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Arkansas’ Medication Abortion Ban Was Hit With a Temporary Restraining Order. Here’s What’s Next.

Rachel Cohen

Planned Parenthood says the law, which forces doctors providing medication abortion to contract with another doctor who has admitting privileges at a nearby hospital, would force it to stop providing medication abortion at two Arkansas clinics.

A federal judge on Monday granted a brief reprieve from an Arkansas law that dramatically restricts abortion access in the state by effectively banning medication abortion.

The first-of-its-kind statute would limit abortion access at all but one Arkansas health center. The law had been in effect since May 29, when the U.S. Supreme Court declined Planned Parenthood’s request to hear the case. The plaintiffs filed for emergency relief following the high court’s dismissal, and U.S. District Judge Kristine Baker agreed to grant them a two-week restraining order, which will expire at 5 p.m. on July 2.

But the battle to stop the law is far from over.

This fight began in the spring of 2015, when the GOP-majority Arkansas legislature passed Act 577, requiring physicians who prescribe drugs for non-surgical abortions to secure contracts with a second doctor who has hospital-admitting privileges. The American College of Obstetricians and Gynecologists and the American Medical Association have both said there is “no medical basis” for such requirements, and abortion providers, especially those in conservative states, typically struggle to find hospitals willing to partner with them.

The law was set to take effect at the start of 2016, but on December 28, 2015, Planned Parenthood sued to block it. A temporary restraining order was issued on December 31 of that year, and three months later, Judge Baker issued a preliminary injunction as Planned Parenthood Great Plains continued with their lawsuit against the state.

An Eighth Circuit Court of Appeals panel in July 2017 lifted Baker’s injunction, asserting she would need to more concretely show how Arkansas women would be harmed by the admitting privileges law. A year earlier the Supreme Court overturned a package of abortion restrictions that included requirements for admitting privileges. The justices determined the rules posed an unconstitutional burden on Texan women seeking to end their pregnancies.

Planned Parenthood says that if the law were to take effect, its two abortion facilities in Little Rock and Fayetteville would no longer be able to provide medication abortion. Neither of those facilities provide surgical abortions.

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The health care provider requested the Eighth Circuit’s full bench of judges review the panel’s July ruling, but in late September, the appellate court declined the request. The Eighth Circuit is one of the most conservative appellate courts in the country; two years earlier its judges recommended that the U.S. Supreme Court “re-evaluate its jurisprudence” on abortion, urging for greater state power over reproductive health.

The next step for the plaintiffs was petitioning the Supreme Court to review the Eighth Circuit’s decision. The appellate court agreed to keep the preliminary injunction in place in the meantime, which meant the law has not been enforced all year. But at the end of May, the Supreme Court finally responded to Planned Parenthood’s petition and declined to intervene. This set the law into immediate effect.

Planned Parenthood quickly filed for a temporary restraining order, a request which was finally granted this week. In a press statement, Planned Parenthood said that beginning on May 29, “health center staff were forced to immediately call patients to inform them they would no longer be able to access their medication abortion.”

Some patients, according to Planned Parenthood, were already en route to their appointments, and others were “left scrambling to alter their work and child care schedules, and to secure additional funds required to undergo the state-mandated counseling process over again for a surgical abortion or to travel out of state, further delaying care.”

Emily Miller, director of communications for Planned Parenthood Great Plains, told Rewire.News that the next steps are not clear, though at least until July 2, when the temporary restraining order lifts, providers will again be able to provide medication abortion.

“We’re approaching it like we have a temporary restraining order that will run for fourteen days, and then we’ll focus on our next step which is the preliminary injunction,” Miller explained. “But we don’t know exactly what course the state will choose to take.” The state might try to skip the preliminary injunction step and go straight to a full hearing. Miller says if that does happen, the two-week restraining order could be extended.

Ever since the Eighth Circuit demanded the plaintiffs more clearly show how the admitting privileges law would affect patients, Planned Parenthood has worked to collect and document that information, Miller said.

Last month, research was released that sought to systematically evaluate the availability of abortion care and distance from all major U.S. cities. The study’s objective was to describe abortion facilities and services available in the country from the perspective of a potential patient searching online, and to find out which cities are farthest from available abortion care.

Alice Cartwright, project director at Advancing New Standards in Reproductive Health and co-author of the study, told Rewire.News that their research is exactly the kind of data plaintiffs could refer to if they returned to court.

“We found that abortion access is better in the northeast and western part of the country and one reason is they were more likely to have a higher proportion of clinics that were only providing medication abortion,” said Cartwright.

The organization’s research team worked to determine the number of cities with at least 50,000 people where patients would have to travel 100 miles or more to reach the closest abortion provider. As of spring 2017, they found 27 such cities in the US. Cartwright says if this Arkansas law were to take effect the number of cities could increase much more.

The rate of medication abortion has increased in popularity since the Food and Drug Administration first approved Mifeprex in 2000. The procedure typically involves using both Mifeprex—often referred to as “the abortion pill”—and a second drug, misoprostol. With access to surgical abortion diminishing at a rapid clip, medication abortion is recognized as a safe, much-needed health care alternative, especially for those living in rural and medically underserved parts of the US.  

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