Arkansas’ Medication Abortion Ban Was Hit With a Temporary Restraining Order. Here’s What’s Next.

Originally published in Rewire News on June 20th, 2018.
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A federal judge on Monday granted a brief reprieve from an Arkansas law that dramatically restricts abortion access in the state by effectively banning medication abortion.

The first-of-its-kind statute would limit abortion access at all but one Arkansas health center. The law had been in effect since May 29, when the U.S. Supreme Court declined Planned Parenthood’s request to hear the case. The plaintiffs filed for emergency relief following the high court’s dismissal, and U.S. District Judge Kristine Baker agreed to grant them a two-week restraining order, which will expire at 5 p.m. on July 2.

But the battle to stop the law is far from over.

This fight began in the spring of 2015, when the GOP-majority Arkansas legislature passed Act 577, requiring physicians who prescribe drugs for non-surgical abortions to secure contracts with a second doctor who has hospital-admitting privileges. The American College of Obstetricians and Gynecologists and the American Medical Association have both said there is “no medical basis” for such requirements, and abortion providers, especially those in conservative states, typically struggle to find hospitals willing to partner with them.

The law was set to take effect at the start of 2016, but on December 28, 2015, Planned Parenthood sued to block it. A temporary restraining order was issued on December 31 of that year, and three months later, Judge Baker issued a preliminary injunction as Planned Parenthood Great Plains continued with their lawsuit against the state.

An Eighth Circuit Court of Appeals panel in July 2017 lifted Baker’s injunction, asserting she would need to more concretely show how Arkansas women would be harmed by the admitting privileges law. A year earlier the Supreme Court overturned a package of abortion restrictions that included requirements for admitting privileges. The justices determined the rules posed an unconstitutional burden on Texan women seeking to end their pregnancies.

Planned Parenthood says that if the law were to take effect, its two abortion facilities in Little Rock and Fayetteville would no longer be able to provide medication abortion. Neither of those facilities provide surgical abortions.

The health care provider requested the Eighth Circuit’s full bench of judges review the panel’s July ruling, but in late September, the appellate court declined the request. The Eighth Circuit is one of the most conservative appellate courts in the country; two years earlier its judges recommended that the U.S. Supreme Court “re-evaluate its jurisprudence” on abortion, urging for greater state power over reproductive health.

The next step for the plaintiffs was petitioning the Supreme Court to review the Eighth Circuit’s decision. The appellate court agreed to keep the preliminary injunction in place in the meantime, which meant the law has not been enforced all year. But at the end of May, the Supreme Court finally responded to Planned Parenthood’s petition and declined to intervene. This set the law into immediate effect.

Planned Parenthood quickly filed for a temporary restraining order, a request which was finally granted this week. In a press statement, Planned Parenthood said that beginning on May 29, “health center staff were forced to immediately call patients to inform them they would no longer be able to access their medication abortion.”

Some patients, according to Planned Parenthood, were already en route to their appointments, and others were “left scrambling to alter their work and child care schedules, and to secure additional funds required to undergo the state-mandated counseling process over again for a surgical abortion or to travel out of state, further delaying care.”

Emily Miller, director of communications for Planned Parenthood Great Plains, told Rewire.News that the next steps are not clear, though at least until July 2, when the temporary restraining order lifts, providers will again be able to provide medication abortion.

“We’re approaching it like we have a temporary restraining order that will run for fourteen days, and then we’ll focus on our next step which is the preliminary injunction,” Miller explained. “But we don’t know exactly what course the state will choose to take.” The state might try to skip the preliminary injunction step and go straight to a full hearing. Miller says if that does happen, the two-week restraining order could be extended.

Ever since the Eighth Circuit demanded the plaintiffs more clearly show how the admitting privileges law would affect patients, Planned Parenthood has worked to collect and document that information, Miller said.

Last month, research was released that sought to systematically evaluate the availability of abortion care and distance from all major U.S. cities. The study’s objective was to describe abortion facilities and services available in the country from the perspective of a potential patient searching online, and to find out which cities are farthest from available abortion care.

Alice Cartwright, project director at Advancing New Standards in Reproductive Health and co-author of the study, told Rewire.News that their research is exactly the kind of data plaintiffs could refer to if they returned to court.

“We found that abortion access is better in the northeast and western part of the country and one reason is they were more likely to have a higher proportion of clinics that were only providing medication abortion,” said Cartwright.

The organization’s research team worked to determine the number of cities with at least 50,000 people where patients would have to travel 100 miles or more to reach the closest abortion provider. As of spring 2017, they found 27 such cities in the US. Cartwright says if this Arkansas law were to take effect the number of cities could increase much more.

The rate of medication abortion has increased in popularity since the Food and Drug Administration first approved Mifeprex in 2000. The procedure typically involves using both Mifeprex—often referred to as “the abortion pill”—and a second drug, misoprostol. With access to surgical abortion diminishing at a rapid clip, medication abortion is recognized as a safe, much-needed health care alternative, especially for those living in rural and medically underserved parts of the US.

Arkansas and Hawaii Lawsuits Present Challenges and Opportunities For Medication Abortion

Originally published in The American Prospect on November 3, 2017.
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The U.S. abortion rate recently hit its lowest level since Roe v. Wade, but medication abortion—non-surgical abortions induced through drugs—has increased in popularity since the Food and Drug Administration first approved Mifeprex in 2000. (Medication abortions typically involve using both Mifeprex—colloquially known as “the abortion pill”—and another drug, misoprostol.)

Yet despite the proven efficacy of medication abortion for safely terminating early-stage pregnancies, a series of regulatory and statutory restrictions have prevented many women from being able to use this abortion option. Two different legal battles taking place right now—in Arkansas and Hawaii—illustrate why.

In 2015, Arkansas passed a law requiring physicians who prescribe drugs for non-surgical abortions to secure contracts with a second doctor who has hospital-admitting privileges. The American College of Obstetricians and Gynecologists and the American Medical Association have both said that there is “no medical basis” for such mandates.

It can be difficult for abortion providers—especially ones in conservative states like Arkansas—to obtain admitting privileges, because hospitals tend to avoid partnerships that could produce a backlash from anti-choice groups. When Texas passed a law in 2013 requiring all abortion clinics to obtain hospital-admitting privileges and to meet ambulatory surgical center building standards, nearly half of the state’s clinics shut down soon afterward. The U.S. Supreme Court overturned the package of restrictions in 2016, concluding they posed an unconstitutional burden on Texan women seeking to end their pregnancies.

In March 2016, U.S. District Judge Kristine Baker issued a preliminary injunctionblocking the Arkansas admitting-privileges law from taking effect while Planned Parenthood Great Plains sued the state. But this past July, an Eighth Circuit Court of Appeals panel lifted Baker’s injunction, concluding that she would need to show more specifically how Arkansas women would be harmed by the law. Planned Parenthood maintains that its two abortion facilities in Little Rock and Fayetteville would no longer be able to provide medication abortion if this law were to take effect, and that neither of those centers provide surgical abortions.

Following the July decision, Planned Parenthood requested that the Eighth Circuit’s full bench of judges review the panel’s ruling. But in late September, the Eighth Circuit declined to do so. “The extremists who put this law into place will now be responsible for the lives they’ve put in harm’s way,” said Aaron Samuleck, the interim president and CEO of Planned Parenthood Great Plains, after the September decision.

The Eighth Circuit is one of the most conservative appellate courts in the country. In 2015, its judges recommended that the U.S. Supreme Court “reevaluate its jurisprudence” on abortion, urging the high court to return greater reproductive decision-making power to the states.

Now Planned Parenthood Great Plains has notified the U.S Supreme Court that it intends to file what’s known as a petition for a writ of certiorari, which essentially means that the organization plans to ask the high court to review their case. When they do file their petition, Planned Parenthood also plans to also ask the Supreme Court to issue a preliminary injunction to block the admitting-privileges law from taking effect. Planned Parenthood has also gone back to the Eighth Circuit to ask that the appellate court refrain from enforcing the law while they petition the Supreme Court—a request the Eighth Circuit granted in mid-October. So for now, the law remains on hold.

Meanwhile, a very different sort of medication abortion challenge is under way in Hawaii. The FDA has Mifeprex (mifepristone) on its Risk Evaluation and Mitigation Strategies list (REMS), a designation the government uses when it determines that increased restrictions are necessary for a drug’s benefit to outweigh its risks. Because the abortion pill is on the REMS list, the FDA can require that only certified medical professionals in hospitals, medical offices, or clinics administer it. In other words, women can’t fill a prescription for Mifeprex at their local pharmacy. But just as it can be difficult for abortion clinics to obtain hospital-admitting privileges because of political objections, many medical centers also encounter political resistance to stocking and distributing Mifeprex.

In early October, the American Civil Liberties Union filed a lawsuit against the FDA, charging that the agency was both violating its own statutory authority, as well as the Constitution’s due process protections, by preventing commercial pharmacies from filling Mifeprex prescriptions. The lawsuit was filed on behalf of a Hawaiian doctor on Kauai, who cannot stock Mifeprex in his office or direct women to nearby abortion clinics since there are none on the island. If patients come to him seeking early-stage abortions, he has to tell them to fly to another island for the procedure—something that can both increase a patient’s costs, as well as delay it for weeks, if not entirely.

Reproductive rights advocates say there’s no reason for the FDA to put Mifeprex on the agency’s list of particularly risky drugs. In 2016, the American Congress of Obstetricians and Gynecologists stated that putting the abortion pill on the REMS list “is inconsistent with requirements for other drugs with similar or greater risks, especially in light of the significant benefit that mifepristone provides to patients.” In their new lawsuit, the ACLU argues that the restrictions are unscientific and onerous. They note that blood thinners, Viagra, and other drugs carry greater risks than Mifeprex, yet local pharmacies can fill prescriptions for these medications.

In an interview with The American Prospect, Julia Kaye, a staff attorney with the ACLU’s Reproductive Freedom Project, says the Arkansas and Hawaii cases target different issues, but ultimately revolve around the same core problems: “unconstitutional and unjustified” restrictions on reproductive health care.

Moreover, despite the FDA’s stated concern about possible risks, the agency does not even require patients to take Mifeprex at a designated health-care setting; they only must obtain it there. “There is simply no safety benefit to requiring that a patient be handed a pill at a clinic to then swallow it home, rather than [receiving it] at a pharmacy,” says Kaye. (Some health-care facilities prefer patients to take the medication on site, but the FDA doesn’t require it.) The FDA’s own research also concludes that medication abortion “has been increasingly used as its efficacy and safety have become well-established by both research and experience, and serious complications have proven to be extremely rare.”

“Often health-care providers are unable to stock the abortion pill because of bureaucratic hurdles, or because of opposition to abortion by co-workers,” explains Kaye, who adds that health-care providers must navigate multiple layers of institutional approval before they can administer the drug. “The process is not only complicated and time-consuming, but because there are so many individuals who need to sign off on procurement, even a single individual who objects to abortion can significantly delay or even derail stocking this medication,” she says.

While research suggests that women generally prefer surgical abortions (which tend to be faster procedures that involve less bleeding) over medication ones, many women are unable to access surgical abortions, due to the diminishing number of abortion clinics, as well as restrictions such as mandatory waiting periods. Medication abortion provides women with much-needed reproductive health-care alternatives—especially low-income women, and women living in conservative, rural, and medically underserved parts of the country.

An ACLU win in the Hawaii case would affect FDA restrictions on Mifeprex nationwide.