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Arkansas AG fires back at TRO preventing state from banning elective procedures, including abortion, during pandemic

by | Apr 16, 2020

By Dave Andrusko

Arkansas AG Leslie Rutledge

We’ve seen this many time before. Pro-abortion Judge Kristine Baker reflexively supports the abortion industry whenever it encounters a law or even an executive order or guidelines it doesn’t like. Pro-life Arkansas Attorney General Leslie Rutledge then patiently (and vigorously) demonstrates where Judge Baker went off the rails.

The latest confrontation, as you would anticipate, deals with the State Department of Health’s April 3 directive that “elective procedures”—which included elective abortions—are banned during the pandemic. The Little Rock Family Planning Services, represented by the ACLU, challenged the directive.

Always accommodating, on Tuesday Baker issued a temporary restraining order [TRO] “on an emergency basis without waiting for the state to respond to the clinic’s request for it a day earlier,” as  Linda Satter reported for the Arkansas Democrat-Gazette.

Shortly after Baker issued her order, Amanda Priest, a spokeswoman for the AG, said, “Attorney General Leslie Rutledge is extremely disappointed in today’s decision to blatantly disregard good public health guidelines.” Priest added that Rutledge was also disappointed that Baker halted the department’s directive “without allowing the state to be heard.”

Priest promised AG Rutledge would “take immediate steps to see this decision is reversed,” which she did on Wednesday.

The Democrat-Gazette reported that in her 22-page order, Judge Baker 

found that the clinic would be “irreparably harmed” if the cease-and-desist order continued to be enforced and said there were no benefits of the directives that could outweigh the burdens they impose on women seeking abortions in Arkansas.

Then we have AG Rutledge’s 29-page rebuttal. Here are just a few highlights: 

Judge Kristine Baker

*She came out blazing. “In an ex parte TRO, the district court created a blanket exemption for abortion practitioners from Arkansas measures that preserve healthcare resources to save lives in the fight against COVID-19. These measures don’t target abortions; they apply to all non-medically necessary surgeries. And they are only temporary. The district court didn’t consider these facts because it issued the TRO without giving Petitioners so much as a chance for a teleconference.”

*Performing abortions would require medical supplies that are in short supply and would increase social contact [internal cites omitted, underlining is mine]:

Like other surgical procedures, surgical abortions require PPE [Personal Protective Equipment] to protect staff “from exposure to blood and other bodily fluids and tissue, and to protect the patient from infection.” Necessary PPE could include a surgical mask, eye protection, a gown, and gloves. Complications can increase the required PPE. And with the COVID-19 threat looming, patients require PPE as well. On April 3, following CDC guidance, ADH issued a directive on elective surgeries, mandating that all non-medically necessary surgeries be postponed during the COVID-19 emergency. Not only will this conserve PPE sorely needed to respond to the pandemic, it will help reduce social contact. It applies equally to all types of surgeries, requiring postponement of any surgeries that do not meet the criteria for being deemed immediately medically necessary.

*There have been reports [as Satter noted] that the clinic “was performing surgical abortions on out-of-state patients.”

On April 7, in response to a complaint received by ADH [Arkansas Department of Health], inspectors conducted an unannounced inspection of Little Rock Family Planning Services. ADH personnel discovered that facility was providing abortions that were not medically necessary instead of postponing them as required. On April 10, ADH notified LRFP that it was violating the directive and ordered it to immediately stop performing noncompliant surgeries.

*Litigants piggybacked this challenge onto an unrelated case against three pro-life Arkansas laws, rather than file a new lawsuit. Why? “As a result of strategic maneuvering like this, all four abortion cases currently pending in Arkansas federal court are currently assigned to the same district judge” [Baker]. 

*There are many others, including this shot across the bow:

Usurping the role of Arkansas officials tasked with overseeing the State’s pandemic response and who best understand conditions in the State, the district court declared abortion is an avenue for managing scarce healthcare resources. It admitted the legitimacy of Arkansas’s “interests in protecting or promoting the public’s health and safety during the COVID-19 pandemic.” But it held that previability abortion is actually a better outcome in terms of dealing with the COVID-19 pandemic because it “decreases” the “demand for hospital care, especially given [its] findings that abortion is safer and does not burden hospitals as much as continued pregnancy, miscarriage management, and childbirth.” [Emphasis in the brief.]

Satter concluded her story with a reminder that the judge’s TRO “will automatically expire in exactly 14 days, at 3:30 p.m. April 28, after which time, she said, she will reconsider the matter after reviewing written arguments. The clinic seeks a longer-lasting preliminary injunction after the temporary restraining order expires.”

The latter is, of course, a formality. Sometimes for her own peculiar reasons Judge Baker waits until the eleventh hour before replacing her TRO with “a longer-lasting preliminary injunction,” but she never fails the abortion industry.

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