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8th Circuit upholds Arkansas’ moratorium on surgical abortions during COVID-19 pandemic

by | Apr 22, 2020

Second time in three days appeals court upholds protective state order

By Dave Andrusko

Using language as restrained as it could muster, a three-judge panel of the 8th U.S. Circuit Court of Appeals this morning dissolved District Judge Kristine Baker’s temporary restraining order that had created “an exemption for surgical abortions from the Arkansas Department of Health’s April 3, 2020 directive mandating that all non-medically necessary surgeries be postponed while the COVID-19 emergency is ongoing,” to quote from the response of the Arkansas Attorney General’s office. “With the Eighth Circuit’s decision, there is no longer a judge-made exemption for surgical abortions. Every non-medically necessary surgery must be postponed. The Eighth Circuit also confirmed the procedurally suspect nature of allowing abortion providers to hand-pick the judge that hear their cases.”

Arkansas Attorney General Leslie Rutledge added, All medically unnecessary surgeries must be postponed, and this decision affirms that surgical abortions do not get special treatment.” The Eighth Circuit, she concluded, “agreed with Arkansas that the district court committed a clear abuse of discretion in creating a carve-out from state law for surgical abortions.”

As NRL News Today reported on Monday, the 5th U.S. Circuit Court of Appeals ruled that “medication” [chemical] abortions could be restricted in Texas while the state fights the coronavirus pandemic.” As Texas Right to Life has explained that, according to data from 2017, chemical abortions account for  31.6% of all abortions in Texas, “totaling over 17,000 deaths per year.” 

Those abortions, which if delayed would push the pregnancy beyond the 22-week state cutoff for abortions in Texas, remained permissible.

The 8th Circuit relied heavily on the reasoning found in portions of the 5th Circuit’s decision, principally because their respective district judges came to the same pro-abortion conclusions. For example, Judge Baker insisted that the state’s directive was an “outright ban” on all previability abortions. 

Not so.

First, the directive does not apply to medication abortions, which are available in Arkansas up to 10 weeks LMP. Moreover, contrary to the district court’s finding, the directive does not operate as an outright ban on previability abortions for women who are past 10 weeks LMP or for whom medication abortion is contraindicated. 

In addition, the requirements are not “infinite” the court noted. On March 11, Governor Asa Hutchinson signed Executive Order 20-03, directing the Arkansas Department of Health (ADH) to “do everything reasonably possible to respond to and recover from the COVID-19 virus.” On April 3, a directive from the ADH required that all non-medically necessary surgeries be postponed. The current state of emergency can last only 60 days—no longer than May 10, 2020, “unless renewed by the Governor of Arkansas.”

The appeals court panel found numerous and sundry shortcomings in Judge Baker’s 22-page order. To list a representative sample…

*“Now [because of Baker’s TRO], unlike all other surgical procedures, Arkansas cannot proscribe non-emergency surgical abortions in its effort to conserve PPE and to limit social contact.“

*” In reaching this conclusion, however, the court [Baker] failed to meaningfully apply the Supreme Court’s framework for reviewing constitutional challenges to state actions taken in response to a public health crisis. Such a failure constitutes a clear abuse of discretion.” Ouch.

* “[T]he claim that non-emergency surgical abortions actually further the State’s public health goals by reducing the demand for PPE [Personal Protection Equipment] required for pre-natal care and delivery and reducing the burden on hospitals occasioned by continued pregnancies and childbirths is a policy argument, and the judiciary may not [quoting a previous decision] ‘second-guess the state’s policy choices in crafting emergency public health measures.’ …For these reasons, and on this record, we conclude that the ADH directive bears a real and substantial relation to the State’s interest in protecting public health in the face of the COVID-19 pandemic.”

* Referring to the Supreme Court’s decision in the  1992 case of Planned Parenthood v. Casey, ”We find that, in its perfunctory analysis of Casey’s undue burden standard, the district court committed clear abuses of discretion and, further, usurped the functions of the state government by second-guessing the State’s policy choices in responding to the COVID-19 pandemic.” Ouch times two.

That’s just for starters. AG Rutledge’s reference to “hand-pick[ing] the judge that hear their cases” was well-taken. The litigants piggybacked this challenge onto an unrelated case that “challenged the constitutionality of three separate abortion-related laws in Arkansas,” the panel noted. It drolly added, “Unlike the ADH directive, none of those laws seek to limit surgical abortions on the basis of the COVID-19 pandemic.”

NRL News Today will keep you up to date on how pro-abortionists continue to attempt to exploit the COVID-19 pandemic for their own anti-life purposes.

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