By Dave Andrusko
Tuesday afternoon Arkansas Governor Asa Hutchinson announced he was extending his emergency executive order on elective surgeries through the 4th of July weekend. The order “reaffirms all prior directives issued under the original declaration, [which] had been scheduled to expire on May 21,” explained John Lynch of the Arkansas Democrat-Gazette.
Those executive orders include limitations on the performance of elective abortions, orders which the ACLU has fought for weeks. The ACLU kept up its attack on behalf of Little Rock Family Planning clinic, even though the governor’s executive order had been loosened.
The target has now come full circle to the original target: “late term abortions.” By this, the ACLU means abortions which, were they delayed, would mean the pregnant woman would be beyond the state’s legal limit for abortions –21.6 weeks from the beginning of a woman’s last menstrual period.
The point the ACLU attempted to leverage was the requirement—of any elective surgery, not just abortion—that a patient tests negative for COVID-19 at least 48 hours before the surgical procedure.
Yesterday, the office of pro-life Arkansas Attorney General Leslie Rutledge, a formidable foe, filed its response. It immediately cut to the chase:
Plaintiffs seek a special late-term abortion exemption from Arkansas’s requirement that during an international pandemic anyone seeking an elective-surgical procedure test negative for COVID-19. The Constitution does not require such an exemption, and nothing in Plaintiffs’ latest ex parte motion for a temporary restraining order changes that. Instead, Arkansas’s requirement is only subject to challenge if “it ‘has no real or substantial relation to’ the public health crisis, or ‘is, beyond all question, a plain, palpable invasion of’ a woman’s right to elective abortion.”
Just as the Eighth Circuit held just over a week ago in vacating a prior TRO blocking Arkansas’s then-categorical bar on elective abortion, Plaintiffs cannot possibly make that showing.
To the contrary, a generally applicable public health directive—that several of mothers have complied with—isn’t unconstitutional merely because it might prevent one mother from obtaining a pre-viability abortion. This Court should decline Plaintiffs’ request that this Court ignore binding precedent and deny their latest motion for an ex parte TRO. [Emphasis in the original. All internal citations omitted for clarity.]
The 16-page brief explains in great detail how the requirement clearly has a “substantial relation” to fighting the ongoing COVID-19 pandemic and by no means is “’a plain, palpable invasion of’ a woman’s right to elective abortion.”
The attorney general’s brief excoriates what it calls it calls “Plaintiffs’ ever-shifting claims.” As noted in the quotation above, the AG’s office cited the opinion of the 8th Circuit Court of Appeals which politely hammered the judge who originally handled the case—Judge Kristine Baker—who has since bowed out of the case. It is now before U.S. District Judge Brian Miller.
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