Arkansas Abortion Law Challenge Steps Closer to Supreme Court

Stay ahead of developments in federal and state health care law, regulation and transactions with timely, expert news and analysis.

By Matthew Loughran

An Arkansas abortion law challenge may be on the way to the U.S. Supreme Court after a federal appeals court refused to reconsider a July decision lifting a ban on the law ( Planned Parenthood of Ark. & E. Okla. v. Jegley , 8th Cir., No. 16-2234, rehearing denied 9/27/17 ).

The Abortion-Inducing Drugs Safety Act required any health-care providers who prescribed abortion-inducing medications to also have a contract with a physician with admitting privileges at a local hospital in order to safeguard against complications some women faced from taking the drugs. A federal trial judge blocked the law in 2016, but the U.S. Court of Appeals for the Eighth Circuit vacated that decision in July.

The decision Sept. 27 by the appeals court not to grant a rehearing by all 13 of the judges on the appeals court is the last step before a possible appeal to the Supreme Court. In June 2016, the Supreme Court found a similar Texas law created an undue burden on women seeking abortion in its decision in Whole Woman’s Health v. Hellerstedt.

In a statement emailed to Bloomberg BNA, Planned Parenthood Federation said the appeals court’s action didn’t mean the law will take effect immediately and that it was “evaluating all options to ensure our patients can continue to get the care they need at our health centers in Little Rock and Fayetteville.”

More Facts Requested

In the July order vacating a preliminary injunction against the Arkansas law, the Eighth Circuit requested the trial judge provide factual findings on the percentage of women who would be affected by the law and whether that percentage could be seen as a large fraction of the overall relevant population.

The appeals court said the Whole Woman’s Health decision necessitated such factual findings because it required a federal judge weighing an abortion restriction to determine on the record whether the law caused women to have “fewer doctors, longer waiting times, and increased crowding” when seeking an abortion.

The trial court judge, Kristine G. Baker of the U.S. District Court for the Eastern District of Arkansas, hasn’t yet acted on the appeals court’s order.

Supreme Court Has Changed

The Whole Woman’s Health decision overturning the similar Texas law came out in June 2016, and the court has changed since that time. The decision was a 5-3 decision, split largely down the ideological lines of the court.

Justice Stephen G. Breyer, wrote the opinion of the court joined by all of the court’s liberal justices, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, as well as Justice Anthony M. Kennedy. Both Justices Clarence Thomas and Samuel A. Alito Jr. wrote dissenting opinions, which Chief Justice John G. Roberts joined.

In the intervening months, Justice Neil M. Gorsuch has joined the court from the U.S. Court of Appeals for the Tenth Circuit. However, even adding Gorsuch’s voice to the position taken by the dissent in a hypothetical rehash of the issues presented in Whole Woman’s Health would likely result in a 5-4 decision against the abortion restrictions.

Bloomberg Philanthropies provides financial support for Planned Parenthood.

The challengers are represented by Planned Parenthood Federation of America in New York. The state officials are represented by the Arkansas Attorney General’s Office.

To contact the reporter on this story: Matthew Loughran in Washington at mloughran@bna.com

To contact the editor responsible for this story: Brian Broderick at bbroderick@bna.com

For More Information

The Eighth Circuit's order is at http://src.bna.com/sW5.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Health Care on Bloomberg Law