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.

Q&A: The Abortion Battle’s Next Phase

Originally published in The American Prospect on July 12, 2016.
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In a landmark ruling last month, the Supreme Court struck down a package of Texas abortion restrictions known as Targeted Regulation of Abortion Providers (TRAP) laws. Such laws, which have proliferated around the country, typically restrict abortion access by imposing rigid and expensive hospital-style mandates on clinics. The Court’s ruling in the case, known as Whole Woman’s Health v. Hellerstedt, found that the restrictive Texas TRAP laws were unconstitutional because they placed an “undue burden” on women, and marked a major victory for the reproductive rights movement. The American Prospect’s Rachel Cohen spoke with Ilyse Hogue, the president of NARAL Pro-Choice America, which helped lead the challenge to the Texas TRAP laws, to ask about the ruling’s implications for abortion access and for the upcoming election. This is an edited transcript of that conversation.

Rachel Cohen: Now that the Supreme Court has struck down TRAP laws, what’s next on the agenda for anti-choice opponents?

Ilyse Hogue: Over the years, [abortion opponents] have realized that honesty can only get them so far in terms of achieving their goal of ending legal abortion. TRAP laws were really a way to deceive the public, cloaking their efforts around the idea of protecting women’s health. The Supreme Court just eviscerated the anti-choice posturing that TRAP laws are in any way about women’s health.

So one of their favorite tools just got taken away from them. They are reeling, but they are not the type to take their ball and go home. We’re anticipating them pushing forward on a number of different fronts. I think they will step up their harassment at clinics—harassing patients and doctors. And we’ve seen some really insidious things from state legislatures, like recently an effort in Missouri to force clinics to turn over their private medical records to the state. I think we’re going to see anti-choice opponents continue to pour resources into crisis pregnancy centers, which are just another way to deceive women.

How will the reproductive rights movement respond?

We are pushing back on their crisis pregnancy center efforts. In California last year, legislators passed the Reproductive FACT Act, which sets a national model for requiring all crisis pregnancy centers to be really clear with their patients about what they do and don’t do. Other states are looking at California’s law, and I think it’s very much at the top of legislators’ minds for the beginning of 2017.

We’ve also seen states where pro-choice legislators are filing to appeal TRAP laws that are already on the books, like Daylin Leach, a Democratic state senator, in Pennsylvania. And we’re working as a movement to step up litigation and public education to repeal the rest of those laws around the country. Importantly, we’re really moving to a position where we will not just fight anti-choice lies and deception, but where we can actively push for legislation that expands access to abortion. For example, a number of states are looking at medical abortion, and allowing nurse practitioners to provide abortion services. California already has that and other states are looking at it.

On top of this, we’ve got two pieces of federal legislation that are picking up momentum. The Women’s Health Protection Act, which would enforce and protect the right of a woman to decide for herself whether to continue or end a pregnancy, and the Equal Access to Abortion Coverage in Health Insurance Woman Act, which would repeal the Hyde Amendment and ensure that abortion services could be covered under federal health insurance.

NARAL recently released a statement calling the Democratic Party platform “the strongest platform for reproductive freedom we have ever seen.” What’s so significant about it?

The platform is a symbolic statement of values, as well as a navigation tool for what kinds of legislative and public policy remedies there are for the issues that we face. So the fact that it explicitly calls for the repeal of the Hyde Amendment, as well as the Helms Amendment, [which restricts U.S. foreign aid from paying for abortion services] is huge. It acknowledges that there have been discriminatory practices both here and abroad against women who want to control our own reproductive destiny.

The reproductive justice movement deserves an enormous amount of credit for getting us here. Reproductive freedom in the 21st century is acknowledging that we are whole beings. There is not one group of women who gets abortions, and others who go on to be parents. We are just the same women at different times in our lives, making the decisions that are best for us and our families. That the platform takes a step towards acknowledging that is a real testament to the economic and reproductive movements that have come together.

How long will it take Texas and the other states with TRAP-style restrictions to restore abortion access to women?

I’m really glad you asked that question. The answer is too long and it varies state by state. Texas is five times the size of other states, so it will take longer there. But what’s important in answering that question is acknowledging that in the minds of the extreme anti-choice minority, this was a scorched-earth strategy. They always knew they could lose at the Supreme Court, but the amount of damage they were able to do in the meantime, in terms of clinics on the ground, in terms of women who could not access services—that’s significant damage that can never be fully undone.

While it’s important to win, we can’t actually let them gain such ground in the future. We can’t just depend on Supreme Court strategies when it comes to ensuring women access to our basic rights.

That brings us to the election. What role do you expect abortion and reproductive health to play in state and federal races?

We have to be very focused, not only on getting our champion into the White House, but on the down-ballot races, because the harm is coming disproportionately from state legislatures.

We’ve been doing a lot to hold incumbents accountable for the unbelievable amount of times they’ve tried to restrict access to abortion. Their constituents did not elect them to do that, especially at the expense of all the important business that has not gotten done. In both the federal election and for local and state races, we’re making sure voters have the information to hold their officials accountable.

This is a long-term project. We’ve got to make gains in 2016, and come 2020 and 2022, I think we’re going to start seeing some of these state legislatures really shifting on these issues.

In the 2012 election, Todd Akin, a Republican candidate from Missouri lost his race, in large part because of his outrageous comments about “legitimate rape.” Are we seeing similar types of remarks from Republicans this year?

I think people have been trained to be more careful, because when they speak their truth they find themselves at odds with the majority of their constituents. These anti-choice candidates don’t want to talk about their position once they get to a general election because they know they’re on the wrong side, and they don’t win elections if they do. We saw that so clearly in 2014 when Scott Walker, three weeks before his Wisconsin election, ran an ad saying he supports legislation to provide women with more information and to leave the final decision to a woman and her doctor. This is coming from a man who had done more to legislate abortion out of existence than every previous governor before him.

But I think what’s changed between 2012 and 2016 is that back then, the pro-choice movement was able to leverage those off-the-cuff Republican statements. But we’re not going to wait for them now. We’re going straight to the voters to remind them about their officials’ records. We did that really recently in New Hampshire with an  ad campaign targeting Republican Senator Kelly Ayotte, reminding her constituents about all the anti-choice work she spent her time working on, when they didn’t want her to.

What about Donald Trump? He went so far as to say that women should be punished for getting abortions, but then quickly walked it back.

Donald Trump is not playing by the anti-choice or the GOP rulebook in any way, and we know that. One thing that’s super important to me from where I sit at NARAL, but also as an American, and as a mom, is just the way he’s giving voice and credibility to deeply-held misogynistic ideas. I think he will do tremendous damage whether he wins or not, because he has given permission to this very dark underbelly that does not represent what we need to be or what we can be. This is especially true when it comes to his misogyny, and his willingness to dehumanize women. I think particularly because he is facing a woman opponent we’re going to see a new wave of misogynistic activists who feel like they have the high ground.

How has Obama been on reproductive rights? NARAL endorsed Hillary Clinton in January. Might Hillary be different from him?

Obama has been a great backstop against the endless assault by the anti-choice majority in Congress. He has vetoed every bill we’ve needed him to veto in no uncertain terms. But what we need now is a leader in the White House who centralizes these ideas about reproductive freedom as human rights, integral to the health and security of women and families in America. That’s not really been the center of his presidency, and I think it will be the center of Hillary Clinton’s.