by Max Brantley
... the district court was required to make a finding that the Act’s contractphysician requirement is an undue burden for a large fraction of women seeking medication abortions in Arkansas.The court acknowledged that the rule was relevant to women seeking abortions and that delays caused by it could lead to complications, but it said Baker had failed to estimate a number who'd risk complications.
The district court did not make this finding. The court correctly held that individuals for whom the contract-physician requirement was an actual, rather than an irrelevant, restriction were women seeking medication abortions in Arkansas.
Nonetheless, it did not define or estimate the number of women who would be unduly burdened by the contract-physician requirement. Instead, it focused on amorphous groups of women to reach its conclusion that the Act was facially unconstitutional.
On remand, we do not require the district court to calculate the exact number of women unduly burdened by the contract-physician requirement. We acknowledge that the “large fraction” standard is in some ways “more conceptual thanmathematical.” Nonetheless, like the Sixth Circuit, we find that this standard is not entirely freewheeling and that we can and should define its outer boundaries. See id. (“[T]he term ‘large fraction,’ which, in a way, is more conceptual than mathematical, envisions something more than the 12 out of 100 women identified here.”). Thus, on remand, the district court should conduct fact finding concerning the number of women unduly burdened by the contract-physician requirement and determine whether that number constitutes a “large fraction.”The court didn't take up the question of whether the law provided a benefit to women in increased regulation. But, in a footnote, it criticized Baker's finding of little compelling benefit from the state law.
In determining that the contract-physician requirement’s benefits would be “low and not compelling,” the district court concluded that Planned Parenthood’s current continuity-of-care protocols were adequate. Hellerstedt, however, compared H.B. 2 to Texas’s pre-existing law, not Texas abortion providers’ current protocols. See 136 S. Ct. at 2311 (“We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a ‘working arrangement’ with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.” (emphasis added)). Moreover, Planned Parenthood could unilaterally decide to discontinue its twenty-four-hour nurse-staffed phone line, end patient referrals to surgical providers, or stop consultations with emergency-room
“In a unanimous opinion, the 8th Circuit recognized that the lower court incorrectly analyzed the law,” said Attorney General Rutledge. “The injunction was vacated because Planned Parenthood failed to show that the state law is a substantial obstacle, preventing most women from having access to abortion services. This common sense law will help ensure that medication abortions are conducted in a safe, responsible manner and with appropriate protections for women. While the Court did not reach a final decision on the ultimate merits, today’s decision is an important notice to the lower court that this law has important benefits for patients. I will continue to defend Act 577 as Planned Parenthood continues its challenge.”Planned Parenthood issued this statement:
Planned Parenthood Great Plains (PPGP) condemns the 8th Circuit Court’s ruling delivered today, which overturned the lower court’s decision to temporarily block an unconstitutional measure that forces medication abortion providers to have a signed contract with a physician with admitting privileges in order to provide medication abortion. If this unconstitutional and medically unnecessary law, which provides no benefit to women, takes effect, Arkansans will lose access to safe, legal abortion at all but one health center in the entire state, and will completely lose access to medication abortion, a safe, effective, and early method of abortion. This would severely limit abortion access for women in Arkansas, forcing many women to travel out of state to access safe, legal medical care, if they can at all.See related PDF
Right now, while PPGP evaluates all of its legal options, all services will continue at both health centers in Fayetteville and Little Rock. There will be no disruption to abortion services at Planned Parenthood health centers in Arkansas.
“PPGP is carefully evaluating all of our legal options and will leave no stone unturned in order to protect Arkansans and their right to access safe, legal abortion. Last year, in Whole Woman’s Health v. Hellerstedt, the Supreme Court of the United States clearly ruled that requiring admitting privileges for abortion providers and other medically unnecessary restrictions are unconstitutional. It is unfortunate we are now forced to continue litigating this fact long after the highest court in the land delivered its final say,” Planned Parenthood Great Plains President and CEO, Laura McQuade said.
“Let’s be clear, laws like this one have no basis in quality patient care and are intended to end access to safe, legal abortion. Ideological extremists in the statehouse, not medical experts, design these policies that have no basis in medical science. Every leading medical authority including American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association (AMA), condemn these restrictions and affirm that abortion is and will always be one of the safest medical procedures. PPGP is proud to provide high quality abortion care and we will find a path to keeping access open for the countless patients who rely on us,” McQuade said.