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The American Civil Liberties Union filed an emergency lawsuit Monday seeking to block a state order in Arkansas that would prevent the state’s sole clinic from performing abortions during the coronavirus outbreak. Arkansas is the sixth state to issue an order limiting abortion access due to the pandemic.
On April 3, Arkansas Gov. Asa Hutchinson issued a statewide directive that all nonvital medical procedures be postponed and that any medical providers who violated the order could be fined up to $500 and imprisoned for up to a month. The following week, Hutchinson announced that Arkansas’s only abortion clinic, Little Rock Family Planning Services, was under investigation for potentially violating his order.
On Friday, the clinic received a letter from the state’s Department of Health saying that abortions that were “not immediately necessary to protect the life or health of the patient” were elective surgeries and that the clinic was violating the state’s order by continuing to provide abortions.
The ACLU responded in the US District Court for the Eastern District of Arkansas, seeking “emergency relief” from the order, arguing that banning abortion is unconstitutional and that the state was unfairly targeting abortion providers while letting other medical professionals, like dentists, continue to operate.
Over the past few weeks, state governments in Texas, Ohio, Iowa, Alabama, and Oklahoma have all issued orders or interpretations of orders attempting to ban abortion during the coronavirus outbreak, arguing that the procedure is not medically necessary and that keeping clinics open is using up personal protective equipment and hospital beds that should be reserved for health care workers and people with COVID-19.
The ACLU, Planned Parenthood, and the Center for Reproductive Rights have filed lawsuits, either separately or together, in each of the six states, arguing in each that abortion is medically necessary, that the amount of protective equipment for medical staffers and hospital beds used in abortion procedures is negligible, and that these bans are exploiting the pandemic to push anti-abortion policies.
Federal judges have issued temporary restraining orders preventing the abortions bans from going into effect in Texas, Ohio, Oklahoma, and Alabama, though the states have all appealed these decisions and the cases are currently making their way through the courts. (The lawsuit in Iowa was dropped after the state clarified that its ban only applied to some procedures.)
After the 5th Circuit Court of Appeals decided to allow Texas’s ban to go into effect at the end of March, and a lower federal court issued another block of the law, the pro–abortion rights groups asked the Supreme Court to intervene and prevent Texas from banning the procedure.
As all these cases raged on in the court system, Arkansas decided to join in on the fray by sending a cease-and-desist letter to its only abortion clinic.
“Your facility is ordered to immediately cease and desist the performance of surgical abortions, except where immediately necessary to protect the life or health of the patient,” the letter, included in the ACLU’s complaint, read. “Any further violations of the April 3 Directive will result in an immediate suspension of your facilities license.”
In the suit, the ACLU pointed out that Arkansas does not have a stay-at-home order in place and has not closed nonessential businesses, arguing that the governor is specifically targeting abortion clinics.
“According to the Governor, many hospitals are ‘empty,’ and there is no shortage of the medical professionals on whom we all gratefully depend to fight COVID-19 on the frontlines,” ACLU’s complaint says, referring to an interview the governor gave with PBS on Wednesday defending his choice not to issue a lockdown for his state.
“Manufacturing and places of worship remain open, and medical providers around the State are free to exercise their independent professional judgment to provide patients with all surgical and dental care that they determine cannot be safely postponed,” the complaint continues.
The complaint includes a letter sent from the Arkansas Department of Health to the states’ dentists outlining the procedures allowed to take place during the ban on nonemergency surgeries. The procedures include filling cavities, some orthodontic care, treating cracked teeth, and “third-molar pain,” among other standard dentist procedures.
“Indeed, orthodontists in Arkansas remain free to schedule visits to adjust wires on patients’ braces, and dentists continue to see patients who complain of a cracked tooth,” the lawsuit states.
The ACLU requested a speedy response to their complaint, and a federal judge is likely to make a ruling in the coming days.
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