Jason S. Miyares
Attorney General of Virginia

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Commonwealth of Virginia
Office of the Attorney General

Mark Herring
Attorney General

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Richmond, Virginia 23219


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~ Herring joins coalition of 19 attorneys general in filing an amicus against Arkansas’ unconstitutional ban on essential reproductive healthcare during COVID-19 pandemic ~

RICHMOND (April 20, 2020) – Attorney General Mark R. Herring has joined a multistate coalition of 19 attorneys general in filing an amicus brief fighting to preserve access to reproductive healthcare for women across Arkansas. Arkansas has banned almost all procedural abortions in the state, using the COVID-19 public health crisis as an excuse. The coalition filed the amicus brief in the U.S. Court of Appeals for the eighth district, supporting the plaintiffs in Little Rock Family Planning Services v. Leslie Rutledge.


“Women deserve the right to make decisions about her own reproductive health and her body without her government getting involved,” said Attorney General Herring. “Lawmakers in Arkansas should be focused on protecting their residents and preventing further spread of COVID-19 instead of using the pandemic as a cover for passing policies that are based on ideology not science.”


In the amicus brief, Attorney General Herring and his colleagues argue that the ban on procedural abortions in Arkansas infringes on a woman’s constitutional rights. The coalition explains that the “characterization of the ban as prohibiting only ‘elective’ procedures fails to recognize how the time-sensitive nature of abortion care distinguishes that care from services that can be postponed without patient harm during the current public health crisis” because “abortions cannot be deferred indefinitely or for long stretches without increasing risks for some women and denying access to others.” The coalition explains that Arkansas’ “ban on [procedural] abortions will irreparably injure any woman who reaches the legal limit for an abortion during the ban,” resulting in some women “permanently los[ing] their right to lawfully obtain an abortion in Arkansas.”


Additionally, the coalition highlights that if the ban were to be reinstated, some women in Arkansas would be forced to make “risky and expensive” travel plans to cross state lines in order to obtain an abortion. This is especially troublesome at a time when the entire U.S. population is being asked to limit travel to stop the spread of COVID-19. Further, the coalition notes that residents of New York and other amici states may currently be in Arkansas without a way to return home, but they still have a right to time-sensitive reproductive care.


Finally, the coalition explains why a ban on abortion would not help the state preserve PPE, free up hospital beds, or prevent the spread of COVID-19 transmissions. As the district court noted in its temporary restraining order, the exact opposite is actually true. The attorneys general note that procedural abortions require limited PPE and actually require “far less PPE and medical resources than continuing a pregnancy” does. Additionally, procedural abortions rarely require admission to a hospital.


Women seeking an abortion in Arkansas typically have the choice between one of two options: a medication abortion or a procedural abortion. Medication abortions can take place through the 10th week of pregnancy in Arkansas, while a procedural abortion can currently take place through approximately 22 weeks of pregnancy, despite new state laws, passed last year, attempting to scale back that period to just 18 weeks. Only one abortion clinic in the entire State of Arkansas is currently licensed to perform procedural abortions — the Little Rock Family Planning Services (LRFPS) health clinic.


On March 11, 2020, Arkansas Governor Asa Hutchinson issued Executive Order 20-03, declaring a state of emergency. Ten days later, on March 21, 2020, the Arkansas Department of Health (ADH) issued a public statement recommending that health care facilities and clinicians “prioritize urgent and emergency visits and procedures now and for the coming several weeks.” The statement detailed that its goals were to “preserve staff, personal protective equipment (PPE), and patient care supplies; ensure staff and patient safety; and expand available hospital capacity during the COVID-19 pandemic.” The ADH stated that “[p]rocedures … that can be safely postponed shall be rescheduled to an appropriate future date.” The ADH issued another directive on April 3 with the same language as the March 21 directive, but which further specified that “urgent” and “care designated as an exception…will continue,” including care for circumstances in which “there is a risk of… progression of staging of a…condition if surgery is not performed.”


On April 1, representatives from the ADH called LRFPS twice to inquire about what the clinic was doing to reduce non-essential services, preserve PPE, and protect against the spread of COVID-19. On both occasions, LRFPS summarized practices it was following. On April 7, ADH inspectors performed an unannounced in-person inspection at LRFPS. At no point during either of the phone calls or the in-person inspection did the ADH representatives suggest that LRFPS was not complying with the state’s April 3 directive.


However, on the morning of April 10, ADH inspectors hand delivered a cease-and-desist order to LRFPS asserting that the clinic was “in violation of the April 3, 2020 Arkansas Department of Health Directive on Elective Surgeries,” despite acknowledging that the April 7 inspection “did not reveal any deficiencies with respect to the rules for abortion facilities in Arkansas.” The cease-and-desist order stated that the April 3 “prohibition applies to surgical abortions that are not immediately necessary to protect the life or health of the patient” and that “[a]ny further violations of the April 3 Directive will result in an immediate suspension of [LRFPS’s] license.”


Although the ADH is using the April 3 directive as the basis for ordering LRFPS to stop performing procedural abortions — except when the life or health of the woman was at immediate risk — the ADH has, to date, continued to allow a range of other non-urgent medical services, including orthodontist visits to adjust orthodontic wires and dentist visits to treat cracked teeth. Further, at an April 9 press conference with Governor Hutchinson and Arkansas State Health Director Dr. Nathaniel Smith, Dr. Smith was asked if “elective surgery” was still permitted in the state, and he responded that judgments at surgical centers would be left primarily to the providers.


A lawsuit LRFPS filed last year against government officials in Arkansas in the U.S. District Court for the Eastern District of Arkansas was amended on April 13 to add a challenge to the ADH April 3 directive and, specifically, the cease-and-desist order issued on April 10. The next day, the district court issued a temporary restraining order blocking the state from shutting down LRFPS’s procedural abortion services, in which the court noted that the state’s ban would, among other things, “bar access to abortion because medication abortion is contraindicated” for some women; “likely push [some women] to a more complex and more time-intensive” abortion procedure; and “likely push [other women] beyond the point at which abortion is available in the State.”


The district court also noted that the continuation of procedural abortions would not preserve PPE or hospital resources because procedural abortions make minimal use of both, and that continuing to allow procedural abortions would not increase the risk of transmission of COVID-19 any more than other activities that Governor Hutchinson has allowed to continue in Arkansas. Instead, the court observed, the state’s decision to bar procedural abortions in Arkansas will cause some women to undertake lengthy interstate travel that will actually increase the risk of transmission of the disease. The different defendants then asked the U.S. Court of Appeals for the Eighth Circuit to halt the lower court’s order, which would effectively reinstitute the ban on procedural abortions in the State of Arkansas.


Medical professionals — including the American College of Obstetricians and Gynecologists — recently denounced the abortion bans being imposed by multiple states during the spread of COVID-19, highlighting that delays in providing time-sensitive reproductive health care could “profoundly impact a person’s life, health, and well-being.”


Attorney General Herring has filed similar amicus briefs to block abortion bans in Texas and Oklahoma during the COVID-19 public health crisis. In addition to Arkansas, Oklahoma and Texas, the states of Alabama, Iowa, Louisiana, Mississippi, Ohio and Tennessee have all also implemented similar orders banning abortions during the pandemic, limiting their residents’ constitutional rights to access abortions.


Joining Attorney General Herring in filing the amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.