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Judge refuses to give an Arkansas clinic free rein to abort during a pandemic

by | May 8, 2020

By Dave Andrusko

During the COVID-19 pandemic, it’s amazing how commonsense and concern for public safety will win out when a judge does not rubberstamp the abortion industry’s demand to have exceptions carved out so it can continue aborting as if we weren’t in the midst of a pandemic that has already taken the lives of over 76,000 people.

As NRL News Today reported, Judge Kristine Baker did not specify why she opted out of the case filed by Little Rock Family Planning, but it came after the 8th U.S. Court of Appeals firmly rejected her decision to second-guess Arkansas Gov. Asa Hutchinson’s executive order. She was replaced by U.S. District Court Judge Brian Miller.

Yesterday Judge Miller rejected a request by the ACLU for a temporary restraining order to block a rule requiring a negative coronavirus test 48 hours before any elective surgery, which includes elective abortions. 

As the Arkansas Attorney General’s office explained, “The Arkansas Department of Health issued a directive on April 27, 2020, permitting elective surgeries, including surgical abortions, upon satisfaction of COVID-19 related precautions. The directive requires that all patients test negative for COVID-19 within 48 hours prior to any elective procedure.”

“Thursday’s decision ensures that there are no exemptions for surgical abortions during this pandemic,” said Attorney General Leslie Rutledge. “Arkansas’s reasonable directive sets standards to protect the health and safety of patients, healthcare professionals, and the public during the COVID-19 emergency.”

The ACLU wanted an exception for four women it said were approaching the 21.6 week outer limit for abortions in Arkansas.

The ACLU was not happy with Judge Miller’s 18-page-long decision. 

“People [aka women] cannot pause their pregnancies, and this politically-motivated restriction is already pushing care out of reach,” complained Holly Dickson, legal director and interim executive director of the American Civil Liberties Union of Arkansas. “This ruling will extend that harm.”

But Judge Miller’s reasoning was impeccable.

First, “This [the governor’s] directive applies equally to all surgical procedures and does not single out abortion providers or surgical abortions.” (My emphasis.) This typically gets lost in the discussion.

Second, the ACLU contention is that with regard to the aforementioned women, the “COVID-19 testing requirement is so burdensome that it has prevented them” from  obtaining their abortions.

But Judge Miller notes, “ADH [Arkansas Department of Health] states that, despite the difficulties faced by Jane Does 1–4, the COVID-19 testing requirement is not so burdensome as to prevent women from receiving surgical abortion. It points out that it performed an unannounced inspection of LRFP’s facility on May 1, and found that LRFP performed four surgical abortions between April 27 and May 1, and that all four women had timely COVID-19 testing results.”

Third, Judge Miller wrote, “The ADH’s April 27 directive, just like the April 3 directive, was issued in response to the COVID-19 pandemic. Consequently, it is not subject to constitutional challenge unless it has no real or substantial relation to the COVID-19 health crisis or is ‘beyond all question, a plain, palpable invasion” of a woman’s right to elective abortion.” 

As did the 8th Circuit, Judge Miller found the limitations were “clearly related to the COVID-19  health crisis.” Moreover, “The April 27 directive’s COVID-19 testing requirement is not beyond all question, a plain, palpable invasion of the right to have an abortion. First, notwithstanding the parties’ history of fighting over abortion, the record does not support the position that the ADH promulgated the April 27 directive with an eye toward limiting abortions.”

In addition, as we have reported, “Medication” [chemical] abortions have not been affected and, as noted, abortions are permitted if the woman meets certain criteria, most importantly that she obtain a negative COVID-19 test result 48 hours prior to the abortion.

Linda Satter, a reporter for the Arkansas Democrat-Gazette put it nicely in the lead to her story: “A Little Rock abortion clinic’s effort to get around a new Health Department directive that restricts surgical procedures was denied Thursday by a federal judge.”

Editor’s note. If you want to peruse stories all day long, go directly to nationalrighttolifenews.org and/or follow me on Twitter at twitter.com/daveha. Please send your comments to daveandrusko@gmail.com.

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