By Hailey Konnath

Law360 (January 5, 2021, 9:18 PM EST) -- Arkansas cannot ban abortions after 18 weeks of pregnancy, the Eighth Circuit ruled Tuesday, partially upholding a preliminary injunction blocking three of the Natural State's abortion restrictions and finding that the state has "presented no generally accepted medical advice" in its appeal.

Act 493 and Act 619, two of the 2019 statutes at the heart of the dispute, ban providers from performing abortions after 18 weeks or if they know that a woman is seeking an abortion because a test has indicated the child may have Down syndrome. The third regulation, Act 700, stated that only a licensed physician board-certified or board-eligible in obstetrics and gynecology could perform abortions.

Little Rock Family Planning Services challenged the constitutionality of the restrictions in June 2019. In August of that year, U.S. District Judge Kristine G. Baker sided with the abortion provider, issuing a preliminary injunction that blocked the state's attorney general and other state officials from enforcing them.

On appeal, the Arkansas officials argued that they should be able to prohibit abortions 18 weeks after gestation because there is evidence linking "increased maternal risk to increased gestation age." And in shutting down the Down syndrome abortion ban, the district court mistakenly declared a "novel, absolute right to pre-viability abortion," they said.

The Eighth Circuit held Tuesday that Judge Baker was correct in preliminarily shutting down two of the regulations, noting that the law governing the constitutionality of the pre-viability abortion bans, "though obviously subject to change in the future, is well established in this circuit today." The U.S. Supreme Court, too, has been clear: States cannot prohibit a woman from choosing to end a pregnancy before viability, the three-judge panel said.

Doctors generally consider viability to be at 24 weeks, the Eighth Circuit added.

"As defendants presented no generally accepted medical evidence that the attainment of viability has shifted to before 18 weeks after gestation, we must affirm the district court's order," the panel said.

Arkansas officials' arguments in support of the Down syndrome abortion prohibition also fall flat, the Eighth Circuit found, calling that regulation "a substantial obstacle" to pre-viability abortions.

"Indeed, it is a complete prohibition of abortions based on the pregnant woman's reason for exercising the right to terminate her pregnancy before viability," the panel said.

That was good enough reason for the district court to preliminarily shut down that regulation, it added.

Finally, because Little Rock Family Planning Services said its providers now comply with Act 700, the Eighth Circuit dismissed that portion of the officials' appeal as moot.

In its decision, the Eighth Circuit also chastised counsel for Little Rock Family Planning Services as well as the state for filing motions the panel deemed "time-wasting" and "disrespectful," respectively.

"In these motion wars, counsel of record for both sides lost sight of their duties to serve as officers of the court as well as vigorous advocates for their clients," the panel said.

Meagan Burrows, an American Civil Liberties Union attorney representing the abortion provider, said the ruling "recognizes that it is up to each person, not politicians, to make the ultimate decision of whether and when to have a child."

"We wish that this were the end of the matter, but unfortunately we know that there is still much work to do to stop the legislature's relentless attempts to take that right away from patients," Burrows said in a statement Tuesday. 

Holly Dickson, executive director of the ACLU of Arkansas, hailed the decision as "a victory for all Arkansans."

The order is "a decisive repudiation of Arkansas politicians' ongoing crusade to deny people the right to make their own medical decisions and force them to continue pregnancies against their will," Dickson said. 

In late December, Arkansas lost another battle to restrict abortion in the state when an Arkansas federal court blocked four other laws hours after they took effect. The measures would've shut down most abortion access in the state, according to the ACLU, which represented Little Rock Family Planning Services in that case as well.

In a separate case in April 2020, the Eighth Circuit allowed Arkansas to continue enforcing its coronavirus-related restriction on nonessential surgeries against abortion providers. That panel ruled that Arkansas was entitled to mandamus relief from the district court's temporary restraining order, adopting findings from the Fifth Circuit, which allowed Texas to enforce a similar ban against abortion providers earlier this month.

The lower court had failed to meaningfully apply a framework created by the Supreme Court for weighing the constitutionality of a state action taken in response to a public health crisis, the Eighth Circuit said.

Meanwhile, the Sixth Circuit in October voided a permanent block of a Kentucky law requiring abortion facilities to have agreements with an ambulance service and a nearby hospital, finding that a lower court wrongly found that the law's enforcement would leave the commonwealth with no abortion facility.

A split three-judge appellate panel undid a permanent injunction that blocked a Kentucky law at issue in the case, which was launched by abortion facility EMW Women's Surgical Center. The regulations at issue require abortion facilities contract with an ambulance service for transportation services and also a local hospital for patient transfers, according to court documents.

The Arkansas attorney general's office and counsel for Little Rock Family Planning Services didn't immediately return a request for comment late Tuesday.

U.S. Circuit Judges James B. Loken, Bobby E. Shepherd and Ralph R. Erickson sat on the panel for the Eighth Circuit.

The providers are represented by Kendall Turner and Leah Godesky of O'Melveny & Myers LLP, Meagan Burrows of the American Civil Liberties Union Foundation, Maithreyi Ratakonda of Planned Parenthood Federation of America, Bettina Brownstein and Rebecca Rhodes Jackson.

Arkansas is represented by Vincent Wagner, Michael A. Cantrell and Dylan L. Jacobs of the state attorney general's office.

The case is Little Rock Family Planning Services et al. v. Leslie Rutledge et al., case number 19-2690, in the U.S. Court of Appeals for the Eighth Circuit.

--Additional reporting by Danielle Nichole Smith. Editing by Jay Jackson Jr.

For a reprint of this article, please contact reprints@law360.com.