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Arkansas defends three pro-life laws in briefs submitted to 8th U.S. Circuit Court Court of Appeals

by | Nov 1, 2019

By Dave Andrusko

Arkansas AG Leslie Rutledge

On August 6, when last we examined the handiwork of pro-abortion to the hilt U.S. District Judge Kristine Baker, she had waited until the very last minute to extend an enforcement ban against three pro-life Arkansas laws. Baker had issued the initial temporary restraining order July 23 preventing the state from enforcing

  • Act 619 which protects unborn babies who would be aborted solely because of a prenatal diagnosis of Down syndrome.
  • Act 700 which requires abortion providers to be board-certified.
  • Act 493 which bans abortions starting at 18 weeks.

Immediately following Judge Baker’s TRO extension, Amanda Priest, the communications director for Arkansas Attorney General Leslie Rutledge, issued a statement:

“Following the court’s adverse ruling, the Attorney General immediately filed an appeal to the Eighth Circuit. She continues to defend Arkansas law protecting women’s health by requiring a board certified or eligible OBGYN to perform an abortion, as well as Arkansas laws that (protect) unborn life by prohibiting abortions after 18 weeks and at any time if based on a Down Syndrome diagnosis.”

This brings us to an extremely detailed and (surprise!) unbiased summary of the 72-page brief submitted by attorneys for the state to the 8th U.S. Circuit Court of Appeals, written by Linda Satter of the Arkansas Democrat-Gazette. The opening paragraphs are particularly helpful summaries:

Attorneys for the state are urging judges on the 8th U.S. Circuit Court of Appeals to vacate an injunction that has kept three new abortion-restricting laws in Arkansas from being enforced since July 24, the date they were scheduled to take effect.

In a brief filed Tuesday at the St. Louis-based appellate court, the Arkansas attorney general’s office presented detailed arguments to support its appeal of orders blocking Acts 493, 619 and 700, all of which were passed during this year’s legislative session.

The laws, which the state calls “commonsense abortion regulations,” ban abortions after 18 weeks of pregnancy, except in a medical emergency or cases of rape or incest; prohibit abortions based solely on the likelihood of fetal Down syndrome; and require abortion providers in the state to be board-certified or board-eligible in obstetrics and gynecology.

Satter’s story can be read in its entirety here, so let me highlight just a portion of her summary of the state’s case.

*“The state’s attorneys also argued that the genetic-discrimination law, also known as the Down syndrome law, is constitutional because ‘Arkansas is entitled to prohibit abortion practitioners from discriminating against people with disabilities,” Satter wrote. “They called Act 619 ‘a step toward remedying a shameful history of discrimination.’” This is such an obvious and blatant act of discrimination that it would seem only a matter of time before the Supreme Court directly addresses the issue, something it avoided last May in Box v. Planned Parenthood of Indiana and Kentucky.

*The state strongly defended the benefits to women of Act 700 which requires abortion providers to be board-certified—a requirement which Judge Baker dismissed virtually out of hand. “Overall, they argued, she erred in concluding that the OB/GYN requirement’s benefits are substantially outweighed by its burdens,” Satter wrote. The brief noted

existing law provides only four requirements for abortion practitioners: that they are state-licensed physicians, that they must obtain prior consent from the patient; that they must keep a record of obtaining consent; and that they must report all abortions provided.

“In other words, prior to the OBGYN requirement any Arkansas-licensed doctor — whether family practitioner, opthamologist, or radiologist — could perform abortions,” the filing states. “The district court then declared without explanation that this was good enough and declined to consider evidence that, unlike those physicians, all OBGYNs are ‘trained in 1st and 2nd trimester evacuation of the uterus,’ and to handle the ‘complications of abortion (spontaneous or induced).’ On that basis, it found that the OBGYN requirement would provide few, if any, benefits.”

The brief said Baker declared that the clinic couldn’t comply with the OB/GYN requirements, and “failed to conduct any serious analysis of [the clinic’s] half-hearted attempts to locate additional board-certified or -eligible OBGYNs.”

The brief also noted tellingly that since Baker’s August 6 decision, The Little Rock Family Planning Clinic has added two board-certified OB/GYNS, changing the numbers Judge Baker relied on to conclude the abortion clinic couldn’t comply with the OB/GYN requirements.

*And finally the state’s brief argued

“This court should reverse, or at least vacate, the preliminary injunction and order random reassignment on remand,” the state attorneys said, referring to the fact the lawsuit challenging the three laws was originally randomly assigned to U.S. District Judge Billy Roy Wilson, who transferred it to Baker, saying it was related to similar lawsuits she was already presiding over.

The Little Rock Family Planning Clinic has until November 29th to file its brief. The losing party is likely to request a rehearing or a review by the full 8th Circuit.

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