8th Circ. Clears Arkansas To Block Abortions During COVID-19

By Danielle Nichole Smith
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Law360 (April 23, 2020, 6:43 PM EDT) -- The state of Arkansas can continue enforcing its coronavirus-related restriction on non-essential surgeries against abortion providers, after the Eighth Circuit lifted a lower court order barring the state from applying the measure in that way.  

In its opinion Wednesday, the three-judge panel held 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 U.S. Supreme Court for weighing the constitutionality of a state action taken in response to a public health crisis, the Eighth Circuit said.

"Such a failure constitutes a clear abuse of discretion," U.S. Circuit Judge Bobby E. Shepherd wrote in the panel's opinion.

Contrary to the lower court's findings, the directive didn't prohibit all abortions for people past 10 weeks of pregnancy and wasn't indefinite, since Arkansas' state of emergency wouldn't go beyond May 11 without an extension from the governor, according to the panel.

And even if the directive had created a blanket ban on pre-viability surgical abortions, it could only be constitutionally challenged if it didn't have a real relation to the public health crisis or plainly infringed a person's right to an elective abortion, the panel said.

The Eighth Circuit also expressed "serious doubt" about whether Little Rock Family Planning Services, the plaintiff in the case, should have been allowed to challenge the directive by filing a supplemental complaint in an existing case over three abortion laws in the state.

However, since the lower court's decision to allow the supplemental complaint wasn't reviewable, the panel said it only addressed the issue as part of its analysis for whether a writ of mandamus was warranted.

Attorney General Leslie Rutledge said in a statement Wednesday that "all medically unnecessary surgeries must be postponed, and this decision affirms that surgical abortions do not get special treatment."

"The Eighth Circuit agreed with Arkansas that the district court committed a clear abuse of discretion in creating a carve-out from state law for surgical abortions," Rutledge said.

But Ruth E. Harlow, an attorney at the American Civil Liberties Union Foundation, said in a statement Wednesday that the ruling "contradicts everything leading medical experts have told us about abortion — that it is essential, time-sensitive health care, and it need not and must not be restricted during the COVID-19 crisis." 

"Arkansas has singled pregnant patients out for denial of health care while it lets health care for others continue as the medical facts require," Harlow said. "This case is far from over."

After the ruling Wednesday, Little Rock Family Planning Services asked the district court for another temporary restraining order, urging the court to stop the directive from being enforced against people who would be past the legal limit for abortion in Arkansas on May 11, the earliest date the surgical ban could be lifted.

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, Ashley Robertson, Leah Godesky and Alec Schierenbeck of O'Melveny & Myers LLP, Meagan Burrows and Ruth E. Harlow of the American Civil Liberties Union Foundation, Bettina Brownstein of Bettina E. Brownstein Law Firm, and Brooke-Augusta Ware of Mann & Kemp PLLC.

The Arkansas defendants are represented by Arkansas Attorney General Leslie Rutledge, Arkansas Solicitor General Nicholas J. Bronni, Deputy Solicitor General Vincent M. Wagner and Assistant Solicitors General Dylan L.Jacobs and Michael A. Cantrell.

The case is In Re: Leslie Rutledge et al., case number 20-1791, in the U.S. Court of Appeals for the Eighth Circuit.

--Editing by Kelly Duncan.

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

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