Planned Parenthood Arkansas & Eastern Oklahoma et al v. Jegley et al
Filing
114
TEMPORARY RESTRAINING ORDER granting 84 PPAEO and Dr. Ho's motion for temporary restraining order. This temporary restraining order shall expire by its own terms on Monday, 7/2/2018 at 5:00 p.m. Signed by Judge Kristine G. Baker on 6/18/2018. (thd)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PLANNED PARENTHOOD ARKANSAS
& EASTERN OKLAHOMA, d/b/a
PLANNED PARENTHOOD OF THE
HEARTLAND; and
STEPHANIE HO, M.D., on behalf of
themselves and their patients
v.
PLAINTIFFS
Case No. 4:15-cv-00784-KGB
LARRY JEGLEY, Prosecuting Attorney for
Pulaski County, in his official capacity, his
agents and successors; and MATT DURRETT,
Prosecuting Attorney for Washington County,
in his official capacity, his agents and
successors
DEFENDANTS
TEMPORARY RESTRAINING ORDER
Before the Court is the renewed motion for temporary restraining order filed by plaintiffs
Planned Parenthood of Arkansas & Eastern Oklahoma, d/b/a Planned Parenthood of the Heartland
(“PPAEO”) and Stephanie Ho, M.D., on behalf of themselves and their patients (Dkt. No. 84).
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 Section
1504(d) of the Abortion-Inducing Drugs Safety Act, 2015 Arkansas Acts 577 (2015) (“Section
1504(d),” “the Act,” or “the contracted physician requirement”), codified at Arkansas Code
Annotated § 20-16-1501 et seq. This Court has jurisdiction under 28 U.S.C. §§ 1331 and
1343(a)(3). Defendants Larry Jegley, prosecuting attorney for Pulaski County, in his official
capacity, his agents and successors, and Matt Durrett, prosecuting attorney for Washington
County, in his official capacity, his agents and successors, responded in opposition to the motion
(Dkt. No. 101). PPAEO and Dr. Ho submitted a rebuttal declaration of Colleen Heflin, Ph.D., in
reply (Dkt. No. 102).
I.
Procedural Background
The Court will first recount the procedural history of this case. Plaintiffs filed their
complaint on December 28, 2015 (Dkt. No. 1). On December 30, 2015, the Court held a hearing
on plaintiffs’ request for a temporary restraining order. The Court granted the request for a
temporary restraining order, but the Court stated that the order would expire on January 14, 2016,
unless the Court, for good cause, extended the order (Dkt. No. 22). The parties requested an
extension of the Order (Dkt. No. 24), which the Court granted, allowing the temporary restraining
order to remain in effect until 5:00 p.m. on March 14, 2016 (Dkt. No. 25). During that time, the
parties pursued some discovery while the temporary restraining order was in effect (Dkt. Nos. 32,
34, 38, 46, 53). The Court then conducted a hearing on plaintiffs’ motion for preliminary
injunction on March 2, 2016. The Court entered an Order granting plaintiffs’ request for a
preliminary injunction on March 14, 2016 (Dkt. No. 60).
On March 29, 2016, the Food and Drug Administration (“FDA”) updated the final printed
labeling (“FPL”) of the Mifeprex medication, which is used in medication abortions. As a result,
plaintiffs’ medication abortion regimen, which plaintiffs represent is used by a majority of abortion
providers across the county and is significantly safer and more effective than the regimen
previously required, now complies with the FDA labeling of Mifeprex. Therefore, plaintiffs
represent that their challenge to the FPL mandate in Section 1504(a) of the Act is now moot (Dkt.
No. 65, at 1-2).
Defendants filed a notice of appeal to the Eighth Circuit Court of Appeals on May 12,
2016, as to this Court’s Order (Dkt. No. 70). On June 27, 2016, the United States Supreme Court
issued its opinion in Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (“Hellerstedt”),
a case involving similar legal issues to those presented here. On July 28, 2017, with the benefit of
2
Hellerstedt, the Eighth Circuit issued an opinion vacating this Court’s preliminary injunction order
on the grounds that this Court was required to, and did not, “make a finding that the . . . contractphysician requirement is an undue burden for a large fraction of women seeking medication
abortions in Arkansas.” Planned Parenthood of Arkansas & Eastern Oklahoma v. Jegley, 864
F.3d 953, 959 (8th Cir. 2017). The Eighth Circuit therefore remanded this case back to this Court
to “conduct fact finding concerning the number of women unduly burdened by the contractphysician requirement and determine whether that number constitutes a ‘large fraction.’” Jegley,
865 F.3d at 960. The Eighth Circuit’s mandate was entered on May 31, 2018, at which point this
Court regained jurisdiction of the case (Dkt. No. 87).
Plaintiffs filed the present renewed motion for temporary restraining order seeking a
temporary restraining order from this Court preventing defendants from enforcing Section
1504(d). The Court conducted a hearing on plaintiffs’ renewed motion for temporary restraining
order on June 8, 2018. After that hearing, the Court requested additional briefing from the parties
on several issues, including: (1) whether the mandate rule requires this Court to re-open the record,
and if not, if the Court should do so; (2) which findings of fact this Court must make to satisfy the
Eighth Circuit’s mandate; and (3) whether any rule or precedent prevents this Court from
considering multiple requests for preliminary relief in a given case. 1 The parties submitted the
requested briefs on June 13, 2018 (Dkt. Nos. 110, 111).
1
The Court made this request after both plaintiffs and defendants submitted to the Court
additional evidentiary materials for consideration in resolving the pending renewed motion for
temporary restraining order (Dkt. Nos. 84, 101, 102) and after defendants argued that the Court is
prohibited from considering plaintiffs’ request for temporary relief “until after additional,
adversarial fact-finding.” (Dkt. No. 88, at 1).
3
Having carefully considered the record and briefings before it, for the following reasons,
the Court grants plaintiffs’ renewed motion for temporary restraining order (Dkt. No. 84).2
II.
The Mandate Rule
Based upon the briefings provided by the parties regarding the mandate rule and its
application to this case, the Court opts to consider the pending renewed motion for temporary
restraining order and reopen the record. The mandate rule generally requires a district court to
comply strictly with the mandate rendered by the reviewing court. See United States v. Bartsh, 69
F.3d 864, 866 (8th Cir. 1995). Similarly, under the “mandate rule,” while a district court is “bound
to follow the mandate, and the mandate ‘controls all matters within its scope, . . . a district court
on remand is free to pass upon any issue which was not expressly or impliedly disposed of on
appeal.’” Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 299 F. Supp. 2d 903, 914 (N.D. Iowa
2004) (citations omitted). The mandate rule provides that a district court is bound by any decree
issued by the appellate court and “is without power to do anything which is contrary to either the
letter or spirit of the mandate construed in light of the opinion.” Pearson v. Norris, 94 F.3d 406,
409 (8th Cir. 1996) (quoting Thornton v. Carter, 109 F.2d 316, 320 (8th Cir. 1940)).
Even when the mandate rule applies to an issue, courts have recognized exceptions that
allow a matter to be revisited. Those exceptions are “(1) the availability of new evidence, (2) an
intervening change of controlling law, or (3) the need to correct a clear error or prevent manifest
injustice.” Federated Rural Elec. Ins. Corp. v. Arkansas Elec. Cooperatives, Inc., 896 F. Supp.
2
If plaintiffs request a preliminary injunction, and there currently is no such request
pending before this Court, the Court anticipates setting a hearing and requesting that the parties
present testimony from witnesses who have submitted affidavits in this matter. The parties are
free to agree otherwise, but the Court’s preference after having carefully studied the current factual
record and legal authorities is to have witnesses, from both sides, present testimony at any
preliminary injunction hearing.
4
912, 914 (E.D. Ark. 1995) (citing Bethea v. Levi Strauss, 916 F.2d 453, 457 (8th Cir.1990); In re
Progressive Farmers Ass’n, 829 F.2d 651, 655 (8th Cir. 1987) (on remand lower court required to
follow appellate court decision unless new evidence introduced or decision is clearly erroneous
and works manifest injustice)). Further, in regard to the imposition of an injunction that is in the
first instance subject to the mandate rule, courts have determined that, under certain circumstances,
the mandate rule does not bar courts from consideration of the status of the injunction, given the
unique nature of injunctive relief and the equitable considerations that inform it. See Americans
United For Separation of Church & State v. Prison Fellowship Ministries, 555 F. Supp. 2d 988,
991 (S.D. Iowa 2008) (examining whether the mandate rule barred the lower court from dissolving
an injunction, the grant of which had been ordered or approved of by the appeal). “There is a
fundamental difference . . . between the granting of retrospective relief and the granting of
prospective relief.” Id. (quoting Amado v. Microsoft Corp., 517 F.3d 1353, 1360 (Fed. Cir. 2008)).
“Due to the equitable nature of injunctive relief, district courts have wide discretion to determine
under what circumstances the grant of injunctive relief is appropriate, and under what
circumstances the modification or dissolution of that injunction is warranted.” Id. (internal
citations omitted).
Neither party takes the position that this Court is foreclosed by the mandate from reopening
the record on remand. The Court first raised this procedural issue. Defendants now argue that the
Court should consider “the preliminary injunction proceedings” in this case “concluded.” (Dkt.
No. 111, at 2). However, as to the question of whether there is any procedural bar to a party filing
multiple requests for a temporary restraining order or preliminary injunction in a single case,
defendants concede that, even after issuance of a decision on a preliminary injunction, plaintiffs
may file a second request if they are able to state “new facts warranting reconsideration of the prior
5
decision.” (Dkt. No. 111, at 9 (quoting F.W. Kerr Chemical Co. v. Crandall Assoc., Inc., 815 F.2d
426, 428 (6th Cir. 1987)).
If the Court opts to consider the pending renewed motion for temporary restraining order,
defendants acknowledge that “[b]ecause the opinion is silent on this point, whether to re-open the
record on Plaintiff’s motion for preliminary injunction is a decision that rests with this Court.”
(Dkt. No. 111, at 3 (citing Walling v. Jacksonville Paper Co., 317 U.S. 564, 572 (1943)).
Defendants now urge the Court to exercise its discretion not to do so (Dkt. No. 111, at 3).
Several factors persuade this Court to do so, including but not limited to the following.
First, the last time this Court examined the facts of this dispute was on March 14, 2016 (Dkt. No.
60), over two years ago. Evaluating the propriety of any injunctive relief, but especially this type
of injunctive relief, depends on the facts and circumstances that exist at the time the relief is
requested. Hellerstedt, 136 S. Ct. at 2310 (“[T]he Court, when determining the constitutionality
of laws regulating abortion procedures, has placed considerable weight upon evidence and
argument presented in judicial proceedings.”); West Ala. Women’s Ctr. v. Miller, 299 F. Supp. 3d
1244, 1252 (M.D. Ala. 2017) (granting preliminary injunction and noting that “[t]he undue-burden
test requires courts to examine ‘the [challenged] regulation in its real-world context.’”) (quoting
Planned Parenthood Se. Inc. v. Strange, 9 F. Supp. 3d 1272, 1287 (M.D. Ala. 2014) (“Strange
II”)). Arkansas requires the collection of data regarding abortions performed in the state. Several
more years of data are now available for this Court’s review in resolving this dispute. The Court
is reluctant to foreclose consideration of that data and other facts that have developed and changed
during the two years since this Court last undertook its review. Second, several key factual
disputes have been reviewed and decided by the Supreme Court that bear directly on factual
disputes first presented to this Court in 2016. See generally Hellerstedt, 136 S. Ct. 2291. Third,
6
several legal issues have been clarified that bear directly on this Court’s legal analysis of the
dispute presented. Id. Fourth, many more district courts have examined these issues and permitted
parties to develop factual and legal arguments related to similar disputes in other states since this
Court last examined the merits. Both sides of this dispute should be permitted to present, not
foreclosed from presenting, similar factual and legal arguments to this Court, if they are inclined
to do so. For all of these reasons, the Court will consider the pending renewed motion for
temporary restraining order and, in doing so, consider the new factual materials presented for
consideration by plaintiffs and defendants.
III.
Findings Of Fact
The Court adopts by reference its findings of fact in its prior Order granting plaintiffs’
request for a preliminary injunction (Dkt. No. 60, at 3-18). See Fed. R. Civ. P. 10(c). The Court
also makes the following additional findings of fact. To the extent the findings of fact in this Order
contradict the findings of fact made in the Court’s prior Order, 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; the Court makes the findings of fact addressed in that context as
well. The Court has considered and weighed all of the evidence presented in the record at this
stage; the Court has resolved any disputes consistent with the statements in this Order.
1.
PPAEO or predecessor organizations have been providing health care services in
Arkansas for over 30 years and medication abortions since 2008 (Dkt. No. 84, Supp. Ho Decl., ¶
4).
2.
PPAEO does not offer surgical abortions at its Arkansas health centers and cannot
do so at this time. To provide surgical abortions, Dr. Ho represents that PPAEO would have either
to relocate to another medical office and/or undergo renovations at its current Arkansas health
7
centers, partly in order to comply with state regulations that apply to surgical abortion facilities
but not medication abortion facilities (Id., ¶ 7).
3.
To relocate its current Arkansas health centers, PPAEO would have to find a
landlord willing to rent office space to PPAEO, which is not easy due to the hostile climate faced
by abortion providers and those associated with them, according to Dr. Ho (Id.).
4.
To renovate its current Arkansas health centers, PPAEO would incur considerable
expense which Dr. Ho represents PPAEO cannot afford at this time (Id.).
5.
In the calendar year 2017, PPAEO’s physicians performed 843 medication
abortions in Arkansas, 653 of which were at PPAEO’s health center in Fayetteville, Arkansas (Id.,
¶ 6).
6.
PPAEO now provides medication abortions to patients through 70 days last
menstrual period (“LMP”) (Id., ¶ 10).
7.
PPAEO now employs two other physicians besides Dr. Ho (Id., ¶ 11).
8.
Currently, rather than staffing the 24-hour hotline with registered nurses, Dr. Ho
and nurse practitioners take turns answering patient calls (Id., ¶ 12). The nurse practitioners cannot
access patient medical records from outside the office; they can do so when they are in the office
(Id.). If remote access is needed, the nurse practitioners contact a physician with remote access
(Id.). Any calls made to the 24-hour hotline are entered into a patient’s medical record on the next
business day (Id.).
9.
Planned Parenthood Great Plains (“PPGP”) took over operation of the Arkansas
health centers from Planned Parenthood of the Heartland in 2016 (Id., ¶ 13).
10.
Physicians and nurse practitioners working at the Arkansas health centers contact
Dr. Orrin Moore, the medical director of PPGP, who is a board certified obstetrician/gynecologist,
8
a fellow of the American College of Obstetricians and Gynecologists (“ACOG”), and licensed to
practice medicine in Kansas, if they have any need to consult with a physician (Id.). Dr. Moore
has been practicing medicine, including providing abortions, for over 30 years; he provides both
medication and surgical abortions (Id.).
11.
PPAEO staff and Dr. Ho have taken additional efforts to find a contracted physician
who will allow PPAEO to comply with Section 1504(d) (Id., ¶ 15).
12.
Dr. Ho created a list of every obstetrician/gynecologist in Arkansas, using the
physician directories provided by the Arkansas Medical Society and Arkansas State Medical Board
(Id., ¶ 16).
13.
In
early
August
2017,
PPAEO
sent
a
letter
to
each
of
these
obstetrician/gynecologists, signed by PPAEO’s then-interim CEO, Aaron Samulcek (Id.).
14.
This letter explained Section 1504(d)’s requirements, and it explained that “[i]t is
critical [PPAEO] find a way to comply with the law so that we can continue providing medication
abortion to patients in Arkansas.” (Dkt. No. 84, at 15).
15.
This letter stated that, while “agreeing to be our contracting physician does not
involve providing abortion services, it is critical in helping preserve access to abortion in the state
of Arkansas.” (Id.).
16.
The letter invited the recipients to “contact [Mr. Samulcek] as soon as possible” to
“discuss compensation and other logistics.” (Id.). The letter also invited the recipient to forward
“any suggestions of another physician with the requisite privileges who would be willing to serve
as a contracting physician . . . .” (Id.).
9
17.
Separately, Dr. Ho and PPAEO staff called many of the obstetrician/gynecologists
who had been identified to explain Section 1504(d)’s requirement and the impact on abortion
access if PPAEO cannot comply with Section 1504(d) (Dkt. No. 84, Supp. Ho Decl., ¶ 17).
18.
Dr. Ho and the PPAEO staff reached out to at least 60 physicians in total via
telephone (Id.).
19.
In response, certain physicians or group practices turned down PPAEO’s offer (Id.).
20.
Other recipients simply stated that they would not work with PPAEO (Id.).
21.
At some group practices, in response to PPAEO’s outreach, “the front desk staff
was so hostile . . . that they would not even let [PPAEO staff] even speak to the physicians and
refused to take messages.” (Id.).
22.
Despite these efforts, PPAEO is still unable to satisfy Section 1504(d)’s contracted
physician requirement (Id., ¶ 18).
23.
Dr. Ho also avers that medication abortion patients at the Fayetteville health center
“will find it immensely difficult, if not impossible, to travel to Little Rock to have an abortion.”
(Id., ¶ 19).
24.
Dr. Ho describes one medication abortion patient who had trouble getting to
PPAEO’s Fayetteville health center and had to rely upon a co-worker for a ride, forcing her to
reveal her decision to terminate her pregnancy to that co-worker (Id., ¶ 20).
25.
Dr. Ho describes another patient who lives close to Fort Smith, Arkansas, who had
trouble getting to PPAEO’s health center due to a lack of transportation (Id.). This patient had to
reschedule her appointment twice, which delayed her abortion by about two weeks (Id.).
26.
Another Fayetteville medication abortion patient was altogether prevented from
having a medication abortion because she had car trouble between her first and second
10
appointment, which forced her past the gestational age at which medication abortion is offered
(Id.).
27.
Finally, Dr. Ho states that another patient, who is homeless, burst into tears because
she needed to make a return visit to PPAEO’s health center to have an abortion, and she had trouble
finding anyone who could give her a ride back to the health center for her second appointment
(Id.).
28.
Dr. Ho states that “[a]pproximately 57% of medication abortions patients at the
Fayetteville health center live at or below 110% of the federal poverty level.” (Id., ¶ 21).
29.
Dr. Ho states that, in 2014, “medication abortions accounted for 31% of all
nonhospital abortions and for 45% of abortions before nine weeks’ gestation.” (Id., ¶ 22 (citing
Rachel K. Jones and Jenna Jerman, Abortion Incidence and Serv. Availability in the U.S., 2014, 49
Persp. on Sexual and Reprod. Health 17, 21-22 (2017)).
30.
Dr. Ho states that, in her experience, some patients have a strong preference for
medication abortion (Id., ¶ 24). Some patients are afraid of a surgical procedure (Id.). Other
patients feel that medication abortion is more natural than a surgical abortion (Id.). Other patients
prefer to complete the procedure in the privacy of their own homes or in the presence of their
support person or loved ones (Id.).
31.
Plaintiffs also present the affidavit of Lori Williams, a nurse practitioner and the
Clinical Director of Little Rock Family Planning Services (“LRFP”) (Dkt. No. 84, Williams Decl.,
¶ 1).
32.
LRFP has operated an abortion clinic in Little Rock since 1973, and it has been
licensed by the State of Arkansas as an abortion provider since such licensing began in the mid1980’s (Id., ¶ 3).
11
33.
Ms. Williams has worked at LRFP since 2004 and has been the Clinical Director
since 2007 (Id., ¶ 2). She is responsible for all aspects of LRFP’s day-to-day operations, including
overseeing patient care in coordination with the physicians and other health care professionals,
maintaining policies and procedures, and ensuring that LRFP complies with all laws and
regulations (Id.).
34.
LRFP provides early medication abortions and surgical abortions (Id., ¶ 4). LRFP
is one of only three abortion clinics in Arkansas and the only one that offers surgical abortions
(Id.). LRFP is the only one of Arkansas’ abortion clinics that offers abortions past ten weeks, as
dated from the first day of the patient’s LMP (Id.).
35.
LRFP is not able to comply with Section 1504(d)’s requirement that medication
abortion providers have a written contract with a physician who has active admitting privileges
and gynecological/surgical privileges at an Arkansas hospital and who has agreed to handle
complications (Id., ¶ 5).
36.
LRFP has sent a letter to every obstetrician-gynecologist it could identify in
Arkansas, but LRFP has been unable to retain a physician with the required privileges (Id., ¶ 6).
37.
Since LRFP cannot comply with Section 1504(d)’s contracted physician
requirement, LRFP has cancelled medication abortions (Id., ¶ 7).
38.
In 2017, LRFP provided 92 medication abortions and 2,334 surgical abortions to
patients (Id., ¶ 8).
39.
Ms. Williams avers that LRFP regularly sees patients who prefer a medication
abortion over a surgical one (Id., ¶ 9). Some patients, including victims of sexual assault, want to
avoid having surgical instruments in their vagina (Id.). Other patients prefer to complete the
procedure in the privacy of their home or with another person there to support them (Id.). Some
12
patients also have medical conditions, such as vaginismus and large fibroids, that make medication
abortion medically indicated (Id.).
40.
Finally, plaintiffs present the declaration of Colleen Heflin, a professor of public
administration and international affairs at Syracuse University’s Maxwell School of Citizenship
and Public Affairs (Dkt. No. 84, Heflin Decl., ¶ 1).
41.
Dr. Heflin has studied, written, and opined about social policy, poverty policy, and
child and family policy, and she has researched issues facing women living in poverty in the United
States (Id., ¶ 5).
42.
Dr. Heflin cites research that shows an association between increased travel
distance and decreased abortion rates (Id., ¶ 11). Specifically, she cites a study by Scott
Cunningham that examined the reduction in the abortion rate in Texas after the Texas legislature
codified a requirement that abortion providers have admitting privileges at a hospital (Id., ¶ 12).
43.
Mr. Cunningham’s study estimates that abortion rates decline by 15% in counties
requiring between 50 and 100 miles of travel to access services, by 25% in counties requiring
between 100 and 150 miles of travel, and by 40% for those counties requiring between 150 and
200 miles of travel (Id., ¶ 13).
44.
Dr. Heflin avers that Mr. Cunningham’s study examines data that is both recent in
time and data from Texas, a state bordering Arkansas, and a state that shares many characteristics
with Arkansas (Id., ¶ 14).
45.
Dr. Heflin states that “the data shows that a total of 571 women who received
abortions at the Fayetteville health center will, as a result of the [contracted physician] requirement,
have to travel over 150 miles from their home county to go to Little Rock.” (Id., ¶ 15). She also
13
notes that the “data shows that an additional 28 women will have to travel between 100-150 miles
from their home county to go to Little Rock for an abortion.” (Id.).
46.
Accordingly, based upon the analysis in the Cunningham study, Dr. Heflin
estimates that a total of 235 women will be prevented from having an abortion as a result of the
contracted physician requirement (Id.).
47.
Among the materials defendants submit, all of which this Court has considered,
defendants submit the affidavit of Tumulesh K.S. Solanky, a professor and chair of the
mathematics department at the University of New Orleans (Dkt. No. 101-2, Solanky Aff., ¶ 2).
Dr. Solanky has written extensively on the subject of statistics, presented research at multiple
conferences, and previously testified in court regarding statistical matters (Id., ¶¶ 4-5).
48.
Dr. Solanky is critical of both the Cunningham study and Dr. Heflin’s opinions
offered here (Id., ¶¶ 22-28, 44-45). Dr. Solanky also discusses other studies that examine abortion
rates and trends that may impact the outcome of this case (Id., ¶¶ 12-22, 29-37).
49.
Defendants also submit the affidavit of Shirley Louie, the Director of the Center for
Public Health Practice with the Arkansas Department of Health (Dkt. No. 101-1, Louie Aff., ¶ 2).
Attached to her affidavit are two spreadsheets, the first of which lists the Arkansas occurrences of
induced abortions performed on Arkansas residents in 2017, and the second of which lists the
Arkansas occurrences of induced abortions performed on residents from states other than Arkansas
(Id., ¶ 3).
IV.
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
14
F.3d 813, 818 (8th Cir. 2013) (quoting Dataphase Sys. Inc. v. CL Sys., 640 F.2d 109, 114 (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).
V.
Standard of Review: Modified Dataphase Factors
The Court examines the Dataphase factors as applied to plaintiffs’ request for a temporary
restraining order.
See Dataphase, 640 F.2d at 109.
Under Dataphase, no one factor is
determinative. Id. at 113. 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.
Likely To Prevail On The Merits
Federal constitutional protection of reproductive rights is based on the liberty interest
derived from the due process clause of the Fourteenth Amendment. Planned Parenthood of Se.
Penn. v. Casey, 505 U.S. 833, 846 (1992) (majority opinion). The United States Supreme Court,
when recognizing this right, stated:
15
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 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 v. Wade, 410 U.S. 113, 116 (1973).
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.
1.
The Proper Legal Standard
Although PPAEO and Dr. Ho’s complaint does not specify whether this action is brought
as a “facial” constitutional challenge to the Act or as an “as-applied” challenge, at the prior
preliminary injunction stage, this Court reviewed plaintiffs’ claim as one for facial relief. The
Eighth Circuit also implicitly treated this case as a facial challenge. Jegley, 864 F.3d at 958
(analyzing whether this Court correctly applied the undue burden test from Casey, which applies
to facial challenges). Since the Eighth Circuit entered its mandate in this case, neither party has
argued that this case should be treated as anything other than a facial challenge to Section 1504(d).
Accordingly, this Court will review this request for a temporary restraining order as a facial
challenge to Section 1504(d).
The Eighth Circuit has recognized that facial challenges to abortion statutes can 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
16
U.S. at 895 (majority opinion); 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”). “Casey teaches that the court need not find that a law
imposes an undue burden on a precise percentage of impacted women in order [to] find that facial
relief is warranted . . . .” Planned Parenthood Se., Inc. v. Strange, 172 F. Supp. 3d 1275, 1288
(M.D. Ala. 2016) (“Strange V”), judgment entered, 2016 WL 1178658 (M.D. Ala. 2016).3
In Casey, a plurality of the Supreme Court determined that, if a government regulation has
“the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion
of a nonviable fetus,” the regulation is an undue burden on a woman’s right to have an abortion
and is unconstitutional. 505 U.S. at 877 (plurality opinion). In Gonzales v. Carhart, the Supreme
Court then simplified Casey’s description, settling on the effects test. 550 U.S. 124, 158 (2007).
The Supreme Court recently reiterated the undue burden standard that “a statute which, while
furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a
woman’s choice cannot be considered a permissible means of serving its legitimate ends.”
Hellerstedt, 136 S. Ct. at 2309 (quoting Casey, 505 U.S. at 877 (plurality opinion)).
3
As discussed in greater detail later in this Order, an Alabama statute that requires abortion
providers to obtain staff privileges at a local hospital 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); Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330, 1378 (M.D. Ala. 2014)
(“Strange III”) (finding that the staffing privileges requirement was unconstitutional as applied to
plaintiffs); Strange II, 9 F. Supp. 3d 1272, 1276 (M.D. Ala. 2014 ) (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).
17
The Supreme Court in Gonzales stated as follows: “[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.” Gonzales, 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)). Therefore, while the Court acknowledges that Section 1504(d) may be a valid
exercise of the state’s police power, the Court is obligated to examine whether it unduly burdens
the constitutional right of Arkansas women to a pre-viability abortion.
To show an undue burden, PPAEO and Dr. Ho must 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). A court limits its inquiry to
“the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Id. at
894 (majority opinion). “An undue burden is an unconstitutional burden.” Id. at 877 (plurality
opinion).
The undue burden analysis requires this Court to “consider the burdens a law imposes on
abortion access together with the benefits those laws confer.” Hellerstedt, 136 S. Ct. at 2309.
18
There must be “a constitutionally acceptable” reason for regulating abortion, and the abortion
regulation must also actually advance that goal in a permissible way. Id. at 2309-10. The
regulation will not be upheld unless the benefits it advances outweigh the burdens it imposes. Id.
at 2310. “[T]he means chosen by the State to further the interest in potential life must be calculated
to inform the woman’s free choice, not hinder it.” Casey, 505 U.S. at 877 (plurality opinion).
Further, under the applicable undue burden standard, although the Court must “review
‘legislative fact finding under a deferential standard,’” Hellerstedt, 136 S. Ct. at 2310, the court
“retains an independent constitutional duty to review [a legislature’s] factual findings where
constitutional rights are at stake . . . . Uncritical deference to [the legislature’s] factual findings in
these cases is inappropriate.” Gonzales, 550 U.S. at 165, 167; see Hellerstedt, 136 S. Ct. at 2310.
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). 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.”).
PPAEO and Dr. Ho, who challenge Section 1504(d), retain the ultimate burden of proving
the statute’s unconstitutionality. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (reversing
19
appellate court for enjoining abortion restriction where plaintiffs had not proven that the
requirement imposed an undue burden); Casey, 505 U.S. at 884 (plurality opinion) (affirming
provision where “there [was] no evidence on this record” that the restriction would amount to an
undue burden).
2.
Efforts To Comply With Section 1504(d)
This Court finds on the record before it at this stage of the proceeding that, despite trying
to find a contracted physician, PPAEO and Dr. Ho cannot comply with the contracted physician
requirement (Dkt. No. 2, de Baca Decl., ¶ 12). 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).
Defendants claim that PPAEO has not made a serious effort to locate a contracted physician
(Dkt. No. 101, at 9). Specifically, defendants argue that PPAEO has only offered “token
compensation” to potential contracted physicians and that LRFP offers no proof that it offered any
compensation to potential contract physicians (Id.). Defendants acknowledge that PPAEO sent
letters to “every ob-gyn [PPAEO] could identify,” but defendants point out that this letter
“criticiz[ed] the Arkansas General Assembly and denounc[ed] the contract-physician requirement
as ‘medically unnecessary.’” (Id., at 9-10).
PPAEO and Dr. Ho maintain that, in addition to the efforts undertaken in 2016 and
explained at more length in this Court’s prior preliminary injunction Order (Dkt. No. 60), they
compiled a list of every obstetrician/gynecologist in Arkansas using the physician directories of
the Arkansas Medical Society and Arkansas State Medical Board and sent a letter in August 2017
to every one of those obstetrician/gynecologists (Dkt. No. 84, Supp. Ho. Decl., ¶ 16). This letter
20
described the contracted physician requirement and asked the recipients to “consider contracting
with PPGP as required by the Act.” (Dkt. No. 84, at 15). This letter asked the recipients to “contact
[PPGP] as soon as possible if you are interested in serving as a contracting physician and we can
discuss compensation and other logistics.” (Id.). The letter also invited the recipient to inform
PPAEO if the recipient knew of any other physicians “with the requisite privileges who would be
willing to serve as a contracting physician . . . .” (Id.). Ms. Williams, the Clinical Director of
LRFP, states that LRFP “sent a letter to every obstetrician-gynecologist we could identify in the
state, but were unable to retain a physician with privileges.” (Dkt. No. 84, Williams Decl. ¶ 6).
Dr. Ho also called many of the identified obstetrician/gynecologists—at least 60 physicians
were contacted via telephone by her or PPAEO’s staff (Dkt. No. 84, Supp. Ho. Decl., ¶ 17). These
physicians would also have received the letter sent in August 2017. Certain physicians or group
practices informed PPAEO that they do not support a woman’s right to access abortion and would
not help PPAEO (Id.). Others stated that they could not work with PPAEO, while at others the
front staff “was so hostile once they heard that we were calling from Planned Parenthood that they
would not even let us speak to the physicians and refused to take messages.” (Id.). Dr. Ho
represents that, despite these efforts, PPAEO is still unable to satisfy the contracted physician
requirement (Id., ¶ 18).
There is evidence in the record that physicians who provide abortions or associate with
physicians who provide abortions risk being ostracized from their communities and face
harassment and violence toward themselves, their families, and their private practices (Dkt. No.
30, Stulberg Decl., ¶¶ 13-17). Even if a physician is willing to take on these risks, there is evidence
in the record that many private practice groups, hospitals, HMOs, and health networks will not
permit physicians working for them to associate with abortion providers (Dkt. No. 30, Stulberg
21
Decl., ¶¶ 9-12). There is specific evidence that Arkansas’s urban medical facility, the University
of Arkansas for Medical Sciences (“UAMS”) system, did not want to risk association with PPAEO
or risk permitting its physicians to work with PPAEO (Dkt. No. 29, Ho. Decl., ¶ 6). Defendants
have presented no information to the contrary on these points.
Other district courts have found that abortion providers face threats of physical violence
and professional stigmatization. See June Med. Servs. LLC v. Kliebert, 250 F. Supp. 3d 27, 51-53
(M.D. La. 2017) (“Kliebert II”) (abortion doctors received threats as a result of affiliation with
abortion clinics); Planned Parenthood of Wisconsin, Inc. v. Schimel, 806 F.3d 908, 917 (7th Cir.
2015) (Posner, J.) (noting the “vilification, threats, and sometimes violence directed against
abortion clinics and their personnel in states . . . in which there is intense opposition to abortion.”),
cert. denied, 136 S. Ct. 2545; W. Ala. Women’s Ctr. v. Williamson, 120 F. Supp. 3d 1296, 1303
(M.D. Ala. 2015) (discussing possible violence, harassment, and stigma abortion providers face);
Strange III, 33 F.Supp.3d at 1349-53 (describing the anti-abortion harassment and stigma that
prevents physicians from associating with abortion providers, including protestors who “threaten
economic destruction for any doctor who enable[s] the provision of abortion”). These dangers are
magnified by Section 1504(d)’s requirement that the contracted physician make public his or her
name and phone number. Ark. Code Ann. § 20-16-1504(d)(3).
Several other courts have found that abortion providers and their personnel face significant
threats to their safety and livelihoods and that hospitals are hesitant, if not hostile, to the prospect
of granting admitting privileges to doctors who provide abortions. See Schimel, 806 F.3d at 917
(noting it is difficult for abortion providers to recruit physicians “because of the vilification,
threats, and sometimes violence directed against abortion clinics and their personnel in states such
as Wisconsin, in which there is intense opposition to abortion”); Strange III, 33 F.Supp.3d at 1348-
22
49 (noting it is difficult for abortion providers to recruit physicians “due to the severe professional
consequences of [association with abortion] and the lingering threat of violence against abortion
doctors, particularly in Alabama”).
Finally, other courts have found that hospitals deny admitting privileges to abortion doctors
for other various reasons. See Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 738 F.3d
786, 792 (7th Cir. 2013) (“Van Hollen III”) (“The criteria for granting admitting privileges are
multiple, various, and unweighted.”), cert. denied, 134 S. Ct. 2841 (2014). Other courts have
analyzed the multiple factors that are considered when determining if a doctor should be granted
admitting privileges, including how often the physician uses the hospital, the quantity of services
provided to the patient at the hospital, the revenue generated by a particular admitting physician,
and the physician’s admission to a particular practice or academic faculty. Id. In Hellerstedt, the
Supreme Court noted that it would be difficult for doctors performing abortions at the El Paso,
Texas, clinic to gain admitting privileges because “[d]uring the past 10 years, over 17,000 abortion
procedures were performed at the El Paso clinic [and n]ot a single one of those patients had to be
transferred to a hospital for emergency treatment, much less admitted to the hospital.” 136 S. Ct.
at 2312 (alterations in original). Or, in other words, abortion doctors are unable to gain admitting
privileges because “abortions are so safe” that such doctors are “unlikely to have any patients to
admit.” Id.; Van Hollen III, 738 F.3d at 793 (“[T]he number of patient admissions by doctors who
perform abortions is likely to be negligible because there appear to be so few complications from
abortions and only a fraction of those require hospitalization . . . .”); Williamson, 120 F. Supp. 3d
at 1303 (admitting privileges denied “because complications from abortions are so rare” that
abortion doctor “would never be able to do the required amount of procedures.”).
23
The record evidence at this stage of the litigation in this case is consistent with the findings
in the cases discussed above: doctors face threats to their livelihoods and physical safety if they
attempt to provide abortions or act as contracted physicians to abortion providers. The Court is
skeptical that the compensation offered by plaintiffs would be enough to overcome these obstacles.
These obstacles very likely keep even those doctors in Arkansas who may not have a moral or
ethical opposition to abortion from providing abortions or serving as contracted physicians. See
Strange III, 33 F. Supp. 3d at 1355 (“[T]he inability to obtain local abortion doctors is not a matter
of money, but rather a reflection of the difficulty of pursuing that occupation in the State.”).
Furthermore, due to both widespread animus toward abortion among hospital staff and the
peculiarities of the requirements necessary for admitting privileges, the Court finds that, based on
the record evidence at least at this stage of the litigation, it is highly unlikely that the abortion
clinics in Arkansas will be able satisfy Section 1504(d)’s contracted physician requirement.
3.
Burdens Imposed By Section 1504(d)
Section 1504(d) of the Act, which is the statute plaintiffs continue to challenge, requires:
(1) The physician who gives, sells, dispenses, administers, or otherwise provides or
prescribes the abortion-inducing drug shall have a signed contract with a physician
who agrees to handle complications and be able to produce that signed contract on
demand by the patient or by the Department of Health.
(2) The physician who contracts to handle emergencies shall have 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.
(3) Every pregnant woman to whom a physician gives, sells, dispenses, administers, or
otherwise provides or prescribes any abortion-inducing drug shall receive the name
and phone number of the contracted physician and the hospital at which that
physician maintains admitting privileges and which can handle any emergencies.
Ark. Code Ann. § 20-16-1504(d). Arkansas law also requires all women seeking abortions—
medication or surgical—to receive certain state-mandated information in-person at least 48-hours
24
prior to the abortion. See Ark. Code Ann. § 20-16-1703. There are no exceptions to this
requirement.
If the contracted physician requirement of the Act goes into effect, plaintiffs represent that
only one health center in the state—located in Little Rock—will provide abortions (Dkt. No. 84,
Williams Decl., ¶ 4). They also represent that these abortions will only be surgical. There is record
evidence that, if Section 1504(d) takes effect, all three Arkansas health centers will no longer offer
medication abortion (Dkt. No. 84, Supp. Ho. Decl., ¶ 3; Williams Decl., ¶ 7).
a.
Women For Whom The Regulation Is Relevant
To evaluate the burdens imposed by the contracted physician 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)). When this
Court first analyzed this question, it was unclear if the “denominator” in the “large fraction”
analysis was “all women of child-bearing age in Arkansas” or “all women seeking a medication
abortion in Arkansas.” In the interim, the Supreme Court decided Hellerstedt and 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)). Furthermore, the Eighth Circuit held that “because the contractphysician requirement only applies to medication-abortion providers, the ‘relevant denominator’
here is women seeking medication abortions in Arkansas.” Jegley, 864 F.3d at 958 (citing
Hellerstedt, 136 S. Ct. at 2320).
25
b.
Examining The “Large Fraction” Test
The Court next turns to examine the “large fraction” test. Defendants cite, and urge this
Court to follow, the Sixth Circuit Court of Appeals’ 2006 decision in Cincinnati Women’s
Services, Inc. v. Taft, 468 F.3d 361 (6th Cir. 2006), when assessing the large fraction. In Taft, the
Sixth Circuit determined that Ohio’s requirement that women receive an informed-consent lecture
in person at least 24 hours prior to obtaining an abortion would be an almost insurmountable barrier
for only about 12% of Ohio women. Id. at 364-65, 372-73. Specifically, analyzing the impact of
the informed-consent requirement, the Sixth Circuit found that
[O]f every 1000 women who seek an abortion, 50 to 100 are excused by the clinic
from an in-person informed-consent meeting. According to the facts provided by
the clinics, 6 to 12.5 of those 50 to 100 excused women will face a substantial
obstacle in obtaining an abortion if forced to comply with the In–Person Rule.
Therefore, for approximately 6 to 12.5 women out of every 1000 women seeking
an abortion, the state’s In–Person Rule would likely deter them “from procuring an
abortion as surely as if [Ohio] has outlawed abortion in all cases.” Casey, 505 U.S.
at 894.
Id. at 373. The Sixth Circuit found that, accepting the relevant denominator as “all women
presently excused by the clinic from the clinic’s own in-person informed-consent requirement,”
the informed-consent requirement did not burden a “large fraction” because “[a]lthough a
challenged restriction need not operate as a de facto ban for all or even most of the women actually
affected, the term ‘large fraction,’ which, in a way, is more conceptual than mathematical,
envisions something more than the 12 out of 100 women identified here.” Id. at 373.
The Eighth Circuit, however, has implied that an abortion regulation that burdens 18% of
a relevant class of women constitutes a “large fraction” under the test articulated in Casey.
Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1462 n.10 (8th Cir. 1995) (Arnold,
J.) (noting that undue burden existed because the 18% of minors who live in single-parent
households could not conceivably access the “abuse exception” to South Dakota’s parental
26
notification law), cert. denied sub nom., 116 S. Ct. 1582 (1996); see also A Woman’s Choice-East
Side Women’s Clinic v. Newman, 904 F. Supp. 1434, 1462 (S.D. Ind. 1995) (noting undue burden
existed because “the number of Indiana women obtaining abortions is likely to drop by
approximately 11 to 14%, and this effect is likely to be the result [of] the burdens of the law . . .
.”); David S. Cogen & Jeffrey B. Bingenheimer, Abortion Rights and the Largeness of the Fraction
1/6, 164 U. Pa. L. Rev. Online 115, 121 (2016) (discussing the application of the large-fraction
test by lower courts following Casey).
Most recently, the Fifth Circuit Court of Appeals held that 17% was not a “large fraction.”
Whole Woman’s Health v. Cole, 790 F.3d 563, 588 (5th Cir. 2015). The Cole Court used “women
of reproductive age” as the denominator in the calculation. Id. This decision was reversed and
remanded by the Supreme Court’s decision in Hellerstedt a year later. 136 S. Ct. at 2320 (noting
that the “large fraction” referred to “a class narrower than ‘the class of women seeking abortions
identified by the state’”) (quoting Casey, 505 U.S. at 894-95) (majority opinion) (emphasis in
original). This Court acknowledges that the percentage affected by the restrictions at issue in Cole
may be higher on remand if, as the Supreme Court suggests in Hellerstedt, a class of women
narrower than “all women of reproductive age” is used as the denominator.
In this case, the Eighth Circuit 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 Taft, 468 F.3d at 374).4 The Eighth Circuit
reversed and remanded this Court’s prior preliminary injunction, determining that, “in order to
4
To illustrate its point, in a footnote, the Eighth Circuit proposed one possible numerator
to determine whether a “large fraction” of women are burdened by the contracted physician
requirement in this case. In this footnote, the Eighth Circuit focused only on those women living
in Washington County, Arkansas, who, as a result of the contracted physician requirement, will
not receive any abortion, medication or otherwise. For reasons explained in this Order, focusing
only on the impact in Washington County, Arkansas, overlooks the broader impact this regulation
will have on women in surrounding counties, given Arkansas’ geography.
27
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 seeking medication abortions in Arkansas.” Id. at 959 (emphasis added). The Eighth
Circuit held that this Court “did not make this finding,” noting that this Court’s prior findings of
fact “did not determine how many women would face increased travel distances,” nor did they
“estimate the number of women who would forgo abortions.” Id. Accordingly, in making these
findings of fact, the Court follows the Eighth Circuit’s direction and uses those “women seeking
medication abortions in Arkansas” as the denominator of the “large fraction” test.
c.
Analyzing Burdens Imposed By Section 1504(d)
The Court now turns to analyze and attempt to quantify based on the record evidence at
this stage of the proceedings the burdens imposed by the contracted physician requirement upon
those women in Arkansas who would otherwise have received a medication abortion. Below, the
Court makes the findings requested by the Eighth Circuit in Jegley.
First, the Court describes the burden imposed due to the effective ban on medication
abortions in Arkansas. The record evidence before the Court at this stage of the proceedings shows
that medication abortion will no longer be available in Arkansas for any woman who might choose
that method of abortion over surgical abortion or for any woman for whom medication abortion is
medically necessary or preferred.
Second, the Court observes that the contracted physician requirement will effectively deny
Northwest Arkansas an operational abortion clinic. Only one area of Arkansas, in Little Rock,
will have a provider that performs surgical abortions. Plaintiffs maintain that the contracted
physician requirement is burdensome, in part, because it requires women seeking an abortion who
live significant distances from LRFP to make two lengthy trips to have an abortion—one for the
28
informed consent appointment mandated by Arkansas Code Annotated § 20-16-1703 and a second
for the surgical abortion itself.5 Several burdens flow from this, as explained below.
Third, the Court analyzes the burden on women who will not obtain an abortion at all
because medication abortions are no longer available in Fayetteville and traveling to Little Rock
for a surgical abortion will present too great a burden. Some percentage of women will entirely
forgo an abortion as a result of the contracted physician requirement, and the Court quantifies,
using various metrics, what percentage of women seeking medication abortions in Arkansas will
face this burden.
Fourth, the Court discusses the burden that falls upon those women who must, as a result
of the contracted physician requirement, travel to Little Rock for a surgical abortion. These
women, who would otherwise have sought medication abortions in Fayetteville, will opt to travel
to Little Rock to obtain a surgical abortion but will face increased travel time, lost wages, and
decreased service at the remaining abortion clinic in Little Rock
Fifth, the Court discusses the potential burden facing all women who will seek an abortion
at Arkansas’ sole remaining abortion clinic in Little Rock. The number of clinics in Arkansas
offering abortion services will be reduced. This decrease in providers will burden Arkansas
women who seek medication abortion and also burden all Arkansas women who seek abortion, as
explained. With all of these burdens considered individually and collectively, and cognizant of
the fact that “the ‘large fraction’ standard is in some ways ‘more conceptual than mathematical,’”
5
The Court presumes, based upon the record evidence, that a surgical abortion in Arkansas
requires two round-trips: the first for the 48-hour waiting period requirement and the second for
the procedure itself. The Court notes that Texas’ pre-existing regulatory framework, which was
analyzed in Hellerstedt, required a women to wait 24 hours after receiving state-mandated
information, but this requirement could be shortened to a two-hour wait if the woman certified that
she lived more than 100 miles from her nearest abortion provider. Cole, 790 F.3d at 594.
29
the Court makes the finding that, at this point in the litigation on the limited record evidence before
it, the contracted physician requirement presents a significant burden to a large fraction of women
seeking medication abortions in Arkansas. Jegley, 864 F.3d at 960 (citing Taft, 468 F.3d at 374).
(1)
Burdens Imposed: Effective Ban On Medication
Abortions
First, the Court finds that every woman in Arkansas seeking a medication abortion faces a
burden due to the contracted physician requirement. The parties agree that, as a result of the
contracted physician requirement and plaintiffs’ inability to comply with it, none of the three
existing abortion clinics in Arkansas will offer medication abortions. There is no exception to the
contracted physician requirement, so every woman seeking a medication abortion in Arkansas is
affected by the unavailability of such abortions in Arkansas.
While the Court acknowledges that the lack of medication abortion in Arkansas does not
ban pre-viability abortions in the state, the record evidence indicates that a large fraction—71%—
of women “have a very strong preference” for medication abortions as opposed to surgical ones
(Dkt. No. 84, Supp. Ho Decl., ¶ 23). Dr. Ho asserts that this finding is “consistent with [her] own
personal experience,” as some of her patients are afraid of surgical procedures, others feel that a
medication abortion is “more natural than a surgical abortion and is more like a miscarriage,” and
still others “want to complete the procedure in the privacy of their own homes or in the presence
of their support person or loved ones.” (Id., ¶ 24).
Defendants point to a finding by the Sixth Circuit that “these statements give rise to the
inference that some women prefer a medical abortion over a surgical abortion, but they do not
support the conclusion that the unavailability of a medical abortion would create a substantial
obstacle for a large fraction of women in deciding whether to have an abortion.” Planned
Parenthood Southwest Ohio Region v. DeWine, 696 F.3d 490, 516 (6th Cir. 2012) (emphasis in
30
original). Here, the record evidence indicates that 71% of women who seek abortions have a strong
preference for medication abortions (Dkt. No. 84, Supp. Ho Decl., ¶ 23). Further, the Supreme
Court in Hellerstedt found that medication abortions, like surgical abortions, are not dangerous.
136 S. Ct. at 2311 (citing evidence that abortions in general have a complication rate of “less than
one-quarter of 1%”).
The Court acknowledges that, under the holding in DeWine, the
unavailability of a medication 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.
Although Section 1504(d) only regulates medication abortion, the Court looks to the availability
of medication and surgical abortions overall to assess the regulation’s purported burdens.
Regardless, the Court finds that the record evidence does support an inference that the lack
of medication abortion in Arkansas presents some burden to those women who prefer medication
abortions over surgical ones due to the cost, risk, and potential recovery required by a surgical
abortion. In other words, the Court concludes that, by effectively ending medication abortions in
Arkansas, the contracted physician requirement burdens those women who are seeking medication
abortions in Arkansas.
Even if this burden, by itself, does not render the contracted physician requirement a
“substantial obstacle in the path of a woman’s choice,” Hellerstedt, 136 S. Ct. 2312 (citing Casey,
505 U.S. at 877 (plurality opinion)), the Court will not discount it as some evidence of burden. To
make the “substantial obstacle” determination, the burden imposed by the elimination of
medication abortions “must be taken together with other[]” burdens caused by the contracted
physician requirement and weighed against “any health benefit” to determine if an “undue burden”
exists. Id. at 2313.
31
The Court also notes that, in DeWine, the Sixth Circuit did not apply the balancing test
articulated in Hellerstedt, but instead reviewed only the burden imposed by Ohio’s ban on
medication abortions. Compare DeWine, 696 F.3d at 516 (discussing only the burden imposed
upon women), with Hellerstedt, 136 S. Ct. at 2310 (“The rule announced in Casey, however,
requires that courts consider the burdens a law imposes on abortion access together with the
benefits those laws confer.”). The Court questions whether the analysis in DeWine survives muster
in the wake of Hellerstedt. In Humble, the Ninth Circuit Court of Appeals found that Arizona’s
medication abortion ban imposed an undue burden because the “the Arizona law substantially
burdens women’s access to abortion services, and Arizona has introduced no evidence that the law
advances in any way its interest in women’s health.” 753 F.3d at 916. The Ninth Circuit noted
that “the burden imposed by the Arizona law is undue even if some women who are denied a
medication abortion under the evidence-based regimen will nonetheless obtain an abortion,” as the
Supreme Court has never “held that a burden must be absolute to be undue.” Id. at 917 (citation
omitted). The Court finds the Ninth Circuit’s reasoning in Humble consistent with the balancing
test articulated by the Supreme Court in Hellerstedt.
In the present case, regardless of the fraction of women who prefer medication abortions
to surgical ones, none of the women who prefer medication abortions can satisfy that preference
in Arkansas, if the contracted physician requirement takes effect given that plaintiffs have
demonstrated an inability to comply with it. Accordingly, 100% of “women seeking medication
abortions in Arkansas,” Jegley, 864 F.3d at 959, are burdened to some extent by the contracted
physician requirement. The fact that some of the women who prefer medication abortions will
nonetheless receive a surgical abortion does not affect this analysis.
32
Further, removing medication abortion as an option for women will result in negative
consequences for those women for whom medication abortion is medically indicated (Dkt. Nos.
2, Fine Decl., ¶ 13; 84, Williams Decl., ¶ 9). It remains unclear from this record what percentage
of the patient population that may be.
(2)
Burdens Imposed: Reduction In Number Of
Clinics Providing Abortions
If the contracted physician requirement takes effect and if plaintiffs are unable to comply
with it, PPAEO’s clinics will be forced to cease offering any type of abortion. PPAEO’s clinics
in Fayetteville and Little Rock do not provide surgical abortions and cannot upgrade their facilities
to do so based in part on existing state regulations applicable to surgical abortion facilities but not
medication-only facilities (Dkt. Nos. 57-1, de Baca Rebuttal Decl., ¶ 8; 84, Supp. Ho. Decl., ¶ 7
(averring that PPAEO would need to relocate or upgrade its facilities to offer surgical abortions
partly in order to comply with state regulations that apply to surgical abortion facilities but not
medication abortion facilities; it may not find a landlord willing to rent space to an abortion
provider and does not have a sufficient budget to renovate the existing center at this time)). See
Hellerstedt, 136 S. Ct. 2318 (noting that record evidence of the cost of expanding clinics supported
a conclusion that more clinics “will not soon fill the gap when licensed facilities are forced to
close.”). As explained, if the contracted physician requirement takes effect and plaintiffs are
unable to comply with it, Arkansas will be left without a medication abortion provider. Further,
the Fayetteville metropolitan area will no longer have an abortion provider that can provide either
medication or surgical abortions. In other words, the number of clinics in Arkansas offering
abortion services will be reduced; whereas before the regulation took effect there were two
population centers with abortion clinics open, there will only be one population center in Arkansas
33
with an abortion clinic open if this regulation takes effect and if plaintiffs are unable to comply, as
they represent.
The Court compares the Arkansas situation to the Missouri situation recently analyzed by
Judge Phillips in Comprehensive Health of Planned Parenthood Great Plains v. Williams, Case
No. 4:17-cv-4207-BP (W.D. Mo. June 11, 2018) (“Williams II”). Judge Phillips denied plaintiffs’
motion for preliminary injunction finding that, while the abortion regulation at issue in Missouri
restricts the provision of medication abortion, surgical abortion is able to be provided in all relevant
areas of the state of Missouri. Id. at 16-17. There, abortion clinics in Springfield and Columbia,
Missouri, cannot satisfy a “complication plan” requirement and will therefore be forced to cease
providing medication abortions. Id. at 16. The Columbia clinic, however, provides surgical
abortions, and Judge Phillips concluded that there is no “legal impediment” preventing the
Springfield clinic from doing so as well. Id. Further, abortion clinics in Kansas City and St. Louis,
Missouri, still offer medication abortions. Id. at 3. That is not the case here; PPAEO’s clinics in
Fayetteville and Little Rock do not provide surgical abortions and cannot upgrade their facilities
to do so. Accordingly, compared to the effect of Missouri’s “complication plan” requirement, the
effect of Section 1504(d)’s contracted physician requirement imposes a qualitatively greater
burden upon women seeking medication abortions in Arkansas.
(3)
Burdens Imposed: Women Who Will Forgo An
Abortion
In Jegley, to determine whether a “large fraction” of women were burdened, the Eighth
Circuit focused on the number of women forced to forgo any abortion as a result of the contract
physician requirement. 864 F.3d at 959 n.8. The Court must rely upon the opinions of statistical
researchers to determine how many women will forgo an abortion as a result of the contracted
physician requirement.
34
On remand, plaintiffs present the affidavit of Dr. Colleen Heflin. Dr. Heflin opines that,
when an abortion clinic within 50 miles is closed, “abortion rates decline by 15% in counties
requiring between 50 and 100 miles of travel to access services, by 25% in counties requiring
between 100 and 150 miles of travel[,] and by 40% for those counties requiring between 150 and
200 miles of travel.” (Dkt. No. 84, Heflin Decl., ¶ 13). 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.”); Comprehensive Health of Planned
Parenthood Great Plains, et al., v. Williams, 263 F. Supp. 3d 729, 735 (W.D. Mo. 2017)
(“Williams I”) (“A fall-off in professionally-handled abortions in a locale seems almost certain
when there is no convenient place to go.”). The Court notes that those women who forgo a legal
abortion may attempt to self-abort or seek care from unsafe providers (Dkt. No. 2, Fine Decl., ¶
55).
Defendants argue by submitting the affidavit of Dr. Solanky and updated statistics for
Arkansas on remand that the methodology used in the study relied upon by Dr. Heflin is flawed.
The study in question was conducted by Scott Cunningham and published by the National Bureau
35
of Economic Research.6 Specifically, defendants argue that the study fails to demonstrate causality
between falling abortion rates and reduced numbers of abortion clinics (Dkt. No. 101, at 27).
Defendants also assert that Dr. Heflin’s conclusions, which are based upon a study conducted in
Texas, are not applicable to Arkansas because of the “large international boarder that Texas shares
with Mexico.” (Id., at 27 n.9). Defendants also point out that Dr. Heflin “apparently failed to
realize that the Cunningham study she relies on measures the effect of increased driving distances
where there is an abortion facility within 50 miles.” (Id., at 28 (emphasis in original)). They also
argue that Dr. Heflin “improperly used the total driving distance from the patients’ county of
residence to Little Rock, instead of the change in driving distance from travelling to Little Rock
rather than Fayetteville.” (Id. (emphasis in original)). Defendants also note that Dr. Heflin’s
calculations “rest on an erroneous assumption” that patients who would have otherwise gone to
the Fayetteville clinic will not go to a private physician or an out-of-state clinic for an abortion
(Id., at 28-29).
Plaintiffs present the rebuttal declaration of Dr. Heflin to address the arguments made by
defendants through Dr. Solanky (Dkt. No. 102). Dr. Heflin asserts that the Cunningham study
upon which she relies “is a causal analysis and does not show mere correlation [between clinic
closures and decreases in the abortion rate].” (Id., ¶ 4). Specifically, Dr. Heflin points out that the
Cunningham study “incorporates data before and after the [Texas admitting-privileges law] [was]
implemented” and “controls for differences in treatment and control groups . . . .” (Id.).
Furthermore, Dr. Heflin points out that she did not rely upon other studies she cited in her initial
declaration because the Cunningham study “is a more rigorous study,” as one of the other studies
6
Scott Cunningham, et al., Working Paper No. 2336: How Far is Too Far? New Evidence
on Abortion Clinic Closures, Access, and Abortions, NBER Working Paper Series (2017, rev.
2018).
36
uses fewer “refinements” than the Cunningham study and the other looks at the number of licensed
abortion clinics to determine how many abortions occurred, rather than whether the licensed clinics
were actually performing abortions (Id., ¶¶ 5-7).
Dr. Heflin also argues that she correctly “included women who reside in counties that are
more than 50 miles from the Fayetteville health center in estimating the number of women
prevented from accessing abortion by the Arkansas law,” because the Cunningham study uses a
multiple regression model that “includes travel distance from every county in Texas for each year,
but breaks those travel distances into 50 mile categories or ‘bin.’” (Id., ¶ 8). Therefore, according
to Dr. Heflin, the Cunningham study “provides causal estimates of the relationship between travel
distances in specific bins relative to those counties with access within 50 miles and the reduction
in abortion rates.” (Id.).
Finally, Dr. Heflin states that “[it] is correct to use the total driving distance when applying
the Cunningham study to Arkansas, rather than the change in driving distance, because the
Cunningham study relied upon data that measured the total driving distance (in a particular county
in a particular year) as its measure of access in the analysis.” (Id.). Indeed, she notes that the
Cunningham study not only measures total distance traveled to an abortion clinic, but it also
includes “a measure of congestion to account for the fact that remaining providers in Texas were
unable to meet the new higher level of demand for their services.” (Id., ¶ 3).
In the light of the record evidence, at this stage of the litigation, and given the widespread
acceptance of such methodology by other federal courts, see e.g., Schimel, 806 F.3d at 919; Strange
III, 33 F. Supp. 3d at 1356-60, the Court concludes that Dr. Heflin’s conclusions appear grounded
in valid statistical methods and analytically sound. Accordingly, at this early stage of the litigation,
the Court accepts Dr. Heflin’s conclusion that when abortion clinics are closed, “abortion rates
37
decline by 15% in counties requiring between 50 and 100 miles of travel to access services, by
25% in counties requiring between 100 and 150 miles of travel[,] and by 40% for those counties
requiring between 150 and 200 miles of travel.” (Dkt. No. 84, Heflin Decl., ¶ 13). As discussed
in more depth below, by applying these metrics to the data attached to Dr. Heflin’s declaration,
the Court analyzes whether a large fraction of women seeking medication abortions in Arkansas
will be prevented from having an abortion at all, medication or surgical, due to the contracted
physician requirement. Because we are at an early stage in this litigation and because Dr. Solanky
is critical of Dr. Heflin’s analysis, the Court also tests the burden analysis against numbers that
account for some of defendants’ criticisms.
While the record contains inconsistent evidence at this early stage of the litigation about
the number and type of abortions that occur in Arkansas, the Court is able to make the findings
sought by the Eighth Circuit based on the record before it. Given the Eighth Circuit’s ruling in
Jegley, the Court will calculate the “large fraction” by using the number of women seeking
medication abortions in Arkansas as the denominator. Dr. Ho asserts that, in 2017, PPAEO’s
physicians performed 843 medication abortions in Arkansas, 653 of which were at the Fayetteville
health center (Dkt. No. 84, Supp. Ho. Decl. ¶ 6). Ms. Williams asserts that LRFP conducted 92
medication abortions in 2017 (Dkt. No. 84, Williams Decl., ¶ 8). Accordingly, the Court infers
that 935 medication abortions occurred in Arkansas in 2017. Defendants’ data indicate that
Arkansas residents sought 838 medication abortions and 83 non-Arkansas residents sought
medication abortions in Arkansas in 2017, for a total of 921 total medication abortions in Arkansas
(Dkt. No. 101-1, at 5-8). It is not clear whether the Eighth Circuit intended this Court to include
non-Arkansas residents who seek medication abortions in Arkansas as part of the denominator of
the “large fraction.” Accordingly, in the following sections, the Court analyzes the various
38
combinations of denominators and numerators which may be used to calculate whether a “large
fraction” of women seeking medication abortions in Arkansas will forgo an abortion altogether.
Dr. Heflin’s Calculation Applied To All
Women
Who
Sought
Medication
Abortions In Fayetteville
(i)
Dr. Heflin’s declaration includes a spreadsheet that indicates 599 medication abortions
occurred at the Fayetteville clinic in 2017 (Dkt. No. 84, at 50). Applying her findings about the
effects of increased travel distance to these data, Dr. Heflin estimates that of those women who
sought a medication abortion at the Fayetteville clinic, “a total of 235 women will be prevented
from having an abortion” due to the effects of the contracted physician requirement (Dkt. No. 84,
Heflin Decl., ¶ 15).7 If a total of 935 medication abortions occurred in Arkansas in 2017, Dr.
Heflin’s calculation means that at least 25% of all women seeking medication abortions in
Arkansas will forgo an abortion entirely.8 Using 921 as the denominator, then approximately 26%
of all women seeking medication abortions in Arkansas will forgo an abortion entirely. 9 If the
Court limits its denominator to the 838 medication abortions sought by Arkansas residents in
Arkansas in 2017, then Dr. Heflin’s calculation means that 28% of Arkansas residents seeking
medication abortions in Arkansas will forgo an abortion entirely.10
Like Dr. Heflin, other courts’ findings indicate that travel distances of 50 miles or less
also decrease the abortion rate to some extent. Accounting for this finding likely means a larger
percentage of Arkansas women are burdened by this requirement. For purposes of resolving the
motion for temporary restraining order now pending before the Court, the Court focuses its
analysis only upon those women who must travel more than 100 miles to illustrate how the effect
on those women, by itself, is enough to establish that a “large fraction” of women seeking
medication abortions in Arkansas will forgo an abortion altogether under the facts presented.
7
8
235/935=25%.
9
235/921=26%.
10
235/838=28%.
39
Dr. Heflin’s Data Applied To Arkansas
Residents Living In Northwest Arkansas
(ii)
The Court also applies Dr. Heflin’s findings to those Arkansas residents who live in
Northwest Arkansas and who would have otherwise sought an abortion in Fayetteville. This
analysis is intended to explore Dr. Solanky’s criticism of Dr. Heflin’s use of out-of-state resident
numbers.
Dr. Heflin’s spreadsheet indicates that, of those 599 medication abortions at the
Fayetteville clinic in 2017, 519 of those women live in Arkansas counties that are reasonably
construed as “Northwest Arkansas.”11 Of those 519 women in Northwest Arkansas, 500 of them
live in counties that are 150 miles or more from Little Rock (Dkt. No. 84, at 50).12 The remaining
19 live in counties that are 100 to 150 miles from Little Rock (Id.).13 According to Dr. Heflin’s
affidavit, “compared to having an abortion clinic relatively close (which they define as within 50
miles), abortion rates decline . . . by 40% for those counties requiring between 150 and 200 miles
of travel” and “25% in counties requiring between 100 and 150 miles of travel . . . .” (Id., Heflin
Decl., ¶ 13). Forty percent of 500 women equals 200 women, and 25% of 19 women is
11
The Court determined this number by adding the number of reported patients for Benton,
Boone, Carroll, Crawford, Johnson, Madison, Franklin, Newton, Sebastian, and Washington
counties who sought medication abortions from the Fayetteville clinic in 2017 (Dkt. No. 84, at 50).
Given the geography of Arkansas, at this stage of the litigation and with the record before it, the
Court determines this is a reasonable estimate. See 2017-2019 Highway Map of Arkansas (2017),
http://ardot.gov/Trans_Plan_Policy/mapping_graphics/2017-2019/Statehwymap_front17-19.pdf.
The Court notes defendants’ data (Dkt. No. 101-1, at 4-5) indicate that 526 women in the
aforementioned counties received medication abortions in 2017.
12
Benton, Carroll, Crawford, Madison, Sebastian, and Washington counties are more than
150 miles away from Little Rock (Dkt. No. 84, at 50).
13
Boone, Franklin, Johnson, and Newton counties are 100 to 150 miles away from Little
Rock (Dkt. No. 84, at 50).
40
approximately 8 women.
Accordingly, applying Dr. Heflin’s methodology to Northwest
Arkansas, approximately 208 women will forgo an abortion entirely. Using 208 women as the
numerator, if the Court credits Dr. Ho and Ms. Williams’ representations that 935 medication
abortions occurred in Arkansas in 2017, this means that at least 14 22% of all women seeking
medication abortions in Arkansas will forgo an abortion entirely.15 If 921 is the denominator, then
at least approximately 23% of all women seeking medication abortions in Arkansas will forgo
one.16 If, on the other hand, the Court credits defendants’ data that Arkansas residents sought 838
medication abortions in Arkansas in 2017, then if 208 women are prevented from obtaining an
abortion, that means at least 25% of Arkansas residents seeking medication abortions in Arkansas
will forgo an abortion entirely.17
Dr. Heflin’s Data, Applied To Women In
Benton And Washington Counties
(iii)
Defendants also object to Dr. Heflin’s conclusions on the grounds that the study she relies
upon measures decreases in the abortion rate due to increased travel distances once an abortion
clinic is closed (Dkt. No. 101, at 28). Dr. Solanky specifically criticizes Dr. Heflin’s conclusions
on the grounds that “of the 14 Arkansas Counties she has based her computations on, 11 (=78.6%)
are not less than 50 miles from the Fayetteville facility.” (Dkt. No. 101-2, Solanky Aff., ¶ 44). The
Court disagrees with Dr. Solanky’s criticism.
14
The Court focuses upon those women who live in Northwest Arkansas to illustrate that
Dr. Heflin’s overall conclusion is consistent even if out-of-state residents are excluded from the
calculation.
15
208/935=22%.
16
208/921=23%
17
208/838=25%
41
For illustration purposes only, and to explore Dr. Solanky’s criticism that Dr. Heflin
inappropriately included in her calculations women whose travel distances will not increase
specifically to alter her conclusions, the Court examines what percentage of women seeking
medication abortions in Arkansas would forgo an abortion entirely if the Court were to restrict its
analysis to a group of women who no party can dispute would experience an increase in travel
distance of more than 150 miles as a result of the contracted physician requirement.
With few exceptions, any woman living in either Benton or Washington County will face
increased travel distances of approximately 150 miles or more to receive an abortion as a result of
the contracted physician requirement. Dr. Heflin’s data indicate that 404 women residing in
Benton and Washington counties sought medication abortions at the Fayetteville clinic in 2017
(Dkt. No. 84, at 50).18 The Court acknowledges that more women in Arkansas likely will face an
increase of more than 150 miles as a result of this requirement, but the Court focuses on this class
of women for illustration purposes, as there can be no dispute that these women will be forced to
increase their travel distance between approximately 150 to 200 miles due to the cessation of
abortion at the Fayetteville clinic. Again, applying Dr. Heflin’s 40% metric to these women, the
Court concludes that 162 of these women will be forced to forgo an abortion entirely as a result of
the increased travel burden.19 Using 162 women as the numerator, if the Court credits Dr. Ho and
Ms. Williams’ representations that 935 medication abortions occurred in Arkansas in 2017, this
means that at least 17% of all women seeking medication abortions in Arkansas will forgo an
18
182 women in Benton County sought abortions in Fayetteville in 2017, and 222 women
in Washington County sought abortions in Fayetteville in 2017. 182+222=404.
19
404*40%=162.
42
abortion entirely.20 If the Court uses 921 as the denominator, then at least 17% of all women
seeking medication abortions in Arkansas will forgo one entirely.21 If the Court credits defendants’
data that Arkansas residents sought 838 medication abortions in Arkansas in 2017, then at least
19%22 of Arkansas residents seeking medication abortions in Arkansas will forgo an abortion
entirely.23
Dr. Henshaw’s Data, Applied To Women
In Northwest Arkansas
(iv)
The Court also reviews the data as it existed in the record prior to the Eighth Circuit’s
decision in Jegley. According to defendants’ evidence, in 2014 there were 551 medication
abortions sought by Arkansas residents (Dkt. No. 55-8, Aff. Kakkar, ¶ 7). The record does not
indicate how many non-residents sought medication abortions in 2014. Plaintiffs submit the
affidavit of Dr. Stanley Henshaw, who opines that “an additional travel burden of 100 miles will
cause 20 to 25% of women who would have otherwise obtained abortions not to obtain them.”
20
162/935=17%.
21
162/921=17%.
22
162/838=19%.
Plaintiffs’ data show that the overwhelming majority of the medication abortions
performed in Arkansas occurred at PPAEO’s Fayetteville clinic: of the 935 medication abortions
performed in Arkansas in 2017, 653, or 70%, of those occurred at the Fayetteville clinic (Dkt. No.
84, Supp. Ho. Decl. ¶ 6; Williams Decl., ¶ 8). The Court notes that other courts to review asapplied challenges have applied some variant of the “large fraction” test. See Williams II, 296 F.
Supp. 3d at 1139-1141 (applying “large fraction” test to as-applied challenge regarding an abortion
clinic in Columbia, Missouri); Williamson, 120 F. Supp. at 1311-12 (determining that abortion
regulation was unconstitutional as applied to abortion clinic in Tuscaloosa, Alabama, and
discussing effects of that regulation on various classes of women in Alabama). If the Court were
to perform a large fraction analysis based upon an as-applied challenge to Section 1504(d)’s effect
in Northwest Arkansas only, presumably the denominator in that analysis would be smaller than
the denominators used by the Court in the facial analysis it conducts here, resulting in a higher
overall percentage of women burdened by the contracted physician requirement.
23
43
(Dkt. No. 28, Henshaw Decl., ¶¶ 11, 22). He also opines that “greater distances will be a barrier
to an even higher percentage of women” and that “the effect of eliminating the closest abortion
provider would likely be even more burdensome for women in and around Fayetteville . . . .” (Id.,
¶ 22). Dr. Henshaw does not quantify the percentage of women who will forgo an abortion if they
have a travel distance greater than 100 miles, though he does acknowledge that such greater
distances will lead to higher reductions in the abortion rate—reductions of more than 20 to 25%
(Id., ¶¶ 11, 22). According to the 2014 data provided by defendants, Arkansas residents in Benton,
Boone, Carroll, Crawford, Johnson, Madison, Franklin, Newton, Sebastian, and Washington
counties (each more than 100 miles distant from Little Rock) sought 288 medication abortions.
The Court assumes these medication abortions were performed in Fayetteville, as Fayetteville is
closer to these counties than Little Rock. Applying Dr. Henshaw’s reduction estimate to these
data, the Court concludes that at least 58 to 72 women would have forgone an abortion entirely
due to the increased travel distance.24 This means that at least 11 to 13% of the 551 medication
abortions sought in 2014 would not have occurred.25
Applying Dr. Henshaw’s reduction estimate to the 2017 data on women living in counties
distant to Little Rock presents different results. In 2017, according to Dr. Heflin, 519 women in
Benton, Boone, Carroll, Crawford, Johnson, Madison, Franklin, Newton, Sebastian, and
Washington counties sought medication abortions in Fayetteville. If 20 to 25% of those women
would not receive any abortion as a result of the contracted physician requirement, at least 104 to
130 women would forgo an abortion.26 This means that approximately 11 to 14% of the 935
24
288*20%=58 and 288*25%=72.
25
58/551=11% and 72/551=13%.
26
519*20%=104 and 519*25%=130.
44
medication abortions sought in 2017 would not have occurred.27 If 921 is the denominator, then
at least approximately 11 to 14% of those women would forgo an abortion.28 If the Court credits
defendants’ assertion that only 838 Arkansas residents sought medication abortions in Arkansas
in 2017, Dr. Henshaw’s data indicates that approximately 12 to 16% of those medication abortions
would not have occurred.29
Dr. Heflin’s Data Versus Dr. Henshaw’s
Data
(v)
The Court credits Dr. Heflin’s data and methodology as they are based upon more up-todate information. Dr. Henshaw’s conclusions, although well-supported, were submitted to the
Court in 2016 and are based on information that is out-of-date compared to the Cunningham study
that Dr. Heflin relies upon. In fact, the most up-to-date analysis Dr. Henshaw cites is a 2014 study
of the effects of the abortion restrictions that were eventually overturned in Hellerstedt (Dkt. No.
28, Henshaw Decl., ¶ 10). These restrictions were also the subject of the Cunningham study, but
the Cunningham study has the added benefit of one years’ additional data from 2015 (Dkt. No. 84,
Heflin Decl., ¶ 12). Accordingly, the Court credits Dr. Heflin’s data and conclusions over Dr.
Henshaw’s. The Court also observes that Dr. Heflin’s conclusions are not inconsistent with Dr.
Henshaw’s. Dr. Henshaw’s data is not incorrect but applying it to all women facing a burden due
to Section 1504(d) on these facts leads to incomplete results. Dr. Henshaw acknowledges travel
distance over 100 miles leads to a greater than 20 to 25% reduction in abortions. He did not
quantify how much greater a reduction given increased travel distances over 100 miles. Dr. Heflin
27
104/935=11% and 130/935=14%.
28
104/921=11% and 130/921=14%.
29
104/838=12% and 130/838=16%.
45
does (Compare Dkt. No. 28, Henshaw Decl., ¶¶ 11, 22, with Dkt. No. 84, Heflin Decl., ¶ 13). She
provides a percentage to be applied in that scenario. The Court is satisfied that scenario regarding
travel distances over 100 miles exists here.
The Court also concedes that neither researcher’s estimates may be precisely correct. The
highest percentage generated by analyzing these data indicates that 28% of women seeking
medication abortion in Arkansas will forgo one entirely as a result of the contracted physician
requirement, while the lowest percentage is 11%. The average of these two percentages is
approximately 20%. The Court considers all of these figures when assessing the proportion of
women in Arkansas seeking medication abortions who will forgo one entirely as a result of the
contracted physician requirement.
(4)
Burdens Imposed: Women Who Will Travel For
Surgical Abortion
The record evidence reveals that a large fraction of women who would otherwise receive
medication abortions at the Fayetteville clinic will face various and substantial burdens if they
must travel to LRFP for surgical abortions. Per the data submitted by Dr. Ho and Ms. Williams,
653 medication abortions were performed at the Fayetteville clinic in 2017, out of a total of 935
medication abortions in Arkansas (Dkt. No. 84, Supp. Ho. Decl. ¶ 6; Williams Decl., ¶ 8).
Defendants assert that a total of 921 medication abortions occurred in Arkansas in 2017 (Dkt. No.
101-1, at 5-8). Accordingly, if all of those women seek an abortion in Little Rock, approximately
70 to 71%30 “of women seeking medication abortions in Arkansas,” Jegley, 864 F.3d at 959, face
increased travel distances due to the contracted physician requirement. If, as discussed above,
30
653/935=70% and 653/921=71%.
46
approximately 20831 women in Northwest Arkansas forgo an abortion entirely, then approximately
46%32of women seeking medication abortions in Arkansas will face increased travel distances.
Limiting this analysis to the 519 women in Northwest Arkansas who sought medication abortions
in Fayetteville in 2017 (Dkt. No. 84, at 50), even if 208 of those women forgo an abortion entirely,
the remainder—60%—of Northwest Arkansas women seeking a medication abortion will face
increased travel distances.33
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), appeal filed, No. 17-1883 (7th Cir. 2017) (citing
Hellerstedt, 136 S. Ct. 2313). Nothing in Hellerstedt or the Eighth Circuit’s decision alters this.
A round-trip drive from Fayetteville to Little Rock is 380 miles (Dkt. No. 2, Fine Decl., ¶ 52; de
As discussed previously, by applying Dr. Heflin’s reduction estimate to the number of
women in Northwest Arkansas who sought an abortion at the Fayetteville clinic in 2017, the Court
concludes that 208 women in Northwest Arkansas would forgo an abortion entirely due to the
contracted physician requirement. If the Court used Dr. Heflin’s estimate that 235 women will
forgo an abortion, then at least approximately 45 to 48% of women seeking medication abortions
in Arkansas will face increased travel distances. 653-235=418. 418/935=48% and 418/921=45%.
31
32
635-208=427. 427/935=46% and 427/921=46%.
33
519-208=311. 311/519=60%.
47
Baca Decl., ¶ 18). Thus, due to Arkansas’ 48-hour waiting period, a woman living in Fayetteville
must travel 760 miles to obtain a surgical abortion in Little Rock. Women living in Northwest
Arkansas are similarly burdened.
As an example, since it is beyond dispute that those women who live in Washington and
Benton County, Arkansas, will face increased travel distances as a result of the contracted
physician requirement, the Court notes that the undisputed record indicates that in 2017, 222
patients from Washington County, Arkansas, and 182 patients from Benton County, Arkansas,
received medication abortions from plaintiffs’ Fayetteville location (Dkt. No. 84, at 50).
Accordingly, 40434 residents of those two counties sought medication abortions from the
Fayetteville clinic. All of these women—43% of the 935 (or 44% of the 921) women who sought
medication abortions in Arkansas in 2017 and 48% of the 838 Arkansas residents who sought
medication abortions in Arkansas in 2017—would now face two round-trip commutes to Little
Rock to complete a surgical abortion.35 Due to Arkansas’ 48-hour waiting requirement, the record
evidence indicates that some of those women who would otherwise have received medication
abortions in Fayetteville will be forced to take off two full days of work in order to make two
round-trips to Little Rock to have an abortion (Id., ¶ 20). These women will be forced to pay for
additional travel expenses, to pay childcare expenses, to lose wages, and perhaps to risk their
employment altogether. See Planned Parenthood of Indiana and Kentucky Inc., 273 F. Supp. 3d
at 1037. Such travel is especially difficult for low-income women who do not have access to a
car. The record evidence indicates that 57% of the women who receive medication abortions at
34
182+222=404.
35
These figures are derived from the following calculations:
404/921=44%; and 404/838=48%.
48
404/935=43%;
the Fayetteville clinic live at or below 110% of the federal poverty level (Dkt. No. 84, Supp. Ho.
Decl. ¶ 21).
Some women who will seek abortion services in Little Rock will be delayed by the
increased travel distances and increases in costs, forcing these women into later abortions that are
both riskier and more expensive, if they can obtain them at all (Dkt. Nos. 2, Fine Decl., ¶¶ 53-54;
29, Ho Decl., ¶¶ 20-24). There is evidence in the record supporting this (Dkt. Nos. 28, Henshaw
Decl. ¶ 20; 2, Fine Decl. ¶ 54). Further, inability to travel to the sole remaining clinic in the state
will lead some women to take desperate measures, such as attempting to self-abort or seeking care
from unsafe providers, which would further put their health at risk (Dkt. No. 2, Fine Decl., ¶ 55).
Defendants argue that, for two reasons, plaintiffs overstate the burdens presented by
increased travel times. First, defendants argue that Dr. Heflin “erroneously ignored closer out-ofstate abortion facilities that commonsense tells us a patient is more likely to visit and, thereby,
grossly overstates the distances many patients would need to travel.” (Dkt. No. 101, at 28-29). As
this Court held in its prior preliminary injunction Order, it will not factor into its analysis that
neighboring states provide opportunities across state lines for Arkansas residents to obtain an
abortion (Dkt. No. 60, at 66-67). 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); 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 also Strange III, 33 F. Supp. 3d at 1360-61 (even if outof-state providers were considered, 80 mile distance to out-of-state clinic means the “threshold
difficulties related to losing an abortion clinic in her home city” still present a burden). Given
49
these authorities 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.
The Court acknowledges that the Supreme Court did not address whether out-of-state
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. Hellerstedt, 136 S. Ct. at 2318. This Court infers that if the availability of an
out-of-state abortion provider within 12 miles was not enough to ameliorate the burdens imposed
by Texas’ surgical-center requirement, then the approximately 100 mile distance between
Fayetteville and Tulsa, Oklahoma, does not relieve the undue burden created by Section 1504(d)’s
contracted physician requirement.
Second, defendants argue that Dr. Heflin overstates the burdens caused by the contracted
physician requirement because she does not address the fact that, under Arkansas law, any licensed
physician may provide an abortion (Dkt. No. 101, at 28). Defendants do not cite Arkansas statutes
or regulations that allow any licensed physician to provide abortions, nor do they cite the number
of abortions performed by private providers.
50
On the other hand, the Court acknowledges that plaintiffs bear the burden at this stage of
the litigation. The record evidence indicates that approximately 935 medication abortions occurred
in 2017 at the three abortion clinics in Arkansas (Dkt. Nos. 84, Ho Decl., ¶ 6; Williams Decl., ¶ 8)
(843 medication abortions at plaintiffs’ two clinics and 92 at LRFP’s clinic). Of those medication
abortions that occurred at the Fayetteville clinic, approximately 71 of those were for non-Arkansas
residents (Dkt. No. 84, at 50). Therefore, based upon these data, Arkansas residents received
approximately 864 medication abortions in 2017. Defendants present data that indicate there were
921 total medication abortions and 838 medication abortions for Arkansas residents in 2017 (Dkt.
No. 101-1, at 5). The source of the discrepancies in these data is unclear at this stage of the
litigation.
Further, defendants present data that Arkansas residents sought 2,039 surgical abortions in
2017 and non-residents sought 289 surgical abortions in Arkansas, for a total of 2,328 surgical
abortions in Arkansas in 2017 (Id., at 4-8). LRFP, the only surgical abortion provider in Arkansas,
indicates that it conducted 2,334 surgical abortions in 2017 (Dkt. No. 84, Williams Decl. ¶ 8).
Again, the discrepancy between these data sets is not explained by the parties at this stage of the
litigation. In any event, if private physicians unaffiliated with the three abortion clinics in
Arkansas were conducting medication or surgical abortions, then the Court would expect the
number of abortions reported by plaintiffs likely to be lower than those reported by defendants.
This is not the case. While plaintiffs carry the burden of proof, they are not required to provide
negative proof.
Finally, “[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 institution in which the induced termination of pregnancy was
51
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). Defendants—who presumably have access to such records—have
presented none to the Court. At this stage of the litigation, there is no record evidence to indicate
that private physicians are currently providing abortions in Arkansas.
(5)
Burdens Imposed: All Women Seeking Abortions At
LRFP’s Little Rock Clinic
The record also contains evidence that all women seeking medication abortions in
Arkansas—not just those who would otherwise have received a medication abortion in
Fayetteville—will be burdened by the effects of the contracted physician requirement. If the
contracted physician requirement takes effect, and if plaintiffs are unable to comply with the
requirement as they represent, then there will only be one abortion provider in Arkansas—LRFP
located in Little Rock, and LRFP will only be able to provide surgical abortions (Dkt. No. 84,
Williams Decl., ¶ 4).
Based upon the record evidence before the Court, LRFP provided 92 medication abortions
and 2,334 surgical abortions in 2017 (Dkt. No. 84, Williams Decl. ¶ 8). Dr. Ho represents that, in
2017, PPAEO’s physicians performed 843 medication abortions in Arkansas, both in Little Rock
and in Fayetteville (Dkt. No. 84, Supp. Ho. Decl. ¶ 6). Plaintiffs therefore assert that 935
medication abortions were performed in Arkansas in 2017.36 Defendants assert that a total of 921
women sought medication abortions in Arkansas in 2017 (Dkt. No. 101-1, at 5-8). Minus the
number of women who will forgo an abortion due to the burdens imposed by the contracted
physician requirement, the remainder of the women who would previously have sought medication
36
843+92=935.
52
abortions from PPAEO will be forced to turn to LRFP for a surgical abortion. Applying the Court’s
prior finding that at least approximately 208 Arkansas residents in Northwest Arkansas will forgo
abortions entirely, see supra, the Court presumes that between approximately 713 to 727 women
who would otherwise have sought medication abortions will seek surgical abortions from LRFP.37
This is an approximately 31% increase from the number of surgical abortions LRFP
provided in 2017.38 It is unclear on this record whether LRFP will be able to absorb such an
increase in the number of surgical abortions or whether that remaining clinic will be able to cover
fully the needs of women who might have sought medication abortions at PPAEO’s clinics. While
the record at this stage of the litigation does not reflect whether LRFP could absorb such an
increase in demand for surgical abortions, the Court—like the Supreme Court in Hellerstedt—
declines to assume that “medical facilities . . . operate below capacity as a general matter.” 136 S.
Ct. at 2317. Due to an increase in surgical abortions at LRFP’s facility, at a minimum, the care
provided to each surgical abortion patient would likely not be equal in quality to the care provided
prior to the enforcement of the contracted physician requirement: the LRFP clinic would become
more crowded, and the women who seek abortions there are “less likely to get the kind of
individualized attention, serious conversation, and emotional support that doctors at less taxed
facilities may have offered.” Hellerstedt, 136 S. Ct. at 2318. To imply otherwise contradicts
“common sense,” which “suggests that, more often than not, a physical facility that satisfies a
37
921-208=713 and 935-208=727. The 208 number is derived by the Court by applying
Dr. Heflin’s reduction estimate to the number of women in Northwest Arkansas who, according
to plaintiffs, sought an abortion at the Fayetteville clinic in 2017. If the Court uses Dr. Heflin’s
estimate that 235 women will forgo an abortion, then 700 to 686 women will still seek surgical
abortions at LRFP’s clinic. 921-235=686 and 935-235=700. This would present LRFP with a 29
to 30% increase in surgical abortions. 686/2,334=29% and 700/2,334=30%.
38
727/2,334=31% and 713/2,334=31%.
53
certain physical demand” will not be able to meet additional demand “without expanding or
otherwise incurring significant costs.” Id. at 2317 (noting that remaining clinics would go from
providing 14,000 abortions annually to “60,000 to 70,000,” a five-fold increase); see Miller, 299
F. Supp. 3d at 1263-64 (noting that closing all but three abortion clinics in Alabama will reduce
capacity and impose a burden on women seeking an abortion from those clinics).
Accordingly, based upon the record evidence at this stage of the litigation, the Court
concludes that the contracted physician requirement will likely force those women who choose to
seek a surgical abortion at LRFP’s Little Rock facility to endure longer wait times and reduced
quality of care compared to the quality of care they would have received if the contracted physician
requirement were not enforced, even if LRFP can absorb the increased demand for surgical
abortions. As LRFP will be the sole remaining abortion provider in Arkansas, the Court concludes
that this burden will fall upon 100% of the women seeking any abortion in Arkansas after Section
1504(d) takes effect.
(6)
Cumulative Burden
The record evidence at this stage of the litigation, viewed cumulatively, indicates that the
contracted physician 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)). The record
evidence indicates that a considerable fraction of women seeking abortions—71%—prefer
medication abortions to surgical ones for various reasons (Dkt. No. 84, Supp. Ho Decl. ¶ 23). Of
those women who prefer medication abortions over surgical ones, 100% of them cannot obtain a
medication abortion in Arkansas. The record evidence shows that the contracted physician
requirement will render Northwest Arkansas without any operational abortion provider.
Depending upon how the numerator and denominator of the “large fraction” are manipulated,
54
upwards of 28% to as low as 11% of all women seeking medication abortions in Arkansas will be
forced to forgo any abortion altogether. The record evidence suggests that at least 43% and as
many as approximately 71% of all women seeking medication abortions in Arkansas will be forced
to travel greater distances to receive an abortion as a result of the contracted physician requirement.
Finally, the record evidence suggests that, if LRFP becomes the sole option for an abortion in
Arkansas, any women seeking an abortion in Arkansas will be burdened by longer wait times and
reduced quality of care, even if LRFP can absorb the increased demand for surgical abortions.
Per Hellerstedt, the Court considers these burdens cumulatively to determine if a large
fraction of women seeking medication 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). The Court also notes binding Eighth Circuit
precedent which suggests that 18% is a “large fraction.” Planned Parenthood, Sioux Falls Clinic,
63 F.3d at 1462 n.10; cf. Hellerstedt, 136 S. Ct. at 2313 (noting undue burden existed due to clinic
closures but omitting any discussion of the number of abortions that would be foregone as a result).
Considering all of the burdens presented in the record evidence and the controlling precedents, the
Court finds that, for “a large fraction of women seeking medication abortions in Arkansas,” Jegley,
864 F.3d at 959, the contracted physician 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)).
4.
Deference To Legislative Findings
As part of evaluating the benefits of a regulation, this Court must evaluate the Arkansas
General Assembly’s findings when enacting the regulation. When this Court initially examined
the legal issues presented, courts differed in their determination as to what level of deference is
55
appropriately given by a court to a legislative enactment affecting a woman’s right to an abortion.
Prior to Hellerstedt, the Fifth Circuit articulated a level of deference akin to rational basis review.
See Cole, 790 F.3d at 575-76. In Hellerstedt, the Supreme Court examined this issue and resolved
it.
Specifically, the Supreme Court made clear that “[t]he statement that legislatures, and not
courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case
law. 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. at 2310. 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 Section 1504(d)
which could be interpreted to conflict with the Court’s findings. See Ark. Code Ann. § 20-161502 (legislative findings). The Court has given the legislature’s findings careful consideration.
Here, most of the legislative findings are no longer accurate or current, given the FDA’s update to
the FPL of Mifeprex. Further, based on the evidence presented here and the Supreme Court’s
Hellerstedt majority opinion, this Court finds that, to the extent that the legislature made factual
findings that early-term abortions are unsafe, those findings were simply “incorrect.” Gonzales,
56
550 U.S. at 165. The evidence in this case, and in the prior cases cited by this Court including
Hellerstedt, is clear that the procedures are remarkably safe. On these matters, deference to the
legislature’s factual findings would be inappropriate. Id.
In this case, unlike in others, the legislature made no findings regarding an identified set of
perceived problems with the current method of care for medication abortion patients that the
contracted physician requirement is intended to address. Cf. Strange III, 33 F. Supp. 3d at 137677 (discussing and evaluating legislative findings specific to an admitting privileges requirement).
Further, the legislature made no findings that the contracted physician requirement would solve
such problems or do much to solve such problems, if such problems even existed. For this
additional reason, because most of this Court’s findings concern the contracted physician
requirement and the stated goals of the legislature, this Court’s findings do not otherwise conflict
with the legislative findings.39 Having resolved this, the Court turns to analyze the purported
benefits of Section 1504(d).
39
There are two legislative findings that the Court highlights at this point in the litigation.
The first finding is: “Abortion-inducing drugs are associated with an increased risk of
complications relative to surgical abortion and the risk of complications increases with advancing
gestational age, and, in the instance of the Mifeprex regimen, with failure to complete the two-step
process. . . .” See Ark. Code Ann. § 20-16-1502 (legislative findings). The second finding is:
“Medical evidence demonstrates that women who use abortion-inducing drugs incur more
complications than those who have surgical abortions . . . .” (Id.).
At this early stage of the litigation, there is record evidence before this Court that: “[t]he
FDA report on adverse events associated with mifepristone medication abortion covers a period
of more than 10 years (from approval of mifepristone in September 2000 through April 2011),
during which approximately 1.52 million women had a medication abortion.” (Dkt. No. 2, at 5-6
(citing U.S. Food & Drug Admin., Mifepristone U.S. Postmarketing Adverse Events Summary
through 04/30/2011, http://www.fda.gov.downloads/Drugs/DrugsSafety/PostmarketDrugSafety
InformationforPatientsandProviders/UCM263353.pdf)). “The FDA data reflects that medication
abortion is extremely safe, with a mortality rate of less than 1 per 100,000 abortions, which is
comparable to the rate for first-trimester surgical abortion.” Id. Both of these rates are lower than
the mortality rate for childbirth, which is 8.8 per 100,000; the mortality rate associated with
penicillin which is 2 per 100,000; and the mortality rate from outpatient plastic surgery procedures
in accredited facilities which is 1.7 per 100,000 procedures. Id. (citing Elizabeth Raymond &
57
5.
Benefit Of Section 1504(d)’s Contracted Physician Requirement
The Court next turns to examine the benefits, if any, of Section 1504(d)’s contracted
physician 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 Section 1504(d)’s contracted
physician 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 Section 1504(d)’s contracted physician requirement furthers a legitimate interest of the state,
as compared to Arkansas’ pre-existing regulations affecting abortions.
Second, there is precedent from the Eighth Circuit in Women’s Health Center of West
County, Inc. v. Webster, 871 F.2d 1377 (8th Cir. 1989), in which the court addressed a Missouri
statute requiring abortion providers to have admitting privileges. The Court is mindful that
David Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth in the United
States, 119 Obstet. & Gynecol. 215, 216-17 (Feb. 2012); Alfred I. Neugut et al., Anaphylaxis in
the United States: An Investigation Into Its Epidemiology, 161 Archives Internal Med. 15, 18
(2001); Elizabeth Raymond et al., Mortality of Induced Abortion, Other Outpatient Surgical
Procedures and Common Activities in the United States, 90 Contraception 476, 468 (2014)).
Further, these two legislative findings seem inconsistent with the discussion in other court opinions
regarding similarities and differences in complications from medication and surgical abortion. See
Strange III, 33 F. Supp. 3d at 1365-67 (observing that, although still exceedingly rare,
complications from surgical abortion may be more severe and dangerous to the woman).
58
Webster was decided before Casey and before many other legal, social, and medical changes
surrounding abortion. The Court also is aware that the evidence in Webster was that only one
doctor state-wide could not comply with the requirement and that other doctors at that same clinic
could comply with the requirement, resulting in little impact to patients and little to no effect on
access to abortions statewide. Id. at 1381. As a result, the Court will examine Section 1504(d) in
the light of all controlling current authorities and on the current record evidence before it.
In Hellerstedt, the Supreme Court examined a statute that did not set forth any legislative
findings. Id. Specifically, the Supreme Court examined the Texas Legislature House Bill 2’s
(“H.B.2”) 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.”
Id. (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)).40
It also is important to note that H.B.2 imposed an admitting privileges requirement on
physicians performing both medication and surgical abortions, unlike Section 1504(d) of the Act
40
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., Cole, 790 F.3d at 596 n.44; Planned Parenthood of Greater Texas Surgical
Health Services v. Abbott, 748 F.3d 583, 598 n.13 (5th Cir. 2014). 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”).
59
under review by this Court, which imposes the requirement only on those performing medication
abortions.
a.
Health-Related Benefits Of Section 1504(d)
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
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).”
60
“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.’”
“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).
Further, the Supreme Court in Hellerstedt 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; Strange III, 33 F. Supp. 3d at 1378).
To the extent either party wishes to revisit the issue of the dangerousness of first trimester
and second trimester abortions, this Court determines that the Supreme Court has now spoken on
this subject, and this Court is required to follow. See Williams I, 263 F. Supp. 3d at 733 (granting
a preliminary injunction regarding a Missouri abortion law and noting that it “would be
impermissible judicial practice” to contradict the Supreme Court’s dangerousness finding in
61
Hellerstedt). Further, this Court agrees that the factual conclusions reached in Hellerstedt “were
not confined to Texas.” Id. at 733-34 (noting that the Hellerstedt majority relied on Texas,
Wisconsin, and Alabama case-law and amicus briefs and materials unrelated to Texas). “Lower
court judges are bound by Supreme Court precedent even if they seriously question what the Court
has done.” Id. at 733 (citing MKB Mgmt. Corp. v. Stenhjem, 795 F.3d 768, 772 (8th Cir. 2015)).
This Court acknowledges that Hellerstedt reviewed medication and surgical abortion
statistics and research, not just medication abortion. There is nothing in the record before this
Court that directly addresses the evidence relied on by the Supreme Court in Hellerstedt and makes
the case that a review of medication abortion statistics only would lead to a different conclusion.
PPAEO has provided medication abortions in Arkansas since 2008, and the record contains
evidence that it is “extremely rare” for PPAEO to refer a patient to a local emergency room or for
a patient to go to an emergency room on her own due to medication abortion complications (Dkt.
Nos. 29, Ho Decl., ¶ 16; 84, Supp. Ho Decl., ¶ 4). As a result, this Court determines that there is
“no significant health-related problem” Section 1504(d) is intended to address. Hellerstedt, 136
S. Ct. at 2311.
b.
Regulatory Benefits Of Section 1504(d)
The Court next turns to examine whether, despite there being no significant health-related
problem with medication abortion that Section 1504(d) of the Act is intended to address, there is
nonetheless a benefit from Section 1504(d) of the Act. The Eighth Circuit suggests Section
1504(d) of the Act may set a “floor of care,” such as was present in Texas. See Jegley, 864 F.3d
at 960 n.9. The Eighth Circuit also suggests that a “legal floor” “would constitute a benefit”
because it would prevent an abortion provider from, in the future, reducing their continuity-of-care
practices. Id. To examine the “floor of care” in Arkansas, the Court turns to examine the rules
62
and regulations in Arkansas that currently govern abortion providers, as well as cases from other
jurisdictions that compare the benefit of an abortion restriction against a purportedly pre-existing
“floor of care.”
(1)
Current Arkansas Rules And Regulations
As plaintiffs’ argue, defendants do not deny, and this Court acknowledges, abortion in
Arkansas is heavily regulated and monitored. As an example, the Arkansas Department of Health
in 2014 enacted a current set of “Rules and Regulations for Abortion Facilities.” See generally
Ark. Admin. Code § 007.05.2. The Court notes that PPAEO has provided medication abortions
in Arkansas since 2008, six years prior to the implementation of these regulations (Dkt. No. 84,
Supp. Ho Decl., ¶ 4). An “abortion facility” under the regulations is defined as “[a] clinic, health
center, or other facility in which the pregnancies of ten (10) or more women known to be pregnant
are willfully terminated or aborted each month, including non-surgical abortions.” Ark. Admin.
Code § 007.05.2-3(B). Abortion facilities are licensed by the state. Ark. Admin. Code § 007.05.24.
Their governance is prescribed by regulation, Ark. Admin. Code § 007.05.2-5, and the
organized governing body must include one member, who may be the medical director, “with local
representation which shall be legally responsible for maintaining patient care and establishing
policies for the facility and shall be legally responsible for the conduct of the facility.” Id. The
medical director must be “a physician currently licensed to practice medicine in Arkansas, and
who shall be responsible for the direct coordination of all medical aspects of the facility program.”
Ark. Admin. Code § 007.05.2-6(K). Operation of the facility is regulated, and the regulations
require “written policies and procedures developed and approved by the Medical Director and
Administrator which define the care provided at the facility.” Ark. Admin. Code § 007.05.2-6(L).
63
Only physicians who are currently licensed to practice medicine in Arkansas may perform
abortions. Ark. Admin. Code § 007.05.2-7(A)(1).
Each patient “shall have access to twenty-four (24) hour telephone consultation with either
a Registered Nurse or physician associated with the facility.” Ark. Admin. Code § 007.05.2-7(E).
A registered nurse is required to “plan, supervise, and evaluate the nursing care of each patient
from admission to the facility through discharge.” Ark. Admin. Code § 007.05.2-7(F). Counseling
services are required to be provided to each patient prior to the abortion and then, “each patient
shall be assessed by a Registered Nurse for counseling needs post-abortion . . . .” Ark. Admin.
Code § 007.05.2-7(G)(4).
Patients may only be discharged upon order of a physician. Ark. Admin. Code § 007.05.28(D). Further, at discharge, each patient is to receive “written instructions for post-abortion care,”
including “at least the following: (a) signs and symptoms of possible complications; (b) activities
allowed and to be avoided; (c) hygienic and other post-discharge procedures to be followed; (d)
abortion Facility emergency telephone numbers available on a twenty-four (24) hour basis; and (e)
follow up appointment, if indicated.” Ark. Admin. Code § 007.05.2-7(G)(5). Abortion facilities
are required to maintain a system for the completion and storage of patients’ medical records,
including but not limited to policies and procedures for the use of electronic medical records. Ark.
Admin. Code § 007.05.2-9.
Those medical records must include, among other things,
documentation of post-abortion patient education regarding the matters specified above. Ark.
Admin. Code § 007.05.2-9(B)(8). Abortion facilities shall have provisions for pharmaceutical
services as set out by regulation. Ark. Admin. Code § 007.05.2-11.
Among the regulations for program requirements, each “Abortion Facility shall have
written procedures for emergency transfer of a patient to an acute care facility.” Ark. Admin. Code
64
§ 007.05.2-8(B).
In addition, for complications, each general abortion facility “shall have
emergency drugs, oxygen and intravenous fluids available to stabilize the patient’s condition,
when necessary” and shall have an “ambu bag, suction equipment and endotracheal equipment . .
. in the clinical area for immediate access.” Ark. Admin. Code § 007.05.2-8(E)(1). Each medicalonly abortion facility “shall have oxygen, medication, oral airways and supplies available.” Ark.
Admin. Code § 007.05.2-8(E)(2).
The Arkansas Department of Health “may deny, suspend or revoke the license of any
Abortion Facility on the following grounds: violation of any of the provisions of the Act or Rules
and Regulations lawfully promulgated hereunder; and/or conduct or practices detrimental to the
health or safety of patients and employees of any such facilities.” Ark. Admin. Code § 007.05.28(G).
In other words, by regulation in Arkansas, abortion facilities must “have written procedures
for emergency transfer of a patient to an acute care facility.” Ark. Admin. Code § 007.05.2-8(B).
Further, on discharge, each patient “shall have access to twenty-four (24) hour telephone
consultation with either a Registered Nurse or physician associated with the facility,” Ark. Admin.
Code § 007.05.2-7(E), and each patient on discharge receives “written instructions for postabortion care,” including “at least the following:
(a) signs and symptoms of possible
complications; (b) activities allowed and to be avoided; (c) hygienic and other post-discharge
procedures to be followed; (d) abortion Facility emergency telephone numbers available on a
twenty-four (24) hour basis; and (e) follow up appointment, if indicated.” Ark. Admin. Code §
007.05.2-7(G)(5).
Plaintiffs are not free to alter or disregard these requirements without
jeopardizing the license of their facility.
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c.
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,
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. Planned Parenthood of
Wisconsin, Inc. v. Van Hollen, 738 F.3d 786, 799 (7th Cir. 2013) (“Van Hollen III”). 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
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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 913 (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. 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. at 913. The court
rejected the argument that such admitting privileges within 30 miles of a clinic were required to
ensure the “Good Housekeeping Seals 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 . . . .”).
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d.
Examining Alabama Law
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 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.” Strange II, 9 F. Supp. 3d at 1276. 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 in-effect regulations required the covering physician to “have admitting privileges
that permit her to perform ‘dilation and curettage, laparotomy procedures, hysterectomy, and any
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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. 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. 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.
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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. 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
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
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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 highquality 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
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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.41
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. Williamson, 120 F. Supp. 3d 1296 (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.
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. at 1301. That doctor
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).
41
72
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. 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. at 1302. 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.
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.
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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.
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
74
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. The court then analyzed the
three possible models for continuity-of-care first articulated in Strange III. Id. 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.
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. 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.” 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
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
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 1320.
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. 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
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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.
e.
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. 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.
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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.
f.
Examining Mississippi Law
In Currier, the Fifth Circuit examined Mississippi’s House Bill 1390 (“H.B. 1390”) which
required, as relevant to the dispute, 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).
In Currier, 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. Id. at 450-51. As a result, the record indicated the
only abortion clinic in Mississippi would close. Id. at 452-53. 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. Both courts applied rational basis review to the
proposed regulation as then required by controlling Fifth Circuit law at that time; the Supreme
Court in Hellerstedt later rejected that lower level of scrutiny for abortion regulations. Id. at 455,
459.
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g.
Other States Surrounding Arkansas
Even in Williams II, cited by defendants, the court explained at the temporary restraining
order stage in regard to a Missouri regulation very similar to Section 1504(d) of the Act that the
court “harbor[ed] serious doubts that requiring the Columbia clinic to contract with an OB/GYN
who will provide 24 hour a day, seven day a week treatment of all complications produces any
benefit to women or the State.” 296 F. Supp. 3d at 1140. The court did not alter this view of the
regulation’s purported benefits at the preliminary injunction stage, despite denying the request for
a temporary restraining order. Case No. 17-4207-cv-c-BP, 2018 WL 2927775, at *5-7 (W.D. Mo.
June 11, 2018).
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] . . . .”).
h.
Section 1504(d)’s Benefits
Having these controlling and persuasive precedents in mind, the Court turns to examine
the issues presented here. In regard to the state’s interests, defendants’ main argument is that this
provision purportedly ensures continuity-of-care for the woman having the abortion (Dkt. No. 55,
at 25). Defendants also claim that the Act’s contracted physician requirement “protects not only
the health of the woman having the abortion, but also the integrity, ethics, and reputation of the
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medical provider who performs it for her.” (Dkt. No. 55, at 5). See Ark. Code Ann. § 20-161502(b) (“[I]t is the purpose of this subchapter to . . . protect women from the dangerous and
potentially deadly off-label use of abortion-inducing drugs . . . .”).
As for continuity-of-care, the record evidence before the Court at the earlier preliminary
injunction stage has generally not changed; to the extent the record has changed, it does not
contradict the record developed at the earlier preliminary injunction stage of this litigation.
The Court begins its analysis of the state’s claimed interest by examining the details of the
contracted physician requirement. Section 1504(d) requires a contracted physician to agree to
handle complications that arise from medication abortion, Arkansas Code Annotated § 20-161504(d)(1), but nothing requires the contracted physician to handle actually such complications.
As many other courts have observed, if the patient does not call the abortion clinic or the contracted
physician, and instead presents her to a local emergency room, there is nothing to assure that the
contracted physician will care for the patient who has complications from a medication abortion,
see the patient before the complications arise, accompany the patient to the hospital, be able to
admit the patient to that hospital, treat her there, visit her, or call her. See e.g., Van Hollen III, 738
F.3d at 798 (“[N]othing in the statute requires an abortion doctor who has admitting privileges to
care for a patient who has complications from an abortion. He doesn’t have to accompany her to
the hospital, treat her there, visit her, call her, or indeed do anything that a doctor employed by the
hospital might not do for the patient.”); Williamson, 120 F. Supp. 3d at 1315 (same). If the
medication abortion patient takes her additional pill or pills to complete the medication abortion
procedure and has complications later near her home, but not near the clinic or the location where
the contracted physician has admitting privileges, the patient is just as apt to call PPAEO’s nurses
or physicians or, in cases where necessary, go to the nearest hospital emergency room if she is
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experiencing complications—a hospital at which the contracted physician under this provision is
not likely to have admitting privileges, especially in this case based on the patient population and
the distances traveled by those patients as described by PPAEO and Dr. Ho (Dkt. No. 2, de Baca
Decl., ¶ 4).
Given the mandatory language of Section 1504(d), it is unclear whether medication
abortion providers would be required to provide only the contracted physician’s phone number
and hospital with admitting privileges, regardless of the distance involved or the level of
emergency, or whether the option would still exist to provide the information and guidance PPAEO
and Dr. Ho currently provide, and are required to provide and document under Arkansas law, to
their patients, including their contact information and advice to proceed to the nearest emergency
room for troubling complications.
The contracted physician would be agreeing to be continuously on call, a difficult
commitment. There is nothing in this provision that requires the contracted physician to manage
his or her calls any differently than the record evidence establishes that PPAEO and Dr. Ho manage
such calls, which is to staff the telephone line with either a doctor or nurse practitioners competent
to answer questions and skilled enough to elevate concerns as necessary to a doctor trained and
able to respond (Dkt. No. 84, Supp. Ho Decl., ¶ 12). This requirement also cannot be changed by
PPAEO or Dr. Ho without jeopardizing their abortion facility license. See Ark. Admin. Code §
007.05.2-7(E) (requiring abortion facilities to provide patients with 24-hour access to telephone
consultation).
Nothing in the challenged provision ensures that the contracted physician will be familiar
with the details of the patient’s case or be able to access timely and effectively her medical records.
As other courts have observed, the likely scenario is that the contracted physician would contact
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PPAEO staff or Dr. Ho to obtain information about the patient’s medical records. PPAEO and Dr.
Ho are required to maintain medical records for all patients and are regulated by the Arkansas
Department of Health in doing so. See Ark. Admin. Code § 007.05.2-9.
Nothing in the statute requires that the contracted physician have the ability or experience
necessary to provide a surgical abortion; that is not a statutory requirement. PPAEO and Dr. Ho
contend that “the vast majority” of hospitals do not provide abortions and do not provide admitting
privileges to physicians who provide abortions (Dkt. Nos. 57 at 20 n.12; 57-2, Fine Rebuttal Decl.,
¶¶ 13-14).
The contract would be available to many upon demand, thereby assuring that the identity
of the contracted physician would become public knowledge. There is record evidence that
physicians who provide abortion services, or otherwise associate themselves with this practice,
subject themselves and their staff to protestors, harassment, potential violence, and professional
isolation (Dkt. No. 30, Stulberg Decl., ¶¶ 13-17). Other courts to examine these types of
regulations confirm this. Even if a willing physician could be found, there is record evidence that
clinics or hospitals associated with the physician are not likely to be similarly inclined, and the
provision requires disclosure of the hospital at which the contracted physician maintains admitting
privileges and which can handle any emergencies. There is record evidence that at least one
Arkansas hospital system, UAMS, did not permit its physicians to work with PPAEO (Dkt. No.
29, Ho Decl., ¶ 6). Other courts to examine these types of regulations also confirm this. See e.g.,
Van Hollen III, 738 F.3d at 792 (referring to “pretexts” for denying abortion physicians admitting
privileges); Kliebert I, 158 F. Supp. 3d at 491-97 (detailing difficulties experienced by abortion
physicians who attempted to gain admitting privileges at various hospitals in Louisiana).
83
PPAEO and Dr. Ho maintain that their protocols already guarantee continuity-of-care (Dkt.
No. 29, Ho Decl., ¶¶ 11-19). As an initial matter, PPAEO and Dr. Ho include record evidence that
only a small subset of medication abortion patients experience complications (Dkt. No. 57-2, Fine
Rebuttal Decl., ¶ 3). There is record evidence that, for most of the small number of patients who
experience complications or need follow-up care, many can be, and are, treated at the clinic or
health center, not a hospital (Dkt. No. 57-2, Fine Rebuttal Decl., ¶ 3). In those cases, a contracted
physician could provide no benefit (Id.). The Court further notes that PPAEO has provided
medication abortions in Arkansas since 2008, and the record contains evidence that it is “extremely
rare” for PPAEO to refer a patient to a local emergency room or for a patient to go to an emergency
room on her own due to medication abortion complications (Dkt. Nos. 29, Ho Decl., ¶ 16; 84,
Supp. Ho Decl., ¶ 4). To the extent either party wishes to revisit the issue of the dangerousness of
first and second trimester abortions, this Court determines that the Supreme Court has now spoken
on this subject, and this Court is required to follow. See Williams I, 263 F. Supp. 3d at 733.
PPAEO and Dr. Ho contend that, as with any outpatient medical procedure, when patients
are sent home from the health center, they are sent home with specific instructions for home care,
directions on how to contact PPAEO if they are experiencing any concerns or complications, and
an appointment for follow-up with PPAEO clinicians (Dkt. Nos. 2, de Baca Decl., ¶¶ 7-8; 57-1 de
Baca Rebuttal Decl., ¶¶ 2-3). Contrary to defendants’ assertions, there is no record evidence that
those instructions direct patients just to go to the emergency department if they need care or
otherwise indicate these patients are abandoned (Dkt. No. 29, Ho Decl., ¶¶ 11-19). Further, these
instructions are set out and required by Arkansas regulation. Ark. Admin. Code § 007.05.2-8(B).
That these instructions have been given to each patient is a matter PPAEO and Dr. Ho are required
84
to document in medical records. Ark. Admin. Code § 007.05.2-9. The Arkansas Department of
Health is tasked with ensuring compliance with the regulation. Id.
The record evidence demonstrates that, as required under Arkansas regulation, PPAEO
instructs patients that, if they are experiencing a complication or concern, they should call PPAEO
and speak to nurse practitioners or Dr. Ho, who are available 24 hours a day (Dkt. No. 84, Supp.
Ho Decl., ¶ 12). There is record evidence that those individuals can access patient charts and can
consult, as needed, with Dr. Ho, the PPAEO physician who provides medication abortions in Little
Rock, or the medical director of PPGP, Dr. Moore, who is board certified in obstetrics and
gynecology, a fellow of the ACOG, licensed to practice medicine in Kansas, and a provider of
both medication and surgical abortion with over 30 years of experience practicing medicine (Dkt.
Nos. 57-1, de Baca Rebuttal Decl., ¶¶ 3, 4, 6; 84, Supp. Ho Decl., ¶¶ 12-13). As necessary, the
physician can speak directly to the patients (Dkt. No. 57-1, de Baca Rebuttal Decl., ¶ 3). In most
cases, according to the record evidence presented by PPAEO and Dr. Ho, patients can be reassured
over the phone or, if need be, arrangements are made for the patient to return to the health center
for care (Dkt. No. 2, de Baca Decl., ¶ 9).
In what PPAEO and Dr. Ho describe as the “extremely rare” event that a case warrants
more immediate treatment, PPAEO staff will refer a patient to a local emergency department,
where she will obtain any necessary treatment from the hospital-based physicians (Dkt. Nos. 29,
Ho Decl., ¶ 16; 84, Supp. Ho Decl., ¶ 4). In Arkansas, if a medication abortion patient is referred
to a local emergency department, at least one of PPAEO’s physicians is notified (Dkt. Nos. 29, Ho
Decl., ¶¶ 16-18; 57-1, de Baca Rebuttal Decl., ¶ 5). There is record evidence that the PPAEO staff
always follows-up with the patient the next day, requests a release for hospital records from the
85
patient, and arranges for the patient to receive any necessary follow-up care recommended by
hospital physicians (Dkt. No. 57-1, de Baca Rebuttal Decl., ¶ 5).
Further, there is record evidence that, if a hospital physician ever needed information about
a patient who arrived at the hospital, that physician could also reach PPAEO nurses, nurse
practitioners, or physicians and PPAEO on-call physicians as necessary either during business
hours or after hours, and PPAEO staff have access to patient health records, which are maintained
electronically, even when they are out of the office (Dkt. Nos. 29, Ho Decl., ¶¶ 16-18; 57-1, de
Baca Rebuttal Decl., ¶ 6; 84, Supp. Ho Decl. ¶ 12-13). Again, the maintenance of medical records
is a matter of Arkansas regulation. Ark. Admin. Code § 007.05.2-9. PPAEO and Dr. Ho maintain
that this practice complies with the standard of care provided by other providers of outpatient care
(Dkt. Nos. 29, Ho Decl., ¶ 19; 57-2, Fine Rebuttal Decl., ¶ 5). As explained in this Court’s analysis,
other courts to have examined these issues agree.
PPAEO and Dr. Ho also maintain that this practice complies with the ACOG’s Practice
Bulletin 143, which states:
Women who undergo medical abortion may need to access emergency surgical
intervention, and it is medically appropriate to provide referral to another health
care provider. However, state or local laws may have additional requirements.
Clinicians who wish to provide medical abortion services either should be trained
in surgical abortion or should be able to refer to a clinician trained in surgical
abortion.
The American College of Obstetricians and Gynecologists, Medical Management of FirstTrimester Abortion (Practice Bulletin 143, March 2014) (“Practice Bulletin 143”), available at
https://www.acog.org/~/media/Practice%20Bulletins/Committee%20on%20Practice%20Bulletin
s%20--%20Gynecology/Public/pb143.pdf?dmc=1.
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Defendants dispute that PPAEO and Dr. Ho comply with the ACOG’s recommendation
but, in this Court’s view, fail to cite with specificity what is missing from the protocol that the
ACOG recommends. Contrary to defendants’ assertions, this Court is not swayed on the record
evidence before it currently that PPAEO and Dr. Ho’s practice is inconsistent with the ACOG
Practice Bulletin 143 (Dkt. No. 55, at 27-28). Consistent with ACOG’s recommendation, PPAEO
and Dr. Ho can and do refer patients in need of care to other providers and specifically “a clinician
trained in surgical abortion” (Dkt. Nos. 57-1, de Baca Rebuttal Decl., ¶ 7; 57-2, Fine Rebuttal
Decl., ¶ 9). PPAEO and Dr. Ho maintain that, in a small number of cases and after a repeat dose
of medication if the patient chooses, patients will need a surgical procedure after their medication
abortion has failed or is incomplete (Dkt. Nos. 29, Ho Decl., ¶ 17; 57-1, de Baca Rebuttal Decl., ¶
7). Record evidence establishes that regimen for medication abortion utilized by PPAEO has a
failure rate of less than 2% (Dkt. No. 57-2, Fine Rebuttal Decl., ¶ 37).
PPAEO and Dr. Ho make arrangements for referral of patients to other providers,
depending on where the patient lives, for the surgical abortion (Dkt. No. 57-1, de Baca Rebuttal
Decl., ¶ 7). The only surgical abortion provider in Arkansas is LRFP (Dkt. Nos. 57-1, de Baca
Rebuttal Decl., ¶ 7; 84, Williams Decl., ¶ 4). PPAEO and Dr. Ho also maintain that surgical
completion does not require urgent or hospital-based care, and PPAEO and Dr. Ho state that they
do not just refer their patients to the emergency department, despite defendants’ claim (Dkt. Nos.
29, Ho Decl. ¶¶ 11-19; 57-1, de Baca Rebuttal Decl., ¶ 7). PPAEO and Dr. Ho contend that their
protocols for treating a patient experiencing a rare complication after medication abortion are both
consistent with the standard of care and provide continuity-of-care (Dkt. Nos. 29, Ho Decl., ¶¶ 1119; 57-2, Fine Decl., ¶¶ 32-39). As explained in this Court’s analysis, other courts to have
examined these issues agree.
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Given the record evidence presented at this stage, the Court is skeptical that any benefit is
conferred by § 1504(d).
i.
Defendants’ Affidavits
The limitations in § 1504(d) as identified by the Court seem not to be acknowledged or
addressed by the individuals whose affidavits defendants submit. Defendants’ witness affidavits
also do not specifically identify in relation to PPAEO and Dr. Ho’s protocol—which is currently
required under Arkansas regulations—what should be modified or how the contracted physician
requirement serves to effectuate that modification. These witnesses’ testimony offered by affidavit
seems disconnected with the contracted physician provision and evidences unfamiliarity with
PPAEO and Dr. Ho’s existing protocol. Regardless of which party bears the burden in relation to
the state’s interest, the lack of specificity makes defendants’ written submissions less compelling
at this stage.
Donna Harrison, M.D., the executive director of the American Association of Pro-Life
Obstetricians and Gynecologists (“AAPLOG”), states that “[s]ince complications from medical
abortions are common, not rare, it is reasonable and medically necessary that the abortion provider
have a concrete plan to quickly and effectively handle the predictable complications that arise after
drug-induced abortion.” (Dkt. No. 55-4, Decl. of Donna Harrison, M.D., in Supp. of Dft.’
Response in Opposition to Plt.’s Mot. For TRO and/or Prelim. Inj. ¶ 40 (“Harrison Decl.”)).
Defendants argue that PPAEO’s management of patient emergencies is insufficient to ensure
continuity-of-care (Id., ¶ 45). The Court determines that, in the light of the factual underpinning
accepted by the majority in Hellerstedt, Dr. Harrison’s statements regarding the incidence of
complications from medication abortions must be rejected. The Court also considers that Dr.
Harrison does not indicate that she provides abortions, medication or otherwise, in her practice.
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Dr. Harrison also notes that, since 2002, she has focused her professional activities on the
American Association of Pro-Life Obstetricians and Gynecologists (Id., ¶ 3). Given the record in
this case, Dr. Harrison’s view of what PPAEO and Dr. Ho offer patients appears inaccurate and
incomplete.
Defendants also present an affidavit from Kevin Breniman, M.D., who is of the opinion
that the Act “ensures the continuity of care” (Dkt. No. 55-7, Aff. of Kevin Breniman, M.D., in
Supp. of Dft.’ Response in Opposition to Plt.’s Mot. For TRO and/or Prelim. Inj., ¶ 7) (“Breniman
Aff.”). He states that admitting privileges “ensure that a physician is qualified and competent in
his or her stated area of practice.” (Breniman Aff., ¶ 4). Current Arkansas regulations require the
medical director for an abortion facility and any doctor performing an abortion in Arkansas to be
licensed by the State of Arkansas. Ark. Admin. Code § 007.05.2-6(K). The record evidence is
unclear as to what Arkansas hospitals require for admitting privileges and whether, based on what
is required, acquiring admitting privileges provides any incremental evidence of qualification or
competence over and above what Arkansas law currently requires. Further, the record does not
include evidence that Dr. Breniman has provided abortions to his patients.
Scott Archer, M.D., who is Chief of Emergency Medicine for Saline Memorial Hospital
and another defense witness, implies that admitting privileges are based on qualifications and
competence as a practitioner (Dkt. No. 55-6, Aff. of Scott Archer, M.D., in Supp. of Dft.’ Response
in Opposition to Plt.’s Mot. For TRO and/or Prelim. Inj. ¶ 3) (“Archer Aff.”). There is record
evidence, and other courts have determined, that although competence may be a factor in admitting
privileges, other considerations are involved, many of which have nothing to do with competence,
such as where a physician resides, whether the physician can meet a minimum number of
admissions each year, or whether the physician has any faculty appointments (Dkt. No. 57-2, Fine
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Rebuttal Decl., ¶ 13). See Little Rock Cardiology Clinic PA v. Baptist Health, 591 F.3d 591 (8th
Cir. 2009) (involving an economic credentialing policy and alleging as a result antitrust claims
against the nonprofit hospital operator, nonprofit mutual insurance company and its subsidiary,
operator of health maintenance organization, and health maintenance organization operator’s
owner); see also Kliebert I, 158 F. Supp. 3d at 492 n.25 (noting that the decision to grant admitting
privileges may be swayed by many factors unrelated to competence, including but not limited to
economic factors and views on abortion); Williamson, 120 F. Supp. 3d. at 1316 (same); Van Hollen
IV, 94 F. Supp. 3d at 953 (same); Strange III, 33 F. Supp. 3d at 1338 (same). Dr. Archer also fails
to indicate whether he has ever performed a medication or surgical abortion. Indeed, Dr. Archer’s
affidavit does not clearly represent that he has ever treated a woman who presents with
complications arising from an abortion; rather, he states, “In my experience, women who have
abortions are not forthright with their past medical care.” (Dkt. No. 55, Archer Aff., ¶ 7).
Defendants also submit an affidavit from Lee G. Wilbur, M.D., a Professor of Emergency
Medicine and Vice Chairman for the Department of Emergency Medicine at UAMS, who agrees
with defendants’ other witnesses that Section 1504(d)’s contracted physician requirement
promotes continuity-of-care for medication abortion patients. Dr. Wilbur notes that “[s]maller
facilities located in less populated, rural areas are less equipped to provide the highest level of care
because of the availability of providers or specialists and the availability of equipment is limited.”
(Dkt. No. 56, Amend. Aff. Of Lee G. Wilbur, M.D., in Supp. of Dft.’ Response in Opposition to
Plt.’s Mot. For TRO and/or Prelim. Inj. ¶ 6) (“Wilbur Amend. Aff.”). Dr. Wilbur also states that
“[t]he contracted physician requirement establishes a line of communication between the physician
and a contracted physician with greater expertise.” (Id., ¶ 10). Dr. Wilbur contends that “[n]o other
physician specialty, other than obstetrics/gynecology, receives specific training in the procedure,
90
anticipated effects, or complication related to medication-induced abortion . . . . Identifying an
expert in medication-induced abortion available for consultation will improve the care that [Dr.
Wilbur] can provide to these patients.” (Id., ¶ 11). Dr. Wilbur also contends that, “[w]ithout this
contracted physician requirement, [Dr. Wilbur] is left to arrange follow up with a local
obstetrician/gynecologist that is unfamiliar with the patient, unfamiliar with the medication
regimen she received, and unfamiliar with the staff and capabilities of the facility that provided
the original procedure.” (Id., ¶ 16).
The Court notes, however, that Dr. Wilbur does not point to any instance where he needed
to contact a patient’s original medication abortion provider and was unable to do so, resulting in a
continuity-of-care gap. Further, the Court notes that many of Dr. Wilbur’s representations about
the benefits of a contracted physician requirement are general in nature. To date, nothing in the
record indicates that non-abortion providers in Arkansas are burdened by contracted physician
requirements similar to Section 1504(d).
It remains unclear to the Court why Dr. Ho and PPAEO’s physicians would not be able to
serve this function of a line of communication for doctors like Dr. Wilbur, given there is record
evidence that they do. Any suggestion that the contracted physician would provide a better line of
communication under these circumstances is not supported by record evidence at this point.
According to the materials presented to the Court at this stage, the contracted physician likely will
not have experience in providing abortions, will not have had prior contact with the patient, and
will not have access to her records. Dr. Ho is experienced in providing medication abortions, and
her supervisor at PPAEO, Dr. Moore, who is board certified in obstetrics and gynecology, a fellow
of the ACOG, licensed to practice medicine in Kansas, and has over 30 years of experience in
practicing medicine, including providing abortions, is an experienced provider of both surgical
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and medication abortions (Dkt. Nos. 29, Ho Decl., ¶ 4; 57-1, de Baca Rebuttal Decl., ¶ 4; 84, Supp.
Ho Decl. ¶ 13).
Further, based on the record before the Court at this stage of the proceeding, the Court
concludes, at least preliminarily, that emergency room physicians are well qualified to evaluate
and treat most complications that can arise after a medication abortion, to the extent they arise,
and, when necessary, have immediate access to consultation with on-call specialists (Dkt. Nos. 2,
Fine Decl., ¶ 34; 29, Ho Decl., ¶¶ 11-19). As an initial matter, based on the factual determinations
in Hellerstedt, it is established that any complications that arise after a medication abortion are
exceedingly rare. Further, the types of issues that arise in rare emergent care situations, according
to record evidence, are identical to those suffered by women experiencing miscarriage, who
receive treatments in hospitals every day through emergency physicians and on-call specialists, if
necessary (Dkt. No. 2, Fine Decl., ¶ 34). Dr. Wilbur, an emergency physician and witness for
defendants, appears to acknowledge this (Dkt. No. 56, Wilbur Amend. Aff., ¶¶ 12, 14). Nothing
in Dr. Wilbur’s affidavit explains why the contracted physician requirement is better than the
protocol PPAEO and Dr. Ho have in place currently (Dkt. No. 57-2, Fine Rebuttal Decl., ¶ 26).
Again, the lack of specificity still makes defendants’ written submissions less compelling at this
stage.
Defendants argue that abortion patients are unwilling to acknowledge they have had an
abortion. This statement was repeated by defendants at the earlier preliminary injunction stage
without record support. Even if the Court assumes it to be true at this stage of the proceeding, it
is unclear what the contracted physician requirement would do to change this circumstance.
Whether the contracted physician requirement is implemented or not, if the patient does not
acknowledge she has had a medication abortion and provide information to the treating emergency
92
room physician, it appears to matter little if there is a contracted physician or a PPAEO physician
on stand-by to consult. Further, there is evidence in the record that this should not impact the
ability of the hospital physician to care for these patients, given the similarity of miscarriage
management to post-medication-abortion follow-up care (Dkt. Nos. 29, Ho Decl., ¶ 13; 57-2, Fine
Rebuttal Decl., ¶ 25). Dr. Fine and Dr. Wilbur agree that patients are usually frank about their
medical history and that hospital physicians are trained to elicit information from reluctant patients
(Dkt. Nos. 56, Wilbur Amend. Aff., ¶ 9; 57-2, Fine Rebuttal Decl., ¶ 2).
For these reasons, the Court is skeptical, based upon the limited record before it, that
Section 1504(d) sets a minimum standard of care that exceeds the pre-existing protocols followed
by medication abortion providers in Arkansas and mandated by the state. This is especially so
given that, as established by the Supreme Court, abortion in the first and second trimester is a safe
procedure. See Hellerstedt, 136 S. Ct. 2302 (noting that rate of complications for first-trimester
abortions is less than “one-half of 1%”); Schimel, 806 F.3d at 913 (noting rate of complications
“is below 1 percent” and the rate of complications requiring hospitalization is “one-twentieth of 1
percent”); Strange III, 33 F. Supp. 3d at 1364 (noting that an abortion is “[s]afer than getting a
shot of penicillin.”); see also Kliebert II, 250 F. Supp. 3d at 61 (same).
The Court also rejects, at least at this stage of the litigation and on the record before it,
defendants’ alternative argument that the contracted physician requirement furthers the “integrity,
ethics and reputation of the medical provider” who performs the abortion (Dkt. No. 55, at 5). On
this record, there is no evidence Section 1504(d) furthers this interest any more than it furthers the
asserted interest in women’s health. As this Court explained, current Arkansas regulations require
the medical director for an abortion facility and any doctor performing an abortion in Arkansas to
be licensed by the State of Arkansas. Ark. Admin. Code §§ 007.05.2-6(K); 007.05.2-7(A)(1). The
93
record evidence is unclear as to what Arkansas hospitals require for admitting privileges and
whether, based on what is required, acquiring admitting privileges provides any incremental
evidence of qualification or competence over and above what Arkansas law currently requires.
This argument has been examined and rejected by many other courts under circumstances similar
to those presented here.
j.
Quantifying Section 1504(d)’s Purported Benefit
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.
6.
Weighing The Burdens And Benefits
Having considered separately the burdens and benefits 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. “To determine whether the burden imposed by the statute is
undue (excessive), the court must weigh the burdens against the state’s justification, asking
whether and to what extent the challenged regulation actually advances the state’s interest. If a
94
burden significantly exceeds what is necessary to advance the state’s interests, it is undue, which
is to say unconstitutional.” Schimel, 806 F.3d at 919 (citation and quotation marks omitted); see
Hellerstedt, 136 S. Ct. at 2309 (“The rule announced in Casey, however, requires that courts
consider the burdens a law imposes on abortion access together with the benefits those laws
confer.”).
In regard to burdens, considered cumulatively, the record evidence at this stage of the
litigation demonstrates that the contracted physician requirement, given plaintiffs’ inability to
comply with it, significantly burdens a large faction of women in Arkansas seeking medication
abortions. 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.”).
In regard to the benefit of Section 1504(d), 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 Section 1504(d)’s contracted physician requirement confers little if any
benefit on those women who are affected by it. The Court’s findings are consistent with those of
other district courts that have considered the benefits (or lack thereof) of contracted physician
requirements.
Weighing the burdens and benefits, 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 Section 1504(d)’s contracted physician requirement, given plaintiffs’
inability to comply with it, imposes significant burdens on a large fraction of Arkansas women
seeking medication abortions against a near absence of evidence that the law promotes any state
interest or provides 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
95
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); Miller, 299 F. Supp. 3d at 1286
(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”); Kliebert II, 250 F. Supp. 3d at 88 (noting that admitting privileges
law provided no “measurable benefit to women’s health, but it is clear that the Act will drastically
burden women’s right to choose abortion.”); Williams I, 263 F. Supp. 3d at 735 (noting that case
was “not a close one” where hospital affiliation law forced women into two round-trips of hundreds
of miles with little concomitant benefit); Planned Parenthood of Indiana and Kentucky, Inc., 273
F. Supp. 3d 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, requiring medication abortion providers to contract
with a physician with admitting privileges presents a “burden for a large fraction of women seeking
medication abortions in Arkansas,” Jegley, 864 F.3d at 959, with little to no benefit to those
women.
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)).
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B.
Irreparable Harm
A plaintiff seeking temporary injunctive relief 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).
PPAEO and Dr. Ho allege that enforcement and enactment of Section 1504(d) causes
irreparable harm because plaintiffs are unable to comply and the contracted physician requirement
therefore eliminates medication abortions in Fayetteville and Little Rock, forcing any woman in
Arkansas who seeks an abortion to drive to Little Rock for a surgical abortion (Dkt. No. 84, Supp.
Ho. Decl., ¶ 20). Defendants contest these assertions, arguing that there is no irreparable harm
caused to Arkansas women by the contracted physician requirement (Dkt. No. 101, at 31). Also,
reiterating their prior argument, defendants argue that the contracted physician requirement does
not irreparably harm Arkansas women seeking medication abortions because out-of-state abortion
providers remain a viable option (Id.). Defendants argue that, even if this Court cannot consider
out-of-state abortion providers in the undue burden analysis, such providers may be considered in
the irreparable harm analysis. Defendants cite no authority for this proposition.
For now, this Court finds, based on the state of the record before the Court at this stage of
the proceeding, that Section 1504(d) causes ongoing and imminent irreparable harm to the
plaintiffs and their patients. As detailed above, the record at this stage of the proceeding indicates
that Section 1504(d) will force PPAEO’s two abortion clinics to cease providing medication
abortions, the only type of abortion offered by those two clinics, leaving Arkansas with only one
abortion clinic, which is located in Little Rock and provides only surgical abortions. Those women
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who live in Northwest Arkansas and seek a medication abortion are now faced with the prospect
of making two 380-mile round trips to Little Rock for a surgical abortion (Dkt. Nos. 2, Fine Decl.,
¶ 52; 84, Supp. Ho. Decl., ¶ 20). Further, it makes little sense for this Court to disregard out-ofstate providers at the “burden” stage of this analysis, as this Court concludes is required by
established precedent, but, on the other hand, consider out-of-state providers to determine if
“irreparable harm” has or will occur. To do so would lead to absurd results, and this Court declines
to do so. Even if the Court were inclined to consider abortion providers in other states, the results
of this Court’s analysis would not change. There are no abortion providers within the same
metropolitan area as Fayetteville. It is not a short distance to an alternative provider for most
women seeking a medication abortion in Arkansas affected by the challenged regulation, and the
availability of abortions at all in states surrounding Arkansas is subject to on-going and changing
regulation, as well. Since the record at this stage of the proceedings indicates that Arkansas women
seeking medication abortions face an imminent threat to their constitutional rights, the Court
concludes that they will suffer irreparable harm without preliminary relief.
C.
Balance Of Equities And The Public Interest
PPAEO and Dr. Ho argue that the aforementioned injuries caused to their patients by
Section 1504(d) far outweigh the harm that will be caused to defendants if preliminary relief is
granted (Dkt. No. 85, at 20). PPAEO and Dr. Ho also argue that the public interest weighs in favor
of entering a temporary restraining order as “Arkansas can have no interest in enforcing
unconstitutional laws.” (Id.). Defendants respond that the public interest favors “setting minimal
continuity-of-care standards where none previously existed,” and they argue that the public has an
interest “in ensuring that abortion providers do not . . . abandon patients who suffer complications.”
(Dkt. No. 101, at 31).
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The Court must examine its case in the context of the relative injuries to the parties and to
the public. Dataphase, 640 F.2d at 114. After balancing the relative injuries and the equities,
while evaluating the limited record before it, the Court finds that because enforcement of Section
1504(d) would result in irreparable harm to PPAEO and Dr. Ho, as well as the patients of PPAEO
and Dr. Ho, the resulting harm to PPAEO and Dr. Ho is greater than the potential harm to the state.
Accordingly, at this stage of the proceedings, the Court finds that the threat of irreparable harm to
PPAEO and Dr. Ho, and the public interest, outweighs the immediate interests and potential
injuries to the state.
VI.
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, Mr. Jegley and Mr. Durrett 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 PPAEO or Dr. Ho.
VII.
Conclusion
For the foregoing reasons, the Court determines that PPAEO and Dr. Ho have met their
initial burden for the issuance of a temporary restraining order. Therefore, the Court grants
PPAEO and Dr. Ho’s renewed motion for temporary restraining order (Dkt. No. 84). The Court
hereby orders that Mr. Jegley and Mr. Durrett, and all those acting in concert with them, are
temporarily enjoined from enforcing the requirements of Section 1504(d) of Arkansas Act 577,
codified at Arkansas Code Annotated § 20-16-1504(d). Further, Mr. Jegley and Mr. Durrett are
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enjoined from failing to notify immediately all state officials responsible for enforcing the
requirements of Section 1504(d) of Arkansas Act 577, codified at Arkansas Code Annotated § 2016-1504(d), 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 Monday, July 2, 2018, at
5:00 p.m. The Court enters this Order on Monday, June 18, 2018, at 5:00 p.m.
_______________________________
Kristine G. Baker
United States District Judge
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