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Arkansas and ACLU maintain ongoing battle over abortion at a time of the COVID-19 pandemic

by | Apr 28, 2020

By Dave Andrusko

The ACLU and the state of Arkansas continue to fight over the conditions under which women can secure an abortion during the COVID-19 pandemic.

Linda Satter of the Arkansas Democrat-Gazette reported that the ACLU was scheduled to explain today to U.S. District Judge Kristine Baker why she should issue a second Temporary Restraining Order (TRO) barring “the state from enforcing the elective-procedures ban with respect to women who would be legally unable to have an abortion after May 11.”

The May 11 date refers to the expiration date for the directives issued by the State Health Department under an emergency declaration issued by Gov. Asa Hutchinson. (The directive can be renewed.)

The state and the ACLU have gone back and forth for weeks, with Judge Baker giving the ACLU more-or-less exactly what it wants and the 8th U.S. Circuit Court of Appeals reining in her directives.

Satter reported that “the state Department of Health replaced an April 3 order banning elective procedures statewide during the covid-19 pandemic with one that allows the procedures to resume on a limited basis.”

As NRL News Today reported, the three key provisions are that (1) a patient test negative for COVID-19 at least 48 hours before the surgical procedure; (2) surgeries are limited to “out-patient” procedures; and (3) the surgical facility must have an “amply supply” of PPE—Personal Protective Equipment.

The ACLU was not satisfied.

This prompted the state to argue yesterday that “Little Rock Family Planning Services is again seeking a ‘special exemption’ to carry out surgical abortions, despite an appellate court last week dissolving an order that briefly allowed the procedures to resume,” according to Satter.

The basic standoff in Arkansas resembles what’s taken place in other states. 

In Satter’s description, “The state considers most surgical abortions to be elective procedures, which it defines as all surgeries not necessary to protect the health or life of the patient. But the clinic, which is the state’s only provider of surgical abortions, maintains that abortions aren’t ‘elective’ because they are time-sensitive and cannot be paused without dire consequences.”

Attorneys for the state of Arkansas called the ACLU’s bluff Monday, arguing that the ACLU “did not identify a single mother within that category [if their abortion were delayed, she would be past the state’s 21-week limit], and no mother has sued.”

Satter further writes

Attorneys for the state said the clinic “cannot show that any woman will be prevented from obtaining an abortion” because of the new order. “Any virus-free, asymptomatic patients are eligible to pursue an elective surgical abortion under the April 27 directive, including the six women Plaintiffs claim would have been unable to obtain one after May 11,” they said.

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