or psychological complications of abortions (Id., ¶ 7). She also states that physicians fear being subjected to litigation for delivering babies with congenital abnormalities and that this is why “many young women feel pressure to abort babies with the potential for such abnormalities.” (Rebuttal Decl. of Kathi Aultman, M.D., ¶ 8).
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239. Attached to Dr. Aultman’s rebuttal declaration is a certified criminal record for Dr. Tvedten in the case of State v. Thomas Harold Tvedten (Id., ¶ 10). According to this record, Dr. Tvedten was convicted of second-degree criminal mischief for an event that occurred on May 22, 1987. At the hearing, Dr. Tvedten testified that this charge was the result of breaking the camera of an individual who was photographing an abortion clinic.
240. Also attached to Dr. Aultman’s rebuttal declaration is a disciplinary report for Dr. Tvedten from the Arkansas State Medical Board. Per this report, Dr. Tvedten’s medical license was suspended for three months in 1983 and that his Drug Enforcement Agency registration was suspended for fifteen months, ending in 1984.
241. Dr. Aultman also states that “comparing mortality statistics to maternal mortality statistics is not an apples-to-apples comparison” and that an OBGYN “can handle common complications of abortion that an ordinary licensed physician cannot, such as life threatening hemorrhage or injury to internal organs that might require an abdominal surgery to repair.” (Id., ¶ 14).
242. Defendants also present the declaration of Donna J. Harrison, M.D. (Dkt. No. 497, at 1-22; Decl. of Donna J. Harrison, M.D.). Dr. Harrison is certified by the ABOG and is the Executive Director of the American Association of Pro-Life Obstetricians and Gynecologists (“AAPLOG”) (Id., ¶ 3).
243. Dr. Harrison explains the efficacy of fetal screening and diagnostic tests. She explains that, out of 10,000 general population women whose pregnancies are screened using cellfree DNA screening, 30 of those women will test positive for Down syndrome, while in fact only 10 of them are positive for Down syndrome (Id., ¶ 19). In a high-risk population, out of 10,000
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women tested, 119 of those women will test positive, while in fact only 99 of them are in fact positive for Down syndrome (Id., ¶ 20).
244. Dr. Harrison further asserts that women who receive a false positive on a screening test “may be pressured to act on the basis of a positive screening test which is wrong.” (Decl. of Donna J. Harrison, M.D., ¶ 32).
245. Dr. Harrison explains that screening tests, the results of which are not available until 12 weeks LMP, “do not answer the question” of whether Down syndrome is indicated (Id., ¶ 34). Dr. Harrison avers that the diagnostic tests, which occur after a positive screening test, carry risks of complications (Id., ¶¶ 35-37). Dr. Harrison further avers that amniocentesis “is done around 18-20 weeks.” (Id., ¶ 38). She avers that, at 22 weeks LMP, “[t]he immediate risk of maternal mortality from an abortion at 22 weeks is roughly equal to the risk of death from live birth.” (Decl. of Donna J. Harrison, M.D., ¶ 38).
246. Dr. Harrison further states that “[t]here is also an increased psychological risk for mothers who abort.” (Id., ¶ 41).
247. Dr. Harrison opines that “[t]he grisly reality is that abortion of human beings with Down syndrome is driven by a sector of society that doesn’t want disabled people to be part of society.” (Id., ¶ 43).
248. Dr. Harrison further states that “[w]ith specialized medical care some fetuses can survive outside the womb by 22 weeks with survival rates as high as 40% in some medical centers.” (Id., ¶ 56).
249. Defendants also present the declaration of Tumulesh K.S. Solanky, Ph.D. (Dkt. No. 49-8, at 1-25; Decl. of Tumulesh K.S. Solanky, Ph.D.). Dr. Solanky’s declaration discusses Dr. Lindo’s conclusions and findings, and Dr. Solanky disagrees with Dr. Lindo’s projections
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regarding the likely reduction in abortions resulting from the closing of PPAEO Fayetteville (Id., ¶¶ 8-17).
250. Dr. Solanky’s declaration does not contest Dr. Lindo’s projections of LRFP and PPAEO Little Rock’s capacity to provide abortions if the OBGYN requirement goes into effect, but he does state that Dr. Lindo’s “supplemental declaration has assumed that the maximum capacity of clinics/physicians is simply the maximum number of abortions performed” and that “[t]his is a rather biased assumption.” (Id., ¶ 54).
251. Dr. Solanky does contest Dr. Lindo’s estimate of a “17-27%” reduction in abortions due to the cessation of medication abortions in Arkansas in 2018 (Id., ¶ 10). Dr. Solanky asserts that Dr. Lindo incorrectly “assume[s] that if there [was] any reduction in abortions in 2018, then it must have been caused by [the contracted physician requirement].” (Id., ¶ 39).
252. Dr. Solanky also asserts that “there appears to be no correlation between the numbers of clinics and abortion rates.” (Id., ¶ 46).
253. Dr. Lindo presents a rebuttal declaration to respond to Dr. Solanky’s assertions (Dkt. No. 62-2, at 1-6; Rebuttal Decl. of Jason Lindo, Ph.D.). Dr. Lindo takes issue with Dr. Solanky’s assertion that Dr. Lindo incorrectly calculates the maximum capacity of abortion providers; according to Dr. Lindo, Dr. Solanky provides no justification for his criticism, and he argues that Dr. Solanky proposes no alternative capacity-calculation methodology or capacity estimates (Id., ¶ 3). Further, Dr. Lindo points out that Dr. Solanky does not respond to the fact that Dr. Lindo’s capacity estimates likely overestimate the abortion providers’ capacity to provide abortions if the challenged Acts go into effect (Id.).
254. Dr. Lindo also takes issue with defendants’ assertion that Dr. Hopkins can conduct 525 surgical abortions annually (Id., ¶ 6). Dr. Lindo points out that it is unlikely that LRFP will
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remain open if Dr. Hopkins is the only abortion provider, and he also points out that it is highly

improbable that Dr. Hopkins could spend three days a week providing abortions, as LRFP cannot

afford to hire a physician for the sole purpose of obtaining patient consents (Rebuttal Decl. of

Jason Lindo, Ph.D., ¶ 6). Dr. Lindo also points out that D&E abortions are often two-day

procedures that are more time-consuming to perform (Id.). Dr. Lindo further explains that he

understands that LRFP can provide 20-25 abortions a day under current conditions, not in a

scenario in which Dr. Hopkins is the only physician providing surgical abortions (Id.). Finally,

Dr. Lindo points out that defendants assume that all patients who will need surgical abortion care

would be able to obtain that care in the one week when Dr. Hopkins is in Arkansas, which will

occur once every two months (Id.).

255. Defendants also present the declaration of Judy McGruder (Dkt. No. 49-10, at 1-3;

Decl. of Judy McGruder). Ms. McGruder avers that she aborted a pregnancy in 2000 at LRFP (Id.,

¶ 4). Ms. McGruder previously received amniocentesis and was informed that her child would

have Down syndrome (Id., ¶ 3). Ms. McGruder regrets her abortion (Id., ¶ 11).

256. State Senator Stubblefield was the State Senate sponsor for Act 700 (Dkt. Nos. 2-

1, at 21; 4, at 31).

257. During debate before the Arkansas legislature, State Senator Gary Stubblefield and

State Senator Joyce Elliot had the following exchange:

Sen. Elliott:

“No I’m asking you is it—do you have some evidence that there has been a [medical safety] problem you are fixing, is what I’m asking.”

Sen. Stubblefield: “Not that I’m aware of.”

(Dkt. No. 4, at 31 n.94 (citing S.B. 448 Hearing Testimony)).

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258. When asked why he proposed the bill that would later become Act 700, State Senator Stubblefield responded, “I’m having this bill to prevent any further abortions.” (Id., at 47).
259. State Senator Stubblefield also stated: “And as far as how many more of these abortion bills will I bring? I’ll tell every one of you how many more I’ll bring. As long as we keep killing unborn children—innocent unborn children—I’ll keep bringing abortion bills.” (Id., at 31 n.94).
260. Under Arkansas law, only a physician licensed to practice medicine in the State of Arkansas may provide abortion care. See Ark. Code Ann. § 5-61-101(a).
261. Additionally, any woman in Arkansas seeking an abortion must be evaluated via a medical history, a physical examination, counseling, and laboratory tests. See Ark. Admin. Code 007.05.2-8(A).
262. Arkansas abortion facilities shall have written procedures for emergency transfer of a patient to an acute care facility. See Ark. Admin. Code 007.05.2-8(B). Arkansas general abortion facilities, which provide surgical abortions or both medication and surgical abortions, shall be within 30 minutes of a hospital which provides gynecological or surgical services. See Ark. Admin. Code 007.05.2-4(C); Ark. Admin. Code 007-05-2.3(J) (defining general abortion facility). Arkansas abortion facilities providing abortions must have various medical devices available to assist in the event of complications. See Ark. Admin. Code 007.05.2-8(C), (E). Finally, Arkansas abortion facilities must have a certain number of qualified personnel available to provide direct patient care. See Ark. Admin. Code 007.05.2-7.
263. Arkansas abortion facilities must satisfy a variety of ongoing obligations to educate staff about best practices to assess their own services. See Ark. Admin. Code 007.05.2-10; 007.05.2-5; 007.05-6(F),(G); 007.05.2-7(D).
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III. Conclusions Of Law When determining whether to grant a motion for a temporary restraining order, this Court considers: (1) the movant’s likelihood of success on the merits; (2) the threat of irreparable harm to the movant; (3) the balance between the harm to the movant and the injury that granting an injunction would cause other interested parties; and (4) the public interest. Kroupa v. Nielsen, 731 F.3d 813, 818 (8th Cir. 2013) (quoting Dataphase Sys. Inc. v. CL Sys., 640 F.2d 109, 113 (8th Cir. 1981)). Preliminary injunctive relief is an extraordinary remedy, and the party seeking such relief bears the burden of establishing the four Dataphase factors. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). The focus is on “whether the balance of the equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Id. “Although no single factor is determinative when balancing the equities,” a lack of irreparable harm is sufficient ground for denying a temporary restraining order. Aswegan v. Henry, 981 F.2d 313, 314 (8th Cir. 1992). The Court examines the Dataphase factors as applied to plaintiffs’ request for a temporary restraining order. See Dataphase, 640 F.2d at 113. Under Dataphase, no one factor is determinative. Id. The Eighth Circuit revised the Dataphase test when applied to challenges to laws passed through the democratic process. Those laws are entitled to a “higher degree of deference.” Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 725, 732 (8th Cir. 2008). In such cases, it is never sufficient for the moving party to establish that there is a “fair chance” of success. Instead, the appropriate standard, and threshold showing that must be made by the movant, is “likely to prevail on the merits.” Id. Only if the movant has demonstrated that it is likely to prevail on the merits should the Court consider the remaining factors. Id.
A. Analysis Of Standing
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Defendants challenge plaintiffs’ standing. For the reasons discussed below, the Court concludes that, based upon the record evidence before the Court at this stage of the proceeding, plaintiffs have standing on behalf of themselves and their patients.
1. Article III Standing To establish Article III standing, a plaintiff must satisfy three requirements: “First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotes and citations omitted). Defendants assert that plaintiffs cannot assert facial challenges on behalf of their “hypothetical future patients.” (Dkt. No. 43, at 35). Under a long established rule, however, it is “appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.” Singleton v. Wulff, 428 U.S. 106, 118 (1976); see Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2296 (2016) (deciding physicians’ and clinics’ 42 U.S.C. § 1983 action against abortion restrictions on behalf of themselves and their patients). There are many cases recognizing that an abortion provider may sue to enjoin, as violations of the United States Constitution or federal law through 42 U.S.C. § 1983, state laws that restrict abortion. “These cases emphasize not the harm to the abortion clinic of making abortions very difficult to obtain legally, though that might be an alternative ground for recognizing a clinic’s standing, but rather ‘the confidential nature of the physician-patient relationship and the difficulty
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for patients of directly vindicating their rights without compromising their privacy,’ as a result of which ‘the Supreme Court has entertained both broad facial challenges and pre-enforcement asapplied challenges to abortion laws brought by physicians on behalf of their patients.’” Planned Parenthood of Wisconsin, Inc. v. Schimel, 806 F.3d 908, 910 (7th Cir. 2015) (quoting Isaacson v. Horne, 716 F.3d 1213, 1221 (9th Cir. 2013)).
Further, the United States Supreme Court held in Doe v. Bolton, 410 U.S. 179, 188 (1973), that abortion doctors have first-party standing to challenge laws limiting abortion when, as in Doe and the current case, the doctors are subject to penalties for violation of the laws. See Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 903-04, 909 (1992) (plurality opinion); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 62 (1976); Schimel, 806 F.3d at 911.
Defendants point to Kowalski v. Tesmer, 543 U.S. 125, 129 (2004), and assert that this case stands for the proposition that third-party standing has been approved only when the litigant asserts rights of known claimants, not hypothetical ones. This argument is unconvincing, as Kowalski cites Doe v. Bolton and explicitly distinguishes third-party standing in the abortion context. 543 U.S. at 130.
Defendants also assert that plaintiffs’ lack standing because, “[w]hen a state enacts regulations to protect the health and safety of abortion patients and to promote dignity and respect for the unborn child, the interests of physicians and patients diverge.” (Dkt. No. 43, at 36). Defendants claim that this presents a conflict of interest between providers and patients, and thirdparty standing is forbidden if the interests of the litigant and the third-party rights-holder are even “potentially in conflict.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 15 (2004); see also Kowalski, 543 U.S. at 135 (Thomas, J., concurring) (noting that third-party standing is disallowed
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when the litigants “may have very different interests from the individuals whose rights they are raising”); Canfield Aviation, Inc. v. Nat’l Transp. Safety Bd., 854 F.2d 745, 748 (5th Cir. 1988) (“[C]ourts must be sure . . . that the litigant and the person whose rights he asserts have interests which are aligned.”).
This argument could be made with respect to any abortion regulation that purports to advance a valid state interest, but courts have repeatedly allowed abortion providers to challenge such laws, determining that the providers’ and women’s interests are aligned and not adverse. See, e.g., Bellotti v. Baird, 443 U.S. 622, 627 n.5 (1979) (holding that a physician plaintiff had standing to raise his minor patients’ claims to determine whether a parental consent law should be upheld to protect the alleged vulnerability of minors); Charles v. Carey, 627 F.2d 772, 779 n.10 (7th Cir. 1980) (rejecting the state’s claim of conflict of interest in a challenge to a counseling law designed to “protect women from abusive medical practices”). This argument has not defeated a providers’ standing to challenge contraception restrictions. See Carey v. Population Servs. Int’l, 431 U.S. 678, 683-84, 690 (1977) (granting third-party standing where the government defended a contraception restriction based on its interest in protecting health); Eisenstadt v. Baird, 405 U.S. 438, 445-46, 450 (1972) (allowing a plaintiff to raise the rights of others seeking contraception where the government defended a restriction as “regulating the distribution of potentially harmful articles”).
Furthermore, to the extent there is record evidence in this case that women who have had abortions regret those abortions or felt pressured into obtaining an abortion, the Court is unconvinced that such record evidence demonstrates a conflict of interest since Arkansas mandates pre-abortion counseling with informed consent, Ark. Admin. Code § 007.05.2-7 (“prior to the abortion, the patient shall be counseled regarding the abortion procedure, alternatives to abortion,
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informed consent, medical risks associated with the procedure, potential post-abortion complications, community resources and family planning” and “documentation of counseling shall be included in the patient’s medical record . . . .”), and imposes a 48-hour, soon to be 72-hour,4 waiting period between an initial consultation and an abortion.
Defendants maintain that because there is no allegation of a “hinderance” preventing plaintiffs’ patients from bringing their own suits, plaintiffs lack standing. This argument fails because the Supreme Court in Singleton states that the “hindrance” prong of the third-party standing doctrine is satisfied in abortion cases. 428 U.S. at 117.
At this stage, defendants also argue that LRFP specifically lacks standing to challenge Act 700’s OBGYN requirement because it creates “no legal impediment to [its] employment of qualified abortion practitioners.” (Dkt. No. 43, at 42). The Court is unconvinced by this argument: the Supreme Court in Hellerstedt allowed clinics to challenge a surgical-center requirement where the cost of complying with that requirement was $1.5 to $3 million per clinic. Hellerstedt, 136 S. Ct. at 2302-03.
By arguing that plaintiffs have not made sufficient efforts to comply with the OBGYN requirement, defendants are essentially arguing that the alleged constitutional injury to Arkansas women—that in a large fraction of the cases in which the OBGYN requirement is relevant, it will purportedly operate as a substantial obstacle to a woman’s choice to undergo an abortion—is not caused by defendants, but by plaintiffs. To establish standing, the injury must be “fairly traceable”
4 On April 20, 2019, Arkansas enacted a new law requiring a 72-hour waiting period between a woman’s consultation with a doctor concerning a possible abortion and any abortion procedure, except where it “will cause substantial and irreversible impairment of a major bodily function.” 2019 Ark. Acts 801, to be codified at Ark. Code Ann. §§ 20-16-1109, -1703(b), -1706. This law goes into effect on July 24, 2019. There is no record evidence that any party has challenged this new law.
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to the defendant’s conduct. Lexmark Intern., Inc. v. Static Control Components, 572 U.S. 118, 125 (2014). The record evidence at this stage indicates that plaintiffs have attempted to comply with the OBGYN requirement and have in fact been able to find some board-certified OBGYNs to provide abortion care. Some record evidence also shows, however, that those board-certified OBGYNs cannot provide enough abortion care to satisfy the need for abortion care at LRFP and PPAEO Little Rock. The Court is satisfied at this stage of the proceedings based on the record evidence before it that the OBGYN requirement—and not plaintiffs’ failure to attempt to comply with the OBGYN requirement—is the proximate cause of the impending shortfall of abortion care at LRFP and PPAEO Little Rock. Accordingly, the Court finds that the record evidence at this stage of the proceeding demonstrates that plaintiffs’ injuries are “fairly traceable” to the OBGYN requirement and that plaintiffs have Article III standing.
2. 42 U.S.C. § 1983 Standing Defendants also contend that plaintiffs cannot assert third-party rights under 42 U.S.C. § 1983 because, defendants claim, § 1983 extends only to litigants who assert their own rights. There is no language in the statute that supports this argument. See 42 U.S.C. § 1983 (providing in pertinent part, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .“). This Court agrees with the reasoning of the Seventh Circuit Court of Appeals on this point and rejects defendants’ argument regarding standing under § 1983. See Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 738 F.3d 786, 794-95 (7th Cir. 2013) (“Van Hollen III”). The Supreme Court
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has repeatedly allowed abortion providers to raise the rights of their patients in cases brought under § 1983, and this Court will do the same. See e.g., Hellerstedt, 136 S. Ct. 2292; Gonzales v. Carhart, 550 U.S. 124, 168 (2007); Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 324-25 (2006) (noting that plaintiffs raised patients’ claims in suit under 42 U.S.C. § 1983); Bellotti, 428 U.S. at 136 (same).
3. Standing To Challenge Acts’ Private Rights Of Action Defendants also contend that plaintiffs lack standing to challenge the Acts’ “private rights of action because any injury to Plaintiffs is not ‘fairly traceable’ to the Defendants.” (Dkt. No. 43, at 41). Acts 493 and 619 both contain private rights of action that allow women who have obtained abortions to bring actions against an abortion provider. See Act 493, § 1, to be codified at Ark. Code Ann. § 20-16-2006(d); Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2005(b)(1). Specifically, defendants argue that since these Acts provide for “enforcement only through private actions for damages,” this Court lacks jurisdiction over any claim against governmental actors who have no authority to enforce the private rights of action in the Acts. The Court concludes that plaintiffs do have standing to challenge the Acts because each of the challenged acts provide for criminal prosecution, civil penalties, and professional sanctions enforceable by the State. See Act 493, § 1, to be codified at Ark. Code Ann. § 20-16-2006(a)-(e); Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2005(a)-(d); Act 700, § 1, to be codified at Ark. Code Ann. § 20-16-605(b). The case cited by defendants, Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 957-58 (8th Cir. 2015), is inapposite to the present matter because there the attorney general and governor lacked authority to enforce the challenged statute. 803 F.3d at 958. Here, the challenged Acts do grant the State authority to impose criminal, civil, and professional sanctions upon abortion providers. See, e.g., Casey, 505 U.S. at 887-88 (majority
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opinion) (noting, as to spousal notification law the Court struck down, that “[a] physician who performs an abortion” for a married woman without spousal notice “will have his or her license revoked, and is liable to the husband for damages”). The private rights of action present in the challenged Acts do not deprive this Court of jurisdiction to address the constitutionality of the Acts.
B. Facial v. As-Applied Challenges Constitutional challenges to these Acts may be deemed “facial” or “as-applied” challenges. Facial challenges to statutes affecting abortions may succeed only if a plaintiff can show that “in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Casey, 505 U.S. at 895 (majority opinion); see Hellerstedt, 136 S. Ct. at 2318 (striking down an admitting privileges requirement because the law “provides few, if any, health benefits for women” and “poses a substantial obstacle to women seeking abortions”); Planned Parenthood of Arkansas & Eastern Oklahoma v. Jegley, 864 F.3d 953, 959 (8th Cir. 2017) (“[I]n order to sustain a facial challenge and grant a preliminary injunction, the district court was required to make a finding that the Act’s contract-physician requirement is an undue burden for a large fraction of women seeking medication abortions in Arkansas.”); id. at 690 n.9 (“The question here . . . is whether the contract-physician requirement’s benefits are substantially outweighed by the burdens it imposes on a large fraction of women seeking medication abortion in Arkansas.”); see also Planned Parenthood Minn., N.D., S.D. v. Rounds, 653 F.3d 662, 667-68 (8th Cir. 2011), vacated in part on reh’g en banc sub nom. Planned Parenthood Minn., N.D., S.D. v. Rounds, 662 F.3d 1072 (8th Cir. 2011) and in part on reh’g en banc sub nom. Planned Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889 (8th Cir. 2012); see also Rounds, 530 F.3d at 733 n.8 (“Rounds cases”). In Gonzales, the Supreme Court stated
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that, while the plaintiffs had failed to satisfy the “large fraction” test under Casey and were not entitled to facial relief, the challenged law would be open “to a proper as-applied challenge in a discrete case.” 550 U.S. at 168.
Having recognized this distinction in the types of challenges that may be brought, the Court also notes that the distinction between facial and as-applied challenges is not always apparent. See Hellerstedt, 136 S. Ct. at 2307 (“Nothing prevents this Court from awarding facial relief as the appropriate remedy for petitioners’ as-applied claims.”); see also Richard R. Fallon, Jr., Fact and Fiction about Facial Challenges, 99 Cal. L. Rev. 915, 922 (2011). For the reasons set forth below, at this stage of the proceeding, the Court concludes that plaintiffs are entitled to facial relief against Acts 493 and 619 and as-applied relief as to Act 700.
C. Law Directed At Pre-Viability Abortions “[I]t is a constitutional liberty of the woman to have some freedom to terminate her pregnancy.” Casey, 505 U.S. at 869. This right is grounded in the right to privacy rooted in the Fourteenth Amendment’s concept of personal liberty, which was found to be “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Roe v. Wade, 410 U.S. 113, 153 (1973). This right is not “unqualified” and is balanced “against important state interests in regulation,” eventually drawing a line between a woman’s privacy right and the State’s interest in protecting the potential life of a fetus at viability. Roe, 410 U.S. at 154. Part of Roe’s essential holding is “a recognition of the right of the woman to choose to terminate a pregnancy before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” Casey, 505 U.S. at 846.
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“A State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Id. at 879.
The Supreme Court in Gonzales acknowledged that [T]he State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, [and this premise] cannot be set at naught by interpreting Casey’s requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn. 550 U.S. at 158. The Court acknowledges that the state may, in a valid exercise of its police power, regulate abortion. The state’s police power is, however, limited where a protected liberty interest is at stake. Casey, 505 U.S. at 851 (majority opinion). “The State’s interest in regulating abortion previability is considerably weaker than postviability.” Stenberg v. Carhart, 530 U.S. 914, 930 (2000) (citing Casey, 505 U.S. at 870 (majority opinion)). Although some argued that the Supreme Court’s decision in Gonzales in which the Court chose to “assume” Casey’s principles for purposes of its opinion, may have signaled the Court’s willingness to reevaluate abortion jurisprudence, see Gonzales, 550 U.S. at 145-46, more recently, in Hellerstedt, the Supreme Court observed that viability is the “relevant point at which a State may begin limiting women’s access to abortion for reasons unrelated to maternal health.” 136 S. Ct. at 2320 (quoting Casey, 505 U.S. at 878 (plurality opinion)). The Court acknowledges that the state can impose regulations aimed at ensuring a thoughtful and informed choice, but only if such regulations do not unduly burden the right to choose. Casey, 505 U.S. at 872. Generally, the state has the burden of demonstrating a link between the legislation it enacts and what it contends are the state’s interests. See Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 430 (1983), overruled on other grounds by Casey, 505 U.S. 833 (describing
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the burden as that of the state). As a part of the Court’s inquiry, the Court may take into account the degree to which the restriction is over-inclusive or under-inclusive, see, e.g., Hellerstedt, 136 S. Ct. at 2315 (discussing over- and under-inclusive scope of the provision), and the existence of alternative, less burdensome means to achieve the state’s goal, including whether the law more effectively advances the state’s interest compared to prior law, id. (noting that prior state law was sufficient to serve asserted interest); id. at 2314 (“The record contains nothing to suggest that [the challenged provisions] would be more effective than pre-existing [state] law at deterring wrongdoers . . . from criminal behavior.”).
The Eighth Circuit Court of Appeals has previously examined arguments and record evidence related to viability and the State’s ability to restrict abortion before viability. See Edwards v. Beck, 786 F.3d 1113, 1119 (8th Cir. 2015) (per curiam); MKB Management Corp. v. Stenehjem, 795 F.3d 768 (8th Cir. 2015). The court explained that prohibitions on abortions previability, even when they contain limited exceptions, are per se unconstitutional under binding Supreme Court precedent. Edwards, 786 F.3d at 1117; MKB Mgmt., 795 F.3d at 771. In Edwards, the court invalidated a prior Arkansas law that prohibited nearly all abortions starting at 12 weeks LMP, explaining that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Edwards, 786 F.3d at 1117 (quoting Casey, 505 U.S. at 879).
In MKB Management, the court like the Supreme Court in Gonzales assumed the principles of Casey, which this Court cites. MKB Mgmt., 795 F.3d at 772 (quoting Gonzales, 550 U.S. at 146 (alteration in original) (citations omitted) (quoting Casey, 505 U.S. at 879, 878, and 877 (plurality opinion)). Further, the MKB Management Court acknowledged that, just as the court is bound by the Supreme Court’s assumption of the principles announced in Casey, the court is also
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bound by the Supreme Court’s “statement that viability is the time ‘when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus’ sustained survival outside the womb, with or without artificial support.’” MKB Mgmt., 795 F.3d at 772-73 (quoting and citing Colautti v. Franklin, 439 U.S. 379, 388 (1979)); see also Casey, 505 U.S. at 870 (plurality opinion) (“[T]he concept of viability. . . is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb. . . .”); Roe, 410 U.S. at 160, 163 (stating that a fetus becomes viable when it is “potentially able to live outside the mother’s womb, albeit with artificial aid” and that viability is the point at which the fetus “presumably has the capability of meaningful life outside the mother’s womb”). Further, this Court observes that the Supreme Court has expressly determined that a state may not “proclaim one of the elements entering into the ascertainment of viability—be it weeks of gestation or fetal weight or any other single factor—as the determinant of when the State has a compelling interest in the life or health of the fetus. Viability is the critical point.” Colautti, 439 U.S. at 388-89.
The Eighth Circuit does not stand alone in following controlling Supreme Court precedent when it comes to prohibitions on pre-viability abortions. Laws that restrict pre-viability abortions have consistently been deemed unconstitutional in courts across the United States. See Planned Parenthood of Indiana & Kentucky, Inc. v. Comm’r, Indiana State Dep’t of Health, 265 F. Supp. 3d 859, 866 (S.D. Ind. 2017), aff’d sub nom. 888 F.3d 300 (7th Cir. 2018), reh’g en banc granted, judgment vacated, 727 F. App’x 208 (7th Cir. 2018), vacated, 917 F.3d 532 (7th Cir. 2018), and cert. granted in part, judgment rev’d on other grounds sub nom. Box v. Planned Parenthood of Indiana & Kentucky, Inc., 139 S. Ct. 1780 (2019) (holding state law unconstitutional because it prohibited abortions prior to viability if the abortion was sought for a particular purpose, including solely because of the sex of the fetus, solely because the fetus has been diagnosed with or has a
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potential diagnosis of any other disability, or solely because of the race, color, national origin, or ancestry of the fetus); MKB Mgmt., 795 F. 3d at 744; McCormack v. Herzog, 788 F.3d 1017, 1029 (9th Cir. 2015) (holding state law unconstitutional because it prohibited abortions 20 or more weeks postfertilization, regardless of fetus attaining viability); Isaacson, 716 F.3d at 1217 (same); Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 201 (6th Cir. 1997) (striking down ban on most common procedure used to provide abortion in the second trimester); Jane L. v. Bangerter, 102 F.3d 1112, 1114, 1117-18 (10th Cir. 1996) (holding state law unconstitutional because it prohibited abortions 20 or more weeks gestational age); Sojourner T. v. Edwards, 974 F.2d 27, 29, 31 (5th Cir. 1992) (holding state law unconstitutional because it prohibited all abortions with few exceptions); Guam Soc’y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1368-69 (9th Cir. 1992) (same); Jackson Women’s Health Org. v. Dobbs, 379 F. Supp. 3d 549 (S.D. Miss. May 24, 2019) (preliminarily enjoining ban on abortion starting when cardiac activity is detectable), appeal docketed, Case No. 19-60455 (5th Cir. June 24, 2019); EMW Women’s Surgical Ctr. v. Meier, 373 F. Supp. 3d 807 (W.D. Ky. May 10, 2019) (holding state law unconstitutional that required performance of a fetal-demise procedure prior to evacuation phase of a dilation and evacuation abortion procedure), appeal docketed, Case No. 19-5516 (6th Cir. May 15, 2019); Bryant v. Woodall, 363 F. Supp. 3d 611, 630-32 (M.D. N.C. 2019) (holding state law unconstitutional when it prohibited most abortions after 20 weeks of pregnancy), appeal docketed, Case No. 19-1685 (4th Cir. June 26, 2019); Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536, 540 (S.D. Miss. 2018) (holding state law unconstitutional because it prohibited abortions after 15 weeks gestation except in medical emergency or in case of severe fetal abnormality), appeal docketed, Case No. 18-60868 (5th Cir. Dec. 17, 2018); Preterm Cleveland v. Hines, 294 F. Supp. 3d 746, 755 (S.D. Ohio 2018), appeal argued Case No. 18-3329 (6th Cir. Jan. 30, 2019)
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(granting preliminary injunction motion regarding constitutionality of state law prohibiting abortions based off fetal indication of Down syndrome), appeal docketed, Case No. 18-3329 (6th Cir. April 12, 2018).
Based on record evidence, “[i]t is commonly accepted in the field of OBGYN that a normally developing fetus will not attain viability until at least 24 weeks LMP. However, not all fetuses attain viability even at that stage, due to a variety of factors, such as renal agenesis (absence of kidneys), anencephaly (profound neural tube defect), and hydrocephaly (where the skull is filled with fluid).” (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 29); see also Casey, 505 U.S. at 860 (viability is weeks after 18 weeks). Defendants at this stage have come forward with no reliable, generally accepted medical or scientific record evidence to refute this. Even if the Court were willing to reconsider established precedent on fetal viability, it would not do so on this record.
Based on record evidence, only the following types of abortion care are available in Arkansas currently: medication abortions which are available only up to 10 weeks LMP, aspiration surgical procedures, performed until approximately 13 weeks LMP, and D&E surgical procedures, which are performed until 21.6 weeks LMP (Decl. of Jason Lindo, Ph.D. ¶ 11). As a result, the Court determines that Act 493 and Act 619 implicate this analysis of laws directed at pre-viability abortions.
1. Analysis Of Act 493 Act 493 of 2019 amends Arkansas Code Title 20, Chapter 15 to add an additional Subchapter 20 that bans abortion “if the probable gestational age of the unborn human being is determined to be greater than 18 weeks,” as measured from the first day of a woman’s last menstrual period in nearly all cases (“Act 493”). See Act 493, to be codified at Ark. Code Ann. § 20-16-2004(b). Act 493 specifically prohibits a person from “intentionally or knowingly”
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performing, inducing, or attempting to perform or induce an abortion, if the probable gestational age is determined “to be greater than eighteen (18) weeks’ gestation,” as measured “from the first day of the last menstrual period of the pregnant woman.” Ark. Code Ann. §§ 20-16-2004(b); 2016-2003(9).
Act 493 includes two exceptions: (1) in the case of a “medical emergency,” narrowly defined as “a condition that, on the basis of the physician’s good faith clinical judgment, necessitates an abortion to preserve the life of the pregnant woman whose life is endangered by a physical [condition] . . . or when the condition of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function,” Arkansas Code Annotated §§ 20-16-2004(b); 20-16-2003(6), (7); and (2) where the pregnancy is the result of rape or incest, as defined by Arkansas Code, Arkansas Code Annotated § 20-16-2004(b).
A violation of Act 493 constitutes a Class D felony, which is punishable by up to six years in prison and a fine of up to $10,000.00. Ark. Code Ann. §§ 5-4-201, -401, 20-16-2006(a)(1). Any physician who violates Act 493 also is subject to mandatory license suspension or revocation by the Arkansas State Medical Board. Ark. Code Ann. § 20-16-2006(b).
For the following reasons, the Court concludes that Act 493 unconstitutionally restricts pre-viability abortions and, therefore, is facially unconstitutional.
a. Act 493: Analysis Of State’s Asserted Interest As part of evaluating the benefits of a regulation, this Court must evaluate the Arkansas legislature’s findings when enacting the regulation. The Arkansas legislature, when enacting Act 493, included legislative findings and intent (Dkt. No. 2-1, at 6-9). In Hellerstedt, the Supreme Court clarified that arguments “that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law.” 136
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S. Ct. at 2310. Instead, the Supreme Court, “when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings.” Id. The Supreme Court, citing its Casey, 505 U.S. 833, and Gonzales, 550 U.S. 124, decisions, reaffirmed that a court reviews legislative fact finding under a “deferential standard” but “must not ‘place dispositive weight’” on those findings. Hellerstedt, 136 S. Ct. at 2310 (citing and quoting Gonzales, 550 U.S. at 165). The Court stated that the “Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.” Id. (emphasis in original) (quoting Gonzales, 550 U.S. at 165). Where record evidence contradicts some legislative findings, uncritical deference to the legislative factual findings is inappropriate. Id.
The Arkansas legislature made several legislative findings when enacting Act 493; the Court examines them to determine whether they conflict with the Court’s findings. The Court has given the legislature’s findings careful consideration. Here, based on the evidence presented, binding legal precedent, and the Supreme Court’s Hellerstedt majority opinion, deference to the Arkansas legislature’s factual findings would be inappropriate. Specifically, to the extent the State recites findings regarding prenatal development of a fetus, those findings contradict binding Supreme Court precedent with respect to how viability is to be determined as explained in this Order. See Act 493, § 1, to be codified at Ark. Code Ann. § 20-16-2002 (a)(2)(A) to (F) (reciting purported milestones in fetal development that do not equate with viability as defined by the Eighth Circuit Court of Appeals and Supreme Court). Because the legislative findings and any asserted State interest consistent with those findings are inconsistent with binding legal precedent related to this Court’s examination of abortion laws and viability, and because there is no competent record evidence to permit this Court to re-evaluate this precedent, the Court rejects the Arkansas
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legislature’s findings and the State’s asserted interest on this basis as unconstitutional. MKB Mgmt., 795 F.3d at 773 (quoting and citing Colautti, 439 U.S. at 388; see also Casey, 505 U.S. at 870 (plurality opinion) (“[T]he concept of viability. . . is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb. . . .”); Roe, 410 U.S. at 160, 163 (stating that a fetus becomes viable when it is “potentially able to live outside the mother’s womb, albeit with artificial aid” and that viability is the point at which the fetus “presumably has the capability of meaningful life outside the mother’s womb”)); (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 29); (Decl. of Donna J. Harrison, M.D., ¶ 56).
To the extent the State recites legislative findings purportedly drawn from Casey and Roe, those findings fail to account for controlling Eighth Circuit Court of Appeals and Supreme Court precedent as it relates to pre-viability abortion prohibitions. See Act 493, § 1, to be codified at Ark. Code Ann. § 20-16-2002(a)(3) (reciting purported holdings from Casey and Roe that disregard binding precedent related to pre-viability abortions).
To the extent the State recites legislative findings that call into question the safety of abortion, these findings are simply “incorrect.” Gonzales, 550 U.S. at 165. The evidence in this case, which is examined in more detail in subsequent sections of this Order, and in the prior cases cited by this Court including Hellerstedt, makes clear, at least at this stage of the proceeding, that the procedures are remarkably safe. On these matters, deference to the Arkansas legislature’s factual findings would be inappropriate. Id. Having resolved this, the Court turns to analyze the constitutionality of Act 493.
b. Act 493: Analysis Of Claimed Burden Because Act 493 prohibits nearly all abortions before viability, despite its limited exceptions, it is unconstitutional under controlling precedent. Edwards, 786 F.3d at 1117; MKB
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Mgmt., 795 F.3d at 771. It is the view of the Court that the undue burden test does not apply to its analysis of Act 493. This Act is far greater than a “substantial obstacle in the path of a woman’s choice,” as described in the undue burden test. Hellerstedt, 136 S. Ct. at 2312 (citing Casey, 505 U.S. at 877 (plurality opinion)). Instead, Act 493 prohibits pre-viability abortions past 18 weeks LMP, which the Supreme Court has clearly held is a prohibition that cannot be imposed by the State. Casey, 505 U.S. at 879. This Court is not alone in refusing to apply the undue burden standard when presented with state laws that unconditionally eliminate the right to abort a nonviable fetus for a defined class of women. See Isaacson, 716 F.3d 1225 (finding undue burden analysis to “have no place where” state is “forbidding certain women from choosing pre-viability abortions”).
The narrow exceptions to Act 493 do not change the constitutional analysis or this Court's determination at this stage of the proceeding. See, e.g., Casey, 505 U.S. at 879 (“Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”); Edwards, 786 F.3d at 1117 (same); Isaacson, 716 F.3d at 1227-28 (holding that “while a health exception is necessary to save an otherwise constitutional post-viability abortion ban from challenge, it cannot save an unconstitutional prohibition on the exercise of a woman's right to choose to terminate her pregnancy before viability.”).
If in any event, even if the Court were to apply the undue burden analysis and the “large fraction” test from Hellerstedt, Casey, and Jegley, considering all of the burdens presented in the record evidence at this stage of the proceedings and the controlling precedents, the Court finds that, for a large fraction of women seeking abortions in Arkansas after 18 weeks LMP, Jegley, 864 F.3d at 959, Act 493 “places a ‘substantial obstacle in the path of a woman’s choice.’” Hellerstedt,
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136 S. Ct. at 2312 (citing Casey, 505 U.S. at 877 (plurality opinion)). Act 493 prohibits nearly all abortions after 18 weeks LMP, despite its limited exceptions (Decl. of Thomas Tvedten, M.D., ¶ 42 (explaining that, if Act 493 is allowed to take effect, to avoid criminal penalties, civil suits, and disciplinary sanctions, he will stop performing abortions, as will other physicians at LRFP, in cases where the pregnancy is determined to be greater than 18 weeks LMP); ¶ 40 n.4 (examining effect of the “extremely narrow medical crisis exception”)); (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 34 (same)); (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶¶ 22-23 (same)). Ms. Williams testified that LRFP has patients who currently receive abortions who would no longer be able to obtain those services with LRFP if Act 493 goes into effect. Accordingly, for those women to whom Act 493 is an obstacle, it is an insurmountable impediment to such women receiving an abortion. Therefore, Act 493 is unconstitutional.
2. Analysis Of Act 619 Act 619 amends Arkansas Code Title 20, Chapter 16 to add an additional Subchapter 20 that prohibits a physician from intentionally performing or attempting to perform an abortion “with the knowledge” that a pregnant woman is seeking an abortion “solely on the basis” of: (1) a test “indicating” Down syndrome; (2) a prenatal diagnosis of Down syndrome; or (3) “[a]ny other reason to believe” the “unborn child” has Down syndrome. Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2003. Act 619 defines “unborn child” as “offspring of human beings form conception until birth.” Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2002(4). Ark. Code Ann. § 60-16-2002(4). The Court will use this term when discussing Act 619. However, because this definition is inconsistent with binding legal precedent related to this Court’s examination of abortion laws and viability, and because there is no competent record evidence to permit this Court to re-evaluate
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this precedent, the Court rejects the Arkansas legislature’s definition as unconstitutional. MKB Mgmt., 795 F.3d at 772-73 (quoting and citing Colautti, 439 U.S. at 388); see also Casey, 505 U.S. at 870 (plurality opinion) (“[T]he concept of viability . . . is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb . . . .”); Roe, 410 U.S. at 160, 163 (stating that a fetus becomes viable when it is “potentially able to live outside the mother’s womb, albeit with artificial aid” and that viability is the point at which the fetus “presumably has the capability of meaningful life outside the mother’s womb”). Further, Act 619’s prohibition applies to all abortions throughout the period of pregnancy, both pre-viability and subsequent to viability, with the legislature including a severability provision. Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2003(c).
The Act requires physicians, prior to performing the abortion, to ask the pregnant woman if she is aware of any test results, prenatal diagnosis, or any other evidence that the unborn child may have Down syndrome. Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2003(b)(1). If the pregnant woman knows of such evidence, the physician who is performing the abortion must inform the woman of the prohibition of abortions solely on the basis of Down syndrome; and request the woman’s medical records to determine the possibility of any previous abortions relevant to evidence of a possible Down syndrome diagnosis. Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2003(b)(2)(A)-(B). After request of the medical records, the physician is prohibited from performing the abortion for fourteen days. Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2003(b)(3).
Act 619 exempts a physician if he or she acts to: (1) necessarily save the life or preserve the health of the “unborn child” or pregnant woman, Act 619, § 1, to be codified at Arkansas Code Annotated § 20-16-2002(1)(B)(i); (2) remove a dead “unborn child” caused by spontaneous
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abortion or ectopic pregnancy, Ark. Code Ann. § 20-16-2002(1)(B)(ii); or (3) when the pregnancy resulted from rape or incest, id. § 20-16-2003(d). Violation of Act 619 constitutes a Class D felony, which is punishable by up to six years in prison and a fine up to $10,000. Ark. Code Ann. §§ 5-4-201,-401; Act 619, § 1, to be codified at § 20-16-2004. In addition, Act 619 requires that the Arkansas State Medical Board revoke the license of a physician who violates its mandate, Act 619, § 20-16-2005(c), and makes that physician liable in a civil action for actual and punitive damages to “any woman who receives an abortion in violation of [Act 619]. . . , the parent or legal guardian of the woman if the woman is an [unemancipated] minor, or the legal guardian of the woman if the woman has been adjudicated incompetent,” Arkansas Code Annotated § 20-162004(b)(1)-(2).
Act 619 exempts women from having abortions in violation of the Act from criminal prosecution and civil liability. Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2006(a). Specifically, in criminal proceedings, the woman who receives or attempts to receive an abortion in violation of the Act “is entitled to all rights, protections, and notifications afforded to crime victims.” Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2006(b). Further, in civil proceedings, “the anonymity of the woman who receives or attempts to receive the abortion in violation of this subchapter shall be preserved from public disclosure unless she gives her consent to disclosure.” Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2006(c).
For the following reasons, the Court concludes that Act 619 unconstitutionally restricts pre-viability abortions and, therefore, is facially unconstitutional.
a. Act 619: Severability The prohibition in Act 619 applies to nearly all abortions with limited exceptions throughout the period of pregnancy, both pre-viability and subsequent to viability, with the
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legislature including a severability provision. Act 619, § 1, to be codified at Ark. Code Ann. § 2016-2003(c). When confronting a constitutional flaw in a statute, a federal court must “try not to nullify more of a legislature’s work than is necessary.” Ayotte, 546 U.S. at 329. It is preferable “to enjoin only the unconstitutional applications of a statute while leaving other applications in force, or to sever its problematic portions while leaving the remainder intact.” 546 U.S. at 329 (citations omitted). Severability is a matter of state law. See Russell v. Burris, 146 F.3d 563, 573 (8th Cir. 1998). Under Arkansas law, “an act may be unconstitutional in part and yet be valid as to the remainder.” Ex Parte Levy, 163 S.W.2d 529 (1942). In determining whether a constitutionally invalid portion of a legislative enactment is fatal to the entire legislation, the Supreme Court of Arkansas looks to “(1) whether a single purpose is meant to be accomplished by the act; and (2) whether the sections of the act are interrelated and dependent upon each other.” U.S. Term Limits, Inc. v. Hill, 872 S.W.2d 349, 357 (1994). Applying this standard, the Court satisfies itself that, under the law, an examination of Act 619 with respect to pre-viability and postviability abortion would be warranted.
Based on record evidence, however, only the following types of abortion care are available in Arkansas currently: medication abortions which are available only up to 10 weeks LMP, aspiration surgical procedures, performed until approximately 13 weeks LMP, and dilation and evacuation D&E surgical procedures, which are performed until 21.6 weeks LMP (Decl. of Jason Lindo, Ph.D. ¶ 11).
Furthermore, based on record evidence, “[i]t is commonly accepted in the field of OBGYN that a normally developing fetus will not attain viability until at least 24 weeks LMP. However, not all fetuses attain viability even at that stage, due to a variety of factors, such as renal agenesis (absence of kidneys), anencephaly (profound neural tube defect), and hydrocephaly (where the
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skull is filled with fluid).” (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 29). Even Dr. Harrison, the Executive Director of AAPLOG, avers that only with specialized care can some fetus survive outside of the womb by 22 weeks, and even then the survival rate is only “as high as 40% in some medical centers.” (Decl. of Donna J. Harrison, M.D., ¶ 56). Dr. Harrison cites no source material or scientific studies in support of this assertion at this stage of the litigation.
Based on this record evidence, the Court concludes that, for purposes of challenging Act 619, because post-viability abortions are not performed in Arkansas currently, plaintiffs lack standing to challenge Act 619 as applied to post-viability abortions on the record currently before the Court. Therefore, the Court need not examine whether Act 619 is constitutional as applied to post-viability abortions. For these reasons, the Court restricts its examination of Act 619 as applied to the types of pre-viability abortions the record evidence indicates are performed in Arkansas.
b. Act 619: Analysis of State’s Asserted Interest In this case, the Arkansas legislature made no findings regarding an identified set of perceived problems with the current method of care for abortion patients that Act 619 is intended to address. There is no record evidence of the number of Arkansas women who receive a fetal diagnosis of Down syndrome and then opt to abort or carry a pregnancy to term. There is no record evidence of the number of Arkansas children born over time with Down syndrome. Further, the Arkansas legislature made no findings that Act 619 would solve such problems or do much to solve such problems, if such problems even existed. See Casey, 505 U.S. at 845-46 (majority opinion). The Court acknowledges that defendants have included record evidence of women who have had abortions claiming to regret those abortions or claiming to have felt pressured into obtaining an abortion, specifically in circumstances involving alleged diagnosis of Down
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syndrome (see Dkt. No. 49-1, at 4-27; Decl. of Judy McGruder, ¶ 11). However, current law makes clear that before viability, “the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” Casey, 505 U.S. at 845-46; see MKB Mgmt., 795 F.3d at 772.
Currently, with respect to abortion providers like plaintiffs, Arkansas mandates preabortion counseling with informed consent, Ark. Admin. Code § 007.05.2-7 (“prior to the abortion, the patient shall be counseled regarding the abortion procedure, alternatives to abortion, informed consent, medical risks associated with the procedure, potential post-abortion complications, community resources and family planning” and “documentation of counseling shall be included in the patient’s medical record. . . .”), and imposes a 48-hour, soon to be 72-hour,5 waiting period between an initial consultation and an abortion. However, undisputed record evidence confirms that abortion providers like plaintiffs typically do not provide the genetic testing or counseling with respect to Down syndrome that the Arkansas legislature intends to address with Act 619 (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 29).
Record evidence demonstrates that other medical providers, usually a woman’s family practice doctor or treating OBGYN, provide genetic testing and initial counseling and then refer a woman to a genetic counselor or maternal-fetal specialist for further testing or counseling based on the circumstances (Id., ¶ 29). As an initial matter, there is no record evidence that genetic tests during pregnancy are mandatory in Arkansas. Further, there is no record evidence that Arkansas
5 On April 20, 2019, Arkansas enacted a new law requiring a 72-hour waiting period between a woman’s consultation with a doctor concerning a possible abortion and any abortion procedure, except where it “will cause substantial and irreversible impairment of a major bodily function.” 2019 Ark. Acts 801, to be codified at Ark. Code Ann. §§ 20-16-1109, -1703(b), -1706. This law goes into effect on July 24, 2019. There is no record evidence that any party has challenged this new law.
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has taken steps to regulate the speech of relevant medical providers on this issue to ensure a thoughtful and informed choice and to advance the State’s asserted interest. Instead, the Arkansas legislature moved to prohibit abortion on this basis with Act 619.
To the extent the Arkansas legislature intends to move the point of viability to conception through Act 619, this effort is inconsistent with binding legal precedent related to this Court’s examination of abortion laws and viability, and because there is no competent record evidence to permit this Court to re-evaluate this precedent, the Court rejects the Arkansas legislature’s effort to do this as unconstitutional. MKB Mgmt., 795 F.3d at 772-73 (quoting and citing Colautti, 439 U.S. at 388); see Casey, 505 U.S. at 870 (plurality opinion) (“[T]he concept of viability. . . is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb. . . .”); Roe, 410 U.S. at 160, 163 (stating that a fetus becomes viable when it is “potentially able to live outside the mother’s womb, albeit with artificial aid” and that viability is the point at which the fetus “presumably has the capability of meaningful life outside the mother’s womb”).
Based on this, the Court concludes that Act 619 impacts pre-viability abortions when the State’s interests are not strong enough to support a prohibition of abortion.
c. Act 619: Analysis of Claimed Burdens Recently, two courts have considered provisions similar, although not identical to, Act 619. In Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner of Indiana State Department of Health, 888 F.3d 300, 306 (7th Cir. 2018), cert. denied, 139 S. Ct. 1780 (May 28, 2019), the Seventh Circuit Court of Appeals held unconstitutional a law prohibiting abortion because the law prohibited abortions prior to viability if the abortion was sought for a particular purpose, including solely because of the sex of the fetus, solely because the fetus has been diagnosed or has a potential diagnosis of any other disability, or solely because of the race, color, national origin, or ancestry of the fetus. In Preterm Cleveland, 294 F. Supp. at 755, the district
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court enjoined a law that prohibited abortions sought in whole or in part on the basis of a Down syndrome diagnosis.
Act 619 as applied to pre-viability abortions performed in Arkansas attempts to accomplish what the Supreme Court has held impermissible. Act 619 is unconstitutional on its face as applied to pre-viability abortions performed in Arkansas because it clearly violates well-established Eighth Circuit and Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right solely upon the basis on which a woman makes her decision. See Casey, 505 U.S. at 870. Before viability, “the State’s interests are not strong enough to support a prohibition of abortion.” Planned Parenthood of Indiana & Kentucky, Inc., 265 F. Supp. 3d at 867 (quoting Casey, 505 U.S. at 869 (“[a]t a later point in fetal development,”—namely viability—“the State’s interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.”)). It is the view of the Court that the undue burden test does not apply to its analysis of Act 619. Act 619 prohibits abortions prior to viability if the abortion is sought solely based on some indication, whether by diagnosis or any reason to believe, the fetus has Down syndrome. Act 619, § 1, to be codified at § 20-16-2003. This Act is far greater than a substantial obstacle, as described in the undue burden test; the Act is an absolute prohibition on certain abortions prior to viability which the Supreme Court has clearly held cannot be imposed by the State. Casey, 505 U.S. at 879 (plurality opinion). This Court is not alone in refusing to apply the undue burden standard when presented with state laws that unconditionally eliminate the right to abort a nonviable fetus for a defined class of women. See Isaacson, 716 F.3d at 1225 (finding undue burden analysis to “have no place where state is forbidding women from choosing pre-viability abortions”); Himes, 294 F. Supp. 3d at 754
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(finding state law prohibiting pre-viability abortions based on Down syndrome diagnosis unconstitutional infringement rather than appropriate law to apply undue burden test).
If in any event, even if the Court where to apply the undue burden analysis, the Court likewise finds Act 619 not only places a “substantial,” but an insurmountable, obstacle in the path of women to whom Act 619 applies seeking pre-viability abortions. As an initial matter, based on the State’s asserted interests, Act 619 is over-inclusive and under-inclusive because it prohibits nearly all pre-viability abortion based on Down syndrome when there is no record evidence that the Arkansas legislature has availed itself of alternative, less burdensome means to achieve the State’s asserted interest through regulations that do not unconstitutionally prohibit a woman’s right to choose but instead are aimed at ensuring a thoughtful and informed choice. Further, Act 619 not only “burdens” the women seeking pre-viability abortions, it completely takes away the possibility of an abortion on this basis. There is record evidence that “[m]ost women do not receive a confirmed diagnosis of Down syndrome until well into the second trimester of pregnancy.” (Dkt. No. 2-14, Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 25). Record evidence indicates that amniocentesis, which is more widely available than Chorionic Villus Sampling (“CVS”), cannot be performed until 15 weeks LMP with test results often unavailable until 17 weeks LMP (Id.). Further, record evidence supports that a clinician performing an ultrasound may not be able to detect any associated anatomical abnormalities before approximately 18 weeks LMP (Id.). The record demonstrates that “[f]etal anatomy can be assessed adequately only after about 18 weeks LMP . . . [and that] most women will not be aware of a fetal structural anomaly until at least 18 weeks LMP.” (Id., ¶ 27). This record evidence supports a conclusion that, when assessing the burden of Act 619, the group of women for whom Act 619 is relevant is a larger group post-18 weeks of pregnancy than it may be before. At least some experts observe that, operation of the
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challenged Acts at 18 weeks LMP, “will make it extremely difficult, if not impossible, for women to take the time necessary to confirm a diagnosis of Down syndrome or other fetal anomaly . . . .” (Id., ¶ 29).
The narrow exceptions to Act 619 do not change the constitutional analysis or this Court's determination at this stage of the proceeding. See, e.g., Casey, 505 U.S. at 879 (“Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”); Edwards, 786 F.3d at 1117 (same); Isaacson, 716 F.3d at 1227-28 (holding that “while a health exception is necessary to save an otherwise constitutional post-viability abortion ban from challenge, it cannot save an unconstitutional prohibition on the exercise of a woman's right to choose to terminate her pregnancy before viability.”).
Thus, even if the Court were to apply the undue burden analysis and the “large fraction” test from Hellerstedt, Casey, and Jegley, considering all of the asserted benefits and burdens presented in the record evidence at this stage of the proceedings and the controlling precedents, the Court finds that, for a large fraction of women seeking pre-viability abortions in Arkansas “solely on the basis” of: (1) a test “indicating” Down syndrome; (2) a prenatal diagnosis of Down syndrome; or (3) “[a]ny other reason to believe” the “unborn child” has Down syndrome, Act 619, § 20-16-2003, Act 619 “places a ‘substantial obstacle in the path of a woman’s choice.’” Hellerstedt, 136 S. Ct. at 2312 (citing Casey, 505 U.S. at 877 (plurality opinion)).
D. Analysis Of Act 700 Act 700 of 2019, Ark. Code Ann. § 20-16-605, provides that “[a] person shall not perform or induce an abortion unless that person is a physician licensed to practice medicine in the State of Arkansas and is board-certified or board-eligible in obstetrics and gynecology.” Ark. Code Ann.
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§ 20-16-605(a).6 Act 700 makes a violation of this requirement a Class D felony and subjects the
person to revocation, suspension, or nonrenewal of the professional license of an abortion facility
or physician. Ark. Code Ann. § 20-16-605(b). A Class D felony in Arkansas is punishable by up
to six years in prison and a fine of up to $10,000.00. Ark. Code Ann. §§ 5-4-201, -401.
Before the enactment of Act 700, the law in Arkansas already required that only a physician
licensed to practice medicine in the State of Arkansas may provide abortion care. Ark. Code Ann.
§ 5-61-101(a). As a result, plaintiffs challenge that portion of Act 700 that requires the physician
to also be board-certified or board-eligible in obstetrics and gynecology. Ark. Code Ann. § 20-
16-605(a).
For the reasons discussed below, the Court is skeptical at this stage of the proceeding and
on the record evidence before it that Act 700’s OBGYN agreement confers any benefit upon
Arkansas women in the context of abortion care. Federal constitutional protection of reproductive
rights is based on the liberty interest derived from the due process clause of the Fourteenth
Amendment. Casey, 505 U.S. at 846 (majority opinion). The United States Supreme Court, when
recognizing this right, stated:
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians,
6 Further, Section 2 of Act 700 purports to alter the definition of “viable fetus” to: “‘Viability’ means the state of fetal development when, in the judgment of the physician based on the particular facts of the case before him or her and in light of the most advanced medical technology and information available to him or her, there is a reasonable likelihood of sustained survival of the unborn child outside the body of the mother, with or without artificial life support.” Ark. Code Ann. § 20-16-702(3). This language comports with controlling Eighth Circuit and Supreme Court precedent with respect to “viability.” See MKB Management, 795 F.3d at 772-73 (quoting and citing Colautti, 439 U.S. 388; see also Casey, 505 U.S. at 870 (plurality opinion) (“[T]he concept of viability. . . is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb. . . .”); Roe, 410 U.S. at 160, 163 (stating that a fetus becomes viable when it is “potentially able to live outside the mother’s womb, albeit with artificial aid” and that viability is the point at which the fetus “presumably has the capability of meaningful life outside the mother’s womb”)). Plaintiffs do not purport to challenge this portion of Act 700.
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and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion. In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem. Roe, 410 U.S. at 116. Unless and until Roe is overruled by the United States Supreme Court, to determine whether a state statute is unconstitutional and violates substantive due process rights in this context, the Court applies the “undue burden” standard developed in Casey, 505 U.S. at 876-79 (plurality opinion), and Hellerstedt, 136 S. Ct. at 2309-11. This Court is bound to follow Eighth Circuit and Supreme Court precedent. This Court acknowledges the appeal of defendants’ “commonsense argument” that an OBGYN requirement must confer some benefit upon Arkansas women. After a critical examination of the record evidence to date, the Court ultimately rejects that argument at least at this preliminary stage of the litigation and determines plaintiffs are likely to prevail on their argument that “there [is] no significant health-related problem” Act 700 “help[s] to cure”; nor is it “more effective than pre-existing [state] law” in furthering defendants’ asserted interests. Hellerstedt, 136 S. Ct. at 2311, 2314. This finding, by itself, may be enough to conclude that the OBGYN requirement unduly burdens the right to an abortion. See Jackson Women’s Health Organization v. Currier, 320 F. Supp. 3d 828, 841 n.9 (S.D. Miss. 2018) (“Jackson IV”). The Court notes, however, that the Eighth Circuit’s decision in Jegley, 864 F.3d at 958-60, appears to require this Court to weigh benefits and burdens, even in the absence of any record evidence showing benefits caused by the OBGYN requirement. Furthermore, as Dr. Ho has withdrawn from the motion for temporary restraining
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order and/or preliminary injunction, the Court will treat the present motion as an as-applied challenge to the OBGYN requirement’s enforcement against LRFP and PPAEO Little Rock.
In the sections that follow, the Court applies the undue burden test from Casey and Hellerstedt. First, the Court examines the benefits, if any, attributable to the OBGYN requirement. Second, the Court examines LRFP and PPAEO Little Rock’s attempts to comply with the OBGYN requirement. Third, the Court considers whether the availability of out-of-state abortion clinics is relevant to the undue burden analysis. Fourth, the Court considers the burdens imposed upon Arkansas women by the OBGYN requirement. Finally, the Court weighs the benefits and burdens of the OBGYN requirement in order to determine if the OBGYN requirement places an unconstitutional “undue burden” on women.
1. Act 700: Analysis Of Asserted Benefits The Court first turns to examine the benefits, if any, of Act 700’s requirement. At the outset of this analysis, the Court acknowledges several matters. First, it is settled law that a state may enact regulations “to foster the health of a woman seeking abortion” or “to further the State’s interest in fetal life,” provided that those regulations do not impose an “undue burden” on the woman’s decision. Casey, 505 U.S. at 877-78 (plurality opinion). The relevant question before the Court is whether Act 700’s requirement provides the asserted benefits as compared to the prior law. See Hellerstedt, 136 S. Ct. at 2311 (“We have found nothing in Texas’ record evidence that shows that, compared to the prior law, . . . the new law advanced Texas’ legitimate interest in protecting women’s health.”); id. at 2314 (“The record contains nothing to suggest that [the challenged law] would be more effective than pre-existing Texas law . . . .”) (emphasis added). Therefore, the specific question at this juncture is whether requiring abortion providers in Arkansas to comply with Act 700’s requirement that the physician providing the abortion be board-certified
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or board-eligible in OBGYN furthers a legitimate interest of the state, as compared to Arkansas’ pre-existing regulations affecting abortions.
a. Examining Alleged Health-Related Problems With Medication Or Surgical Abortion In Arkansas
In Hellerstedt, the Supreme Court examined a statute that did not set forth any legislative findings. Id. at 2310. Specifically, the Supreme Court examined H.B.2’s requirement that a “physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” 136 S. Ct. at 2310 (citing Tex. Health & Safety Code. Ann. § 171.0031(a)). The prior Texas law required doctors who provided abortions to “have admitting privileges or have a working arrangement with a physician who ha[d] admitting privileges at a local hospital in order to ensure the necessary back up for medical complications.” Id. (citing 25 Tex. Admin. Code, § 139.56 (2009)); see 33 Tex. Reg. 1093 (Dec. 19, 2018) (to be codified at 25 Tex. Admin Code § 139.56).7 H.B.2 imposed an admitting privileges requirement on physicians performing both medication and surgical abortions.
When considering H.B.2’s admitting privileges requirement, defendants argued, and in Hellerstedt the Supreme Court recognized, that “[t]he purpose of the admitting-privileges requirement is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure.” 136 S. Ct. at 2311. The district court “found that it brought about
7 It is important to note that Texas has a law that prohibits hospitals from discriminating against a physician applying for privileges based on that physician’s status as an abortion provider or views as to abortion. See Tex. Occ. Code § 103.002(b). This type of statute in effect protects physicians who perform abortions from targeted discrimination when applying for admitting privileges. See, e.g., Whole Woman’s Health v. Cole, 790 F.3d 563, 596 n.44 (5th Cir. 2015); Abbott II, 748 F.3d at 598 n.13. As other courts have observed, the situation is different in states without such laws. See, e.g., June Med. Servs. LLC v. Kliebert, 158 F. Supp. 3d 473, 501 (M.D. La. 2016) (“Kliebert I”).
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no such health-related benefit,” determining that “[t]he great weight of the evidence
demonstrate[d] that, before the act’s passage, abortion in Texas was extremely safe with
particularly low rates of serious complications and virtually no death occurring on account of the
procedure.” Id. (citing Whole Woman’s Health v. Lakey, 46 F. Supp. 3d 673, 684 (W.D. Tex.
2014)). It was on this basis, as noted by the Supreme Court in Hellerstedt, that the district court
determined “there was no significant health-related problem that the new law helped to cure.” Id.
According to Hellerstedt, this conclusion was based on, among other things:
• “A collection of at least five peer-reviewed studies on abortion complications in the first trimester, showing that the highest rate of major complications—including those complications requiring hospital admission—was less than one-quarter of 1%.”
• “Figures in three peer-reviewed studies showing that the highest complication rate found for the much rarer second trimester abortion was less than one-half of 1% (0.45% or about 1 out of about 200).”
• “Expert testimony to the effect that complications rarely require hospital admission, much less immediate transfer to a hospital from an outpatient clinic. Id., at 266-267 (citing a study of complications occurring within six weeks after 54,911 abortions that had been paid for by the fee-for-service California Medicaid Program finding that the incidence of complications was 2.1%, the incidence of complications requiring hospital admission was 0.23%, and that of the 54,911 abortion patients included in the study, only 15 required immediate transfer to the hospital on the day of the abortion).”
• “Expert testimony stating that ‘it is extremely unlikely that a patient will experience a serious complication at the clinic that requires emergent hospitalization’ and ‘in the rare case in which [one does], the quality of care that the patient receives is not affected by whether the abortion provider has admitting privileges at the hospital.’”
• “Expert testimony stating that in respect to surgical abortion patients who do suffer complications requiring hospitalization, most of those complications occur in the days after the abortion, not on the spot.”
• “Expert testimony stating that a delay before the onset of complications is also expected for medical abortions, as ‘abortifacient drugs take time to exert their effects, and thus the abortion itself almost always occurs after the patient has left the abortion facility.’”
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• “Some experts added that, if a patient needs a hospital in the day or week following her abortion, she will likely seek medical attention at the hospital nearest her home.”
Hellerstedt, 136 S. Ct. at 2311 (internal record citations omitted). The Supreme Court in Hellerstedt reviewed medication and surgical abortion statistics and
research to reach its conclusion and noted that, “when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.” Id. at 2311-12. The Supreme Court observed: “This answer is consistent with the findings of the other Federal District Courts that have considered the health benefits of other States’ similar admitting-privileges laws.” Id. at 2312 (citing Planned Parenthood of Wis., Inc. v. Van Hollen, 94 F. Supp. 3d 949, 953 (W.D. Wis. 2015) (“Van Hollen IV”), aff’d sub nom Schimel, 806 F.3d 908; Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330, 1378 (M.D. Ala. 2014 (“Strange III”)).
The Eighth Circuit Court of Appeals has determined that Hellerstedt requires the Court to “weigh the state’s ‘asserted benefits’” on the record before it. Comprehensive Health of Planned Parenthood Great Plains v. Hawley, 903 F.3d 750, 758 (8th Cir. 2018) (vacating and reversing Missouri district court that relied on Hellerstedt’s analysis of the purported benefits of the Texas law without examining record evidence specific as to Missouri). As a result, this Court will examine the record before it. The record evidence before the Court at this stage of the proceeding leads the Court to conclude that plaintiffs are likely to prevail on the argument that there is “no significant health-related problem” intended to be addressed by Act 700. Hellerstedt, 136 S. Ct. at 2311.
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Plaintiffs present scientific record evidence that is generally accepted in the medical community that “[l]egal abortion is one of the safest medical procedures available in the United States.” (Dkt. No. 4, at 5; Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 21; Decl. of Linda W. Prine, M.D., ¶ 26; Decl. of Stephanie Ho, M.D., ¶ 16). This scientific record evidence includes the National Academy Consensus Study Report, prepared by the National Academy of Sciences, Engineering, and Medicine which Congress established to provide objective advice on matters relating to science and technology.8 The National Academy Consensus Study Report “determined that the risks associated with medication abortion are similar to those associated with over-thecounter anti-inflammatory drugs such as ibuprofen” and that “the risks associated with surgical abortion are extremely low, with the risk of complications being in the 0-to-5% range.” (Dkt. No. 4, at 5-6 (citing National Academy of Sciences, Engineering, and Medicine, The Safety and Quality of Abortion Care in the United States 2018, at 11, 74-75, available at https://doi.org/10.17226/24950) (hereinafter “National Academy Consensus Study Report”)). Record evidence supports that legal abortion is significantly safer for a woman than carrying a pregnancy to term and giving birth (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 28; Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 9; see National Academy Consensus Study Report at 75).
Having carefully considered at this preliminary stage the record evidence before it, the Court determines that defendants have come forward with no reliable, generally accepted medical or scientific record evidence to refute this. Instead, in an effort to counter this, the defendants assert that “[a]bortion is a dangerous business” by claiming and citing as support for that proposition that LRFP has called an ambulance for a patient 64 times in 20 years of providing
8 Our Reputation, http://www.nationalacademies.org/about/reputation/index.html (Last visited July 23, 2019).
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abortion care, claiming “an average of 3.2 calls a year.” (Dkt. No. 43, at 1, citing Decl. of Mary Silfies). First, defendants present no record evidence regarding why these ambulances were called to LRFP (Decl. of Mary Silfies, ¶ 5). Instead, defendants cite this number and presumably ask the Court to infer that these calls were for patients and related to abortion care or in some way reflect on care purportedly provided by one abortion provider in particular who is neither board-certified, board-eligible, nor an OBGYN—Dr. Tvedten (Dkt. No. 43, at 52). For reasons the Court will explain infra in this Order, the Court declines to make this inference. See Section III.D.1.b.(vi).
Second, even if this Court were to assume that the number of ambulance calls relates in some way to abortion patients and the provision of abortion care, as plaintiffs demonstrate, this purported complication rate is consistent with what is reflected in the literature that complication rates for abortion care are exceeding low. Plaintiffs presented evidence through the testimony of Ms. Williams at the July 22, 2019, hearing that, in 2016, there were three post-abortion care patient hospital transfers at LRFP; in 2017, there were no such transfers; in 2018, there were three postabortion care patient hospital transfers; and in 2019, there were two post-abortion care patient hospital transfers.
Given the number of abortion procedures performed at LRFP each year, this evidence is consistent with the findings of the Supreme Court in Hellerstedt regarding these procedures; it does not refute such evidence. Between May 1, 2016, and April 30, 2019, LRFP provided 7,010 abortions (Decl. of Jason Lindo, Ph.D., ¶ 15), and called an ambulance according to defendants ten times, if defendants’ record evidence is accepted at this stage (Dkt. No. 49-5, at 5). That equates to a 0.14%9 complication rate requiring hospital transfers; this supports and does not detract from the notion that the risks associated with abortion care are extremely low (Dkt. No. 61,
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at 37). Having examined all record evidence at this stage of the proceedings, the Court at least preliminarily concurs that “[l]egal abortion is one of the safest medical procedures available in the United States,” and Act 700 provides no benefit if intended to address a medical safety problem in Arkansas, which this Court finds does not exist on this record evidence.
This comports with concessions reportedly made by the lead sponsor of Act 700 who, when asked whether there is “evidence that there has been a [medical safety] problem” to be addressed by Act 700, reportedly stated: “Not that I’m aware of.” (Dkt. No. 4 at 37-38 (citing S.B. 448 Floor Debate)). Further, when asked why the bill leading to the enactment of Act 700 was brought forward then, the law’s lead sponsor reportedly responded that he intended for women having abortions to be treated by a doctor certified in obstetrics and gynecology, to make sure the woman has “protections,” and “to prevent any further abortions.” (Dkt. No. 4 at 37-38 (citing S.B. 448 Floor Debate)). Plaintiffs also contend that the law’s lead sponsor stated: “And as far as how many more of these abortion bills will I bring? I’ll tell everyone of you how many more I’ll bring. As long as we keep killing unborn children—innocent unborn children—I’ll keep bringing abortion bills.” (Dkt. No. 4, at 31, n. 94 (quoting S.B. 448 Hearing Testimony)).
Plaintiffs argue that “[t]his rationale is dispositive under Eighth Circuit authority: If a ‘requirement serves no purpose other than to make abortions more difficult, it strikes at the heart of a protected right, and is an unconstitutional burden on that right.’” (Dkt. No. 4, at 47 (citing Planned Parenthood of Greater Iowa, Inc. v. Atchison, 126 F.3d 1042, 1049 (8th Cir. 1997)). Further, plaintiffs contend that statements by “the sponsors and supporters of the legislation as to its central purpose” may be considered, even if “statements on the floor by legislators are not always the most persuasive indicia of legislative intent.” (Dkt. No. 61, at 35 (quoting United States v. Dean, 647 F.2d 779, 787 n.15 (8th Cir. 1981); see also Perkins v. City of W. Helena, Ark., 675
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F.2d 201, 213 (8th Cir. 1982) (“The legislative or administrative history is relevant to the issue of discriminatory intent, especially where, as here, there are contemporary statements of members of the decisionmaking body.”)). Defendants do not attempt to distinguish Atchison (Dkt. No. 43, at 46). There are no legislative findings for Act 700; there is no record evidence to suggest that the Arkansas legislature was presented with scientific evidence to support Act 700.
This, coupled with the record evidence that Arkansas has enacted more than 25 laws regulating abortion access in the State, including 12 enacted in 2019 alone, gives the Court pause with respect to the purpose of Act 700 (Dkt. No. 4, at 28, n.70, n.71). Given the stage of the proceeding and the record evidence at this stage of the proceeding, this Court will proceed to examine Act 700 by applying the undue burden analysis from Hellerstedt.
b. Examining Efforts To Establish A “Floor Of Care” The Court next turns to examine whether, even if there is no significant health-related problem with abortion that Act 700 is intended to address, there is nonetheless a benefit from Act 700. The Eighth Circuit Court of Appeals in at least one prior decision stemming from a challenge to an Arkansas abortion statute—Section 1504(d) of Arkansas Act 577 requiring that Arkansas abortion facilities providing medication abortions must “have a signed contract with a physician who agrees to handle complications” and who has “active admitting privileges and gynecological/surgical privileges at a hospital designated to handle any emergencies associated with the use or ingestion of the abortion-inducing drug,” Ark. Code Ann. § 20-16-1504(d)(1),(2) (“Section 1504(d) of Arkansas Act 577”)—suggested that this Court should consider whether the statute might be intended to set a “floor of care,” such as was present in Texas and examined by the Supreme Court in Hellerstedt. See Jegley, 864 F.3d at 960 n.9; see also Comprehensive Health of Planned Parenthood Great Plains, 903 F.3d at 758 (vacating and remanding, in part, for the district court to consider whether a “hospital relationship requirement” was a valid exercise of
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Missouri’s “inherent ‘police power’” or “legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient”) (internal citations omitted). The Eighth Circuit suggested that, under the circumstances presented in Jegley, a “legal floor” would prevent an abortion provider from, in the future, reducing their continuity-of-care practices and thus “would constitute a benefit.” 864 F.3d at 960 n.9.
The Court examines cases from other jurisdictions that compare the benefit of an abortion restriction against a purportedly pre-existing “floor of care.”10 This Court initially conducted this analysis with respect to the constitutional challenge to Act 1504(d) of Arkansas Act 577. The Court repeats that analysis here and extends that analysis to cover additional cases decided since Jegley that compare the benefit of an abortion restriction against a purportedly pre-existing “floor of care.”
(i) Examining Wisconsin Law
In Schimel, a case cited by the Supreme Court in Hellerstedt, the district court and Seventh Circuit Court of Appeals examined a Wisconsin statute that required every doctor who performed abortions to have admitting privileges at a hospital within a 30-mile radius of each clinic at which the doctor performed abortions, with the law being signed on a Friday and compliance required by the following Sunday. 806 F.3d at 911. The district court granted a temporary restraining order,
10 In addition to the cases examined here, the Court also notes that Oklahoma struck down an admitting privileges law. Burns v. Cline, 387 P.3d 348, 354 (Okla. 2016) (holding that, in the light of Hellerstedt, Oklahoma’s admitting privileges law “creates a constitutionally impermissible hurdle for women who seek lawful abortions.”). Tennessee, after Hellerstedt, agreed not to enforce an admitting privileges law that was being challenged. See Adams & Boyle P.C., et al. v. Herbert Slaterly, et al., Case No. 3:15-cv-00705, Dkt. No. 60, at 2-3 (M.D. Tenn. April 14, 2017) (agreeing to enjoin permanently enforcement of, among other things, an admitting-privileges statute that was “similar to the provision[] struck down in [Hellerstedt] . . . .”).
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Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 963 F. Supp. 2d 858 (W.D. Wis. 2013) (“Van Hollen I”), and a preliminary injunction, Planned Parenthood of Wisconsin, Inc. v. Van Hollen, No. 13-cv-465-WMC, 2013 WL 3989238 (W.D. Wis. Aug. 2, 2013) (“Van Hollen II”). The Seventh Circuit affirmed the entry of the preliminary injunction. Van Hollen III, 738 F.3d at 799. The district court then conducted a full trial, resulting in the district court imposing a permanent injunction against enforcement of the statute. Defendants then appealed, arguing that “the statute protects the health of women who experience complications from an abortion.” Schimel, 806 F.3d at 910.
On appeal, the Seventh Circuit determined that, for the proposed statute to be justified, there had to be “reason to believe that the health of women who have abortions is endangered if their abortion doctors don’t have admitting privileges.” Id. at 912. The Seventh Circuit affirmed the district court and found that “there is no reason to believe that.” Id. The Seventh Circuit observed:
A woman who experiences complications from an abortion (either while still at the clinic where the abortion was performed or at home afterward) will go to the nearest hospital, which will treat her regardless of whether her abortion doctor has admitting privileges. As pointed out in a brief filed by the American College of Obstetricians and Gynecologists, the American Medical Association, and the Wisconsin Medical Society, “it is accepted medical practice for the hospital-based physicians to take over the care of a patient and whether the abortion provider has admitting privileges has no impact on the course of the patient’s treatment.” As Dr. Serdar Bulum, the expert witness appointed in this case by the district court judge under Fed. R. Evid. 706, testified, the most important factor would not be admitting privileges, but whether there was a transfer agreement between the clinic and the hospital. As we’ve said, abortion doctors in Wisconsin are required to have such transfer agreements . . . . The treating doctor at the hospital probably would want to consult with the doctor who had performed the abortion, but for such a consultation the abortion doctor would not need admitting privileges.
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Schimel, 806 F.3d at 912 (citing the requirement in Wis. Admin. Code Med. § 11.04(1)(g) for abortion clinics to adopt transfer protocols intended to assure prompt hospitalization of any abortion patient who experiences complications serious enough to require hospitalization) (emphasis in original). There is no mention in Schimel of any “floor of care” other than the transfer agreement requirement. There is no mention of any admitting privileges requirement, other than the requirement challenged and enjoined by the court.
The Schimel Court further concluded based on record evidence presented and cited by the court that “complications from abortion are both rare and rarely dangerous—a fact that further attenuates the need for abortion doctors to have admitting privileges.” Id. at 912 (citing record studies and evidence). The court observed that abortion clinics uniquely among outpatient providers of medical services in Wisconsin were required to adopt transfer protocols. Id. at 913. The court observed that defendants “presented no other evidence of complications from abortions in Wisconsin that were not handled adequately by the hospitals in the state.” Id. The court rejected the argument that such admitting privileges within 30 miles of a clinic were required to ensure the “Good Housekeeping Seal of Approval” on doctors. Id. at 915. Further, the court rejected the argument that admitting privileges improved continuity-of-care. Id. (“But nothing in the statute requires an abortion doctor who has admitting privileges to care for a patient who has complications from an abortion . . . .”).
(ii) Examining Alabama Law Alabama’s statute requiring abortion providers to obtain staff privileges at a local hospital has a long history, which this Court examined in Jegley. 11 In Strange III, the other case cited by
11 Alabama’s staff privileges law was declared to restrict unconstitutionally the rights of women seeking abortions in Alabama. Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1381 (M.D. Ala. 2014) (“Strange IV”) (supplementing liability opinion with evidentiary findings);
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the Supreme Court in Hellerstedt, the district court examined an Alabama law requiring “every doctor performing abortions in Alabama to ‘have staff privileges at an acute care hospital within the same standard metropolitan statistical area as the facility is located that permit him or her to perform dilation and cutterage, laparotomy procedures, hysterectomy, and any other procedures reasonably necessary to treat abortion-related complications.’” 33 F. Supp. 3d at 1336. A clinic administrator who knowingly and willfully operated an abortion clinic with doctors who did not have such privileges faced felony criminal liability, and the State of Alabama could revoke the clinic’s license for violations of the law. Id.
Relevant to the issue of an established “floor of care,” prior to the challenged law, to be qualified to perform an abortion in Alabama, the physician had to either “have completed a residency or fellowship that included abortion training;” had to “maintain admitting privileges at a United States hospital that allow[ed] her to perform abortions at that hospital;” or had to “provide verification from a disinterested, properly trained physician that she has sufficient skill at performing abortions.” Planned Parenthood Se., Inc. v. Strange, 9 F. Supp. 3d 1272, 1276 (M.D. Ala. 2014) (“Strange II”). The pre-existing regulations in Alabama also included other specific provisions, including requiring the physician to remain at the clinic until the last patient left; providing the patient, after she leaves the clinic, with access to a 24-hour answering service that would immediately refer calls about complications to a qualified nurse, nurse practitioner, physician assistant, or physician; and to record every such call. Id. at 1276. Further, the law also required that each abortion clinic “have a physician on staff who has admitting privileges at a local
Strange III, 33 F. Supp. 3d at 1378 (finding that the staffing privileges requirement was unconstitutional as applied to plaintiffs); Strange II, 9 F. Supp. 3d at 1276 (summary judgment opinion laying the foundation for the application of the undue-burden test); Planned Parenthood Se., Inc. v. Bentley, 951 F. Supp. 2d 1280, 1290 (M.D. Ala. 2013) (“Strange I”) (temporarily enjoining the enforcement of the staff privileges requirement).
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hospital or to maintain a written contract with a ‘covering physician.’” Id. at 1277. The then ineffect regulations required the covering physician to “have admitting privileges that permit her to perform ‘dilation and curettage, laparotomy procedures, hysterectomy, and any other procedures necessary to treat abortion-related complications’ at a hospital within the same metropolitan statistical area as the clinic” and that the affiliated doctor with admitting privileges be available “for 72 hours after the procedure to treat any complications that may arise” when performing abortions. Id.
In Strange III, the State argued that the staff-privileges requirement had two “strong justifications,” both related to an interest in protecting women’s health. 33 F. Supp. 3d at 1341. First, the State argued the requirement ensured proper care for complications, and second, the State argued the requirement had a secondary benefit of “‘credentialing’ high quality doctors.” Id. In regard to continuity-of-care, the district court identified this concept as “the goal of ensuring that a patient receives high-quality care not only during a certain procedure but also after it, including treatment of complications and any necessary follow-up care” but conceded from the evidence “this is a somewhat elusive concept.” Id. at 1363.
According to the Strange III court, three models emerged for ensuring continuity-of-care. There, the court termed these the first model, the second model, and the third model, also referring to the third model as the “country-doctor model.” Id. at 1364-65. According to the court, the first model relies upon the 24-hour telephone access to a doctor or nurse at the abortion clinic at any time. Id. at 1364. Under this model, the doctor or nurse may give instructions for in-home treatment, schedule the woman for a follow-up visit at the clinic, or, if appropriate, direct the woman to the nearest emergency room to be assessed immediately or treated. Id. If a patient needs to be transferred directly to a hospital from the clinic, which the court found is an admittedly rare
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circumstance, the abortion doctor should communicate with the emergency room doctor to provide continuity-of-care. Id. at 1364-65.
Under the second model, there is a covering physician or a doctor with admitting privileges. Id. at 1365. The court recognized that the baseline of Alabama’s law regulating abortion providers at the time fell under this model. Id. Under this model, the doctor who performs the procedure may arrange for a covering doctor to provide follow-up care for any complications that may arise after the procedure. Even under this procedure, however, if it is an urgent situation, the record evidence in Strange III established that it was more important for a patient to go to the nearest emergency room than to be treated by the initial doctor or covering physician. Id.
The third model or “country-doctor” approach required the physician who performed the initial procedure to provide consistently most care for complications that may arise, rather than relying on a covering physician, a transfer agreement, or the emergency room. 33 F. Supp. 3d at 1365. A specialist may need to be brought in for certain treatments, but the original doctor would handle nearly all complications. Id. The State argued, and the court agreed, that the challenged admitting privileges law fell into this category. Id.
Based on the evidence presented, the court determined that the third model advocated by the State fell “outside that range of disagreement” within the medical community regarding the appropriate model of complication care for minor surgeries and medication-based procedures, like early term abortion. Id. at 1364. In making this determination, the Strange III court recognized this about the nature and treatment of abortion complications:
Most complications from such [early term] abortions closely resemble the complications from early-term miscarriages. The common complications from miscarriages, as well as medication and early-term surgical abortions, are bleeding, infection, and cramps. These complications sometimes arise because fetal tissue remains in the uterus or because the cervix fails to close fully after the fetal tissue
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is expelled. The treatment for these complications is the same, regardless of how the pregnancy ended.
In extremely rare instances, other complications may arise which could not occur from a miscarriage. In the case of a medication abortion, an allergic reaction to the abortion drugs was the only possibility suggested by the evidence in this case. For a surgical abortion, it is possible that an instrument may perforate or lacerate the uterus.
Most complications from early-term abortions do not require hospital treatment. Most minor complications which arise during the course of an early-term surgical abortion are treated at the abortion clinic before the patient is discharged. Moreover, as discussed above, most complications that arise after a patient has been discharged are best treated with over-the-phone instructions, prescription medication from a pharmacy, or a follow-up visit to the abortion clinic. However, even when hospital care is unnecessary, patients will sometimes seek emergencyroom treatment without first contacting the provider. Indeed, in some cases, the woman may not be suffering from any complication at all, but may simply need reassurance.
For the majority of complications which do require hospitalization, the appropriate treatment may include intravenous antibiotics or a further dilation and curettage to empty the uterus completely. The staff-privileges provision requires all abortion doctors to have local-hospital privileges that allow them to perform two specific, additional gynecological procedures: hysterectomy and laparotomy. Rare circumstances, such as a suspected uterine perforation, may require a laparotomy or the similar but less invasive laparoscopy, each of which involves examining the uterus or cervix and repairing any damage. In certain other extreme situations, a hysterectomy, or removal of the uterus, may be necessary. It is extremely rare that either a hysterectomy or laparotomy would be necessary following an abortion, even a later-term abortion. Indeed, with approximately 9,000 abortions performed in Alabama each year, in most years not a single early-term abortion in the State would require either procedure.
Id. at 1365-66 (emphasis in original).
The Strange III court determined that the initial-screening aspect of the credentialing
function provided negligible benefit, as compared to Alabama’s pre-existing law. Id. at 1373.
Further, the court determined that it was “left with the speculative assertion that hospital oversight,
through staff privileges, would actually ensure that the physicians and clinics” would provide high-
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quality care and be an “effective supplement to the Department of Public Health oversight.” 33 F. Supp. 3d at 1376. The court concluded that, to determine whether a regulatory decision grounded in such speculation would be an acceptable use of the State’s police powers, the court was required to engage in the balancing test applied to abortion regulations. Id. As a result of engaging in that balancing test, the Strange III court concluded that, “[i]n the light of the severity of the obstacles presented by the requirement and the weakness of the State’s justifications,” the “obstacles imposed by Alabama’s staff-privileges requirement are ‘more significant than is warranted by the State’s justifications for the regulation.’” Id. at 1378. The case was decided by the Honorable Myron H. Thompson.12
Later, in 2015, a licensed abortion clinic and doctor brought a challenge against an Alabama health officer claiming that Alabama’s “floor of care” regulation—that to perform abortions a doctor had to have admitting privileges at a local hospital or the clinic had to contract with a covering physician who had such privileges—was unconstitutional as applied to the clinic and doctor. W. Ala. Women’s Ctr. v. Williamson, 120 F. Supp. 3d 1296, 1303, 1303 (M.D. Ala. 2015). This case also was assigned to Judge Thompson. The challenged regulation had been in effect since 2007. Id. at 1300. It would have been superseded by the admitting privileges requirement challenged and struck down by Judge Thompson in Strange III. Id. at 1300-01.
Five abortion clinics operated in Alabama at the time of Williamson, a case that followed Strange III. Two clinics had physicians on staff who had local admitting privileges, and three operated by having a contract with a covering physician. Those three clinics that operated by
12 Defendants appealed Judge Thompson’s ruling in Strange III. On July 15, 2016, on the grounds that “Alabama’s law is identical in all relevant respects to the law at issue in [Hellerstedt],” defendants moved to dismiss the appeal because they no longer had a “good faith argument that the law is constitutional under controlling precedent.” Planned Parenthood Se., Inc., et al., v. Luther Strange, et al., No. 16-11867, at 6 (11th Cir. 2016, July 15, 2016).
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having a contract with a covering physician sued to enjoin the admitting privileges law as applied to the three clinics. Id. at 1301.
Until December 2014, the clinic in Tuscaloosa complied with Alabama’s “floor of care” regulation by having a doctor on staff with local admitting privileges. Id. That doctor retired in December 2014. Id. The Tuscaloosa clinic hired a replacement doctor, but that doctor lacked local admitting privileges. 120 F. Supp. 3d at 1301. Further, the Tuscaloosa clinic could not find a covering physician willing to contract with it. As a result, it brought an as applied challenge to Alabama’s “floor of care” regulation. Id. at 1301-02.
The Tuscaloosa clinic operated for 20 years, providing reproductive health services, including abortions, birth control, treatment for sexually transmitted infections, pregnancy counseling, and referral for adoption. Id. at 1302. By 2013, 40% of all abortions in Alabama took place at the Tuscaloosa clinic, far more than any other clinic in the state. In fact, during that time, the Tuscaloosa clinic performed almost two and a half times more abortions than the next Alabama clinic. Id. Further, about 80% of abortion procedures performed there were performed prior to 10 weeks postfertilization, with almost 96% of abortion procedures being performed before 16 weeks postfertilization. About 4% of abortions were performed mid-second trimester. Id. It was only one of two clinics in Alabama that performed abortions throughout the first 20 weeks postfertilization, and it provided around 75% of Alabama’s mid-second-trimester abortions. Id.
During its 20 years of operation, the Tuscaloosa clinic had never been placed on probation, suspended, or revoked for failure to meet any safety regulation. Id. Further, during the most recent five year period, less than one-tenth of 1% of its patients were transferred to a hospital for observation or complication. 120 F. Supp. 3d at 1302. The clinic had never been closed for failing to treat its patients. Id.
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After its long-time doctor retired, the clinic hired Dr. Parker, a replacement doctor who was board-certified in obstetrics and gynecology with subspecialty training in family planning, contraception, and abortion. Id. at 1303. He had over 20 years of experience in women’s health, was on the faculty of Northwestern School of Medicine, and held admitting privileges there. Id. He performed abortions in a number of states, including Alabama and Mississippi, and when hired was providing abortions at the Montgomery clinic. Id. This doctor attempted to obtain admitting privileges himself in Tuscaloosa. Id. He was unable to do so because the hospital there required him to perform a number of hysterectomies and laparotomies, but according to the court “the reality is that, because Dr. Parker is a full-time abortion provider and because complications from abortions are so rare, he would never be able to do the required amount of procedures.” 120 F. Supp. 3d at 1303. The record evidence indicated that, of the estimated 10,000 abortions Dr. Parker performed in the three years prior on women up to 20 weeks postfertilization, only two were transferred to the hospital, and one was transferred for observation only. Id. Dr. Parker had never had a patient who needed a hysterectomy from an abortion complication. Id.
Dr. Parker made a good faith effort to work with the hospital board, offering to perform the requisite number of procedures on other patients; he could not satisfy the requirement by performing the procedure on his own patients, because his own patients would not need them due to the low complication rate from abortion. Id. Record evidence indicated that an agreement appeared to be reached to satisfy the hospital board’s requirement in this way, but that agreement never materialized and instead quickly fell apart. Id. The hospital board reiterated its demand that Dr. Parker satisfy the required procedures by performing them on his own patients. Id. As the court recognized, this was “an impossible task for a full-time abortion provider . . . given the low number of complications from abortion.” 120 F. Supp. 3d at 1303.
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Dr. Parker and the Tuscaloosa clinic then attempted to contract with a covering physician instead. Id. at 1304. None of the physicians in the area agreed to contract, some citing antiabortion views or the fear of reputational harm. Id. Dr. Parker and the Tuscaloosa clinic then applied for a waiver, citing Dr. Parker’s safety record and the clinic’s policies and procedures in place if complications were to arise, including a 24-hour hotline and a protocol for the clinic to communicate with any treating physicians at emergency rooms. Id. The request for waiver was denied. Id.
The court enjoined enforcement of Alabama’s “floor of care” regulation as applied to the Tuscaloosa clinic, concluding that plaintiffs had a substantial likelihood of success on their argument that the Alabama “floor of care” regulation would have imposed an undue burden on a woman’s right to choose to have an abortion in violation of the Due Process Clause of the Fourteenth Amendment. Id. at 1306-07. The court first examined the burdens. 120 F. Supp. 3d at 1307-12. The court then turned to examine the justifications for the challenged regulation. Id. at 1312.
Alabama justified the challenged regulation by claiming that the regulation was “meant to ensure that women who obtain abortions receive adequate complication-related care” and do so “by authorizing two alternative models for continuity of care.” Id. at 1312. The court then analyzed the three possible models for continuity-of-care first articulated in Strange III. Id. at 1312-13. Plaintiffs argued that the Tuscaloosa clinic’s protocol was sufficient to ensure adequate continuity-of-care and that requiring the clinic to contract with a covering physician would not benefit patient health in any meaningful way. Id. at 1313. Plaintiffs argued this based on Dr. Parker’s “extraordinary safety record” and the clinic’s emergency-care protocol which it claimed was as effective at ensuring high-quality continuing of care as the covering physician model. Id.
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The court reaffirmed its determination that “complications from early-term abortions which are the vast majority of the procedures performed at the [Tuscaloosa clinic] are ‘vanishingly rare.’” Id. at 1314. The court cited statistics that only 0.89% of first trimester abortions cause any complication of any kind and that only 0.05% of first trimester abortions cause a complication that requires hospital-based care. Id. The court concluded that “clinics do not make frequent use of their covering physicians because the procedures they perform are extremely safe and because, where possible, the clinics themselves provide complication care.” Id. (citing Strange III, 33 F. Supp. 3d at 1370 n.23).
Further, the court observed: Moreover, when a complication requires hospital admission, the regulation itself does not guarantee that a clinic patient would ever be seen by the covering physician, even if the Center were to contract with one. First, the regulation itself does not actually require a clinic to make use of the covering physician in the case of any complication: to comply with the regulation, a clinic need only maintain a contract promising the covering physician’s availability. Second, if a patient who experiences complications lives outside the Tuscaloosa area—as do at least some of the Center’s patients—the fact that the Center might have a contract with a covering physician who could admit her to the Tuscaloosa hospital is unlikely to affect her complication-related care in any way, as she will (and should) seek emergency care closer to home. Id. (emphasis in original). In the case of a patient transferred directly from the clinic to the hospital, the clinic was already required to “alert 911 and the hospital to the pending transfer; to provide the hospital’s emergency department with necessary information about the patient’s case; and to send a copy of the patient’s medical records to the hospital along with the patient.” Id. The emergency room doctor and staff, along with a hospital specialist, might examine the patient. Id. at 1314-15. The clinic would “communicate directly with the hospital and Dr. Parker would be available for
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consultation with the hospital’s physicians at any time during the patient’s course of treatment.” 120 F. Supp. 3d at 1315.
If a contracted physician relationship existed, the court acknowledged the likely scenario that Dr. Parker would contact that contracted doctor at the soonest possible point in the process, that contracted doctor would meet the patient at the hospital to assume care, and that contracted doctor would in theory have a relationship with Dr. Parker. Id. Although, as the court observed, because complications from abortion procedures are rare, it is unclear whether Dr. Parker would be in regular communication or have a relationship with the contracted physician in reality. Id.
The court also noted that, if there were a contracted physician and if that contracted physician had staff privileges at the hospital nearest to the patient, then Dr. Parker and clinic staff might notify the contracted physician so that she could admit the patient to the hospital herself. Id. However, as the court determined, nothing in Alabama’s regulation required Dr. Parker and the clinic staff to do so. Id.
Even if Dr. Parker and the clinic staff notified the contracted physician, the court determined that “there is no guarantee that the covering physician will reach the hospital to admit the patient before the patient is assessed or treated by the emergency-room physicians; that the covering physician will be any more knowledgeable about the patient or her condition than would be the hospital physician; or that the covering physician will be any more qualified to treat the patient than would be the hospital physicians.” Id. Further, the court determined that, because Dr. Parker and clinic staff continue to advocate for the patient directly with the hospital and provide consultation as necessary, the patient has an advocate for her care even after a transfer to the hospital. 120 F. Supp. 3d at 1315.
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The court also concluded the clinic’s policies ensured that patients received adequate continuity-of-care after discharge from the clinic. Id. The court determined that the current practice required that Dr. Parker be accessible for at least 72-hours following any procedure. Id. “[P]atients are provided 24-hour telephone access to the Center’s medical staff.” Id. The court found that the patient could speak to a nurse or to Dr. Parker. Id. If the patient needed to be assessed immediately, the court noted that the nurse or Dr. Parker could advise the patient to go to the nearest hospital. Id. Further, the nurse or Dr. Parker could call the hospital ahead to provide any pertinent information about the patient or provide his contact information to the patient to provide to the hospital along with the request that the patient ask the hospital to contact Dr. Parker. Id. As a result of this benefits analysis, when weighed against the burdens of the regulation, the court enjoined the regulation as applied to Dr. Parker and the Tuscaloosa clinic. Id. at 1320.
(iii) Examining Louisiana Law Likewise, in Kliebert I, the district court examined Louisiana’s Act 620 which required every doctor who performed abortions in Louisiana to have “active admitting privileges” at a hospital within 30 miles of the facility where the abortions were performed. 158 F. Supp. 3d at 484. The district court, given the controlling law of the Fifth Circuit at that time, applied rational basis review to determine whether Act 620 was rationally related to a legitimate state interest. Id. at 485. In Kliebert I, doctors performing abortions at Louisiana’s abortion clinics could not comply with the admitting privileges law, despite being given time to attempt to do so. Id. at 506-07. The court observed that there was no state or federal statute governing the rules for granting or denying hospital admitting privileges in Louisiana and that the process and rules varied from hospital to hospital. Id. at 491-92. Further, the court determined there was “no Louisiana statute which
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prohibits a Louisiana hospital or those individuals charged with credentialing responsibilities from deciding an application for admitting privileges based on the applicant’s status as an abortion provider,” regardless of the provider’s competency. Id. at 495. In addition, Louisiana had no maximum time period within which applications had to be acted upon, so a hospital could effectively deny an application for admitting privileges by failing to act on it, without expressing the true reasons or any reasons for doing so. 158 F. Supp. 3d. at 533.
Based on record evidence, the court determined that Louisiana’s abortion providers were not given privileges or given only limited privileges that did not meet the statutory requirement. See id. at 489. The resulting effect was an undue burden on the right of a large fraction of Louisiana women to an abortion, based on the record evidence. Id. at 533. As a result, the court determined Louisiana’s Act 620 was facially unconstitutional. Id.
The Fifth Circuit Court of Appeals granted a stay of the district court’s injunction pending appeal. 814 F.3d 319 (5th Cir. 2016). The Supreme Court vacated the stay entered by the Fifth Circuit Court of Appeals, effectively reinstating the district court’s injunction. 136 S. Ct. 1354 (2016). After remand, the district court conducted a bench trial and held that the requirement placed an undue burden on women’s due process right to choose an abortion, permanently enjoining enforcement of the active admitting privileges requirement. 250 F. Supp. 3d 27 (M.D. La. 2017). The Fifth Circuit Court of Appeals determined that the admitting privileges requirement did not impose a substantial obstacle in the path of a large fraction of all women seeking abortions in Louisiana. 905 F.3d 787, 815 (5th Cir. 2018). The Supreme Court stayed the mandate of the Fifth Circuit, pending timely filing and disposition of a petition for a writ of certiorari. 139 S. Ct. 663 (2019). Petitions for writ of certiorari have been docketed, but the Supreme Court has not made a determination yet.
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(iv) Examining Mississippi Law In Jackson Women’s Health Organization v. Currier, 878 F. Supp. 2d 714 (S.D. Miss. 2012), (“Jackson II”), the district court first examined Mississippi’s House Bill 1390 (“H.B. 1390”) in a challenge brought by an abortion clinic and physicians associated with it; H.B. 1390 required physicians to have admitting and staff privileges at a local hospital and to be boardcertified in obstetrics and gynecology. Defendants cite certain of these decisions in its response to plaintiffs’ current motion. In Jackson, plaintiffs initially sought and obtained a temporary restraining order to block the effective date of H.B. 1390. Jackson Women’s Health Org. v. Currier, Case No. 3:12-cv-436-DPJ-FKB, 2012 WL 2510953 (S.D. Miss. July 1, 2012) (“Jackson I”). Then, the court examined whether to grant a preliminary injunction. 878 F. Supp. 2d at 714. At the time H.B. 1390 was enacted, only one doctor had admitting and staff privileges, and he had a regular, private practice and did not provide the majority of abortions. Id. at 715. Instead, the two doctors who provided the majority of the clinic’s services did not have admitting or staff privileges, though they had actively been seeking them since the passage of H.B. 1390. Id. The district court analyzed the relevant factors for granting injunctive relief, and the district court granted the motion for preliminary injunction in part. The court determined that “if these two doctors stop performing abortions for non-speculative fear of prosecution, it would create an ‘undue burden’ and irreparable harm.” Id. at 717-18. The district court permitted H.B. 1390 to take effect but determined that plaintiffs not be subject to the risk of criminal or civil penalties at the time the injunction issued or in the future for operating without the relevant privileges during the administrative process. Id. at 720. After plaintiffs “unsuccessfully exhausted all available avenues to comply with” H.B. 1390, the State of Mississippi indicated that it would revoke the clinic’s license following a
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hearing. 940 F. Supp. 2d 416, 417 (S.D. Miss. 2013) (“Jackson III”), order clarified, 2013 WL 12122002 (S.D. Miss. Aug. 13, 2013),13 affirmed as modified, 760 F.3d 448 (5th Cir. 2014). The district court observed that, “[a]t all relevant times,” the plaintiff clinic “has been the only abortion clinic in the State of Mississippi, and only one of its doctors holds admitting privileges. That doctor ha[d] a separate, private OB/GYN practice and provide[d] only minimal care at the [c]linic. The two doctors providing the vast majority of the [c]linic’s abortions lacked admitting or staff privileges when the Act passed.” Id. at 417-18.
Plaintiffs reported that the two doctors who provided the majority of care at the clinic had applied for privileges at every local hospital. Id. at 418. “Two hospitals refused to provide applications, and all others rejected the doctors’ applications because they perform[ed] elective abortions.” Id. As a result, the State of Mississippi intended to close the clinic, according to the district court. Id. Plaintiffs requested only that the district court “enjoin all forms of enforcement of the Admitting Privileges Requirement” of H.B. 1390. Id. The district court granted plaintiffs’ motion and enjoined the Admitting Privileges Requirement of H.B. 1390. Id. at 424.
The Fifth Circuit Court of Appeals affirmed and enjoined the requirement that “[a]ll physicians associated with the abortion facility must have admitting privileges at a local hospital and staff privileges to replace local hospital on-staff physicians.” 760 F.3d at 450. Prior to H.B. 1390’s enactment, Mississippi law required that “abortion facilities have only a transfer agreement with a local hospital, a written agreement for backup care with a physician with admitting privileges, and at least one affiliated doctor with admitting privileges.” Id. (citation omitted).
13 The district court was asked in a Federal Rule of Civil Procedure 52(b) motion to clarify its preliminary injunction order with respect to a determination regarding whether H.B. 1390 as an “unnecessary” health regulation; the court granted the motion in part to clarify its prior ruling, but as defendants had not argued initially that the regulation was “necessary,” the court offered no analysis on that point. 2013 WL 12122002, at *2 (S.D. Miss., Aug. 13, 2013).
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Because the record evidence supported that the doctors performing abortions at Mississippi’s only abortion clinic in Jackson could not comply with the admitting privileges law, despite being given time to attempt to do so, the record indicated the only abortion clinic in Mississippi would close. Id. at 450-53. The district court, and the Fifth Circuit, determined plaintiffs met the undue burden requirement in the as-applied challenge and enjoined enforcement of the law. Id. at 455, 459. According to the Fifth Circuit, both the district court and the Fifth Circuit applied rational basis review to the proposed regulation as then required by controlling Fifth Circuit; the Supreme Court in Hellerstedt later rejected that lower level of scrutiny for abortion regulations. Id. at 455, 459.
In 2018, plaintiffs filed an action seeking an order declaring the OB-GYN requirement of H.B. 1390 facially unconstitutional and requesting clarification of the district court’s prior order with respect to admitting privileges, seeking to have the district court’s injunction applied statewide and not only to plaintiffs. Jackson IV, 320 F. Supp. 3d at 832. The district court modified its injunction to reflect that H.B. 1390’s admitting privileges requirement was enjoined statewide but denied the request to declare the OB-GYN requirement unconstitutional. Id. at 841-42. According to the district court,”[t]o make that claim, Plaintiffs must show that the law creates a substantial obstacle to the right to choose for a large fraction of women for whom the law is relevant. Yet since the law was enacted, the number of abortions Plaintiffs perform[ed] ha[d] increased by 17%.” Id. at 832.
For purposes of this Court’s analysis at this stage, the Court focuses on the benefits of the OB-GYN requirement the Jackson IV district court identified and those it rejected. Id. at 837-38. The district court, based on the record evidence before it, determined that defendants had “shown that the ob-gyn requirement provides some benefit to women’s health in that it ensures that physicians performing abortions in Mississippi abortion clinics are specialists in women’s
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healthcare who are trained to perform abortions or their equivalents.” Id. at 837. However, as the district court explained, that finding alone did not satisfy the Hellerstedt inquiry. Id. Instead, the district court was required to assess whether “the new law advance[s the state’s] legitimate interest in protecting women’s health” “compared to prior law.” Id. (quoting Hellerstedt, 136 S. Ct. at 2311). Further, the district court observed that H.B. 1390 permitted board-eligible physicians to perform abortions, not just board-certified doctors. Id.
Having examined those factors, the district court concluded that “the ob-gyn requirement produces no benefit to Mississippi women as compared to prior law.” Id. at 838. Specifically, the district court explained that, “[u]nder prior Mississippi law, all physicians associated with an abortion facility must have either ‘completed a residency in family medicine, with strong rotation through OB/GYN,’ ‘completed a residency in obstetrics and gynecology,’ or had ‘at least one year of postgraduate training in a training facility with an approved residency program and an additional year of obstetrics/gynecology residency.’” Id. at 837 (quoting Miss. Code R. § 15-16-1: 44.1.5(24)). Further, based on record evidence “board eligibility requires graduation in good standing from an ob-gyn residency program, but it does not require the experience necessary to sit for the American Board of Obstetrics and Gynecology oral exam or actually passing that exam.” Id. As a result, the district court determined that defendants failed to explain how these boardeligibility requirements were more effective than pre-existing Mississippi law that already required substantial training in obstetrics and gynecology. Id. (citing Hellerstedt, 136 S. Ct. at 2314).
The district court then turned to examine the burdens plaintiffs contended H.B. 1390’s OBGYN requirement imposed and rejected plaintiffs’ arguments. Id. at 838-840. As a result, as the district court observed, it was “left with a challenged law that provide[d] no demonstrated benefit compared to prior law, but which place[d] no substantial obstacles in the path of a large
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fraction of women to whom it is relevant.” Id. at 841 & n.9 (discussing difficulties the district court observed in applying Hellerstedt). As a result, the district court therefore declined to enjoin the OBGYN requirement. Id. at 841-42.
(v) Arkansas “Floor of Care” Under Act 700 The Court turns now to examine the concept of a “floor of care” with respect to the challenge to Act 700. Before the enactment of Act 700, the law in Arkansas already required that only a physician licensed to practice medicine in the State of Arkansas may provide abortion care. Ark. Code Ann. § 5-61-101(a). Requiring abortion providers to be licensed medical doctors in the State of Arkansas ensures regulation of the profession by the Arkansas State Medical Board. See Ark. Admin. Code 0600.00.1-16 (“the Arkansas State Medical Board may revoke or suspend a license if the practitioner is grossly negligent and becomes physically incompetent to practice medicine to such an extent as to endanger the public.”). The Arkansas State Medical Board’s “mission is to protect the public and act as [the public’s] advocate by effectively regulating the practices of Medical Doctors” and others subject to its rule. See Arkansas State Medical Board, https://www.armedicalboard.org/About.aspx (Last visited July 23, 2019). Further, to maintain an active license to practice medicine in the State of Arkansas, there are continuing medical education requirements that may be enforced through license suspension or revocation. See Ark. Admin. Code 060.00.1-17 (requiring a person who holds an active license to practice medicine in the State of Arkansas shall complete 20 credit hours per year of continuing medical education, stating that “Fifty (50%) percent of said hours shall be in subjects pertaining to the physician’s primary area of practice. . . .”). Among other requirements, any claim or filing of a lawsuit alleging malpractice against a physician licensed to practice medicine and surgery in the State of Arkansas must be reported to the Arkansas State Medical Board within ten days after receipt or notification or the
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licensed physician may face discipline up to and including revocation, suspension, or probation or
monetary fines. See Ark. Admin. Code 060.00.1-23.
In addition, in its findings of fact, the Court found that there are pre-existing rules and
regulations in Arkansas that currently govern abortion providers. To summarize these findings,
by regulation and statute in Arkansas:
• only a physician licensed to practice medicine in the State of Arkansas may provide abortion care under existing law, see Ark. Code Ann. § 5-61-101(a);
• any woman in Arkansas seeking an abortion must be evaluated via a medical history, a physical examination, counseling, and laboratory tests, see Ark. Admin. Code 007.05.2-8(A);
• Arkansas abortion facilities shall have written procedures for emergency transfer of a patient to an acute care facility, see Ark. Admin. Code 007.05.2-8(B);
• Arkansas general abortion facilities, which provide surgical abortions or both medication and surgical abortions, shall be within 30 minutes of a hospital which provides gynecological or surgical services, see Ark. Admin. Code 007.05.2-4(C); Ark. Admin. Code 007.05.2.3(J)(defining general abortion facility);
• Arkansas abortion facilities providing abortions must have various medical devices available to assist in the event of complications, see Ark. Admin. Code 007.05.2-8(C), (E);
• Arkansas abortion facilities must have a certain number of qualified personnel available to provide direct patient care, see Ark. Admin. Code 007.05.2-7; and
• Arkansas abortion facilities must satisfy a variety of ongoing obligations to educate staff about best practices to assess their own services, see Ark. Admin. Code 007.05.1-10; 007.05.2-5; 007.05.2-6(F),(G); 007.05.2-7(D).
This list is not exhaustive, given the number of regulations enacted by the State of Arkansas
(Dkt. No. 4, at 18). Further, currently Arkansas abortion facilities providing medication abortions
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must “have a signed contract with a physician who agrees to handle complications” and who has “active admitting privileges and gynecological/surgical privileges at a hospital designated to handle any emergencies associated with the use or ingestion of the abortion-inducing drug,” Ark. Code Ann. § 20-16-1504(d)(1),(2).14 Section 1504(d) of Arkansas Act 577 was the subject of a previous constitutional challenge. See Planned Parenthood of Arkansas & Eastern Oklahoma v. Jegley, Case No. 4:15-cv-00784-KGB, 2016 WL 6211310 (E.D. Ark. March 14, 2016), vacated and remanded 864 F.3d 953 (8th Cir. 2017), on remand to 2018 WL 3029104 (E.D. Ark. June 18, 2018) (granting renewed motion for temporary restraining order and enjoining the enforcement of Section 1504(d) of Arkansas Act 577); 2018 WL 3816925 (E.D. Ark. July 2, 2018) (granting renewed motion for preliminary injunction but permitting defendants to enforce Section 1504(d) of Arkansas Act 577 against medication abortion providers subject to the Act only to the extent that abortion providers must make an effort to comply with Section 1504(d) by continuing to seek a contracted physician, preliminarily enjoining defendants from imposing any civil or criminal penalties for continuing to perform medication abortion while abortion providers subject to the Act continue in their efforts to comply with Section 1504(d); and ordering plaintiffs to report to the Court every 30 days on their efforts to comply with Section 1504(d)). In Jegley, this Court examined carefully these same types of arguments with respect to Section 1504(d) of Arkansas Act 577 that required only medication abortion providers to contract with an admitting physician.
14 To the extent defendants argue that the OBGYN sets a “floor of care” for private abortion providers in Arkansas, the Court concludes that there is no record evidence to support that argument. Specifically, there is no record evidence before the Court that any facility or physician—other than the named plaintiffs—provides abortions in Arkansas. Furthermore, even if there were private abortion providers in Arkansas, the Court concludes based upon the record evidence before it that the health and safety of women in Arkansas are not improved by the OBGYN requirement as compared to Arkansas’ pre-existing abortion regulations.
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The Court examined the purported benefit of Section 1504(d) of Arkansas Act 577 and
concluded:
At this point, on the record before it, the Court reaffirms that PPAEO’s existing protocol casts doubt as to any benefit gained from the contracted physician requirement (Dkt. No. 2, de Baca Decl., ¶¶ 7-11). A careful review and balancing of the existing record evidence suggests that the state’s overall interest in the regulation of medication abortions through the contracted physician requirement is low and not compelling. In making this determination, the Court has taken into account the degree to which the restriction is over-inclusive or under-inclusive, see, e.g., Hellerstedt, 136 S. Ct. at 2315, and the existence of alternative, less burdensome means to achieve the state’s goal, including whether the law more effectively advances the state’s interest compared to prior law, see, e.g., id. at 2311, 2314. The Court remains persuaded, for now, that PPAEO and Dr. Ho have established that Section 1504(d)’s contracted physician requirement does little if anything to advance Arkansas’ “legitimate interest in protecting women’s health.” Hellerstedt, 136 S. Ct. 2311.
Jegley, 2018 WL 3816925, at *45 (E.D. Ark. July 2, 2018).
Then, the Court proceeded to analyze the burdens based on record evidence presented at
that stage of the proceedings. Id., at *51-67. In sum, the Court concluded:
Having considered separately the benefits and burdens of Section 1504(d)'s contracted physician requirement, the Court must next resolve the ultimate question of whether Section 1504(d) creates an undue burden. . . .
Plaintiffs have shown that “in a large fraction of the cases in which [the contracted physician requirement] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion.” Casey, 505 U.S. at 895 (majority opinion); see Hellerstedt, 136 S. Ct. at 2318 (striking down an admitting privileges requirement because the law “provides few, if any, health benefits for women” and “poses a substantial obstacle to women seeking abortions”); Jegley, 864 F.3d at 959 (“[I]n order to sustain a facial challenge and grant a preliminary injunction, the district court was required to make a finding that the Act's contract-physician requirement is an undue burden for a large fraction of women seeking medication abortions in Arkansas.”); id. at 690 n.9 (“The question here ... is whether the contract-physician requirement's benefits are substantially outweighed by the burdens it imposes on a large fraction of women seeking medication abortion in Arkansas.”).
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Because Section 1504(d) likely does not “confer[ ] benefits sufficient to justify the burdens upon access [to abortion] that [it] imposes,” Hellerstedt, 136 S. Ct. at 2301, the Court finds that plaintiffs are likely to prevail on the merits of their due process challenge that Section 1504(d) is facially unconstitutional because it places a “substantial obstacle to a woman's choice” to terminate a pregnancy before viability in “a large fraction of the cases in which” it “is relevant.” Hellerstedt, 136 S. Ct. 2313 (quoting Casey, 505 U.S. at 895 (majority opinion)). Id., at *68-69. This Court did not alter its analysis of the regulation, nor did the Eighth Circuit Court of Appeals review this Court’s most recent analysis of the regulation or issue an opinion with respect to the merits of it. Instead, plaintiffs in Jegley submitted a status report indicating that they complied, and the parties filed a “Joint Motion to Vacate Preliminary Injunction and Dismiss Appeal,” which the Eighth Circuit granted (Jegley, Case No. 4:15-cv-00784-KGB, Dkt. No. 171). That is the result of the case, and where the case stands today. To suggest any more or less with respect to the holding or lessons to be learned from Jegley is disingenuous at best. As a result of this outcome in Jegley, currently the “floor of care” in Arkansas differs for medication abortion and surgical abortion as a result of Section 1504(d) of Arkansas Act 577. The Arkansas legislature did not add the contracted physician requirement to surgical abortion providers. Instead, the Arkansas legislature enacted Act 700 to require that only physicians who are board-certified or board-eligible in obstetrics and gynecology perform any abortion— medication or surgical—in Arkansas.
c. Act 700: Analysis Of Alleged Medical Benefit Defendants assert two goals are purportedly advanced by Act 700: (1) protecting mothers’ health and safety (Dkt. No. 43, at 47), and (2) ensuring and maintaining professionalism, medical knowledge, judgment, skill, and a commitment to improving the quality of patient care (Dkt. No. 43, at 48). Again, the relevant question before the Court is whether Act 700’s requirement provides the asserted benefits as compared to the prior law. See Hellerstedt, 136 S. Ct. at 2311 (“We have
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found nothing in Texas’ record evidence that shows that, compared to the prior law, . . . the new

law advanced Texas’ legitimate interest in protecting women’s health.”); id. at 2314 (“The record

contains nothing to suggest that [the challenged law] would be more effective than pre-existing

Texas law . . . .”) (emphasis added). As a result, the Court analyzes the alleged benefits of Act 700

in comparison to prior Arkansas law and regulation.

Even if this Court were inclined to agree that defendants under the circumstances have

presented the interests they identify, the Court concludes that, on the record evidence before it at

this stage of the proceeding, plaintiffs are likely to prevail on their argument that Act 700 fails to

advance those interests more effectively than pre-existing Arkansas law and regulation because

Act 700 provides no discernable medical benefit in the light of the realities of abortion care,

training, and practice in Arkansas and across the county.

As an initial matter, there is record evidence that the ACOG has recognized that clinicians

from many medical specialties can provide safe abortion care and that requiring board-certification

in OBGYN is “medically unnecessary” and “designed to reduce access to abortion.” (Decl. of

Frederick W. Hopkins, M.D., M.P.H., ¶ 38 n.14; Decl. of Linda W. Prine, M.D., ¶ 21, n.4 (quoting

The Am. Coll. of Obstetricians and Gynecologists, Increasing Access to Abortion (ACOG

Committee Opinion No. 613), available at https://www.ncbi.nlm.nih.gov/pubmed/25437742)).

The President of the American Academy of Family Physicians (“AAFP”) likewise adopted in 2014

a resolution opposing laws that “impose[d] on abortion providers unnecessary requirements that

infringe on the practice of evidence-based medicine.” (Decl. of Linda W. Prine, M.D., ¶ 22

(quoting Am. Acad. of Family Physicians, Resolution No. 10001, Oppose Targeted Regulation

Against

Abortion

Providers

(TRAAP

laws),

http://www.aafp.org/about/constituencies/resources/past-ncsc/2014.html)). In November 2014,

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ACOG’s Committee on Health Care for Underserved Women issued a Committee Opinion emphasizing that “[s]afe, legal abortion is a necessary component of women’s health care.” The Am. Coll. of Obstetricians and Gynecologists, Increasing Access to Abortion (ACOG Committee Opinion No. 613), available at https://www.ncbi.nlm.nih.gov/pubmed/25437742. Consistent with that, the Committee Opinion states that ACOG recommends “expand[ing] the pool of firsttrimester medication and aspiration abortion providers to appropriately trained and credentialed advanced practice clinicians in accordance with individual state licensing requirements.” Id.
According to publicly available information, ACOG “is the specialty’s premier professional membership organization dedicated to the improvement of women’s health. With more than 58,000 members, the College is a 501(c)(6) organization and its activities include producing the College’s practice guidelines and other educational material.” The Am. Coll. of Obstetricians and Gynecologists, About Us, https://www.acog.org/About-ACOG/About-Us (last checked July 23, 2019). According to publicly available information, the AAFP is a national association of family doctors with over 131,400 physician and student members. Am. Acad. of Family Physicians, https://www.aafpcareerlink.org/ (last checked July 23, 2019). In determining whether regulations actually further women’s health, the Supreme Court has repeatedly looked at the generally accepted standards for medicine set by the nation’s major health organizations. See, e.g., Simopoulos v. Virginia, 462 U.S. 506, 517 (1983) (considering ACOG and other standards). The positions taken by the ACOG and the AAFP are consistent with other record evidence before this Court at this stage of the proceedings, including record evidence regarding recommendations from the National Abortion Federation, a professional association of abortion providers and the leading organization offering accredited medical education to healthcare professionals in all
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aspects of abortion care, and the American Public Health Association (Decl. of Linda W. Prine, M.D., ¶¶ 23, 24).
The Court notes that defendants make no argument in their filings at this stage to refute or undercut these representations regarding the positions taken by the ACOG, the AAFP, or any of the other professional associations cited. Dr. Aultman, who offers expert opinions on behalf of defendants in her declaration but who did not testify at the July 22, 2019 hearing, is a Fellow of the ACOG (Dkt. No. 49-6, ¶ 2). She does not criticize the ACOG in her declaration. The Court acknowledges that Dr. Harrison, who offers expert opinions on behalf defendants in her declaration that seem confined to Act 610 and who did testify at the July 22, 2019, hearing was critical in her hearing testimony of the ACOG (Dkt. No. 49-7). However, defendants cite the Court to no contrary consensus evidence specific to abortion care.
Plaintiffs assert that “[t]raining, rather than specialty, determines competence to provide abortion care. . . .” (Decl. of Linda W. Prine, M.D., ¶ 18-20; Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 35-37). Record evidence is that, across the nation, roughly one-third of abortion providers come from specialties other than OBGYN (Decl. of Linda W. Prine, M.D., ¶ 20). Record evidence is that abortion care is safely provided around the country up to at least 22 weeks LMP by non-OBGYN providers; record evidence before the Court is that abortion is only available in Arkansas at LRFP up to 21.6 weeks LMP (Decl. of Linda W. Prine, M.D., ¶ 20; Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶¶ 35-37). Further, record evidence establishes that medical schools and teaching hospitals around the country routinely use non-OBGYN faculty members to train residents and fellows in the provision of abortion care (Decl. of Linda W. Prine, M.D., ¶ 20; Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 35-37). None of the defendants’ expert witnesses refute
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this record evidence regarding medical schools and teaching hospitals using non-OBGYN faculty members to train residents and fellows in the provision of abortion care.15
Perhaps more importantly, there is no record evidence that competence in abortion care is a prerequisite for becoming a board-certified or eligible OBGYN (Decl. of Linda W. Prine, M.D., ¶ 21, n.4; Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶¶ 35-37). Defendants assert that board certification in OBGYN currently “requires training” to perform procedures “that are functionally identical to surgical abortions, such as suction dilation and curettage” (Dkt. No. 43, at 49 (citing Decl. of Kathi Aultman, M.D.)). However, the record supports that OBGYN residents can opt out of any abortion training (Decl. of Linda W. Prine, M.D., 21 n.4; Decl. of Frederick W. Hopkins, M.D., M.P.H., 38 n.14; Decl. of Janet Cathey, M.D., ¶ 13), and many board-certified OBGYNs have never even observed an abortion (Decl. of Linda W. Prine, M.D., 21 n.4; Decl. of Frederick W. Hopkins, M.D., M.P.H., 38 n.14; ). Training in OBGYN does not entail training in all aspects of abortion care; instead, the record evidence is that practitioners must specifically seek out this training. Further, there is no record evidence that OBGYN board certification requires demonstrated skill in providing abortion care or requires specific continuing education or competence in abortion care. At the hearing, Dr. Hopkins stated that OBGYNs are not necessarily comfortable or competent to provide abortion care. Furthermore, the National Academy Consensus Study Report, cited by Dr. Prine, states that “trained physicians, OB/GYNs, family medicine physicians and other physicians and APCs, physician assistants, certified nurse
15 The Court also notes that Dr. Horton was board-eligible for approximately eight years, but he never became board-certified because he never obtained the necessary case list. Dr. Horton states that board eligibility or certification is not relevant to the competent provision of abortion care (Dec. of Thomas Russell Horton, Jr., M.D., ¶ 22).
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midwives, and nurse practitioners, can provide medication and aspiration abortions safely and effectively.” National Academy Consensus Study report, at 14.
In Jackson IV, the district court in Mississippi noted that Mississippi law at that time required that “all physicians associated with an abortion facility must have either ‘completed a residency in family medicine, with strong rotation through OB/GYN,’ ‘completed a residency in obstetrics and gynecology,’ or had ‘at least one year of postgraduate training in a training facility with an approved residency program and an additional year of obstetrics/gynecology residency.’” 320 F. Supp. 3d 828 at 837 (quoting Miss. Code R. § 15-16-1: 44.1.5(24)). Those requirements seem to be related to and a “better fit” with the defendants’ asserted interests here than a boardcertified or board-eligible OBGYN requirement for all abortion providers, especially considering the record evidence presented.
Based on the record evidence at this stage of the proceeding, the two expert witnesses cited by defendants in support of this requirement have no experience in teaching abortion practitioners or training OBGYN residents or fellows themselves. Neither Dr. Aultman nor Dr. Harrison cite to this type of experience (see Decl. of Kathi Aultman, M.D.; Rebuttal Decl. of Kathi Aultman, M.D.; Decl. of Donna J. Harrison, M.D.). Instead, Dr. Aultman appears to have reviewed websites and literature to prepare her declaration, not relied upon her experience. At this stage of the proceeding, on the record evidence before it, the Court finds this evidence unpersuasive, especially when compared to the testimonies of Dr. Hopkins, Dr. Prine, Dr. Tvedten, and Dr. Cathey with respect to teaching abortion practitioners and training OBGYN residents and fellows.
Defendants claim that Arkansas women “deserve better” than doctors with “just a minimally certified medical license” to perform abortion care (Dkt. No. 43, at 49). Currently, under Arkansas law, to maintain an active license to practice medicine in the State of Arkansas,
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there are continuing medical education requirements that may be enforced through license suspension or revocation. See Ark. Admin. Code 060.00.1-17 (requiring a person who holds an active license to practice medicine in the State of Arkansas shall complete 20 credit hours per year of continuing medical education, stating that “Fifty (50%) percent of said hours shall be in subjects pertaining to the physician’s primary area of practice. . . .”). Further, any claim or filing of a lawsuit alleging malpractice against a physician licensed to practice medicine and surgery in the State of Arkansas must be reported to the Arkansas State Medical Board within ten days after receipt or notification or the licensed physician may face discipline up to and including revocation, suspension, or probation or monetary fines. See Ark. Admin. Code 060.00.1-23. Defendants make no argument as to why these current requirements are insufficient or why board-eligible or boardcertified OBGYN requirements would be better suited to address defendants’ asserted interests, especially in the light of the current record evidence.
Further, even if the Court assumes that a board-eligible or board-certified OBGYN will receive training on procedures such as suction dilation and curettage and that such training is correlated to the competent provision of surgical abortions, which is the limited argument defendants make with respect to training that correlated to Act 700, there is no record evidence that board-eligible or board-certified OBGYNs with such training will be competent to provide abortion care; plaintiffs’ witnesses uniformly describe the need to seek such training on abortion care outside of and in addition to most residency programs. Also, there is no record evidence that such training is relevant to the provision of medication abortion, which is not analogous to “suction dilation and curettage” identified by defendants. While defendants argue that mediation abortion is more likely to involve complications than surgical abortion (Dkt. No. 43, at 49-50), the Court is highly skeptical of such assertions given the record evidence before it and the findings of numerous
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other courts to have examined such statistics. To the extent defendants rely on Dr. Aultman’s declaration to support this claim, her declaration is a survey of data that is not Arkansas specific, and does not clearly indicate the protocol used to administer the medication abortion in the case studies she recites (see Decl. of Kathi Aultman, M.D.; Rebuttal Decl. of Kathi Aultman, M.D.). The Court examined and rejected, at least at the temporary restraining order and preliminary injunction stage, similar claims in Jegley. Jegley, 2018 WL 3816925, at *28, *42.
Even if the Court accepts defendants’ contention as true at this point in the litigation, defendants do not explain how Act 700 would change that or how Act 700 would address that contention in any more meaningful way than the current contracted physician requirement for medication abortion providers. Currently, the “floor of care” in Arkansas is different for medication abortion and surgical abortion as a result of Section 1504(d) of Arkansas Act 577 as examined in Jegley. The Arkansas legislature did not add the contracted physician requirement to surgical abortion providers, although the record evidence in Jegley offered by defendants to support Section 1504(d) of Arkansas Act 577 prompted this Court to question whether the contracted physician requirement was under-inclusive by failing to do so based on the record evidence defendants proffered. See, e.g., Jegley, 2018 WL 3816925, at *24 n.4, *43. Instead of extending the contracted physician requirement, with which Arkansas medication abortion providers were able to comply, the Arkansas legislature enacted Act 700 to require that only physicians who are board-certified or board-eligible in OBGYN perform any abortion— medication or surgical—in Arkansas.
Defendants now claim that “even practitioners who intend to provide only medication abortion should be competent to perform surgical abortions because, as noted, surgical follow-up is often necessary to deal with complications.” (Dkt. No. 43, at 50). Dr. Hopkins states that “[a]ny
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clinician with adequate training in abortion care can safely and effectively handle” the most common abortion complications, even though such complications are rare (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 38).
In the event a significant complication does arise from an abortion, Dr. Hopkins states that an abortion provider would transfer or direct the patient to the nearest hospital to receive the required care (Id., ¶ 39). If the complication is retained tissue following a medication abortion, Dr. Hopkins states that ACOG Practice Bulletin 143 states that the abortion provider should be trained in surgical abortion “or should be able to refer to a clinician trained in surgical abortion.” (Id.).
Defendants again claim “patient abandonment,” (Dkt. No. 43, at 50), a claim this Court rejected in Jegley given current regulations governing abortion providers in Arkansas and the care they are required to provide. See, e.g., Jegley, 2018 WL 3816925 at *39-40. Defendants claim the current contracted physician requirement might result in a contracted physician “geographically too far away to provide continuity of care” as a reason to support Act 700’s constitutionality (Dkt. No. 43, at 50). Defendants in fact suggested in questioning that the contracted physician requirement could be met by a physician who resides out of state. See, e.g., Jegley, 2018 WL 3816925, at *37. The Court cited this as one reason, among many, to reject as medically unnecessary and unconstitutional the current contracted physician requirement for medication abortion providers. See, e.g., Id., at *37-38.16
16 Currently, there is record evidence that plaintiffs comply with the contracted physician requirement for medication abortion providers. At the July 22, 2019, hearing, Dr. Tvedten testified that, although LRFP has “a signed contract with a physician who agrees to handle complications” and who has “active admitting privileges and gynecological/surgical privileges at a hospital designated to handle any emergencies associated with the use or ingestion of the abortion-inducing drug.” Ark. Code Ann. § 20-16-1504(d)(1),(2). There is no record evidence that any LRFP patient
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Defendants cite to a study about the value of board certification generally, but the Court concludes that is of little, if any, value because that study does not focus on abortion care or advance an argument that the board-eligible or board-certified OBGYN requirement improves patient care in the abortion setting (Dkt. No. 44-1, at 70-80). This study also does nothing to address the value of board certification eligibility, which Act 700 permits for abortion providers.
To the extent defendants contend that the OBGYN requirement brings the regulations governing abortion providers closer to existing regulations for hospitals or birthing centers that are required to administer medication under the supervision of a licensed pharmacist (Dkt. No. 43, at 50-51 (citing Ark. Admin. Code 0007.05.17-16(E); 007.05.12-11(A)(2)), plaintiffs maintain that Arkansas law already requires abortion providers to dispense medication abortion under the supervision of a licensed pharmacist (Dkt. No. 61, at 32-33 (citing Ark. Admin Code 007.05.211(A)(2)). There is no record evidence that OBGYN board certification, or OBGYN board certification eligibility, advances defendants’ asserted interest in protecting mother’s health and safety with respect to medication abortion over the existing laws and regulations in Arkansas.
To the extent defendants assert an interest in benefitting “the medical profession by ensuring that practitioners are accountable” for keeping their professional knowledge and skills up to date (Dkt. No. 43, at 48), the historical overview offered by defendants is not specific to Arkansas licensed medical providers, Arkansas abortion care, or the realities of abortion care training, and education currently as evidenced by this record. Act 700 does not encourage physicians to “continue to develop their knowledge and skills” (Dkt. No. 43, at 51) because there is no requirement that an abortion provider continue to develop his or her knowledge or skills with
or doctor has called on the contracted physician at any point nor is there any record evidence that the contracted physician has been involved in providing abortion patient care.
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respect to abortion requirements to maintain OGBYN board certification or board eligibility. Record evidence supports that most aspects of abortion care are not covered by OBGYN board certification or board eligibility training. Further, Act 700 permits doctors who are merely eligible for OBGYN board certification to provide abortion care, but defendants do not explain how eligibility for OBGYN board certification advances defendants’ claimed interest in having abortion providers with up-to-date knowledge. Record evidence demonstrates that existing regulations for Arkansas licensed medical providers and Arkansas abortion facilities and their staff implement a floor of care as to these requirements. See Ark. Admin. Code 0600.00.1-16; 060.00.117; 060.00.1-23 (regarding Arkansas licensed medical providers); Ark. Admin. Code 007.05.1-10; 007.05.2-5; 007.05.-6(F),(G); 007.05.2-7(D) (regarding Arkansas abortion facilities). In particular, the Court notes that Arkansas regulations require abortion providers to provide “annual in-service education programs for professional staff” and provide “current nursing literature and reference materials.” Ark. Admin. Code. 007.05.2-7(D). Defendants do not explain how Act 700 more effectively advances the state’s interest compared to prior law.
Citing to a “comprehensive meta-analysis of the literature on physician capability over the course of a career,” as defendants do in this case, does little to persuade the Court when there is no indication this “meta-analysis” is OBGYN or abortion provider specific and no indication that this evidence relates specifically to Arkansas (Dkt. No. 43, at 51). Further, even Dr. Harrison, who is a board-certified OBGYN and has held such certification continuously since 1993, but who has not practiced medicine in a clinical setting in approximately 20 years,17 admitted in her testimony
17 During her hearing testimony on July 22, 2019, Dr. Harrison admitted to typographical errors in the opening paragraphs of her Declaration. She completed her residency training in OBGYN between 1986 and 1990, not 2000 (Decl. of Donna J. Harrison, M.D., ¶ 1), and she joined a multispecialty group in an underserved area of Michigan in 1993, not 2003 (Id., ¶ 1). She has not been involved directly with patient care since approximately 2000. Dr. Harrison, like Dr.
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on cross examination at the July 22, 2019, hearing that despite her status as a board-certified OBGYN she would not attempt to offer abortion care with her current skill set having not recently provided any care. This type of record evidence from defendants’ own expert witness significantly undercuts the argument that Act 700 is a “commonsense” method to increase physician competency as physicians gain more years of practice (Dkt. No. 43, at 51).
Defendants also make an argument that Act 700 imposes specific requirements on abortion providers “to address the fact that mothers seeking abortions ‘are less likely to litigate medical malpractice claims.’” (Dkt. No. 43, at 52 (citing Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 545 (9th Cir. 2004)). The Court rejects this argument. In Dr. Aultman’s “rebuttal declaration,” she raises issues with respect to Dr. Tvedten’s prior conviction for second degree criminal mischief18 and a temporary, brief license suspension and suspension of his ability to prescribe certain medications for a brief period of time in response to an incident (Rebuttal Decl. of Kathi Aultman, M.D., ¶ 10). As an initial matter, defendants’ efforts to cast doubt on Dr. Tvedten’s competence as an abortion provider through this type of evidence fall short. There is record evidence that Dr. Tvedten is a competent, highly skilled practitioner who regularly trains others and receives referrals from other medical professionals due to his skilled abortion care.
Further, the evidence offered by defendants demonstrates that current regulations exist to address the concerns they raise; complaints may be lodged with the Arkansas State Medical Board which has regulatory authority to address such complaints. See Ark. Admin. Code 0600.00.1-16;
Tvedten, settled out of court two lawsuits alleging medical malpractice while she was engaged in patient care.
18 This incident relates to Dr. Tvedten, after requesting that the individual stop photographing without their consent women attempting to enter an abortion clinic, breaking the camera of the individual. Dr. Tvedten relayed that he was required to purchase the individual a new camera.
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060.00.1-17; 060.00.1-23 (regarding Arkansas licensed medical providers). Even malpractice allegations must be reported to the Arkansas State Medical Board. See Ark. Admin. Code 060.00.1-23. To suggest that patients must have a method outside of a malpractice lawsuit to ensure competence as a reason to justify Act 700 overlooks the Arkansas licensure requirement and the role of the Arkansas State Medical Board in that process. Defendants fail to address why current regulations are insufficient or why a board-certified or board-eligible OBGYN requirement better serves these claimed interests.
This type of analysis that the Court engages in here goes directly to the degree to which the restriction is over-inclusive or under-inclusive, see, e.g., Hellerstedt, 136 S. Ct. at 2315, and the existence of alternative, less burdensome means to achieve the state’s goal, including whether the law more effectively advances the state’s interest compared to prior law. See, e.g., Hellerstedt, 136 S. Ct. at 2311, 2314.
As a result of the foregoing, this Court concludes at this preliminary stage of the litigation that plaintiffs are likely to prevail on their argument that “there [is] no significant health-related problem” Act 700 “help[s] to cure”; nor is it “more effective than pre-existing [state] law” in advancing defendants’ asserted interests. Hellerstedt, 136 S. Ct. at 2311, 2314.
2. Act 700: Inability To Comply With the OGBYN Requirement Before turning to analyze the burdens allegedly imposed by the OBGYN requirement, the Court will first address defendants’ argument that any such burdens are the result of plaintiffs’ own actions or omissions rather than the OBGYN requirement. Casey requires a contextualized inquiry into how an abortion restriction interacts with facts on the ground, not only on the law’s direct effects. 505 U.S. at 887-895 (majority opinion); see Planned Parenthood Arizona, Inc. v. Humble, 753 F.3d 905, 915 (9th Cir. 2014). In Casey, the Supreme Court struck down
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Pennsylvania’s husband notification requirement as creating an undue burden, finding that, due to the fact that “millions of women in this country . . . are victims of regularly physical and psychological abuse at the hands of their husbands,” a “significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.” 505 U.S. at 894 (majority opinion). There, the State of Pennsylvania did not cause spousal abuse, but such abuse was the background context against which the Court measured the burdens created by the husband notification provision. Accordingly, at this stage of the litigation, the Court rejects defendants’ argument that the Court cannot assess burdens that the State has not directly caused.
Defendants argue that the qualifying OBGYNs who have agreed to provide care at LRFP and PPAEO Little Rock have chosen “to limit their own availability to perform abortions.” (Dkt. No. 43, at 56). They argue also that Dr. Cathey, Dr. Hopkins, and Dr. Browne have limited their own availability, so therefore any burden that accrues to Arkansas women as a result of the OBGYN requirement is the result of those self-imposed limitations (Id., at 57). Further, defendants claim that plaintiffs made no attempt to locate alternative providers (Id.). Defendants point out that plaintiffs are not limited to board-certified or board-eligible OBGYNs in Arkansas and that there are currently over 51,673 board-certified OBGYNs in the United States who could obtain a medical license in Arkansas (Id.). Defendants maintain that any incidents of stigma or harassment relating to abortion care providers are “anecdotal” and, even if such stigma or harassment makes it more difficult for abortion providers to hire a qualifying practitioner, that this obstacle is not caused by the State (Id., at 58). Defendants also point out that Dr. Tvedten’s 2015 letter expressed how much he “apparently enjoys being an abortion practitioner” in Arkansas and that Dr. Tvedten’s letter belies his assertions of “intolerable stigma and harassment.” (Id.
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(emphasis omitted)). Defendants also point out that the economic renumeration of acting as an abortion provider “will quickly and certainly attract a qualified provider of surgical abortion to the state.” (Id., at 59).
The weight of the record evidence, at least at this preliminary stage of the litigation, does not support defendants’ arguments. Dr. Cathey avers that three and a half days of abortion care per week is the maximum she can provide, given her personal and professional obligations (Decl. of Janet Cathey, M.D., ¶ 8). She is currently providing three days of care a week for eight to ten hours a day, so her alleged availability has increased from her current schedule. She alleges that she has a physical injury that continues to produce physical limitations, and she has other professional obligations—including Social Security disability consultations and transgender patients—that prevent her from increasing her provision of abortion care (Id.). The record evidence also indicates that Dr. Rodgers is semi-retired due in part to health issues that prevent him from providing patient care for long hours or multiple days a week (Id.). The Court finds that these representations are credible and do not represent “self-imposed limitations” but are instead reasonable professional limitations that prevent Dr. Cathey and Dr. Rodgers from providing additional abortion care.
Similarly, the record evidence shows that Dr. Browne and Dr. Hopkins have not selfimposed limitations on their ability to provide abortion care in Little Rock. Dr. Browne lives in the State of Washington and is employed in that state (Decl. of Charlie Browne, M.D., ¶ 1). He previously provided abortion care at LRFP but ceased doing so because the travel time was disruptive professionally and due to harassment from protestors he suffered while working at LRFP (Id., ¶¶ 9-10). Dr. Browne has agreed to provide abortion care for LRFP but only for two to three days in July 2019 (Id., ¶ 14). He cannot offer more help to LRFP due to his professional
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and personal obligations in Seattle, Washington (Id.). As for Dr. Hopkins, he lives in California and travels to Arkansas to provide abortion care at LRFP approximately once every two months for “three to four days every other month.” (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 44). He states that he is unable to visit Arkansas more frequently due to his clinical and teaching positions in California and because of the personal danger he believes exists as a result of providing abortions in Arkansas (Id., ¶¶ 48, 49, 51). As with Dr. Cathey and Dr. Rodgers, the record evidence here indicates that the limitations preventing Dr. Browne and Dr. Hopkins from providing additional abortion care are not “self-imposed” but instead are the understandable result of the logistical difficulties posed by working in Arkansas while living in California or Washington state.
The record evidence also belies any claim that plaintiffs did not attempt to contact alternative qualifying providers. The fact that there are thousands of board-certified or boardeligible OBGYNs in the United States is a non sequitur; the OBGYN requirement also requires that abortion providers be licensed to practice medicine in Arkansas. Additionally, the record evidence indicates that LRFP sent a letter to each board-certified OBGYN listed on the Arkansas Medical Board’s licensure list, in which LRFP stated that it was seeking a part-time, boardcertified OBGYN to see patients three days a week (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 36). The letter also noted that the compensation was “generous.” (Id.). Additionally, Ms. Williams submitted a request to a national organization that matches abortion providers with clinics, and through these efforts two physicians expressed preliminary interest, though neither was able to accept because they are not licensed to practice medicine in Arkansas (Id., ¶ 37). Indeed, Dr. Browne and Dr. Hopkins have agreed to work for LRFP as a result of these outreach efforts. Further, as described by Dr. Hopkins, it is understandable that qualifying physicians might have qualms about moving to Arkansas to provide abortion care, given the number of statutes and
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regulations recently enacted to regulate the provision of abortion care and the uncertainty surrounding the ability of any provider to offer such care in the future. Based upon this record evidence, the Court concludes that plaintiffs have made reasonable efforts to comply with the OBGYN requirement.
The Court also concludes that the record evidence indicates that the harassment and stigma faced by abortion providers in Arkansas is an obstacle to compliance with the OBGYN requirement. Like the benefit analysis, the rule articulated in Casey requires the Court to look to the context of the OBGYN requirement to assess the burdens imposed. Here, multiple abortion providers have offered evidence regarding their personal experiences with harassment and stigma in Arkansas: Dr. Browne testified that the harassment and stigma he experienced in Arkansas was “far more prevalent and aggressive” than any other he had experienced (Decl. of Charlie Browne, M.D., ¶ 12). Dr. Horton testified that each day protestors block the entrance to LRFP and that he has been the subject of bomb threats in nearby Memphis, Tennessee (Decl. of Thomas Russell Horton, Jr., M.D., ¶¶ 26-27). Ms. Williams testified that medical students fear to drive their own vehicles or wear clothing identifying themselves as medical professionals when they come to LRFP for medical training (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 39). Ms. Williams also states that anti-abortion advocates have targeted her personally by sending a letter with her name, address, and picture to several hundred of her neighbors (Id., ¶ 41). While it is true that defendants have not caused the harassment described in the record, established precedent requires the Court to consider the context of the OBGYN requirement while assessing the burdens imposed by it.
Additionally, the Court is not convinced that Dr. Tvedten’s description of the positive aspects of acting as an abortion provider negates the record evidence relating to the harassment and stigma faced by abortion providers. While Dr. Tvedten described the positive aspects of
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providing abortion care in a letter designed to encourage medical students to join his practice, the Court does not view these descriptions as minimizing the risks of performing abortion care in Arkansas, which include, as demonstrated by the record evidence, risks to the professional reputation and physical safety of abortion providers
For all these reasons, the Court finds that, based on the record evidence before it at this stage of the litigation, LRFP and PPAEO Little Rock are likely to prevail on their claim that they are unable to comply with the OBGYN requirement beyond the extent to which they have already done so.
3. Act 700: Considering Out-Of-State Doctors And Patients In Jegley, this Court declined to consider the availability of abortions at out-of-state clinics when determining if the contracted physician requirement imposes an undue burden on women seeking medication abortions in Arkansas. Other federal courts have held that States may not outsource their duty to protect the constitutional rights of their citizens. Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 457 (5th Cir. 2014), cert denied, 136 S. Ct. 2536 (2016) (holding that the undue-burden analysis “focuses solely on the effects within the regulating state”); see Schimel, 806 F.3d at 918 (rejecting argument that the availability of second-trimester abortions in Chicago could justify the closure of Wisconsin’s only abortion clinic); see also Strange III, 33 F. Supp. 3d at 1360-61 (even if out-of-state providers were considered, 80 mile distance to out-ofstate clinic means the “threshold difficulties related to losing an abortion clinic in her home city” still present a burden). This Court’s reluctance to consider out-of-state abortion providers in this analysis finds additional support in State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). There, the Supreme Court held that the University of Missouri law school could not deny Lloyd Gaines
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admission to the school on the basis of his race, even though the University offered him a stipend to use at a law school in an adjacent state. Id. at 342. The Supreme Court reasoned that:
[T]he obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction . . . . That obligation is imposed by the Constitution upon the States severally as governmental entities,— each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no state can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system. Id. at 350. While Gaines was an equal protection case—this is a due process case—the Court finds that its logic applies here. See Currier, 760 F.3d 448, 457 (citing Gaines for the proposition that Mississippi could not rely upon neighboring states to reduce the undue burden placed on women by abortion restrictions). Further, the text of the Due Process Clause is clear: no “State” shall “deprive any person of life, liberty, or property, without due process of law . . . .” U.S. Const. amend. XIV, § 1. This constitutional command is directed at the States, and “no State can be excused from performance by what another state may do or fail to do.” Gaines, 305 U.S. at 350. The Court acknowledges that the Supreme Court did not explicitly address whether out-ofstate abortion facilities should be considered in the undue burden analysis. See Hellerstedt, 136 S. Ct. at 2304. Prior to the Supreme Court’s ruling in Hellerstedt, the Fifth Circuit reversed the district court’s finding that abortion restrictions were unconstitutional as-applied to the El Paso clinic because women in El Paso could and did use abortion providers in nearby New Mexico. Specifically, the Fifth Circuit noted that, if the El Paso clinic closed, there was an abortion facility “approximately twelve miles away in Santa Teresa, New Mexico,” and that “independent of the actions of the State,” “Texas women regularly choose to have an abortion in New Mexico.” See Cole, 790 F.3d at 596-97 (emphasis in original). Still, rather than upholding the Fifth Circuit’s
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decision, the Supreme Court reversed the Fifth Circuit’s decision and found that the same statute at issue in Cole was facially unconstitutional because it imposed an undue burden on women seeking abortions. Hellerstedt, 136 S. Ct. at 2318.
Given the legal authorities reviewed by this Court and the possibility that a neighboring state might unilaterally alter access to abortion, the Court declines to consider out-of-state abortion providers in this analysis. This Court infers that, if the availability of an out-of-state abortion provider within 12 miles of the Texas border was not enough in Hellerstedt to ameliorate the burdens imposed by Texas’ surgical-center requirement, then the distances at issue in this case to out-of-state abortion providers will not relieve any undue burden created by the OBGYN requirement.
4. Act 700: Burdens Imposed By The OBGYN Requirement The Court will first analyze whether the burdens created by the OBGYN requirement entitle plaintiffs to facial relief. Plaintiffs argue that they are entitled to facial relief because, if the OBGYN requirement goes into effect, the number of abortions provided by LRFP and PPAEO Little Rock will be drastically reduced, preventing women who would have otherwise obtained abortions at those facilities from obtaining abortions at all. There is record evidence that, if the OBGYN requirement goes into effect, LRFP and PPAEO Little Rock will be forced to offer fewer abortions than they can in the absence of the OBGYN requirement. There is also record evidence that, at this time, PPAEO Fayetteville offers no abortion care, so LRFP and PPAEO Little Rock are the only abortion providers in the State of Arkansas. In sum, therefore, plaintiffs argue that since the OBGYN requirement will reduce the number of abortions that can be provided by LRFP and PPAEO Little Rock, the OBGYN requirement is facially unconstitutional.
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To evaluate the burdens imposed by the OBGYN requirement, the Court must first define the group of women whose burdens must be analyzed. See Hellerstedt, 136 S. Ct. at 2320 (“[T]he relevant denominator is ‘those [women] for whom [the provision] is an actual rather than an irrelevant restriction.’”) (quoting Casey, 505 U.S. at 895 (majority opinion)). In Hellerstedt, the Supreme Court reaffirmed that a law creates an undue burden when it places a “substantial obstacle to a woman’s choice” in “a large fraction of the cases in which” it “is relevant.” 136 S. Ct. at 2313 (quoting Casey, 505 U.S. at 895 (majority opinion)). In their original brief-in-support of their motion for a temporary restraining order/preliminary injunction, plaintiffs appear to argue that the “relevant denominator” in this case is “women who seek abortion care in Arkansas . . . .” (Dkt. No. 4, at 42). In their supplemental brief-in-support, plaintiffs also argue that the OBGYN requirement creates an undue burden on “women who would otherwise seek abortion care in Little Rock . . . .” (Dkt. No. 37, at 36). Defendants appear to assert that the “relevant denominator” is “all Arkansas women seeking abortions.” (Dkt. No. 43, at 68). At this preliminary stage of the proceeding, the Court will consider all Arkansas women seeking abortions as the denominator as defendants appear to suggest.
The Court next turns to examine the “large fraction” test. The Eighth Circuit has expressed skepticism that 4.8 to 6.0% is sufficient to qualify as a “large fraction.” Jegley, 864 F.3d at 959 n.8 (citing Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361, 374 (6th Cir. 2006)). The Eighth Circuit reversed and remanded this Court’s prior preliminary injunction in Jegley, determining that, “in order to sustain a facial challenge and grant a preliminary injunction,” this Court is “required to make a finding that the Act’s contract-physician requirement is an undue burden for a large fraction of women” for whom the Act is relevant. Id. at 959 (emphasis added).
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The Court now turns to analyze and attempt to quantify, based upon the record evidence at this stage of the proceedings, the burdens imposed by the OBGYN requirement.
5 Act 700: Effective Ban On Surgical Abortions First, the Court finds that every Arkansas woman in seeking a surgical abortion in Arkansas faces a burden due to the OBGYN requirement. The record evidence indicates that LRFP is the only abortion provider in the state that currently provides surgical abortions and that, if LRFP is forced to close as a result of the OBGYN requirement, no other surgical abortion provider will exist in Arkansas. The Court also acknowledges record evidence that some women have a strong preference for surgical abortions “because it requires fewer visits to the clinic, and thus is associated with a lower burden in terms of funding and time.” (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 15). Defendants point to a finding by the Sixth Circuit that “the Supreme Court has not articulated any rule that would suggest that the right to choose abortion” articulated in Casey “encompasses the right to choose a particular abortion method.” Planned Parenthood Southwest Ohio Region v. DeWine, 696 F.3d 490, 516 (6th Cir. 2012) (emphasis in original). The Court acknowledges that, under the holding in DeWine, the unavailability of a certain method of abortion does not, by itself, create a substantial obstacle to a woman’s right to have an abortion if other methods of pre-viability abortion remain available. Regardless, the Court finds that the record evidence does support an inference that a lack of surgical abortion in Arkansas would present some burden to those women who prefer surgical abortions over medication abortions and for whom surgical abortion maybe a better or the only option for reasons supported by this record. Thus, the Court concludes that, if the OBGYN requirement effectively ends surgical abortions in Arkansas, the OBGYN requirement burdens those women who are seeking
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surgical abortions in Arkansas. Indeed, given that the record evidence indicates that 2,212 surgical abortions are currently provided by LRFP, if each of these abortions is no longer available, then a large fraction of Arkansas women for whom the OBGYN requirement is relevant will face a substantial obstacle to their right to an abortion.
Even if this burden, by itself, does not render the OBGYN requirement a “substantial obstacle in the path of a woman’s choice,” Hellerstedt, 136 S. Ct. at 2312 (citing Casey, 505 U.S. at 877 (plurality opinion)), the Court will not discount it as some evidence of burden. To make the ultimate “substantial obstacle” determination, the burden imposed by the total or partial elimination of surgical abortions “must be taken together with other[]” burdens caused by the OBGYN requirement and weighed against “any health benefit” to determine if an “undue burden” exists. Id. at 2313.
6. Act 700: Reduction In Abortions Due To The OBGYN Requirement
The record evidence before the Court demonstrates that PPAEO Fayetteville is currently not offering abortion care. The record evidence also indicates that, currently, LRFP offers both surgical and medication abortions and that PPAEO Little Rock only offers medication abortions. Dr. Lindo explains that, currently, 3,167 abortions are performed annually in Arkansas, which includes Arkansas residents and non-residents (Supp. Decl. of Jason Lindo, Ph.D., ¶ 10). He also avers that, on average over the past three years, 2,779 Arkansas residents obtain abortions each year (Id., ¶ 51). The record evidence also indicates that, on average, 1,927 Arkansas women seek surgical abortions in Arkansas annually (Id., ¶ 61). While there is no direct record evidence indicating how many Arkansas women sought medication abortions on average over the past three
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years, the Court infers that 85219 Arkansas residents sought medication abortions on average over the past three years. Dr. Lindo also explains that the Little Rock clinics perform 2,614 abortions annually (Id., ¶ 8).
Plaintiffs have presented record evidence that, if the OBGYN requirement goes into effect, LRFP will either be forced to close or offer far fewer abortions than it currently does. Specifically, Dr. Lindo avers that, regardless of whether the OBGYN requirement forces LRFP to close, Dr. Rodgers and Dr. Cathey will be able to provide 956 abortions annually at PPAEO Little Rock (Id., ¶ 9). Dr. Lindo estimates Dr. Rodgers’ capacity to provide medication abortions based upon the maximum number of abortions he provided in any given month over the past three years. Dr. Lindo estimates Dr. Cathey’s capacity similarly and adds 17% to her capacity due to her plan to expand the number of days she provides services from 3 to 3.5 days per week. Based upon this data, Dr. Lindo estimates that, if the OBGYN requirement goes into effect, Dr. Rodgers can provide 480 medication abortions annually and that Dr. Cathey can provide 476 abortions annually. The Court notes that, since these estimates are based upon the maximum number of abortions each of these physicians has provided in the past, these estimates likely overestimate each providers’ capacity due to the assumption that each provider will provide abortion care at his or her maximum rate over a sustained period.
If LRFP can remain open with the OBGYN requirement in effect, then Dr. Lindo projects that Dr. Hopkins will be able to provide 252 surgical abortions at LRFP. Dr. Lindo generated this number based upon the fact that, according to Dr. Lindo, the most women that Dr. Hopkins has served in any given day at LRFP since 2017 is 21, and therefore Dr. Hopkins will likely serve 42 women every other month, if he spends a business week at LRFP during which he does informed-
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consent appointments one day a week and provides abortions the other two days (Decl. of Jason Lindo, Ph.D., ¶ 49). Under Dr. Lindo’s projections, these 25220 annual surgical abortions will be the only abortions available at LRFP (Id.).
Defendants argue that plaintiffs “have not supplied any evidence concerning how many medication abortions they can provide per day.” (Dkt. No. 43, at 69). This is incorrect: as stated above, Dr. Lindo’s projections are based upon the past numbers of abortions provided by the physicians at LRFP and PPAEO Little Rock. Defendants also point to Dr. Lindo’s declaration as proof that “one provider in a single, three-hour period per week could provide at least 624 abortions per year.” (Id., at 69). But the declaration that defendants point to is specifically referencing Dr. Paulson’s capacity to provide medication abortions at PPAEO Fayetteville, and in that declaration Dr. Lindo specifically states that, since he lacks any historical data on Dr. Paulson’s capacity to provide medication abortions, he is relying on PPAEO Fayetteville’s representation that Dr. Paulson will be able to provide abortions to a maximum of 12 patients each week (Decl. of Jason Lindo, Ph.D., ¶ 49(c)). Thus, given that this projection is specific to Dr. Paulson’s particular situation, the Court declines to assume that all abortion providers could provide up to 624 medication abortions in a given year.
Defendants also argue that plaintiffs have understated Dr. Hopkins’ capacity to perform surgical abortions; by defendants’ estimate, Dr. Hopkins should be capable of providing 525 surgical abortions annually (Dkt. No. 43, at 69). To reach this conclusion, defendants point to Ms. Williams’ declaration that LRFP can safely and effectively “provide abortion care up to approximately 20-25 women per day . . . .” (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 17). Defendants next argue that, if Dr. Hopkins “continues his practice of providing 25 surgical
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abortions at LRFP an average of 3.5 days a week every-other month, then he will perform 525 surgical abortions a year (25 abortions x 3.5 days x 6 time = 525 abortions per year).” (Id.).21 Yet this seemingly simple calculation misrepresents the record: Ms. Williams testified that Dr. Hopkins has provided only six percent of LRFP’s abortion care, and Dr. Lindo used this data to calculate Dr. Hopkins’ capacity to provide abortions at 252 per year. Ms. Williams did not aver that Dr. Hopkins currently provides 25 abortions per day. Further, construing Ms. Williams’ statement reasonably, the Court understands her position to be that LRFP can currently provide 25 abortions a day based upon its current providers. The Court does not understand her statement to be that one abortion provider can provide 25 abortions a day at LRFP.
With these preliminary points addressed, the Court turns to analyze the number of women who record evidence at this preliminary stage indicates plaintiffs likely will be able to demonstrate will be forced to forego an abortion due to the OBGYN requirement. Based upon the record evidence, if the OBGYN requirement goes into effect and LRFP closes, then plaintiffs likely will be able to demonstrate the only abortions offered in Arkansas will be medication abortions at PPAEO Little Rock, and the record evidence indicates that Dr. Rodgers and Dr. Cathey—the only board-certified OBGYNs providing care at PPAEO Little Rock—can provide up to 956 medication abortions annually (Supp. Decl. of Jason Lindo, Ph.D., ¶ 11). Accordingly, if those 956 medication abortions are the only abortions available in Arkansas, then of the 2,779 Arkansas
21 At the hearing, defendants presented evidence that the maximum number of daily abortions Dr. Hopkins ever provided at LRFP was 28, not 21. Under the formulation suggested by defendants above, if Dr. Hopkins were to provide 28 abortions a day for three and a half days every other month, he would perform a total of 588 surgical abortions annually. The assertion that Dr. Hopkins can perform a total of 28 abortions a day questionable given the other record evidence currently before the Court. Even if the Court were to accept it as true, it does not substantially alter the Court’s calculations, which are detailed below.
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women who seek abortions in Arkansas annually, 1,82322 (or 66%23) of all Arkansas women seeking abortions in Arkansas will be denied an abortion.24 The Court notes that this calculation assumes without any record evidence that any woman denied a surgical abortion could instead receive a medication abortion.
Even if the OBGYN requirement does not force LRFP to close entirely, the record evidence at this stage shows that Dr. Hopkins will be the only physician capable of providing abortions at LRFP under the OBGYN requirement. Further, the record evidence at this stage shows that, based upon his prior ability to provide abortions, Dr. Hopkins will be able to provide only 252 abortions per year at LRFP. Accordingly, in conjunction with the 956 medication abortions that Dr. Rodgers and Dr. Cathey will be able to provide, the total number of abortions that will be available in Arkansas if LRFP remains open is 1,208.25 Accordingly, of the 2,779 Arkansas women who annually seek abortions in Arkansas, 1,57126 (or 57%27) of them will not be able to obtain an abortion in Arkansas.28
22 2,779-956=1,823. 23 1,823/2,779=66%. 24 Alternatively, out of the 2,614 women (including non-residents of Arkansas) who seek abortions in Little Rock annually, 1,658 (or 63%) of them will not be able to receive abortions in Arkansas if LRFP closes. Additionally, out of the 3,167 women who seek abortions in Arkansas annually, 2,211 (or 70%) of those women will not be able to receive abortions if LRFP closes. 25 956+252=1,208. 26 2,779-1,208=1,571. 27 1,571/2,779=57%. 28 Alternatively, of the 2,614 women (including non-residents of Arkansas) who annually seek abortions in Little Rock, 1,406 (or 54%) of them will not be able to obtain an abortion in Arkansas if Dr. Hopkins can provide 252 abortions annually. Furthermore, if only 1,208 women can receive abortions in Little Rock even if LRFP is able to provide some abortions under the
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In sum, using the number of Arkansas women who seek abortions in Arkansas as the denominator of the large fraction calculation, the record evidence indicates that anywhere from 57-66% of Arkansas women who wish to have an abortion will be unable to obtain an abortion in Arkansas. Based upon this record evidence, viewed cumulatively, the Court concludes that the OBGYN requirement places a “substantial obstacle in the path of a woman’s choice.” Hellerstedt, 136 S. Ct. at 2312 (citing Casey, 505 U.S. at 877 (plurality opinion)).
Per Hellerstedt, the Court considers these burdens cumulatively to determine if a large fraction of Arkansas women seeking abortions in Arkansas face a “substantial obstacle in the path of [their] choice.” 136 S. Ct. at 2312, 2313 (noting that different burdens—driving distance and clinic closings—should be considered together). Applying the “large fraction” test from Hellerstedt, Casey, and Jegley, considering all of the burdens presented in the record evidence at this stage of the proceedings and the controlling precedents, the Court finds that, for a large fraction of women seeking abortions in Arkansas, the OBGYN requirement “places a ‘substantial obstacle in the path of a woman’s choice.’” Hellerstedt, 136 S. Ct. at 2312 (citing Casey, 505 U.S. at 877 (plurality opinion)).
7. Act 700: Weighing The Benefits And Burdens Having considered separately the benefits and burdens of the OBGYN requirement’s contracted physician requirement, the Court must next resolve the ultimate question of whether the OBGYN requirement creates an undue burden. Challenges to statutes affecting abortions may succeed only if a plaintiff can show that “in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.”
OBGYN requirement, of the 3,167 women who seek abortions anywhere in Arkansas annually, 1,959 (or 62%) of them will not be able to obtain an abortion in Arkansas.
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Casey, 505 U.S. at 895 (majority opinion); see Hellerstedt, 136 S. Ct. at 2318 (striking down an admitting privileges requirement because the law “provides few, if any, health benefits for women” and “poses a substantial obstacle to women seeking abortions”); Jegley, 864 F.3d at 959 (“[I]n order to sustain a facial challenge and grant a preliminary injunction, the district court was required to make a finding that the Act’s contract-physician requirement is an undue burden for a large fraction of women seeking medication abortions in Arkansas.”); id. at 690 n. 9 (“The question here . . . is whether the contract-physician requirement’s benefits are substantially outweighed by the burdens it imposes on a large fraction of women seeking medication abortion in Arkansas.”).
In regard to the benefit of the OBGYN requirement, analyzing the record evidence currently before the Court at this stage of the litigation, and binding and persuasive legal precedents, this Court concludes at this stage that the OBGYN requirement confers little if any benefit on those women who are affected by it.
In regard to burdens, considered cumulatively, the record evidence at this stage of the litigation demonstrates that the OBGYN requirement, given plaintiffs’ limited ability to comply with it, substantially burdens a large fraction of Arkansas women seeking abortions which is the group for whom the law is relevant. See Casey, 505 U.S. at 895 (majority opinion) (holding that the undue burden analysis looks “to those for whom [the challenged law] is an actual rather than an irrelevant restriction.”).
Weighing the benefits and burdens, given the foregoing evidence in the record currently before the Court at this stage of the litigation and given binding and persuasive legal precedents, the Court determines that Act 700’s OBGYN requirement, given plaintiffs’ limited ability to comply with it, imposes substantial burdens on a large fraction of Arkansas women seeking abortions against a near absence of evidence that the law promotes any state interest or provides
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any benefits to those women. See Hellerstedt, 136 S. Ct. at 2318 (striking down an admitting privileges requirement because the law “provides few, if any, health benefits for women” and “poses a substantial obstacle to women seeking abortions”); Van Hollen III, 738 F.3d at 798 (“The feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.”) (emphasis added); West Alabama Women’s Ctr. v. Miller, 299 F. Supp. 3d 1244, 1286 (M.D. Ala. 2017) (noting fetal demise law was passed in pursuit of legitimate goals, but those goals were not sufficient to justify “such a substantial obstacle to the constitutionally protected right to terminate a pregnancy before viability”); Planned Parenthood of Indiana and Kentucky, Inc. v. Comm’r, Indiana State Dep’t of Health, 273 F. Supp. 3d 1013, 1039 (S.D. Ind. 2017) (noting undue burden where law required ultrasound viewing a day before an abortion rather than the day of the abortion because this change provided little to no benefit when measured against prior law). In other words, the Court concludes that, based upon the limited record before it at this stage of the litigation, requiring abortion providers to be board-certified or board-eligible OBGYNs presents a substantial undue burden for a large fraction of women seeking abortions in Arkansas, with little to no benefit to those women.
Plaintiffs have shown that “in a large fraction of the cases in which [the OBGYN requirement] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Casey, 505 U.S. at 895 (majority opinion); see Hellerstedt, 136 S. Ct. at 2318 (striking down an admitting privileges requirement because the law “provides few, if any, health benefits for women” and “poses a substantial obstacle to women seeking abortions”). Because Act 700’s OBGYN requirement likely does not “confer[] benefits sufficient to justify the burdens upon access [to abortion] that [it] imposes,” Hellerstedt, 136 S. Ct. at 2301, the Court finds that plaintiffs are likely to prevail on the merits of their due process challenge that Act 700’s OBGYN
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requirement is unconstitutional as it is applied to LRFP, Dr. Tvedten, and their patients because it places a “substantial obstacle to a woman’s choice” to terminate a pregnancy before viability in “a large fraction of the cases in which” it “is relevant.” Hellerstedt, 136 S. Ct. 2313 (quoting Casey, 505 U.S. at 895 (majority opinion)).
8. Equal Protection Challenge To Act 700 For the reasons discussed elsewhere in this Order, the Court finds that plaintiffs are likely to prevail on their due process claims. Accordingly, the Court will not, at this time, consider whether plaintiffs are likely to prevail on their claims under the Equal Protection Clause of the Fourteenth Amendment.
D. Irreparable Harm A plaintiff seeking a temporary restraining order must establish that the claimant is “likely to suffer irreparable harm in the absence of preliminary relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The deprivation of constitutional rights “unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); Planned Parenthood of Minn., Inc. v. Citizens for Cmty. Action, 558 F.2d 861, 867 (8th Cir. 1977) (same). Plaintiffs allege that the enactment and enforcement of Acts 493, 619, and 700 will inflict irreparable, tangible injuries on plaintiffs’ patients by forcing them to delay access to abortion care or remain pregnant against their will. Plaintiffs also argue that the abortion providers will suffer irreparable harm to their professional reputations if they are forced to cease providing desired medical services and that LRFP will be irreparably harmed by being forced to close or reduce its hours of operations (Dkt. No. 61, at 52-53). Defendants argue that the OBGYN requirement does not prevent any woman from deciding whether to have an abortion at any stage of pregnancy and that there is no evidence that Acts 493 or 619 will prevent any women from obtaining an abortion
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(Dkt. No. 43, at 101). Defendants also assert that an injunction would cause irreparable harm to the State if it is not allowed to enforce the duly elected statutes enacted by the Arkansas legislature (Id., at 102).
For now, this Court finds, based on the state of the record before the Court at this stage of the proceeding, that Acts 493, 619, and 700 cause ongoing and imminent irreparable harm to the plaintiffs and their patients. As detailed above, the record at this stage of the proceeding indicates that Acts 493 and 619 unconstitutionally ban pre-viability abortions. Additionally, the record at this stage of the proceeding indicates that Act 700’s OBGYN requirement imposes an undue burden on the right of women in Arkansas to seek an abortion. The harms to women who are unable to obtain abortion care as a result of Acts 493, 619, and 700 are irreparable. See Roe, 410 U.S. at 153 (describing “[s]pecific and direct harm” from forced childbirth). Furthermore, the State has no interest in enforcing laws that are unconstitutional, and therefore, since plaintiffs have demonstrated at least at this preliminary stage and on the record currently before the Court that they are likely to prevail on the issue of whether Acts 493, 619, and 700 are unconstitutional, an injunction preventing the State from enforcing Acts 493, 619, and 700 does not irreparably harm the State. See Hispanic Interest Coal. of Ala. v. Governor of Ala., 691 F.3d 1236, 1249 (11th Cir. 2012). Since the record at this stage of the proceedings indicates that Arkansas women seeking abortions face an imminent threat to their constitutional rights, the Court concludes that they will suffer irreparable harm without injunctive relief.
E. Balance Of Equities And The Public Interest Plaintiffs argue that they and their patients “unquestionably face far greater irreparable harm if the challenged requirements take effect” than “Defendants face if the laws’ enforcement is enjoined . . . .” (Dkt. No. 4, at 65). Plaintiffs point out that if the Court grants injunctive relief,
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the immediate result will be the maintenance of the status quo, i.e., “the availability of safe and effective abortion care.” (Id.). Defendants, however, argue that the “status quo is that duly enacted laws take effect without interventions of courts” and that the public interest weighs against injunctive relief because the public has an interest in seeing the laws enforced and protecting patient health (Dkt. No. 43, at 102).
The Court must examine this case in the context of the relative injuries to the parties and to the public. Dataphase, 640 F.2d at 114. The Eighth Circuit has stated that “whether the grant of a preliminary injunction furthers the public interest . . . is largely dependent on the likelihood of success on the merits because the protection of constitutional rights is always in the public interest.” Rounds, 530 F.3d at 752. After balancing the relative injuries and the equities, while evaluating the limited record before it, the Court finds that the enforcement of Acts 493, 619, and 700 at least at this stage would result in greater irreparable harm to plaintiffs and their patients than to the State. Accordingly, at this stage of the proceeding, the Court finds that the threat of irreparable harm to plaintiffs, and the public interest, outweighs the immediate interests and potential injuries to the defendants.
F. Security Under Federal Rule of Civil Procedure 65(c), a district court may grant a temporary restraining order “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). In these proceedings, defendants have neither requested security in the event this Court grants a temporary restraining order nor have they presented any evidence that they will be financially harmed if they are wrongfully enjoined. For these reasons, the Court declines to require security from plaintiffs.
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IV. Conclusion For the foregoing reasons, the Court determines that plaintiffs have met their initial burden for the issuance of a temporary restraining order. Therefore, the Court grants plaintiffs’ motion for a temporary restraining order and/or preliminary injunction, to the extent the motion seeks a temporary restraining order (Dkt. No. 2). The Court hereby orders that defendants, and all those acting in concert with them, including their employees, agents, and successors in office, are temporarily enjoined from enforcing Act 493 of 2019, Act 619 of 2019, and Act 700 of 2019. Further, defendants are enjoined from failing to notify immediately all state officials responsible for enforcing the requirements of Act 493 of 2019, Act 619 of 2019, and Act 700 of 2019, about the existence and requirements of this temporary restraining order. Pursuant to Federal Rule of Civil Procedure 65(b)(2), this temporary restraining order shall not exceed 14 days from the date of entry of this Order and shall expire by its own terms on Tuesday, August 6, 2019, at 11:45 p.m. The Court enters this Order on Tuesday, July 23, 2019, at 11:45 p.m.
_______________________________ Kristine G. Baker United States District Judge
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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES, et al.,

PLAINTIFFS

v.

Case No. 4:19-cv-00449-KGB

LESLIE RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas, et al.,

DEFENDANTS

PRELIMINARY INJUNCTION Before the Court is a motion for a temporary restraining order and/or preliminary injunction

filed by separate plaintiffs Little Rock Family Planning Services (“LRFP”) and Thomas Tvedten, M.D., on behalf of himself and his patients (Dkt. No. 2).1 The Court held a hearing on July 22,

2019, and entered a temporary restraining order on July 23, 2019 (Dkt. No. 83). In the temporary

restraining order, the Court held plaintiffs’ request for a preliminary injunction under advisement.

For the reasons set forth below, the Court grants plaintiffs’ request for a preliminary injunction.

Plaintiffs bring this action seeking declaratory and injunctive relief on behalf of themselves

and their patients under the United States Constitution and 42 U.S.C. § 1983 to challenge three

Acts passed by the Arkansas General Assembly: (1) Arkansas Act 493 of 2019, which bans

abortion “where the pregnancy is determined to be greater than 18 weeks,” as measured from the

first day of a woman’s last menstrual period (“LMP”) in nearly all cases (“Act 493”); Arkansas

Act 619, which prohibits a physician from intentionally performing or attempting to perform an

abortion “with the knowledge” that a pregnant woman is seeking an abortion “solely on the basis”

of: a test “indicating” Down syndrome; a prenatal diagnosis of Down syndrome; or “[a]ny other

1 Not all named plaintiffs in this lawsuit join the motion for temporary restraining order and/or preliminary injunction (Dkt. Nos. 2, 32).

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reason to believe” the “unborn child” has Down syndrome (“Act 619”); and (3) Arkansas Act 700 of 2019, which provides that “[a] person shall not perform or induce an abortion unless that person is a physician licensed to practice medicine in the state of Arkansas and is board-certified or boardeligible in obstetrics and gynecology.” (“Act 700” or the “OBGYN requirement”). This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3).
I. Procedural History Plaintiffs filed their complaint and motion for a temporary restraining order and/or preliminary injunction on June 26, 2019 (Dkt. Nos. 1, 2). The challenged Acts were to take effect on July 24, 2019. The Court held the hearing on plaintiffs’ motion for temporary restraining order and/or preliminary injunction on July 22, 2019 (Dkt. No. 78). In response to a motion for expedited prehearing discovery filed by defendants, the Court instructed the parties to meet and confer regarding any outstanding discovery requests and to file a joint status report on July 12, 2019 (Dkt. No. 34). On July 10, 2019, plaintiffs filed a supplemental declaration from Jason Lindo, Ph.D., and in response defendants sought to strike the supplemental declaration or to extend the time to respond to the motion for temporary restraining order and/or preliminary injunction (Dkt. Nos. 37, 38). Plaintiffs opposed the motion to strike the supplemental declaration and the request to extend the time to respond to the motion (Dkt. No. 39). The Court denied the motion to strike or request for additional time to respond to the motion, observing in part that any alleged prejudice would be limited and mitigated if the Court “treats plaintiffs’ motion as one for temporary restraining order, then such an order—whether granted or denied—would expire 14 days from the date it is entered, and the Court may permit all parties to address further the merits of this expedited matter prior to a hearing on plaintiffs’ request for a preliminary injunction.” (Dkt. No. 41, at 2).
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The parties timely filed their joint status report on July 12, 2019, and reported that they required the Court to resolve three remaining discovery disputes (Dkt. No. 40). In that same status report, the parties represented that certain information would be turned over contingent upon the entry of a protective order that was still being negotiated by the parties. The Court then entered an order denying without prejudice defendants’ motion for expedited prehearing discovery, resolving only the three remaining discovery disputes the parties had been unable to resolve at that time (Dkt. No. 42).
On July 18, 2019, defendants filed a renewed motion for expedited prehearing discovery (Dkt. No. 56). In that motion, defendants argued that, because plaintiffs insisted upon an “unreasonably broad definition of ‘confidential information,’” the parties could not agree on the terms of a protective order, and therefore defendants had not received agreed-upon discovery (Id., at 1). In response, plaintiffs pointed out that they sent a proposed protective order to defendants on July 10, 2019, but defendants did not respond until July 15, 2019, with a counterproposal (Dkt. No. 60, at 4). Plaintiffs responded on July 16, 2019, rejecting the counterproposal (Id.). Defendants did not file a renewed motion until July 18, 2019, after filing a written response to the motion for temporary restraining order and/or preliminary injunction. On July 19, 2019, the Court denied defendants’ renewed motion for expedited prehearing discovery and entered a protective order (Dkt. Nos. 69, 70).
On Saturday, July 20, 2019, a day after the deadline for disclosing rebuttal exhibits and witnesses in advance of the July 22, 2019, hearing had elapsed, defendants filed a new declaration that totaled 272 pages, with attachments; plaintiffs also filed a supplemental rebuttal witness list (Dkt. Nos. 73, 74). Then, on Sunday, July 21, 2019, plaintiffs filed a motion to strike certain declarations introduced by defendants, including the declaration filed on Saturday, July 20, 2019
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(Dkt. No. 75). Also on Sunday, July 21, 2019, defendants filed a motion to strike certain declarations introduced by plaintiffs and to strike plaintiffs’ reply brief (Dkt. No. 76).
The hearing was held on July 22, 2019 (Dkt. No. 84). Plaintiffs called Frederick Hopkins, M.D., Linda Prine, M.D., Lori Williams, Dr. Lindo, and Thomas Tvedten, M.D. Defendants called Janet Cathey, M.D., Tumulesh K.S. Solanky, Ph.D., Donna Harrison, M.D., and Judy McGruder. Plaintiffs recalled Dr. Prine for rebuttal, after which defendants did not cross examine her. Plaintiffs also recalled Dr. Lindo for rebuttal, and likewise defendants did not cross examine him on his rebuttal testimony. Neither party identified additional witnesses they wished to have called. Furthermore, neither party utilized the full time granted by the Court to question the witnesses who appeared at that hearing.
The day after the July 22, 2019, hearing, plaintiffs filed a notice of correction of the record in which they attached a supplemental declaration by Dr. Lindo that corrected duplicate entries within Excel files that had been produced to defendants (Dkt. No. 79, at 1). Defendants then filed a motion to strike this declaration, arguing that the Court should strike the latest declaration and allow defendants further discovery by deposing Dr. Lindo (Dkt. No. 80). The Court denied defendants’ motion to strike this declaration and their request to depose Dr. Lindo (Dkt. No. 96).
On July 23, 2019, the Court entered a 14-day temporary restraining order enjoining the enforcement of Acts 493, 619, and 700. On July 25, 2019, defendants filed a motion for expedited preliminary-injunction-proceeding discovery, in which defendants sought the Court’s permission to propound discovery requests on plaintiffs regarding Planned Parenthood of Arkansas and Eastern Oklahoma’s (“PPAEO”) ability to provide abortions in Little Rock, PPAEO’s efforts to provide surgical abortions in Arkansas, building requirements applicable to surgical abortions, and data on out-of-state abortion clinics (Dkt. No. 86). Defendants also sought permission to issue a
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Federal Rule of Civil Procedure 30(b)(6) deposition notice on PPAEO (Id.). Plaintiffs responded to the motion for expedited discovery (Dkt. No. 92), and the Court denied defendants’ motion (Dkt. No. 97).
At the hearing, plaintiffs objected to defendants’ request to introduce as a hearing exhibit in this matter the entire record from Planned Parenthood Arkansas and Eastern Oklahoma v. Jegley, Case No. 4:15-cv-00784-KGB, on the basis that defendants failed to refer to, or move to introduce, any specific portions of that record in response to plaintiffs’ motion for temporary restraining order and/or preliminary injunction here. The Court entered a written Order recounting the parties’ positions with respect to Jegley and the current case, declining defendants’ oral motion to incorporate the entire record from Jegley into this matter, and directing the parties to cite to specific portions of the Jegley record for the Court’s consideration in this matter (Dkt. No. 94).
Defendants also requested a second hearing, and the Court denied this request (Dkt. No. 111). The Court noted, in part, that the matters defendants wished to raise at a second hearing were known to defendants at the July 22, 2019, hearing and that the defendants had an opportunity to cross examine plaintiffs’ witnesses on these matters at that time (Id.). In ruling on plaintiffs’ motion for preliminary injunction, the Court has considered the record before it as of August 6, 2019. Further, given the limited nature of a preliminary injunction order, the Court declines to strike the declarations filed by any party and instead will give them the weight to which they are entitled at this stage of the proceedings. See Wounded Knee Legal Def./Offense Comm. v. Fed. Bureau of Investigation, 507 F.2d 1281, 1286-87 (8th Cir. 1974).
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II. Findings Of Fact The Court makes the following findings of fact. 2 1. Charlie Browne, M.D., a board-certified obstetrician-gynecologist (“OBGYN”) offers an affidavit in support of plaintiffs’ motion (Dkt. No. 2, at 24-28; Decl. of Charlie Browne, M.D., ¶ 1). Dr. Browne is a Clinical Assistant Professor at the University of Washington Medical Center, Department of Obstetrics and Gynecology in Seattle, Washington, and Clinical Faculty at Pacific Northwest University College of Osteopathic Medicine in Yakima, Washington (Id.). He is also the Medical Director of All Women’s Care in Seattle Washington, the Medical Director of All Women’s Health in Tacoma, Washington, and the Director of Second-Trimester Services of Planned Parenthood of Greater Washington & Northern Idaho (Id.). In these positions, Dr. Browne provides abortion care and other gynecological services (Id.). 2. Dr. Browne avers that, based upon his experience and training, a medical provider does not need to be a board-certified or board-eligible OBGYN to have the education, training, and skills necessary to provide safely and competently abortion care (Decl. of Charlie Browne, M.D., ¶ 6). In his experience, there is no difference in the abilities, qualifications, or skills of non-
2 To the extent the findings of fact in this Order contradict the findings of fact made in the Court’s prior Orders, the findings of fact in this Order control. Further, the Court will address these and additional factual matters in the context of its discussion of the legal issues; in that context, the Court also makes findings of fact. In making the following findings of fact and conclusions of law, the Court has considered the record as a whole. The Court has observed the demeanor of witnesses and has carefully weighed their testimony and credibility in determining the facts of this case and drawing conclusions from those facts. All findings of fact contained herein that are more appropriately considered conclusions of law are to be so deemed. Likewise, any conclusions of law more appropriately considered a finding of fact shall be so classified. The Court has considered and weighed all the evidence presented in the record at this stage; the Court has resolved any disputes consistent with the statements in this Order.
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OBGYN practitioners and OBGYNs who have received the necessary training to provide abortion care (Id.).
3. Dr. Browne further avers that being a board-eligible or board-certified OBGYN does not make an abortion provider any more equipped to handle the “rare complications that may arise from an abortion.” (Id., ¶ 7). Dr. Browne explains that “in the rare event of a serious complication, the patient would need to be transferred to a hospital for emergency care, regardless of whether the physician providing abortion care is a board-certified OBGYN.” (Id.). In his experience, serious complications arising from either medication or surgical abortions are rare (Decl. of Charlie Browne, M.D., ¶ 7).
4. From August 2010 to December 2010, Dr. Browne provided abortion care for LRFP approximately once every four to six weeks for two to three days at a time (Id., ¶ 8). Between 2011 and July 2012, he also provided abortion care at LRFP approximately two to three weeks per year (Id.). After 2012, Dr. Browne had to stop providing abortion care at LRFP since it takes him approximately six to seven hours to travel to LRFP from his home and because the time away from his home was disruptive professionally (Id., ¶¶ 9-10).
5. Dr. Browne also avers that providing abortion care at LRFP was difficult and stressful due to harassment he experienced while working at the clinic (Decl. of Charlie Browne, M.D., ¶ 11). Every time Dr. Browne traveled to LRFP, he encountered protestors attempting to block the entrance to LRFP’s parking lot (Id.). He also states that the harassment and stigma he experienced in Arkansas was “far more prevalent and aggressive than any [he had] experienced as an abortion provider elsewhere.” (Id., ¶ 12). For these reasons, Dr. Browne has not returned to LRFP for the past seven years (Id., ¶ 13).
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6. Dr. Browne states that LRFP staff reached out to him in March 2019 to see if he would be willing to provide abortion care at LRFP when the OBGYN requirement is set to take effect (Decl. of Charlie Browne, M.D., ¶ 14). Dr. Browne has agreed to do so but only for two to three days in July 2019 (Id.). He cannot commit to providing care after that time given his professional and personal obligations in Seattle, Washington (Id.).
7. Janet Cathey, M.D., a board-certified OBGYN licensed to practice medicine in Arkansas and Oklahoma, has presented her declaration in support of plaintiffs’ motion (Dkt. No. 2, at 36-41, Decl. of Janet Cathey, M.D.)). Dr. Cathey avers that she provides medical services, including medication abortion, at PPAEO health center in Little Rock, Arkansas (Id., ¶ 1).
8. In early 2018, Dr. Cathey was asked by PPAEO to provide reproductive health care services at PPAEO’s health center in Little Rock (“PPAEO Little Rock”), and in May 2018, she began working at the health center in Little Rock (Id., ¶ 3).
9. At LRFP’s Little Rock health center, Dr. Cathey provides family planning services, transgender care, and medication abortions (Id., ¶ 4). She also has administrative responsibilities, including overseeing clinical staff, teaching medical students, and acting as director of Planned Parenthood Great Plains’ (“PPGP”) transgender care program (Decl. of Janet Cathey, M.D., ¶ 4). Since she started in this position through April 30, 2019, she has provided 229 medication abortions (Id., ¶ 5).
10. Dr. Cathey is one of only two physicians providing medication abortion at PPAEO’s Little Rock health center (Id., ¶ 6). The other physician, Dudley Rodgers, M.D., is a board-certified OBGYN who provides only medication abortions approximately one day per week (Id.). Dr. Rodgers is semi-retired and does not provide medical care anywhere else, due in part to
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health issues that prevent him from providing patient care for long hours or multiple days a week (Id.).
11. Dr. Cathey currently provides medical care at PPAEO’s Little Rock health center three days per week for approximately eight to ten hours a day (Decl. of Janet Cathey, M.D., ¶ 7). She also works as a medical consultant for Social Security disability reviews and completes PPAEO administrative responsibilities two other days per week (Id.). Dr. Cathey’s administrative responsibilities include providing non-clinical services to her transgender patients, mentoring medical students regarding abortion care, transgender care, and other medical care, including gynecological procedures (Id.). Dr. Cathey also avers that she expects her non-clinical responsibilities to increase (Id.).
12. Dr. Cathey avers that, during the three days that she provides patient care, her schedule is at capacity (Decl. of Janet Cathey, M.D., ¶ 8). Due to patient demand, Dr. Cathey is planning to add another half day a week to provide patient care, including care to patients seeking medication abortions, transgender care, and family planning (Id.). She states that providing care three and a half days per week “is the absolute maximum amount of time” she can devote to patient care (Id.).
13. Dr. Cathey also notes that she cannot take on additional hours to provide medical care because of physical limitations resulting from a spinal cord injury she sustained in a 2009 car accident (Id., ¶ 9). Because of her injuries, she originally stopped providing patient care, and though she now practices medicine, she continues to have physical restrictions (Decl. of Janet Cathey, M.D., ¶ 9).
14. Dr. Cathey also avers that she sees a significant number of transgender and family planning patients and that she is the only physician at PPAEO’s Little Rock health center who
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provides care for these patients (Id., ¶ 10). It is Dr. Cathey’s understanding that the only other health center in Arkansas that maintains a dedicated transgender care program is the University of Arkansas for Medical Sciences (“UAMS”) clinic, which provides transgender care “only one half day per week.” (Id.).
15. In sum, due to her other personal and professional responsibilities, Dr. Cathey cannot see any more medication abortion patients other than those she is able to see in three and a half days per week (Id., ¶ 11).
16. Dr. Cathey also avers that, based upon her experience, she does not believe that requiring all abortion providers to be board-certified or board-eligible OBGYNs provides “any benefit whatsoever to patients.” (Decl. of Janet Cathey, M.D., ¶ 12). She notes that clinicians from a range of specialties, including family medicine, can become trained to provide abortion care (Id.). She maintains that there is nothing about being a board-certified or board-eligible OBGYN that makes a physician better, safer, or more effective at providing abortion care (Id.). Dr. Cathey testified at the hearing that, during her time at UAMS, she observed the training of OBGYN residents, and she noted that very few of them received training in abortion care (Dkt. No. 84, at 203:1-2). She also noted that most, but not all, of the OBGYN residents were able to provide miscarriage management by the end of their residency (Id.).
17. Dr. Cathey states that many family medicine physicians and other clinicians undergo training to provide safely abortion care (Decl. of Janet Cathey, M.D., ¶ 13). She further states that family medicine medical students are “just as skilled and qualified to provide abortion care as the OBGYN students.” (Id., ¶ 14).
18. Dr. Cathey states that “restricting the number of clinicians who can provide abortion in the state to only board-certified or board-eligible OBGYNs will actually harm patients,
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as it can force patients to unnecessarily delay their access to care or prevent them from obtaining an abortion altogether.” (Id., ¶ 15 (emphasis in original)).
19. Dr. Cathey notes that there are already very few abortion providers in Arkansas, which she attributes to “the intense stigma and harassment that abortion providers face here.” (Id., ¶ 16). When her children were younger and in school, Dr. Cathey did not want to provide abortions because she feared the harassment that her children would likely face (Id.).
20. At the hearing, defendants’ counsel asked Dr. Cathey if she would perform an abortion if the woman seeking the abortion indicated that she was seeking an abortion because the fetus was transgendered or based upon the fetus’ race (Dkt. No. 84, at 201:1- 202:9). Defendants did not ask Dr. Cathey about her capacity to provide abortions for PPAEO or about the capacity of PPAEO’s new facility in Little Rock. Defendants did not argue that they did not have enough time to question Dr. Cathey, nor did they ask the Court to direct Dr. Cathey to answer any questions.
21. Lori Freedman, Ph.D., an associate professor in the Department of Obstetrics, Gynecology and Reproductive Sciences at the University of California, San Francisco, offers her declaration in support of plaintiffs’ motion (Dkt. No. 2, at 47-57, Decl. of Lori Freedman, Ph.D.). Dr. Freedman’s work focuses on qualitative health research, clinician training and practice, medical ethics in reproductive health, and health care practices of religiously affiliated institutions (Id., ¶ 3). She has studied barriers to the provision of abortion care (Id.). In particular, she has researched “why doctors with abortion training do not integrate abortion care into their practice post-residency.” (Id.).
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22. In her opinion, in addition to violence and harassment, the intense stigmatization of abortion providers makes it difficult, if not impossible in certain areas, to find and retain abortion providers (Decl. of Lori Freedman, Ph.D., ¶ 4).
23. Dr. Freedman explains that “no-abortion” policies in private practice groups, hospital maintenance organization (“HMOs”), and hospitals often prevent physicians from providing abortions (Id., ¶ 11). She also states that physicians are often asked to sign contracts stating that they will not provide abortions at the offices of their practice and that they will not provide abortions offsite (Id.).
24. Of five doctors who had been asked to be medical directors at an abortion clinic, four of them told Dr. Freedman that they had declined because their own group practices would not permit it (Id.). Additionally, Dr. Freedman states that, in her research, she has encountered situations where senior physicians threatened to ostracize younger physicians who performed abortions (Decl. of Lori Freedman, Ph.D., ¶ 12). She also states that physicians interviewing for post-residency positions have told her that they fear broaching the subject of abortion with potential employers (Id.).
25. Dr. Freedman also avers that physicians who provide abortions frequently lose referrals from medical providers who oppose abortion, thereby placing their practices in jeopardy (Id., ¶ 13). Additionally, Dr. Freedman notes that doctors may decline to provide abortions because they worry about losing existing patients who are opposed to abortion (Id.).
26. Furthermore, Dr. Freedman points out that physicians who wish to perform abortions often must choose whether to maintain a general obstetrics and gynecology (“OBGYN”) practice or provide abortions, but not both (Decl. of Lori Freedman, Ph.D., ¶ 14).
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27. Dr. Freedman also notes that abortion providers are routinely ostracized in their communities through acts such as being denied membership to social organizations and the bullying of their children at school (Id., ¶ 15). She also states that physicians cite the effects of picketing by protestors as a reason not to provide abortions (Id.).
28. Dr. Freedman states that violence against abortion providers is an ongoing concern and that, as recently as 2015, there were three murders and nine attempted murders of abortion clinic staff in the United States (Id., ¶ 18 (citing Nat’l Abortion Fed’n, 2017 Violence and Disruption Statistics 6 (2017), available at https://prochoice.org/wp-content/uploads/2017-NAFViolence-and-Disruption-Statistics.pdf)). She states that the threat of violence “significantly deters many physicians from providing abortion and increases physicians’ reluctance to associate themselves with abortion clinics and providers in any way.” (Decl. of Lori Freedman, Ph.D., ¶ 19).
29. Dr. Freedman states that Arkansas “fits the profile of a state hostile to the provision of abortion care where abortion providers are likely to experience the highest levels of stigma and harassment.” (Id., ¶ 20).
30. Dr. Freedman also states that further evidence she has reviewed indicates that abortion providers in Arkansas experience extreme levels of harassment and effects of stigma, including being forced by their partners to choose between private practice and continuing to provide abortion care, being subjected to picketing and harassment, and being unable to attract qualified OBGYNs or other providers to work at their clinics (Id., ¶ 21).
31. Dr. Freedman avers that abortion providers are less likely to be able to resist the effects of stigma and harassment in Arkansas cities that lack a professional community that normalizes abortion care (Id., ¶ 23).
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32. Stephanie Ho, M.D., a board-certified family medicine physician, offers her declaration in support of plaintiffs’ motion (Dkt. No. 2, at 89-103; Decl. of Stephanie A. Ho, M.D.)).
33. Dr. Ho states that she cannot become a board-certified or board-eligible OBGYN because she did not complete a residency in OBGYN and that she cannot do so now due to the time and resources necessary to conduct a residency at this stage of her career (Id., ¶ 7).
34. Dr. Ho further states that, at the time she submitted her declaration, surgical abortions could not be performed at PPAEO’s Fayetteville health center (“PPAEO Fayetteville”) because that facility did not meet the state’s requirement governing facilities where surgical abortions are performed (Id., ¶ 10).
35. Dr. Ho explains that Arkansas law requires women who seek abortion care to come to the health center to receive certain state-mandated information in person from a physician and then to wait at least 48 hours before having an abortion (Id., ¶ 14).
36. Dr. Ho further explains that a patient seeking medication abortion services must therefore come to the health center for one appointment, and at least 48 hours later, she must return to take a mifepristone pill and be given four misoprostol pills to administer at home (Decl. of Stephanie A. Ho, M.D., ¶ 15). The patient must also make a follow-up appointment for approximately two weeks later (Id.).
37. Dr. Ho further states that medication abortion is extremely safe and that 97.4% of medication abortion cases are successful under the regimen just described (Id., ¶ 16 (citing Daniel Grossman et al., Effectiveness and Acceptability of Medical Abortion Provided Through Telemedicine, 118 Obstetrics & Gynecology 296, 300 (2011))).
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38. Dr. Ho notes that a woman who takes mifepristone at a PPAEO health center has access to a 24-hour hotline number that she can call with any questions or concerns and that patients are provided with the name and number of a contracted OBGYN physician who has agreed to serve as the collaborative medical doctor to PPAEO abortion providers in Fayetteville and Little Rock (Id., ¶ 17).
39. Dr. Ho states that most patients who call the hotline “simply need reassurance that their symptoms (like bleeding and cramping) are normal and will subside.” (Decl. of Stephanie A. Ho, M.D., ¶ 18). In the “exceedingly rare case” that the nurse or physician on the hotline believes that immediate medical treatment is necessary, the patient is referred to the nearest emergency room, one of PPAEO’s physicians is notified, and health center staff follow up with the patient within 24 hours (Id.).
40. Dr. Ho notes that, during the course of her medical career, she has performed procedures that are much more complicated and have higher complication rates than medication abortion, including: induced and managed labor, delivery of babies, and tubal ligations (Id., ¶ 20). Dr. Ho also states that the national risk of maternal mortality associated with live birth is approximately fourteen times higher than that associated with induced abortions (Id. (citing Elizabeth G. Raymond & David A. Grimes, The Comparative Safety of Induced Abortion and Childbirth in the United States, 119 Obstetrics & Gynecology 215 (2012))). She also notes that, in Arkansas, the maternal mortality rate is even worse, with Arkansas ranked 44th in the nation for maternal mortality compared to other states in 2018 (Id. (citing United Health Foundation, 2018 Health of Women and Children Report (2018), https://www.americashealthrankings.org/lea rn/reports/2018-health-of-women-and-children-report/state-summaries-arkansas)).
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41. Dr. Ho further states that PPAEO drafted a job opening for a board-certified or board-eligible OBGYN to provide abortion care at the Fayetteville health center (Id., ¶ 23). This posting was listed on social media, and a letter was sent to all identified OBGYNs in Arkansas (Decl. of Stephanie A. Ho, M.D., ¶ 24).
42. PPAEO also took out an ad in the Journal of the Arkansas Medical Society seeking a board-certified or board-eligible OBGYN (Id., ¶ 25). PPAEO staff personally contacted physicians to see if they would provide abortion services (Id.).
43. In May 2019, Kathleen Paulson, M.D., a board-certified OBGYN, contacted PPAEO to state that she would be willing to provide medication abortion at the Fayetteville health center on a volunteer basis if the OBGYN requirement were to go into effect (Id., ¶ 26).
44. To date, no other OBGYNS have responded to PPAEO’s efforts to locate a boardcertified or board-eligible OBGYN willing to provide medication abortion at PPAEO’s health centers (Decl. of Stephanie A. Ho, M.D., ¶ 29).
45. Dr. Ho states that she has experienced stigma as an abortion provider in Arkansas, including being informed by a potential employer that the potential employer was not interested in being associated with an abortion provider (Id.).
46. Frederick W. Hopkins, M.D., M.P.H., a board-certified OBGYN, offers his declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 119-136; Decl. of Frederick W. Hopkins, M.D., M.P.H.).
47. Dr. Hopkins points out that, during his OBGYN residency, he did not receive any formal training in abortion care and that “[a]bortion care is not a requirement to complete an OBGYN residency, and most OBGYN residencies did not provide that training.” (Id., ¶ 13).
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48. Dr. Hopkins states that “[l]egal abortion is one of the safest medical procedures in the United States” and that “approximately 1 in 4 women in the U.S. obtains an abortion by the age of 45.” (Id., ¶ 21). As authorities for these statistics, Dr. Hopkins cites the National Academy Consensus Study prepared by the National Academy of Sciences, Engineering, and Medicine and reports by the Guttmacher Institute. See National Academy of Sciences, Engineering, and Medicine, The Safety and Quality of Abortion Care in the United States 2018, at 11, 74-75, available at https://doi.org/10.17226/24950) (hereinafter “National Academy Consensus Study Report”); The Guttmacher Institute, Induced Abortion in the United States (January 2011), https://www.guttmacher.org/sites/default/files/factsheet/fb_induced_abortion.pdf; The Guttmacher Institute, Abortion is a Common Experience for U.S. Women, Despite Dramatic Declines in Rates (Oct. 2017), https:www.guttmacher.org/news-release/2017/abortion-commonexperience-us-women-despite-dramatic-declines-rates. Dr. Hopkins further explains that a “majority of women having abortions in the United States already have one child.” (Id. (citing The Guttmacher Institute, Characteristics of U.S. Abortion Patients in 2014 and Changes Since 2008 (May 2016), https://www.guttmacher.org/report/characteristics-us-abortion-patients-2014)). Testimony consistent with this declaration was offered at the hearing and was subject to crossexamination.
49. Dr. Hopkins further states that there are two types of abortions in the United States: medication abortion and surgical abortion (Id., ¶ 23).
50. Dr. Hopkins also states that, regardless of the method of abortion, “serious complications are extremely rare, occurring in less than 0.5% of all cases.” (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 26 (citing Upadhyay, Ushma D., et al., Incidence of Emergency Department Visits and Complications After Abortion, 125 Obstetrics and Gynecology 175 (2015)).
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The types of complications that may occur following an abortion include infection, prolonged heavy bleeding, uterine perforation, cervical laceration, and retained tissue (Id., ¶ 27). Dr. Hopkins states that in the “vast majority of cases” such complications can be handled in an outpatient office setting (Id.). Testimony consistent with this declaration was offered at the hearing and was subject to cross-examination.
51. Dr. Hopkins also explains that a woman’s risk of pregnancy-related death is estimated to be 8.8 per 100,000 live births, whereas less than one woman dies for every 100,000 abortion procedures (Id., ¶ 28 (citing National Academy Consensus Study Report at Table 2-4, 224; Zane, S., et al., Obstetrics and Gynecology, Abortion-related mortality in the United States: 1998-2010, at 258-65, available at http://www.ncbi.nlm.nih.gov/pubmed/26241413; Bartlett, L.A., et al., Obstetrics and Gynecology, Risk Factors for legal induced abortion-related mortality in the United States, at 729-37, available at https://www.ncbi.nlm.nih.gov/pubmed/15051566)). Testimony consistent with this declaration was offered at the hearing and was subject to crossexamination.
52. Additionally, according to Dr. Hopkins, abortion-related mortality is significantly lower than mortality for other common outpatient procedures, including colonoscopies, plastic surgery, dental procedures, or adult tonsillectomies (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 28 (citing National Academy Consensus Study Report, Table 2-4, 2-24)). Testimony consistent with this declaration was offered at the hearing and was subject to cross-examination.
53. Dr. Hopkins asserts that “no fetus is viable at 18 weeks LMP.” (Id., ¶ 29). Instead, he notes that “[i]t is commonly accepted in the field of OBGYN that a normally developing fetus will not attain viability until at least 24 weeks LMP,” and he also explains that not all fetuses attain viability even at that stage (Id.).
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54. Dr. Hopkins states that patients can delay abortions for several reasons, including because they do not realize that they are pregnant until later in their pregnancy, difficulty in obtaining funds for the abortion and related expenses, and Arkansas’ mandated waiting period (Id., ¶¶ 30-31).
55. Additionally, Dr. Hopkins explains that some patients seek abortions at or after 18 weeks LMP because they discover a fetal anomaly, some of which cannot be tested for until 18 to 20 weeks LMP (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 32). In other circumstances, the results from prenatal tests performed at 18 to 20 weeks LMP are inconclusive and require referrals to other medical professionals and additional testing, all of which can lead to further delay (Id.). Finally, some women seek abortions at or after 18 weeks LMP because they have a medical condition that does not become apparent until that time or an existing medical condition that worsens during the course of pregnancy (Id., ¶ 33).
56. Dr. Hopkins further states that, if Act 493 takes effect, he will be forced to stop providing safe and effective pre-viability abortion care that his patients want and need (Id., ¶ 34). He further states that, as a result of Act 493 taking effect, some of his patients will be forced to delay their abortion care, at risk to their health, while they attempt to obtain an abortion out of state (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 34). He also states that others will be prevented from obtaining an abortion altogether and be forced to carry their pregnancies to term against their will, at the expense of their health (Id.).
57. Dr. Hopkins states that, if the OBGYN requirement goes into effect, Dr. Tvedten, Dr. Horton, and Dr. Ho will be unable to provide abortions (Id., ¶ 35).
58. In Dr. Hopkins’ experience training non-OBGYNs to provide abortions, “there is no difference in the abilities or skills between non-OBGYN practitioners and OBGYNs who have
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received the necessary training.” (Id., ¶ 36). Dr. Hopkins points out that the OBGYN requirement would allow a physician with no training in abortion to perform abortions while preventing other qualified clinicians with actual training and competency in abortion from providing such care (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 36). Testimony consistent with this declaration was offered at the hearing and was subject to cross-examination.
59. Dr. Hopkins further states that it is not necessary to be an OBGYN, much less a board-certified or board-eligible OBGYN, to be a competent abortion provider (Id., ¶ 37). According to Dr. Hopkins, the American College of Obstetricians and Gynecologists (“ACOG”), a “highly regarded, reliable, and extensively cited authority in my field,” recommends expanding the trained pool of non-OBGYN abortion providers, including family physicians and advanced practice physicians (Id. (citing Am. Coll. of Obstetricians and Gynecologists, Committee Op. No. 612 (Nov. 2014), available at https://www.acog.org/Clinical-Guidance-andPublications/Committee-Opinions/Committee-on-Health-Care-for-UnderservedWomen/Abortion-Training-and-Education)). Dr. Hopkins also notes that board-eligibility and board-certification are not required to practice medicine, and he also notes that “[a]t no point in the OBGYN board-eligibility or board-certification process must a physician demonstrate competence in the performance of abortions.” (Id., ¶ 35 n.13). Dr. Hopkins also states that studies recognize that non-OBGYNs are just as qualified and skilled in abortion care as OBGYNs (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 37 (citing National Academy Consensus Study Report, at 11, 14, 79, 95)). Testimony consistent with this declaration was offered at the hearing and was subject to cross-examination.
60. Dr. Hopkins states that “[a]ny clinician with adequate training in abortion care can safely and effectively handle” the most common abortion complications, even though such
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complications are rare (Id., ¶ 38). Testimony consistent with this declaration was offered at the hearing and was subject to cross-examination.
61. In the event a significant complication does arise from an abortion, Dr. Hopkins states that an abortion provider would transfer or direct the patient to the nearest hospital to receive the required care (Id., ¶ 39). If the complication is retained tissue following a medication abortion, Dr. Hopkins states that ACOG Practice Bulletin 143 states that the abortion provider should be trained in surgical abortion “or should be able to refer to a clinician trained in surgical abortion.” (Id. (citing Am. Coll. of Obstetricians and Gynecologists, Practice Bulletin 143 (Mar. 2014), available at https://www.acog.org/-/Practice-Bulletins/Committee-on-Practice-Bulletins---Gynecology/Public/pb143.pdf) (“ACOG Practice Bulletin No. 143”)). Testimony consistent with this declaration was offered at the hearing and was subject to cross-examination.
62. Dr. Hopkins travels to Arkansas to provide care at LRFP only approximately once every two months (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 42). When he comes to Arkansas, he does so for “three to four days every other month.” (Id., ¶ 44). Since Dr. Hopkins lives in California, each visit to Arkansas requires a day to arrive and to return, so his total duration away from California is five to six days for each visit (Id.). Testimony consistent with this declaration was offered at the hearing and was subject to cross-examination.
63. Due to Arkansas’ 48-hour mandated delay for abortion patients, LRFP treats patients only on Wednesdays, Fridays, and Saturdays, so Dr. Hopkins does not see patients for the entire time he is in Arkansas (Id., ¶ 45). Typically, patients will come in one day for the mandated counseling and two days later for the abortion (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 45). At the hearing, Dr. Hopkins testified that other physicians could perform patient counseling, but he also testified that the counseling is one of the reasons he likes seeing patients and that he
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does not want to work somewhere where he does not get to provide counseling to patients (Dkt. No. 84, at 47:1-8).
64. If the 48-hour waiting period is extended to 72-hours, then Dr. Hopkins will attempt to remain in Arkansas for a full five days, versus his regular three to four days (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 47). But, due to his professional obligations in California, he cannot visit Arkansas more frequently than he currently does (Id.). This is because he holds several clinical and teaching positions in California (Id., ¶ 48). He is unable to give up his current positions and relationships with patients who rely upon him in California (Id., ¶ 49).
65. Additionally, Dr. Hopkins will not relocate to Arkansas because his ability to earn a living in Arkansas would be “extremely uncertain.” (Id., ¶ 50). He predicts that, if he moved to Arkansas, then the Arkansas legislature would pass a new law designed to prevent him from providing abortion care (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 50). Testimony consistent with this declaration was offered at the hearing and was subject to cross-examination. Dr. Hopkins also testified that LRFP has never offered his more money and that, regardless of how much money LRFP might offer him, he could not relocate to Arkansas because that would require him to give up his entire career in California (Dkt. No. 84, at 37:1-10). Dr. Hopkins specifically stated that he would not be willing to relocate to Arkansas and work at LRFP even if they paid him a million dollars (Id., at 37).
66. Dr. Hopkins also notes that there are usually protestors outside of LRFP (Id., ¶ 51). He is personally familiar with other abortion providers who have been murdered and attacked (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 51). These dangers are “constantly” on Dr. Hopkins’ mind when he travels to Arkansas, and this is another reason he cannot move to Arkansas to provide full-time care at LRFP (Id.).
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67. Thomas Russell Horton, Jr., M.D., a staff physician at LRFP and an abortion care provider in Memphis, Tennessee, offers his declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 145-155; Decl. of Thomas Russell Horton, Jr., M.D.). Dr. Horton did not testify at the July 22, 2019, hearing.
68. Dr. Horton completed his residency in OBGYN, but he is not board-certified or board-eligible in OBGYN (Id., ¶ 5). Dr. Horton will not be able to provide abortion care if the OBGYN requirement goes into effect (Id.).
69. Dr. Horton began working as a staff physician with LRFP in February 2010 (Id., ¶ 11). Previously, Dr. Horton had provided abortion care in Tennessee up to approximately 15 weeks LMP, so he received training from Dr. Tvedten for performing surgical abortions up to 21.6 weeks LMP (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 11).
70. As a staff physician for LRFP, Dr. Horton works “one day per week and primarily perform[s] one-day surgical procedures, up to 18 weeks LMP.” (Id., ¶ 12). He also performs multiday procedures up to 21.6 weeks LMP when he works two or more days per week (Id.).
71. Dr. Horton has performed thousands of abortions at LRFP “with a very low rate of complications.” (Id., ¶ 13).
72. Dr. Horton states that becoming a board-certified OBGYN would not make him any more qualified to perform or to handle appropriately the rare complications that may arise following an abortion (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 18). According to Dr. Horton, “training and competence in abortion procedures is not a requirement for either board certification or board eligibility in OBGYN.” (Id.). He also notes that abortion care is not a requirement for completing an OBGYN residency and that many OBGYNs never receive any training for providing abortion care (Id.).
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73. Dr. Horton further explains that, to become a board-certified or board-eligible OBGYN, a physician must first complete his or her residency in OBGYN and then pass a written examination known as the American Board of Obstetrics and Gynecology (“ABOG”) Qualifying Examination (Id., ¶ 19).
74. After a physician becomes board-eligible, the physician has eight years from the date of completing his or her residency to become board-certified (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 20). If the physician does not become board-certified within those eight years, the physician loses his or her board-eligible status and must complete, at a minimum, an additional six months of supervised practice and assessment in a hospital associated with an accredited OBGYN residency program before he or she may become eligible for certification again (Id.).
75. Further, to become an ABOG board-certified OBGYN, a physician must: (1) be board-eligible; (2) satisfy certain prerequisites to becoming a candidate for certification, which includes preparing a comprehensive case list and obtaining unrestricted hospital privileges; and (3) sit for and pass another oral examination (Id., ¶ 21).
76. Dr. Horton completed his residency in OBGYN and passed the written examination for ABOG in June 2002 and June 2013, but he never obtained the necessary case list that is required to be a candidate for board certification (Id., ¶ 22). Dr. Horton states that being a board-certified OBGYN is not relevant or necessary to the provision of abortion care, and he also notes that completing the prerequisites for board-certification would have required him to take significant time away from providing care to his patients (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 22).
77. Since Dr. Horton did not become board-certified within eight years of completing his residency, he is no longer board-eligible; to retain his board eligibility, he would have to complete a minimum of six months of supervised training (Id., ¶ 23). Dr. Horton states that this
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is not a feasible option for him because he cannot leave his practice for the required six months to complete the training (Id.). He notes that the required training would provide no medical benefits to his patients (Id.).
78. Dr. Horton states that, if the OBGYN requirement goes into effect, he will no longer be able to provide abortion care in Arkansas since he is not and cannot become either a boardcertified or board-eligible OBGYN (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 24).
79. Dr. Horton also states that he “regularly” experiences harassment due to his work as an abortion provider (Id., ¶ 26). He notes that every day he has worked at LRFP “there have been protestors and picketers attempting to block the entrance to the parking lot.” (Id.). He further notes that the “protestors often shout at me upon arrival and say things such as: ‘Don’t kill those babies, Dr. Horton.’” (Id.).
80. On June 10, 2009, Dr. Horton was the subject of a bomb threat at the Memphis Center for Reproductive Health (“MCRH”) in Memphis, Tennessee (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 27). An individual called MCRH and informed the clinic staff that there was a bomb in Dr. Horton’s car (Id.). The clinic staff were forced to evacuate the clinic (Id.).
81. Dr. Horton’s ability to maintain or find a job in private practice have been directly affected by his work as an abortion provider (Id., ¶ 28). Around 2004 and 2005 in Memphis, Dr. Horton applied to several jobs as a generalist in private practice, but he did not receive any job offers and was not able to find other work due to his work as an abortion provider (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 28). In 2005, Dr. Horton was in the final round of interviews for a position in private practice in Richmond, Virginia, when he asked the prospective employer if he would be allowed to continue providing abortion care in Memphis while working in private practice; he did not receive a job offer and never heard from that prospective employer again (Id.).
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In 2005, while working at the Baptist Memorial Hospital-Crittenden in Arkansas, he was approached by one of the labor-and-delivery nurses at the hospital regarding abortion care (Id.). Afterward, he was informed that his services were no longer needed at that hospital (Id.). He later found out that a different OBGYN resident filled the position Dr. Horton had occupied at that hospital (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 28).
82. Many of Dr. Horton’s patients at LRFP are low-income and have a difficult time paying for an abortion (Id., ¶ 30). His patients may have to borrow money from a friend or a family member for the abortion or to rent a car or pay for a hotel in Little Rock (Id.). His patients often delay their care while they raise the necessary funds and make logistical arrangements (Id.).
83. Patients who are poor or low-income usually have jobs in which they do not get vacation or sick time, and it is difficult for such patients to take even a half day off work to be seen at LRFP (Id., ¶ 31). Dr. Horton states that, if such patients must take significant time off to travel out of state for a surgical abortion, they may lose their jobs (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 31). Additionally, patients often have difficulty obtaining child care; Dr. Horton states that on several occasions, patients have brought young children with them to their appointments at LRFP (Id., ¶ 32). He also states that, for women who do not want to or cannot bring their children with them to their appointments, finding child care for a whole day or more to travel out of state would be extremely difficult, if not impossible (Id.).
84. Dr. Horton states that, if the OBGYN requirement goes into effect, then those patients who cannot obtain sufficient funds to travel out of state will be forced to either attempt to self-induce an abortion or carry their pregnancies to term against their will (Id., ¶ 33).
85. Sheila M. Katz, Ph.D., offers her declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 162-189; Decl. of Sheila M. Katz, Ph.D.). Dr. Katz is an assistant professor of
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sociology at the University of Houston, in Houston, Texas (Id., ¶ 9). Her research has included qualitative methods and data analysis regarding women’s experiences of poverty, and her expertise includes the consequences and social policy determinants of women’s poverty nationwide, as well as regional and geographical similarities and differences across the United States (Id.).
86. The United States Department of Health and Human Services defines the federal poverty guideline as an income of under $12,490.00 per year for a single person, with $4,420.00 added per year for each additional member of the household (Id., ¶ 12).
87. According to 2017 Census Bureau data, Arkansas is the fifth poorest state in the United States, and its official poverty rate was 18.1% statewide (Decl. of Sheila M. Katz, Ph.D., ¶ 14). The poverty rate for women in Arkansas is even higher, at 19.5% (Id.).
88. The federal poverty guideline, while widely used, is considered by some to be an inadequate measure of poverty in the United States (Id., ¶ 17). Thus, in addition to those who fall below the federal poverty line, most poverty researchers consider individuals and family between 100% and 200% of the federal poverty line to be “low-income.” (Id., ¶ 18).
89. In Arkansas, 46.8% of families headed by single mothers with dependent children are living at or below 125% of the federal poverty line, and 37.5% are living at less than 100% of the federal poverty line (Decl. of Sheila M. Katz, Ph.D., ¶ 19).
90. Further, many poor individuals are part of the “working poor,” which Dr. Katz defines as those working at minimum wage or earning so little that they cannot meet basic needs for themselves or their family (Id., ¶ 20). The Bureau of Labor Statistics defines the “working poor [as] people who spent at least 27 weeks in the labor force . . . but whose incomes still fell below the official poverty level.” (Id.).
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91. According to Dr. Katz, a woman working full-time (40 hours a week) earning minimum wage in Arkansas now has annual earnings of approximately $19,240.00, which is just above the federal poverty threshold if she has one child in her household and below the poverty line if she has more children (Id., ¶ 21).
92. Dr. Katz states that the fair market rent, as designated by the United States Department of Housing and Urban Development, is $702.00 for a one-bedroom apartment and $831.00 for a two-bedroom apartment in Little Rock, Arkansas (Decl. of Sheila M. Katz, Ph.D., ¶ 22). If a woman in Little Rock has a full-time job earning the minimum wage, she would pay approximately 44% of her monthly income for a one-bedroom apartment and approximately 52% of her monthly income for a two-bedroom apartment (Id.).
93. In Arkansas, 17.6% of families headed by single mothers are living in “deep poverty,” which Dr. Katz characterizes as a household that lives at or below 50% of the federal poverty line (Id., ¶ 24).
94. In addition, 17 counties in Arkansas suffer from “persistent poverty,” which Dr. Katz defines as a county where the poverty rate has been at or above 20% for the past 30 years (Id., ¶ 25).
95. Dr. Katz explains that Arkansas women living in deep or persistent poverty face the greatest logistical, financial, and psychological hurdles to accessing health care services since they are the least likely to have adequate transportation, childcare, and financial resources and support (Decl. of Sheila M. Katz, Ph.D., ¶ 26).
96. Over two-thirds of women who obtain abortions in Arkansas already have at least one child (Id., ¶ 27).
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97. Dr. Katz states that it is her understanding that women in and around Little Rock who can now obtain both medication and surgical abortion through 21.6 weeks LMP at LRFP may be forced to travel out of state to obtain that care from the next closest provider (Id., ¶ 28). She states that the next-closest abortion provider is in Memphis, Tennessee, which is an approximately 300-mile round trip journey from Little Rock (Id.). Dr. Katz also states that such a journey would have to be made twice, as Tennessee requires “multiple, in person visits to the abortion clinic separated by at least 48 hours before a woman can obtain an abortion (Decl. of Sheila M. Katz, Ph.D., ¶ 28).
98. Dr. Katz is familiar with the research analyzing the effect of increased travel on women’s ability to obtain abortions, and she states that this research shows that increasing the distance that women must travel to access abortion services presents significant logistical and financial hurdles (Id., ¶ 30).
99. Dr. Katz states that for those women who do not own or have access to vehicles, the only significant intercity transportation between Little Rock and Memphis—other than flying—is a private bus service, such as Greyhound (Id., ¶ 34). A single round-trip Greyhound bus ticket between Little Rock and Memphis costs between $24.00 and $85.00 (Id.). If a woman must bring someone to accompany her in the event a sedative is used, this cost doubles (Decl. of Sheila M. Katz, Ph.D., ¶ 34). Further, a woman traveling by private bus may have to pay for the cost of taxi or bus fares to and from the private bus station in both Little Rock and Memphis (Id.). Moreover, given Tennessee’s 48-hour waiting requirement, either two bus trips would be required, or the woman would have to pay for two nights hotel accommodations in Memphis, which Dr. Katz says cost anywhere from $50.00 to $75.00 per night (Id.).
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100. Dr. Katz also points out that many poor and low-income women in Arkansas “likely do not own or have access to cars that are reliable enough to make a trip of the length required.” (Id., ¶ 36). Dr. Katz notes that, even if a low-income woman owns a car, it may be shared among adults, and it may not be reliable enough for intercity trips (Decl. of Sheila M. Katz, Ph.D., ¶ 36). Dr. Katz also points out that the cost of gas for round-trip car travel from Little Rock to Memphis is approximately $23.00 (Id., ¶ 37).
101. Dr. Katz explains that low-wage workers often have no access to paid time off or sick days and that seeking uncompensated time off can be a struggle for low-wage workers who often have less autonomy in setting their work schedules (Id., ¶ 39). Further, low-wage workers often work unpredictable, varied, or evening jobs (Id.). Dr. Katz states that the additional time off required by travel may make it difficult for a poor or low-income woman to keep her abortion confidential from her supervisor or other employees (Decl. of Sheila M. Katz, Ph.D., ¶ 39).
102. Also, Dr. Katz points out that intercity travel for an abortion requires a woman to miss work (Id., ¶ 40). In the event a woman can get time off, she is likely to forego wages in addition to paying for transportation and lodging (Id.). At the minimum wage in Arkansas of $9.25, foregoing two eight-hour shifts to travel to and attend abortion counseling and procedure appointments would result in $148.00 in lost wages, which is almost 10% of a woman’s monthly income if she works a full-time minimum wage job (Id.). These lost wages are on top of the cost of the abortion and other logistical costs (Decl. of Sheila M. Katz, Ph.D., ¶ 40).
103. Dr. Katz points out that, for those two-thirds of women seeking an abortion who already have a child, they must either pay the cost of an additional round-trip bus ticket for her child or pay the cost of childcare for the entire time she is traveling (Id., ¶ 41 (citing Tara C. Jatlaoui et al., Ctrs. for Disease Control and Prevention, Abortion Surveillance—United States
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2015, 67 MMWR Surveill. Summ. 1, at Table 16 (2018)). Alternatively the woman may be able to leave her child with a trusted family member or friend, though this may require that the woman disclose why she is traveling (Id.).
104. In sum, according to Dr. Katz, the total additional financial burden that a woman in or around Little Rock would have to incur to obtain a surgical abortion if she were forced to travel to Memphis would amount up to approximately $468.00, including lost wages, but not including childcare, food, or the cost of the procedure itself (Id., ¶ 44). For a woman working full-time and making Arkansas minimum wage, this is over a quarter of her monthly salary of $1,603.00 (Decl. of Sheila M. Katz, Ph.D., ¶ 44).
105. Dr. Katz also points out that a low-income woman may never have traveled outside the metropolitan or rural area where she lives, so even if she is able to gather the money necessary to make the trip, “the social-psychological hurdles of making multiple trips to an unfamiliar city, where she may know no one, may impede her.” (Id., ¶ 47). Accordingly to Dr. Katz, many of the women she has spoken to in her research indicate that, if a service is not available in their town or within a reasonable distance, “that service might as well not exist.” (Id.).
106. Dr. Katz points out that poor and low-income women attempt to meet unexpected expenses in three ways: (1) by making sacrifices in other areas, such as by not paying rent or utilities, drastically reducing food budgets, or foregoing needed medical care; (2) by borrowing money through payday loans; and (3) by borrowing money from a boyfriend or partner (Id., ¶¶ 5052). Dr. Katz explains that in her own interviews with poor and low-income women, such women talk about the economic necessity of relying on or returning to an abusive ex-boyfriend to help make ends meet when faced with an unexpected crisis (Decl. of Sheila M. Katz, Ph.D., ¶ 52).
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107. Dr. Katz is also familiar with studies analyzing the effect of increased travel on women’s ability to obtain abortions (Id., ¶ 54). The “Turnaway Study” found that the most common reason women were delayed in accessing abortion care was because of travel and procedure costs (Id., ¶ 55 (citing Upadhyay, Ushma D., et al., Denial of abortion because of provider gestational age limits in the United States, 104.9 Am. J. of Pub. Health 1687, 1697-94 (2014)). Furthermore, that study also cited that women reported that they experienced delay as a result of having to get time off work, finding child care, and not having anyone to travel with them (Id.).
108. Another study found that the most common reason for delay was that it took a long time to make abortion care arrangements and that poverty made women twice as likely to be delayed in making the arrangements to seek an abortion (Decl. of Sheila M. Katz, Ph.D., ¶ 56).
109. In the “Shelton Study,” researchers concluded that “the farther a woman has to travel to obtain an abortion, the less likely she is to obtain one.” (Id., ¶ 57). Furthermore, a recent study of Texas women seeking an abortion after the implementation of a law restricting abortion access documented that women were worried that they would suffer stigma if they utilized their social networks to overcome the barriers of traveling long distances to obtain abortion care (Id., ¶ 58).
110. Jason Lindo, Ph.D., a professor of economics at Texas A&M University, presents his declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 200-237; Decl. of Jason Lindo, Ph.D.). He has been a research associate at the National Bureau of Economic Research (“NBER”) since 2014 (Id., ¶ 5). Dr. Lindo testified at the July 22, 2019, hearing.
111. It is Dr. Lindo’s understanding that there are three types of abortions currently provided in Arkansas: (1) medication abortions that are available only up to 10 weeks LMP; (2)
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aspiration surgical procedures that are available until approximately 13 weeks LMP; and (3) dilation and evacuation (“D&E”) surgical procedures, which are performed until 21.6 weeks LMP (Id., ¶ 11).
112. Dr. Lindo explains that it is his understanding that medication abortions in Arkansas require three trips and that, under a new law set to take effect on July 24, 2019, the mandated delay between the first and second visits will increase to 72 hours (Id., ¶ 12).
113. As for surgical abortions, Dr. Lindo explains that two trips are required, though a third visit may be necessary for some D&E procedures performed later in the second trimester (Decl. of Jason Lindo, Ph.D., ¶ 13).
114. Dr. Lindo notes that LRFP is owned and operated by Dr. Tvedten, who provides approximately 61% of the abortion care at LRFP (Id., ¶ 14(a)). Dr. Horton provides approximately 33% of the clinic’s abortion care, and the remaining six percent of the clinic’s abortion care has been provided by Dr. Hopkins (Id.). Neither Dr. Tvedten nor Dr. Horton are board-certified or board-eligible OBGYNs (Id.).
115. Dr. Rodgers and Dr. Cathey provide medication abortions at PPAEO’s Little Rock health center (Decl. of Jason Lindo, Ph.D., ¶ 14(b)). Through April 2019, Dr. Cathey has provided 229 medication abortions while Dr. Rodgers has provided 199 medication abortions in the same time (Id.).
116. Between May 1, 2016, and April 30, 2019, LRFP provided 7,010 abortions, including 6,128 (or 87%) to Arkansas residents, 483 (or 7%) to Tennessee residents, and 188 (or 2.7%) to Mississippi residents (Decl. of Jason Lindo, Ph.D., ¶ 15).
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117. Between 2016 and 2019, approximately 75.5% of LRFP’s procedures were aspiration abortions (5,291); approximately 19.2% were D&E abortions (1,346), and approximately 5.3% were medication abortions (376) (Id., ¶ 16).3
118. Dr. Lindo analyzed several academic studies published in peer-reviewed journals that have documented that abortion regulations can have impacts on women’s ability to access abortion care (Id., ¶ 21). While there are some differences across these studies in terms of the data that were used and the set of outcomes that were evaluated, all three determined that increases in distance to the nearest clinic caused by regulation-induced clinic closures caused significant reductions in abortions obtained from medical professionals (Id., ¶ 24).
119. Dr. Lindo also evaluated the effects in Arkansas when the contracted physician requirement eliminated the availability of medication abortion in Arkansas from May 31 through June 18, 2018 (Decl. of Jason Lindo, Ph.D., ¶ 32). Dr. Lindo concludes that the contracted physician requirement reduced the number of abortions obtained from Arkansas providers by Arkansas residents by 17-27% (Id., ¶ 35).
120. Dr. Lindo also projects that Dr. Hopkins will likely be able to serve 42 women every other month, an estimate based upon the fact that Dr. Hopkins has served, at most, 21 women in any given day in the last three years (Id., ¶ 49(c)).
121. Dr. Lindo projects that Dr. Paulson will be able to provide abortions to a maximum of 12 patients per week (Id.).
122. Based upon his past capacity to provide abortions, Dr. Lindo estimates that Dr. Rodgers will be able to provide 480 medication abortions annually (Decl. of Jason Lindo, Ph.D.,
3 As plaintiffs have demonstrated that the Excel files provided to Dr. Lindo did not include the merger error from April 2018, and based upon the Court’s review of all record evidence in this case, the Court finds no reason to doubt the numerical estimates provided by Dr. Lindo.
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¶ 50 (Table 8)). Furthermore, taking into account that Dr. Cathey intends to add a half day to her provision of abortion care, Dr. Lindo estimates that she will be able to provide 476 medication abortions annually (Id.). Testimony consistent with this declaration was offered at the hearing and was subject to cross-examination.
123. Dr. Lindo has examined the likely effects of the OBGYN requirement on Arkansas women’s ability to access abortion care (Id., ¶ 41). To do so, Dr. Lindo presents his supplemental declaration (Dkt. No. 37; Supp. Decl. of Jason Lindo, Ph.D.).
124. Dr. Lindo points out that he has learned that, during the week of July 1, 2019, PPAEO stopped providing medication abortions at its Fayetteville health center (Id., ¶ 2). Accordingly, he has evaluated the likely effects of the OBGYN requirement under the current changed circumstances where PPAEO Little Rock and LRFP are the only providers of abortion care in Arkansas (Id.).
125. Dr. Lindo evaluates the effects of the OBGYN requirement under these changed circumstances in three different scenarios: (1) no OBGYN requirement; (2) the OBGYN requirement goes into effect and LRFP is forced to close; and (3) the OBGYN requirement goes into effect and LRFP stays open, allowing Dr. Hopkins to provide abortions every other month (Id., ¶ 3).
126. In order to ensure that he does not conflate the effects of PPAEO Fayetteville not offering abortions with the effects of the OBGYN requirement, Dr. Lindo’s supplemental declaration focuses upon women who have historically been served by LRFP and PPAEO Little Rock (Supp. Decl. of Jason Lindo, Ph.D., ¶ 8). In particular, his supplemental declaration focuses “on the 2,614 women annually served at these two locations over the past three years.” (Id.). Thus, according to Dr. Lindo, he is providing a conservative estimate of the effect of the OBGYN
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requirement since more than 2,614 women are likely to seek abortions in Little Rock annually, given that medication abortions are no longer available at PPAEO Fayetteville (Id.).
127. Dr. Lindo also explains that, based upon an average from 2016 to 2019, 2,779 Arkansas residents obtain an abortion each year (Decl. of Jason Lindo, Ph.D., ¶ 51). Dr. Lindo’s declaration also states that, based upon a three-year average, 1,927 Arkansas women seek surgical abortions in Arkansas annually (Id., ¶ 61).4
128. Dr. Lindo concludes that, of the 2,212 women who annually obtain surgical abortions in Arkansas, none of them will be able to do so if the OBGYN requirement goes into effect and LRFP is forced to close (Supp. Decl. of Jason Lindo, Ph.D., ¶ 10). Put another way, of the 2,614 women who obtain abortions in Little Rock annually, 2,212 (or 85%) of those women will not be able to obtain the same type of care in Arkansas that they otherwise would, absent the OBGYN requirement (Id., ¶ 10).
129. Dr. Lindo also performed calculations that assume that some women who would have received surgical abortions will substitute for medication abortions. Dr. Lindo estimates that LRFP and PPAEO Little Rock currently have the capacity to provide up to 4,664 abortions annually and that, if the OBGYN requirement goes into effect and LRFP is forced to close, that number will fall to 956,5 which is the sum of Dr. Rodgers and Dr. Cathey’s total estimated capacity (Id., ¶ 11). Accordingly, 1,658 (or 63%) of the 2,614 women who otherwise would obtain abortion care in Little Rock annually will not be able to access any type of abortion care in Arkansas if the
4 The Court calculates this sum from Table 11 in Dr. Lindo’s declaration. Dr. Lindo states that 1,134 Arkansans received surgical abortions in Arkansas at less than or equal to 10 weeks LMP and that 793 Arkansas residents obtained surgical abortions in Arkansas at greater than 10 weeks LMP.
5 480+476=956.
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OBGYN requirement goes into effect and LRFP closes (Id.). And 1,658 (or 52%) of the 3,167 women who have historically obtained abortion care in Arkansas annually (including at PPAEO Fayetteville) will not be able to access any type of abortion care in Arkansas (Supp. Decl. of Jason Lindo, Ph.D., ¶ 11).
130. Dr. Lindo also projects that, if the OBGYN requirement goes into effect and LRFP does not close, the availability of surgical abortions at LRFP will increase from 0 to 252 compared to the scenario where LRFP closes (Id., ¶ 12). Accordingly, in this scenario, all but 252 of the women who would otherwise seek surgical abortions would have no provider in Arkansas (Id., ¶ 13). Typically, 2,212 women have obtained surgical abortions each year in Little Rock (Id., ¶ 12). Testimony consistent with this declaration was offered at the hearing and was subject to cross examination.
131. As such, according to Dr. Lindo, 1,960 (or 75%) of the 2,614 women who obtain abortions in Little Rock annually will not be able to obtain the same type of care in Arkansas that they would otherwise seek, absent the OBGYN requirement (Supp. Decl. of Jason Lindo, Ph.D., ¶ 13). Additionally, these 1,960 are 62% of the 3,167 women who would historically have obtained abortion care in Arkansas annually (including PPAEO Fayetteville) but who will not be able to obtain the same type of care in Arkansas that they would have, absent the OBGYN requirement (Id.).
132. Dr. Lindo does account for the possibility that PPAEO Little Rock could provide up to 956 medication abortions annually for women who would historically have obtained abortion care in Arkansas. In conjunction with the 252 surgical abortions that LRFP could provide it if remains open despite the OBGYN requirement, this means that 1,406 (or 54%) of the 2,614 women who otherwise would obtain care in Little Rock annually will not be able to access any type of
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abortion care in Arkansas (Id., ¶ 14). Furthermore, 1,406 (or 44%) of the 3,167 women who have historically obtained abortion care in Arkansas annually (including at PPAEO Fayetteville) will not be able to obtain any type of abortion care in Arkansas (Id.).
133. Upon cross examination, Dr. Lindo testified that his conclusions were based upon information provided to him by plaintiffs and that, depending upon the assumptions made, his conclusions could change (Dkt. No. 84, at 144:14-16). Dr. Lindo also noted during his testimony that the capacity to provide abortions in his calculations are determined by the physicians who can provide abortion care (Id., at 150:1-4).
134. Kathleen Paulson, M.D., a board-certified OBGYN licensed to practice medicine in Arkansas, offers her declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 248-250; Decl. of Kathleen Paulson, M.D.). Dr. Paulson provides medical services, including outpatient gynecologic care and women’s wellness care, at a medical center in Fayetteville, Arkansas (Id., ¶ 1).
135. Linda W. Prine, M.D., a board-certified family physician, offers her declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 252-261; Decl. of Linda W. Prine, M.D.). Dr. Prine is a professor of family medicine and community health at the Icahn School of Medicine at Mount Sinai, and she also holds teaching positions at the Harlem Family Medicine Residency Program and the Mount Sinai Downtown Residency in Urban Family Medicine (Id., ¶ 4). She also maintains an active medical practice, including as a clinician at Planned Parenthood of New York City (Id.). Dr. Prine has provided medication and surgical abortion care to women up to sixteen weeks LMP, and over the last eighteen years, she has trained thousands of clinicians to provide abortion care (Id., ¶ 5). She states that those clinicians have come from several specialties,
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including family medicine, pediatrics, OBGYN, and internal medicine (Decl. of Linda W. Prine, M.D., ¶ 5). Dr. Prine testified at the July 22, 2019, hearing.
136. Dr. Prine knows of numerous family medicine practitioners who provide abortion care up to 24 weeks or more LMP (Id., ¶ 7). Furthermore, she has trained advanced practice clinicians, such as nurse practitioners, to provide abortion care (Id., ¶ 8). She states that it is well established that advanced practice clinicians can provide surgical abortion as safely and effectively as physicians (Id.). Testimony consistent with this declaration was provided at the hearing and was subject to cross examination (Dkt. No. 84, at 51:8-12).
137. Dr. Prine explains that the scope of practice for family medicine practitioners is significantly more complex than abortion care; specifically, she notes that managing a patient’s diabetes, heart disease, hypertension, and/or HIV/AIDS, or performing any number of other minor outpatient surgical procedures is more complex than abortion care (Decl. of Linda W. Prine, M.D., ¶ 16). She further notes that family practitioners provide miscarriage management, prenatal care, and delivery to low-risk patients (Id.). Dr. Prine states that miscarriage management involves many of the same skills required for abortion providers and that delivery, even to low-risk patients, has a higher complication rate than providing abortions (Id., ¶ 17 (citing Raymond & Grimes, supra, at 216-17)).
138. In Dr. Prine’s experience, residents from all specialties can become qualified abortion providers (Id., ¶ 20). According to Dr. Prine, one third of abortion providers in this country come from specialties other than OBGYN and that, based upon her experience, there is no difference in the training of an OBGYN resident and other clinicians in these skills (Decl. of Linda W. Prine, M.D., ¶ 20 (citing Katharine O’Connell, et al., First-Trimester Surgical Abortion Practices: A Survey of National Abortion Federation Members, 79 Contraception 385 (2009);
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Katharine O’Connell, et al., Second-Trimester Surgical Abortion Practices: A Survey of National Abortion Federation Members, 78 Contraception 492 (2008))).
139. Dr. Prine points out that ACOG characterizes requirements “that clinic physicians be board certified obstetricians-gynecologists despite the fact that clinicians in many medical specialties can provide safe abortion services” as “medically unnecessary requirements designed to reduce access to abortion.” (Id., ¶ 21 (citing Am. Coll. of Obstetricians and Gynecologists, Committee Op. No. 613 (Nov. 2014), https://www.acog.org/Clinical-Guidance-andPublications/Committee-Opinions/Committee-on_health-Care-for-UnderservedWomen/Increasing-Access-to-Abortion)). Additionally, the American Academy of Family Physicians (“AAFP”) adopted in 2014 a resolution opposing laws that “impose[] on abortion providers unnecessary requirements that infringe on the practice of evidence-based medicine.” (Id., ¶ 22 (citing Am. Acad. of Family Physicians, Resolution No. 10001, Oppose Targeted Regulation Against Abortion Providers (TRAAP laws) (2014), http://www.aafp.org/about/constit uencies/past-ncsc/2014.html)). Dr. Prine opines that the OBGYN requirement is the type of unnecessary requirement to which the AAFP policy refer, as it restricts access to abortion care with no medical benefit to patients (Id.). Dr. Prine also points out that the American Public Health Association likewise recognizes that training, not specialty, determines competence in providing abortion care (Id., ¶ 24 (citing Am. Public Health Ass’n, Policy Statement: Provision of Abortion Car by Advanced Practice Nurses and Physician Assistants, https://www.apha.org/policies-andadvocacy/public-health-policy-statements/policy-database/2014/07/28/16/00/provision-ofabortion-care-by-advanced-practice-nurses-and-physician-assistants)).
140. Dr. Prine cites a comprehensive report by the National Academies of Sciences, Engineering, and Medicine that states that family medicine physicians, among other clinicians, can
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“safely and effectively” provide medication and surgical abortions (Decl. of Linda W. Prine, M.D., ¶ 26 (citing National Academy Consensus Study Report, at 14)). This report concluded medication and suction aspiration abortions performed by family medicine physicians had high success rates and that “[a]ll complications were minor and managed effectively at rates similar to those in OB/GYN practices and specialty abortion clinics.” (Id., ¶ 27 (citing National Academy Consensus Study Report, at 105)). The report further concluded that “OB/GYNs, family medicine physicians, and other physicians with appropriate training and experience can provide D&E abortions.” (Id. (citing National Academy Consensus Study Report, at 14)).
141. Dr. Prine concludes that restricting the provision of abortion care to board-certified or board-eligible OBGYNs is not medically justified and provides no medical benefit (Id., ¶ 29). At the hearing, Dr. Prine testified that the National Academy Consensus Study Report confirmed that competencies do not depend on board certification but rather on the training and experience of the individual physician (Dkt. No. 84, at 62:8-12).
142. Dr. Prine also submits a supplemental declaration in support of plaintiffs’ motion (Dkt. No. 62-1; Supp. Decl. of Linda W. Prine, M.D.). Dr. Prine “strongly disagree[s]” with any contention that abortion creates or causes psychological or emotional problems that do not already exist or would have arisen regardless of the procedure (Id., ¶¶ 2-3). Citing reports from the National Academies of Sciences, Engineering and Medicine, the American Psychological Association (“APA”) Task Force on Mental Health and Abortion, and the Academy of Medical Royal Colleges, Dr. Prine states that “the rates of mental health problems for women with an unwanted pregnancy are the same whether they have an abortion or give birth” and that “there is no evidence that abortion gives rise to serious psychological and emotional harms.” (Id., ¶ 5 (citing Am. Psychological Ass’n, Task Force on Mental Health and Abortion, Report of the Task Force
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on Mental Health and Abortion, at 7-8 (2008), available at http://www.apa.org/pi/wpo/mentalhealth-abortion-report.pdf)).
143. Alison Stuebe, M.D., M.Sc., Fellow of the American College of Obstetrics and Gynecology (“F.A.C.O.G.”), provides her declaration in support of plaintiffs’ motion (Dkt. No. 21, at 290-301; Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G.). Dr. Stuebe is a board-certified maternal-fetal medicine specialist (“MFM”) and OBGYN (Id., ¶ 1). As an MFM, Dr. Stuebe specializes in the management of high-risk pregnancies; MFMs obtain three additional years of fellowship training, beyond the standard residency period for an OBGYN (Id.).
144. Dr. Stuebe is an associate professor in the Department of Obstetrics and Gynecology and the Department of Maternal and Child Health at the University of North Carolina (“UNC”) School of Medicine (Id., ¶ 3). She also serves as the Associate Director for Research and Development at the UNC Center for Maternal and Infant Health (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 3). Since 2008, Dr. Stuebe has trained hundreds of medical students, residents, and fellows in OBGYN (Id.).
145. Dr. Stuebe also maintains an active clinic practice focusing on care for women with high-risk pregnancies (Id., ¶ 5). A substantial part of her clinical work consists of conducting ultrasound and prenatal diagnostic tests and counseling women about fetal abnormalities (Id.).
146. Since UNC is a state hospital, Dr. Stuebe cares for patients from a wide range of socioeconomic and cultural backgrounds, including women who are undocumented immigrants without health insurance and women who are UNC employees with private insurance (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 6).
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147. While Dr. Stuebe currently does not provide medication or surgical abortions as part of her clinical practice, she does currently assist women in terminating pregnancies involving fetal anomalies through medical induction of labor at the hospital (Id., ¶ 7).
148. In her MFM practice, Dr. Stuebe regularly treats and counsels with pregnant women about genetic and other fetal anomalies (Id., ¶ 12). Because of her education, training, and clinic work, Dr. Stuebe is very familiar with the genetic anomaly Trisomy 21, which is commonly referred to as Down syndrome (Id., ¶¶ 12-13). While there are various risk factors for Down syndrome, Dr. Stuebe states that there is no way to predict before pregnancy whether a woman will have a fetus with Down syndrome (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 14).
149. Dr. Stuebe explains that there are a number of screening and diagnostic tests available to determine the presence of certain genetic, chromosomal, and structural anomalies, including Down syndrome (Id., ¶ 17). Screening tests cannot diagnose any anomaly and only indicate a likelihood or probability that one or more anomalies exist (Id., ¶ 18). Screening tests usually screen for a range of anomalies at the same time and may indicate a likelihood of more than one anomaly at once (Id.). Diagnostic tests, on the other hand, determine the existence or non-existence of anomalies with near certainty (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 18).
150. There are multiple Down syndrome screening tests used during pregnancy: the fetal cell-free DNA test; nuchal translucency and serum-marker screening tests; maternal serum quadruple marker (“Quad Screening”) tests; and targeted ultrasound examination (Id., ¶ 22).
151. Cell-free DNA testing can be performed as early as 10-12 weeks LMP, and results are usually available within 7 days (Id., ¶ 22(a)). Cell-free DNA tests detect approximately 99% of pregnancies affected with Down syndrome, though false positive results are higher for low-risk
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women (Id.). ACOG, therefore, advises that women should not take irreversible action based upon a cell-free DNA test result alone (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 22(a) (citing ACOG Practice Bulletin No. 163)).
152. If a screening test indicates an increased probability of a fetal genetic condition or aneuploidy, Dr. Stuebe offers a diagnostic test to confirm whether the genetic condition indicated by the screening test is present (Id., ¶ 23). There are two techniques for obtaining fetal cells for diagnostic testing: chorionic villus sampling (“CVS”) and amniocentesis (Id., ¶ 24).
153. Dr. Stuebe states that most women do not receive a confirmed diagnosis of Down syndrome until well into the second trimester of pregnancy (Id., ¶ 25). Further, amniocentesis is more widely available than CVS and cannot be performed until 15 weeks LMP, and test results from amniocentesis are often unavailable until 17 weeks LMP (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 25). Furthermore, a clinician performing an ultrasound may not be able to detect any associated anatomical abnormalities before approximately 18 weeks LMP (Id.).
154. Dr. Stuebe states that Act 619 will encourage women to withhold screening and diagnostic test results from medical providers the women visit for care, which could have negative consequences for both the clinician-patient relationship and women’s health, especially since understanding the meaning and reliability of various screening and diagnostic tests can be difficult (Id., ¶ 29).
155. Additionally, Dr. Stuebe states that Act 493 will “make it extremely difficult, if not impossible, for women to take the time necessary to confirm a diagnosis of Down syndrome or another fetal anomaly, and make an informed, autonomous decision regarding whether to carry to term or terminate the pregnancy.” (Id., ¶ 30). Specifically, amniocentesis results are unavailable before 16-17 weeks LMP, and targeted ultrasound examinations cannot be performed reliably until
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approximately 18 weeks LMP, at the earliest (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 30). Dr. Stuebe states that Act 493 creates artificial time pressure that could lead women and their families to rush their decision-making process for no medically justified reason (Id.).
156. Thomas Tvedten, M.D., the part owner and Medical Director of LRFP, provides his declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 371-384; Decl. of Thomas Tvedten, M.D.). Dr. Tvedten testified at the July 22, 2019, hearing.
157. Dr. Tvedten first began training to provide abortion care in 1985 at Women’s Community Health in Little Rock, a clinic that used to provide abortion care in Arkansas (Id., ¶ 5). Dr. Tvedten was trained by an experienced abortion provider and family medicine physician who had been providing abortion care in Arkansas since the 1970s (Id.). Dr. Tvedten began by first learning, and then providing, first trimester abortion care (Id., ¶ 6). After speaking to other providers and observing them perform second trimester procedures, Dr. Tvedten expanded the scope of his practice to second trimester procedures, eventually performing procedures up to approximately 21 weeks, 6 days LMP (Decl. of Thomas Tvedten, M.D., ¶ 7). Dr. Tvedten has consistently provided abortion care up to 21.6 weeks LMP for more than 15 years (Id.).
158. Starting in 2004, after the Federal Drug Administration (“FDA”) approved Mifeprex for combined use with misoprostol for early non-surgical abortion, Dr. Tvedten began providing medication abortion up to 10 weeks LMP (Id., ¶ 8).
159. Dr. Tvedten has also trained numerous providers to provide both medication and surgical abortions (Id., ¶ 9). Family planning and OBGYN residents and medical students regularly come to LRFP to observe Dr. Tvedten performing abortion procedures and to receive training (Decl. of Thomas Tvedten, M.D., ¶ 9). Furthermore, many OBGYNs in Arkansas refer
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patients to Dr. Tvedten for abortion care that they are not trained to or are unable to provide (Id., ¶ 10).
160. Dr. Tvedten states that, while complications arising from either medication or surgical abortion are extremely rare, he is trained to handle effectively and safely any issue that may arise, either by providing the follow-up care himself or by referring his patients to a “tertiary care facility.” (Id., ¶ 11).
161. Dr. Tvedten takes steps to ensure that he is always up to date on the latest advances in abortion care (Id., ¶ 12). For example, he attends yearly conferences on abortion care to further his education (Decl. of Thomas Tvedten, M.D., ¶ 12). He also discusses abortion care and complex abortion cases with other providers, including his OBGYN colleagues, and he reads practice bulletins issued by medical authorities such as ACOG (Id.). He also reviews articles published in peer-reviewed medical journals, such as Obstetrics & Gynecology, Contraception, the Journal of the American Medical Association, and other sources on this topic (Id.).
162. At LRFP, Dr. Tvedten and two other physicians provide surgical abortions up to 21.6 weeks LMP and medication abortions up to 10 weeks LMP (Id., ¶ 15). LRFP is one of three abortion clinics in Arkansas and is the only one that offers surgical abortions (Decl. of Thomas Tvedten, M.D., ¶ 15). Accordingly, LRFP is the only option for women seeking abortion care after 10 weeks LMP in Arkansas (Id.).
163. Dr. Tvedten points out that Arkansas law currently requires that LRFP patients who seek an abortion must make at least two-in-person trips to the clinic—first for the state-mandated informed consent process, including a non-directive discussion regarding their options, and the second for additional, non-directive counseling and the abortion itself, after a mandatory delay of at least 48 hours (Id., ¶ 20). For patients receiving abortion care at 18 to 21.6 weeks LMP, which
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is a two-day procedure, that law results in at least three trips (Id.). Dr. Tvedten points out that a new law, set to take effect on July 24, 2019, increases the mandatory delay period to at least 72 hours (Decl. of Thomas Tvedten, M.D., ¶ 20 (citing Ark. Act. 801, to be codified at §§ 20-161109, -1703(b), -1706)).
164. Dr. Tvedten is not a board-certified or board-eligible OBGYN (Id., ¶ 23). He cannot become either because he did not complete an OBGYN residency and cannot feasibly do so now, given “the extraordinary time and resources that would be needed to pursue a new specialty at this stage” of his career (Id. (citing Am. Bd. of Obstetrics & Gynecology, Candidate Requirements & General Details, Becoming an ABOG Registered Residency Graduate, https://www.abog.org/specialty-certification/general-cert-requirements-andinfo#Content_C009_Col00)). If the OBGYN requirement goes into effect, Dr. Tvedten will be forced to stop providing abortion care to his patients or risk incurring significant penalties (Id.).
165. Dr. Tvedten also states that the only other physician currently providing abortions at LRFP every week is Dr. Horton, who lives in Memphis, Tennessee, and generally provides care at LRFP approximately one day a week (Decl. of Thomas Tvedten, M.D., ¶ 24).
166. Dr. Tvedten further states that LRFP does not employ on a full-time basis or receive full-time assistance from any physicians who are board-certified or board-eligible OBGYNs (Id., ¶ 25). The only board-certified or board-eligible OBGYN who provides care at LRFP is Dr. Hopkins, but he can travel to Arkansas to provide abortion care at LRFP only approximately once every-other month (Id., ¶ 26).
167. Dr. Tvedten states that, over the past four years, LRFP has undertaken significant efforts to try to find an OBGYN who would be willing to assist LRFP in continuing to provide abortion care, including by providing abortions at LRFP or on a part-time or full-time basis (Id., ¶
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27). These efforts included renewed efforts after the Arkansas legislature passed the OBGYN requirement (Decl. of Thomas Tvedten, M.D., ¶ 27). Despite their efforts, LRFP has not been able to identify a single board-certified or board-eligible OBGYN provider who can provide full-time or near-full-time care at LRFP (Id.).
168. In Dr. Tvedten’s experience, many of the physicians who provide abortion care in Arkansas permanently reside in other states and only travel to Arkansas to provide abortion care because there are no local physicians willing to provide abortion care here (Id., ¶ 28).
169. According to Dr. Tvedten, locally-based physicians who do provide abortion care in Arkansas face stigmatization that may jeopardize their ability to continue to provide other care, retain positions or admitting privileges at hospitals, and protect their families from harassment (Id., ¶ 29).
170. Dr. Tvedten states that one of the Arkansas physicians from whom he first received training in abortion care, Dr. James Guthrie, was forced to abandon his provision of abortion care altogether because of the harassment that he and his family practice partners faced at the hands of the anti-abortion activists who picketed his family practice clinic and the homes of the physicians with whom he shared this practice (Decl. of Thomas Tvedten, M.D., ¶ 30).
171. Dr. Tvedten agreed to assist Dr. Guthrie in finding a replacement provider, and he eventually stayed on to provide abortion care on a permanent basis (Id., ¶ 31).
172. Dr. Tvedten recalls conversations with his former medical school classmates, and he relates that “they scoffed at the idea of providing abortion care in the state, given the stigma associated with it and the accompanying risk that providing abortion would harm their ability to maintain the private practices and positions at hospitals.” (Id.).
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173. Dr. Tvedten also gave up his family practice in large part because of his knowledge that the political climate and stigma surrounding abortion care would make it extremely difficult, if not impossible, to attract potential partners and patients to a separate practice while he continues to provide abortion care (Id., ¶ 33).
174. Dr. Tvedten states that, just a few years ago, anti-abortion activists found out where his children attend school and distributed flyers at the school grounds with his name, picture, and home address on them, labelling him as “complicit in murder.” (Decl. of Thomas Tvedten, M.D., ¶ 34). He and his family have also been subject to picketing at their private residence (Id.).
175. Dr. Tvedten has, in recent years, had conversations with local physicians who, despite considering themselves pro-choice and supportive of the full range of reproductive health care, including abortion care, have abandoned any idea of providing abortion care in Arkansas given the stigma associated with it (Id., ¶ 35).
176. Dr. Tvedten states that, due to LRFP’s inability to attract another full-time provider who is a board-certified or board-eligible OBGYN, LRFP will almost certainly have to be shut down entirely, absent some unanticipated development (Id., ¶ 36). He also states that, if LRFP remains open due to Dr. Hopkins’ provision of care, LRFP would still have to restrict significantly its provision of abortion care (Decl. of Thomas Tvedten, M.D., ¶ 36).
177. Indeed, in Dr. Tvedten’s opinion, even if LRFP is not forced to close immediately, if LRFP cannot employ a full-time board-certified or board-eligible OBGYN, then LRFP will be forced to close eventually (Id., ¶ 37).
178. In the event Act 493 takes effect, Dr. Tvedten and other physicians at LRFP will stop performing abortions in cases where the pregnancy is determined to be greater than 18 weeks LMP (Id., ¶ 42).
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179. Dr. Tvedten is aware that some of LRFP’s patients seek abortions after receiving a fetal diagnosis, including diagnoses of Down syndrome (Id., ¶ 44). In order to avoid the penalties set forth in Act 619, Dr. Tvedten states that he and the other physicians at LRFP will have no choice but to stop performing abortions when they have “knowledge” that the woman is seeking the abortion “solely” due to a test result indicating Down syndrome (Decl. of Thomas Tvedten, M.D., ¶ 46).
180. At the hearing, Dr. Tvedten noted that he has twice been sued for medical malpractice and that both of those cases were settled out of court (Dkt. No. 84, at 173:8-174:11). Dr. Tvedten also noted that his medical license was once suspended for three months in 1983 (Id., at 174:19).
181. Dr. Tvedten also testified that medical students shadow him and that he has lectured at UAMS (Id., at 176:5-13).
182. Dr. Tvedten also testified that he is not surprised that LRFP has not been able to find a board-certified or board-eligible physician to work at LRFP (Dkt. No. 84, at 178:13-22). He testified that the stigma associated with being an abortion provider in Arkansas reaches “way beyond your medical practice . . . .” (Id.).
183. Lori Williams, M.S.N., A.P.R.N., a nurse practitioner and Clinical Director of LRFP, offers her declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 388-403; Decl. of Lori Williams, M.S.N., A.P.R.N.). Ms. Williams has worked at LRFP since 2004 and has been the Clinical Director since 2007 (Id.). Since 2010, she has been a part owner of LRFP (Id., ¶ 5).
184. As LRFP’s Clinical Director, Ms. Williams is responsible for all aspects of the dayto-day operations, including overseeing patient care in coordination with the physicians and other
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health-care professionals, supervising staff, maintaining policies and procedures, and ensuring that LRFP complies with all laws and regulations (Id., ¶ 8).
185. Ms. Williams states that “[a]bortion is one of the safest medical procedures currently available to women in the United States” and that “[i]t is substantially safer than giving birth . . . .” (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 9 (citing National Academy Consensus Study Report, at 74-75)).
186. Ms. Williams states that only three physicians currently provide care at LRFP: Dr. Tvedten, Dr. Horton, and Dr. Hopkins (Id., ¶ 11). She states that all three of these doctors are extremely experienced in abortion care and that they can handle any complications that may arise, including by providing treatment at LRFP and by referring patients to a local hospital when necessary (Id.).
187. LRFP offers medication abortion from the point in pregnancy when an intrauterine pregnancy can be confirmed (typically 5-6 weeks LMP) to 10 weeks LMP (Id., ¶ 13). LRFP offers aspiration abortion from approximately 3-4 weeks LMP through approximately 13 weeks LMP and typically performs a D&E procedure beginning around 14 weeks LMP through 21.6 weeks LMP (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 14). Ms. Williams notes that aspiration and D&E abortions do not involve incisions (Id.).
188. Ms. Williams states that it is common for a woman who can choose between a medication and surgical abortion to have a strong preference for a surgical abortion (Id., ¶ 15). She states that while there are many reasons for this, “many women prefer the surgical option because it requires fewer visits to the clinic, and thus is associated with a lower burden in terms of funding and time.” (Id.).
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189. LRFP currently provides patient care three days per week, and to accommodate the 48-hour mandated waiting period, LRFP typically provides care on three staggered days each week (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 17). She also states that LRFP can safely and effectively “provide abortion care up to approximately 20-25 women each day, depending on the variables associated with the specific patient-care needs presented on any given day.” (Id.).
190. LRFP operates with substantial fixed costs each month, the most significant of which is overhead related to LRFP’s 13 full-time staff members (Id., ¶ 19).
191. Ms. Williams states that, in 2018, LRFP provided approximately 170 second trimester abortions after 18 weeks LMP (Id., ¶ 21).
192. At the hearing, Ms. Williams testified that LRFP has patients who currently receive abortions that would no longer be able to obtain those services with LRFP if Act 493 goes into effect (Dkt. No. 84, at 100:16-18).
193. Ms. Williams further states that, if Act 493 takes effect, LRFP will stop providing abortions after 18 weeks LMP, and she asserts that this will force women to travel out of state for another abortion care provider (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶¶ 22-23). Ms. Williams notes that a significant number of LRFP’s patients are poor or low income and receive financial assistance to cover part of the costs of their abortion care (Id., ¶ 23).
194. Ms. Williams also states that, from conversations with patients, she understands that the efforts required to make the necessary plans to come to LRFP cause anxiety and stress, which are exacerbated by travel and logistical arrangements (Id., ¶ 24). She notes that the need to arrange for time off work on multiple days can be challenging and that many LRFP patients are in low-wage jobs where they are unlikely to receive vacation or sick days (Id.). She notes that her
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patients report that they risk their employment and confidentiality by asking for time off (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 24).
195. Furthermore, based upon her counseling with patients, Ms. Williams knows that making the necessary arrangements and raising funds for travel and other costs associated with coming to LRFP can force patients to delay seeking care (Id., ¶ 25). She also notes that transportation presents a major challenge in rural Arkansas, as there are few public-transportation options and rural residents often live far away from health-care providers (Id.). According to Ms. Williams, “[n]umerous patients who come to the clinic for abortion care in the second trimester, including after 18 weeks LMP, have conveyed to me during the counseling process that they would have preferred to have obtained an abortion sooner but were delayed due to the logistical challenges described above (Id.).
196. At the hearing, Ms. Williams testified that LRFP knows which of its patients qualify for financial assistance based on income (Dkt. No. 84, at 82:21-23). According to Ms. Williams, the NAF provides funding to patients who are at 100 or 110% of the federal poverty line and that approximately 30% of LRFP’s patients qualify for NAF funding (Id.).
197. Ms. Williams also notes that the risks associated with abortion procedures increase as the pregnancy progresses and that delay may worsen any maternal health conditions associated with the pregnancy (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 26).
198. Ms. Williams states that she is “aware that some of our patients seek abortions after receiving a fetal diagnosis, including Down syndrome.” (Id., ¶ 29). She notes that while LRFP does ‘not require patients . . . to tell us the reason or reasons they are seeking an abortion, patients who are seeking an abortion after a fetal diagnosis usually disclose this fact . . . .” (Id.). She also notes that these patients come to LRFP “from across Arkansas and out-of-state, with many referred
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. . . from Maternal Fetal Medicine specialists.” (Id.). Ms. Williams avers that, if Act 619 goes into effect, the physicians at LRFP will stop performing abortions when they know that a patient is seeking an abortion solely based on a test result indicating Down syndrome, a prenatal diagnosis of Down syndrome, or any other reason to believe that the fetus has Down syndrome (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 31).
199. Ms. Williams furthers states that, if Act 619 goes into effect, and LRFP is forced to turn away these patients, all these patients will have to seek abortion care out-of-state, as patients do not receive a Down syndrome diagnosis until after 10 weeks LMP and thus cannot seek a medication abortion at another Arkansas provider (Id., ¶ 32). Ms. Williams notes that, by forcing women to travel out-of-state, Act 619 will cause extreme hardship and delay for many of LRFP’s patients (Id.). She also notes that many of LRFP’s patients will be prevented from obtaining an abortion (Id.).
200. Ms. Williams notes that Dr. Hopkins is the only doctor who performs abortion care at LRFP who is a board-certified or board-eligible OBGYN (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶¶ 34-35).
201. On April 2, 2019, LRFP sent a letter to all OBGYNs listed on the Arkansas medicalboard licensure list describing LRFP and soliciting interest in providing care at the clinic (Id., ¶ 36). LRFP received no responses (Id.).
202. This letter states that LRFP is looking for a part-time, board-certified OBGYN to contract with LRFP to provide abortion services (Dkt. No. 2-1, at 404). The letter also states that LRFP sees patients three days a week, malpractice insurance would be paid by LRFP, and that the compensation for services is generous and based upon the number of procedures completed per day (Id.).
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203. Furthermore, Ms. Williams has raised the need for a board-certified or boardeligible OBGYN with numerous professionals at the National Abortion Federation (“NAF”), and on April 1, 2019, she submitted a request to a NAF program that matches abortion providers with clinics around the country (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 37). Through those efforts, LRFP came into contact with two physicians who expressed preliminary interest in a position at LRFP, but neither lives in Arkansas or is licensed to practice in Arkansas (Id.).
204. Ms. Williams also notes that there are protestors outside the clinic nearly every day and that the “harassment and intimidation is immediately apparent to any prospective physician or staff member (Id., ¶ 39). Furthermore, medical residents who receive abortion training at LRFP “frequently express concern about driving in their own vehicles to the clinic and wearing scrubs that identify them as medical providers.” (Id.).
205. Third-party vendors have refused to do business with LRFP because LRFP provides abortion care (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 40). Ms. Williams relates an instance where an oxygen supplier ceased to do business with LRFP after anti-abortion activists informed the supplier that LRFP provides abortion care (Id.).
206. Anti-abortion activists mailed Ms. Williams’ photograph and a letter to 800 of her neighbors and went door-to-door in her neighborhood, informing members of her community that she is involved in abortion care (Id., ¶ 41).
207. In addition to LRFP’s efforts to comply with the OBGYN requirement, LRFP has sent letters to Arkansas OBGYNs on at least two other occasions to solicit interest in assisting LRFP to provide abortion care or in joining the staff in various capacities (Id., ¶ 42).
208. LRFP sent a letter in early 2015 to all Arkansas OBGYNs listed in the medicalsociety directory but received no response except from Dr. Cathey (Decl. of Lori Williams,
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M.S.N., A.P.R.N., ¶ 42; Dkt. No. 2-1, at 405-06). LRFP again sent a letter on January 18, 2016, to all Arkansas OBGYNs listed on the medical board licensure list, but they received no response (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 42; Dkt. No. 2-1, at 407).
209. While Dr. Browne and Dr. Hopkins have agreed to provide limited care at LRFP, LRFP has not identified any board-certified or board-eligible OBGYN who is available to provide care between August 12 and October 20, 2019, the next week that Dr. Hopkins can provide care at LRFP (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 47).
210. According to Ms. Williams, if Dr. Browne and Dr. Hopkins provide care at LRFP under the OBGYN requirement, they will spend the first of their three days at the clinic satisfying the state-manded informed-consent requirements which will need to occur at least 72 hours before any procedure (Id., ¶ 48). Dr. Tvedten would not be able to continue working at the clinic only to obtain patient informed consents, as LRFP cannot afford to keep him on staff for such a limited role (Id., ¶ 48). LRFP cannot charge patients for the initial visit at that visit (Id.). Dr. Browne and Dr. Hopkins would then need to spend their second and third days at LRFP performing procedures (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 48).
211. Ms. Williams states that LRFP would not be an economically viable medical practice if it were able to provide patient care only three days a week every-other month, or even three days a week every month (Id., ¶ 49). Even if LRFP could come up with the funds to pay staff to provide care only three days every other or each month, Ms. Williams states that this would keep LRFP from retaining the highly trained and skilled staff that it needs to operate the clinic (Id., ¶ 50).
212. Plaintiffs present the declaration of Brandon J. Hill, Ph.D., the chief executive officer of PPGP (Dkt. No. 32; Decl. of Brandon J. Hill, Ph.D.). Dr. Hill states that, due to
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increasing problems with a landlord, including managing protester presence in the immediate vicinity of PPAEO Fayetteville’s facility and the resultant concerns about patient and staff safety, PPAEO has ceased offering abortions at PPAEO Fayetteville (Id., ¶ 4). Dr. Hill states that an antiabortion “crisis pregnancy center” organization began parking its van in a lot immediately adjacent to the one used for the PPAEO Fayetteville health center (Id., ¶ 3). Dr. Hill states that “[s]taff and patients were alarmed and distressed by the van’s presence, and [they] were also concerned about medically inaccurate information being directed at patients.” (Id.). Dr. Hill states that they also feared that increased protester visibility could lead to security issues (Decl. of Brandon J. Hill, Ph.D., ¶ 3). Dr. Hill further states that the relocation was necessary given the arson at one of PPGP’s Missouri health centers less than six months ago (Id.). He also notes that PPAEO Fayetteville’s lease expired at the end of July 2019 (Id.).
213. Dr. Hill states that PPAEO Fayetteville ceased providing abortions in anticipation of the health center closing so that PPAEO Fayetteville could schedule follow-up visits for all of its medication abortion patients prior to the health center closing (Id., ¶ 4). He also avers that his staff is working diligently to find a new location for PPAEO Fayetteville (Decl. of Brandon J. Hill, Ph.D., ¶ 5). Specifically, he states that, through a realtor, PPGP has contacted dozens of landlords, management companies, and property owners, but they have been unable to confirm a lease that is move-in ready or that would require only minor modifications to meet their needs (Id.).
214. Dr. Hill states that there are several “live possibilities” and that he is confident they will be able to secure a location, but he confirms that there “will be a gap in time when [they] are unable to provide services.” (Id., ¶ 6).
215. Plaintiffs also present the supplemental declaration of Brandon J. Hill, Ph.D., (Dkt. No. 62, at 1-3; Supp. Decl. of Brandon J. Hill, Ph.D.). Dr. Hill states that PPGP is currently
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working to open a new health center in Little Rock in August 2019 (Id., ¶ 2). PPGP is seeking a new location due to size constraints at its current facility, and PPGP has purchased a property for its new facility (Id., ¶ 4). PPGP will not, however, be able to provide surgical abortions at the new facility or provide care for more medication abortion patients due to the “capacities of [its] providers . . . .” (Id., ¶ 6).
216. Plaintiffs also present the affidavit of Christopher Attig, an individual who lives in Little Rock, Arkansas, and who has a son with Down syndrome (Dkt. No. 63; Decl. of Christopher Attig). Mr. Attig opines that Act 619 does “nothing to honor, protect, or help my son and other people diagnosed with Down syndrome.” (Id., ¶ 5). Instead, Mr. Attig believes that Act 619 “uses my son and other children diagnosed with Down syndrome as political tools to criminalize and restrict abortion.” (Id.). He further states that children with Down syndrome require special support that “can be very expensive and difficult to find,” and in his opinion “the lack of accessible and affordable medical services and therapies needed to support a child diagnosed with Down syndrome” is one of the factors that influences a woman’s decision to abort a pregnancy when Down syndrome is indicated (Id., ¶ 6).
217. Defendants present various declarations from other cases not before the Court. Ms. Ashleigh Moon filed an affidavit in Planned Parenthood of Indiana and Kentucky, et al. v. Commissioner, Indiana State Department of Health, et al., 1:16-cv-763-TWP-DML (S.D. Ind.), and defendants have filed that declaration here (Dkt. No. 45-1, at 53-55). Ms. Moon avers that she had a difficult pregnancy and that she was advised by her physicians to have an abortion and told that her child would suffer from genetic abnormalities (Id., ¶¶ 1-14). Ms. Moon states that her child was born premature, survived, and is “genetically perfect.” (Id., ¶¶ 14-15).
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218. Defendants also present the declaration of Michele Mazelin, which was filed in Planned Parenthood of Indiana and Kentucky, et al. v. Commissioner, Indiana State Department of Health, et al., 1:16-cv-763-TWP-DML (S.D. Ind.) (Dkt. No. 45-1, at 57-59). Ms. Mazelin avers that she was pregnant with twins and that she was pressured by a treating physician to have amniocentesis (Id., ¶ 5).
219. Defendants present the declaration of Steven E. Calvin, M.D., which was filed in Planned Parenthood of Indiana and Kentucky, et al. v. Commissioner, Indiana State Department of Health, et al., 1:16-cv-763-TWP-DML (S.D. Ind.) (Dkt. No. 45-1, at 61-68; Decl. of Steven E Calvin, M.D.). Dr. Calvin avers that women have described to him that they have felt pressure to undergo prenatal screening and to have an abortion if Down syndrome is detected (Id., ¶ 20). Dr. Calvin also states that “[a] fetus at 10 weeks and later has arms, legs, and a head” and is not confusable with medical material that may be the product of surgery (Id., ¶ 26).
220. Defendants present the affidavit of Ashley K. Fernandes, M.D., Ph.D., which was filed in Preterm-Cleveland, et al. v. Lance Himes, Director, et al., 1:18-cv-109 (S.D. Ohio) (Dkt. No. 45-2, at 2-12; Decl. of Ashley K. Fernandes, M.D., Ph.D.). Dr. Fernandes is a physician who resides and practices medicine in Ohio. Dr. Fernandes avers that genetic counselors and physicians are biased against “unborn persons with DS . . . .” (Id., ¶ 8).
221. Defendants present the declarations of Kelly Kuhns, Susan Scheid, Susan Gill, and Jaclyn Keough, which were filed in Preterm-Cleveland, et al. v. Lance Himes, Director, et al., 1:18-cv-109 (S.D. Ohio) (Dkt. No. 45-2, at 26-40). Each of these individuals has a child with Down syndrome. These individuals’ affidavits appear to indicate that they live in Ohio, though it is not entirely clear where Ms. Scheid, Ms. Gill, and Ms. Keough reside.
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222. Defendants present the declaration of Dennis M. Sullivan, M.D., which was filed in Preterm-Cleveland, et al. v. Lance Himes, Director, et al., 1:18-cv-109 (S.D. Ohio) (Dkt. No. 45-3, at 89-98; Decl. of Dennis M. Sullivan, M.D.). Dr. Sullivan opines that the medical profession is biased to prefer abortions after a diagnosis of Down syndrome (Id., ¶ 15). Dr. Sullivan is a professor at Cedarville University, in Cedarville, Ohio (Id., ¶ 1).
223. Defendants present the declaration of Robin Lynn Treptow, Ph.D., which was filed in Preterm-Cleveland, et al. v. Lance Himes, Director, et al., 1:18-cv-109 (S.D. Ohio) (Dkt. No. 46-1, at 2-4; Decl. of Robin Lynn Treptow, Ph.D.). Dr. Treptow has a son with Down syndrome, and she states that medical professionals have a bias against individuals with Down syndrome (Id., ¶¶ 2,6). Dr. Treptow is an adjunct professor in Arlington, Virginia (Id., ¶ 1).
224. Defendants also present the affidavit of Allan Parker, the president of The Justice Foundation (Dkt. No. 49-1, at 1-3). Attached to Mr. Parker’s declaration are fifteen affidavits from Arkansas women. Each of these affiants states that she regrets her abortion (Dkt. No. 49-1, at 427). The abortions in question occurred between 1981 and 2003 (Id.).
225. Defendants also present the declaration of Millie Lace, the founder and director of Concepts of Truth, Inc. (“Concepts”) an organization based in Wynne, Arkansas, with satellite offices in Ohio and New Jersey (Dkt. No. 49-2; Decl. of Millie Lace). Ms. Lace avers that Concepts is a non-profit organization that provides counseling for pregnant women (Id., ¶ 3). Ms. Lace states that she had an abortion in approximately 1979 on the advice of her physician, which caused her both physical and psychological pain (Id., ¶¶ 6, 8). Ms. Lace further states that “Concepts informs women of the truth that an abortion terminates the life of a whole living human being,” and she avers that “[f]ollowing the counseling that Concepts provides, about 85% of all of the women who originally thought they wanted to have an abortion change their minds or
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otherwise decide to carry their baby to full term and birth.” (Id., ¶ 15). Ms. Lace also states that Concepts provides counseling to women who have had abortions, and she reports that “between 65% and 75% of the women report that they felt they were misled by the abortion clinic and that their decisions were uninformed and in many ways pressured or coerced.” (Id., ¶ 16).
226. Defendants present the declaration of Mischa Martin, the Director of the Division of Children and Family Services (“DCFS”) at the Arkansas Department of Human Services (“DHS”) (Dkt. No. 49-3; Decl. of Mischa Martin). Ms. Martin states that the Arkansas Safe Haven law allows a mother to give up custody of any baby up to 30 days told at any hospital emergency room or law enforcement agency without facing prosecution for endangering or abandoning a child (Id., ¶ 2). Ms. Martin explains that, once a baby is given up under the Safe Have law, DCFS places the baby with an “adoptive home.” (Id., ¶ 5). Ms. Martin further explains the process for screening prospective adoptive parents (Id., ¶ 8).
227. Defendants also present the affidavit of Kristie Hayes, the Program Administrator for the Income Support Group within the Arkansas Department of Human Services (Dkt. No. 494; Decl. of Kristie Hayes). Ms. Hayes states that DHS provides “Limited Pregnant Women Medicaid,” “Full Pregnant Women Medicaid,” “Unborn Child Medicaid Coverage,” and “Newborn Medicaid.” (Id., ¶¶ 2-6). Ms. Hays also explains that the ARKids First Program covers children in households up to 142% or 211% of the federal poverty level (Id., ¶ 7). Ms. Hayes states that for families raising a child with Down syndrome, the child is eligible for ARKids and The Tax Equity and Fiscal Responsibility Act (“TEFRA”) Medicaid program (Id., ¶ 9). She also points out that families with children who have Down syndrome may be eligible for Supplemental Security Income (“SSI”) or Developmental Disabilities Services (Decl. of Kristie Hayes, ¶¶ 1011).
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228. Defendants also present the declaration of Mary Silfies (Dkt. No. 49-5, at 1-3; Decl. of Mary Silfies). She is “part of a sidewalk prayer ministry group that often goes” to LRFP on Wednesdays and Fridays, if LRFP is open (Id., ¶ 1). She states that every participant “is required to sign a Statement of Peace, outlining the behavior that is expected,” and she further states that her group does “not engage in any behavior that would be considered harassing.” (Id., ¶¶ 2-3). Ms. Silfies states that LRFP has installed water sprinklers to discourage her group (Id., ¶ 4).
229. Ms. Silfies states that “[i]t is not unusual to observe ambulances being called” to LRFP, and she attaches a spreadsheet that she received in response to filing a Freedom of Information Act request with Little Rock’s ambulance service (Decl. of Mary Silfies, ¶ 5). This spreadsheet appears to show 64 instances since 1999 when an ambulance has been called to LRFP’s address (Dkt. No. 49-5, at 4-5). Ms. Silfies states that the three ambulance calls to LRFP in 2019 were all made on days when Dr. Tvedten was working (Id., ¶ 7). She says that she knows this because she was on the sidewalk when the ambulances were called, she recognizes Dr. Tvedten, and she makes “a personal note of who the abortionist is each time I am there.” (Id.).
230. Defendants present the declaration of Kathi Aultman, M.D. (Dkt. No. 49-6, at 124; Decl. of Kathi Aultman, M.D.). Dr. Aultman is a Fellow of the American College of Obstetricians and Gynecologists (Id., ¶ 1). Dr. Aultman describes the requirements for board certification for OBGYNs, including a four-year specialized residency (Id., ¶ 12). Dr. Aultman states that “[p]eer-reviewed studies demonstrate that board certified physicians are better doctors.” (Id., ¶ 17). She points to studies that purport to show that board-certified physicians are less likely to be disciplined by state medical boards (Id. (citing Rebecca Lipner, et al., Specialty Certification Status, Performance Ratings, and Disciplinary Actions of Internal Medicine Residents, 91 Academic Medicine 376 (2016); Michael R. Peabody, et al., The Relationship Between Board
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Certification and Disciplinary Actions Against Board-Eligible Family Physicians, 94 Academic Medicine 847 (2019) (reviewing the likelihood of discipline for board-certified family physicians); Neal D. Kohatsu, et al., Characteristics Associated With Physician Discipline: A Case-Control Study, 164 Arch. Internal Medicine 653 (2004))). She also points to studies that show that physicians who have been in practice longer may be more likely to provide poor care (Id., ¶ 19 (citing Niteesh Choudry, et al., Systematic review: The relationship between clinical experience and quality of health care, 142 Annals of Internal Medicine 269 (2005))).
231. Dr. Aultman describes ABOG’s “maintenance of certification” (“MOC”) process, wherein board-certified physicians engage in continuing professional development (Id., ¶¶ 22-23 (citing Christine K. Cassell, Professionalism And Accountability: The Role of Specialty Board Certification, 119 Trans. of the Am. Clinical and Climatological Ass’n 295, 297 (2008))).
232. Dr. Aultman also states that medication abortions are riskier than aspiration abortions, and she states that “medication abortion patients are likely to require surgical follow-up treatment for retained products or bleeding.” (Id., ¶ 27).6 She also states that all OBGYNs are trained to evacuate the uterus in the first and second trimesters (Id., ¶ 28 (citing Jessica Bienstock, et al., The Obstetrics and Gynecology Milestone Project at iv (2015), available at http://www.acgme.org/Portals/0/PDFs/Milestones/ObstetricsandGynecologyMilestones.pdf (noting that the milestones discussed are designed as targets, not as requirements, and that the graduation decisions are “the purview of the residency program director”))).
233. Dr. Aultman opines that “[c]omplications from abortion are significantly underreported.” (Id., ¶ 29). She states that this is because some states do not report their data and because
6 Dr. Aultman’s citation for this proposition is found on a private website that cannot be accessed without a subscription.
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“women are often ashamed to tell anyone that they had an abortion . . . .” (Id.). Dr. Aultman also says there is no support for the statement that abortion is less risky than childbirth (Id., ¶ 31 (citing Byron Calhoun, Systematic Review: The maternal mortality myth in the context of legalized abortion, 80 The Linacre Quarterly 264 (2013) (arguing that abortion-related deaths are underreported and positing a connection between abortion and suicide, cancer, and substance abuse))). She also asserts that the low mortality and morbidity rates for early abortions masks the risk associated with abortions at 21 weeks LMP or greater (Id., ¶¶ 33-34).
234. Dr. Aultman states that, according to the FDA, there have been 22 deaths “associated with the administration of Mifepristone.” (Id., ¶ 46).
235. Defendants also present the rebuttal declaration of Dr. Aultman (Dkt. No. 73; Rebuttal Decl. of Kathi Aultman, M.D.). Dr. Aultman has reviewed the “17 affidavits and declarations . . . in the record of this case from women who have been hurt by abortion.” (Id., ¶ 3). Dr. Aultman states that these affidavits and declarations are “consistent with the experiences of the women I have encountered in my work as a physician and advocate for women and their health issues.” (Id.).
236. Dr. Aultman relates an incident where she provided gynecologic care to a young woman, and she states that that the young woman claimed that she suffered adverse psychological effects after aborting her pregnancy (Id., ¶ 5).
237. Dr. Aultman also states that she provided care to a woman who came to see her “for continuous spotting and bleeding several months following an abortion.” (Rebuttal Decl. of Kathi Aultman, M.D., ¶ 6). Dr. Aultman avers that she learned that the young woman “was given vaginal medication” and “was instructed to sit on the toilet and push.” (Id.). Ms. Aultman states that she
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further learned that the young woman then “delivered a 20+ week baby boy into the toilet” and that the “baby drowned in the toilet water.” (Id.).
238. Dr. Aultman claims that there is “no mechanism for recording or reporting” medical or psychological complications of abortions (Id., ¶ 7). She also states that physicians fear being subjected to litigation for delivering babies with congenital abnormalities and that this is why “many young women feel pressure to abort babies with the potential for such abnormalities.” (Rebuttal Decl. of Kathi Aultman, M.D., ¶ 8).
239. Attached to Dr. Aultman’s rebuttal declaration is a certified criminal record for Dr. Tvedten in the case of State v. Thomas Harold Tvedten (Id., ¶ 10). According to this record, Dr. Tvedten was convicted of second-degree criminal mischief for an event that occurred on May 22, 1987. At the hearing, Dr. Tvedten testified that this charge was the result of breaking the camera of an individual who was photographing an abortion clinic (Dkt. No. 84, at 175:19-23).
240. Also attached to Dr. Aultman’s rebuttal declaration is a disciplinary report for Dr. Tvedten from the Arkansas State Medical Board (Dkt. No. 73, at 270-72). Per this report, Dr. Tvedten’s medical license was suspended for three months in 1983 and that his Drug Enforcement Agency registration was suspended for fifteen months, ending in 1984.
241. Defendants present a letter written by Dr. Tvedten to the Arkansas State Medical Board (Dkt. No. 103-1). In this letter, Dr. Tvedten states that he was pulled over and charged with “Driving Under the Influence of Alcohol.” (Id., at 1). He also notes that this is the first such charge that he ever received (Id.). This letter has the year “2008” stamped on it and is addressed to the Arkansas State Medical Board. The Court finds that this letter has little relevance to any claim or defense in this case given that Dr. Tvedten continues to practice medicine with the apparent approval of the Arkansas State Medical Board.
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242. Defendants also present an incident report in which an individual reported that Dr. Tvedten walked into her office and stated that he was “going to get” the individual’s son and that the son was “going to lose something.” (Id., at 2). The incident report is dated April 28, 1998, and there is no record evidence that shows the report ever led to a formal charge against Dr. Tvedten. The Court finds that this incident report has little relevance to any claim or defense in this case given that Dr. Tvedten continues to practice medicine with the apparent approval of the Arkansas State Medical Board.
243. Dr. Aultman also states that “comparing mortality statistics to maternal mortality statistics is not an apples-to-apples comparison” and that an OBGYN “can handle common complications of abortion that an ordinary licensed physician cannot, such as life threatening hemorrhage or injury to internal organs that might require an abdominal surgery to repair.” (Rebuttal Decl. of Kathi Aultman, M.D., ¶¶ 13-14). The Court also notes that Dr. Aultman did not testify at the July 22, 2019, hearing.
244. Defendants also present the declaration of Donna J. Harrison, M.D. (Dkt. No. 497, at 1-22; Decl. of Donna J. Harrison, M.D.). Dr. Harrison is certified by the ABOG and is the Executive Director of the American Association of Pro-Life Obstetricians and Gynecologists (“AAPLOG”) (Id., ¶ 3).
245. Dr. Harrison explains the efficacy of fetal screening and diagnostic tests. She explains that, out of 10,000 general population women whose pregnancies are screened using cellfree DNA screening, 30 of those women will test positive for Down syndrome, while in fact only 10 of them are positive for Down syndrome (Id., ¶ 19 (citing Am. Coll. of Obstetricians and Gynecologists, Committee Opinion No. 640 (Sept. 2015), https://www.ncbi.nlm.nih.gov/pubmed
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/26287791)). In a high-risk population, out of 10,000 women tested, 119 of those women will test positive, while in fact only 99 of them are in fact positive for Down syndrome (Id., ¶ 20).
246. Dr. Harrison further asserts that women who receive a false positive on a screening test “may be pressured to act on the basis of a positive screening test which is wrong.” (Decl. of Donna J. Harrison, M.D., ¶ 32).
247. Dr. Harrison explains that screening tests, the results of which are not available until 12 weeks LMP, “do not answer the question” of whether Down syndrome is indicated (Id., ¶ 34). Dr. Harrison avers that the diagnostic tests, which occur after a positive screening test, carry risks of complications (Id., ¶¶ 35-37). Dr. Harrison further avers that amniocentesis “is done around 18-20 weeks.” (Id., ¶ 38). She avers that, at 22 weeks LMP, “[t]he immediate risk of maternal mortality from an abortion at 22 weeks is roughly equal to the risk of death from live birth.” (Decl. of Donna J. Harrison, M.D., ¶ 38 (citing L. Bartlett, Risk factors for legal induced abortion-related mortality in the United States, 103 Obstetrics & Gynecology 729 (2004) (noting that abortions performed in the second trimester were significantly riskier than first trimester abortions))).
248. Dr. Harrison further states that “[t]here is also an increased psychological risk for mothers who abort.” (Id., ¶ 41 (citing David C. Reardon, The abortion and mental health controversy: A comprehensive literature review of common ground agreements, disagreements, actionable recommendations, and research opportunities, 6 SAGE Open Medicine 1, 8 (2018) (finding that “it is impossible to conduct research in this field in a manner that can definitely identify the extent of any mental illnesses following abortion, much less than the proportion of disorders that can be reliably attributed solely to abortion itself.”))).
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249. Dr. Harrison opines that “[t]he grisly reality is that abortion of human beings with Down syndrome is driven by a sector of society that doesn’t want disabled people to be part of society.” (Id., ¶ 43).
250. Dr. Harrison further states that “[w]ith specialized medical care some fetuses can survive outside the womb by 22 weeks with survival rates as high as 40% in some medical centers.” (Id., ¶ 56).
251. At the July 22, 2019, hearing, Dr. Harrison testified. During her testimony, she explained that it has been approximately 20 years since she had a clinical OBGYN practice where she was paid to see and treat patients (Dkt. No. 84, at 240:20-25). She also testified that it has been a similar amount of time since she performed a gynecological surgery or a dilation and curettage procedure, which is a procedure that is similar to the procedure used in a first trimester abortion (Id., at 238:19-25, 239:1-9).
252. Dr. Harrison also testified that she was twice sued for medical malpractice when she was a practicing OBGYN and that she is still a board-certified OBGYN (Id., at 240:9). She also stated that she remains a board-certified OBGYN even though she has not had an active clinical practice for 20 years (Id., at 240:16-20).
253. When asked if she would provide abortion care in Arkansas, Dr. Harrison testified that, as a board-certified OBGYN, if she were to go back into a surgical practice, she would take additional surgical training (Dkt. No. 84, at 241:9-21). Specifically, she testified that if she were to go back into surgical practice, she would spend approximately six months updating her skills (Id.).
254. Dr. Harrison also testified that, since 2000, she has focused her professional activities on AAPLOG (Id., at 243:9). Dr. Harrison testified that it is AAPLOG’s position that
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elective abortions are not medical care (Id., at 244:15-17). She also testified that she is a scholar at the Charlotte Lozier Institute, a part of the Susan B. Anthony List, which she stated is an organization dedicated to electing candidates and pursuing policies that will reduce and end abortion (Dkt. No. 84, at 247:1-7).
255. Dr. Harrison also testified that, in her opinion, ACOG is a pro-abortion organization (Id., at 248:13-17).
256. When questioned about testimony she provided in other cases, Dr. Harrison stated that she was unaware that other courts had concluded that her opinions were at odds with scientific evidence (Id., at 252:15-16).
257. Defendants also present the supplemental declaration of Dr. Harrison (Dkt. No. 103-5; Supp. Decl. Donna J. Harrison, M.D.). In her supplemental declaration, Dr. Harrison attaches a list of 162 studies which report allegedly report the association between induced abortion and preterm birth in subsequent pregnancies (Id., ¶ 3).
258. Defendants also present the declaration of Tumulesh K.S. Solanky, Ph.D. (Dkt. No. 49-8, at 1-25; Decl. of Tumulesh K.S. Solanky, Ph.D.). Dr. Solanky’s declaration discusses Dr. Lindo’s conclusions and findings, and Dr. Solanky disagrees with Dr. Lindo’s projections regarding the likely reduction in abortions resulting from the closing of PPAEO Fayetteville (Id., ¶¶ 8-17). Dr. Solanky testified at the July 22, 2019, hearing.
259. Dr. Solanky’s declaration does not contest Dr. Lindo’s projections of LRFP and PPAEO Little Rock’s capacity to provide abortions if the OBGYN requirement goes into effect, but he does state that Dr. Lindo’s “supplemental declaration has assumed that the maximum capacity of clinics/physicians is simply the maximum number of abortions performed” and that “[t]his is a rather biased assumption.” (Id., ¶ 54).
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260. Dr. Solanky does contest Dr. Lindo’s estimate of a “17-27%” reduction in abortions due to the cessation of medication abortions in Arkansas in 2018 (Id., ¶ 10). Dr. Solanky asserts that Dr. Lindo incorrectly “assume[s] that if there [was] any reduction in abortions in 2018, then it must have been caused by [the contracted physician requirement].” (Id., ¶ 39).
261. Dr. Solanky also asserts that “there appears to be no correlation between the numbers of clinics and abortion rates.” (Id., ¶ 46).
262. Dr. Lindo presents a rebuttal declaration to respond to Dr. Solanky’s assertions (Dkt. No. 62-2, at 1-6; Rebuttal Decl. of Jason Lindo, Ph.D.). Dr. Lindo takes issue with Dr. Solanky’s assertion that Dr. Lindo incorrectly calculates the maximum capacity of abortion providers; according to Dr. Lindo, Dr. Solanky provides no justification for his criticism, and he argues that Dr. Solanky proposes no alternative capacity-calculation methodology or capacity estimates (Id., ¶ 3). Further, Dr. Lindo points out that Dr. Solanky does not respond to the fact that Dr. Lindo’s capacity estimates likely overestimate the abortion providers’ capacity to provide abortions if the challenged Acts go into effect (Id.).
263. Dr. Lindo also takes issue with defendants’ assertion that Dr. Hopkins can conduct 525 surgical abortions annually (Id., ¶ 6). Dr. Lindo points out that it is unlikely that LRFP will remain open if Dr. Hopkins is the only abortion provider, and he also points out that it is highly improbable that Dr. Hopkins could spend three days a week providing abortions, as LRFP cannot afford to hire a physician for the sole purpose of obtaining patient consents (Rebuttal Decl. of Jason Lindo, Ph.D., ¶ 6). Dr. Lindo also points out that D&E abortions are often two-day procedures that are more time-consuming to perform (Id.). Dr. Lindo further explains that he understands that LRFP can provide 20-25 abortions a day under current conditions, not in a scenario in which Dr. Hopkins is the only physician providing surgical abortions (Id.). Finally,
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Dr. Lindo points out that defendants assume that all patients who will need surgical abortion care would be able to obtain that care in the one week when Dr. Hopkins is in Arkansas, which will occur once every two months (Id.).
264. Defendants also present a supplemental declaration from Dr. Solanky (Dkt. No. 103-8; Supp. Decl. of Tumulesh K. S. Solanky). Dr. Solanky states that he has been provided with the data that Dr. Lindo used to create his estimates (Id., ¶ 1). Dr. Solanky opines that Dr. Lindo’s capacity estimates for LRFP and PPAEO Little Rock do “not take into account the trend of declining number of Arkansas resident abortions.” (Id., ¶ 7). Dr. Solanky further states that abortions decrease by approximately three percent per year (Id.).
265. To determine to state of residence for each abortion performed from 2016 to 2018, Dr. Solanky used the county of residence reported in the spreadsheets; Dr. Solanky notes that, because the names of Arkansas counties are shared by counties in surrounding states, there is the possibility that his estimate of the number of Arkansas resident abortions in 2018 is incorrect (Supp. Decl. of Tumulesh K. S. Solanky, ¶ 10 n.3). Dr. Solanky notes that the data indicates that PPAEO provided 215 out-of-state abortions and 2,272 Arkansas resident abortions; he also notes that LRFP provided 877 out-of-state abortions and 6,133 Arkansas resident abortions (Id., ¶ 10). Dr. Solanky concluded that these combined data sets show that 8,405 total Arkansas resident abortions occurred and that, if divided by three, the average number of Arkansas resident abortions “comes to 2,802 Arkansas resident abortions per year for the three years.” (Id.). Dr. Solanky noted that Dr. Lindo’s declaration states that there were 2,779 Arkansas resident abortions on average, and he also notes that he cannot “determine why this discrepancy in Arkansas resident abortion exists.” (Id.).
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266. Dr. Solanky’s declaration relied upon data which was filed under seal with the Court (Dkt. No. 105). This data indicates that the vast majority of abortions in Arkansas were conducted by PPAEO and LRFP, though less than half a dozen were performed by others.
267. Defendants also present the declaration of Judy McGruder, who lives in Fort Smith, Arkansas (Dkt. No. 49-10, at 1-3; Decl. of Judy McGruder). Ms. McGruder avers that she aborted a pregnancy in 2000 at LRFP (Id., ¶ 4). Ms. McGruder previously received amniocentesis and was informed that her child would have Down syndrome (Id., ¶ 3). Ms. McGruder regrets her abortion (Id., ¶ 11). Ms. McGruder offered testimony consistent with her affidavit at the July 22, 2019, hearing (Dkt. No. 84, at 273-78).
268. Under Arkansas law, only a physician licensed to practice medicine in the State of Arkansas may provide abortion care. See Ark. Code Ann. § 5-61-101(a).
269. The Arkansas Medical Practices Act and Regulations expressly state that “[n]o person shall be granted a license to practice medicine in the State of Arkansas unless he or she . . . is of good moral character and has not been guilty of acts constituting unprofessional conduct . . . .” See Ark. Code Ann. § 17-95-403(b).
270. The Arkansas Medical Practices Act and Regulations permit the Arkansas Medical Board to suspend or revoke a license for immoral or unprofessional conduct. Ark. Code Ann. § 17-99-307(2) (“The Arkansas State Medical Board, after due notice and hearing, may revoke, suspend, or refuse to renew any license or permit or place on probation or otherwise reprimand a licensee or permit holder or deny a license to an applicant who . . . is in judgment of the board, guilty of immoral or unprofessional conduct.”).
271. The Arkansas Medical Board may refuse to grant, impose certain enumerated penalties, or revoke the medical license of any physician involved in any felony listed under
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[Arkansas Code Annotated] § 17-2-102.” Ark. Code Ann. § 17-95-409. Arkansas Code Annotated § 17-2-102, which was enacted in 2019, includes a list of 36 categories of felony offenses and specifically provides that convictions in Arkansas, other states, and federal court shall be considered.
272. To maintain an active license to practice medicine in the State of Arkansas, there are continuing medical education requirements that may be enforced through license suspension or revocation. See Ark. Code Ann. § 17-80-104 (empowering regulatory boards of the professions or occupations classified by the law of the State of Arkansas as professions of the healing arts and for whom the General Assembly has established regulatory boards empowered to license persons to practice to adopt rules requiring the continuing education of the persons licensed by the board); Ark. Admin. Code 060.00.1-17 (requiring a person who holds an active license to practice medicine in the State of Arkansas shall complete 20 credit hours per year of continuing medical education, stating that “Fifty (50%) percent of said hours shall be in subjects pertaining to the physician’s primary area of practice . . . .”).
273. Any claim or filing of a lawsuit alleging malpractice against a physician licensed to practice medicine and surgery in the State of Arkansas must be reported to the Arkansas State Medical Board within ten days after receipt or notification or the licensed physician may face discipline up to and including revocation, suspension, or probation or monetary fines. See Ark. Code Ann. § 17-95-103; Ark. Admin. Code 060.00.1-23.
274. Arkansas licensed physicians are subject to being audited (Dkt. No. 84, at 15:1616:5).
275. Any Arkansas physician who performs an abortion must “obtain the correct informed consent from their patients” or risk sanction by the Arkansas Medical Board. Ark.
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Admin. Code 060.00.1-26 (describing the consent required and the circumstances under which it is required and permitting the Arkansas Medical Board to revoke or suspend a medical license or impose other sanctions if the Board determines there has been a violation).
276. Any Arkansas physician who provides an abortion-inducing drug for the purpose of inducing an abortion is currently required to report any known adverse events associated with medication abortions. Ark. Code Ann. § 20-16-1505 (“If a physician provides an abortioninducing drug . . . and if the physician knows that the woman who uses the abortion-inducing drug for the purposes of inducing an abortion experiences an adverse event, the physician shall provide a written report of the adverse event within three (3) days of the event to the United States Food and Drug Administration . . . and to the Arkansas State Medical Board”); see Ark. Admin. Code 060.00.1-36 (requiring reporting to the Arkansas State Medical Board in the same circumstances).
277. Additionally, any woman in Arkansas seeking an abortion must be evaluated via a medical history, a physical examination, counseling, and laboratory tests. See Ark. Admin. Code 007.05.2-8(A).
278. Arkansas abortion facilities shall have written procedures for emergency transfer of a patient to an acute care facility. See Ark. Admin. Code 007.05.2-8(B). Arkansas general abortion facilities, which provide surgical abortions or both medication and surgical abortions, shall be within 30 minutes of a hospital which provides gynecological or surgical services. See Ark. Admin. Code 007.05.2-4(C); Ark. Admin. Code 007-05-2.3(J) (defining general abortion facility). Arkansas abortion facilities providing abortions must have various medical devices available to assist in the event of complications. See Ark. Admin. Code 007.05.2-8(C), (E). Finally, Arkansas abortion facilities must have a certain number of qualified personnel available to provide direct patient care. See Ark. Admin. Code 007.05.2-7.
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279. Arkansas abortion facilities must satisfy a variety of ongoing obligations to educate staff about best practices to assess their own services. See Ark. Admin. Code 007.05.2-10; 007.05.2-5; 007.05-6(F),(G); 007.05.2-7(D).
280. Furthermore, “[e]ach induced termination of pregnancy which occurs in [Arkansas] regardless of the length of gestation shall be reported to the [Division of Vital Records] within five (5) days by the person in charge of the institute in which the induced termination of pregnancy was performed.” Ark. Code Ann. § 20-18-603(b)(1). If “the induced termination of pregnancy was performed outside an institution, the attending physician shall prepare and file the report.” Ark. Code Ann. § 20-18-603(b)(2).
281. The Court held a hearing on plaintiff’s motion for temporary restraining order and/or preliminary injunction on July 22, 2019 (Dkt. No. 78). At the hearing, plaintiffs called five witnesses: Dr. Hopkins, Dr. Prine, Ms. Williams, Dr. Lindo, and Dr. Tvedten. Defendants called four witnesses: Dr. Cathey, Dr. Harrison, Dr. Solanky, and Ms. McGruder.
III. Conclusions Of Law When determining whether to grant a motion for a preliminary injunction, this Court considers: (1) the movant’s likelihood of success on the merits; (2) the threat of irreparable harm to the movant; (3) the balance between the harm to the movant and the injury that granting an injunction would cause other interested parties; and (4) the public interest. Kroupa v. Nielsen, 731 F.3d 813, 818 (8th Cir. 2013) (quoting Dataphase Sys. Inc. v. CL Sys., 640 F.2d 109, 113 (8th Cir. 1981)). Preliminary injunctive relief is an extraordinary remedy, and the party seeking such relief bears the burden of establishing the four Dataphase factors. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). The focus is on “whether the balance of the equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.”
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Id. “Although no single factor is determinative when balancing the equities,” a lack of irreparable harm is sufficient ground for denying a temporary restraining order. Aswegan v. Henry, 981 F.2d 313, 314 (8th Cir. 1992).
The Court examines the Dataphase factors as applied to plaintiffs’ request for a preliminary injunction. See Dataphase, 640 F.2d at 113. Under Dataphase, no one factor is determinative. Id. The Eighth Circuit revised the Dataphase test when applied to challenges to laws passed through the democratic process. Those laws are entitled to a “higher degree of deference.” Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 725, 732 (8th Cir. 2008). In such cases, it is never sufficient for the moving party to establish that there is a “fair chance” of success. Instead, the appropriate standard, and threshold showing that must be made by the movant, is “likely to prevail on the merits.” Id. Only if the movant has demonstrated that it is likely to prevail on the merits should the Court consider the remaining factors. Id.
A. Analysis Of Standing Defendants challenge plaintiffs’ standing. For the reasons discussed below, the Court concludes that, based upon the record evidence before the Court at this stage of the proceeding, plaintiffs generally have standing on behalf of themselves and their patients, with the exception of standing to challenge the application of Act 619 to post-viability abortions.
1. Article III Standing To establish Article III standing, a plaintiff must satisfy three requirements: “First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e]
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result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotes and citations omitted).
Defendants assert that plaintiffs cannot assert facial challenges on behalf of their “hypothetical future patients.” (Dkt. No. 103, at 68). Under a long-established rule, however, it is “appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.” Singleton v. Wulff, 428 U.S. 106, 118 (1976); see Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2296 (2016) (deciding physicians’ and clinics’ 42 U.S.C. § 1983 action against abortion restrictions on behalf of themselves and their patients). There are many cases recognizing that an abortion provider may sue to enjoin, as violations of the United States Constitution or federal law through 42 U.S.C. § 1983, state laws that restrict abortion. “These cases emphasize not the harm to the abortion clinic of making abortions very difficult to obtain legally, though that might be an alternative ground for recognizing a clinic’s standing, but rather ‘the confidential nature of the physician-patient relationship and the difficulty for patients of directly vindicating their rights without compromising their privacy,’ as a result of which ‘the Supreme Court has entertained both broad facial challenges and pre-enforcement asapplied challenges to abortion laws brought by physicians on behalf of their patients.’” Planned Parenthood of Wisconsin, Inc. v. Schimel, 806 F.3d 908, 910 (7th Cir. 2015) (quoting Isaacson v. Horne, 716 F.3d 1213, 1221 (9th Cir. 2013)).
Further, the United States Supreme Court held in Doe v. Bolton, 410 U.S. 179, 188 (1973), that abortion doctors have first-party standing to challenge laws limiting abortion when, as in Doe and the current case, the doctors are subject to penalties for violation of the laws. See Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 903-04, 909 (1992) (plurality opinion);
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Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 62 (1976); Schimel, 806 F.3d at 911.
Defendants point to Kowalski v. Tesmer, 543 U.S. 125, 129 (2004), and assert that this case stands for the proposition that third-party standing has been approved only when the litigant asserts rights of known claimants, not hypothetical ones. This argument is unconvincing, as Kowalski cites Doe and explicitly distinguishes third-party standing in the abortion context. 543 U.S. at 130.
Defendants also assert that plaintiffs’ lack standing because “there is a clear conflict between Plaintiffs and their patients . . . .” (Dkt. No. 103, at 32). Defendants claim that this presents a conflict of interest between providers and patients which precludes third-party standing. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 15 (2004); see also Kowalski, 543 U.S. at 135 (Thomas, J., concurring) (noting that third-party standing is disallowed when the litigants “may have very different interests from the individuals whose rights they are raising”); Canfield Aviation, Inc. v. Nat’l Transp. Safety Bd., 854 F.2d 745, 748 (5th Cir. 1988) (“[C]ourts must be sure . . . that the litigant and the person whose rights he asserts have interests which are aligned.”).
This argument could be made with respect to any abortion regulation that purports to advance a valid state interest, but courts have repeatedly allowed abortion providers to challenge such laws, determining that the providers’ and women’s interests are aligned and not adverse. See, e.g., Bellotti v. Baird, 443 U.S. 622, 627 n.5 (1979) (holding that a physician plaintiff had standing to raise his minor patients’ claims to determine whether a parental consent law should be upheld to protect the alleged vulnerability of minors); Charles v. Carey, 627 F.2d 772, 779 n.10 (7th Cir. 1980) (rejecting the state’s claim of conflict of interest in a challenge to a counseling law designed to “protect women from abusive medical practices”). This argument has not defeated a providers’ standing to challenge contraception restrictions. See Carey v. Population Servs. Int’l, 431 U.S.
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678, 683-84, 690 (1977) (granting third-party standing where the government defended a contraception restriction based on its interest in protecting health); Eisenstadt v. Baird, 405 U.S. 438, 445-46, 450 (1972) (allowing a plaintiff to raise the rights of others seeking contraception where the government defended a restriction as “regulating the distribution of potentially harmful articles”).
Furthermore, to the extent there is record evidence in this case that women who have had abortions regret those abortions or felt pressured into obtaining an abortion, although the Court is sympathetic, the Court is unconvinced that such record evidence demonstrates a conflict of interest between physicians and patients. Arkansas currently mandates pre-abortion counseling with informed consent, Ark. Admin. Code § 007.05.2-7 (“prior to the abortion, the patient shall be counseled regarding the abortion procedure, alternatives to abortion, informed consent, medical risks associated with the procedure, potential post-abortion complications, community resources and family planning” and “documentation of counseling shall be included in the patient’s medical record . . . .”), and imposes a 48-hour, soon to be 72-hour,7 waiting period between an initial consultation and an abortion. To the extent there is record evidence that women who have had abortions experience regret or felt pressured into obtaining an abortion, that record evidence demonstrates the women describe pressure from sources that are not abortion providers, including but not limited to family members, spouses, and personal circumstances, and that evidence spans
7 On April 20, 2019, Arkansas enacted a new law requiring a 72-hour waiting period between a woman’s consultation with a doctor concerning a possible abortion and any abortion procedure, except where it “will cause substantial and irreversible impairment of a major bodily function.” 2019 Ark. Acts 801, to be codified at Ark. Code Ann. §§ 20-16-1109, -1703(b), -1706. This law goes into effect on July 24, 2019. There is no record evidence that any party has challenged this new law.
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a significant time period during which laws and regulations governing abortion care in Arkansas were different from the current laws and regulations.
Defendants maintain that, because there is no allegation of a “hinderance” preventing plaintiffs’ patients from bringing their own suits, plaintiffs lack standing. This argument fails because the Supreme Court in Singleton states that the “hindrance” prong of the third-party standing doctrine is satisfied in abortion cases. 428 U.S. at 117.
At this stage, defendants also argue that LRFP specifically lacks standing to challenge Act 700’s OBGYN requirement because it creates “no legal impediment to [its] employment of qualified abortion practitioners.” (Dkt. No. 103, at 37). The Court is unconvinced by this argument: the Supreme Court in Hellerstedt allowed clinics to challenge a surgical-center requirement where the cost of complying with that requirement was $1.5 to $3 million per clinic. Hellerstedt, 136 S. Ct. at 2302-03. That LRFP employs abortion providers who would otherwise meet Act 700’s OBGYN requirement does not bar standing; instead, that fact is taken into account in this Court’s analysis of the burden of Act 700 under the Hellerstedt test.
With respect to defendants’ argument that plaintiffs have not made sufficient efforts to comply with the OBGYN requirement, defendants are essentially arguing that the alleged constitutional injury to women seeking abortions in Arkansas—that in a large fraction of the cases in which Act 700’s OBGYN requirement is relevant, it will purportedly operate as a substantial obstacle to a woman’s choice to undergo an abortion—is not caused by defendants, but by plaintiffs. To establish standing, the injury must be “fairly traceable” to the defendant’s conduct. Lexmark Intern., Inc. v. Static Control Components, 572 U.S. 118, 125 (2014). The record evidence at this stage indicates that plaintiffs have attempted to comply with the OBGYN requirement and have in fact been able to find some board-certified OBGYNs to provide some
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abortion care in Arkansas. Some record evidence also shows, however, that those board-certified OBGYNs cannot provide enough abortion care to satisfy the need for abortion care under the relevant inquiry. The Court is satisfied at this stage of the proceedings based on the record evidence before it that Act 700’s OBGYN requirement—and not plaintiffs’ failure to attempt to comply with Act 700’s OBGYN requirement—is the proximate cause of the alleged harm. Accordingly, the Court finds that the record evidence at this stage of the proceeding demonstrates that plaintiffs’ injuries are “fairly traceable” to Act 700’s OBGYN requirement and that plaintiffs have Article III standing.
The Court does conclude that, based on this record evidence, for purposes of challenging Act 619, because post-viability abortions are not performed in Arkansas currently, plaintiffs lack standing to challenge Act 619 as applied to post-viability abortions on the record currently before the Court. Therefore, the Court need not examine whether Act 619 is constitutional as applied to post-viability abortions at this stage of the proceedings. For these reasons, the Court restricts its examination of Act 619 as applied to the types of pre-viability abortions the record evidence indicates are performed in Arkansas.
2. 42 U.S.C. § 1983 Standing Defendants also contend that plaintiffs cannot assert third-party rights under 42 U.S.C. § 1983 because, defendants claim, § 1983 extends only to litigants who assert their own rights. There is no language in the statute that supports this argument. See 42 U.S.C. § 1983 (providing in pertinent part, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the
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party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .“). This Court agrees with the reasoning of the Seventh Circuit Court of Appeals on this point and rejects defendants’ argument regarding standing under § 1983. See Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 738 F.3d 786, 794-95 (7th Cir. 2013) (“Van Hollen III”). The Supreme Court has repeatedly allowed abortion providers to raise the rights of their patients in cases brought under § 1983, and this Court will do the same. See, e.g., Hellerstedt, 136 S. Ct. 2292; Gonzales v. Carhart, 550 U.S. 124, 168 (2007); Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 324-25 (2006) (noting that plaintiffs raised patients’ claims in suit under 42 U.S.C. § 1983); Bellotti, 428 U.S. at 136 (same).
3. Standing To Challenge Acts’ Private Rights Of Action Defendants also contend that plaintiffs lack standing to challenge the Acts’ “private rights of action because any injury to Plaintiffs is not ‘fairly traceable’ to the Defendants.” (Dkt. No. 103, at 35). Acts 493 and 619 both contain private rights of action that allow women who have obtained abortions to bring actions against an abortion provider. See Act 493, § 1, to be codified at Ark. Code Ann. § 20-16-2006(d); Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2005(b)(1). Specifically, defendants argue that, since these Acts provide for “enforcement only through private actions for damages,” this Court lacks jurisdiction over any claim against governmental actors who have no authority to enforce the private rights of action in the Acts. The Court concludes that plaintiffs do have standing to challenge the Acts because each of the challenged Acts provide for criminal prosecution, civil penalties, and professional sanctions enforceable by the State. See Act 493, § 1, to be codified at Ark. Code Ann. § 20-16-2006(a)-(e); Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2005(a)-(d); Act 700, § 1, to be codified at Ark. Code Ann. § 20-16-605(b). The case cited by defendants, Digital Recognition Network, Inc.
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v. Hutchinson, 803 F.3d 952, 957-58 (8th Cir. 2015), is inapposite to the present matter because there the attorney general and governor lacked authority to enforce the challenged statute. 803 F.3d at 958. Here, the challenged Acts do grant the State authority to impose criminal, civil, and professional sanctions upon abortion providers. See, e.g., Casey, 505 U.S. at 887-88 (majority opinion) (noting, as to spousal notification law the Court struck down, that “[a] physician who performs an abortion” for a married woman without spousal notice “will have his or her license revoked, and is liable to the husband for damages”). The private rights of action present in the challenged Acts do not deprive this Court of jurisdiction to address the constitutionality of the Acts.
B. Facial Versus As-Applied Challenges Constitutional challenges to these Acts may be deemed “facial” or “as-applied” challenges. Facial challenges to statutes affecting abortions may succeed only if a plaintiff can show that “in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Casey, 505 U.S. at 895 (majority opinion); see Hellerstedt, 136 S. Ct. at 2318 (striking down an admitting privileges requirement because the law “provides few, if any, health benefits for women” and “poses a substantial obstacle to women seeking abortions”); Planned Parenthood of Arkansas & Eastern Oklahoma v. Jegley, 864 F.3d 953, 959 (8th Cir. 2017) (“[I]n order to sustain a facial challenge and grant a preliminary injunction, the district court was required to make a finding that the Act’s contract-physician requirement is an undue burden for a large fraction of women seeking medication abortions in Arkansas.”); id. at 690 n.9 (“The question here . . . is whether the contract-physician requirement’s benefits are substantially outweighed by the burdens it imposes on a large fraction of women seeking medication abortion in Arkansas.”); see also Planned Parenthood Minn., N.D., S.D. v.
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Rounds, 653 F.3d 662, 667-68 (8th Cir. 2011), vacated in part on reh’g en banc sub nom. Planned Parenthood Minn., N.D., S.D. v. Rounds, 662 F.3d 1072 (8th Cir. 2011) and in part on reh’g en banc sub nom. Planned Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889 (8th Cir. 2012); see also Rounds, 530 F.3d at 733 n.8 (“Rounds cases”). In Gonzales, the Supreme Court stated that, while the plaintiffs had failed to satisfy the “large fraction” test under Casey and were not entitled to facial relief, the challenged law would be open “to a proper as-applied challenge in a discrete case.” 550 U.S. at 168.
Having recognized this distinction in the types of challenges that may be brought, the Court also notes that the distinction between facial and as-applied challenges is not always apparent. See Hellerstedt, 136 S. Ct. at 2307 (“Nothing prevents this Court from awarding facial relief as the appropriate remedy for petitioners’ as-applied claims.”); see also Richard R. Fallon, Jr., Fact and Fiction about Facial Challenges, 99 Cal. L. Rev. 915, 922 (2011). For the reasons set forth below, at this stage of the proceeding and on the record evidence before it, the Court concludes that plaintiffs are likely to prevail on the merits of their claims that they are entitled to facial relief against Acts 493, 619, and 700.
C. Law Directed At Pre-Viability Abortions “[I]t is a constitutional liberty of the woman to have some freedom to terminate her pregnancy.” Casey, 505 U.S. at 869. This right is grounded in the right to privacy rooted in the Fourteenth Amendment’s concept of personal liberty, which was found to be “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Roe v. Wade, 410 U.S. 113, 153 (1973). This right is not “unqualified” and is balanced “against important state interests in regulation,” eventually drawing a line between a woman’s privacy right and the State’s interest in protecting the potential life of a fetus at viability. Roe, 410 U.S. at 154. Part of Roe’s
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essential holding is “a recognition of the right of the woman to choose to terminate a pregnancy before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” Casey, 505 U.S. at 846. “A State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Id. at 879.
The Supreme Court in Gonzales acknowledged that: [T]he State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, [and this premise] cannot be set at naught by interpreting Casey’s requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn. 550 U.S. at 158. The Court acknowledges that the state may, in a valid exercise of its police power, regulate abortion. The state’s police power is, however, limited where a protected liberty interest is at stake. Casey, 505 U.S. at 851 (majority opinion). “The State’s interest in regulating abortion previability is considerably weaker than postviability.” Stenberg v. Carhart, 530 U.S. 914, 930 (2000) (citing Casey, 505 U.S. at 870 (majority opinion)). Although some argued that the Supreme Court’s decision in Gonzales, in which the Court chose to “assume” Casey’s principles for purposes of its opinion, may have signaled the Court’s willingness to reevaluate abortion jurisprudence, see Gonzales, 550 U.S. at 145-46, more recently, in Hellerstedt, the Supreme Court observed that viability is the “relevant point at which a State may begin limiting women’s access to abortion for reasons unrelated to maternal health.” 136 S. Ct. at 2320 (quoting Casey, 505 U.S. at 878 (plurality opinion)). The Court acknowledges that the state can impose regulations aimed at ensuring a thoughtful and informed choice, but only if such
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regulations do not unduly burden the right to choose. Casey, 505 U.S. at 872. Generally, the state has the burden of demonstrating a link between the legislation it enacts and what it contends are the state’s interests. See Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 430 (1983), overruled on other grounds by Casey, 505 U.S. 833 (describing the burden as that of the state).
The Eighth Circuit Court of Appeals has previously examined arguments and record evidence related to viability and the State’s ability to restrict abortion before viability. See Edwards v. Beck, 786 F.3d 1113, 1119 (8th Cir. 2015) (per curiam); MKB Management Corp. v. Stenehjem, 795 F.3d 768 (8th Cir. 2015). The court explained that prohibitions on abortions previability, even when they contain limited exceptions, are per se unconstitutional under binding Supreme Court precedent. Edwards, 786 F.3d at 1117; MKB Mgmt., 795 F.3d at 771. In Edwards, the court invalidated a prior Arkansas law that prohibited nearly all abortions starting at 12 weeks LMP, explaining that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Edwards, 786 F.3d at 1117 (quoting Casey, 505 U.S. at 879).
In MKB Management, the court like the Supreme Court in Gonzales assumed the principles of Casey, which this Court cites. MKB Mgmt., 795 F.3d at 772 (quoting Gonzales, 550 U.S. at 146 (alteration in original) (citations omitted) (quoting Casey, 505 U.S. at 879, 878, and 877 (plurality opinion)). Further, the MKB Management court acknowledged that, just as the court is bound by the Supreme Court’s assumption of the principles announced in Casey, the court is also bound by the Supreme Court’s “statement that viability is the time ‘when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus’ sustained survival outside the womb, with or without artificial support.’” MKB Mgmt.,
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795 F.3d at 772-73 (quoting and citing Colautti v. Franklin, 439 U.S. 379, 388 (1979)); see also Casey, 505 U.S. at 870 (plurality opinion) (“[T]he concept of viability . . . is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb . . . .”); Roe, 410 U.S. at 160, 163 (stating that a fetus becomes viable when it is “potentially able to live outside the mother’s womb, albeit with artificial aid” and that viability is the point at which the fetus “presumably has the capability of meaningful life outside the mother’s womb”). Further, this Court observes that the Supreme Court has expressly determined that a state may not “proclaim one of the elements entering into the ascertainment of viability—be it weeks of gestation or fetal weight or any other single factor—as the determinant of when the State has a compelling interest in the life or health of the fetus. Viability is the critical point.” Colautti, 439 U.S. at 388-89.
The Eighth Circuit does not stand alone in following controlling Supreme Court precedent when it comes to prohibitions on pre-viability abortions. Laws that restrict pre-viability abortions have consistently been deemed unconstitutional in courts across the United States. See Planned Parenthood of Indiana & Kentucky, Inc. v. Comm’r, Indiana State Dep’t of Health, 265 F. Supp. 3d 859, 866 (S.D. Ind. 2017), aff’d sub nom. 888 F.3d 300 (7th Cir. 2018), reh’g en banc granted, judgment vacated, 727 F. App’x 208 (7th Cir. 2018), vacated, 917 F.3d 532 (7th Cir. 2018), and cert. granted in part, judgment rev’d on other grounds sub nom. Box v. Planned Parenthood of Indiana & Kentucky, Inc., 139 S. Ct. 1780 (2019) (holding state law unconstitutional because it prohibited abortions prior to viability if the abortion was sought for a particular purpose, including solely because of the sex of the fetus, solely because the fetus has been diagnosed with or has a potential diagnosis of any other disability, or solely because of the race, color, national origin, or ancestry of the fetus); MKB Mgmt., 795 F. 3d at 744; McCormack v. Herzog, 788 F.3d 1017, 1029 (9th Cir. 2015) (holding state law unconstitutional because it prohibited abortions 20 or more
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weeks postfertilization, regardless of fetus attaining viability); Isaacson, 716 F.3d at 1217 (same); Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 201 (6th Cir. 1997) (striking down ban on most common procedure used to provide abortion in the second trimester); Jane L. v. Bangerter, 102 F.3d 1112, 1114, 1117-18 (10th Cir. 1996) (holding state law unconstitutional because it prohibited abortions 20 or more weeks gestational age); Sojourner T. v. Edwards, 974 F.2d 27, 29, 31 (5th Cir. 1992) (holding state law unconstitutional because it prohibited all abortions with few exceptions); Guam Soc’y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1368-69 (9th Cir. 1992) (same); Jackson Women’s Health Org. v. Dobbs, 379 F. Supp. 3d 549 (S.D. Miss. May 24, 2019) (preliminarily enjoining ban on abortion starting when cardiac activity is detectable), appeal docketed, Case No. 19-60455 (5th Cir. June 24, 2019); EMW Women’s Surgical Ctr. v. Meier, 373 F. Supp. 3d 807 (W.D. Ky. May 10, 2019) (holding state law unconstitutional that required performance of a fetal-demise procedure prior to evacuation phase of a dilation and evacuation abortion procedure), appeal docketed, Case No. 19-5516 (6th Cir. May 15, 2019); Bryant v. Woodall, 363 F. Supp. 3d 611, 630-32 (M.D. N.C. 2019) (holding state law unconstitutional when it prohibited most abortions after 20 weeks of pregnancy), appeal docketed, Case No. 19-1685 (4th Cir. June 26, 2019); Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536, 540 (S.D. Miss. 2018) (holding state law unconstitutional because it prohibited abortions after 15 weeks gestation except in medical emergency or in case of severe fetal abnormality), appeal docketed, Case No. 18-60868 (5th Cir. Dec. 17, 2018); Preterm-Cleveland v. Hines, 294 F. Supp. 3d 746, 755 (S.D. Ohio 2018), appeal argued Case No. 18-3329 (6th Cir. Jan. 30, 2019) (granting preliminary injunction motion regarding constitutionality of state law prohibiting abortions based off fetal indication of Down syndrome), appeal docketed, Case No. 18-3329 (6th Cir. April 12, 2018).
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Based on record evidence, “[i]t is commonly accepted in the field of OBGYN that a normally developing fetus will not attain viability until at least 24 weeks LMP. However, not all fetuses attain viability even at that stage, due to a variety of factors, such as renal agenesis (absence of kidneys), anencephaly (profound neural tube defect), and hydrocephaly (where the skull is filled with fluid).” (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 29); see also Casey, 505 U.S. at 860 (viability is weeks after 18 weeks). Defendants at this stage have come forward with no reliable, generally accepted medical or scientific record evidence to refute this. At this stage of the proceeding, defendants point this Court to no record evidence directed to the issue of viability. The Court acknowledges its review of the first declaration of Dr. Harrison, the Executive Director of AAPLOG, submitted by defendants. She avers that only with specialized care can some fetus survive outside of the womb by 22 weeks, and even then the survival rate is only “as high as 40% in some medical centers.” (Decl. of Donna J. Harrison, M.D., ¶ 56). Dr. Harrison cites no source material or scientific studies in support of this assertion at this stage of the litigation. Even if the Court were willing to reconsider established precedent on fetal viability, it would not do so on this record at this stage of the proceeding.
Based on record evidence, only the following types of abortion care are available in Arkansas currently: medication abortions which are available only up to 10 weeks LMP; aspiration surgical procedures, performed until approximately 13 weeks LMP; and D&E surgical procedures, which are performed until 21.6 weeks LMP (Decl. of Jason Lindo, Ph.D. ¶ 11). As a result, the Court determines that Acts 493 and 619 implicate this analysis of laws directed at previability abortions.
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1. Analysis Of Act 493 Act 493 of 2019 amends Arkansas Code Title 20, Chapter 15 to add an additional Subchapter 20 that bans abortion “if the probable gestational age of the unborn human being is determined to be greater than 18 weeks,” as measured from the first day of a woman’s last menstrual period in nearly all cases (“Act 493”). See Act 493, to be codified at Ark. Code Ann. § 20-16-2004(b). Act 493 specifically prohibits a person from “intentionally or knowingly” performing, inducing, or attempting to perform or induce an abortion, if the probable gestational age is determined “to be greater than eighteen (18) weeks’ gestation,” as measured “from the first day of the last menstrual period of the pregnant woman.” Ark. Code Ann. §§ 20-16-2004(b); 2016-2003(9). Act 493 includes two exceptions: (1) in the case of a “medical emergency,” narrowly defined as “a condition that, on the basis of the physician’s good faith clinical judgment, necessitates an abortion to preserve the life of the pregnant woman whose life is endangered by a physical [condition] . . . or when the condition of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function,” Arkansas Code Annotated §§ 20-16-2004(b); 20-16-2003(6), (7); and (2) where the pregnancy is the result of rape or incest, as defined by Arkansas Code, Arkansas Code Annotated § 20-16-2004(b). A violation of Act 493 constitutes a Class D felony, which is punishable by up to six years in prison and a fine of up to $10,000.00. Ark. Code Ann. §§ 5-4-201, -401, 20-16-2006(a)(1). Any physician who violates Act 493 also is subject to mandatory license suspension or revocation by the Arkansas State Medical Board. Ark. Code Ann. § 20-16-2006(b). For the following reasons, the Court concludes that, at this stage of the proceedings and on the record evidence currently before the Court, plaintiffs are likely to prevail on their argument
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that Act 493 unconstitutionally restricts pre-viability abortions and, therefore, is facially unconstitutional.
a. Act 493: Analysis Of State’s Asserted Interest As part of evaluating the benefits of a regulation, this Court must evaluate the Arkansas legislature’s findings when enacting the regulation. The Arkansas legislature, when enacting Act 493, included legislative findings and intent (Dkt. No. 2-1, at 6-9). In Hellerstedt, the Supreme Court clarified that arguments “that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law.” 136 S. Ct. at 2310. Instead, the Supreme Court, “when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings.” Id. The Supreme Court, citing its Casey, 505 U.S. 833, and Gonzales, 550 U.S. 124, decisions, reaffirmed that a court reviews legislative fact finding under a “deferential standard” but “must not ‘place dispositive weight’” on those findings. Hellerstedt, 136 S. Ct. at 2310 (citing and quoting Gonzales, 550 U.S. at 165). The Court stated that the “Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.” Id. (emphasis in original) (quoting Gonzales, 550 U.S. at 165). Where record evidence contradicts some legislative findings, uncritical deference to the legislative factual findings is inappropriate. Id. The Arkansas legislature made several legislative findings when enacting Act 493; the Court examines them to determine whether they conflict with the Court’s findings. The Court has given the legislature’s findings careful consideration. Here, based on the record evidence presented, binding legal precedent, and the Supreme Court’s Hellerstedt majority opinion, the Court determines that plaintiffs are likely to prevail on their argument that deference to the
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Arkansas legislature’s factual findings would be inappropriate. Specifically, to the extent the State recites findings regarding prenatal development of a fetus, those findings contradict binding Supreme Court precedent with respect to how viability is to be determined as explained in this Order. See Act 493, § 1, to be codified at Ark. Code Ann. § 20-16-2002 (a)(2)(A) to (F) (reciting purported milestones in fetal development that do not equate with viability as defined by the Eighth Circuit and Supreme Court). Because the legislative findings and any asserted State interest consistent with those findings are inconsistent with binding legal precedent related to this Court’s examination of abortion laws and viability, and because at this stage of the proceeding the Court concludes that there is no competent record evidence presented by defendants to permit this Court to re-evaluate this precedent, the Court finds that plaintiffs are likely to prevail on their argument that this Court should reject the Arkansas legislature’s findings and the State’s asserted interest on this basis as unconstitutional. MKB Mgmt., 795 F.3d at 773 (quoting and citing Colautti, 439 U.S. at 388; see also Casey, 505 U.S. at 870 (plurality opinion) (“[T]he concept of viability . . . is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb . . . .”); Roe, 410 U.S. at 160, 163 (stating that a fetus becomes viable when it is “potentially able to live outside the mother’s womb, albeit with artificial aid” and that viability is the point at which the fetus “presumably has the capability of meaningful life outside the mother’s womb”)); (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 29; Decl. of Donna J. Harrison, M.D., ¶ 56).
To the extent the State recites legislative findings purportedly drawn from Casey and Roe, plaintiffs are likely to prevail on the argument that those findings fail to account for controlling Eighth Circuit and Supreme Court precedent as related to pre-viability abortion prohibitions. See Act 493, § 1, to be codified at Ark. Code Ann. § 20-16-2002(a)(3) (reciting purported holdings from Casey and Roe that disregard binding precedent related to pre-viability abortions).
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To the extent the State recites legislative findings that call into question the safety of abortion, these findings at this stage of the litigation and on the record evidence currently before the Court appear to be simply “incorrect.” Gonzales, 550 U.S. at 165. The evidence in this case, which is examined in more detail in subsequent sections of this Order, and in the prior cases cited by this Court including Hellerstedt, makes clear, at least at this stage of the proceeding, that plaintiffs are likely to prevail on their argument that the procedures are remarkably safe. On these matters, deference to the Arkansas legislature’s factual findings would be inappropriate. Gonzales, 550 U.S. at 165. Having resolved this, the Court turns to analyze the constitutionality of Act 493.
b. Act 493: Analysis Of Claimed Burden Because Act 493 prohibits nearly all abortions before viability, despite its limited exceptions, plaintiffs are likely to prevail on their argument that Act 493 is facially unconstitutional under controlling precedent. Edwards, 786 F.3d at 1117; MKB Mgmt., 795 F.3d at 771. It is the view of the Court that the undue burden test does not apply to its analysis of Act 493. Plaintiffs are likely to prevail on their argument that Act 493 prohibits pre-viability abortions past 18 weeks LMP, which the Supreme Court has clearly held is a prohibition that cannot be imposed by the State. Casey, 505 U.S. at 879. This Court is not alone in refusing to apply the undue burden standard when presented with state laws that unconditionally eliminate the right to abort a nonviable fetus for a defined class of women. See Isaacson, 716 F.3d 1225 (finding undue burden analysis to “have no place where” state is “forbidding certain women from choosing pre-viability abortions”). The narrow exceptions to Act 493 do not change the constitutional analysis or this Court's determination at this stage of the proceeding. See, e.g., Casey, 505 U.S. at 879 (“Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman
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from making the ultimate decision to terminate her pregnancy before viability.”); Edwards, 786 F.3d at 1117 (same); Isaacson, 716 F.3d at 1227-28 (holding that “while a health exception is necessary to save an otherwise constitutional post-viability abortion ban from challenge, it cannot save an unconstitutional prohibition on the exercise of a woman’s right to choose to terminate her pregnancy before viability.”).8
For all of these reasons, the Court grants plaintiffs’ motion for preliminary injunction and enjoins Act 493 at this stage of the proceeding as facially unconstitutional.
2. Analysis Of Act 619 Act 619 amends Arkansas Code Title 20, Chapter 16 to add an additional Subchapter 20 that prohibits a physician from intentionally performing or attempting to perform an abortion “with the knowledge” that a pregnant woman is seeking an abortion “solely on the basis” of: (1) a test “indicating” Down syndrome; (2) a prenatal diagnosis of Down syndrome; or (3) “[a]ny other reason to believe” the “unborn child” has Down syndrome. Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2003. Act 619 defines “unborn child” as “offspring of human beings form conception until birth.” Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2002(4). Ark. Code Ann. § 60-16-2002(4). The Court will use this term when discussing Act 619. However, because this definition is inconsistent with binding legal precedent related to this Court’s examination of abortion laws and viability, and because there is no competent record evidence presented by defendants at this stage of the proceeding to permit this Court to re-evaluate this precedent, the Court concludes that plaintiffs are likely to prevail on their argument that the Arkansas legislature’s definition is
8 In this Court’s temporary restraining order, although the Court determined Hellerstedt did not apply to this type of pre-viability restriction, the Court engaged in that alternative analysis. The Court declines to do so now and has made no factual findings on this record doing so.
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unconstitutional. MKB Mgmt., 795 F.3d at 772-73 (quoting and citing Colautti, 439 U.S. at 388); see also Casey, 505 U.S. at 870 (plurality opinion) (“[T]he concept of viability . . . is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb . . . .”); Roe, 410 U.S. at 160, 163 (stating that a fetus becomes viable when it is “potentially able to live outside the mother’s womb, albeit with artificial aid” and that viability is the point at which the fetus “presumably has the capability of meaningful life outside the mother’s womb”). Further, Act 619’s prohibition applies to all abortions throughout the period of pregnancy, both previability and post-viability, with the legislature including a severability provision. Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2003(c).
The Act requires physicians, prior to performing the abortion, to ask the pregnant woman if she is aware of any test results, prenatal diagnosis, or any other evidence that the unborn child may have Down syndrome. Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2003(b)(1). If the pregnant woman knows of such evidence, the physician who is performing the abortion must inform the woman of the prohibition of abortions solely on the basis of Down syndrome and request the woman’s medical records to determine the possibility of any previous abortions relevant to evidence of a possible Down syndrome diagnosis. Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2003(b)(2)(A)-(B). After request of the medical records, the physician is prohibited from performing the abortion for fourteen days. Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2003(b)(3).
Act 619 exempts a physician if he or she acts to: (1) necessarily save the life or preserve the health of the “unborn child” or pregnant woman, Act 619, § 1, to be codified at Arkansas Code Annotated § 20-16-2002(1)(B)(i); (2) remove a dead “unborn child” caused by spontaneous abortion or ectopic pregnancy, Ark. Code Ann. § 20-16-2002(1)(B)(ii); or (3) when the pregnancy
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resulted from rape or incest, id. § 20-16-2003(d). Violation of Act 619 constitutes a Class D felony, which is punishable by up to six years in prison and a fine up to $10,000.00. Ark. Code Ann. §§ 5-4-201,-401; Act 619, § 1, to be codified at § 20-16-2004. In addition, Act 619 requires that the Arkansas State Medical Board revoke the license of a physician who violates its mandate, Act 619, § 20-16-2005(c), and makes that physician liable in a civil action for actual and punitive damages to “any woman who receives an abortion in violation of [Act 619] . . . , the parent or legal guardian of the woman if the woman is an [unemancipated] minor, or the legal guardian of the woman if the woman has been adjudicated incompetent,” Arkansas Code Annotated § 20-162004(b)(1)-(2).
Act 619 exempts women from having abortions in violation of the Act from criminal prosecution and civil liability. Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2006(a). Specifically, in criminal proceedings, the woman who receives or attempts to receive an abortion in violation of the Act “is entitled to all rights, protections, and notifications afforded to crime victims.” Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2006(b). Further, in civil proceedings, “the anonymity of the woman who receives or attempts to receive the abortion in violation of this subchapter shall be preserved from public disclosure unless she gives her consent to disclosure.” Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2006(c).
For the following reasons, the Court concludes that, on the record evidence at this stage of the litigation, plaintiffs are likely to prevail on their argument that Act 619 unconstitutionally restricts pre-viability abortions and, therefore, is facially unconstitutional.
a. Act 619: Severability The prohibition in Act 619 applies to nearly all abortions with limited exceptions throughout the period of pregnancy, both pre-viability and post-viability, with the legislature
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including a severability provision. Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2003(c). When confronting a constitutional flaw in a statute, a federal court must “try not to nullify more of a legislature’s work than is necessary.” Ayotte, 546 U.S. at 329. It is preferable “to enjoin only the unconstitutional applications of a statute while leaving other applications in force, or to sever its problematic portions while leaving the remainder intact.” Id. (citations omitted). Severability is a matter of state law. See Russell v. Burris, 146 F.3d 563, 573 (8th Cir. 1998). Under Arkansas law, “an act may be unconstitutional in part and yet be valid as to the remainder.” Ex Parte Levy, 163 S.W.2d 529 (1942). In determining whether a constitutionally invalid portion of a legislative enactment is fatal to the entire legislation, the Supreme Court of Arkansas looks to “(1) whether a single purpose is meant to be accomplished by the act; and (2) whether the sections of the act are interrelated and dependent upon each other.” U.S. Term Limits, Inc. v. Hill, 872 S.W.2d 349, 357 (1994). Applying this standard, the Court satisfies itself that, under the law, an examination of Act 619 with respect to pre-viability and post-viability abortion would be warranted.
Based on record evidence, however, only the following types of abortion care are available in Arkansas currently: medication abortions which are available only up to 10 weeks LMP, aspiration surgical procedures, performed until approximately 13 weeks LMP, and dilation and evacuation D&E surgical procedures, which are performed until 21.6 weeks LMP (Decl. of Jason Lindo, Ph.D. ¶ 11).
Furthermore, based on record evidence, “[i]t is commonly accepted in the field of OBGYN that a normally developing fetus will not attain viability until at least 24 weeks LMP. However, not all fetuses attain viability even at that stage, due to a variety of factors, such as renal agenesis (absence of kidneys), anencephaly (profound neural tube defect), and hydrocephaly (where the skull is filled with fluid).” (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 29). Even Dr.
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Harrison, the Executive Director of AAPLOG, avers that only with specialized care can some fetus survive outside of the womb by 22 weeks, and even then the survival rate is only “as high as 40% in some medical centers.” (Decl. of Donna J. Harrison, M.D., ¶ 56). Dr. Harrison cites no source material or scientific studies in support of this assertion at this stage of the litigation.9
b. Act 619: Analysis of State’s Asserted Interest In this case, the Arkansas legislature made no findings regarding an identified set of perceived problems with the current method of care for abortion patients that Act 619 is intended to address. There is no record evidence of the number of women who receive a fetal diagnosis of Down syndrome and then opt to abort or carry a pregnancy to term in Arkansas. There is no record evidence of the number of children born in Arkansas over time with Down syndrome. Further, the Arkansas legislature made no findings that Act 619 would solve such problems or do much to solve such problems, if such problems even existed. See Casey, 505 U.S. at 845-46 (majority opinion). The Court acknowledges that defendants have included record evidence of women who have had abortions claiming to regret those abortions or claiming to have felt pressured into obtaining an abortion, specifically in circumstances involving alleged diagnosis of Down syndrome (see Dkt. No. 49-1, at 4-27; Decl. of Judy McGruder, ¶ 11). However, current law makes clear that, before viability, “the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” Casey, 505 U.S. at 845-46; see MKB Mgmt., 795 F.3d at 772.
9 As discussed previously in the section on Article III standing, since the record evidence shows that post-viability abortions are not performed in Arkansas, the Court will not examine whether Act 619 is constitutional as applied to post-viability abortions at this stage of the proceedings. Plaintiffs do not challenge this determination (Dkt. No. 104, at 3 n.2).
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Currently, with respect to abortion providers like plaintiffs, Arkansas mandates preabortion counseling with informed consent, Ark. Admin. Code § 007.05.2-7 (“prior to the abortion, the patient shall be counseled regarding the abortion procedure, alternatives to abortion, informed consent, medical risks associated with the procedure, potential post-abortion complications, community resources and family planning” and “documentation of counseling shall be included in the patient’s medical record . . . .”), and imposes a 48-hour, soon to be 72-hour,10 waiting period between an initial consultation and an abortion. However, undisputed record evidence confirms that abortion providers like plaintiffs typically do not provide the genetic testing or counseling with respect to Down syndrome that the Arkansas legislature intends to address with Act 619 (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 29).
Record evidence demonstrates that other medical providers, usually a woman’s family practice doctor or treating OBGYN, provide genetic testing and initial counseling and then refer a woman to a genetic counselor or maternal-fetal specialist for further testing or counseling based on the circumstances (Id., ¶ 29). As an initial matter, there is no record evidence that genetic tests during pregnancy are mandatory in Arkansas. Further, there is no record evidence that Arkansas has taken steps to regulate the speech of relevant medical providers on this issue to ensure a thoughtful and informed choice and to advance the State’s asserted interest. Instead, the Arkansas legislature moved to prohibit abortion on this basis with Act 619.
10 On April 20, 2019, Arkansas enacted a new law requiring a 72-hour waiting period between a woman’s consultation with a doctor concerning a possible abortion and any abortion procedure, except where it “will cause substantial and irreversible impairment of a major bodily function.” 2019 Ark. Acts 801, to be codified at Ark. Code Ann. §§ 20-16-1109, -1703(b), -1706. This law goes into effect on July 24, 2019. There is no record evidence that any party has challenged this new law.
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To the extent the Arkansas legislature intends to move the point of viability to conception through Act 619, this effort is inconsistent with binding legal precedent related to this Court’s examination of abortion laws and viability, and because there is no competent record evidence at this stage of the litigation presented by defendants to permit this Court to re-evaluate this precedent, the Court determines that plaintiffs are likely to prevail on their argument that the Arkansas legislature’s effort to move the point of viability to conception through Act 619 is unconstitutional. MKB Mgmt., 795 F.3d at 772-73 (quoting and citing Colautti, 439 U.S. at 388); see Casey, 505 U.S. at 870 (plurality opinion) (“[T]he concept of viability . . . is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb . . . .”); Roe, 410 U.S. at 160, 163 (stating that a fetus becomes viable when it is “potentially able to live outside the mother’s womb, albeit with artificial aid” and that viability is the point at which the fetus “presumably has the capability of meaningful life outside the mother’s womb”).
Based on this, the Court concludes that, at this stage of the proceeding and on the record evidence before it, plaintiffs are likely to prevail on their argument that Act 619 impacts previability abortions when the State’s interests are not strong enough to support a prohibition of abortion.
c. Act 619: Analysis of Claimed Burdens Recently, two courts have considered provisions similar, although not identical to, Act 619. In Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner of Indiana State Department of Health, 888 F.3d 300, 306 (7th Cir. 2018), reh’g en banc granted, judgment vacated, 727 F. App’x 208 (7th Cir. 2018), vacated, 917 F.3d 532 (7th Cir. 2018), and cert. granted in part, judgment rev’d on other grounds sub nom. Box v. Planned Parenthood of Indiana & Kentucky, Inc., 139 S. Ct. 1780 (2019), the Seventh Circuit held unconstitutional a law prohibiting abortion because the law prohibited abortions prior to viability if the abortion was sought for a
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particular purpose, including solely because of the sex of the fetus, solely because the fetus has been diagnosed or has a potential diagnosis of any other disability, or solely because of the race, color, national origin, or ancestry of the fetus. In Preterm-Cleveland, 294 F. Supp. at 755, the district court enjoined a law that prohibited abortions sought in whole or in part on the basis of a Down syndrome diagnosis.
Act 619 as applied to pre-viability abortions performed in Arkansas attempts to accomplish what the Supreme Court has held impermissible. Plaintiffs are likely to prevail on their argument that Act 619 is unconstitutional on its face as applied to pre-viability abortions performed in Arkansas because it clearly violates well-established Eighth Circuit and Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right solely upon the basis on which a woman makes her decision. See Casey, 505 U.S. at 870. Before viability, “the State’s interests are not strong enough to support a prohibition of abortion.” Planned Parenthood of Indiana & Kentucky, Inc., 265 F. Supp. 3d at 867 (quoting Casey, 505 U.S. at 869 (“[a]t a later point in fetal development,”—namely viability—“the State’s interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.”)). It is the view of the Court that the undue burden test does not apply to its analysis of Act 619. Act 619 prohibits abortions prior to viability if the abortion is sought solely based on some indication, whether by diagnosis or any reason to believe, the fetus has Down syndrome. Act 619, § 1, to be codified at § 20-16-2003. Based on the record evidence before the Court at this stage of the proceeding, plaintiffs are likely to prevail on their argument that the Act is an absolute prohibition on certain abortions prior to viability which the Supreme Court has clearly held cannot be imposed by the State. Casey, 505 U.S. at 879 (plurality opinion). This Court is not alone in refusing to apply the undue burden standard when presented with state
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laws that unconditionally eliminate the right to abort a nonviable fetus for a defined class of women. See Isaacson, 716 F.3d at 1225 (finding undue burden analysis to “have no place where state is forbidding women from choosing pre-viability abortions”); Himes, 294 F. Supp. 3d at 754 (finding state law prohibiting pre-viability abortions based on Down syndrome diagnosis unconstitutional infringement rather than appropriate law to apply undue burden test).
The narrow exceptions to Act 619 do not change the constitutional analysis or this Court's determination at this stage of the proceeding. See, e.g., Casey, 505 U.S. at 879 (“Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”); Edwards, 786 F.3d at 1117 (same); Isaacson, 716 F.3d at 1227-28 (holding that “while a health exception is necessary to save an otherwise constitutional post-viability abortion ban from challenge, it cannot save an unconstitutional prohibition on the exercise of a woman's right to choose to terminate her pregnancy before viability.”).11
For all of these reasons, the Court grants plaintiffs’ motion for preliminary injunction and enjoins Act 619 at this stage as facially unconstitutional.
D. Analysis Of Act 700 Act 700 of 2019, Ark. Code Ann. § 20-16-605, provides that “[a] person shall not perform or induce an abortion unless that person is a physician licensed to practice medicine in the State of Arkansas and is board-certified or board-eligible in obstetrics and gynecology.” Ark. Code Ann. § 20-16-605(a).12 Act 700 makes a violation of this requirement a Class D felony and subjects the
11 In this Court’s temporary restraining order, although the Court determined Hellerstedt did not apply to this type of pre-viability restriction, the Court engaged in that alternative analysis. The Court declines to do so now and has made no factual findings on this record doing so.
12 Further, Section 2 of Act 700 purports to alter the definition of “viable fetus” to: “‘Viability’ means the state of fetal development when, in the judgment of the physician based on
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person to revocation, suspension, or nonrenewal of the professional license of an abortion facility
or physician. Ark. Code Ann. § 20-16-605(b). A Class D felony in Arkansas is punishable by up
to six years in prison and a fine of up to $10,000.00. Ark. Code Ann. §§ 5-4-201, -401.
Before the enactment of Act 700, the law in Arkansas already required that only a physician
licensed to practice medicine in the State of Arkansas may provide abortion care. Ark. Code Ann.
§ 5-61-101(a). As a result, plaintiffs challenge that portion of Act 700 that requires the physician
to also be board-certified or board-eligible in OBGYN. Ark. Code Ann. § 20-16-605(a).
For the reasons discussed below, at this stage of the proceeding and based upon the record
evidence before it, the Court finds that plaintiffs have demonstrated that they are likely to prevail
in showing that Act 700’s OBGYN agreement confers little, if any, benefit upon women in the
context of abortion care in Arkansas. Federal constitutional protection of reproductive rights is
based on the liberty interest derived from the due process clause of the Fourteenth Amendment.
Casey, 505 U.S. at 846 (majority opinion). The United States Supreme Court, when recognizing
this right, stated:
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and
the particular facts of the case before him or her and in light of the most advanced medical technology and information available to him or her, there is a reasonable likelihood of sustained survival of the unborn child outside the body of the mother, with or without artificial life support.” Ark. Code Ann. § 20-16-702(3). This language comports with controlling Eighth Circuit and Supreme Court precedent with respect to “viability.” See MKB Mgmt., 795 F.3d at 772-73 (quoting and citing Colautti, 439 U.S. 388; see also Casey, 505 U.S. at 870 (plurality opinion) (“[T]he concept of viability . . . is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb . . . .”); Roe, 410 U.S. at 160, 163 (stating that a fetus becomes viable when it is “potentially able to live outside the mother’s womb, albeit with artificial aid” and that viability is the point at which the fetus “presumably has the capability of meaningful life outside the mother’s womb”)). Plaintiffs do not purport to challenge this portion of Act 700.
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the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion. In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem. Roe, 410 U.S. at 116. Unless and until Roe is overruled by the United States Supreme Court, to determine whether a state statute is unconstitutional and violates substantive due process rights in this context, the Court applies the “undue burden” standard developed in Casey, 505 U.S. at 876-79 (plurality opinion), and Hellerstedt, 136 S. Ct. at 2309-11. This Court is bound to follow Eighth Circuit and Supreme Court precedent. This Court acknowledges the appeal of defendants’ “commonsense argument” that boardcertification or board-eligibility in OBGYN must confer some benefit upon women seeking abortions in Arkansas. After a critical examination of the record evidence to date, the Court ultimately rejects that argument at least at this preliminary stage of the litigation and determines that plaintiffs are likely to prevail on their argument that “there [is] no significant health-related problem” Act 700 “help[s] to cure”; nor is it “more effective than pre-existing [state] law” in furthering defendants’ asserted interests. Hellerstedt, 136 S. Ct. at 2311, 2314. This finding, by itself, may be enough to conclude that the OBGYN requirement unduly burdens the right to an abortion. See Jackson Women’s Health Organization v. Currier, 320 F. Supp. 3d 828, 841 n.9 (S.D. Miss. 2018) (“Jackson IV”). The Court notes, however, that the Eighth Circuit’s decision in Jegley, 864 F.3d at 958-60, appears to require this Court to weigh benefits and burdens, even in the absence of any record evidence showing benefits caused by Act 700’s OBGYN requirement. Furthermore, while Dr. Ho has withdrawn from the motion for temporary restraining order and/or preliminary injunction, the Court will treat the present request for a
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preliminary injunction as a facial challenge to the OBGYN requirement’s enforcement against all abortion providers in Arkansas, given the record evidence at this stage of the proceedings.
In the sections that follow, the Court applies the undue burden test from Casey and Hellerstedt. First, the Court examines the benefits, if any, attributable to the OBGYN requirement. Second, the Court examines LRFP and PPAEO Little Rock’s attempts to comply with the OBGYN requirement. Third, the Court considers whether the availability of out-of-state abortion clinics is relevant to the undue burden analysis. Fourth, the Court considers the burdens imposed by the OBGYN requirement. Finally, the Court weighs the benefits and burdens of the OBGYN requirement in order to determine if the OBGYN requirement places an unconstitutional “undue burden” on women.
1. Act 700: Due Process Claim The Court first turns to examine the benefits, if any, of Act 700’s OBGYN requirement. At the outset of this analysis, the Court acknowledges several matters. First, it is settled law that a state may enact regulations “to foster the health of a woman seeking abortion” or “to further the State’s interest in fetal life,” provided that those regulations do not impose an “undue burden” on the woman’s decision. Casey, 505 U.S. at 877-78 (plurality opinion). The relevant question before the Court is whether Act 700’s OBGYN requirement provides the asserted benefits as compared to the prior law. See Hellerstedt, 136 S. Ct. at 2311 (“We have found nothing in Texas’ record evidence that shows that, compared to the prior law, . . . the new law advanced Texas’ legitimate interest in protecting women’s health.”); id. at 2314 (“The record contains nothing to suggest that [the challenged law] would be more effective than pre-existing Texas law . . . .”) (emphasis added). Therefore, the specific question at this juncture is whether requiring abortion providers in Arkansas to comply with Act 700’s OBGYN requirement that the physician providing the abortion be board-
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certified or board-eligible in OBGYN furthers a legitimate interest of the state, as compared to Arkansas’ pre-existing laws and regulations affecting abortions.
a. Examining Alleged Health-Related Problems With Medication Or Surgical Abortion In Arkansas
In Hellerstedt, the Supreme Court examined a statute that did not set forth any legislative findings. Id. at 2310. Specifically, the Supreme Court examined H.B.2’s requirement that a “physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” 136 S. Ct. at 2310 (citing Tex. Health & Safety Code. Ann. § 171.0031(a)). The prior Texas law required doctors who provided abortions to “have admitting privileges or have a working arrangement with a physician who ha[d] admitting privileges at a local hospital in order to ensure the necessary back up for medical complications.” Id. (citing 25 Tex. Admin. Code, § 139.56 (2009)); see 33 Tex. Reg. 1093 (Dec. 19, 2018) (to be codified at 25 Tex. Admin Code § 139.56).13 H.B.2 imposed an admitting privileges requirement on physicians performing both medication and surgical abortions.
When considering H.B.2’s admitting privileges requirement, defendants argued, and in Hellerstedt the Supreme Court recognized, that “[t]he purpose of the admitting-privileges requirement is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure.” 136 S. Ct. at 2311. The district court “found that it brought about
13 It is important to note that Texas has a law that prohibits hospitals from discriminating against a physician applying for privileges based on that physician’s status as an abortion provider or views as to abortion. See Tex. Occ. Code § 103.002(b). This type of statute in effect protects physicians who perform abortions from targeted discrimination when applying for admitting privileges. See, e.g., Whole Woman’s Health v. Cole, 790 F.3d 563, 596 n.44 (5th Cir. 2015); Abbott II, 748 F.3d at 598 n.13. As other courts have observed, the situation is different in states without such laws. See, e.g., June Med. Servs. LLC v. Kliebert, 158 F. Supp. 3d 473, 501 (M.D. La. 2016) (“Kliebert I”).
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no such health-related benefit,” determining that “[t]he great weight of the evidence
demonstrate[d] that, before the act’s passage, abortion in Texas was extremely safe with
particularly low rates of serious complications and virtually no death occurring on account of the
procedure.” Id. (citing Whole Woman’s Health v. Lakey, 46 F. Supp. 3d 673, 684 (W.D. Tex.
2014)). It was on this basis, as noted by the Supreme Court in Hellerstedt, that the district court
determined “there was no significant health-related problem that the new law helped to cure.” Id.
According to Hellerstedt, this conclusion was based on, among other things:
• “A collection of at least five peer-reviewed studies on abortion complications in the first trimester, showing that the highest rate of major complications—including those complications requiring hospital admission—was less than one-quarter of 1%.”
• “Figures in three peer-reviewed studies showing that the highest complication rate found for the much rarer second trimester abortion was less than one-half of 1% (0.45% or about 1 out of about 200).”
• “Expert testimony to the effect that complications rarely require hospital admission, much less immediate transfer to a hospital from an outpatient clinic. Id., at 266-267 (citing a study of complications occurring within six weeks after 54,911 abortions that had been paid for by the fee-for-service California Medicaid Program finding that the incidence of complications was 2.1%, the incidence of complications requiring hospital admission was 0.23%, and that of the 54,911 abortion patients included in the study, only 15 required immediate transfer to the hospital on the day of the abortion).”
• “Expert testimony stating that ‘it is extremely unlikely that a patient will experience a serious complication at the clinic that requires emergent hospitalization’ and ‘in the rare case in which [one does], the quality of care that the patient receives is not affected by whether the abortion provider has admitting privileges at the hospital.’”
• “Expert testimony stating that in respect to surgical abortion patients who do suffer complications requiring hospitalization, most of those complications occur in the days after the abortion, not on the spot.”
• “Expert testimony stating that a delay before the onset of complications is also expected for medical abortions, as ‘abortifacient drugs take time to exert their effects, and thus the abortion itself almost always occurs after the patient has left the abortion facility.’”
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• “Some experts added that, if a patient needs a hospital in the day or week following her abortion, she will likely seek medical attention at the hospital nearest her home.”
Hellerstedt, 136 S. Ct. at 2311 (internal record citations omitted). The Supreme Court in Hellerstedt reviewed medication and surgical abortion statistics and
research to reach its conclusion and noted that, “when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.” Id. at 2311-12. The Supreme Court observed: “This answer is consistent with the findings of the other Federal District Courts that have considered the health benefits of other States’ similar admitting-privileges laws.” Id. at 2312 (citing Planned Parenthood of Wis., Inc. v. Van Hollen, 94 F. Supp. 3d 949, 953 (W.D. Wis. 2015) (“Van Hollen IV”), aff’d sub nom Schimel, 806 F.3d 908; Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330, 1378 (M.D. Ala. 2014 (“Strange III”)).
The Eighth Circuit has determined that Hellerstedt requires the Court to “weigh the state’s ‘asserted benefits’” on the record before it. Comprehensive Health of Planned Parenthood Great Plains v. Hawley, 903 F.3d 750, 758 (8th Cir. 2018) (vacating and reversing Missouri district court that relied on Hellerstedt’s analysis of the purported benefits of the Texas law without examining record evidence specific as to Missouri). As a result, this Court will examine the record before it. The record evidence before the Court at this stage of the proceeding leads the Court to conclude that plaintiffs are likely to prevail on the argument that there is “no significant health-related problem” intended to be addressed by Act 700. Hellerstedt, 136 S. Ct. at 2311.
Plaintiffs present scientific record evidence that is generally accepted in the medical community that “[l]egal abortion is one of the safest medical procedures available in the United
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States.” (Dkt. No. 4, at 5; Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 21; Decl. of Linda W. Prine, M.D., ¶ 26; Decl. of Stephanie Ho, M.D., ¶ 16). This scientific record evidence includes the National Academy Consensus Study Report, prepared by the National Academy of Sciences, Engineering, and Medicine which Congress established to provide objective advice on matters relating to science and technology.14 The National Academy Consensus Study Report “determined that the risks associated with medication abortion are similar to those associated with over-the-counter anti-inflammatory drugs such as ibuprofen” and that “the risks associated with surgical abortion are extremely low, with the risk of complications being in the 0-to-5% range.” (Dkt. No. 4, at 5-6 (citing National Academy Consensus Study Report, at 11, 74-75)). Record evidence supports that legal abortion is significantly safer for a woman than carrying a pregnancy to term and giving birth (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 28; Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 9; see National Academy Consensus Study Report, at 75).
Having carefully considered at this preliminary stage the record evidence before it, the Court determines that the record evidence defendants rely on in an effort to refute this is lacking. The Court has examined Dr. Aultman’s declarations and the materials she cites.
The defendants also assert that “[a]bortion is a dangerous business” by claiming and citing as support for that proposition that LRFP has called an ambulance for a patient 64 times in 20 years of providing abortion care, claiming “an average of 3.2 calls a year.” (Dkt. No. 103, at 1, citing Decl. of Mary Silfies). First, defendants present no record evidence regarding why these ambulances were called to LRFP (Decl. of Mary Silfies, ¶ 5). Instead, defendants cite this number and presumably ask the Court to infer that these calls were for patients and related to abortion care
14 Our Reputation, http://www.nationalacademies.org/about/reputation/index.html (last visited August 5, 2019).
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or in some way reflect on care purportedly provided by one abortion provider in particular who is neither board-certified, board-eligible, nor an OBGYN—Dr. Tvedten (Dkt. No. 103, at 46). For reasons the Court will explain, the Court declines to make these inferences.
Second, even if this Court were to assume that this total number of ambulance calls relates in some way to abortion patients and the provision of abortion care, this purported complication rate is consistent with what is reflected in the literature that complication rates for abortion care are exceedingly low. Given the number of abortion procedures performed at LRFP each year, even if the Court makes defendants’ assumption that the total number of ambulance calls relates in some way to abortion patients and the provision of abortion care, this evidence is consistent with the findings of the Supreme Court in Hellerstedt regarding these procedures; it does not refute such evidence. Between May 1, 2016, and April 30, 2019, LRFP provided 7,010 abortions (Decl. of Jason Lindo, Ph.D., ¶ 15), and called an ambulance according to defendants ten times, if defendants’ record evidence is accepted at this stage (Dkt. No. 49-5, at 5). That equates to a 0.14%15 complication rate requiring hospital transfers; this supports and does not detract from the notion that the risks associated with abortion care are extremely low (Dkt. No. 61, at 37).
However, the Court does not have to make assumptions because there is record evidence addressing this point. Ms. Williams testified at the July 22, 2019, hearing that LRFP tracks the number of times each year it transfers a patient to a local hospital for care (Dkt. No. 84, at 85:1820). Since January 2017, LRFP has transferred a patient to a local hospital for care five times total; three of the entries for this period have no drop off address (Id., at 85:21-86:9). Ms. Williams addressed defendants’ assumption regarding the total number of ambulance calls with respect to
15 10/7,010=0.0014.
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the record LRFP maintains (Id., at 86:10-87:11). Ms. Williams was subject to cross examination on this point. Utilizing the record evidence, the Court calculates an even lower rate of 0.07%16 for complications requiring hospital transfers for this period.
In their most recent filing, plaintiffs give defendants the benefit of the doubt regarding the three ambulance calls listed with no drop off address, acknowledging one of these entries is a duplicate entry for January 2018 (Decl. of Mary Silfies, ¶ 5). Even with this, and even assuming seven ambulance calls during this period, the transfer rate equates to 0.09%17 which is lower than what the record evidence demonstrates is commonly understood as the rate of complications for abortion care. In fact, all these calculations comport with a determination that the rate of complications requiring hospital transfers for abortions performed at LRFP is lower than what the record evidence demonstrates are the commonly accepted complication rates for abortion care, with “1% to 3%” for minor complications and “one every few hundred” for major complications (Dkt. No. 84, at 18:1-8).
In Dr. Aultman’s “rebuttal declaration,” she raises issues with respect to Dr. Tvedten’s prior conviction for second degree criminal mischief in 1987 and a temporary, brief license suspension and suspension of his ability to prescribe certain medications for a brief period of time in the early 1980s in response to an incident (Rebuttal Decl. of Kathi Aultman, M.D., ¶ 10).18 The
16 5/7,010=0.0007. 17 7/7,010=0.0009. 18 In a recent filing, defendants also present a letter from Dr. Tvedten to the Arkansas Medical Board in which he admits to a driving under the influence conviction (Dkt. No. 103-1, at 1). They also present an accusation that Dr. Tvedten threatened an individual in a rental dispute (Id., at 2). Finally, defendants present an undated handwritten note with respect to alleged conduct by Dr. Tvedten (Dkt. No. 103-1, at 3). Plaintiffs object to these documents as not properly authenticated because the documents are unaccompanied by any certification explaining from where the documents were obtained (Dkt. No. 107, at 6 n.6 (citing Fed. R. Evid. 902)). Further,
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incident regarding criminal mischief relates to Dr. Tvedten, after requesting that an individual stop photographing without their consent women attempting to enter an abortion clinic, breaking the camera of the individual. Dr. Tvedten was questioned about this at the July 22, 2019, hearing and relayed that he was required to purchase the individual a new camera (Dkt. No. 84, at 175:15-25). As an initial matter, defendants’ efforts to cast doubt on Dr. Tvedten’s competence as an abortion provider through this type of evidence fall short. There is record evidence that Dr. Tvedten is a competent, highly skilled practitioner who regularly trains others and receives referrals from other medical professionals due to his skilled abortion care (Dkt. No. 84, at 16:12-18; 176:2-17; 177:1523; 203:15-17; 204:4-5). To the extent defendants attempt to imply that Dr. Tvedten is unfit to practice medicine, the Court notes that Dr. Tvedten remains an Arkansas-licensed physician, subject to all laws and regulations, and defendants have not presented any competent record evidence to support that serious allegation. Further, even if such an implication were warranted, defendants offer no record evidence to explain why Act 700’s OBGYN requirement is more effective than pre-existing Arkansas laws and regulations in furthering defendants’ asserted interests.
plaintiffs point out that defendants redacted the purported complainant’s name from the second document, which plaintiffs claim further undermines its probative value.
Although defendants attach these documents to their filing, defendants provide to the Court no affidavit or other record evidence to aid the Court in evaluating the documents. Dr. Tvedten testified at the July 22, 2019, hearing, and defendants had the opportunity to present these documents during his cross examination. Defendants chose not to do so. Two of the documents defendants attach are over ten years old, with one dating from 2008 and the other from 1998, and the third is undated based on this Court’s review. There is no indication from these documents what occurred, if anything, as a result of these alleged events in terms of investigations or actions taken by the Arkansas State Medical Board. Moreover, defendants make no argument and offer no record evidence as to why Act 700’s OBGYN requirement advances defendants’ asserted interests here over the Arkansas State Medical Board’s ability to address these incidents and advance defendants’ asserted interests. As a result, the Court finds these documents of little probative value.
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The Court notes that Dr. Harrison has filed a supplemental declaration in which she cites
162 scientific articles that she claims show a link between prior abortions and “preterm” births
(Supp. Decl. Donna J. Harrison, M.D., ¶ 3). The Court examines these articles, infra, in this Order.
See Section III.D.1.c. Dr. Harrison’s supplemental declaration and the articles she cites do not
support an assertion that legal abortion is an unsafe medical procedure.
Having examined all record evidence at this stage of the proceedings, the Court determines
that plaintiffs are likely to prevail on the question of whether legal abortion is one of the safest
medical procedures available in the United States and in Arkansas and on the point that Act 700
provides no benefit if intended to address a medical safety problem with legal abortion in Arkansas
that on this record does not exist.19
19 In its temporary restraining order, this Court observed that this comports with concessions reportedly made by the lead sponsor of Act 700 (Dkt. No. 83, at 101-02). In support of their argument on this point, plaintiffs cited to material not a part of the record evidence (Dkt. No. 4 at 37-38 (citing S.B. 448 Floor Debate; Dkt. No. 4, at 31, n. 94 (quoting S.B. 448 Hearing Testimony)). Plaintiffs have not supplemented the record with this evidence at this stage of the proceeding, and the Court is not aware of the public availability of such evidence. As a result, the Court makes no finding of fact with respect to this.
Regardless, the arguments made by plaintiffs based on this type of evidence were not, and are not, dispositive of the issues with respect to Act 700. Plaintiffs argued that “[t]his rationale is dispositive under Eighth Circuit authority: If a ‘requirement serves no purpose other than to make abortions more difficult, it strikes at the heart of a protected right, and is an unconstitutional burden on that right.’” (Dkt. No. 4, at 47 (citing Planned Parenthood of Greater Iowa, Inc. v. Atchison, 126 F.3d 1042, 1049 (8th Cir. 1997)). Further, plaintiffs contended that statements by “the sponsors and supporters of the legislation as to its central purpose” may be considered, even if “statements on the floor by legislators are not always the most persuasive indicia of legislative intent.” (Dkt. No. 61, at 35 (quoting United States v. Dean, 647 F.2d 779, 787 n.15 (8th Cir. 1981); see also Perkins v. City of W. Helena, Ark., 675 F.2d 201, 213 (8th Cir. 1982) (“The legislative or administrative history is relevant to the issue of discriminatory intent, especially where, as here, there are contemporary statements of members of the decisionmaking body.”)).
Although defendants did not attempt to distinguish Atchison, and although these allegations coupled with evidence that Arkansas has enacted more than 25 laws regulating abortion access in the State, including 12 enacted in 2019 alone (Dkt. No. 4, at 28, n.70, n.71), gave the Court pause with respect to the purpose of Act 700, the Court did not find these matters dispositive and examined Act 700 by applying the undue burden analysis from Hellerstedt.
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b. Examining Efforts To Establish A “Floor Of Care” The Court next turns to examine whether, even if there is no significant health-related problem with legal abortion in the United States or in Arkansas that Act 700 is intended to address, there is nonetheless a benefit from Act 700. The Eighth Circuit in at least one prior decision stemming from a challenge to an Arkansas abortion statute—Section 1504(d) of Arkansas Act 577 requiring that Arkansas abortion facilities providing medication abortions must “have a signed contract with a physician who agrees to handle complications” and who has “active admitting privileges and gynecological/surgical privileges at a hospital designated to handle any emergencies associated with the use or ingestion of the abortion-inducing drug,” Ark. Code Ann. § 20-161504(d)(1),(2) (“Section 1504(d) of Arkansas Act 577”)—suggested that this Court should consider whether the statute might be intended to set a “floor of care,” such as was present in Texas and examined by the Supreme Court in Hellerstedt. See Jegley, 864 F.3d at 960 n.9; see also Comprehensive Health of Planned Parenthood Great Plains, 903 F.3d at 758 (vacating and remanding, in part, for the district court to consider whether a “hospital relationship requirement” was a valid exercise of Missouri’s “inherent ‘police power’” or “legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient”) (internal citations omitted). The Eighth Circuit suggested that, under the circumstances presented in Jegley, a “legal floor” would prevent an abortion provider from, in the future, reducing continuity-of-care practices and thus “would constitute a benefit.” 864 F.3d at 960 n.9.
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The Court examines cases from other jurisdictions that compare the benefit of an abortion restriction against a purportedly pre-existing “floor of care.”20
(i) Examining Wisconsin Law In Schimel, a case cited by the Supreme Court in Hellerstedt, the district court and Seventh Circuit examined a Wisconsin statute that required every doctor who performed abortions to have admitting privileges at a hospital within a 30-mile radius of each clinic at which the doctor performed abortions, with the law being signed on a Friday and compliance required by the following Sunday. 806 F.3d at 911. The district court granted a temporary restraining order, Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 963 F. Supp. 2d 858 (W.D. Wis. 2013) (“Van Hollen I”), and a preliminary injunction, Planned Parenthood of Wisconsin, Inc. v. Van Hollen, No. 13-cv-465-WMC, 2013 WL 3989238 (W.D. Wis. Aug. 2, 2013) (“Van Hollen II”). The Seventh Circuit affirmed the entry of the preliminary injunction. Van Hollen III, 738 F.3d at 799. The district court then conducted a full trial, resulting in the district court imposing a permanent injunction against enforcement of the statute. Defendants then appealed, arguing that “the statute protects the health of women who experience complications from an abortion.” Schimel, 806 F.3d at 910.
20 In addition to the cases examined here, the Court also notes that Oklahoma struck down an admitting privileges law. Burns v. Cline, 387 P.3d 348, 354 (Okla. 2016) (holding that, in the light of Hellerstedt, Oklahoma’s admitting privileges law “creates a constitutionally impermissible hurdle for women who seek lawful abortions.”). Tennessee, after Hellerstedt, agreed not to enforce an admitting privileges law that was being challenged. See Adams & Boyle P.C., et al. v. Herbert Slaterly, et al., Case No. 3:15-cv-00705, Dkt. No. 60, at 2-3 (M.D. Tenn. April 14, 2017) (agreeing to enjoin permanently enforcement of, among other things, an admitting-privileges statute that was “similar to the provision[] struck down in [Hellerstedt] . . . .”).
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On appeal, the Seventh Circuit determined that, for the proposed statute to be justified, there had to be “reason to believe that the health of women who have abortions is endangered if their abortion doctors don’t have admitting privileges.” Id. at 912. The Seventh Circuit affirmed the district court and found that “there is no reason to believe that.” Id. The Seventh Circuit observed:
A woman who experiences complications from an abortion (either while still at the clinic where the abortion was performed or at home afterward) will go to the nearest hospital, which will treat her regardless of whether her abortion doctor has admitting privileges. As pointed out in a brief filed by the American College of Obstetricians and Gynecologists, the American Medical Association, and the Wisconsin Medical Society, “it is accepted medical practice for the hospital-based physicians to take over the care of a patient and whether the abortion provider has admitting privileges has no impact on the course of the patient’s treatment.” As Dr. Serdar Bulum, the expert witness appointed in this case by the district court judge under Fed. R. Evid. 706, testified, the most important factor would not be admitting privileges, but whether there was a transfer agreement between the clinic and the hospital. As we’ve said, abortion doctors in Wisconsin are required to have such transfer agreements . . . . The treating doctor at the hospital probably would want to consult with the doctor who had performed the abortion, but for such a consultation the abortion doctor would not need admitting privileges.
Schimel, 806 F.3d at 912 (citing the requirement in Wis. Admin. Code Med. § 11.04(1)(g) for abortion clinics to adopt transfer protocols intended to assure prompt hospitalization of any abortion patient who experiences complications serious enough to require hospitalization) (emphasis in original). There is no mention in Schimel of any “floor of care” other than the transfer agreement requirement. There is no mention of any admitting privileges requirement, other than the requirement challenged and enjoined by the court.
The Schimel Court further concluded based on record evidence presented and cited by the court that “complications from abortion are both rare and rarely dangerous—a fact that further attenuates the need for abortion doctors to have admitting privileges.” Id. at 912 (citing record
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studies and evidence). The court observed that abortion clinics uniquely among outpatient providers of medical services in Wisconsin were required to adopt transfer protocols. Id. at 913. The court observed that defendants “presented no other evidence of complications from abortions in Wisconsin that were not handled adequately by the hospitals in the state.” Id. The court rejected the argument that such admitting privileges within 30 miles of a clinic were required to ensure the “Good Housekeeping Seal of Approval” on doctors. Schimel, 806 F.3d at 915. Further, the court rejected the argument that admitting privileges improved continuity-of-care. Id. (“But nothing in the statute requires an abortion doctor who has admitting privileges to care for a patient who has complications from an abortion . . . .”).
(ii) Examining Alabama Law
Alabama’s statute requiring abortion providers to obtain staff privileges at a local hospital has a long history, which this Court examined in Jegley. 21 In Strange III, the other case cited by the Supreme Court in Hellerstedt, the district court examined an Alabama law requiring “every doctor performing abortions in Alabama to ‘have staff privileges at an acute care hospital within the same standard metropolitan statistical area as the facility is located that permit him or her to perform dilation and cutterage, laparotomy procedures, hysterectomy, and any other procedures reasonably necessary to treat abortion-related complications.’” 33 F. Supp. 3d at 1336. A clinic administrator who knowingly and willfully operated an abortion clinic with doctors who did not
21 Alabama’s staff privileges law was declared to restrict unconstitutionally the rights of women seeking abortions in Alabama. Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1381 (M.D. Ala. 2014) (“Strange IV”) (supplementing liability opinion with evidentiary findings); Strange III, 33 F. Supp. 3d at 1378 (finding that the staffing privileges requirement was unconstitutional as applied to plaintiffs); Strange II, 9 F. Supp. 3d at 1276 (summary judgment opinion laying the foundation for the application of the undue-burden test); Planned Parenthood Se., Inc. v. Bentley, 951 F. Supp. 2d 1280, 1290 (M.D. Ala. 2013) (“Strange I”) (temporarily enjoining the enforcement of the staff privileges requirement).
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have such privileges faced felony criminal liability, and the State of Alabama could revoke the clinic’s license for violations of the law. Id.
Relevant to the issue of an established “floor of care,” prior to the challenged law, to be qualified to perform an abortion in Alabama, the physician had to either “have completed a residency or fellowship that included abortion training;” had to “maintain admitting privileges at a United States hospital that allow[ed] her to perform abortions at that hospital;” or had to “provide verification from a disinterested, properly trained physician that she has sufficient skill at performing abortions.” Planned Parenthood Se., Inc. v. Strange, 9 F. Supp. 3d 1272, 1276 (M.D. Ala. 2014) (“Strange II”). The pre-existing regulations in Alabama also included other specific provisions, including requiring the physician to remain at the clinic until the last patient left; providing the patient, after she leaves the clinic, with access to a 24-hour answering service that would immediately refer calls about complications to a qualified nurse, nurse practitioner, physician assistant, or physician; and to record every such call. Id. at 1276. Further, the law also required that each abortion clinic “have a physician on staff who has admitting privileges at a local hospital or to maintain a written contract with a ‘covering physician.’” Id. at 1277. The then ineffect regulations required the covering physician to “have admitting privileges that permit her to perform ‘dilation and curettage, laparotomy procedures, hysterectomy, and any other procedures necessary to treat abortion-related complications’ at a hospital within the same metropolitan statistical area as the clinic” and that the affiliated doctor with admitting privileges be available “for 72 hours after the procedure to treat any complications that may arise” when performing abortions. Id.
In Strange III, the State argued that the staff-privileges requirement had two “strong justifications,” both related to an interest in protecting women’s health. 33 F. Supp. 3d at 1341.
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First, the State argued the requirement ensured proper care for complications, and second, the State argued the requirement had a secondary benefit of “‘credentialing’ high quality doctors.” Id. In regard to continuity-of-care, the district court identified this concept as “the goal of ensuring that a patient receives high-quality care not only during a certain procedure but also after it, including treatment of complications and any necessary follow-up care” but conceded from the evidence “this is a somewhat elusive concept.” Id. at 1363.
According to the Strange III court, three models emerged for ensuring continuity-of-care. There, the court termed these the first model, the second model, and the third model, also referring to the third model as the “country-doctor model.” Id. at 1364-65. According to the court, the first model relies upon the 24-hour telephone access to a doctor or nurse at the abortion clinic at any time. 33 F. Supp. 3d at 1364. Under this model, the doctor or nurse may give instructions for inhome treatment, schedule the woman for a follow-up visit at the clinic, or, if appropriate, direct the woman to the nearest emergency room to be assessed immediately or treated. Id. If a patient needs to be transferred directly to a hospital from the clinic, which the court found is an admittedly rare circumstance, the abortion doctor should communicate with the emergency room doctor to provide continuity-of-care. Id. at 1364-65.
Under the second model, there is a covering physician or a doctor with admitting privileges. Id. at 1365. The court recognized that the baseline of Alabama’s law regulating abortion providers at the time fell under this model. 33 F. Supp. 3d at 1365. Under this model, the doctor who performs the procedure may arrange for a covering doctor to provide follow-up care for any complications that may arise after the procedure. Even under this procedure, however, if it is an urgent situation, the record evidence in Strange III established that it was more important for a
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patient to go to the nearest emergency room than to be treated by the initial doctor or covering
physician. Id.
The third model or “country-doctor” approach required the physician who performed the
initial procedure to provide consistently most care for complications that may arise, rather than
relying on a covering physician, a transfer agreement, or the emergency room. Id. A specialist
may need to be brought in for certain treatments, but the original doctor would handle nearly all
complications. Id. The State argued, and the court agreed, that the challenged admitting privileges
law fell into this category. 33 F. Supp. 3d at 1365.
Based on the evidence presented, the court determined that the third model advocated by
the State fell “outside that range of disagreement” within the medical community regarding the
appropriate model of complication care for minor surgeries and medication-based procedures, like
early term abortion. Id. at 1364. In making this determination, the Strange III court recognized
this about the nature and treatment of abortion complications:
Most complications from such [early term] abortions closely resemble the complications from early-term miscarriages. The common complications from miscarriages, as well as medication and early-term surgical abortions, are bleeding, infection, and cramps. These complications sometimes arise because fetal tissue remains in the uterus or because the cervix fails to close fully after the fetal tissue is expelled. The treatment for these complications is the same, regardless of how the pregnancy ended. In extremely rare instances, other complications may arise which could not occur from a miscarriage. In the case of a medication abortion, an allergic reaction to the abortion drugs was the only possibility suggested by the evidence in this case. For a surgical abortion, it is possible that an instrument may perforate or lacerate the uterus. Most complications from early-term abortions do not require hospital treatment. Most minor complications which arise during the course of an early-term surgical abortion are treated at the abortion clinic before the patient is discharged. Moreover, as discussed above, most complications that arise after a patient has been discharged are best treated with over-the-phone instructions, prescription
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medication from a pharmacy, or a follow-up visit to the abortion clinic. However, even when hospital care is unnecessary, patients will sometimes seek emergencyroom treatment without first contacting the provider. Indeed, in some cases, the woman may not be suffering from any complication at all, but may simply need reassurance. For the majority of complications which do require hospitalization, the appropriate treatment may include intravenous antibiotics or a further dilation and curettage to empty the uterus completely. The staff-privileges provision requires all abortion doctors to have local-hospital privileges that allow them to perform two specific, additional gynecological procedures: hysterectomy and laparotomy. Rare circumstances, such as a suspected uterine perforation, may require a laparotomy or the similar but less invasive laparoscopy, each of which involves examining the uterus or cervix and repairing any damage. In certain other extreme situations, a hysterectomy, or removal of the uterus, may be necessary. It is extremely rare that either a hysterectomy or laparotomy would be necessary following an abortion, even a later-term abortion. Indeed, with approximately 9,000 abortions performed in Alabama each year, in most years not a single early-term abortion in the State would require either procedure. Id. at 1365-66 (emphasis in original).
The Strange III court determined that the initial-screening aspect of the credentialing
function provided negligible benefit, as compared to Alabama’s pre-existing law. 33 F. Supp. 3d
at 1373. Further, the court determined that it was “left with the speculative assertion that hospital
oversight, through staff privileges, would actually ensure that the physicians and clinics” would
provide high-quality care and be an “effective supplement to the Department of Public Health
oversight.” Id. at 1376. The court concluded that, to determine whether a regulatory decision
grounded in such speculation would be an acceptable use of the State’s police powers, the court
was required to engage in the balancing test applied to abortion regulations. Id. As a result of
engaging in that balancing test, the Strange III court concluded that, “[i]n the light of the severity
of the obstacles presented by the requirement and the weakness of the State’s justifications,” the
“obstacles imposed by Alabama’s staff-privileges requirement are ‘more significant than is
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warranted by the State’s justifications for the regulation.’” Id. at 1378. The case was decided by the Honorable Myron H. Thompson.22
Later, in 2015, a licensed abortion clinic and doctor brought a challenge against an Alabama health officer claiming that Alabama’s “floor of care” regulation—that to perform abortions a doctor had to have admitting privileges at a local hospital or the clinic had to contract with a covering physician who had such privileges—was unconstitutional as applied to the clinic and doctor. W. Ala. Women’s Ctr. v. Williamson, 120 F. Supp. 3d 1296, 1303, 1303 (M.D. Ala. 2015). This case also was assigned to Judge Thompson. The challenged regulation had been in effect since 2007. Id. at 1300. It would have been superseded by the admitting privileges requirement challenged and struck down by Judge Thompson in Strange III. Id. at 1300-01.
Five abortion clinics operated in Alabama at the time of Williamson, a case that followed Strange III. Two clinics had physicians on staff who had local admitting privileges, and three operated by having a contract with a covering physician. Those three clinics that operated by having a contract with a covering physician sued to enjoin the admitting privileges law as applied to the three clinics. Id. at 1301.
Until December 2014, the clinic in Tuscaloosa complied with Alabama’s “floor of care” regulation by having a doctor on staff with local admitting privileges. Id. That doctor retired in December 2014. Id. The Tuscaloosa clinic hired a replacement doctor, but that doctor lacked local admitting privileges. 120 F. Supp. 3d at 1301. Further, the Tuscaloosa clinic could not find
22 Defendants appealed Judge Thompson’s ruling in Strange III. On July 15, 2016, on the grounds that “Alabama’s law is identical in all relevant respects to the law at issue in [Hellerstedt],” defendants moved to dismiss the appeal because they no longer had a “good faith argument that the law is constitutional under controlling precedent.” Planned Parenthood Se., Inc., et al., v. Luther Strange, et al., No. 16-11867, at 6 (11th Cir. 2016, July 15, 2016).
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a covering physician willing to contract with it. As a result, it brought an as applied challenge to Alabama’s “floor of care” regulation. Id. at 1301-02.
The Tuscaloosa clinic operated for 20 years, providing reproductive health services, including abortions, birth control, treatment for sexually transmitted infections, pregnancy counseling, and referral for adoption. Id. at 1302. By 2013, 40% of all abortions in Alabama took place at the Tuscaloosa clinic, far more than any other clinic in the state. In fact, during that time, the Tuscaloosa clinic performed almost two and a half times more abortions than the next Alabama clinic. Id. Further, about 80% of abortion procedures performed there were performed prior to 10 weeks postfertilization, with almost 96% of abortion procedures being performed before 16 weeks postfertilization. About 4% of abortions were performed mid-second trimester. 120 F. Supp. 3d at 1302. It was only one of two clinics in Alabama that performed abortions throughout the first 20 weeks postfertilization, and it provided around 75% of Alabama’s mid-second-trimester abortions. Id.
During its 20 years of operation, the Tuscaloosa clinic had never been placed on probation, suspended, or revoked for failure to meet any safety regulation. Id. Further, during the most recent five-year period, less than one-tenth of 1% of its patients were transferred to a hospital for observation or complication. Id. The clinic had never been closed for failing to treat its patients. 120 F. Supp. 3d at 1302.
After its long-time doctor retired, the clinic hired Dr. Parker, a replacement doctor who was board-certified in OBGYN with subspecialty training in family planning, contraception, and abortion. Id. at 1303. He had over 20 years of experience in women’s health, was on the faculty of Northwestern School of Medicine, and held admitting privileges there. Id. He performed abortions in a number of states, including Alabama and Mississippi, and when hired was providing
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abortions at the Montgomery clinic. Id. This doctor attempted to obtain admitting privileges himself in Tuscaloosa. 120 F. Supp. 3d at 1303. He was unable to do so because the hospital there required him to perform a number of hysterectomies and laparotomies, but according to the court “the reality is that, because Dr. Parker is a full-time abortion provider and because complications from abortions are so rare, he would never be able to do the required amount of procedures.” Id. The record evidence indicated that, of the estimated 10,000 abortions Dr. Parker performed in the three years prior on women up to 20 weeks postfertilization, only two were transferred to the hospital, and one was transferred for observation only. Id. Dr. Parker had never had a patient who needed a hysterectomy from an abortion complication. Id.
Dr. Parker made a good faith effort to work with the hospital board, offering to perform the requisite number of procedures on other patients; he could not satisfy the requirement by performing the procedure on his own patients, because his own patients would not need them due to the low complication rate from abortion. 120 F. Supp. 3d at 1303. Record evidence indicated that an agreement appeared to be reached to satisfy the hospital board’s requirement in this way, but that agreement never materialized and instead quickly fell apart. Id. The hospital board reiterated its demand that Dr. Parker satisfy the required procedures by performing them on his own patients. Id. As the court recognized, this was “an impossible task for a full-time abortion provider . . . given the low number of complications from abortion.” Id.
Dr. Parker and the Tuscaloosa clinic then attempted to contract with a covering physician instead. 120 F. Supp. 3d at 1304. None of the physicians in the area agreed to contract, some citing anti-abortion views or the fear of reputational harm. Id. Dr. Parker and the Tuscaloosa clinic then applied for a waiver, citing Dr. Parker’s safety record and the clinic’s policies and procedures in place if complications were to arise, including a 24-hour hotline and a protocol for
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the clinic to communicate with any treating physicians at emergency rooms. Id. The request for waiver was denied. Id.
The court enjoined enforcement of Alabama’s “floor of care” regulation as applied to the Tuscaloosa clinic, concluding that plaintiffs had a substantial likelihood of success on their argument that the Alabama “floor of care” regulation would have imposed an undue burden on a woman’s right to choose to have an abortion in violation of the Due Process Clause of the Fourteenth Amendment. 120 F. Supp. 3d at 1306-07. The court first examined the burdens. Id. at 1307-12. The court then turned to examine the justifications for the challenged regulation. Id. at 1312.
Alabama justified the challenged regulation by claiming that the regulation was “meant to ensure that women who obtain abortions receive adequate complication-related care” and do so “by authorizing two alternative models for continuity of care.” Id. at 1312. The court then analyzed the three possible models for continuity-of-care first articulated in Strange III. Id. at 1312-13. Plaintiffs argued that the Tuscaloosa clinic’s protocol was sufficient to ensure adequate continuity-of-care and that requiring the clinic to contract with a covering physician would not benefit patient health in any meaningful way. 120 F. Supp. 3d at 1313. Plaintiffs argued this based on Dr. Parker’s “extraordinary safety record” and the clinic’s emergency-care protocol which it claimed was as effective at ensuring high-quality continuing of care as the covering physician model. Id.
The court reaffirmed its determination that “complications from early-term abortions which are the vast majority of the procedures performed at the [Tuscaloosa clinic] are ‘vanishingly rare.’” Id. at 1314. The court cited statistics that only 0.89% of first trimester abortions cause any complication of any kind and that only 0.05% of first trimester abortions cause a complication that
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requires hospital-based care. Id. The court concluded that “clinics do not make frequent use of their covering physicians because the procedures they perform are extremely safe and because, where possible, the clinics themselves provide complication care.” 120 F. Supp. 3d at 1314 (citing Strange III, 33 F. Supp. 3d at 1370 n.23).
Further, the court observed: Moreover, when a complication requires hospital admission, the regulation itself does not guarantee that a clinic patient would ever be seen by the covering physician, even if the Center were to contract with one. First, the regulation itself does not actually require a clinic to make use of the covering physician in the case of any complication: to comply with the regulation, a clinic need only maintain a contract promising the covering physician’s availability. Second, if a patient who experiences complications lives outside the Tuscaloosa area—as do at least some of the Center’s patients—the fact that the Center might have a contract with a covering physician who could admit her to the Tuscaloosa hospital is unlikely to affect her complication-related care in any way, as she will (and should) seek emergency care closer to home. Id. (emphasis in original). In the case of a patient transferred directly from the clinic to the hospital, the clinic was already required to “alert 911 and the hospital to the pending transfer; to provide the hospital’s emergency department with necessary information about the patient’s case; and to send a copy of the patient’s medical records to the hospital along with the patient.” Id. The emergency room doctor and staff, along with a hospital specialist, might examine the patient. Id. at 1314-15. The clinic would “communicate directly with the hospital and Dr. Parker would be available for consultation with the hospital’s physicians at any time during the patient’s course of treatment.” 120 F. Supp. 3d at 1315. If a contracted physician relationship existed, the court acknowledged the likely scenario that Dr. Parker would contact that contracted doctor at the soonest possible point in the process, that contracted doctor would meet the patient at the hospital to assume care, and that contracted
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doctor would in theory have a relationship with Dr. Parker. Id. Although, as the court observed, because complications from abortion procedures are rare, it is unclear whether Dr. Parker would actually be in regular communication or have a relationship with the contracted physician. Id.
The court also noted that, if there were a contracted physician and if that contracted physician had staff privileges at the hospital nearest to the patient, then Dr. Parker and clinic staff might notify the contracted physician so that she could admit the patient to the hospital herself. Id. However, as the court determined, nothing in Alabama’s regulation required Dr. Parker and the clinic staff to do so. 120 F. Supp. 3d at 1315.
Even if Dr. Parker and the clinic staff notified the contracted physician, the court determined that “there is no guarantee that the covering physician will reach the hospital to admit the patient before the patient is assessed or treated by the emergency-room physicians; that the covering physician will be any more knowledgeable about the patient or her condition than would be the hospital physician; or that the covering physician will be any more qualified to treat the patient than would be the hospital physicians.” Id. Further, the court determined that, because Dr. Parker and clinic staff continue to advocate for the patient directly with the hospital and provide consultation as necessary, the patient has an advocate for her care even after a transfer to the hospital. Id.
The court also concluded the clinic’s policies ensured that patients received adequate continuity-of-care after discharge from the clinic. Id. The court determined that the current practice required that Dr. Parker be accessible for at least 72-hours following any procedure. 120 F. Supp. 3d at 1315 “[P]atients are provided 24-hour telephone access to the Center’s medical staff.” Id. The court found that the patient could speak to a nurse or to Dr. Parker. Id. If the patient needed to be assessed immediately, the court noted that the nurse or Dr. Parker could advise
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the patient to go to the nearest hospital. Id. Further, the nurse or Dr. Parker could call the hospital ahead to provide any pertinent information about the patient or provide his contact information to the patient to provide to the hospital along with the request that the patient ask the hospital to contact Dr. Parker. 120 F. Supp. 3d at 1315. As a result of this benefits analysis, when weighed against the burdens of the regulation, the court enjoined the regulation as applied to Dr. Parker and the Tuscaloosa clinic. Id. at 1320.
(iii) Examining Louisiana Law Likewise, in Kliebert I, the district court examined Louisiana’s Act 620 which required every doctor who performed abortions in Louisiana to have “active admitting privileges” at a hospital within 30 miles of the facility where the abortions were performed. 158 F. Supp. 3d at 484. The district court, given the controlling law of the Fifth Circuit at that time, applied rational basis review to determine whether Act 620 was rationally related to a legitimate state interest. Id. at 485. In Kliebert I, doctors performing abortions at Louisiana’s abortion clinics could not comply with the admitting privileges law, despite being given time to attempt to do so. Id. at 506-07. The court observed that there was no state or federal statute governing the rules for granting or denying hospital admitting privileges in Louisiana and that the process and rules varied from hospital to hospital. Id. at 491-92. Further, the court determined there was “no Louisiana statute which prohibits a Louisiana hospital or those individuals charged with credentialing responsibilities from deciding an application for admitting privileges based on the applicant’s status as an abortion provider,” regardless of the provider’s competency. 158 F. Supp. 3d at 495. In addition, Louisiana had no maximum time period within which applications had to be acted upon, so a hospital could
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effectively deny an application for admitting privileges by failing to act on it, without expressing the true reasons or any reasons for doing so. Id. at 533.
Based on record evidence, the court determined that Louisiana’s abortion providers were not given privileges or given only limited privileges that did not meet the statutory requirement. See id. at 489. The resulting effect was an undue burden on the right of a large fraction of Louisiana women to an abortion, based on the record evidence. Id. at 533. As a result, the court determined Louisiana’s Act 620 was facially unconstitutional. Id.
The Fifth Circuit Court of Appeals granted a stay of the district court’s injunction pending appeal. 814 F.3d 319 (5th Cir. 2016). The Supreme Court vacated the stay entered by the Fifth Circuit, effectively reinstating the district court’s injunction. 136 S. Ct. 1354 (2016). After remand, the district court conducted a bench trial and held that the requirement placed an undue burden on women’s due process right to choose an abortion, permanently enjoining enforcement of the active admitting privileges requirement. 250 F. Supp. 3d 27 (M.D. La. 2017). The Fifth Circuit determined that the admitting privileges requirement did not impose a substantial obstacle in the path of a large fraction of all women seeking abortions in Louisiana. 905 F.3d 787, 815 (5th Cir. 2018). The Supreme Court stayed the mandate of the Fifth Circuit, pending timely filing and disposition of a petition for a writ of certiorari. 139 S. Ct. 663 (2019). Petitions for writ of certiorari have been docketed, but the Supreme Court has not made a determination yet.
(iv) Examining Mississippi Law In Jackson Women’s Health Organization v. Currier, 878 F. Supp. 2d 714 (S.D. Miss. 2012), (“Jackson II”), the district court first examined Mississippi’s House Bill 1390 (“H.B. 1390”) in a challenge brought by an abortion clinic and physicians associated with it; H.B. 1390 required physicians to have admitting and staff privileges at a local hospital and to be board-
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certified in OBGYN. Defendants cite certain of these decisions in its response to plaintiffs’ current motion. In Jackson, plaintiffs initially sought and obtained a temporary restraining order to block the effective date of H.B. 1390. Jackson Women’s Health Org. v. Currier, Case No. 3:12-cv-436DPJ-FKB, 2012 WL 2510953 (S.D. Miss. July 1, 2012) (“Jackson I”). Then, the court examined whether to grant a preliminary injunction. 878 F. Supp. 2d at 714. At the time H.B. 1390 was enacted, only one doctor had admitting and staff privileges, and he had a regular, private practice and did not provide the majority of abortions. Id. at 715. Instead, the two doctors who provided the majority of the clinic’s services did not have admitting or staff privileges, though they had actively been seeking them since the passage of H.B. 1390. Id. The district court analyzed the relevant factors for granting injunctive relief, and the district court granted the motion for preliminary injunction in part. The court determined that “if these two doctors stop performing abortions for non-speculative fear of prosecution, it would create an ‘undue burden’ and irreparable harm.” Id. at 717-18. The district court permitted H.B. 1390 to take effect but determined that plaintiffs not be subject to the risk of criminal or civil penalties at the time the injunction issued or in the future for operating without the relevant privileges during the administrative process. 878 F. Supp. 2d at 720.
After plaintiffs “unsuccessfully exhausted all available avenues to comply with” H.B. 1390, the State of Mississippi indicated that it would revoke the clinic’s license following a hearing. 940 F. Supp. 2d 416, 417 (S.D. Miss. 2013) (“Jackson III”), order clarified, 2013 WL 12122002 (S.D. Miss. Aug. 13, 2013),23 affirmed as modified, 760 F.3d 448 (5th Cir. 2014). The
23 The district court was asked in a Federal Rule of Civil Procedure 52(b) motion to clarify its preliminary injunction order with respect to a determination regarding whether H.B. 1390 was an “unnecessary” health regulation; the court granted the motion in part to clarify its prior ruling, but as defendants had not argued initially that the regulation was “necessary,” the court offered no analysis on that point. 2013 WL 12122002, at *2.
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district court observed that, “[a]t all relevant times,” the plaintiff clinic “has been the only abortion clinic in the State of Mississippi, and only one of its doctors holds admitting privileges. That doctor ha[d] a separate, private OB/GYN practice and provide[d] only minimal care at the [c]linic. The two doctors providing the vast majority of the [c]linic’s abortions lacked admitting or staff privileges when the Act passed.” Id. at 417-18.
Plaintiffs reported that the two doctors who provided the majority of care at the clinic had applied for privileges at every local hospital. Id. at 418. “Two hospitals refused to provide applications, and all others rejected the doctors’ applications because they perform[ed] elective abortions.” Id. As a result, the State of Mississippi intended to close the clinic, according to the district court. Id. Plaintiffs requested only that the district court “enjoin all forms of enforcement of the Admitting Privileges Requirement” of H.B. 1390. 940 F. Supp. 2d at 418. The district court granted plaintiffs’ motion and enjoined the Admitting Privileges Requirement of H.B. 1390. Id. at 424.
The Fifth Circuit affirmed and enjoined the requirement that “[a]ll physicians associated with the abortion facility must have admitting privileges at a local hospital and staff privileges to replace local hospital on-staff physicians.” 760 F.3d at 450. Prior to H.B. 1390’s enactment, Mississippi law required that “abortion facilities have only a transfer agreement with a local hospital, a written agreement for backup care with a physician with admitting privileges, and at least one affiliated doctor with admitting privileges.” Id. (citation omitted). Because the record evidence supported that the doctors performing abortions at Mississippi’s only abortion clinic in Jackson could not comply with the admitting privileges law, despite being given time to attempt to do so, the record indicated the only abortion clinic in Mississippi would close. Id. at 450-53. The district court, and the Fifth Circuit, determined plaintiffs met the undue burden requirement
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in the as-applied challenge and enjoined enforcement of the law. Id. at 455, 459. According to the Fifth Circuit, both the district court and the Fifth Circuit applied rational basis review to the proposed regulation as then required by controlling Fifth Circuit precedent; the Supreme Court in Hellerstedt later rejected that lower level of scrutiny for abortion regulations. 760 F.3d at 455, 459.
In 2018, plaintiffs filed an action seeking an order declaring the OBGYN requirement of H.B. 1390 facially unconstitutional and requesting clarification of the district court’s prior order with respect to admitting privileges, seeking to have the district court’s injunction applied statewide and not only to plaintiffs. Jackson IV, 320 F. Supp. 3d at 832. The district court modified its injunction to reflect that H.B. 1390’s admitting privileges requirement was enjoined statewide but denied the request to declare the OBGYN requirement unconstitutional. Id. at 841-42. According to the district court,”[t]o make that claim, Plaintiffs must show that the law creates a substantial obstacle to the right to choose for a large fraction of women for whom the law is relevant. Yet since the law was enacted, the number of abortions Plaintiffs perform[ed] ha[d] increased by 17%.” Id. at 832.
For purposes of this Court’s analysis at this stage, the Court focuses on the benefits of the OBGYN requirement the Jackson IV district court identified and those it rejected. Id. at 837-38. The district court, based on the record evidence before it, determined that defendants had “shown that the ob-gyn requirement provides some benefit to women’s health in that it ensures that physicians performing abortions in Mississippi abortion clinics are specialists in women’s healthcare who are trained to perform abortions or their equivalents.” 320 F. Supp. 3d at 837. However, as the district court explained, that finding alone did not satisfy the Hellerstedt inquiry. Id. Instead, the district court was required to assess whether “the new law advance[s the state’s]
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legitimate interest in protecting women’s health” “compared to prior law.” Id. (quoting Hellerstedt, 136 S. Ct. at 2311). Further, the district court observed that H.B. 1390 permitted board-eligible physicians to perform abortions, not just board-certified doctors. Id.
Having examined those factors, the district court concluded that “the ob-gyn requirement produces no benefit to Mississippi women as compared to prior law.” 320 F. Supp. 3d at 838. Specifically, the district court explained that, “[u]nder prior Mississippi law, all physicians associated with an abortion facility must have either ‘completed a residency in family medicine, with strong rotation through OB/GYN,’ ‘completed a residency in obstetrics and gynecology,’ or had ‘at least one year of postgraduate training in a training facility with an approved residency program and an additional year of obstetrics/gynecology residency.’” Id. at 837 (quoting Miss. Code R. § 15-16-1: 44.1.5(24)). Further, based on record evidence “board eligibility requires graduation in good standing from an ob-gyn residency program, but it does not require the experience necessary to sit for the American Board of Obstetrics and Gynecology oral exam or actually passing that exam.” Id. As a result, the district court determined that defendants failed to explain how these board-eligibility requirements were more effective than pre-existing Mississippi law that already required substantial training in OBGYN. Id. (citing Hellerstedt, 136 S. Ct. at 2314).
The district court then turned to examine the burdens plaintiffs contended H.B. 1390’s OBGYN requirement imposed and rejected plaintiffs’ arguments. 320 F. Supp. 3d at 838-840. As a result, as the district court observed, it was “left with a challenged law that provide[d] no demonstrated benefit compared to prior law, but which place[d] no substantial obstacles in the path of a large fraction of women to whom it is relevant.” Id. at 841 & n.9 (discussing difficulties the
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district court observed in applying Hellerstedt). As a result, the district court therefore declined to enjoin Mississippi’s OBGYN requirement. Id. at 841-42.
(v) Arkansas “Floor of Care” Under Act 700 The Court turns now to examine the concept of a “floor of care” with respect to the challenge to Act 700. Before the enactment of Act 700, the law in Arkansas already required that only a physician licensed to practice medicine in the State of Arkansas may provide abortion care. Ark. Code Ann. § 5-61-101(a). Plaintiffs confirm that their point with respect to Act 700 is that the State already has robust and sufficient oversight relating to abortion providers, and there is little difference between the requirements that must be satisfied to maintain an active OBGYN certification and those that apply currently to physicians who practice medicine and provide abortion care in Arkansas. Requiring abortion providers to be licensed medical doctors in the State of Arkansas ensures regulation of the profession by the Arkansas State Medical Board. See Ark. Admin. Code 0600.00.1-16 (“the Arkansas State Medical Board may revoke or suspend a license if the practitioner is grossly negligent and becomes physically incompetent to practice medicine to such an extent as to endanger the public.”). The Arkansas State Medical Board’s “mission is to protect the public and act as [the public’s] advocate by effectively regulating the practices of Medical Doctors” and others subject to its rule. See Arkansas State Medical Board, https://www.armedicalboard.org/About.as px (last visited August 5, 2019). Specifically, the following provisions currently exist in Arkansas law and regulations as relevant here: • The Arkansas Medical Practices Act and Regulations expressly state that
“[n]o person shall be granted a license to practice medicine in the State of Arkansas unless he or she . . . is of good moral character and has not been guilty of acts constituting unprofessional conduct . . . .” See Ark. Code Ann. § 17-95-403(b).
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• The Arkansas Medical Practices Act and Regulations permit the Arkansas Medical Board to suspend or revoke a license for immoral or unprofessional conduct. Ark. Code Ann. § 17-99-307(2) (“The Arkansas State Medical Board, after due notice and hearing, may revoke, suspend, or refuse to renew any license or permit or place on probation or otherwise reprimand a licensee or permit holder or deny a license to an applicant who . . . is in judgment of the board, guilty of immoral or unprofessional conduct.”).
• The Arkansas Medical Board may refuse to grant, impose certain enumerated penalties, or revoke the medical license of any physician involved in any felony listed under Arkansas Code Annotated § 17-2-102. Ark. Code Ann. § 17-95-409. Arkansas Code Annotated § 17-2-102, which was enacted in 2019, includes a list of 36 categories of felony offenses and specifically provides that convictions in Arkansas, other states, and federal court shall be considered.
• To maintain an active license to practice medicine in the State of Arkansas, there are continuing medical education requirements that may be enforced through license suspension or revocation. See Ark. Code Ann. § 17-80-104 (empowering regulatory boards of the professions or occupations classified by the law of the State of Arkansas as professions of the healing arts and for whom the General Assembly has established regulatory boards empowered to license persons to practice to adopt rules requiring the continuing education of the persons licensed by the board); Ark. Admin. Code 060.00.1-17 (requiring a person who holds an active license to practice medicine in the State of Arkansas to complete 20 credit hours per year of continuing medical education, stating that “Fifty (50%) percent of said hours shall be in subjects pertaining to the physician’s primary area of practice . . . .”).
• Any claim or filing of a lawsuit alleging malpractice against a physician licensed to practice medicine and surgery in the State of Arkansas must be reported to the Arkansas State Medical Board within ten days after receipt or notification or the licensed physician may face discipline up to and including revocation, suspension, or probation or monetary fines. See Ark. Code Ann. § 17-95-103; Ark. Admin. Code 060.00.1-23.
• Arkansas licensed physicians are subject to being audited with respect to credentialing (Dkt. No. 84, at 15:16-16:5).
• Any Arkansas physician who performs an abortion must “obtain the correct informed consent from their patients” or risk sanction by the Arkansas Medical Board. Ark. Admin. Code 060.00.1-26 (describing the consent required and the circumstances under which it is required and permitting the Arkansas Medical Board to revoke or suspend a medical license or impose other sanctions if the Board determines there has been a violation).
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• Any Arkansas physician who provides an abortion-inducing drug for the purpose of inducing an abortion is currently required to report any known adverse events associated with medication abortions. Ark. Code Ann. § 2016-1505 (“If a physician provides an abortion-inducing drug . . . and if the physician knows that the woman who uses the abortion-inducing drug for the purposes of inducing an abortion experiences an adverse event, the physician shall provide a written report of the adverse event within three (3) days of the event to the United States Food and Drug Administration . . . and to the Arkansas State Medical Board”); see also Ark. Admin. Code 060.00.1-36 (requiring reporting to the Arkansas State Medical Board in the same circumstances).
• Any facility or physician who performs an abortion must report it to the Arkansas Division of Vital Records. Ark. Code Ann. §§ 20-18-603(b)(1), (b)(2).
In addition, in its findings of fact, the Court found that there are pre-existing rules and
regulations in Arkansas that currently govern abortion providers. To summarize these findings,
by regulation and statute in Arkansas:
• Only a physician licensed to practice medicine in the State of Arkansas may provide abortion care under existing law, see Ark. Code Ann. § 5-61-101(a);
• Any woman in Arkansas seeking an abortion must be evaluated via a medical history, a physical examination, counseling, and laboratory tests, see Ark. Admin. Code 007.05.2-8(A);
• Arkansas abortion facilities shall have written procedures for emergency transfer of a patient to an acute care facility, see Ark. Admin. Code 007.05.2-8(B);
• Arkansas general abortion facilities, which provide surgical abortions or both medication and surgical abortions, shall be within 30 minutes of a hospital which provides gynecological or surgical services, see Ark. Admin. Code 007.05.2-4(C); Ark. Admin. Code 007.05.2.3(J)(defining general abortion facility);
• Arkansas abortion facilities providing abortions must have various medical devices available to assist in the event of complications, see Ark. Admin. Code 007.05.2-8(C), (E);
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• Arkansas abortion facilities must have a certain number of qualified personnel available to provide direct patient care, see Ark. Admin. Code 007.05.2-7; and
• Arkansas abortion facilities must satisfy a variety of ongoing obligations to educate staff about best practices to assess their own services, see Ark. Admin. Code 007.05.1-10; 007.05.2-5; 007.05.2-6(F),(G); 007.05.2-7(D).
• Arkansas abortion facilities are subject to annual, as well as other unannounced, inspections (Dkt. No. 84, at 84:25-85:8).
This list is not exhaustive, given the number of regulations enacted by the State of Arkansas (Dkt. No. 4, at 18).
To the extent it could be argued that Act 700’s OBGYN requirement sets a “floor of care” for private abortion providers in Arkansas, the Court observes record evidence makes clear that there are few private abortion providers in Arkansas. Further, current laws and regulations apply to these private abortion providers, too. The State of Arkansas currently requires any physician who performs an abortion, along with being licensed to practice medicine in Arkansas, to “obtain the correct informed consent from their patients” or risk sanction by the Arkansas Medical Board. Ark. Admin. Code 060.00.1-26 (describing the consent required and permitting the Arkansas Medical Board to revoke or suspend a medical license or impose other sanctions if the Board determines there has been a violation). Further, all parties agree that the State of Arkansas currently collects data on abortions provided and that record evidence demonstrates here that LRFP, PPAEO Fayetteville, and PPAEO Little Rock together provided the vast majority of abortion care in the state during 2018, providing nearly all abortions performed in 2018, and fewer than half a dozen abortions were provided in 2018 by others (Dkt. No. 103, at 47 (citing Defendants’ Sealed Exhibit 1, filed July 31, 2019)). Arkansas law requires that any facility in which more than 10 abortions are performed each month be licensed as an “abortion facility” and
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comply with Arkansas laws and regulations governing abortion care. See Ark. Code Ann. § 20-9302; Ark. Admin. Code 007.05.2-1, et seq.
Further, currently Arkansas abortion facilities providing medication abortions must “have a signed contract with a physician who agrees to handle complications” and who has “active admitting privileges and gynecological/surgical privileges at a hospital designated to handle any emergencies associated with the use or ingestion of the abortion-inducing drug.” Ark. Code Ann. § 20-16-1504(d)(1),(2). Section 1504(d) of Arkansas Act 577 was the subject of a previous constitutional challenge. See Planned Parenthood of Arkansas & Eastern Oklahoma v. Jegley, Case No. 4:15-cv-00784-KGB, 2016 WL 6211310 (E.D. Ark. March 14, 2016), vacated and remanded 864 F.3d 953 (8th Cir. 2017), on remand to 2018 WL 3029104 (E.D. Ark. June 18, 2018) (granting renewed motion for temporary restraining order and enjoining the enforcement of Section 1504(d) of Arkansas Act 577); 2018 WL 3816925 (E.D. Ark. July 2, 2018) (granting renewed motion for preliminary injunction but permitting defendants to enforce Section 1504(d) of Arkansas Act 577 against medication abortion providers subject to the Act only to the extent that abortion providers must make an effort to comply with Section 1504(d) by continuing to seek a contracted physician, preliminarily enjoining defendants from imposing any civil or criminal penalties for continuing to perform medication abortion while abortion providers subject to the Act continue in their efforts to comply with Section 1504(d); and ordering plaintiffs to report to the Court every 30 days on their efforts to comply with Section 1504(d)). In the related Jegley case, this Court examined carefully these same types of arguments with respect to Section 1504(d) of Arkansas Act 577 that required only medication abortion providers to contract with an admitting physician.
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The Court examined the purported benefit of Section 1504(d) of Arkansas Act 577 and concluded that the contracted physician requirement did little, if anything, to advance Arkansas’ interest in protecting women’s health. Jegley, 2018 WL 3816925, at *45. Then, the Court proceeded to analyze the burdens based on record evidence presented at that stage of the proceedings. Id., at *51-67. Ultimately, the Court concluded in Jegley that “plaintiffs demonstrated that Section 1504(d) is facially unconstitutional because it places a ‘substantial obstacle to a woman’s choice’ to terminate a pregnancy before viability in ‘a large fraction of the cases in which” it “is relevant.’” Jegley, 2018 WL 3815925, at *68-69 (quoting Hellerstedt, 136 S. Ct. 2313 (quoting Casey, 505 U.S. at 895 (majority opinion))). This Court did not alter its analysis of the regulation, nor did the Eighth Circuit review this Court’s most recent analysis of the regulation or issue an opinion with respect to the merits of it. Instead, plaintiffs in Jegley submitted a status report indicating that they complied, and the parties filed a “Joint Motion to Vacate Preliminary Injunction and Dismiss Appeal,” which the Eighth Circuit granted (Jegley, Case No. 4:15-cv-00784-KGB, Dkt. No. 171). That is the result of the Jegley case, and where the case stands today.
As a result of this outcome in Jegley, currently the “floor of care” in Arkansas differs for medication abortion and surgical abortion as a result of Section 1504(d) of Arkansas Act 577. The Arkansas legislature did not add the contracted physician requirement to surgical abortion providers. Instead, the Arkansas legislature enacted Act 700 to require that only physicians who are board-certified or board-eligible OBGYNs perform any abortion—medication or surgical—in Arkansas.
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2. Act 700: Analysis Of Alleged Benefits Defendants assert three goals are purportedly advanced by Act 700: (1) protecting mothers’ health and safety; (2) protecting the medical profession; and (3) protecting vulnerable groups (Dkt. No. 103, at 70). Again, the relevant question before the Court is whether Act 700’s OBGYN requirement provides the asserted benefits as compared to the prior law. See Hellerstedt, 136 S. Ct. at 2311 (“We have found nothing in Texas’ record evidence that shows that, compared to the prior law, . . . the new law advanced Texas’ legitimate interest in protecting women’s health.”); id. at 2314 (“The record contains nothing to suggest that [the challenged law] would be more effective than pre-existing Texas law . . . .”) (emphasis added). As a result, the Court analyzes the alleged benefits of Act 700 in comparison to prior Arkansas law and regulation. Even if this Court were inclined to agree that defendants under the circumstances have presented the interests they identify, the Court concludes that plaintiffs are likely to prevail on their argument that Act 700 fails to advance those interests more effectively than pre-existing Arkansas law and regulation because, based on the record evidence before this Court at this stage of the proceedings, Act 700 provides no discernable benefit in the light of the realities of abortion care, training, and practice in Arkansas and across the county. For the reasons explained, the Court determines at this stage that plaintiffs are likely to prevail on their argument that legal abortion is one of the safest medical procedures available in the United States and in Arkansas and that Act 700 provides no benefit if intended to address a medical safety problem with legal abortion in Arkansas that, on this record evidence, does not exist. The Court has already examined the record evidence regarding the safety of, and low complication rates for, legal abortion in Arkansas. To the extent defendants claim Act 700 protects a woman’s health and safety, defendants submit no record evidence to support a claim that a board-
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certified or board-eligible OBGYN will provide care that leads to a lower complication rate than other clinicians. Dr. Aultman makes no such claim and cites no such study (see generally Decl. of Kathi Aultman, M.D.). In fact, record evidence presented by plaintiffs demonstrates that no peer-reviewed medical literature exists demonstrating that board-eligible or board-certified OBGYNs are more competent to provide abortion care (Dkt. No. 84, 63:6-15 (Dr. Prine’s testimony); 28:10-20 (Dr. Hopkins’ testimony); Dkt. No. 44-1, at 99 (Dr. Prine deposition testimony) (“There is no evidence that those letters after somebody’s name convey any difference in clinical outcomes, there’s just not.”)).
As an initial matter, there is record evidence that the ACOG has recognized that clinicians from many medical specialties can provide safe abortion care and that requiring board-certification in OBGYN is “medically unnecessary” and “designed to reduce access to abortion.” (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 38 n.14; Decl. of Linda W. Prine, M.D., ¶ 21, n.4 (quoting The Am. Coll. of Obstetricians and Gynecologists, Increasing Access to Abortion (ACOG Committee Opinion No. 613), available at https://www.ncbi.nlm.nih.gov/pubmed/25437742)). The President of the AAFP likewise adopted in 2014 a resolution opposing laws that “impose[d] on abortion providers unnecessary requirements that infringe on the practice of evidence-based medicine.” (Decl. of Linda W. Prine, M.D., ¶ 22 (quoting Am. Acad. of Family Physicians, Resolution No. 10001, Oppose Targeted Regulation Against Abortion Providers (TRAAP laws), http://www.aafp.org/about/constituencies/resources/past-ncsc/2014.html)). In November 2014, ACOG’s Committee on Health Care for Underserved Women issued a Committee Opinion emphasizing that “[s]afe, legal abortion is a necessary component of women’s health care.” The Am. Coll. of Obstetricians and Gynecologists, Increasing Access to Abortion (ACOG Committee Opinion No. 613), available at https://www.ncbi.nlm.nih.gov/pubmed/25437742. Consistent with
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that, the Committee Opinion states that ACOG recommends “expand[ing] the pool of firsttrimester medication and aspiration abortion providers to appropriately trained and credentialed advanced practice clinicians in accordance with individual state licensing requirements.” Id.
According to publicly available information, ACOG “is the specialty’s premier professional membership organization dedicated to the improvement of women’s health. With more than 58,000 members, the College is a 501(c)(6) organization and its activities include producing the College’s practice guidelines and other educational material.” The Am. Coll. of Obstetricians and Gynecologists, About Us, https://www.acog.org/About-ACOG/About-Us (last visited August 5, 2019). According to publicly available information, the AAFP is a national association of family doctors with over 131,400 physician and student members. Am. Acad. of Family Physicians, https://www.aafpcareerlink.org/ (last visited August 5, 2019). In determining whether regulations actually further women’s health, the Supreme Court has repeatedly looked at the generally accepted standards for medicine set by the nation’s major health organizations. See, e.g., Simopoulos v. Virginia, 462 U.S. 506, 517 (1983) (considering ACOG and other standards). The positions taken by the ACOG and the AAFP are consistent with other record evidence before this Court at this stage of the proceedings, including record evidence regarding recommendations from the NAF, a professional association of abortion providers and the leading organization offering accredited medical education to healthcare professionals in all aspects of abortion care, and the American Public Health Association (Decl. of Linda W. Prine, M.D., ¶¶ 23, 24).
The Court notes that defendants make no argument in their filings at this stage to refute or undercut these representations regarding the positions taken by the ACOG, the AAFP, or any of the other medical professional associations cited. Dr. Aultman, who offers expert opinions on behalf of defendants in her declaration but who did not testify at the July 22, 2019, hearing, is a
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Fellow of the ACOG (Decl. of Kathi Aultman, M.D., ¶ 2). She does not criticize the ACOG in her declaration (see generally Decl. of Kathi Aultman, M.D.). The Court acknowledges that Dr. Harrison, who offers expert opinions on behalf defendants in her declaration that seem confined to Act 610 and who did testify at the July 22, 2019, hearing was critical in her hearing testimony of the ACOG (Dkt. No. 84, at 248:6-24). However, defendants cite the Court to no contrary consensus evidence specific to abortion care.
The Court notes that Dr. Harrison has filed a supplemental declaration in which she cites 162 scientific articles that she claims show a link between prior abortions and “preterm” births (Supp. Decl. Donna J. Harrison, M.D., ¶ 3). The Court understands that Dr. Harrison likely did this in response to cross examination regarding a cite she previously included in her declaration in support of this claim (Dkt. No. 84, at 259:10-267:24). First, the Court notes that more than half of these articles now cited by Dr. Harrison were published over 20 years ago. Second, the Court observes that many of the more recent articles focus on populations from other countries. Third, while Dr. Harrison has not pointed the Court to any language in any particular study as supporting her position, the Court observes that a 2015 meta-analysis cited by Dr. Harrison concluded that women with a prior dilatation and curettage (“D&C”) procedure are at a greater risk for preterm births in comparison to women without a prior dilation and curettage. M. Lemmers, et al., Dilatation and curettage increases the risk of subsequent preterm birth: a systematic review and meta-analysis, 31 Human Reproduction 34, 40 (2016). The same study, however, noted that “[t]here were several possible confounding factors, such as maternal age, smoking status, use of alcohol, BMI, socio-economic status, residence, co-habitation status, inter pregnancy intervals and season of conception” that may not have been controlled for in the analysis. Id. Accordingly, this study concluded that a “systematic review demonstrates that D&C for miscarriage or termination
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of pregnancy [is] associated with an increased risk of subsequent preterm birth.” Id. at 43 (emphasis added). The study also concluded that “[t]he mechanism as to how D&C might increase the risk for preterm birth remains speculative.” Id. The Court concludes that this study, which reviewed multiple other scientific studies, does not undermine the proof before the Court that abortions are a safe procedure. At most, this study indicates a correlation between certain types of surgical abortions and later preterm births, not any causal relationship between prior abortions and preterm births. Regardless, Dr. Harrison fails to explain how, even if her cited studies show a causal relationship between abortions and preterm births, the board-certified or board-eligible OBGYN requirement would reduce such a risk.
Plaintiffs assert that “[t]raining, rather than specialty, determines competence to provide abortion care . . . .” (Decl. of Linda W. Prine, M.D., ¶¶ 18-20; Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶¶ 35-37; Dkt. Nos. 44-1, at 113-14; 84, at 24:19-25:12; 25:19-25; 55:14-22; 56:313; 62:8-12; 65:22-25; 66:1-12; 171:10-13; 241:9-21). Record evidence supports plaintiffs’ assertion on this point. The record evidence shows that, across the nation, roughly one-third of abortion providers come from specialties other than OBGYN (Decl. of Linda W. Prine, M.D., ¶ 20). Record evidence is that abortion care is safely provided around the country up to at least 22 weeks LMP by non-OBGYN providers; record evidence before the Court is that abortion is only available in Arkansas at LRFP up to 21.6 weeks LMP (Decl. of Linda W. Prine, M.D., ¶ 20; Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶¶ 35-37; Dkt. No. 84, at 21:9-22:5). Further, record evidence establishes that medical schools and teaching hospitals around the country routinely use non-OBGYN faculty members to train residents and fellows in the provision of abortion care (Decl. of Linda W. Prine, M.D., ¶ 20; Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶¶ 35-37).
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None of defendants’ expert witnesses refute this record evidence regarding medical schools and teaching hospitals using non-OBGYN faculty members to train residents and fellows in the provision of abortion care. Based on the record evidence at this stage of the proceeding, the two expert witnesses cited by defendants in support of this requirement have no experience in teaching abortion practitioners or training OBGYN residents or fellows themselves. Neither Dr. Aultman— who did not testify at the hearing—nor Dr. Harrison cite to this type of experience (see Decl. of Kathi Aultman, M.D.; Rebuttal Decl. of Kathi Aultman, M.D.; Decl. of Donna J. Harrison, M.D.). Instead, Dr. Aultman appears to have reviewed websites and literature to prepare her declaration, rather than relying upon her experience. At this stage of the proceeding, on the record evidence before it, the Court finds this evidence unpersuasive, especially when compared to the testimonies of Dr. Hopkins, Dr. Prine, Dr. Tvedten, and Dr. Cathey with respect to teaching abortion practitioners and training OBGYN residents and fellows (see Dkt. No. 84, at 24:15-25; 25:4-12; 25:22-25; 26:5-17; 27:18-25; 50:13-23; 55:17-23; 56:3-7; 57:5; 62:8-12; 66:3-8; 181:10-14; 202:19-24; 203:1-5).
Perhaps more importantly, there is no record evidence that competence in abortion care is a prerequisite for becoming a board-certified or board-eligible OBGYN (Decl. of Linda W. Prine, M.D., ¶ 21, n.4; Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶¶ 35-37; Dkt. No. 84, at 24:1-18). Defendants assert that board certification in OBGYN currently “requires training” to perform procedures “that are functionally identical to surgical abortions, such as suction dilation and curettage” (Dkt. No. 103, at 7 (citing Decl. of Kathi Aultman, M.D.)). However, the record supports that OBGYN residents can opt out of any abortion training (Decl. of Linda W. Prine, M.D., ¶ 21 n.4; Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 38 n.14; Decl. of Janet Cathey, M.D., ¶ 13), and many board-certified OBGYNs have never even observed an abortion (Decl. of
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Linda W. Prine, M.D., 21 n.4; Decl. of Frederick W. Hopkins, M.D., M.P.H., 38 n.14). Training in OBGYN does not entail training to competence in abortion care or training in all aspects of abortion care. Instead, the record evidence is that practitioners must specifically seek out this training. Further, there is no record evidence that OBGYN board certification requires demonstrated skill in providing abortion care, competence in abortion care, or specific continuing education in abortion care. At the hearing, Dr. Hopkins stated that OBGYNs are not necessarily comfortable or competent to provide abortion care (Dkt. No. 84, at 24:19-25:12; 27:16-28:9). Furthermore, the National Academy Consensus Study Report, cited by Dr. Prine, states that “trained physicians, OB/GYNs, family medicine physicians and other physicians and APCs, physician assistants, certified nurse midwives, and nurse practitioners, can provide medication and aspiration abortions safely and effectively.” National Academy Consensus Study Report, at 14.
In Jackson IV, the district court in Mississippi noted that Mississippi law at that time required that “all physicians associated with an abortion facility must have either ‘completed a residency in family medicine, with strong rotation through OB/GYN,’ ‘completed a residency in obstetrics and gynecology,’ or had ‘at least one year of postgraduate training in a training facility with an approved residency program and an additional year of obstetrics/gynecology residency.’” 320 F. Supp. 3d at 837 (quoting Miss. Code R. § 15-16-1: 44.1.5(24)). Those requirements seem to be related to and a “better fit” with defendants’ asserted interests here than a board-certified or board-eligible OBGYN requirement for all abortion providers, especially considering the record evidence presented.
Defendants cite to a study about the value of board certification generally, but the Court concludes that is of little, if any, value because that study does not focus on abortion care or advance an argument that the board-eligible or board-certified OBGYN requirement improves
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patient care in the abortion setting (Dkt. No. 44-1, at 70-80). Defendants also cite to Dr. Prine’s testimony that she became board-certified “because it is standard” or “expected in the modern era.” (Dkt. No. 103, at 5). Dr. Prine, who provides abortion care, teaches, and trains others to provide abortion care is board-certified in Family Medicine, not OBGYN (Decl. of Linda W. Prine, ¶ 1). Even Dr. Prine could not satisfy Act 700’s OBGYN requirement in Arkansas. Defendants fail to explain how her general statement in a deposition given in the context of Jackson IV advances defendants’ arguments with respect to OBGYN board-certification or board-eligibility and abortion care.
Further, a study about board-certification generally does nothing to address the value of board-certification eligibility, which Act 700 permits for abortion providers. Act 700 permits doctors who are merely eligible for OBGYN board certification to provide abortion care, but defendants do not explain how eligibility for OBGYN board certification advances defendants’ claimed interests over existing Arkansas laws and regulations. The Court also notes that Dr. Horton was board-eligible for approximately eight years, but he never became board-certified because he never obtained the necessary case list. There is record evidence that the necessary case list must come from three broad fields in OBGYN and that the cases have to be handled as an independent provider, not as a junior resident (Dkt. No. 84, at 23:10-25). Dr. Horton states that board eligibility or certification is not relevant to the competent provision of abortion care (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 22).
Defendants claim that Arkansas women “deserve better” than doctors with “just a minimally certified medical license” to perform abortion care (Dkt. No. 103, at 42). Defendants rely on Dr. Aultman’s declaration and statements taken from the ABOG website regarding the requirements for board-certification and board-eligible OBGYNs in making these arguments. Dr.
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Aultman’s declaration does not explain how the OBGYN requirement increases patient safety relative to Arkansas’ existing abortion regulations, including the requirement that only Arkansaslicensed physicians may provide abortions. See Ark. Code Ann. § 5-61-101(a). Nowhere in the record evidence presented to the Court do defendants explain why Act 700 advances their asserted interests more effectively than pre-existing Arkansas laws and regulations.
For example, Dr. Aultman opines that the OBGYN requirement is associated with benefits to patient care because the certifying examination of the ABOG requires a candidate to demonstrate good moral and ethical character (Rebuttal Decl. of Kathi Aultman, M.D., ¶ 9). The Arkansas Medical Practices Act and Regulations contain such a requirement already, see Arkansas Code Annotated § 17-95-403(b), and permit the Arkansas State Medical Board to revoke, suspend, or refuse to renew any license of an individual who, in the judgment of the Board, is guilty of immoral or unprofessional conduct, Arkansas Code Annotated § 17-99-307(2). Dr. Aultman opines that board-certified OBGYNs must disclose “criminal and disciplinary history” to ABOG (Rebuttal Decl. of Kathi Aultman, M.D., ¶ 9). Current Arkansas law permits the Arkansas Medical Board to consider past criminal conduct when granting or revoking medical licenses of physicians. See Ark. Code Ann. § 17-95-409. Dr. Aultman opines that board-certified OBGYNs must meet certain continuing-education requirements to remain board-certified (Rebuttal Decl. of Kathi Aultman, M.D., ¶ 22). Under Arkansas law, to maintain an active license to practice medicine in the State of Arkansas, there are continuing medical education requirements that may be enforced through license suspension or revocation. See Ark. Admin. Code 060.00.1-17 (requiring a person who holds an active license to practice medicine in the State of Arkansas shall complete 20 credit hours per year of continuing medical education, stating that “Fifty (50%) percent of said hours shall be in subjects pertaining to the physician’s primary area of practice . . . .”). There is record
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evidence that the credentials of Arkansas physicians can be audited. Defendants make no argument as to why any of these current requirements or any of the other Arkansas laws and regulations is insufficient or why the board-certified or board-eligible OBGYN requirements would be better suited to address defendants’ asserted interests in the light of current Arkansas law. Dr. Aultman does not offer such opinions, and defendants submit no other record evidence on this point for the Court’s consideration. Instead, defendants rely on decisions from Mississippi and Louisiana to assert the OBGYN requirement does more than pre-existing Arkansas law to further defendants’ asserted interests (Dkt. No. 103, at 45-46). Without record evidence specific to Arkansas, defendants’ argument is not convincing.
Defendants include record evidence and argument about unqualified providers operating in other states (Dkt. No. 103, at 2, 45-46). There is no record evidence that supports defendants’ argument that there are unqualified abortion providers operating in Arkansas. Further, the record evidence is that under Arkansas law and current Arkansas regulation, defendants already have the ability to monitor and take corrective action to address an unqualified provider. Among other requirements in Arkansas, an abortion provider must be a licensed physician in Arkansas, obtain required precise consent from the patient for the procedure, keep a record that consent has been obtained, and report any abortion provided to the State. See Ark. Code Ann. § 5-61-101(a); Ark. Code Ann. §§ 20-18-603(b)(1), (b)(2); Ark. Admin. Code 060.00.1-26. Failure to comply with these requirements permits the State to act. Defendants offer no record evidence to explain what Act 700 provides that advances defendants’ asserted interests over pre-existing laws and regulations like these in Arkansas.
To the extent defendants assert an interest in benefitting “the medical profession by ensuring that practitioners are accountable” for keeping their professional knowledge and skills up
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to date (Dkt. No. 103, at 8-12, 41), the historical overview offered by defendants is not specific to Arkansas licensed medical providers, Arkansas abortion care, or the realities of abortion care training and education currently as evidenced by this record. Act 700 does not encourage physicians to “continue to develop their knowledge and skills,” (Dkt. No. 103, at 44), because there is no record evidence of a requirement that an abortion provider continue to develop his or her knowledge or skills with respect to abortion care to maintain OBGYN board certification or board eligibility. Record evidence supports that most aspects of abortion care are not covered by OBGYN board certification or board eligibility training. Record evidence also demonstrates that existing regulations for Arkansas licensed medical providers and Arkansas abortion facilities and their staff implement a floor of care as to these requirements. See Ark. Admin. Code 060.00.1-16; 060.00.1-17; 060.00.1-23 (regarding Arkansas licensed medical providers); Ark. Admin. Code 007.05.1-10; 007.05.2-5; 007.05.-6(F),(G); 007.05.2-7(D) (regarding Arkansas abortion facilities). In particular, the Court notes that Arkansas regulations require abortion providers to provide “annual in-service education programs for professional staff” and provide “current nursing literature and reference materials.” Ark. Admin. Code. 007.05.2-7(D). Again, defendants present no record evidence as to why any of these current requirements is insufficient or why the boardcertified or board-eligible OBGYN requirements would be better suited to address defendants’ asserted interests in the light of current Arkansas law.
Further, even if the Court assumes that a board-certified or board-eligible OBGYN will receive training on procedures such as suction dilation and curettage and that such training is correlated to the competent provision of surgical abortions, which is the limited argument defendants make with respect to training correlated to Act 700, there is no record evidence that board-certified or board-eligible OBGYNs with such training will be competent to provide
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abortion care; plaintiffs’ witnesses uniformly describe the need to seek such training on abortion care outside of and in addition to most residency programs. Also, there is no record evidence that such training is relevant to the provision of medication abortion, which is not analogous to “suction dilation and curettage” identified by defendants.
Defendants argue that medication abortion is more likely to involve complications than surgical abortion (Dkt. No. 103, at 42). To the extent defendants rely on Dr. Aultman’s declaration to support this claim, her declaration is a survey of data that is not Arkansas specific and does not clearly indicate the protocol used to administer the medication abortion in the case studies she recites (see Decl. of Kathi Aultman, M.D.; Rebuttal Decl. of Kathi Aultman, M.D.). To the extent defendants purport to rely on legislative findings cited in Section 1504(d) of Arkansas Act 577 (see Dkt. No. 103, at 42 (citing Arkansas Code Annotated § 20-16-1502(a)(18))), the Court examined and rejected, at least at the temporary restraining order and preliminary injunction stage, those findings in Jegley. See Jegley, 2018 WL 3816925, at *24-25.
There is record evidence that the National Academy Consensus Study Report “determined that the risks associated with medication abortion are similar to those associated with over-thecounter anti-inflammatory drugs such as ibuprofen” and that “the risks associated with surgical abortion are extremely low, with the risk of complications being in the 0-to-5% range.” (National Academy Consensus Study Report at 11, 74-75). Dr. Hopkins presented testimony at the July 22, 2019, hearing with respect to complication rates that does not support defendants’ assertions regarding alleged complications, and he was subject to cross examination by defendants on these points (Dkt. No. 84, at 17:13-22:5). Further, there is record evidence regarding how Arkansas abortion providers administer medication abortion, and the effectiveness of such procedures (Decl. of Stephanie A. Ho, M.D., ¶¶ 14-19).
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Moreover, Arkansas law requires medication abortion providers to report to the State and to the Arkansas Medical Board any adverse events associated with medication abortions. Ark. Code Ann. § 20-16-1505; Ark. Admin. Code § 060.00.1-36. Defendants offer no such record evidence. This requirement substantially undercuts arguments made by defendants that such complications are underreported; defendants suggest underreporting as a way to explain a lack of evidence of complications (Decl. of Kathi Aultman, M.D., ¶¶ 27, 29). Even if the Court accepts defendants’ contentions regarding alleged complications from abortion, defendants do not explain how Act 700 would change that or how Act 700 would address that contention in any more meaningful way than the current Arkansas laws and regulations or the contracted physician requirement for medication abortion providers.
Currently, there is record evidence that plaintiffs comply with the contracted physician requirement for medication abortion providers. At the July 22, 2019, hearing, Dr. Tvedten testified that, although LRFP has “a signed contract with a physician who agrees to handle complications” and who has “active admitting privileges and gynecological/surgical privileges at a hospital designated to handle any emergencies associated with the use or ingestion of the abortion-inducing drug,” Arkansas Code Annotated § 20-16-1504(d)(1),(2), LRFP has “so far not required her services.” (Dkt. No. 84, at 192:20-21). There is no record evidence that any LRFP patient or doctor has called on the contracted physician at any point nor is there any record evidence that the contracted physician has been involved in providing abortion patient care.
Defendants now claim that “even practitioners who intend to provide only medication abortion should be competent to perform surgical abortions because, as noted, surgical follow-up is often necessary to deal with complications.” (Dkt. No. 103, at 43). The weight of record evidence at this stage does not support defendants’ argument. There is record evidence from the
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July 22, 2019, hearing that the most common potential complications with abortion are bleeding, infection, and retained products meaning the abortion is not completed (Dkt. No. 84, at 17:16-23). There is record evidence that minor complications may happen in one to three percent of cases, and those complications usually are managed in the clinic (Dkt. No. 84, at 17:24-18:8). There is record evidence that major complications occur much less frequently, more on the order of one out of every few hundred procedures (Id.). Dr. Hopkins states that “[a]ny clinician with adequate training in abortion care can safely and effectively handle” the most common abortion complications, even though such complications are rare (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 38). In the event a significant complication does arise from an abortion, which the record evidence indicates is rare, Dr. Hopkins states that an abortion provider would transfer or direct the patient to the nearest hospital to receive the required care (Id., ¶ 39). If the complication is retained tissue following a medication abortion, Dr. Hopkins states that ACOG Practice Bulletin 143 states that the abortion provider should be trained in surgical abortion “or should be able to refer to a clinician trained in surgical abortion.” (Id.).
Defendants again claim continuity of care or “patient abandonment,” (Dkt. No. 103, at 43), a claim this Court rejected in Jegley given current regulations governing abortion providers in Arkansas and the care they are required to provide post-abortion. See, e.g., Jegley, 2018 WL 3816925 at *39-40; see also Ark. Admin. Code 007.05.2-7 (mandating patients have access to 24hour telephone consultation with either a registered nurse or physician associated with the abortion facility and mandating assessment by a registered nurse for counseling needs post-abortion and specifying written instructions for post-abortion care that shall be given at discharge); Ark. Admin. Code 007.05.2-8 (setting out the method for adopting such instructions for post-abortion care); Ark. Admin. Code 007.05.2-9 (requiring abortion providers to document that each patient has
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received these instructions and mandating the Arkansas Department of Health ensure compliance with the regulation). Defendants claim the current contracted physician requirement might result in a contracted physician “geographically too far away to provide continuity of care” as a reason to support Act 700’s constitutionality (Dkt. No. 103, at 43). Defendants in fact suggested in questioning that the contracted physician requirement could be met by a physician who resides out of state. See, e.g., Jegley, 2018 WL 3816925, at *37. The Court cited this as one reason, among many, to reject as medically unnecessary and unconstitutional the current contracted physician requirement for medication abortion providers. See, e.g., id., at *37-38.24
To the extent defendants contend that the OBGYN requirement brings the regulations governing abortion providers closer to existing regulations for hospitals or birthing centers that are required to administer medication under the supervision of a licensed pharmacist, plaintiffs maintain that Arkansas law already requires abortion providers to dispense medication abortion under the supervision of a licensed pharmacist (Dkt. No. 61, at 32-33 (citing Ark. Admin Code 007.05.2-11(A)(2)). There is no record evidence that OBGYN board certification, or OBGYN board certification eligibility, advances defendants’ asserted interest in protecting the health and safety of pregnant women with respect to medication abortion over the existing laws and regulations in Arkansas.
24 Certain arguments made by defendants with respect to the purported ability to comply with Act 700’s OBGYN requirement give this Court pause in examining defendants’ claimed interest in continuity of care or avoiding patient abandonment. Here, defendants assert that one of the ways in which Arkansas providers could comply with Act 700’s OBGYN requirement would be to have someone other than the abortion provider conduct all counseling with the patient (Dkt. No. 84, at 45:5-47:10; 80:18-81:11). Defendants seem to suggest that the abortion provider should provide as many abortion procedures as possible within the working day. This argument from defendants seems at odds with a stated interest in continuity of care or avoiding patient abandonment.
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Citing to a “comprehensive meta-analysis of the literature on physician capability over the course of a career,” as defendants do in this case, does little to persuade the Court when there is no indication this “meta-analysis” is OBGYN or abortion provider specific and no indication that this evidence relates specifically to Arkansas (Dkt. No. 103, at 8). Further, even Dr. Harrison, who is a board-certified OBGYN and has held such certification continuously since 1993, but who has not practiced medicine in a clinical setting in approximately 20 years,25 admitted in her testimony on cross examination at the July 22, 2019, hearing that despite her status as a board-certified OBGYN she would not attempt to offer abortion care with her current skill set having not recently provided any care (Dkt. No. 84, at 241:9-21). This type of record evidence from defendants’ own expert witness significantly undercuts the argument that Act 700 is a “commonsense” method to increase physician competency as physicians gain more years of practice (Dkt. No. 103, at 43).
Defendants also make an argument that Act 700 imposes specific requirements on abortion providers “to address the fact that mothers seeking abortions ‘are less likely to litigate medical malpractice claims.’” (Dkt. No. 103, at 44 (citing Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 545 (9th Cir. 2004)). The record evidence demonstrates that current regulations exist to address the concerns they raise; complaints may be lodged with the Arkansas State Medical Board which has regulatory authority to address such complaints. See Ark. Admin. Code 060.00.1-16; 060.00.1-17; 060.00.1-23 (regarding Arkansas licensed medical providers). Even malpractice allegations must be reported to the Arkansas State Medical Board. Any claim or filing of a lawsuit
25 During her hearing testimony on July 22, 2019, Dr. Harrison admitted to typographical errors in the opening paragraphs of her Declaration (Dkt. No. 84, at 239:17-240:9). She completed her residency training in OBGYN between 1986 and 1990, not 2000 (Decl. of Donna J. Harrison, M.D., ¶ 1), and she joined a multispecialty group in an underserved area of Michigan in 1993, not 2003 (Id., ¶ 1; Supp. Decl. Donna J. Harrison, M.D.). She has not been involved directly with patient care since approximately 2000. Dr. Harrison, like Dr. Tvedten, settled out of court two lawsuits alleging medical malpractice while she was engaged in patient care.
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alleging malpractice against a physician licensed to practice medicine and surgery in the State of Arkansas must be reported to the Arkansas State Medical Board within ten days after receipt or notification or the licensed physician may face discipline up to and including revocation, suspension, or probation or monetary fines. See Ark. Admin. Code 060.00.1-23. To suggest that patients must have a method outside of a malpractice lawsuit to ensure competence as a reason to justify Act 700 overlooks the Arkansas licensure requirement and the role of the Arkansas State Medical Board in that process. Defendants fail to address why current regulations are insufficient or why a board-certified or board-eligible OBGYN requirement better serves these claimed interests.
This type of analysis that the Court engages in here goes directly to the degree to which the restriction is over-inclusive or under-inclusive, see, e.g., Hellerstedt, 136 S. Ct. at 2315, and the existence of alternative, less burdensome means to achieve the state’s goal, including whether the law more effectively advances the state’s interest compared to prior law. See, e.g., Hellerstedt, 136 S. Ct. at 2311, 2314.
As a result of the foregoing, this Court concludes at this preliminary stage of the litigation that plaintiffs are likely to prevail on their argument that “there [is] no significant health-related problem” Act 700 “help[s] to cure”; nor is it “more effective than pre-existing [state] law” in advancing defendants’ asserted interests. Hellerstedt, 136 S. Ct. at 2311, 2314.
3. Act 700: Inability To Comply With the OBGYN Requirement Before turning to analyze the burdens allegedly imposed by the OBGYN requirement, the Court will first address defendants’ argument that any such burdens are the result of plaintiffs’ own actions or omissions rather than the OBGYN requirement. Casey requires a contextualized inquiry into how an abortion restriction interacts with facts on the ground, not only on the law’s
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direct effects. 505 U.S. at 887-895 (majority opinion); see Planned Parenthood Arizona, Inc. v. Humble, 753 F.3d 905, 915 (9th Cir. 2014). In Casey, the Supreme Court struck down Pennsylvania’s husband notification requirement as creating an undue burden, finding that, due to the fact that “millions of women in this country . . . are victims of regular physical and psychological abuse at the hands of their husbands,” a “significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.” 505 U.S. at 894 (majority opinion). There, the State of Pennsylvania did not cause spousal abuse, but such abuse was the background context against which the Court measured the burdens created by the husband notification provision. Accordingly, at this stage of the litigation, the Court rejects defendants’ argument that the Court cannot assess burdens that the State has not directly caused.
Defendants argue that the qualifying OBGYNs who have agreed to provide care at LRFP and PPAEO Little Rock have chosen “to arbitrarily limit the hours they work.” (Dkt. No. 103, at 47). They argue also that Dr. Cathey, Dr. Hopkins, and Dr. Browne have limited their own availability, so therefore any burden that accrues to women seeking abortions in Arkansas as a result of the OBGYN requirement is the result of those self-imposed limitations (Id., at 48). Further, defendants claim that plaintiffs made no attempt to locate alternative providers (Id., at 49). Defendants point out that plaintiffs are not limited to board-certified or board-eligible OBGYNs in Arkansas and that there are currently over 51,673 board-certified OBGYNs in the United States who could obtain a medical license in Arkansas (Id.). Defendants concede that “Arkansas alone has 294 board-certified physicians in Obstetrics and Gynecology.” (Id., at 6). Defendants maintain that any incidents of stigma or harassment relating to abortion care providers are “anecdotal” and, even if such stigma or harassment makes it more difficult for abortion
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providers to hire a qualifying practitioner, that this obstacle is not caused by the State (Id., at 49). Defendants also point out that Dr. Tvedten’s 2015 letter expressed how he finds his practice as “very lucrative and gratifying,” and they argue that Dr. Tvedten’s letter belies his assertions of “stigma and harassment.” (Id.). In their earlier response filed in this case, defendants argued that the economic renumeration of acting as an abortion provider “will quickly and certainly attract a qualified provider of surgical abortion to the state.” (Dkt. No. 43, at 59).
The weight of the record evidence, at least at this preliminary stage of the litigation, does not support defendants’ arguments. Dr. Cathey avers that three and a half days of abortion care per week is the maximum she can provide, given her personal and professional obligations (Decl. of Janet Cathey, M.D., ¶ 8). She is currently providing three days of care a week for eight to ten hours a day, so her alleged availability has increased from her current schedule. She alleges that she has a physical injury that continues to produce physical limitations, and she has other professional obligations—including Social Security disability consultations and transgender patients—that prevent her from increasing her provision of abortion care (Id.). The record evidence also indicates that Dr. Rodgers is semi-retired due in part to health issues that prevent him from providing patient care for long hours or multiple days a week (Id.). The Court finds that these representations are credible and do not represent “self-imposed limitations” but are instead reasonable professional limitations that prevent Dr. Cathey and Dr. Rodgers from providing additional abortion care.
Similarly, the record evidence shows that Dr. Browne and Dr. Hopkins have not selfimposed limitations on their ability to provide abortion care in Little Rock. Dr. Browne lives in the State of Washington and is employed in that state (Decl. of Charlie Browne, M.D., ¶ 1). He previously provided abortion care at LRFP but ceased doing so because the travel time was
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disruptive professionally and due to harassment from protestors he suffered while working at LRFP (Id., ¶¶ 9-10). Dr. Browne has agreed to provide abortion care for LRFP but only for two to three days in July 2019 (Id., ¶ 14). He cannot offer more help to LRFP due to his professional and personal obligations in Seattle, Washington (Id.). As for Dr. Hopkins, he lives in California and travels to Arkansas to provide abortion care at LRFP approximately once every two months for “three to four days every other month.” (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 44). He states that he is unable to visit Arkansas more frequently due to his clinical and teaching positions in California and because of the personal danger he believes exists as a result of providing abortions in Arkansas (Id., ¶¶ 48, 49, 51). Dr. Hopkins testified that “[i]t’s not about the money for me” and that he could not move to Arkansas because he would have to give up his entire career (Dkt. No. 84, at 37:2-4). Dr. Hopkins noted that he would not be willing to relocate, even if offered a million dollars by LRFP (Id., 37:6-8). As with Dr. Cathey and Dr. Rodgers, the record evidence here indicates that the limitations preventing Dr. Browne and Dr. Hopkins from providing additional abortion care are not “self-imposed” but instead are the understandable result of the logistical difficulties posed by working in Arkansas while living in California or Washington state. See, e.g., Strange III, 33 F. Supp. 3d at 1343-47 (declining to assume that physicians who provided abortion in Alabama but who did not reside in Alabama—and who would have had to “sacrifice access to the variety of medical opportunities[] available” and their personal obligations in their home states to move to there—could upturn their lives and existing practices to lessen burdens imposed by the challenged admitting privileges requirement).
The record evidence also belies any claim that plaintiffs did not attempt to contact alternative qualifying providers. Defendants argue that there are 294 board-certified OBGYNs in Arkansas (Dkt. No. 103, at 6). The record evidence indicates that, after Act 700 was passed,
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LRFP sent a letter to each board-certified OBGYN listed on the Arkansas Medical Board’s licensure list, in which LRFP stated that it was seeking a part-time, board-certified OBGYN to see patients three days a week (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 36). The letter also noted that the compensation was “generous.” (Id.). Ms. Williams testified that she received no responses to that letter (Dkt. No. 84, at 87:20-21). Additionally, Ms. Williams submitted a request to a national organization that matches abortion providers with clinics, and through these efforts two physicians expressed preliminary interest, though neither was able to accept because they are not licensed to practice medicine in Arkansas (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 37). Ms. Williams testified that she contacted the board-certified and board-eligible OBGYNs who have previously provided abortion care at LRFP (Dkt. No. 84, at 88:12-18). Ms. Williams also posted a job posting via the Physicians for Reproductive Health leadership, the Ryan Residency, and the Family Planning Fellowship (Id., at 89). Ms. Williams also testified that she has talked at national meetings with other providers (Id.). Indeed, Dr. Browne and Dr. Hopkins have agreed to work for LRFP as a result of these outreach efforts. Further, as described by Dr. Hopkins, it is understandable that qualifying physicians might have qualms about moving to Arkansas to provide abortion care, given the number of statutes and regulations recently enacted to regulate the provision of abortion care and the uncertainty surrounding the ability of any provider to offer such care in the future. Defendants have presented no record evidence to refute the record evidence which shows LRFP’s efforts to comply with Act 700. Based upon this record evidence, the Court concludes that plaintiffs have made reasonable efforts to comply with the OBGYN requirement.
The Court also concludes that the record evidence indicates that the harassment and stigma faced by abortion providers in Arkansas is an obstacle to compliance with the OBGYN requirement. Like the benefit analysis, the rule articulated in Casey requires the Court to look to
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the context of the OBGYN requirement to assess the burdens imposed. Here, multiple abortion providers have offered record evidence regarding their personal experiences with harassment and stigma in Arkansas: Dr. Browne testified that the harassment and stigma he experienced in Arkansas was “far more prevalent and aggressive” than any other he had experienced (Decl. of Charlie Browne, M.D., ¶ 12). Dr. Horton testified that each day protestors block the entrance to LRFP and that he has been the subject of bomb threats in nearby Memphis, Tennessee (Decl. of Thomas Russell Horton, Jr., M.D., ¶¶ 26-27). Ms. Williams testified that medical students fear to drive their own vehicles or wear clothing identifying themselves as medical professionals when they come to LRFP for medical training (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 39). Ms. Williams also states that anti-abortion advocates have targeted her personally by sending a letter with her name, address, and picture to several hundred of her neighbors (Id., ¶ 41). Dr. Tvedten and Ms. Williams offered testimony consistent with these declarations at the July 22, 2019, hearing. While it is true that defendants have not caused the harassment described in the record, established precedent requires the Court to consider the context of the OBGYN requirement while assessing the burdens imposed by it.
Additionally, the Court is not convinced that Dr. Tvedten’s description of the positive aspects of acting as an abortion provider negates the record evidence relating to the harassment and stigma faced by abortion providers. While Dr. Tvedten described the positive aspects of providing abortion care in a letter designed to encourage others to join his practice, the Court does not view these descriptions as minimizing the risks of performing abortion care in Arkansas, which include, as demonstrated by the record evidence, risks to the professional reputation and physical safety of abortion providers.
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For all these reasons, the Court finds that, based on the record evidence before it at this stage of the litigation, LRFP and PPAEO Little Rock are likely to prevail on their claim that they are unable to comply with the OBGYN requirement beyond the extent to which they have already done so.
4. Act 700: Considering Out-Of-State Doctors And Clinics In Jegley, this Court declined to consider the availability of abortions at out-of-state clinics when determining if the contracted physician requirement imposes an undue burden on women seeking medication abortions in Arkansas. Other federal courts have held that States may not outsource their duty to protect the constitutional rights of their citizens. Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 457 (5th Cir. 2014), cert denied, 136 S. Ct. 2536 (2016) (holding that the undue-burden analysis “focuses solely on the effects within the regulating state”); see Schimel, 806 F.3d at 918 (rejecting argument that the availability of second-trimester abortions in Chicago could justify the closure of Wisconsin’s only abortion clinic); see also Strange III, 33 F. Supp. 3d at 1360-61 (even if out-of-state providers were considered, 80 mile distance to out-ofstate clinic means the “threshold difficulties related to losing an abortion clinic in her home city” still present a burden). This Court’s reluctance to consider out-of-state abortion providers in this analysis finds additional support in State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). There, the Supreme Court held that the University of Missouri law school could not deny Lloyd Gaines admission to the school on the basis of his race, even though the University offered him a stipend to use at a law school in an adjacent state. Id. at 342. The Supreme Court reasoned that: [T]he obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction . . . . That obligation is imposed by the Constitution upon the States severally as governmental entities,— each responsible for its own laws establishing the rights and duties of persons
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within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no state can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system. Id. at 350. While Gaines was an equal protection case—here the Court analyzes a due process claim— the Court finds that its logic applies here. See Currier, 760 F.3d 448, 457 (citing Gaines for the proposition that Mississippi could not rely upon neighboring states to reduce the undue burden placed on women by abortion restrictions). Further, the text of the Due Process Clause is clear: no “State” shall “deprive any person of life, liberty, or property, without due process of law . . . .” U.S. Const. amend. XIV, § 1. This constitutional command is directed at the States, and “no State can be excused from performance by what another state may do or fail to do.” Gaines, 305 U.S. at 350. The Court acknowledges that the Supreme Court did not explicitly address whether out-ofstate abortion facilities should be considered in the undue burden analysis. See Hellerstedt, 136 S. Ct. at 2304. Prior to the Supreme Court’s ruling in Hellerstedt, the Fifth Circuit reversed the district court’s finding that abortion restrictions were unconstitutional as-applied to the El Paso clinic because women in El Paso could and did use abortion providers in nearby New Mexico. Specifically, the Fifth Circuit noted that, if the El Paso clinic closed, there was an abortion facility “approximately twelve miles away in Santa Teresa, New Mexico,” and that “independent of the actions of the State,” “Texas women regularly choose to have an abortion in New Mexico.” See Cole, 790 F.3d at 596-97 (emphasis in original). Still, rather than upholding the Fifth Circuit’s decision, the Supreme Court reversed the Fifth Circuit’s decision and found that the same statute at issue in Cole was facially unconstitutional because it imposed an undue burden on women seeking abortions in Texas. Hellerstedt, 136 S. Ct. at 2318.
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Given the legal authorities reviewed by this Court and the possibility that a neighboring state might unilaterally alter access to abortion, the Court declines to consider out-of-state abortion providers in this analysis. Defendants themselves assert that the closest out-of-state abortion providers are found in Memphis, Tennessee; Jackson, Mississippi; Shreveport, Louisiana; Dallas/Fort Worth, Texas; and Tulsa, Oklahoma (Dkt. No. 103, at 58-59). Defendants assert that these providers are found within 150 miles of Arkansas’ borders, and Dr. Lindo testified that the Memphis clinic is a 300-mile round trip from Little Rock (Dkt. No. 84, at 163:9-14). This Court infers that, if the availability of an out-of-state abortion provider within 12 miles of the Texas border was not enough in Hellerstedt to ameliorate the burdens imposed by Texas’ surgical-center requirement, then the distances at issue in this case to out-of-state abortion providers will not relieve any undue burden created by the OBGYN requirement.
5. Act 700: Burdens Imposed By The OBGYN Requirement The Court will first analyze whether the burdens created by the OBGYN requirement entitle plaintiffs to facial relief. Plaintiffs argue that they are entitled to facial relief because, if the OBGYN requirement goes into effect, the number of abortions provided by LRFP and PPAEO Little Rock will be drastically reduced, preventing women who would have otherwise obtained abortions at those facilities from obtaining abortions at all. Plaintiffs may prevail on a facial challenge to an abortion regulation if they “demonstrat[e] that ‘in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.’” Jegley, 864 F.3d at 958 (citing Casey, 505 U.S. at 894-95 (majority opinion)). The Eighth Circuit also articulated the test for facial relief against an abortion restriction as “whether the [OBGYN] requirement’s benefits are substantially outweighed by the burdens it imposes on a large fraction of women seeking medication abortion in Arkansas.” Id. at 960 n.9 (emphasis
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added). Furthermore, “[n]othing prevents this Court from awarding facial relief as the appropriate remedy for [plaintiffs’] as-applied claims.” Hellerstedt, 136 S. Ct. at 2307. There is record evidence that, if the OBGYN requirement goes into effect, LRFP will be forced to offer fewer abortions than they can in the absence of the OBGYN requirement. There is also record evidence that, at this time, PPAEO Fayetteville offers no abortion care, so LRFP and PPAEO Little Rock are the only abortion clinics in the State of Arkansas. There is also record evidence that a very small number (less than half a dozen) of abortions a year are provided by others in Arkansas.26 In sum, plaintiffs argue that since the OBGYN requirement will reduce the number of abortions that can be provided by LRFP and PPAEO Little Rock, the OBGYN requirement is facially unconstitutional.
To evaluate the burdens imposed by the OBGYN requirement, the Court must first define the group of women whose burdens must be analyzed. See Hellerstedt, 136 S. Ct. at 2320 (“[T]he relevant denominator is ‘those [women] for whom [the provision] is an actual rather than an irrelevant restriction.’”) (quoting Casey, 505 U.S. at 895 (majority opinion)). In Hellerstedt, the Supreme Court reaffirmed that a law creates an undue burden when it places a “substantial obstacle to a woman’s choice” in “a large fraction of the cases in which” it “is relevant.” 136 S. Ct. at 2313 (quoting Casey, 505 U.S. at 895 (majority opinion)); see Jegley, 864 F.3d at 958 (“[B]ecause the contract-physician requirement only applies to medication-abortion providers, the ‘relevant denominator’ here is women seeking medication abortions in Arkansas.”). In their original briefin-support of their motion for a temporary restraining order/preliminary injunction, plaintiffs
26 There is no record evidence that this number is expected to increase. The Court also notes that Arkansas requires any facility in which 10 or more abortions are performed per month must be licensed as an “abortion facility” and must comply with the regulations and restrictions governing abortion care. Ark. Code Ann. § 20-9-302; Ark. Admin. Code 007.05.2-1 et seq.
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appear to argue that the “relevant denominator” in this case is “women who seek abortion care in Arkansas . . . .” (Dkt. No. 4, at 42). Defendants assert that the “relevant denominator” is “all Arkansas women seeking abortions . . . .” (Dkt. No. 103, at 63). Defendants also argue that the Court should not include women who would otherwise seek abortions at PPAEO Fayetteville in the numerator (Id.).
At this stage of the proceeding, the Court will consider all women seeking abortions in Arkansas as the “relevant denominator” of the “large fraction” test.27 There is no support in the precedents for excluding out-of-state residents from the “relevant denominator.” See Hellerstedt, 136 S. Ct. at 2320 (“Here, as in Casey, the relevant denominator is ‘those [women] for whom [the provision] is an actual rather than an irrelevant restriction.”); Jegley, 864 F.3d at 958 (“[B]ecause the contract-physician requirement only applies to medication-abortion providers, the ‘relevant denominator’ here is women seeking medication abortions in Arkansas.”). This position also finds support under the Privileges and Immunities Clause of the Constitution, which the Supreme Court has held prevents states from restricting abortion access to out-of-state residents. See Doe, 410 U.S. at 200 (“Just as the Privileges and Immunity Clause . . . protects persons who enter other States to ply their trade, . . . so must it protect persons who enter Georgia seeking the medical services that are available there.”). The Court sees no contradiction in including out-of-state residents in the large fraction calculation and excluding out-of-state clinics from the burden analysis. These holdings derive from two different constitutional sources. In short, the State is barred by the Due Process Clause from denying substantive due process to its citizens and is barred
27 The Court used Arkansas women seeking abortions as the relevant denominator in its temporary restraining order. After reviewing the parties’ briefings and the relevant precedents, the Court is convinced that out-of-state residents should not be excluded from the relevant denominator of the large fraction test.
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by the Privileges and Immunities Clause from denying out-of-state residents the same rights afforded to Arkansas citizens.
The Court also declines to exclude those women who would seek abortions from PPAEO Fayetteville from the numerator of the large fraction calculation. As discussed, this Court’s analysis must consider the facts on the ground, Casey, 505 U.S. at 887-895 (majority opinion), and it is undisputed that PPAEO Fayetteville is not providing abortions. Despite defendants’ arguments to the contrary, there is no record evidence that the closure of PPAEO Fayetteville was a “voluntary decision”; instead, the only record evidence before the Court regarding the reasons for the closure of that facility are found in Dr. Hill’s declaration, where he averred that PPAEO Fayetteville is currently unable to offer abortion services because security concerns led PPAEO Fayetteville to seek a new location that has not yet materialized (Decl. of Brandon J. Hill, Ph.D., ¶¶ 3-4). Dr. Hill also stated that he is confident that PPAEO Fayetteville will find a new location, but his declaration makes it clear that the cessation of services by PPAEO Fayetteville is a result of anti-abortion security concerns rather than a voluntary decision by PPAEO Fayetteville. Accordingly, to the extent women who seek abortions at PPAEO Fayetteville are included in the denominator of this Court’s “large fraction” calculations, they will also be included in the numerator.
The Court next turns to examine the “large fraction” test. The Eighth Circuit has expressed skepticism that 4.8 to 6.0% is sufficient to qualify as a “large fraction.” Jegley, 864 F.3d at 959 n.8 (citing Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361, 374 (6th Cir. 2006)). The Eighth Circuit reversed and remanded this Court’s prior preliminary injunction in Jegley, determining that, “in order to sustain a facial challenge and grant a preliminary injunction,” this Court is “required to make a finding that the Act’s contract-physician requirement is an undue burden for
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a large fraction of women” for whom the Act is relevant. Id. at 959 (emphasis added). The Eighth Circuit addressed the “large fraction” test articulated in Casey in Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1462-63 & n.10 (8th Cir. 1995) (Arnold, J.), cert. denied sub nom., 116 S. Ct. 1582 (1996) (finding that plaintiff had “shown that a large fraction of minors seeking pre-viability abortions would be unduly burdened by South Dakota’s parental notice status, despite its abuse exception,” in part because “[r]oughly eighteen per cent. of South Dakota’s minors live in single parent homes” and thus could not “simply notify her other parent”). At least one other district court has examined the “large fraction” test and undue burden analysis the Eighth Circuit applied in Miller. See Planned Parenthood Minnesota, North Dakota, South Dakota v. Daugaard, 799 F. Supp. 2d 1048 (D. S.D. 2011) (Schreier, J.) (noting that “[i]f the plurality opinion in Casey intended ‘large fraction’ to mean a majority, it would have said majority” and referencing the 18% language used by the Eighth Circuit in Miller).
The Court now turns to analyze and attempt to quantify, based upon the record evidence at this stage of the proceedings, the burdens imposed by the OBGYN requirement.
a. Act 700: Effective Ban On Surgical Abortions First, the Court finds that every Arkansas woman in seeking a surgical abortion in Arkansas faces a burden due to the OBGYN requirement. The record evidence indicates that LRFP is the only abortion provider in the state that currently provides surgical abortions and that, if LRFP is forced to close as a result of the OBGYN requirement, no other surgical abortion provider will exist in Arkansas. The Court also acknowledges record evidence that some women have a strong preference for surgical abortions “because it requires fewer visits to the clinic, and thus is associated with a lower burden in terms of funding and time.” (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 15).
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Defendants point to a finding by the Sixth Circuit that “the Supreme Court has not articulated any rule that would suggest that the right to choose abortion” articulated in Casey “encompasses the right to choose a particular abortion method.” Planned Parenthood Southwest Ohio Region v. DeWine, 696 F.3d 490, 514-15 (6th Cir. 2012) (emphasis in original).
The Court acknowledges that, under the holding in DeWine, the unavailability of a certain method of abortion does not, by itself, create a substantial obstacle to a woman’s right to have an abortion if other methods of pre-viability abortion remain available. Regardless, the Court finds that the record evidence does support an inference that a lack of surgical abortion in Arkansas would present some burden to those women who prefer surgical abortions over medication abortions and for whom surgical abortion maybe a better or the only option for reasons supported by this record. Thus, the Court concludes that, if the OBGYN requirement effectively ends surgical abortions in Arkansas, the OBGYN requirement burdens those women who are seeking surgical abortions in Arkansas. Indeed, given that the record evidence indicates that 2,212 surgical abortions are currently provided by LRFP annually, if each of these abortions is no longer available, then a large fraction of women for whom the OBGYN requirement is relevant will face a substantial obstacle to their right to an abortion.
The Court also acknowledges the record evidence that, in spite of the OBGYN requirement, LRFP may continue to provide surgical abortions. While the parties dispute the number of surgical abortions that LRFP will be able to continue providing—Dr. Lindo asserts that Dr. Hopkins can provide 252 surgical abortions annually, while defendants assert that he can provide up to 525 annually—there is no dispute that the number of surgical abortions provided by LRFP will be less than the 2,212 total surgical abortions currently provided by LRFP or the 1,927 Arkansas women who, on average, received surgical abortions (Decl. of Jason Lindo, Ph.D., ¶ 61).
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Even if this burden, by itself, does not render the OBGYN requirement a “‘substantial obstacle in the path of a woman’s choice’ in ‘a large fraction of the cases in which’ it ‘is relevant’” Hellerstedt, 136 S. Ct. at 2313 (citing Casey, 505 U.S. at 895 (majority opinion)), the Court will not discount it as some evidence of burden. To make the ultimate “substantial obstacle” determination, the burden imposed by the total or partial elimination of surgical abortions “must be taken together with other[]” burdens caused by the OBGYN requirement and weighed against “any health benefit” to determine if an “undue burden” exists. Id. at 2313.
b. Act 700: Reduction In Abortions Due To The OBGYN Requirement
The record evidence before the Court demonstrates that PPAEO Fayetteville is currently not offering abortion care. The record evidence also indicates that, currently, LRFP offers both surgical and medication abortions and that PPAEO Little Rock only offers medication abortions. Dr. Lindo explains that, currently, 3,167 abortions are performed annually in Arkansas, including Arkansas residents and non-residents (Supp. Decl. of Jason Lindo, Ph.D., ¶ 10).28 Dr. Lindo also explains that the Little Rock clinics perform 2,614 abortions annually, including non-residents (Id., ¶ 8). He also avers that, on average over the past three years, 2,779 Arkansas residents obtain abortions in Arkansas each year (Id., ¶ 51).29 The record evidence also indicates that, on average,
28 Dr. Solanky argues that Dr. Lindo overestimates the number of abortions that will occur in the future in Arkansas since the number of abortions in Arkansas has decreased by three percent per year, on average. Dr. Solanky has not, however, offered a counter proposal for the number of abortions that will occur annually in Arkansas in the future (see Supp. Decl. Tumulesh K. S. Solanky, Ph.D., ¶ 16). Furthermore, Dr. Solanky’s declaration states that 9,497 abortions have occurred in Arkansas from May 3, 2016, to May 1, 2019 (Id., ¶ 12 (Table 2)). Divided by three, this equals 3,165. Since Dr. Solanky’s data appears nearly identical to Dr. Lindo’s and because Dr. Solanky has not proposed an alternative figure, the Court declines to disregard Dr. Lindo’s estimate of the total number of abortions that occur annually in Arkansas.
29 Dr. Solanky estimates that approximately 2,802 Arkansas women seek abortions in Arkansas per year, on average (Supp. Decl. of Tumulesh K. S. Solanky, ¶ 10). Dr. Lindo estimates
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1,927 Arkansas women seek surgical abortions in Arkansas annually (Id., ¶ 61). While there is no direct record evidence indicating how many Arkansas women sought medication abortions on average over the past three years, the Court infers that 85230 Arkansas residents sought medication abortions in Arkansas on average over the past three years.
Plaintiffs have presented record evidence that, if the OBGYN requirement goes into effect, LRFP will either be forced to close or to offer far fewer abortions than it currently does. Specifically, Dr. Lindo avers that, regardless of whether the OBGYN requirement forces LRFP to close, Dr. Rodgers and Dr. Cathey will be able to provide 956 abortions annually at PPAEO Little Rock (Id., ¶ 9). Dr. Lindo estimates Dr. Rodgers’ capacity to provide medication abortions based upon the maximum number of abortions he provided in any given month over the past three years. Dr. Lindo estimates Dr. Cathey’s capacity similarly and adds 17% to her capacity due to her plan to expand the number of days she provides services from 3 to 3.5 days per week. These estimates are consistent with the record evidence (Decl. of Jason Lindo, Ph.D., ¶ 14(b); Decl. of Janet Cathey, M.D., ¶ 8; Dkt. No. 84, at 204:20-23). Based upon this data, Dr. Lindo estimates that, if the OBGYN requirement goes into effect, Dr. Rodgers can provide 480 medication abortions
that 2,779 Arkansas women seek abortions per year (Decl. of Jason Lindo, Ph.D., ¶ 51). Dr. Solanky states that his estimate was derived by viewing county-level data, and he notes that when an abortion is attributed to a county with a name that exists in multiple states, that abortion has been counted as an Arkansas resident abortion (Supp. Decl. of Tumulesh K. S. Solanky, ¶ 10 n.3). This estimate likely inflated Dr. Solanky’s estimate of the number of Arkansas resident abortions. Given that Dr. Lindo’s estimate is only 23 less than Dr. Solanky’s, and given that Dr. Solanky’s methodology likely resulted in an inflated estimate, the Court will use Dr. Lindo’s estimate in its calculations here. Even if the Court were to use Dr. Solanky’s estimated total, the Court’s ultimate conclusions would not be affected. Similarly, Dr. Solanky argues that Dr. Lindo’s estimate for the number of abortions that occur each year is too high because abortion rates have fallen by approximately three percent per year; again, even if true, such a minor reduction in abortion rates would not change this Court’s ultimate conclusions.
30 2,779-1,927=852.
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annually and that Dr. Cathey can provide 476 medication abortions annually (Decl. of Jason Lindo, Ph.D., ¶ 50). The Court notes that, since these estimates are based upon the maximum number of abortions each of these physicians has provided in the past, these estimates likely overestimate each providers’ capacity due to the assumption that each provider will provide abortion care at his or her maximum rate over a sustained period.
If LRFP can remain open with the OBGYN requirement in effect, then Dr. Lindo projects that Dr. Hopkins will be able to provide 252 surgical abortions at LRFP. Dr. Lindo generated this number based upon the fact that, according to Dr. Lindo, the most women that Dr. Hopkins has served in any given day at LRFP since 2017 is 21, and therefore Dr. Hopkins will likely serve 42 women every other month, if he spends a business week at LRFP during which he does informedconsent appointments one day a week and provides abortions the other two days (Decl. of Jason Lindo, Ph.D., ¶ 49). Under Dr. Lindo’s projections, these 25231 annual surgical abortions will be the only abortions available at LRFP (Id.).
Defendants argue that Dr. Lindo “wrongly assumes that the maximum number of abortions actually performed in a single day equals the maximum capacity . . . .” (Dkt. No. 103, at 54). This is incorrect: as stated above, Dr. Lindo’s projections are based upon the past numbers of abortions provided by the physicians at LRFP and PPAEO Little Rock, and his projections are based upon the providers’ histories of providing abortions, not upon the capacity of a given facility. Defendants also point to Dr. Lindo’s declaration as proof that “one provider in a single, three-hour period per week could provide at least 624 abortions per year.” (Id., at 56). But the declaration that defendants are referencing—Dr. Lindo’s declaration—is specifically referencing Dr. Paulson’s capacity to provide medication abortions at PPAEO Fayetteville, and in that declaration
31 42*6=252.
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Dr. Lindo specifically states that, since he lacks any historical data on Dr. Paulson’s capacity to provide medication abortions, he is relying on PPAEO Fayetteville’s representation that Dr. Paulson will be able to provide abortions to a maximum of 12 patients each week (Decl. of Jason Lindo, Ph.D., ¶ 49(c)). Thus, given that this projection is specific to Dr. Paulson’s particular situation, the Court declines to assume that all abortion providers could provide up to 624 medication abortions in a given year.
Defendants also argue that plaintiffs have understated Dr. Hopkins’ capacity to perform surgical abortions; by defendants’ estimate, Dr. Hopkins should be capable of providing 525 surgical abortions annually (Dkt. No. 103, at 64). To reach this conclusion, defendants point to Ms. Williams’ declaration that LRFP can safely and effectively “provide abortion care up to approximately 20-25 women per day . . . .” (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 17). Defendants next argue that, if Dr. Hopkins “continues his practice of providing 25 surgical abortions at LRFP an average of 3.5 days a week every-other month, then he will perform 525 surgical abortions a year (25 abortions x 3.5 days x 6 time = 525 abortions per year).” (Id.).32 Yet this seemingly simple calculation misrepresents the record: Ms. Williams testified that Dr.
32 At the hearing, defendants presented evidence that the maximum number of daily abortions Dr. Hopkins ever provided at LRFP was 28 in April 2018, not 21. Under the formulation suggested by defendants above, if Dr. Hopkins were to provide 28 abortions a day for three and a half days every other month, he would perform a total of 588 surgical abortions annually. The assertion that Dr. Hopkins can perform a total of 28 abortions a day is questionable given the other record evidence currently before the Court. Even if the Court were to accept it as true, it does not substantially alter the Court’s calculations, which are detailed below. In any event, based upon submissions from the parties, it appears that plaintiffs inadvertently provided defendants with Excel sheets that were merged, resulting in a double count of the number of abortions in April 2018 (Dkt. No. 82). Plaintiffs have even provided the Court with copies of the Excel sheets provided to Dr. Lindo and to Dr. Solanky, which illustrate the April 2018 error (Dkt. Nos. 99, 100, 101, 102). In sum, defendants have presented no proof that the Dr. Lindo relied upon erroneous data.
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Hopkins has provided only six percent of LRFP’s abortion care, and Dr. Lindo used this data to calculate Dr. Hopkins’ capacity to provide abortions at 252 per year. Ms. Williams did not aver that Dr. Hopkins currently provides 25 abortions per day. Further, construing Ms. Williams’ statement reasonably, the Court understands her position to be that LRFP can currently provide 25 abortions a day based upon its current providers. The Court does not understand her statement to be that one abortion provider can provide 25 abortions a day at LRFP. Additionally, to the extent defendants point to Dr. Lindo’s testimony at the hearing regarding Dr. Hopkins’ hypothetical capacity to provide abortions, the Court discounts such testimony because Dr. Hopkins was available for questioning regarding his availability, and hypothetical questions that directly contradict record evidence regarding Dr. Hopkins’ availability are not convincing to this Court. The uncontradicted record evidence is that Dr. Hopkins is only available one week, every other month, to provide abortion care for three to four days during that week.
With these preliminary points addressed, the Court turns to analyze the number of women who record evidence at this preliminary stage indicates plaintiffs likely will be able to demonstrate will be forced to forego an abortion due to the OBGYN requirement. Based upon the record evidence, if the OBGYN requirement goes into effect and LRFP closes, then plaintiffs likely will be able to demonstrate that the only abortions offered in Arkansas will be medication abortions at PPAEO Little Rock, and the record evidence indicates that Dr. Rodgers and Dr. Cathey—the only board-certified OBGYNs providing care at PPAEO Little Rock—can provide up to 956 medication abortions annually (Supp. Decl. of Jason Lindo, Ph.D., ¶ 11). Accordingly, if those 956 medication abortions are the only abortions available in Arkansas, then of the 3,167 women
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(including non-residents) who seek abortions in Arkansas annually, 2,21133 (or 70%34) of those women will not be able to receive abortions if LRFP closes.35 The Court notes that this calculation assumes without any record evidence presented for the Court’s consideration that any woman denied a surgical abortion could instead receive a medication abortion.
Even if the OBGYN requirement does not force LRFP to close entirely, the record evidence at this stage shows that Dr. Hopkins will be the only physician capable of providing abortions at LRFP under the OBGYN requirement. Further, the record evidence at this stage shows that, based upon his prior ability to provide abortions, Dr. Hopkins will be able to provide only 252 abortions per year at LRFP. Accordingly, in conjunction with the 956 medication abortions that Dr. Rodgers and Dr. Cathey will be able to provide, the total number of abortions that will be available in Arkansas if LRFP remains open is 1,20836 with Dr. Hopkins providing abortion care at his current maximum capacity to provide such care. Accordingly, of the 3,167 women (including nonresidents) who annually seek abortions in Arkansas, 1,95937 (or 62%38) of them will not be able to obtain an abortion in Arkansas.39
33 3,167-956=2,211. 34 2,211/3,167=70%. 35 Alternatively, out of the 2,614 women (including non-residents of Arkansas) who seek abortions in Little Rock annually, 1,658 (2,614-956=1,658) (or 63%) of them will not be able to receive abortions in Arkansas if LRFP closes and PPAEO Little Rock is the only abortion provider left in Arkansas. 36 956+252=1,208. 37 3,167-1,208=1,959. 38 1,959/3,167=62%. 39 Alternatively, of the 2,614 women (including non-residents of Arkansas) who annually seek abortions in Little Rock (rather than statewide), 1,406 (2,614-1,208=1,406) (or 54%) of them
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While the Court is not convinced that any of the record evidence supports defendants’ assertion that Dr. Hopkins can perform 525 surgical abortions a year, the Court will consider this unfounded assertion’s effect upon the calculations above. If, as defendants assert, Dr. Hopkins is able to conduct 525 surgical abortions a year, then the total number of abortions available at LRFP and PPAEO Little Rock would be 1,481.40 Therefore, of the 3,167 women who annually seek abortions in Arkansas, 1,68641 (or 53%42) of them will not be able to obtain an abortion in Arkansas, if the Court accepts defendants’ assertions about Dr. Hopkins’ capacity.43
The Court notes that these estimates assume that every woman who would otherwise have sought an abortion would be able to continue seeking an abortion even if her driving distances increase. In other words, the Court’s estimates here assume that increased driving distances would have no effect upon the number of women who will be able to obtain an abortion. Both sides include record evidence on this point, but the Court specifically for purposes of its analysis here makes no findings regarding the number of abortions that will not occur as a result of increased driving distances. As a result of this assumption, the Court’s estimates likely underestimate the number of women who will be unable to obtain an abortion as a result of the OBGYN requirement.
will not be able to obtain an abortion in Arkansas if Dr. Hopkins can provide 252 abortions annually in addition to the 956 abortions provided by PPAEO Little Rock.
40 956+525=1,481. 41 3,167-1,481=1,686. 42 1,695/3,167=53%. 43 Alternatively, of the 2,614 women who annually seek abortions in Little Rock, 1,133 (or 43%) of them will not be able to obtain an abortion in Arkansas, if the Court accepts defendants’ assertion about Dr. Hopkins’ capacity.
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The Court is also aware of the language in Casey stating that “the incidental effect of making it more difficult or more expensive to procure an abortion” is in and of itself not enough to meet the substantial obstacle requirement. 505 U.S. at 874. While lengthy travel “do[es] not always constitute an ‘undue burden,’” such travel is a “legitimate burden” that, depending upon the particular facts of the case, can ultimately contribute to a determination that a statute creates an undue burden. See Schimel, 806 F.3d at 919 (noting that requiring women to travel 90 miles is a burden on women seeking abortions and a particular burden on low-income women); Van Hollen III, 738 F.3d at 796 (noting that a 400 mile trip for two required appointments is a “nontrivial burden on the financially strapped and others who have difficulty traveling long distances to obtain an abortion, such as those who already have children”); Planned Parenthood of Indiana and Kentucky Inc. v. Commissioner, Indiana State Dep’t of Health, 273 F. Supp. 3d 1013, 1037 (S.D. Ind. 2017) (citing Hellerstedt, 136 S. Ct. 2313), aff’d, 896 F.3d 809 (7th Cir. 2017), petition for writ of certiorari filed, No. 18-1019 (U.S. Feb. 4, 2019). Evidence that increased travel distances lead to decreases in the abortion rate has been accepted by several federal courts. See Schimel, 806 F.3d at 919 (noting that “18 to 24 percent of women who would need to travel to Chicago or the surrounding area [from Wisconsin] would be unable to make the trip.”); Strange III, 33 F. Supp. 3d at 1356-60 (crediting statistical evidence that increased travel distance led to decreased abortion rates, particularly for urban women who are forced to travel more than 50 miles to an abortion clinic); see also Kliebert II, 250 F. Supp. 3d at 83 (crediting evidence that “[i]ntercity travel for low-income women presents a number of significant hurdles” and that “with just one or two providers remaining, many more women will be forced to travel significant distances to reach a clinic, which also imposes a substantial burden.”).
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In sum, using the number of women who seek abortions in Arkansas as the denominator of the large fraction calculation, the record evidence indicates if Act 700’s OBGYN requirement goes into effect, that anywhere from 70-53% of women who wish to have an abortion in Arkansas will be unable to obtain an abortion in Arkansas. Per Hellerstedt, the Court considers these burdens cumulatively to determine if a large fraction of women seeking abortions in Arkansas face a “substantial obstacle in the path of [their] choice.” 136 S. Ct. at 2312, 2313 (noting that different burdens—driving distance and clinic closings—should be considered together). Applying the “large fraction” test from Hellerstedt, Casey, and Jegley, considering all of the burdens presented in the record evidence at this stage of the proceedings and the controlling precedents, the Court finds that, for a large fraction of women for whom the OBGYN requirement is an actual restriction, the OBGYN requirement “places a ‘substantial obstacle in the path of a woman’s choice.’” Hellerstedt, 136 S. Ct. at 2312 (citing Casey, 505 U.S. at 877 (plurality opinion)).
6. Act 700: Weighing The Benefits And Burdens Having considered separately the benefits and burdens of the OBGYN requirement, the Court must next resolve the ultimate question of whether the OBGYN requirement creates an undue burden. Challenges to statutes affecting abortions may succeed only if a plaintiff can show that “in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Casey, 505 U.S. at 895 (majority opinion); see Hellerstedt, 136 S. Ct. at 2318 (striking down an admitting privileges requirement because the law “provides few, if any, health benefits for women” and “poses a substantial obstacle to women seeking abortions”); see also Jegley, 864 F.3d at 959 (“[I]n order to sustain a facial challenge and grant a preliminary injunction, the district court was required to make a finding that the Act’s contract-physician requirement is an undue burden for a large fraction of women seeking
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medication abortions in Arkansas.”); id. at 690 n. 9 (“The question here . . . is whether the contractphysician requirement’s benefits are substantially outweighed by the burdens it imposes on a large fraction of women seeking medication abortion in Arkansas.”).
Regarding the benefit of the OBGYN requirement, analyzing the record evidence currently before the Court at this stage of the litigation, and binding and persuasive legal precedents, this Court concludes at this stage that plaintiffs are likely to prevail on their argument that the OBGYN requirement confers little if any benefit on those women who are affected by it and does little to further defendants’ asserted interests. See Hellerstedt, 136 S. Ct. at 2318 (striking down an admitting privileges requirement because the law “provides few, if any, health benefits for women” and “poses a substantial obstacle to women seeking abortions”).
Regarding burdens, considered cumulatively, the record evidence at this stage of the litigation demonstrates that plaintiffs are likely to prevail on the merits of their claim that the OBGYN requirement, given plaintiffs’ limited ability to comply with it, substantially burdens a large fraction of women seeking abortions in Arkansas which is the group for whom the law is relevant. See Casey, 505 U.S. at 895 (majority opinion) (holding that the undue burden analysis looks “to those for whom [the challenged law] is an actual rather than an irrelevant restriction.”).
Weighing the benefits and burdens, given the foregoing evidence in the record currently before the Court at this stage of the litigation and given binding and persuasive legal precedents, the Court determines that Act 700’s OBGYN requirement, given plaintiffs’ limited ability to comply with it, imposes substantial burdens on a large fraction of women seeking abortions in Arkansas that “substantially outweigh[]” any state interest or any benefits to those women. Jegley, 864 F.3d at 960 n.9; see Hellerstedt, 136 S. Ct. at 2318 (striking down an admitting privileges requirement because the law “provides few, if any, health benefits for women” and “poses a
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substantial obstacle to women seeking abortions”); Van Hollen III, 738 F.3d at 798 (“The feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.”) (emphasis added); West Alabama Women’s Ctr. v. Miller, 299 F. Supp. 3d 1244, 1286 (M.D. Ala. 2017) (noting fetal demise law was passed in pursuit of legitimate goals, but those goals were not sufficient to justify “such a substantial obstacle to the constitutionally protected right to terminate a pregnancy before viability”); Planned Parenthood of Indiana and Kentucky, Inc., 273 F. Supp. at 1039 (noting undue burden where law required ultrasound viewing a day before an abortion rather than the day of the abortion because this change provided little to no benefit when measured against prior law). In other words, the Court concludes that, based upon the limited record before it at this stage of the litigation, plaintiffs are likely to prevail on their argument that requiring abortion providers to be board-certified or board-eligible OBGYNs presents a substantial undue burden for a large fraction of women seeking abortions in Arkansas, with little to no benefit to those women or to defendants’ asserted interests.
Plaintiffs have shown that “in a large fraction of the cases in which [the OBGYN requirement] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Casey, 505 U.S. at 895 (majority opinion); see Hellerstedt, 136 S. Ct. at 2318 (striking down an admitting privileges requirement because the law “provides few, if any, health benefits for women” and “poses a substantial obstacle to women seeking abortions”). Because Act 700’s OBGYN requirement likely does not “confer[] benefits sufficient to justify the burdens upon access [to abortion] that [it] imposes,” Hellerstedt, 136 S. Ct. at 2301, the Court finds that plaintiffs are likely to prevail on the merits of their due process challenge that Act 700’s OBGYN requirement is facially unconstitutional.
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7. Act 700: Equal Protection Challenge For the reasons discussed elsewhere in this Order, the Court finds that plaintiffs are likely to prevail on their due process claims. Accordingly, the Court will not, at this time, consider whether plaintiffs are likely to prevail on their claims under the Equal Protection Clause of the Fourteenth Amendment.
E. Irreparable Harm A plaintiff seeking a preliminary injunction must establish that the claimant is “likely to suffer irreparable harm in the absence of preliminary relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The deprivation of constitutional rights “unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); Planned Parenthood of Minn., Inc. v. Citizens for Cmty. Action, 558 F.2d 861, 867 (8th Cir. 1977) (same). Plaintiffs allege that the enactment and enforcement of Acts 493, 619, and 700 will inflict irreparable, tangible injuries on plaintiffs’ patients by forcing them to delay access to abortion care or remain pregnant against their will. Plaintiffs also argue that the abortion providers will suffer irreparable harm to their professional reputations if they are forced to cease providing desired medical services and that LRFP will be irreparably harmed by being forced to close or reduce its hours of operations (Dkt. No. 61, at 52-53). Defendants argue that the OBGYN requirement does not prevent any woman from deciding whether to have an abortion at any stage of pregnancy and that there is no evidence that Acts 493 or 619 will prevent any women from obtaining an abortion (Dkt. No. 103, at , 84, 95). Defendants also assert that an injunction would cause irreparable harm to the State if it is not allowed to enforce the duly elected statutes enacted by the Arkansas legislature (Id., at 96).
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For now, this Court finds, based on the state of the record before the Court at this stage of the proceeding, that Acts 493, 619, and 700 cause ongoing and imminent irreparable harm to the plaintiffs and their patients. As detailed above, the record at this stage of the proceeding indicates that Acts 493 and 619 unconstitutionally prohibit pre-viability abortions. Additionally, the record at this stage of the proceeding indicates that Act 700’s OBGYN requirement imposes an undue burden on the right of women in Arkansas to seek an abortion. The harms to women who are unable to obtain abortion care as a result of Acts 493, 619, and 700 are irreparable. See Roe, 410 U.S. at 153 (describing “[s]pecific and direct harm” from forced childbirth). Furthermore, the State has no interest in enforcing laws that are unconstitutional, and therefore, since plaintiffs have demonstrated at least at this preliminary stage and on the record currently before the Court that they are likely to prevail on the issue of whether Acts 493, 619, and 700 are unconstitutional, an injunction preventing the State from enforcing Acts 493, 619, and 700 does not irreparably harm the State. See Hispanic Interest Coal. of Ala. v. Governor of Ala., 691 F.3d 1236, 1249 (11th Cir. 2012). Since the record at this stage of the proceedings indicates that women seeking abortions in Arkansas face an imminent threat to their constitutional rights, the Court concludes that they will suffer irreparable harm without injunctive relief.
F. Balance Of Equities And The Public Interest Plaintiffs argue that they and their patients “unquestionably face far greater irreparable harm if the challenged requirements take effect” than “Defendants face if the laws’ enforcement is enjoined . . . .” (Dkt. No. 4, at 65). Plaintiffs point out that if the Court grants injunctive relief, the immediate result will be the maintenance of the status quo, i.e., “the availability of safe and effective abortion care.” (Id.). Defendants, however, argue that the “status quo is that duly enacted laws take effect without interventions of courts” and that the public interest weighs against
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injunctive relief because the public has an interest in seeing the laws enforced and protecting patient health (Dkt. No. 103, at 97).
The Court must examine this case in the context of the relative injuries to the parties and to the public. Dataphase, 640 F.2d at 114. The Eighth Circuit has stated that “whether the grant of a preliminary injunction furthers the public interest . . . is largely dependent on the likelihood of success on the merits because the protection of constitutional rights is always in the public interest.” Rounds, 530 F.3d at 752. After balancing the relative injuries and the equities, while evaluating the limited record before it, the Court finds that the enforcement of Acts 493, 619, and 700 at least at this stage would result in greater irreparable harm to plaintiffs and their patients than to the State. Accordingly, at this stage of the proceeding, the Court finds that the threat of irreparable harm to plaintiffs, and the public interest, outweighs the immediate interests and potential injuries to defendants.
G. Security Under Federal Rule of Civil Procedure 65(c), a district court may grant a preliminary injunction “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). In these proceedings, defendants have neither requested security in the event this Court grants a preliminary injunction nor have they presented any evidence that they will be financially harmed if they are wrongfully enjoined. For these reasons, the Court declines to require security from plaintiffs.
H. Scope Of Injunction The Court notes that in the related case, Jegley, the Court’s renewed preliminary injunction order required plaintiffs in that case to report to the Court every 30 days on their efforts to comply
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with the contracted physician requirement. The Court declines to attach a similar requirement to this preliminary injunction for the following reasons. In Jegley, the record evidence at the preliminary injunction stage indicated that the contracted physician requirement conferred little if any benefit to the women who were affected by it. Jegley, 2018 WL 3816925, at *68. The record evidence also indicated that a large fraction of women affected by the contracted physician requirement were substantially burdened, id., though the percentage of women affected by the contracted physician requirement as calculated by the Court was smaller than the percentage of women who will not be able to obtain an abortion if the OBGYN requirement takes effect, based on current record evidence. Additionally, this Court found in Jegley that it had “lingering questions regarding PPAEO’s efforts to comply with the contracted physician requirement . . . .” Id. at *49.
Reviewing the record evidence here, unlike in Jegley where Arkansas physicians submitted affidavits, defendants present no affidavits from any individual regarding the difference between the requirements to satisfy the board-certified or board-eligible OBGYN requirement of Act 700 and the Arkansas laws and regulations currently in place that apply to Arkansas-licensed physicians who provide abortions. Dr. Aultman and Dr. Harrison’s declarations are generalized and provide the Court with no basis to determine how the OBGYN requirement provides any benefits over and above existing law or regulations in Arkansas. Dr. Aultman did not appear at the July 22, 2019, hearing. Indeed, Dr. Harrison’s testimony offered at the July 22, 2019, hearing suggests that, as a board-certified OBGYN, she would not feel comfortable providing abortions without at least six months of additional training in abortion care (Dkt. No. 84, at 241:9-21).
Similarly, the record evidence indicates that the effect of the OBGYN requirement will be to reduce significantly the number of abortions that can be provided in Arkansas. Furthermore, as
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discussed above, the Court concludes that Dr. Lindo and Dr. Solanky’s estimates regarding the number of abortions in Arkansas are not substantively different. Defendants have presented no record evidence that plaintiffs are able to provide more abortions than represented in their testimony or in Dr. Lindo’s estimates.
Finally, record evidence shows that plaintiffs have made good faith attempts to comply with the OBGYN requirement and that their attempts have been, in part, successful, as demonstrated by Dr. Cathey’s commitment to provide an additional half day of abortion care and Dr. Hopkins and Dr. Browne’s agreements to provide increased abortion care in Arkansas. Defendants have presented no record evidence that plaintiffs have somehow misrepresented their attempts to comply with the OBGYN requirement or have somehow failed to pursue diligently additional leads.
For all of these reasons, the Court will not require plaintiffs to attempt to comply with the OBGYN requirement.
IV. Conclusion For the foregoing reasons, the Court determines that plaintiffs have met their initial burden for the issuance of a preliminary injunction. Therefore, the Court grants plaintiffs’ request for a preliminary injunction (Dkt. No. 2). The Court hereby orders that defendants, and all those acting in concert with them, including their employees, agents, and successors in office, are preliminarily enjoined from enforcing Act 493 of 2019, Act 619 of 2019, and Act 700 of 2019. Further, defendants are enjoined from failing to notify immediately all state officials responsible for enforcing the requirements of Act 493 of 2019, Act 619 of 2019, and Act 700 of 2019, about the existence and requirements of this preliminary injunction. This preliminary injunction remains in
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The Court enters this Order on Tuesday, August 6, 2019, at 5:00 p.m. _______________________________ Kristine G. Baker United States District Judge
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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES, et al.,

PLAINTIFFS,

v.

Case No. 4:19-cv-00449-KGB

LESLIE RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas, et al.,

DEFENDANTS.

NOTICE OF APPEAL

Notice is hereby given that Defendants hereby appeal to the United States Court of

Appeals for the Eighth Circuit from the preliminary injunction order entered in this action on

August 6, 2019 and docketed as Document 119. Defendants additionally appeal from the ex

parte Order granting Plaintiffs’ motion to consolidate this case with Planned Parenthood of Ark.

& Eastern Okla. v. Jegley, Case No. 4:15-cv-00784-KGB, entered on June 27, 2019 and

docketed as Document 14, and the Order denying Defendants’ motion to reconsider the ex parte

Order granting consolidation, entered on July 5, 2019 and docketed as Document 29.

The United States Court of Appeals for the Eighth Circuit has jurisdiction over this

interlocutory appeal pursuant to 28 U.S.C. 1292(a)(1) because it challenges the District Court’s

order granting a preliminary injunction. See, e.g., Barrett v. Claycomb, 705 F.3d 315, 318 (8th

Cir. 2013); Bacon v. Neer, 631 F.3d 875, 877 (8th Cir. 2010). The Eighth Circuit has jurisdiction

over the interlocutory appeal of the ex parte consolidation order (DE 14) and denial of

reconsideration of that order (DE 29) because those orders are inextricably intertwined with the

Order granting a preliminary injunction. See, e.g., Novus Franchising, Inc. v. Dawson, 725 F.3d

885, 892 (8th Cir. 2013).

Case 4:19-cv-00449-KGB Document 120 Filed 08/06/19 Page 2 of 2

Dated: August 6, 2019

Respectfully submitted,
LESLIE RUTLEDGE Attorney General
Nicholas J. Bronni (2016097) Solicitor General
Vincent M. Wagner (2019071) Deputy Solicitor General
Michael A. Cantrell (2012287) Dylan L. Jacobs (2016167)
Assistant Solicitors General OFFICE OF THE ARKANSAS
ATTORNEY GENERAL 323 Center Street, Suite 200 Little Rock, Arkansas 72201 (501) 682-2007 (501) 682-2591 (fax) nicholas.bronni@arkansasag.gov
Counsel for Defendants

 
 Case 4:19-cv-00449-KGB Document 141 Filed 04/14/20 Page 1 of 22

THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES, et al.

PLAINTIFFS

v.

Case No. 4:19-cv-00449-KGB

LESLIE RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas, et al.

DEFENDANTS

TEMPORARY RESTRAINING ORDER

Before the Court are a motion for expedited leave to file a supplemental complaint and a

motion for an ex parte temporary restraining order and/or preliminary injunction filed by separate

plaintiffs Little Rock Family Planning Services (“LRFP”) and Thomas Tvedten, M.D., on behalf

of himself and his patients (collectively, the “Supplemental Complaint Plaintiffs”) (Dkt. Nos. 132,

134). In the instant motions, the Supplemental Complaint Plaintiffs challenge as unconstitutional

the State of Arkansas’ enforcement of Arkansas Governor Asa Hutchinson’s April 4, 2020,

Executive Order 20-13, which amended both Executive Order 20-03, issued March 11, 2020, and

Executive Order 20-10, issued March 26, 2020, and application of the April 3, 2020, Arkansas

Department of Health’s (“ADH”) Directive on Elective Surgeries (the “ADH Directive”) through

an April 10, 2020, cease-and-desist order sent by ADH to LRFP to bar all surgical abortions,

“except where immediately necessary to protect the life or health of the patient” (the “ADH Cease-

and-Desist Order”) (collectively, the “Challenged Provisions”). For the reasons set forth herein,

the Court provisionally grants the Supplemental Complaint Plaintiffs’ motion for expedited leave

to file a supplemental complaint and motion for an ex parte temporary restraining order. The Court

has under advisement the Supplemental Complaint Plaintiffs’ motion for a preliminary injunction.

The Court will reconsider these matters upon the submission of defendants’ written arguments.

I. Factual And Procedural History

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Plaintiffs commenced this action on June 26, 2019. Along with the complaint for injunctive and declaratory relief, a motion for a temporary restraining order and/or preliminary injunction was filed by separate plaintiffs LRFP and Dr. Tvedten (Dkt. Nos. 1, 2).1 Plaintiffs filed this action seeking declaratory and injunctive relief on behalf of themselves and their patients under the United States Constitution and 42 U.S.C. § 1983 to challenge three acts passed by the Arkansas General Assembly: (1) Arkansas Act 493 of 2019, which bans abortion “where the pregnancy is determined to be greater than 18 weeks,” as measured from the first day of a woman’s last menstrual period (“LMP”) in nearly all cases; (2) Arkansas Act 619 of 2019, which prohibits a physician from intentionally performing or attempting to perform an abortion “with the knowledge” that a pregnant woman is seeking an abortion “solely on the basis” of: a test “indicating” Down syndrome, a prenatal diagnosis of Down syndrome, or “[a]ny other reason to believe” the “unborn child” has Down syndrome (“Act 619”); and (3) Arkansas Act 700 of 2019, which provides that “[a] person shall not perform or induce an abortion unless that person is a physician licensed to practice medicine in the state of Arkansas and is board-certified or boardeligible in obstetrics and gynecology.” The Court entered a temporary restraining order on July 23, 2019 (Dkt. No. 83). The Court subsequently entered a preliminary injunction order on August 6, 2019 (Dkt. No. 119). Defendants appealed (Dkt. No. 120), and their appeal remains pending before the Eighth Circuit Court of Appeals.
On April 13, 2020, the Supplemental Complaint Plaintiffs filed a motion for expedited leave to file a supplemental complaint and a motion for an ex parte temporary restraining order and/or preliminary injunction (Dkt. Nos. 132, 134). Defendants have not yet responded to either
1 Not all named plaintiffs in this lawsuit joined in the initial motion for temporary restraining order and/or preliminary injunction (Dkt. Nos. 2, 32).
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motion. However, plaintiffs notified counsel for defendants on April 12, 2020, of their intent to seek an ex parte temporary restraining order barring enforcement of the Challenged Provisions against LRFP to bar all surgical abortions, “except where immediately necessary to protect the life or health of the patient” (Dkt. No. 134-18, ¶ 4).
To briefly summarize the factual background, on April 3, 2020, the ADH issued the ADH Directive that states that elective surgery “[p]rocedures. . . that can be safely postponed shall be rescheduled to an appropriate future date,” subject to certain enumerated exceptions (Dkt. No. 1347, at 2). The next day, by Executive Order 20-13, Governor Hutchinson declared that a violation of a directive from the Secretary of Health “is a misdemeanor offense, and upon conviction therefore is punishable by a fine of not less than one hundred ($100) nor more than five hundred dollars ($500) or by imprisonment not exceeding one (1) month, or both.” (Dkt. No. 132-1, at 29– 32). On April 10, 2020, the ADH sent LRFP the ADH Cease-and-Desist Order stating that the April 3, 2020, ADH Directive “mandates the postponement of all procedures that are not immediately medically necessary,” and thus, according to ADH, the “prohibition applies to surgical abortions that are not immediately necessary to protect the life or health of the patient.” (Dkt. No. 134-2, at 31). The ADH Cease-and-Desist Order requires LRFP to “immediately cease and desist the performance of surgical abortions, except where immediately necessary to protect the life or health of the patient.” (Id.). The ADH Cease-and-Desist Order also states that “[a]ny further violations of the April 3 [ADH] Directive will result in immediate suspension of [LRFP’s] license.” (Id.). Based on record evidence, the Challenged Provisions do not contain an expiration date, and neither the ADH nor Governor Hutchinson have determined how long the Challenged Provisions will remain in effect (Dkt. No. 132-1, ¶ 35).
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Based on record evidence, only the following types of abortion care are available in Arkansas currently: medication abortions, which are available only up to 10 weeks as measured from the first day of a woman’s last menstrual period (“LMP”), aspiration surgical procedures, which are performed until approximately 13 weeks LMP, and dilation and evacuation (“D&E”) surgical procedures, which are performed until 21.6 weeks LMP, the legal time limit for an abortion in Arkansas. After 10 weeks LMP, the only type of abortion care available in Arkansas is surgical abortion.
II. Motion For Expedited Leave To File A Supplemental Complaint Rule 15(d) of the Federal Rules of Civil Procedure authorizes supplementation of a complaint based on later events. While an amended pleading under Rule 15(a) “is designed to include matters occurring before the filing of the bill but either overlooked or not known at the time,” a supplemental pleading under Rule 15(d) “is designed to cover matters subsequently occurring but pertaining to the original cause.” United States v. Vorachek, 563 F.2d 884, 886 (8th Cir. 1977). “The purpose of Rule 15(d) is to promote, as complete an adjudication as possible, of an existing dispute between the parties, which may have evolved since the action was initiated.” Schneeweis v. Nw. Tech. Coll., No. CIV.97-1742 (JRT/RLE), 1998 WL 420564, at *13 (D. Minn. June 1, 1998). A copy of the Supplemental Complaint Plaintiffs’ proposed first supplemental complaint for injunctive and declaratory relief is attached as Exhibit 1 to the Supplemental Complaint Plaintiffs’ motion for expedited leave to file a supplemental complaint. The Supplemental Complaint Plaintiffs maintain that 2 of the 4 plaintiffs in their proposed supplemental complaint are the same, as are all 18 named defendants. They allege that the Challenged Provisions, among other things, violate Arkansas women’s right to access abortion care under the Substantive Due
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Process and Equal Protection Clauses of the Fourteenth Amendment. Further, the Supplemental Complaint Plaintiffs plead facts relating to: (i) abortion procedures typically provided in Arkansas and their safety compared to other medical procedures; (ii) the importance of abortion as an element of women’s health care; (iii) the significant obstacles that women face in accessing abortion care in Arkansas, including travel distance and a lack of financial resources; and (iv) risks to women’s health and well-being that arise when access to abortion care is delayed, or denied altogether (Dkt. No. 133, at 5).
These issues are factually and legally similar to those raised in the operative complaint (Dkt. No. 1, ¶¶ 37–108) and have previously been addressed by the Court (Dkt. Nos. 83, 119). The Supplemental Complaint Plaintiffs represent that that the Court’s analysis of the supplemental complaint’s claims will involve facts, issues, and witnesses common to the underlying litigation, as well. Further, because plaintiffs’ appeal remains pending in the Eighth Circuit, neither the discovery period nor other pre-trial district-court proceedings have commenced in this case.
Having carefully reviewed the motion and associated briefing, as well as the entire record in this case, the Court provisionally grants the Supplemental Complaint Plaintiffs’ motion for expedited leave to file a supplemental complaint (Dkt. No. 132) and directs the Supplemental Complaint Plaintiffs to file their proposed first supplemental complaint for injunctive and declaratory relief, attached as Exhibit 1 to their motion for expedited leave to file a supplemental complaint, within seven days from the entry of this Order.
III. Motion For An Ex Parte Temporary Restraining Order On the limited record before it, the Court finds that the Supplemental Complaint Plaintiffs have demonstrated a likelihood of success on their substantive due process argument, irreparable harm should the temporary restraining order not be granted, and that the balance of the equities
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and the public interest will be served by a temporary restraining order. Accordingly, the Supplemental Complaint Plaintiffs are entitled to an ex parte temporary restraining order barring enforcement of the Challenged Provisions against LRFP.
A. Standing To Seek Injunctive Relief Having independently considered the issue, the Court finds that the Supplemental Complaint Plaintiffs have standing under Article III and 42 U.S.C. § 1983 to pursue a temporary restraining order to prohibit defendants from enforcing the Challenged Provisions against LRFP (Dkt. No. 119, at 76–82). Further, the Court construes this as a facial challenge to the Challenged Provisions (Dkt. No. 119, at 83–84).
B. Legal Standard In the Eighth Circuit, the same standards are applied to a request for a preliminary injunction as to a request for a temporary restraining order. See S.B. McLaughlin & Co. v. Tudor Oaks Condo. Project, 877 F.2d 707, 708 (8th Cir. 1989). In determining whether to issue a temporary restraining order, a district court should consider: “(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Kroupa v. Nielsen, 731 F.3d 813, 818 (8th Cir. 2013) (quoting Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981)). Under Dataphase, no one factor is determinative. See Dataphase, 640 F.2d at 113. A temporary restraining order “is an extraordinary remedy, and the burden of establishing the propriety of an injunction is on the movant,” here, the Supplemental Complaint Plaintiffs. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003) (citations omitted). Additional considerations impact the Court’s determination to grant ex parte relief. See Fed. R. Civ. P. 65(b).
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C. Discussion The limited record before the Court demonstrates that the Supplemental Complaint Plaintiffs are entitled to a temporary retraining order barring enforcement of the Challenged Provisions.
1. Scope Of The Challenged Provisions Although Arkansas has undertaken statewide efforts to counter the impact of the coronavirus diseases 2019 (“COVID-19”), those efforts have been targeted. Although Governor Hutchinson declared in Executive Order 20-13, issued April 4, 2020, “the entire state an emergency disaster area” and prohibited “gatherings of more than ten (10) people in any confined indoor or outdoor space . . . until further notice,” Governor Hutchinson has declined to issue a stay-home order to all Arkansas residents. (Dkt. No. 132-1, ¶ 29 (alteration in original)). Governor Hutchinson permits “gatherings of ten (10) or more people in . . . parks, trials, athletic fields and courts, parking lots, golf courses, and driving ranges where social distancing of at least six (6) feet can be easily maintained.” (Id. (alteration in original)). Further, Governor Hutchinson exempted “businesses, manufacturers, construction companies, places of worship, the Arkansas General Assembly, municipal or county governing bodies, [and] the judiciary” from Executive Order 2013. (Id.). The Court is mindful that, in the April 3, 2020, ADH Directive, due to “increasing concerns of staff and medical supplies capabilities in hospitals statewide,” the ADH directed that “mandatory actions” be taken by all health facilities, including ambulatory surgery centers and abortion facilities, to “preserve staff, personal protective equipment (PPE), and patient care supplies; ensure staff and patient safety; and expand available hospital capacity during the COVID19 pandemic.” (Id., at 27). Specific to this dispute, the ADH required that “[p]rocedures, testing,
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and office visits that can be safely postponed shall be rescheduled to an appropriate future date,” but recognized that “[e]mergent, urgent and care designated as an exception. . . will continue.” (Id.). As specific exceptions to the ADH Directive, the ADH cited:
• If there is a threat to the patient’s life if the procedure is not performed.
• If there is a threat of permanent dysfunction of an extremity or organ system if the surgery is not done.
• If there is a risk of metastasis or progression of staging of a disease or condition if surgery is not performed.
• If there is a risk that the patient’s condition will rapidly deteriorate if surgery is not done, and there is a threat to life or an extremity or organ system or a threat of permanent dysfunction or disability.
(Id.). When asked about the April 3, 2020, ADH Directive, the ADH explained that it is “not
intended to replace a physician’s judgment” and reiterated that the ADH Directive encompasses only procedures that can be “safely deferred.” (Dkt. No. 134-2, ¶ 31). As of April 8, 2020, Arkansas Governor Hutchinson represented in public comments that, based on the statewide efforts, Arkansas has “a lot of hospitals that are empty right now and health care workers that are empty,” presumably meaning that are available to provide care (Dkt. No. 132-1, ¶ 32). When asked on April 9, 2020, if “elective surgeries” were still permitted in Arkansas, ADH responded that judgments at surgical centers would be left primarily to the providers (Dkt. No. 134-2, ¶ 36).
In the April 10, 2020, ADH Cease-and-Desist Order, the ADH stated to LRFP: Your facility was found to be performing surgical abortions that are not immediately necessary to protect the life or health of the patient, and your facility is therefore in violation of the April 3 Directive. Your facility is required to postpone such procedures until after the COVID-19 emergency has ended and the April 3 Directive is withdrawn. Accordingly, your facility is ordered to immediately cease and desist the performance of surgical abortions, except where immediately necessary to protect
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the life or health of the patient. Any further violations of the April 3 Directive will result in an immediate suspension of your facility’s license. (Dkt. No. 132-1, at 36). From the face of the April 3, 2020, ADH Directive and the April 10, 2020, ADH Ceaseand-Desist Order, defendants appear to have created a conflict or narrowing of the exceptions available to LRFP and its clinicians when determining how to proceed with surgical abortion patient care in Arkansas. The Court is aware of no clarification provided by defendants with respect to this apparent conflict.2 The record demonstrates the reality of abortion care in Arkansas (Dkt. No. 134-2, ¶¶ 16– 17, 19–22). Mandatory in-person counseling is required prior to procedures, with prescribed wait times and return visits to the clinic. The Court understands that these in-person counseling sessions have not been permitted to be conducted by telemedicine by defendants and instead are still proceeding as required by current law. Further, there are limits on clinic capacity resulting from the COVID-19 pandemic and required social distancing (Id., ¶ 26). There also are limits on LRFP’s capacity to see surgical abortion patients each day (Id., ¶ 48). Moreover, every day patients are at risk of contracting the COVID-19 virus, jeopardizing their ability to visit a clinic and receive time-sensitive care (Id., ¶ 49). The Supplemental Complaint Plaintiffs maintain that they seek relief “on behalf of patients who are particularly burdened” due to the time-sensitive nature of abortion care, including patients
2 As a claim in their supplemental complaint, the Supplemental Complaint Plaintiffs also assert that the Challenged Provisions are unconstitutionally vague because, according to Supplemental Complaint Plaintiffs, it is “impossible to determine what specific medical procedures the Arkansas Health Department’s April 3, 2020 Directive on Elective Surgeries prohibits clinicians from providing their patients.” (Dkt. No. 132-1, ¶ 53).
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for whom the Challenged Provisions will, in the good faith, professional judgment of the treating physician:
(i) likely worsen any maternal-health conditions that predate the pregnancy or result from the pregnancy; (ii) likely stand in the way of the patient ultimately accessing abortion care, because of patient-specific factors like medical history, the circumstances that led to the patient’s decision to seek care in the first place (i.e., domestic violence), and the logistical and financial obstacles faced by the patient; (iii) bar access to abortion because medication abortion is contraindicated; (iv) likely push to a more complex and more time-intensive surgical-abortion procedure (beginning around 14 weeks LMP); (v) require the patient to visit the clinic an additional time for a two-day procedure, instead of a one-day procedure, which beings at approximately 18 weeks LMP; or (vi) likely push beyond the point at which abortion is available in the State (i.e., 21.6 weeks LMP). (Dkt. No. 135, at 41).
2. Likelihood Of Success On The Merits “In considering the likelihood of the movant prevailing on the merits, a court does not decide whether the movant will ultimately win.” PCTV Gold, Inc. v. SpeedNet, LLC, 508 F.3d 1137, 1143 (8th Cir. 2007) (citing Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d 367, 371 (8th Cir. 1991)). Rather, the Eighth Circuit has instructed district courts to “flexibly weigh the case’s particular circumstances to determine whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998) (quoting Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500, 503 (8th Cir. 1987)). Still, “an injunction cannot issue if there is no chance of success on the merits.” Mid-Am. Real Estate Co. v. Iowa Realty Co., 406 F.3d 969, 972 (8th Cir. 2005); see also Wachovia Sec., L.L.C. v. Stanton,
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571 F. Supp. 2d 1014, 1033 (N.D. Iowa 2008) (“Likelihood of success on the merits requires that the movant find support for its position in governing law.”).3
This Court has previously examined the law generally directed at pre-viability abortions
and the types of abortions offered in Arkansas (Dkt. No. 119, at 84–89). The Court concludes that,
at this stage of the proceedings, and on the record evidence currently before the Court, the
Supplemental Complaint Plaintiffs are likely to prevail on their argument that the Challenged
Provisions unconstitutionally restrict pre-viability abortions and, therefore, are facially
unconstitutional. The Challenged Provisions prohibit virtually all pre-viability abortions after 10
weeks LMP and prohibit virtually all pre-viability abortions for patients for whom medication
abortion is contraindicated. That the ADH Cease-and-Desist Order allows for a very narrow
exception for surgical abortions “immediately necessary to protect the life or health of the patient”
does not change the Court’s analysis.
It is the view of the Court that the undue-burden test announced by the Supreme Court in
Planned Parenthood of Southern Pennsylvania v. Casey, 505 U.S. 833 (1992), does not apply to
its analysis of the Challenged Provisions. The Supplemental Complaint Plaintiffs are likely to
prevail on their argument that the Challenged Provisions prohibit nearly all pre-viability abortions
3 The Court notes that the Eighth Circuit has revised the Dataphase test for preliminary injunctive relief when applied to challenges to laws passed through the democratic process, which are entitled to a “higher degree of deference.” Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 725, 732 (8th Cir. 2008). In such cases, it is never sufficient for the moving party to establish that there is a “fair chance” of success. Id. at 730. Instead, the appropriate standard, and threshold showing that must be made by the movant, is “likely to prevail on the merits.” Id. Only if the movant has demonstrated that it is likely to prevail on the merits should the Court consider the remaining factors. See id. Given the nature of the Challenged Provisions, it is not clear that this heightened standard applies. These actions were taken as authorized by Arkansas Code Annotated § 20-7-110 and, under Arkansas law, appear to have the force and effect of law. See Mannis v. State, 398 S.W.2d 206 (Ark. 1966); Wright v. DeWitt School Dist. #1, 385 S.W.2d 644 (Ark. 1965). However, even if the Rounds standard applies here, the Court determines that the Supplemental Complaint Plaintiffs meet it at this stage of the litigation.
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past 10 weeks LMP, which the Supreme Court has repeatedly held is a prohibition that cannot be imposed by the state. See Casey, 505 U.S. at 846 (plurality op.) (affirming Roe’s “essential holding” that “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure”); see also Little Rock Family Planning Servs. v. Rutledge, 397 F. Supp. 3d 1213, 1266 (E.D. Ark. 2019) (“[P]rohibitions on abortions pre-viability, even when they contain limited exceptions, are per se unconstitutional under binding Supreme Court precedent” (citing Edwards v. Beck, 786 F.3d 1113, 1117 (8th Cir. 2015), and MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 772–23 (8th Cir. 2015))), appeal docketed, No. 19-2690 (8th Cir. Aug. 9, 2019). And this Court is not alone is refusing to apply the undue-burden standard when presented with state laws that unconditionally eliminate the right to abort a nonviable fetus for a defined class of women. See Isaacson v. Horne, 716 F.3d 1213, 1225 (9th Cir. 2013) (reasoning that Casey’s undue-burden analysis “has no place where, as here, the state is forbidding certain women from choosing previability abortions rather than specifying the conditions under which such abortions are to be allowed.”).
The limited exceptions to the Challenged Provisions do not change the constitutional analysis or this Court’s determination at this stage of the proceedings. See Edwards, 786 F.3d at 1117 (“Whether or not ‘exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’” (quoting Casey, 505 U.S. at 879)); MKB Mgmt., 795 F.3d at 772–23 (8th Cir. 2015) (determining that a North Dakota law prohibiting all abortions to the point in pregnancy when the fetus possessed a detectable heartbeat, which are detectable at about six weeks, with exception for medical necessity, impermissibly infringed on a woman’s due process right to choose to terminate
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pregnancy before viability); Isaacson, 716 F.3d at 1228 (“[W]hile a health exception is necessary to save an otherwise constitutional post-viability abortion ban from challenge, it cannot save an unconstitutional prohibition on the exercise of a woman's right to choose to terminate her pregnancy before viability.”); see also Robinson v. Marshall, No. 2:19cv365-MHT (WO), at 22 n.6, 32–33 (M.D. Ala. Apr. 12, 2020) (reasoning, in the context of a constitutional challenge to a pre-viability ban on abortion premised upon COVID-19 concerns, that “[i]t is abundantly clear that the medical restrictions in the state health order are unconstitutional to the extent that they prevent a woman from obtaining an abortion before viability—that is, where they effect a prohibition on abortion), appeal filed, (11th Cir. Apr. 13, 2020).
Even if the undue-burden standard applies to the Court’s analysis of the Supplemental Complaint Plaintiffs’ substantive due process claim, the Court determines that the Supplemental Complaint Plaintiffs are likely to prevail because the burdens of the Challenged Provisions far outweigh their purported benefits. This Court is bound to apply Supreme Court and Eighth Circuit precedents. Generally, to determine whether a state statute restricting abortion access is unconstitutional and violates substantive due process rights, the Court applies the “undue-burden” standard developed in Casey, 505 U.S. at 876–79 (plurality op.), and Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2296, 2309–11 (2016). The Supplemental Complaint Plaintiffs may prevail on a facial challenge to the Challenged Provisions if they “can show that ‘in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion.’” Hopkins v. Jegley, 267 F. Supp. 3d 1024, 1050 (E.D. Ark. 2017) (alteration in original) (quoting Casey, 505 U.S. at 895), amended, No. 4:17-CV-00404-KGB, 2017 WL 6946638 (E.D. Ark. Aug. 2, 2017), appeal docketed, No. 17-2879 (8th Cir. Aug. 28, 2017). The Court determines, at least at this preliminary stage of the litigation, that the
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Supplemental Complaint Plaintiffs are likely to prevail on their argument that, when the Court weighs the benefits and burdens of the Challenged Provisions, they place an undue burden on a woman’s access to abortion in violation of the Fourteenth Amendment to the United States Constitution.
The Court first examines Arkansas’ asserted interest in the Challenged Provisions. The Supplemental Complaint Plaintiffs are likely to prevail on their argument that the Challenged Provisions do not meaningfully further the State’s admittedly legitimate interests in protecting or promoting the public’s health and safety during the COVID-19 pandemic. There is record evidence that LRFP is wholly self-sustaining in terms of personal protective equipment (“PPE”) and has no plans to utilize State PPE resources. 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 LRFP in providing abortion care. Likewise, record evidence demonstrates that pre-viability abortion care decreases rather than exacerbates demand for hospital capacity, especially given this Court’s findings that abortion is safer and does not burden hospitals as much as continued pregnancy, miscarriage management, and childbirth.
On the record before the Court, the Challenged Provisions are not necessitated by socialdistancing concerns, given LRFP’s Precautions and Protocols in Response to COVID-19 Pandemic, formalized and instituted on April 2, 2020 (Dkt. No. 134-2, at 23–25). Numerous medical experts have determined that abortion care remains critical, time-sensitive health care that should not be delayed even during this pandemic (Dkt. No. 135, at 16–18). In determining whether regulations actually further women’s health, the Supreme Court has repeatedly looked at the generally accepted standards for medicine set by the nation’s major health organizations. See, e.g.,
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Simopoulos v. Virginia, 462 U.S. 506, 517 (1983) (considering standards for obstetricgynecological services standards set by the American College of Obstetricians and Gynecologists).
This Court next examines the claimed burden of the Challenged Provisions, having previously explained the scope of this inquiry (Dkt. No. 119, at 164–68). Based on the record evidence before the Court at this stage of the proceedings, the Court finds that based on the number and types of abortions provided in Arkansas, the types of abortions to which the Challenged Provisions are relevant, and the likely impact of the Challenged Provisions on the availability of surgical abortion in Arkansas, the Supplemental Complaint Plaintiffs are likely to prevail on their argument that “‘in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion.” Jegley, 267 F. Supp. 3d at 1050 (alteration in original) (quoting Casey, 505 U.S. at 895). The Challenged Provisions indefinitely postpone in Arkansas virtually all pre-viability abortions after 10 weeks LMP and indefinitely postpone virtually all pre-viability abortions for patients for whom medication abortion is contraindicated. The only exception cited in the ADH Cease-and-Deist Order is for abortions “immediately necessary to protect the life or health of the patient.” The record evidence includes the number of abortions performed at LRFP, including medication and surgical, in 2019 and in 2020 to date (Dkt. No. 132-1, ¶ 10). The Challenged Provisions do not contain an expiration date, and neither the ADH nor Governor Hutchinson have indicated how long the Challenged Provisions will remain in effect.
In past decisions, this Court has declined to consider the availability of out-of-state abortion providers when examining the undue burden imposed by an abortion regulation (Dkt. No. 119, at 162–64). However, even if the Court considers such providers, that does not sway this Court’s undue-burden analysis, given the states where alternate abortion care may be provided, the
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logistical and financial arrangements necessary for patients to seek such care, the risk of contracting COVID-19 when traveling to an out-of-state abortion clinic and then spreading it to other Arkansawyers, the uncertainty of whether out-of-state abortion clinics will have the capacity to treat Arkansas women seeking a surgical abortion, and the uncertainty of whether other states will restrict abortion access during this time.
Further, the record supports a finding that enforcement of the Challenged Provisions against LRFP will inflict serious physical, emotional, and psychological injuries on LRFP’s patients by forcing them to delay, or altogether forgo, access to abortion care (Dkt. No. 135, at 28– 29).
When the Court examines the burdens that the Challenged Provisions impose on access to abortion, which is a fundamental right, together with the benefits that the Challenged Provisions are likely to confer, the Court determines that the Supplemental Complaint Plaintiffs are likely to prevail on the merits of their substantive due process claim.
This finding is consistent with the Supreme Court’s decision in Jacobson v. Massachusetts, 197 U.S. 11 (1905), in which the Court upheld the authority of Massachusetts to enforce a compulsory vaccination law during a smallpox outbreak in Cambridge, Massachusetts. While the Jacobson Court acknowledged that “the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety,” it also cautioned that:
if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution. Id. at 25, 31. The Jacobson Court further explained that:
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the police power of a state, whether exercised directly by the legislature, or by a local body acting under its authority, may be exerted in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression. Id. at 38. For the reasons discussed above, the Court is justified in barring enforcement of the Challenged Provisions against LRFP on this temporary basis given the record evidence before it. The Court notes that four other federal district courts have found that such a pre-viability ban on abortion premised upon COVID-19 concerns is unconstitutional. See S. Wind Women’s Ctr. LLC v. Stitt, No. CIV-20-277-G, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020), appeal docketed, No. 20-6045 (10th Cir. Apr. 7, 2020); Robinson, 2020 WL 1520243 (M.D. Ala. Mar. 30, 2020), stay granted, order amended, 2020 WL 1659700 (M.D. Ala. Apr. 3, 2020); Pre-term Cleveland v. Attorney Gen. of Ohio, No. 1:19-cv-00360 (S.D. Ohio Mar. 30, 2020), stay denied and appealed dismissed, No. 20-3365 (6th Cir. Apr. 6, 2020); Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323-LY, 2020 WL 1502102, (W.D. Tex. Mar. 30, 2020), temporary stay entered sub nom., In re Abbott, No. 20-50264, 2020 WL 1685929 (5th Cir. Apr. 7, 2020), vacated, No. A-20-CV-323-LY, 2020 WL 1808897 (W.D. Tex. Apr. 8, 2020), The Court acknowledges that a divided panel of the Fifth Circuit dissolved the partial stay issued by the Western District of Texas, reasoning that the abortion provider had not shown a substantial likelihood of success on its claim that Texas Governor Greg Abbott’s Executive Order postponing non-essential surgeries and procedures until 11:59 p.m. on April 21, 2020, is unlawful. See In re Abbott, 2020 WL 1685929. That the Challenged Provisions are of an indefinite duration readily distinguishes this case from In re Abbott. Having determined that the Supplemental Complaint Plaintiffs are likely to prevail on the merits of their substantive due process claim, the Court does not consider at this stage the
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Supplemental Complaint Plaintiffs’ likelihood of success on their equal protection or void-forvagueness claims.
3. Irreparable Harm “Irreparable harm occurs when a party has no adequate remedy at law, typically because its injuries cannot be fully compensated through an award of damages.” Gen. Motors Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 319 (8th Cir. 2009). “To succeed in demonstrating a threat of irreparable harm, ‘a party must show that the harm is certain and great and of such imminence that there is a clear and present need for equitable relief.’” Roudachevski v. All-Am. Care Centers, Inc., 648 F.3d 701, 706 (8th Cir. 2011) (quoting Iowa Utilities Bd. v. F.C.C., 109 F.3d 418, 425 (8th Cir. 1996)). It is well-established that the loss of constitutional rights, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (citing New York Times Co. v. United States, 403 U.S. 713 (1971)); see also M.B. v. Corsi, No. 2:17-CV-04102-NKL, 2018 WL 5504178, at *5 (W.D. Mo. Oct. 29, 2018) (“A threat to a constitutional right is generally presumed to constitute irreparable harm.”). Here, “[LRFP’s] showing that the [Challenged Provisions] interfered with the exercise of its constitutional rights and the rights of its patients supports a finding of irreparable injury.” Planned Parenthood of Minn., Inc. v. Citizens for Cmty. Action, 558 F.2d 861, 867 (8th Cir. 1977). The limited record supports the Supplemental Complaint Plaintiffs’ allegation that enforcement of the Challenged Provisions against LRFP will inflict serious physical, emotional, and psychological injuries on LRFP’s patients by forcing them to delay, or altogether forgo, access to abortion care. “[T]he abortion decision is one that simply cannot be postponed, or it will be made by default with far-reaching consequences.” Bellotti v. Baird, 443 U.S. 622, 643 (1979). A disruption or denial of LRFP’s patients’ abortion care cannot be undone after a trial on the merits. Therefore, the Court
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finds, on the limited record before it, that the Supplemental Plaintiffs will suffer irreparable harm without preliminary injunctive relief.
4. Balance Of The Equities And The Public Interest The determination of where the public interest lies is dependent on the determination of the likelihood of success on the merits of the Fourteenth Amendment challenge “because it is always in the public interest to protect constitutional rights.” Phelps-Roper v. Nixon, 509 F.3d 480, 485 (8th Cir. 2007), modified on reh’g, 545 F.3d 685 (8th Cir. 2008); see also Am. Civil Liberties Union Fund of Mich. v. Livingston Cty., 796 F.3d 636, 649 (6th Cir. 2015) (“[W]hen a constitutional violation is likely . . . the public interest militates in favor of injunctive relief because it is always in the public interest to prevent violation of a party’s constitutional rights.” (second alteration in original) (quoting Miller v. City of Cincinnati, 622 F.3d 524, 540 (6th Cir. 2010)))). Here, because the Court has already determined that, at least on the limited record before it, the Supplemental Complaint Plaintiffs have shown a substantial likelihood that the Challenged Provisions barring all surgical abortions, “except where immediately necessary to protect the life or health of the patient,” are unconstitutional, no substantial harm to others can be said to inhere in its enjoinment. Accordingly, at this stage of the proceedings, the Court finds that any potential harm to defendants resulting from the denial of the motion for an ex parte temporary restraining order is outweighed by the threat of irreparable harm to the Supplemental Complaint Plaintiffs and the public interest.
5. Security Under Federal Rule of Civil Procedure 65(c), a district court may issue a temporary restraining order “if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or
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restrained.” Because the Supplemental Complaint Plaintiffs are “serving a public interest in acting to protect constitutional rights related to abortion,” and because defendants “will not be harmed by the order to preserve the status quo,” the Court waives the bond requirement under Rule 65(c). Jegley, 267 F. Supp. 3d at 1111 (E.D. Ark. 2017).
6. Nature Of Ex Parte Relief Pursuant to Federal Rule of Civil Procedure 65(b)(1), the Court issues this ex parte temporary restraining order until all parties can be heard on the merits within the time permitted by Rule 65(b). Counsel for the Supplemental Complaint Plaintiffs certified in writing the efforts made to give notice to defendants and their counsel in this case before filing this motion and explained the reasons why notice should not be required (Dkt. No. 134-18). Further, in making the determination to grant this relief, the Court reviewed and relies upon the affidavits presented by the Supplemental Complaint Plaintiffs in this matter (Dkt. Nos. 134-2; 134-3) and the proposed verified supplemental complaint (Dkt. No. 132-1), which, along with the record evidence, the Court concludes clearly show that immediate and irreparable loss or damage will result to the Supplement Complaint Plaintiffs before defendants can be heard in opposition. The Supplemental Complaint Plaintiffs turned away numerous women seeking care at LRFP on April 10, 2020, and would have to do the same each day thereafter for an indefinite period of time due to the Challenged Provisions. Based on record evidence, there were 8 patients at LRFP to receive surgical abortion care on April 10, 2020, who LRFP had to turn away due to the Challenged Provisions, including a patient at 17 weeks LMP (Id., ¶ 34). The Supplemental Complaint Plaintiffs present record evidence that, during the week of April 14, 2020, LRFP has 26 patients scheduled to receive surgical abortion care, including: (1) 12 patients who are more than 10 weeks LMP (i.e., patients who are not candidates for a medication abortion); (2) 8 patients who are more
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than 12 weeks LMP and will soon require a D&E instead of an aspiration abortion to terminate their pregnancies if their abortions are delayed; and (3) 3 patients who are more than 17 weeks LMP and will soon require a 2-day procedure instead of a 1-day procedure and very soon will be past Arkansas’s legal limit for abortion care (Id., ¶ 46).
IV. Conclusion For the foregoing reasons, the Court provisionally grants the Supplemental Complaint Plaintiffs’ motion for expedited leave to file a supplemental complaint (Dkt. No. 132) and directs the Supplemental Complaint Plaintiffs to file their proposed first supplemental complaint for injunctive and declaratory relief, attached as Exhibit 1 to their motion for expedited leave to file a supplemental complaint, within seven days from the entry of this Order. Additionally, the Court provisionally grants the Supplemental Complaint Plaintiffs’ motion for an ex parte temporary restraining order and has under advisement the request for a preliminary injunction (Dkt. No. 134). The Court hereby orders that defendants, and all those acting in concert with them, including their employees, agents, and successors in office, are temporarily enjoined from enforcing the Challenged Provisions against any providers of surgical abortions in Arkansas to bar all surgical abortions, “except where immediately necessary to protect the life or health of the patient.” Further, defendants are enjoined from failing to notify immediately all state officials responsible for enforcing the requirements of the Challenged Provisions about the existence and requirements of this temporary restraining order. Pursuant to Federal Rule of Civil Procedure 65(b)(2), this temporary restraining order shall not exceed 14 days from the date of entry of this Order and shall expire by its own terms on Tuesday, April 28, 2020, at 3:30 p.m. CT, unless before that time, for good cause shown and for reasons entered in the record, the Court extends it for a
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Case 4:19-cv-00449-KGB Document 141 Filed 04/14/20 Page 22 of 22 like period or defendants consent to a longer extension, the Court modifies it, or the Court dissolves it.
The Court will reconsider these matters upon the submission of defendants’ written arguments.
It is so ordered this Tuesday, April 14, 2020, at 3:30 p.m. CT. _________________________________ Kristine G. Baker United States District Judge
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 Case 4:19-cv-00449-KGB Document 142 Filed 04/14/20 Page 1 of 46

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES and THOMAS TVEDTEN, M.D., on behalf of themselves and their patients,

Plaintiffs,

v.

LESLIE RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas; LARRY JEGLEY, in his official capacity as Prosecuting Attorney of Pulaski County; MATT DURRETT, in his official capacity as Prosecuting Attorney of Washington County; SYLVIA D. SIMON, M.D., in her official capacity as Chairman of Arkansas State Medical Board; ROBERT BREVING JR., M.D., VERYL D. HODGES, D.O., JOHN H. SCRIBNER, M.D., OMAR T. ATIQ, M.D., RHYS L. BRANMAN, M.D., RODNEY GRIFFIN, M.D., MRS. MARIE HOLDER, BRIAN T. HYATT, M.D., MR. LARRY D. “BUDDY” LOVELL, TIMOTHY C. PADEN, M.D., DON R. PHILLIPS, M.D., WILLIAM L. RUTLEDGE, M.D., and DAVID L. STAGGS, M.D., in their official capacities as officers and members of the Arkansas State Medical Board, and NATHANIEL SMITH, M.D., M.P.H., in his official capacity as Director and State Health Officer of the Arkansas Department of Health,

CIVIL ACTION
Case No. 4:19-cv-00449-KGB
FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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Pursuant to Federal Procedure Rule 15(d), Plaintiffs Little Rock Family Planning Services (“LRFP”) and Dr. Thomas Tvedten (together, the “Supplemental Complaint Plaintiffs”) bring this First Supplemental Complaint, which alleges facts occurring after the original complaint (Dkt. 1) was filed and makes claims against the above-named Defendants that could not have previously been pleaded.
INTRODUCTION 1. The Supplemental Complaint Plaintiffs incorporate by reference the allegations contained in paragraphs 11 through 21 and 37 through 61 of the Complaint, Dkt. 1. 2. Governor Asa Hutchinson has decided to not order Arkansas citizens to stay home during the COVID-19 pandemic. Many retailers remain open for business. According to the Governor, many hospitals are “empty,” and there is no shortage of the medical professionals on whom we all gratefully depend to fight COVID-19 on the frontlines. Manufacturing and places of worship remain open, and medical providers around the State are free to exercise their independent professional judgment to provide patients with all surgical and dental care that they determine cannot be safely postponed. Indeed, orthodontists in Arkansas remain free to schedule visits to adjust wires on patients’ braces, and dentists continue to see patients who complain of a cracked tooth. 3. Nevertheless—and unsurprisingly—the State opportunistically seeks to leverage the instant public-health crisis to continue its unrelenting campaign––which included no fewer than 12 abortion-specific restrictions in 2019 alone, see Dkt. 1––to prevent women from exercising their constitutionally protected right to access pre-viability abortion care in Arkansas. See Roe v. Wade, 410 U.S. 113, 163–65 (1973). This time, Arkansas seeks to eliminate patients’ right to access surgical-abortion care, i.e., the only type of care available to women who are more

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than 10 weeks pregnant, as measured from the date of their last menstrual period (“LMP”) (the “COVID-19 Abortion Ban” or the “Ban”). On the morning of Friday, April 10, the Arkansas Health Department (“ADH”) arrived at the clinic of Plaintiff Little Rock Family Planning Services (“LRFP”) to demand that clinicians cease providing surgical-abortion care to numerous women who had already assumed the substantial burdens of making an initial trip to the clinic days before to receive the State’s mandated (in-person) “informed-consent” information.
4. Unless this Court grants the Supplemental Complaint Plaintiffs the relief they seek, the COVID-19 Abortion Ban will require the Supplemental Complaint Plaintiffs to continue turning away women seeking time-sensitive and urgent abortion care, including more than 20 scheduled for care this week who are not candidates for a medication abortion. As a result, many women will be forced to delay their access to abortion (thereby––needlessly–– increasing the risk to their health and well-being). In particular, some will be pushed to a more complex and lengthier procedure; others whose pregnancies progress to 18 weeks LMP will be forced to make an additional trip to the clinic (assuming the clinic can see them when it reopens); and still others will be pushed past the point in pregnancy where abortion is legal in Arkansas (21.6 weeks LMP). Some of the women who are barred from obtaining care under the COVID-19 Abortion Ban may try to travel in the middle of a pandemic to the next-nearest clinic currently providing surgical abortions, which for many women will be in Granite City, Illinois— a 700-mile roundtrip drive from Little Rock into a State reporting far higher numbers of COVID19 infections. This travel will not only impose enormous logistical and financial burdens, but also increase patients’ risk of exposure to COVID-19 and the risk of infection for other Arkansas residents upon their return. But many of LFRP’s patients—a substantial portion of which are
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poor or low-income––will be unable to make this journey, and will be forced to carry to term and have a child against their will.
5. Accordingly, to protect themselves and their patients from these constitutional violations and to avoid irreparable harm, Plaintiffs seek declaratory and injunctive relief to prevent enforcement of the COVID-19 Abortion Ban.
SUPPLEMENTAL FACTUAL ALLEGATIONS Abortion In Arkansas
6. Patients seek abortion for a wide range of personal and complex reasons. Most people who have abortions already have at least one child, and many have decided they cannot parent another at this stage of their lives. Some patients have abortions because they conclude that it is not the right time to become a parent, they wish to pursue their education or career, or they lack the desired financial resources or level of partner or familial support or stability. Other patients seek abortions because existing medical conditions put them at greater-than-average risk of medical complications, because they are in abusive relationships, or because they are pregnant as a result of rape or sexual assault.
7. Abortions are typically provided in Arkansas using one of two methods: medication abortion or surgical abortion. Consistent with Arkansas law, LRFP provides (i) medication abortion up to ten weeks (seventy days) LMP, and (ii) surgical abortion up to twentyone weeks and six days LMP. Both methods are a safe and effective means of terminating a pregnancy, although some patients have medical or other circumstances that make surgical abortion more appropriate for them.
8. Medication abortion involves taking a combination of two pills, mifepristone and misoprostol, after which the patient expels the contents of the pregnancy in a manner similar to a miscarriage. Not all patients, even those who go to LRFP before 10 weeks LMP, are eligible for
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medication abortion. For some patients, like those with anemia, medication abortion is contraindicated. In fact, a variety of medical conditions can push women toward surgical abortion rather than medication abortion.
9. Despite its name, “surgical” abortion involves no incision or general anesthesia. There are two types of surgical abortion. The first is aspiration abortion, in which gentle suction is used to safely empty the contents of the uterus. The procedure usually takes approximately 5 to 10 minutes. Beginning at approximately 14 weeks LMP, abortions generally require a stillvery-safe but more-complex procedure known as dilation and evacuation, or “D&E” abortion, which requires more procedure and recovery time than the aspiration procedure. Most D&Es are one-day procedures, but as pregnancy progresses past 18 weeks, it becomes a two-day procedure because patients must come into LRFP the day before the procedure to begin the process of dilating their cervix. A D&E requires more skill and time, and the cost of abortion care increases with the progression of a pregnancy.
10. In 2019, LRFP provided approximately 1,950 abortions. Of those, approximately 225 were medication abortions and 1,727 were surgical abortions. From January through March 2020, LRFP provided 526 abortions, of which 478 were surgical procedures.
11. As this Court recently found, abortion in Arkansas (and in the nation as a whole) “is one of the safest medical procedures available.” Little Rock Family Planning, 397 F. Supp. 3d at 1279. In particular, major complications—defined as complications requiring hospital admission, surgery, or blood transfusion—occur in less than one-quarter of one percent (0.23%) of all abortion cases. Moreover, as this Court found, “legal abortion is significantly safer for a woman than carrying a pregnancy to term and giving birth.” Id.
12. In the rare instances when complications from abortion do occur, they can usually
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be managed in an outpatient-clinic setting, either at the time of the procedure or during a followup visit.
13. Surgical abortion requires minimal personal protective equipment (“PPE”). For the State-mandated ultrasound before every abortion, LRFP uses only non-sterile gloves. For surgical abortions, the physician uses sterile gloves (one pair per procedure) and a surgical mask (worn throughout the day); the assistant uses only a surgical mask (also worn throughout the day) and gloves. When necessary, LRFP uses reusable gowns and eyewear.
14. Although abortion is a very safe procedure, the associated health risks increase as pregnancy progresses. Delay may worsen any maternal health conditions that predate the pregnancy or result from the pregnancy. Delay can likewise push a patient from an aspiration abortion to a more complex and longer D&E or from a one-day procedure to a two-day procedure. And delay can push a patient beyond the point at which abortion is available in the State (i.e., 21.6 weeks LMP), thereby giving rise to a risk that she will attempt to terminate her pregnancy outside the medical system or be forced to carry to term against her will.
15. LRFP’s patients generally seek abortion as soon as they are able, but many face logistical obstacles that can delay access to abortion care. Some patients may not discover they are pregnant until later in their pregnancies, while others may experience difficulties navigating the medical system, including finding a provider and scheduling an appointment. Many of LRFP’s patients are struggling financially, and patients need to gather the resources to pay for the procedure and related costs. They must also figure out transportation to the clinic, arrange for time off work (which is often unpaid, because many patients lack paid time off or sick leave), and, for many of those patients who are mothers already, arrange childcare. Arkansas’s existing legal restrictions increase the challenges facing women who seek care in the State, too. For
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example, Arkansas law mandates that all patients visit the clinic in-person at least 72 hours before their abortion to receive State-mandated information. See Ark. Code § 20-16-1703.
LRFP’s Initial Response to COVID-19 16. On March 11, 2020, Governor Asa Hutchinson issued Executive Order 20-03, declaring a state of emergency in Arkansas due to the outbreak of the COVID-19 virus. Ten days later, on March 21, 2020, ADH issued a public statement (the “March 21 Guidance”) recommending that health care facilities and clinicians “prioritize urgent and emergency visits and procedures now and for the coming several weeks.”1 The letter’s stated goals were to “preserve staff, personal protective equipment (PPE), and patient care supplies; ensure staff and patient safety; and expand available hospital capacity during the COVID-19 pandemic.” The ADH stated that “[p]rocedures … that can be safely postponed shall be rescheduled to an appropriate future date.” The ADH’s guidance also provided specific exemptions for “small rural hospitals under 60 beds,” and clarified that procedures should proceed if there is risk of “progression of staging of a disease or condition if surgery is not performed.” The ADH reiterated this guidance in another letter issued on March 30, 2020. 17. In the meantime, beginning in mid-March, LRFP began to implement measures to protect its patients and staff. LRFP determined that it would cease providing basic gynecological care—i.e., pap smears, STD testing, and contraceptive counseling and services—and that, where possible and permitted by law, prescriptions would be administered over the phone. LRFP also began performing enhanced telephonic and in-person screening of patients for COVID-19 symptoms, and staggering patient appointment times to reduce the number of patients at the facility at any given time, minimizing possibilities for exposure.
1 Ex. A.
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18. LRFP expanded on and formalized these precautions in its April 2, 2010 COVID-19 Response Protocol (the “LRFP Protocol”). That protocol sets forth detailed information about (1) postponement of LRFP services for which delay would not risk harm to the patient (i.e., certain gynecological care); (2) screening patients for symptoms of infection, both telephonically and on site; (3) staggering appointment times in order to minimize in-person contact and shorten the time patients spend in the clinic; (4) spacing individuals at least 6 feet apart in waiting areas to comply with the State’s and CDC’s “social distancing” guidelines; (5) limiting visitors and support people by requiring that they sit in cars or return home until patients are ready to be picked up; (6) performing temperature checks on all individuals entering the building (including staff); and (7) enhancing infection control protocols with frequent clinic sanitization and education of patient etiquette.
19. Given these changes, no more than 6 to 8 patients are in LRFP’s waiting room at any given time, and once patients are checked in for care, they are in individual treatment rooms except for the time they spend in recovery, during which they are at least 6 feet apart.
20. The LRFP Protocol also states that “LRFP is aware of the PPE shortage our healthcare system is currently facing,” and “is committed to using only the PPE that is necessary to protect [its] patients and staff.”
21. LRFP is self-sustaining in terms of PPE for the next several months, and has not availed itself of any PPE offered by the State’s medical society.
22. LRFP has no intention of utilizing any State PPE stockpiles or resources, and is prepared to switch to cloth/reusable masks should it become necessary.
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23. At LRFP, the use of N-95 masks, the PPE that appears to be in shortest supply in battling the COVID-19 pandemic, is limited to two staff members who self-sourced their masks and have underlying conditions or live with someone who does.
24. Likewise, because all LRFP’s procedures are performed in its own outpatient facility, LRFP is not using any hospital resources that may be needed for COVID-19 response—no hospital staff or supplies, no hospital beds (let alone ICU beds), and no ventilators.
25. LRFP is strictly adhering to its Protocol. Continued State Action Against LRFP And Its Patients
26. On April 1, 2020, representatives from the ADH twice called LRFP to inquire about what the clinic was doing to reduce non-essential services, preserve PPE, and protect against the spread of COVID-19. On both occasions, LRFP summarized the practices outlined in the LRFP Protocol discussed above. At no point during either conversation did the ADH representatives suggest that LRFP was not complying with the State’s elective-surgery guidance.
27. On April 3, 2020, the ADH issued a Directive reiterating the goals and instructions from the ADH’s March 21 Guidance (the “April 3 Directive”).2 The April 3 Directive, like the March 21 Guidance before it, was not intended to stop the provision of medical care in the State; rather, it again stated that only “[p]rocedures . . . that can be safely postponed shall be rescheduled to a future date.” It further stated that “urgent” care and “care designated as an exception . . . will continue,” with the latter “exception” category including situations in which “there is a risk of . . . progression of staging of a . . . condition if surgery is not performed.”
2 Ex. B.
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28. When Governor Hutchinson was asked about the April 3 Directive during an April 6, 2020 press conference, Defendant State Health Director Dr. Nathaniel Smith explained that it is “not intended to replace a physician’s judgment,” and reiterated that the April 3 Directive encompasses only procedures that can “be safely deferred.”3 At no point during the conference did the Governor or Dr. Smith suggest that surgical abortion is not permissible under the April 3 Directive.
29. On April 4, 2020, Governor Hutchinson issued Executive Order 20-13, declaring “the entire state an emergency disaster area,” and prohibited “gatherings of more than ten (10) people in any confined indoor or outdoor space . . . until further notice.”4 The Governor declined, however, to issue a stay-home order to all Arkansas residents, and continued to permit “gatherings of ten (10) or more people in . . . parks, trails, athletic fields and courts, parking lots, golf courses, and driving ranges where social distancing of at least six (6) feet can be easily maintained.” The Order also does “not apply to businesses, manufacturers, construction companies, places of worship, the Arkansas General Assembly, municipal or county governing bodies, or the judiciary,” though those entities were also advised to maintain appropriate socialdistancing practices. Finally, the Order stated that “pursuant to Ark. Code Ann. § 20-7-101, violation of a directive from the Secretary of Health during this public health emergency is a misdemeanor offense, and upon conviction thereof is punishable by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) or by imprisonment not exceeding one (1) month, or both.”
3 Channel for Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19 Update, YouTube (Apr. 6, 2020), https://www.youtube.com/watch?v=KS2Kb4V8U3I. 4 Ex. C.
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30. Protestors appear at LRFP nearly every day that it provides abortion care. Between April 4 and 10, however, the harassment and intimidation from on-site protestors––who recklessly fail to exercise proper social distancing––significantly increased. They summoned police to the clinic twice. Since the start of COVID-19 concerns, social-media complaints against the clinic have likewise increased, including some specifically requesting action by the Governor and state legislators to stop the provision of abortion care. For example, on March 29, 2020, state senator Trent Garner announced in a tweet that he had “asked the Governor to [ban abortions] in Arkansas …. We shouldn’t expose women to the risk of the Wuhan COVID-19 virus for an unnecessary elective procedure, and we could save the unborn babies.”5
31. On April 7, ADH inspectors performed an unannounced in-person inspection at LRFP. At no point during the inspection, which occurred on a day during which both surgical and medication abortions were provided, did the ADH representatives suggest that LRFP was not complying with the State’s April 3 Directive.
32. On April 8, 2020, the Governor gave an interview to PBS during which he discussed Arkansas’s “targeted” approach to managing risks relating to COVID-19.6 When asked whether he thinks “that by not requiring or ordering people to stay home, unless they have to be out, is not putting other people at risk,” the Governor responded “No.” He elaborated that “as long as they do what they’re supposed to do, which is social distance, wear a mask when you’re out, this accomplishes the purpose.” The Governor further said that currently in the State, there are “a lot of hospitals that are empty right now and health care workers that are empty,” presumably meaning that they are available to provide care.
5 Ex. D. 6 Ex. E (available at https://www.pbs.org/newshour/show/arkansas-gov-asa-hutchinson-on-whyhe-hasnt-issued-a-stay-at-home-order.).
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33. On April 9, the Governor and Dr. Smith were asked at a press conference if “elective surgery” is still permitted in the State, and Dr. Smith responded that judgments at surgical centers would be left primarily to the providers.7 At no point during the conference did the Governor or Dr. Smith suggest that surgical abortion care is not permissible under the April 3 Directive.
34. Then, on the morning of April 10, ADH inspectors hand delivered a cease-anddesist order to LRFP (the “C&D Order”).8 It acknowledged that the April 7 inspection “did not reveal any deficiencies with respect to the rules for abortion facilities in Arkansas,” but asserted that LRFP was “in violation of the April 3, 2020 Arkansas Department of Health Directive on Elective Surgeries.” The C&D Order stated that the April 3 Directive “mandates the postponement of all procedures that are not immediately medically necessary during the COVID19 emergency,” and thus, according to ADH, the “prohibition applies to surgical abortions that are not immediately necessary to protect the life or health of the patient.” The C&D Order ordered LRFP to “immediately cease and desist the performance of surgical abortions, except where immediately necessary to protect the life or health of the patient.” The C&D Order also stated that “[a]ny further violations of the April 3 Directive will result in an immediate suspension of [LRFP’s] license.” On April 10, LRFP was scheduled to provide surgical-abortion care to 8 patients whom LRFP had to turn away, including one patient at 17 weeks LMP.
35. Later on April 10, the Governor and Dr. Smith held a press conference regarding COVID-19. Consistent with Governor Hutchinson’s decision that same week to close Arkansas’s public schools for the remainder of the school year, Dr. Smith admitted that he
7 Channel for Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19 Update, YouTube (Apr. 9, 2020), https://www.youtube.com/watch?v=Kg-qMqmycAM. 8 Ex. F.
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“can’t say with certainty” how long the C&D Order against LRFP will be in place.9 When a reporter pressed a question regarding whether the C&D Order means that “some of [the women who would otherwise visit LRFP] are going to have a baby,” the Governor deflected and avoided the critical inquiry by instead asking, “[i]s there a remote [i.e., telephonic] question”?
36. Meanwhile, a range of medical services continue at facilities around the State. To take just one example, the ADH has expressly permitted orthodontists to continue seeing patients to adjust their orthodontic wires and appliances, and dentists may treat patients whom complain of a cracked tooth.10 And Arkansas has relaxed telemedicine rules for every medical treatment except abortion––indeed, even the pre-abortion-care, state-mandated informed-consent process must still occur in-person.
Medical Experts Have Determined That Abortion Care Remains Critical And TimeSensitive, Even During The COVID-19 Pandemic
37. The continued provision of abortion care, alongside measures to protect patients and the public, is consistent with recommendations from leading medical organizations.
a. The American College of Obstetricians and Gynecologists (“ACOG”), the American Board of Obstetrics & Gynecology, the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine issued a joint statement on “Abortion Access During the COVID-19 Outbreak,” which provides that “[t]o the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such 9 Channel for Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19 Update, YouTube (Apr. 10, 2020), https://www.youtube.com/watch?v=X2v1SIesdyc. 10 Ex. G.
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a procedure” because it “is an essential component of comprehensive health care” and “a timesensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”11
b. The Ambulatory Surgery Center Association’s “COVID-19: Guidance for ASCs for Necessary Surgery” concurs with the American College of Surgeons’ recommendation that consideration of whether delay of a surgery during the pandemic is appropriate must account for risk to the patient of delay, “including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”12
c. The American Medical Association (“AMA”)—the country’s largest medical organization and one of its foremost authorities on medical and public health matters—concurs with this conclusion. The AMA’s March 30, 2020 Statement on Government Interference in Reproductive Health Care disapproves of efforts “to ban or dramatically limit women’s reproductive health care” during the COVID-19 outbreak by “labeling procedures as ‘nonurgent.’”13
d. On April 4, 2020, the World Health Organization (“WHO”) issued a similar statement concluding that “[a]bortion is considered an essential service during the coronavirus pandemic” and that “services related to reproductive health are considered to be part of essential services during the COVID-19 outbreak.”14
11 Ex. H (available at https://www.acog.org/news/news-releases/2020/03/joint-statement-onabortion-access-during-the-covid-19-outbreak.). 12 Ex. I (available at https://www.ascassociation.org/asca/resourcecenter/ latestnewsresourcecenter/covid-19/covid-19-guidance.). 13 Ex. J (available at https://www.ama-assn.org/press-center/ama-statements/ama-statementgovernment-interference-reproductive-health-care.). 14 Ex. K (a summary of the WHO’s statement is accessible at https://dailycaller.com /2020/04/04/who-abortion-essential-coronavirus-covid-19/.).
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Forcing Women To Continue Their Pregnancies Amid COVID-19 Is Harming Patients And Arkansas’s Health Care System
38. The COVID-19 pandemic has exacerbated the already-significant obstacles that women seeking abortion care in Arkansas face. Many women are unable to seek care at LRFP before 10 weeks LMP or have disqualifying medical conditions that make them ineligible to obtain a medication abortion.
39. Unless the Court enjoins the COVID-19 Abortion Ban, all these women will, at best, unnecessarily face the risks of continued pregnancy, and––assuming they are ultimately able to access abortion care––the increased and wholly unnecessary risks associated with delayed abortion care. Some will be pushed to the more complex and lengthier procedure necessary after approximately 13 weeks LMP; others whose pregnancies are pushed past 18 weeks LMP will be required to make an additional visit to the clinic to obtain the care they need. All that assumes, however, that these women will be able to obtain care at LRFP when the COVID-19 Abortion Ban is lifted; LRFP has limited staff and capacity, and likely will not be able to treat all the women who would need near-term care after waiting and being delayed for weeks––if not months. And given that the public-health crisis is expected to last weeks if not months, many others will be pushed past the point at which they can obtain an abortion in Arkansas at all.
40. Those women will have no good options: The next-nearest clinic providing surgical abortions is in Shreveport, Alabama (a more than 600-mile roundtrip drive from Fayetteville, Arkansas), but that clinic provides care only up to 16.6 weeks LMP and is subject to continuing threats of closure. Many women will thus be forced to travel to Granite City, Illinois, which is not only a more-than-700-mile roundtrip drive from Little Rock, but it is—like the Shreveport clinic—in a state with a far higher incidence of COVID-19. (Illinois has reported 17,887 cases of COVID-19 and 596 deaths, whereas Arkansas has 1,171 reported cases and 23
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deaths). And there is no guarantee that the clinic in Granite City will have the capacity to treat women who would have otherwise obtained care in Arkansas.
41. Even if women obtain treatment outside Arkansas, they do so only at a heightened risk of contracting COVID-19 and carrying it back to this State.
42. Many of LFRP’s patients will not even be able to make the trip and will instead be forced to carry to term against their will or seek to terminate their pregnancy outside the medical system.
43. Every day that a woman remains pregnant against her will, she not only experiences the emotional and physical consequences detailed above, but also risks contracting the COVID-19 virus, thereby further jeopardizing her ability to visit a clinic and receive timesensitive care. In addition, the longer a woman remains pregnant—and especially if forced to carry a pregnancy to term—the heavier burden she places on the health care system, the more interactions she must have with a variety of clinicians and staff, and the much greater use of PPE her care requires. There is a 15 to 20 percent risk of miscarriage present in every pregnancy. Complications from miscarriage include infection, hemorrhage, and even death. In about half of miscarriages, women will seek medical attention. Even an uncomplicated pregnancy typically requires a minimum of one prenatal appointment per month, along with additional appointments to complete laboratory tests and ultrasounds. And for a complicated or high-risk pregnancy, the number of visits frequently doubles. Moreover, pregnant women commonly experience shortness of breath, vomiting, and other symptoms that are also common symptoms of COVID19; appropriate medical care for pregnant patients during the COVID-19 pandemic is therefore even more complicated, and will frequently lead to the isolation and hospitalization––with PPE use––of pregnant patients who could have the infection.
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44. Virtually all births in Arkansas occur in hospitals, and pregnant patients typically present at a hospital one or more times prior to actual delivery. An uncomplicated birth is attended by at least four clinicians, over a considerable labor period, with significant use of PPE. A complicated birth involves 6-7 providers with even more PPE. One-third of pregnancies result in caesarean section, a major abdominal surgery. And after giving birth, patients remain in the hospital for multiple days. Throughout labor, delivery, and recovery, patients are having repeated close contact with large numbers of people in the hospital and taking up hospital beds. Even with this extensive health care before and during delivery, Arkansas has one of the highest rates of maternal mortality in the country.
45. Banning surgical abortion is thus flatly contradictory to Arkansas’s stated objectives in issuing ADH’s elective-surgery guidance: Banning abortion does not preserve PPE, but rather increases the overall need for it. And it does not reduce, but rather exacerbates, the burden on the healthcare system. That Arkansas has continued to allow a variety of nonessential activities to continue during the pandemic—including significant retail activity, leisure time on golf courses and driving ranges, and small-group fairs and festivals––while banning all surgical abortion under the pretext that abortion is a non-essential service reveals the COVID-19 Abortion Ban for what it is: part of the State’s long-running campaign to severely restrict or outright eliminate women’s ability to access constitutionally-guaranteed health care.
46. Beginning tomorrow, April 14, LRFP has 26 patients scheduled to receive surgical abortion care this week, including: (i) 12 who are more than 10 weeks LMP (i.e., patients who are not candidates for a medication abortion); (ii) 8 who are more than 12 weeks LMP, and will soon require a D&E instead of an aspiration abortion to terminate their pregnancy if their abortion is delayed; and (iii) 3 who are more than 17 weeks LMP, and will soon require a
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two-day procedure instead of a one-day procedure, and in short order be past Arkansas’s legal limit for abortion care.
47. Absent an injunction from this Court, Defendants will seek injunctive relief against the Supplemental Complaint Plaintiffs to prohibit their provision of any surgical abortion care during the COVID-19 state of emergency. Absent an injunction from this Court, Defendants may also seek to hold the Supplemental Complaint Plaintiffs civilly or criminally liable for their provision of surgical abortion care to patients during the COVID-19 state of emergency. Absent an injunction from this Court, Defendants may also seek to revoke or suspend Plaintiffs’ licenses.
SUPPLEMENTAL CLAIMS FOR RELIEF COUNT I
(Substantive Due Process) 48. The Supplemental Complaint Plaintiffs re-allege and incorporate by reference the allegations contained in paragraphs 1 through 47 of this First Supplemental Complaint and paragraphs 11 through 21 and 37 through 61 of the Complaint (Dkt. 1). 49. Because the COVID-19 Abortion Ban imposes a ban on abortion prior to viability—and poses significant burdens on women seeking abortion in Arkansas with minimal or no medical or safety benefit—the Ban violates the Supplemental Complaint Plaintiffs’ patients’ right to privacy guaranteed by the Fourteenth Amendment to the United States Constitution.
COUNT II (Equal Protection) 50. The Supplemental Complaint Plaintiffs re-allege and incorporate by reference the
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allegations contained in paragraphs 1 through 47 of this First Supplemental Complaint and paragraphs 11 through 21 and 37 through 61 of the Complaint (Dkt. 1).
51. The COVID-19 Abortion Ban violates Plaintiffs’ and their patients’ right to equal protection of the laws, guaranteed by the Fourteenth Amendment to the U.S. Constitution, by treating abortion providers and patients seeking abortion differently than other health care providers and patients, without adequate justification.
COUNT III (Unconstitutional Vagueness) 52. The Supplemental Complaint Plaintiffs re-allege and incorporate by reference the allegations contained in paragraphs 1 through 47 of this First Supplemental Complaint and paragraphs 11 through 21 and 37 through 61 of the Complaint (Dkt. 1). 53. The COVID-19 Abortion Ban is unconstitutionally vague because it fails to give fair notice of the conduct prohibited, in violation of the Due Process Clause of the Fourteen Amendment. It is impossible to determine what specific medical procedures the Arkansas Health Department’s April 3, 2020 Directive on Elective Surgeries prohibits clinicians from providing their patients. Because of the lack of precise standards to judge compliance, Defendants will be free to interpret these provisions in a discriminatory and inconsistent basis.
INJUNCTIVE RELIEF 54. If the COVID-19 Abortion Ban continues to be enforced, the Supplemental Complaint Plaintiffs and their patients will be subject to irreparable harm for which no adequate remedy at law exists. 55. Enforcement of the COVID-19 Abortion Ban will continue to cause irreparable harm by threatening the Supplemental Complaint Plaintiffs and their staff with substantial criminal
18

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penalties for providing abortion services and risk that their licenses will be suspended or revoked; and by substantially burdening––or preventing altogether––Plaintiffs’ patients’ access to abortion in Arkansas.
REQUEST FOR RELIEF WHEREFORE, the Supplemental Complaint Plaintiffs ask this Court: A. To immediately issue preliminary and permanent injunctive relief, restraining Defendants, their employees, agents, successors in office, and anyone acting in concert with them, from enforcing the COVID-19 Abortion Ban. B. To enter a judgment declaring that the COVID-19 Abortion Ban violates the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution; C. To enter a judgment declaring that the COVID-19 Abortion Ban violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution; D. To enter a judgment declaring that the COVID-19 Abortion Ban is unconstitutionally vague; and E. To grant such other and further relief as the Court deems just and proper.

Dated: April 13, 2020

Respectfully submitted,
Leah Godesky* Christopher Burke** Attorney for Plaintiffs O’Melveny and Myers LLP Times Square Tower 7 Times Square New York, New York 10036 lgodesky@omm.com Tel: (212) 326-2254 Fax: (212) 326-2061
Kendall Turner* Ashley Robertson**

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Case 4:19-cv-00449-KGB Document 142 Filed 04/14/20 Page 21 of 46

Meagan Burrows* Ruth E. Harlow** American Civil Liberties Union Foundation 125 Broad St, 18th Floor New York, NY 10001 mburrows@aclu.org tcamp@aclu.org (212) 549-2633
Attorneys for Plaintiffs
* Motion for admission pro hac vice granted ** Motion for admission pro hac vice pending

Maya Zagayer** Attorneys for Plaintiffs O’Melveny and Myers LLP 1625 Eye St. NW Washington, DC 20006 (202) 383-5300 kendallturner@omm.com
Attorneys for Plaintiffs
Bettina Brownstein (AR Bar No. 85019) Bettina E. Brownstein Law Firm 904 West 2nd Street, Suite 2 Little Rock, AR 72201 (501) 920-1764 – Telephone E-Mail: bettinabrownstein@gmail.com
Brooke-Augusta Ware (AR Bar No. 2004091) Mann & Kemp, PLLC 221 West Second Street, Suite 408 Little Rock, Arkansas 72201 brooke@mannkemp.com
(501) 222-7330
On Behalf of the Arkansas Civil Liberties Union Foundation, Inc.
Attorney for Plaintiffs

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EXHIBIT A

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March 21, 2020 In view of the uncertainty and increase in cases of COVID -19 there are increasing concerns of hospital beds availability as well as staff capabilities in hospitals statewide. For this reason, the Arkansas Department of Health is recommending that elective surgery be postponed statewide. The Centers for Disease Control and Prevention (CDC) recommends that healthcare facilities and clinicians should prioritize urgent and emergency visits and procedures now and for the coming several weeks. The following actions can preserve staff, personal protective equipment (PPE), and patient care supplies; ensure staff and patient safety; and expand available hospital capacity during the COVID-19 pandemic.
Procedures, testing, and office visits that can be safely postponed should be rescheduled to an appropriate future date. Routine dental and eyecare visits should be postponed. Emergent, urgent and time-sensitive care will continue.
Small rural hospitals under 60 beds and critical access hospitals, though strongly advised to follow this guidance to maximize resources, are excluded from this guidance.
Exceptions to this guidance should be made in the following circumstances:
If there is a threat to the patient's life if the procedure is not performed. If there is a threat of permanent dysfunction of an extremity or organ system if the surgery is not done. If there is a risk of metastasis or progression of staging of a disease or condition if surgery is not performed. If there is a risk that the patient's condition will rapidly deteriorate if surgery is not done, and there is a threat to life, or to an extremity or organ system, or of permanent dysfunction or disability.
https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/index.html

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EXHIBIT B

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April 3, 2020 ADH Directive on Elective Surgeries
The Secretary of Health, in consultation with the Governor, has sole authority over all instances of quarantine, isolation, and restrictions on commerce and travel throughout Arkansas, as necessary and appropriate to control disease in the state of Arkansas as authorized by Ark. Code Ann. §20-7-109--110. Based on available scientific evidence, it is necessary and appropriate to take further action to ensure that COVID-19 remains controlled and that residents and visitors in Arkansas remain safe. Throughout February and March of 2020, the Centers for Disease Control and Prevention (CDC) and the Arkansas Department of Health (ADH) recommended that healthcare facilities and clinicians prioritize urgent and emergency visits and procedures for the coming several weeks. Please see CDC Health Care Facilities Guidance and ADH Health Facilities Guidance. On March 30, 2020, a guidance letter was sent to all health facilities, including ambulatory surgery centers and abortion facilities. Please see ADH Guidance Letter. In view of the continued uncertainty and increase in cases of COVID-19, there are increasing concerns of staff and medical supplies capabilities in hospitals statewide. The following mandatory actions can preserve staff, personal protective equipment (PPE), and patient care supplies; ensure staff and patient safety; and expand available hospital capacity during the COVID-19 pandemic.
Procedures, testing, and office visits that can be safely postponed shall be rescheduled to an appropriate future date. Routine dental and eye care visits shall be postponed. Emergent, urgent and care designated as an exception below will continue. Small rural hospitals under 60 beds and critical access hospitals, though strongly advised to follow this directive to maximize resources, are excluded from this directive. Exceptions to this directive should be made in the following circumstances:
If there is a threat to If there is a threat of permanent dysfunction of an extremity or organ system if the surgery is not done. If there is a risk of metastasis or progression of staging of a disease or condition if surgery is not performed.
threat to life or an extremity or organ system or a threat of permanent dysfunction or disability.

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EXHIBIT C

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EXHIBIT D

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EXHIBIT F

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EXHIBIT G

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To: From: Date: Regarding:

Arkansas Dentists Dr. Nate Smith, Secretary of Health March 23, 2020 Directive to Dentists to suspend non-emergent dental care

The Secretary of Health, in consultation with the Governor, has sole authority over all instances of quarantine, isolation, and restrictions on commerce and travel throughout Arkansas, as necessary and appropriate to control disease in the state of Arkansas as authorized by Ark. Code Ann. §20-7-109 110. Based on available scientific evidence, it is necessary and appropriate to take further action to ensure that COVID-19 remains controlled and that residents and visitors in Arkansas remain safe.

The Secretary of Health, as of March 23, 2020, directs and mandates that all dental

practitioners follow the recommendation of the Arkansas State Board of Dental Examiners and

the American Dental Association that only urgent and emergent dental care take place, and

that non-emergent dental care be suspended until

. This directive and mandate

is subject to change as the COVID-19 pandemic progresses.

Urgent dental care treatments, which should be treated as minimally invasively as possible, include the following:

-molar pain.

uxation.
irritation.
Other emergency dental care includes extensive caries or defective restorations causing pain; suture removal; denture adjustments on radiation/oncology patients; denture adjustments or repairs when function impeded; replacing temporary filling on endo access openings in patients experiencing pain; and snipping or adjustments of an orthodontic wire or appliances piercing or ulcerating the oral mucosa.

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EXHIBIT H

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EXHIBIT I

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EXHIBIT J

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EXHIBIT K

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 Case 4:19-cv-00449-KGB Document 154 Filed 04/22/20 Page 1 of 1

THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES, et al.

PLAINTIFFS

v.

Case No. 4:19-cv-00449-KGB

LESLIE RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas, et al.

DEFENDANTS

ORDER

Pursuant to the Mandate issued by the United States Court of Appeals for the Eighth Circuit

on April 22, 2020, see In re Rutledge, No. 20-1791 (8th Cir. Apr. 22, 2020), this Court vacates the

portion of the Temporary Restraining Order issued on April 14, 2020, enjoining defendants from

“enforcing the Challenged Provisions against any providers of surgical abortions in Arkansas to

bar all surgical abortions, ‘except where immediately necessary to protect the life or health of the

patient.’” (Dkt. No. 141, at 21).

It is so ordered this 22nd day of April, 2020.

_________________________________ Kristine G. Baker United States District Judge

 
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United States Court of Appeals
For the Eighth Circuit ___________________________

No. 20-1791

4:19-cv-00449-KGB

___________________________

In re: Leslie Rutledge, in her official capacity as Attorney General of the State of Arkansas; Larry Jegley, in his official capacity as Prosecuting Attorney of Pulaski
County; Matt Durrett, in his official capacity as Prosecuting Attorney of Washington County; Sylvia D. Simon, M.D., in her official capacity as Chairman of Arkansas State Medical Board; Robert Breving, M.D., in his official capacity as
member of the Arkansas State Medical Board; Veryl D. Hodges, D.O., in his official capacity as member of the Arkansas State Medical Board; John H. Scribner, M.D., in his official capacity as member of the Arkansas State Medical Board; Omar Atiq, M.D., in his official capacity as member of the Arkansas State Medical Board; Rhys L. Branman, M.D., in his official capacity as member of the Arkansas State Medical Board; Rodney Griffin, M.D., in his official capacity as member of the Arkansas State Medical Board; Marie Holder, in her official capacity as member of the Arkansas State Medical Board; Brian T. Hyatt, M.D., in his official capacity as member of the Arkansas State Medical Board; Larry D. Lovell, "Buddy" in his official capacity as member of the Arkansas State Medical Board; Timothy C. Paden, M.D., in his official capacity as member of the Arkansas State Medical Board; Don R. Phillips, M.D., in his official capacity as member of the Arkansas State Medical Board; William L. Rutledge, M.D., in his official capacity as member of the Arkansas State Medical Board; David L. Staggs, M.D., in his official capacity as member of the Arkansas State Medical Board; Nathan Smith, M.D., M.P.H., in his official capacity as Director and State
Health Officer of the Arkansas Department of Health

lllllllllllllllllllllPetitioners

------------------------------

American Academy of Family Physicians

lllllllllllllllllllllAmicus Curiae

Appellate Case: 20-1791 Page: 1 Date Filed: 04/22/2020 Entry ID: 4905343

Case 4:19-cv-00449-KGB Document 155 Filed 04/22/20 Page 2 of 33
State of Alabama lllllllllllllllllllllAmicus on Behalf of Petitioner
American Academy of Nursing lllllllllllllllllllllAmicus Curiae
State of Alaska lllllllllllllllllllllAmicus on Behalf of Petitioner
American Academy of Pediatrics lllllllllllllllllllllAmicus Curiae State of Idaho
lllllllllllllllllllllAmicus on Behalf of Petitioner American College of Osteopathic Obstetricians and Gynecologists
lllllllllllllllllllllAmicus Curiae State of Indiana
lllllllllllllllllllllAmicus on Behalf of Petitioner American Psychiatric Association lllllllllllllllllllllAmicus Curiae State of Kentucky
lllllllllllllllllllllAmicus on Behalf of Petitioner
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American Society for Reproductive Medicine lllllllllllllllllllllAmicus Curiae State of Louisiana
lllllllllllllllllllllAmicus on Behalf of Petitioner North American Society for Pediatric and Adolescent Gynecology
lllllllllllllllllllllAmicus Curiae State of Mississippi
lllllllllllllllllllllAmicus on Behalf of Petitioner National Association of Nurse Practitioners in Women's Health
lllllllllllllllllllllAmicus Curiae State of Missouri
lllllllllllllllllllllAmicus on Behalf of Petitioner Society of Family Planning lllllllllllllllllllllAmicus Curiae State of Montana
lllllllllllllllllllllAmicus on Behalf of Petitioner Society of Gynecologic Surgeons lllllllllllllllllllllAmicus Curiae
-3-
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State of Nebraska lllllllllllllllllllllAmicus on Behalf of Petitioner
Society of OB/GYN Hospitalists lllllllllllllllllllllAmicus Curiae
State of Oklahoma; State of Ohio; State of South Dakota; State of South Carolina; State of Tennessee; State of Texas; State of Utah; State of West Virginia; American Center for Law and Justice lllllllllllllllllllllAmici on Behalf of Petitioner ____________ Appeal from United States District Court for the Eastern District of Arkansas - Central ____________ Submitted: April 16, 2020 Filed: April 22, 2020 ____________
Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges. ____________
SHEPHERD, Circuit Judge. The State of Arkansas1 petitions for a writ of mandamus after the district court
entered a temporary restraining order (TRO) enjoining it from enforcing a health directive against a provider of surgical abortions. Having jurisdiction under 28 U.S.C. § 1651(a), we grant the writ of mandamus in part and direct the district court
1Petitioners are elected and appointed state officials, hereinafter referred to as the State of Arkansas or the State.
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to dissolve the TRO. We deny the pending emergency motion to stay the ex parte TRO and for a temporary administrative stay as moot.
I.
Arkansas, along with the rest of the nation and the world, is in the midst of an unprecedented health crisis occasioned by the worldwide COVID-19 pandemic. Every day, the number of people infected with COVID-19 continues to rise, along with the virus’s death toll. As of April 20, 2020, testing has revealed 746,625 cases in the United States with 39,083 deaths.2 In Arkansas, as of April 20, 2020, 1,853 cases have been confirmed with 41 deaths.3 Experts believe that hospitalizations related to the disease have not yet peaked within the state, and personal protective equipment (PPE) for healthcare workers is in short supply while concerns remain about the demand for ventilators. In response to the COVID-19 pandemic, Arkansas has issued a number of emergency orders and directives in order to slow the spread of the disease and prevent hospitals and other healthcare providers from becoming overwhelmed due to the rising number of patients. These include the closing of schools for the remainder of the academic year, requiring state employees to telework, prohibiting restaurants and bars from offering dine-in service, and requiring healthcare facilities to screen staff and visitors for fever and other symptoms.
2Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Cases in the US, (last updated Apr. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.
3Arkansas Department of Health, COVID-19, (last updated Apr. 20, 2020), https://www.healthy.arkansas.gov/programs-services/topics/novel-coronavirus.
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A.
One such directive from the Arkansas Department of Health (ADH), issued on April 3, 2020, requires that all non-medically necessary surgeries be postponed. The purpose of this directive is multifold, but it primarily stems from a need to preserve existing PPE resources and limit social contact among patients, healthcare providers, and hospital staff. The directive itself is facially neutral: it applies to all types of surgical procedures. Currently, only those procedures that are deemed to be immediately necessary may take place. If it is safe to postpone an elective surgery, then it must be postponed. However, it is left to a patient’s healthcare provider to determine whether a surgery is immediately necessary or whether it may be safely performed at a later date.
On March 11, 2020, the Governor of Arkansas signed Executive Order 20-03, directing the ADH to “do everything reasonably possible to respond to and recover from the COVID-19 virus.” The ADH directive was subsequently promulgated in response to Executive Order 20-03 and pursuant to the ADH’s general authority under Ark. Code Ann. §§ 20-7-109, 20-7-110. Although it has no explicit expiration date, and “while neither the ADH nor [the Governor of Arkansas] have determined how long [the directive] will remain in effect,” the current state of emergency declared by the State of Arkansas may not continue “for longer than sixty (60) days unless renewed by the Governor.” Ark. Code Ann. § 12-75-107(b)(2). In that the current state of emergency was declared on March 11, 2020, under state law, it may last no longer than May 10, 2020, unless renewed by the Governor of Arkansas.4 The
4It bears mentioning that the President, on March 13, 2020, issued a proclamation declaring a National Emergency concerning COVID-19. Proclamation No. 9994, 85 Fed. Reg. 15337 (Mar. 18, 2020).
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State concedes in its brief that, absent an extension to the current state of emergency, the ADH directive must expire on May 11, 2020.5
B.
Surgical abortions, like other surgical procedures, ordinarily require providers to use PPE to prevent “exposure to blood and other bodily fluids and tissue, and to protect the patient from infection.” The relevant PPE in a surgical abortion could include a surgical mask, gloves, gown, and eye protection. Moreover, given the increasing risk of infection, all patients who undergo any type of surgical procedure may themselves need to use PPE in order to avoid contracting COVID-19. Unless deemed immediately medically necessary by a woman’s healthcare provider, surgical abortions are prohibited under the ADH directive. It appears, however, that nonsurgical abortions, such as medication abortions, may still continue—again, the directive only prohibits elective or non-emergency surgical procedures.
On April 9, 2020, inspectors from the ADH conducted an unannounced inspection of the Little Rock Family Planning Services (LRFP) facility, which is a provider of surgical abortions in Arkansas. It was found that the facility was still providing surgical abortions that were not deemed immediately necessary. The following day, April 10, 2020, the ADH sent LRFP a cease-and-desist letter stating that LRFP was violating the ADH directive and ordering it to stop performing nonemergency abortion surgeries. That letter stated that surgical abortions, consistent
5The White House recently issued guidelines that are meant to advise local and state governments on when it is safe to ease existing restrictions and begin reopening the economy. White House, Guidelines: Opening Up America Again (Apr. 16, 2020), https://www.whitehouse.gov/openingamerica/. This seems to suggest that, as time goes on, state and local governments will prepare to relax measures intended to combat the spread of COVID-19.
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with the ADH directive, may not take place “except where immediately necessary to protect the life or health of the patient.”
C.
On April 13, 2020, LRFP challenged the ADH directive in federal district court. However, instead of filing a new action in the district court, it sought leave to file a supplemental complaint in a pending case filed on June 26, 2019. See Little Rock Family Planning Servs. v. Rutledge, No. 4:19-CV-00449-KGB (E.D. Ark. filed June 26, 2019). In that case, LRFP, along with other plaintiffs, challenged the constitutionality of three separate abortion-related laws passed by the Arkansas General Assembly. The district court preliminarily enjoined Arkansas from enforcing those statutes, and the State has taken an interlocutory appeal from that injunction. See Little Rock Family Planning Servs. v. Rutledge, No. 19-2690. That appeal remains pending before this Court. See id.
In the supplemental complaint, LRFP challenged the ADH directive as it applies to surgical abortions. It alleges that, rather than being motivated by any concern for public health, the directive is “the latest effort in the State’s long-running campaign to eliminate women’s access to constitutionally guaranteed health care” and that it effectively operates as a ban on pre-viability surgical abortions.
That same day, after moving for leave to file the supplemental complaint, LRFP moved for an ex parte TRO. The following day, on April 14, 2020, the district court entered a TRO enjoining the State from enforcing the directive against surgicalabortion providers. Now, unlike all other surgical procedures, Arkansas cannot proscribe non-emergency surgical abortions in its effort to conserve PPE and to limit social contact.
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The State filed the instant petition for a writ of mandamus directing the district court to dissolve the ex parte TRO and dismiss the supplemental complaint. It also has moved to stay the district court’s TRO and for expedited briefing and consideration of the motion and petition. We entered an order granting expedited briefing on the motion and petition, and we now consider the merits of the State’s petition for mandamus relief.
II.
Mandamus relief is an “extraordinary remedy” to be employed only under the most “exceptional circumstances.” Will v. United States, 389 U.S. 90, 95 (1967). In order to obtain it, petitioners must show that they “have no other adequate means to attain the relief [they] desire[ ].” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (internal quotation marks omitted). Indeed “[t]he traditional use of the writ . . . has been to confine [the court against which mandamus is sought] to a lawful exercise of its prescribed jurisdiction.” Id. (third alteration in original) (internal quotation marks omitted). Put differently, mandamus may only lie in “exceptional circumstances amounting to a judicial usurpation of power, or a clear abuse of discretion.” Id. (internal quotation marks and citations omitted). “[A] clear error of law or clear error of judgment leading to a patently erroneous result may constitute a clear abuse of discretion.” In re Apple, Inc., 602 F.3d 909, 911 (8th Cir. 2010) (per curiam).
To grant a writ of mandamus, this court weighs three factors: (1) the petitioning party must satisfy the court that he has no other adequate means to attain the relief he desires; (2) his entitlement to the writ is clear and indisputable; and (3) the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.
In re Kemp, 894 F.3d 900, 905 (8th Cir. 2018) (internal quotation marks omitted).
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III.
We first consider whether the State is entitled to mandamus relief concerning the district court’s entry of the order granting the TRO. We conclude that it is, and in so holding, adopt the reasoning of the Fifth Circuit in In re Abbott, No. 20-50264, 2020 WL 1685929 (5th Cir. April 7, 2020). Indeed, the State has satisfied its burden in demonstrating that it has no other means to obtain the relief that it seeks, that it is clearly and indisputably entitled to the writ, and that entry of the writ is appropriate under the circumstances.
A.
First, we find that the State has no other means to attain the relief that it seeks. This “condition [is] designed to ensure that the writ will not be used as a substitute for the regular appeals process.” Cheney, 542 U.S. at 380-81. In light of the “surging tide of COVID-19 cases and deaths, [the State has] made this showing.” In re Abbott, 2020 WL 1685929, at *14.
Under 28 U.S.C. § 1292(a)(1), courts of appeals have jurisdiction “to review [i]nterlocutory orders of the district courts of the United States . . . or of the judges thereof, . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court.” Nordin v. Nutri/System, Inc., 897 F.2d 339, 341 (8th Cir. 1990) (alterations in original) (internal quotation marks omitted). We have, however, interpreted this to mean that we would ordinarily lack jurisdiction to hear an interlocutory appeal from the district court’s grant or denial of a TRO. See Schlafly v. Eagle Forum, 771 F. App’x 723, 724 (8th Cir. 2019) (per curiam); see also S. Wind Women’s Ctr. LLC v. Stitt, No. 20-6045, 2020 WL 1860683 (10th Cir. April 13, 2020) (dismissing interlocutory appeal from a similar order granting a TRO for lack of jurisdiction); Pre-Term Cleveland v. Att’y Gen. of Ohio, No. 20-3365, 2020 WL
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1673310, at *1 (6th Cir. April 6, 2020) (per curiam) (noting that jurisdiction did not lie in the court of appeals from a similar order granting a TRO). If a litigant would suffer “serious, perhaps irreparable consequence” from the district court’s TRO, then an interlocutory appeal may properly lie from that order. Hunter v. Bradford, 642 F. App’x 648, 649 (8th Cir. 2016) (per curiam) (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)). However, “where mandamus is clearly an appropriate remedy, we are not bound to require that the petitioner first seek interlocutory review.” In re Apple, 602 F.3d at 912. Therefore, even if we assumed, without deciding, that an interlocutory appeal from the district court’s TRO is available to the State, we may nevertheless consider the petition for a writ of mandamus. See id.
Moreover, given the broader context of the COVID-19 pandemic, we agree with the Fifth Circuit that “[i]n mill-run cases, it might be a sufficient remedy to simply wait until the expiration of the TRO, and then appeal an adverse preliminary injunction. In other cases, a surety bond may ensure that a party wrongfully enjoined can be compensated for any injury caused. Those methods would be woefully inadequate here.” In re Abbott, 2020 WL 1685929, at *14 (internal citations omitted). Day after day, the number of individuals testing positive for, and dying from, COVID-19 continues to climb both in Arkansas and nationally. Additionally, PPE continues to be used in hospitals each day. The “peak” of infections in Arkansas has not yet occurred, and if the State were “required to wait and appeal an adverse preliminary injunction, the harms from a . . . suspension of [the ADH directive] for all [surgical abortions] could not be put back in the bottle.” Id. (internal quotation marks omitted).
Also relevant to the issue of whether the State has no other means to attain the relief that it seeks is the fact that LRFP chose to seek judicial relief from the ADH directive via a motion for permission to file a supplemental complaint in Little Rock Family Planning Servs., No. 4:19-CV-00449-KGB, rather than by instituting a new action. LRFP took this path even though that case has been confined to the
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consideration of a challenge to certain laws passed by the Arkansas General Assembly, a matter now on appeal to this Court, and did not involve a challenge to the very recent ADH directive, which was issued pursuant to an executive order from the Governor of Arkansas. As discussed below, utilization of this procedure in the context of this case is procedurally suspect at best, however, the order permitting the filing of the supplemental complaint is interlocutory and not appealable until entry of final judgment. Thus, the State has no ability to challenge the amended complaint which gave rise to the TRO.
Accordingly, we are satisfied that the State has no other means to attain the relief that it seeks.
B.
Second, we address whether the State has a clear and indisputable right to issuance of the writ. A petitioner’s right to issuance of the writ is clear and indisputable “only [in] exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion.” Cheney, 542 U.S. at 380 (internal quotation marks and citations omitted). The Supreme Court has sanctioned the use of the writ “to restrain a lower court when its actions would threaten the separation of powers by embarrass[ing] the executive arm of the Government, or result in the intrusion by the federal judiciary on the delicate area of federal-state relations.” Id. at 381 (alteration in original) (internal quotation marks and citations omitted).
We conclude that the State has shown that it is clearly and indisputably entitled to issuance of the writ. In issuing the TRO, the district court first interpreted the ADH directive as “prohibit[ing] nearly all pre-viability abortions past 10 weeks LMP [(last menstrual period)].” On that basis, the court found the directive to be “facially unconstitutional,” and thus concluded that LRFP was likely to prevail on the merits. See Gonzales v. Carhart, 550 U.S. 124, 146 (2007) (noting that the Supreme Court
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has held that the Constitution restricts states from “prohibit[ing] any woman from making the ultimate decision to terminate” a pre-viability pregnancy (quoting Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 879 (1992) (plurality opinion)). In reaching this conclusion, however, the court failed to meaningfully apply the Supreme Court’s framework for reviewing constitutional challenges to state actions taken in response to a public health crisis. Such a failure constitutes a clear abuse of discretion.
In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Supreme Court held that, when faced with a public health crisis, a state may implement measures that infringe on constitutional rights, subject to certain limitations. The Court explained that the “liberty secured by the Constitution . . . does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Id. at 26. Rather, “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27. Therefore, while constitutional rights do not disappear during a public health crisis, “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” Id. at 29. With these conflicting considerations in mind, the Court set forth the following two-part framework: in the context of a public health crisis, a state action is susceptible to constitutional challenge only if it, “purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law[.]” Id. at 31. As the Fifth Circuit accurately explained,
[t]he bottom line is this: when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental
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law.” Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures.
In re Abbott, 2020 WL 1685929, at *7 (quoting Jacobson, 197 U.S. at 31, 38).
Here, the ADH directive, pursuant to the Governor’s Executive Order, was issued in response to the impact of the COVID-19 pandemic in Arkansas. Accordingly, even assuming, arguendo, that the district court correctly interpreted the directive to be an outright ban on all pre-viability surgical abortions in Arkansas, the directive is not subject to constitutional challenge unless it “has no real or substantial relation to” the public health crisis, or “is, beyond all question, a plain, palpable invasion of” a woman’s right to elective abortion. Jacobson, 197 U.S. at 31; see also In re Abbott, 2020 1685929, at *8 (“[T]he effect on abortion arising from a state’s emergency response to a public health crisis must be analyzed under the standards in Jacobson.”). Aside from summarily stating that its conclusion is consistent with Jacobson, the district court failed to apply that requisite framework and, thus, abused its discretion.
Furthermore, we find that the district court’s failure to apply the Jacobson framework produced a patently erroneous result. As discussed, Jacobson provides that a court may review a constitutional challenge to a government’s response to a public health crisis only if the state’s response lacks a “real or substantial relation” to the public health crisis or it is, “beyond all question, a plain, palpable invasion” of the right to abortion. 197 U.S. at 31. We address each prong separately.
1.
Under Jacobson, we must first consider whether the ADH directive has a “real or substantial relation” to the public health crisis in Arkansas brought about by the
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COVID-19 pandemic. Id. at 31. In our analysis, we must take care not to “usurp the functions of another branch of government,” id. at 28, such as by “second-guess[ing] the state’s policy choices in crafting emergency public health measures.” In re Abbott, 2020 WL 1685929, at *6.
LRFP argues that the district court correctly found that there is no real or substantial relationship between the ADH directive and the State’s public health rationale. In support, it points out that it is “wholly self-sustaining in terms of PPE, and has no intent of utilizing the State’s stockpile.” Moreover, it contends that requiring women to continue their pregnancies will actually utilize more PPE and hospital resources than allowing non-emergency surgical abortions. Put differently, LRFP does not suggest that the ADH directive itself bears no real or substantial relation to public health—rather, it argues that the directive has no real or substantial relation to public health as applied to surgical abortions.
At the outset, we note that although the district court’s analysis of Jacobson was perfunctory, it did acknowledge the State’s “legitimate interests in protecting or promoting the public’s health and safety during the COVID-19 panic.” And as discussed above, the ADH directive has stopped all elective or non-emergency surgical procedures, not just surgical abortions, in order to deal with PPE shortages, the rising number of people infected with COVID-19, and existing burdens on hospitals and other healthcare facilities. On the record before us, the State’s interest in conserving PPE resources and limiting social contact among patients, healthcare providers, and other staff is clearly and directly related to public health during this crisis. That interest is being effectuated by the ADH directive. The directive is a legally valid response to the circumstances confronted by the Governor and state health officials. As the Fifth Circuit has noted, this is similar to other extreme measures that the State has taken, such as closing schools, prohibiting gatherings of more than ten people, and prohibiting restaurants and bars from offering dine-in services. See id. at *9 (noting that such “measures would be constitutionally
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intolerable in ordinary times, but are recognized as appropriate and even necessary responses to the present crisis”).
Additionally, we find unpersuasive LRFP’s arguments that the ADH directive, as applied to surgical abortions, fails to bear a real or substantial relation to public health. First, we do not read Jacobson to require that courts take a piecemeal approach and scrutinize individual surgical procedures or otherwise create an exception for particular providers, such as those performing non-emergency, surgical abortions. Indeed, this would encroach upon the State’s policy determinations in how best to combat COVID-19, and we are not empowered to “usurp the functions of another branch of government.” Jacobson, 197 U.S. at 28. Second, we are not convinced by LRFP’s contention that it has a self-sustaining amount of PPE and that it will not draw upon state stockpiles—the purpose behind the ADH directive is that, by delaying all non-emergency surgeries, conservation of a finite amount of PPE resources across Arkansas may be possible today. Additionally, the fact that LRFP has its own reserve of PPE does not lessen the problem of additional social contact between patients and providers. Third, the claim that non-emergency surgical abortions actually further the State’s public health goals by reducing the demand for PPE required for pre-natal care and delivery and reducing the burden on hospitals occasioned by continued pregnancies and childbirths is a policy argument, and the judiciary may not “second-guess the state’s policy choices in crafting emergency public health measures.” In re Abbott, 2020 WL 1685929, at *6.
For these reasons, and on this record, we conclude that the ADH directive bears a real and substantial relation to the State’s interest in protecting public health in the face of the COVID-19 pandemic.6
6We also note that the record does not suggest that the Governor of Arkansas or the ADH issued the directive in an attempt to deliberately “exploit[] the present crisis as a pretext to target abortion providers sub silentio.” In re Abbott, 2020 WL 1685929, at *13 (citing Lawton v. Steele, 152 U.S. 133, 137 (1894)).
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2.
The second Jacobson inquiry is whether the ADH directive is “beyond all question, a plain, palpable invasion” of the right to abortion. The Supreme Court has held that the Constitution imposes two restrictions on a state’s ability to regulate abortion. The first, addressed above, is that a state “may not prohibit any woman from making the ultimate decision to terminate” a pre-viability pregnancy. Gonzales, 550 U.S. at 146 (quoting Casey, 505 U.S. at 879). The second constitutional restriction is that a state “may not impose upon this right an undue burden, which exists if a regulation’s ‘purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’” Id. (quoting Casey, 505 U.S. at 878). Accordingly, in order for the court to have the authority to intervene in the State’s response to the public health crisis, the ADH directive must, “beyond all question,” violate at least one of these constitutional restrictions. On the record before the district court, we find that it does not.
a.
The ADH directive does not operate as an outright ban on all or virtually all pre-viability abortions. First, the directive does not apply to medication abortions, which are available in Arkansas up to 10 weeks LMP. Moreover, contrary to the district court’s finding, the directive does not operate as an outright ban on previability abortions for women who are past 10 weeks LMP or for whom medication abortion is contraindicated.
In finding that the directive “prohibit[s] virtually all pre-viability abortions after 10 weeks LMP and prohibit[s] virtually all pre-viability abortions for patients for whom medication abortion is contraindicated,” the district court interpreted the directive to be indefinite. However, Arkansas law provides that “[n]o state of disaster emergency may continue for longer than sixty (60) days unless renewed by the
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Governor.” Ark. Code Ann. § 12-75-107(b)(2). The Governor declared a state of emergency on March 11, 2020. Accordingly, the ADH directive, which was issued pursuant to the Governor’s emergency powers and the ADH’s general authority under Ark. Code Ann. §§ 20-7-109, 20-7-110, will necessarily expire on May 11, 2020 unless the Governor renews 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.” Garza v. Hargan, 874 F.3d 735, 755 (D.C. Cir. 2017) (en banc) (Kavanaugh, J., dissenting), vacated sub nom. Azar v. Garza, 138 S. Ct. 1790 (2018).
Moreover, the directive contains emergency exceptions, including where “there is a threat to the patient’s life if the procedure is not performed.” The directive explicitly applies only to “surgical abortions that are not immediately necessary to protect the life or health of the patient.” Accordingly, the directive complies with Jacobson’s requirement that the emergency measures contain basic exceptions for “extreme cases.”
“Properly understood, then, [the ADH directive is] a temporary postponement of all non-essential medical procedures, including abortion, subject to facially broad exceptions.” In re Abbott, 2020 WL 1685929, at *10. We agree with the Fifth Circuit’s conclusion that such an emergency measure “does not constitute anything like an ‘outright ban’ on pre-viability abortion[.]” Id. Accordingly, the ADH directive is not, beyond all question, a prohibition of pre-viability abortion in violation of the Constitution.
b.
Finally, we turn to whether the ADH directive, beyond all question, imposes an “undue burden” on a woman’s ability to choose whether to terminate a pre-
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viability pregnancy. Casey, 505 U.S. at 876. A state action imposes an “undue burden” when it places a “substantial obstacle in the path of a woman seeking an abortion before the fetus obtains viability.” Id. at 878. “Not all burdens on the right to decide whether to terminate a pregnancy will be undue.” Id. at 876. Further, for a burden to be facially undue, the benefits of the directive must be “substantially outweighed by the burdens it imposes on a large fraction of women seeking” nonessential surgical abortion in Arkansas. Planned Parenthood of Ark. & E. Okla. v. Jegley, 864 F.3d 953, 960 n.9 (8th Cir. 2017). Applying this standard within the Jacobson framework, the question is whether the burdens imposed by the ADH directive on a large fraction of women seeking non-essential surgical abortions in Arkansas “beyond all question” substantially outweigh the benefits to the State.
Because the district court erroneously found the ADH directive to be per se unconstitutional as a prohibition on nearly all pre-viability abortions, it determined that Casey’s undue burden standard does not apply to its analysis. The court nonetheless concluded that, “[e]ven if the undue-burden standard applies[,] . . . the Supplemental Complaint Plaintiffs are likely to prevail because the burdens of the Challenged Provisions far outweigh their purported benefits.” We find that, in its perfunctory analysis of Casey’s undue burden standard, the district court committed clear abuses of discretion and, further, usurped the functions of the state government by second-guessing the State’s policy choices in responding to the COVID-19 pandemic. Moreover, the district court failed to consider whether LRFP satisfied Casey’s undue burden standard “beyond all question,” as required under Jacobson.
First, in assessing the benefits of the directive, the district court found that LRFP is likely to prevail on its argument that the directive does not meaningfully further the State’s admittedly legitimate interests in protecting or promoting the public’s health and safety during the COVID-19 pandemic. However, the purpose of the ADH directive is to delay all non-emergency surgeries so that the State may conserve its finite amount of PPE resources and limit social contact among patients,
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healthcare providers, and other staff. As discussed above, this facially-neutral directive has a real and substantial relation to the State’s interest in combating the COVID-19 pandemic, and the directive’s benefits in addressing this public health crisis are clear. Further, the district court’s conclusory determination that the directive does not meaningfully address the COVID-19 pandemic constitutes an improper “second-guess[ing of] the state’s policy choices in crafting its emergency public health measures.” In re Abbott, 2020 WL 1685929, at *6. Accordingly, we find that the district court abused its discretion by erroneously minimizing the directive’s benefits in combating the public heath crisis.
Next, in assessing the claimed burdens of the directive, the district court found that LRFP is likely to prevail on its argument that, in a large fraction of cases in which the directive is relevant, the directive will likely operate as a substantial obstacle to a woman’s choice to undergo an abortion. There are two issues with the district court’s finding. First, the court’s determination that a “large fraction” of women will face a substantial obstacle in seeking a pre-viability abortion is based on the court’s erroneous finding that the directive indefinitely postpones non-essential surgical abortions. As discussed, however, the directive is not indefinite; it merely postpones non-essential surgical abortions until May 11, unless the Governor renews the state of emergency declaration for another sixty days. Because we must apply Jacobson’s “beyond all question” standard to our analysis, we cannot say that it is beyond all question that the state of emergency will continue beyond May 11. Accordingly, the district court abused its discretion in assuming that the directive will continue indefinitely.
Further, the district court failed to conduct any analysis to support its finding that a “large fraction” of women would face a substantial obstacle in seeking previability abortions. Specifically, the court did not determine the number of women currently seeking but unable to obtain a surgical abortion in Arkansas; how many of those women will be past the legal limit for obtaining an abortion by May 11; how
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many of those women will be forced to obtain a dilation and evacuation (D&E) abortion instead of an aspiration abortion by May 11; or how many of those women will be forced to undergo a two-day D&E abortion instead of the one-day procedure by May 11. “As a result, we are left with no concrete district court findings estimating the number of women who would be unduly burdened by [the ADH directive] . . . and whether they constitute a ‘large fraction’ of women seeking [nonessential surgical] abortions in Arkansas[.]” Jegley, 864 F.3d at 960. Accordingly, we find that the district court clearly abused its discretion in finding that LRFP is likely to prevail on its argument that, in a large fraction of cases in which the directive is relevant, the directive will likely operate as a substantial obstacle to a woman’s choice to undergo an abortion.
We conclude that the State is clearly and indisputably entitled to issuance of the writ.
C.
Finally, we consider whether it is appropriate to exercise our discretion to issue the writ in light of the circumstances of this case. See Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 403 (1976) (noting that “it is important to remember that issuance of the writ is in large part a matter of discretion with the court to which the petition is addressed”). “The longstanding view is that discretion to issue the writ[] should be exercised only in special cases . . . .” In re Abbott, 2020 WL 1685929, at *15 (second alteration in original) (quoting 16 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3933 (3d ed. 2019)).
Because of the impact of the ongoing global pandemic in Arkansas, “[w]e are persuaded that this petition presents an extraordinary case justifying issuance of the writ.” Id. As discussed above, the total number of Arkansas residents infected with, and dying from, COVID-19 is growing daily; PPE continues to be used; and state
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officials remain concerned with continued spread of the disease, supply shortages, and burdens on hospitals and other healthcare facilities. Because “even a minor delay in fully implementing the [S]tate’s emergency measures could have major ramifications,” it is appropriate for us to exercise our discretion in issuing the writ. Id.
Our conclusion is supported by our concern that the district court committed a serious error in failing to meaningfully apply the Jacobson framework, which resulted in a clear abuse of discretion. The consequence of this error, which effectively “bestow[ed] on [surgical] abortion providers a blanket exemption from a generally-applicable emergency public health measure,” is magnified because of its “effect on the [S]tate’s ongoing emergency efforts to slow COVID-19.” Id. Further, we think that in so doing, the district court “usurped the power of state authorities by passing judgment on the wisdom and efficacy of . . . emergency measures” in the midst of a public health crisis. Id. Mandamus is an appropriate remedy to correct this error.
IV.
Finally, we consider whether the State is entitled to mandamus relief concerning the district court’s order granting LRFP leave to file the supplemental complaint pursuant to Federal Rule of Civil Procedure 15(d). We begin by noting that we lack appellate jurisdiction to review the district court’s decision to allow LRFP to file the supplemental complaint. Mo.-Kan.-Tex. R. Co. v. Randolph, 182 F.2d 996, 999 (8th Cir. 1950) (“We think the order granting plaintiffs leave to file their supplemental and dependent bill of complaint was not appealable.”); 6A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1504 (3d ed. 2019) (“The decision to permit or deny leave to file a supplemental pleading is interlocutory and cannot be reviewed except on an appeal from the final judgment.”). Further, this is not the sort of error ordinarily entitled to mandamus relief. See Kay Ferer, Inc. v.
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Hulen, 160 F.2d 146, 149 (8th Cir. 1947) (denying petition for writ of mandamus to set aside order allowing supplemental complaint).
Nevertheless, because the decision to allow the supplemental complaint is unreviewable and not remediable by mandamus relief, we consider the propriety of the decision to the extent it bears on the appropriateness of mandamus relief regarding the TRO. As discussed above, LRFP sought leave to file the supplemental complaint challenging the ADH directive in a pending case. See Little Rock Family Planning Servs. v. Rutledge, No. 4:19-CV-00449-KGB. In that case, LRFP challenged the constitutionality of three separate abortion-related laws in Arkansas. Unlike the ADH directive, none of those laws seek to limit surgical abortions on the basis of the COVID-19 pandemic. Because the ADH directive is distinct and separate from the Arkansas statutes challenged in that case, we express serious doubt that the supplemental complaint challenging the directive “cover[s] matters subsequently occurring but pertaining to the original cause” within the meaning of Rule 15(d). United States v. Vorachek, 563 F.2d 884, 886 (8th Cir. 1977) (internal quotation marks omitted); see also Planned Parenthood of S. Ariz. v. Neely, 130 F.3d 400, 40203 (9th Cir. 1997) (per curiam) (holding district court abused its discretion in allowing supplemental complaint because “[a]lthough both the original suit and the supplemental complaint sought to challenge Arizona’s parental consent law, the supplemental complaint challenged a different statute than the one that had been successfully challenged in the original suit”).
Accordingly, we decline to exercise our mandamus power to direct the district court to dismiss the supplemental complaint. We consider the district court’s decision to allow the supplemental complaint only for the limited purpose of further demonstrating why mandamus relief regarding the TRO is appropriate.
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V. For these reasons, we grant a writ of mandamus in part and direct the district court to dissolve the TRO of April 14, 2020. We deny the emergency motion to stay the ex parte TRO and for a temporary administrative stay as moot. LOKEN, Circuit Judge, dissents.
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Michael E. Gans Clerk of Court

United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102

VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov

April 22, 2020

Mr. Nicholas Jacob Bronni ATTORNEY GENERAL'S OFFICE 200 Catlett-Prien Building 323 Center Street Little Rock, AR 72201-0000
RE: 20-1791 In Re: Leslie Rutledge, et al
Dear Counsel:
The court has issued an opinion in this case. Judgment has been entered in accordance with the opinion. The opinion will be released to the public at 10:00 a.m. today. Please hold the opinion in confidence until that time.
Michael E. Gans Clerk of Court
CMD
Enclosure(s)
cc: Ms. Bettina E. Brownstein Mr. Christopher P. Burke Ms. Meagan M. Burrows Ms. Susan Talcott Camp Mr. Michael A. Cantrell Ms. Anisha S. Dasgupta Ms. Leah Godesky Ms. Ruth E. Harlow Ms. Rebecca Rhodes Jackson Mr. Dylan L. Jacobs Mr. Jim McCormack Ms. Elizabeth B. Murrill Ms. Maithreyi Ratakonda Ms. Ashley Robertson Mr. Stuart J. Roth Ms. Nicole A. Saharsky Ms. Kelly M. Scavone Mr. Jay Alan Sekulow Mr. Jordan Sekulow
Appellate Case: 20-1791 Page: 1 Date Filed: 04/22/2020 Entry ID: 4905343

Case 4:19-cv-00449-KGB Document 155 Filed 04/22/20 Page 26 of 33 Mr. Benjamin Paul Sisney Mr. J. Scott St. John Ms. Christina A. Stierhoff Ms. Olivia F. Summers Ms. Kendall Turner Mr. Vincent M. Wagner Ms. Brooke-Augusta Ware Mr. Brett David Watson Mr. Edward Lawrence White Ms. Maya Zagayer Mr. Erik Zimmerman
District Court/Agency Case Number(s): 4:19-cv-00449-KGB
Appellate Case: 20-1791 Page: 2 Date Filed: 04/22/2020 Entry ID: 4905343

Case 4:19-cv-00449-KGB Document 155 Filed 04/22/20 Page 27 of 33

Michael E. Gans Clerk of Court

United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102

VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov

April 22, 2020

West Publishing Opinions Clerk 610 Opperman Drive Building D D4-40 Eagan, MN 55123-0000
RE: 20-1791 In Re: Leslie Rutledge, et al
Dear Sirs:
An opinion was filed today in the above case.
Counsel who represented the appellant was Nicholas Jacob Bronni, AAG, of Little Rock, AR, Michael A. Cantrell, AAG, of Little Rock, AR, Dylan L. Jacobs, AAG, of Little Rock, AR, Vincent M. Wagner, AAG, of Little Rock, AR.
The following attorney(s) appeared on the amicus brief of 18 States in support of petitioner: Brett D. Watson of Searcy, AR; J. Scott St. John, Deputy Solicitor General, Louisiana DOJ, Baton Route, LA.
The following attorneys appeared on the amicus brief in support of petitioners filed by The American Center for Law and Justice in support of petitioners; Jay Alan Sekulow, Stuart J. Roth, Jordan Sekulow, Benjamin P. Sisney, Olivia F. Summers and Christian A. Stierhoff all of Washington, DC; and Edward L. White III, and Erik M. Zimmerman of Ann Arbor, MI.
The following attorneys appeared on the amicus brief in opposition filed by the State of New York and 18 other states; Barbara D. Underwood, Anisha S. Dasgupta, Laura Etlinger, Blair J. Greenwald and Letitia James of New York, NY.
The following attorneys appeared on the amicus brief filed by the American College of Obstetricians and Gynecologists, et al., in opposition to the petition: Cleland B. Welson II of Ciudad de Mexico; Kathleen S. Messinger of Los Angeles, CA; Nicole A. Saharsky of Washington, DC and Skye L. Perryman of Washington, DC.
The judge who heard the case in the district court was Honorable Kristine G. Baker. The judgment of the district court was entered on April 15, 2020.

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Case 4:19-cv-00449-KGB Document 155 Filed 04/22/20 Page 28 of 33 If you have any questions concerning this case, please call this office.
Michael E. Gans Clerk of Court CMD Enclosure(s) cc: Lois Law MO Lawyers Weekly District Court/Agency Case Number(s): 4:19-cv-00449-KGB
Appellate Case: 20-1791 Page: 2 Date Filed: 04/22/2020 Entry ID: 4905343

Case 4:19-cv-00449-KGB Document 155 Filed 04/22/20 Page 29 of 33

Abigail Temple

From: Sent: Subject:

ca08ml_cmecf_Notify@ca8.uscourts.gov Wednesday, April 22, 2020 9:26 AM 20-1791 In Re: Leslie Rutledge, et al "Sgn Opinion Filed - same day" (4:19-cv-00449-KGB)

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing.
Eighth Circuit Court of Appeals
Notice of Docket Activity
The following transaction was filed on 04/22/2020
Case Name: In Re: Leslie Rutledge, et al Case Number: 20‐1791 Document(s): Document(s)

Docket Text: OPINION FILED ‐ THE COURT: James B. Loken, Bobby E. Shepherd and Ralph R. Erickson AUTHORING JUDGE:Bobby E. Shepherd DISSENT BY: James B. Loken, (PUBLISHED) [4905343] [20‐1791] (Catherine Dolan)
Notice will be electronically mailed to:
Mr. Nicholas Jacob Bronni: nicholas.bronni@arkansasag.gov Ms. Bettina E. Brownstein: bettinabrownstein@gmail.com Ms. Meagan M. Burrows: mburrows@aclu.org, fyitayew@aclu.org Ms. Susan Talcott Camp, Deputy Director: tcamp@aclu.org, sfermin@aclu.org Mr. Michael A. Cantrell, Assistant Solicitor General: Michael.Cantrell@ArkansasAG.gov, cheryl.hall@arkansasag.gov Ms. Anisha S. Dasgupta, Deputy Solicitor General: anisha.dasgupta@ag.ny.gov Ms. Leah Godesky: lgodesky@omm.com, leah‐godesky‐1685@ecf.pacerpro.com Ms. Ruth E. Harlow: rharlow@aclu.org Ms. Rebecca Rhodes Jackson: beckywesth@gmail.com Mr. Dylan L. Jacobs, Assistant Solicitor General: dylan.jacobs@arkansasag.gov Mr. Jim McCormack, Clerk of Court: ared_appeals@ared.uscourts.gov Ms. Elizabeth B. Murrill: murrille@ag.louisiana.gov Ms. Maithreyi Ratakonda: mai.ratakonda@ppfa.org, annie.mason@ppfa.org, jessica.quinter@ppfa.org, angela.wu@ppfa.org Ms. Nicole A. Saharsky: nsaharsky@mayerbrown.com, wdc.docket@mayerbrown.com, 9664124420@filings.docketbird.com Ms. Kelly M. Scavone: kscavone@omm.com Mr. Benjamin Paul Sisney: bsisney@aclj.org, benjaminsisney@gmail.com Mr. J. Scott St. John: stjohnj@ag.louisiana.gov
1

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Ms. Kendall Turner: kendallturner@omm.com, hknoll@omm.com Mr. Vincent M. Wagner: vincent.wagner@arkansasag.gov, cheryl.hall@arkansasag.gov Ms. Brooke‐Augusta Ware: brooke@mannkemp.com Mr. Brett David Watson: watson@bdwpllc.com Mr. Edward Lawrence White: ewhite@aclj.org, elwhite3@yahoo.com, JeanneWhite3@yahoo.com MO Lawyers Weekly: michaelh@mesjassociates.com, clash@molawyersmedia.com West Publishing: us08@westdcs.west.thomson.com
Notice will be mailed to:
Mr. Christopher P. Burke O'MELVENY & MYERS Times Square Tower 7 Times Square New York, NY 10036‐0000
Ms. Ashley Robertson O'MELVENY & MYERS 1625 Eye Street, N.W. Washington, DC 20006‐4001
Mr. Stuart J. Roth AMERICAN CENTER FOR LAW & JUSTICE 201 Maryland Avenue, N.E. Washington, DC 20002‐0000
Mr. Jay Alan Sekulow AMERICAN CENTER FOR LAW & JUSTICE 201 Maryland Avenue, N.E. Washington, DC 20002‐0000
Mr. Jordan Sekulow AMERICAN CENTER FOR LAW & JUSTICE 201 Maryland Avenue, N.E. Washington, DC 20002‐0000
Ms. Christina A. Stierhoff AMERICAN CENTER FOR LAW & JUSTICE 201 Maryland Avenue, N.E. Washington, DC 20002‐0000
Ms. Olivia F. Summers AMERICAN CENTER FOR LAW & JUSTICE 201 Maryland Avenue, N.E. Washington, DC 20002‐0000
Ms. Maya Zagayer O'MELVENY & MYERS 1625 Eye Street, N.W. Washington, DC 20006‐4001
2

Case 4:19-cv-00449-KGB Document 155 Filed 04/22/20 Page 31 of 33
Mr. Erik Zimmerman AMERICAN CENTER FOR LAW AND JUSTICE Suite 203 3001 Plymouth Road Ann Arbor, MI 48105
The following document(s) are associated with this transaction: Document Description: Published Opinion filed Original Filename: 201791P.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=04/22/2020] [FileNumber=4905343‐0] [0e6c0974c7392f046198c4041a7cb07f9c446400d40bb2b61519994cd79cc5b1a2fd8326d3ef83ab8de78bf6a5f6068527c 3cd7e71a77cc219f46578fee1b92f]]
Document Description: Counsel Opinion Letter Original Filename: /opt/ACECF/live/forms/CathyDolan_201791_4905343_CounselOpinionLetters_285.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=04/22/2020] [FileNumber=4905343‐1] [18a81f488c78198c485126c4c203032b097224881156018c4fe2d1a2a21599c4e279e6ca85b697f2a8ca3c75d0bf07cc70d b80cbdc231803712572a8bcf055b7]] Recipients:
 Mr. Nicholas Jacob Bronni  Ms. Bettina E. Brownstein  Mr. Christopher P. Burke  Ms. Meagan M. Burrows  Ms. Susan Talcott Camp, Deputy Director  Mr. Michael A. Cantrell, Assistant Solicitor General  Ms. Anisha S. Dasgupta, Deputy Solicitor General  Ms. Leah Godesky  Ms. Ruth E. Harlow  Ms. Rebecca Rhodes Jackson  Mr. Dylan L. Jacobs, Assistant Solicitor General  Mr. Jim McCormack, Clerk of Court  Ms. Elizabeth B. Murrill  Ms. Maithreyi Ratakonda  Ms. Ashley Robertson  Mr. Stuart J. Roth  Ms. Nicole A. Saharsky  Ms. Kelly M. Scavone  Mr. Jay Alan Sekulow  Mr. Jordan Sekulow  Mr. Benjamin Paul Sisney  Mr. J. Scott St. John  Ms. Christina A. Stierhoff  Ms. Olivia F. Summers  Ms. Kendall Turner  Mr. Vincent M. Wagner  Ms. Brooke‐Augusta Ware  Mr. Brett David Watson  Mr. Edward Lawrence White  Ms. Maya Zagayer
3

Case 4:19-cv-00449-KGB Document 155 Filed 04/22/20 Page 32 of 33
 Mr. Erik Zimmerman
Document Description: Letter To Publishing Original Filename: /opt/ACECF/live/forms/CathyDolan_201791_4905343_LettersToPublishing_284.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=04/22/2020] [FileNumber=4905343‐2] [bb54ca619c24f0a4996faad950990375e9c292a2090553bfcc201d8fdcd4a92fd956ea55dce11ecd2625b4d5a8314db83d1 e12fecf7a649ebf8ccf026fe79b32]] Recipients:
 Mr. Nicholas Jacob Bronni  Ms. Bettina E. Brownstein  Mr. Christopher P. Burke  Ms. Meagan M. Burrows  Ms. Susan Talcott Camp, Deputy Director  Mr. Michael A. Cantrell, Assistant Solicitor General  Ms. Anisha S. Dasgupta, Deputy Solicitor General  Ms. Leah Godesky  Ms. Ruth E. Harlow  Ms. Rebecca Rhodes Jackson  Mr. Dylan L. Jacobs, Assistant Solicitor General  MO Lawyers Weekly  Mr. Jim McCormack, Clerk of Court  Ms. Elizabeth B. Murrill  Ms. Maithreyi Ratakonda  Ms. Ashley Robertson  Mr. Stuart J. Roth  Ms. Nicole A. Saharsky  Ms. Kelly M. Scavone  Mr. Jay Alan Sekulow  Mr. Jordan Sekulow  Mr. Benjamin Paul Sisney  Mr. J. Scott St. John  Ms. Christina A. Stierhoff  Ms. Olivia F. Summers  Ms. Kendall Turner  Mr. Vincent M. Wagner  Ms. Brooke‐Augusta Ware  Mr. Brett David Watson  West Publishing  Mr. Edward Lawrence White  Ms. Maya Zagayer  Mr. Erik Zimmerman
The following information is for the use of court personnel:
DOCKET ENTRY ID: 4905343 RELIEF(S) DOCKETED:
dissent for publication
4

Case 4:19-cv-00449-KGB Document 155 Filed 04/22/20 Page 33 of 33
with Description DOCKET PART(S) ADDED: 6517188, 6517189, 6517190, 6517191, 6517192
5

 
 Case 4:19-cv-00449-KGB Document 156 Filed 04/22/20 Page 1 of 6
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
___________________
No: 20-1791 ___________________
In re: Leslie Rutledge, in her official capacity as Attorney General of the State of Arkansas; Larry Jegley, in his official capacity as Prosecuting Attorney of Pulaski County; Matt Durrett, in his official capacity as Prosecuting Attorney of Washington County; Sylvia D. Simon, M.D., in her official capacity as Chairman of Arkansas State Medical Board; Robert Breving, M.D., in his official capacity as member of the Arkansas State Medical Board; Veryl D. Hodges, D.O., in his official capacity as member of the Arkanas State Medical Board; John H. Scribner, M.D., in his
official capacity as member of the Arkansas State Medical Board; Omar Atiq, M.D., in his official capacity as member of the Arkansas State Medical Board; Rhys L. Branman, M.D., in his official capacity as member of the Arkansas State Medical Board; Rodney Griffin, M.D., in his
official capacity as member of the Arkansas State Medical Board; Marie Holder, in her official capacity as member of the Arkansas State Medical Board; Brian T. Hyatt, M.D., in his official
capacity as member of the Arkansas State Medical Board; Larry D. Lovell, "Buddy" in his offical capacity as member of the Arkansas State Medical Board; Timothy C. Paden, M.D., in his official capacity as member of the Arkansas State Medical Board; Don R. Phillips, M.D., in his offical capacity as member of the Arkansas State Medical Board; William L. Rutledge, M.D., in his official capacity as member of the Arkansas State Medical Board; David L. Staggs, M.D., in
his official capacity as member of the Arkansas State Medical Board; Nathan Smith, M.D., M.P.H., in his official capacity as Director and State Health Officer of the Arkansas Department
of Health
Petitioners
------------------------------
State of Alabama; State of Alaska; State of Idaho; State of Indiana; State of Kentucky; State of Louisiana; State of Mississippi; State of Missouri; State of Montana; State of Nebraska; State of Oklahoma; State of Ohio; State of South Dakota; State of South Carolina; State of Tennessee;
State of Texas; State of Utah; State of West Virginia; American Center for Law and Justice
Amici on Behalf of Petitioner
American Academy of Family Physicians; American Academy of Nursing; American Academy of Pediatrics; American College of Osteopathic Obstetricians and Gynecologists; American
Psychiatric Association; American Society for Reproductive Medicine; North American Society for Pediatric and Adolescent Gynecology; National Association of Nurse Practitioners in
Women's Health; Society of Family Planning; Society of Gynecologic Surgeons; Society of OB/GYN Hospitalists
Amici Curiae ______________________________________________________________________________
Appeal from U.S. District Court for the Eastern District of Arkansas - Central (4:19-cv-00449-KGB)
______________________________________________________________________________
Appellate Case: 20-1791 Page: 1 Date Filed: 04/22/2020 Entry ID: 4905365

Case 4:19-cv-00449-KGB Document 156 Filed 04/22/20 Page 2 of 6 JUDGMENT
Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges. Petition for writ of mandamus has been considered by the court and is granted in part.
The district court is ordered to dissolve the TRO of April 14, 2020, in accordance with the opinion of this court.
The emergency motion to stay the ex parte TRO and for a temporary administrative stay is denied as moot.
Mandate shall issue forthwith. April 22, 2020
Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit. ____________________________________
/s/ Michael E. Gans
Appellate Case: 20-1791 Page: 2 Date Filed: 04/22/2020 Entry ID: 4905365

Case 4:19-cv-00449-KGB Document 156 Filed 04/22/20 Page 3 of 6

Abigail Temple

From: Sent: Subject:

ca08ml_cmecf_Notify@ca8.uscourts.gov Wednesday, April 22, 2020 9:44 AM 20-1791 In Re: Leslie Rutledge, et al "judgment filed granted in part for writ of mandamus" (4:19cv-00449-KGB)

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing.
Eighth Circuit Court of Appeals
Notice of Docket Activity
The following transaction was filed on 04/22/2020
Case Name: In Re: Leslie Rutledge, et al Case Number: 20‐1791 Document(s): Document(s)

Docket Text: JUDGMENT FILED ‐ Granting in Part [4903222‐2] petition for writ of mandamus filed by Petitioners William L. Rutledge, Mr. Nathan Smith, Mr. Larry Jegley, Mr. Omar Atiq, Mr. John H. Scribner, Ms. Sylvia D. Simon, Leslie Rutledge, Matt Durrett, Mr. Robert Breving, Veryl D. Hodges, Ms. Marie Holder, Mr. Larry D. Lovell, Mr. David L. Staggs, Rhys L. Branman, Rodney Griffin, Brian T. Hyatt, Timothy C. Paden and Don R. Phillips. The district court is directed to dissolve the TRO of April 14, 2020, in accordance with the opinion of this court. [4905365]; Denying as moot [4903227‐3] emergency motion to stay the ex parte TRO and for temporary administrative stay filed by Mr. Nicholas Jacob Bronni. JAMES B. LOKEN, BOBBY E. SHEPHERD and RALPH R. ERICKSON Adp Jan 2020 [4905365] [20‐1791] (Catherine Dolan)
Notice will be electronically mailed to:
Honorable Kristine G. Baker, U.S. District Judge: Kristine_Baker@ared.uscourts.gov Mr. Nicholas Jacob Bronni: nicholas.bronni@arkansasag.gov Ms. Bettina E. Brownstein: bettinabrownstein@gmail.com Ms. Meagan M. Burrows: mburrows@aclu.org, fyitayew@aclu.org Ms. Susan Talcott Camp, Deputy Director: tcamp@aclu.org, sfermin@aclu.org Mr. Michael A. Cantrell, Assistant Solicitor General: Michael.Cantrell@ArkansasAG.gov, cheryl.hall@arkansasag.gov Ms. Anisha S. Dasgupta, Deputy Solicitor General: anisha.dasgupta@ag.ny.gov Ms. Leah Godesky: lgodesky@omm.com, leah‐godesky‐1685@ecf.pacerpro.com Ms. Ruth E. Harlow: rharlow@aclu.org Ms. Rebecca Rhodes Jackson: beckywesth@gmail.com Mr. Dylan L. Jacobs, Assistant Solicitor General: dylan.jacobs@arkansasag.gov Mr. Jim McCormack, Clerk of Court: ared_appeals@ared.uscourts.gov Ms. Elizabeth B. Murrill: murrille@ag.louisiana.gov Ms. Maithreyi Ratakonda: mai.ratakonda@ppfa.org, annie.mason@ppfa.org, jessica.quinter@ppfa.org,
1

Case 4:19-cv-00449-KGB Document 156 Filed 04/22/20 Page 4 of 6
angela.wu@ppfa.org Ms. Nicole A. Saharsky: nsaharsky@mayerbrown.com, wdc.docket@mayerbrown.com, 9664124420@filings.docketbird.com Ms. Kelly M. Scavone: kscavone@omm.com Mr. Benjamin Paul Sisney: bsisney@aclj.org, benjaminsisney@gmail.com Mr. J. Scott St. John: stjohnj@ag.louisiana.gov Ms. Kendall Turner: kendallturner@omm.com, hknoll@omm.com Mr. Vincent M. Wagner: vincent.wagner@arkansasag.gov, cheryl.hall@arkansasag.gov Ms. Brooke‐Augusta Ware: brooke@mannkemp.com Mr. Brett David Watson: watson@bdwpllc.com Mr. Edward Lawrence White: ewhite@aclj.org, elwhite3@yahoo.com, JeanneWhite3@yahoo.com
Notice will be mailed to:
Mr. Christopher P. Burke O'MELVENY & MYERS Times Square Tower 7 Times Square New York, NY 10036‐0000
Ms. Ashley Robertson O'MELVENY & MYERS 1625 Eye Street, N.W. Washington, DC 20006‐4001
Mr. Stuart J. Roth AMERICAN CENTER FOR LAW & JUSTICE 201 Maryland Avenue, N.E. Washington, DC 20002‐0000
Mr. Jay Alan Sekulow AMERICAN CENTER FOR LAW & JUSTICE 201 Maryland Avenue, N.E. Washington, DC 20002‐0000
Mr. Jordan Sekulow AMERICAN CENTER FOR LAW & JUSTICE 201 Maryland Avenue, N.E. Washington, DC 20002‐0000
Ms. Christina A. Stierhoff AMERICAN CENTER FOR LAW & JUSTICE 201 Maryland Avenue, N.E. Washington, DC 20002‐0000
Ms. Olivia F. Summers AMERICAN CENTER FOR LAW & JUSTICE 201 Maryland Avenue, N.E. Washington, DC 20002‐0000
2

Case 4:19-cv-00449-KGB Document 156 Filed 04/22/20 Page 5 of 6
Ms. Maya Zagayer O'MELVENY & MYERS 1625 Eye Street, N.W. Washington, DC 20006‐4001
Mr. Erik Zimmerman AMERICAN CENTER FOR LAW AND JUSTICE Suite 203 3001 Plymouth Road Ann Arbor, MI 48105
The following document(s) are associated with this transaction: Document Description: Judgment Original Filename: /opt/ACECF/live/forms/CathyDolan_201791_4905365_JudgmentsForWrits_493.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=04/22/2020] [FileNumber=4905365‐0] [b335bb112cbe04a5878ae28ca74e240b045dd0bb5b7ef38a55b2f7b82af0cb5bf14fdfb88c41b8306682584d5c3d1964e28 b750406e0870d8d8a7dc9ad3fdfce]] Recipients:
 Honorable Kristine G. Baker, U.S. District Judge  Mr. Nicholas Jacob Bronni  Ms. Bettina E. Brownstein  Mr. Christopher P. Burke  Ms. Meagan M. Burrows  Ms. Susan Talcott Camp, Deputy Director  Mr. Michael A. Cantrell, Assistant Solicitor General  Ms. Anisha S. Dasgupta, Deputy Solicitor General  Ms. Leah Godesky  Ms. Ruth E. Harlow  Ms. Rebecca Rhodes Jackson  Mr. Dylan L. Jacobs, Assistant Solicitor General  Mr. Jim McCormack, Clerk of Court  Ms. Elizabeth B. Murrill  Ms. Maithreyi Ratakonda  Ms. Ashley Robertson  Mr. Stuart J. Roth  Ms. Nicole A. Saharsky  Ms. Kelly M. Scavone  Mr. Jay Alan Sekulow  Mr. Jordan Sekulow  Mr. Benjamin Paul Sisney  Mr. J. Scott St. John  Ms. Christina A. Stierhoff  Ms. Olivia F. Summers  Ms. Kendall Turner  Mr. Vincent M. Wagner  Ms. Brooke‐Augusta Ware  Mr. Brett David Watson  Mr. Edward Lawrence White  Ms. Maya Zagayer  Mr. Erik Zimmerman
3

Case 4:19-cv-00449-KGB Document 156 Filed 04/22/20 Page 6 of 6
The following information is for the use of court personnel: DOCKET ENTRY ID: 4905365 RELIEF(S) DOCKETED:
for writ of mandamus for stay DOCKET PART(S) ADDED: 6517235, 6513112, 6513122, 6517236
4

 
 Case 4:19-cv-00449-KGB Document 134 Filed 04/13/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES, et al.,
Plaintiffs,
v.
LESLIE RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas, et al.,

CIVIL ACTION
Case No. 4:19-cv-00449-KGB
PLAINTIFFS’ MOTION FOR EX PARTE TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

Defendants.

Case 4:19-cv-00449-KGB Document 134 Filed 04/13/20 Page 2 of 7
Plaintiffs Little Rock Family Planning Services (“LRFP”) and Dr. Thomas Tvedten, on behalf of themselves and their patients, hereby move the Court under Federal Rule of Civil Procedure 65 for ex parte temporary restraining order and/or preliminary injunction restraining Defendants from eliminating patients’ right to freely access surgical-abortion care, i.e., the only type of care available to women who are more than 10 weeks pregnant, as measured from the date of their last menstrual period (“LMP”) (the “COVID-19 Abortion Ban” or the “Ban”). On the morning of Friday, April 10, the Arkansas Health Department (“ADH”) demanded that clinicians at Plaintiff Little Rock Family Planning (“LRFP”) cease providing surgical-abortion care to numerous women who had already assumed the substantial burdens of making an initial trip to the clinic days before to receive the State’s mandated (in-person) “informed-consent” information. ADH stated that the provision of surgical abortion “will result in an immediate suspension of [LRFP’s] license.”1 Violation of the ADH directive also carries criminal, financial, and licensure penalties, and each day a person or business operates in violation of the guidance would constitute a separate offense.2
The issuance of a temporary restraining order without a hearing and without notice to Defendants or providing them an opportunity to respond is warranted. First, Plaintiffs have set forth specific facts in the Supplemental Complaint and in sworn declarations, attached hereto, clearly showing that immediate and irreparable injury, loss, or damage will result to Plaintiffs’ patients before Defendants can be heard in opposition. In fact, Plaintiffs have already been forced to turn away a number of women seeking care on Friday. And during the coming week, they are
1 Ex. 1. 2 See Ark. Code § 20-7-101; Executive Order to Amend Executive Order 20-03 Regarding the Public Health Emergency Concerning COVID-19 for the Purpose of Imposing Further Restrictions to Prevent the Spread of COVID-19, EO 20-13, § 2(a) (Apr. 4, 2020), https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20-13._.pdf.
1

Case 4:19-cv-00449-KGB Document 134 Filed 04/13/20 Page 3 of 7
scheduled to provide surgical care to more than 20 women, including at least 12 for whom medication abortion is not an option.3 These women will all be forced to carry their pregnancies to term against their will or, in the midst of a pandemic, assume the substantial burdens associated with attempting to travel to another State to exercise their constitutional right to access pre-viability abortion care. That is a quintessential example of immediate and irreparable harm. See Fed. R. Civ. P. 65(b)(1)(A); see also Zaxby’s Franchising, LLC v. MJM Foods, LLC, No. 3:16-CV-00137 BSM, 2016 WL 3024074, at *1 (E.D. Ark. May 25, 2016) (granting ex parte temporary restraining order to prevent customer confusion before restaurant trademark dispute could be resolved); Tempur-Pedic Int’l, Inc. v. Waste To Charity, Inc., No. 07 2015, 2007 WL 535041, at *5 (W.D. Ark. Feb. 16, 2007) (granting ex parte temporary restraining order to prevent the movement or destruction of mattresses).
Second, Plaintiffs attempted to contact counsel for Defendants on April 12, 2020, to resolve this matter without litigation, and expressly informed Defendants that Plaintiffs would be seeking emergency relief if the matter could not otherwise be resolved. These efforts to resolve the matter have been unsuccessful. See Godesky Decl., attached hereto, ¶¶ 4–5. This is more than sufficient to satisfy Plaintiffs’ obligations to give notice and, given the threat of imminent and irreparable harm, no further notice should be required. See Fed. R. Civ. P. 65(b)(1)(B); see also, e.g., GE Commercial Distribution Fin. Corp. v. Crabtree RV Ctr., Inc., 2009 WL 10707170, at *3–4 (W.D. Ark. Apr. 3, 2009) (granting ex parte temporary restraining order to protect interest in recreational vehicles even where “no efforts have been made to give notice to the Defendant,” given the threat of imminent and irreparable harm) (emphasis added); Ellis v. Jackson Nat’l Life Ins. Co.. No. 2:11CV-1064-WKW, 2011 WL 6300608, at *1–2 (M.D. Ala. Dec. 15, 2011) (finding single phone call
3 Williams Decl. ¶ 40. 2

Case 4:19-cv-00449-KGB Document 134 Filed 04/13/20 Page 4 of 7
to nonmovant’s counsel sufficient to grant ex parte temporary restraining order). As more fully explained in the accompanying brief, Plaintiffs satisfy the remaining
requirements for a temporary restraining order and a subsequent preliminary injunction because (i) Plaintiffs are likely to succeed on the merits of their claims that the COVID-19 Abortion Ban violates the constitutional rights of Plaintiffs and their patients; (ii) the balance of equities tips strongly in favor of Plaintiffs and their patients; and (iii) the public interest will be served by a temporary restraining order and/or an injunction. Plaintiffs further request that, given the nature of the relief sought and Plaintiffs’ limited means, bond be waived should the Court grant injunctive relief.
This Motion is based upon the Supplemental Complaint filed in this case, the exhibits to that Complaint, the brief filed herewith, and the following documents:
1. Attached as Exhibit 1 is a true and accurate copy of the April 10, 2020 Arkansas Department of Health cease-and-desist order.
2. Attached as Exhibit 2 is a true and accurate copy of the April 12, 2020 declaration of Lori Williams.
3. Attached as Exhibit 3 is a true and accurate copy of the April 12, 2020 declaration of Janet Cathey.
4. Attached as Exhibit 4 is a true and accurate copy of the March 21, 2020 Arkansas Department of Health Elective Surgery Guidance.
5. Attached as Exhibit 5 is a true and accurate copy of the March 30, 2020 Arkansas Department of Health Guidance Letter.
6. Attached as Exhibit 6 is a true and accurate copy of the April 2, 2020 Little Rock Family Planning Services Precautions and Protocols in Response to COVID-19 Pandemic.
3

Case 4:19-cv-00449-KGB Document 134 Filed 04/13/20 Page 5 of 7
7. Attached as Exhibit 7 is a true and accurate copy of the April 3, 2020 Arkansas Department of Health Directive on Elective Surgeries.
8. Attached as Exhibit 8 is a true and accurate copy of Arkansas State Senator Trent Garner’s March 29, 2020 tweet.
9. Attached as Exhibit 9 is a true and accurate copy of the April 6, 2020 SFGate article titled Arkansas Schools Closed for Rest of Year Due to Coronavirus.
10. Attached as Exhibit 10 is a true and accurate copy of the March 19, 2020 Arkansas Department of Health Directive to Dentists to suspend non-emergent dental care.
11. Attached as Exhibit 11 is a true and accurate copy of Governor Asa Hutchinson’s March 13, 2020 Executive Order (EO 20-05) amending EO 20-03.
12. Attached as Exhibit 12 is a true and accurate copy of the March 18, 2020 American College of Obstetricians and Gynecologists and the American Board of Obstetrics & Gynecology et al. Joint Statement on Abortion Access During the COVID-19 Outbreak.
13. Attached as Exhibit 13 is a true and accurate copy of the March 30, 2020 American Medical Association statement on government interference in reproductive health care.
14. Attached as Exhibit 14 is a true and accurate copy of the April 4, 2020 Daily Caller article titled World Health Organization: Abortion Is ‘Essential’ During Coronavirus Pandemic.
15. Attached as Exhibit 15 is a true and accurate copy of the March 19, 2020 Ambulatory Surgery Center Association COVID-19 Guidance for ASCs on Necessary Surgeries.
16. Attached as Exhibit 16 is a true and accurate copy of New Jersey Governor Phil Murphy’s March 23, 2020 COVID-19 Press Information.
17. Attached as Exhibit 17 is a true and accurate copy of the April 2, 2020 Department of Labor Unemployment Insurance Weekly Claims.
4

Case 4:19-cv-00449-KGB Document 134 Filed 04/13/20 Page 6 of 7

18. Attached as Exhibit 18 is a true and accurate copy of the April 13, 2020 declaration of Leah Godesky.

Dated: April 13, 2020

Respectfully submitted,
Leah Godesky* Christopher Burke** O’Melveny & Myers LLP Times Square Tower 7 Times Square New York, New York 10036 lgodesky@omm.com cburke@omm.com (212) 326-2254 Fax: (212) 326-2061
Kendall Turner* Ashley Robertson** Maya Zagayer** O’Melveny & Myers LLP 1625 Eye St. NW Washington, DC 20006 (202) 383-5300 kendallturner@omm.com arobertson@omm.com mzagayer@omm.com
Attorneys for Plaintiffs

5

Case 4:19-cv-00449-KGB Document 134 Filed 04/13/20 Page 7 of 7

Meagan Burrows* Ruth E. Harlow** American Civil Liberties Union Foundation 125 Broad St, 18th Floor New York, NY 10001 mburrows@aclu.org rharlow@aclu.org (212) 549-2633
Attorneys for Plaintiffs
* Motion for admission pro hac vice granted ** Motion for admission pro hac vice pending

Bettina Brownstein (AR Bar No. 85019) Bettina E. Brownstein Law Firm 904 West 2nd Street, Suite 2 Little Rock, AR 72201 bettinabrownstein@gmail.com (501) 920-1764
Brooke-Augusta Ware (AR Bar No. 2004091) Mann & Kemp, PLLC 221 West Second Street, Suite 408 Little Rock, Arkansas 72201 brooke@mannkemp.com (501) 222-7330
On Behalf of the Arkansas Civil Liberties Union Foundation, Inc. Attorney for Plaintiffs

6

Case 4:19-cv-00449-KGB Document 134-1 Filed 04/13/20 Page 1 of 2
EXHIBIT 1

Case 4:19-cv-00449-KGB Document 134-1 Filed 04/13/20 Page 2 of 2
Arkansas Department of Health
4815 West Markham Street • Little Rock, Arkansas 722fJS-3867 • Telephone (501) 661-2!XXl
Governor Asa Hutchinson Nathaniel Smith, MD, MPH, Secretary of Health
April 10, 2020
Little Rock Family Planning 4 Office Park Dr. Little Rock, AR 72211
RE: Healthcare Facility Complaint Survey Conducted April 7, 2020
Dear Administrator: We recently completed an unannounced investigation of your facility following the receipt of a complaint. The investigation was conducted on April 7, 2020, by personnel from Health Facility Services and included a review of medical records and facility staff interviews. That investigation did not reveal any deficiencies with respect to the rules for abortion facilities in Arkansas. However, your facility is in violation of the April 3, 2020 Arkansas Department of Health Directive on Elective Surgeries. That directive was posted on the ADH's website on April 3, 2020, and a copy was mailed to your facility on Monday, April 6, 2020. The April 3 Directive mandates the postponement of all procedures that are not immediately medically necessary during the COVID-19 emergency. That prohibition applies to surgical abortions that are not immediately necessary to protect the life or health of the patient. Your facility was found to be performing surgical abortions that are not immediately necessary to protect the life or health of the patient, and your facility is therefore in violation of the April 3 Directive. Your facility is required to postpone such procedures until after the COVID-19 emergency has ended and the April 3 Directive is withdrawn. Accordingly, your facility is ordered to immediately cease and desist the performance of surgical abortions, except where immediately necessary to protect the life or health of the patient. Any further violations of the April 3 Directive will result in an immediate suspension of your facility's license. Sincerely,
Becky Bennett Section Chief, Health Facility Services

Case 4:19-cv-00449-KGB Document 134-2 Filed 04/13/20 Page 1 of 38
EXHIBIT 2

Case 4:19-cv-00449-KGB Document 134-2 Filed 04/13/20 Page 2 of 38

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES et al.,

Plaintiffs, v. LESLIE RUTLEDGE, et al.,

CIVIL ACTION Case No. 4:19-cv-00449-KGB

Defendants.

DECLARATION OF LORI WILLIAMS, M.S.N, A.P.R.N., IN SUPPORT OF PLAINTIFFS’ MOTION FOR AN EX PARTE TEMPORARY RESTRAINING ORDER
AND/OR PRELIMINARY INJUNCTION I, Lori Williams, M.S.N., A.P.R.N., declare under 28 U.S.C. § 1746 and penalty of perjury that the following is true and correct: 1. I am a nurse practitioner and the Clinical Director of Plaintiff Little Rock Family Planning Services (“LRFP”). 2. I submit this Declaration in support of Plaintiffs’ Motion for a Temporary Restraining Order and/or Preliminary Injunction relating to the State’s enforcement of Executive Order 20-13 and the April 3, 2020 Arkansas Department of Health Directive on Elective Surgeries to bar all surgical abortion “except where immediately necessary to protect the life or health of the patient” (the “COVID-19 Abortion Ban”). Background and Education 3. I received my bachelor’s degree from the University of Arkansas at Fayetteville in 1998, and a Master’s degree in science and nursing from Vanderbilt University in 1999.

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4. From 2000 to 2004, I worked as a nurse practitioner at Women’s Community Health in Little Rock, a clinic that previously provided abortion care in the State. I have worked at LRFP since 2004, and have been the Clinical Director since 2007.
5. As LRFP’s current Clinical Director, I am responsible for all aspects of our dayto-day operations, including overseeing patient care in coordination with the physicians and other health-care professionals, supervising the staff, maintaining policies and procedures, interacting with Arkansas Department of Health licensing personnel when they visit to inspect or request information, and ensuring that LRFP complies with all laws and regulations.
6. In 2010, I purchased an ownership interest in LRFP, which I currently share with LRFP Medical Director Dr. Thomas Tvedten and his wife, Natalie Tvedten.
7. I am also currently the National Abortion Federation’s (“NAF”) Board Chair, and have been on the Board of Directors since 2012. NAF is a professional association of abortion providers including individuals, public and non-profit clinics, Planned Parenthood affiliates, women’s health centers, physicians’ offices and hospitals. Among other things, NAF provides accredited continuing medical education exclusively in abortion care to advance the clinical skills and update the medical techniques of abortion providers. I previously served on the NAF committee that is responsible for drafting, reviewing, and updating all clinical-policy guidelines, and routinely attend NAF conferences and communicate with NAF members regarding the standards of and developments regarding abortion care. Abortion Care at LRFP
8. LRFP has operated an abortion clinic in Little Rock since 1973, and has been licensed by the State as an abortion provider since licensing began in the mid-1980s. LRFP also offers procedures that are similar to abortion care for patients whose pregnancies end in
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miscarriage, as well as basic gynecological care, including pap smears, STD testing, and contraceptive counseling and services.
9. Abortion is one of the safest medical procedures currently available to women in the United States. It is substantially safer than giving birth, and a host of other common medical procedures, including a tonsillectomy and numerous dental procedures.1 Complications from abortion are extremely rare, and when they occur they can usually be managed in an outpatient clinic setting, either at the time of the abortion or in a follow-up visit.
10. LRFP’s patients seek abortions for a variety of personal, medical, financial, and family reasons. Many of our patients already have at least one child and have decided they cannot parent another. Some are young women who feel they are not ready to carry a pregnancy or become a parent. Others are pursuing school or career opportunities and/or they lack the necessary financial resources or a sufficient level of partner or familial support or stability. Other patients seek abortions because continuing with the pregnancy could pose a particular risk to their health, especially if their past pregnancies have been high risk, while others have received a diagnosis of a fetal anomaly. LRFP also provides care for patients who are in abusive relationships, or are pregnant as a result of rape or sexual assault.
11. LRFP provides both medication abortion and surgical abortion. Both methods are safe, effective means to terminate a pregnancy.
12. LRFP offers medication abortion from the point in pregnancy when an intrauterine pregnancy can be confirmed (typically 5-6 weeks from the first day of the patient’s last menstrual period (“LMP”)) and up to 70 days or 10 weeks LMP. Medication abortion
1 The Safety and Quality of Abortion Care in the United States, THE NATIONAL ACADEMIES OF SCIENCES, ENGINEERING, MEDICINE, at 74–75 (2018), available at https://www.nap.edu/ read/24950.
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involves taking a combination of two pills, mifepristone and misoprostol, after which the patient expels the contents of the pregnancy in a manner similar to a miscarriage.
13. Despite the name, surgical abortions do not involve what is commonly understood to be “surgery.” There are no incisions, and no need for general anesthesia. LRFP provides two types of surgical abortion: (1) aspiration abortion (which primarily involves the use of gentle suction to safely empty the contents of the uterus) from approximately 3-4 weeks LMP through approximately 13 weeks LMP, and (2) a dilation and evacuation (“D&E”) procedure typically beginning around 14 weeks LMP through 21.6 weeks LMP, which is the legal limit in Arkansas. A D&E procedure involves the use of surgical instruments in addition to gentle suction, and typically takes longer to perform and requires more time in a recovery room than an aspiration abortion procedure. In addition, D&E procedures performed after 18 weeks LMP at LRFP typically require an additional visit to the clinic to dilate the cervix the day before the procedure is performed.
14. Under current Arkansas law, and the State-mandated abortion-delay requirement, women who seek either medication or surgical abortion care at LRFP must visit the clinic to receive an ultrasound and State-mandated options counseling at least 72 hours before the procedure (LRFP provides additional, non-directive counseling before the procedure itself).
15. In 2019, LRFP provided approximately 1,950 abortions, 1,725 of which were surgical procedures. Of those, nearly half were provided to women beyond 10 weeks LMP for whom medication abortion would not have been an option. From January through March 2020, LRFP provided 526 abortions, 478 of which were surgical procedures, 226 of which were beyond the 10-week cut off for medication abortion care.
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16. It is common for a woman who can choose between a medication and surgical abortion (i.e., a woman who is less than 10 weeks LMP) to have a strong preference for a surgical abortion. Although there are many reasons for this (and other women have a strong preference for medication abortion), many women prefer the surgical option because it is shorter in duration, and women are generally able to return to work and other responsibilities shortly afterwards. Other women may have a pre-existing medical condition (e.g., anemia, low hemoglobin or blood-clotting disorders) that makes having a medication abortion contraindicated.
17. LRFP is the only abortion clinic in Arkansas that offers surgical abortions. 18. Surgical abortion does not require extensive personal protective equipment (“PPE”). For the State-mandated ultrasound that must be performed before every abortion, we use only non-sterile gloves. For the procedure itself, the physician uses sterile gloves (one pair per procedure), and a surgical mask (worn throughout the day); the assistant uses only a surgical mask (also worn throughout the day) and gloves. When necessary, LRFP uses reusable gowns and reusable eyewear. 19. While LRFP’s patients generally seek abortion as soon as they are able to, a multitude of logistical obstacles cause many of our patients to experience delay in their ability to access abortion care. For example, a substantial percentage of our patients are poor or have lowincomes, and struggle to raise the finances needed to obtain abortion care. Moreover, as the patient’s gestational age increases, so does the cost of getting an abortion, which can further prolong her access to care. Some of our patients face issues with unsupportive or abusive partners, or a lack of access to medical care to confirm the pregnancy. Some patients, particularly those who are younger or have irregular periods, may not recognize that they are
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pregnant right away. Others may experience difficulties navigating the medical system, including finding a provider and scheduling an appointment.
20. Based on my counseling conversations with patients, I know that the time, money and effort required to make the necessary plans to come to LRFP cause anxiety and stress, which would only be exacerbated by further travel and logistical arrangements. The need to arrange for time off work on multiple days can be very challenging, and many LRFP patients are in lowwage jobs where they likely do not receive vacation or sick days. Taking time off means less pay, which is extremely burdensome for many lower-income women who struggle to raise the funds for abortion care. These women also routinely report that they risk their employment and confidentiality by asking for time off. Patients who already have children must typically arrange and potentially pay for childcare during the time they are traveling to the clinic and receiving care. Patients must also arrange and pay for transportation, which presents a major challenge in rural Arkansas. There are few public-transportation options, and rural residents often live far away from health-care providers.
21. The mandated delays imposed by Arkansas law compound the challenges that women face in obtaining abortion care. Arkansas law forces patients to delay their abortions for at least 72 hours after receiving State-mandated in-person counseling. Similarly, Arkansas law requires that an unemancipated minor patient obtain either parental consent or a judicial order excusing them of that requirement before they can receive abortion care. For those that choose to involve a parent, negotiating a time when a parent (who may have work and other obligations) can accompany them to the clinic may delay them from accessing care. And for those who cannot involve a parent, navigating the judicial system in order to obtain the required order waiving Arkansas’s consent requirement likewise causes them to delay their abortion.
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22. Every day that one of our patients remains pregnant, she experiences additional financial, emotional, and physical consequences. For example, as a pregnancy progresses, the costs associated with abortion care increase. An abortion performed prior to 11 weeks LMP typically costs around $700, whereas abortion care nearing 21 weeks LMP can cost nearly three times that much in view of the relative complexity of the procedure. Thus, forcing a woman to delay her abortion may push a patient past the point at which she is able to afford care. And while abortion is one of the safest medical procedures currently available, the risks associated with the procedure increase as the pregnancy progresses. Delay may also worsen any health conditions that either pre-exist the pregnancy or are brought on by the pregnancy. Delay can likewise affect the type of abortion a patient can receive, such as by forcing a patient who would have received an aspiration abortion (available up to approximately 13 weeks LMP) to undergo a D&E abortion (available up to 21.6 weeks LMP). If pushed past 18 weeks LMP, delay will also likely require a patient to visit the clinic an additional time on the day before the procedure to dilate her cervix, further exacerbating the challenges discussed above. And delay can push a patient beyond the point at which abortion is available in the State (i.e., 21.6 weeks LMP), and prevent her from accessing abortion care at all, thereby forcing her to carry to term against her will. Arkansas’s COVID-19-Related Actions With Regard To Abortion Care, and LRFP’s Response
23. In recent months, governments around the world have implemented orders and directives relating to the public-health crisis arising from the spread of COVID-19. In Arkansas, the Arkansas Department of Health (“ADH”) issued a guidance letter on March 21, 2020 relating
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to elective surgeries.2 The stated goals were to “preserve staff, personal protective equipment (PPE), and patient care supplies; ensure staff and patient safety; and expand available hospital capacity during the COVID-19 pandemic.”3 The ADH’s guidance letter recommended that “[p]rocedures … that can be safely postponed shall be rescheduled to an appropriate future date” but stated that “time-sensitive care will continue.”4 The ADH’s guidance exempted “small rural hospitals under 60 beds,” and circumstances that would increase the “threat to the patient’s life if the procedure is not performed,” risk of “progression of staging of a disease or condition if surgery is not performed,” or “there is a risk that the patient’s condition will rapidly deteriorate if surgery is not done.”5
24. The ADH’s guidance was reiterated in another letter issued on March 30, 2020.6 25. In the meantime, beginning in mid-March 2020, LRFP began to put in place measures to protect its patients and staff by reducing the spread of infection while ensuring that patients in need of time-sensitive abortion care could continue to access our services. LRFP determined that it would cease providing basic gynecological care—i.e., pap smears, STD testing, and contraceptive counseling and services—and that, where possible and permitted by law, prescriptions would be administered over the phone. LRFP also began performing enhanced telephonic and in-person screening of patients for COVID-19 symptoms, and
2 A copy of the ADH’s March 21, 2020 guidance letter is accessible at https://www.healthy.arkansas.gov/images/uploads/pdf/Elective_Surgery_Guidance_3.21.20final. pdf 3 Id. 4 Id. 5 Id. 6 A copy of the ADH’s March 30, 2020 guidance letter is accessible at https://www.healthy.arkansas.gov/images/uploads/pdf/ADH_elective_procedures_letter.pdf
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staggering patient appointment times to reduce the number of patients at the facility at any given time, minimizing possibilities for exposure.
26. LRFP then expanded upon and formalized these precautions in its April 2, 2020 COVID-19 Response Protocol (“LRFP Protocol”).7 That protocol sets forth detailed information about (1) postponement of LRFP services for which delay would not risk harm to the patient (i.e., certain gynecological care); (2) screening patients for symptoms of infection, both telephonically and on site; (3) staggering appointment times in order to minimize in-person contact and shorten the time patients spend in clinical space; (4) spacing individuals at least 6 feet apart in waiting areas to comply with the State’s and CDC’s “social distancing” guidelines; (5) limiting visitors and support people by requiring that they sit in cars or return home until patients are ready to be picked up; (6) performing temperature checks on all individuals entering the building (including staff); and (7) enhancing infection control protocols with frequent clinic sanitization and education of patient etiquette.8 Given these changes, LRFP has only 6-8 patients in the waiting area at any given time, patients undergoing treatment are in individual rooms, and patients are never within 6 feet of each other, including during recovery. In addition, and where applicable, LRFP counsels its patients to seek care at a clinic closer to their home in order to minimize the patient’s travel and risk of exposure during the COVID-19 pandemic.
27. The LRFP Protocol also states that “LRFP is aware of the PPE shortage our healthcare system is currently facing,” and “is committed to using only the PPE that is necessary to protect [its] patients and staff.”9 As explained above, neither LRFP, nor abortion care in
7 Ex. 1. 8 Id. 9 Id.
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general, requires extensive PPE. LRFP is self-sustaining in terms of PPE for the next several months, and is prepared to switch to cloth/reusable masks should it become necessary. LRFP placed an order for additional PPE through NAF earlier this month, but that order has not yet been filled. LRFP has no intention of utilizing any State PPE stockpiles or resources.
28. At LRFP, the use of N-95 masks, the PPE that appears to be in shortest supply in battling the COVID-19 pandemic, is limited to two staff members who self-sourced their masks and have underlying conditions or live with someone who does. Likewise, because all our procedures are performed in our own outpatient facility, we are not using any hospital resources that may be needed for COVID-19 response—no hospital staff or supplies, no hospital beds (let alone ICU beds), and no ventilators.
29. LRFP is adhering rigorously to the LRFP Protocol in order to protect its patients and staff, and to aid in decreasing the spread of COVID-19.
30. On April 1, 2020, representatives from the ADH twice called LRFP to inquire about what the clinic was doing to reduce non-essential services, preserve PPE, and protect against the spread of COVID-19. On both occasions, I summarized the practices outlined in the LRFP Protocol discussed above. At no point during either conversation did the ADH representatives suggest that LRFP was not complying with the State’s elective-surgery guidance, and on April 1, 2020, LRFP received a letter confirming our compliance with “applicable provisions of the Rules and Regulations for Licensure.”10
31. On April 3, 2020, the ADH issued a Directive reiterating the goals and instructions from the ADH’s March 21, 2020 guidance (the “April 3 ADH Directive”).11 When
10 Ex. 2. 11 A copy of the April 3 ADH Directive is available at www.healthy.arkansas.gov/images/uploads/pdf/Elective_Procedure_Directive_April_3.pdf.
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Governor Asa Hutchinson was asked about the April 3 Directive during an April 6, 2020 press
conference, State Health Director Dr. Nate Smith explained that it is “not intended to replace a
physician’s judgment,” and reiterated that the April 3 Directive encompasses only procedures that can “be safely deferred.”12 At no point during the conference did the Governor or Dr. Smith
suggest that surgical abortion is not permissible under the April 3 Directive.
32. On April 4, 2020, by Executive Order 20-13, Governor Asa Hutchinson declared the State of Arkansas “a disaster area.”13 He declined, however, to issue a stay-home order to all Arkansas residents,14 and all businesses, manufacturers, construction companies, and places of
worship in the State are open and operational so long as they adhere to certain social-distancing guidelines.15 The Executive Order also states that a violation of a directive from the Secretary of
Health “is a misdemeanor offense, and upon conviction thereof is punishable by a fine of not less
than one hundred ($100) nor more than five hundred dollars ($500) or by imprisonment not exceeding one (1) month, or both.”16
33. There are on-site protestors at LRFP nearly every day that we provide women
with care. Between April 4 and 10, 2020, however, the harassment and intimidation from on-site
12 Channel for Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19 Update, YouTube (Apr. 6, 2020), https://www.youtube.com/watch?v=KS2Kb4V8U3I. 13 See Executive Order To Amend Executive Order 20-03 Regarding The Public Health Emergency Concerning COVID-19 For The Purpose Of Imposing Further Restrictions To Prevent The Spread Of COVID-19 (“EO 20-13”), available at https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20-13._.pdf. EO 20-13 supersedes the Directives set out in two prior Executive Orders: EO 20-03, issued March 11, 2020, and EO 20-10, issued March 26, 2020. 14 Arkansas Gov. Asa Hutchinson on why he hasn’t issued a stay-at-home order (Apr. 8, 2020) available at https://www.pbs.org/newshour/show/arkansas-gov-asa-hutchinson-on-why-hehasnt-issued-a-stay-at-home-order. 15 See EO 20-13. 16 Id.
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protestors significantly increased. During that period, protestors summoned the police to the clinic on two occasions. And on Friday, April 10, 2020, a crowd of roughly 15 protestors gathered outside LRFP—none of whom abided by the State’s social-distancing guidelines—to harass the clinic’s staff and patients, and post pictures of their cars and license plates online. I am also aware of social-media complaints directed at the clinic beginning in March 2020, including some specifically requesting action by the Governor and state legislators to stop the provision of abortion care. For example, on March 29, 2020, state senator Trent Garner announced in a tweet that he had “asked the Governor to [ban abortions] in Arkansas …. We shouldn’t expose women to the risk of the Wuhan COVID-19 virus for an unnecessary elective procedure, and we could save the unborn babies.”17
34. On April 7, 2020, ADH inspectors performed an unannounced in-person inspection at LRFP. At no point during the inspection, which occurred on a day during which both surgical and medication abortions were provided, did the ADH representatives suggest that LRFP was not complying with the State’s April 3 Directive.
35. On April 8, 2020, the Governor gave an interview to PBS during which he discussed Arkansas’s “targeted” approach to managing risks relating to COVID-19. When asked whether he thinks “that by not requiring or ordering people to stay home, unless they have to be out, is not putting other people at risk,” the Governor responded “No.”18 He elaborated that “as long as they do what they’re supposed to do, which is social distance, wear a mask when
17 E.g., Ex. 3. 18 Arkansas Gov. Asa Hutchinson on why he hasn’t issued a stay-at-home order (Apr. 8, 2020) available at https://www.pbs.org/newshour/show/arkansas-gov-asa-hutchinson-on-why-hehasnt-issued-a-stay-at-home-order.
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you’re out, this accomplishes the purpose.”19 The Governor further said that currently in the State, there are “a lot of hospitals that are empty right now and health care workers that are empty,” presumably meaning that they are available to provide care.20
36. On April 9, 2020, the Governor and Dr. Smith were asked at a press conference if “elective surgeries” are still permitted in the State, and Dr. Smith responded that judgments at surgical centers would be left primarily to the providers.21 At no point during the conference did the Governor or Dr. Smith suggest that surgical abortion care is not permissible under the April 3 Directive.22
37. Around 10am CST, on April 10, ADH inspectors hand delivered a cease-anddesist order to LRFP (the “C&D Order”).23 It stated that the April 7 inspection “did not reveal any deficiencies with respect to the rules for abortion facilities in Arkansas,” but that LRFP was “in violation of the April 3, 2020 Arkansas Department of Health Directive on Elective Surgeries.”24 The C&D Order stated that the April 3 Directive “mandates the postponement of all procedures that are not immediately medically necessary during the COVID-19 emergency,” and thus, according to ADH, the “prohibition applies to surgical abortions that are not immediately necessary to protect the life or health of the patient.”25 The C&D Order ordered LRFP to “immediately cease and desist the performance of surgical abortions, except where
19 Id. 20 Id. 21 Channel for Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19 Update, YouTube (Apr. 9, 2020), https://www.youtube.com/watch?v=Kg-qMqmycAM. 22 Id. 23 Ex. 4. 24 Id. 25 Id.
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immediately necessary to protect the life or health of the patient.”26 The C&D Order also stated that “[a]ny further violations of the April 3 Directive will result in an immediate suspension of [LRFP’s] license.”27
38. On April 10, LRFP was scheduled to provide surgical-abortion care to 8 patients whom LRFP had to turn away, including one patient at 17 weeks LMP. These patients were devastated and extremely frightened about what the C&D Order meant for their ability to access care.
39. Later on April 10, the Governor and Dr. Smith held a press conference regarding COVID-19.28 Dr. Smith admitted that he “can’t say with certainty” how long the C&D Order against LRFP will be in place, and when a reporter pressed a question regarding whether the C&D Order means that “some of [the women who would otherwise visit LRFP] are going to have a baby,” the Governor responded by asking “Is there a question remotely”?29
40. LRFP has 26 patients scheduled to receive surgical abortion care the week of April 13, 2020, including:
• 12 who are more than 10 weeks LMP (i.e., patients who are not candidates for a medication abortion, assuming it is not contraindicated);
• 8 who are more than 12 weeks LMP, and will soon require a D&E instead of an aspiration abortion to terminate their pregnancy if their abortion is delayed; and
• 3 who are more than 17 weeks LMP, and will soon require a two-day procedure
26 Id. 27 Id. 28 Channel for Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19 Update, YouTube (Apr. 10, 2020), https://www.youtube.com/watch?v=X2v1SIesdyc. 29 Id.
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instead of a one-day procedure, and in short order be past Arkansas’s legal limit for abortion care. COVID-19 And The Abortion-Care Recommendations Of Leading Medical Organizations 41. The continuation of abortion care––including surgical abortion care––alongside measures to protect patients and the public in view of COVID-19––is consistent with the recommendations of leading medical organizations. As ACOG and other well-respected medical professional organizations have observed, abortion “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.” ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (“ACOG Statement”).30 42. The conclusion of these leading health care authorities is that abortion cannot be classified as non-urgent or non-essential care during the COVID-19 outbreak: To the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure. Abortion is an essential component of comprehensive health care. It is also a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks or potentially make it completely inaccessible. The consequences of being unable to obtain an abortion profoundly impact a person’s life, health, and well-being.31 43. On April 4, 2020, the World Health Organization (“WHO”) issued a similar statement concluding that “[a]bortion is considered an essential service during the coronavirus
30 Ex. 5. Available at https://www.acog.org/news/news-releases/2020/03/joint-statement-onabortion-access-during-the-covid-19-outbreak. 31 Id.
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pandemic” and that “services related to reproductive health are considered to be part of essential services during the COVID-19 outbreak.”32
44. The American Medical Association (“AMA”)—the country’s largest medical organization and one of its foremost authorities on medical and public health matters—concurs with this conclusion. The AMA’s March 30, 2020 Statement on Government Interference in Reproductive Health Care disapproves of efforts “to ban or dramatically limit women’s reproductive health care” during the COVID-19 outbreak by “labeling procedures as ‘nonurgent.’”33
45. The national Ambulatory Surgical Center Association similarly issued guidance on March 19, 2020, which states that consideration of whether delay of a surgery is appropriate must account for the risk to the patient of delay, which in the context of the current pandemic includes “the expectation that a delay of 6-8 weeks or more may be required to emerge” into an environment with less COVID-19 prevalence.34 A delay of 6-8 weeks (and in many instances a far shorter delay) would prevent many of our patients from obtaining abortions altogether, and would subject others to enhanced medical risk. For example, in the first three months of 2020, LRFP has provided abortion care to approximately 59 patients at and after 16 weeks LMP. A delay of 6 weeks would have pushed all of them past the point when abortion is legal in Arkansas, blocking all of them from being able to obtain an abortion here at all. And there is, of course, as Dr. Smith noted during the April 10, 2020 press conference, no assurance that the COVID-19 Abortion Ban will be lifted within a 6- to 8-week period.
32 A summary of the WHO’s statement is accessible at https://dailycaller.com/2020/04/04/whoabortion-essential-coronavirus-covid-19/. 33 Ex. 6. 34 Ex. 7.
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The Effect of the COVID-19 Abortion Ban On LRFP and Its Patients 46. COVID-19 only exacerbates the above-described challenges that women already
face in obtaining abortion care in this State. As a result of COVID-19, patients have been laid off work or furloughed, rendering the financial costs of accessing and paying for abortion care even more daunting. Because the outbreak has also led to school closures throughout Arkansas, patients with childcare obligations face even greater obstacles in accessing care. And due to the limited number of persons able to congregate in one place, public transit companies like Ozark have capped the number of people on any bus to 10—i.e., 9 passengers and the driver.35 Restrictions like these further intensify the struggle of accessing care for all patients.
47. Many women therefore may not be able to make the logistical and financial arrangements necessary to arrive at LRFP for care before 10 weeks LMP and obtain a medication abortion (assuming that the procedure is not contraindicated). Those women will be forced to attempt to travel substantial distances amid a public health crisis to attempt to obtain care. This is no small feat. For example, on Friday, April 10, 2020, LRFP was forced to turn away a surgical abortion patient at 17 weeks LMP. To the best of my knowledge, the nextnearest clinic currently providing care up to 21.6 weeks LMP is in Granite City, Illinois, which is more than 700 miles (roundtrip) from Little Rock, Arkansas. To the best of my knowledge, a clinic in Shreveport, Louisiana (a 420-mile roundtrip drive from Little Rock, Arkansas, and more than 600-miles roundtrip from Fayetteville, Arkansas, where many of our patients live) is continuing to provide care up to 16.6 weeks LMP. I am, however, aware of continuing threats against Louisiana abortion providers, and the clinic may not continue to provide care long
35 See Ozark Regional Transit, available at https://www.ozark.org/. 17

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term.36 Given the substantial distances one must travel from Arkansas to obtain surgical abortion care, some women will be unable to obtain care outside Arkansas at all, and will be forced to carry to term against their will.
48. Without knowing how long the COVID-19 Abortion Ban will last, it is impossible to estimate how many women will lose their ability to abortion care as a result. As stated, women whose pregnancies exceed 21.6 weeks LMP during the ban will necessarily lose their right to access care under Arkansas law. Additionally, women who do not exceed 21.6 weeks LMP during the Ban’s pendency may nonetheless lose access to abortion care as a result of a backlog in abortion procedures not performed while the Ban is in place. LRFP’s capacity to see surgical abortion patients is approximately 20 to 25 patients per day. Thus, for each day that the COVID-19 Abortion Ban remains in effect, roughly two dozen women that would have otherwise received care are added to an ever-growing “waitlist” that will far exceed LRFP’s immediate capacity.
49. Providing pregnant women with immediate access to abortion care is more critical now in the face of this pandemic. Every day that one of our patients remains pregnant, she not only experiences emotional and physical consequences, but also risks contracting the COVID-19 virus, jeopardizing her ability to visit a clinic and receive time-sensitive care. In addition, the longer a woman is forced to remain pregnant—and especially if forced to carry a pregnancy to term—the heavier a burden she becomes on an already threatened healthcare system. Pregnant women need continuing prenatal care consisting of regular hospital visits, medical attention, and increased use of PPE, all of which increase her exposure to COVID-19 and contradict social
36 Gov. Edwards Confirms Investigation of Louisiana Abortion Clinics For Coronavirus Shutdown Violations (Apr. 9, 2020), available at https://www.wwno.org/post/gov-edwardsconfirms-investigation-louisiana-abortion-clinics-coronavirus-shutdown-violation.
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Case 4:19-cv-00449-KGB Document 134-2 Filed 04/13/20 Page 20 of 38 distancing guidelines. Eventually, these patients will go into labor and give birth, requiring hospital rooms, hospital beds, more attention from medical professionals, and of course, more PPE.
50. In short, enforcement of the COVID-19 Abortion Ban would be devastating, with life-altering consequences for the women and families who come to us in a time of need (e.g., forcing a woman to carry an unwanted pregnancy to term). It would also be an untenable situation for the physicians and staff at LRFP, including myself, who are dedicated to providing compassionate and nonjudgmental health care to our patients.
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Case 4:19-cv-00449-KGB Document 134-2 Filed 04/13/20 Page 21 of 38 I declare under penalty of perjury that the foregoing is true and correct.
� Executed this/l day of April, 2020.
�U�treu
Lori Williams, M.S.N., A.P.R.N.
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EXHIBIT 1

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r1_(psTM Little Rock

J

Fami'ly Planning 'Services

LRFP’s Precautions and Protocols in Response to COVID-19 Pandemic1
LRFP’s patients, visitors, and staff are our highest priority. We are working hard to reduce and prevent the spread of COVID-19 and protect the health and safety of our patients and staff by implementing the following protective measures consistent with the recommendations set forth by the CDC, Arkansas Department of Health and other professional medical organizations and public health authorities:
Patient and Staff Screening:
Prior to scheduling an appointment and upon arrival at LRFP, all individuals are asked the following screening questions:
• Do you have a fever (99.5 degrees or greater), cough, shortness of breath, sore throat, nausea, diarrhea, or fatigue not associated with pregnancy?
• Have you been in contact with someone who has these symptoms or has tested positive for COVID-19?
• Have you traveled outside the United States in the last 21 days?
Patients who answer YES to any of the above questions are instructed to return to their car and call the front desk. A member of the LRFP staff will then provide each such patient with individualized instructions based on their needs and circumstances.
Staff are also required to report any contact with an individual known or suspected to have COVID-19, and must immediately report to the MD or APRN if they experience a cough or any combination of symptoms listed above. Any staff member with suspected symptoms will be referred to the University of Akansas for Medical Sciences (UAMS) for screening. If tested, they will not be permitted to work until a negative test is confirmed. If the staff member tests positive, they will not be permitted to return to LRFP until 2 negative tests are confirmed, or at least 72 hours after resolution of symptoms.
1 The precautions and protocols described herein are not intended to be exhaustive and are consistently changing in order to best respond to the evolving COVID-19 pandemic.
1

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Temperature Check:
Every individual (including staff) entering LRFP must undergo a temperature check upon arrival. If an individual’s temperature is confirmed to be greater than 99.5, an MD or APRN will be immediately notified.
Postponement of Services:
We have evaluated the services and procedures offered by LRFP and have postponed any that are not time-sensitive and for which delay would not risk harm to the patient.
Social Distancing:
The CDC recommends that individuals “socially distance” themselves, which is defined as 6 feet distance from other individuals. As a result, patient appointments will be staggered to decrease the number of persons in the clinic and waiting area at any given time. Patients will also be spaced at least 6 feet from one another while seated in the waiting area. In addition, all LRFP staff and healthcare professionals will work efficiently to discharge patients as soon as medically appropriate to shorten the overall time patients spend in our clinic.
Visitor Policy:
LRFP is limiting the visitors/support people that may accompany patients. Only patients will be admitted into the building at this time. Support people may wait outside, sit in their cars, or return home until patients are ready for pickup. Essential support people (e.g., parents of minors) are permitted but must follow “social distancing” practices in the waiting area. Should it become necessary, LRFP may ask patients to wait in their cars until they can be seen by a healthcare professional.
Cleaning and Infection Control:
• Consultation rooms are thoroughly cleaned and disinfected between each patient.
• Bathrooms, waiting areas, and “high-touch” surfaces (door handles, counseling pages, pens, chairs, tables, etc.) are thoroughly cleaned and sanitized frequently.
• Chairs are spread out to ensure patients can appropriately socially distance themselves in the waiting area.
2

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• All books, magazines, toys, and other items regularly displayed in the waiting areas have been removed.
• All persons entering the building are required to hand sanitize. • Hand sanitizer is accessible to all patients for use while at the clinic and upon
departure. • Patients are encouraged to practice appropriate cough and tissue disposal
etiquette. Preservation of Personal Protective Equipment (PPE): LRFP is aware of the PPE shortage our healthcare system is currently facing. In order to aid in combatting this shortage, LRFP is committed to using only the PPE that is necessary to protect our patients and staff. LRFP does not utilize the N-95 respirators (masks) that are critical for first responders fighting COVID-19. We are all in this together. LRFP is in close communication with various agencies and organizations to stay on top of the evolving COVID-19 situation. For more information on how to protect yourself, please visit the CDC website: https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html
3

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EXHIBIT 2

,..

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Arkansas Department of Health
SSOOWestTenthSt. Suite400 • Little Rock, Arkansas]~• Telephone(501)661-2.a>1 Governor Asa Hutchinson
Nathaniel Smith, MD, MPH, Secretary of Health

April 1, 2020
Lori Williams, Administrator Little Rock Family Planning Services, PLLC #4 Office Park Drive Little Rock, AR 72211
RE: Licensure Abortion Clinic Complaint Survey Conducted 04/01 /2020
Dear Ms. Williams:
Little Rock Family Planning Services, PLLC is considered to be in compliance with applicable provisions of the Rules and Regulations for Licensure. We appreciate the cooperation of the facility staff during the survey.
If you have any questions, please call (501) 661-2201.
Ifwe may be of assistance at any time, please call (501) 661-2201.
Sincerely,

Becky Bennett, Section Chief Health Facility Services Arkansas Department of Health
/LS

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EXHIBIT 3

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Trent Garner For Senate
@Garner4Senate
I asked the Governor to do this in Arkansas last week. We shouldn't expose women to the risk of the Wuhan COVID-19 virus for an unnecessary elective procedure, and we could save the unborn babies lives. #arpx #arleg #ARNews lifenews.com/2020/03/27/okl. ..

Oklahoma Gov Orders Abortion Businesses... Add Oklahoma to the list of states where the governor has made it clear that abortion businesses must stop kiling babies in abortions
lifenews.com

Q 8 9:28 AM - Mar 29, 2020

CD

g See Trent Garner For Senate's other Tweets

>

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EXHIBIT 4

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Arkansas Department of Health
4815 West Markham Street • Little Rock, Arkansas 72205-3867 • Telephone (501) 661-200J
Governor Asa Hutchinson Nathaniel Smith, MD, MPH, Secretary of Health
April 10, 2020
Little Rock Family Planning 4 Office Park Dr. Little Rock, AR 72211
RE: Healthcare Facility Complaint Survey Conducted April 7, 2020
Dear Administrator: We recently completed an unannounced investigation of your facility following the receipt of a complaint. The investigation was conducted on April 7, 2020, by personnel from Health Facility Services and included a review of medical records and facility staff interviews. That investigation did not reveal any deficiencies with respect to the rules for abortion facilities in Arkansas. However, your facility is in violation of the April 3, 2020 Arkansas Department of Health Directive on Elective Surgeries. That directive was posted on the ADH's website on April 3, 2020, and a copy was mailed to your facility on Monday, April 6, 2020. The April 3 Directive mandates the postponement of all procedures that are not immediately medically necessary during the COVID-19 emergency. That prohibition applies to surgical abortions that are not immediately necessary to protect the life or health of the patient. Your facility was found to be performing surgical ab01iions that are not immediately necessary to protect the life or health of the patient, and your facility is therefore in violation of the April 3 Directive. Your facility is required to postpone such procedures until after the COVID-19 emergency has ended and the April 3 Directive is withdrawn. Accordingly, your facility is ordered to immediately cease and desist the performance of surgical abortions, except where immediately necessary to protect the life or health of the patient. Any further violations of the April 3 Directive will result in an immediate suspension of your facility's license. Sincerely,
Becky Bennett Section Chief, Health Facility Services

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EXHIBIT 5

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  News Releases  Joint Statement on Abortion Access During the COVID-19 Outbreak

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Joint Statement on Abortion Access During the COVID19 Outbreak

The American College of Obstetricians and Gynecologists and the American Board of Obstetrics & Gynecology, together with the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine, released the following statement:
“As hospital systems, clinics, and communities prepare to meet anticipated increases in demand for the care of people with COVID-19, strategies to mitigate spread of the virus and to maximize health care resources are evolving. Some health systems, at the guidance of the CDC, are implementing plans to cancel elective and non-urgent procedures to expand hospitals’ capacity to provide critical care.
A D VE RTI S E M E NT

“While most abortion care is delivered in outpatient settings, in some cases care may be delivered in hospital-based settings or surgical facilities. To the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure. Abortion is an essential component of comprehensive health care. It is also a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks or potentially make it completely inaccessible. The consequences of being unable to obtain an abortion profoundly impact a person’s life, health, and well-being.
“The American College of Obstetricians and Gynecologists and the American Board of Obstetrics & Gynecology, together with the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine, do not support COVID-19 responses that cancel or delay abortion procedures. Community-based and hospital-based clinicians should consider collaboration to ensure abortion access is not compromised during this time.”

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AMA statement on government interference in reproductive health care

MAR 30, 2020

Statement attributed To: Patrice A. Harris, M.D., M.A. President, American Medical Association
“While many physicians and health care workers are on the front lines in the COVID-19 pandemic, it is unfortunate that elected o cials in some states are exploiting this moment to ban or dramatically limit women’s reproductive health care, labeling procedures as ‘nonurgent.’
“The AMA will always defend shared decision making and open conversations between patients and physicians, and ght government intrusion in medical care. At this critical moment and every moment, physicians – not politicians – should be the ones deciding which procedures are urgent-emergent and need to be performed, and which ones can wait, in partnership with our patients.”
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COVID-19: Guidance for ASCs on Necessary Surgeries
Updated March 19, 2020
In response to government guidance that hospitals and ambulatory surgery centers postpone elective surgeries during the COVID-19 pandemic, the Ambulatory Surgery Center Association (ASCA) has consulted with clinical leaders to solicit recommendations on how and when facilities should proceed with cases that, for clinical reasons, should not be postponed. A surgery may be deemed urgent and necessary if the treating physician decides that a months-long delay would increase the likelihood of significantly worse morbidity or prognosis for the patient.
First and foremost, if a procedure can be safely postponed without additional significant risk to the patient, it should be delayed until after the pandemic. The current and ongoing efforts to isolate our population and create social distancing are essential steps in saving lives by shortening and ultimately ending the COVID19 pandemic. The health and safety of patients, along with preventing the spread of COVID-19, must be our highest priority. We concur with the American College of Surgeons that “the risk to the patient should include an aggregate assessment of the real risk of proceeding and the real risk of delay, including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”
Physicians should engage with patients and families to make care decisions that minimize potential risks to patients while ensuring they receive necessary care that cannot be safely delayed. Physicians should consider the potential of post-surgical complications that could place stress on the local hospital that may lack capacity for transfers. To that end, facilities should reach out to local hospitals to establish a line of communication that ensures coordination in managing care during the pandemic.
In addition, ASCs should develop explicit controls on how to manage the infection risks of all non-patient visitors (patient caregivers, vendors, contractors, etc.) who present themselves inside the facility and should strictly prohibit all non-essential visitors. Additional social distancing policies should be employed.
Examples of cases that might still need to proceed with surgery at this time include:
Acute infection Acute trauma that would significantly worsen without surgery Potential malignancy Uncontrollable pain that would otherwise require a hospital admission A condition where prognosis would significantly worsen with a delay in treatment
Also, ambulatory surgery centers need to be prepared for the possibility that the pandemic may proceed to a point that strains the system such that hospitals will need to shift necessary surgeries to ASCs and/or ASCs and their resources will be required to serve the communities and the healthcare system in a different capacity. Additional guidance from regulatory agencies would govern those situations.
Finally, facilities need to recognize that the pandemic and its impact could create situations when ASCs may need to temporarily suspend services, such as:
When a patient, staff or physician who has been in the ASC is suspected or subsequently diagnosed with COVID-19 When there is a significant shortage of PPE (masks, gowns, gloves, etc.) that prevents safe practice of surgical cases
Clearly, this is an evolving situation and the coming days and weeks will present different challenges for healthcare facilities, such as ASCs, to grapple with as the COVID-19 pandemic runs its course. As they occur, the ambulatory surgery community will continue to work with federal, state and local health policy leaders to protect and preserve the health of the public during this crisis.

Connect with ASCA:

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES et al.,

Plaintiffs,

v. LESLIE RUTLEDGE, et al.,

Case No. 4:19-cv-00449-KGB

Defendants.

DECLARATION OF JANET CATHEY, M.D., IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY
INJUNCTION
I, Janet Cathey, M.D., declare the following: 1. I am a board-certified obstetrician-gynecologist licensed to practice
medicine in Arkansas and Oklahoma. I currently provide medical services at Planned Parenthood of Arkansas & Eastern Oklahoma, doing business as Planned Parenthood Great Plains’ (“PPAEO”) health center in Little Rock, Arkansas. A copy of my curriculum vitae is attached as Exhibit A.
2. I submit this Declaration in support of Plaintiffs’ Motion for a Temporary Restraining Order and/or Preliminary Injunction against the Arkansas Department of Health’s order that surgical abortions in the state end during the COVID-19 emergency, as further described below.
3. I received my Bachelor of Science degree and my Medical Doctor degree from the University of Arkansas. I completed my residency in obstetrics and gynecology (“OBGYN”)
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and was Chief Resident at the University of Arkansas for Medical Sciences (“UAMS”). My residency included training in abortion care to 23.0 weeks.
4. After my residency, I provided care at my private OBGYN practice in Little Rock. My obstetrics practice included the full range of care for pregnant patients, including prenatal visits and monitoring, as well as delivery. My practice also included miscarriage and abortion care. While in private practice, I maintained full OBGYN surgical privileges. In 2013, I became an assistant professor of obstetrics and gynecology at UAMS. At UAMS, I taught residents in the OBGYN department, including in surgical cases, and maintained my own operative privileges.
5. In early 2018, I was approached by Brandon Hill, the CEO of PPAEO, to provide reproductive health care services at PPAEO’s Little Rock health center. I began working at the health center in May 2018.
6. At PPAEO’s Little Rock health center, I provide a range of family planning services, transgender care, and medication abortion. I also have extensive administrative responsibilities, including overseeing clinical staff and teaching medical students.
7. I am a Fellow in the American College of Obstetrics and Gynecology (“ACOG”) and have a Diplomat certification from the American Board of Obstetrics and Gynecology. I am a member of the Arkansas Medical Society, the Little Rock Gynecology Society, and other professional organizations.
8. The facts and opinions included here are based on my education, training, practical experience, information, and personal knowledge I have obtained as an OBGYN and abortion provider; attendance at medical conferences; continuing medical education; review of
2

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relevant medical literature; and conversations with other medical professionals and my patients. If called and sworn as a witness, I could and would testify competently thereto. The COVID-19 Abortion Ban
9. My understanding of the events giving rise to this challenge is as follows: a. On April 3, 2020, the Arkansas Department of Health issued a Directive relating
to elective surgery during the COVID-19 pandemic (the “April 3 Directive”). The April 3 Directive states that elective-surgery “[p]rocedures … that can be safely postponed shall be rescheduled to an appropriate future date.” (Emphasis added.)
b. The next day, by Executive Order 20-13, Governor Asa Hutchinson declared that a violation of a directive from the Secretary of Health “is a misdemeanor offense, and upon conviction thereof is punishable by a fine of not less than one hundred ($100) nor more than five hundred dollars ($500) or by imprisonment not exceeding one (1) month, or both.”
c. On April 10, 2020, the Arkansas Department of Health served a cease and desist order on Little Rock Family Planning Services (“LRFP”), the only provider of surgical abortions in Arkansas, requiring LRFP to stop performing surgical abortions, except “where immediately necessary to protect the life or health of the patient” (the “COVID-19 Abortion Ban”). The order specified that LRFP could not resume surgical abortions “until after the COVID-19 emergency has ended and the April 3 Directive is withdrawn.” Thus, the state has indefinitely barred surgical abortion care in Arkansas, except “where immediately necessary to protect the life or health of the patient.”
10. The April 3 Directive did not include any such categorical treatment of surgical abortions. The April 3 “ADH Directive on Elective Surgeries” allowed “urgent” care to continue, and directed that only procedures “that can be safety postponed shall be rescheduled.”
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It further explained that where there was a risk of progression of the staging of a condition, surgery could be performed.
11. I have reviewed the COVID-19 Abortion Ban and the April 3 Directive. I have reviewed the Declaration of Lori Williams, M.S.N., A.P.R.N., executed on April 12, 2020. I also continue to stay current with the latest recommendations for health professionals in light of COVID-19 from the Centers for Disease Control, ACOG, and other relevant professional bodies.
12. As I detail below, the COVID-19 Abortion Ban deprives patients of necessary health care that cannot safely be postponed and conflicts with leading medical authorities’ statements on appropriate means of combatting COVID-19. The COVID-19 Abortion Ban inflicts serious harms on patients who have nowhere else to turn for this urgent, time-sensitive care. If allowed to remain in effect, the ban will have a severe negative impact on many patients’ health and lives, without any countervailing public health benefit. Overview of Abortion and Pregnancy Facts
13. Legal abortion is one of the safest medical procedures in the United States and is substantially safer than continuing a pregnancy through to childbirth.1
14. Complications from abortion are rare, and when they occur they can usually be managed in an outpatient clinic setting, either at the time of the abortion or in a follow-up visit. Major complications—defined as complications requiring hospital admission, surgery, or blood transfusion—occur in less than one-quarter of one percent (0.23%) of all abortion cases: in 0.31% of medication abortion cases, in 0.16% of first-trimester in-clinic abortion cases, and in
1 Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States 77–78, 162–63 (2018).
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0.41% of in-clinic cases in the second trimester or later.2 Abortion-related emergency room visits constitute just 0.01% of all emergency room visits in the United States.3 The risk of death associated with childbirth is approximately fourteen times higher than that associated with abortion, and every pregnancy-related complication is more common among patients giving birth than among those having abortions.4
15. A typical pregnancy is generally 40 weeks in duration. While pregnancy can be a celebratory event for many families, even an uncomplicated pregnancy poses challenges to a woman’s entire physiology and stresses most major organs.
16. For example, during pregnancy, a woman’s heart rate increases in order to pump 30-50 percent more blood. By the second trimester, the heart is already doing 50 percent more work than usual, and that heightened rate continues throughout the rest of the pregnancy. Because of the increased blood flow, a woman’s kidneys become enlarged and the liver must produce more clotting factors to prevent the woman from bleeding to death. However, this latter change increases the risks of blood clots or thrombosis.
17. During pregnancy, a woman’s lungs must also work harder to clear both the carbon dioxide produced by her own body and the carbon dioxide produced by the fetus. Yet her very ability to breathe in the first place is hampered by the fetus growing in the woman’s abdomen, leaving most pregnant women feeling chronically short of breath. Every organ in the
2 Ushma Upadhyay et al., Incidence of Emergency Department Visits and Complications After Abortion, 125 Obstetrics & Gynecol. 175 (2015). 3 Ushma Upadhyay, et al., Abortion-related Emergency Room Visits in the United States: An Analysis of a National Emergency Room Sample, 16:88BMC Med. 1, 1 (2018). 4 Elizabeth Raymond & David Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth in the United States, 119 Obstetrics & Gynecology 215, 215 (Feb. 2012).
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abdomen—e.g., intestines, liver, spleen—is increasingly compressed throughout pregnancy by her expanding uterus.
18. It is also common for pregnant women to experience gastrointestinal symptoms like nausea and vomiting. In the most severe cases, women can experience hyperemesis gravidarum, which occurs when a woman’s nausea and vomiting is so significant that she experiences dehydration. This can require IV rehydration to replace electrolytes and IV administration of nausea medication because the patient cannot keep anything down by mouth.
19. In addition to these physiological symptoms associated with pregnancy, a pregnant woman may also experience complications associated with continuing a pregnancy. Pre-existing conditions, including high blood pressure or hypertension, diabetes or other renal abnormalities, and autoimmune disorders can worsen during pregnancy. Other conditions, such as gestational diabetes, gestational hypertension or pregnancy-induced hypertension, and preeclampsia may arise as a consequence of pregnancy.
20. Pregnancy-induced conditions occur in their most severe form prior to 20 weeks, as measured from the patient’s last menstrual period (“LMP”). Women who have had a history of pregnancy-induced conditions such as preeclampsia or gestational diabetes with prior pregnancies are also at higher risk for developing those conditions in subsequent pregnancies, requiring earlier and more frequent prenatal surveillance.
21. Even an uncomplicated pregnancy can unexpectedly become life-threatening during the course of labor and delivery. Furthermore, one-third of pregnancies result in a caesarean section (C-section) delivery. Even though C-section deliveries are relatively common, it is still a significant abdominal surgery that carries risks of hemorrhage, infection and injury to
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internal organs. It is not uncommon for a vaginal delivery to result in tears or injuries to the pelvic floor that may require extensive repairs.
22. Arkansas has one of the highest rates of maternal mortality in the country. 23. There is a 15 to 20 percent risk of miscarriage present in every pregnancy. Complications from miscarriage include infection, hemorrhage, and even death. In approximately half of all miscarriages, women will seek medical attention. 24. Abortion is extremely common; approximately one in four women in this country will have an abortion by age forty-five.5 25. There are two primary methods of abortion: medication abortion and surgical abortion. Both methods are safe, effective means to terminating a pregnancy.6 Medication abortion involves a combination of two pills: mifepristone and misoprostol.7 Patients takes the mifepristone in the clinic and then, typically twenty-four to forty-eight hours later, takes the misoprostol at a location of their choosing, most often at their home, after which they expel the contents of the uterus in a manner similar to a miscarriage. In Arkansas, medication abortion is available up to 70 days or 10.0 weeks LMP. 26. “Surgical” abortion involves no incision and no need for general anesthesia. In the first trimester, surgical abortions are generally performed using suction curettage technique (or aspiration), which involves using a curette connected to a suction apparatus to gently empty the contents of the uterus. This procedure typically takes five to ten minutes. Starting around 14
5 See Guttmacher Inst., Abortion Is a Common Experience for U.S. Women, Despite Dramatic Declines in Rates (Oct. 19, 2017), https://www.guttmacher.org/news-release/2017/abortion-common-experience-us-women-despitedramatic-declines-rates. 6 Luu Doan Ireland et al., Medical Compared With Surgical Abortion for Effective Pregnancy Termination in the First Trimester, 126 Obstetrics & Gynecol. 22, 22 (2015). 7 Nat’l Acads., supra note 1, at 51.
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weeks LMP, abortions are generally performed using a method called dilation and evacuation (“D&E”), in which clinicians dilate the cervix further and use a combination of suction and instruments to empty the uterus. While still a very safe procedure, D&E is more complex than aspiration abortion, especially as gestation advances, and takes longer than aspiration abortion. In Arkansas, abortions may not be performed at and after 22.0 weeks LMP. A gestational age of 21.6 LMP is the legal limit, except in extremely narrow circumstances.
27. Medication abortion can be contraindicated in patients with certain medical conditions. These conditions include chronic renal failure, liver insufficiency, chronic steroid use, and severe anemia or bleeding disorders that make surgical abortion a more appropriate procedure.
28. In my experience, individuals seek abortion for a multitude of complicated and personal reasons; these reasons are well thought out and patients do not make these decisions lightly.
29. Some patients have abortions because they conclude that it is not the right time to become a parent or have additional children, they desire to pursue their education or career, or they lack the necessary financial resources or a sufficient level of partner or familial support or stability. Other patients seek abortions because of the risks pregnancy poses to their health, especially if their past pregnancies have been high-risk.8 Other patients seek abortions after
8 M. Antonia Biggs et al., Understanding Why Women Seek Abortions in the US, 13:29 BMC Women’s Health 1, 7 (2013).
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receiving a diagnosis of a serious fetal anomaly, which often occurs near the 21.6 legal limit. Some are in abusive relationships, or are pregnant as a result of rape or sexual assault.
30. While patients generally seek abortion as soon as they are able, many face logistical obstacles that can delay access to abortion care. Some patients may not discover they are pregnant until later in their pregnancies; others may experience difficulties finding a provider and scheduling an appointment. Patients need to gather the resources to pay for the abortion and related costs, arrange transportation to a clinic, arrange for time off of work (which is often unpaid, as many patients lack paid time off or sick leave), and, for the vast majority of women seeking abortions who are mothers already,9 arrange childcare.10
31. Under current Arkansas law, and the State-mandated abortion-delay requirement, women who seek a medication or surgical abortion must visit the clinic to receive an ultrasound and State-mandated options counseling at least 72 hours before the procedure. This means that abortion patients must navigate all of the logistical challenges described above at least twice. These requirements are medically unnecessary. If the State were truly concerned about reducing trips to the clinic during the COVID-19 emergency, it would waive the requirement of a separate trip to the health facility 72 hours before an abortion or allow telemedicine counseling, as providers in other fields do.
32. Arkansas law also requires that an unemancipated minor patient obtain either parental consent or a judicial order excusing them of that requirement before they can receive
9 Guttmacher Inst., Induced Abortions in the United States 1 (Sept. 2018), https://www.guttmacher.org/sites/default/files/factsheet/fb_induced_abortion.pdf; see also Jenna Jerman et al. , Characteristics of U.S. Abortion Patients in 2014 and Changes Since 2008, Guttmacher Inst. 6, 7 (May 2016), https://www.guttmacher.org/sites/default/files/report_pdf/characteristics-us-abortion-patients-2014.pdf. 10 Jerman et al., supra note 8 at 8–10; Sarah E. Baum et al., Women’s Experience Obtaining Abortion Care in Texas After Implementation of Restrictive Abortion Laws: A Qualitative Study, 11 PLoS One 1, 7–8, 11 (2016); Lawrence B. Finer et al. , Timing of Steps and Reasons for Delays in Obtaining Abortions in the United States, 74 Contraception 334, 335 (2006).
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abortion care. For those that choose to involve a parent, negotiating a time when a parent (who may have work and other obligations) can accompany them to the clinic may delay them from accessing care. And for those who cannot involve a parent, navigating the judicial system in order to obtain the required order waiving Arkansas’s consent requirement likewise causes them to delay their abortion.
33. Although abortion is always a very safe medical procedure, the health risks associated with the procedure increase with gestational age.11 Indeed, the strongest factor associated with abortion-related mortality in the United States is gestational age, with the risk of mortality increasing exponentially with weeks’ gestation.
34. While the risk of abortion-related mortality and morbidity is very low, there is no way for a medical provider to predict in advance in which patients those risks will materialize and cause harm. Because, statistically, the risks associated with abortion increase with each week of pregnancy, if a provider were forced to select certain patients to delay, the provider would be needlessly increasing the risks to patients’ physical safety. Surgical abortion is a procedure that cannot be safely postponed.
35. Not only does delay increase the medical risks of an abortion and of pregnancy, but it can push patients past the point when a particular abortion method or any legal abortion is available. Delay causes patients to require more complex and more expensive forms of care. Aspiration abortion, for example, is available only to approximately 14 weeks LMP. After that, the only procedure available is D&E. D&E, similarly, extends from a one-day to a two-day procedure as gestational age increases. After 21.6 LMP, abortion is no longer available in
11 Nat’l Acads., supra note 1, at 77–78, 162–63.
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Arkansas, except if necessary to avert the patient’s death or substantial and irreversible physical impairment of a major bodily function.
36. If surgical abortion is not available to patients in Arkansas, they have only three possible options: (1) travel hundreds of miles to try to obtain one in another state, (2) resort to unsafe methods outside the medical system, which increases the risk they will need emergency room or operating room care, or (3) carry the pregnancy to term against their wishes. As I discuss in more detail below, for many patients—and particularly during the COVID-19 pandemic—the only real-world option will be continuing the pregnancy and bearing a child. Abortion During the COVID-19 Pandemic
37. ACOG, the leading authority in the United States for OBGYN medical practice, along with other well-respected medical professional organizations, has recently emphasized that abortion is urgent care.12 The conclusion of these leading health care authorities is that abortion cannot be classified as non-urgent or non-essential care and suspended during the COVID-19 outbreak. These authorities have made clear that:
To the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure. Abortion is an essential component of comprehensive health care. It is also a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks or potentially make it completely inaccessible. The consequences of being unable to obtain an abortion profoundly impact a person’s life, health, and well-being.13 38. On April 4, 2020, the World Health Organization (“WHO”) issued a similar statement concluding that “[a]bortion is considered an essential service during the coronavirus
12 ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortionaccess-during-the-covid-19-outbreak. 13 Id. (emphasis added).
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pandemic” and that “services related to reproductive health are considered to be part of essential services during the COVID-19 outbreak.”14
39. The American Medical Association (“AMA”)—the country’s largest medical organization and one of its foremost authorities on medical and public health matters—concurs with this conclusion. The AMA’s March 30, 2020 Statement on Government Interference in Reproductive Health Care disapproves of efforts “to ban or dramatically limit women’s reproductive health care” during the COVID-19 outbreak by “labeling procedures as ‘nonurgent.’”15
40. Prior to imposing the COVID-19 Abortion Ban, Defendant Dr. Nathaniel Smith, in press conference statements, and the Arkansas Department of Health recognized that it should be medical providers who exercised their professional judgment and determined whether a procedure was “urgent” and not “safely postponed” during the COVID-19 pandemic. But the COVID-19 Abortion Ban harmfully takes away providers’ ability to exercise that professional judgment for the benefit of Arkansas patients, and instead imposes a blanket rule that directly contravenes the uniform position of authoritative medical experts.
41. Denying patients surgical abortions here during the COVID-19 emergency not only conflicts with the leading medical authorities’ directives and bans essential, time-sensitive patient care. It also disserves Arkansas’ professed interests in conserving Personal Protective Equipment (“PPE”), reducing demands on the medical system, and diminishing in-person contact and travel.
14 A summary of the WHO’s statement is accessible at https://dailycaller.com/2020/04/04/who-abortion-essentialcoronavirus-covid-19/. 15 Available at https://www.ama-assn.org/press-center/ama-statements/ama-statement-government-interferencereproductive-health-care.
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42. In fact, the next-nearest options for Arkansas woman to currently obtain surgical abortion care are in Shreveport, Louisiana (only up to 16.6 weeks LMP), Granite City, Illinois, and Santa Fe, New Mexico. These clinics are hundreds of miles away, and involve travel to and through states that have reported substantially higher rates of COVID-19 infection than Arkansas.
43. Abortion requires far less PPE and medical attention than continuing a pregnancy. Pregnancy Care During the COVID-19 Pandemic
44. An uncomplicated pregnancy typically requires a minimum of one prenatal appointment per month, along with additional appointments to complete laboratory tests and ultrasounds. For a complicated or high-risk pregnancy, the number of visits frequently doubles. Each separate encounter with a health care provider, especially during the COVID-19 pandemic, requires the use of gloves, a face mask, and often other forms of PPE.
45. In addition, ACOG and the Society for Maternal Fetal Medicine have developed an algorithm for clinicians’ assessment and management of pregnant women who may have or are confirmed to have COVID-19. Appropriate care of these pregnant patients will further increase the number of interactions the patient has with the health care system, as well as increase the use of PPE.
46. The algorithm identifies common symptoms of COVID-19 as a fever of over 100.4°F and a cough, difficulty breathing, or shortness of breath and gastrointestinal symptoms. Id. If a pregnant patient presents with any one of the symptoms, such as difficulty breathing, then the algorithm instructs the provider to conduct an illness-severity assessment. The severity assessment requires the provider to answer a number of questions, including (1) “does [the patient] have difficulty breathing or shortness of breath?” and (2) “is she unable to keep fluids
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down?” While potential COVID-19 symptoms include difficulty breathing, shortness of breath, inability to keep fluids down, and dehydration, they are also common symptoms among all pregnant women.
47. If the provider answers yes to any of the questions, the algorithm considers the patient to be at “elevated risk” and recommends that the patient immediately seek care in the emergency department or an equivalent unit that treats pregnant women, with attendant use of PPE. It recommends that, when possible, the patient be sent to a location where she can be isolated and adhere to local infection control practices, again involving PPE.
48. Comorbidities such as asthma, HIV, diabetes, hypertension, heart disease, and kidney disease are common in Arkansas, and if the pregnant patient has these conditions they are considered to have moderate COVID-19 risk and should also be isolated, with further medical testing as indicated, which may result in hospital admission.
49. Furthermore, virtually all births in Arkansas occur in hospitals. A pregnant patient may present at a hospital multiple times prior to labor for evaluation. Each time a pregnant patient presents at the hospital for evaluation prior to labor, the patient will be interacting in person with hospital staff. Each time a pregnant patient presents at the hospital for evaluation prior to labor, PPE will be used to provide her with care.
50. An uncomplicated birth is attended by at least 4 medical care providers, including but not limited to nursery nurse, a labor and delivery nurse, an OB tech, and a physician. Each of these medical providers uses PPE. The physician utilizes gloves every time she comes into the room to examine the patient, and she usually examines the patient every few hours as the course of her labor progresses. This means a physician could use a significant amount of PPE simply preparing for delivery. During delivery, the physician would have on a gown, shoe
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covers, gloves, face mask, and eye wear. The OB tech and labor and delivery nurse will both have on a mask, eyewear and gloves. And the nursery nurse usually has one a gown, eyewear, gloves and a mask, because she is going to receive the baby.
51. A complicated birth is attended by 6-7 medical care providers, including at least two additional people from the ICU or NICU, who are available at the time of delivery to resuscitate the baby if needed, and the anesthesia personnel if the patient requires anything for pain control (i.e., an epidural) during her labor course, which approximately 85% of patients receive. A complicated birth will involve the use of more PPE than an uncomplicated birth, because there will be additional personnel in the room.
52. For an uncomplicated vaginal birth, a patient is admitted to the hospital for at least 24-48 hours in Arkansas. For the one-third of deliveries involving a C-section delivery, the patient remains in the hospital for 48-72 hours. A C-section delivery, a significant abdominal surgery, requires extensive PPE.
53. If complications arise during birth, a patient may be required to stay in the hospital for longer than 72 hours.
54. A pregnant patient’s stay in a hospital requires the use of a hospital bed or room, the time and attention of hospital staff, and PPE throughout the stay.
55. There is no medical justification for the assertion that stopping surgical abortions will minimize COVID-19 transmission or preserve medical resources including PPE. The essential fact is that being forced to continue a pregnancy involves a continuing need for medical care. If patients in Arkansas are denied surgical abortions, those additional continuing pregnancies here will involve ongoing interactions with medical providers, offices, laboratories, and hospitals, and an ongoing drain on Arkansas’s supplies of PPE. Travel to and from the
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pregnant patients’ various appointments and visits to hospitals will occur far more frequently than the 2-3 short visits to a single clinic that would be involved in obtaining a surgical abortion, increasing in-person interactions not only with medical staff but also with non-medical health facility staff and others. The Patient Harms Caused by Arkansas’ COVID-19 Abortion Ban
56. The pregnant patients affected by the COVID-19 Abortion Ban will suffer the most direct and devastating harms.
57. The COVID-19 Abortion Ban denies patients access to essential, urgent medical care.
58. It applies without any end date and throughout the COVID-19 emergency. The spread of COVID-19 has not yet peaked in Arkansas or in the United States generally, and thus is expected to continue for months. The Governor of Arkansas, for example, has cancelled school attendance for the remainder of the school year, which ends in June.
59. This indefinite ban means that patients now seeking surgical abortion in Arkansas must assume that it will not be available to them at all prior to Arkansas’s 21.6 weeks LMP cutoff. For many Arkansas abortion patients, who disproportionately have limited economic resources, travel to obtain an abortion in another state is beyond their financial and practical reach.
60. The abortion patients we see in Arkansas often do not have access to reliable transportation, ready childcare for their existing children, or the greater financial resources required for out-of-state travel plus a more expensive later abortion. To the extent they are employed, it is often in a situation without an entitlement to time off or paid sick leave.
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61. The logistical challenges in attempting to travel out of state to seek a surgical abortion elsewhere have greatly increased with the COVID-19 pandemic. Layoffs and work disruptions have further reduced patients’ financial resources; shuttered schools and childcare facilities, along with social distancing imperatives, have made arranging childcare even more difficult; and transportation options are much more limited. Sheltering in place has made it even more difficult to leave the home without the knowledge and approval of family members, especially for minors and patients suffering from domestic violence.
62. To the extent that a few patients can attempt to travel hundreds of miles out of state and obtain abortion care elsewhere, that travel will involve additional in-person contacts and risks of contracting COVID-19 for the patients, those with whom they interact en route, and those back home in Arkansas. As gestational age advances, however, even those who reach another state’s abortion provider may have to be turned away, if that state’s gestational limit has been reached or there are no appointments available in time.
63. Because of all these realities, the COVID-19 Abortion Ban will leave most surgical abortion patients with no choice but to continue their pregnancies against their will in Arkansas. I have seen the devastating impact on patients who fail to secure the abortion they seek and instead find themselves with an unplanned pregnancy they are forced to continue.
64. Studies have shown that patients who are denied a wanted abortion (in contrast to those able to obtain abortion care) face serious consequences, including greater likelihood of living in poverty, staying in abusive relationships, and experiencing mental health issues.16 They and their newborns are also at risk of negative health consequences such as lower breastfeeding
16 Advancing New Standards in Reproductive Health, Turnaway Study (2020), https://www.ansirh.org/research/turnaway-study.
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rates and poor maternal and neonatal outcomes.17 Additionally, patients who seek abortion care but are unable to access that care, therefore carrying to term and adding a child to their families, face large and persistent negative consequences for their financial well-being, as compared to their counterparts who received wanted abortions.18
65. As I have described above, forcing an abortion patient to instead continue the pregnancy exposes that patient to vastly more health risks, including an increased risk of serious morbidity and of death. It requires the patient to experience the advancing pregnancy and child birth, and to adjust to an altered medical and psychologic reality thrust upon them. These serious personal consequences are amplified by the COVID-19 pandemic, which adds other medical risks and anxiety for patients suddenly forced to have ongoing, unplanned contact with health care providers.
66. Forcing a patient to carry an unwanted pregnancy to term will not only increase the risks to their health and well-being, but will also increase the duration and frequency of their interactions with medical clinicians and the amount of PPE expended on their care. That directly contravenes public health officials’ objectives of further reducing transmission of COVID-19 and the current strain on the medical system.
67. My experience has shown that a few patients may try to self-induce an abortion or to use untested “solutions” offered outside established medicine, exposing themselves to added, unknown health risks. These attempts at self-induction may lead to patients to then need
17 A.P. Mohllajee et al., Pregnancy Intention and Its Relationship to Birth and Maternal Outcomes, 109 Obstetrics & Gynecology 678 (2007); Jessica D. Gipson, Michael A. Koenig & Michelle J. Hindin, The Effects of Unintended Pregnancy on Infant, Child, and Parental Health: A Review of the Literature, 39 Stud. Fam. Plan. 18 (2008). 18 Sarah Miller, Laura R. Wherry & Diana Greene Foster, Nat’l Bureau of Econ. Res. (NBER), NBER Working Paper No. 26662, The Economic Consequences of Being Denied an Abortion 26 (Jan. 2020), available at https://www.nber.org/papers/w26662.pdf (Finding that the impact of being denied an abortion on unpaid bills being reported to collection agencies is as large as the effect of being evicted, and “the impact on unpaid bills is several times larger than the effect of losing health insurance.”).
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emergency medical care. Likewise, if pregnant patients denied abortions suffer miscarriage as the pregnancy continues, that too will often lead to the patient seeking medical care as I explained above. Again, it will call on the resources of the medical system, including PPE.
68. Even if the COVID-19 emergency ends sooner than expected, and some surgical abortion patients experience only weeks of delay in obtaining care, rather than final denial, those patients will have suffered greatly increased health risks during the period of forced pregnancy19 and much added psychological distress from the uncertainty the COVID-19 Abortion Ban visited upon them.
69. These pregnant patients may also suffer heightened emotional distress or anxiety as a result of this public health crisis, which has put extreme pressure on hospitals; they may be concerned that if they face issues with their pregnancy, a hospital may struggle to accommodate them or that (by virtue of repeatedly needing medical care) they may be at added risk of exposure to COVID-19.
70. In addition, patients’ delayed, later abortion care will itself carry more risks. Any such delayed abortion care is also likely to come very close to the 21.6 LMP limit, and therefore involve two-day rather than one-day D&E procedures, again using more PPE and involving more health care visits than would have occurred without the COVID-19 Abortion Ban. With all patients being denied surgical abortions throughout the COVID-19 emergency, moreover, to the extent the ban is lifted in time for some denied now to still gain care, there will be a crush of need and capacity issues at LRFP, the lone provider of surgical abortion care in the Arkansas.
71. In sum, the COVID-19 Abortion Ban, if allowed to continue in effect, will impose extreme and irreparable harm on Arkansas’s surgical abortion patients. It will single those
19 Nat’l Acads., supra note 1, at 77–78.
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Case 4:19-cv-00449-KGB Document 134-3 Filed 04/13/20 Page 21 of 25 patients out for this extreme harm despite the fact that doing so exacerbates the challenges of responding to COVID-19, and does not effectively aid in responding to the pandemic in Arkansas. Using the COVID-19 crisis as a justification for banning surgical abortions is a cruel and counterproductive strategy that does a profound disservice to the patients and public health needs in this state. I declare under penalty of perjury that the foregoing is true and correct. Executed this 12th day of April, 2020.
s/ Janet Cathey, M.D. Janet Cathey, M.D.
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EXHIBIT A

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CURRICULUM VITAE JANET RILEY CATHEY, M.D. ABOG, FACOG
EDUCATION University of Arkansas- Fayetteville 1975-1978
Bachelor of Science in Zoology - 1978 PHI-BETA-KAPPA University of Arkansas for Medical Sciences 1978-1982 Medical Doctor - 1982 University of Arkansas Medical Sciences Resident in Obstetrics/Gynecology - 1982-1986 UPJOHN Award for Outstanding Chief Resident
BOARD CERTIFICATION Diplomat American Board of Obstetrics and Gynecology
Written Boards 1986 Oral Boards 1988 Recertification 1998 & 2008 Maintenance of Board Certification- 2009-2019 Multiple CME courses and hours
(Over 80/ year, available upon request)
PROFESSIONAL MEMBERSHIPS: Fellow American College of Obstetrics and Gynecology Diplomat American Board of Obstetrics and Gynecology American Medical Association Arkansas State Medical Society Pulaski County Medical Society Little Rock Gynecology Society
LICENSURE: FLEX Exam 1978 (passed on first sitting) Arkansas C-6132. (active, unrestricted) Issued February 14, 1982 - Expiration Nov 2019 DEA: BC0401947, Expiration August 2020, Unrestricted.

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WORK EXPERIENCE
Private Practice Obstetrics and Gynecology 1986-1993 2001 Pershing, North Little Rock, Arkansas Affiliated with Stephen Marks, M.D. and Phillip Alston, M.D. Maintained privileges at Memorial Hospital (Baptist Springhill) -North Little Rock Full obstetrics and gynecology surgical privileges
Private Practice Obstetrics and Gyncology – Little Rock Gynecology 1993-2009 9501 Baptist Health Drive, Little Rock, Arkansas Affiliated with Karen Kozlowski, M.D. Maintained privileges at Baptist Health Medical Center – Little Rock, Arkansas Maintained privileges at St. Vincent’s Infirmary Medical Center, LR, AR Maintained privileges at Little Rock Surgical Center- Little Rock, Arkansas Full obstetrics and gynecology surgical privileges at all named hospitals
Employment Gap 2009-2012 In August 2009 I sustained a spinal cord injury in a motor vehicle accident. Initially, with an incomplete paraplegia I retired from private practice and was granted full disability benefits. I had intensive physical therapy over the next 2 years regained the ability to walk. I now walk with bilateral AFOs. My disability does not limit me in my current scope of practice.
Arkansas Department of Social Security – Department of Disability Services. 2012-2018 701 Pulaski Street, Little Rock AR, 72201 Currently - Medical Consultant (Contract Labor -Disability Reviews)
University of Arkansas Medical Sciences Dept Obstetrics and Gynecology 2013-2018 4301 W. Markham, Slot 518, Little Rock, AR. 72201 Asst Professor of Ob-Gyn, August 1, 2013 – March 31, 2018 Full core gynecology operative privileges – University Hospital  Teaching Faculty - Resident Gynecology Clinic / Surgical Cases  Gender Clinic Founder & Director 2014 to 2018  Teaching/Mentoring – M2/M3/M4 Medical Students Teaching Awards  2013 – Red Sash Award  2014 – Golden Apple Award  2015 – Red Sash Award  2016 – Red Sash Award Department Resident Teaching Award and Medical Student Teaching Award  2017 - Red Sash Award Department Medical Student Teaching Award  2018 - Red Sash Award  2016 – Diversity Inclusion Award nomination

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Planned Parenthood Great Plains – Little Rock 2018 (Current) 5921 W. 12th Suite C, Little Rock, AR 72204 Director of Gender Health and Education General family planning and reproductive health clinic

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EXHIBIT 4

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March 21, 2020 In view of the uncertainty and increase in cases of COVID -19 there are increasing concerns of hospital beds availability as well as staff capabilities in hospitals statewide. For this reason, the Arkansas Department of Health is recommending that elective surgery be postponed statewide. The Centers for Disease Control and Prevention (CDC) recommends that healthcare facilities and clinicians should prioritize urgent and emergency visits and procedures now and for the coming several weeks. The following actions can preserve staff, personal protective equipment (PPE), and patient care supplies; ensure staff and patient safety; and expand available hospital capacity during the COVID-19 pandemic.
 Procedures, testing, and office visits that can be safely postponed should be rescheduled to an appropriate future date.
 Routine dental and eyecare visits should be postponed.  Emergent, urgent and time-sensitive care will continue.
Small rural hospitals under 60 beds and critical access hospitals, though strongly advised to follow this guidance to maximize resources, are excluded from this guidance.
Exceptions to this guidance should be made in the following circumstances:
 If there is a threat to the patient's life if the procedure is not performed.  If there is a threat of permanent dysfunction of an extremity or organ system if the surgery is
not done.  If there is a risk of metastasis or progression of staging of a disease or condition if surgery is not
performed.  If there is a risk that the patient's condition will rapidly deteriorate if surgery is not done, and
there is a threat to life, or to an extremity or organ system, or of permanent dysfunction or disability.
https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/index.html

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EXHIBIT 5

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March 30, 2020 Greetings and thank you for helping the Arkansas Department of Health in our efforts to flatten the COVID-19 curve. In just 19 days, Arkansas has identified 449 positive patients, with 43 currently hospitalized, 16 on ventilators, and 384 health care staff furloughed due to COVID exposure. We help preserve the health of citizens and our healthcare infrastructure by working in unison to minimize the opportunity for spread. The Centers for Disease Control and Prevention (CDC) and the Arkansas Department of Health recommends that healthcare facilities and clinicians prioritize urgent and emergency visits and procedures now and for the coming several weeks Below is the agency guidance intended to provide you with the answers on how your organization should adjust. This may also be found on the agency website at this link https://www.healthy.arkansas.gov/images/uploads/pdf/Elective_Surgery_Guidance_3.21.20final.pdf
March 21, 2020 In view of the uncertainty and increase in cases of COVID-19 there are increasing concerns of hospital bed availability as well as staff capabilities in hospitals statewide. For this reason, the Arkansas Department of Health is recommending that elective surgery be postponed statewide. The Centers for Disease Control and Prevention (CDC) recommends that healthcare facilities and clinicians prioritize urgent and emergency visits and procedures now and for the coming several weeks. The following actions can preserve staff, personal protective equipment (PPE), and patient care supplies; ensure staff and patient safety; and expand available hospital capacity during the COVID-19 pandemic.
• Procedures, testing, and office visits that can be safely postponed should be rescheduled to an appropriate future date.
• Routine dental and eyecare visits should be postponed. • Emergent, urgent and time-sensitive care will continue. • Small rural hospitals under 60 beds and critical access hospitals, though strongly advised to
follow this guidance to maximize resources, are excluded from this guidance.

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Exceptions to this guidance should be made in the following circumstances:
• If there is a threat to the patient's life if the procedure is not performed. • If there is a threat of permanent dysfunction of an extremity or organ system if the surgery is
not done. • If there is a risk of metastasis or progression of staging of a disease or condition if surgery is not
performed. • If there is a risk that the patient's condition will rapidly deteriorate if surgery is not done, and
there is a threat to life or an extremity or organ system or a threat of permanent dysfunction or disability.
https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/index.html

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EXHIBIT 6

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LRFP’s Precautions and Protocols in Response to COVID-19 Pandemic1
LRFP’s patients, visitors, and staff are our highest priority. We are working hard to reduce and prevent the spread of COVID-19 and protect the health and safety of our patients and staff by implementing the following protective measures consistent with the recommendations set forth by the CDC, Arkansas Department of Health and other professional medical organizations and public health authorities:
Patient and Staff Screening:
Prior to scheduling an appointment and upon arrival at LRFP, all individuals are asked the following screening questions:
• Do you have a fever (99.5 degrees or greater), cough, shortness of breath, sore throat, nausea, diarrhea, or fatigue not associated with pregnancy?
• Have you been in contact with someone who has these symptoms or has tested positive for COVID-19?
• Have you traveled outside the United States in the last 21 days?
Patients who answer YES to any of the above questions are instructed to return to their car and call the front desk. A member of the LRFP staff will then provide each such patient with individualized instructions based on their needs and circumstances.
Staff are also required to report any contact with an individual known or suspected to have COVID-19, and must immediately report to the MD or APRN if they experience a cough or any combination of symptoms listed above. Any staff member with suspected symptoms will be referred to the University of Akansas for Medical Sciences (UAMS) for screening. If tested, they will not be permitted to work until a negative test is confirmed. If the staff member tests positive, they will not be permitted to return to LRFP until 2 negative tests are confirmed, or at least 72 hours after resolution of symptoms.
1 The precautions and protocols described herein are not intended to be exhaustive and are consistently changing in order to best respond to the evolving COVID-19 pandemic.
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Temperature Check:
Every individual (including staff) entering LRFP must undergo a temperature check upon arrival. If an individual’s temperature is confirmed to be greater than 99.5, an MD or APRN will be immediately notified.
Postponement of Services:
We have evaluated the services and procedures offered by LRFP and have postponed any that are not time-sensitive and for which delay would not risk harm to the patient.
Social Distancing:
The CDC recommends that individuals “socially distance” themselves, which is defined as 6 feet distance from other individuals. As a result, patient appointments will be staggered to decrease the number of persons in the clinic and waiting area at any given time. Patients will also be spaced at least 6 feet from one another while seated in the waiting area. In addition, all LRFP staff and healthcare professionals will work efficiently to discharge patients as soon as medically appropriate to shorten the overall time patients spend in our clinic.
Visitor Policy:
LRFP is limiting the visitors/support people that may accompany patients. Only patients will be admitted into the building at this time. Support people may wait outside, sit in their cars, or return home until patients are ready for pickup. Essential support people (e.g., parents of minors) are permitted but must follow “social distancing” practices in the waiting area. Should it become necessary, LRFP may ask patients to wait in their cars until they can be seen by a healthcare professional.
Cleaning and Infection Control:
• Consultation rooms are thoroughly cleaned and disinfected between each patient.
• Bathrooms, waiting areas, and “high-touch” surfaces (door handles, counseling pages, pens, chairs, tables, etc.) are thoroughly cleaned and sanitized frequently.
• Chairs are spread out to ensure patients can appropriately socially distance themselves in the waiting area.
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• All books, magazines, toys, and other items regularly displayed in the waiting areas have been removed.
• All persons entering the building are required to hand sanitize. • Hand sanitizer is accessible to all patients for use while at the clinic and upon
departure. • Patients are encouraged to practice appropriate cough and tissue disposal
etiquette. Preservation of Personal Protective Equipment (PPE): LRFP is aware of the PPE shortage our healthcare system is currently facing. In order to aid in combatting this shortage, LRFP is committed to using only the PPE that is necessary to protect our patients and staff. LRFP does not utilize the N-95 respirators (masks) that are critical for first responders fighting COVID-19. We are all in this together. LRFP is in close communication with various agencies and organizations to stay on top of the evolving COVID-19 situation. For more information on how to protect yourself, please visit the CDC website: https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html
3

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April 3, 2020 ADH Directive on Elective Surgeries
The Secretary of Health, in consultation with the Governor, has sole authority over all instances of quarantine, isolation, and restrictions on commerce and travel throughout Arkansas, as necessary and appropriate to control disease in the state of Arkansas as authorized by Ark. Code Ann. §20-7-109--110. Based on available scientific evidence, it is necessary and appropriate to take further action to ensure that COVID-19 remains controlled and that residents and visitors in Arkansas remain safe.
Throughout February and March of 2020, the Centers for Disease Control and Prevention (CDC) and the Arkansas Department of Health (ADH) recommended that healthcare facilities and clinicians prioritize urgent and emergency visits and procedures for the coming several weeks. Please see CDC Health Care Facilities Guidance and ADH Health Facilities Guidance.
On March 30, 2020, a guidance letter was sent to all health facilities, including ambulatory surgery centers and abortion facilities. Please see ADH Guidance Letter. In view of the continued uncertainty and increase in cases of COVID-19, there are increasing concerns of staff and medical supplies capabilities in hospitals statewide. The following mandatory actions can preserve staff, personal protective equipment (PPE), and patient care supplies; ensure staff and patient safety; and expand available hospital capacity during the COVID-19 pandemic.
 Procedures, testing, and office visits that can be safely postponed shall be rescheduled to an appropriate future date.
 Routine dental and eye care visits shall be postponed.  Emergent, urgent and care designated as an exception below will continue.  Small rural hospitals under 60 beds and critical access hospitals, though strongly advised to follow this
directive to maximize resources, are excluded from this directive. Exceptions to this directive should be made in the following circumstances:
 If there is a threat to the patient’s life if the procedure is not performed.  If there is a threat of permanent dysfunction of an extremity or organ system if the surgery is not done.  If there is a risk of metastasis or progression of staging of a disease or condition if surgery is not
performed.  If there is a risk that the patient’s condition will rapidly deteriorate if surgery is not done, and there is a
threat to life or an extremity or organ system or a threat of permanent dysfunction or disability.

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FULL CORONAVIRUS COVERAGE
New signs suggest virus was in Calif far earlier than anyone knew
Arkansas schools closed for rest of year due to coronavirus
Andrew Demillo, Associated Press Updated 5:38 pm PDT, Monday, April 6, 2020

Fauci says 'rolling reentry' of US economy possible in May 9:51 AM Why European unemployment isn't spiking as it is in the US Grace Cathedral clergy phoned 700 after shutdown California deaths linked to coronavirus cross 600
9:21 AM
A man sold 125 million masks. They didn't exist, authorities say.
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2 6 shot at California party with reportedly 400 attendees
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4 Why European unemployment isn't spiking as it is in the US
5 Grace Cathedral closed for ﬁrst time since 1918, priest slams FL
6 Real estate market most hard hit is this Bay Area county
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9 One by one, nurses got coronavirus at a Silicon Valley hospital while management kept quiet
10 Bill Maher Defends Calling Coronavirus the ‘Chinese Virus’

Photo: Andrew Demillo, AP
FILE - In this Thursday, March 26, 2020 file photo, Members of the Arkansas House convene at the Jack Stephens Center in Little Rock, Ark., for a special session focused on a state budget shortfall. Arkansas lawmakers will meet as planned for this year's legislative session amid the coronavirus outbreak, legislative leaders said Friday, April 3, 2020 following two members testing positive for the virus.
LITTLE ROCK, Ark. (AP) — Arkansas’ public schools will remain closed for the rest of the academic year due to the coronavirus pandemic, Gov. Asa Hutchinson announced Monday, as a third lawmaker tested positive for the virus.
Health officials said the number of infections in Arkansas rose to at least 927, up from 853 on Sunday. Sixteen people in the state have died from COVID-19, the illness caused by the virus.
SCHOOLS CLOSED
Hutchinson said there will be no more on-site instruction this year at public schools, which he had ordered closed until April 17 because of the virus.
The governor said schools will continue to provide at-home instruction for students, including online lessons. Arkansas PBS has been broadcasting lessons for students in kindergarten through 8th grade.
“I know this is a hardship, but I think the teachers, parents and everyone is prepared for this," Hutchinson said.
THIRD LAWMAKER TESTS POSITIVE
A third state representative said he tested positive for the coronavirus, days before the Legislature is set to meet for this year's session.
Rep. Les Warren said his physician told him his positive test result on Sunday. He was self-isolating at home.
For most people, the coronavirus causes mild or moderate symptoms, such as fever and cough that clear up in two to three weeks. For some, especially older adults and people with existing health problems, it can cause more severe illness, including pneumonia.
The Legislature is set to convene Wednesday for this year's fiscal session, with the House planning to meet in the same 5,600-seat basketball arena they used for a special session last month. The Senate will meet at the Capitol, but is restricting how many members will be in the chamber.
Warren said he would vote by proxy.
ELECTIVE SURGERIES ORDER
The state's top health official stopped short of saying whether a prohibition on elective procedures would halt abortions.
The Health Department on Friday issued a directive to all health providers, including abortion clinics, to reschedule procedures “that can be safely postponed.” Other states have moved to ban abortions using similar orders.
“Anything that can safely be deferred and postponed should be," said Dr. Nathaniel Smith, the state's health secretary. Smith said the order is not intended to replace a physician's judgment.
An attorney for Little Rock Family Planning Services, the only clinic that performs surgical abortions in the state, said in a statement that it was complying with the directive but didn't elaborate on whether it was still offering the procedure.
Planned Parenthood, which administers abortion-inducing medication at its Little Rock facility, said it was following Department of Health guidance.
“Our doors are open, and we are continuing to see patients at our health center for necessary care, with appropriate screening precautions in place," Planned Parenthood Great Plains CEO Brandon Hill said in a statement.
CHINA OFFICE FUNDING TARGETED
An Arkansas lawmaker on Monday proposed ending the state's economic development efforts in China in response to the pandemic, a move the governor called “shortsighted.”
The proposed amendment to the state Economic Development Commission's budget would prevent the agency from spending money on a liaison or office in China.
“It shows a clear message our government is going to change our relationship with China," said Garner, who cited China's initial cover-up of the outbreak.
The commission has had an office in China since 2008 and this year has spent about $285,000 on it. But the commission's spokeswoman, Alisha Curtis, said the agency already planned to scale that back by about $160,000 in the coming fiscal year to a liaison that will focus on existing Chinese business in Arkansas.
“Even though we might not have a physical office, we've got to have a presence there and be able to facilitate that relationship from a commerce standpoint in the future," Hutchinson said.
___
Check out more of the AP’s coronavirus coverage at https://apnews.com/VirusOutbreak and https://apnews.com/UnderstandingtheOutbreak

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To: From: Date: Regarding:

Arkansas Dentists Dr. Nate Smith, Secretary of Health March 23, 2020 Directive to Dentists to suspend non-emergent dental care

The Secretary of Health, in consultation with the Governor, has sole authority over all instances of quarantine, isolation, and restrictions on commerce and travel throughout Arkansas, as necessary and appropriate to control disease in the state of Arkansas as authorized by Ark. Code Ann. §20-7-109—110. Based on available scientific evidence, it is necessary and appropriate to take further action to ensure that COVID-19 remains controlled and that residents and visitors in Arkansas remain safe.

The Secretary of Health, as of March 23, 2020, directs and mandates that all dental practitioners follow the recommendation of the Arkansas State Board of Dental Examiners and the American Dental Association that only urgent and emergent dental care take place, and that non-emergent dental care be suspended until further notice. This directive and mandate is subject to change as the COVID-19 pandemic progresses.

Urgent dental care treatments, which should be treated as minimally invasively as possible, include the following:
• Severe dental pain from pulpal inflammation. • Pericoronitis or third-molar pain. • Surgical postoperative osteitis or dry socket dressing changes. • Abscess or localized bacterial infection resulting in localized pain and swelling. • Tooth fracture resulting in pain or causing soft tissue trauma. • Dental trauma with avulsion/luxation. • Dental treatment cementation if the temporary restoration is lost, broken or causing gingival irritation.
Other emergency dental care includes extensive caries or defective restorations causing pain; suture removal; denture adjustments on radiation/oncology patients; denture adjustments or repairs when function impeded; replacing temporary filling on endo access openings in patients experiencing pain; and snipping or adjustments of an orthodontic wire or appliances piercing or ulcerating the oral mucosa.

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  News Releases  Joint Statement on Abortion Access During the COVID-19 Outbreak

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Joint Statement on Abortion Access During the COVID19 Outbreak

The American College of Obstetricians and Gynecologists and the American Board of Obstetrics & Gynecology, together with the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine, released the following statement:
“As hospital systems, clinics, and communities prepare to meet anticipated increases in demand for the care of people with COVID-19, strategies to mitigate spread of the virus and to maximize health care resources are evolving. Some health systems, at the guidance of the CDC, are implementing plans to cancel elective and non-urgent procedures to expand hospitals’ capacity to provide critical care.
A D VE RTI S E M E NT

“While most abortion care is delivered in outpatient settings, in some cases care may be delivered in hospital-based settings or surgical facilities. To the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure. Abortion is an essential component of comprehensive health care. It is also a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks or potentially make it completely inaccessible. The consequences of being unable to obtain an abortion profoundly impact a person’s life, health, and well-being.
“The American College of Obstetricians and Gynecologists and the American Board of Obstetrics & Gynecology, together with the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine, do not support COVID-19 responses that cancel or delay abortion procedures. Community-based and hospital-based clinicians should consider collaboration to ensure abortion access is not compromised during this time.”

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AMA statement on government interference in reproductive health care

MAR 30, 2020

Statement attributed To: Patrice A. Harris, M.D., M.A. President, American Medical Association
“While many physicians and health care workers are on the front lines in the COVID-19 pandemic, it is unfortunate that elected o cials in some states are exploiting this moment to ban or dramatically limit women’s reproductive health care, labeling procedures as ‘nonurgent.’
“The AMA will always defend shared decision making and open conversations between patients and physicians, and ght government intrusion in medical care. At this critical moment and every moment, physicians – not politicians – should be the ones deciding which procedures are urgent-emergent and need to be performed, and which ones can wait, in partnership with our patients.”
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THE WIRE

Case 4:19-cv-00449-KGB Document 134-14 Filed 04/13/20 Page 2 of 2

POLITICS
World Health Organization: Abortion Is ‘Essential’ During Coronavirus Pandemic

(Photo by FABRICE COFFRINI/AFP via Getty Images)

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MARY MARGARET OLOHAN SOCIAL ISSUES REPORTER

April 04, 2020 2:02 PM ET

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Abortion is considered an essential service during the coronavirus pandemic, the World Health Organization said in a
statement Saturday.
The WHO said in its statement to the Daily Caller News Foundation that “services related to reproductive health are considered to be part of essential services during the COVID-19 outbreak.”

“Women’s choices and rights to sexual and reproductive health care should be respected, irrespective of whether or not she has a suspected or confirmed COVID-19 infection,” WHO said in the statement. (RELATED: Top WHO Official Tedros Adhanom Ghebreyesus Won Election With China’s Help. Now He’s Running Interference For China On Coronavirus)
The statement also said that “sexual and reproductive health care is integral to universal health coverage and achieving the right to health.”

World Health Organization (WHO) Director-General Tedros Adhanom Ghebreyesus on March 6, 2020, in Geneva. (FABRICE COFFRINI/AFP via Getty Images)
“This includes contraception, quality health care during and after pregnancy and childbirth, and safe abortion to the full extent of the law,” the organization added, noting that the WHO provides both global technology and policy guidance to WHO members “on the use of contraception to prevent unintended pregnancy, safe abortion, and treatment of complications from unsafe abortion.”
Governors and health departments across the United States have issued decisions on whether or not abortions are considered essential services. Texas, Ohio, Oklahoma, Indiana and Iowa as well as the governor of Mississippi declared abortions nonessential and banned these procedures to preserve PPE for fighting coronavirus. (RELATED: WHO Official Defends China, Says Everyone Is ‘Over-Focused’ On Regime’s Coronavirus Numbers)
Meanwhile, Massachusetts, Michigan, Minnesota, Indiana, New Jersey, Illinois, Oregon, Hawaii and Virginia — all states that have banned elective medical procedures — deemed abortions essential during the outbreak.
There have been 1,172,692 cases of the coronavirus worldwide as of Saturday afternoon, and 62,823 people have died from the virus.
Content created by The Daily Caller News Foundation is available without charge to any eligible news publisher that can provide a large audience. For licensing opportunities of our original content, please contact licensing@dailycallernewsfoundation.org.
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COVID-19: Guidance for ASCs on Necessary Surgeries
Updated March 19, 2020
In response to government guidance that hospitals and ambulatory surgery centers postpone elective surgeries during the COVID-19 pandemic, the Ambulatory Surgery Center Association (ASCA) has consulted with clinical leaders to solicit recommendations on how and when facilities should proceed with cases that, for clinical reasons, should not be postponed. A surgery may be deemed urgent and necessary if the treating physician decides that a months-long delay would increase the likelihood of significantly worse morbidity or prognosis for the patient.
First and foremost, if a procedure can be safely postponed without additional significant risk to the patient, it should be delayed until after the pandemic. The current and ongoing efforts to isolate our population and create social distancing are essential steps in saving lives by shortening and ultimately ending the COVID19 pandemic. The health and safety of patients, along with preventing the spread of COVID-19, must be our highest priority. We concur with the American College of Surgeons that “the risk to the patient should include an aggregate assessment of the real risk of proceeding and the real risk of delay, including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”
Physicians should engage with patients and families to make care decisions that minimize potential risks to patients while ensuring they receive necessary care that cannot be safely delayed. Physicians should consider the potential of post-surgical complications that could place stress on the local hospital that may lack capacity for transfers. To that end, facilities should reach out to local hospitals to establish a line of communication that ensures coordination in managing care during the pandemic.
In addition, ASCs should develop explicit controls on how to manage the infection risks of all non-patient visitors (patient caregivers, vendors, contractors, etc.) who present themselves inside the facility and should strictly prohibit all non-essential visitors. Additional social distancing policies should be employed.
Examples of cases that might still need to proceed with surgery at this time include:
Acute infection Acute trauma that would significantly worsen without surgery Potential malignancy Uncontrollable pain that would otherwise require a hospital admission A condition where prognosis would significantly worsen with a delay in treatment
Also, ambulatory surgery centers need to be prepared for the possibility that the pandemic may proceed to a point that strains the system such that hospitals will need to shift necessary surgeries to ASCs and/or ASCs and their resources will be required to serve the communities and the healthcare system in a different capacity. Additional guidance from regulatory agencies would govern those situations.
Finally, facilities need to recognize that the pandemic and its impact could create situations when ASCs may need to temporarily suspend services, such as:
When a patient, staff or physician who has been in the ASC is suspected or subsequently diagnosed with COVID-19 When there is a significant shortage of PPE (masks, gowns, gloves, etc.) that prevents safe practice of surgical cases
Clearly, this is an evolving situation and the coming days and weeks will present different challenges for healthcare facilities, such as ASCs, to grapple with as the COVID-19 pandemic runs its course. As they occur, the ambulatory surgery community will continue to work with federal, state and local health policy leaders to protect and preserve the health of the public during this crisis.

Connect with ASCA:

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COVID-19 Press Information
FOR IMMEDIATE RELEASE March 23, 2020
CONTACT: Jerrel.Harvey@nj.gov Press Office: Governor's Office Email: Jerrel.Harvey@nj.gov
Governor Murphy Suspends All Elective Surgeries, Invasive Procedures to Preserve Essential Equipment and Hospital Capacity
TRENTON -- As part of the state’s effort to preserve the capacity of the health care system to respond to COVID-19, Governor Phil Murphy today signed Executive Order No. 109, directing the suspension of all elective surgeries and invasive procedures performed on adults that are scheduled to take place after 5:00 p.m. on Friday, March 27. The Governor’s Executive Order applies to all medical and dental operations that can be delayed without undue risk to the current or future health of the patient, as determined by the patient’s physician or dentist. “Our new reality calls for aggressive action to reduce the burden on our health care system and protect our frontline medical responders,” said Governor Murphy. “Given the dramatic shortfall in personal protective equipment we face, it’s imperative that we work with our partners in health care to strategically preserve supplies and equipment for emergency purposes only.” In addition to the suspension outlined above, Governor Murphy’s Executive Order also requires the following:
Protecting the capacity of hospitals: Physicians and dentists, who are planning to perform surgery or invasive procedures in their offices, must consider the potential burden of post-surgery complications on local hospitals prior to performing any operation. Explicit exemption for family planning and termination of pregnancies: The order provides that it shall not be interpreted in any way to limit access to family planning services, including termination of pregnancies. Inventory of personal protective equipment to be taken: Any business, non-hospital health care facility, or institution of higher learning in possession of PPE, ventilators, respirators, or anesthesia machines not required for the provision of critical health care services shall undertake an inventory of these supplies and send that information to the State by 5:00 pm on Friday, March 27. The Office of Emergency Management shall establish a process for affected entities to submit this information. The Order requires facilities to immediately notify patients whose operations have to be suspended. For a copy of Executive Order No. 109, please click here.
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TRANSMISSION OF MATERIALS IN THIS RELEASE IS EMBARGOED UNTIL 8:30 A.M. (Eastern) Thursday, April 9, 2020
COVID-19 Impact The COVID-19 virus continues to impact the number of initial claims and its impact is also reflected in the increasing levels of insured unemployment.
UNEMPLOYMENT INSURANCE WEEKLY CLAIMS
SEASONALLY ADJUSTED DATA
In the week ending April 4, the advance figure for seasonally adjusted initial claims was 6,606,000, a decrease of 261,000 from the previous week's revised level. The previous week's level was revised up by 219,000 from 6,648,000 to 6,867,000. The 4-week moving average was 4,265,500, an increase of 1,598,750 from the previous week's revised average. The previous week's average was revised up by 54,750 from 2,612,000 to 2,666,750.
The advance seasonally adjusted insured unemployment rate was 5.1 percent for the week ending March 28, an increase of 3.0 percentage points from the previous week's unrevised rate. The advance number for seasonally adjusted insured unemployment during the week ending March 28 was 7,455,000, an increase of 4,396,000 from the previous week's revised level. This marks the highest level of seasonally adjusted insured unemployment in the history of the seasonally adjusted series. The previous high was 6,635,000 in May of 2009. The previous week's level was revised up 30,000 from 3,029,000 to 3,059,000. The 4-week moving average was 3,500,000, an increase of 1,439,000 from the previous week's revised average. The previous week's average was revised up by 7,500 from 2,053,500 to 2,061,000.

1

Case 4:19-cv-00449-KGB Document 134-17 Filed 04/13/20 Page 3 of 11
UNADJUSTED DATA The advance number of actual initial claims under state programs, unadjusted, totaled 6,203,359 in the week ending April 4, an increase of 187,538 (or 3.1 percent) from the previous week. The seasonal factors had expected an increase of 432,645 (or 7.2 percent) from the previous week. There were 196,071 initial claims in the comparable week in 2019. The advance unadjusted insured unemployment rate was 5.6 percent during the week ending March 28, an increase of 3.2 percentage points from the prior week. The advance unadjusted number for persons claiming UI benefits in state programs totaled 8,177,965, an increase of 4,761,372 (or 139.4 percent) from the preceding week. The seasonal factors had expected a decrease of 61,174 (or -1.8 percent) from the previous week. A year earlier the rate was 1.3 percent and the volume was 1,861,690.
The total number of people claiming benefits in all programs for the week ending March 21 was 3,447,727, an increase of 1,342,462 from the previous week. There were 1,937,342 persons claiming benefits in all programs in the comparable week in 2019. No state was triggered "on" the Extended Benefits program during the week ending March 21. Initial claims for UI benefits filed by former Federal civilian employees totaled 2,451 in the week ending March 28, an increase of 1,169 from the prior week. There were 1,752 initial claims filed by newly discharged veterans, an increase of 855 from the preceding week.
2

Case 4:19-cv-00449-KGB Document 134-17 Filed 04/13/20 Page 4 of 11
There were 9,378 former Federal civilian employees claiming UI benefits for the week ending March 21, a decrease of 414 from the previous week. Newly discharged veterans claiming benefits totaled 5,479, a decrease of 112 from the prior week. The highest insured unemployment rates in the week ending March 21 were in Rhode Island (6.7), Minnesota (5.6), Massachusetts (5.1), Connecticut (4.9), Washington (4.7), Vermont (4.5), Nevada (4.3), Montana (4.2), New Hampshire (4.2), and Ohio (4.0). The largest increases in initial claims for the week ending March 28 were in California (+871,992), New York (+286,596), Michigan (+176,329), Florida (+154,171), Georgia (+121,680), Texas (+120,759), and New Jersey (+90,438), while the largest decreases were in Nevada (-20,356), Rhode Island (-8,047), and Minnesota (-6,678).
3

Case 4:19-cv-00449-KGB Document 134-17 Filed 04/13/20 Page 5 of 11

UNEMPLOYMENT INSURANCE DATA FOR REGULAR STATE PROGRAMS

WEEK ENDING Initial Claims (SA) Initial Claims (NSA) 4-Wk Moving Average (SA) WEEK ENDING

April 4 6,606,000 6,203,359 4,265,500 March 28

March 28 6,867,000 6,015,821 2,666,750 March 21

Change -261,000 +187,538 +1,598,750 Change

Insured Unemployment (SA)
Insured Unemployment (NSA)
4-Wk Moving Average (SA) Insured Unemployment Rate (SA)2 Insured Unemployment Rate (NSA)2

7,455,000 8,177,965 3,500,000
5.1% 5.6%

3,059,000 3,416,593 2,061,000
2.1% 2.4%

+4,396,000 +4,761,372 +1,439,000
+3.0 +3.2

March 21 3,307,000 2,920,162 1,004,250 March 14
1,784,000 2,074,782 1,726,250
1.2% 1.4%

Prior Year1 203,000 196,071 212,000
Prior Year1
1,705,000 1,861,690 1,722,500
1.2% 1.3%

INITIAL CLAIMS FILED IN FEDERAL PROGRAMS (UNADJUSTED)

WEEK ENDING Federal Employees (UCFE) Newly Discharged Veterans (UCX)

March 28 2,451 1,752

March 21 1,282 897

Change +1,169
+855

Prior Year1 571 447

PERSONS CLAIMING UI BENEFITS IN ALL PROGRAMS (UNADJUSTED)

WEEK ENDING Regular State
Federal Employees
Newly Discharged Veterans Extended Benefits3 State Additional Benefits4 STC / Workshare 5
TOTAL

March 21 3,410,969
9,378 5,479
0 5,449 16,452 3,447,727

March 14 2,071,116
9,792 5,591
0 5,901 12,865 2,105,265

Change +1,339,853
-414 -112
0 -452 +3,587 +1,342,462

Prior Year1 1,905,781 10,076 6,103 1 6,019 9,362 1,937,342

FOOTNOTES SA - Seasonally Adjusted Data, NSA - Not Seasonally Adjusted Data
1. Prior year is comparable to most recent data. 2. Most recent week used covered employment of 145,230,691 as denominator. 3. Information on the EB program can be found here: EB Program information 4. Some states maintain additional benefit programs for those claimants who exhaust regular benefits, and when applicable,
extended benefits. Information on states that participate, and the extent of benefits paid, can be found starting on page 4-4 of this link: Extensions and Special Programs PDF 5. Information on STC/Worksharing can be found starting on page 4-8 of the following link: Extensions and Special Programs PDF

4

Case 4:19-cv-00449-KGB Document 134-17 Filed 04/13/20 Page 6 of 11

Advance State Claims - Not Seasonally Adjusted

STATE Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania * Puerto Rico Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virgin Islands Virginia Washington West Virginia Wisconsin Wyoming US Total

Initial Claims Filed During Week Ended April 4

Advance

Prior Wk

Change

105,607

80,984

24,623

15,370

13,774

1,596

132,189

88,940

43,249

60,992

27,756

33,236

925,450

1,058,325

-132,875

45,494

61,838

-16,344

33,418

33,227

191

18,863

19,137

-274

15,393

15,869

-476

169,885

228,484

-58,599

388,175

133,820

254,355

53,082

48,596

4,486

30,022

32,941

-2,919

200,940

178,421

22,519

133,639

139,174

-5,535

67,334

55,966

11,368

49,756

54,330

-4,574

117,135

113,149

3,986

102,985

97,400

5,585

30,631

23,770

6,861

107,408

85,317

22,091

139,582

181,423

-41,841

384,844

304,335

80,509

111,119

109,095

2,024

46,504

32,015

14,489

82,399

104,291

-21,892

20,011

20,763

-752

26,788

24,725

2,063

79,865

71,942

7,923

36,214

31,378

4836

213,897

206,253

7,644

26,606

27,849

-1,243

345,246

366,595

-21,349

137,573

172,145

-34,572

16,093

11,818

4,275

224,182

274,288

-50,106

51,124

47,744

3,380

56,646

47,498

9,148

283,718

404,677

-120,959

66,349

45,394

20,955

28,255

27,800

455

85,018

66,475

18,543

7,916

6,801

1115

116,141

92,500

23,641

313,832

276,185

37,647

33,076

28,532

4,544

16,176

14,633

1,543

11

250

-239

149,758

112,497

37,261

176,827

182,849

-6,022

14,145

14,523

-378

104,776

110,934

-6,158

4,900

6,396

-1,496

6,203,359

6,015,821

187,538

Insured Unemployment For Week Ended March 28

Advance

Prior Wk

Change

40,882

18,083

22,799

19,644

11,173

8,471

59,977

26,387

33,590

34,906

16,148

18,758

1,084,955

400,565

684,390

73,586

21,956

51,630

149,490

80,861

68,629

23,881

11,506

12,375

29,526

17,661

11,865

98,924

35,076

63,848

359,105

107,877

251,228

32,459

10,930

21,529

35,211

15,523

19,688

263,732

132,114

131,618

75,522

28,987

46,535

92,962

53,650

39,312

51,786

17,558

34,228

130,152

24,361

105,791

116,752

58,027

58,725

40,592

21,967

18,625

90,153

47,973

42,180

306,580

183,105

123,475

363,885

88,183

275,702

256,689

160,873

95,816

27,948

9,581

18,367

118,924

49,470

69,454

37,393

19,099

18,294

37,805

16,641

21,164

129,127

58,798

70,329

51,509

27,321

24,188

277,761

156,181

121,580

46,620

20,087

26,533

715,750

314,710

401,040

246,082

75,220

170,862

17,507

8,534

8,973

447,494

214,273

233,221

54,469

25,268

29,201

118,995

63,930

55,065

571,732

135,708

436,024

41,491

19,230

22,261

56,668

31,847

24,821

73,653

30,341

43,312

7,492

3,538

3,954

116,345

37,541

78,804

376,955

144,697

232,258

43,962

24,635

19,327

22,175

13,797

8,378

660

512

148

133,601

41,827

91,774

315,085

158,025

157,060

41,404

21,145

20,259

209,288

99,574

109,714

8,719

4,519

4,200

8,177,965

3,416,593

4,761,372

Note: Advance claims are not directly comparable to claims reported in prior weeks. Advance claims are reported by the state liable for paying the unemployment compensation, whereas previous weeks reported claims reflect claimants by state of residence. In addition, claims reported as "workshare equivalent" in the previous week are added to the advance claims as a proxy for the current week's "workshare equivalent" activity.

*Denotes state estimate.

5

Case 4:19-cv-00449-KGB Document 134-17 Filed 04/13/20 Page 7 of 11

Seasonally Adjusted US Weekly UI Claims (in thousands)

Week Ending March 30, 2019 April 6, 2019 April 13, 2019 April 20, 2019 April 27, 2019 May 4, 2019 May 11, 2019 May 18, 2019 May 25, 2019 June 1, 2019 June 8, 2019 June 15, 2019 June 22, 2019 June 29, 2019 July 6, 2019 July 13, 2019 July 20, 2019 July 27, 2019 August 3, 2019 August 10, 2019 August 17, 2019 August 24, 2019 August 31, 2019 September 7, 2019 September 14, 2019 September 21, 2019 September 28, 2019 October 5, 2019 October 12, 2019 October 19, 2019 October 26, 2019 November 2, 2019 November 9, 2019 November 16, 2019 November 23, 2019 November 30, 2019 December 7, 2019 December 14, 2019 December 21, 2019 December 28, 2019 January 4, 2020 January 11, 2020 January 18, 2020 January 25, 2020 February 1, 2020 February 8, 2020 February 15, 2020 February 22, 2020 February 29, 2020 March 7, 2020 March 14, 2020 March 21, 2020 March 28, 2020 April 4, 2020

Change

Change

from

from

Initial Prior 4-Week

Insured

Prior 4-Week

Claims Week Average

Unemployment Week Average

IUR

211

-4

217.25

1,705

-14 1,722.50

1.2

203

-8

212.00

1,667

-38 1,705.75

1.2

203

0

208.00

1,659

-8 1,687.50

1.2

226

23

210.75

1,682

23 1,678.25

1.2

230

4

215.50

1,684

2

1,673.00

1.2

225

-5

221.00

1,678

-6 1,675.75

1.2

217

-8

224.50

1,683

5

1,681.75

1.2

213

-4

221.25

1,675

-8 1,680.00

1.2

218

5

218.25

1,695

20 1,682.75

1.2

220

2

217.00

1,700

5

1,688.25

1.2

220

0

217.75

1,677

-23 1,686.75

1.2

219

-1

219.25

1,692

15 1,691.00

1.2

224

5

220.75

1,699

7

1,692.00

1.2

222

-2

221.25

1,717

18 1,696.25

1.2

211

-11

219.00

1,694

-23 1,700.50

1.2

217

6

218.50

1,682

-12 1,698.00

1.2

211

-6

215.25

1,699

17 1,698.00

1.2

216

5

213.75

1,692

-7 1,691.75

1.2

214

-2

214.50

1,719

27 1,698.00

1.2

218

4

214.75

1,687

-32 1,699.25

1.2

215

-3

215.75

1,699

12 1,699.25

1.2

215

0

215.50

1,683

-16 1,697.00

1.2

219

4

216.75

1,683

0

1,688.00

1.2

208

-11

214.25

1,675

-8 1,685.00

1.2

211

3

213.25

1,672

-3 1,678.25

1.2

215

4

213.25

1,667

-5 1,674.25

1.2

218

3

213.00

1,698

31 1,678.00

1.2

212

-6

214.00

1,689

-9 1,681.50

1.2

218

6

215.75

1,691

2

1,686.25

1.2

213

-5

215.25

1,700

9

1,694.50

1.2

217

4

215.00

1,695

-5 1,693.75

1.2

212

-5

215.00

1,702

7

1,697.00

1.2

222

10

216.00

1,697

-5 1,698.50

1.2

223

1

218.50

1,665

-32 1,689.75

1.2

211

-12

217.00

1,697

32 1,690.25

1.2

206

-5

215.50

1,700

3

1,689.75

1.2

237

31

219.25

1,725

25 1,696.75

1.2

229

-8

220.75

1,716

-9 1,709.50

1.2

218

-11

222.50

1,728

12 1,717.25

1.2

220

2

226.00

1,775

47 1,736.00

1.2

212

-8

219.75

1,759

-16 1,744.50

1.2

207

-5

214.25

1,735

-24 1,749.25

1.2

220

13

214.75

1,704

-31 1,743.25

1.2

212

-8

212.75

1,753

49 1,737.75

1.2

201

-11

210.00

1,678

-75 1,717.50

1.2

204

3

209.25

1,729

51 1,716.00

1.2

215

11

208.00

1,693

-36 1,713.25

1.2

220

5

210.00

1,720

27 1,705.00

1.2

217

-3

214.00

1,699

-21 1,710.25

1.2

211

-6

215.75

1,702

3

1,703.50

1.2

282

71

232.50

1,784

82 1,726.25

1.2

3,307 3,025 1,004.25

3,059

1,275 2,061.00

2.1

6,867 3,560 2,666.75

7,455

4,396 3,500.00

5.1

6,606

-261 4,265.50

6

Case 4:19-cv-00449-KGB Document 134-17 Filed 04/13/20 Page 8 of 11

INITIAL CLAIMS FILED DURING WEEK ENDED MARCH 28 CHANGE FROM

STATE NAME Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Puerto Rico Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virgin Islands Virginia Washington West Virginia Wisconsin Wyoming Totals

STATE 80984 13774 88940 27756 1058325 61838 33227 19137 15869 228484 133820 48596 32941 178421 139174 55966 54330 113149 97400 23770 85317 181423 304335 109095 32015 104291 20763 24725 71942 31378 206253 27849 366595 172145 11818 274288 47744 47498 404677 45394 27800 66475 6801 92500 276185 28532 14633 250 112497 182849 14523 110934 6396 6015821

LAST WEEK 70092 5927 59592 18481 871992 42064 8127 8361 1407 154171 121680 39779 19355 64307 79419 15014 30767 64126 24962 2311 42336 32971 176329 -6678 26496 62045 5414 9025 -20356 1999 90438 9744 286596 78062 6156 77979 25818 17444 27226 25246 -8047 34649 5040 54423 120759 8842 10849
127 66220 52940 10987 59903 2743 3095659

YEAR AGO UCFE 1 UCX 1

78734 48 32

12887 8 0

85200 22 19

26537 3 3

1019797 186 72

60355 24 38

31265 8 1

18712 1 9

15490 97 0

223180 95 164

129649 32 28

47347 2 41

31750 23 3

169191 13 22

137141 22 20

54084 19 4

52840 1 1

110981 3 4

95734 47 25

23094 2 4

82921 21 28

177712 64 45

299598 89 152

106027 31 22

31159 6 6

101325 11 12

20062 40 11

24062 17 2

69929 7 4

30945 13 10

199359 29 7

27018 2 2

353586 33 21

169373 92 97

11552 16 6

268091 44 163

46038 45 22

43332 26 9

394157 819 246

44246 11 1

27129 3 1

64667 18 25

6652 13 1

90015 66 36

263858 147 212

27677 41 12

14236 1 1

225

0 0

110423 24 24

177379 28 60

13876 4 9

105256 20 14

6193 14 1

5832046 2451 1752

INSURED UNEMPLOYMENT FOR WEEK ENDED

MARCH 21

CHANGE FROM

ALL

PROGRAMS

EXCLUDING

LAST YEAR

RAILROAD

STATE (%) 2 WEEK AGO UCFE 1 UCX 1 RETIREMENT

18083 0.9 5596 3952 50

36

18169

11173 3.6 2661 2650 125 13

11311

26387 0.9 8279 7275 171 32

26590

16148 1.4 5160 5145 65

35

16248

400565 2.3 -21347 31907 2222 977

403764

21956 0.8 647 1602 210 122

22288

80861 4.9 36667 41671 44

57

80962

11506 2.6 6209 5557

9

14

11529

17661 3.1 10283 10644 195

7

17863

35076 0.4 1348 499 145 93

35314

107877 2.5 80370 83933 187 131

108195

10930 1.8 4458 4284 55

47

11032

15523 2.1 7654 7512 180 19

15722

132114 2.2 6677 12680 365 132

132611

28987 1.0 8209 10887 19

30

29036

53650 3.5 27154 26681 55

26

53731

17558 1.3 7585 8363 27

30

17615

24361 1.3 2033 5944 134 97

24592

58027 3.1 43884 43744 47

14

58088

21967 3.6 13264 13614 51

13

22031

47973 1.9 21506 19766 186 81

48240

183105 5.1 99978 105775 111 118

183334

88183 2.1 13108 17742 205 93

88481

160873 5.6 94086 105386 113 78

161064

9581 0.9 2914 2385 65

16

9662

49470 1.8 27932 26378 95

29

49594

19099 4.2 9281 9120 385 19

19503

16641 1.7 11782 10578 20

7

16668

58798 4.3 38976 40019 125 40

58963

27321 4.2 23297 23037 11

2

27334

156181 3.9 50341 56157 227 260

156668

20087 2.5 10799 10548 147 29

20263

314710 3.4 147496 166693 307 323

315340

75220 1.7 54568 55442 120 114

75454

8534 2.1 2365 3127 15

4

8553

214273 4.0 145950 152496 120 163

214556

25268 1.6 8414 11710 58

51

25377

63930 3.4 33407 34844 518 55

64503

135708 2.3 7679 18556 498 190

136396

19230 2.3 3991 3727 161 73

19464

31847 6.7 20990 20821 19

6

31872

30341 1.5 15230 16236 34

61

30436

3538 0.8 864

616

40

3

3581

37541 1.3 19191 19927 80

58

37679

144697 1.2 18270 31058 396 939

146032

24635 1.7 13809 14982 139 16

24790

13797 4.5 8987 8956

8

4

13809

512 1.5 -72

-84

10

0

522

41827 1.1 20199 21182 169 190

42186

158025 4.7 95402 101690 453 454

158932

21145 3.2 6991 9600 41

40

21226

99574 3.5 55967 59491 85

33

99692

4519 1.7 1322 1733 61

5

4585

3416593 2.4 1341811 1508238 9378 5479

3431450

Figures appearing in columns showing over-the-week changes reflect all revisions in data for prior week submitted by state agencies.
1. The Unemployment Compensation program for Federal Employees (UCFE) and the Unemployment Compensation for Ex-servicemembers (UCX) exclude claims filed jointly under other programs to avoid duplication.
2. Rate is not seasonally adjusted. The source of U.S. total covered employment is BLS.

7

Case 4:19-cv-00449-KGB Document 134-17 Filed 04/13/20 Page 9 of 11

UNADJUSTED INITIAL CLAIMS FOR WEEK ENDED MARCH 28, 2020

STATES WITH AN INCREASE OF MORE THAN 1,000

State CA NY
MI
FL
GA TX
NJ IN
NC
OH AL
VA IL KY MO WI
AZ TN
WA MD CO
HI SC MA KS PA
MS OK PR LA ID AR OR

Change +871,992 +286,596
+176,329
+154,171
+121,680 +120,759
+90,438 +79,419
+78,062
+77,979 +70,092
+66,220 +64,307 +64,126 +62,045 +59,903
+59,592 +54,423
+52,940 +42,336 +42,064
+39,779 +34,649 +32,971 +30,767 +27,226
+26,496 +25,818 +25,246 +24,962 +19,355 +18,481 +17,444

State Supplied Comment Layoffs in the services industries. Layoffs in the accommodation and food services, retail trade, and health care and social assistance industries. Increase in initial claims due to COVID-19. Layoffs in the manufacturing, construction, retail trade, administrative, support, waste management, and remediation services, and health care and social assistance industries. Layoffs in the agriculture, forestry, fishing, and hunting, construction, manufacturing, wholesale trade, retail trade, and other services industries. No comment. Layoffs in the accommodation and food services, manufacturing, other services, health care and social assistance, administrative, support, waste management, and remediation services, professional, scientific, and technical services, arts, entertainment, and recreation, information, mining, agriculture, forestry, fishing, and hunting, retail trade, real estate rental and leasing, construction, transportation and warehousing, and management of companies and enterprises industries. Increase in initial claims due to COVID-19. Layoffs in the manufacturing, arts, entertainment, and recreation, and accommodation and food services industries. Increase in initial claims due to COVID-19. Layoffs in the health care and social assistance, administrative, support, waste management, and remediation services, accommodation and food services, and other services industries. Increase in initial claims due to COVID-19. Layoffs in the accommodation and food services, health care and social assistance, manufacturing, administrative, support, waste management, and remediation services, professional, scientific, and technical services, arts, entertainment, and recreation, educational services, and construction industries. Increase in initial claims due to COVID-19. Layoffs in the manufacturing industry. Layoffs in the other services, accommodation and food services, and retail trade industries. No comment. Layoffs in the manufacturing, retail trade, arts, entertainment, and recreation, and health care and social assistance industries. Increase in initial claims due to COVID-19. Layoffs in the manufacturing and retail trade industries. Increase in initial claims due to COVID-19. No comment. Layoffs in the accommodation and food services, retail trade, health care and social assistance, transportation and warehousing, and administrative, support, waste management, and remediation services industries. Layoffs in the accommodation and food services industry. No comments. Layoffs in the arts, entertainment, and recreation, accommodation and food services, and other services industries. Increase in initial claims due to COVID-19. Increase in initial claims due to COVID-19. No comment. Increase in initial claims due to COVID-19. No comment. Layoffs in the construction, administrative, support, waste management, and remediation services, and accommodation and food services industries. Increase in initial claims due to COVID-19. No comment. Increase in initial claims due to COVID-19. No comment. Increase in initial claims due to COVID-19.
No comment. No comment.
8

Case 4:19-cv-00449-KGB Document 134-17 Filed 04/13/20 Page 10 of 11

IA

+15,014 Layoffs in the accommodation and food services, health care and social assistance, other

services, educational services, administrative, support, waste management, and remediation

services, and construction industries. Increase in initial claims due to COVID-19.

WV

+10,987 No comment.

VT

+10,849 Increase in initial claims due to COVID-19.

NM

+9,744 Layoffs in the accommodation and food services, health care and social assistance, retail trade,

administrative, support, waste management, and remediation services, other services, arts,

entertainment, and recreation, manufacturing, information, and educational services industries.

Increase in initial claims due to COVID-19.

NE

+9,025 Increase in initial claims due to COVID-19.

UT

+8,842 No comment.

DE

+8,361 No comment.

CT

+8,127 Layoffs in the educational services and other services industries. Increase in initial claims due

to COVID-19.

ND

+6,156 Increase in initial claims due to COVID-19.

AK

+5,927 No comment.

MT

+5,414 Layoffs in the retail trade and accommodation and food services industries. Increase in initial

claims due to COVID-19.

SD

+5,040 Increase in initial claims due to COVID-19.

WY

+2,743 Layoffs in the accommodation and food services, health care and social assistance,

construction, mining, and retail trade industries. Increase in initial claims due to COVID-19.

ME

+2,311 Layoffs in the accommodation and food services, health care and social assistance, retail trade,

manufacturing, arts, entertainment, and recreation, other services, administrative, support,

waste management, and remediation services, educational services, construction, and

wholesale trade industries. Increase in initial claims due to COVID-19.

NH

+1,999 Increase in initial claims due to COVID-19.

DC

+1,407 Increase in initial claims due to COVID-19.

STATES WITH A DECREASE OF MORE THAN 1,000

State NV RI MN

Change -20,356
-8,047 -6,678

State Supplied Comment No comment. No comment. No comment.

9

Case 4:19-cv-00449-KGB Document 134-17 Filed 04/13/20 Page 11 of 11
TECHNICAL NOTES
This news release presents the weekly unemployment insurance (UI) claims reported by each state's unemployment insurance program offices. These claims may be used for monitoring workload volume, assessing state program operations and for assessing labor market conditions. States initially report claims directly taken by the state liable for the benefit payments, regardless of where the claimant who filed the claim resided. These are the basis for the advance initial claims and continued claims reported each week. These data come from ETA 538, Advance Weekly Initial and Continued Claims Report. The following week initial claims and continued claims are revised based on a second reporting by states that reflect the claimants by state of residence. These data come from the ETA 539, Weekly Claims and Extended Benefits Trigger Data Report.
A. Initial Claims
An initial claim is a claim filed by an unemployed individual after a separation from an employer. The claimant requests a determination of basic eligibility for the UI program. When an initial claim is filed with a state, certain programmatic activities take place and these result in activity counts including the count of initial claims. The count of U.S. initial claims for unemployment insurance is a leading economic indicator because it is an indication of emerging labor market conditions in the country. However, these are weekly administrative data which are difficult to seasonally adjust, making the series subject to some volatility.
B. Continued Weeks Claimed
A person who has already filed an initial claim and who has experienced a week of unemployment then files a continued claim to claim benefits for that week of unemployment. Continued claims are also referred to as insured unemployment. The count of U.S. continued weeks claimed is also a good indicator of labor market conditions. Continued claims reflect the current number of insured unemployed workers filing for UI benefits in the nation. While continued claims are not a leading indicator (they roughly coincide with economic cycles at their peaks and lag at cycle troughs), they provide confirming evidence of the direction of the U.S. economy.
C. Seasonal Adjustments and Annual Revisions
Over the course of a year, the weekly changes in the levels of initial claims and continued claims undergo regularly occurring fluctuations. These fluctuations may result from seasonal changes in weather, major holidays, the opening and closing of schools, or other similar events. Because these seasonal events follow a more or less regular pattern each year, their influence on the level of a series can be tempered by adjusting for regular seasonal variation. These adjustments make trend and cycle developments easier to spot. At the beginning of each calendar year, the Bureau of Labor Statistics provides the Employment and Training Administration (ETA) with a set of seasonal factors to apply to the unadjusted data during that year. Concurrent with the implementation and release of the new seasonal factors, ETA incorporates revisions to the UI claims historical series caused by updates to the unadjusted data.

Weekly Claims Archives Weekly Claims Data

U.S. Department of Labor news materials are accessible at http://www.dol.gov. The Department's Reasonable Accommodation Resource Center converts Departmental information and documents into alternative formats, which include Braille and large print. For alternative format requests, please contact the Department at (202) 693-7828 (voice) or (800) 877-8339 (federal relay).

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EXHIBIT 18

Case 4:19-cv-00449-KGB Document 134-18 Filed 04/13/20 Page 2 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES et al.,

Plaintiffs, v. LESLIE RUTLEDGE, et al.,

CIVIL ACTION Case No. 4:19-cv-00449-KGB

Defendants.

DECLARATION OF LEAH GODESKY, ESQ. IN SUPPORT OF PLAINTIFFS’ MOTION FOR AN EX PARTE TEMPORARY RESTRAINING ORDER AND/OR
PRELIMINARY INJUNCTION I, Leah Godesky, Esq., declare under 28 U.S.C. § 1746 and penalty of perjury that the following is true and correct: 1. I am an attorney at O’Melveny & Myers, LLP, counsel of record for Plaintiffs Little Rock Family Planning (“LRFP”) and Dr. Thomas Tvedten (together, “Plaintiffs”) in the above-captioned matter. I am a member in good standing of the State Bars of New York and Connecticut, and am admitted pro hac vice to represent Plaintiffs in this litigation. 2. I submit this Declaration in support of Plaintiffs’ Motion for an Ex Parte Temporary Restraining Order and/or Preliminary Injunction relating to the State’s enforcement of Executive Order 20-13 and the April 3, 2020 Arkansas Department of Health Directive on Elective Surgeries to bar all surgical abortion in Arkansas “except where immediately necessary to protect the life or health of the patient” (the “COVID-19 Abortion Ban”). 3. Plaintiffs received notice of the COVID-19 Abortion Ban from the Department of Health during the morning of April 10, 2020.

Case 4:19-cv-00449-KGB Document 134-18 Filed 04/13/20 Page 3 of 4 4. At approximately 4:15pm CST on April 12, 2020, I notified counsel for Defendants that Plaintiffs intended to seek an ex parte temporary restraining order barring enforcement of the COVID-19 Abortion Ban as unconstitutional, unless Defendants agreed to stop enforcing it. As of 10am CST on April 13, 2020, Plaintiffs have not yet heard from counsel for Defendants. 5. Because of the COVID-19 Abortion Ban, Plaintiffs were forced to turn away numerous women seeking care on April 10, 2020, and would have to do the same tomorrow, April 14, 2020. Ex parte relief is therefore warranted for the reasons detailed in Plaintiffs’ concurrently filed verified First Supplemental Complaint and memorandum of law in support of their request for an ex parte TRO and/or preliminary injunction.
2

Case 4:19-cv-00449-KGB Document 134-18 Filed 04/13/20 Page 4 of 4 I declare under penalty of perjury that the foregoing is true and correct. Executed this 13th day of April, 2020.
___________________________ Leah Godesky, Esq.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES, et al.,

Plaintiffs, v.

Case No.: 4:19-cv-00449-KGB

LESLIE RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas, et al.,

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR EX PARTE TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION
Governor Asa Hutchinson has decided to not order Arkansas citizens to stay home during the COVID-19 pandemic. Many retailers remain open for business. According to the Governor, many hospitals are “empty,” and there is no shortage of the medical professionals on whom we all gratefully depend to fight COVID-19 on the frontlines. Manufacturers and places of worship remain open, and medical providers around the State are free to exercise their independent professional judgment to provide patients with all surgical and dental care that they determine cannot be safely postponed. Indeed, orthodontists in Arkansas remain free to schedule visits to adjust wires on patients’ braces, and dentists continue to see patients who complain of a cracked tooth.
Nevertheless—and unsurprisingly—the State opportunistically seeks to leverage the instant public-health crisis to continue its unrelenting campaign––which included no fewer than 12 abortion-specific restrictions in 2019 alone, see Dkt. No. 1––to prevent women from exercising their constitutionally protected right to access pre-viability abortion care in Arkansas.
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See Roe v. Wade, 410 U.S. 113, 163–65 (1973). This time, Arkansas seeks to eliminate patients’ right to access surgical-abortion care, i.e., the only type of care available to women who are more than 10 weeks pregnant, as measured from the date of their last menstrual period (“LMP”) (the “COVID-19 Abortion Ban” or the “Ban”). On the morning of Friday, April 10, the Arkansas Health Department (“ADH”) arrived at the clinic of Plaintiff Little Rock Family Planning Services (“LRFP”) to demand that clinicians cease providing surgical-abortion care to numerous women who had already assumed the substantial burdens of making an initial trip to the clinic days earlier to receive the State’s mandated (in-person) “informed-consent” information. ADH stated that the provision of surgical abortion “will result in an immediate suspension of [LRFP’s] license.”1 Violation of the ADH directive would carry criminal, financial, and licensure penalties, and each day a person or business operates in violation of the guidance would constitute a separate offense.2
Contrary to the State’s manufactured justifications, the COVID-19 Abortion Ban does nothing to further state interests in public health and safety during the pandemic. LRFP is wholly self-sustaining in terms of PPE and has no plans to utilize state PPE resources. If women are forced to continue their pregnancies, the PPE required for the associated prenatal care and delivery would far surpass that used at LRFP in providing abortion care. For much the same reasons, pre-viability abortion care decreases rather than exacerbates demand for hospital
1 Ex. 1. All exhibits identified by “Ex.” in this brief are exhibits attached to the concurrently filed motion for an ex parte temporary restraining order and/or preliminary injunction. Unless otherwise indicated, all emphasis is added and all quotation marks, citations, and footnotes are omitted from citations. 2 See Ark. Code § 20-7-101; Executive Order to Amend Executive Order 20-03 Regarding the Public Health Emergency Concerning COVID-19 for the Purpose of Imposing Further Restrictions to Prevent the Spread of COVID-19, EO 20-13, § 2(a) (Apr. 4, 2020), https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20-13._.pdf.
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capacity; abortion is safer than and does not burden hospitals nearly as much as continued pregnancy, miscarriage management, and childbirth. Nor is the Ban necessitated by socialdistancing concerns. LRFP’s COVID-19 protocols and procedures strictly limit the number of people in the clinic at any given time and space patients 6 feet apart. Indeed, the hundreds of individuals permitted to gather in Arkansas businesses and churches dwarf the comparatively small number that could be in LRFP at any given time.
At the same time, the harms arising out of the COVID-19 Abortion Ban are severe. Even assuming the COVID-19 Abortion Ban is lifted in weeks rather than months (which even the AHD can’t say for certain, and which seems highly unlikely in view of the State’s decision to close schools through the end of the school year), the continuously progressing nature of a pregnancy means that countless women’s health will be jeopardized, as the risks associated with both abortion care and pregnancy increase over time. In particular, some will be pushed to a more complex and lengthier procedure; others whose pregnancies progress to 18 weeks LMP will be forced to make an additional trip to the clinic for pre-abortion care; and still others will be pushed past the point in pregnancy where abortion is legal in Arkansas (21.6 weeks LMP). Some of the women who are barred from obtaining care under the COVID-19 Abortion Ban may try to travel in the middle of a pandemic to the next-nearest clinic currently providing surgical abortions, which for many women will be in Granite City, Illinois—a 700-mile roundtrip drive into a State reporting far higher numbers of COVID-19 infections. This travel will not only impose enormous logistical and financial burdens, but also increase patients’ risk of exposure to COVID-19 and the risk of infection for other Arkansas residents upon their return. But many of LFRP’s patients—a substantial portion of which are poor or low-income––will be unable to make this journey, and will be forced to carry to term and have a child against their will.
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The irreparable harm of the COVID-19 Abortion Ban is ongoing. LRFP is scheduled to provide 26 surgical abortions this week, starting tomorrow, April 14, including to at least 12 patients who are not candidates for a medication (i.e., non-surgical) abortion. The State’s interest in fighting COVID-19 is valid, and LRFP wholeheartedly shares it. But the COVID-19 Abortion Ban cannot stand. To protect themselves and their patients from this constitutional violation and to avoid further irreparable harm, Plaintiffs seek declaratory and injunctive relief to prevent further enforcement of the Ban.
STATEMENT OF FACTS A. Abortion Is Critical, Time-Sensitive Health Care. Patients seek abortion for a wide range of personal and complex reasons.3 Most people who have abortions already have at least one child, and many have decided they cannot parent another at this stage of their lives.4 Some patients have abortions because they conclude that it is not the right time to become a parent, they wish to pursue their education or career, or they lack financial resources or partner or familial support or stability.5 Other patients seek abortions because existing medical conditions put them at greater-than-average risk of medical complications, because they are in abusive relationships, or because they are pregnant as a result of rape or sexual assault.6 Abortions are typically provided in Arkansas using one of two methods: medication abortion or surgical abortion.7 Consistent with Arkansas law, LRFP provides (i) medication
3 Williams Decl. ¶ 10 (Ex. 2); Cathey Decl. ¶¶ 28–29 (Ex. 3). 4 Williams Decl. ¶ 10. 5 Williams Decl. ¶ 10; Cathey Decl. ¶ 29. 6 Williams Decl. ¶ 10; Cathey Decl. ¶ 29. 7 Williams Decl. ¶ 11; Cathey Decl. ¶¶ 25–26.
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abortion up to ten weeks (seventy days) LMP, and (ii) surgical abortion up to twenty-one weeks and six days LMP.8 Both methods are a safe and effective means of terminating a pregnancy, although some patients have medical or other circumstances that make surgical abortion more appropriate for them.9
Medication abortion involves taking a combination of two pills, mifepristone and misoprostol, after which the patient expels the contents of the pregnancy in a manner similar to a miscarriage.10 Not all patients, even those who go to LRFP before 10 weeks LMP, are eligible for medication abortion. For some patients, like those with anemia, medication abortion is contraindicated.11 In fact, a variety of medical conditions can push women toward surgical abortion rather than medication abortion.12 And some women who can choose between surgical and medication abortion—that is, women who are less than 10 weeks LMP—often strongly prefer surgical abortion.13 Although there can be many reasons for this preference, many women prefer surgical care because it allows them to return to work and other responsibilities more quickly.14
Despite its name, “surgical” abortion involves no incision or general anesthesia.15 There are two types of surgical abortion. The first is aspiration abortion, in which gentle suction is
8 Williams Decl. ¶¶ 12–13. 9 Williams Decl. ¶¶ 11, 16; Cathey Decl. ¶ 27. 10 Williams Decl. ¶ 12; Cathey Decl. ¶ 25. 11 Williams Decl. ¶ 16; Cathey Decl. ¶ 27. 12 Williams Decl. ¶ 16; Cathey Decl. ¶ 27. 13 Williams Decl. ¶ 16. 14 Williams Decl. ¶ 16. 15 Williams Decl. ¶ 13; Cathey Decl. ¶ 26.
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used to safely empty the contents of the uterus.16 The procedure usually takes approximately 5 to 10 minutes. Beginning at approximately 14 weeks LMP, abortions generally require a stillvery-safe but more-complex procedure known as dilation and evacuation, or “D&E” abortion, which requires more procedure and recovery time than the aspiration procedure.17 A D&E is usually a one-day procedure, but as pregnancy progresses, it becomes a two-day procedure because patients must come into LRFP the day before to begin the process of dilating their cervix.18 A D&E requires more skill and time, and the cost of abortion care increases with the progression of a pregnancy.19
In 2019, LRFP provided approximately 1,950 abortions. Of those, approximately 1,725 were surgical abortions.20 From January through March 2020, LRFP provided 5 abortions, of which 478 were surgical procedures.21
B. Abortion Is Extremely Safe, But Risks Increase When It Is Delayed. As this Court recently found, abortion in Arkansas (and in the nation as a whole) “is one of the safest medical procedures available.” Little Rock Family Planning v. Rutledge, 397 F. Supp. 3d 1213, 1279 (E.D. Ark. 2019); see also Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2311 (2016).22 In particular, major complications—defined as complications requiring hospital admission, surgery, or blood transfusion—occur in less than one-quarter of one percent
16 Williams Decl. ¶ 13; Cathey Decl. ¶ 26. 17 Williams Decl. ¶ 13. 18 Williams Decl. ¶¶ 13, 22. 19 Williams Decl. ¶¶ 13, 19, 22. 20 Williams Decl. ¶ 15. 21 Williams Decl. ¶ 15. 22 See also Williams Decl. ¶ 9; Cathey Decl. ¶¶ 13–14.
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(0.23%) of all abortion cases.23 Moreover, as this Court found, “legal abortion is significantly safer for a woman than carrying a pregnancy to term and giving birth.” Id.24
In the rare instances when complications from abortion do occur, they can usually be managed in an outpatient-clinic setting, either at the time of the procedure or during a follow-up visit. Id. at 1278–79 (“[C]omplications rarely require hospital admission”).25 “Since January 2017, LRFP” has a “rate of 0.07% for complications requiring hospital transfers.” Id. at 1281.
Surgical abortion requires minimal personal protective equipment (“PPE”).26 For the state-mandated ultrasound before every abortion, LRFP uses only non-sterile gloves.27 For surgical abortions, the physician uses sterile gloves (one pair per procedure) and a surgical mask (worn throughout the day); the assistant uses only a surgical mask (also worn throughout the day) and gloves.28 When necessary, LRFP uses reusable gowns and eyewear.29
Although abortion is a very safe procedure, the associated health risks increase as pregnancy progresses.30 Delay may worsen any maternal-health conditions that predate or result from the pregnancy.31 Delay can likewise push a patient from an aspiration abortion to a more complex and longer D&E or from a one-day procedure to a two-day procedure (beginning at
23 Cathey Decl. ¶ 23; see also Williams Decl. ¶ 9. 24 See also Williams Decl. ¶ 9; Cathey Decl. ¶ 13. 25 See also Williams Decl. ¶ 9; Cathey Decl. ¶ 14. 26 Williams Decl. ¶¶ 18, 27–28; see Cathey Decl. ¶ 43. 27 Williams Decl. ¶ 18. 28 Williams Decl. ¶ 18. 29 Williams Decl. ¶ 18. 30 Williams Decl. ¶ 22; Cathey Decl. ¶¶ 33–34, 65, 67–68; see also Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States 77–78, 162–63 (2018). 31 Williams Decl. ¶ 22; Cathey Decl. ¶¶ 33–34.
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approximately 18 weeks LMP).32 And delay can push a patient beyond the point at which abortion is available in the State (i.e., 21.6 weeks LMP), thereby giving rise to a risk that she will attempt to terminate her pregnancy outside the medical system or be forced to carry to term against her will.33
C. Even Before the COVID-19 Ban, Women Seeking Abortions in Arkansas Faced Many Hurdles in Obtaining Care.
LRFP’s patients generally seek abortion as soon as they are able, but many face logistical obstacles that can delay access to abortion care.34 Some patients may not discover they are pregnant until later in their pregnancies, while others may experience difficulties navigating the medical system, including finding a provider and scheduling an appointment.35 Many of LRFP’s patients are struggling financially,36 and patients need to gather the resources to pay for the procedure and related costs. They must also figure out transportation to the clinic, arrange for time off work (which is often unpaid, because many patients lack paid time off or sick leave), and, for many of those patients who are mothers already, arrange childcare.37 Arkansas’s existing legal restrictions increase the challenges facing women who seek care in the State, too. For example, Arkansas law mandates that all patients visit the clinic in-person at least 72 hours before their abortion to receive state-mandated information. See Ark. Code § 20-16-1703. Moreover, any woman seeking an abortion must be evaluated via a medical history, a physical examination, counseling, and laboratory tests. See Ark. Admin. Code 007.05.2-8(A).
32 Williams Decl. ¶ 22; Cathey Decl. ¶ 35. 33 Williams Decl. ¶¶ 22, 47–48; Cathey Decl. ¶¶ 35–36, 66–67. 34 See Williams Decl. ¶¶ 19–21, 46–47; Cathey Decl. ¶ 30. 35 Williams Decl. ¶ 19; Cathey Decl. ¶ 30. 36 Williams Decl. ¶ 19. 37 Williams Decl. ¶¶ 19–20; Cathey Decl. ¶ 30.
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D. LRFP’s Initial Response to COVID-19. On March 11, 2020, Governor Asa Hutchinson issued Executive Order 20-03, declaring a state of emergency in Arkansas due to the outbreak of the COVID-19 virus.38 Ten days later, on March 21, 2020, ADH issued a public statement (the “March 21 Guidance”) recommending that health care facilities and clinicians “prioritize urgent and emergency visits and procedures now and for the coming several weeks.”39 The letter’s stated goals were to “preserve staff, personal protective equipment (PPE), and patient care supplies; ensure staff and patient safety; and expand available hospital capacity during the COVID-19 pandemic.”40 The ADH stated that “[p]rocedures … that can be safely postponed shall be rescheduled to an appropriate future date.” The ADH’s guidance also provided specific exemptions for “small rural hospitals under 60 beds,” and clarified that procedures should proceed if there is risk of “progression of staging of a disease or condition if surgery is not performed.”41 The ADH reiterated this guidance in another letter issued on March 30, 2020.42 In the meantime, beginning in mid-March, LRFP began to implement measures to protect its patients and staff.43 LRFP determined that it would cease providing basic gynecological care—i.e., pap smears, STD testing, and contraceptive counseling and services—and that, where
38 Executive Order to Declare an Emergency, As Authorized by Ark. Code Ann. § 12-75-114, and Order the Arkansas Department of Health to Take Action to Prevent the Spread of COVID19, as Authorized by Ark. Code. Ann. § 20-7-110, EO 20-03 (March 11, 2020), https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20-03.__1.pdf. 39 Ex. 4. 40 Id. 41 Id. 42 Ex. 5. 43 Williams Decl. ¶ 25.
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possible and permitted by law, prescriptions would be administered over the phone.44 LRFP also began performing enhanced telephonic and in-person screening of patients for COVID-19 symptoms, and staggering patient-appointment times to reduce the number of patients at the facility at any given time, minimizing possibilities for exposure.45
LRFP expanded on and formalized these precautions in its April 2, 2010 COVID-19 Response Protocol (the “LRFP Protocol”). That protocol sets forth detailed information about (1) postponement of LRFP services for which delay would not risk harm to the patient (i.e., certain gynecological care); (2) screening patients for symptoms of infection, both telephonically and on site; (3) staggering appointment times to minimize in-person contact and shorten the time patients spend in the clinic; (4) spacing individuals at least 6 feet apart in waiting areas to comply with the State’s and CDC’s “social distancing” guidelines; (5) limiting visitors and support people by requiring that they sit in cars or return home until patients are ready to be picked up; (6) performing temperature checks on all individuals entering the building (including staff); and (7) enhancing infection-control protocols with frequent clinic sanitization and patientetiquette education.46 Given these changes, no more than 6 to 8 patients are in LRFP’s waiting room at any given time, and once patients are checked in for care, they are in individual treatment rooms except for the time they spend in recovery, during which they are at least 6 feet apart.47
The LRFP Protocol also states that “LRFP is aware of the PPE shortage our healthcare system is currently facing,” and “is committed to using only the PPE that is necessary to protect
44 Williams Decl. ¶ 25. 45 Williams Decl. ¶ 25. 46 Ex. 6. 47 Williams Decl. ¶ 26.
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[its] patients and staff.”48 LRFP is self-sustaining in terms of PPE for the next several months, and has not availed itself of any PPE offered by the State’s medical society.49 LRFP has no intention of utilizing any state PPE stockpiles or resources, and is prepared to switch to cloth/reusable masks should it become necessary.50 Care at LRFP does not require the use of N95 masks, the PPE that appears to be in shortest supply in battling the COVID-19 pandemic.51 Likewise, because all LRFP’s procedures are performed in its own outpatient facility, LRFP is not using any hospital resources that may be needed for COVID-19 response—no hospital staff or supplies, no hospital beds (let alone ICU beds), and no ventilators.52 LRFP is strictly adhering to its Protocol.53
E. Further State Action Against LRFP And Its Patients. On April 1, 2020, representatives from the ADH called LRFP twice to inquire about what the clinic was doing to reduce non-essential services, preserve PPE, and protect against the spread of COVID-19.54 On both occasions, LRFP summarized the practices outlined in the LRFP Protocol discussed above.55 At no point during either conversation did the ADH representatives suggest that LRFP was not complying with the State’s elective-surgery guidance.56
48 Ex. 6. 49 Williams Decl. ¶ 27. 50 Williams Decl. ¶ 27. 51 Williams Decl. ¶ 28. 52 Williams Decl. ¶ 28. 53 Williams Decl. ¶ 29. 54 Williams Decl. ¶ 30. 55 Williams Decl. ¶ 30. 56 Williams Decl. ¶ 30.
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On April 3, 2020, the ADH issued a Directive reiterating the goals and instructions from the ADH’s March 21 Guidance (the “April 3 Directive”).57 The April 3 Directive, like the March 21 Guidance before it, was not intended to stop the provision of medical care in the State; rather, it again stated that “[p]rocedures … that can be safely postponed shall be rescheduled to a future date.”58 It further stated that “urgent” care and “care designated as an exception . . . will continue,” including situations in which “there is a risk of . . . progression of staging of a . . . condition if surgery is not performed.”59
When Governor Hutchinson was asked about the April 3 Directive during an April 6, 2020 press conference, Defendant State Health Director Dr. Nathaniel Smith explained that it is “not intended to replace a physician’s judgment,” and reiterated that the April 3 Directive encompasses only procedures that can “be safely deferred.”60 At no point during the conference did the Governor or Dr. Smith suggest that surgical abortion was impermissible under the April 3 Directive.61
On April 4, 2020, Governor Hutchinson issued Executive Order 20-13, declaring “the entire state an emergency disaster area,” and prohibing “gatherings of more than ten (10) people in any confined indoor or outdoor space” “until further notice.”62 The Governor declined,
57 Ex. 7. 58 Id. 59 Id. 60 Channel for Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19 Update, YouTube (Apr. 6, 2020), https://www.youtube.com/watch?v=KS2Kb4V8U3I. 61 Williams Decl. ¶ 31. 62 Executive Order to Amend Executive Order 20-03 Regarding the Public Health Emergency Concerning COVID-19 for the Purpose of Imposing Further Restrictions to Prevent the Spread of COVID-19, EO 20-13, § 2(a) (Apr. 4, 2020), https://governor.arkansas.gov/images/ uploads/executiveOrders/EO_20-13._.pdf.
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however, to issue a stay-home order to all Arkansas residents, and continued to permit “gatherings of ten (10) or more people in . . . parks, trails, athletic fields and courts, parking lots, golf courses, and driving ranges where social distancing of at least six (6) feet can be easily maintained.”63 The Order also does “not apply to businesses, manufacturers, construction companies, places of worship, the Arkansas General Assembly, municipal or county governing bodies, or the judiciary,” though those entities were also advised to maintain appropriate socialdistancing practices.64 Finally, the Order stated that “pursuant to Ark. Code Ann. § 20-7-101, violation of a directive from the Secretary of Health during this public health emergency is a misdemeanor offense, and upon conviction thereof is punishable by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) or by imprisonment not exceeding one (1) month, or both.”65
Protestors appear at LRFP nearly every day that it provides abortion care.66 Between April 4 and 10, 2020, however, the harassment and intimidation from on-site protestors––who recklessly fail to exercise proper social distancing––significantly increased.67 They summoned police to the clinic twice.68 Since the start of COVID-19 concerns, social-media complaints against the clinic have likewise increased, including some specifically requesting action by the Governor and state legislators to stop the provision of abortion care. For example, on March 29, 2020, State Senator Trent Garner announced in a tweet that he had “asked the Governor to [ban
63 Id. § 2(b). 64 Id. § 2(c). 65 Id. § 13. 66 Williams Decl. ¶ 33. 67 Williams Decl. ¶ 33. 68 Williams Decl. ¶ 33.
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abortions] in Arkansas …. We shouldn’t expose women to the risk of the Wuhan COVID-19 virus for an unnecessary elective procedure, and we could save the unborn babies.”69
On April 7, ADH inspectors performed an unannounced in-person inspection at LRFP.70 At no point during the inspection, which occurred on a day during which both surgical and medication abortions were provided, did the ADH representatives suggest that LRFP was not complying with the State’s April 3 Directive.71
On April 8, 2020, the Governor gave an interview to PBS during which he discussed Arkansas’s “targeted” approach to managing risks relating to COVID-19.72 When asked whether he thinks “that by not requiring or ordering people to stay home, unless they have to be out, is not putting other people at risk,” the Governor responded “No.”73 He elaborated that “as long as they do what they’re supposed to do, which is social distance, wear a mask when you’re out, this accomplishes the purpose.”74 The Governor further said that currently in the State, there are “a lot of hospitals that are empty right now and health care workers that are empty,”75 presumably meaning that health care workers are available to provide care.
On April 9, the Governor and Dr. Smith were asked at a press conference if “elective
69 Ex. 8. 70 Williams Decl. ¶ 34. 71 Williams Decl. ¶ 34. 72 Arkansas Gov. Asa Hutchinson on why he hasn’t issued a stay-at-home order, PBS (Apr. 8, 2020) https://www.pbs.org/newshour/show/arkansas-gov-asa-hutchinson-on-why-he-hasntissued-a-stay-at-home-order; see also Arkansas governor defends no stay-at-home statewide order as ‘successful,’ CNN (Apr. 12, 2020) https://www.cnn.com/2020/04/12/politics/arkansasgovernor-no-stay-at-home-order-coronavirus-cnntv/index.html. 73 Id. 74 Id. 75 Id.
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surgery” is still permitted in the State, and Dr. Smith responded that judgments at surgical centers would be left primarily to the providers.76 At no point during the conference did the Governor or Dr. Smith suggest that surgical abortion care is not permissible under the April 3 Directive.77
Then, on the morning of April 10, ADH inspectors hand delivered a cease-and-desist order to LRFP (the “C&D Order”).78 It acknowledged that the April 7 inspection “did not reveal any deficiencies with respect to the rules for abortion facilities in Arkansas,” but asserted that LRFP was “in violation of the April 3, 2020 Arkansas Department of Health Directive on Elective Surgeries.”79 The C&D Order stated that the April 3 Directive “mandates the postponement of all procedures that are not immediately medically necessary during the COVID19 emergency,” and thus, according to ADH, the “prohibition applies to surgical abortions that are not immediately necessary to protect the life or health of the patient.”80 The C&D Order ordered LRFP to “immediately cease and desist the performance of surgical abortions, except where immediately necessary to protect the life or health of the patient.”81 The C&D Order also stated that “[a]ny further violations of the April 3 Directive will result in an immediate suspension of [LRFP’s] license.”82 On April 10, LRFP was scheduled to provide surgicalabortion care to 8 patients whom LRFP had to turn away, including one patient at 17 weeks
76 Channel for Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19 Update, YouTube (Apr. 9, 2020), https://www.youtube.com/watch?v=Kg-qMqmycAM. 77 Id. 78 Ex. 1. 79 Id. 80 Id. 81 Id. 82 Id.
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LMP.83 Later on April 10, the Governor and Dr. Smith held a press conference regarding
COVID-19.84 Consistent with Governor Hutchinson’s decision that same week to close Arkansas’s public schools for the remainder of the school year,85 Dr. Smith admitted that he “can’t say with certainty” how long the C&D Order against LRFP will be in place.86 When a reporter pressed a question regarding whether the C&D Order means that “some of [the women who would otherwise visit LRFP] are going to have a baby,” the Governor deflected and avoided the critical inquiry by instead asking, “[i]s there a remote [i.e., telephonic] question”?87
Meanwhile, a range of medical services continue at facilities around the State. To take just one example, the ADH has expressly permitted orthodontists to continue seeing patients to adjust their orthodontic wires and appliances, and dentists may treat patients whom complain of a cracked tooth.88 And Arkansas has relaxed telemedicine rules for every medical treatment except abortion––indeed, even the pre-abortion-care, state-mandated informed-consent process must still occur in-person.89
F. Medical Experts Have Determined That Abortion Care Remains Critical, Time-Sensitive Health Care That Should Not Be Delayed Even During the Pandemic.
Widely respected national medical organizations have concluded that abortion is a time-
83 Williams Decl. ¶ 38. 84 Channel for Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19 Update, YouTube (Apr. 10, 2020), https://www.youtube.com/watch?v=X2v1SIesdyc. 85 Ex. 9. 86 Channel for Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19 Update, YouTube (Apr. 10, 2020), https://www.youtube.com/watch?v=X2v1SIesdyc. 87 Id. 88 Ex. 10. 89 Ex. 11.
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sensitive, urgent form of health care that even the COVID-19 pandemic should not delay:
 ACOG, the American Board of Obstetrics & Gynecology, the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine issued a joint statement on “Abortion Access During the COVID19 Outbreak” providing that “[t]o the extent … hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure.”90 Abortion, these expert medical organizations concluded, “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”91
 The American Medical Association (“AMA”)—the country’s largest medical organization and one of its foremost authorities on medical and public-health matters— concurs. The AMA’s March 30, 2020 Statement on Government Interference in Reproductive Health Care disapproves of efforts “to ban or dramatically limit women’s reproductive health care” during the COVID-19 outbreak by “labeling procedures as ‘non-urgent.’”92
 On April 4, 2020, the World Health Organization (“WHO”) issued a similar statement concluding that “[a]bortion is considered an essential service during the coronavirus pandemic” and that “services related to reproductive health are considered to be part of essential services during the COVID-19 outbreak.”93
 The Ambulatory Surgery Center Association’s and the American College of Surgeons recommend that consideration of whether a surgery should appropriately be delayed during the pandemic must account for risk to the patient, “including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”94
At least 19 States and the District of Columbia have similarly concluded that abortion is
an essential aspect of women’s healthcare that should continue despite the challenges posed by
90 Ex. 12. 91 Id. 92 Ex. 13. 93 Ex. 14. 94 Ex. 15.
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COVID-19.95 As one large group of States explained in an amicus brief, their experiences “demonstrate that the present public health crisis can be addressed effectively without denying access to abortion services.”96 Moreover, “because abortions cannot readily be postponed for weeks or months, and also effectuate the constitutional right to choose to terminate a pregnancy prior to fetal viability, abortions are on a different footing from the types of medical services that can be considered ‘nonessential.’”97
G. Forcing Women To Continue Their Pregnancies During the Pandemic Is Harming Patients and Arkansas’s Health Care System.
The COVID-19 pandemic has exacerbated the already-significant obstacles that women seeking abortion care in Arkansas face. During the current crisis, patients must navigate the preexisting barriers to care against a formidable backdrop of heightened job insecurity, minimal public-transit availability, and limited childcare assistance during school closures.98 Moreover, as jobless claims continue to soar,99 fewer people will be able to afford the costs of securing critical abortion care. All these factors can cause delays in obtaining care which, in turn, result in higher physical, financial, psychological, and emotional costs to patients.
For these reasons, and the ones detailed above, many women are unable to seek care at LRFP before 10 weeks LMP and are therefore ineligible to obtain a medication abortion. In
95 See Amicus Br. for 18 States and the District of Columbia in Support of Respondents, In re Abbott, No. 20-50264 (5th Cir. Apr. 3, 2020) [hereinafter “States Amicus Br.”]; Ex. 16 (“The order provides that it shall not be interpreted in any way to limit access to family planning services, including termination of pregnancies.”). 96 States Amicus Br. 4. 97 States Amicus Br. 4. 98 Williams Decl. ¶ 46. 99 See Ex. 17.
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addition, there are others for whom medication abortion is not medically appropriate.100 Unless the Court enjoins the COVID-19 Abortion Ban, all these women will, at best, unnecessarily face the risks of continued pregnancy, and––assuming they are ultimately able to access abortion care––the increased and wholly unnecessary risks associated with delayed abortion care.101 Some will be pushed to the more complex and lengthier D&E procedure necessary after approximately 13 weeks LMP; others whose pregnancies are pushed past 18 weeks LMP will be required to make additional visit to the clinic to obtain the care they need.102 All that assumes, however, that these women will be able to obtain care at LRFP when the COVID-19 Abortion Ban is lifted; LRFP has limited staff and capacity, and likely will not be able to treat all the women who would need near-term care after waiting and being delayed for weeks––if not months.103 And given that the public-health crisis is expected to last weeks if not months, many others will be pushed past the point at which they can obtain an abortion in Arkansas at all.104
Women who cannot obtain abortion care in Arkansas will have no good options: The next-nearest clinic providing surgical abortions is in Shreveport, Louisiana (a more than 600mile roundtrip drive from Fayetteville, Arkansas), but that clinic provides care only up to 16.6 weeks LMP and is subject to continuing threats of closure.105 Many women will thus be forced to travel to Granite City, Illinois, which is not only a more-than-700-mile roundtrip drive from Little Rock, but it—like Shreveport—is in a State with a far higher incidence of COVID-19.
100 Williams Decl. ¶¶ 16, 47; Cathey Decl. ¶ 27. 101 Williams Decl. ¶¶ 22, 46–49; Cathey Decl. ¶¶ 33–34, 68–70. 102 Williams Decl. ¶ 22; Cathey Decl. ¶ 35. 103 Williams Decl. ¶ 48; Cathey Decl. ¶ 70. 104 Williams Decl. ¶¶ 46–49; Cathey Decl. ¶¶ 36, 63–66. 105 Williams Decl. ¶ 47.
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(Illinois has reported 17,887 cases of COVID-19 and 596 deaths,106 whereas Arkansas has 1,171 reported cases and 23 deaths107). And there is no guarantee that the clinic in Granite City will have the capacity to treat women who would have otherwise obtained care in Arkansas. Thus, even if women obtain treatment outside Arkansas, they do so only at heightened risk of contracting COVID-19 and carrying it back to this State. But many of LFRP’s patients will not even be able to make the trip and will instead be forced to carry to term against their will or seek to terminate their pregnancy outside the medical system.108
Every day that a woman remains pregnant against her will, she not only experiences the emotional and physical consequences of continuing pregnancy, but also risks contracting the COVID-19 virus, thereby further jeopardizing her ability to visit a clinic and receive timesensitive care.109 In addition, the longer a woman remains pregnant—and especially if forced to carry a pregnancy to term—the heavier burden she places on the health care system, the more interactions she must have with a variety of clinicians and staff, and the much greater use of PPE her care requires.110 An uncomplicated pregnancy typically requires a minimum of one prenatal appointment per month, along with additional appointments to complete laboratory tests and ultrasounds.111 For a complicated or high-risk pregnancy, the number of visits frequently
106 See Ill. Dep’t of Pub. Health, Coronavirus Disease 2019 (COVID-19), https://www.dph. illinois.gov/covid19 (visited Apr. 10, 2020). 107 See Ark. Dep’t of Health, COVID-19, https://www.healthy.arkansas.gov/programsservices/topics/novel-coronavirus (visited Apr. 10, 2020). 108 Williams Decl. ¶¶ 46–48; Cathey Decl. ¶¶ 63, 67. 109 Williams Decl. ¶ 49; Cathey Decl. ¶ 69. 110 Williams Decl. ¶ 49; Cathey Decl. ¶¶ 44–45. 111 Cathey Decl. ¶ 44.
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doubles.112 Moreover, pregnant women commonly experience shortness of breath, vomiting, and other symptoms that are also common symptoms of COVID-19; appropriate medical care for pregnant patients during the COVID-19 pandemic is therefore even more complicated, and will frequently lead to the isolation and hospitalization––with PPE use––of pregnant patients who could have the infection.113
Virtually all births in Arkansas occur in hospitals, and pregnant patients typically present at a hospital one or more times prior to actual delivery.114 An uncomplicated birth is attended by at least four clinicians, over a considerable labor period, with significant use of PPE.115 A complicated birth involves 6 to 7 providers with even more PPE.116 One-third of pregnancies result in caesarean section, a major abdominal surgery.117 And after giving birth, patients remain in the hospital for multiple days.118 Throughout labor, delivery, and recovery, patients are having repeated close contact with large numbers of people in the hospital and taking up hospital beds.119 Even with this extensive health care before and during delivery, Arkansas has one of the highest rates of maternal mortality in the country.120
Banning surgical abortion is thus flatly contradictory to Arkansas’s stated objectives in issuing ADH’s elective-surgery guidance: Banning abortion does not preserve PPE, but rather
112 Cathey Decl. ¶ 44. 113 Cathey Decl. ¶¶ 18, 44–47. 114 Cathey Decl. ¶ 49. 115 Cathey Decl. ¶ 50. 116 Cathey Decl. ¶ 51. 117 Cathey Decl. ¶ 21. 118 Cathey Decl. ¶ 52. 119 Cathey Decl. ¶ 54. 120 Cathey Decl. ¶ 22.
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increases the overall need for it. And it does not reduce, but rather exacerbates, the burden on the health care system. That Arkansas has continued to allow a variety of non-essential activities to continue during the pandemic—including significant retail activity, leisure time on golf courses and driving ranges, and small-group fairs and festivals, see supra pp.12–13––while banning all surgical abortion under the pretext that abortion is a non-essential service reveals the COVID-19 Abortion Ban for what it is: part of the State’s long-running campaign to severely restrict or outright eliminate women’s ability to access constitutionally guaranteed health care. See Dkt. No. 1 (original complaint).
Beginning tomorrow, April 14, 2020, LRFP has 26 patients scheduled to receive surgical abortion care this week, including:
 12 who are more than 10 weeks LMP (i.e., patients who are not candidates for a medication abortion);
 8 who are more than 12 weeks LMP, and will soon require a D&E instead of an aspiration abortion to terminate their pregnancy if their abortion is delayed; and
 3 who are more than 17 weeks LMP, and will soon require a two-day procedure instead of a one-day procedure, and in short order be past Arkansas’s legal limit for abortion care.121 ARGUMENT Plaintiffs seek an ex parte TRO, and thereafter a preliminary injunction, to prevent
Defendants from enforcing the COVID-19 Abortion Ban, which would inflict imminent and irreparable injury on Plaintiffs’ patients by depriving them of the health care to which they have a right under the Constitution and that is necessary to protect themselves from serious harm. As explained in Plaintiffs’ motion and verified First Supplemental Complaint, the requirements for an ex parte TRO have been met because (1) Plaintiffs and their patients will suffer irreparable
121 Williams Decl. ¶ 40.
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harm if relief is not immediately granted to preserve the status quo before Defendants have an opportunity to be heard, and (2) Plaintiffs have tried to resolve this matter without litigation and have expressly informed Defendants that Plaintiffs would seek emergency relief if the matter could not otherwise be resolved. See Fed. R. Civ. Proc. 65(b).122 And as explained more below, the four facts that this Court considers in deciding whether to grant a TRO and subsequent preliminary injunctive relief all tip heavily in Plaintiffs’ favor: the (1) probability that the movant will succeed on the merits; (2) threat of irreparable harm to the movant; (3) balance of equities; and (4) public interest. See Grasso Enters., LLC v. Express Scripts, Inc., 809 F.3d 1033, 1036 n.2 (8th Cir. 2016).
Plaintiffs are likely to succeed on the merits of their claim that the COVID-19 Abortion Ban directly contravenes decades of binding Supreme Court precedent and is unjustified by the current crisis. Additionally, enforcement of the Ban will inflict severe and irreparable harm on Plaintiffs’ patients while failing to advance the State’s purported interests. Plaintiffs have already been forced to turn away at least one woman approaching the legal limit for abortion in Arkansas.123 LRFP has at least three other women scheduled to receive abortion care this coming week who are likewise approaching the gestational limit.124 They will all be forced to carry their pregnancies to term against their will or, in the midst of a pandemic, assume the substantial burdens associated with attempting to travel to another State to exercise their constitutional right to access pre-viability abortion care. This is immediate, irreparable harm under any definition. See, e.g., Tempur-Pedic Int’l, Inc. v. Waste to Charity, Inc., 2007 WL
122 Godesky Decl. ¶¶ 4–5. 123 Williams Decl. ¶¶ 38, 47. 124 Williams Decl. ¶ 40.
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535041, at *1 (W.D. Ark. Feb. 16, 2007) (granting ex parte TRO to prevent “incalculable and irreparable injury to [plaintiff’s] reputation and good will as well as the harm done to the public” by defendants’ misappropriation and resale of plaintiffs’ products); Order, Robinson v. Marshall, No. 2:19-cv-365 (M.D. Ala. Mar. 30, 2020) (Dkt. No. 83) (granting request for ex parte TRO to enjoin enforcement of ban on abortion). Finally, the balance of hardships weighs decisively in Plaintiffs’ favor, and the public interest would be served by blocking the enforcement of the unconstitutional and harmful ban. This Court should grant Plaintiffs’ request for injunctive relief.
I. PLAINTIFFS WILL SUCCEED ON THE MERITS OF THEIR SUBSTANTIVE DUE PROCESS CLAIM. A. The COVID-10 Abortion Ban Is Unconstitutional Because It Bans PreViability Abortions. For nearly five decades, the Supreme Court has been clear that a State may not ban pre-
viability abortion. See, e.g., Roe v. Wade, 410 U.S. 113, 163–65 (1973); Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 846 (1992) (plurality op.) (reaffirming Roe’s “central principle” that “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion”). The Supreme Court has repeatedly reaffirmed Roe’s central holding, most recently in 2016. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). This Court, too, recently said that the law is clear that “prohibitions on abortions pre-viability . . . are per se unconstitutional under binding Supreme Court precedent.” Little Rock Family Planning Servs., 397 F. Supp. 3d at 1266.
This cardinal principle is not altered in circumstances where––as here––the State permits some abortions to proceed under a ban. Indeed, the Eighth Circuit struck down a law banning abortion after 12 weeks of pregnancy, explaining that “[w]hether or not ‘exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision
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to terminate her pregnancy before viability.’” Edwards v. Beck, 786 F.3d 1113, 1117 (8th Cir. 2015) (quoting Casey, 505 U.S. at 879). Courts across the nation have come to the same conclusion. See also, e.g., MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 772–73 (8th Cir. 2015) (ban on abortions after six weeks); Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 271-73 (5th Cir. 2019) (ban on abortions starting at fifteen weeks); Isaacson v. Horne, 716 F.3d 1213, 1217, 1231 (9th Cir. 2013) (ban on abortions starting at twenty weeks); Jane L. v. Bangerter, 102 F.3d 1112, 1117–18 (10th Cir. 1996) (ban on abortions starting at twenty weeks); Sojourner T. v. Edwards, 974 F.2d 27, 29, 31 (5th Cir. 1992) (ban on all abortions with exceptions); Guam Soc’y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1368–69, 1371–72 (9th Cir. 1992) (ban on all abortions); Bryant v. Woodall, 363 F. Supp. 3d 611, 630–32 (M.D.N.C. 2019) (ban on abortions starting at twenty weeks).125 This is because the availability of abortions for some women “does not [] alter the nature of the burden” that a ban on pre-viability abortion imposes on women who do not fall within an exception to that ban. Horne, 716 F.3d at 1227.
In fact, and directly on point here, a district court in Alabama held yesterday that a ban on certain abortions during the COVID-19 pandemic is unconstitutional under Roe and its progeny. See Robinson v. Marshall, No. 2:19-cv-365, slip op. at 22 n.6, 31–34 (M.D. Ala. Apr. 12, 2020). That court explained that, notwithstanding the State’s interests in “preserving healthcare resources
125 See also, e.g., Robinson v. Marshall, 415 F. Supp. 3d 1053 (M.D. Ala. 2019) (ban on nearly all abortions); SisterSong Women of Color Reprod. Justice Collective v. Kemp, 410 F. Supp. 3d 1327 (N.D. Ga. 2019) (ban on abortions after six weeks); Reprod. Health Servs. of Planned Parenthood of St. Louis Region, Inc. v. Parson, 389 F. Supp. 3d 631 (W.D. Mo. 2019), modified, 408 F. Supp. 3d 1049 (W.D. Mo. 2019) (ban on abortions after various weeks); PretermCleveland, 394 F. Supp. 3d at 796 (enjoining ban on abortion at six weeks); Jackson Women’s Health Org. v. Dobbs, 379 F. Supp. 3d 549 (S.D. Miss. 2019), aff’d, 951 F.3d 246 (5th Cir. 2020) (ban on abortions after six weeks); Order Granting Stipulated Preliminary Injunction as to State Defendants, Planned Parenthood Ass’n of Utah v. Miner, No. 2:19-cv-00238 (D. Utah Apr. 18, 2019), Dkt. No. 34 (ban on abortions after eighteen weeks).
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and reducing close social contact, . . . the choice to terminate a pregnancy before viability must belong to the woman, not the State.” Id. at 33.
The same is true here: Unless enjoined, the COVID-19 Abortion Ban will act as a ban on virtually all pre-viability abortions after 10 weeks LMP, see supra p.5, and a complete ban for patients for whom medication abortion is contraindicated. As such, it is flatly unconstitutional under decades of Supreme Court precedent, including Roe. This Court should grant an ex parte TRO (and then a preliminary injunction) because Plaintiffs are certain to prevail on the merits of their challenge to the Ban.
B. Even If The Undue-Burden Test Applies to the COVID-19 Ban, Plaintiffs Are Likely To Prevail.
Defendants will likely argue that because of the current crisis, the Court should apply the undue-burden test to evaluate the COVID-19 Abortion Ban’s constitutionality. Cf. In re Abbott, 2020 WL 1685929, at *1 (5th Cir. Apr. 7, 2020) (holding that “Casey’s undue-burden analysis” applied to COVID-19 regulation of abortion). Even if the undue-burden standard applies, Plaintiffs are likely to succeed because the burdens of the COVID-19 Abortion Ban far outweigh its purported benefits. Under the undue-burden test, a regulation of abortion that “has the effect of placing a substantial obstacle in the path of a woman’s choice” even “while furthering [a] valid state interest,” “cannot be considered a permissible means of serving its legitimate ends.” Whole Woman’s Health, 136 S. Ct. at 2309 (alteration in original) (quoting Casey, 505 U.S. at 877). This test “requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Id. at 2298.
As detailed below, nothing about the COVID-19 pandemic justifies banning surgical abortion and the burdens of doing so are extreme. Indeed, just yesterday, the above-referenced district court in Alabama reasoned––in granting a preliminary injunction relating to a COVID-
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19-related abortion ban––that to the extent the undue-burden standard applied—the ban “pose[d] a substantial obstacle to many women in Alabama.” Robinson, supra, slip op. at 35. As to burdens, the court observed that postponement of abortions during the pandemic “would amplify existing challenges” in accessing abortion care, “pose severe health risks, and render abortions functionally unavailable for at least some women.” Id. at 37. On the other side of the ledger, the State’s purported interests in the ban—“the preservation of healthcare resources (including personal protective equipment) and the prevention of close social contact”—“fall far short.” Id. at 37–38. “[M]ost abortions and related appointments require a limited amount of [PPE],” the Robinson court observed; “a delayed abortion does not erase . . . the patient’s short-term need for medical care”; and continued pregnancy requires far more PPE than abortion. Id. at 38–42. Because the burdens of Alabama’s restriction on abortion during the pandemic far outweighed its benefits, the district court held “that the burden imposed by the [] restriction is undue.” Id. at 42. This Court should reach the same conclusion here.
1. The burdens arising from enforcement of the COVID-19 Abortion Ban are substantial.
As to its burdens, the Ban is prohibiting surgical abortion entirely (absent a threat to the patient’s health or life) during the COVID-19 pandemic—which could last for months. Indeed, Defendant Smith recently acknowledged during a press conference that he cannot say with certainty when the COVID-19 Abortion Ban would end. See supra p.16. The potential length of the Ban is underscored by Arkansas’s decision last week to cancel school through the end of the year. See id. Although abortion is a very safe procedure, the associated health risks increase as pregnancy progresses.126 Delay in receipt of care leads to myriad harms, and leading medical
126 Williams Decl. ¶ 22; see also Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States 77–78, 162–63 (2018).
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organizations around the country unanimously agree that abortion care cannot be safely postponed during the COVID-19 pandemic. See supra p. 17.
In addition to delay, many women will be burdened by attempts to travel extreme distances beyond Arkansas to obtain care––indeed, the only option to receive care for many of LRFP’s patients is to make logistical and financial arrangements for a 700-mile trip that will simply not be feasible for many women (and assumes that the clinic in Illinois has sufficient capacity to treat them). See supra pp. 18–20. Those women will be forced to carry to term against their will or terminate their pregnancies outside the medical system. See id. And for the women who are able to travel to Illinois to receive care, they will do so at a risk of contracting COVID-19 and spreading it to other Arkansas citizens. See id.
These harms are particularly acute for those LRFP patients for whom the COVID-19 Abortion Ban will:
(i) worsen any maternal-health conditions that predate the pregnancy or result from the pregnancy; (ii) likely stand in the way of the patient ultimately accessing abortion care, because of patient-specific factors like medical history, the circumstances that led to the patient’s decision to seek care in the first place (e.g., domestic violence), and the logistical and financial obstacles faced by the patient; (iii) bar access to abortion because medication abortion is contraindicated; (iv) push from a less time-intensive and less expensive aspiration abortion to a D&E, which is required after approximately 14 weeks LMP (assuming that LRFP has the capacity to treat these patients); (v) require the patient to visit the clinic an additional time for a two-day procedure, instead of a one-day procedure, which begins at approximately 18 weeks LMP (again, making an adequate-capacity assumption); or (vi) push beyond the point at which abortion is available in the State (i.e., 21.6 weeks LMP, see Ark. Code Ann. § 20-16-1405).
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2. The COVID-19 Abortion Ban has few, if any, benefits. On the other side of the ledger, the Ban has few, if any, benefits. Because Defendants’ actions do not serve these interests, they necessarily cannot outweigh the burdens on patients’ constitutional rights. Cf. Chandler v. Miller, 520 U.S. 305, 319, 323 (1997) (holding unconstitutional Georgia law requiring candidates for political office to take a urinalysis drug test because, while it was “relatively noninvasive,” it did not advance any state interests); Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966) (invalidating de minimis poll tax, notwithstanding States’ wide latitude to regulate the electoral process, because it conferred no legitimate benefit); SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686, 695 (D.C. Cir. 2010) (en banc) (holding law unconstitutional because “the First Amendment cannot be encroached upon for naught” and “something . . . outweighs nothing every time” (alteration in original). With regard to PPE, LRFP is wholly self-sustaining and has no plans to utilize the State’s PPE stockpile. See supra pp. 10–11. Nor is the COVID-19 Abortion Ban necessary to address social-distancing concerns: LRFP has already implemented a strict protocol that keeps patients at least 6 feet apart from one another during the entirety of their clinic visit. See supra p. 10. As to hospital capacity, legal abortion is exceptionally safe and almost never requires hospitalization. See Whole Woman’s Health, 136 S. Ct. at 2311–12, 2315; see also supra pp. 4– 6. And because all LRFP’s procedures are performed in its own outpatient facility, it is not using any hospital resources that may be needed for COVID-19 response—no hospital staff or supplies, no hospital beds (let alone ICU beds), and no ventilators. See supra p. 11. Indeed, abortions reduce rather than exacerbate burdens on Arkansas’s health care system. Every day that a woman remains pregnant against her will, she not only experiences the
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emotional and physical consequences detailed above, but also risks contracting the COVID-19 virus, thereby jeopardizing her ability to visit a clinic and receive time-sensitive care. See supra pp. 20–21. In addition, the longer a woman remains pregnant—and especially if forced to carry a pregnancy to term—the heavier of a burden she places on an already-strained healthcare system and the State’s PPE resources. See supra pp. 20–21.
* * * * * * Plaintiffs have thus established that they are likely to succeed on the merits of their claim that the COVID-19 Abortion Ban violates the substantive due process rights of their patients. See Casey, 505 U.S. at 878 (“Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”); see also Whole Woman’s Health, 136 S. Ct. at 2309.
C. Jacobson v. Massachusetts Does Not Require a Different Result. The State may argue that language cherry-picked from a 1905 case, Jacobson v. Massachusetts, 197 U.S. 11 (1905), rather than the standard that the Supreme Court has specifically identified and applied in abortion cases like Roe, Casey, and Whole Woman’s Health, governs the Ban’s constitutionality. Any such suggestion is wrong. Jacobson is not a case about the State’s powers during an emergency. Rather, that case—which was decided the same year as Lochner v. New York, 198 U.S. 45 (1905), i.e., at a time when the power of the State to enact measures for the health and safety of its citizens was far less established—stands for the now-unremarkable proposition that States may pass measures “to safeguard the public health and the public safety.” 197 U.S. at 25. Moreover, in recognizing States’ police powers, the Court explicitly recognized that those powers could not be used to “contravene the Constitution of the United States or infringe any right granted or secured by that instrument.” Id. It explained that to pass constitutional
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muster, an exercise of the police power—there a compulsory vaccination law––must have a “real or substantial relation to the protection of the public health and the public safety” and be “justified by the necessities of the case.” Id. at 28, 31. That test was the generally applicable test at the time, see Women's Kansas City St. Andrew Soc. v. Kansas City, 58 F.2d 593, 598 (8th Cir. 1932) (applying Jacobson test to challenge to zoning ordinance that forbid plaintiff from using property to operate nursing home), which long predated the Supreme Court’s development of heightened standards of scrutiny, not to mention today’s substantive due process jurisprudence, including in Roe, Casey, and Whole Woman’s Health. See, e.g., Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267 (2007) (tracing evolution of heightened constitutional scrutiny from collapse of Lochner era through Carolene Products to 1960s).
Thus, far from diluting the protection given liberty interests in emergencies, Jacobson recognized a liberty interest in pursuing the medical treatment one believed best for one’s self. Indeed, subsequent Supreme Court decisions have expressly understood Jacobson in this manner, noting that Jacobson “balanced an individual’s liberty interest in declining an unwanted smallpox vaccine against State’s interest in preventing disease,” in much the same way as that the Court evaluates liberty interests today. Cruzan ex rel. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990); see also, e.g., Sell v. United States, 539 U.S. 166 (2003). Lower courts have similarly recognized that Jacobson does not supplant the modern substantive constitutional test applied to the right in question. See, e.g., Kanuszewski v. Mich. Dep’t of Health & Human Servs., 927 F.3d 396, 419–20 (6th Cir. 2019) (applying strict scrutiny to substantive due process claim, even where the challenged program “may be an example of a state’s proper exercise of its parens-patriae role” (citing Jacobson, 197 U.S. at 38)); Workman v. Mingo Cty. Bd. of Educ., 419 F. App’x 348, 352–54 (4th Cir. 2011) (assuming strict scrutiny
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applies to free exercise challenge to vaccination requirement (citing Jacobson, 197 U.S. at 12)). Indeed, even the Fifth Circuit, which relied heavily on Jacobson in granting a writ of mandamus in a case similar to this one, ultimately did so because the district court failed to apply Casey’s undue-burden test. In re Abbott, No. 20-50296, slip op. at 2–3 (5th Cir. Apr. 10, 2020).127
Thus, nothing in Jacobson requires this Court to deviate from the well-established jurisprudence that applies to restrictions on the right to abortion and Plaintiffs are likely to succeed on the merits of their claim that the COVID-19 Abortion Ban is unconstitutional. II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR
EQUAL PROTECTION CLAIM. The COVID-19 Abortion Ban treats abortion providers differently than other businesses and healthcare providers, and it treats patients seeking abortions differently than other patients. That differential treatment is not justified by any legitimate governmental interest. Plaintiffs are therefore also likely to succeed on the merits of their claim that the Ban violates the Equal Protection Clause. In fact, the Ban’s imposition of unnecessary restrictions on abortion providers and patients fails equal protection review under any level of scrutiny. The Equal Protection Clause is “essentially a direction that all persons similarly situated should be treated alike.” Stevenson v. Blytheville Sch. Dist. #5, 800 F.3d 955, 970 (8th Cir. 2015). “Generally, a law will survive . . . scrutiny if the distinction it makes rationally furthers a
127 Even if the Court believed that Jacobson had some bearing on this case and supplied some lesser standard of scrutiny applicable to infringement of abortion rights, Arkansas’s Ban would still fail. Jacobson upheld a smallpox-vaccination requirement only after “balanc[ing] [the defendant] individual’s liberty interest in declining an unwanted smallpox vaccine against the State’s interest in preventing disease.” Cruzan, 497 U.S. at 278 (citing Jacobson, 197 U.S. at 24–30). The Ban fails such balancing because, as explained above, it goes “beyond the necessity of the case” in restricting abortion access under the guise of Arkansas’s police powers; it “has no real or substantial relation to” the State’s purported interests in conserving PPE or hospital capacity; and it “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Jacobson, 197 at 28, 30; see supra Part I.B.
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legitimate state purpose.” Zobel v. Williams, 457 U.S. 55, 60 (1982). “The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985). “Some particularly invidious distinctions are subject to more rigorous scrutiny.” Zobel, 457 U.S. at 60.
Where government action discriminates on the basis of a fundamental right, such as the right to access pre-viability abortion care, equal-protection analysis requires strict scrutiny. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 & n.3 (1976) (noting classifications burdening fundamental rights are reviewed under strict scrutiny); Craigmiles v. Giles, 312 F.3d 220, 223 (6th Cir. 2002) (“When a statute regulates certain ‘fundamental rights’ (e.g. voting or abortion) . . . the statute is subject to ‘strict scrutiny.’”). As the Supreme Court recently noted in adjudicating the undue-burden claim in Whole Woman’s Health, it would be “wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue.” 136 S. Ct. at 2309–10. Such heightened equal protection review requires close tailoring to extremely weighty state interests. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
The COVID-19 Abortion Ban cannot withstand any heightened equal protection scrutiny. It singles out patients seeking abortion care (and abortion providers) for unique regulation, even though doing so undermines rather than advances the State’s interests in combatting the current pandemic. See, e.g., Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 791 (7th Cir. 2013) (noting equal protection problem when State regulates abortion care in manner different than other medical care without medical justification). Arkansas has allowed other patients to obtain medical services under the terms of the earlier ADH guidance, which allows
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“healthcare facilities and clinicians” to determine themselves what constitutes “urgent and emergency visits and procedures” and to continue to provide that care. Patients of dentists and orthodontists are free to schedule appointments to address cracked teeth and wiring on braces. See supra p. 16. The State has also allowed most businesses to remain open as long as they observe social-distancing practices. See supra p. 13. And it has specifically allowed golf course and driving ranges to remain open, parades of ten or fewer people, and fairs and festivals of fewer than ten people. See supra pp. 21–22. That Defendants would assert that even some people seeking abortions should be forced to wait indefinitely to exercise their constitutional rights, but golf games and retail therapy can proceed unchecked, only underscores the credible fear that patients seeking abortion care and their doctors are being singled out based on hostility to abortion rather than a need to further a state interest legitimately. Cf. The Florida Star v. B.J.F., 491 U.S. 524, 540 (1989) (such underinclusiveness undercuts legitimacy of asserted governmental interest).
And while LRFP has determined—consistent with the determinations of the AMA, ACOG, and the WHO—that abortion is a time-sensitive, urgent form of health care that cannot be delayed without placing a patient at risk of suffering serious and/or irreparable harm, see supra pp. 10–11, 16–18, the Ban precludes Plaintiffs’ patients from obtaining surgical abortion care during the pandemic. Patients of other health care providers have not been singled out in the same manner, nor are their health care providers prevented from exercising their best medical judgment to determine whether and what healthcare must proceed during the pandemic. This differential treatment, which affects a fundamental constitutional right, flatly violates the guarantees of the Equal Protection Clause. See, e.g., Schimel, 806 F.3d at 914 (reasoning that State’s “indifferen[ce] to complications of any other outpatient procedures, even when they are
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far more likely to produce complications than abortions” undermines its interest); Van Hollen, 738 F.3d at 790 (explaining that “[a]n issue of equal protection of the laws is lurking in this case” because “the state seems indifferent to complications from non-hospital procedures other than surgical abortion (especially other gynecological procedures), even when they are more likely to produce complications,” such as colonoscopies).
The Ban cannot even withstand rational basis review. It treats abortion providers and patients “differently . . . than similarly situated persons.” Stevenson, 800 F.3d at 972. Providers of comparable procedures are not precluded from exercising their best medical judgment about what care is emergent or urgent and thus may be provided during the current pandemic. That differential treatment violates Plaintiffs’ and their patients’ equal protection rights. See Romer v. Evans, 517 U.S. 620, 633 (1996) (holding that law that on its face imposes a “special disability” on one group alone violates equal protection guarantee).
Moreover, as detailed above, the COVID-19 Abortion Ban does not advance any legitimate state interest. See supra Part I.B.2. As the Supreme Court has explained, “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973); see also Cleburne, 473 U.S. at 448 (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”); Ranschburg v. Toan, 709 F.2d 1207, 1211 (8th Cir. 1983) (“An intent to discriminate is not a legitimate state interest.”). In fact, the Supreme Court has specifically cautioned against laws that single out abortion facilities for differential treatment. See Whole Woman’s Health, 136 S. Ct. at 2315 (finding no legitimate safety reason
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for singling out abortion facilities because “abortions taking place in an abortion facility are safe—indeed safer than numerous procedures that take place outside hospitals”).
Although rational-basis review does not “require a perfect or exact fit between the means used and the ends sought,” Walker v. Hartford Life & Accident Ins. Co., 831 F.3d 968, 978–79 (8th Cir. 2016), it is “not toothless,” Kansas City Taxi Cab Drivers Ass’n, LLC v. City of Kansas City, 742 F.3d 807, 810 (8th Cir. 2013). Instead, equal protection review requires, at a minimum, that a statute’s discriminatory line-drawing be rationally related to a legitimate state interest. Here, there is simply no plausible policy reason for singling out abortion providers and patients for more stringent restrictions during the pandemic. Indeed, the Ban does not advance the State’s purported interests at all; much less does treating abortion providers and patients more strictly than other health care workers and patients. Plaintiffs are accordingly likely to prevail on the merits of their claim that the COVID-19 Abortion Ban violates the Equal Protection Clause. See, e.g., Planned Parenthood of Greater Ohio v. Hodges, 188 F. Supp. 3d v684, 693–94 (S.D. Ohio 2016) (granting preliminary injunction and finding plaintiffs likely to succeed on equal protection challenge to state funding law that singled out abortion for different treatment); Planned Parenthood of Kan. v. Lyskowski, 2015 WL 9463198 (W.D. Mo. Dec. 28, 2015) (granting preliminary injunction upon finding plaintiff likely to succeed on claim that state agency violated Equal Protection Clause by treating abortion facility more harshly than others in ambulatory-surgical-center licensing process); Planned Parenthood of Ind. & Ky., Inc. v. Comm’r, Ind. State Dep’t of Health, 984 F. Supp. 2d 912, 921–25 (S.D. Ind. 2013) (granting preliminary injunction and finding plaintiffs likely to succeed on equal protection challenge to requirement that abortion clinics, but not physician’s offices, meet physical plant requirements).
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III. PLAINTIFFS’ PATIENTS WILL SUFFER IRREPARABLE HARM IF THE BAN IS ENFORCED. Plaintiffs’ patients are and will continue to suffer serious and irreparable harm in the
absence of an ex parte TRO and preliminary injunction. First, Defendants’ actions will prevent Arkansas women from exercising their fundamental constitutional right to access pre-viability abortion care and it will treat abortion providers and patients differently than other healthcare providers and patients. “It is well-settled that the inability to exercise a constitutional right constitutes irreparable harm.” Hopkins v. Jegley, 267 F. Supp. 3d 1024, 1068 (E.D. Ark. 2017) (“Jegley II”); see also Planned Parenthood of Minn., Inc. v. Citizens for Cmty. Action, 558 F.2d 861, 867 (8th Cir. 1977) (Plaintiffs’ showing of interference “with the exercise of its constitutional rights and the rights of its patients supports a finding of irreparable injury”); M.B. v. Corsi, 2018 WL 5504178, at *5 (W.D. Mo. Oct. 29, 2018) (“A threat to a constitutional right is generally presumed to constitute irreparable harm.”); Hughbanks v. Dooley, 788 F. Supp. 2d 988, 998 (D.S.D. 2011) (“When an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” (quoting 11A Charles Alan Wright et al., Federal Practice & Procedure § 2948.1 (2d ed. 1995))); Am. Civil Liberties Union of Ky. v. McCreary Cty., 354 F.3d 438, 445 (6th Cir. 2003) (“[W]hen reviewing a motion for a preliminary injunction, if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.” (citing Elrod v. Burns, 427 U.S. 347, 373 (1976))).
Second, forcing patients to forgo abortion care and remain pregnant against their will inflicts serious physical, emotional, and psychological consequences that alone constitute irreparable harm.128 Some women will be forced to give birth; others may attempt to terminate
128 Williams Decl. ¶¶ 22, 41–45, 49. See also Ex. 12 (stating that the “consequences of being unable to obtain an abortion profoundly impact a person’s life, health, and well-being”).
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their pregnancies outside the medical system. Some may travel across state lines, incurring additional expenses and increasing the likelihood of exposure to the virus. And even those women who are able to obtain abortion care in Arkansas after the crisis passes will suffer significant harm because of their delay in accessing care. See supra pp. 7–8, 16–18; see also, e.g., Planned Parenthood Sw. Ohio Region v. Hodges, 138 F. Supp. 3d 948, 960 (S.D. Ohio 2015) (finding irreparable harm where “patients could face a delay” in obtaining abortion care). As the Supreme Court has said, “the abortion decision is one that simply cannot be postponed.” Bellotti v. Baird, 443 U.S. 622, 643 (1979). That the State would inflict these irreparable harms on Arkansas women in the midst of a global pandemic, putting them at greater risk of contracting COVID-19, only underscores the need for injunctive relief. See Roe, 410 U.S. at 153 (“The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.”); Planned Parenthood of Kan. & Mid-Mo. v. Andersen, 882 F.3d 1205, 1236 (10th Cir. 2018) (explaining that the “disruption or denial of . . . patients’ health care cannot be undone after a trial on the merits”); Planned Parenthood of Ariz., Inc. v. Humble, 753 F.3d 905, 911 (9th Cir. 2014); Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 796 (7th Cir. 2013); Roe v. Crawford, 396 F. Supp. 2d 1041, 1044 (W.D. Mo. 2005) (holding delay in abortion is irreparable injury due to "medical, financial, and psychological risks” associated with it), stay of preliminary injunction denied, 546 U.S. 959 (2005). IV. THE BALANCE OF HARMS AND PUBLIC INTEREST SUPPORT
INJUNCTIVE RELIEF. When considering the balance of harms, “[a]t base,” the question is “whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). Plaintiffs’ patients will suffer numerous irreparable harms without an injunction,
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and Plaintiffs’ requested relief will simply preserve the status quo as it exists now. If Plaintiffs’ request for injunctive relief is denied, their patients will be “effectively forced against their will to remain pregnant until they give birth.” Planned Parenthood Minn., N. Dakota, S. Dakota v. Daugaard, 799 F. Supp. 2d 1048, 1077 (D.S.D. 2011).
On the other side of the scale, Defendants will realize no benefits from enforcing the COVID-19 Abortion Ban. That is particularly true given that Plaintiffs are entirely selfsustaining in terms of PPE resources and have implemented strict social-distancing practices and protocols that diminish the risk of infection at the clinic. See supra pp. 10–11. And the provision of abortion care reduces rather than increases the use of hospital resources needed to fight COVID-19. See supra pp. 6–7, 11.
In this setting, injunctive relief is supported by the balance of harms and the public interest. “The Eighth Circuit has stated that ‘whether the grant of a preliminary injunction furthers the public interest . . . is largely dependent on the likelihood of success on the merits because the protection of constitutional rights is always in the public interest.’” Little Rock Family Planning Servs. v. Rutledge, 397 F. Supp. 3d 1213, 1322–23 (E.D. Ark. 2019) (citing Planned Parenthood Minn., N. Dakota, S. Dakota v. Rounds, 530 F.3d 724, 752 (8th Cir. 2008), appeal filed, No. 19-2690 (8th Cir.)). That is precisely the case here: The public has no interest in the enforcement of an unconstitutional ADH C&D Order. See Planned Parenthood of Greater Iowa, Inc. v. Miller, 1 F. Supp. 2d 958, 964 (S.D. Iowa 1998) (public interest is served by enjoining unconstitutional statute because “[t]he protection of constitutional rights clearly outweighs any interest the State may have in promoting the interests of the fetus with a statute that is unconstitutional”); see also, e.g., Am. Civil Liberties Union Fund of Mich. v. Livingston Cty., 796 F.3d 636, 649 (6th Cir. 2015) (“[W]hen a constitutional violation is likely…the public
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interest militates in favor of injunctive relief because it is always in the public interest to prevent violation of a party’s constitutional rights.”). Accordingly, granting Plaintiffs’ request for injunctive relief serves the public interest.
V. A BOND IS NOT NECESSARY IN THIS CASE. This Court should waive the Federal Rule of Civil Procedure 65(c) bond requirement.
Where plaintiffs are “serving a public interest in acting to protect [important] constitutional rights related to abortion,” and the governmental defendants “will not be harmed by the order to preserve the status quo,” courts have exercised their discretion to waive the security requirement. Jegley II, 267 F. Supp. 3d at 1111; see also Evenstadv. City of W. St. Paul, 306 F. Supp. 3d 1086, 1102 (D. Minn. 2018) (waiving bond requirement where plaintiff was “seek[ing] to vindicate an important constitutional right”). In fact, this Court recently declined to require Plaintiffs to provide security upon grant of a preliminary injunction barring Arkansas from enforcing two bans and one regulation of abortion that would have eliminated the overwhelming majority of abortion care in Arkansas. See Little Rock Family Planning, 397 F. Supp. 3d at 1323.
This Court should use its discretion to waive the bond requirement here, where injunctive relief will result in no monetary loss to Defendants. Moreover, Plaintiffs are health care providers dedicated to serving low-income and underserved communities,129 and a bond would strain their already-limited resources. See Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng’rs, 826 F.3d 1030, 1043 (8th Cir. 2016) (affirming district court’s waiver of bond requirement “based on its evaluation of public interest”).
129 See Williams Decl. ¶ 19.
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CONCLUSION For these reasons, this Court should grant Plaintiffs’ motion for an ex parte TRO and/or preliminary injunction to enjoin Defendants and their officers, agents, servants, employees, and attorneys, and any persons in active concert or participation with them, from enforcing or requiring compliance with the ADH April 3 Directive as applied in the C&D Order to surgical abortions. Most urgently, Plaintiffs seek relief on behalf of patients who are particularly burdened by the COVID-19 Abortion Ban because of the time-sensitive nature of abortion care, including patients for whom the Ban will, in the good-faith, professional judgment of the treating physician: (i) likely worsen any maternal-health conditions that predate the pregnancy or result from the pregnancy; (ii) likely stand in the way of the patient ultimately accessing abortion care, because of patient-specific factors like medical history, the circumstances that led to the patient’s decision to seek care in the first place (e.g., domestic violence), and the logistical and financial obstacles faced by the patient; (iii) bar access to abortion because medication abortion is contraindicated; (iv) likely push to a more complex and more time-intensive surgical-abortion procedure (beginning around 14 weeks LMP); (v) require the patient to visit the clinic an additional time for a two-day procedure, instead of a one-day procedure, which begins at approximately 18 weeks LMP; or (vi) likely push beyond the point at which abortion is available in the State (i.e., 21.6 weeks LMP).
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Dated: April 13, 2020

Respectfully submitted,
Leah Godesky* Christopher Burke** O’Melveny & Myers LLP Times Square Tower 7 Times Square New York, New York 10036 lgodesky@omm.com cburke@omm.com (212) 326-2254 Fax: (212) 326-2061
Kendall Turner* Ashley Robertson** Maya Zagayer** O’Melveny & Myers LLP 1625 Eye St. NW Washington, DC 20006 (202) 383-5300 kendallturner@omm.com arobertson@omm.com mzagayer@omm.com
Attorneys for Plaintiffs

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Meagan Burrows* Ruth E. Harlow** American Civil Liberties Union Foundation 125 Broad St, 18th Floor New York, NY 10001 mburrows@aclu.org rharlow@aclu.org (212) 549-2633
Attorneys for Plaintiffs
* Motion for admission pro hac vice granted ** Motion for admission pro hac vice pending

Bettina Brownstein (AR Bar No. 85019) Bettina E. Brownstein Law Firm 904 West 2nd Street, Suite 2 Little Rock, AR 72201 bettinabrownstein@gmail.com (501) 920-1764
Brooke-Augusta Ware (AR Bar No. 2004091) Mann & Kemp, PLLC 221 West Second Street, Suite 408 Little Rock, Arkansas 72201 brooke@mannkemp.com (501) 222-7330
On Behalf of the Arkansas Civil Liberties Union Foundation, Inc. Attorney for Plaintiffs

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 Case 4:19-cv-00449-KGB Document 164 Filed 04/22/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES, et al.,
Plaintiffs,
v.
LESLIE RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas, et al.,

CIVIL ACTION
Case No. 4:19-cv-00449-KGB
PLAINTIFFS’ MOTION FOR AN EX PARTE TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

Defendants.

Case 4:19-cv-00449-KGB Document 164 Filed 04/22/20 Page 2 of 5
Plaintiffs Little Rock Family Planning Services (“LRFP”) and Dr. Thomas Tvedten, on behalf of themselves and their patients, hereby move the Court under Federal Rule of Civil Procedure 65 for an ex parte temporary restraining order and/or preliminary injunction enjoining Defendants from enforcing the Arkansas Department of Health’s (“ADH”) April 10, 2020 Cease and Desist Order (“Order”) against patients who would be beyond the legal limit for abortion care (21.6 weeks LMP) by May 11, when the Governor’s Executive Order declaring a state of emergency in Arkansas is set to expire. To account for the very real possibility that the Executive Order will be extended, the temporary restraining order should state that it applies with equal force to any new, substituted Executive Order expiration date.
On the morning of Friday, April 10, ADH ordered that clinicians at LRFP cease providing surgical abortion care unless the procedure is “immediately necessary to protect the life or health of the patient.”1 ADH stated that the provision of surgical abortion “will result in an immediate suspension of [LRFP’s] license.”2 Violation of the ADH directive also carries criminal, financial, and licensure penalties, and each day a person or business operates in violation of the guidance would constitute a separate offense.3
The issuance of a temporary restraining order without a hearing and without notice to Defendants or providing them an opportunity to respond is warranted. First, Plaintiffs have set forth specific facts in the Supplemental Complaint and in sworn declarations, clearly showing that immediate and irreparable injury, loss, or damage will result to Plaintiffs’ patients before
1 Dkt No. 134-1. 2 Id. 3 See Ark. Code § 20-7-101; Executive Order to Amend Executive Order 20-03 Regarding the Public Health Emergency Concerning COVID-19 for the Purpose of Imposing Further Restrictions to Prevent the Spread of COVID-19, EO 20-13, § 2(a) (Apr. 4, 2020), https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20-13._.pdf.
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Defendants can be heard in opposition. In fact, tomorrow, April 23, Plaintiffs are scheduled to provide surgical abortion care to at least 2 women who will be beyond the legal limit for abortion in Arkansas by May 11, 2020. See Second Godesky Decl., attached hereto, ¶ 4. These women will be forced to carry their pregnancies to term against their will or, in the midst of a pandemic, assume the substantial burdens associated with attempting to travel to another State to exercise their constitutional right to access pre-viability abortion care. That is a quintessential example of immediate and irreparable harm. See Fed. R. Civ. P. 65(b)(1)(A); see also Zaxby’s Franchising, LLC v. MJM Foods, LLC, No. 3:16-CV-00137 BSM, 2016 WL 3024074, at *1 (E.D. Ark. May 25, 2016) (granting ex parte temporary restraining order to prevent customer confusion before restaurant trademark dispute could be resolved); Tempur-Pedic Int’l, Inc. v. Waste To Charity, Inc., No. 07 2015, 2007 WL 535041, at *5 (W.D. Ark. Feb. 16, 2007) (granting ex parte temporary restraining order to prevent the movement or destruction of mattresses).
Second, Plaintiffs attempted to contact counsel for Defendants on April 22, 2020, to resolve this matter without litigation, and expressly informed Defendants that Plaintiffs would be seeking emergency relief if the matter could not otherwise be resolved. These efforts to resolve the matter have been unsuccessful. See Second Godesky Decl. ¶ 3. This is more than sufficient to satisfy Plaintiffs’ obligations to give notice and, given the threat of imminent and irreparable harm, no further notice should be required. See Fed. R. Civ. P. 65(b)(1)(B); see also, e.g., GE Commercial Distribution Fin. Corp. v. Crabtree RV Ctr., Inc., 2009 WL 10707170, at *3–4 (W.D. Ark. Apr. 3, 2009) (granting ex parte temporary restraining order to protect interest in recreational vehicles even where “no efforts have been made to give notice to the Defendant,” given the threat of imminent and irreparable harm) (emphasis added); Ellis v. Jackson Nat’l Life Ins. Co.. No. 2:11-CV-1064WKW, 2011 WL 6300608, at *1–2 (M.D. Ala. Dec. 15, 2011) (finding single phone call to
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nonmovant’s counsel sufficient to grant ex parte temporary restraining order). As more fully explained in the accompanying brief, Plaintiffs satisfy the remaining
requirements for a temporary restraining order and/or a subsequent preliminary injunction because (i) Plaintiffs are likely to succeed on the merits of their claims that enforcing a prohibition on surgical abortions against patients who would be beyond the legal limit for abortion care (21.6 weeks LMP) by May 11, or whenever the Executive Order is lifted, violates the constitutional rights of Plaintiffs and their patients; (ii) the balance of equities tips strongly in favor of Plaintiffs and their patients; and (iii) the public interest will be served by a temporary restraining order and/or an injunction. Plaintiffs further request that, given the nature of the relief sought and Plaintiffs’ limited means, bond be waived should the Court grant injunctive relief.
This Motion is based upon the Supplemental Complaint filed in this case, the exhibits to that Complaint, the exhibits and declarations submitted in support of Plaintiffs’ April 13, 2020 motion for an ex parte temporary restraining order and/or preliminary injunction, the brief filed herewith, and the following document:
1. Attached as Exhibit 1 is a true and accurate copy of the April 22, 2020 declaration of Leah Godesky (“Second Godesky Decl.”).
2. Attached as Exhibit 2 is a true and accurate copy of the April 22, 2020 declaration of Lori Williams (“Lori Williams Third Supp. Decl.”).

Dated: April 22, 2020

Respectfully submitted,
Leah Godesky* Christopher Burke* O’Melveny & Myers LLP Times Square Tower
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Case 4:19-cv-00449-KGB Document 164 Filed 04/22/20 Page 5 of 5

Meagan Burrows* Ruth E. Harlow* American Civil Liberties Union Foundation 125 Broad St, 18th Floor New York, NY 10001 mburrows@aclu.org rharlow@aclu.org (212) 549-2633
Attorneys for Plaintiffs
* Motion for admission pro hac vice granted

7 Times Square New York, New York 10036 lgodesky@omm.com cburke@omm.com (212) 326-2254 Fax: (212) 326-2061
Kendall Turner* Ashley Robertson* Maya Zagayer* O’Melveny & Myers LLP 1625 Eye St. NW Washington, DC 20006 (202) 383-5300 kendallturner@omm.com arobertson@omm.com mzagayer@omm.com
Attorneys for Plaintiffs
Bettina Brownstein (AR Bar No. 85019) Bettina E. Brownstein Law Firm 904 West 2nd Street, Suite 2 Little Rock, AR 72201 bettinabrownstein@gmail.com (501) 920-1764
Brooke-Augusta Ware (AR Bar No. 2004091) Mann & Kemp, PLLC 221 West Second Street, Suite 408 Little Rock, Arkansas 72201 brooke@mannkemp.com (501) 222-7330
On Behalf of the Arkansas Civil Liberties Union Foundation, Inc. Attorney for Plaintiffs

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EXHIBIT 1

Case 4:19-cv-00449-KGB Document 164-1 Filed 04/22/20 Page 2 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES et al.,

Plaintiffs, v. LESLIE RUTLEDGE, et al.,

CIVIL ACTION Case No. 4:19-cv-00449-KGB

Defendants.

DECLARATION OF LEAH GODESKY, ESQ. IN SUPPORT OF PLAINTIFFS’ MOTION FOR AN EX PARTE TEMPORARY RESTRAINING ORDER AND/OR
PRELIMINARY INJUNCTION I, Leah Godesky, Esq., declare under 28 U.S.C. § 1746 and penalty of perjury that the following is true and correct: 1. I am an attorney at O’Melveny & Myers, LLP, counsel of record for Plaintiffs Little Rock Family Planning (“LRFP”) and Dr. Thomas Tvedten (together, “Plaintiffs”) in the above-captioned matter. I am a member in good standing of the State Bars of New York and Connecticut, and am admitted pro hac vice to represent Plaintiffs in this litigation. 2. I submit this Declaration in support of Plaintiffs’ Motion for an Ex Parte Temporary Restraining Order and/or Preliminary Injunction relating to the State’s enforcement of an April 10, 2020 Cease and Desist Order (“Order”) by the Arkansas Department of Health to Little Rock Family Planning. 3. At approximately noon CST on April 22, 2020, I notified counsel for Defendants that Plaintiffs intended to seek an ex parte temporary restraining order barring enforcement of the Order to the extent that the Order’s enforcement would prevent patients from obtaining pre-

Case 4:19-cv-00449-KGB Document 164-1 Filed 04/22/20 Page 3 of 4 21.6-week-LMP surgical abortion care in Arkansas before the Order is lifted. As of this filing, Plaintiffs have not yet heard from counsel for Defendants.
4. If the Order is enforced, Plaintiffs will have to turn away tomorrow at least two patients who will soon be past the legal limit for abortion care in Arkansas.
2

Case 4:19-cv-00449-KGB Document 164-1 Filed 04/22/20 Page 4 of 4 I declare under penalty of perjury that the foregoing is true and correct. Executed this 22nd day of April, 2020.
___________________________ Leah Godesky, Esq.
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EXHIBIT 2

Case 4:19-cv-00449-KGB Document 164-2 Filed 04/22/20 Page 2 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES et al.,

Plaintiffs, v. LESLIE RUTLEDGE, et al.,

CIVIL ACTION Case No. 4:19-cv-00449-KGB

Defendants.

DECLARATION OF LORI WILLIAMS, M.S.N, A.P.R.N., IN SUPPORT OF PLAINTIFFS’ MOTION FOR AN EX PARTE TEMPORARY RESTRAINING ORDER
AND/OR PRELIMINARY INJUNCTION I, Lori Williams, M.S.N., A.P.R.N., declare under 28 U.S.C. § 1746 and penalty of perjury that the following is true and correct: 1. I am a nurse practitioner and the Clinical Director of Plaintiff Little Rock Family Planning Services (“LRFP”). 2. I submit this Declaration in support of Plaintiffs’ April 22, 2020 Motion for a Temporary Restraining Order and/or Preliminary Injunction. 3. I submitted a Declaration in support of Plaintiffs’ Motion for a Temporary Restraining Order and/or Preliminary Injunction, executed on April 12, 2020 (Dkt. 134-2). I also submitted declarations in Opposition to Defendant-Appellants’ Motion for a Stay of the Temporary Restraining Order and Petition for Mandamus, executed on April 16, 2020 and April 19, 2020, respectively. I now provide this supplemental declaration, and reaffirm and incorporate my earlier declarations by reference.

Case 4:19-cv-00449-KGB Document 164-2 Filed 04/22/20 Page 3 of 4 4. Under the terms of the April 3 Directive Regarding Elective Surgeries from the Arkansas Department of Health (Dkt. 134-7), LRFP can continue providing surgical abortions to the extent that LRFP clinicians exercise their good-faith, professional judgment to determine that the procedure cannot “be safely postponed,” is “urgent,” or delay would “risk … progression of staging of a … condition.” Id. 5. Pursuant to the C&D Order (Dkt. 134-1), however, LRFP’s clinicians cannot exercise their professional judgment to determine whether to provide surgical abortion care. Rather, LRFP must “immediately cease and desist the performance of surgical abortions, except where immediately necessary to protect the life or health of the patient.” Id. at 2. 6. LRFP is scheduled to provide surgical abortion care to at least six patients who would be pushed past the legal limit for abortion care in Arkansas if forced to wait until May 11, 2020 (or longer), including two who are scheduled to begin a two-day procedure tomorrow, April 23, 2020.
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Case 4:19-cv-00449-KGB Document 165 Filed 04/22/20 Page 1 of 42

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES, et al.,

Plaintiffs, v.

Case No.: 4:19-cv-00449-KGB

LESLIE RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas, et al.,

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR EX PARTE TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION1
On April 14, 2020, this Court issued a temporary restraining order (the “Order”) enjoining Arkansas from enforcing Executive Order 20-03 (the “Executive Order”), a directive (“Directive”) and a cease-and-desist order (“C&D Order”) (together, the “COVID-19 Abortion Ban” or the “Ban”) from Arkansas’s Department of Health (“ADH”) that would ban all surgical abortion care. See Order 1. Surgical abortion care is the only form of abortion care available after 10 weeks from the first date of a woman’s last menstrual period (“LMP”)—which is indisputably a pre-viability point in pregnancy. This Court issued the Order based on Plaintiffs’ preliminary evidence, finding that Plaintiffs were “likely to prevail on the merits of their substantive due process claim.” Order 17. Specifically, this Court found that the Ban prohibits nearly all pre-viability abortions and is therefore unconstitutional, and that the Ban also fails the

1 This motion refers to this Court’s April 14, 2020 temporary restraining order as “Order.” Additionally, the Eighth Circuit’s April 22, 2020 opinion granting a writ of mandamus is “Op.,” and Defendants’ petition for a writ of mandamus is “Pet.” All emphasis is added, and all internal quotation marks and citations are omitted unless otherwise noted.
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undue-burden test because it bars all surgical abortion care while failing to conserve PPE, reduce hospital demand, or improve social distancing. Order 11–16. As this Court explained, this conclusion “is consistent with the Supreme Court’s decision in Jacobson v. Massachusetts, 197 U.S. 11 (1905),” which “upheld the authority of Massachusetts to enforce a compulsory vaccination law during a smallpox outbreak.” Order 16. After all, Jacobson made plain that state infringement on constitutional rights during a crisis is impermissible to the extent it effectuates “a plain, palpable invasion of rights secured by the fundamental law” or lacks a “real or substantial relation to” the State’s purpose in enacting it, and the Ban fails under both metrics. Order 16 (quoting Jacobson, 197 U.S. at 31).
On April 22, the Eighth Circuit vacated the Order, holding that this Court “failed to meaningfully apply the Supreme Court’s framework for reviewing constitutional challenges to state actions taken in response to a public health crisis,” which is set forth in Jacobson. Op. 13. The Eighth Circuit also held that this Court’s prior undue-burden analysis of the Ban was “perfunctory,” an “abuse[] of discretion,” and “usurped the functions of the state government by second-guessing the State’s policy choices in responding to the COVID-19 pandemic.” Op. 19. The Eighth Circuit’s decision prevents any surgical abortion from proceeding in Arkansas, even if women would be completely unable to obtain abortion care before May 11—the earliest date the Executive Order might be lifted.
No other court has upheld a complete ban on surgical abortion. Even the Fifth Circuit in In re Abbott, 2020 WL 1844644 (5th Cir. Apr. 11, 2020), allowed women close to the legal limit to obtain abortions during the pandemic. Id. at *2. It did so because those women would be barred entirely from obtaining abortion care if they were unable to do so immediately. See id.
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Plaintiffs accordingly move this Court for a new ex parte TRO that would allow women who would be pushed past the legal limit for abortion in Arkansas to obtain that care immediately.
STATEMENT OF FACTS A. Abortion Is Critical, Time-Sensitive Health Care. Patients seek abortion for a wide range of personal and complex reasons.2 Most people who have abortions already have at least one child, and many have decided they cannot parent another at this stage of their lives.3 Some patients have abortions because they conclude that it is not the right time to become a parent, they wish to pursue their education or career, or they lack financial resources or partner or familial support or stability.4 Other patients seek abortions because existing medical conditions put them at greater-than-average risk of medical complications, because they are in abusive relationships, or because they are pregnant as a result of rape or sexual assault.5 Abortions are typically provided in Arkansas using one of two methods: medication abortion or surgical abortion.6 Consistent with Arkansas law, Plaintiff Little Rock Family Planning (“LRFP”) provides (i) medication abortion up to ten weeks (seventy days) LMP, and (ii) surgical abortion up to twenty-one weeks and six days LMP.7 Both methods are a safe and
2 Williams Decl. ¶ 10 (Dkt. 134-2); Cathey Decl. ¶¶ 28–29 (Dkt. 134-3). 3 Williams Decl. ¶ 10. 4 Williams Decl. ¶ 10; Cathey Decl. ¶ 29. 5 Williams Decl. ¶ 10; Cathey Decl. ¶ 29. 6 Williams Decl. ¶ 11; Cathey Decl. ¶¶ 25–26. 7 Williams Decl. ¶¶ 12–13.
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effective means of terminating a pregnancy, although some patients have medical or other circumstances that make surgical abortion more appropriate for them.8
Despite its name, “surgical” abortion involves no incision or general anesthesia.9 There are two types of surgical abortion. The first is aspiration abortion, in which gentle suction is used to safely empty the contents of the uterus.10 The procedure usually takes approximately 5 to 10 minutes. Beginning at approximately 14 weeks LMP, and most relevant here, abortions generally require a still-very-safe but more-complex procedure known as dilation and evacuation, or “D&E” abortion, which requires more procedure and recovery time than the aspiration procedure.11 A D&E is usually a one-day procedure, but as pregnancy progresses, it becomes a two-day procedure because patients must come into LRFP the day before to begin the process of dilating their cervix.12 A D&E requires more skill and time, and the cost of abortion care increases with the progression of a pregnancy.13
B. Abortion Is Extremely Safe, But Risks Increase When It Is Delayed. As this Court recently found, abortion in Arkansas (and in the nation as a whole) “is one of the safest medical procedures available.” Little Rock Family Planning v. Rutledge, 397 F. Supp. 3d 1213, 1279 (E.D. Ark. 2019); see also Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2311 (2016).14 In particular, major complications—defined as complications requiring
8 Williams Decl. ¶¶ 11, 16; Cathey Decl. ¶ 27. 9 Williams Decl. ¶ 13; Cathey Decl. ¶ 26. 10 Williams Decl. ¶ 13; Cathey Decl. ¶ 26. 11 Williams Decl. ¶ 13. 12 Williams Decl. ¶¶ 13, 22. 13 Williams Decl. ¶¶ 13, 19, 22. 14 See also Williams Decl. ¶ 9; Cathey Decl. ¶¶ 13–14.
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hospital admission, surgery, or blood transfusion—occur in less than one-quarter of one percent (0.23%) of all abortion cases.15 Moreover, as this Court found, “legal abortion is significantly safer for a woman than carrying a pregnancy to term and giving birth.” Id.16
In the rare instances when complications from abortion do occur, they can usually be managed in an outpatient-clinic setting, either at the time of the procedure or during a follow-up visit. Id. at 1278–79 (“[C]omplications rarely require hospital admission”).17 “Since January 2017, LRFP” has a “rate of 0.07% for complications requiring hospital transfers.” Id. at 1281.
Surgical abortion requires minimal personal protective equipment (“PPE”).18 For the state-mandated ultrasound before every abortion, LRFP uses only non-sterile gloves.19 For surgical abortions, the physician uses sterile gloves (one pair per procedure) and a surgical mask (worn throughout the day); the assistant uses only a surgical mask (also worn throughout the day) and gloves.20 When necessary, LRFP uses reusable gowns and eyewear.21
Patients denied abortion care face serious consequences, “including greater likelihood of living in poverty, staying in abusive relationships, and experiencing mental health issues”22 as well as “lifelong consequences for her educational attainment, her career, and her own economic well-being.”23 Some patients who cannot access abortion care immediately may seek to end
15 Cathey Decl. ¶ 23; see also Williams Decl. ¶ 9. 16 See also Williams Decl. ¶ 9; Cathey Decl. ¶ 13. 17 See also Williams Decl. ¶ 9; Cathey Decl. ¶ 14. 18 Williams Decl. ¶¶ 18, 27–28; see Cathey Decl. ¶ 43. 19 Williams Decl. ¶ 18. 20 Williams Decl. ¶ 18. 21 Williams Decl. ¶ 18. 22 Cathey Decl. ¶64. 23 Steube Decl. ¶ 28 (Dkt. 160-1).
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their pregnancies outside the medical setting, which may lead to complications—and those complications may ultimately be life-threatening.24
C. LRFP’s Initial Response to COVID-19. On March 11, 2020, Governor Asa Hutchinson issued Executive Order 20-03, declaring a state of emergency in Arkansas due to the outbreak of the COVID-19 virus.25 Ten days later, on March 21, 2020, ADH issued a public statement (the “March 21 Guidance”) recommending that health care facilities and clinicians “prioritize urgent and emergency visits and procedures now and for the coming several weeks.”26 The letter’s stated goals were to “preserve staff, personal protective equipment (PPE), and patient care supplies; ensure staff and patient safety; and expand available hospital capacity during the COVID-19 pandemic.”27 The ADH stated that “[p]rocedures … that can be safely postponed shall be rescheduled to an appropriate future date.” The ADH’s guidance also provided specific exemptions for “small rural hospitals under 60 beds,” and clarified that procedures should proceed if there is risk of “progression of staging of a disease or condition if surgery is not performed.”28 The ADH reiterated this guidance in another letter issued on March 30, 2020.29 In the meantime, beginning in mid-March, LRFP began to implement measures to protect
24 Steube Decl. ¶ 29(f). 25 Executive Order to Declare an Emergency, As Authorized by Ark. Code Ann. § 12-75-114, and Order the Arkansas Department of Health to Take Action to Prevent the Spread of COVID19, as Authorized by Ark. Code. Ann. § 20-7-110, EO 20-03 (March 11, 2020), https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20-03.__1.pdf. 26 Dkt. 134-4. 27 Id. 28 Id. 29 Dkt. 134-5.
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its patients and staff.30 LRFP determined that it would cease providing basic gynecological care—i.e., pap smears, STD testing, and contraceptive counseling and services—and that, where possible and permitted by law, prescriptions would be administered over the phone.31 LRFP also began performing enhanced telephonic and in-person screening of patients for COVID-19 symptoms, and staggering patient-appointment times to reduce the number of patients at the facility at any given time, minimizing possibilities for exposure.32
LRFP expanded on and formalized these precautions in its April 2, 2010 COVID-19 Response Protocol (the “LRFP Protocol”). That protocol sets forth detailed information about (1) postponement of LRFP services for which delay would not risk harm to the patient (i.e., certain gynecological care); (2) screening patients for symptoms of infection, both telephonically and on site; (3) staggering appointment times to minimize in-person contact and shorten the time patients spend in the clinic; (4) spacing individuals at least 6 feet apart in waiting areas to comply with the State’s and CDC’s “social distancing” guidelines; (5) limiting visitors and support people by requiring that they sit in cars or return home until patients are ready to be picked up; (6) performing temperature checks on all individuals entering the building (including staff); and (7) enhancing infection-control protocols with frequent clinic sanitization and patientetiquette education.33 Given these changes, no more than 6 to 8 patients are in LRFP’s waiting room at any given time, and once patients are checked in for care, they are in individual treatment rooms except for the time they spend in recovery, during which they are at least 6 feet
30 Williams Decl. ¶ 25. 31 Williams Decl. ¶ 25. 32 Williams Decl. ¶ 25. 33 Dkt. 134-6.
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apart.34 The LRFP Protocol also states that “LRFP is aware of the PPE shortage our healthcare
system is currently facing,” and “is committed to using only the PPE that is necessary to protect [its] patients and staff.”35 LRFP is self-sustaining in terms of PPE for the next several months, and has not availed itself of any PPE offered by the State’s medical society.36 LRFP has no intention of using any state PPE stockpiles or resources, and is prepared to switch to cloth/reusable masks should it become necessary.37 Care at LRFP does not require the use of N95 masks, the PPE that appears to be in shortest supply in battling the COVID-19 pandemic.38 Likewise, because all LRFP’s procedures are performed in its own outpatient facility, LRFP is not using any hospital resources that may be needed for COVID-19 response—no hospital staff or supplies, no hospital beds (let alone ICU beds), and no ventilators.39 LRFP is strictly adhering to its Protocol.40
D. Further State Action Against LRFP And Its Patients. On April 1, 2020, representatives from the ADH called LRFP twice to inquire about what the clinic was doing to reduce non-essential services, preserve PPE, and protect against the spread of COVID-19.41 On both occasions, LRFP summarized the practices outlined in the
34 Williams Decl. ¶ 26. 35Dkt. 134-6. 36 Williams Decl. ¶ 27. 37 Williams Decl. ¶ 27. 38 Williams Decl. ¶ 28. 39 Williams Decl. ¶ 28. 40 Williams Decl. ¶ 29. 41 Williams Decl. ¶ 30.
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LRFP Protocol discussed above.42 At no point during either conversation did the ADH representatives suggest that LRFP was not complying with the State’s elective-surgery guidance.43
On April 3, 2020, the ADH issued a Directive reiterating the goals and instructions from the ADH’s March 21 Guidance (the “April 3 Directive”).44 The April 3 Directive, like the March 21 Guidance before it, was not intended to stop the provision of medical care in the State; rather, it again stated that “[p]rocedures … that can be safely postponed shall be rescheduled to a future date.”45 It further stated that “urgent” care and “care designated as an exception . . . will continue,” including situations in which “there is a risk of . . . progression of staging of a . . . condition if surgery is not performed.”46
When Governor Hutchinson was asked about the April 3 Directive during an April 6, 2020 press conference, Defendant State Health Director Dr. Nathaniel Smith explained that it is “not intended to replace a physician’s judgment,” and reiterated that the April 3 Directive encompasses only procedures that can “be safely deferred.”47 At no point during the conference did the Governor or Dr. Smith suggest that surgical abortion was impermissible under the April 3 Directive.48
On April 4, 2020, Governor Hutchinson issued Executive Order 20-13, declaring “the
42 Williams Decl. ¶ 30. 43 Williams Decl. ¶ 30. 44 Dkt. 134-7. 45 Id. 46 Id. 47 Channel for Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19 Update, YouTube (Apr. 6, 2020), https://www.youtube.com/watch?v=KS2Kb4V8U3I. 48 Williams Decl. ¶ 31.
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entire state an emergency disaster area,” and prohibiting “gatherings of more than ten (10) people in any confined indoor or outdoor space” “until further notice.”49 The Governor declined, however, to issue a stay-home order to all Arkansas residents, and continued to permit “gatherings of ten (10) or more people in . . . parks, trails, athletic fields and courts, parking lots, golf courses, and driving ranges where social distancing of at least six (6) feet can be easily maintained.”50 The Order also does “not apply to businesses, manufacturers, construction companies, places of worship, the Arkansas General Assembly, municipal or county governing bodies, or the judiciary,” though those entities were also advised to maintain appropriate socialdistancing practices.51 Finally, the Order stated that “pursuant to Ark. Code Ann. § 20-7-101, violation of a directive from the Secretary of Health during this public health emergency is a misdemeanor offense, and upon conviction thereof is punishable by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) or by imprisonment not exceeding one (1) month, or both.”52
Protestors appear at LRFP nearly every day that it provides abortion care.53 Between April 4 and 10, 2020, however, the harassment and intimidation from on-site protestors––who recklessly fail to exercise proper social distancing––significantly increased.54 They summoned
49 Executive Order to Amend Executive Order 20-03 Regarding the Public Health Emergency Concerning COVID-19 for the Purpose of Imposing Further Restrictions to Prevent the Spread of COVID-19, EO 20-13, § 2(a) (Apr. 4, 2020), https://governor.arkansas.gov/images/ uploads/executiveOrders/EO_20-13._.pdf. 50 Id. § 2(b). 51 Id. § 2(c). 52 Id. § 13. 53 Williams Decl. ¶ 33. 54 Williams Decl. ¶ 33.
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police to the clinic twice.55 Since the start of COVID-19 concerns, social-media complaints against the clinic have likewise increased, including some specifically requesting action by the Governor and state legislators to stop the provision of abortion care. For example, on March 29, 2020, State Senator Trent Garner announced in a tweet that he had “asked the Governor to [ban abortions] in Arkansas …. We shouldn’t expose women to the risk of the Wuhan COVID-19 virus for an unnecessary elective procedure, and we could save the unborn babies.”56
On April 7, ADH inspectors performed an unannounced in-person inspection at LRFP.57 At no point during the inspection, which occurred on a day during which both surgical and medication abortions were provided, did the ADH representatives suggest that LRFP was not complying with the State’s April 3 Directive.58
On April 8, 2020, the Governor gave an interview to PBS during which he discussed Arkansas’s “targeted” approach to managing risks relating to COVID-19.59 When asked whether he thinks “that by not requiring or ordering people to stay home, unless they have to be out, is not putting other people at risk,” the Governor responded “No.”60 He elaborated that “as long as they do what they’re supposed to do, which is social distance, wear a mask when you’re out, this
55 Williams Decl. ¶ 33. 56 Dkt. 134-8. 57 Williams Decl. ¶ 34. 58 Williams Decl. ¶ 34. 59 Arkansas Gov. Asa Hutchinson on why he hasn’t issued a stay-at-home order, PBS (Apr. 8, 2020) https://www.pbs.org/newshour/show/arkansas-gov-asa-hutchinson-on-why-he-hasntissued-a-stay-at-home-order; see also Arkansas governor defends no stay-at-home statewide order as ‘successful,’ CNN (Apr. 12, 2020) https://www.cnn.com/2020/04/12/politics/arkansasgovernor-no-stay-at-home-order-coronavirus-cnntv/index.html. 60 Id.
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accomplishes the purpose.”61 The Governor further said that currently in the State, there are “a lot of hospitals that are empty right now and health care workers that are empty,”62 presumably meaning that health care workers are available to provide care.
On April 9, the Governor and Dr. Smith were asked at a press conference if “elective surgery” is still permitted in the State, and Dr. Smith responded that judgments at surgical centers would be left primarily to the providers.63 At no point during the conference did the Governor or Dr. Smith suggest that surgical abortion care is not permissible under the April 3 Directive.64
Then, on the morning of April 10, ADH inspectors hand delivered the C&D Order to LRFP.65 It acknowledged that the April 7 inspection “did not reveal any deficiencies with respect to the rules for abortion facilities in Arkansas,” but asserted that LRFP was “in violation of the April 3, 2020 Arkansas Department of Health Directive on Elective Surgeries.”66 The C&D Order stated that the April 3 Directive “mandates the postponement of all procedures that are not immediately medically necessary during the COVID-19 emergency,” and thus, according to ADH, the “prohibition applies to surgical abortions that are not immediately necessary to protect the life or health of the patient.”67 The C&D Order ordered LRFP to “immediately cease and desist the performance of surgical abortions, except where immediately necessary to protect
61 Id. 62 Id. 63 Channel for Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19 Update, YouTube (Apr. 9, 2020), https://www.youtube.com/watch?v=Kg-qMqmycAM. 64 Id. 65 Dkt. 134-1. 66 Id. 67 Id.
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the life or health of the patient.”68 The C&D Order also stated that “[a]ny further violations of the April 3 Directive will result in an immediate suspension of [LRFP’s] license.”69 On April 10, LRFP was scheduled to provide surgical-abortion care to 8 patients whom LRFP had to turn away, including one patient at 17 weeks LMP.70
The Directive and the Ban were issued under ADH’s general authority, Ark. Code §§ 207-109, 20-7-110, and they have no expiration date. And while Arkansas may take the position that the Directive and Ban are time-limited because Arkansas limits the duration of states of emergency in Arkansas Code Section 12-75-107, nothing in Arkansas Code Section 20-7-109 or Section 20-7-110 references Section 12-75-107 or mentions emergencies at all. Rather, Arkansas Code Sections 20-7-109 and 20-7-110 simply “confer[] on the State Board of Health” the power “to make all necessary and reasonable rules of a general nature” on several specific topics. Ark. Code § 20-7-109.
Later on April 10, the Governor and Dr. Smith held a press conference regarding COVID-19.71 Consistent with Governor Hutchinson’s decision that same week to close Arkansas’s public schools for the remainder of the school year,72 Dr. Smith admitted that he “can’t say with certainty” how long the C&D Order against LRFP will be in place.73 When a reporter pressed a question regarding whether the C&D Order means that “some of [the women
68 Id. 69 Id. 70 Williams Decl. ¶ 38. 71 Channel for Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19 Update, YouTube (Apr. 10, 2020), https://www.youtube.com/watch?v=X2v1SIesdyc. 72 Dkt. 134-9. 73 Channel for Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19 Update, YouTube (Apr. 10, 2020), https://www.youtube.com/watch?v=X2v1SIesdyc.
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who would otherwise visit LRFP] are going to have a baby,” the Governor deflected and avoided the critical inquiry by instead asking, “[i]s there a remote [i.e., telephonic] question”?74 The Governor recently confirmed Arkansas’s abundance of available hospital beds and health care workers,75 and Arkansas acknowledged in its Eighth Circuit filings “that it will have sufficient medical equipment to weather the crisis.” Pet. 4.
Meanwhile, a range of medical services continue at facilities around the State. To take just one example, the ADH has expressly permitted orthodontists to continue seeing patients to adjust their orthodontic wires and appliances, and dentists may treat patients whom complain of a cracked tooth.76 Acupuncturists and chiropractors are free to continue to exercise their medical judgment about what care is urgent or emergent.77 And Arkansas has relaxed telemedicine rules for every medical treatment except abortion––indeed, even the pre-abortion-care, state-mandated informed-consent process must still occur in-person.78
E. Medical Experts Have Determined That Abortion Remains Critical, TimeSensitive Health Care That Should Not Be Delayed During the Pandemic.
Widely respected national medical organizations have concluded that abortion is a timesensitive, urgent form of health care that even the COVID-19 pandemic should not delay:
• ACOG, the American Board of Obstetrics & Gynecology, the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the
74 Id. 75 Arkansas Gov. Asa Hutchinson on Why He Hasn’t Issued a Stay-at-Home Order, PBS (Apr. 8, 2020), https://www.pbs.org/newshour/show/arkansas-gov-asa-hutchinson-on-why-he-hasntissued-a-stay-at-home-order; see Veronica Stracqualursi, Arkansas Governor Defends No Stay-atHome Statewide Order as ‘Successful,’ CNN (Apr. 12, 2020) https://www.cnn.com/2020/04/12/politics/arkansas-governor-no-stay-at-home-ordercoronavirus-cnntv/index.html. 76 Dkt. 134-10. 77 Dkts. 160-32, 160-39. 78 Dkt. 134-11.
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American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine issued a joint statement on “Abortion Access During the COVID19 Outbreak” providing that “[t]o the extent … hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure.”79 Abortion, these expert medical organizations concluded, “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”80
• The American Medical Association (“AMA”)—the country’s largest medical organization and one of its foremost authorities on medical and public-health matters— concurs. The AMA’s March 30, 2020 Statement on Government Interference in Reproductive Health Care disapproves of efforts “to ban or dramatically limit women’s reproductive health care” during the COVID-19 outbreak by “labeling procedures as ‘non-urgent.’”81
• On April 4, 2020, the World Health Organization (“WHO”) issued a similar statement concluding that “[a]bortion is considered an essential service during the coronavirus pandemic” and that “services related to reproductive health are considered to be part of essential services during the COVID-19 outbreak.”82
• The Ambulatory Surgery Center Association’s and the American College of Surgeons recommend that consideration of whether a surgery should appropriately be delayed during the pandemic must account for risk to the patient, “including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”83
At least 19 States and the District of Columbia have similarly concluded that abortion is
an essential aspect of women’s healthcare that should continue despite the challenges posed by
COVID-19.84 As one large group of States explained in an amicus brief, “because abortions
79 Dkt. 134-12. 80 Id. 81 Dkt. 134-13. 82 Dkt. 134-14. 83 Dkt. 134-15. 84 See Amicus Br. for New York et al. in Support of Respondents, In re Rutledge, No. 20-1791 (8th Cir.) [hereinafter “States Amicus Br.”]; Dkt. 134-16 (“The order provides that it shall not be interpreted in any way to limit access to family planning services, including termination of pregnancies.”).
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cannot readily be postponed for weeks or months, and also effectuate the constitutional right to choose to terminate a pregnancy prior to fetal viability, abortions are on a different footing from the types of medical services that can be considered ‘nonessential.’”85
F. Forcing Women To Continue Their Pregnancies During the Pandemic Is Harming Patients.
The COVID-19 pandemic has exacerbated the already-significant obstacles that women seeking abortion care in Arkansas face. Every day that a woman remains pregnant against her will, she not only experiences the emotional and physical consequences of continuing pregnancy, but also risks contracting the COVID-19 virus, thereby further jeopardizing her ability to visit a clinic and receive time-sensitive care.86 In addition, the longer a woman remains pregnant—and especially if forced to carry a pregnancy to term—the heavier burden she places on the health care system, the more interactions she must have with a variety of clinicians and staff, and the much greater use of PPE her care requires.87
Patients’ lived experiences confirm the immediacy of these concerns. As one anonymous woman who sought abortion care in Arkansas recently said, “I don’t know what I would have done if [LRFP] hadn’t been able to provide surgical abortions.”88 She decided to have an abortion because her husband had a history of physically and emotionally abusing her, and she was “afraid that the abuse would continue throughout [her] pregnancy” and would eventually affect her baby.89 She explained that because she was more than ten weeks into her pregnancy,
85 States Amicus Br. 4. 86 Williams Decl. ¶ 49; Cathey Decl. ¶ 69. 87 Williams Decl. ¶ 49; Cathey Decl. ¶¶ 44–45. 88 Doe Decl. ¶ 9 (Dkt. 160-4). 89 Doe Decl. ¶ 5.
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she could not obtain a medication abortion.90 Because the schools at which she had contracts to
teach had closed due to COVID-19, she did not have the money to make the 1,000-mile
roundtrip to Atlanta, Georgia to receive abortion services.91 Instead, the Ban forced her to
consider borrowing money and “sell[ing] [her] clothes over the internet,” without any certainty
that she would have been able to raise enough funds.92 Even if she were eventually able to make
the trip to Atlanta, she feared that she might contract COVID-19 in the process, especially in
light of the greater incidence of the virus in Georgia compared to Arkansas.93
Women who cannot obtain abortion care in Arkansas will have no good options: The
next-nearest clinic providing surgical abortions is in Shreveport, Louisiana (a more than 600-
mile roundtrip drive from Fayetteville, Arkansas), but that clinic provides care only up to 16.6
weeks LMP and is subject to continuing threats of closure.94 Many women will thus be forced to
travel to Granite City, Illinois, which is not only a more-than-700-mile roundtrip drive from
Little Rock, but it—like Shreveport—is in a State with a far higher incidence of COVID-19.
(Illinois has reported 17,887 cases of COVID-19 and 596 deaths,95 whereas Arkansas has 1,171
90 Doe Decl. ¶ 2. 91 Doe Decl. ¶¶ 3, 7. As this Court previously found, Order 15–16, going outside Arkansas is no solution. A state may not justify abortion restrictions by pointing to out-of-state options. See, e.g., Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350 (1938) (holding that “the burden” of a State’s “obligation” to protect citizens’ constitutional rights” can be performed only where its laws operate, that is, within its own jurisdiction . . . the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do”); Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 457 (5th Cir. 2014) (“[A] state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights,” including abortion rights). 92 Doe Decl. ¶ 7. 93 Doe Decl. ¶ 8. 94 Williams Decl. ¶ 47. 95 See Ill. Dep’t of Pub. Health, Coronavirus Disease 2019 (COVID-19), https://www.dph. illinois.gov/covid19 (visited Apr. 10, 2020).
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reported cases and 23 deaths96). And there is no guarantee that the clinic in Granite City will have the capacity to treat women who would have otherwise obtained care in Arkansas. Thus, even if women obtain treatment outside Arkansas, they do so only at heightened risk of contracting COVID-19 and carrying it back to this State.
Many of LFRP’s patients will not even be able to make the trip and will instead be forced to carry to term against their will or seek to terminate their pregnancy outside the medical system.97 Such self-managed abortions may “lead to infections in the uterus which can lead to further complications and may ultimately be life-threatening.”98
G. Forcing Women to Continue Their Pregnancies During the Pandemic Undermines Arkansas’s Efforts to Fight the Pandemic.
Abortions require far less PPE, fewer contacts with medical providers, and less medical resources than forcing patients to continue pregnancies over both the immediate- and short-term. In the immediate term, complications from pregnancy frequently necessitate medical care, including from 10 weeks to 21.6 weeks LMP. The most severe forms of preeclampsia and gestational diabetes occur then.99 High blood pressure, worsening autoimmune conditions, and nausea and vomiting also commonly require medical attention.100 Emergency room visits occur for approximately half of pregnant patients, with 23% visiting the emergency room twice or
96 See Ark. Dep’t of Health, COVID-19, https://www.healthy.arkansas.gov/programsservices/topics/novel-coronavirus (visited Apr. 10, 2020). 97 Williams Decl. ¶¶ 46–48; Cathey Decl. ¶¶ 63, 67. 98 Steube Decl. ¶ 29(e). 99 Cathey Decl. ¶ 20. 100 Cathey Decl. ¶¶ 18–20.
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more due to complications and 49% doing so at least once.101 Even in uncomplicated pregnancies, frequent prenatal medical visits and testing is required.102
Continued pregnancy also requires regular appointments with ultrasounds and laboratory testing, which requires relatively substantial PPE.103 In addition to routine prenatal appointments, pregnant patients often have multiple contacts with providers, including in the first 20 weeks of pregnancy.104 Every pregnancy carries a 15 to 20 percent risk of miscarriage, which often occurs in the first trimester; in approximately half of miscarriages, medical attention, often at a hospital, is required.105 Additionally, pregnant patients who exhibit signs of COVID-19— many of which, such as shortness of breath, are common to pregnant women—are instructed to immediately seek care at an emergency room.106
If a woman is forced to give birth against her will, she will require still more PPE, close social contacts, and hospital resources. Virtually all births in Arkansas occur in hospitals.107 Even an uncomplicated, vaginal birth is attended by at least four clinicians, over a considerable labor period, with significant use of PPE, and one-third of pregnancies result in caesarean section, a major abdominal surgery.108 Throughout labor, delivery, and recovery, patients use hospital beds and are in close contact with large numbers of people.109
101 Stuebe Decl. ¶¶ 28–29. 102 Cathey Decl. ¶ 44. 103 Stuebe Decl. ¶ 29(b). 104 Cathey Decl. ¶ 44. 105 Cathey Decl. ¶ 23; Stuebe Decl. ¶ 29(b). 106 Cathey Decl. ¶¶ 46-47. 107 Cathey Decl. ¶ 49. 108 Cathey Decl. ¶¶ 50, 21. 109 Cathey Decl. ¶ 54.
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Conversely, surgical abortions are performed in outpatient facilities and do not require use of ventilators or hospital beds, and hospitalizations resulting from abortion-related complications are extremely rare—much rarer than hospital visits from complications of pregnancy, including in patients before 21.6 weeks LMP.110 Although patients will briefly come in close contact with the LRFP clinicians who are providing medical care, health care providers are trained on how to properly wash their hands, safely perform surgeries, and wear masks correctly.111 Arkansas has chosen to allow businesses and manufacturers, for example, to continue to operate, see supra p.10—but unlike health care professionals, the individuals who manage those facilities and the individuals permitted to visit them do not have years of training and experience with sterile technique, and are thus less likely to be compliant with transmission precautions than the medical staff at LRFP.112
H. The Eighth Circuit’s Decision Precludes Many Women from Accessing Any Abortion Care in Arkansas.
Relying on Plaintiffs’ preliminary evidence, including the evidence cited above, this Court previously enjoined Arkansas from enforcing the Ban to bar surgical abortions. See Order 1. But on the morning of April 22, the Eighth Circuit vacated that Order, finding that this Court had not properly applied the relevant precedent. According to the Eighth Circuit, the Ban is valid as long has it has a “‘real or substantial relation’ to the public health crisis” or is “‘beyond all question, a plain, palpable invasion’ of the right to abortion.” Op. 14 (quoting Jacobson, 197 U.S. at 31). And, in the Eighth Circuit’s view, the Ban “effectuate[s]” Arkansas’s “interest in conserving PPE resources and limiting social contact among patients, healthcare providers, and
110 Stuebe Decl. ¶ 26. 111 Stuebe Decl. ¶ 26. 112 Stuebe Decl. ¶ 26.
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other staff,” and is a “legally valid response to the circumstances confronted by the Governor and the state health officials.” Op. 15. The court of appeals believed that scrutinizing “the State’s policy determinations in how best to combat COVID-19” to determine whether banning surgical abortions actually conserves PPE and enhances social distancing was inappropriate because it would allow courts to “usurp the functions of another branch of government.” Op. 16.
The Eighth Circuit instructed this Court to vacate its Order, which this Court has now done. See Dkt. 154. As a result, no women in Arkansas may obtain surgical abortion care. Even women who would be beyond the legal limit for abortion in Arkansas by May 11—the earliest that Executive Order might be lifted—cannot obtain abortion care. There are a least six such women already on LRFP’s schedule through May 11, including two who are scheduled to begin a two-day procedure tomorrow, April 23, 2020.113 Without immediate injunctive relief, they will be wholly barred from obtaining pre-viability abortions in Arkansas and will be forced to carry their pregnancies to term against their wills, seek care outside Arkansas, or attempt a selfmanaged abortion. To prevent those irreparable harms, Plaintiffs ask this Court to grant an ex parte temporary restraining order enjoining Defendants from enforcing a prohibition on surgical abortions against patients who would be beyond the legal limit for abortion care (21.6 weeks LMP) by May 11. To account for the very-real possibility that the Executive Order will be extended, the temporary restraining order should state that it applies with equal force to any new, substituted Executive Order expiration date.
ARGUMENT Plaintiffs seek an ex parte TRO, and thereafter a preliminary injunction, to prevent Defendants from enforcing the Ban as applied to individuals who would be beyond the legal
113 Williams Third Supp. Decl. ¶ 6 (Ex. 2 to this Motion).
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limit for abortion care (21.6 weeks LMP) by May 11 (or any subsequent date to which the Executive Order is extended). Without immediate relief, those individuals will suffer imminent and irreparable injury because they will be denied the health care to which they have a right under the Constitution and that is necessary to protect themselves from serious harm. As explained in Plaintiffs’ motion and verified First Supplemental Complaint, the requirements for an ex parte TRO have been met because (1) Plaintiffs and their patients will suffer irreparable harm if relief is not immediately granted to preserve the status quo before Defendants have an opportunity to be heard, and (2) Plaintiffs have tried to resolve this matter without litigation and have expressly informed Defendants that Plaintiffs would seek emergency relief if the matter could not otherwise be resolved. See Fed. R. Civ. Proc. 65(b).114 And as explained more below, the four facts that this Court considers in deciding whether to grant a TRO and subsequent preliminary injunctive relief all tip heavily in Plaintiffs’ favor: the (1) probability that the movant will succeed on the merits; (2) threat of irreparable harm to the movant; (3) balance of equities; and (4) public interest. See Grasso Enters., LLC v. Express Scripts, Inc., 809 F.3d 1033, 1036 n.2 (8th Cir. 2016).
Plaintiffs are likely to succeed on the merits of their claim that the Ban, as applied to women who would be past the legal limit for abortion care in Arkansas by the time the Ban is lifted, directly contravene decades of binding Supreme Court precedent and is unjustified by the current crisis. The Ban is an impermissible ban on pre-viability abortion as applied to these women, and it imposes extreme burdens on these women with no countervailing benefits. And all these women will be wholly denied access to pre-viability abortion care in Arkansas, and that is immediate, irreparable harm under any definition. See, e.g., Tempur-Pedic Int’l, Inc. v. Waste
114 Godesky Decl. ¶ 3 (Ex. 1 to this Motion).
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to Charity, Inc., 2007 WL 535041, at *1 (W.D. Ark. Feb. 16, 2007) (granting ex parte TRO to prevent “incalculable and irreparable injury to [plaintiff’s] reputation and good will as well as the harm done to the public”); Order, Robinson v. Marshall, No. 2:19-cv-365 (M.D. Ala. Mar. 30, 2020) (Dkt. No. 83) (granting request for ex parte TRO to enjoin enforcement of ban on abortion). Finally, the balance of hardships weighs decisively in Plaintiffs’ favor, and the public interest would be served by blocking the enforcement of the unconstitutional and harmful Ban. This Court should grant Plaintiffs’ request for injunctive relief.
I. PLAINTIFFS WILL SUCCEED ON THE MERITS OF THEIR SUBSTANTIVE DUE PROCESS CLAIM. A. The COVID-10 Abortion Ban Is Unconstitutional Because It Bans PreViability Abortions. For nearly five decades, the Supreme Court has been clear that a State may not ban pre-
viability abortion. See, e.g., Roe v. Wade, 410 U.S. 113, 163–65 (1973); Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 846 (1992) (plurality op.) (reaffirming Roe’s “central principle” that “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion”). The Supreme Court has repeatedly reaffirmed Roe’s central holding, most recently in 2016. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). This Court, too, recently said that the law is clear that “prohibitions on abortions pre-viability . . . are per se unconstitutional under binding Supreme Court precedent.” Little Rock Family Planning Servs., 397 F. Supp. 3d at 1266. And the Eighth Circuit struck down a law banning abortion after 12 weeks of pregnancy, explaining that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’” Edwards v. Beck, 786 F.3d 1113, 1117 (8th Cir. 2015) (quoting Casey, 505 U.S. at 879).115
115 See also, e.g., MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 772–73 (8th Cir. 2015) (ban on abortions after six weeks); Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 271-73 (5th
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That precedent applies with full force here. Unless enjoined, the Ban, as applied to
women who will be past the legal limit for abortion in Arkansas by the time the Ban is lifted,
entirely bars them from obtaining pre-viability abortions. As such, it is flatly unconstitutional
under decades of Supreme Court precedent, including Roe. This Court should grant an ex parte
TRO (and then a preliminary injunction) because Plaintiffs are certain to prevail on the merits of
their challenge to the Ban.
B. Even If the Undue-Burden Test Applies to the COVID-19 Ban, Plaintiffs Are Likely To Prevail.
Defendants may argue that because of the current crisis, the Court should apply the
undue-burden test to evaluate the Ban’s constitutionality. Cf. In re Abbott, 2020 WL 1685929, at
*1 (5th Cir. Apr. 7, 2020) (holding that “Casey’s undue-burden analysis” applied to COVID-19
regulation of abortion). Even if the undue-burden standard applies, Plaintiffs are likely to
succeed because the burdens of the Ban far outweigh its purported benefits. Under the undue-
burden test, a regulation of abortion that “has the effect of placing a substantial obstacle in the
path of a woman’s choice” even “while furthering [a] valid state interest,” “cannot be considered
Cir. 2019) (ban on abortions starting at fifteen weeks); Isaacson v. Horne, 716 F.3d 1213, 1217, 1231 (9th Cir. 2013) (ban on abortions starting at twenty weeks); Jane L. v. Bangerter, 102 F.3d 1112, 1117–18 (10th Cir. 1996) (ban on abortions starting at twenty weeks); Sojourner T. v. Edwards, 974 F.2d 27, 29, 31 (5th Cir. 1992) (ban on all abortions with exceptions); Guam Soc’y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1368–69, 1371–72 (9th Cir. 1992) (ban on all abortions); Robinson v. Marshall, 415 F. Supp. 3d 1053 (M.D. Ala. 2019) (ban on nearly all abortions); SisterSong Women of Color Reprod. Justice Collective v. Kemp, 410 F. Supp. 3d 1327 (N.D. Ga. 2019) (ban on abortions after six weeks); Reprod. Health Servs. of Planned Parenthood of St. Louis Region, Inc. v. Parson, 389 F. Supp. 3d 631 (W.D. Mo. 2019), modified, 408 F. Supp. 3d 1049 (W.D. Mo. 2019) (ban on abortions after various weeks); PretermCleveland, 394 F. Supp. 3d at 796 (enjoining ban on abortion at six weeks); Jackson Women’s Health Org. v. Dobbs, 379 F. Supp. 3d 549 (S.D. Miss. 2019), aff’d, 951 F.3d 246 (5th Cir. 2020) (ban on abortions after six weeks); Order Granting Stipulated Preliminary Injunction as to State Defendants, Planned Parenthood Ass’n of Utah v. Miner, No. 2:19-cv-00238 (D. Utah Apr. 18, 2019), Dkt. No. 34 (ban on abortions after eighteen weeks); Bryant v. Woodall, 363 F. Supp. 3d 611, 630–32 (M.D.N.C. 2019) (ban on abortions starting at twenty weeks).
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a permissible means of serving its legitimate ends.” Whole Woman’s Health, 136 S. Ct. at 2309 (alteration in original) (quoting Casey, 505 U.S. at 877). This test “requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Id. at 2298. As detailed below, nothing about the pandemic justifies denying women all access to pre-viability abortion care, and the burdens of doing so are extreme.
1. The burdens arising from enforcement of the Ban as to women who will be past the legal limit for abortion care are substantial.
As to burdens, the Ban—as applied to women who would be pushed past the legal limit for abortion care during the COVID-19 pandemic—entirely precludes access to abortion. The harm of that result is impossible to overstate: Women will be forced to carry their pregnancies to term against their wills. See supra p.18; see also Casey, 505 U.S. at 852 (“The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear.”). They will be forced to endure the health risks and other burdens of both pregnancy and childbirth, see supra pp.18–19, 4–5, and then they will then have unwanted children. To avoid that outcome, women may try to terminate their pregnancies outside the medical system. See supra p.18. Doing so increases the possibility of complications, which would require women to use hospital resources and engage with a number of social contacts.116
Women might also try to seek abortion care outside Arkansas. But as this Court previously found, Order 15–16, a state may not justify abortion restrictions by pointing to out-ofstate options. See, e.g., Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350 (1938) (holding that “the burden” of a State’s “obligation” to protect citizens’ constitutional rights” can be performed only where its laws operate, that is, within its own jurisdiction . . . the burden of
116 Stuebe Decl. ¶ 29(f).
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which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do”); Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 457 (5th Cir. 2014) (“[A] state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights,” including abortion rights). And in any event, the closest option for care for any woman who will be past the point of viability by the time the Ban is lifted is Illinois, a 700-mile round-trip to a clinic that might not even have capacity to see her. See supra pp.17–18.
In short, a woman who would be past the legal limit for abortion by the time the Ban is lifted has no good options. Because the Ban not only burdens but entirely eliminates her ability to access pre-viability abortion care in Arkansas, the Ban’s burdens are extreme under any view of the facts and the law.
2. The COVID-19 Abortion Ban has few, if any, benefits. On the other side of the ledger, the Ban has few, if any, benefits. Because Defendants’ actions do not serve these interests, they necessarily cannot outweigh the burdens on patients’ constitutional rights. Cf. Chandler v. Miller, 520 U.S. 305, 319, 323 (1997) (holding unconstitutional Georgia law requiring candidates for political office to take a urinalysis drug test because, while it was “relatively noninvasive,” it did not advance any state interests); Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966) (invalidating de minimis poll tax, notwithstanding States’ wide latitude to regulate the electoral process, because it conferred no legitimate benefit); SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686, 695 (D.C. Cir. 2010) (en banc) (holding law unconstitutional because “the First Amendment cannot be
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encroached upon for naught” and “something . . . outweighs nothing every time” (alteration in original)).
With regard to PPE, LRFP is wholly self-sustaining and has no plans to utilize the State’s PPE stockpile. See supra p.8. Nor is the COVID-19 Abortion Ban necessary to address socialdistancing concerns: LRFP has already implemented a strict protocol that keeps patients at least 6 feet apart from one another during the entirety of their clinic visit. See supra pp.7–8. As to hospital capacity, legal abortion is exceptionally safe and almost never requires hospitalization. See Whole Woman’s Health, 136 S. Ct. at 2311–12, 2315; see also supra pp.3–5. And because all LRFP’s procedures are performed in its own outpatient facility, it is not using any hospital resources that may be needed for COVID-19 response—no hospital staff or supplies, no hospital beds (let alone ICU beds), and no ventilators. See supra pp.8, 20.
Indeed, abortions reduce rather than exacerbate burdens on Arkansas’s health care system. Every day that a woman remains pregnant against her will, she not only experiences the emotional and physical consequences detailed above, but also risks contracting the COVID-19 virus, thereby jeopardizing her ability to visit a clinic and receive time-sensitive care. See supra p.16. In addition, the longer a woman remains pregnant—and especially if forced to carry a pregnancy to term—the heavier of a burden she places on an already-strained healthcare system and the State’s PPE resources. See supra pp.18–20.
* * * * * * Plaintiffs have thus established that they are likely to succeed on the merits of their claim that the COVID-19 Abortion Ban violates the substantive due process rights of their patients as applied to patients who will be past the legal limit for abortion in Arkansas by the time the Ban is lifted. See Casey, 505 U.S. at 878 (“Unnecessary health regulations that have the purpose or
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effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue
burden on the right.”); see also Whole Woman’s Health, 136 S. Ct. at 2309.
C. Jacobson v. Massachusetts Does Not Require a Different Result. The State may argue that Jacobson compels a different result, but this Court previously
applied Jacobson and found—correctly—that the COVID-19 Ban flunks Jacobson’s test. See
Order 16–17. Although the Eighth Circuit faulted this Court for not performing a more extensive
Jacobson analysis, Op. 14, the present posture affords an opportunity to do so. As the Eighth Circuit reads Jacobson117:
[A] state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive.
See id. at 13–14 (quoting In re Abbott, 2020 WL 1685929, at *7). Even under this test, the Court
may strike down a State regulation if it is either (1) “beyond all question” an invasion of the right
to abortion; or (2) bears no “real or substantial relation to public health.” Id. at 16–17. It may
also invalidate regulations that are “pretextual,” id. at 13–14, including where there is record
evidence that the State has “exploit[ed] the present crisis as a pretext to target abortion
117 While Plaintiffs recognize this Court is bound by the Eighth Circuit’s mandamus order, they preserve their disagreement with the Court of Appeals’ interpretation of Jacobson. Jacobson does not give States broad latitude to dispense with constitutional right, even during an emergency. On the contrary, Jacobson confirms that “no rule prescribed by a state . . . shall contravene the Constitution of the United States.” Id. at 25. And while Jacobson “balanced an individual’s liberty interest in declining an unwanted smallpox vaccine against the State’s interest in preventing disease,” Cruzan by Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990), the Supreme Court has already accounted for the balancing Jacobson requires in the abortion context. See Casey, 505 U.S. at 858 (citing Roe and Jacobson). Jacobson thus does nothing to displace the precedent—including Roe, Casey, and Whole Women’s Health—that postdates it.
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providers,” see id. at 16 n.6. Finally, the Court may evaluate whether the legislation includes “basic exceptions for extreme cases.” Id. at 14.
The COVID-19 Abortion Ban fails by any measure. First, for all the reasons previously described, see supra Part I.A–B, the Ban is “beyond all question” a violation of women’s fundamental right to abortion. Even in the Eighth Circuit’s view, Jacobson must be applied in conjunction with the standard that governs the right the State has infringed—which, in the context of abortion, is supplied by Casey and its progeny. See Op. 17 (evaluating whether the State had banned pre-viability abortion or whether it had “impose[d] upon this right an undue burden”). Under those cases, this Court correctly found that a regulation that would seriously hinder women’s ability to access abortion, while providing little if any benefit, was without question a “plain, palpable invasion” of their fundamental rights. Order 16–17 (quoting Jacobson, 197 U.S. at 31).
While the Eighth Circuit disagreed “[o]n the record before the district court,” see Op. 17, the record has changed since this Court entered its ex parte TRO more than a week ago. Plaintiffs have explained in even more detail how the COVID-19 Abortion Ban substantially burdens Arkansas women, even if—against indications to the contrary—it expires on May 11. This includes new evidence from Dr. Alison Stuebe—an obstetrician-gynecologist and boardcertified maternal-fetal medicine specialist with a background in epidemiology— who confirms that when a patient is denied an appointment for an abortion, she is committed to potential lifelong consequences, including a greater risk of a complicated pregnancy, greater risk of anxiety and loss of self-esteem, and consequences for her educational attainment, her career, and her economic well-being.118 Likewise, Plaintiffs have provided more details on the number of
118 Stuebe Decl. ¶ 27.
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women who will be pushed passed the legal limit for abortion. See supra p.21. It should at least be beyond any question that the Ban is an undue burden as applied to those women.
Second, the Ban does not bear a substantial relation to Arkansas’s purported public-health interests in implementing it (preserving PPE and enforcing social distancing). Plaintiffs do not question that the State has a “legitimate interests in protecting or promoting the public’s health and safety during the COVID-19 panic.” See Op. 15. But even under an extremely deferential review, all the record evidence shows that postponing surgical abortion care will only undermine that interest: Abortion care requires minimal PPE (far less than continued pregnancy); LRFP is fully self-sustaining in terms of PPE and has no intention of drawing on the State’s stockpile; and the clinic is following Arkansas’s social-distancing recommendations. See supra p.8; Order 14– 18. And while the Eighth Circuit thought otherwise “[o]n the record before” it, Op. 15, Plaintiffs’ additional record evidence explains how—even in the immediate term—continued pregnancy requires regular appointments with ultrasounds and laboratory testing, draining the State of these critical PPE resources. See supra pp.18–20. Indeed, Dr. Steube expressly confirms that, especially during a pandemic, abortions are “essential” health care, and denying access “imposes a number of risks and burdens on patients”—which they may be less able to remedy during pandemic conditions—“without any benefit to public health.”119
For its part, the State does contests that the Ban will increase the use of hospital resources or need for PPE. In fact, it has never once—not in its Directives, not in the cease-and-desist order, not in any briefing before this Court or the Eighth Circuit, and not in the declarations submitted with its Opposition—expressly claimed (much less provided evidence showing) that abortion strains Arkansas’s health care system. The State’s failure to provide any evidence
119 Steube Decl. ¶ 31.
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supporting its claim is particularly glaring in a preliminary-injunction posture, where the State has had the time and opportunity to produce at least some evidence to support its proffered reason. While this Court cannot “encroach upon the State’s policy determinations in how best to combat COVID-19,” Op. 16, it also cannot give the State unbridled authority to enact “arbitrary” or “pretextual” regulations, see id. at 13–14. Because the State has provided no argument or evidence that the Ban serves its stated purpose, there is no explanation for the Ban except that it is arbitrary and pretextual.120
Even the Fifth Circuit recently enjoined enforcement of a similar Texas ban on abortion as to patients “who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020.” In re Abbott, No. 2050296, 2020 WL 1911216, at *18 (5th Cir. Apr. 20, 2020). Arkansas, no less than Texas, cannot possibly justify the COVID-19 Abortion Ban where it would entirely prohibit a woman from exercising her pre-viability right to abortion. II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR
EQUAL PROTECTION CLAIM. The COVID-19 Abortion Ban treats abortion providers differently than other businesses and healthcare providers, and it treats patients seeking abortions differently than other patients. That differential treatment is not justified by any legitimate governmental interest. Plaintiffs are therefore also likely to succeed on the merits of their claim that the Ban violates the Equal Protection Clause. In fact, the Ban’s imposition of unnecessary restrictions on abortion providers and patients fails equal protection review under any level of scrutiny.
120 The pretextual nature of the COVID-19 Abortion Ban is all the more evident after considering the State’s disparate treatment of Plaintiffs and other medical providers. See infra Part II.
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The Equal Protection Clause is “essentially a direction that all persons similarly situated should be treated alike.” Stevenson v. Blytheville Sch. Dist. #5, 800 F.3d 955, 970 (8th Cir. 2015). “Generally, a law will survive . . . scrutiny if the distinction it makes rationally furthers a legitimate state purpose.” Zobel v. Williams, 457 U.S. 55, 60 (1982). “The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985). “Some particularly invidious distinctions are subject to more rigorous scrutiny.” Zobel, 457 U.S. at 60.
Where government action discriminates on the basis of a fundamental right, such as the right to access pre-viability abortion care, equal-protection analysis requires strict scrutiny. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 & n.3 (1976) (noting classifications burdening fundamental rights are reviewed under strict scrutiny); Craigmiles v. Giles, 312 F.3d 220, 223 (6th Cir. 2002) (“When a statute regulates certain ‘fundamental rights’ (e.g. voting or abortion) . . . the statute is subject to ‘strict scrutiny.’”). As the Supreme Court recently noted in adjudicating the undue-burden claim in Whole Woman’s Health, it would be “wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue.” 136 S. Ct. at 2309–10. Such heightened equal protection review requires close tailoring to extremely weighty state interests. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
The COVID-19 Abortion Ban cannot withstand any heightened equal protection scrutiny. It singles out patients seeking abortion care (and abortion providers) for unique regulation, even though doing so undermines rather than advances the State’s interests in combatting the current pandemic. See, e.g., Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 791 (7th
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Cir. 2013) (noting equal protection problem when State regulates abortion care in manner different than other medical care without medical justification). Arkansas has allowed other patients to obtain medical services under the terms of the earlier ADH guidance, which allows “healthcare facilities and clinicians” to determine themselves what constitutes “urgent and emergency visits and procedures” and to continue to provide that care. See supra p.14. Patients of dentists and orthodontists are free to schedule appointments to address cracked teeth and wiring on braces. See supra p.14. The State has also allowed most businesses to remain open as long as they observe social-distancing practices. See supra p.10. And it has specifically allowed golf course and driving ranges to remain open, parades of ten or fewer people, and fairs and festivals of fewer than ten people. See supra p.10. That Defendants would assert that some people seeking abortions should be precluded entirely from exercising their constitutional rights, but golf games and retail therapy can proceed unchecked, only underscores the credible fear that patients seeking abortion care and their doctors are being singled out based on hostility to abortion rather than a need to further a state interest legitimately. Cf. The Florida Star v. B.J.F., 491 U.S. 524, 540 (1989) (such underinclusiveness undercuts legitimacy of asserted governmental interest).
And while LRFP has determined—consistent with the determinations of the AMA, ACOG, and the WHO—that abortion is a time-sensitive, urgent form of health care that cannot be delayed without placing a patient at risk of suffering serious and/or irreparable harm, see supra pp.14–15, the Ban precludes Plaintiffs’ patients from obtaining surgical abortion care during the pandemic. Patients of other health care providers have not been singled out in the same manner, nor are their health care providers prevented from exercising their best medical judgment to determine whether and what healthcare must proceed during the pandemic. This
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differential treatment, which affects a fundamental constitutional right, flatly violates the guarantees of the Equal Protection Clause. See, e.g., Schimel, 806 F.3d at 914 (reasoning that State’s “indifferen[ce] to complications of any other outpatient procedures, even when they are far more likely to produce complications than abortions” undermines its interest); Van Hollen, 738 F.3d at 790 (explaining that “[a]n issue of equal protection of the laws is lurking in this case” because “the state seems indifferent to complications from non-hospital procedures other than surgical abortion (especially other gynecological procedures), even when they are more likely to produce complications,” such as colonoscopies).
The Ban cannot even withstand rational basis review. It treats abortion providers and patients “differently . . . than similarly situated persons.” Stevenson, 800 F.3d at 972. Providers of comparable procedures are not precluded from exercising their best medical judgment about what care is emergent or urgent and thus may be provided during the current pandemic. That differential treatment violates Plaintiffs’ and their patients’ equal protection rights. See Romer v. Evans, 517 U.S. 620, 633 (1996) (holding that law that on its face imposes a “special disability” on one group alone violates equal protection guarantee).
Moreover, as detailed above, the COVID-19 Abortion Ban does not advance any legitimate state interest. See supra Parts I.B.2, C. As the Supreme Court has explained, “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973); see also Cleburne, 473 U.S. at 448 (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”); Ranschburg v. Toan, 709 F.2d 1207, 1211 (8th Cir. 1983) (“An intent to discriminate is not a legitimate state interest.”). In fact, the Supreme
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Court has specifically cautioned against laws that single out abortion facilities for differential treatment. See Whole Woman’s Health, 136 S. Ct. at 2315 (finding no legitimate safety reason for singling out abortion facilities because “abortions taking place in an abortion facility are safe—indeed safer than numerous procedures that take place outside hospitals”).
Although rational-basis review does not “require a perfect or exact fit between the means used and the ends sought,” Walker v. Hartford Life & Accident Ins. Co., 831 F.3d 968, 978–79 (8th Cir. 2016), it is “not toothless,” Kansas City Taxi Cab Drivers Ass’n, LLC v. City of Kansas City, 742 F.3d 807, 810 (8th Cir. 2013). Instead, equal protection review requires, at a minimum, that a statute’s discriminatory line-drawing be rationally related to a legitimate state interest. Here, there is simply no plausible policy reason for singling out abortion providers and patients for more stringent restrictions during the pandemic. Indeed, the Ban does not advance the State’s purported interests at all; much less does treating abortion providers and patients more strictly than other health care workers and patients. Plaintiffs are accordingly likely to prevail on the merits of their claim that the COVID-19 Abortion Ban violates the Equal Protection Clause. See, e.g., Planned Parenthood of Greater Ohio v. Hodges, 188 F. Supp. 3d v684, 693–94 (S.D. Ohio 2016) (granting preliminary injunction and finding plaintiffs likely to succeed on equal protection challenge to state funding law that singled out abortion for different treatment); Planned Parenthood of Kan. v. Lyskowski, 2015 WL 9463198 (W.D. Mo. Dec. 28, 2015) (granting preliminary injunction upon finding plaintiff likely to succeed on claim that state agency violated Equal Protection Clause by treating abortion facility more harshly than others in ambulatory-surgical-center licensing process); Planned Parenthood of Ind. & Ky., Inc. v. Comm’r, Ind. State Dep’t of Health, 984 F. Supp. 2d 912, 921–25 (S.D. Ind. 2013) (granting
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preliminary injunction and finding plaintiffs likely to succeed on equal protection challenge to requirement that abortion clinics, but not physician’s offices, meet physical plant requirements). III. PLAINTIFFS’ PATIENTS WILL SUFFER IRREPARABLE HARM IF THE BAN
IS ENFORCED. Plaintiffs’ patients are and will continue to suffer serious and irreparable harm in the absence of an ex parte TRO and preliminary injunction. First, Defendants’ actions will prevent Arkansas women from exercising their fundamental constitutional right to access pre-viability abortion care and it will treat abortion providers and patients differently than other healthcare providers and patients. “It is well-settled that the inability to exercise a constitutional right constitutes irreparable harm.” Hopkins v. Jegley, 267 F. Supp. 3d 1024, 1068 (E.D. Ark. 2017) (“Jegley II”); see also Planned Parenthood of Minn., Inc. v. Citizens for Cmty. Action, 558 F.2d 861, 867 (8th Cir. 1977) (Plaintiffs’ showing of interference “with the exercise of its constitutional rights and the rights of its patients supports a finding of irreparable injury”); M.B. v. Corsi, 2018 WL 5504178, at *5 (W.D. Mo. Oct. 29, 2018) (“A threat to a constitutional right is generally presumed to constitute irreparable harm.”); Hughbanks v. Dooley, 788 F. Supp. 2d 988, 998 (D.S.D. 2011) (“When an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” (quoting 11A Charles Alan Wright et al., Federal Practice & Procedure § 2948.1 (2d ed. 1995))); Am. Civil Liberties Union of Ky. v. McCreary Cty., 354 F.3d 438, 445 (6th Cir. 2003) (“[W]hen reviewing a motion for a preliminary injunction, if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.” (citing Elrod v. Burns, 427 U.S. 347, 373 (1976))). Second, forcing patients to forgo abortion care and remain pregnant against their will inflicts serious physical, emotional, and psychological consequences that alone constitute
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irreparable harm.121 Some women will be forced to give birth; others may attempt to terminate their pregnancies outside the medical system. Some may travel across state lines, incurring additional expenses and increasing the likelihood of exposure to the virus. See supra pp.17–18; see also, e.g., Planned Parenthood Sw. Ohio Region v. Hodges, 138 F. Supp. 3d 948, 960 (S.D. Ohio 2015) (finding irreparable harm where “patients could face a delay” in obtaining abortion care). As the Supreme Court has said, “the abortion decision is one that simply cannot be postponed.” Bellotti v. Baird, 443 U.S. 622, 643 (1979). That the State would inflict these irreparable harms on Arkansas women in the midst of a global pandemic, putting them at greater risk of contracting COVID-19, only underscores the need for injunctive relief. See Roe, 410 U.S. at 153 (“The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.”); Planned Parenthood of Kan. & Mid-Mo. v. Andersen, 882 F.3d 1205, 1236 (10th Cir. 2018) (explaining that the “disruption or denial of . . . patients’ health care cannot be undone after a trial on the merits”); Planned Parenthood of Ariz., Inc. v. Humble, 753 F.3d 905, 911 (9th Cir. 2014); Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 796 (7th Cir. 2013); Roe v. Crawford, 396 F. Supp. 2d 1041, 1044 (W.D. Mo. 2005) (holding delay in abortion is irreparable injury due to "medical, financial, and psychological risks” associated with it), stay of preliminary injunction denied, 546 U.S. 959 (2005). IV. THE BALANCE OF HARMS AND PUBLIC INTEREST SUPPORT
INJUNCTIVE RELIEF. When considering the balance of harms, “[a]t base,” the question is “whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 113
121 Williams Decl. ¶¶ 22, 41–45, 49. See also Dkt. 134-12 (stating that the “consequences of being unable to obtain an abortion profoundly impact a person’s life, health, and well-being”).
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(8th Cir. 1981). Plaintiffs’ patients will suffer numerous irreparable harms without an injunction, and Plaintiffs’ requested relief will simply preserve the status quo as it exists now. If Plaintiffs’ request for injunctive relief is denied, their patients will be “effectively forced against their will to remain pregnant until they give birth.” Planned Parenthood Minn., N. Dakota, S. Dakota v. Daugaard, 799 F. Supp. 2d 1048, 1077 (D.S.D. 2011).
On the other side of the scale, Defendants will realize no benefits from enforcing the COVID-19 Abortion Ban. That is particularly true given that Plaintiffs are entirely selfsustaining in terms of PPE resources and have implemented strict social-distancing practices and protocols that diminish the risk of infection at the clinic. See supra pp.7–8. And the provision of abortion care to women who would be past the legal limit for abortion by the time the Ban is lifted reduces rather than increases the use of hospital resources needed to fight COVID-19. See supra pp.18–20.
In this setting, injunctive relief is supported by the balance of harms and the public interest. “The Eighth Circuit has stated that ‘whether the grant of a preliminary injunction furthers the public interest . . . is largely dependent on the likelihood of success on the merits because the protection of constitutional rights is always in the public interest.’” Little Rock Family Planning Servs. v. Rutledge, 397 F. Supp. 3d 1213, 1322–23 (E.D. Ark. 2019) (citing Planned Parenthood Minn., N. Dakota, S. Dakota v. Rounds, 530 F.3d 724, 752 (8th Cir. 2008), appeal filed, No. 19-2690 (8th Cir.)). That is precisely the case here: The public has no interest in the enforcement of the unconstitutional Ban. See Planned Parenthood of Greater Iowa, Inc. v. Miller, 1 F. Supp. 2d 958, 964 (S.D. Iowa 1998) (public interest is served by enjoining unconstitutional statute because “[t]he protection of constitutional rights clearly outweighs any interest the State may have in promoting the interests of the fetus with a statute that is
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unconstitutional”); see also, e.g., Am. Civil Liberties Union Fund of Mich. v. Livingston Cty., 796 F.3d 636, 649 (6th Cir. 2015) (“[W]hen a constitutional violation is likely…the public interest militates in favor of injunctive relief because it is always in the public interest to prevent violation of a party’s constitutional rights.”). Accordingly, granting Plaintiffs’ request for injunctive relief serves the public interest.
V. A BOND IS NOT NECESSARY IN THIS CASE. This Court should waive the Federal Rule of Civil Procedure 65(c) bond requirement.
Where plaintiffs are “serving a public interest in acting to protect [important] constitutional rights related to abortion,” and the governmental defendants “will not be harmed by the order to preserve the status quo,” courts have exercised their discretion to waive the security requirement. Jegley II, 267 F. Supp. 3d at 1111; see also Evenstad v. City of W. St. Paul, 306 F. Supp. 3d 1086, 1102 (D. Minn. 2018) (waiving bond requirement where plaintiff was “seek[ing] to vindicate an important constitutional right”). In fact, this Court recently declined to require Plaintiffs to provide security upon grant of a preliminary injunction barring Arkansas from enforcing two bans and one regulation of abortion that would have eliminated the overwhelming majority of abortion care in Arkansas. See Order 20; Little Rock Family Planning, 397 F. Supp. 3d at 1323.
This Court should use its discretion to waive the bond requirement here, where injunctive relief will result in no monetary loss to Defendants. Moreover, Plaintiffs are health care providers dedicated to serving low-income and underserved communities,122 and a bond would strain their already-limited resources. See Richland/Wilkin Joint Powers Auth. v. U.S. Army
122 See Williams Decl. ¶ 19.
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Case 4:19-cv-00449-KGB Document 165 Filed 04/22/20 Page 40 of 42 Corps of Eng’rs, 826 F.3d 1030, 1043 (8th Cir. 2016) (affirming district court’s waiver of bond requirement “based on its evaluation of public interest”).
CONCLUSION For these reasons, this Court should grant Plaintiffs’ motion for an ex parte TRO and/or preliminary injunction to enjoin Defendants and their officers, agents, servants, employees, and attorneys, and any persons in active concert or participation with them, from enforcing a prohibition on surgical abortions against patients who would be beyond the legal limit for abortion care (21.6 weeks LMP) by May 11. If the Executive Order is extended to a later date, the temporary restraining order should state that it applies with equal force to any new, substituted Executive Order expiration date.
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Dated: April 22, 2020

Respectfully submitted,
Leah Godesky* Christopher Burke* O’Melveny & Myers LLP Times Square Tower 7 Times Square New York, New York 10036 lgodesky@omm.com cburke@omm.com (212) 326-2254 Fax: (212) 326-2061
Kendall Turner* Ashley Robertson* Maya Zagayer* O’Melveny & Myers LLP 1625 Eye St. NW Washington, DC 20006 (202) 383-5300 kendallturner@omm.com arobertson@omm.com mzagayer@omm.com
Attorneys for Plaintiffs

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Meagan Burrows* Ruth E. Harlow* American Civil Liberties Union Foundation 125 Broad St, 18th Floor New York, NY 10001 mburrows@aclu.org rharlow@aclu.org (212) 549-2633
Attorneys for Plaintiffs
* Motion for admission pro hac vice granted

Bettina Brownstein (AR Bar No. 85019) Bettina E. Brownstein Law Firm 904 West 2nd Street, Suite 2 Little Rock, AR 72201 bettinabrownstein@gmail.com (501) 920-1764
Brooke-Augusta Ware (AR Bar No. 2004091) Mann & Kemp, PLLC 221 West Second Street, Suite 408 Little Rock, Arkansas 72201 brooke@mannkemp.com (501) 222-7330
On Behalf of the Arkansas Civil Liberties Union Foundation, Inc. Attorney for Plaintiffs

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 Case 4:19-cv-00449-KGB Document 173 Filed 05/01/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES, et al.,
Plaintiffs,
v.
LESLIE RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas, et al.,

CIVIL ACTION
Case No. 4:19-cv-00449-KGB
PLAINTIFFS’ MOTION FOR EX PARTE TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

Defendants.

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Plaintiffs Little Rock Family Planning Services (“LRFP”) and Dr. Thomas Tvedten, on behalf of themselves and their patients, hereby move the Court under Federal Rule of Civil Procedure 65 for an ex parte temporary restraining order and/or preliminary injunction restraining Defendants from enforcing the Arkansas Department of Health’s April 3 and 27, 2020 Directives to the extent that they would prevent patients from obtaining surgical abortion care in Arkansas at all times before the 21.6-week-LMP legal limit. Violation of the Directives carries criminal, financial, and licensure penalties, and each day a person or business operates in violation of the guidance would constitute a separate offense.1
The issuance of a temporary restraining order without a hearing and without notice to Defendants or providing them an opportunity to respond is warranted. First, Plaintiffs have set forth specific facts in the Supplemental Complaint (and the contemporaneously filed proposed Substituted Supplemental Complaint) and in sworn declarations, attached hereto, clearly showing that immediate and irreparable injury, loss, or damage will result to Plaintiffs’ patients before Defendants can be heard in opposition. If the Directives are enforced against them, three of the women identified in Plaintiffs’ declarations will be forced to carry their pregnancies to term against their will, attempt self-managed abortions, or—in the midst of a pandemic—assume the substantial burdens associated with attempting to travel to another State to exercise their constitutional right to access pre-viability abortion care. That is a quintessential example of immediate and irreparable harm. See Fed. R. Civ. P. 65(b)(1)(A); see also Zaxby’s Franchising, LLC v. MJM Foods, LLC, 2016 WL 3024074, at *1 (E.D. Ark. May 25, 2016) (granting ex parte
1 See Ark. Code § 20-7-101; Executive Order to Amend Executive Order 20-03 Regarding the Public Health Emergency Concerning COVID-19 for the Purpose of Imposing Further Restrictions to Prevent the Spread of COVID-19, EO 20-13, § 2(a) (Apr. 4, 2020), https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20-13._.pdf.
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temporary restraining order to prevent customer confusion before restaurant trademark dispute could be resolved); Tempur-Pedic Int’l, Inc. v. Waste To Charity, Inc., 2007 WL 535041, at *5 (W.D. Ark. Feb. 16, 2007) (granting ex parte temporary restraining order to prevent the movement or destruction of mattresses).
Second, Plaintiffs attempted to contact counsel for Defendants on May 1, 2020, to resolve this matter without litigation, and expressly informed Defendants that Plaintiffs would be seeking emergency relief if the matter could not otherwise be resolved. These efforts to resolve the matter have been unsuccessful. See Godesky Decl. ¶ 3. This is more than sufficient to satisfy Plaintiffs’ obligations to give notice and, given the threat of imminent and irreparable harm, no further notice should be required. See Fed. R. Civ. P. 65(b)(1)(B); see also, e.g., GE Commercial Distribution Fin. Corp. v. Crabtree RV Ctr., Inc., 2009 WL 10707170, at *3–4 (W.D. Ark. Apr. 3, 2009) (granting ex parte temporary restraining order to protect interest in recreational vehicles even where “no efforts have been made to give notice to the Defendant,” given the threat of imminent and irreparable harm) (emphasis added); Ellis v. Jackson Nat’l Life Ins. Co.. No. 2:11-CV-1064-WKW, 2011 WL 6300608, at *1–2 (M.D. Ala. Dec. 15, 2011) (finding single phone call to nonmovant’s counsel sufficient to grant ex parte temporary restraining order).
As more fully explained in the accompanying brief, Plaintiffs satisfy the remaining requirements for a temporary restraining order and a subsequent preliminary injunction because (i) Plaintiffs are likely to succeed on the merits of their claims that the Directives violate the constitutional rights of Plaintiffs and their patients; (ii) the balance of equities tips strongly in favor of Plaintiffs and their patients; and (iii) the public interest will be served by a temporary restraining order and/or an injunction. Plaintiffs further request that, given the nature of the relief sought and Plaintiffs’ limited means, bond be waived should the Court grant injunctive relief.
2

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This Motion is based upon the Supplemental Complaint filed in this case, the exhibits to that

Complaint, the brief filed herewith, and the following documents:

1. Attached as Exhibit 1 is a true and accurate copy of the declaration of Jane Doe 1.

2. Attached as Exhibit 2 is a true and accurate copy of the declaration of Jane Doe 2.

3. Attached as Exhibit 3 is a true and accurate copy of the declaration of Jane Doe 3.

4. Attached as Exhibit 4 is a true and accurate copy of declaration of Jane Doe 4.

5. Attached as Exhibit 5 is a true and accurate copy of the declaration of Lori

Williams.

6. Attached as Exhibit 6 is a true and accurate copy of the declaration of Alison

Stuebe.

7. Attached as Exhibit 7 is a true and accurate copy of the declaration of Leah

Godesky.

Dated: May 1, 2020

Respectfully submitted,

Leah Godesky* Christopher Burke* O’Melveny & Myers LLP Times Square Tower 7 Times Square New York, New York 10036 lgodesky@omm.com cburke@omm.com (212) 326-2254 Fax: (212) 326-2061

Kendall Turner* Ashley Robertson* Maya Zagayer* O’Melveny & Myers LLP 1625 Eye St. NW Washington, DC 20006

3

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Meagan Burrows* Ruth E. Harlow* American Civil Liberties Union Foundation 125 Broad St, 18th Floor New York, NY 10001 mburrows@aclu.org rharlow@aclu.org (212) 549-2633
Attorneys for Plaintiffs
* Motion for admission pro hac vice granted

(202) 383-5300 kendallturner@omm.com arobertson@omm.com mzagayer@omm.com
Attorneys for Plaintiffs
Bettina Brownstein (AR Bar No. 85019) Bettina E. Brownstein Law Firm 904 West 2nd Street, Suite 2 Little Rock, AR 72201 bettinabrownstein@gmail.com (501) 920-1764
Brooke-Augusta Ware (AR Bar No. 2004091) Mann & Kemp, PLLC 221 West Second Street, Suite 408 Little Rock, Arkansas 72201 brooke@mannkemp.com (501) 222-7330
On Behalf of the Arkansas Civil Liberties Union Foundation, Inc. Attorney for Plaintiffs

4

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EXHIBIT 1

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES, et al.,
Plaintiffs, v. LESLIE RUTLEDGE, et al.,
Defendants.

CIVIL ACTION Case No. 4:19-cv-00449-KGB

Declaration of Patient Jane Doe 1 in Support of Plaintiffs’ Motion for Temporary Injunction Order and Preliminary Injunction
I, Jane Doe 1,1 declare and state:
1. I am in my mid-20s and a resident of the State of Louisiana.
2. On April 28, 2020, at approximately 21 weeks into my pregnancy, I attempted to obtain a surgical abortion at Little Rock Family Planning (“LRFP”). At the clinic, Lori Williams told me that Arkansas requires women who want a surgical abortion to get tested for COVID-19 and receive a negative test result within 48 hours of the surgery. I was surprised, because I have been quarantining at home, I have no symptoms of COVID, and I have not come into contact with anyone who has COVID. The only place I have been in the past two months, other than my apartment and to seek an abortion, is to visit my mother, who lives in the same town as me and sometimes watches my children. I have not been to the grocery store or anywhere else, and have been very careful so I do not contract COVID.
3. I found out that I was pregnant around the end of January. I knew that I did not want to have another baby. I already have two children, and my youngest was just born in September 2019. After I had her, I experienced serious post-partum depression. I did not realize I had post-partum depression at first, because I did not experience it after my
1 Jane Doe 1 is a pseudonym. A motion to file a pseudonymous declaration and brief in support are forthcoming.

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giving birth to my first child. I felt like there was nobody I could talk to, and it was a dark time of my life. When I found out I was pregnant again, right around the same time I was finally overcoming my post-partum depression, I knew that I could not afford another child and I was worried about my physical and mental health.
4. I could not afford to get an abortion in January or February after I found out I was pregnant. I needed to wait until I received my tax refund. Once I had money saved up to pay for the abortion, I made an appointment with Hope Medical Group for Women in Shreveport, Louisiana, which is about a two-hour drive from my apartment. However, the clinic closed because of COVID-19 before I could have my appointment. I had to wait until the clinic could re-open and see me again.
5. I went back to the Hope Clinic in March, and received an ultrasound. The Clinic told me that I was around 15.5 weeks pregnant, which is close to the sixteen-week limit where I could receive an abortion. The Clinic told me that they could not perform an abortion, and referred me to the National Abortion Federation.
6. After contacting the National Abortion Federation, I received the information for Little Rock Family Planning. I made an appointment, and dropped my children off with my mother. I arrived at the clinic for my initial consultation appointment, and that’s when I learned that I would need to get tested for COVID before the facility could provide an abortion.
7. I have tried hard to get a test for COVID, but because I have no symptoms of the coronavirus, I cannot get tested. The only place I can get a test in my town is only open on Tuesdays and Thursdays, from 1pm to 3pm. By the time I left Little Rock Family Planning on April 28, it was too late to make it back in time to get tested, since my apartment is a four-hour drive from Little Rock. Also, I heard from a friend that the clinic had to stop testing early, around 2pm, because of bad weather.
8. On April 29, I drove back up to Little Rock, even though it is a four-hour drive, and went to University of Arkansas for Medical Sciences (“UAMS”) because Ms. Williams told me the facility had COVID tests. When I arrived, I answered some screening questions, and someone took my temperature. However, they told me that I was not eligible for a test, because I had no symptoms and UAMS would only give me a test if I had an elective surgery scheduled at their hospital. By the time I left UAMS, it was too late in the day to get a test at any other clinic in the Little Rock area that I knew of.
9. At this time, it is too late for me to get a test and my results within the 48 hours before the appointment at LRFP that I have scheduled for tomorrow, May 1. I am currently more than 21 weeks pregnant, and will be pushed past the legal limit to get an abortion in Arkansas after Monday, May 4.

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10. I don’t know what I am going to do if I cannot get an abortion. I live in an apartment with my boyfriend of five years and my two children, a 5-year-old son and a 7-month-old daughter. I am not working currently. I have a college degree and background in fashion, and it is hard to find work that pays well and allows me to take care of my children. In February, I was working in retail, but after a few weeks, I realized that I was not bringing in enough money, and my schedule did not let me spend enough time with my children. I looked for a 9 to 5 job so I could be more financially stable while still being there for my family. I lined up a job as a receptionist in a dentist’s office that would have given me the stability I wanted. Unfortunately, the week I was to start work, the office was forced to close because of COVID-19. I am not sure if the office will still hire me when the pandemic is over, and I am worried that I will not be able to find a job because so many places are not hiring, especially if I am pregnant.
11. I love my two children deeply. But I am worried that I could not provide for them, especially if I have another child. We are just barely getting by now as it is. If I have another child, I will have to get another car big enough to fit us all, and I cannot afford that. Also, our apartment is in my boyfriend’s name. If we broke up, I would not be able to afford an apartment and raise three children by myself.
12. I am also very worried about my health. After my second child, I experienced postpartum depression. I am concerned that will happen again. I also have been experiencing pains with this pregnancy I did not experience with my last two pregnancies. I have trouble digesting and keeping down food. I have terrible back pain, and feel pressure all the time. It’s hard to do things at home, and there are days where I need to lie down and have trouble getting up and walking around the apartment. I am grateful my boyfriend still has his job and is bringing in money, but that means he often leaves for 12-hour shifts. With back and leg pain, it’s difficult to take care of my two young children by myself all day. I am worried that these symptoms will get worse if I have to continue this pregnancy. I am also concerned this means the baby might not be healthy, since I did not experience any of these symptoms with my prior two pregnancies
13. I cannot afford to travel to another state to get an abortion. I have already spent between $200 and $300 in gas and medical expenses, driving to and from Shreveport and Little Rock. I simply cannot afford to travel somewhere like Illinois to get an abortion. I would have to pay for someone to watch my children, and I would have to pay for a hotel to stay in overnight, as well as pay for gas or for a flight. That is more than I can afford.
14. I know that right now I cannot handle another pregnancy or baby. My physical health is suffering because of the pregnancy, and I am worried my mental health will suffer after giving birth again too. It will be very difficult to care for three children by myself if my depression comes back. Also, COVID has made finding a job extremely difficult so I do not know how I will financially support another baby. Although it is a difficult choice, I know that an abortion is the best choice for the well-being of myself and my two

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children. 15. I declare under penalty of perjury that the foregoing is true and correct.

Executed April 30, 2020

/s/Jane Doe 1 Jane Doe 1

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EXHIBIT 2

Case 4:19-cv-00449-KGB Document 173-2 Filed 05/01/20 Page 2 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES, et al.,
Plaintiffs, v. LESLIE RUTLEDGE, et al.,
Defendants.

CIVIL ACTION Case No. 4:19-cv-00449-KGB

Declaration of Patient Jane Doe 2 in Support of Plaintiffs’ Motion for Temporary Injunction Order and Preliminary Injunction
I, Jane Doe 2,1 declare and state: 1. I am 36 years old and a resident of the State of Arkansas.
2. On April 21, 2020, at approximately 15 weeks into my pregnancy, I went to Little Rock Family Planning (“LRFP”) for my counseling session prior to obtaining an abortion. LRFP is more than an hour away from my home.
3. Lori Williams later informed me that in order to get a surgical abortion, I needed to be tested for COVID-19 and have a negative result 48 hours before the procedure. My procedure was scheduled for April 28, 2020.
4. On April 26, 2020, I went to a clinic in Hot Springs and was tested for COVID-19. I have still not received the results from that test.
5. On April 28, 2020, my procedure was cancelled by LRFP, and I was told I needed to get tested again for COVID-19 and get a negative result before my procedure that was rescheduled for April 30, 2020.
1 Jane Doe 2 is a pseudonym. A motion to file a pseudonymous declaration and brief in support are forthcoming.

Case 4:19-cv-00449-KGB Document 173-2 Filed 05/01/20 Page 3 of 4
6. I was tested for COVID-19 on April 28, 2020, and as the morning of May 1, 2020, I have still not received my results. I have contacted the clinic that tested me, and they told me the results are not back. Because I could not get the results of that test, I was unable to attend my rescheduled procedure on April 30, 2020.
7. I have no COVID-19 symptoms. I follow the social distance guidelines. I wear a mask when I am not at home. I do not leave the house unless I have to. I have taken my daughter to daycare and have gone to work when I have shifts. My family quarantined at home for seven days after a visit to my daughter’s doctor when she had a double ear infection. She was tested for COVID at that doctor’s visit, and she tested negative. I have not come into contact with anyone with COVID-19. I am very careful to protect my family and me.
8. I have three children. Two of them are under three-years-old. They both have respiratory issues, delayed speech, and physical development issues. They were both born premature at around thirty-three 33 weeks. I had pre-eclampsia with my daughter and had to have an emergency c-section to deliver her. I am a high-risk patient for this pregnancy because of my age and pregnancy history. I tried to have my tubes tied after my daughter was born, but Medicaid would not cover the cost, and I could not afford to pay for it on my own.
9. I have a hard time supporting my family of four. No one in my house earns an income other than me. I work as a housekeeper at a local hotel. I was laid off when the COVID crisis began. I received unemployment benefits until I was called back to work four weeks ago. Since then, I have only worked four or five shifts. I have very little income to support my family, especially with childcare costs and the special needs of my youngest two children. I do not receive assistance from their fathers, from any family members, or from child support. I cannot afford to have another child.
10. I realized I was pregnant about a month ago. I have not had any care from an obstetrician. My mental and emotional stress have suffered since I learned I was pregnant. To care for my children with the money I earn, I decided to look into getting an abortion at LRFP.
11. I have had to take off work several times to travel to Little Rock for my consultation at LRFP and for COVID testing. I had to pay for childcare during those trips. I worry that I will lose my job because I have taken off work several times.
12. If I cannot get an abortion at LRFP, I cannot afford to travel to Illinois or another state to get an abortion there. I do not have reliable transportation, overnight childcare, or the money to travel outside of the state.
13. With three children at home, I cannot afford to have another child, and I worry about the risks of having another child at my age and with my previous pregnancy history. I know

Case 4:19-cv-00449-KGB Document 173-2 Filed 05/01/20 Page 4 of 4

that it would be a struggle for me mentally, and it would cause my family to suffer. I do not want to have another baby.
14. Unless I get a negative COVID-19 test within 48-hours of my scheduled appointment, I cannot get an abortion. I am now almost sixteen 16 weeks pregnant, and I feel like I am running out of options.
15. I declare under penalty of perjury that the foregoing is true and correct.

Executed May 1, 2020

/s/Jane Doe 2 Jane Doe 2

Case 4:19-cv-00449-KGB Document 173-3 Filed 05/01/20 Page 1 of 4
EXHIBIT 3

Case 4:19-cv-00449-KGB Document 173-3 Filed 05/01/20 Page 2 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES, et al.,
Plaintiffs, v. LESLIE RUTLEDGE, et al.,
Defendants.

CIVIL ACTION Case No. 4:19-cv-00449-KGB

Declaration of Patient Jane Doe 3 in Support of Plaintiffs’ Motion for Temporary Injunction Order and Preliminary Injunction
I, Jane Doe 3,1 declare and state:
1. I am in my early-20s and a resident of the State of Texas.
2. I am scheduled to have an abortion on May 1, 2020 at Little Rock Family Planning (“LRFP”). Lori Williams told me that Arkansas requires women who want a surgical abortion to get tested for COVID-19 and receive a negative test result within 48 hours of the surgery.
3. I have not been exposed to anyone with COVID, and I have no symptoms. Nonetheless, I was able to get a COVID test on April 29, 2020. At this time, I have not received my test results. If I do not receive my tests results by tomorrow afternoon, then it will be too late for me to get another test and my results within 48 hours of my LRFP appointment on Friday, May 1. I am currently 21.3 weeks pregnant, and I will be pushed past the legal limit to get an abortion in Arkansas after Sunday, May 3, so I cannot try to get tested again next week.
4. Before visiting LRFP, I previously visited a clinic in Fort Worth, Texas to try to get an abortion about 16 weeks into my pregnancy. I scheduled an appointment, and drove to
1 Jane Doe 3 is a pseudonym. A motion to file a pseudonymous declaration and brief in support are forthcoming.

Case 4:19-cv-00449-KGB Document 173-3 Filed 05/01/20 Page 3 of 4
the clinic. But when I arrived, the clinic informed me that because of the COVID pandemic, the Texas government would not allow the clinic to perform surgical abortions, and they had to turn me away.
5. I live in an apartment with my 2-year old daughter, and my 11-year-old younger brother. Our mom passed away in September 2019, and since then I am taking care of him in addition to my daughter, so it’s really like I have two children already. Because I am not working at the moment, I only leave my apartment to go to the grocery store. I wash my hands the minute I get home to protect my family from COVID.
6. I heard about LRFP, and I drove up from Texas, which was about a four and a half hour drive. I left my apartment at 5am on April 29, 2020 so I would have plenty of time to try and receive a COVID test. I had to take my brother and daughter with me because there is nobody to watch them. I first went to University of Arkansas for Medical Sciences (“UAMS”). I explained that I had no COVID symptoms, but that I needed to get a test for an elective surgery. UAMS told me that they would not test me, because I did not fit the criteria for screening. Luckily, I found a clinic in Little Rock that agreed to give me a test even though I was asymptomatic. However, they could not guarantee I would receive my test results in 48 hours in time for the procedure.
7. I lost my job earlier this month because of the COVID pandemic. I was working at a distribution center, helping box up shipments onto pallets and loading them into delivery trucks. In March, work began slowing down. I started working one day a week. Then, the first week of April, my manager told me that the center was closing down completely for three to four weeks because of the pandemic. I hope that I will be rehired when the center opens, but I have no guarantee. I am worried that I would have to try and find a new job.
8. Already I have spent about $500 trying to get an abortion. I had to travel to and from the clinic in Fort Worth, and then had to make the four-and-a-half-hour drive to Arkansas, plus pay for a hotel and food for myself, my daughter, and my brother. Since I am out of work because of COVID, all the money I have saved needs to go to my rent, electricity, and food for my family and me. This has been a major financial and emotional burden on me.
9. I’m not sure what I am going to do if I cannot get an abortion on May 1. On top of the stress of worrying about supporting my family, this pregnancy has caused me other health problems. I have been experiencing a lot of pain and pressure on my lower body, which is something that did not happen with my last pregnancy. I find it hard to get out of bed some days because I am in so much pain. On some mornings, I try to stand up but have to lie back down again because the pain is too intense. But I have to get up and take care of my daughter and my brother, so I push through it.

Case 4:19-cv-00449-KGB Document 173-3 Filed 05/01/20 Page 4 of 4

10. I already have enough responsibility trying to take care of myself, my daughter, and my younger brother, especially now that I have been laid-off from work. Receiving an abortion from LRFP is my last resort. I have exhausted my other options. I do not know if I will have a job when the distribution center reopens, and this pregnancy is causing me so much pain that it is hard to get up and walk many days. Although it is a difficult decision, I know that an abortion is the right decision for my family and me.
11. I declare under penalty of perjury that the foregoing is true and correct.

Executed May 1, 2020

/s/Jane Doe 3 Jane Doe 3

Case 4:19-cv-00449-KGB Document 173-4 Filed 05/01/20 Page 1 of 4
EXHIBIT 4

Case 4:19-cv-00449-KGB Document 173-4 Filed 05/01/20 Page 2 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES, et al.,
Plaintiffs, v. LESLIE RUTLEDGE, et al.,
Defendants.

CIVIL ACTION Case No. 4:19-cv-00449-KGB

Declaration of Patient Jane Doe 4 in Support of Plaintiffs’ Motion for Temporary Injunction Order and Preliminary Injunction
I, Jane Doe 4,1 declare and state: 1. I am in my late-20s and a resident of the State of Texas.
2. I am scheduled to have an abortion on May 1, 2020 at Little Rock Family Planning (“LRFP”) at which point I will be 20.6 weeks pregnant. I have been trying unsuccessfully to get an abortion since February.
3. When I first found out I was pregnant, I knew I could not have another baby. My husband and I are already spread far too thin both emotionally and financially. We have two children below the age of 6. My older child has autism and is non-verbal. He needs a lot of attention from me. But I also have a toddler and I worry that I am not giving her the attention she needs. We don’t have any family around to help us. If I had another baby, I simply don’t know how I would tend to all of their needs.
4. Because I knew I didn’t want any more children, I asked my doctor to tie my tubes. But he refused to do it. Even though I was positive I would not want more children, he wouldn’t do it because he said I was young and might change my mind.
1 Jane Doe is a pseudonym. A motion to file a pseudonymous declaration and brief in support are forthcoming.

Case 4:19-cv-00449-KGB Document 173-4 Filed 05/01/20 Page 3 of 4
5. The COVID-19 crisis has also put us in trouble financially. Because of the crisis, my hours at work have been scaled back severely so now I am only working about 10 hours a week. We are struggling to get by and I worry that things are about to get worse. With things opening up, I will soon be called back to work full time. But with schools closed and day care shut down, I have no one to watch my kids so I won’t be able to work full time like I used to. I think I will lose my job entirely.
6. Knowing I could not have another child, I first tried to get an appointment for an abortion in February. I called a clinic in Texas for an appointment, but they had a backlog and couldn’t see me until mid-March.
7. But before you can actually get an abortion in Texas, you have to make a separate trip to the clinic for counseling. So I made the hour-and-a-half trip to the clinic for that appointment and made another appointment to come back for my procedure.
8. Before I could go back for my procedure I got a call from the clinic telling me that that they could not provide abortions anymore because of a new state law. I was devastated and I didn’t know what to do.
9. When I heard that the law had changed and clinics in Texas were able to provide abortions again, I was incredibly relieved. I called the clinic back. But, as I understand it, under Texas law, the doctor who had provided the counseling initially had to be the one to provide the abortion and I wasn’t able to get an appointment with that doctor.
10. Because I knew I could not care for another baby, I started looking for other options and I found the clinic in Little Rock. I took the day off work and made the 5-hour drive (each way) to Little Rock for the counseling appointment that the state requires to happen at least 72 hours before the abortion.
11. Before I could come back for my appointment, though, I got a call from Lori at the clinic in Little Rock. She told me that the law had changed again and now, somehow, I needed to get a negative COVID-19 test result no more than 48 hours before my abortion, even though I have no symptoms and have no known exposure.
12. I had no choice but to again make the 10-hour round trip journey to try to get a test. On Wednesday, April 29, I went to UAMS where I understood they had the ability to get tests back quickly. But when I got there they told me they weren’t giving tests to people with no symptoms unless they were having procedures done at the hospital.
13. At UAMS, they gave me a number of an office in Hot Springs and so next I went there to try to get a test. They initially tried to turn me away because I have no symptoms, but I told them I needed a test in order to get an abortion. At that point, they tried to talk me out of having the procedure. Because of the testing requirement, I had to argue with

Case 4:19-cv-00449-KGB Document 173-4 Filed 05/01/20 Page 4 of 4
these complete strangers about why having an abortion was the right decision for my family and me.
14. Finally, they agreed to do the test for me. But they warned me that there was virtually no chance it would be back within 48 hours. They said it usually takes five to seven days to get results. As of tonight, I have not gotten the test results back.
15. I have been so stressed out these last couple of months. I am physically and mentally exhausted. I have been crying every day because I know I don’t want to continue with this pregnancy but I am being forced to remain pregnant. And now I am distraught because I am running out of options. My ability to get an abortion will expire in just a few days. If I can’t get the care I need, my life and my family’s life will be irrevocably changed despite my doing everything in my power to get the care I need.
16. I declare under penalty of perjury that the foregoing is true and correct.

Executed April 30, 2020

/s/Jane Doe 4 Jane Doe 4

Case 4:19-cv-00449-KGB Document 173-5 Filed 05/01/20 Page 1 of 6
EXHIBIT 5

Case 4:19-cv-00449-KGB Document 173-5 Filed 05/01/20 Page 2 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES et al.,

Plaintiffs, v. LESLIE RUTLEDGE, et al.,

CIVIL ACTION Case No. 4:19-cv-00449-KGB

Defendants.

DECLARATION OF LORI WILLIAMS, M.S.N, A.P.R.N., IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND/OR
PRELIMINARY INJUNCTION I, Lori Williams, M.S.N., A.P.R.N., declare under 28 U.S.C. § 1746 and penalty of perjury that the following is true and correct: 1. I am a nurse practitioner and the Clinical Director of Plaintiff Little Rock Family Planning Services (“LRFP”). 2. I submit this Declaration in support of Plaintiffs’ Motion for a Temporary Restraining Order and/or Preliminary Injunction. 3. I submitted declarations in support of Plaintiffs’ Motions for a Temporary Restraining Order and/or Preliminary Injunction, executed on April 12, 2020 (Dkt. 134-2) and April 22, 2020 (Dkt. 160-2), respectively. I also submitted declarations in the Eighth Circuit in Opposition to Defendant-Appellants’ Motion for a Stay of the Temporary Restraining Order and Petition for Mandamus, executed on April 16, 2020 and April 19, 2020, respectively. In providing this declaration, I reaffirm and incorporate my earlier declarations by reference.

1

Case 4:19-cv-00449-KGB Document 173-5 Filed 05/01/20 Page 3 of 6
4. On April 24, 2020, Arkansas Department of Health (“ADH”) announced that, effective April 27, 2020, the State will implement a Directive On Resuming Elective Procedures (the “April 27 Directive”) intended to modify the restrictions set forth in its April 3 Directive Regarding Elective Surgeries (the “April 3 Directive”) (Dkt. 134-7).
5. According to the ADH, the April 27 Directive sets forth “requirements for the resumption of elective procedures, so that surgical facilities could perform elective procedures based on a decrease in COVID-19 cases and hospitalizations.”1 Thus, beginning April 27, 2020, surgical facilities may resume performing procedures only if they, among other things, “[s]tart with a small initial volume of cases and increase incrementally,” and have “an ample supply of PPE . . . while maintaining a reserve should there be a resurgence of the virus.”2
6. The April 27 Directive also places limitations on the patients eligible to receive care. For example, procedures will be limited to patients that are “asymptomatic for COVID-19 per ADH guidelines,” provided they had “no contact with known COVID-19 patients during the [] 14 days” preceding their procedure, and have “no plans for overnight stay” at the facility.3 In addition, “[f]or an asymptomatic patient to be a candidate for a procedure, he/she must have at least one negative COVID-19 NAAT test within 48 hours prior to the beginning of the procedure.”4
7. Since the State’s announcement of this new Directive, on April 24, 2020, I have been working diligently to assist my patients in obtaining COVID-19 tests and/or identifying
1 Directive on Resuming Elective Procedures from the Arkansas Department of Health (April 27, 2020) accessible at https://www.healthy.arkansas.gov/images/uploads/pdf/ResumeElectiveSurgeryDirectiveFINAL4 .23.20.pdf 2 Id. 3 Id. 4 Id.
2

Case 4:19-cv-00449-KGB Document 173-5 Filed 05/01/20 Page 4 of 6
locations willing and able to administer tests on asymptomatic individuals, per the April 27 Directive. I have contacted more than 15 different locations—including hospitals, urgent cares, clinics, diagnostic centers, and private laboratories—in and around Little Rock, Arkansas, but have been unable to identify a location that is (1) willing to test asymptomatic patients, and (2) able to reliably turnaround results within 48 hours. A majority of the locations I contacted will not test asymptomatic patients at all, and others cannot commit to turning around results within 48 hours.
8. One of the locations I contacted was the University of Arkansas for Medical Sciences (UAMS). UAMS communicated that it will only conduct COVID-19 tests for asymptomatic patients that have surgeries scheduled at the hospital. As a result, patients scheduled to receive care at LRFP have been turned away from UAMS.
9. Since the April 27 Directive has taken effect, I have had to turn away 8 patients scheduled to receive surgical abortion care due to their inability to receive a COVID-19 test and/or obtain test results within 48 hours of the beginning of their procedure.
10. On Friday, May 1, 2020, LRFP is scheduled to provide care to three women who will soon be past the legal limit for abortion care in Arkansas: (i) one who is 20.6 weeks LMP, (ii) one who is 21.2 weeks LMP, and (iii) one who is 21.3 weeks LMP. All tried, but at least one was not able to obtain a COVID-19 test and result within 48 hours of their abortion, as the April 27 Directive requires. As of the morning of May 1, the other two are waiting results from a clinic that has previously taken more than 48 hours to return results for at least five of my other patients. LRFP has numerous other women who are approaching the 21.6 weeks LMP cut off for abortion care on its near-term schedule.
3

Case 4:19-cv-00449-KGB Document 173-5 Filed 05/01/20 Page 5 of 6 11. The April 27 Directive is uniquely problematic for women seeking abortion care, as compared to patients seeking other medical procedures in Arkansas, given the (1) economic and logistical challenges LRFP’s patients already face in obtaining care, as discussed in my April 12, 2020 declaration (Dkt. 134-2), as well as (2) the 72-hour State-mandated delay for abortion care, for which the logistical challengers are substantially exacerbated by the 48-hour requirement in the April 27 Directive.
4

Case 4:19-cv-00449-KGB Document 173-5 Filed 05/01/20 Page 6 of 6 I declare under penalty of perjury that the foregoing is true and correct. Executed thi�ty of April, 2020.
5

Case 4:19-cv-00449-KGB Document 173-6 Filed 05/01/20 Page 1 of 9
EXHIBIT 6

Case 4:19-cv-00449-KGB Document 173-6 Filed 05/01/20 Page 2 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES et al.,

Plaintiffs, v. LESLIE RUTLEDGE, et al.,

CIVIL ACTION Case No. 4:19-cv-00449-KGB

Defendants.

DECLARATION OF ALISON STUEBE, M.D., M.Sc., F.A.C.O.G., IN SUPPORT OF PLAINTIFFS’ MOTION FOR AN EX PARTE TEMPORARY RESTRAINING ORDER
AND/OR PRELIMINARY INJUNCTION I, Alison Stuebe, M.D., M.Sc., F.A.C.O.G., pursuant to 28 U.S.C. §1746, declare under penalty of perjury that the following is true and correct: 1. I am a board-certified maternal-fetal medicine specialist (“MFM”) and obstetrician-gynecologist (“OBGYN”). I am also trained in epidemiology, and am familiar with the trajectory of epidemics and the public health measures that are most effective for managing them. 2. I submit this Declaration in Support of Plaintiffs’ May 1, 2020 Motion for a Temporary Restraining Order and/or Preliminary Injunction. 3. I submitted a Declaration in support of Plaintiffs’ Motion for a Temporary Restraining Order and/or Preliminary Injunction, executed on April 21, 2020 (Dkt. 160-1) (the “April 21 Declaration”). I now provide this supplemental declaration, and reaffirm and incorporate my earlier declarations by reference.

Case 4:19-cv-00449-KGB Document 173-6 Filed 05/01/20 Page 3 of 9
The ADH’s April 27, 2020 Directive 4. I have reviewed the Arkansas Department of Health (“ADH”) April 27 Directive
(the “April 27 Directive”), that modifies ADH’s April 3 Directive.1 5. The April 27 Directive includes seven requirements for the resumption of elective
procedures that had been barred by the April 3 Directive, including that a patient (1) “be asymptomatic for COVID-19 per ADH guidelines,” (2) “have at least one negative COVID-19 NAAT test within 48 hours prior to the beginning of the procedure.” The April 27 Directive exempts rural hospitals and critical access hospitals from its requirements, as did the April 3 Directive, and does not apply to the urgent care already permitted under the April 3 requirements.
6. Under the current landscape of COVID-19 testing, a 48-hour turnaround for results is possible only with what is commonly referred to as “rapid” testing. Rapid testing is available through a limited number of biopharmaceutical companies (e.g., Abbot Laboratories, and Mesa Biotech). The April 27 Directive’s Impact On LRFP’s Patients And Public Health
7. Enforcement of the April 27 Directive to surgical abortions will negatively affect LRFP’s patients and the public-health system.
8. First, as I previously explained, surgical abortion care is time-sensitive, urgent, and cannot be safely postponed. See April 21 Declaration ¶ 23. Surgical abortion care, therefore, does not belong in the April 27 Directive’s category of “elective” procedures in the first place, and any delay or added hurdle imposed in an effort to obtain testing is medically
1 Directive on Resuming Elective Procedures from the Arkansas Department of Health (April 27, 2020) accessible at https://www.healthy.arkansas.gov/images/uploads/pdf/ResumeElectiveSurgeryDirectiveFINAL4 .23.20.pdf.
2

Case 4:19-cv-00449-KGB Document 173-6 Filed 05/01/20 Page 4 of 9
inappropriate. 9. Second, the harms that arise when women are denied access to or delayed in
accessing surgical abortion care are substantially greater than the potential public-health benefits of limiting the accessibility of surgical abortion to patients who are able to get negative tests for COVID-19 within 48 hours of their procedure. Under certain circumstances, delaying a procedure that is non-urgent and can be safely postponed (like a hip replacement or a screening colonoscopy) until a patient can take a rapid COVID-19 test within 48 hours of the procedure would be appropriate as one public health tool (though one with significant limitations that I explain below). But for time-sensitive care like surgical abortion, that care should occur when the patient needs it and based on her specific clinical considerations.
10. In addition, the April 27 Directive assumes the ready availability of rapid testing for LRFP patients. I understand based on Lori Williams’s April 30, 2020 Declaration that LRFP has been unable to identify reliable access to rapid testing for its patients. If no rapid testing is available, application of the April 27 Directive to surgical abortion care will delay a woman’s ability to receive an abortion, perhaps indefinitely. For all of the reasons described in my earlier declaration, this will have several negative public-health consequences. See April 21 Declaration ¶ 29.
11. Moreover, I understand based on information provided in Lori Williams’s April 12, 2020 Declaration that LRFP has created and is strictly adhering to a COVID-19 Response Protocol (the “LRFP Protocol”). That protocol sets forth detailed information about (1) postponement of LRFP services for which delay would not risk harm to the patient (i.e., certain gynecological care); (2) screening patients for symptoms of infection, both telephonically and on site; (3) staggering appointment times in order to minimize in-person contact and shorten the time
3

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patients spend in the clinic; (4) spacing individuals at least 6 feet apart in waiting areas to comply
with the State’s and CDC’s “social distancing” guidelines; (5) limiting visitors and support people
by requiring that they sit in cars or return home until patients are ready to be picked up; (6)
performing temperature checks on all individuals entering the building (including staff); and (7)
enhancing infection control protocols with frequent clinic sanitization and education of patient
etiquette. In light of the measures that LRFP has implemented through the LRFP Protocol, which
identify symptomatic patients and significantly reduce the possibility of in-clinic transmission of
COVID-19, the public-health benefits of mandating pre-procedure testing for patients who are
asymptomatic for COVID-19 are very small, and pale in comparison to the benefits of letting a
woman access essential healthcare at LRFP.
12. The small benefit of pre-procedure testing for asymptomatic patients is reflected
in ADH’s decision not to require it of rural hospitals or critical access hospitals, where “elective”
surgical procedures continue to occur without any limitation.
13. The small public health benefit is especially true given that development of rapid
COVID-19 tests is ongoing, and the efficacy of the existing tests are questionable. Several reports have called into question the accuracy of COVID-19 rapid tests.2 Clinical pathologists
2 Rachana Pradhan, Abbott’s Fast COVID Test Poses Safety Issues, Lab Workers Say, Kaiser Health News (Apr. 23, 2020), https://khn.org/news/abbotts-fast-covid-test-poses-safety-issues-lab-workers-say/ (“The Abbott tests have had several other hiccups. For example, the Food and Drug Administration this month said Abbott would revise its instructions after one method for preserving specimens ― known as viral transport media — caused inaccurate results because patient samples were too diluted.”); Curt Devine and Drew Griffin, Abbott’s rapid tests can produce false negatives under certain conditions, the company says, CNN (Apr. 22, 2020), https://www.cnn.com/2020/04/21/health/abbott-laboratories-coronavirus-rapid-test/index.html (“Clinical pathologists and lab scientists at the Cleveland Clinic said the Abbott system has produced higher false negatives than other devices they tested.”); Kristen Brown, False Negatives Raise Doctors' Doubts About Coronavirus Tests, Bloomberg (Apr. 11, 2020), https://www.bloomberg.com/news/articles/2020-04-11/false-negative-coronavirus-testresults-raise-doctors-doubts (“False-negative results from coronavirus tests are becoming an increasing concern, say doctors trying to diagnose patients and get a grip on the outbreak, as a surprising number of people show up with obvious symptoms only to be told by the tests that they don’t have the disease.”); Lydia DePillis and Caroline Chen, Coronavirus Tests Are Being Fast-Tracked by the FDA, but It’s Unclear How Accurate They Are, ProPublica (Apr. 10, 2020), https://www.propublica.org/article/coronavirus-tests-are-being-fast-tracked-by-the-fda-but-its-unclear-
4

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and lab scientists at the Cleveland Clinic, for example, said a common rapid testing system, developed by Abbott Laboratories, produce high levels of false negatives. The Cleveland Clinic study found that the rapid testing system produced a false-negative rate of 14.8 percent.3
14. Furthermore, there is a nationwide shortage of COVID-19 tests. Deploying the limited supply for use on an asymptomatic patient population seeking surgical abortion care at an out-patient facility where stringent measures are already in place to reduce transmission risks is unnecessary and a waste of limited and important resources.
15. Third, the April 27 Directive denies abortion care for any patients who are exhibiting symptoms of COVID-19. But, in certain circumstances, it may be reasonable to provide abortion care for certain women, even if they exhibit symptoms of COVID-19. Whether to provide individualized care to these women should be an individualized assessment, based on a specific patient’s needs, balanced against any health risks.
16. Fourth, the April 27 Directive’s rapid-testing requirement creates an additional level of restriction for abortion care compared to other surgeries that the State has characterized as “elective,” because Arkansas has yet to waive or transition to telemedicine the requirement that women seeking abortion care receive State-mandated informed-consent information inperson at LRFP, at least 72 hours before their procedure. When the April 27 Directive is combined with the in-person 72-hour consent requirement, a woman seeking an abortion must therefore visit both LRFP and a rapid-testing site at specific intervals before the procedure–– LRFP to receive the State-mandated informed-consent information (72 hours before the
how-accurate-they-are (“Dr. Yukari Manabe, associate director of Global Health Research and Innovation at Johns Hopkins Medicine, estimates that 10% to 25% of test results are false negatives.”). 3 Study Raises Questions About False Negatives From Quick COVID-19 Test, NPR (Apr. 21, 2020), https://www.npr.org/sections/health-shots/2020/04/21/838794281/study-raises-questions-about-false-negativesfrom-quick-covid-19-test.
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procedure), and testing site for the rapid test (within 48 hours of the procedure). This two-visit pre-procedure requirement is unique to the abortion context and very challenging from a resource and logistics perspective. In contrast to many other “elective” surgical procedures, surgical abortion care is available in Arkansas only at LRFP in Little Rock, which, to the best of my knowledge, can be a nearly 400-mile roundtrip drive from other areas of the State. Ms. Williams explained in her April 12, 2020 Declaration that even before the pandemic, her patients––many of whom are low income or in poverty––struggled to overcome the logistical and economic barriers to care. The additional testing requirement therefore puts even more logistical and financial stress on women seeking abortions, as there is a tremendous amount of coordination needed to correctly time and accomplish the two requirements. Additionally, patients must necessarily come into contact with the healthcare system (72 hours before the procedure) before they undergo the rapid test (within 48 hours of the procedure)—this itself defeats the purpose of the testing requirement.
17. Fifth, the April 27 Directive will likely increase stress on the public-health system. As I described in my earlier declaration, once a woman is pregnant, it is a progressive condition, and therefore inevitable that she will have contact with medical providers. See April 21 Declaration ¶¶ 29, 31. If women are denied access to abortion and thus forced to continue their pregnancies under the April 27 Directive, most will come in contact with the broader healthcare system through miscarriage management, prenatal care, medical care necessitated by any complications that arise during pregnancy, and/or labor and delivery. See April 21 Declaration ¶ 29. Because this kind of care is exempted from the Directives, women will receive care for labor and delivery without regard to whether they test positive for COVID-19, including potentially at hospitals staffed with COVID-19 first responders. By preventing women
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with undesired pregnancies from accessing abortion care, the April 27 Directive will redirect women to the public healthcare system for labor and delivery care that cannot be deferred, in contrast with non-urgent, routine procedures, such as a screening colonoscopy or orthopedic procedures.
* * * * * 18. In sum, abortion care is urgent care. Clinicians, in consultation with their patients, remain in the best position to accomplish that care in a timely way, with any medical testing and pre-procedure steps appropriate to the particular patient. Public health surveillance efforts of limited benefit are not appropriately used to deny or interfere with women’s access to abortion. Clinicians can use their professional judgment to weigh individual patients’ medical needs against any health risks—including risks related to COVID-19 infection. In the context of abortion care, the April 27 Directive removes the ability of health-care providers to make their own judgments about essential, time-sensitive patient needs The marginal public health benefits of the April 27 Directive, when applied to abortion care, are significantly outweighed by the Directive’s burdens and negative consequences.
7

Case 4:19-cv-00449-KGB Document 173-6 Filed 05/01/20 Page 9 of 9 I declare under penalty of perjury that the foregoing is true and correct. Executed this 30th day of April, 2020.
Alison Stuebe, M.D., M.Sc., F.A.C.O.G.
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EXHIBIT 7

Case 4:19-cv-00449-KGB Document 173-7 Filed 05/01/20 Page 2 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES et al.,

Plaintiffs, v. LESLIE RUTLEDGE, et al.,

CIVIL ACTION Case No. 4:19-cv-00449-KGB

Defendants.

DECLARATION OF LEAH GODESKY, ESQ. IN SUPPORT OF PLAINTIFFS’ MOTION FOR AN EX PARTE TEMPORARY RESTRAINING ORDER AND/OR
PRELIMINARY INJUNCTION I, Leah Godesky, Esq., declare under 28 U.S.C. § 1746 and penalty of perjury that the following is true and correct: 1. I am an attorney at O’Melveny & Myers, LLP, counsel of record for Plaintiffs Little Rock Family Planning (“LRFP”) and Dr. Thomas Tvedten (together, “Plaintiffs”) in the above-captioned matter. I am a member in good standing of the State Bars of New York and Connecticut, and am admitted pro hac vice to represent Plaintiffs in this litigation. 2. I submit this Declaration in support of Plaintiffs’ May 1, 2020 Motion for an Ex Parte Temporary Restraining Order and/or Preliminary Injunction. 3. At approximately 8:47am CST on May 1, 2020, I notified counsel for Defendants that Plaintiffs intended to seek an ex parte temporary restraining order barring enforcement of the April 3 and 27, 2020 Directives by the Arkansas Health Department to the extent that the Directives are preventing patients from obtaining surgical abortion care in Arkansas before the

Case 4:19-cv-00449-KGB Document 173-7 Filed 05/01/20 Page 3 of 4 21.6-week-LMP legal limit. As of this filing, Plaintiffs have not yet heard from counsel for Defendants.
4. If the Directives are enforced, Plaintiffs will have to turn away at least one and potentially three patients today. All three will be beyond the legal limit for abortion care in a matter of days.
2

Case 4:19-cv-00449-KGB Document 173-7 Filed 05/01/20 Page 4 of 4 I declare under penalty of perjury that the foregoing is true and correct. Executed 1st day of May, 2020.
___________________________ Leah Godesky, Esq.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

LITTLE ROCK FAMILY PLANNING SERVICES, et al.,

Plaintiffs, v.

Case No.: 4:19-cv-00449-KGB

LESLIE RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas, et al.,

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR EX PARTE TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION1
The Arkansas Department of Health (“ADH”) has released a new Directive on Resuming Elective Surgeries, effective April 27, 2020 (the “April 27 Directive”).2 The April 27 Directive supplements an earlier, April 3 Directive from ADH, and it allows patients to obtain care only if they (in addition to satisfying other requirements) “have at least one negative COVID-19 NAAT test within 48 hours prior to the beginning of the procedure.” Although Plaintiffs and their patients have been working diligently to obtain tests and test results within the required window, many have been unable to do so because tests and testing resources are in short supply, especially for asymptomatic individuals, and results usually take more than 48 hours. Indeed,

1 This motion refers to this Court’s April 14, 2020 temporary restraining order as “Order.” Additionally, Defendants’ petition for a writ of mandamus is “Pet.,” and Defendants’ April 27 opposition to Plaintiffs’ April 22 motion for an ex parte TRO is “Opposition” or “Opp.” All emphasis is added, and all internal quotation marks and citations are omitted unless otherwise noted. 2 Dkt. No. 169, Ex. A.
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one of Plaintiffs’ patients was recently tested twice and both times did not receive test results within the 48-hour window necessary to secure abortion care under the April 27 Directive.3
Although the April 27 Directive unduly burdens all women’s access to the pre-viability abortion care that the Constitution guarantees, it works especially severe harm on women who are close to the legal limit for abortion in Arkansas (21 weeks, 6 days (“21.6 weeks”) from the first day of their last menstrual period (“LMP”)). Today, Friday, May 1, Plaintiff Little Rock Family Planning (“LRFP”) is scheduled to provide care to three women in that category: They are at 20.6 weeks LMP (Jane Doe 4), 21.2 weeks LMP (Jane Doe 1), and 21.3 weeks LMP (Jane Doe 3) as of May 1. One (Jane Doe 1) has been entirely unable to obtain a COVID-19 test. As of this morning, the other two are waiting to see if they will receive test results within the mandated 48-hour window; the clinic at which one was tested has missed the 48-hour window for at least five of LRFP’s other patients this week. As a result, at least one and potentially all three of these women will be entirely denied access to pre-viability abortion care in Arkansas, unless this Court orders immediate, injunctive relief, as explained briefly below:
 LRFP patient Jane Doe 1 is the mother of a 5-year-old and a 7-month-old. She had secured a new job as a dental receptionist until she lost it due to the ongoing pandemic. Because of her limited financial resources, she had to wait to seek abortion care until she received her tax refund. Following the April 27 Directive, she unsuccessfully sought to be tested for COVID-19. As of Friday, May 1, 2020, she is 21.2 weeks LMP pregnant.4
 LRFP patient Jane Doe 3 is the mother of a 2-year-old; she is also raising her 11year-old brother following their mother’s death in September 2019. She lost her job because of the current pandemic. She sought a COVID-19 test on April 29 at the University of Arkansas for Medical Sciences (“UAMS”), but UAMS refused to test her because they are only testing patients undergoing elective-surgery procedures in their hospital. Although she was subsequently tested at another
3 Doe 2 Decl. ¶¶ 4–6 (Ex. 2 to this motion). 4 See generally Doe 1 Decl. (Ex. 1 to this motion).
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clinic in Arkansas, it could not guarantee test results within 48 hours. As of May 1, she is 21.3 weeks pregnant.5  LRFP patient Jane Doe 4 has two children under six, one of whom has autism and is non-verbal. Jane Doe 4 had her hours scaled back severely because of the current pandemic. Although she asked a doctor to tie her tubes after she realized she could not handle a third child, her doctor refused. After she became pregnant again, she sought to comply with the April 27 Directive by asking UAMS for a COVID-19 test. She was told she is ineligible because she is asymptomatic and is not having a procedure done at UAMS. She then asked for a test at another clinic. Although that clinic ultimately tested her, it said results would likely take five to seven days. As of May 1, she is 20.6 weeks LMP.6 The Eighth Circuit’s mandamus opinion last month addressed only whether the April 3 Directive was facially unconstitutional as applied to all patients, and specifically left open the possibility that that injunctive relief would be proper for patients who would otherwise be pushed past the legal limit for abortion in Arkansas. See In re Rutledge, 2020 WL 1933122 (8th Cir. Apr. 22, 2020). Even the Fifth Circuit—in an opinion heavily relied on by the Rutledge court— upheld injunctive relief for patients similarly situated in Texas. See In re Abbott, 2020 WL 1844644, at *2 (5th Cir. Apr. 10, 2020). Indeed, no court has allowed an executive order issued during the COVID-19 pandemic to be enforced against patients who would lose their right to legal abortion altogether. Plaintiffs respectfully request immediate, ex parte relief for these three patients, followed by TRO briefing and preliminary-injunction proceedings for all other women similarly situated, because there are other patients on LRFP’s schedule who will likewise soon be at or near the legal limit for care. Ex parte relief is particularly appropriate here because of the time-sensitive circumstances presented by the three Jane Does and because the Court already has the benefit of Defendants’ position regarding the April 27 Directive’s modification to the April 3 Directive.
5 See generally Doe 3 Decl. (Ex. 3 to this motion). 6 See generally Doe 4 Decl. (Ex. 4 to this motion).
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Indeed, Defendants substantially addressed the issues presented by this motion for emergency relief in an April 27 opposition brief. See Dkt. 168. To the extent that the Court permits Defendants to oppose this motion with regard to these three women, Plaintiffs ask that this Court set a weekend briefing schedule to ensure a decision in time for these three women to receive care.7
STATEMENT OF FACTS A. Abortion Is Critical, Time-Sensitive Health Care. Patients seek abortion for a wide range of personal and complex reasons.8 Most people who have abortions already have at least one child, and many have decided they cannot parent another at this stage of their lives.9 Some patients have abortions because they conclude that it is not the right time to become a parent, they wish to pursue their education or career, or they lack financial resources or partner or familial support or stability.10 Other patients seek abortions because existing medical conditions put them at greater-than-average risk of medical
7 Plaintiffs could not seek this urgently needed relief through either of their two other pending motions: One seeks relief on behalf of a broader category of patients (see Dkt. 134). For the other, briefing and evidentiary submissions has been stayed, such that Plaintiffs have no mechanism to seek immediate relief for their patients based on (among other things) declarations by the Jane Does who will imminently lose the ability to obtain any abortion care in Arkansas (see Dkt. 164; see also Dkt. 170). Plaintiffs are cognizant of the Court’s resources and do not intend to burden the Court with unnecessary motion practice. The rapidly changing landscape of Arkansas’s efforts to restrict abortion care during the pandemic has required Plaintiffs to initiate multiple motion sequences, but they intend to examine in short order whether any of the pending motions could be withdrawn in view of this motion. 8 Williams Decl. ¶ 10 (Dkt. 134-2); Cathey Decl. ¶¶ 28–29 (Dkt. 134-3). 9 Williams Decl. ¶ 10. 10 Williams Decl. ¶ 10; Cathey Decl. ¶ 29.
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complications, because they are in abusive relationships, or because they are pregnant as a result of rape or sexual assault.11
Abortions are typically provided in Arkansas using one of two methods: medication abortion or surgical abortion.12 Consistent with Arkansas law, LRFP provides (i) medication abortion up to ten weeks (seventy days) LMP, and (ii) surgical abortion up to 21.6 weeks LMP.13 Both methods are a safe and effective means of terminating a pregnancy, although some patients have medical or other circumstances that make surgical abortion more appropriate for them.14
Despite its name, “surgical” abortion involves no incision or general anesthesia.15 There are two types of surgical abortion. The first is aspiration abortion, in which gentle suction is used to safely empty the contents of the uterus.16 The procedure usually takes approximately 5 to 10 minutes. Beginning at approximately 14 weeks LMP, and most relevant here, abortions generally require a still-very-safe but more-complex procedure known as dilation and evacuation, or “D&E” abortion, which requires more procedure and recovery time than the aspiration procedure.17 A D&E is usually a one-day procedure, but as pregnancy progresses, it becomes a two-day procedure because patients must come into LRFP the day before to begin the
11 Williams Decl. ¶ 10; Cathey Decl. ¶ 29. 12 Williams Decl. ¶ 11; Cathey Decl. ¶¶ 25–26. 13 Williams Decl. ¶¶ 12–13. 14 Williams Decl. ¶¶ 11, 16; Cathey Decl. ¶ 27. 15 Williams Decl. ¶ 13; Cathey Decl. ¶ 26. 16 Williams Decl. ¶ 13; Cathey Decl. ¶ 26. 17 Williams Decl. ¶ 13.
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process of dilating their cervix.18 A D&E requires more skill and time, and the cost of abortion care increases with the progression of a pregnancy.19
B. Abortion Is Extremely Safe, But Risks Increase When It Is Delayed. As this Court recently found, abortion in Arkansas (and in the nation as a whole) “is one of the safest medical procedures available.” Little Rock Family Planning v. Rutledge, 397 F. Supp. 3d 1213, 1279 (E.D. Ark. 2019); see also Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2311 (2016).20 In particular, major complications—defined as complications requiring hospital admission, surgery, or blood transfusion—occur in less than one-quarter of one percent (0.23%) of all abortion cases.21 Moreover, as this Court found, “legal abortion is significantly safer for a woman than carrying a pregnancy to term and giving birth.” Id.22 In the rare instances when complications from abortion do occur, they can usually be managed in an outpatient-clinic setting, either at the time of the procedure or during a follow-up visit. Id. at 1278–79 (“[C]omplications rarely require hospital admission”).23 “Since January 2017, LRFP” has a “rate of 0.07% for complications requiring hospital transfers.” Id. at 1281. Surgical abortion requires minimal personal protective equipment (“PPE”).24 For the state-mandated ultrasound before every abortion, LRFP uses only non-sterile gloves.25 For surgical abortions, the physician uses sterile gloves (one pair per procedure) and a surgical mask
18 Williams Decl. ¶¶ 13, 22. 19 Williams Decl. ¶¶ 13, 19, 22. 20 See also Williams Decl. ¶ 9; Cathey Decl. ¶¶ 13–14. 21 Cathey Decl. ¶ 23; see also Williams Decl. ¶ 9. 22 See also Williams Decl. ¶ 9; Cathey Decl. ¶ 13. 23 See also Williams Decl. ¶ 9; Cathey Decl. ¶ 14. 24 Williams Decl. ¶¶ 18, 27–28; see Cathey Decl. ¶ 43. 25 Williams Decl. ¶ 18.
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(worn throughout the day); the assistant uses only a surgical mask (also worn throughout the day) and gloves.26 When necessary, LRFP uses reusable gowns and eyewear.27
Patients denied abortion care face serious consequences, “including greater likelihood of living in poverty, staying in abusive relationships, and experiencing mental health issues”28 as well as “lifelong consequences for her educational attainment, her career, and her own economic well-being.”29 Some patients who cannot access abortion care immediately may seek to end their pregnancies outside the medical setting, which may lead to complications—and those complications may ultimately be life-threatening.30
C. LRFP’s Initial Response to COVID-19. On March 11, 2020, Governor Asa Hutchinson issued Executive Order 20-03, declaring a state of emergency in Arkansas due to the outbreak of the COVID-19 virus.31 Ten days later, on March 21, 2020, ADH issued a public statement (the “March 21 Guidance”) recommending that health care facilities and clinicians “prioritize urgent and emergency visits and procedures now and for the coming several weeks.”32 The letter’s stated goals were to “preserve staff, personal protective equipment (PPE), and patient care supplies; ensure staff and patient safety; and
26 Williams Decl. ¶ 18. 27 Williams Decl. ¶ 18. 28 Cathey Decl. ¶64. 29 Stuebe Decl. ¶ 28 (Dkt. 160-1). 30 Stuebe Decl. ¶ 29(f). 31 Executive Order to Declare an Emergency, As Authorized by Ark. Code Ann. § 12-75-114, and Order the Arkansas Department of Health to Take Action to Prevent the Spread of COVID19, as Authorized by Ark. Code. Ann. § 20-7-110, EO 20-03 (March 11, 2020), https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20-03.__1.pdf. 32 Dkt. 134-4.
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expand available hospital capacity during the COVID-19 pandemic.”33 The ADH stated that “[p]rocedures … that can be safely postponed shall be rescheduled to an appropriate future date.” The ADH’s guidance also provided specific exemptions for “small rural hospitals under 60 beds,” and clarified that procedures should proceed if there is risk of “progression of staging of a disease or condition if surgery is not performed.”34 The ADH reiterated this guidance in another letter issued on March 30, 2020.35
In the meantime, beginning in mid-March, LRFP began to implement measures to protect its patients and staff.36 LRFP determined that it would cease providing basic gynecological care—i.e., pap smears, STD testing, and contraceptive counseling and services—and that, where possible and permitted by law, prescriptions would be administered over the phone.37 LRFP also began performing enhanced telephonic and in-person screening of patients for COVID-19 symptoms, and staggering patient-appointment times to reduce the number of patients at the facility at any given time, minimizing possibilities for exposure.38
LRFP expanded on and formalized these precautions in its April 2, 2020 COVID-19 Response Protocol (the “LRFP Protocol”). That protocol sets forth detailed information about (1) postponement of LRFP services for which delay would not risk harm to the patient (i.e., certain gynecological care); (2) screening patients for symptoms of infection, both telephonically and on site; (3) staggering appointment times to minimize in-person contact and shorten the time
33 Id. 34 Id. 35 Dkt. 134-5. 36 Williams Decl. ¶ 25. 37 Williams Decl. ¶ 25. 38 Williams Decl. ¶ 25.
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patients spend in the clinic; (4) spacing individuals at least 6 feet apart in waiting areas to comply with the State’s and CDC’s “social distancing” guidelines; (5) limiting visitors and support people by requiring that they sit in cars or return home until patients are ready to be picked up; (6) performing temperature checks on all individuals entering the building (including staff); and (7) enhancing infection-control protocols with frequent clinic sanitization and patientetiquette education.39 Given these changes, no more than 6 to 8 patients are in LRFP’s waiting room at any given time, and once patients are checked in for care, they are in individual treatment rooms except for the time they spend in recovery, during which they are at least 6 feet apart.40
The LRFP Protocol also states that “LRFP is aware of the PPE shortage our healthcare system is currently facing,” and “is committed to using only the PPE that is necessary to protect [its] patients and staff.”41 LRFP is self-sustaining in terms of PPE for the next several months, and has not availed itself of any PPE offered by the State’s medical society.42 LRFP has no intention of using any state PPE stockpiles or resources, and is prepared to switch to cloth/reusable masks should it become necessary.43 Care at LRFP does not require the use of N95 masks, the PPE that appears to be in shortest supply in battling the COVID-19 pandemic.44 Likewise, because all LRFP’s procedures are performed in its own outpatient facility, LRFP is not using any hospital resources that may be needed for COVID-19 response—no hospital staff
39 Dkt. 134-6. 40 Williams Decl. ¶ 26. 41 Dkt. 134-6. 42 Williams Decl. ¶ 27. 43 Williams Decl. ¶ 27. 44 Williams Decl. ¶ 28.
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or supplies, no hospital beds (let alone ICU beds), and no ventilators.45 LRFP is strictly adhering to its Protocol.46
D. Further State Action Against LRFP And Its Patients. On April 3, 2020, the ADH issued a Directive reiterating the goals and instructions from the ADH’s March 21 Guidance (the “April 3 Directive”).47 The April 3 Directive, like the March 21 Guidance before it, was not intended to stop the provision of medical care in the State; rather, it again stated that “[p]rocedures . . . that can be safely postponed shall be rescheduled to a future date.”48 It further stated that “urgent” care and “care designated as an exception . . . will continue,” including situations in which “there is a risk of . . . progression of staging of a . . . condition if surgery is not performed.”49 On April 4, 2020, Governor Hutchinson issued Executive Order 20-13, declaring “the entire state an emergency disaster area,” and prohibiting “gatherings of more than ten (10) people in any confined indoor or outdoor space” “until further notice.”50 The Governor declined, however, to issue a stay-home order to all Arkansas residents, and continued to permit “gatherings of ten (10) or more people in . . . parks, trails, athletic fields and courts, parking lots, golf courses, and driving ranges where social distancing of at least six (6) feet can be easily
45 Williams Decl. ¶ 28. 46 Williams Decl. ¶ 29. 47 Dkt. 134-7. 48 Id. 49 Id. 50 Executive Order to Amend Executive Order 20-03 Regarding the Public Health Emergency Concerning COVID-19 for the Purpose of Imposing Further Restrictions to Prevent the Spread of COVID-19, EO 20-13, § 2(a) (Apr. 4, 2020), https://governor.arkansas.gov/images/ uploads/executiveOrders/EO_20-13._.pdf.
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maintained.”51 The Order also does “not apply to businesses, manufacturers, construction companies, places of worship, the Arkansas General Assembly, municipal or county governing bodies, or the judiciary,” though those entities were also advised to maintain appropriate socialdistancing practices.52 Finally, the Order stated that “pursuant to Ark. Code Ann. § 20-7-101, violation of a directive from the Secretary of Health during this public health emergency is a misdemeanor offense, and upon conviction thereof is punishable by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) or by imprisonment not exceeding one (1) month, or both.”53
Although Defendants repeatedly assured LRFP it was acting consistently with the April 3 Directive, ADH inspectors hand-delivered a cease-and-desist order (the “C&D Order”) to LRFP on the morning of April 10.54 The C&D Order asserted that LRFP was “in violation of the April 3, 2020 Arkansas Department of Health Directive on Elective Surgeries.”55 The C&D Order stated that the April 3 Directive “mandates the postponement of all procedures that are not immediately medically necessary during the COVID-19 emergency,” and thus, according to ADH, the “prohibition applies to surgical abortions that are not immediately necessary to protect the life or health of the patient.”56 The C&D Order ordered LRFP to “immediately cease and desist the performance of surgical abortions, except where immediately necessary to protect the
51 Id. § 2(b). 52 Id. § 2(c). 53 Id. § 13. 54 Dkt. 134-1. 55 Id. 56 Id.
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life or health of the patient.”57 The C&D Order also stated that “[a]ny further violations of the
April 3 Directive will result in an immediate suspension of [LRFP’s] license.”58 On April 10,
LRFP was scheduled to provide surgical-abortion care to 8 patients whom LRFP had to turn
away, including one patient at 17 weeks LMP.59
The Governor recently confirmed Arkansas’s abundance of available hospital beds and
health care workers,60 and Arkansas acknowledged in its Eighth Circuit filings “that it will have
sufficient medical equipment to weather the crisis.” Pet. 4. Arkansas has also relaxed
telemedicine rules for every medical treatment except abortion; consequently, the state-mandated
informed-consent process must still occur in-person 72 hours before any abortion procedure.61
E. Medical Experts Have Determined That Abortion Remains Critical, TimeSensitive Health Care That Should Not Be Delayed During the Pandemic.
Widely respected national medical organizations have concluded that abortion is a time-
sensitive, urgent form of health care that even the COVID-19 pandemic should not delay:
 ACOG, the American Board of Obstetrics & Gynecology, the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine issued a joint statement on “Abortion Access During the COVID-19 Outbreak” providing that “[t]o the extent … hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19
57 Id. 58 Id. 59 Williams Decl. ¶ 38. 60 Arkansas Gov. Asa Hutchinson on Why He Hasn’t Issued a Stay-at-Home Order, PBS (Apr. 8, 2020), https://www.pbs.org/newshour/show/arkansas-gov-asa-hutchinson-on-why-he-hasntissued-a-stay-at-home-order; see Veronica Stracqualursi, Arkansas Governor Defends No Stayat-Home Statewide Order as ‘Successful,’ CNN (Apr. 12, 2020) https://www.cnn.com/2020/04/12/politics/arkansas-governor-no-stay-at-home-ordercoronavirus-cnntv/index.html. 61 Dkt. 134-11.
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pandemic, abortion should not be categorized as such a procedure.”62 Abortion, these expert medical organizations concluded, “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”63
 The American Medical Association (“AMA”)—the country’s largest medical organization and one of its foremost authorities on medical and public-health matters— concurs. The AMA’s March 30, 2020 Statement on Government Interference in Reproductive Health Care disapproves of efforts “to ban or dramatically limit women’s reproductive health care” during the COVID-19 outbreak by “labeling procedures as ‘non-urgent.’”64
 On April 4, 2020, the World Health Organization (“WHO”) issued a similar statement concluding that “[a]bortion is considered an essential service during the coronavirus pandemic” and that “services related to reproductive health are considered to be part of essential services during the COVID-19 outbreak.”65
 The Ambulatory Surgery Center Association’s and the American College of Surgeons recommend that consideration of whether a surgery should appropriately be delayed during the pandemic must account for risk to the patient, “including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”66
At least 19 States and the District of Columbia have similarly concluded that abortion is
an essential aspect of women’s healthcare that should continue despite the challenges posed by
COVID-19.67 As one large group of States explained in an amicus brief, “because abortions
cannot readily be postponed for weeks or months, and also effectuate the constitutional right to
choose to terminate a pregnancy prior to fetal viability, abortions are on a different footing from
62 Dkt. 134-12. 63 Id. 64 Dkt. 134-13. 65 Dkt. 134-14. 66 Dkt. 134-15. 67 See Amicus Br. for New York et al. in Support of Respondents, In re Rutledge, No. 20-1791 (8th Cir.) [hereinafter “States Amicus Br.”]; Dkt. 134-16 (“The order provides that it shall not be interpreted in any way to limit access to family planning services, including termination of pregnancies.”).
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the types of medical services that can be considered ‘nonessential.’”68 F. The Eighth Circuit’s Decision.
Relying on Plaintiffs’ preliminary evidence, including the evidence cited above, this Court previously issued a TRO enjoining Arkansas from enforcing the C&D Order to bar surgical abortions. See Order 1. It also scheduled a preliminary-injunction hearing for April 24.
On the morning of April 22, the Eighth Circuit issued a writ of mandamus vacating the TRO. According to the Eighth Circuit, the C&D Order was valid because it had a “‘real or substantial relation’ to the public health crisis” and was not “‘beyond all question, a plain, palpable invasion’ of the right to abortion.” See In re Rutledge, 2020 WL 1933122, at *5 (8th Cir. Apr. 22, 2020) (quoting Jacobson, 197 U.S. at 31). In the Eighth Circuit’s view, the C&D Order “effectuate[d]” Arkansas’s “interest in conserving PPE resources and limiting social contact among patients, healthcare providers, and other staff,” and was a “legally valid response to the circumstances confronted by the Governor and the state health officials.” Id. The court of appeals believed that scrutinizing “the State’s policy determinations in how best to combat COVID-19” to determine whether banning surgical abortions actually conserved PPE and enhanced social distancing was inappropriate because it would allow courts to “usurp the functions of another branch of government.” Id. at *6. The Eighth Circuit instructed this Court to vacate its TRO, which this Court did. See Dkt. 154.
The Eighth Circuit did not specifically consider the propriety of injunctive relief for women who would otherwise be pushed past the legal limit for abortion in Arkansas. See Rutledge, 2020 WL 1933122, at *8. Even the Fifth Circuit—in an opinion heavily relied on by
68 States Amicus Br. 4.
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the Rutledge decision—allowed injunctive relief for women similarly situated in Texas. See In re Abbott, 800 F. App’x 293, at *2 (5th Cir. 2020).
G. Plaintiffs Seek Further Relief. On April 22—the same day that the Eighth Circuit issued its decision—Plaintiffs sought an ex parte TRO to allow women who would be pushed past the legal limit for abortion in Arkansas by the time the C&D Order was lifted. Along with their motion, Plaintiffs submitted evidence showing that a least six such women were already on LRFP’s schedule.69 Also on April 22, Governor Hutchinson and ADH’s Dr. Nathaniel Smith announced that ADH would release a new directive. During the press conference––and despite Defendants’ statement to this Court as recently as Tuesday, April 21 that a ban on surgical abortions is necessary in view of PPE-related “concern[s],” Dkt. 153––the Governor stated that Arkansas now feels “comfortable” with its PPE supply.70 And––again, contrary to Defendants’ statements that surgical abortion care must be banned in view of an urgent need to reduce social contacts, Dkt. 153––the Governor also announced that restaurants would be able to resume dine-in service on May 11.71 On April 23, Plaintiffs filed a status report, Dkt. 166, asking the Court to cancel the April 24 preliminary-injunction hearing. Plaintiffs explained that “Plaintiffs do not want to waste the time and resources of the Court, parties, or witnesses by taking live testimony at the evidentiary
69 Williams Third Supp. Decl. ¶ 6 (Dkt. 164-2). 70 See, e.g., John Moritz, State Cases at 2,276; Hospitals to Resume Elective Surgeries, Arkansas Democrat Gazette (Apr. 22, 2020), https://www.arkansasonline.com/news/2020/apr/22/watchlive-gov-state-health-officials-give-130-pm-/. 71 Gov. Asa Hutchinson, Press Release: Limited Dine-in Restaurant Service May Resume May 11, Governor Announces (Apr. 29, 2020), https://governor.arkansas.gov/news-media/pressreleases/limited-dine-in-restaurant-service-may-resume-may-11-governor-announces.
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hearing scheduled for” April 24 “that could be mooted with a matter of days by the new, April 27 Directive.” Dkt. 166, at 3. Plaintiffs expressly reserved their rights to pursue their pending requests for injunctive relief, including through an evidentiary hearing, and reiterated their request for “emergency relief with regard to the April 3 Directive for patients who will be pushed past the legal limit for abortion care in Arkansas.” Id.
After Defendants informally contacted the Court to acquiesce in Plaintiffs’ request to cancel the April 24 preliminary-injunction hearing, the Court canceled the hearing. See Dkt. 167, at 2. The Court also extended the Defendants’ time to respond to Plaintiffs’ April 22 motion for an ex parte TRO until April 27. Id.
H. Arkansas Issues the April 27 Directive. On April 27, Defendants opposed Plaintiffs’ motion for injunctive relief. Defendants argued that the Eighth Circuit had already rejected Plaintiffs’ arguments and that Plaintiffs’ request for an ex parte TRO was mooted by the April 27 Directive.72 The April 27 Directive supplements the April 3 Directive, and it allows individuals to obtain pre-viability, surgical abortion care only if they satisfy certain criteria. Although Plaintiffs can satisfy most of those criteria, the April 27 also imposes a requirement that is much more difficult to satisfy—namely, that a COVID-19 asymptomatic patient “must have at least one negative COVID-10 NAAT test within 48 hours prior to the beginning of the procedure.” 73 Under the current landscape of COVID-19 testing, a 48-hour turnaround for results is possible only with what is commonly referred to as “rapid” testing.74 Rapid testing is available
72 Dkt. No. 169, Ex. A. 73 Dkt. No. 169, Ex. A. 74 Stuebe Supp. Decl. ¶ 6 (Ex. 6 to this motion).
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through a limited number of biopharmaceutical companies (e.g., Abbot Laboratories and Mesa Biotech).75 The Arkansas Hospital Association has specifically questioned Arkansas’s ability to meet testing demand, noting “ongoing scarcity of test kits and other supplies.”76 An ADH
representative similarly acknowledged in a statement to the press that “[r]ight now, we don’t have the capacity to test everyone.”77 Indeed, there is a nationwide shortage of COVID-19 tests.78
I. Forcing Women To Continue Their Pregnancies During the Pandemic Is Harming Patients.
Every day that a woman remains pregnant against her will, she experiences the
significant emotional and physical consequences of continuing pregnancy. The physical
consequences include preeclampsia, gestational diabetes, high blood pressure, worsening autoimmune conditions, nausea, and vomiting.79 Emergency room visits occur for
approximately half of pregnant patients, with 23% visiting the emergency room twice or more due to complications and 49% doing so at least once.80 Even in uncomplicated pregnancies, frequent prenatal medical visits and testing is required.81 All entail frequent contact with
providers, and thus increased risk of contracting COVID-19.
75 Stuebe Supp. Decl. ¶ 6. 76 Associated Press, Group Casts Doubt on Arkansas Supplies as Virus Tests Spike, Texarkana Gazette (Apr. 25, 2020), https://www.texarkanagazette.com/news/arkansas/story/2020/apr/25/group-casts-doubt-arkansassupplies-virus-tests-spike/825412/. 77 Melissa Zygowicz, Getting Tested for Coronavirus in Arkansas: What You Need to Know, THV11 (Apr. 23, 2020), https://www.thv11.com/article/news/health/coronavirus/getting-testedfor-coronavirus-in-arkansas/91-67855eb9-4fb8-4308-8d92-1bc310c71b17. 78 Stuebe Supp. Decl. ¶ 14. 79 Cathey Decl. ¶¶ 18–20. 80 Stuebe Decl. ¶¶ 28–29. 81 Cathey Decl. ¶ 44.
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Continued pregnancy also requires regular appointments with ultrasounds and laboratory testing,82 which also require significant contacts with providers.83 Every pregnancy carries a 15 to 20 percent risk of miscarriage, which often occurs in the first trimester; in approximately half of miscarriages, medical attention, often at a hospital, is required.84 Additionally, pregnant patients who exhibit signs of COVID-19—many of which, such as shortness of breath, are common to pregnant women—are instructed to immediately seek care at an emergency room.85
If a woman is forced to give birth against her will, she will likely endure a considerable labor period; additionally, one-third of pregnancies result in caesarean section, a major abdominal surgery.86 Throughout labor, delivery, and recovery, patients use hospital beds and are in close contact with large numbers of people.87
Unwilling pregnancy also carries significant emotional consequences: She is at greater risk of suffering from anxiety and loss of self-esteem.88 Jane Doe 1 in particular is at significant risk for a recurrence of post-partum depression.89 Jane Doe 4 has been “so stressed out these last couple months,” is “physically and mentally exhausted,” and has “been crying every day because” she is being forced to carry her pregnancy against her will.90 Jane Does 1 and 3 are
82 Stuebe Decl. ¶ 29(b). 83 Cathey Decl. ¶ 44. 84 Cathey Decl. ¶ 23; Stuebe Decl. ¶ 29(b). 85 Cathey Decl. ¶¶ 46-47. 86 Cathey Decl. ¶¶ 50, 21. 87 Cathey Decl. ¶ 54. 88 Stuebe Decl. ¶ 27. 89 Doe 1 Decl. ¶ 12; Doe 3 Decl. ¶ 9. 90 Doe 4 Decl. ¶ 15.
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experiencing significant physical pain and discomfort in connection with their pregnancies.91 And a woman who is forced to carry her pregnancy to term against her will suffers “lifelong consequences for her education attainment, her career, and her own economic well-being.”92 Indeed, as Jane Doe 1 explains, she “do[es]n’t know what [she is] going to do if [she] cannot get an abortion”; she is not currently working because of the pandemic and has two other children to raise––they are “just barely getting by now as it is.”93 Jane Doe 4 echoes that if she “can’t get the care [she] need[s], [her] life and [her] family’s life will be irrevocably changed despite doing everything in [her] power to get the care [she] need[s].”94
J. Plaintiffs’ Patients’ Unsuccessful Efforts to Obtain Testing. Since the State’s announcement of the new Directive on April 24, LRFP’s clinic director has been working diligently to help Plaintiffs’ patients obtain COVID-19 tests.95 She has contacted over 15 different locations—including hospitals, urgent-care facilities, clinics, diagnostic centers, and private laboratories—in and around Little Rock, but has been unable to identify a location that is (i) willing to test asymptomatic patients, and (ii) able to reliably turnaround results within 48 hours.96 A majority of the locations contacted would not test asymptomatic patients at all, and others could not commit to turning around results within 48 hours.97
91 Doe 1 Decl. ¶ 14. 92 Stuebe Decl. ¶ 27. 93 Doe 1 Decl. ¶¶ 10, 11. 94 Doe 4 Decl. ¶ 15. 95 Williams Fourth Supp. Decl. ¶ 7 (Ex. 5 to this motion). 96 Williams Fourth Supp. Decl. ¶ 7. 97 Williams Fourth Supp. Decl. ¶ 7.
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Since the April 27 Directive became effective, LRFP has had to turn away 8 patients
scheduled to receive surgical abortion care due to their inability to receive a COVID-19 test
and/or obtain test results within 48 hours of the beginning of their procedure.98
Each individual woman identified above has tried unsuccessfully to obtain a test and/or
test results:
 Jane Doe 1 first tried to get tested in Louisiana, but it is only open on Tuesdays and Thursdays, and it had to stop testing early on Tuesday, April 28 because it ran out of tests.99 On April 29, she drove four hours to UAMS, but UAMS told her she was not eligible for a test because she had no COVID-19 symptoms and was not scheduled for surgery at UAMS.100 By the time she left UAMS, it was too late in the day to get a test at any other clinic in the Little Rock area.101 And April 29 was the last day for her to obtain a test 48 hours ahead of her May 1 appointment at LRFP.102
 On April 29, Jane Doe 3 tried to get tested at UAMS, but was told she did meet its testing requirements.103 Although she found a clinic in Little Rock that would test her, that clinic could not guarantee results within 48 hours—even though she would need results within 48 hours to be able to access any form of pre-viability abortion care in Arkansas.104
 On April 29, Jane Doe 4 drove ten hours round-trip to try to get a test at UAMS.105 UAMS refused to test her, saying that it would not test people who were asymptomatic unless they were having procedures done at UAMS.106 Doe 4 next went to another clinic, which agreed to test her for COVID-19 after initially refusing to do so.107 But it informed her that “there was virtually no chance [the
98 Williams Fourth Supp. Decl. ¶ 9. 99 Doe 1 Decl. ¶ 7. 100 Doe 1 Decl. ¶ 8. 101 Doe 1 Decl. ¶ 8. 102 Doe 1 Decl. ¶ 9. 103 Doe 3 Decl. ¶ 6. 104 Doe 3 Decl. ¶¶ 6, 9. 105 Doe 4 Decl. ¶ 12. 106 Doe 4 Decl. ¶ 12. 107 Doe 4 Decl. ¶ 13.
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results] would be back within 48 hours” because they “usually take[] five to seven days.”108 Other LRFP patients have similarly been unable to satisfy the April 27 Directive’s testing requirement. For example, Jane Doe 2 was able to secure a COVID-19 test on April 26, but she has yet to receive the results of that test.109 As a result, she had to cancel her April 28 appointment at LRFP and reschedule it for April 30.110 She was again tested for COVID-19 on April 28, but she similarly has not received the results of that test.111 She accordingly had to cancel her April 30 appointment at LRFP, too.112 LRFP has numerous other women on its schedule who are approaching the 21.6-weeks-LMP legal limit for abortion care in the State.113 K. Arkansas’s Plans to Lift Restrictions on Other Businesses. The State’s promulgation of a testing requirement for people seeking pre-viability, surgical abortions is inconsistent with its plan to open certain businesses without testing requirements. ADH announced on April 29 that restaurants could reopen for dine-in service on May 11.114 Restaurants are not limited to serving individuals who have tested negative for COVID-19, nor are they required to test their employees.115 Similarly, gyms, fitness centers,
108 Doe 4 Decl. ¶ 14. 109 Doe 2 Decl. ¶ 4. 110 Doe 2 Decl. ¶ 5. 111 Doe 2 Decl. ¶ 6. 112 Doe 2 Decl. ¶ 6. 113 Williams Fourth Supp. Decl. ¶ 10. 114 Ark. Dep’t of Health, Directive on Resuming Restaurant Dine-in Operations (Apr. 29, 2020), https://www.healthy.arkansas.gov/images/uploads/pdf/Resume_Restaurant_Dine_In_May_11_di rective_FINAL.pdf. 115 Ark. Dep’t of Health, Directive on Resuming Restaurant Dine-in Operations (Apr. 29, 2020), https://www.healthy.arkansas.gov/images/uploads/pdf/Resume_Restaurant_Dine_In_May_11_di rective_FINAL.pdf.
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athletic clubs, and weight rooms are allowed to reopen May 4, and there is no expectation that staff or patrons be tested.116 Indeed, there is no general expectation that asymptomatic individuals will be tested anywhere outside the context of the April 27 Directive. According to Governor Hutchinson, the number of individuals tested “depends upon who is symptomatic out there and whether they feel the need to be tested.” 117
In contrast, the April 27 Directive has no apparent expiration date. The Directive was issued under ADH’s general authority, outlined in Arkansas Code Sections 20-7-109 and -110. Although Defendants may argue that the April 27 Directive is time-limited because Arkansas limits the duration of states of emergency in Arkansas Code Section 12-75-107, nothing in Sections 20-7-109 or -110 references Section 12-75-107 or mentions emergencies at all. Rather, Arkansas Code Sections 20-7-109 and 20-7-110 simply “confer[] on the State Board of Health” the power “to make all necessary and reasonable rules of a general nature” on several specific topics. Ark. Code § 20-7-109.
L. The April 27 Directive Leaves Women with No Good Options. The April 27 Directive exacerbates the already-significant obstacles that women seeking abortion care in Arkansas face. Its testing requirement necessarily requires her to delay her care by at least two days, even in the best case scenario. See supra p.15. Delaying abortion care across the board for a COVID-19 test is especially unwarranted in
116 Ark. Dep’t of Health, Directive for Gym, Fitness Center, Athletic Club, and Weight Room Reopening (Apr. 30, 2020), https://www.healthy.arkansas.gov/images/uploads/pdf/GymFitnessCenterResumeDraft4.29.20.p df. 117 See Governor of Arkansas Asa Hutchinson Press Conference, YouTube (Apr. 23, 2020), https://www.youtube.com/watch?v=q334YKr9h3M; Haleigh Schmidt, Gov. Announces Plans to Reopen State Parks, 5 News (Apr. 28, 2020), https://www.5newsonline.com/article/news/community/gov-announces-plans-to-reopen-stateparks/527-2f98623d-d16a-440b-b5fe-986de52c2f1c.
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view of Arkansas’s otherwise permissive approach to letting individuals mix and mingle in restaurants and gyms without negative COVID tests, see supra pp.20–21, and because the tests are often ineffective.118 Several reports have called into question the accuracy of COVID-19 rapid tests.119 Clinical pathologists and lab scientists at the Cleveland Clinic, for example, said a common rapid testing system, developed by Abbott Laboratories, produce high levels of false negatives.120 The Cleveland Clinic study found that the rapid testing system produced a falsenegative rate of 14.8 percent.121
The Directive’s rapid-testing requirement not only is a substantial barrier to pre-viability abortion care in itself, but also compounds pre-existing barriers to such care in Arkansas. Arkansas has yet to waive or transition to telemedicine the requirement that women seeking abortion care receive State-mandated informed-consent information in-person at LRFP at least 72 hours before their procedure.122 When the April 27 Directive is combined with the in-person 72-hour consent requirement, a woman seeking an abortion must therefore visit both LRFP and a rapid-testing site at specific intervals before the procedure––LRFP to receive the State-mandated informed-consent information (72 hours before the procedure), and testing site for the rapid test (within 48 hours of the procedure).123 This two-visit pre-procedure requirement is unique to the
118 Stuebe Supp. Decl. ¶ 13. 119 Stuebe Supp. Decl. ¶ 13. 120 Stuebe Supp. Decl. ¶ 13. 121 Stuebe Supp. Decl. ¶ 13; Study Raises Questions About False Negatives From Quick COVID19 Test, NPR (Apr. 21, 2020), https://www.npr.org/sections/healthshots/2020/04/21/838794281/study-raises-questions-about-false-negatives-from-quick-covid-19test. 122 Stuebe Supp. Decl. ¶ 16. 123 Stuebe Supp. Decl. ¶ 16.
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surgical abortion context and very challenging from a resource and logistics perspective.124 In contrast to many other “elective” procedures, surgical abortion care is available in Arkansas only at LRFP in Little Rock, a nearly 400-mile roundtrip drive from other areas of the State.125 Because many of LRFP’s patients are low income or in poverty, they struggle to overcome the logistical and economic barriers to care in the absence of the new Directive.126 The new Directive only amplifies those barriers, and it does so when LRFP’s patients are already uncommonly stressed and strapped for financial resources given the current pandemic.
Patients’ lived experiences confirm the immediacy of these concerns. As Jane Doe 1 explains, she cannot provide for her two existing children if she has another child; she has lost her job and her apartment is in her boyfriend’s name.127 If they break up, she will not be able to afford an apartment and raise three children alone.128 She also suffered from post-partum depression after the birth of her second child; if she were forced to carry another pregnancy to term, she worries her mental health would suffer and she would not be able to find another job or take care of her two children.129
Jane Doe 3’s story is similar: She has lost her job because of the current pandemic, and is already caring for her 2-year-old daughter and 11-year-old brother.130 She has experienced significant health problems during her pregnancy, and it has limited her ability to pursue a new
124 Williams Fourth Supp. Decl. ¶ 10. 125 Stuebe Supp. Decl. ¶ 16. 126 Stuebe Supp. Decl. ¶ 16. 127 Doe 1 Decl. ¶ 11. 128 Doe 1 Decl. ¶ 11. 129 Doe 1 Decl. ¶¶ 12, 14. 130 Doe 3 Decl. ¶ 5.
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job.131 She does not know how she will manage to care for an additional child if she is forced to carry her pregnancy to term against her will.132
Jane Doe 4 was likewise “spread far too thin—both emotionally and financially”—even before she found out she was pregnant.133 She has two children under six; the older child has autism and needs a lot of attention from her.134 Her other child is a toddler.135 If she had another child, she “simply do[es]n’t know how [she] would tend to all their needs.”136 The current pandemic has also endangered her family financially.137 Her work has been severely scaled back to the point that she is working only about 10 hours per week.138 Even if a full-time job became available to her again, she does not think she could take it because she has no one to watch her children while schools and daycares are shut down.139 She is “distraught” by her inability to obtain abortion care; without it, her “life and [her] family’s life will be irrevocably changed.”140
Women who will be pushed past the legal limit for abortion in Arkansas before they can comply with the April 27 Directive have no good options: The next-nearest clinic providing surgical abortions beyond 21.6 weeks LMP is in Granite City, Illinois, which is a more-than-700mile roundtrip drive from Little Rock and is in a State with a far higher incidence of COVID-19.
131 Doe 3 Decl. ¶ 9. 132 Doe 3 Decl. ¶ 10. 133 Doe 4 Decl. ¶ 3. 134 Doe 4 Decl. ¶ 3. 135 Doe 4 Decl. ¶ 3. 136 Doe 4 Decl. ¶ 3. 137 Doe 4 Decl. ¶ 5. 138 Doe 4 Decl. ¶ 5. 139 Doe 4 Decl. ¶ 5. 140 Doe 4 Decl. ¶ 15.
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(Illinois has reported 52,918 confirmed cases of COVID-19 and 2,355 deaths,141 whereas Arkansas has 3,255 reported cases and 49 deaths.142) And there is no guarantee that the clinic in Granite City will have the capacity to treat additional women.
Moreover, many of LFRP’s patients will not be able to make the trip at all. For example, Jane Doe 1 has already spent between $200 and $300 in gas and medical expenses trying to obtain abortion care in Arkansas; she does not have the money necessary to travel to Illinois, stay in a hotel, and pay someone to watch her children.143 Jane Doe 2 similarly cannot afford to travel to Illinois or another state to get abortion care because she does not have reliable transportation, overnight child care for her three children, or money to travel.144 She also worries that if she takes additional time off to pursue abortion care, she could lose her job.145
Women who cannot afford to travel outside Arkansas to obtain abortion care will be forced to carry to term against their will or seek to terminate their pregnancy outside the medical system.146 And those who pursue self-managed abortions may cause “infections in the uterus which can lead to further complications and may ultimately be life-threatening.”147 Indeed, the ADH’s Directives will indisputably preclude the women specifically identified in this motion
141 See Ill. Dep’t of Pub. Health, Coronavirus Disease 2019 (COVID-19), https://www.dph. illinois.gov/covid19 (visited Apr. 30, 2020). 142 See Ark. Dep’t of Health, COVID-19, https://www.healthy.arkansas.gov/programsservices/topics/novel-coronavirus (visited Apr. 30, 2020); Ark. Dep’t of Health, Number of COVID-19 Associated Deaths by County of Residence (Apr. 26, 2020), https://www.healthy.arkansas.gov/images/uploads/Death_Map_By_County_20200426_1000.png
.
143 Doe 1 Decl. ¶ 13. 144 Doe 2 Decl. ¶ 13. 145 Doe 2 Decl. ¶ 11. 146 Williams Decl. ¶¶ 46–48; Cathey Decl. ¶¶ 63, 67. 147 Stuebe Decl. ¶ 29(e).
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from securing any pre-viability abortion care in Arkansas, unless this Court immediately intervenes.
ARGUMENT Plaintiffs seek a preliminary injunction to prevent Defendants from enforcing the April 3 and 27 Directives as applied to Does 1, 3, and 4, and any other woman seeking surgical abortion care who has attempted but been unable to access a COVID-19 NAAT test and result within the mandated 48-hour window who would be beyond the legal limit for abortion care (21.6 weeks LMP) by the date that Directive is lifted. Without immediate relief, all these women will suffer imminent and irreparable injury because they will be denied all access to pre-viability abortion care in Arkansas that is guaranteed by the Constitution and that is necessary to prevent serious harm. As explained more below, the four factors that this Court considers in deciding whether to grant preliminary injunctive relief all tip heavily in Plaintiffs’ favor: the (1) probability that the movant will succeed on the merits; (2) threat of irreparable harm to the movant; (3) balance of equities; and (4) public interest. See Grasso Enters., LLC v. Express Scripts, Inc., 809 F.3d 1033, 1036 n.2 (8th Cir. 2016). Plaintiffs are likely to succeed on the merits of their claim that the Directive, as applied to the group of women identified above, directly contravenes decades of binding Supreme Court precedent and is unjustified by the current crisis. The Directive is an outright ban on previability abortion for these women, and it imposes extreme burdens on them with no countervailing benefits. See, e.g., Edwards v. Beck, 786 F.3d 113, 1117 (8th Cir. 2015) (explaining that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”); Little Rock Family Planning Services v. Rutledge, 397 F. Supp. 3d. 1213, 1322 (E.D. Ark. 2019) (preliminarily enjoining prohibition on pre-
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viability abortions). Moreover, the balance of hardships weighs decisively in Plaintiffs’ favor, and the public interest would be served by blocking the enforcement of the unconstitutional and harmful Directive. This Court should grant Plaintiffs’ request for injunctive relief.
I. PLAINTIFFS WILL SUCCEED ON THE MERITS OF THEIR SUBSTANTIVE DUE PROCESS CLAIM. For women who cannot obtain access to COVID-19 NAAT testing within 48-hours of
their procedures, the Directive entirely bars them from exercising their constitutional right to receive pre-viability abortion care in Arkansas. That renders it flatly unconstitutional under almost half a century’s worth of binding precedent. See, e.g., Roe v. Wade, 410 U.S. 113, 163– 65 (1973); Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 846 (1992) (plurality op.) (reaffirming Roe’s “central principle” that “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion”); Edwards v. Beck, 786 F.3d 1113, 1117 (8th Cir. 2015) (“a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability”). And that constitutional harm alone is reason enough for this Court to conclude that Plaintiffs are likely to succeed on the merits of their challenge.
Even applying the undue-burden standard, Plaintiffs are likely to succeed because the burdens of the Directive far outweigh its purported benefits. Under the undue-burden test, a regulation of abortion that “has the effect of placing a substantial obstacle in the path of a woman’s choice” even “while furthering [a] valid state interest,” “cannot be considered a permissible means of serving its legitimate ends.” Whole Woman’s Health, 136 S. Ct. at 2309 (alteration in original) (quoting Casey, 505 U.S. at 877). The test “requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Id. at 2298. As detailed below, nothing about the pandemic justifies denying women access to previability abortion care, and the burdens of doing so are extreme.
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A. The Directive Imposes Extreme Burdens on Women Seeking Pre-Viability Abortion Care.
As mentioned above, women face significant barriers to accessing COVID-19 NAAT testing and results within 48 hours of their procedures. Such a quick turnaround for results is only possible through rapid testing, which is available via a limited number of providers.148 Although Plaintiffs have tried to identify additional, reliable access to rapid testing for their patients, they have been unable to do so.149 And even if they are tested, the experience of Jane Does 2, 3, and 4 shows there is no guarantee women will obtain results within the 48-hour period necessary for them to have access to abortion care. See supra pp.19–20. Consequently, the Directives deny many women—including the women specifically identified above—any access to pre-viability abortion care in Arkansas, in direct contravention of the Constitution.
The burdens associated with that denial are significant. The women who will be pushed past the legal limit for abortion in Arkansas before they can comply with the April 27 Directive will be forced to carry their pregnancies to term—with all the increased risks that entails, especially during a pandemic, see supra pp.16–18. Even now, Jane Does 1 and 3 are experiencing significant physical pain and discomfort in connection with their pregnancies.150 If they are unable to access abortion care immediately, Jane Does 1, 3, and 4 will need prenatal care, be at increased risk of miscarriage and complications, and then face the physically demanding events of childbirth and delivery. See supra pp.16–17. And they will receive that care regardless that whether or not they have COVID-19 or have been tested for COVID-19.
148 Stuebe Suppl. Decl. ¶ 6. 149 Stuebe Suppl. Decl. ¶ 9. 150 Doe 1 Decl. ¶ 14.
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Being forced to remain pregnant against their wills also subjects Jane Does 1, 3, and 4 to considerable emotional harm, including anxiety and loss of self-esteem.151 Jane Doe 1 in particular is at significant risk for a recurrence of post-partum depression.152 She “do[es]n’t know what [she is] going to do if [she] cannot get an abortion”; she is not currently working because of the pandemic and has two other children to raise––they are “just barely getting by now as it is.”153 Jane Doe 4 echoes that if she “can’t get the care [she] need[s], [her] life and [her] family’s life will be irrevocably changed despite doing everything in [her] power to get the care [she] need[s].”154 And Jane Doe 4 reports that she has been “so stressed out these last couple months,” is “physically and mentally exhausted,” and has “been crying every day because” she is being forced to carry her pregnancy against her will.155 Jane Doe 3 similarly says that being forced to remain pregnant against her will has caused her significant “stress” and “worry[] about supporting [her] family,” and that the experience “has been a major financial and emotional burden on” her.156
Although these women could to try to terminate their pregnancies outside the medical system, that entails significant increased risks, too.157 And while some women may seek an abortion outside of Arkansas, the closest option for care beyond 16.6 weeks LMP is in Granite City, Illinois, a 700-mile round-trip to a clinic that might not even have capacity to see the
151 Stuebe Decl. ¶ 27. 152 Doe 1 Decl. ¶ 12; Doe 3 Decl. ¶ 9. 153 Doe 1 Decl. ¶¶ 10, 11. 154 Doe 4 Decl. ¶ 15. 155 Doe 4 Decl. ¶ 15. 156 Doe 2 Decl. ¶¶ 8, 9. 157 Stuebe Decl. ¶ 29(f).
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patient.158 Moreover, many women (including Jane Does 1 and 2) cannot afford to travel there. See supra p.25. And as this Court previously noted, Order 15–16, a state may not justify abortion restrictions by pointing to out-of-state options. See, e.g., Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350 (1938) (holding that “the burden” of a State’s “obligation” to protect citizens’ constitutional rights” can be performed only where its laws operate, that is, within its own jurisdiction . . . the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do”); Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 457 (5th Cir. 2014) (“[A] state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights,” including abortion rights).
B. The Directive Has Few, If Any, Benefits. The April 27 Directive’s testing requirement—the only part of that Directive Plaintiffs cannot satisfy—has few, if any, benefits. To begin, there is certainly no material benefit to requiring the three individuals (Jane Does 1, 3, and 4) to comply with the April 27 Directive’s testing requirement before they can obtain abortion care. They are all asymptomatic, and they have been taking precautions against contracting COVID-19. See supra p.30. Nor does the Directive more generally serve the two interests Arkansas identified in opposing Plaintiffs’ prior TRO motion: conserving PPE and preventing the spread of COVID-19 in Arkansas. Opp. 13. As to PPE, LRFP has all the PPE it needs and has no plans to use State PPE resources.159 Order 14. Moreover, providing abortion care to someone who has a negative COVID-19 test requires just as much PPE as seeing an asymptomatic patient who hasn’t been
158 Stuebe Decl. ¶ 29(d). 159 Williams Decl. ¶ 27.
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able to secure a test. Indeed, conditioning a patient’s abortion on obtaining a negative test requires the use of more PPE: As the Jane Does’ lived experiences illustrate, attempting to secure the necessary results within 48 hours of a procedure requires patients to secure at least one, and sometimes more, actual tests, see supra pp.19–20—all of which require PPE to administer. And forcing a woman to continue her pregnancy will require the use of far more PPE for routine prenatal care, care for complications, and ultimately labor and delivery. See supra pp.16–17. By contrast, surgical abortions are performed in outpatient facilities and do not require use of ventilators or hospital beds, and hospitalizations resulting from abortion-related complications are extremely rare—much rarer than hospital visits from complications of pregnancy.160 In addition, Arkansas has repeatedly confirmed that it has a wealth of PPE: the Governor recently acknowledged Arkansas’ abundance of available hospital beds and health care workers,161 and Defendants similarly acknowledged in its Eighth Circuit filings “that it will have sufficient medical equipment to weather the crisis,” Pet. 4.
The April 27 Directive’s testing requirement, especially as applied to Jane Does 1, 3, and 4, does not further the State’s interest in preventing the spread of COVID-19 either. Again, none of the Jane Does have any COVID-19 symptoms, and all are taking precautions to protect against transmission.162 Further, by forcing women to seek tests in place after place (as Jane Does 3 and 4 did, see supra pp.19–20), the testing requirement reduces social distancing and increases the
160 Stuebe Decl. ¶ 26. 161 Arkansas Gov. Asa Hutchinson on Why He Hasn’t Issued a Stay-at-Home Order, PBS (Apr. 8, 2020), https://www.pbs.org/newshour/show/arkansas-gov-asa-hutchinson-on-why-he-hasntissued-a-stay-at-home-order; see Veronica Stracqualursi, Arkansas Governor Defends No Stayat-Home Statewide Order as ‘Successful,’ CNN (Apr. 12, 2020) https://www.cnn.com/2020/04/12/politics/arkansas-governor-no-stay-at-home-ordercoronavirus-cnntv/index.html. 162 Doe 1 Decl. ¶ 2; Doe 2 Decl. ¶ 7; Doe 3 Decl. ¶ 3; Doe 4 Decl. ¶ 11.
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likelihood of spreading the virus. Forcing women to pursue testing at a number of sites is especially unwarranted given that the rapid COVID-19 testing required by the April 27 Directive is of only limited accuracy. See supra p.22.
Moreover, LRFP already practices social distancing in accordance with Arkansas’s and the CDC’s recommendations.163 Order 9. Although patients will briefly come in close contact with the LRFP clinicians who are providing medical care, health care providers are trained on how to properly wash their hands, safely perform surgeries, and wear masks correctly.164 And because individuals in Arkansas are otherwise permitted to mingle and touch surfaces at places like restaurants and gyms (not to mention receive treatment from a dentist for a cracked tooth)–– all without advance COVID screening––the April 27 Directive’s bar on surgical abortion care is all but certain to not improve or protect public health.
Because the April 27 Directive does not serve Arkansas’s interests, it necessarily cannot outweigh the burdens on patients’ constitutional rights. Cf. Chandler v. Miller, 520 U.S. 305, 319, 323 (1997) (holding unconstitutional Georgia law requiring candidates for political office to take a urinalysis drug test because, while it was “relatively noninvasive,” it did not advance any state interests); Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966) (invalidating de minimis poll tax, notwithstanding States’ wide latitude to regulate the electoral process, because it conferred no legitimate benefit); SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686, 695 (D.C. Cir. 2010) (en banc) (holding law unconstitutional because “the First Amendment cannot
163 Williams Decl. ¶ 26 (Dkt. 134-2). 164 Stuebe Decl. ¶ 26.
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be encroached upon for naught” and “something . . . outweighs nothing every time” (alteration in original)).
* * * * * * The burdens on the women who would be pushed past the point of viability before they can comply with the Directives undoubtedly outweigh the nominal benefits of that Directive to the State, and Plaintiffs have established that they are likely to succeed on the merits of their claim that the Directive violates the substantive due process rights of their patients. See Casey, 505 U.S. at 878 (“Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”); see also Whole Woman’s Health, 136 S. Ct. at 2309.
C. Even Under Jacobson v. Massachusetts, Immediate Injunctive Relief Is Required.
Arkansas may argue that this case is resolved by the Eighth Circuit’s mandamus opinion. It is not. The Eighth Circuit addressed only whether the April 3 Directive was facially unconstitutional as applied to all patients, and it specifically left open the possibility that that injunctive relief would be proper for patients who would otherwise be pushed past the legal limit for abortion in Arkansas. See Rutledge, 2020 WL 1933122, at *8. And even the Fifth Circuit— in an opinion heavily relied on by the Rutledge decision, see id. at *3, 5, 7—upheld injunctive relief for patients similarly situated in Texas. See Abbott, 800 F. App’x 293, at *2. Indeed, no court has allowed an executive order issued during the COVID-19 crisis to be enforced against patients who would lose their right to legal abortion in the state. See Adams & Boyle, P.C. v. Slatery, 2020 WL 1982210 (6th Cir. Apr. 24, 2020); Robinson v. Attorney General, 2020 WL 1952370 (11th Cir. Apr. 23, 2020); Preterm-Cleveland v. Attorney General of Ohio, 2020 WL
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1957173 (S.D. Ohio Apr. 23, 2020); S. Wind Women’s Ctr. LLC v. Stitt, 2020 WL 1932900 (W.D. Okla. Apr. 20, 2020).
To the extent Arkansas argues that Jacobson v. Massachusetts, 197 U.S. 11 (1905), compels a different result, see Opp. 11, it is wrong. Jacobson is best read for the unremarkable proposition that states may pass measures to “safeguard the public health and the public safety.” 197 U.S. at 25. The Supreme Court issued Jacobson the same year as Lochner v. New York, 198 U.S. 45 (1905), at a time when courts were called on to address whether particular enactments were “within the police power of the state.” Id. at 57. Jacobson thus reaffirmed a proposition courts today take for granted: if a state law has a “real, substantial relation” to public health or safety, “courts will not strike it down upon grounds merely of public policy or expediency.” Cal. Reduction Co. v. Sanitary Reduction Works of S.F., 199 U.S. 306, 318–19 (1905) (citing Jacobson).
At the same time, Jacobson made clear that a state’s police powers—even during an epidemic—are subject “to the condition that no rule prescribed by a state . . . shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument.” 197 U.S. at 25. To be sure, Jacobson observed that the “liberty secured by the Constitution of the United States . . . does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Id. at 26. But even then, Jacobson “balanced an individual’s liberty interest in declining an unwanted smallpox vaccine against the State’s interest in preventing disease,” Cruzan by Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990), the same as courts do today for all forced or non-consensual medical treatments. Id.
The Supreme Court’s abortion jurisprudence already accounts for the need to balance State interests against a woman’s right to abortion, just as Jacobson instructs. In fact, Roe
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expressly cited Jacobson when recognizing that the right to abortion “must be considered against important state interests in regulation.” Roe v. Wade, 410 U.S. 113, 154 (1973). The Court then performed the required balancing and concluded, categorically, that a “State’s interest in the protection of life falls short of justifying any plenary override of individual liberty claims.” Casey, 505 U.S. at 858 (citing Roe and Jacobson). Likewise, the Court has held that “a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice” must fail. Id. at 877.
That is not to say that the State’s interest in combatting an epidemic is irrelevant. Rather, it is accounted for in the undue-burden test, which “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Whole Woman’s Health, 136 S. Ct. at 2310. In considering the “benefits” of state law, a court might appropriately consider the emergency nature of a regulation, or whether the “burden imposed on abortion access is ‘undue.’” Id. And, as explained above, the Directive fails this balancing test because its burdens are extreme, while its benefits are non-existent.
In any event, Plaintiffs prevail under Jacobson. This Court previously applied Jacobson and found—correctly—that Plaintiffs prevailed because the State’s earlier ban flunked each of Jacobson’s three prongs. See Order 16–17. Although the Eighth Circuit faulted the Court for not performing a more extensive Jacobson analysis in its Order, see Rutledge, 2020 WL 1933122, at *5, it did not consider whether Jacobson could ever justify a State’s complete denial of pre-viability abortion care, as application of the April 27 Directive to the identified LRFP patients would do. And the evidence shows that, as applied to those women, the April 27 Directive is beyond question a violation of the constitutional right to access pre-viability abortion
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care; it is not justified by the necessities of the case; nor does it bear a substantial relation to Arkansas’ purported public-health interests in implementing it. See supra Part I.A–B.
This evidence controls, not “[u]ncritical deference to” state officials’ “factual findings.” Whole Woman’s Health, 136 S. Ct. at 2310. Even Jacobson upheld a smallpox-vaccination requirement only upon observing that “[t]he matured opinions of medical men everywhere” agreed the vaccine was safe. 197 U.S. at 37; see id. at 28 (courts are “compel[led] . . . to interfere for the protection of [] persons” where state officers, “under the guise of exerting a police power, . . . violated rights secured by the Constitution”). Here, expert opinion shows that the Directive is unsafe for women and counterproductive in the fight against COVID-19.165 Indeed, Dr. Stuebe expressly confirms that, especially during a pandemic, abortions are “essential” health care “because a delay in abortion care imposes a number of risks and burdens on patients”—which they may be less able to remedy during pandemic conditions—“without any benefit to public health.”166
Moreover, the April 27 Directive—beyond question—violates the constitutional rights of Arkansas women who would be pushed past the legal limit for abortion care in Arkansas before that Directive is lifted. Even in the Fifth Circuit’s view, which heavily influenced the Eighth Circuit’s opinion, Jacobson must be applied in conjunction with the standard that governs the right the State has infringed—which, in the context of abortion, is supplied by Casey and its progeny. In re Abbott, 954 F.3d 772, 786 (5th Cir. 2020) (faulting district court for failing to apply Jacobson and Casey together).
165 Stuebe Supp. Decl. ¶ 7. 166 Stuebe Decl. ¶ 31.
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II. PLAINTIFFS’ PATIENTS WILL SUFFER IRREPARABLE HARM IF THE BAN IS ENFORCED. Plaintiffs’ patients are suffering and will continue to suffer serious and irreparable harm
in the absence of a preliminary injunction. First, Defendants’ actions will entirely prevent the group of Arkansas women identified above from exercising their fundamental constitutional right to access pre-viability abortion care. “It is well-settled that the inability to exercise a constitutional right constitutes irreparable harm.” Hopkins v. Jegley, 267 F. Supp. 3d 1024, 1068 (E.D. Ark. 2017) (“Jegley II”); see also Planned Parenthood of Minn., Inc. v. Citizens for Cmty. Action, 558 F.2d 861, 867 (8th Cir. 1977) (Plaintiffs’ showing of interference “with the exercise of its constitutional rights and the rights of its patients supports a finding of irreparable injury”); M.B. v. Corsi, 2018 WL 5504178, at *5 (W.D. Mo. Oct. 29, 2018) (“A threat to a constitutional right is generally presumed to constitute irreparable harm.”); Hughbanks v. Dooley, 788 F. Supp. 2d 988, 998 (D.S.D. 2011) (“When an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” (quoting 11A Charles Alan Wright et al., Federal Practice & Procedure § 2948.1 (2d ed. 1995))); Am. Civil Liberties Union of Ky. v. McCreary Cty., 354 F.3d 438, 445 (6th Cir. 2003) (“[W]hen reviewing a motion for a preliminary injunction, if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.” (citing Elrod v. Burns, 427 U.S. 347, 373 (1976))).
Second, forcing patients to forgo abortion care and remain pregnant against their will inflicts serious physical, emotional, and psychological consequences that constitute irreparable harm.167 Some women will be forced to give birth; others may attempt to terminate their pregnancies outside the medical system. Some may travel across state lines, if they are even able
167 Williams Decl. ¶¶ 22, 41–45, 49. See also Dkt. 134-12 (stating that the “consequences of being unable to obtain an abortion profoundly impact a person’s life, health, and well-being”).
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to incur the additional expenses and increased likelihood of exposure to the virus that entails. See supra pp.24–25; see also, e.g., Planned Parenthood Sw. Ohio Region v. Hodges, 138 F. Supp. 3d 948, 960 (S.D. Ohio 2015) (finding irreparable harm where “patients could face a delay” in obtaining abortion care). As the Supreme Court has said, “the abortion decision is one that simply cannot be postponed.” Bellotti v. Baird, 443 U.S. 622, 643 (1979). That the State would inflict these irreparable harms on the LRFP patients identified above in the midst of a global pandemic, putting them at greater risk of contracting COVID-19, only underscores the need for injunctive relief. See Roe, 410 U.S. at 153 (“The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.”); Planned Parenthood of Kan. & Mid-Mo. v. Andersen, 882 F.3d 1205, 1236 (10th Cir. 2018) (explaining that the “disruption or denial of . . . patients’ health care cannot be undone after a trial on the merits”); Planned Parenthood of Ariz., Inc. v. Humble, 753 F.3d 905, 911 (9th Cir. 2014); Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 796 (7th Cir. 2013); Roe v. Crawford, 396 F. Supp. 2d 1041, 1044 (W.D. Mo. 2005) (holding delay in abortion is irreparable injury due to "medical, financial, and psychological risks” associated with it), stay of preliminary injunction denied, 546 U.S. 959 (2005). III. THE BALANCE OF HARMS AND PUBLIC INTEREST SUPPORT
INJUNCTIVE RELIEF. When considering the balance of harms, “[a]t base,” the question is “whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). Plaintiffs’ patients will suffer numerous irreparable harms without an injunction. If Plaintiffs’ request for injunctive relief is denied, patients will be “effectively forced against
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their will to remain pregnant until they give birth.” Planned Parenthood Minn., N. Dakota, S. Dakota v. Daugaard, 799 F. Supp. 2d 1048, 1077 (D.S.D. 2011).
On the other side of the scale, Defendants will realize no benefits from enforcing the April 27 Directive as to the LRFP patients who would be pushed past the legal limit for abortion care in Arkansas by the time that Directive is lifted. That is particularly true given that Plaintiffs are entirely self-sustaining in terms of PPE resources and have implemented strict socialdistancing practices and protocols that diminish the risk of infection at the clinic. See supra pp.7–9.
In this setting, injunctive relief is supported by the balance of harms and the public interest. “The Eighth Circuit has stated that ‘whether the grant of a preliminary injunction furthers the public interest . . . is largely dependent on the likelihood of success on the merits because the protection of constitutional rights is always in the public interest.’” Little Rock Family Planning Servs. v. Rutledge, 397 F. Supp. 3d 1213, 1322–23 (E.D. Ark. 2019) (citing Planned Parenthood Minn., N. Dakota, S. Dakota v. Rounds, 530 F.3d 724, 752 (8th Cir. 2008), appeal filed, No. 19-2690 (8th Cir.)). That is precisely the case here: The public has no interest in the enforcement of the unconstitutional Directive. See Planned Parenthood of Greater Iowa, Inc. v. Miller, 1 F. Supp. 2d 958, 964 (S.D. Iowa 1998) (public interest is served by enjoining unconstitutional statute because “[t]he protection of constitutional rights clearly outweighs any interest the State may have in promoting the interests of the fetus with a statute that is unconstitutional”); see also, e.g., Am. Civil Liberties Union Fund of Mich. v. Livingston Cty., 796 F.3d 636, 649 (6th Cir. 2015) (“[W]hen a constitutional violation is likely…the public interest militates in favor of injunctive relief because it is always in the public interest to prevent
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Case 4:19-cv-00449-KGB Document 174 Filed 05/01/20 Page 41 of 43 violation of a party’s constitutional rights.”). Accordingly, granting Plaintiffs’ request for injunctive relief serves the public interest.
CONCLUSION For these reasons, this Court should immediately grant Plaintiffs’ motion for an ex parte TRO as to the three women identified above, and then set TRO briefing and preliminaryinjunction proceedings for all women similarly situated, to enjoin Defendants and their officers, agents, servants, employees, and attorneys, and any persons in active concert or participation with them, from enforcing the April 3 and 27 Directives against women who would be pushed past the legal limit for abortion care in Arkansas before they can satisfy the Directive’s requirements.
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Dated: May 1, 2020

Respectfully submitted,
Leah Godesky* Christopher Burke* O’Melveny & Myers LLP Times Square Tower 7 Times Square New York, New York 10036 lgodesky@omm.com cburke@omm.com (212) 326-2254 Fax: (212) 326-2061
Kendall Turner* Ashley Robertson* Maya Zagayer* O’Melveny & Myers LLP 1625 Eye St. NW Washington, DC 20006 (202) 383-5300 kendallturner@omm.com arobertson@omm.com mzagayer@omm.com
Attorneys for Plaintiffs

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Meagan Burrows* Ruth E. Harlow* American Civil Liberties Union Foundation 125 Broad St, 18th Floor New York, NY 10001 mburrows@aclu.org rharlow@aclu.org (212) 549-2633
Attorneys for Plaintiffs
* Motion for admission pro hac vice granted

Bettina Brownstein (AR Bar No. 85019) Bettina E. Brownstein Law Firm 904 West 2nd Street, Suite 2 Little Rock, AR 72201 bettinabrownstein@gmail.com (501) 920-1764
Brooke-Augusta Ware (AR Bar No. 2004091) Mann & Kemp, PLLC 221 West Second Street, Suite 408 Little Rock, Arkansas 72201 brooke@mannkemp.com (501) 222-7330
On Behalf of the Arkansas Civil Liberties Union Foundation, Inc. Attorney for Plaintiffs

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