Attorney General James Leads Coalition Fighting Arkansas’ Unconstitutional Abortion Ban During COVID-19 Pandemic

Arkansas Challenge Comes Following Texas and Oklahoma 
Efforts to Restrict Women’s Reproductive Freedoms

NEW YORK – New York Attorney General Letitia James has led a multistate coalition of 19 attorneys general in seeking to stop the State of Arkansas from banning almost all procedural abortions in the state, as the state uses the coronavirus disease 2019 (COVID-2019) public health crisis as an excuse. Continuing her leadership of the nation’s fight to protect women’s reproductive health, Attorney General James led the coalition in filing an amicus brief in the U.S. Court of Appeals for the Eighth Circuit, supporting the plaintiffs in Little Rock Family Planning Services v. In re Leslie Rutledge, as they fight to preserve access to reproductive health care for the women across Arkansas.

“While multiple states are using the coronavirus as an excuse to push their anti-choice political agenda, we will continue fighting every day so that women retain control of their reproductive rights across this country,” said Attorney General James. “A pandemic does not give any state the right to undo all the progress made in the nearly 50 years since Roe, which is why I will continue to lead the fights against Arkansas, Oklahoma, Texas, or any other state that attempts to use this public health crisis as unjustified grounds to control women’s bodies, their choices, and their freedoms.”

Women seeking an abortion in Arkansas typically have the choice between one of two options: a medication abortion (induced by taking two different prescription drugs) or a procedural abortion (a procedure performed by aspiration or by dilation and evacuation, neither of which involves general anesthesia or incision). Medication abortions can take place through the 10th week of pregnancy in Arkansas, while a procedural abortion can currently take place through approximately 22 weeks of pregnancy, despite new state laws, passed last year, attempting to scale back that period to just 18 weeks. Only one abortion clinic in the entire State of Arkansas is currently licensed to perform procedural abortions — the Little Rock Family Planning Services (LRFPS) health clinic.

On March 11, 2020, Arkansas Governor Asa Hutchinson issued Executive Order 20-03, declaring a state of emergency. Ten days later, on March 21, 2020, the Arkansas Department of Health (ADH) issued a public statement recommending that health care facilities and clinicians “prioritize urgent and emergency visits and procedures now and for the coming several weeks.” The statement detailed that its goals were to “preserve staff, personal protective equipment (PPE), and patient care supplies; ensure staff and patient safety; and expand available hospital capacity during the COVID-19 pandemic.” The ADH stated that “[p]rocedures … that can be safely postponed shall be rescheduled to an appropriate future date.” The ADH issued another directive on April 3 with the same language as the March 21 directive, but which further specified that “urgent” and “care designated as an exception…will continue,” including care for circumstances in which “there is a risk of…progression of staging of a…condition if surgery is not performed.”

On April 1, representatives from the ADH called LRFPS twice to inquire about what the clinic was doing to reduce non-essential services, preserve PPE, and protect against the spread of COVID-19. On both occasions, LRFPS summarized practices it was following. On April 7, ADH inspectors performed an unannounced, in-person inspection at LRFPS. At no point during either of the phone calls or the in-person inspection (which occurred on a day during which both procedural and medication abortions were being provided) did the ADH representatives suggest that LRFPS was not complying with the state’s April 3 directive.

However, on the morning of April 10, ADH inspectors hand delivered a cease-and-desist order to LRFPS, asserting that the clinic was “in violation of the April 3, 2020 Arkansas Department of Health Directive on Elective Surgeries,” despite acknowledging that the April 7 inspection “did not reveal any deficiencies with respect to the rules for abortion facilities in Arkansas.” The cease-and-desist order stated that the April 3 “prohibition applies to surgical abortions that are not immediately necessary to protect the life or health of the patient” and that “[a]ny further violations of the April 3 Directive will result in an immediate suspension of [LRFPS’s] license.”

Although the ADH is using the April 3 directive as the basis for ordering LRFPS to stop performing procedural abortions — except when the life or health of the woman is at immediate risk — the ADH has, to date, continued to allow a range of other non-urgent medical services, including orthodontist visits to adjust orthodontic wires and dentist visits to treat cracked teeth. Further, at an April 9 press conference with Governor Hutchinson and Arkansas State Health Director Dr. Nathaniel Smith, Dr. Smith was asked if “elective surgery” was still permitted in the state, and he responded that judgments at surgical centers would be left primarily to the providers.

A lawsuit LRFPS filed last year against government officials in the State of Arkansas in the U.S. District Court for the Eastern District of Arkansas was amended on April 13 to add a challenge to the ADH April 3 directive and, specifically, the cease-and-desist order issued on April 10. The next day, the district court issued a temporary restraining order blocking the state from shutting down LRFPS’s procedural abortion services, in which the court noted that the state’s ban would, among other things, “bar access to abortion because medication abortion is contraindicated” for some women; “likely push [some women] to a more complex and more time-intensive” abortion procedure; and “likely push [other women] beyond the point at which abortion is available in the State.”

The district court also noted that the continuation of procedural abortions would not preserve PPE or hospital resources because procedural abortions make minimal use of both, and that continuing to allow procedural abortions would not increase the risk of transmission of COVID-19 any more than other activities that Governor Hutchinson has allowed to continue in Arkansas. Instead, the court observed, the state’s decision to bar procedural abortions in Arkansas will cause some women to undertake lengthy interstate travel that will actually increase the risk of transmission of the disease. The different defendants then asked the U.S. Court of Appeals for the Eighth Circuit to halt the lower court’s order, which would effectively reinstitute the ban on procedural abortions in the State of Arkansas.

In the amicus brief filed on Friday, Attorney General James and the coalition lay out why they oppose the request to halt the lower court’s temporary restraining order, stressing that the ban on procedural abortions in Arkansas infringes on a woman’s constitutional rights. The coalition explains that the “characterization of the ban as prohibiting only ‘elective’ procedures fails to recognize how the time-sensitive nature of abortion care distinguishes that care from services that can be postponed without patient harm during the current public health crisis” because “abortions cannot be deferred indefinitely or for long stretches without increasing risks for some women and denying access to others.” The coalition explains that Arkansas’ “ban on [procedural] abortions will irreparably injure any woman who reaches the legal limit for an abortion during the ban,” resulting in some women “permanently los[ing] their right to lawfully obtain an abortion in Arkansas.”

Additionally, Attorney General James and the coalition go on to highlight that if the ban were to be reinstated, some women in Arkansas would be forced to make “risky and expensive” travel plans to cross state lines in order to obtain an abortion. This is especially troublesome at a time when the entire U.S. population is being asked to limit travel to stop the spread of COVID-19. Further, the coalition notes that residents of New York and other amici states may currently be in Arkansas without a way to return home, but they still have a right to time-sensitive reproductive care.

Finally, the coalition explains why a ban on abortion would not help the state preserve PPE, free up hospital beds, or prevent the spread of COVID-19 transmissions. As the district court noted in its temporary restraining order, the exact opposite is actually true. The attorneys general note that procedural abortions require limited PPE and actually require “far less PPE and medical resources than continuing a pregnancy” does. Additionally, procedural abortions rarely require admission to a hospital.

The amended complaint by LRFPS was filed in a suit brought last year when the governor, in March 2019, signed into law several bills intended to restrict a woman’s access to abortion services throughout the state. The laws would criminalize abortions performed after 18 weeks and impose additional undue burdens on a woman’s constitutional right to an abortion. In July 2019, the U.S. District Court for the Eastern District of Arkansas granted a preliminary injunction and temporarily blocked the laws restricting abortion care from taking effect. The State of Arkansas appealed the decision to the Eighth Circuit Court of Appeals shortly thereafter. Earlier this year, in January, Attorney General James filed a multistate amicus brief in support of LRFPS's lawsuit that seeks to protect a woman’s right to safe and legal abortion care without the burdensome restrictions imposed by Arkansas’ laws

This brief follows two similar multistate amicus briefs, Attorney General James led the charge in filing earlier this month, in support of challenges to similar efforts to ban abortion during the COVID-19 public health crisis — one in support of a suit brought against state officials in the State of Texas, in Planned Parenthood v. Abbott and the second in support a suit brought against state officials in the State of Oklahoma, in Southwind Women’s Center LLC v. Stitt.

Medical professionals — including the American College of Obstetricians and Gynecologists — recently denounced the abortion bans being imposed by multiple states during the spread of COVID-19, highlighting that delays in providing time-sensitive reproductive health care could “profoundly impact a person’s life, health, and well-being.”

In addition to Arkansas, Texas, and Oklahoma, the States of Alabama, Iowa, Louisiana, Mississippi, Ohio, and Tennessee have all also attempted to ban many previability abortions during the COVID-19 pandemic, limiting their residents’ constitutional rights. Attorney General James will continue leading national fights opposing these types of abortion bans.

Today’s action is just the latest in a long list of measures Attorney General James has taken to protect women’s reproductive freedom since taking office. Yesterday, Attorney General James demanded that three health insurance companies — Aetna, MetroPlus Health, and Oscar Health — immediately provide coverage for 12-month supplies of contraceptives after the Office of the Attorney General found that these companies were refusing to comply with New York State law requiring all health insurance companies to provide this 12-month supply. This violation of New York's Comprehensive Contraception Coverage Act is especially troublesome in the midst of the COVID-19 pandemic, as many New Yorkers lose their jobs and health insurance coverage, and try to limit unnecessary trips to pharmacies. 

Earlier this month, Attorney General James filed an amicus brief in the U.S. Supreme Court — in Donald Trump et al. v. Pennsylvania — supporting a lawsuit defending the contraceptive coverage and counseling requirement mandated as part of the Affordable Care Act, which has benefited more than 62 million women across the country. 

Even earlier in April, Attorney General James co-led a coalition of attorneys general in calling on the U.S. Department of Health and Human Services to delay implementation of a final rule that would make it more difficult for women in New York and across the nation to access abortion services under the Affordable Care Act, arguing that the rule jeopardizes health coverage of all consumers confused by its billing practice, as the nation battles COVID-19. The letter follows up on a lawsuit led by Attorney General James in January, and a motion for summary judgement, filed in late March, asking the federal courts to immediately rule on the lawsuit.

In late March, Attorney General James and a coalition sent a letter to both the U.S. Department of Health and Human Services and the U.S. Food and Drug Administration requesting that the Trump Administration waive or utilize its discretion not to enforce its Risk Evaluation and Mitigation Strategy (REMS) designation, which dictates and subsequently impedes women’s access to the medication abortion prescription drug known as Mifepristone. The attorneys general called on the Trump Administration to ensure that women across the country can more easily access this critical health care service while the pandemic leaves many women unable to seek in-person care.

Also, last month — at the onset of the COVID-19 pandemic — Attorney General James called on the federal government and states across the country to ensure women’s access to safe, legal abortions are not jeopardized or curtailed as a result of the spread of COVID-19.

In January, Attorney General James filed an amicus brief, in Reproductive Health Services v. Planned Parenthood of St. Louis, challenging the constitutionality of several recently enacted abortion bans in the State of Missouri.  

Also in January, Attorney General James secured a victory for women in Rochester seeking to have an abortion without being harassed, threatened, or blocked before entering a clinic, when a district court judge dismissed a lawsuit by anti-abortion activists seeking to bypass a 15-foot “buffer zone” outside a local Planned Parenthood facility.

In December 2019, Attorney General James filed an amicus brief defending the right to maintain full and equal access to birth control guaranteed under the Affordable Care Act for tens of thousands of women nationwide

Also, in December 2019, Attorney General James led a multistate amicus brief in support of a challenge by petitioners in the case June Medical Services v. Gee — now pending in the U.S. Supreme Court — challenging a Louisiana law that requires abortion providers to maintain admitting privileges at a local hospital.

In October 2019, Attorney General James filed a multistate amicus brief in support of a lawsuit filed by the Jackson Women’s Health Organization against the State of Mississippi, challenging a law that would prohibit abortions after as early as six weeks of pregnancy.

In September 2019, Attorney General James led a multistate amicus brief in support of a challenge filed by Kentucky clinics and physicians, challenging a Kentucky law that would ban physicians from providing second-trimester abortion services using the most common and safest procedure available for women after 15 weeks of pregnancy.

In August 2019, Attorney General James filed a multistate amicus brief in support of a lawsuit filed by the Whole Woman’s Health Alliance against the State of Indiana after the state denied the clinics application for a license to open an abortion clinic that would provide medical abortions in South Bend.

In March 2019, Attorney General James co-led a coalition of 21 states in a lawsuit challenging the Trump Administration’s regulations that threaten essential services provided under federal Title X funding. The rule — also known as the “gag rule” — places an unlawful and unethical restriction on health care providers’ ability to fully inform patients of the reproductive health services available to them by disallowing referrals for abortions and restricting counseling related to abortions. Another provision would require those who perform abortions to physically segregate their services — an expensive and potentially impossible requirement.

Finally, Attorney General James is litigating the appeal in People ex rel. James v. Griepp to ensure that women who enter the Choices Women’s Medical Center in Jamaica, Queens are not harassed, obstructed, or threatened by protestors.

Joining Attorney General James in filing today’s amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.

This matter was handled by Assistant Solicitors General Blair Greenwald and Laura Etlinger, Deputy Solicitor General Anisha Dasgupta, and Solicitor General Barbara D. Underwood — all of the Division of Appeals and Opinions.