Little Rock Family Planning Services v. Rutledge

Opinion

Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 1 of 159

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

LITTLE ROCK FAMILY PLAINTIFFS PLANNING SERVICES, et al.,

v. Case No. 4:19-cv-00449-KGB

LESLIE RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas, et al., DEFENDANTS

TEMPORARY RESTRAINING ORDER

Before the Court is a motion for a temporary restraining order and/or preliminary injunction

filed by separate plaintiffs Little Rock Family Planning Services (“LRFP”) and Thomas Tvedten,

M.D., on behalf of himself and his patients. 1 Plaintiffs bring this action seeking declaratory and

injunctive relief on behalf of themselves and their patients under the United States Constitution

and 42 U.S.C. § 1983 to challenge three Acts passed by the Arkansas General Assembly: (1)

Arkansas Act 493 of 2019, which bans abortion “where the pregnancy is determined to be greater

than 18 weeks,” as measured from the first day of a woman’s last menstrual period (“LMP”) in

nearly all cases (“Act 493”); Arkansas Act 619, which prohibits a physician from intentionally

performing or attempting to perform an abortion “with the knowledge” that a pregnant woman is

seeking an abortion “solely on the basis” of: a test “indicating” Down syndrome; a prenatal

diagnosis of Down syndrome; or “[a]ny other reason to believe” the “unborn child” has Down

syndrome (“Act 619”); and (3) Arkansas Act 700 of 2019, which provides that “[a] person shall

not perform or induce an abortion unless that person is a physician licensed to practice medicine

in the state of Arkansas and is board-certified or board-eligible in obstetrics and gynecology.”

1 Not all named plaintiffs in this lawsuit join the motion for temporary restraining order and/or preliminary injunction (Dkt. Nos. 2, 32). Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 2 of 159

(“Act 700” or the “OBGYN requirement”). This Court has jurisdiction under 28 U.S.C. §§ 1331

and 1343(a)(3).

For the reasons set forth below, the Court grants plaintiffs’ motion for a temporary

restraining order and has under advisement the request for preliminary injunction (Dkt. No. 2).

The Court also denies the pending motions to strike filed by both parties (Dkt. Nos. 75, 76).

I. Procedural History

Plaintiffs filed their complaint and motion for a temporary restraining order and/or

preliminary injunction on June 26, 2019 (Dkt. Nos. 1, 2). The challenged Acts take effect on July

24, 2019. On July 1, 2019, defendants filed a motion to extend time for defendants to respond to

the complaint and motion for a temporary restraining order and/or preliminary injunction (Dkt.

No. 19). The Court set July 17, 2019, as the deadline for defendants to file their written response

and July 19, 2019, as plaintiffs’ deadline to file a written reply (Dkt. No. 31). The Court also set

the hearing on plaintiffs’ motion for temporary restraining order and/or preliminary injunction for

July 22, 2019 (Id.). The Court set the deadline for filing exhibits and witnesses lists in advance of

the hearing for July 18, 2019, and the deadline for the filing of rebuttal exhibits and witnesses in

advance of the hearing for July 19, 2019 (Id.).

In response to a motion for expedited prehearing discovery filed by defendants, the Court

instructed the parties to meet and confer regarding any outstanding discovery requests and to file

a joint status report on July 12, 2019 (Dkt. No. 34). On July 10, 2019, plaintiffs filed a

supplemental declaration, and in response defendants sought to strike the supplemental declaration

or to extend the time to respond to the motion for temporary restraining order and/or preliminary

injunction (Dkt. Nos. 37, 38). Plaintiffs opposed the motion to strike the supplement declaration

and the request to extend the time to respond to the motion (Dkt. No. 39). The Court denied the

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motion to strike or request for additional time to respond to the motion, observing in part that any

alleged prejudice would be limited and mitigated if the Court “treats plaintiffs’ motion as one for

temporary restraining order, then such an order—whether granted or denied—would expire 14

days from the date it is entered, and the Court may permit all parties to address further the merits

of this expedited matter prior to a hearing on plaintiffs’ request for a preliminary injunction.” (Dkt.

No. 41, at 2).

The parties timely filed their joint status report on July 12, 2019, and reported that they

required the Court to resolve three remaining discovery disputes (Dkt. No. 40). In that same status

report, the parties represented that certain information would be turned over contingent upon the

entry of a protective order that was still being negotiated by the parties. The Court then entered

an order denying without prejudice defendants’ motion for expedited prehearing discovery,

resolving only the three remaining discovery disputes the parties had been unable to resolve at this

stage of the proceeding (Dkt. No. 42).

On July 18, 2019, defendants filed a renewed motion for expedited prehearing discovery

(Dkt. No. 56). In that motion, defendants argued that, because plaintiffs insisted upon an

“unreasonably broad definition of ‘confidential information,’” the parties could not agree on the

terms of a protective order, and therefore defendants had not received agreed-upon discovery (Id.,

at 1). In response, plaintiffs pointed out that they sent a proposed protective order to defendants

on July 10, 2019, but defendants did not respond until July 15, 2019, with a counterproposal (Dkt.

No. 60, at 4). Plaintiffs responded on July 16, 2019, rejecting the counterproposal (Id.).

Defendants did not file a renewed motion until July 18, 2019, after filing a written response to the

motion for temporary restraining order and/or preliminary injunction. On July 19, 2019, the Court

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denied defendants’ renewed motion for expedited prehearing discovery and entered a protective

order (Dkt. Nos. 69, 70).

On Saturday, July 20, 2019, a day after the deadline for disclosing rebuttal exhibits and

witnesses had elapsed, defendants filed a new declaration that totaled 272 pages, with attachments;

plaintiffs also filed a supplemental rebuttal witness list (Dkt. Nos. 73, 74). Then, on Sunday, July

21, 2019, plaintiffs filed a motion to strike certain declarations introduced by defendants, including

the declaration filed on Saturday, July 20, 2019 (Dkt. No. 75). Also on Sunday, July 21, 2019,

defendants filed a motion to strike certain declarations introduced by plaintiffs and to strike

plaintiffs’ reply brief (Dkt. No. 76).

On July 22, 2019, the Court held a hearing on plaintiffs’ motion for temporary restraining

order and/or preliminary injunction at which the Court received testimony from certain witnesses

and additional documents were discussed and introduced. At the conclusion of the hearing,

plaintiffs objected to defendants’ request to introduce as a hearing exhibit in this matter the entire

record from Planned Parenthood Arkansas and Eastern Oklahoma v. Jegley, Case No. 4:15-cv-

00784-KGB, on the basis that defendants failed to refer to, or move to introduce, any specific

portions of that record in response to plaintiffs’ motion for temporary restraining order and/or

preliminary injunction here. Plaintiffs generally are correct. Defendants have not pointed to any

specific evidence in the Jegley record that they wish for the Court to consider. The Court is not

obligated to hunt through the record to find evidence that supports defendants’ positions. U.S. v.

Stuckey, 255 F.3d 528, 531 (8th Cir. 2001) (citing U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir.

1991)). Defendants are directed to cite the Court to specific portions of the Jegley record, if they

intend for the Court to consider those portions of the record in ruling on the current motion.

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In ruling on plaintiffs’ motion for temporary restraining order and/or preliminary

injunction, the Court has considered the record before it as of the conclusion of the July 22, 2019,

hearing. Given the voluminous number of last-minute filings, including filings the Court received

on July 23, 2019, regarding these issues, the Court concludes that defendants, despite being

represented at the hearing through their counsel, have not had a sufficient opportunity to challenge

the basis for plaintiffs’ requested relief. Therefore, the Court only considers the motion for

temporary restraining order at this time. McLeodUSA Telecomms. Servs. v. Qwest Corp., 361 F.

Supp. 2d 912, 918 n.1 (N.D. Iowa 2005).

Further, given the limited nature of a temporary restraining order, the Court declines to

strike the declarations filed by any party prior to the July 22, 2019, hearing and instead will give

them the weight to which they are entitled at this stage of the proceedings. See Wounded Knee

Legal Def./Offense Comm. v. Fed. Bureau of Investigation, 507 F.2d 1281, 1286-87 (8th Cir.

1974). For this reason, the Court denies the pending motions to strike (Dkt. Nos. 75, 76).

II. Findings Of Fact

The Court makes the following findings of fact. To the extent the findings of fact in this

Order contradict the findings of fact made in the Court’s prior Orders, the findings of fact in this

Order control. Further, the Court will address these and additional factual matters in the context

of its discussion of the legal issues; in that context, the Court also makes findings of fact. In

making the following findings of fact and conclusions of law, the Court has considered the record

as a whole. The Court has observed the demeanor of witnesses and has carefully weighed their

testimony and credibility in determining the facts of this case and drawing conclusions from those

facts. All findings of fact contained herein that are more appropriately considered conclusions of

law are to be so deemed. Likewise, any conclusions of law more appropriately considered a

5 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 6 of 159

finding of fact shall be so classified. The Court has considered and weighed all the evidence

presented in the record at this stage; the Court has resolved any disputes consistent with the

statements in this Order.

1. Charlie Browne, M.D., a board-certified obstetrician-gynecologist (“OBGYN”)

offers an affidavit in support of plaintiffs’ motion (Dkt. No. 2, at 24-28; Decl. of Charlie Browne,

M.D., ¶ 1). Dr. Browne is a Clinical Assistant Professor at the University of Washington Medical

Center, Department of Obstetrics and Gynecology in Seattle, Washington, and Clinical Faculty at

Pacific Northwest University College of Osteopathic Medicine in Yakima, Washington (Id.). He

is also the Medical Director of All Women’s Care in Seattle Washington, the Medical Director of

All Women’s Health in Tacoma, Washington, and the Director of Second-Trimester Services of

Planned Parenthood of Greater Washington & Northern Idaho (Id.). In these positions, Dr. Browne

provides abortion care and other gynecological services (Id.).

2. Dr. Browne avers that, based upon his experience and training, a medical provider

does not need to be a board-certified or board-eligible OBGYN to have the education, training,

and skills necessary to provide safely and competently abortion care (Decl. of Charlie Browne,

M.D., ¶ 6). In his experience, there is no difference in the abilities, qualifications, or skills of non-

OGBYN practitioners and OBGYNs who have received the necessary training to provide abortion

care (Id.).

3. Dr. Browne further avers that being a board-eligible or board-certified OBGYN

does not make an abortion provider any more equipped to handle the “rare complications that may

arise from an abortion.” (Id., ¶ 7). Dr. Browne explains that “in the rare event of a serious

complication, the patient would need to be transferred to a hospital for emergency care, regardless

of whether the physician providing abortion care is a board-certified OGBYN (Id.). In his

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experience, serious complications arising from either medication or surgical abortions are rare

(Decl. of Charlie Browne, M.D., ¶ 7).

4. From August 2010 to December 2010, Dr. Browne provided abortion care for

LRFP approximately once every four to six weeks for two to three days at a time (Id., ¶ 8).

Between 2011 and July 2012, he also provided abortion care at LRFP approximately two to three

weeks per year (Id.). After 2012, Dr. Browne had to stop providing abortion care at LRFP since

it takes him approximately six to seven hours to travel to LRFP from his home and because the

time away from his home was disruptive professionally (Id., ¶¶ 9-10).

5. Dr. Browne also avers that providing abortion care at LRFP was difficult and

stressful due to harassment he experienced while working at the clinic (Decl. of Charlie Browne,

M.D., ¶ 11). Every time Dr. Browne travelled to LRFP, he encountered protestors attempting to

block the entrance to LRFP’s parking lot (Id.). He also states that the harassment and stigma he

experienced in Arkansas was “far more prevalent and aggressive than any [he had] experienced as

an abortion provider elsewhere.” (Id., ¶ 12). For these reasons, Dr. Browne has not returned to

LRFP for the past seven years (Id., ¶ 13).

6. Dr. Browne states that LRFP staff reached out to him in March 2019 to see if he

would be willing to provide abortion care at LRFP when the OBGYN requirement is set to take

effect (Decl. of Charlie Browne, M.D., ¶ 14). Dr. Browne has agreed to do so but only for two to

three days in July 2019 (Id.). He cannot commit to providing care after that time given his

professional and personal obligations in Seattle, Washington (Id.).

7. Janet Cathey, M.D., a board-certified OBGYN licensed to practice medicine in

Arkansas and Oklahoma, has presented her declaration in support of plaintiffs’ motion (Dkt. No.

2, at 36-41, Decl. of Janet Cathey, M.D.)). Dr. Cathey avers that she provides medical services,

7 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 8 of 159

including medication abortion, at Planned Parenthood of Arkansas and Eastern Oklahoma’s

(“PPAEO”) health center in Little Rock, Arkansas (Id., ¶ 1).

8. In early 2018, Dr. Cathey was asked by PPAEO to provide reproductive health care

services at PPAEO’s health center in Little Rock (“PPAEO Little Rock”), and in May 2018, she

began working at the health center in Little Rock (Id., ¶ 3).

9. At LRFP’s Little Rock health center, Dr. Cathey provides family planning services,

transgender care, and medication abortions (Id., ¶ 4). She also has administrative responsibilities,

including overseeing clinical staff, teaching medical students, and acting as director of Planned

Parenthood Great Plains’ transgender care program (Decl. of Janet Cathey, M.D., ¶ 4). Since she

started in this position through April 30, 2019, she has provided 229 medication abortions (Id., ¶

5).

10. Dr. Cathey is one of only two physicians providing medication abortion at

PPAEO’s Little Rock health center (Id., ¶ 6). The other physician, Dudley Rodgers, M.D., is a

board-certified OBGYN who provides only medication abortion approximately one day per week

(Id.). Dr. Rodgers is semi-retired and does not provide medical care anywhere else, due in part to

health issues that prevent him from providing patient care for long hours or multiple days a week

(Id.).

11. Dr. Cathey currently provides medical care at PPAEO’s Little Rock health center

three days per week for approximately eight to ten hours a day (Decl. of Janet Cathey, M.D., ¶ 7).

She also works as a medical consultant for Social Security disability reviews and completes

PPAEO administrative responsibilities two other days of the week (Id.). Dr. Cathey’s

administrative responsibilities include providing non-clinical services to her transgender patients,

mentoring medical students regarding abortion care, transgender care, and other medical care,

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including gynecological procedures (Id.). Dr. Cathey also avers that she expects her non-clinical

responsibilities to increase (Id.).

12. Dr. Cathey avers that, during the three days that she provides patient care, her

schedule is at capacity (Decl. of Janet Cathey, M.D., ¶ 8). Due to patient demand, Dr. Cathey is

planning to add another half day a week to provide patient care, including care to patients seeking

medication abortions, transgender care, and family planning (Id.). She states that providing care

three and a half days per week “is the absolute maximum amount of time” she can devote to patient

13. Dr. Cathey also notes that she cannot take on additional hours to provide medical

care because of physical limitations resulting from a spinal cord injury she sustained in a 2009 car

accident (Id., ¶ 9). Because of her injuries, she originally stopped providing patient care, and

though she now practices medicine, she continues to have physical restrictions (Decl. of Janet

Cathey, M.D., ¶ 9).

14. Dr. Cathey also avers that she sees a significant number of transgender and family

planning patients and that she is the only physician at PPAEO’s Little Rock health center who

provides care for these patients (Id., ¶ 10). It is Dr. Cathey’s understanding that the only other

health center in Arkansas who maintains a dedicated transgender care program is the University

of Arkansas for Medical Sciences (“UAMS”) clinic, which provides transgender care “only one

half day per week.” (Id.).

15. In sum, due to her other personal and professional responsibilities, Dr. Cathey

cannot see any more medication abortion patients other than those she is able to see in three and a

half days per week (Id., ¶ 11).

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16. Dr. Cathey also avers that, based upon her experience, she does not believe that

requiring all abortion providers to be board-certified or board-eligible OBGYNs provides “any

benefit whatsoever to patients.” (Decl. of Janet Cathey, M.D., ¶ 12). She notes that clinicians from

a range of specialties, including family medicine, can become trained to provide abortion care

(Id.). She maintains that there is nothing about being a board-certified or board-eligible OBGYN

that makes a physician better, safer, or more effective at providing abortion care (Id.).

17. Dr. Cathey states that many family medicine physicians and other clinicians

undergo training to provide safely abortion care (Id., ¶ 13). She further states that family medicine

medical students are “just as skilled and qualified to provide abortion care as the OBGYN

students.” (Decl. of Janet Cathey, M.D., ¶ 14).

18. Dr. Cathey states that “restricting the number of clinicians who can provide

abortion in the state to only board-certified or board-eligible OBGYNs will actually harm patients,

as it can force patients to unnecessarily delay their access to care or prevent them from obtaining

an abortion altogether.” (Id., ¶ 15 (emphasis in original)). She notes that, between the years of

2016 and 2018, 48% of the medication abortion patients seen at PPAEO’s Little Rock health center

had incomes at or below 110% of the federal poverty level (Id.).

19. Dr. Cathey notes that there are already very few abortion providers in Arkansas,

which she attributes to “the intense stigma and harassment that abortion providers face here.” (Id.,

¶ 16). When her children were younger and in school, Dr. Cathey did not want to provide abortions

because she feared the harassment that her children would likely face (Id.).

20. Lori Freedman, Ph.D., an associate professor in the Department of Obstetrics,

Gynecology and Reproductive Sciences at the University of California, San Francisco, offers her

declaration in support of plaintiffs’ motion (Dkt. No. 2, at 47-57, Decl. of Lori Freedman, Ph.D.).

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Dr. Freedman’s work focuses on qualitative health research, clinician training and practice,

medical ethics in reproductive health, and health care practices of religiously affiliated institutions

(Id., ¶ 3). She has studied barriers to the provision of abortion care (Id.). In particular, she has

researched “why doctors with abortion training do not integrate abortion care into their practice

post-residency.” (Id.).

21. In her opinion, in addition to violence and harassment, the intense stigmatization of

abortion providers makes it difficult, if not impossible in certain areas, to find and retain abortion

providers (Decl. of Lori Freedman, Ph.D., ¶ 4).

22. Dr. Freedman explains that “no-abortion” policies in private practice groups,

hospital maintenance organization (“HMOs”), and hospitals often prevent physicians from

providing abortions (Id., ¶ 11). She also states that physicians are often asked to sign contracts

stating that they will not provide abortions at the offices of their practice and that they will not

provide abortions offsite (Id.).

23. Of five doctors who had been asked to be medical directors at an abortion clinic,

four of them told Dr. Freedman that they had declined because their own group practices would

not permit it (Id.). Additionally, Dr. Freedman states that, in her research, she has encountered

situations where senior physicians threatened to ostracize younger physicians who performed

abortions (Decl. of Lori Freedman, Ph.D., ¶ 12). She also states that physicians interviewing for

post-residency positions have told her that they fear broaching the subject of abortion with

potential employers (Id.).

24. Dr. Freedman also avers that physicians who provide abortions frequently lose

referrals from medical providers who oppose abortion, thereby placing their practices in jeopardy

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(Id., ¶ 13). Additionally, Dr. Freedman notes that doctors may decline to provide abortions

because they worry about losing existing patients who are opposed to abortion (Id.).

25. Furthermore, Dr. Freedman points out that physicians who wish to perform

abortions often must choose whether to maintain a general obstetrics and gynecology practice or

provide abortions, but not both (Decl. of Lori Freedman, Ph.D., ¶ 14).

26. Dr. Freedman also notes that abortion providers are routinely ostracized in their

communities through acts such as being denied membership to social organizations and the

bullying of their children at school (Id., ¶ 15). She also states that physicians cite the effects of

picketing by protestors as a reason not to provide abortions (Id.).

27. Dr. Freedman states that violence against abortion providers is an ongoing concern

and that, as recently as 2015, there were three murders and nine attempted murders of abortion

clinic staff in the United States (Id., ¶ 18). She states that the threat of violence “significantly

deters many physicians from providing abortion and increases physicians’ reluctance to associate

themselves with abortion clinics and providers in any way.” (Decl. of Lori Freedman, Ph.D., ¶ 19).

28. Dr. Freedman states that Arkansas “fits the profile of a state hostile to the provision

of abortion care where abortion providers are likely to experience the highest levels of stigma and

harassment.” (Id., ¶ 20).

29. Dr. Freedman also states that further evidence she has reviewed indicates that

abortion providers in Arkansas experience extreme levels of harassment and effects of stigma,

including being forced by their partners to choose between private practice and continuing to

provide abortion care, being subjected to picketing and harassment, and being unable to attract

qualified OBGYNs or other providers to work at their clinics (Id., ¶ 21).

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30. Dr. Freedman testified that abortion providers are less likely to be able to resist the

effects of stigma and harassment in Arkansas cities that lack a professional community that

normalizes abortion care (Id., ¶ 23).

31. Stephanie Ho, M.D., a board-certified family medicine physician, offers her

declaration in support of plaintiffs’ motion (Dkt. No. 2, at 89-103; Decl. of Stephanie A. Ho,

M.D.)).

32. Dr. Ho states that she cannot become a board-certified or board-eligible OBGYN

because she did not complete a residency in obstetrics and gynecology and that she cannot do so

now due to the time and resources necessary to conduct a residency at this stage of her career (Id.,

¶ 7).

33. Dr. Ho further states that surgical abortions cannot be performed at PPAEO’s

Fayetteville health center (“PPAEO Fayetteville”) because it does not meet the state’s requirement

governing facilities where surgical abortions are performed (Id., ¶ 10).

34. Dr. Ho explains that Arkansas law requires women who seek abortion care to come

to the health center to receive certain state-mandated information in person from a physician and

then to wait at least 48 hours before having an abortion (Id., ¶ 14).

35. Dr. Ho. further explains that a patient seeking medication abortion services must

therefore come to the health center for one appointment, and at least 48 hours later, she must return

to take a mifepristone pill and be given four misoprostol pills to administer at home (Decl. of

Stephanie A. Ho, M.D., ¶ 15). The patient must also make a follow-up appointment for

approximately two weeks later (Id.).

36. Dr. Ho further states that medication abortion is extremely safe and that 97.4% of

medication abortion cases are successful under the regimen just described (Id., ¶ 16).

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37. Dr. Ho notes that a woman who takes mifepristone at a PPAEO health center has

access to a 24-hour hotline number that she can call with any questions or concerns and that

patients are provided with the name and number of a contracted OBGYN physician who has agreed

to serve as the collaborative medical doctor to PPAEO abortion providers in Fayetteville and Little

Rock (Id., ¶ 17).

38. Dr. Ho states that most patients who call the hotline “simply need reassurance that

their symptoms (like bleeding and cramping) are normal and will subside.” (Decl. of Stephanie A.

Ho, M.D., ¶ 18). In the “exceedingly rare case” that the nurse or physician on the hotline believes

that immediate medical treatment is necessary, the patient is referred to the nearest emergency

room, one of PPAEO’s physicians is notified, and health center staff follow up with the patient

within 24 hours (Id.).

39. Dr. Ho notes that, during the course of her medical career, she has performed

procedures that are much more complicated and have higher complication rates than medication

abortion, including: induced and managed labor, delivery of babies, and tubal ligations (Id., ¶ 20).

40. Dr. Ho further states that PPAEO drafted a job opening for a board-certified or

board-eligible OBGYN to provide abortion care at the Fayetteville health center (Id., ¶ 23). This

posting was listed on social media, and a letter was sent to all identified OBGYNs in Arkansas

(Decl. of Stephanie A. Ho, M.D., ¶ 24).

41. PPAEO also took out an ad in the Journal of the Arkansas Medical Society seeking

a board-certified or board-eligible OBGYN (Id., ¶ 25). PPAEO staff personally contacted

physicians to see if they would provide abortion services (Id.).

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42. In May 2019, Kathleen Paulson, M.D., a board-certified OBGYN, contacted

PPAEO to state that she would be willing to provide medication abortion at the Fayetteville health

center on a volunteer basis if the OBGYN requirement were to go into effect (Id., ¶ 26).

43. To date, no other OBGYNS have responded to PPAEO’s efforts to locate a board-

certified or board-eligible OBGYN willing to provide medication abortion at PPAEO’s health

centers (Decl. of Stephanie A. Ho, M.D., ¶ 29).

44. Dr. Ho states that she has experienced stigma as an abortion provider in Arkansas,

including being informed by a potential employer that the potential employer was not interested

in being associated with an abortion provider (Id.).

45. Dr. Ho states that, from 2016 to 2018, 61% of the medication abortion patients in

Fayetteville had incomes at or below 110% of the federal poverty level (Id., ¶ 35).

46. Frederick W. Hopkins, M.D., M.P.H., a board-certified OBGYN, offers his

declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 119-136; Decl. of Frederick W.

Hopkins, M.D., M.P.H.).

47. Dr. Hopkins points out that, during his OBGYN residency, he did not receive any

formal training in abortion care and that “[a]bortion care is not a requirement to complete an

OBGYN residency, and most OBGYN residencies did not provide that training.” (Id., ¶ 13).

48. Dr. Hopkins states that “[l]egal abortion is one of the safest medical procedures in

the United States” and that “approximately 1 in 4 women in the U.S. obtains an abortion by the

age of 45.” (Id., ¶ 21). Dr. Hopkins further explains that a “majority of women having abortions

in the United States already have one child.” (Id.).

49. Dr. Hopkins further states that there are two types of abortions in the United States:

medication abortion and surgical abortion (Id., ¶ 23).

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50. Dr. Hopkins also states that, regardless of the method of abortion, “serious

complications are extremely rare, occurring in less than 0.5% of all cases.” (Decl. of Frederick W.

Hopkins, M.D., M.P.H., ¶ 26). The types of complications that may occur following an abortion

include infection, prolonged heavy bleeding, uterine perforation, cervical laceration, and retained

tissue (Id., ¶ 27). Dr. Hopkins states that in the “vast majority of cases” such complications can

be handled in an outpatient office setting (Id.).

51. Dr. Hopkins also explains that a woman’s risk of pregnancy-related death is

estimated to be 8.8 per 100,000 live births, whereas less than one woman dies for every 100,000

abortion procedures (Id., ¶ 28).

52. Additionally, according to Dr. Hopkins, abortion-related mortality is significantly

lower than mortality for other common outpatient procedures, including colonoscopies, plastic

surgery, dental procedures, or adult tonsillectomies (Decl. of Frederick W. Hopkins, M.D., M.P.H.,

¶ 28).

53. Dr. Hopkins asserts that “no fetus is viable at 18 weeks LMP.” (Id., ¶ 29). Instead,

he notes that “[i]t is commonly accepted in the field of OBGYN that a normally developing fetus

will not attain viability until at least 24 weeks LMP,” and he also explains that not all fetuses attain

viability even at that stage (Id.).

54. Dr. Hopkins states that patients can delay abortions for several reasons, including

because they do not realize that they are pregnant until later in their pregnancy, difficulty in

obtaining funds for the abortion and related expenses, and Arkansas’ mandated waiting period (Id.,

¶¶ 30-31).

55. Additionally, Dr. Hopkins explains that some patients seek abortions at or after 18

weeks LMP because they discover a fetal anomaly, some of which cannot be tested for until 18 to

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20 weeks LMP (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 32). In other circumstances, the

results from prenatal tests performed at 18 to 20 weeks LMP are inconclusive and require referrals

to other medical professionals and additional testing, all of which can lead to further delay (Id.).

Finally, some women seek abortions at or after 18 weeks LMP because they have a medical

condition that does not become apparent until that time or an existing medical condition that

worsens during the course of pregnancy (Id., ¶ 33).

56. Dr. Hopkins further states that, if Act 493 takes effect, he will be forced to stop

providing safe and effective pre-viability abortion care that his patients want and need (Id., ¶ 34).

He further states that, as a result of Act 493 taking effect, some of his patients will be forced to

delay their abortion care, at risk to their health, while they attempt to obtain an abortion out of state

(Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 34). He also states that others will be prevented

from obtaining an abortion altogether and be forced to carry their pregnancies to term against their

will, at the expense of their health (Id.).

57. Dr. Hopkins states that, if the OBGYN requirement goes into effect, Dr. Tvedten,

Dr. Horton, and Dr. Ho will be unable to provide abortions (Id., ¶ 35).

58. In Dr. Hopkins’ experience training non-OBGYNs to provide abortions, “there is

no difference in the abilities or skills between non-OBGYN practitioners and OBGYNs who have

received the necessary training.” (Id., ¶ 36). Dr. Hopkins points out that the OBGYN requirement

would allow a physician with no training in abortion to perform abortions while preventing other

qualified clinicians with actual training and competency in abortion from providing such care

(Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 36).

59. Dr. Hopkins further states that it is not necessary to be an OBGYN, much less a

board-certified or board-eligible OBGYN, to be a competent abortion provider (Id., ¶ 37).

17 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 18 of 159

According to Dr. Hopkins, the American College of Obstetricians and Gynecologists (“ACOG”),

a “highly regarded, reliable, and extensively cited authority in my field,” recommends expanding

the trained pool of non-OBGYN abortion providers, including family physicians and advanced

practice physicians (Id.). Dr. Hopkins also notes that board-eligibility and board-certification are

not required to practice medicine, and he also notes that “[a]t no point in the OBGYN board-

eligibility or board-certification process must a physician demonstrate competence in the

performance of abortions.” (Id., ¶ 35 n.13). Dr. Hopkins also states that studies recognize that

non-OBGYNs are just as qualified and skilled in abortion care as OBGYNs (Decl. of Frederick

W. Hopkins, M.D., M.P.H., ¶ 37).

60. Dr. Hopkins states that “[a]ny clinician with adequate training in abortion care can

safely and effectively handle” the most common abortion complications, even though such

complications are rare (Id., ¶ 38).

61. In the event a significant complication does arise from an abortion, Dr. Hopkins

states that an abortion provider would transfer or direct the patient to the nearest hospital to receive

the required care (Id., ¶ 39). If the complication is retained tissue following a medication abortion,

Dr. Hopkins states that ACOG Practice Bulletin 143 states that the abortion provider should be

trained in surgical abortion “or should be able to refer to a clinician trained in surgical abortion.”

62. Dr. Hopkins travels to Arkansas to provide care at LRFP only approximately once

every two months (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 42). When he comes to

Arkansas, he does so for “three to four days every other month.” (Id., ¶ 44). Since Dr. Hopkins

lives in California, each visit to Arkansas requires a day to arrive and to return, so his total duration

away from California is five to six days for each visit (Id.).

18 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 19 of 159

63. Due to Arkansas’ 48-hour mandated delay for abortion patients, LRFP treats

patients only on Wednesdays, Fridays, and Saturdays, so Dr. Hopkins does not see patients for the

entire time he in in Arkansas (Id., ¶ 45). Typically, patients will come in one day for the mandated

counseling and two days later for the abortion (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶

45).

64. If the 48-hour waiting period is extended to 72-hours, then Dr. Hopkins will attempt

to remain in Arkansas for a full five days, versus his regular three to four days (Id., ¶ 47). But,

due to his professional obligations in California, he cannot visit Arkansas more frequently than he

currently does (Id.). This is because he holds several clinical and teaching positions in California

(Id., ¶ 48). He is unable to give up his current positions and relationships with patients who rely

upon him in California (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 49).

65. Additionally, Dr. Hopkins will not relocate to Arkansas because his ability to earn

a living in Arkansas would be “extremely uncertain.” (Id., ¶ 50). He predicts that, if he moved to

Arkansas, then the Arkansas legislature would pass a new law designed to prevent him from

providing abortion care (Id.).

66. Dr. Hopkins also notes that there are usually protestors outside of LRFP (Id., ¶ 51).

He is personally familiar with other abortion providers who have been murdered and attacked

(Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 51). These dangers are “constantly” on Dr.

Hopkins’ mind when he travels to Arkansas, and this is another reason he cannot move to Arkansas

to provide full-time care at LRFP (Id.).

67. Thomas Russell Horton, Jr., M.D., a staff physician at LRFP, offers his declaration

in support of plaintiffs’ motion (Dkt. No. 2-1, at 145-155; Decl. of Thomas Russell Horton, Jr.,

M.D.).

19 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 20 of 159

68. Dr. Horton completed his residency in obstetrics and gynecology, but he is not

board-eligible or board-certified in obstetrics and gynecology (Id., ¶ 5). Dr. Horton will not be

able to provide abortion care if the OBGYN requirement goes into effect (Id.).

69. Dr. Horton began working as a staff physician with LRFP in February 2010 (Id., ¶

11). Previously, Dr. Horton had provided abortion care in Tennessee up to approximately 15

weeks LMP, so he received training from Dr. Tvedten for performing surgical abortions up to 21.6

weeks LMP (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 11).

70. As a staff physician for LRFP, Dr. Horton works “one day per week and primarily

perform[s] one-day surgical procedures, up to 18 weeks LMP.” (Id., ¶ 12). He also performs multi-

day procedures up to 21.6 weeks LMP when he works two or more days per week (Id.).

71. Dr. Horton has performed thousands of abortions at LRFP “with a very low rate of

complications.” (Id., ¶ 13).

72. Dr. Horton states that becoming a board-certified OBGYN would not make him

any more qualified to perform or to handle appropriately the rare complications that may arise

following an abortion (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 18). According to Dr. Horton,

“training and competence in abortion procedures is not a requirement for either board certification

or board eligibility in OBGYN.” (Id.). He also notes that abortion care is not a requirement for

completing an OBGYN residency and that many OBGYNs never receive any training for

73. Dr. Horton further explains that, to become a board-eligible or board-certified

OBGYN, a physician must first complete his or her residency in obstetrics and gynecology and

then pass a written examination known as the American Board of Obstetrics and Gynecology

(“ABOG”) Qualifying Examination (Id., ¶ 19).

20 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 21 of 159

74. After a physician becomes board-eligible, the physician has eight years from the

date of completing his or her residency to become board-certified (Decl. of Thomas Russell

Horton, Jr., M.D., ¶ 20). If the physician does not become board-certified within those eight years,

the physician loses his or her board-eligible status and must complete, at a minimum, an additional

six months of supervised practice and assessment in a hospital associated with an accredited

OBGYN residency program before he or she may become eligible for certification again (Id.).

75. Further, to become an ABOG board-certified OBGYN, a physician must: (1) be

board-eligible; (2) satisfy certain prerequisites to becoming a candidate for certification, which

includes preparing a comprehensive case list and obtaining unrestricted hospital privileges; and

(3) sit for and pass another oral examination (Id., ¶ 21).

76. Dr. Horton completed his residency in OBGYN and passed the written examination

for ABOG in June 2002 and June 2013, but he never obtained the necessary case list that is required

to be a candidate for board certification (Id., ¶ 22). Dr. Horton states that being a board-certified

OBGYN is not relevant or necessary to the provision of abortion care, and he also notes that

completing the prerequisites for board-certification would have required him to take significant

time away from providing care to his patients (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 22).

77. Since Dr. Horton did not become board-certified within eight years of completing

his residency, he is no longer board-eligible; to retain his board eligibility, he would have to

complete a minimum of six months of supervised training (Id., ¶ 23). Dr. Horton states that this

is not a feasible option for him because he cannot leave his practice for the required six months to

complete the training (Id.). He notes that the required training would provide no medical benefits

to his patients (Id.).

21 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 22 of 159

78. Dr. Horton states that, if the OBGYN requirement goes into effect, he will no longer

be able to provide abortion care in Arkansas since he is not and cannot become either a board-

eligible or board-certified OBGYN (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 24).

79. Dr. Horton also states that he “regularly” experiences harassment due to his work

as an abortion provider (Id., ¶ 26). He notes that every day he has worked at LRFP “there have

been protestors and picketers attempting to block the entrance to the parking lot.” (Id.). He further

notes that the “protestors often shout at me upon arrival and say things such as: ‘Don’t kill those

babies, Dr. Horton.’” (Id.).

80. On June 10, 2009, Dr. Horton was the subject of a bomb threat at the Memphis

Center for Reproductive Health (“MCRH”) in Memphis, Tennessee (Decl. of Thomas Russell

Horton, Jr., M.D., ¶ 27). An individual called MCRH and informed the clinic staff that there was

a bomb in Dr. Horton’s car (Id.). The clinic staff were forced to evacuate the clinic (Id.).

81. Dr. Horton’s ability to maintain or find a job in private practice have been directly

affected by his work as an abortion provider (Id., ¶ 28). Around 2004 and 2005 in Memphis, Dr.

Horton applied to several jobs as a generalist in private practice, but he did not receive any job

offers and was not able to find other work due to his work as an abortion provider (Decl. of Thomas

Russell Horton, Jr., M.D., ¶ 28). In 2005, Dr. Horton was in the final round of interviews for a

position in private practice in Richmond, Virginia, when he asked the prospective employer if he

would be allowed to continue providing abortion care in Memphis while working in private

practice; he did not receive a job offer and never heard from that prospective employer again (Id.).

In 2005, while working at the Baptist Memorial Hospital-Crittenden in Arkansas, he was

approached by one of the labor-and-delivery nurses at the hospital regarding abortion care (Id.).

Afterward, he was informed that his services were no longer needed at that hospital (Id.). He later

22 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 23 of 159

found out that a different OBGYN resident filled the position Dr. Horton had occupied at that

hospital (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 28).

82. Many of Dr. Horton’s patients at LRFP are low-income and have a difficult time

paying for an abortion (Id., ¶ 30). His patients may have to borrow money from a friend or a

family member for the abortion or to rent a car or pay for a hotel in Little Rock (Id.). His patients

often delay their care while they raise the necessary funds and make logistical arrangements (Id.).

83. Patients who are poor or low-income usually have jobs in which they do not get

vacation or sick time, and it is difficult for such patients to take even a half day off work to be seen

at LRFP (Id., ¶ 31). Dr. Horton states that, if such patients must take significant time off to travel

out of state for a surgical abortion, they may lose their jobs (Decl. of Thomas Russell Horton, Jr.,

M.D., ¶ 31). Additionally, patients often have difficulty obtaining child care; Dr. Horton states

that on several occasions, patients have brought young children with them to their appointments

at LRFP (Id., ¶ 32). He also states that, for women who do not want to or cannot bring their

children with them to their appointments, finding child care for a whole day or more to travel out

of state would be extremely difficult, if not impossible (Id.).

84. Dr. Horton states that, if the OBGYN requirement goes into effect, then those

patients who cannot obtain sufficient funds to travel out of state will be forced to either attempt to

self-induce an abortion or carry their pregnancies to term against their will (Id., ¶ 33).

85. Sheila M. Katz, Ph.D., offers her declaration in support of plaintiffs’ motion (Dkt.

No. 2-1, at 162-189; Decl. of Sheila M. Katz, Ph.D.). Dr. Katz is an assistant professor of

sociology at the University of Houston, in Houston, Texas (Id., ¶ 9). Her research has included

qualitative methods and data analysis regarding women’s experiences of poverty, and her expertise

23 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 24 of 159

includes the consequences and social policy determinants of women’s poverty nationwide, as well

as regional and geographical similarities and differences across the United States (Id.).

86. The United States Department of Health and Human Services defines the federal

poverty guideline as an income of under $12,490.00 per year for a single person, with $4,420.00

added per year for each additional member of the household (Id., ¶ 12).

87. According to 2017 Census Bureau data, Arkansas is the fifth poorest state in the

United States, and its official poverty rate was 18.1% statewide (Decl. of Sheila M. Katz, Ph.D., ¶

14). The poverty rate for women in Arkansas is even higher, at 19.5% (Id.).

88. The federal poverty guideline, while widely used, is considered by some to be an

inadequate measure of poverty in the United States (Id., ¶ 17). Thus, in addition to those who fall

below the federal poverty line, most poverty researchers consider individuals and family between

100% and 200% of the federal poverty line to be “low-income.” (Id., ¶ 18).

89. In Arkansas, 46.8% of families headed by single mothers with dependent children

are living at or below 125% of the federal poverty line, and 37.5% are living at less than 100% of

the federal poverty line (Decl. of Sheila M. Katz, Ph.D., ¶ 19).

90. Further, many poor individuals are part of the “working poor,” which Dr. Katz

defines as those working at minimum wage or earning so little that they cannot meet basic needs

for themselves or their family (Id., ¶ 20). The Bureau of Labor Statistics defines the “working

poor [as] people who spent at least 27 weeks in the labor force . . . but whose incomes still fell

below the official poverty level.” (Id.).

91. According to Dr. Katz, a woman working full-time (40 hours a week) earning

minimum wage in Arkansas now has annual earnings of approximately $19,240.00, which is just

24 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 25 of 159

above the federal poverty threshold if she has one child in her household and below the poverty

line if she has more children (Id., ¶ 21).

92. Dr. Katz states that the fair market rent, as designated by the United States

Department of Housing and Urban Development, is $702.00 for a one-bedroom apartment and

$831.00 for a two-bedroom apartment in Little Rock, Arkansas (Decl. of Sheila M. Katz, Ph.D., ¶

22). If a woman in Little Rock has a full-time job earning the minimum wage, she would pay

approximately 44% of her monthly income for a one-bedroom apartment and approximately 52%

of her monthly income for a two-bedroom apartment (Id.).

93. In Arkansas, 17.6% of families headed by single mothers are living in “deep

poverty,” which Dr. Katz characterizes as a household that lives at or below 50% of the federal

poverty line (Id., ¶ 24).

94. In addition, 17 counties in Arkansas suffer from “persistent poverty,” which Dr.

Katz defines as a county where the poverty rate has been at or above 20% for the past 30 years

(Id., ¶ 25).

95. Dr. Katz explains that Arkansas women living in deep or persistent poverty face

the greatest logistical, financial, and psychological hurdles to accessing health care services since

they are the least likely to have adequate transportation, childcare, and financial resources and

support (Decl. of Sheila M. Katz, Ph.D., ¶ 26).

96. Over two-thirds of women who obtain abortions in Arkansas already have at least

one child (Id., ¶ 27).

97. Dr. Katz states that it is her understanding that women in and around Little Rock

who can now obtain both medication and surgical abortion through 21.6 weeks LMP at LRFP may

be forced to travel out of state to obtain that care from the next closest provider (Id., ¶ 28). She

25 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 26 of 159

states that the next-closest abortion provider is in Memphis, Tennessee, which is an approximately

300-mile round trip journey from Little Rock (Id.). Dr. Katz also states that such a journey would

have to be made twice, as Tennessee requires “multiple, in person visits to the abortion clinic

separated by at least 48 hours before a woman can obtain an abortion (Decl. of Sheila M. Katz,

Ph.D., ¶ 28).

98. Dr. Katz is familiar with the research analyzing the effect of increased travel on

women’s ability to obtain abortions, and she states that this research shows that increasing the

distance that women must travel to access abortion services presents significant logistical and

financial hurdles (Id., ¶ 30).

99. Dr. Katz states that for those women who do not own or have access to vehicles,

the only significant intercity transportation between Little Rock and Memphis—other than

flying—is a private bus service, such as Greyhound (Id., ¶ 34). A single round-trip Greyhound

bus ticket between Little Rock and Memphis costs between $24.00 and $85.00 (Id.). If a woman

must bring someone to accompany her in the event a sedative is used, this cost doubles (Decl. of

Sheila M. Katz, Ph.D., ¶ 34). Further, a woman travelling by private bus may have to pay for the

cost of taxi or bus fares to and from the private bus station in both Little Rock and Memphis (Id.).

Moreover, given Tennessee’s 48-hour waiting requirement, either two bus trips would be required,

or the woman would have to pay for two nights hotel accommodations in Memphis, which Dr.

Katz says cost anywhere from $50.00 to $75.00 per night (Id.).

100. Dr. Katz also points out that many poor and low-income women in Arkansas “likely

do not own or have access to cars that are reliable enough to make a trip of the length required.”

(Id., ¶ 36). Dr. Katz notes that, even if a low-income woman owns a car, it may be shared among

adults, and it may not be reliable enough for intercity trips (Decl. of Sheila M. Katz, Ph.D., ¶ 36).

26 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 27 of 159

Dr. Katz also points out that the cost of gas for round-trip car travel from Little Rock to Memphis

is approximately $23.00 (Id., ¶ 37).

101. Dr. Katz explains that low-wage workers often have no access to paid time off or

sick days and that seeking uncompensated time off can be a struggle for low-wage workers who

often have less autonomy in setting their work schedules (Id., ¶ 39). Further, low-wage workers

often work unpredictable, varied, or evening jobs (Id.). Dr. Katz states that the additional time off

required by travel may make it difficult for a poor or low-income woman to keep her abortion

confidential from her supervisor or other employees (Decl. of Sheila M. Katz, Ph.D., ¶ 39).

102. Also, Dr. Katz points out that intercity travel for an abortion requires a woman to

miss work (Id., ¶ 40). In the event a woman can get time off, she is likely to forego wages in

addition to paying for transportation and lodging (Id.). At the minimum wage in Arkansas of

$9.25, foregoing two eight-hour shifts to travel to and attend abortion counseling and procedure

appointments would result in $148.00 in lost wages, which is almost 10% of a woman’s monthly

income if she works a full-time minimum wage job (Id.). These lost wages are on top of the cost

of the abortion and other logistical costs (Decl. of Sheila M. Katz, Ph.D., ¶ 40).

103. Dr. Katz points out that, for those women seeking an abortion who already have a

child, they must either pay the cost of an additional round-trip bus ticket for her child or pay the

cost of childcare for the entire time she is travelling (Id., ¶ 41). Alternatively the woman may be

able to leave her child with a trusted family member or friend, though this may require that the

woman disclose why she is travelling (Id.).

104. In sum, according to Dr. Katz, the total additional financial burden that a woman in

or around Little Rock would have to incur to obtain a surgical abortion if she were forced to travel

to Memphis would amount up to approximately $468.00, including lost wages, but not including

27 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 28 of 159

childcare, food, or the cost of the procedure itself (Id., ¶ 44). For a woman working full-time and

making Arkansas minimum wage, this is over a quarter of her monthly salary of $1,603.00 (Decl.

of Sheila M. Katz, Ph.D., ¶ 44).

105. Dr. Katz also points out that a low-income woman may never have travelled outside

the metropolitan or rural area where she lives, so even if she is able to gather the money necessary

to make the trip, “the social-psychological hurdles of making multiple trips to an unfamiliar city,

where she may know no one, may impede her.” (Id., ¶ 47). Accordingly to Dr. Katz, many of the

women she has spoken to in her research indicate that, if a service is not available in their town or

within a reasonable distance, “that service might as well not exist.” (Id.).

106. Dr. Katz points out that poor and low-income women attempt to meet unexpected

expenses in three ways: (1) by making sacrifices in other areas, such as by not paying rent or

utilities, drastically reducing food budgets, or foregoing needed medical care; (2) by borrowing

money through payday loans; and (3) by borrowing money from a boyfriend or partner (Id., ¶¶ 50-

52). Dr. Katz explains that in her own interviews with poor and low-income women, such women

talk about the economic necessity of relying on or returning to an abusive ex-boyfriend to help

make ends meet when faced with an unexpected crisis (Decl. of Sheila M. Katz, Ph.D., ¶ 52).

107. Dr. Katz is also familiar with studies analyzing the effect of increased travel on

women’s ability to obtain abortions (Id., ¶ 54). The “Turnaway Study” found that the most

common reason women were delayed in accessing abortion care was because of travel and

procedure costs (Id., ¶ 55). Furthermore, that study also cited that women reported that they

experienced delay as a result of having to get time off work, finding child care, and not having

anyone to travel with them (Id.).

28 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 29 of 159

108. Another study found that the most common reason for delay was that it took a long

time to make abortion care arrangements and that poverty made women twice as likely to be

delayed in making the arrangements to seek an abortion (Decl. of Sheila M. Katz, Ph.D., ¶ 56).

109. In the “Shelton Study,” researchers concluded that “the farther a woman has to

travel to obtain an abortion, the less likely she is to obtain one.” (Id., ¶ 57). Furthermore, a recent

study of Texas women seeking an abortion after the implementation of a law restricting abortion

access documented that women were worried that they would suffer stigma if they utilized their

social networks to overcome the barriers of travelling long distances to obtain abortion care (Id.,

¶ 58).

110. Dr. Jason Lindo, Ph.D., a professor of economics at Texas A&M University,

presents his declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 200-237; Decl. of Jason

Lindo, Ph.D.). He has been a research associate at the National Bureau of Economic Research

(“NBER”) since 2014 (Id., ¶ 5).

111. It is Dr. Lindo’s understanding that there are three types of abortions currently

provided in Arkansas: (1) medication abortions that are available only up to 10 weeks LMP; (2)

aspiration surgical procedures that are available until approximately 13 weeks LMP; and (3)

dilation and evacuation (“D&E”) surgical procedures, which are performed until 21.6 weeks LMP

(Id., ¶ 11).

112. Dr. Lindo explains that it is his understanding that medication abortions in Arkansas

require three trips and that, under a new law set to take effect on July 24, 2019, the mandated delay

between the first and second visits will increase to 72 hours (Id., ¶ 12).

29 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 30 of 159

113. As for surgical abortions, Dr. Lindo explains that two trips are required, though a

third visit may be necessary for some D&E procedures performed later in the second trimester

(Decl. of Jason Lindo, Ph.D., ¶ 13).

114. Dr. Lindo notes that LRFP is owned and operated by Dr. Tvedten, who provides

approximately 61% of the abortion care at LRFP (Id., ¶ 14(a)). Dr. Horton provides approximately

33% of the clinic’s abortion care, and the remaining six percent of the clinic’s abortion care has

been provided by Dr. Hopkins (Id.). Neither Dr. Tvedten nor Dr. Horton are board-certified or

board-eligible OBGYNs (Id.).

115. Dr. Rodgers and Dr. Cathey provide medication abortions at PPAEO’s Little Rock

health center (Decl. of Jason Lindo, Ph.D., ¶ 14(b)). Through April 2019, Dr. Cathey has provided

229 medication abortions while Dr. Rodgers has provided 199 medication abortions in the same

time (Id.).

116. Between May 1, 2016, and April 30, 2019, LRFP provided 7,010 abortions,

including 6,128 (or 87%) to Arkansas residents, 483 (or 7%) to Tennessee residents, and 188 (or

2.7%) to Mississippi residents (Decl. of Jason Lindo, Ph.D., ¶ 15).

117. Between 2016 and 2019, approximately 75.5% of LRFP’s procedures were

aspiration abortions (5,291); approximately 19.2% were D&E abortions (1,346), and

approximately 5.3% were medication abortions (376) (Id., ¶ 16).

118. Dr. Lindo analyzed several academic studies published in peer-reviewed journals

that have documented that abortion regulations can have impacts on women’s ability to access

abortion care (Id., ¶ 21). While there are some differences across these studies in terms of the data

that were used and the set of outcomes that were evaluated, all three determined that increases in

30 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 31 of 159

distance to the nearest clinic caused by regulation-induced clinic closures caused significant

reductions in abortions obtained from medical professionals (Id., ¶ 24).

119. Dr. Lindo also evaluated the effects in Arkansas when the contracted physician

requirement eliminated the availability of medication abortion in Arkansas from May 31 through

June 18, 2018 (Decl. of Jason Lindo, Ph.D., ¶ 32). Dr. Lindo concludes that the contracted

physician requirement reduced the number of abortions obtained from Arkansas providers by

Arkansas residents by 17-27% (Id., ¶ 35).

120. Dr. Lindo also projects that Dr. Hopkins will likely be able to serve 42 women

every other month, an estimate based upon the fact that Dr. Hopkins has served, at most, 21 women

in any given day in the last three years (Id., ¶ 49(c)).

121. Dr. Lindo projects that Dr. Paulson will be able to provide abortions to a maximum

of 12 patients per week (Id.).

122. Based upon his past capacity to provide abortions, Dr. Lindo estimates that Dr.

Rodgers will be able to provide 480 medication abortions annually (Decl. of Jason Lindo, Ph.D.,

¶ 50 (Table 8)). Furthermore, taking into account that Dr. Cathey intends to add a half day to her

provision of abortion care, Dr. Lindo estimates that she will be able to provide 476 medication

abortions annually (Id.).

123. Dr. Lindo has examined the likely effects of the OBGYN requirement on Arkansas

women’s ability to access abortion care (Id., ¶ 41). To do so, Dr. Lindo presents his supplemental

declaration (Dkt. No. 37; Supp. Decl. of Jason Lindo, Ph.D.).

124. Dr. Lindo points out that he has learned that, during the week of July 1, 2019,

PPAEO stopped providing medication abortions at its Fayetteville health center (Id., ¶ 2).

Accordingly, he has evaluated the likely effects of the OBGYN requirement under the current

31 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 32 of 159

changed circumstances where PPAEO Little Rock and LRFP are the only providers of abortion

care in Arkansas (Id.).

125. Dr. Lindo evaluates the effects of the OBGYN requirement under these changed

circumstances in three different scenarios: (1) no OBGYN requirement; (2) the OBGYN

requirement goes into effect and LRFP is forced to close; and (3) the OBGYN requirement goes

into effect and LRFP stays open, allowing Dr. Hopkins to provide abortions every other month

(Id., ¶ 3).

126. In order to ensure that he does not conflate the effects of PPAEO Fayetteville not

offering abortions with the effects of the OBGYN requirement, Dr. Lindo’s supplemental

declaration focuses upon women who have historically been served by LRFP and PPAEO Little

Rock (Supp. Decl. of Jason Lindo, Ph.D., ¶ 8). In particular, his supplemental declaration focuses

“on the 2,614 women annually served at these two locations over the past three years.” (Id.). Thus,

according to Dr. Lindo, he is providing a conservative estimate of the effect of the OBGYN

requirement since more than 2,614 women are likely to seek abortions in Little Rock annually,

given that medication abortions are no longer available at PPAEO Fayetteville (Id.).

127. Dr. Lindo also explains that, based upon an average from 2016 to 2019, 2,779

Arkansas residents obtain an abortion each year (Decl. of Jason Lindo, Ph.D., ¶ 51). Dr. Lindo’s

declaration also states that, based upon a three-year average, 1,927 Arkansas women seek surgical

abortions in Arkansas annually (Id., ¶ 61). 2

2 The Court calculates this sum from Table 11 in Dr. Lindo’s declaration. Dr. Lindo states that 1,134 Arkansans received surgical abortions in Arkansas at less than or equal to 10 weeks LMP and that 793 Arkansas residents obtained surgical abortions in Arkansas at greater than 10 weeks LMP. 32 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 33 of 159

128. Dr. Lindo concludes that, of the 2,212 women who annually obtain surgical

abortions in Arkansas, none of them will be able to do so if the OBGYN requirement goes into

effect and LRFP is forced to close (Supp. Decl. of Jason Lindo, Ph.D., ¶ 10). Put another way, of

the 2,614 women who obtain abortions in Little Rock annually, 2,212 (or 85%) of those women

will not be able to obtain the same type of care in Arkansas that they otherwise would, absent the

OBGYN requirement (Id., ¶ 10).

129. Dr. Lindo also performed calculations that assume that some women who would

have received surgical abortions will substitute for medication abortions. Dr. Lindo estimates that

LRFP and PPAEO Little Rock currently have the capacity to provide up to 4,664 abortions

annually and that, if the OBGYN requirement goes into effect and LRFP is forced to close, that

number will fall to 956, 3 which is the sum of Dr. Rodgers and Dr. Cathey’s total estimated capacity

(Id., ¶ 11). Accordingly, 1,658 (or 63%) of the 2,614 women who otherwise would obtain abortion

care in Little Rock annually will not be able to access any type of abortion care in Arkansas if the

OBGYN requirement goes into effect and LRFP closes (Id.). And 1,658 (or 52%) of the 3,167

women who have historically obtained abortion care in Arkansas annually (including at PPAEO

Fayetteville) will not be able to access any type of abortion care in Arkansas (Supp. Decl. of Jason

Lindo, Ph.D., ¶ 11).

130. Dr. Lindo also projects that, if the OBGYN requirement goes into effect and LRFP

does not close, the availability of surgical abortions at LRFP will increase from 0 to 252 compared

to the scenario where LRFP closes (Id., ¶ 12). Accordingly, in this scenario, all but 252 of the

women who would otherwise seek surgical abortions would have no provider in Arkansas (Id., ¶

13). Typically, 2,212 women have obtained surgical abortions each year in Little Rock (Id., ¶ 12).

3 480+476=956. 33 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 34 of 159

131. As such, according to Dr. Lindo, 1,960 (or 75%) of the 2,614 women who obtain

abortions in Little Rock annually will not be able to obtain the same type of care in Arkansas that

they would otherwise seek, absent the OBGYN requirement (Supp. Decl. of Jason Lindo, Ph.D.,

¶ 13). Additionally, these 1,960 are 62% of the 3,167 women who would historically have

obtained abortion care in Arkansas annually (including PPAEO Fayetteville) but who will not be

able to obtain the same type of care in Arkansas that they would have, absent the OBGYN

requirement (Id.).

132. Dr. Lindo does account for the possibility that PPAEO Little Rock could provide

up to 956 medication abortions annually for women who would historically have obtained abortion

care in Arkansas. In conjunction with the 252 surgical abortions that LRFP could provide it if

remains open despite the OBGYN requirement, this means that 1,406 (or 54%) of the 2,614 women

who otherwise would obtain care in Little Rock annually will not be able to access any type of

abortion care in Arkansas (Id., ¶ 14). Furthermore, 1,406 (or 44%) of the 3,167 women who have

historically obtained abortion care in Arkansas annually (including at PPAEO Fayetteville) will

not be able to obtain any type of abortion care in Arkansas (Id.).

133. Kathleen Paulson, M.D., a board-certified OBGYN licensed to practice medicine

in Arkansas, offers her declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 248-250; Decl.

of Kathleen Paulson, M.D.). Dr. Paulson provides medical services, including outpatient

gynecologic care and women’s wellness care, at a medical center in Fayetteville, Arkansas (Id., ¶

1).

134. Linda W. Prine, M.D., a board-certified family physician, offers her declaration in

support of plaintiffs’ motion (Dkt. No. 2-1, at 252-261; Decl. of Linda W. Prine, M.D.). Dr. Prine

is a professor of family medicine and community health at the Icahn School of Medicine at Mount

34 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 35 of 159

Sinai, and she also holds teaching positions at the Harlem Family Medicine Residency Program

and the Mount Sinai Downtown Residency in Urban Family Medicine (Id., ¶ 4). She also

maintains an active medical practice, including as a clinician at Planned Parenthood of New York

City (Id.). Dr. Prine has provided medication and surgical abortion care to women up to sixteen

weeks LMP, and over the last eighteen years, she has trained thousands of clinicians to provide

abortion care (Id., ¶ 5). She states that those clinicians have come from several specialties,

including family medicine, pediatrics, OBGYN, and internal medicine (Decl. of Linda W. Prine,

M.D., ¶ 5).

135. Dr. Prine knows of numerous family medicine practitioners who provide abortion

care up to 24 weeks or more LMP (Id., ¶ 7). Furthermore, she has trained advanced practice

clinicians, such as nurse practitioners, to provide abortion care (Id., ¶ 8). She states that it is well

established that advanced practice clinicians can provide surgical abortion as safely and effectively

as physicians (Id.).

136. Dr. Prine explains that the scope of practice for family medicine practitioners is

significantly more complex than abortion care; specifically, she notes that managing a patient’s

diabetes, heart disease, hypertension, and/or HIV/AIDS, or performing any number of other minor

outpatient surgical procedures is more complex than abortion care (Decl. of Linda W. Prine, M.D.,

¶ 16). She further notes that family practitioners provide miscarriage management, prenatal care,

and delivery to low-risk patients (Id.). Dr. Prine states that miscarriage management involves

many of the same skills required for abortion providers and that delivery, even to low-risk patients,

has a higher complication rate than providing abortions (Id., ¶ 17).

137. In Dr. Prine’s experience, residents from all specialties can become qualified

abortion providers (Id., ¶ 20). According to Dr. Prine, one third of abortion providers in this

35 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 36 of 159

country come from specialties other than OBGYN and that, based upon her experience, there is no

difference in the training of an OBGYN resident and other clinicians in these skills (Decl. of Linda

W. Prine, M.D., ¶ 20).

138. Dr. Prine points out that ACOG characterizes requirements “that clinic physicians

be board certified obstetricians-gynecologists despite the fact that clinicians in many medical

specialties can provide safe abortion services” as “medically unnecessary requirements designed

to reduce access to abortion.” (Id., ¶ 21). Additionally, the American Academy of Family

Physicians (“AAFP”) adopted in 2014 a resolution opposing laws that “impose[] on abortion

providers unnecessary requirements that infringe on the practice of evidence-based medicine.”

(Id., ¶ 22). Dr. Prine opines that the OBGYN requirement is the type of unnecessary requirement

to which the AAFP policy refer, as it restricts access to abortion care with no medical benefit to

patients (Id.). Dr. Prine also points out that the American Public Health Association likewise

recognizes that training, not specialty, determines competence in providing abortion care (Id., ¶

24).

139. Dr. Prine cites a comprehensive report by the National Academies of Sciences,

Engineering, and Medicine that states that family medicine physicians, among other clinicians, can

“safely and effectively” provide medication and surgical abortions (Decl. of Linda W. Prine, M.D.,

¶ 26). This report concluded medication and suction aspiration abortions performed by family

medicine physicians had high success rates and that “[a]ll complications were minor and managed

effectively at rates similar to those in OB/GYN practices and specialty abortion clinics.” (Id., ¶

27). The report further concluded that “OB/GYNs, family medicine physicians, and other

physicians with appropriate training and experience can provide D&E abortions.” (Id.).

36 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 37 of 159

140. Dr. Prine concludes that restricting the provision of abortion care to board-certified

or board-eligible OBGYNs is not medically justified and provides no medical benefit (Id., ¶ 29).

141. Dr. Prine also submits a supplemental declaration in support of plaintiffs’ motion

(Dkt. No. 62-1; Supp. Decl. of Linda W. Prine, M.D.). Dr. Prine “strongly disagree[s]” with any

contention that abortion creates or causes psychological or emotional problems that do not already

exist or would have arisen regardless of the procedure (Id., ¶¶ 2-3). Citing reports from the

National Academies of Sciences, Engineering and Medicine, the American Psychological

Association (“APA”) Task Force on Mental Health and Abortion, and the Academy of Medical

Royal Colleges, Dr. Prine states that “the rates of mental health problems for women with an

unwanted pregnancy are the same whether they have an abortion or give birth” and that “there is

no evidence that abortion gives rise to serious psychological and emotional harms.” (Id., ¶ 5).

142. Dr. Alison Stuebe, M.D., M.Sc., Fellow of the American College of Obstetrics and

Gynecology (“F.A.C.O.G.”), provides her declaration in support of plaintiffs’ motion (Dkt. No. 2-

1, at 290-301; Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G.). Dr. Stuebe is a board-certified

maternal-fetal medicine specialist (“MFM”) and OBGYN (Id., ¶ 1). As an MFM, Dr. Stuebe

specializes in the management of high-risk pregnancies; MFMs obtain three additional years of

fellowship training, beyond the standard residency period for an OBGYN (Id.).

143. Dr. Stuebe is an associate professor in the Department of Obstetrics and

Gynecology and the Department of Maternal and Child Health at the University of North Carolina

(“UNC”) School of Medicine (Id., ¶ 3). She also serves as the Associate Director for Research

and Development at the UNC Center for Maternal and Infant Health (Decl. of Alison Stuebe, M.D.,

M.Sc. F.A.C.O.G., ¶ 3). Since 2008, Dr. Stuebe has trained hundreds of medical students,

residents, and fellows in OBGYN (Id.).

37 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 38 of 159

144. Dr. Stuebe also maintains an active clinic practice focusing on care for women with

high-risk pregnancies (Id., ¶ 5). A substantial part of her clinical work consists of conducting

ultrasound and prenatal diagnostic tests and counseling women about fetal abnormalities (Id.).

145. Since UNC is a state hospital, Dr. Stuebe cares for patients from a wide range of

socioeconomic and cultural backgrounds, including women who are undocumented immigrants

without health insurance and women who are UNC employees with private insurance (Decl. of

Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 6).

146. While Dr. Stuebe currently does not provide medication or surgical abortions as

part of her clinical practice, she does currently assist women in terminating pregnancies involving

fetal anomalies through medical induction of labor at the hospital (Id., ¶ 7).

147. In her MFM practice, Dr. Stuebe regularly treats and counsels with pregnant

women about genetic and other fetal anomalies (Id., ¶ 12). Because of her education, training, and

clinic work, Dr. Stuebe is very familiar with the genetic anomaly Trisomy 21, which is commonly

referred to as Down syndrome (Id., ¶¶ 12-13). While there are various risk factors for Down

syndrome, Dr. Stuebe states that there is no way to predict before pregnancy whether a woman

will have a fetus with Down syndrome (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 14).

148. Dr. Stuebe explains that there are a number of screening and diagnostic tests

available to determine the presence of certain genetic, chromosomal, and structural anomalies,

including Down syndrome (Id., ¶ 17). Screening tests cannot diagnose any anomaly and only

indicate a likelihood or probability that one or more anomalies exist (Id., ¶ 18). Screening tests

usually screen for a range of anomalies at the same time and may indicate a likelihood of more

than one anomaly at once (Id.). Diagnostic tests, on the other hand, determine the existence or

38 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 39 of 159

non-existence of anomalies with near certainty (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G.,

¶ 18).

149. ACOG and the Society of Maternal Fetal Medicine (“SMFM”) recommend that all

women be counseled about prenatal genetic screening and diagnostic testing options as early as

possible in pregnancy, ideally at the first prenatal visit (Id., ¶ 19). They also recommend that all

women be offered the option of aneuploidy screening or diagnostic testing for fetal genetic

disorders and that all women with positive screening test results be offered further counseling and

diagnostic testing (Id.). If a genetic disorder or other major structural abnormality is detected

prenatally, ACOG recommends that the option of pregnancy termination should be discussed (Id.).

150. The typical approach to genetic screening in pregnancy includes the assessment for

common fetal aneuploidies, i.e., an abnormal number of chromosomes, including Trisomy 21

(Down syndrome), Trisomy 13, and Trisomy 18 (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G.,

¶ 20).

151. There are multiple Down syndrome screening tests used during pregnancy: the

fetal cell-free DNA test; nuchal translucency and serum-marker screening tests; maternal serum

quadruple marker (“Quad Screening”) tests; and targeted ultrasound examination (Id., ¶ 22).

152. Cell-free DNA testing can be performed as early as 10-12 weeks LMP, and results

are usually available within 7 days (Id., ¶ 22(a)). Cell-free DNA tests detect approximately 99%

of pregnancies affected with Down syndrome, though false positive results are higher for low-risk

women (Id.). ACOG, therefore, advises that women should not take irreversible action based upon

a cell-free DNA test result alone (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 22(a)).

153. In the first trimester, generally between 10-14 weeks LMP, clinicians specially

trained in diagnostic medical sonography can perform nuchal translucency testing (Id., ¶ 22(b)).

39 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 40 of 159

Nuchal translucency testing is typically done in tandem with serum-marker screening tests, which

measure two hormones in the pregnant woman’s blood (Id.). These first-trimester screens are less

sensitive than the cell-free DNA test, as they detected approximately 82-87% of pregnancies

affected with Down syndrome (Id.).

154. In the second trimester, a quadruple-marker screening test is available that

measures the levels of four different hormones in the pregnant woman’s blood (Decl. of Alison

Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 22(c)). Quad screening detects approximately 81% of

pregnancies affected by Down syndrome (Id.).

155. Another second trimester screening test is the targeted ultrasound examination (Id.,

¶ 22(d)). This test examines the fetal anatomy for markers that indicate increased risks of Down

syndrome and is typically performed between 18-20 weeks LMP (Id.). These tests are difficult to

complete before 18 weeks LMP and associated cardiac anomalies may not be visible until 19-20

weeks LMP (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 22(d)). Accordingly, clinicians

do not typically perform targeted ultrasound examinations until at least 18 weeks LMP (Id.).

156. If a screening test indicates an increased probability of a fetal genetic condition or

aneuploidy, Dr. Stuebe offers a diagnostic test to confirm whether the genetic condition indicated

by the screening test is present (Id., ¶ 23). There are two techniques for obtaining fetal cells for

diagnostic testing: chorionic villus sampling (“CVS”) and amniocentesis (Id., ¶ 24).

157. CVS analyzes a sample of cells taken from the placenta and is generally performed

between 10-14 weeks LMP, though it can be performed earlier (Decl. of Alison Stuebe, M.D.,

M.Sc. F.A.C.O.G., ¶ 24(a)). CVS carries a slightly higher risk of pregnancy loss compared to

amniocentesis, though there is debate among OBGYNs regarding the cause of this higher risk (Id.).

40 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 41 of 159

158. Amniocentesis analyzes fetal skin cells in a sample of amniotic fluid taken from

the gestational sac and is generally performed beginning at approximately 15 weeks LMP (Id., ¶

24(b)).

159. Once cells are obtained via CVS or amniocentesis, genetic testing is performed (Id.)

The most common type of test is a karyotype analysis, and to perform this test, cells are cultured

for 7-14 days, and the number of chromosomes present are assessed during cell division (Decl. of

Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 24(c)). The diagnostic accuracy of karyotype analysis

for Down syndrome is greater than 99%, and final test results take 7-14 days (Id.). It is possible,

however, to receive preliminary results in 24-48 hours via a technique called fluorescence in situ

hybridization (Id.).

160. Dr. Stuebe states that most women do not receive a confirmed diagnosis of Down

syndrome until well into the second trimester of pregnancy (Id., ¶ 25). Further, amniocentesis is

more widely available than CVS and cannot be performed until 15 weeks LMP, and test results

from amniocentesis are often unavailable until 17 weeks LMP (Decl. of Alison Stuebe, M.D.,

M.Sc. F.A.C.O.G., ¶ 25). Furthermore, a clinician performing an ultrasound may not be able to

detect any associated anatomical abnormalities before approximately 18 weeks LMP (Id.).

161. Since fetal anatomy can be assessed adequately only after about 18 weeks LMP,

women do not undergo routine ultrasound assessment of anatomy before then; as a result, most

women will not be aware of a fetal structural anomaly until at least 18 weeks LMP (Id., ¶ 27).

Furthermore, Dr. Stuebe states that the optimal time to assess for congenital heart defects is

between 18-20 weeks LMP (Id.). Since many women carrying a fetus with an identified anomaly

seek further genetic testing, most women with a prenatal diagnosis of a structural anomaly do not

41 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 42 of 159

have access to information to make decisions regarding the pregnancy until at least 19-20 weeks

LMP (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 27).

162. Dr. Stuebe states that Act 619 will encourage women to withhold screening and

diagnostic test results from medical providers she visits for care, which could have negative

consequences for both the clinician-patient relationship and the woman’s health, especially since

understanding the meaning and reliability of various screening and diagnostic tests can be difficult

(Id., ¶ 29).

163. Additionally, Dr. Stuebe states that Act 493 will “make it extremely difficult, if not

impossible, for women to take the time necessary to confirm a diagnosis of Down syndrome or

another fetal anomaly, and make an informed, autonomous decision regarding whether to carry to

term or terminate the pregnancy.” (Id., ¶ 30). Specifically, amniocentesis results are unavailable

before 16-17 weeks LMP, and targeted ultrasound examinations cannot be performed reliably until

approximately 18 weeks LMP, at the earliest (Id.). Dr. Stuebe states that Act 493 creates artificial

time pressure that could lead women and their families to rush their decision-making process for

no medically justified reason (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 30).

164. Dr. Thomas Tvedten, M.D., the part owner and Medical Director of LRFP, provides

his declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 371-384; Decl. of Thomas Tvedten,

M.D.). Dr. Tvedten first began training to provide abortion care in 1985 at Women’s Community

Health in Little Rock, a clinic that used to provide abortion care in Arkansas (Id., ¶ 5). Dr. Tvedten

was trained by an experienced abortion provider and family medicine physician who had been

providing abortion care in Arkansas since the 1970s (Id.). Dr. Tvedten began by first learning,

and then providing, first trimester abortion care (Id., ¶ 6). After speaking to other providers and

observing them perform second trimester procedures, Dr. Tvedten expanded the scope of his

42 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 43 of 159

practice to second trimester procedures, eventually performing procedures up to approximately 21

weeks, 6 days LMP (Decl. of Thomas Tvedten, M.D., ¶ 7). Dr. Tvedten has consistently provided

abortion care up to 21.6 weeks LMP for more than 15 years (Id.).

165. Starting in 2004, after the Federal Drug Administration (“FDA”) approved

Mifeprex for combined use with misoprostol for early non-surgical abortion, Dr. Tvedten began

providing medication abortion up to 10 weeks LMP (Id., ¶ 8).

166. Dr. Tvedten has also trained numerous providers to provide both medication and

surgical abortions (Id., ¶ 9). Family planning and OBGYN residents and medical students

regularly come to LRFP to observe Dr. Tvedten performing abortion procedures and to receive

training (Decl. of Thomas Tvedten, M.D., ¶ 9). Furthermore, many OBGYNs in Arkansas refer

patients to Dr. Tvedten for abortion care that they are not trained to or are unable to provide (Id.,

¶ 10).

167. Dr. Tvedten states that, while complications arising from either medication or

surgical abortion are extremely rare, he is trained to handle effectively and safely any issue that

may arise, either by providing the follow-up care himself or by referring his patients to a “tertiary

care facility.” (Id., ¶ 11).

168. Dr. Tvedten takes steps to ensure that he is always up to date on the latest advances

in abortion care (Id., ¶ 12). For example, he attends yearly conference on abortion care to further

his education (Decl. of Thomas Tvedten, M.D., ¶ 12). He also discusses abortion care and complex

abortion cases with other providers, including his OBGYN colleagues, and he reads practice

bulletins issued by medical authorities such as ACOG (Id.). He also reviews articles published in

peer-reviewed medical journals, such as Obstetrics & Gynecology, Contraception, the Journal of

the American Medical Association, and other sources on this topic (Id.).

43 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 44 of 159

169. At LRFP, Dr. Tvedten and two other physicians provide surgical abortions up to

21.6 weeks LMP and medication abortions up to 10 weeks LMP (Id., ¶ 15). LRFP is one of three

abortion clinics in Arkansas and is the only one that offers surgical abortions (Decl. of Thomas

Tvedten, M.D., ¶ 15). Accordingly, LRFP is the only option for women seeking abortion care

after 10 weeks LMP in Arkansas (Id.).

170. Dr. Tvedten points out that Arkansas law currently requires that LRFP patients who

seek an abortion must make at least two-in-person trips to the clinic—first for the state-mandated

informed consent process, including a non-directive discussion regarding their options, and the

second for additional, non-directive counseling and the abortion itself, after a mandatory delay of

at least 48 hours (Id., ¶ 20). For patients receiving abortion care at 18 to 21.6 weeks LMP, which

is a two-day procedure, that law results in at least three trips (Id.). Dr. Tvedten points out that a

new law, set to take effect on July 24 of this year, increases the mandatory delay period to at least

72 hours (Decl. of Thomas Tvedten, M.D., ¶ 20 (citing Ark. Act. 801, to be codified at §§ 20-16-

1109, -1703(b), -1706)).

171. Dr. Tvedten is not a board-certified or board-eligible OBGYN (Id., ¶ 23). He

cannot become either because he did not complete an OBGYN residency and cannot feasibly do

so now, given “the extraordinary time and resources that would be needed to pursue a new

specialty at this stage” of his career (Id.). If the OBGYN requirement goes into effect, Dr. Tvedten

will be forced to stop providing abortion care to his patients or risk incurring significant penalties

172. Dr. Tvedten also states that the only other physicians currently providing abortions

at LRFP every week is Dr. Horton, who lives in Memphis, Tennessee, and generally provides care

at LRFP approximately one day a week (Decl. of Thomas Tvedten, M.D., ¶ 24).

44 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 45 of 159

173. Dr. Tvedten further states that LRFP does not employ on a full-time basis or receive

full-time assistance from any physicians who are board-certified or board-eligible OBGYNs (Id.,

¶ 25). The only board-certified or board-eligible OBGYN who provides care at LRFP is Dr.

Hopkins, but he can travel to Arkansas to provide abortion care at LRFP only approximately once

every-other month (Id., ¶ 26).

174. Dr. Tvedten states that, over the past four years, LRFP has undertaken significant

efforts to try to find an OBGYN who would be willing to assist LRFP in continuing to provide

abortion care, including by providing abortions at LRFP or on a part-time or full-time basis (Id., ¶

27). These efforts included renewed efforts after the Arkansas legislature passed the OBGYN

requirement (Decl. of Thomas Tvedten, M.D., ¶ 27). Despite their efforts, LRFP has not been able

to identify a single board-eligible or board-certified OBGYN provider who can provide full-time

or near-full-time care at LRFP (Id.).

175. In Dr. Tvedten’s experience, many of the physicians who provide abortion care in

Arkansas permanently reside in other states and only travel to Arkansas to provide abortion care

because there are no local physicians willing to provide abortion care here (Id., ¶ 28).

176. According to Dr. Tvedten, locally-based physicians who do provide abortion in

Arkansas face stigmatization that may jeopardize their ability to continue to provide other care,

retain positions or admitting privileges at hospitals, and protect their families from harassment (Id.,

¶ 29).

177. Dr. Tvedten states that one of the Arkansas physicians from whom he first received

training in abortion care, Dr. James Guthrie, was forced to abandon his provision of abortion care

altogether because of the harassment that he and his family practice partners faced at the hands of

45 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 46 of 159

the anti-abortion activists who picketed his family practice clinic and the homes of the physicians

with whom he shared this practice (Decl. of Thomas Tvedten, M.D., ¶ 30).

178. Dr. Tvedten agreed to assist Dr. Guthrie in finding a replacement provider, and he

eventually stayed on to provide abortion care on a permanent basis (Id., ¶ 31).

179. Dr. Tvedten recalls conversations with his former medical school classmates, and

he relates that “they scoffed at the idea of providing abortion care in the state, given the stigma

associated with it and the accompanying risk that providing abortion would harm their ability to

maintain the private practices and positions at hospitals.” (Id.).

180. Dr. Tvedten also gave up his family practice in large part because of his knowledge

that the political climate and stigma surrounding abortion care would make it extremely difficult,

if not impossible, to attract potential partners and patients to a separate practice while he continues

to provide abortion care (Id., ¶ 33).

181. Dr. Tvedten states that, just a few years ago, anti-abortion activists found out where

his children attend school and distributed flyers at the school grounds with his name, picture, and

home address on them, labelling him as “complicit in murder.” (Decl. of Thomas Tvedten, M.D.,

¶ 34). He and his family have also been subject to picketing at their private residence (Id.).

182. Dr. Tvedten has, in recent years, had conversations with local physicians who,

despite considering themselves pro-choice and supportive of the full range of reproductive health

care, including abortion care, have abandoned any idea of providing abortion care in Arkansas

given the stigma associated with it (Id., ¶ 35).

183. Dr. Tvedten states that, due to LRFP’s inability to attract another full-time provider

who is a board-eligible or board-certified OBGYN, LRFP will almost certainly have to be shut

down entirely, absent some unanticipated development (Id., ¶ 36). He also states that, if LRFP

46 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 47 of 159

remains open due to Dr. Hopkins’ provision of care, LRFP would still have to restrict significantly

its provision of abortion care (Decl. of Thomas Tvedten, M.D., ¶ 36).

184. Indeed, in Dr. Tvedten’s opinion, even if LRFP is not forced to close immediately,

if LRFP cannot employ a full-time board-certified or board-eligible OBGYN, then LRFP will be

forced to close eventually (Id., ¶ 37).

185. In the event Act 493 takes effect, Dr. Tvedten and other physicians at LRFP will

stop performing abortions in cases where the pregnancy is determined to be greater than 18 weeks

LMP (Id., ¶ 42).

186. Dr. Tvedten is aware that some of LRFP’s patients seek abortions after receiving a

fetal diagnosis, including diagnoses of Down syndrome (Id., ¶ 44). In order to avoid the penalties

set forth in Act 619, Dr. Tvedten states that he and the other physicians at LRFP will have no

choice to stop performing abortions when they have “knowledge” that the woman is seeking the

abortion “solely” due to a test result indicating Down syndrome (Decl. of Thomas Tvedten, M.D.,

¶ 46).

187. Lori Williams, M.S.N., A.P.R.N., a nurse practitioner and Clinical Director of

LRFP, offers her declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 388-403; Decl. of

Lori Williams, M.S.N., A.P.R.N.). Ms. Williams has worked at LRFP since 2004 and has been

the Clinical Director since 2007 (Id.). Since 2010, she has been a part owner of LRFP (Id., ¶ 5).

188. As LRFP’s Clinical Director, Ms. Williams is responsible for all aspects of the day-

to-day operations, including overseeing patient care in coordination with the physicians and other

health-care professionals, supervising staff, maintaining policies and procedures, and ensuring that

LRFP complies with all laws and regulations (Id., ¶ 8).

47 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 48 of 159

189. Ms. Williams states that “[a]bortion is one of the safest medical procedures

currently available to women in the United States” and that “[i]t is substantially safer than giving

birth . . . .” (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 9).

190. Ms. Williams states that only three physicians currently provide care at LRFP: Dr.

Tvedten, Dr. Horton, and Dr. Hopkins (Id., ¶ 11). She states that all three of these doctors are

extremely experienced in abortion care and that they can handle any complications that may arise,

including by providing treatment at LRFP and by referring patients to a local hospital when

necessary (Id.).

191. LRFP offers medication abortion from the point in pregnancy when an intrauterine

pregnancy can be confirmed (typically 5-6 weeks LMP) to 10 weeks LMP (Id., ¶ 13). LRFP offers

aspiration abortion from approximately 3-4 weeks LMP through approximately 13 weeks LMP

and typically performs a D&E procedure beginning around 14 weeks LMP through 21.6 weeks

LMP (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 14). Ms. Williams notes that aspiration and

D&E abortions do not involve incisions (Id.).

192. Ms. Williams states that it is common for a woman who can choose between a

medication and surgical abortion to have a strong preference for a surgical abortion (Id., ¶ 15).

She states that while there are many reasons for this, “many women prefer the surgical option

because it requires fewer visits to the clinic, and thus is associated with a lower burden in terms of

funding and time.” (Id.).

193. LRFP currently provides patient care three days per week, and to accommodate the

48-hour mandated waiting period, LRFP typically provides care on three staggered days each week

(Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 17). She also states that LRFP can safely and

48 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 49 of 159

effectively “provide abortion care up to approximately 20-25 women each day, depending on the

variables associated with the specific patient-care needs presented on any given day.” (Id.).

194. LRFP operates with substantial fixed costs each month, the most significant of

which is overhead related to LRFP’s 13 full-time staff members (Id., ¶ 19).

195. Ms. Williams states that, in 2018, LRFP provided approximately 170 second

trimester abortions after 18 weeks LMP (Id., ¶ 21).

196. At the hearing, Ms. Williams testified that LRFP has patients who currently receive

abortions that would no longer be able to obtain those services with LRFP if Act 493 goes into

effect.

197. Ms. Williams further states that, if Act 493 takes effect, LRFP will stop providing

abortions after 18 weeks LMP, and she asserts that this will force women to travel out of state for

another abortion care provider (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶¶ 22-23). Ms.

Williams notes that a significant number of LRFP’s patients are poor or low income and receive

financial assistance to cover part of the costs of their abortion care (Id., ¶ 23).

198. Ms. Williams also states that, from conversations with patients, she understands

that the efforts required to make the necessary plans to come to LRFP cause anxiety and stress,

which are exacerbated by travel and logistical arrangements (Id., ¶ 24). She notes that the need to

arrange for time off work on multiple days can be challenging and that many LRFP patients are in

low-wage jobs where they are unlikely to receive vacation or sick days (Id.). She notes that her

patients report that they risk their employment and confidentiality by asking for time off (Decl. of

Lori Williams, M.S.N., A.P.R.N., ¶ 24).

199. Furthermore, based upon her counseling with patients, Ms. Williams knows that

making the necessary arrangements and raising funds for travel and other costs associated with

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coming to LRFP can force patients to delay seeking care (Id., ¶ 25). She also notes that

transportation presents a major challenge in rural Arkansas, as there are few public-transportation

options and rural residents often live far away from health-care providers (Id.). According to Ms.

Williams, “[n]umerous patients who come to the clinic for abortion care in the second trimester,

including after 18 weeks LMP, have conveyed to me during the counseling process that they would

have preferred to have obtained an abortion sooner but were delayed due to the logistical

challenges described above (Id.).

200. Ms. Williams also notes that the risks associated with abortion procedures increase

as the pregnancy progresses and that delay may worsen any maternal health conditions associated

with the pregnancy (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 26).

201. Ms. Williams states that she is “aware that some of our patients seek abortions after

receiving a fetal diagnosis, including Down syndrome.” (Id., ¶ 29). She notes that while LRFP

does ‘not require patients . . . to tell us the reason or reasons they are seeking an abortion, patients

who are seeking an abortion after a fetal diagnosis usually disclose this fact . . . .” (Id.). She also

notes that these patients come to LRFP “from across Arkansas and out-of-state, with many referred

. . . from Maternal Fetal Medicine specialists.” (Id.). Ms. Williams avers that, if Act 619 goes into

effect, the physicians at LRFP will stop performing abortions when they know that a patient is

seeking an abortion solely based on a test result indicating Down syndrome, a prenatal diagnosis

of Down syndrome, or any other reason to believe that the fetus has Down syndrome (Decl. of

Lori Williams, M.S.N., A.P.R.N., ¶ 31).

202. Ms. Williams furthers states that, if Act 619 goes into effect, and LRFP is forced to

turn away these patients, all these patients will have to seek abortion care out-of-state, as patients

do not receive a Down syndrome diagnosis until after 10 weeks LMP and thus cannot seek a

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medication abortion at another Arkansas provider (Id., ¶ 32). Ms. Williams notes that, by forcing

women to travel out-of-state, Act 619 will cause extreme hardship and delay for many of LRFP’s

patients (Id.). She also notes that many of LRFP’s patients will be prevented from obtaining an

abortion (Id.).

203. Ms. Williams notes that Dr. Hopkins is the only doctor who performs abortion care

at LRFP who is a board-certified or board-eligible OBGYN (Decl. of Lori Williams, M.S.N.,

A.P.R.N., ¶¶ 34-35).

204. On April 2, 2019, LRFP sent a letter to all OBGYNs listed on the Arkansas medical-

board licensure list describing LRFP and soliciting interest in providing care at the clinic (Id., ¶

36). LRFP received no responses (Id.).

205. This letter states that LRFP is looking for a part-time, board-certified OBGYN to

contract with LRFP to provide abortion services (Dkt. No. 2-1, at 404). The letter also states that

LRFP sees patients three days a week, malpractice insurance would be paid by LRFP, and that the

compensation for services is generous and based upon the number of procedures completed per

day (Id.).

206. Furthermore, Ms. Williams has raised the need for a board-certified or board-

eligible OBGYN with numerous professionals at the National Abortion Federation (“NAF”), and

on April 1, 2019, she submitted a request to a NAF program that matches abortion providers with

clinics around the country (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 37). Through those efforts,

LRFP came into contact with two physicians who expressed preliminary interest in a position at

LRFP, but neither lives in Arkansas or is licensed to practice in Arkansas (Id.).

207. Ms. Williams also notes that there are protestors outside the clinic nearly every day

and that the “harassment and intimidation is immediately apparent to any prospective physician or

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staff member (Id., ¶ 39). Furthermore, medical residents who receive abortion training at LRFP

“frequently express concern about driving in their own vehicles to the clinic and wearing scrubs

that identify them as medical providers.” (Id.).

208. Third-party vendors have refused to do business with LRFP because LRFP

provides abortion care (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 40). Ms. Williams relates an

instance where an oxygen supplier ceased to do business with LRFP after anti-abortion activists

informed the supplier that LRFP provides abortion care (Id.).

209. Anti-abortion activists mailed Ms. Williams’ photograph and a letter to 800 of her

neighbors and went door-to-door in her neighborhood, informing members of her community that

she is involved in abortion care (Id., ¶ 41).

210. In addition to LRFP’s efforts to comply with the OBGYN requirement, LRFP has

sent letters to Arkansas OBGYNs on at least two other occasions to solicit interest in assisting

LRFP to provide abortion care or in joining the staff in various capacities (Id., ¶ 42).

211. LRFP sent a letter in early 2015 to all Arkansas OBGYNs listed in the medical-

society directory but received no response except from Dr. Cathey (Decl. of Lori Williams,

M.S.N., A.P.R.N., ¶ 42; Dkt. No. 2-1, at 405-06). LRFP against sent a letter on January 18, 2016,

to all Arkansas OBGYNs listed on the medical board licensure list, but they received no response

(Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 42; Dkt. No. 2-1, at 407).

212. While Dr. Browne and Dr. Hopkins have agreed to provide limited care at LRFP,

LRFP has not identified any board-certified or board-eligible OBGYN who is available to provide

care between August 12 and October 20, 2019, the next week that Dr. Hopkins can provide care

at LRFP (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 47).

52 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 53 of 159

213. According to Ms. Williams, if Dr. Browne and Dr. Hopkins provide care at LRFP

under the OBGYN requirement, they will spend the first of their three days at the clinic satisfying

the state-manded informed-consent requirements which will need to occur at least 72 hours before

any procedure (Id., ¶ 48). Dr. Tvedten would not be able to continue working at the clinic only to

obtain patient informed consents, as LRFP cannot afford to keep him on staff for such a limited

role (Id., ¶ 48). LRFP cannot charge patients for the initial visit at that visit (Id.). Dr. Browne and

Dr. Hopkins would then need to spend their second and third days at LRFP performing procedures

(Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 48).

214. Ms. Williams states that LRFP would not be an economically viable medical

practice if it were able to provide patient care only three days a week every-other month, or even

three days a week every month (Id., ¶ 49). Even if LRFP could come up with the funds to pay

staff to provide care only three days every other or each month, Ms. Williams states that this would

keep LRFP from retaining the highly trained and skilled staff that it needs to operate the clinic (Id.,

¶ 50).

215. Plaintiffs also present the affidavit of Brandon J. Hill, Ph.D., the chief executive

officer of Planned Parenthood Great Plains (“PPGP”) (Dkt. No. 62, at 1-3; Decl. of Brandon J.

Hill, Ph.D.). Dr. Hill states that PPGP is currently working to open a new health center in Little

Rock in August of 2019 (Id., ¶ 2). PPGP is seeking a new location due to size constraints at their

current facility, and PPGP has purchased a property for its new facility (Id., ¶ 4). PPGP will not,

however, be able to provide surgical abortions at the new facility or provide care for more

medication abortion patients due to the “capacities of [its] providers . . . .” (Id., ¶ 6).

216. Plaintiffs also present the affidavit of Christopher Attig, an individual who lives in

Little Rock, Arkansas, and who has a son with Down syndrome (Dkt. No. 63; Decl. of Christopher

53 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 54 of 159

Attig). Mr. Attig opines that Act 619 does “nothing to honor, protect, or help my son and other

people diagnosed with Down syndrome.” (Id., ¶ 5). Instead, Mr. Attig believes that Act 619 “uses

my son and other children diagnosed with Down syndrome as political tools to criminalize and

restrict abortion.” (Id.). He further states that children with Down syndrome require special

support that “can be very expensive and difficult to find,” and in his opinion “the lack of accessible

and affordable medical services and therapies needed to support a child diagnosed with Down

syndrome” is one of the factors that influences a woman’s decision to abort a pregnancy when

Down syndrome is indicated (Id., ¶ 6).

217. Defendants present various declarations from other cases not before the Court. Ms.

Ashleigh Moon filed an affidavit in Planned Parenthood of Indiana and Kentucky, et al. v.

Commissioner, Indiana State Department of Health, et al., 1:16-cv-763-TWP-DML (S.D. Ind.),

and defendants have filed that declaration here (Dkt. No. 45-1, at 53-55). Ms. Moon avers that she

had a difficult pregnancy and that she was advised by her physicians to have an abortion and told

that her child would suffer from genetic abnormalities (Id., ¶¶ 1-14). Ms. Moon states that her

child was born premature, survived, and is “genetically perfect.” (Id., ¶¶ 14-15).

218. Defendants also present the declaration of Michele Mazelin, which was filed in

Planned Parenthood of Indiana and Kentucky, et al. v. Commissioner, Indiana State Department

of Health, et al., 1:16-cv-763-TWP-DML (S.D. Ind.) (Dkt. No. 45-1, at 57-59). Ms. Mazelin avers

that she was pregnant with twins and that she was pressured by a treating physician to have

amniocentesis (Id., ¶ 5).

219. Defendants present the declaration of Steven E. Calvin, M.D., which was filed in

Planned Parenthood of Indiana and Kentucky, et al. v. Commissioner, Indiana State Department

of Health, et al., 1:16-cv-763-TWP-DML (S.D. Ind.) (Dkt. No. 45-1, at 61-68; Decl. of Steven E

54 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 55 of 159

Calvin, M.D.). Dr. Calvin avers that women have described to him that they have felt pressure to

undergo prenatal screening and to have an abortion if Down syndrome is detected (Id., ¶ 20). Dr.

Calvin also states that “[a] fetus at 10 weeks and later has arms, legs, and a head” and is not

confusable with medical material that may be the product of surgery (Id., ¶ 26).

220. Defendants present the affidavit of Ashley K. Fernandes, M.D., Ph.D., which was

filed in Preterm-Cleveland, et al. v. Lance Himes, Director, et al., 1:18-cv-109 (S.D. Ohio) (Dkt.

No. 45-2, at 2-12; Decl. of Ashley K. Fernandes, M.D., Ph.D.). Dr. Fernandes avers that genetic

counselors and physicians are biased against “unborn persons with DS . . . .” (Id., ¶ 8).

221. Defendants present the declarations of Kelly Kuhns, Susan Scheid, Susan Gill, and

Jaclyn Keough, which were filed in Preterm-Cleveland, et al. v. Lance Himes, Director, et al.,

1:18-cv-109 (S.D. Ohio) (Dkt. No. 45-2, at 26-40). Each of these individuals has a child with

Down syndrome.

222. Defendants present the declaration of Dennis M. Sullivan, M.D., which was filed

in Preterm-Cleveland, et al. v. Lance Himes, Director, et al., 1:18-cv-109 (S.D. Ohio) (Dkt. No.

45-3, at 89-98; Decl. of Dennis M. Sullivan, M.D.). Dr. Sullivan opines that the medical profession

is biased to prefer abortions after a diagnosis of Down syndrome (Id., ¶ 15).

223. Defendants present the declaration of Robin Lynn Treptow, Ph.D., which was filed

in Preterm-Cleveland, et al. v. Lance Himes, Director, et al., 1:18-cv-109 (S.D. Ohio) (Dkt. No.

46-1, at 2-4; Decl. of Robin Lynn Treptow, Ph.D.). Dr. Treptow has a son with Down syndrome,

and she states that medical professionals have a bias against individuals with Down syndrome (Id.,

¶¶ 2,6).

224. Defendants also present the affidavit of Allan Parker, the president of The Justice

Foundation (Dkt. No. 49-1, at 1-3). Attached to Mr. Parker’s declaration are fifteen affidavits from

55 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 56 of 159

Arkansas women. Each of these affiants states that she regrets her abortion (Dkt. No. 49-1, at 4-

27).

225. Defendants also present the declaration of Millie Lace, the founder and director of

Concepts of Truth, Inc. (“Concepts”) (Dkt. No. 49-2; Decl. of Millie Lace). Ms. Lace avers that

Concepts is a non-profit organization that provides counseling for pregnant women (Id., ¶ 3). Ms.

Lace states that she had an abortion on the advice of her physician, which caused her both physical

and psychological pain (Id., ¶ 8). Ms. Lace further states that “Concepts informs women of the

truth that an abortion terminates the life of a whole living human being,” and she avers that

“[f]ollowing the counseling that Concepts provides, about 85% of all of the women who originally

thought they wanted to have an abortion change their minds or otherwise decide to carry their baby

to full term and birth.” (Id., ¶ 15). Ms. Lace also states that Concepts provides counseling to

women who have had abortions, and she reports that “between 65% and 75% of the women report

that they felt they were misled by the abortion clinic and that their decisions were uninformed and

in many ways pressured or coerced.” (Id., ¶ 16).

226. Defendants present the declaration of Mischa Martin, the Director of the Division

of Children and Family Services (“DCFS”) at the Arkansas Department of Human Services

(“DHS”) (Dkt. No. 49-3; Decl. of Mischa Martin). Ms. Martin states that the Arkansas Safe Haven

law allows a mother to give up custody of any baby up to 30 days told at any hospital emergency

room or law enforcement agency without facing prosecution for endangering or abandoning a child

(Id., ¶ 2). Ms. Martin explains that, once a baby is given up under the Safe Have law, DCFS places

the baby with an “adoptive home.” (Id., ¶ 5). Ms. Martin further explains the process for screening

prospective adoptive parents (Id., ¶ 8).

56 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 57 of 159

227. Defendants also present the affidavit of Kristie Hayes, the Program Administrator

for the Income Support Group within the Arkansas Department of Human Services (Dkt. No. 49-

4; Decl. of Kristie Hayes). Ms. Hayes states that DHS provides “Limited Pregnant Women

Medicaid,” “Full Pregnant Women Medicaid,” “Unborn Child Medicaid Coverage,” and

“Newborn Medicaid.” (Id., ¶¶ 2-6). Ms. Hays also explains that the ARKids First Program covers

children in households up to 142% or 211% of the federal poverty level (Id., ¶ 7). Ms. Hayes

states that for families raising a child with Down syndrome, the child is eligible for ARKids and

The Tax Equity and Fiscal Responsibility Act (“TEFRA”) Medicaid program (Id., ¶ 9). She also

points out that families with children that have Down syndrome may be eligible for Supplemental

Security Income (“SSI”) or Developmental Disabilities Services (Decl. of Kristie Hayes, ¶¶ 10-

11).

228. Defendants also present the declaration of Mary Silfies (Dkt. No. 49-5, at 1-3; Decl.

of Mary Silfies). She is “part of a sidewalk prayer ministry group that often goes” to LRFP on

Wednesdays and Fridays, if LRFP is open (Id., ¶ 1). She states that every participant “is required

to sign a Statement of Peace, outlining the behavior that is expected,” and she further states that

her group does “not engage in any behavior that would be considered harassing.” (Id., ¶¶ 2-3). Ms.

Silfies states that LRFP has installed water sprinklers to discourage her group (Id., ¶ 4).

229. Ms. Silfies states that “[i]t is not unusual to observe ambulances being called” to

LRFP, and she attaches a spreadsheet that she received in response to filing a Freedom of

Information Act request with Little Rock’s ambulance service (Decl. of Mary Silfies, ¶ 5). This

spreadsheet appears to show 64 instances since 1999 when an ambulance has been called to

LRFP’s address (Dkt. No. 49-5, at 4-5). Ms. Silfies states that the three ambulance calls to LRFP

in 2019 were all made on days when Dr. Tvedten was working (Id., ¶ 7). She says that she knows

57 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 58 of 159

this because she was on the sidewalk when the ambulances were called, she recognizes Dr.

Tvedten, and she makes “a personal note of who the abortionist is each time I am there.” (Id.).

230. Defendants present the declaration of Kathi Aultman, M.D. (Dkt. No. 49-6, at 1-

24; Decl. of Kathi Aultman, M.D.). Dr. Aultman is a Fellow of the American College of

Obstetricians and Gynecologists (Id., ¶ 1). Dr. Aultman describes the requirements for board

certification for OBGYNs, including a four-year specialized residency (Id., ¶ 12). Dr. Aultman

states that “[p]eer-reviewed studies demonstrate that board certified physicians are better doctors.”

(Id., ¶ 17). She points to studies that purport to show that board-certified physicians are less likely

to be disciplined by state medical boards (Id.). She also points to studies that show that physicians

who have been in practice longer may be more likely to provide poor care (Id., ¶ 19).

231. Dr. Aultman describes ABOG’s “maintenance of certification” (“MOC”) process,

wherein board-certified physicians engage in continuing professional development (Id., ¶¶ 22-23).

232. Dr. Aultman also states that medication abortions are riskier than aspiration

abortions, and she states that “medication abortion patients are likely to require surgical follow-up

treatment for retained products or bleeding.” (Id., ¶ 27). She also states that all OBGYNs are

trained to evacuate the uterus in the first and second trimesters (Id., ¶ 28).

233. Dr. Aultman opines that “[c]omplications from abortion are significantly under-

reported.” (Id., ¶ 29). She states that this is because some states do not report their data and because

“women are often ashamed to tell anyone that they had an abortion . . . .” (Id.). Dr. Aultman also

says there is no support for the statement that abortion is less risky than childbirth (Id., ¶ 31). She

also asserts that the low mortality and morbidity rates for early abortions masks the risk associated

with abortions at 21 weeks LMP or greater (Id., ¶¶ 33-34).

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234. Dr. Aultman states that, according to the FDA, there have been 22 deaths

“associated with the administration of Mifepristone.” (Id., ¶ 46).

235. Defendants also present the rebuttal declaration of Dr. Aultman (Dkt. No. 73;

Rebuttal Decl. of Kathi Aultman, M.D.). Dr. Aultman has reviewed the “17 affidavits and

declarations . . . in the record of this case from women who have been hurt by abortion.” (Id., ¶ 3).

Dr. Aultman states that these affidavits and declarations are “consistent with the experiences of

the women I have encountered in my work as a physician and advocate for women and their health

issues.” (Id.).

236. Dr. Aultman relates an incident where she provided gynecologic care to a young

woman, and she states that that the young woman claimed that she suffered adverse psychological

effects after aborting her pregnancy (Id., ¶ 5).

237. Dr. Aultman also states that she provided care to a woman who came to see her “for

continuous spotting and bleeding several months following an abortion.” (Rebuttal Decl. of Kathi

Aultman, M.D., ¶ 6). Dr. Aultman avers that she learned that the young woman “was given vaginal

medication” and “was instructed to sit on the toilet and push.” (Id.). Ms. Aultman states that she

further learned that the young woman then “delivered a 20+ week baby boy into the toilet” and

that the “baby drowned in the toilet water.” (Id.).

238. Dr. Aultman claims that there is “no mechanism for recording or reporting” medical

or psychological complications of abortions (Id., ¶ 7). She also states that physicians fear being

subjected to litigation for delivering babies with congenital abnormalities and that this is why

“many young women feel pressure to abort babies with the potential for such abnormalities.”

(Rebuttal Decl. of Kathi Aultman, M.D., ¶ 8).

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239. Attached to Dr. Aultman’s rebuttal declaration is a certified criminal record for Dr.

Tvedten in the case of State v. Thomas Harold Tvedten (Id., ¶ 10). According to this record, Dr.

Tvedten was convicted of second-degree criminal mischief for an event that occurred on May 22,

1987. At the hearing, Dr. Tvedten testified that this charge was the result of breaking the camera

of an individual who was photographing an abortion clinic.

240. Also attached to Dr. Aultman’s rebuttal declaration is a disciplinary report for Dr.

Tvedten from the Arkansas State Medical Board. Per this report, Dr. Tvedten’s medical license

was suspended for three months in 1983 and that his Drug Enforcement Agency registration was

suspended for fifteen months, ending in 1984.

241. Dr. Aultman also states that “comparing mortality statistics to maternal mortality

statistics is not an apples-to-apples comparison” and that an OBGYN “can handle common

complications of abortion that an ordinary licensed physician cannot, such as life threatening

hemorrhage or injury to internal organs that might require an abdominal surgery to repair.” (Id., ¶

14).

242. Defendants also present the declaration of Donna J. Harrison, M.D. (Dkt. No. 49-

7, at 1-22; Decl. of Donna J. Harrison, M.D.). Dr. Harrison is certified by the ABOG and is the

Executive Director of the American Association of Pro-Life Obstetricians and Gynecologists

(“AAPLOG”) (Id., ¶ 3).

243. Dr. Harrison explains the efficacy of fetal screening and diagnostic tests. She

explains that, out of 10,000 general population women whose pregnancies are screened using cell-

free DNA screening, 30 of those women will test positive for Down syndrome, while in fact only

10 of them are positive for Down syndrome (Id., ¶ 19). In a high-risk population, out of 10,000

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women tested, 119 of those women will test positive, while in fact only 99 of them are in fact

positive for Down syndrome (Id., ¶ 20).

244. Dr. Harrison further asserts that women who receive a false positive on a screening

test “may be pressured to act on the basis of a positive screening test which is wrong.” (Decl. of

Donna J. Harrison, M.D., ¶ 32).

245. Dr. Harrison explains that screening tests, the results of which are not available

until 12 weeks LMP, “do not answer the question” of whether Down syndrome is indicated (Id., ¶

34). Dr. Harrison avers that the diagnostic tests, which occur after a positive screening test, carry

risks of complications (Id., ¶¶ 35-37). Dr. Harrison further avers that amniocentesis “is done

around 18-20 weeks.” (Id., ¶ 38). She avers that, at 22 weeks LMP, “[t]he immediate risk of

maternal mortality from an abortion at 22 weeks is roughly equal to the risk of death from live

birth.” (Decl. of Donna J. Harrison, M.D., ¶ 38).

246. Dr. Harrison further states that “[t]here is also an increased psychological risk for

mothers who abort.” (Id., ¶ 41).

247. Dr. Harrison opines that “[t]he grisly reality is that abortion of human beings with

Down syndrome is driven by a sector of society that doesn’t want disabled people to be part of

society.” (Id., ¶ 43).

248. Dr. Harrison further states that “[w]ith specialized medical care some fetuses can

survive outside the womb by 22 weeks with survival rates as high as 40% in some medical centers.”

(Id., ¶ 56).

249. Defendants also present the declaration of Tumulesh K.S. Solanky, Ph.D. (Dkt. No.

49-8, at 1-25; Decl. of Tumulesh K.S. Solanky, Ph.D.). Dr. Solanky’s declaration discusses Dr.

Lindo’s conclusions and findings, and Dr. Solanky disagrees with Dr. Lindo’s projections

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regarding the likely reduction in abortions resulting from the closing of PPAEO Fayetteville (Id.,

¶¶ 8-17).

250. Dr. Solanky’s declaration does not contest Dr. Lindo’s projections of LRFP and

PPAEO Little Rock’s capacity to provide abortions if the OBGYN requirement goes into effect,

but he does state that Dr. Lindo’s “supplemental declaration has assumed that the maximum

capacity of clinics/physicians is simply the maximum number of abortions performed” and that

“[t]his is a rather biased assumption.” (Id., ¶ 54).

251. Dr. Solanky does contest Dr. Lindo’s estimate of a “17-27%” reduction in abortions

due to the cessation of medication abortions in Arkansas in 2018 (Id., ¶ 10). Dr. Solanky asserts

that Dr. Lindo incorrectly “assume[s] that if there [was] any reduction in abortions in 2018, then

it must have been caused by [the contracted physician requirement].” (Id., ¶ 39).

252. Dr. Solanky also asserts that “there appears to be no correlation between the

numbers of clinics and abortion rates.” (Id., ¶ 46).

253. Dr. Lindo presents a rebuttal declaration to respond to Dr. Solanky’s assertions

(Dkt. No. 62-2, at 1-6; Rebuttal Decl. of Jason Lindo, Ph.D.). Dr. Lindo takes issue with Dr.

Solanky’s assertion that Dr. Lindo incorrectly calculates the maximum capacity of abortion

providers; according to Dr. Lindo, Dr. Solanky provides no justification for his criticism, and he

argues that Dr. Solanky proposes no alternative capacity-calculation methodology or capacity

estimates (Id., ¶ 3). Further, Dr. Lindo points out that Dr. Solanky does not respond to the fact

that Dr. Lindo’s capacity estimates likely overestimate the abortion providers’ capacity to provide

abortions if the challenged Acts go into effect (Id.).

254. Dr. Lindo also takes issue with defendants’ assertion that Dr. Hopkins can conduct

525 surgical abortions annually (Id., ¶ 6). Dr. Lindo points out that it is unlikely that LRFP will

62 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 63 of 159

remain open if Dr. Hopkins is the only abortion provider, and he also points out that it is highly

improbable that Dr. Hopkins could spend three days a week providing abortions, as LRFP cannot

afford to hire a physician for the sole purpose of obtaining patient consents (Rebuttal Decl. of

Jason Lindo, Ph.D., ¶ 6). Dr. Lindo also points out that D&E abortions are often two-day

procedures that are more time-consuming to perform (Id.). Dr. Lindo further explains that he

understands that LRFP can provide 20-25 abortions a day under current conditions, not in a

scenario in which Dr. Hopkins is the only physician providing surgical abortions (Id.). Finally,

Dr. Lindo points out that defendants assume that all patients who will need surgical abortion care

would be able to obtain that care in the one week when Dr. Hopkins is in Arkansas, which will

occur once every two months (Id.).

255. Defendants also present the declaration of Judy McGruder (Dkt. No. 49-10, at 1-3;

Decl. of Judy McGruder). Ms. McGruder avers that she aborted a pregnancy in 2000 at LRFP (Id.,

¶ 4). Ms. McGruder previously received amniocentesis and was informed that her child would

have Down syndrome (Id., ¶ 3). Ms. McGruder regrets her abortion (Id., ¶ 11).

256. State Senator Stubblefield was the State Senate sponsor for Act 700 (Dkt. Nos. 2-

1, at 21; 4, at 31).

257. During debate before the Arkansas legislature, State Senator Gary Stubblefield and

State Senator Joyce Elliot had the following exchange:

Sen. Elliott: “No I’m asking you is it—do you have some evidence that there has been a [medical safety] problem you are fixing, is what I’m asking.”

Sen. Stubblefield: “Not that I’m aware of.”

(Dkt. No. 4, at 31 n.94 (citing S.B. 448 Hearing Testimony)).

63 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 64 of 159

258. When asked why he proposed the bill that would later become Act 700, State

Senator Stubblefield responded, “I’m having this bill to prevent any further abortions.” (Id., at 47).

259. State Senator Stubblefield also stated: “And as far as how many more of these

abortion bills will I bring? I’ll tell every one of you how many more I’ll bring. As long as we

keep killing unborn children—innocent unborn children—I’ll keep bringing abortion bills.” (Id.,

at 31 n.94).

260. Under Arkansas law, only a physician licensed to practice medicine in the State of

Arkansas may provide abortion care. See Ark. Code Ann. § 5-61-101(a).

261. Additionally, any woman in Arkansas seeking an abortion must be evaluated via a

medical history, a physical examination, counseling, and laboratory tests. See Ark. Admin. Code

007.05.2-8(A).

262. Arkansas abortion facilities shall have written procedures for emergency transfer

of a patient to an acute care facility. See Ark. Admin. Code 007.05.2-8(B). Arkansas general

abortion facilities, which provide surgical abortions or both medication and surgical abortions,

shall be within 30 minutes of a hospital which provides gynecological or surgical services. See

Ark. Admin. Code 007.05.2-4(C); Ark. Admin. Code 007-05-2.3(J) (defining general abortion

facility). Arkansas abortion facilities providing abortions must have various medical devices

available to assist in the event of complications. See Ark. Admin. Code 007.05.2-8(C), (E).

Finally, Arkansas abortion facilities must have a certain number of qualified personnel available

to provide direct patient care. See Ark. Admin. Code 007.05.2-7.

263. Arkansas abortion facilities must satisfy a variety of ongoing obligations to educate

staff about best practices to assess their own services. See Ark. Admin. Code 007.05.2-10;

007.05.2-5; 007.05-6(F),(G); 007.05.2-7(D).

64 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 65 of 159

III. Conclusions Of Law

When determining whether to grant a motion for a temporary restraining order, this Court

considers: (1) the movant’s likelihood of success on the merits; (2) the threat of irreparable harm

to the movant; (3) the balance between the harm to the movant and the injury that granting an

injunction would cause other interested parties; and (4) the public interest. Kroupa v. Nielsen, 731

F.3d 813, 818 (8th Cir. 2013) (quoting Dataphase Sys. Inc. v. CL Sys., 640 F.2d 109, 113 (8th Cir.

1981)). Preliminary injunctive relief is an extraordinary remedy, and the party seeking such relief

bears the burden of establishing the four Dataphase factors. Watkins Inc. v. Lewis, 346 F.3d 841,

844 (8th Cir. 2003). The focus is on “whether the balance of the equities so favors the movant that

justice requires the court to intervene to preserve the status quo until the merits are determined.”

Id. “Although no single factor is determinative when balancing the equities,” a lack of irreparable

harm is sufficient ground for denying a temporary restraining order. Aswegan v. Henry, 981 F.2d

313, 314 (8th Cir. 1992).

The Court examines the Dataphase factors as applied to plaintiffs’ request for a temporary

restraining order. See Dataphase, 640 F.2d at 113. Under Dataphase, no one factor is

determinative. Id. The Eighth Circuit revised the Dataphase test when applied to challenges to

laws passed through the democratic process. Those laws are entitled to a “higher degree of

deference.” Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 725, 732 (8th Cir. 2008).

In such cases, it is never sufficient for the moving party to establish that there is a “fair chance” of

success. Instead, the appropriate standard, and threshold showing that must be made by the

movant, is “likely to prevail on the merits.” Id. Only if the movant has demonstrated that it is

likely to prevail on the merits should the Court consider the remaining factors. Id.

A. Analysis Of Standing

65 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 66 of 159

Defendants challenge plaintiffs’ standing. For the reasons discussed below, the Court

concludes that, based upon the record evidence before the Court at this stage of the proceeding,

plaintiffs have standing on behalf of themselves and their patients.

1. Article III Standing

To establish Article III standing, a plaintiff must satisfy three requirements: “First, the

plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is

(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.

Second, there must be a causal connection between the injury and the conduct complained of—the

injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e]

result [of] the independent action of some third party not before the court. Third, it must be likely,

as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotes and citations omitted).

Defendants assert that plaintiffs cannot assert facial challenges on behalf of their

“hypothetical future patients.” (Dkt. No. 43, at 35). Under a long established rule, however, it is

“appropriate to allow a physician to assert the rights of women patients as against governmental

interference with the abortion decision.” Singleton v. Wulff, 428 U.S. 106, 118 (1976); see Whole

Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2296 (2016) (deciding physicians’ and clinics’

42 U.S.C. § 1983 action against abortion restrictions on behalf of themselves and their patients).

There are many cases recognizing that an abortion provider may sue to enjoin, as violations of the

United States Constitution or federal law through 42 U.S.C. § 1983, state laws that restrict

abortion. “These cases emphasize not the harm to the abortion clinic of making abortions very

difficult to obtain legally, though that might be an alternative ground for recognizing a clinic’s

standing, but rather ‘the confidential nature of the physician-patient relationship and the difficulty

66 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 67 of 159

for patients of directly vindicating their rights without compromising their privacy,’ as a result of

which ‘the Supreme Court has entertained both broad facial challenges and pre-enforcement as-

applied challenges to abortion laws brought by physicians on behalf of their patients.’” Planned

Parenthood of Wisconsin, Inc. v. Schimel, 806 F.3d 908, 910 (7th Cir. 2015) (quoting Isaacson v.

Horne, 716 F.3d 1213, 1221 (9th Cir. 2013)).

Further, the United States Supreme Court held in Doe v. Bolton, 410 U.S. 179, 188 (1973),

that abortion doctors have first-party standing to challenge laws limiting abortion when, as in Doe

and the current case, the doctors are subject to penalties for violation of the laws. See Planned

Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 903-04, 909 (1992) (plurality opinion);

Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 62 (1976); Schimel, 806 F.3d

at 911.

Defendants point to Kowalski v. Tesmer, 543 U.S. 125, 129 (2004), and assert that this case

stands for the proposition that third-party standing has been approved only when the litigant asserts

rights of known claimants, not hypothetical ones. This argument is unconvincing, as Kowalski

cites Doe v. Bolton and explicitly distinguishes third-party standing in the abortion context. 543

U.S. at 130.

Defendants also assert that plaintiffs’ lack standing because, “[w]hen a state enacts

regulations to protect the health and safety of abortion patients and to promote dignity and respect

for the unborn child, the interests of physicians and patients diverge.” (Dkt. No. 43, at 36).

Defendants claim that this presents a conflict of interest between providers and patients, and third-

party standing is forbidden if the interests of the litigant and the third-party rights-holder are even

“potentially in conflict.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 15 (2004); see also

Kowalski, 543 U.S. at 135 (Thomas, J., concurring) (noting that third-party standing is disallowed

67 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 68 of 159

when the litigants “may have very different interests from the individuals whose rights they are

raising”); Canfield Aviation, Inc. v. Nat’l Transp. Safety Bd., 854 F.2d 745, 748 (5th Cir. 1988)

(“[C]ourts must be sure . . . that the litigant and the person whose rights he asserts have interests

which are aligned.”).

This argument could be made with respect to any abortion regulation that purports to

advance a valid state interest, but courts have repeatedly allowed abortion providers to challenge

such laws, determining that the providers’ and women’s interests are aligned and not adverse. See,

e.g., Bellotti v. Baird, 443 U.S. 622, 627 n.5 (1979) (holding that a physician plaintiff had standing

to raise his minor patients’ claims to determine whether a parental consent law should be upheld

to protect the alleged vulnerability of minors); Charles v. Carey, 627 F.2d 772, 779 n.10 (7th Cir.

1980) (rejecting the state’s claim of conflict of interest in a challenge to a counseling law designed

to “protect women from abusive medical practices”). This argument has not defeated a providers’

standing to challenge contraception restrictions. See Carey v. Population Servs. Int’l, 431 U.S.

678, 683-84, 690 (1977) (granting third-party standing where the government defended a

contraception restriction based on its interest in protecting health); Eisenstadt v. Baird, 405 U.S.

438, 445-46, 450 (1972) (allowing a plaintiff to raise the rights of others seeking contraception

where the government defended a restriction as “regulating the distribution of potentially harmful

articles”).

Furthermore, to the extent there is record evidence in this case that women who have had

abortions regret those abortions or felt pressured into obtaining an abortion, the Court is

unconvinced that such record evidence demonstrates a conflict of interest since Arkansas mandates

pre-abortion counseling with informed consent, Ark. Admin. Code § 007.05.2-7 (“prior to the

abortion, the patient shall be counseled regarding the abortion procedure, alternatives to abortion,

68 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 69 of 159

informed consent, medical risks associated with the procedure, potential post-abortion

complications, community resources and family planning” and “documentation of counseling shall

be included in the patient’s medical record . . . .”), and imposes a 48-hour, soon to be 72-hour, 4

waiting period between an initial consultation and an abortion.

Defendants maintain that because there is no allegation of a “hinderance” preventing

plaintiffs’ patients from bringing their own suits, plaintiffs lack standing. This argument fails

because the Supreme Court in Singleton states that the “hindrance” prong of the third-party

standing doctrine is satisfied in abortion cases. 428 U.S. at 117.

At this stage, defendants also argue that LRFP specifically lacks standing to challenge Act

700’s OBGYN requirement because it creates “no legal impediment to [its] employment of

qualified abortion practitioners.” (Dkt. No. 43, at 42). The Court is unconvinced by this argument:

the Supreme Court in Hellerstedt allowed clinics to challenge a surgical-center requirement where

the cost of complying with that requirement was $1.5 to $3 million per clinic. Hellerstedt, 136 S.

Ct. at 2302-03.

By arguing that plaintiffs have not made sufficient efforts to comply with the OBGYN

requirement, defendants are essentially arguing that the alleged constitutional injury to Arkansas

women—that in a large fraction of the cases in which the OBGYN requirement is relevant, it will

purportedly operate as a substantial obstacle to a woman’s choice to undergo an abortion—is not

caused by defendants, but by plaintiffs. To establish standing, the injury must be “fairly traceable”

4 On April 20, 2019, Arkansas enacted a new law requiring a 72-hour waiting period between a woman’s consultation with a doctor concerning a possible abortion and any abortion procedure, except where it “will cause substantial and irreversible impairment of a major bodily function.” 2019 Ark. Acts 801, to be codified at Ark. Code Ann. §§ 20-16-1109, -1703(b), -1706. This law goes into effect on July 24, 2019. There is no record evidence that any party has challenged this new law. 69 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 70 of 159

to the defendant’s conduct. Lexmark Intern., Inc. v. Static Control Components, 572 U.S. 118,

125 (2014). The record evidence at this stage indicates that plaintiffs have attempted to comply

with the OBGYN requirement and have in fact been able to find some board-certified OBGYNs

to provide abortion care. Some record evidence also shows, however, that those board-certified

OBGYNs cannot provide enough abortion care to satisfy the need for abortion care at LRFP and

PPAEO Little Rock. The Court is satisfied at this stage of the proceedings based on the record

evidence before it that the OBGYN requirement—and not plaintiffs’ failure to attempt to comply

with the OBGYN requirement—is the proximate cause of the impending shortfall of abortion care

at LRFP and PPAEO Little Rock. Accordingly, the Court finds that the record evidence at this

stage of the proceeding demonstrates that plaintiffs’ injuries are “fairly traceable” to the OBGYN

requirement and that plaintiffs have Article III standing.

2. 42 U.S.C. § 1983 Standing

Defendants also contend that plaintiffs cannot assert third-party rights under 42 U.S.C. §

1983 because, defendants claim, § 1983 extends only to litigants who assert their own rights. There

is no language in the statute that supports this argument. See 42 U.S.C. § 1983 (providing in

pertinent part, “Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected,

any citizen of the United States or other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .“). This

Court agrees with the reasoning of the Seventh Circuit Court of Appeals on this point and rejects

defendants’ argument regarding standing under § 1983. See Planned Parenthood of Wisconsin,

Inc. v. Van Hollen, 738 F.3d 786, 794-95 (7th Cir. 2013) (“Van Hollen III”). The Supreme Court

70 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 71 of 159

has repeatedly allowed abortion providers to raise the rights of their patients in cases brought under

§ 1983, and this Court will do the same. See e.g., Hellerstedt, 136 S. Ct. 2292; Gonzales v.

Carhart, 550 U.S. 124, 168 (2007); Ayotte v. Planned Parenthood of N. New England, 546 U.S.

320, 324-25 (2006) (noting that plaintiffs raised patients’ claims in suit under 42 U.S.C. § 1983);

Bellotti, 428 U.S. at 136 (same).

3. Standing To Challenge Acts’ Private Rights Of Action

Defendants also contend that plaintiffs lack standing to challenge the Acts’ “private rights

of action because any injury to Plaintiffs is not ‘fairly traceable’ to the Defendants.” (Dkt. No. 43,

at 41). Acts 493 and 619 both contain private rights of action that allow women who have obtained

abortions to bring actions against an abortion provider. See Act 493, § 1, to be codified at Ark.

Code Ann. § 20-16-2006(d); Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2005(b)(1).

Specifically, defendants argue that since these Acts provide for “enforcement only through private

actions for damages,” this Court lacks jurisdiction over any claim against governmental actors who

have no authority to enforce the private rights of action in the Acts.

The Court concludes that plaintiffs do have standing to challenge the Acts because each of

the challenged acts provide for criminal prosecution, civil penalties, and professional sanctions

enforceable by the State. See Act 493, § 1, to be codified at Ark. Code Ann. § 20-16-2006(a)-(e);

Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2005(a)-(d); Act 700, § 1, to be codified at

Ark. Code Ann. § 20-16-605(b). The case cited by defendants, Digital Recognition Network, Inc.

v. Hutchinson, 803 F.3d 952, 957-58 (8th Cir. 2015), is inapposite to the present matter because

there the attorney general and governor lacked authority to enforce the challenged statute. 803

F.3d at 958. Here, the challenged Acts do grant the State authority to impose criminal, civil, and

professional sanctions upon abortion providers. See, e.g., Casey, 505 U.S. at 887-88 (majority

71 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 72 of 159

opinion) (noting, as to spousal notification law the Court struck down, that “[a] physician who

performs an abortion” for a married woman without spousal notice “will have his or her license

revoked, and is liable to the husband for damages”). The private rights of action present in the

challenged Acts do not deprive this Court of jurisdiction to address the constitutionality of the

Acts.

B. Facial v. As-Applied Challenges

Constitutional challenges to these Acts may be deemed “facial” or “as-applied” challenges.

Facial challenges to statutes affecting abortions may succeed only if a plaintiff can show that “in

a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle

to a woman’s choice to undergo an abortion.” Casey, 505 U.S. at 895 (majority opinion); see

Hellerstedt, 136 S. Ct. at 2318 (striking down an admitting privileges requirement because the law

“provides few, if any, health benefits for women” and “poses a substantial obstacle to women

seeking abortions”); Planned Parenthood of Arkansas & Eastern Oklahoma v. Jegley, 864 F.3d

953, 959 (8th Cir. 2017) (“[I]n order to sustain a facial challenge and grant a preliminary

injunction, the district court was required to make a finding that the Act’s contract-physician

requirement is an undue burden for a large fraction of women seeking medication abortions in

Arkansas.”); id. at 690 n.9 (“The question here . . . is whether the contract-physician requirement’s

benefits are substantially outweighed by the burdens it imposes on a large fraction of women

seeking medication abortion in Arkansas.”); see also Planned Parenthood Minn., N.D., S.D. v.

Rounds, 653 F.3d 662, 667-68 (8th Cir. 2011), vacated in part on reh’g en banc sub nom. Planned

Parenthood Minn., N.D., S.D. v. Rounds, 662 F.3d 1072 (8th Cir. 2011) and in part on reh’g en

banc sub nom. Planned Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889 (8th Cir. 2012);

see also Rounds, 530 F.3d at 733 n.8 (“Rounds cases”). In Gonzales, the Supreme Court stated

72 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 73 of 159

that, while the plaintiffs had failed to satisfy the “large fraction” test under Casey and were not

entitled to facial relief, the challenged law would be open “to a proper as-applied challenge in a

discrete case.” 550 U.S. at 168.

Having recognized this distinction in the types of challenges that may be brought, the Court

also notes that the distinction between facial and as-applied challenges is not always apparent. See

Hellerstedt, 136 S. Ct. at 2307 (“Nothing prevents this Court from awarding facial relief as the

appropriate remedy for petitioners’ as-applied claims.”); see also Richard R. Fallon, Jr., Fact and

Fiction about Facial Challenges, 99 Cal. L. Rev. 915, 922 (2011). For the reasons set forth below,

at this stage of the proceeding, the Court concludes that plaintiffs are entitled to facial relief against

Acts 493 and 619 and as-applied relief as to Act 700.

C. Law Directed At Pre-Viability Abortions

“[I]t is a constitutional liberty of the woman to have some freedom to terminate her

pregnancy.” Casey, 505 U.S. at 869. This right is grounded in the right to privacy rooted in the

Fourteenth Amendment’s concept of personal liberty, which was found to be “broad enough to

encompass a woman’s decision whether or not to terminate her pregnancy.” Roe v. Wade, 410

U.S. 113, 153 (1973). This right is not “unqualified” and is balanced “against important state

interests in regulation,” eventually drawing a line between a woman’s privacy right and the State’s

interest in protecting the potential life of a fetus at viability. Roe, 410 U.S. at 154. Part of Roe’s

essential holding is “a recognition of the right of the woman to choose to terminate a pregnancy

before viability and to obtain it without undue interference from the State. Before viability, the

State’s interests are not strong enough to support a prohibition of abortion or the imposition of a

substantial obstacle to the woman’s effective right to elect the procedure.” Casey, 505 U.S. at 846.

73 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 74 of 159

“A State may not prohibit any woman from making the ultimate decision to terminate her

pregnancy before viability.” Id. at 879.

The Supreme Court in Gonzales acknowledged that

[T]he State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, [and this premise] cannot be set at naught by interpreting Casey’s requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.

550 U.S. at 158. The Court acknowledges that the state may, in a valid exercise of its police power,

regulate abortion. The state’s police power is, however, limited where a protected liberty interest

is at stake. Casey, 505 U.S. at 851 (majority opinion). “The State’s interest in regulating abortion

previability is considerably weaker than postviability.” Stenberg v. Carhart, 530 U.S. 914, 930

(2000) (citing Casey, 505 U.S. at 870 (majority opinion)).

Although some argued that the Supreme Court’s decision in Gonzales in which the Court

chose to “assume” Casey’s principles for purposes of its opinion, may have signaled the Court’s

willingness to reevaluate abortion jurisprudence, see Gonzales, 550 U.S. at 145-46, more recently,

in Hellerstedt, the Supreme Court observed that viability is the “relevant point at which a State

may begin limiting women’s access to abortion for reasons unrelated to maternal health.” 136 S.

Ct. at 2320 (quoting Casey, 505 U.S. at 878 (plurality opinion)). The Court acknowledges that the

state can impose regulations aimed at ensuring a thoughtful and informed choice, but only if such

regulations do not unduly burden the right to choose. Casey, 505 U.S. at 872.

Generally, the state has the burden of demonstrating a link between the legislation it enacts

and what it contends are the state’s interests. See Akron v. Akron Center for Reproductive Health,

Inc., 462 U.S. 416, 430 (1983), overruled on other grounds by Casey, 505 U.S. 833 (describing

74 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 75 of 159

the burden as that of the state). As a part of the Court’s inquiry, the Court may take into account

the degree to which the restriction is over-inclusive or under-inclusive, see, e.g., Hellerstedt, 136

S. Ct. at 2315 (discussing over- and under-inclusive scope of the provision), and the existence of

alternative, less burdensome means to achieve the state’s goal, including whether the law more

effectively advances the state’s interest compared to prior law, id. (noting that prior state law was

sufficient to serve asserted interest); id. at 2314 (“The record contains nothing to suggest that [the

challenged provisions] would be more effective than pre-existing [state] law at deterring

wrongdoers . . . from criminal behavior.”).

The Eighth Circuit Court of Appeals has previously examined arguments and record

evidence related to viability and the State’s ability to restrict abortion before viability. See

Edwards v. Beck, 786 F.3d 1113, 1119 (8th Cir. 2015) (per curiam); MKB Management Corp. v.

Stenehjem, 795 F.3d 768 (8th Cir. 2015). The court explained that prohibitions on abortions pre-

viability, even when they contain limited exceptions, are per se unconstitutional under binding

Supreme Court precedent. Edwards, 786 F.3d at 1117; MKB Mgmt., 795 F.3d at 771. In Edwards,

the court invalidated a prior Arkansas law that prohibited nearly all abortions starting at 12 weeks

LMP, explaining that “a State may not prohibit any woman from making the ultimate decision to

terminate her pregnancy before viability.” Edwards, 786 F.3d at 1117 (quoting Casey, 505 U.S.

at 879).

In MKB Management, the court like the Supreme Court in Gonzales assumed the principles

of Casey, which this Court cites. MKB Mgmt., 795 F.3d at 772 (quoting Gonzales, 550 U.S. at

146 (alteration in original) (citations omitted) (quoting Casey, 505 U.S. at 879, 878, and 877

(plurality opinion)). Further, the MKB Management Court acknowledged that, just as the court is

bound by the Supreme Court’s assumption of the principles announced in Casey, the court is also

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bound by the Supreme Court’s “statement that viability is the time ‘when, in the judgment of the

attending physician on the particular facts of the case before him, there is a reasonable likelihood

of the fetus’ sustained survival outside the womb, with or without artificial support.’” MKB Mgmt.,

795 F.3d at 772-73 (quoting and citing Colautti v. Franklin, 439 U.S. 379, 388 (1979)); see also

Casey, 505 U.S. at 870 (plurality opinion) (“[T]he concept of viability. . . is the time at which there

is a realistic possibility of maintaining and nourishing a life outside the womb. . . .”); Roe, 410

U.S. at 160, 163 (stating that a fetus becomes viable when it is “potentially able to live outside the

mother’s womb, albeit with artificial aid” and that viability is the point at which the fetus

“presumably has the capability of meaningful life outside the mother’s womb”). Further, this

Court observes that the Supreme Court has expressly determined that a state may not “proclaim

one of the elements entering into the ascertainment of viability—be it weeks of gestation or fetal

weight or any other single factor—as the determinant of when the State has a compelling interest

in the life or health of the fetus. Viability is the critical point.” Colautti, 439 U.S. at 388-89.

The Eighth Circuit does not stand alone in following controlling Supreme Court precedent

when it comes to prohibitions on pre-viability abortions. Laws that restrict pre-viability abortions

have consistently been deemed unconstitutional in courts across the United States. See Planned

Parenthood of Indiana & Kentucky, Inc. v. Comm’r, Indiana State Dep’t of Health, 265 F. Supp.

3d 859, 866 (S.D. Ind. 2017), aff’d sub nom. 888 F.3d 300 (7th Cir. 2018), reh’g en banc granted,

judgment vacated, 727 F. App’x 208 (7th Cir. 2018), vacated, 917 F.3d 532 (7th Cir. 2018), and

cert. granted in part, judgment rev’d on other grounds sub nom. Box v. Planned Parenthood of

Indiana & Kentucky, Inc., 139 S. Ct. 1780 (2019) (holding state law unconstitutional because it

prohibited abortions prior to viability if the abortion was sought for a particular purpose, including

solely because of the sex of the fetus, solely because the fetus has been diagnosed with or has a

76 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 77 of 159

potential diagnosis of any other disability, or solely because of the race, color, national origin, or

ancestry of the fetus); MKB Mgmt., 795 F. 3d at 744; McCormack v. Herzog, 788 F.3d 1017, 1029

(9th Cir. 2015) (holding state law unconstitutional because it prohibited abortions 20 or more

weeks postfertilization, regardless of fetus attaining viability); Isaacson, 716 F.3d at 1217 (same);

Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 201 (6th Cir. 1997) (striking down ban

on most common procedure used to provide abortion in the second trimester); Jane L. v. Bangerter,

102 F.3d 1112, 1114, 1117-18 (10th Cir. 1996) (holding state law unconstitutional because it

prohibited abortions 20 or more weeks gestational age); Sojourner T. v. Edwards, 974 F.2d 27, 29,

31 (5th Cir. 1992) (holding state law unconstitutional because it prohibited all abortions with few

exceptions); Guam Soc’y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1368-69 (9th

Cir. 1992) (same); Jackson Women’s Health Org. v. Dobbs, 379 F. Supp. 3d 549 (S.D. Miss. May

24, 2019) (preliminarily enjoining ban on abortion starting when cardiac activity is detectable),

appeal docketed, Case No. 19-60455 (5th Cir. June 24, 2019); EMW Women’s Surgical Ctr. v.

Meier, 373 F. Supp. 3d 807 (W.D. Ky. May 10, 2019) (holding state law unconstitutional that

required performance of a fetal-demise procedure prior to evacuation phase of a dilation and

evacuation abortion procedure), appeal docketed, Case No. 19-5516 (6th Cir. May 15, 2019);

Bryant v. Woodall, 363 F. Supp. 3d 611, 630-32 (M.D. N.C. 2019) (holding state law

unconstitutional when it prohibited most abortions after 20 weeks of pregnancy), appeal docketed,

Case No. 19-1685 (4th Cir. June 26, 2019); Jackson Women’s Health Org. v. Currier, 349 F. Supp.

3d 536, 540 (S.D. Miss. 2018) (holding state law unconstitutional because it prohibited abortions

after 15 weeks gestation except in medical emergency or in case of severe fetal abnormality),

appeal docketed, Case No. 18-60868 (5th Cir. Dec. 17, 2018); Preterm Cleveland v. Hines, 294 F.

Supp. 3d 746, 755 (S.D. Ohio 2018), appeal argued Case No. 18-3329 (6th Cir. Jan. 30, 2019)

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(granting preliminary injunction motion regarding constitutionality of state law prohibiting

abortions based off fetal indication of Down syndrome), appeal docketed, Case No. 18-3329 (6th

Cir. April 12, 2018).

Based on record evidence, “[i]t is commonly accepted in the field of OBGYN that a

normally developing fetus will not attain viability until at least 24 weeks LMP. However, not all

fetuses attain viability even at that stage, due to a variety of factors, such as renal agenesis (absence

of kidneys), anencephaly (profound neural tube defect), and hydrocephaly (where the skull is filled

with fluid).” (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 29); see also Casey, 505 U.S. at

860 (viability is weeks after 18 weeks). Defendants at this stage have come forward with no

reliable, generally accepted medical or scientific record evidence to refute this. Even if the Court

were willing to reconsider established precedent on fetal viability, it would not do so on this record.

Based on record evidence, only the following types of abortion care are available in

Arkansas currently: medication abortions which are available only up to 10 weeks LMP, aspiration

surgical procedures, performed until approximately 13 weeks LMP, and D&E surgical procedures,

which are performed until 21.6 weeks LMP (Decl. of Jason Lindo, Ph.D. ¶ 11). As a result, the

Court determines that Act 493 and Act 619 implicate this analysis of laws directed at pre-viability

abortions.

1. Analysis Of Act 493

Act 493 of 2019 amends Arkansas Code Title 20, Chapter 15 to add an additional

Subchapter 20 that bans abortion “if the probable gestational age of the unborn human being is

determined to be greater than 18 weeks,” as measured from the first day of a woman’s last

menstrual period in nearly all cases (“Act 493”). See Act 493, to be codified at Ark. Code Ann. §

20-16-2004(b). Act 493 specifically prohibits a person from “intentionally or knowingly”

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performing, inducing, or attempting to perform or induce an abortion, if the probable gestational

age is determined “to be greater than eighteen (18) weeks’ gestation,” as measured “from the first

day of the last menstrual period of the pregnant woman.” Ark. Code Ann. §§ 20-16-2004(b); 20-

16-2003(9).

Act 493 includes two exceptions: (1) in the case of a “medical emergency,” narrowly

defined as “a condition that, on the basis of the physician’s good faith clinical judgment,

necessitates an abortion to preserve the life of the pregnant woman whose life is endangered by a

physical [condition] . . . or when the condition of the pregnancy will create a serious risk of

substantial and irreversible impairment of a major bodily function,” Arkansas Code Annotated §§

20-16-2004(b); 20-16-2003(6), (7); and (2) where the pregnancy is the result of rape or incest, as

defined by Arkansas Code, Arkansas Code Annotated § 20-16-2004(b).

A violation of Act 493 constitutes a Class D felony, which is punishable by up to six years

in prison and a fine of up to $10,000.00. Ark. Code Ann. §§ 5-4-201, -401, 20-16-2006(a)(1).

Any physician who violates Act 493 also is subject to mandatory license suspension or revocation

by the Arkansas State Medical Board. Ark. Code Ann. § 20-16-2006(b).

For the following reasons, the Court concludes that Act 493 unconstitutionally restricts

pre-viability abortions and, therefore, is facially unconstitutional.

a. Act 493: Analysis Of State’s Asserted Interest

As part of evaluating the benefits of a regulation, this Court must evaluate the Arkansas

legislature’s findings when enacting the regulation. The Arkansas legislature, when enacting Act

493, included legislative findings and intent (Dkt. No. 2-1, at 6-9).

In Hellerstedt, the Supreme Court clarified that arguments “that legislatures, and not courts,

must resolve questions of medical uncertainty is also inconsistent with this Court’s case law.” 136

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S. Ct. at 2310. Instead, the Supreme Court, “when determining the constitutionality of laws

regulating abortion procedures, has placed considerable weight upon evidence and argument

presented in judicial proceedings.” Id. The Supreme Court, citing its Casey, 505 U.S. 833, and

Gonzales, 550 U.S. 124, decisions, reaffirmed that a court reviews legislative fact finding under a

“deferential standard” but “must not ‘place dispositive weight’” on those findings. Hellerstedt,

136 S. Ct. at 2310 (citing and quoting Gonzales, 550 U.S. at 165). The Court stated that the “Court

retains an independent constitutional duty to review factual findings where constitutional rights

are at stake.” Id. (emphasis in original) (quoting Gonzales, 550 U.S. at 165). Where record

evidence contradicts some legislative findings, uncritical deference to the legislative factual

findings is inappropriate. Id.

The Arkansas legislature made several legislative findings when enacting Act 493; the

Court examines them to determine whether they conflict with the Court’s findings. The Court has

given the legislature’s findings careful consideration. Here, based on the evidence presented,

binding legal precedent, and the Supreme Court’s Hellerstedt majority opinion, deference to the

Arkansas legislature’s factual findings would be inappropriate. Specifically, to the extent the State

recites findings regarding prenatal development of a fetus, those findings contradict binding

Supreme Court precedent with respect to how viability is to be determined as explained in this

Order. See Act 493, § 1, to be codified at Ark. Code Ann. § 20-16-2002 (a)(2)(A) to (F) (reciting

purported milestones in fetal development that do not equate with viability as defined by the Eighth

Circuit Court of Appeals and Supreme Court). Because the legislative findings and any asserted

State interest consistent with those findings are inconsistent with binding legal precedent related

to this Court’s examination of abortion laws and viability, and because there is no competent record

evidence to permit this Court to re-evaluate this precedent, the Court rejects the Arkansas

80 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 81 of 159

legislature’s findings and the State’s asserted interest on this basis as unconstitutional. MKB

Mgmt., 795 F.3d at 773 (quoting and citing Colautti, 439 U.S. at 388; see also Casey, 505 U.S. at

870 (plurality opinion) (“[T]he concept of viability. . . is the time at which there is a realistic

possibility of maintaining and nourishing a life outside the womb. . . .”); Roe, 410 U.S. at 160, 163

(stating that a fetus becomes viable when it is “potentially able to live outside the mother’s womb,

albeit with artificial aid” and that viability is the point at which the fetus “presumably has the

capability of meaningful life outside the mother’s womb”)); (Decl. of Frederick W. Hopkins, M.D.,

M.P.H., ¶ 29); (Decl. of Donna J. Harrison, M.D., ¶ 56).

To the extent the State recites legislative findings purportedly drawn from Casey and Roe,

those findings fail to account for controlling Eighth Circuit Court of Appeals and Supreme Court

precedent as it relates to pre-viability abortion prohibitions. See Act 493, § 1, to be codified at

Ark. Code Ann. § 20-16-2002(a)(3) (reciting purported holdings from Casey and Roe that

disregard binding precedent related to pre-viability abortions).

To the extent the State recites legislative findings that call into question the safety of

abortion, these findings are simply “incorrect.” Gonzales, 550 U.S. at 165. The evidence in this

case, which is examined in more detail in subsequent sections of this Order, and in the prior cases

cited by this Court including Hellerstedt, makes clear, at least at this stage of the proceeding, that

the procedures are remarkably safe. On these matters, deference to the Arkansas legislature’s

factual findings would be inappropriate. Id. Having resolved this, the Court turns to analyze the

constitutionality of Act 493.

b. Act 493: Analysis Of Claimed Burden

Because Act 493 prohibits nearly all abortions before viability, despite its limited

exceptions, it is unconstitutional under controlling precedent. Edwards, 786 F.3d at 1117; MKB

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Mgmt., 795 F.3d at 771. It is the view of the Court that the undue burden test does not apply to its

analysis of Act 493. This Act is far greater than a “substantial obstacle in the path of a woman’s

choice,” as described in the undue burden test. Hellerstedt, 136 S. Ct. at 2312 (citing Casey, 505

U.S. at 877 (plurality opinion)). Instead, Act 493 prohibits pre-viability abortions past 18 weeks

LMP, which the Supreme Court has clearly held is a prohibition that cannot be imposed by the

State. Casey, 505 U.S. at 879. This Court is not alone in refusing to apply the undue burden

standard when presented with state laws that unconditionally eliminate the right to abort a

nonviable fetus for a defined class of women. See Isaacson, 716 F.3d 1225 (finding undue burden

analysis to “have no place where” state is “forbidding certain women from choosing pre-viability

abortions”).

The narrow exceptions to Act 493 do not change the constitutional analysis or this Court's

determination at this stage of the proceeding. See, e.g., Casey, 505 U.S. at 879 (“Regardless of

whether exceptions are made for particular circumstances, a State may not prohibit any woman

from making the ultimate decision to terminate her pregnancy before viability.”); Edwards, 786

F.3d at 1117 (same); Isaacson, 716 F.3d at 1227-28 (holding that “while a health exception is

necessary to save an otherwise constitutional post-viability abortion ban from challenge, it cannot

save an unconstitutional prohibition on the exercise of a woman's right to choose to terminate her

pregnancy before viability.”).

If in any event, even if the Court were to apply the undue burden analysis and the “large

fraction” test from Hellerstedt, Casey, and Jegley, considering all of the burdens presented in the

record evidence at this stage of the proceedings and the controlling precedents, the Court finds

that, for a large fraction of women seeking abortions in Arkansas after 18 weeks LMP, Jegley, 864

F.3d at 959, Act 493 “places a ‘substantial obstacle in the path of a woman’s choice.’” Hellerstedt,

82 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 83 of 159

136 S. Ct. at 2312 (citing Casey, 505 U.S. at 877 (plurality opinion)). Act 493 prohibits nearly all

abortions after 18 weeks LMP, despite its limited exceptions (Decl. of Thomas Tvedten, M.D., ¶

42 (explaining that, if Act 493 is allowed to take effect, to avoid criminal penalties, civil suits, and

disciplinary sanctions, he will stop performing abortions, as will other physicians at LRFP, in cases

where the pregnancy is determined to be greater than 18 weeks LMP); ¶ 40 n.4 (examining effect

of the “extremely narrow medical crisis exception”)); (Decl. of Frederick W. Hopkins, M.D.,

M.P.H., ¶ 34 (same)); (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶¶ 22-23 (same)). Ms. Williams

testified that LRFP has patients who currently receive abortions who would no longer be able to

obtain those services with LRFP if Act 493 goes into effect. Accordingly, for those women to

whom Act 493 is an obstacle, it is an insurmountable impediment to such women receiving an

abortion. Therefore, Act 493 is unconstitutional.

2. Analysis Of Act 619

Act 619 amends Arkansas Code Title 20, Chapter 16 to add an additional Subchapter 20

that prohibits a physician from intentionally performing or attempting to perform an abortion “with

the knowledge” that a pregnant woman is seeking an abortion “solely on the basis” of: (1) a test

“indicating” Down syndrome; (2) a prenatal diagnosis of Down syndrome; or (3) “[a]ny other

reason to believe” the “unborn child” has Down syndrome. Act 619, § 1, to be codified at Ark.

Code Ann. § 20-16-2003.

Act 619 defines “unborn child” as “offspring of human beings form conception until birth.”

Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2002(4). Ark. Code Ann. § 60-16-2002(4).

The Court will use this term when discussing Act 619. However, because this definition is

inconsistent with binding legal precedent related to this Court’s examination of abortion laws and

viability, and because there is no competent record evidence to permit this Court to re-evaluate

83 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 84 of 159

this precedent, the Court rejects the Arkansas legislature’s definition as unconstitutional. MKB

Mgmt., 795 F.3d at 772-73 (quoting and citing Colautti, 439 U.S. at 388); see also Casey, 505 U.S.

at 870 (plurality opinion) (“[T]he concept of viability . . . is the time at which there is a realistic

possibility of maintaining and nourishing a life outside the womb . . . .”); Roe, 410 U.S. at 160,

163 (stating that a fetus becomes viable when it is “potentially able to live outside the mother’s

womb, albeit with artificial aid” and that viability is the point at which the fetus “presumably has

the capability of meaningful life outside the mother’s womb”). Further, Act 619’s prohibition

applies to all abortions throughout the period of pregnancy, both pre-viability and subsequent to

viability, with the legislature including a severability provision. Act 619, § 1, to be codified at

Ark. Code Ann. § 20-16-2003(c).

The Act requires physicians, prior to performing the abortion, to ask the pregnant woman

if she is aware of any test results, prenatal diagnosis, or any other evidence that the unborn child

may have Down syndrome. Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2003(b)(1).

If the pregnant woman knows of such evidence, the physician who is performing the abortion must

inform the woman of the prohibition of abortions solely on the basis of Down syndrome; and

request the woman’s medical records to determine the possibility of any previous abortions

relevant to evidence of a possible Down syndrome diagnosis. Act 619, § 1, to be codified at Ark.

Code Ann. § 20-16-2003(b)(2)(A)-(B). After request of the medical records, the physician is

prohibited from performing the abortion for fourteen days. Act 619, § 1, to be codified at Ark.

Code Ann. § 20-16-2003(b)(3).

Act 619 exempts a physician if he or she acts to: (1) necessarily save the life or preserve

the health of the “unborn child” or pregnant woman, Act 619, § 1, to be codified at Arkansas Code

Annotated § 20-16-2002(1)(B)(i); (2) remove a dead “unborn child” caused by spontaneous

84 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 85 of 159

abortion or ectopic pregnancy, Ark. Code Ann. § 20-16-2002(1)(B)(ii); or (3) when the pregnancy

resulted from rape or incest, id. § 20-16-2003(d). Violation of Act 619 constitutes a Class D

felony, which is punishable by up to six years in prison and a fine up to $10,000. Ark. Code Ann.

§§ 5-4-201,-401; Act 619, § 1, to be codified at § 20-16-2004. In addition, Act 619 requires that

the Arkansas State Medical Board revoke the license of a physician who violates its mandate, Act

619, § 20-16-2005(c), and makes that physician liable in a civil action for actual and punitive

damages to “any woman who receives an abortion in violation of [Act 619]. . . , the parent or legal

guardian of the woman if the woman is an [unemancipated] minor, or the legal guardian of the

woman if the woman has been adjudicated incompetent,” Arkansas Code Annotated § 20-16-

2004(b)(1)-(2).

Act 619 exempts women from having abortions in violation of the Act from criminal

prosecution and civil liability. Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2006(a).

Specifically, in criminal proceedings, the woman who receives or attempts to receive an abortion

in violation of the Act “is entitled to all rights, protections, and notifications afforded to crime

victims.” Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2006(b). Further, in civil

proceedings, “the anonymity of the woman who receives or attempts to receive the abortion in

violation of this subchapter shall be preserved from public disclosure unless she gives her consent

to disclosure.” Act 619, § 1, to be codified at Ark. Code Ann. § 20-16-2006(c).

For the following reasons, the Court concludes that Act 619 unconstitutionally restricts

pre-viability abortions and, therefore, is facially unconstitutional.

a. Act 619: Severability

The prohibition in Act 619 applies to nearly all abortions with limited exceptions

throughout the period of pregnancy, both pre-viability and subsequent to viability, with the

85 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 86 of 159

legislature including a severability provision. Act 619, § 1, to be codified at Ark. Code Ann. § 20-

16-2003(c). When confronting a constitutional flaw in a statute, a federal court must “try not to

nullify more of a legislature’s work than is necessary.” Ayotte, 546 U.S. at 329. It is preferable

“to enjoin only the unconstitutional applications of a statute while leaving other applications in

force, or to sever its problematic portions while leaving the remainder intact.” 546 U.S. at 329

(citations omitted). Severability is a matter of state law. See Russell v. Burris, 146 F.3d 563, 573

(8th Cir. 1998). Under Arkansas law, “an act may be unconstitutional in part and yet be valid as

to the remainder.” Ex Parte Levy, 163 S.W.2d 529 (1942). In determining whether a

constitutionally invalid portion of a legislative enactment is fatal to the entire legislation, the

Supreme Court of Arkansas looks to “(1) whether a single purpose is meant to be accomplished

by the act; and (2) whether the sections of the act are interrelated and dependent upon each other.”

U.S. Term Limits, Inc. v. Hill, 872 S.W.2d 349, 357 (1994). Applying this standard, the Court

satisfies itself that, under the law, an examination of Act 619 with respect to pre-viability and post-

viability abortion would be warranted.

Based on record evidence, however, only the following types of abortion care are available

in Arkansas currently: medication abortions which are available only up to 10 weeks LMP,

aspiration surgical procedures, performed until approximately 13 weeks LMP, and dilation and

evacuation D&E surgical procedures, which are performed until 21.6 weeks LMP (Decl. of Jason

Lindo, Ph.D. ¶ 11).

Furthermore, based on record evidence, “[i]t is commonly accepted in the field of OBGYN

that a normally developing fetus will not attain viability until at least 24 weeks LMP. However,

not all fetuses attain viability even at that stage, due to a variety of factors, such as renal agenesis

(absence of kidneys), anencephaly (profound neural tube defect), and hydrocephaly (where the

86 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 87 of 159

skull is filled with fluid).” (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 29). Even Dr.

Harrison, the Executive Director of AAPLOG, avers that only with specialized care can some fetus

survive outside of the womb by 22 weeks, and even then the survival rate is only “as high as 40%

in some medical centers.” (Decl. of Donna J. Harrison, M.D., ¶ 56). Dr. Harrison cites no source

material or scientific studies in support of this assertion at this stage of the litigation.

Based on this record evidence, the Court concludes that, for purposes of challenging Act

619, because post-viability abortions are not performed in Arkansas currently, plaintiffs lack

standing to challenge Act 619 as applied to post-viability abortions on the record currently before

the Court. Therefore, the Court need not examine whether Act 619 is constitutional as applied to

post-viability abortions. For these reasons, the Court restricts its examination of Act 619 as applied

to the types of pre-viability abortions the record evidence indicates are performed in Arkansas.

b. Act 619: Analysis of State’s Asserted Interest

In this case, the Arkansas legislature made no findings regarding an identified set of

perceived problems with the current method of care for abortion patients that Act 619 is intended

to address. There is no record evidence of the number of Arkansas women who receive a fetal

diagnosis of Down syndrome and then opt to abort or carry a pregnancy to term. There is no record

evidence of the number of Arkansas children born over time with Down syndrome. Further, the

Arkansas legislature made no findings that Act 619 would solve such problems or do much to

solve such problems, if such problems even existed. See Casey, 505 U.S. at 845-46 (majority

opinion).

The Court acknowledges that defendants have included record evidence of women who

have had abortions claiming to regret those abortions or claiming to have felt pressured into

obtaining an abortion, specifically in circumstances involving alleged diagnosis of Down

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syndrome (see Dkt. No. 49-1, at 4-27; Decl. of Judy McGruder, ¶ 11). However, current law

makes clear that before viability, “the State’s interests are not strong enough to support a

prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to

elect the procedure.” Casey, 505 U.S. at 845-46; see MKB Mgmt., 795 F.3d at 772.

Currently, with respect to abortion providers like plaintiffs, Arkansas mandates pre-

abortion counseling with informed consent, Ark. Admin. Code § 007.05.2-7 (“prior to the abortion,

the patient shall be counseled regarding the abortion procedure, alternatives to abortion, informed

consent, medical risks associated with the procedure, potential post-abortion complications,

community resources and family planning” and “documentation of counseling shall be included

in the patient’s medical record. . . .”), and imposes a 48-hour, soon to be 72-hour, 5 waiting period

between an initial consultation and an abortion. However, undisputed record evidence confirms

that abortion providers like plaintiffs typically do not provide the genetic testing or counseling

with respect to Down syndrome that the Arkansas legislature intends to address with Act 619

(Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 29).

Record evidence demonstrates that other medical providers, usually a woman’s family

practice doctor or treating OBGYN, provide genetic testing and initial counseling and then refer a

woman to a genetic counselor or maternal-fetal specialist for further testing or counseling based

on the circumstances (Id., ¶ 29). As an initial matter, there is no record evidence that genetic tests

during pregnancy are mandatory in Arkansas. Further, there is no record evidence that Arkansas

5 On April 20, 2019, Arkansas enacted a new law requiring a 72-hour waiting period between a woman’s consultation with a doctor concerning a possible abortion and any abortion procedure, except where it “will cause substantial and irreversible impairment of a major bodily function.” 2019 Ark. Acts 801, to be codified at Ark. Code Ann. §§ 20-16-1109, -1703(b), -1706. This law goes into effect on July 24, 2019. There is no record evidence that any party has challenged this new law. 88 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 89 of 159

has taken steps to regulate the speech of relevant medical providers on this issue to ensure a

thoughtful and informed choice and to advance the State’s asserted interest. Instead, the Arkansas

legislature moved to prohibit abortion on this basis with Act 619.

To the extent the Arkansas legislature intends to move the point of viability to conception

through Act 619, this effort is inconsistent with binding legal precedent related to this Court’s

examination of abortion laws and viability, and because there is no competent record evidence to

permit this Court to re-evaluate this precedent, the Court rejects the Arkansas legislature’s effort

to do this as unconstitutional. MKB Mgmt., 795 F.3d at 772-73 (quoting and citing Colautti, 439

U.S. at 388); see Casey, 505 U.S. at 870 (plurality opinion) (“[T]he concept of viability. . . is the

time at which there is a realistic possibility of maintaining and nourishing a life outside the womb.

. . .”); Roe, 410 U.S. at 160, 163 (stating that a fetus becomes viable when it is “potentially able to

live outside the mother’s womb, albeit with artificial aid” and that viability is the point at which

the fetus “presumably has the capability of meaningful life outside the mother’s womb”).

Based on this, the Court concludes that Act 619 impacts pre-viability abortions when the

State’s interests are not strong enough to support a prohibition of abortion.

c. Act 619: Analysis of Claimed Burdens

Recently, two courts have considered provisions similar, although not identical to, Act 619.

In Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner of Indiana State

Department of Health, 888 F.3d 300, 306 (7th Cir. 2018), cert. denied, 139 S. Ct. 1780 (May 28,

2019), the Seventh Circuit Court of Appeals held unconstitutional a law prohibiting abortion

because the law prohibited abortions prior to viability if the abortion was sought for a particular

purpose, including solely because of the sex of the fetus, solely because the fetus has been

diagnosed or has a potential diagnosis of any other disability, or solely because of the race, color,

national origin, or ancestry of the fetus. In Preterm Cleveland, 294 F. Supp. at 755, the district 89 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 90 of 159

court enjoined a law that prohibited abortions sought in whole or in part on the basis of a Down

syndrome diagnosis.

Act 619 as applied to pre-viability abortions performed in Arkansas attempts to accomplish

what the Supreme Court has held impermissible. Act 619 is unconstitutional on its face as applied

to pre-viability abortions performed in Arkansas because it clearly violates well-established Eighth

Circuit and Supreme Court precedent holding that a woman may terminate her pregnancy prior to

viability, and that the State may not prohibit a woman from exercising that right solely upon the

basis on which a woman makes her decision. See Casey, 505 U.S. at 870. Before viability, “the

State’s interests are not strong enough to support a prohibition of abortion.” Planned Parenthood

of Indiana & Kentucky, Inc., 265 F. Supp. 3d at 867 (quoting Casey, 505 U.S. at 869 (“[a]t a later

point in fetal development,”—namely viability—“the State’s interest in life has sufficient force so

that the right of the woman to terminate the pregnancy can be restricted.”)). It is the view of the

Court that the undue burden test does not apply to its analysis of Act 619. Act 619 prohibits

abortions prior to viability if the abortion is sought solely based on some indication, whether by

diagnosis or any reason to believe, the fetus has Down syndrome. Act 619, § 1, to be codified at

§ 20-16-2003. This Act is far greater than a substantial obstacle, as described in the undue burden

test; the Act is an absolute prohibition on certain abortions prior to viability which the Supreme

Court has clearly held cannot be imposed by the State. Casey, 505 U.S. at 879 (plurality opinion).

This Court is not alone in refusing to apply the undue burden standard when presented with state

laws that unconditionally eliminate the right to abort a nonviable fetus for a defined class of

women. See Isaacson, 716 F.3d at 1225 (finding undue burden analysis to “have no place where

state is forbidding women from choosing pre-viability abortions”); Himes, 294 F. Supp. 3d at 754

90 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 91 of 159

(finding state law prohibiting pre-viability abortions based on Down syndrome diagnosis

unconstitutional infringement rather than appropriate law to apply undue burden test).

If in any event, even if the Court where to apply the undue burden analysis, the Court

likewise finds Act 619 not only places a “substantial,” but an insurmountable, obstacle in the path

of women to whom Act 619 applies seeking pre-viability abortions. As an initial matter, based on

the State’s asserted interests, Act 619 is over-inclusive and under-inclusive because it prohibits

nearly all pre-viability abortion based on Down syndrome when there is no record evidence that

the Arkansas legislature has availed itself of alternative, less burdensome means to achieve the

State’s asserted interest through regulations that do not unconstitutionally prohibit a woman’s right

to choose but instead are aimed at ensuring a thoughtful and informed choice. Further, Act 619

not only “burdens” the women seeking pre-viability abortions, it completely takes away the

possibility of an abortion on this basis. There is record evidence that “[m]ost women do not receive

a confirmed diagnosis of Down syndrome until well into the second trimester of pregnancy.” (Dkt.

No. 2-14, Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 25). Record evidence indicates that

amniocentesis, which is more widely available than Chorionic Villus Sampling (“CVS”), cannot

be performed until 15 weeks LMP with test results often unavailable until 17 weeks LMP (Id.).

Further, record evidence supports that a clinician performing an ultrasound may not be able to

detect any associated anatomical abnormalities before approximately 18 weeks LMP (Id.). The

record demonstrates that “[f]etal anatomy can be assessed adequately only after about 18 weeks

LMP . . . [and that] most women will not be aware of a fetal structural anomaly until at least 18

weeks LMP.” (Id., ¶ 27). This record evidence supports a conclusion that, when assessing the

burden of Act 619, the group of women for whom Act 619 is relevant is a larger group post-18

weeks of pregnancy than it may be before. At least some experts observe that, operation of the

91 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 92 of 159

challenged Acts at 18 weeks LMP, “will make it extremely difficult, if not impossible, for women

to take the time necessary to confirm a diagnosis of Down syndrome or other fetal anomaly . . . .”

The narrow exceptions to Act 619 do not change the constitutional analysis or this Court's

determination at this stage of the proceeding. See, e.g., Casey, 505 U.S. at 879 (“Regardless of

whether exceptions are made for particular circumstances, a State may not prohibit any woman

from making the ultimate decision to terminate her pregnancy before viability.”); Edwards, 786

F.3d at 1117 (same); Isaacson, 716 F.3d at 1227-28 (holding that “while a health exception is

necessary to save an otherwise constitutional post-viability abortion ban from challenge, it cannot

save an unconstitutional prohibition on the exercise of a woman's right to choose to terminate her

Thus, even if the Court were to apply the undue burden analysis and the “large fraction”

test from Hellerstedt, Casey, and Jegley, considering all of the asserted benefits and burdens

presented in the record evidence at this stage of the proceedings and the controlling precedents,

the Court finds that, for a large fraction of women seeking pre-viability abortions in Arkansas

“solely on the basis” of: (1) a test “indicating” Down syndrome; (2) a prenatal diagnosis of Down

syndrome; or (3) “[a]ny other reason to believe” the “unborn child” has Down syndrome, Act 619,

§ 20-16-2003, Act 619 “places a ‘substantial obstacle in the path of a woman’s choice.’”

Hellerstedt, 136 S. Ct. at 2312 (citing Casey, 505 U.S. at 877 (plurality opinion)).

D. Analysis Of Act 700

Act 700 of 2019, Ark. Code Ann. § 20-16-605, provides that “[a] person shall not perform

or induce an abortion unless that person is a physician licensed to practice medicine in the State of

Arkansas and is board-certified or board-eligible in obstetrics and gynecology.” Ark. Code Ann.

92 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 93 of 159

§ 20-16-605(a). 6 Act 700 makes a violation of this requirement a Class D felony and subjects the

person to revocation, suspension, or nonrenewal of the professional license of an abortion facility

or physician. Ark. Code Ann. § 20-16-605(b). A Class D felony in Arkansas is punishable by up

to six years in prison and a fine of up to $10,000.00. Ark. Code Ann. §§ 5-4-201, -401.

Before the enactment of Act 700, the law in Arkansas already required that only a physician

licensed to practice medicine in the State of Arkansas may provide abortion care. Ark. Code Ann.

§ 5-61-101(a). As a result, plaintiffs challenge that portion of Act 700 that requires the physician

to also be board-certified or board-eligible in obstetrics and gynecology. Ark. Code Ann. § 20-

16-605(a).

For the reasons discussed below, the Court is skeptical at this stage of the proceeding and

on the record evidence before it that Act 700’s OBGYN agreement confers any benefit upon

Arkansas women in the context of abortion care. Federal constitutional protection of reproductive

rights is based on the liberty interest derived from the due process clause of the Fourteenth

Amendment. Casey, 505 U.S. at 846 (majority opinion). The United States Supreme Court, when

recognizing this right, stated:

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians,

6 Further, Section 2 of Act 700 purports to alter the definition of “viable fetus” to: “‘Viability’ means the state of fetal development when, in the judgment of the physician based on the particular facts of the case before him or her and in light of the most advanced medical technology and information available to him or her, there is a reasonable likelihood of sustained survival of the unborn child outside the body of the mother, with or without artificial life support.” Ark. Code Ann. § 20-16-702(3). This language comports with controlling Eighth Circuit and Supreme Court precedent with respect to “viability.” See MKB Management, 795 F.3d at 772-73 (quoting and citing Colautti, 439 U.S. 388; see also Casey, 505 U.S. at 870 (plurality opinion) (“[T]he concept of viability. . . is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb. . . .”); Roe, 410 U.S. at 160, 163 (stating that a fetus becomes viable when it is “potentially able to live outside the mother’s womb, albeit with artificial aid” and that viability is the point at which the fetus “presumably has the capability of meaningful life outside the mother’s womb”)). Plaintiffs do not purport to challenge this portion of Act 700. 93 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 94 of 159

and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.

In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

Roe, 410 U.S. at 116.

Unless and until Roe is overruled by the United States Supreme Court, to determine

whether a state statute is unconstitutional and violates substantive due process rights in this

context, the Court applies the “undue burden” standard developed in Casey, 505 U.S. at 876-79

(plurality opinion), and Hellerstedt, 136 S. Ct. at 2309-11. This Court is bound to follow Eighth

Circuit and Supreme Court precedent.

This Court acknowledges the appeal of defendants’ “commonsense argument” that an

OBGYN requirement must confer some benefit upon Arkansas women. After a critical

examination of the record evidence to date, the Court ultimately rejects that argument at least at

this preliminary stage of the litigation and determines plaintiffs are likely to prevail on their

argument that “there [is] no significant health-related problem” Act 700 “help[s] to cure”; nor is it

“more effective than pre-existing [state] law” in furthering defendants’ asserted interests.

Hellerstedt, 136 S. Ct. at 2311, 2314.

This finding, by itself, may be enough to conclude that the OBGYN requirement unduly

burdens the right to an abortion. See Jackson Women’s Health Organization v. Currier, 320 F.

Supp. 3d 828, 841 n.9 (S.D. Miss. 2018) (“Jackson IV”). The Court notes, however, that the Eighth

Circuit’s decision in Jegley, 864 F.3d at 958-60, appears to require this Court to weigh benefits

and burdens, even in the absence of any record evidence showing benefits caused by the OBGYN

requirement. Furthermore, as Dr. Ho has withdrawn from the motion for temporary restraining

94 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 95 of 159

order and/or preliminary injunction, the Court will treat the present motion as an as-applied

challenge to the OBGYN requirement’s enforcement against LRFP and PPAEO Little Rock.

In the sections that follow, the Court applies the undue burden test from Casey and

Hellerstedt. First, the Court examines the benefits, if any, attributable to the OBGYN requirement.

Second, the Court examines LRFP and PPAEO Little Rock’s attempts to comply with the OBGYN

requirement. Third, the Court considers whether the availability of out-of-state abortion clinics is

relevant to the undue burden analysis. Fourth, the Court considers the burdens imposed upon

Arkansas women by the OBGYN requirement. Finally, the Court weighs the benefits and burdens

of the OBGYN requirement in order to determine if the OBGYN requirement places an

unconstitutional “undue burden” on women.

1. Act 700: Analysis Of Asserted Benefits

The Court first turns to examine the benefits, if any, of Act 700’s requirement. At the

outset of this analysis, the Court acknowledges several matters. First, it is settled law that a state

may enact regulations “to foster the health of a woman seeking abortion” or “to further the State’s

interest in fetal life,” provided that those regulations do not impose an “undue burden” on the

woman’s decision. Casey, 505 U.S. at 877-78 (plurality opinion). The relevant question before

the Court is whether Act 700’s requirement provides the asserted benefits as compared to the prior

law. See Hellerstedt, 136 S. Ct. at 2311 (“We have found nothing in Texas’ record evidence that

shows that, compared to the prior law, . . . the new law advanced Texas’ legitimate interest in

protecting women’s health.”); id. at 2314 (“The record contains nothing to suggest that [the

challenged law] would be more effective than pre-existing Texas law . . . .”) (emphasis added).

Therefore, the specific question at this juncture is whether requiring abortion providers in Arkansas

to comply with Act 700’s requirement that the physician providing the abortion be board-certified

95 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 96 of 159

or board-eligible in OBGYN furthers a legitimate interest of the state, as compared to Arkansas’

pre-existing regulations affecting abortions.

a. Examining Alleged Health-Related Problems With Medication Or Surgical Abortion In Arkansas

In Hellerstedt, the Supreme Court examined a statute that did not set forth any legislative

findings. Id. at 2310. Specifically, the Supreme Court examined H.B.2’s requirement that a

“physician performing or inducing an abortion . . . must, on the date the abortion is performed or

induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles

from the location at which the abortion is performed or induced.” 136 S. Ct. at 2310 (citing Tex.

Health & Safety Code. Ann. § 171.0031(a)). The prior Texas law required doctors who provided

abortions to “have admitting privileges or have a working arrangement with a physician who ha[d]

admitting privileges at a local hospital in order to ensure the necessary back up for medical

complications.” Id. (citing 25 Tex. Admin. Code, § 139.56 (2009)); see 33 Tex. Reg. 1093 (Dec.

19, 2018) (to be codified at 25 Tex. Admin Code § 139.56). 7 H.B.2 imposed an admitting

privileges requirement on physicians performing both medication and surgical abortions.

When considering H.B.2’s admitting privileges requirement, defendants argued, and in

Hellerstedt the Supreme Court recognized, that “[t]he purpose of the admitting-privileges

requirement is to help ensure that women have easy access to a hospital should complications arise

during an abortion procedure.” 136 S. Ct. at 2311. The district court “found that it brought about

7 It is important to note that Texas has a law that prohibits hospitals from discriminating against a physician applying for privileges based on that physician’s status as an abortion provider or views as to abortion. See Tex. Occ. Code § 103.002(b). This type of statute in effect protects physicians who perform abortions from targeted discrimination when applying for admitting privileges. See, e.g., Whole Woman’s Health v. Cole, 790 F.3d 563, 596 n.44 (5th Cir. 2015); Abbott II, 748 F.3d at 598 n.13. As other courts have observed, the situation is different in states without such laws. See, e.g., June Med. Servs. LLC v. Kliebert, 158 F. Supp. 3d 473, 501 (M.D. La. 2016) (“Kliebert I”). 96 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 97 of 159

no such health-related benefit,” determining that “[t]he great weight of the evidence

demonstrate[d] that, before the act’s passage, abortion in Texas was extremely safe with

particularly low rates of serious complications and virtually no death occurring on account of the

procedure.” Id. (citing Whole Woman’s Health v. Lakey, 46 F. Supp. 3d 673, 684 (W.D. Tex.

2014)). It was on this basis, as noted by the Supreme Court in Hellerstedt, that the district court

determined “there was no significant health-related problem that the new law helped to cure.” Id.

According to Hellerstedt, this conclusion was based on, among other things:

• “A collection of at least five peer-reviewed studies on abortion complications in the first trimester, showing that the highest rate of major complications—including those complications requiring hospital admission—was less than one-quarter of 1%.”

• “Figures in three peer-reviewed studies showing that the highest complication rate found for the much rarer second trimester abortion was less than one-half of 1% (0.45% or about 1 out of about 200).”

• “Expert testimony to the effect that complications rarely require hospital admission, much less immediate transfer to a hospital from an outpatient clinic. Id., at 266-267 (citing a study of complications occurring within six weeks after 54,911 abortions that had been paid for by the fee-for-service California Medicaid Program finding that the incidence of complications was 2.1%, the incidence of complications requiring hospital admission was 0.23%, and that of the 54,911 abortion patients included in the study, only 15 required immediate transfer to the hospital on the day of the abortion).”

• “Expert testimony stating that ‘it is extremely unlikely that a patient will experience a serious complication at the clinic that requires emergent hospitalization’ and ‘in the rare case in which [one does], the quality of care that the patient receives is not affected by whether the abortion provider has admitting privileges at the hospital.’”

• “Expert testimony stating that in respect to surgical abortion patients who do suffer complications requiring hospitalization, most of those complications occur in the days after the abortion, not on the spot.”

• “Expert testimony stating that a delay before the onset of complications is also expected for medical abortions, as ‘abortifacient drugs take time to exert their effects, and thus the abortion itself almost always occurs after the patient has left the abortion facility.’”

97 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 98 of 159

• “Some experts added that, if a patient needs a hospital in the day or week following her abortion, she will likely seek medical attention at the hospital nearest her home.”

Hellerstedt, 136 S. Ct. at 2311 (internal record citations omitted).

The Supreme Court in Hellerstedt reviewed medication and surgical abortion statistics and

research to reach its conclusion and noted that, “when directly asked at oral argument whether

Texas knew of a single instance in which the new requirement would have helped even one woman

obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

Id. at 2311-12. The Supreme Court observed: “This answer is consistent with the findings of the

other Federal District Courts that have considered the health benefits of other States’ similar

admitting-privileges laws.” Id. at 2312 (citing Planned Parenthood of Wis., Inc. v. Van Hollen,

94 F. Supp. 3d 949, 953 (W.D. Wis. 2015) (“Van Hollen IV”), aff’d sub nom Schimel, 806 F.3d

908; Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330, 1378 (M.D. Ala. 2014

(“Strange III”)).

The Eighth Circuit Court of Appeals has determined that Hellerstedt requires the Court to

“weigh the state’s ‘asserted benefits’” on the record before it. Comprehensive Health of Planned

Parenthood Great Plains v. Hawley, 903 F.3d 750, 758 (8th Cir. 2018) (vacating and reversing

Missouri district court that relied on Hellerstedt’s analysis of the purported benefits of the Texas

law without examining record evidence specific as to Missouri). As a result, this Court will

examine the record before it. The record evidence before the Court at this stage of the proceeding

leads the Court to conclude that plaintiffs are likely to prevail on the argument that there is “no

significant health-related problem” intended to be addressed by Act 700. Hellerstedt, 136 S. Ct.

at 2311.

98 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 99 of 159

Plaintiffs present scientific record evidence that is generally accepted in the medical

community that “[l]egal abortion is one of the safest medical procedures available in the United

States.” (Dkt. No. 4, at 5; Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 21; Decl. of Linda W.

Prine, M.D., ¶ 26; Decl. of Stephanie Ho, M.D., ¶ 16). This scientific record evidence includes

the National Academy Consensus Study Report, prepared by the National Academy of Sciences,

Engineering, and Medicine which Congress established to provide objective advice on matters

relating to science and technology. 8 The National Academy Consensus Study Report “determined

that the risks associated with medication abortion are similar to those associated with over-the-

counter anti-inflammatory drugs such as ibuprofen” and that “the risks associated with surgical

abortion are extremely low, with the risk of complications being in the 0-to-5% range.” (Dkt. No.

4, at 5-6 (citing National Academy of Sciences, Engineering, and Medicine, The Safety and Quality

of Abortion Care in the United States 2018, at 11, 74-75, available at

https://doi.org/10.17226/24950) (hereinafter “National Academy Consensus Study Report”)).

Record evidence supports that legal abortion is significantly safer for a woman than carrying a

pregnancy to term and giving birth (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 28; Decl. of

Lori Williams, M.S.N., A.P.R.N., ¶ 9; see National Academy Consensus Study Report at 75).

Having carefully considered at this preliminary stage the record evidence before it, the

Court determines that defendants have come forward with no reliable, generally accepted medical

or scientific record evidence to refute this. Instead, in an effort to counter this, the defendants

assert that “[a]bortion is a dangerous business” by claiming and citing as support for that

proposition that LRFP has called an ambulance for a patient 64 times in 20 years of providing

8 Our Reputation, http://www.nationalacademies.org/about/reputation/index.html (Last visited July 23, 2019). 99 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 100 of 159

abortion care, claiming “an average of 3.2 calls a year.” (Dkt. No. 43, at 1, citing Decl. of Mary

Silfies). First, defendants present no record evidence regarding why these ambulances were called

to LRFP (Decl. of Mary Silfies, ¶ 5). Instead, defendants cite this number and presumably ask the

Court to infer that these calls were for patients and related to abortion care or in some way reflect

on care purportedly provided by one abortion provider in particular who is neither board-certified,

board-eligible, nor an OBGYN—Dr. Tvedten (Dkt. No. 43, at 52). For reasons the Court will

explain infra in this Order, the Court declines to make this inference. See Section III.D.1.b.(vi).

Second, even if this Court were to assume that the number of ambulance calls relates in

some way to abortion patients and the provision of abortion care, as plaintiffs demonstrate, this

purported complication rate is consistent with what is reflected in the literature that complication

rates for abortion care are exceeding low. Plaintiffs presented evidence through the testimony of

Ms. Williams at the July 22, 2019, hearing that, in 2016, there were three post-abortion care patient

hospital transfers at LRFP; in 2017, there were no such transfers; in 2018, there were three post-

abortion care patient hospital transfers; and in 2019, there were two post-abortion care patient

hospital transfers.

Given the number of abortion procedures performed at LRFP each year, this evidence is

consistent with the findings of the Supreme Court in Hellerstedt regarding these procedures; it

does not refute such evidence. Between May 1, 2016, and April 30, 2019, LRFP provided 7,010

abortions (Decl. of Jason Lindo, Ph.D., ¶ 15), and called an ambulance according to defendants

ten times, if defendants’ record evidence is accepted at this stage (Dkt. No. 49-5, at 5). That

equates to a 0.14% 9 complication rate requiring hospital transfers; this supports and does not

detract from the notion that the risks associated with abortion care are extremely low (Dkt. No. 61,

9 10/7,010=0.14%. 100 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 101 of 159

at 37). Having examined all record evidence at this stage of the proceedings, the Court at least

preliminarily concurs that “[l]egal abortion is one of the safest medical procedures available in the

United States,” and Act 700 provides no benefit if intended to address a medical safety problem in

Arkansas, which this Court finds does not exist on this record evidence.

This comports with concessions reportedly made by the lead sponsor of Act 700 who, when

asked whether there is “evidence that there has been a [medical safety] problem” to be addressed

by Act 700, reportedly stated: “Not that I’m aware of.” (Dkt. No. 4 at 37-38 (citing S.B. 448 Floor

Debate)). Further, when asked why the bill leading to the enactment of Act 700 was brought

forward then, the law’s lead sponsor reportedly responded that he intended for women having

abortions to be treated by a doctor certified in obstetrics and gynecology, to make sure the woman

has “protections,” and “to prevent any further abortions.” (Dkt. No. 4 at 37-38 (citing S.B. 448

Floor Debate)). Plaintiffs also contend that the law’s lead sponsor stated: “And as far as how

many more of these abortion bills will I bring? I’ll tell everyone of you how many more I’ll bring.

As long as we keep killing unborn children—innocent unborn children—I’ll keep bringing

abortion bills.” (Dkt. No. 4, at 31, n. 94 (quoting S.B. 448 Hearing Testimony)).

Plaintiffs argue that “[t]his rationale is dispositive under Eighth Circuit authority: If a

‘requirement serves no purpose other than to make abortions more difficult, it strikes at the heart

of a protected right, and is an unconstitutional burden on that right.’” (Dkt. No. 4, at 47 (citing

Planned Parenthood of Greater Iowa, Inc. v. Atchison, 126 F.3d 1042, 1049 (8th Cir. 1997)).

Further, plaintiffs contend that statements by “the sponsors and supporters of the legislation as to

its central purpose” may be considered, even if “statements on the floor by legislators are not

always the most persuasive indicia of legislative intent.” (Dkt. No. 61, at 35 (quoting United States

v. Dean, 647 F.2d 779, 787 n.15 (8th Cir. 1981); see also Perkins v. City of W. Helena, Ark., 675

101 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 102 of 159

F.2d 201, 213 (8th Cir. 1982) (“The legislative or administrative history is relevant to the issue of

discriminatory intent, especially where, as here, there are contemporary statements of members of

the decisionmaking body.”)). Defendants do not attempt to distinguish Atchison (Dkt. No. 43, at

46). There are no legislative findings for Act 700; there is no record evidence to suggest that the

Arkansas legislature was presented with scientific evidence to support Act 700.

This, coupled with the record evidence that Arkansas has enacted more than 25 laws

regulating abortion access in the State, including 12 enacted in 2019 alone, gives the Court pause

with respect to the purpose of Act 700 (Dkt. No. 4, at 28, n.70, n.71). Given the stage of the

proceeding and the record evidence at this stage of the proceeding, this Court will proceed to

examine Act 700 by applying the undue burden analysis from Hellerstedt.

b. Examining Efforts To Establish A “Floor Of Care” The Court next turns to examine whether, even if there is no significant health-related

problem with abortion that Act 700 is intended to address, there is nonetheless a benefit from Act

700. The Eighth Circuit Court of Appeals in at least one prior decision stemming from a challenge

to an Arkansas abortion statute—Section 1504(d) of Arkansas Act 577 requiring that Arkansas

abortion facilities providing medication abortions must “have a signed contract with a physician

who agrees to handle complications” and who has “active admitting privileges and

gynecological/surgical privileges at a hospital designated to handle any emergencies associated

with the use or ingestion of the abortion-inducing drug,” Ark. Code Ann. § 20-16-1504(d)(1),(2)

(“Section 1504(d) of Arkansas Act 577”)—suggested that this Court should consider whether the

statute might be intended to set a “floor of care,” such as was present in Texas and examined by

the Supreme Court in Hellerstedt. See Jegley, 864 F.3d at 960 n.9; see also Comprehensive Health

of Planned Parenthood Great Plains, 903 F.3d at 758 (vacating and remanding, in part, for the

district court to consider whether a “hospital relationship requirement” was a valid exercise of

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Missouri’s “inherent ‘police power’” or “legitimate interest in seeing to it that abortion, like any

other medical procedure, is performed under circumstances that insure maximum safety for the

patient”) (internal citations omitted). The Eighth Circuit suggested that, under the circumstances

presented in Jegley, a “legal floor” would prevent an abortion provider from, in the future, reducing

their continuity-of-care practices and thus “would constitute a benefit.” 864 F.3d at 960 n.9.

The Court examines cases from other jurisdictions that compare the benefit of an abortion

restriction against a purportedly pre-existing “floor of care.” 10 This Court initially conducted this

analysis with respect to the constitutional challenge to Act 1504(d) of Arkansas Act 577. The

Court repeats that analysis here and extends that analysis to cover additional cases decided since

Jegley that compare the benefit of an abortion restriction against a purportedly pre-existing “floor

of care.”

(i) Examining Wisconsin Law

In Schimel, a case cited by the Supreme Court in Hellerstedt, the district court and Seventh

Circuit Court of Appeals examined a Wisconsin statute that required every doctor who performed

abortions to have admitting privileges at a hospital within a 30-mile radius of each clinic at which

the doctor performed abortions, with the law being signed on a Friday and compliance required by

the following Sunday. 806 F.3d at 911. The district court granted a temporary restraining order,

10 In addition to the cases examined here, the Court also notes that Oklahoma struck down an admitting privileges law. Burns v. Cline, 387 P.3d 348, 354 (Okla. 2016) (holding that, in the light of Hellerstedt, Oklahoma’s admitting privileges law “creates a constitutionally impermissible hurdle for women who seek lawful abortions.”). Tennessee, after Hellerstedt, agreed not to enforce an admitting privileges law that was being challenged. See Adams & Boyle P.C., et al. v. Herbert Slaterly, et al., Case No. 3:15-cv-00705, Dkt. No. 60, at 2-3 (M.D. Tenn. April 14, 2017) (agreeing to enjoin permanently enforcement of, among other things, an admitting-privileges statute that was “similar to the provision[] struck down in [Hellerstedt] . . . .”).

103 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 104 of 159

Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 963 F. Supp. 2d 858 (W.D. Wis. 2013)

(“Van Hollen I”), and a preliminary injunction, Planned Parenthood of Wisconsin, Inc. v. Van

Hollen, No. 13-cv-465-WMC, 2013 WL 3989238 (W.D. Wis. Aug. 2, 2013) (“Van Hollen II”).

The Seventh Circuit affirmed the entry of the preliminary injunction. Van Hollen III, 738 F.3d at

799. The district court then conducted a full trial, resulting in the district court imposing a

permanent injunction against enforcement of the statute. Defendants then appealed, arguing that

“the statute protects the health of women who experience complications from an abortion.”

Schimel, 806 F.3d at 910.

On appeal, the Seventh Circuit determined that, for the proposed statute to be justified,

there had to be “reason to believe that the health of women who have abortions is endangered if

their abortion doctors don’t have admitting privileges.” Id. at 912. The Seventh Circuit affirmed

the district court and found that “there is no reason to believe that.” Id. The Seventh Circuit

observed:

A woman who experiences complications from an abortion (either while still at the clinic where the abortion was performed or at home afterward) will go to the nearest hospital, which will treat her regardless of whether her abortion doctor has admitting privileges. As pointed out in a brief filed by the American College of Obstetricians and Gynecologists, the American Medical Association, and the Wisconsin Medical Society, “it is accepted medical practice for the hospital-based physicians to take over the care of a patient and whether the abortion provider has admitting privileges has no impact on the course of the patient’s treatment.” As Dr. Serdar Bulum, the expert witness appointed in this case by the district court judge under Fed. R. Evid. 706, testified, the most important factor would not be admitting privileges, but whether there was a transfer agreement between the clinic and the hospital. As we’ve said, abortion doctors in Wisconsin are required to have such transfer agreements . . . . The treating doctor at the hospital probably would want to consult with the doctor who had performed the abortion, but for such a consultation the abortion doctor would not need admitting privileges.

104 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 105 of 159

Schimel, 806 F.3d at 912 (citing the requirement in Wis. Admin. Code Med. § 11.04(1)(g) for

abortion clinics to adopt transfer protocols intended to assure prompt hospitalization of any

abortion patient who experiences complications serious enough to require hospitalization)

(emphasis in original). There is no mention in Schimel of any “floor of care” other than the transfer

agreement requirement. There is no mention of any admitting privileges requirement, other than

the requirement challenged and enjoined by the court.

The Schimel Court further concluded based on record evidence presented and cited by the

court that “complications from abortion are both rare and rarely dangerous—a fact that further

attenuates the need for abortion doctors to have admitting privileges.” Id. at 912 (citing record

studies and evidence). The court observed that abortion clinics uniquely among outpatient

providers of medical services in Wisconsin were required to adopt transfer protocols. Id. at 913.

The court observed that defendants “presented no other evidence of complications from abortions

in Wisconsin that were not handled adequately by the hospitals in the state.” Id. The court rejected

the argument that such admitting privileges within 30 miles of a clinic were required to ensure the

“Good Housekeeping Seal of Approval” on doctors. Id. at 915. Further, the court rejected the

argument that admitting privileges improved continuity-of-care. Id. (“But nothing in the statute

requires an abortion doctor who has admitting privileges to care for a patient who has

complications from an abortion . . . .”).

(ii) Examining Alabama Law

Alabama’s statute requiring abortion providers to obtain staff privileges at a local hospital

has a long history, which this Court examined in Jegley. 11 In Strange III, the other case cited by

11 Alabama’s staff privileges law was declared to restrict unconstitutionally the rights of women seeking abortions in Alabama. Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1381 (M.D. Ala. 2014) (“Strange IV”) (supplementing liability opinion with evidentiary findings); 105 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 106 of 159

the Supreme Court in Hellerstedt, the district court examined an Alabama law requiring “every

doctor performing abortions in Alabama to ‘have staff privileges at an acute care hospital within

the same standard metropolitan statistical area as the facility is located that permit him or her to

perform dilation and cutterage, laparotomy procedures, hysterectomy, and any other procedures

reasonably necessary to treat abortion-related complications.’” 33 F. Supp. 3d at 1336. A clinic

administrator who knowingly and willfully operated an abortion clinic with doctors who did not

have such privileges faced felony criminal liability, and the State of Alabama could revoke the

clinic’s license for violations of the law. Id.

Relevant to the issue of an established “floor of care,” prior to the challenged law, to be

qualified to perform an abortion in Alabama, the physician had to either “have completed a

residency or fellowship that included abortion training;” had to “maintain admitting privileges at

a United States hospital that allow[ed] her to perform abortions at that hospital;” or had to “provide

verification from a disinterested, properly trained physician that she has sufficient skill at

performing abortions.” Planned Parenthood Se., Inc. v. Strange, 9 F. Supp. 3d 1272, 1276 (M.D.

Ala. 2014) (“Strange II”). The pre-existing regulations in Alabama also included other specific

provisions, including requiring the physician to remain at the clinic until the last patient left;

providing the patient, after she leaves the clinic, with access to a 24-hour answering service that

would immediately refer calls about complications to a qualified nurse, nurse practitioner,

physician assistant, or physician; and to record every such call. Id. at 1276. Further, the law also

required that each abortion clinic “have a physician on staff who has admitting privileges at a local

Strange III, 33 F. Supp. 3d at 1378 (finding that the staffing privileges requirement was unconstitutional as applied to plaintiffs); Strange II, 9 F. Supp. 3d at 1276 (summary judgment opinion laying the foundation for the application of the undue-burden test); Planned Parenthood Se., Inc. v. Bentley, 951 F. Supp. 2d 1280, 1290 (M.D. Ala. 2013) (“Strange I”) (temporarily enjoining the enforcement of the staff privileges requirement). 106 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 107 of 159

hospital or to maintain a written contract with a ‘covering physician.’” Id. at 1277. The then in-

effect regulations required the covering physician to “have admitting privileges that permit her to

perform ‘dilation and curettage, laparotomy procedures, hysterectomy, and any other procedures

necessary to treat abortion-related complications’ at a hospital within the same metropolitan

statistical area as the clinic” and that the affiliated doctor with admitting privileges be available

“for 72 hours after the procedure to treat any complications that may arise” when performing

abortions. Id.

In Strange III, the State argued that the staff-privileges requirement had two “strong

justifications,” both related to an interest in protecting women’s health. 33 F. Supp. 3d at 1341.

First, the State argued the requirement ensured proper care for complications, and second, the State

argued the requirement had a secondary benefit of “‘credentialing’ high quality doctors.” Id. In

regard to continuity-of-care, the district court identified this concept as “the goal of ensuring that

a patient receives high-quality care not only during a certain procedure but also after it, including

treatment of complications and any necessary follow-up care” but conceded from the evidence

“this is a somewhat elusive concept.” Id. at 1363.

According to the Strange III court, three models emerged for ensuring continuity-of-care.

There, the court termed these the first model, the second model, and the third model, also referring

to the third model as the “country-doctor model.” Id. at 1364-65. According to the court, the first

model relies upon the 24-hour telephone access to a doctor or nurse at the abortion clinic at any

time. Id. at 1364. Under this model, the doctor or nurse may give instructions for in-home

treatment, schedule the woman for a follow-up visit at the clinic, or, if appropriate, direct the

woman to the nearest emergency room to be assessed immediately or treated. Id. If a patient needs

to be transferred directly to a hospital from the clinic, which the court found is an admittedly rare

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circumstance, the abortion doctor should communicate with the emergency room doctor to provide

continuity-of-care. Id. at 1364-65.

Under the second model, there is a covering physician or a doctor with admitting privileges.

Id. at 1365. The court recognized that the baseline of Alabama’s law regulating abortion providers

at the time fell under this model. Id. Under this model, the doctor who performs the procedure

may arrange for a covering doctor to provide follow-up care for any complications that may arise

after the procedure. Even under this procedure, however, if it is an urgent situation, the record

evidence in Strange III established that it was more important for a patient to go to the nearest

emergency room than to be treated by the initial doctor or covering physician. Id.

The third model or “country-doctor” approach required the physician who performed the

initial procedure to provide consistently most care for complications that may arise, rather than

relying on a covering physician, a transfer agreement, or the emergency room. 33 F. Supp. 3d at

1365. A specialist may need to be brought in for certain treatments, but the original doctor would

handle nearly all complications. Id. The State argued, and the court agreed, that the challenged

admitting privileges law fell into this category. Id.

Based on the evidence presented, the court determined that the third model advocated by

the State fell “outside that range of disagreement” within the medical community regarding the

appropriate model of complication care for minor surgeries and medication-based procedures, like

early term abortion. Id. at 1364. In making this determination, the Strange III court recognized

this about the nature and treatment of abortion complications:

Most complications from such [early term] abortions closely resemble the complications from early-term miscarriages. The common complications from miscarriages, as well as medication and early-term surgical abortions, are bleeding, infection, and cramps. These complications sometimes arise because fetal tissue remains in the uterus or because the cervix fails to close fully after the fetal tissue

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is expelled. The treatment for these complications is the same, regardless of how the pregnancy ended.

In extremely rare instances, other complications may arise which could not occur from a miscarriage. In the case of a medication abortion, an allergic reaction to the abortion drugs was the only possibility suggested by the evidence in this case. For a surgical abortion, it is possible that an instrument may perforate or lacerate the uterus.

Most complications from early-term abortions do not require hospital treatment. Most minor complications which arise during the course of an early-term surgical abortion are treated at the abortion clinic before the patient is discharged. Moreover, as discussed above, most complications that arise after a patient has been discharged are best treated with over-the-phone instructions, prescription medication from a pharmacy, or a follow-up visit to the abortion clinic. However, even when hospital care is unnecessary, patients will sometimes seek emergency- room treatment without first contacting the provider. Indeed, in some cases, the woman may not be suffering from any complication at all, but may simply need reassurance.

For the majority of complications which do require hospitalization, the appropriate treatment may include intravenous antibiotics or a further dilation and curettage to empty the uterus completely. The staff-privileges provision requires all abortion doctors to have local-hospital privileges that allow them to perform two specific, additional gynecological procedures: hysterectomy and laparotomy. Rare circumstances, such as a suspected uterine perforation, may require a laparotomy or the similar but less invasive laparoscopy, each of which involves examining the uterus or cervix and repairing any damage. In certain other extreme situations, a hysterectomy, or removal of the uterus, may be necessary. It is extremely rare that either a hysterectomy or laparotomy would be necessary following an abortion, even a later-term abortion. Indeed, with approximately 9,000 abortions performed in Alabama each year, in most years not a single early-term abortion in the State would require either procedure.

Id. at 1365-66 (emphasis in original).

The Strange III court determined that the initial-screening aspect of the credentialing

function provided negligible benefit, as compared to Alabama’s pre-existing law. Id. at 1373.

Further, the court determined that it was “left with the speculative assertion that hospital oversight,

through staff privileges, would actually ensure that the physicians and clinics” would provide high-

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quality care and be an “effective supplement to the Department of Public Health oversight.” 33 F.

Supp. 3d at 1376. The court concluded that, to determine whether a regulatory decision grounded

in such speculation would be an acceptable use of the State’s police powers, the court was required

to engage in the balancing test applied to abortion regulations. Id. As a result of engaging in that

balancing test, the Strange III court concluded that, “[i]n the light of the severity of the obstacles

presented by the requirement and the weakness of the State’s justifications,” the “obstacles

imposed by Alabama’s staff-privileges requirement are ‘more significant than is warranted by the

State’s justifications for the regulation.’” Id. at 1378. The case was decided by the Honorable

Myron H. Thompson. 12

Later, in 2015, a licensed abortion clinic and doctor brought a challenge against an

Alabama health officer claiming that Alabama’s “floor of care” regulation—that to perform

abortions a doctor had to have admitting privileges at a local hospital or the clinic had to contract

with a covering physician who had such privileges—was unconstitutional as applied to the clinic

and doctor. W. Ala. Women’s Ctr. v. Williamson, 120 F. Supp. 3d 1296, 1303, 1303 (M.D. Ala.

2015). This case also was assigned to Judge Thompson. The challenged regulation had been in

effect since 2007. Id. at 1300. It would have been superseded by the admitting privileges

requirement challenged and struck down by Judge Thompson in Strange III. Id. at 1300-01.

Five abortion clinics operated in Alabama at the time of Williamson, a case that followed

Strange III. Two clinics had physicians on staff who had local admitting privileges, and three

operated by having a contract with a covering physician. Those three clinics that operated by

12 Defendants appealed Judge Thompson’s ruling in Strange III. On July 15, 2016, on the grounds that “Alabama’s law is identical in all relevant respects to the law at issue in [Hellerstedt],” defendants moved to dismiss the appeal because they no longer had a “good faith argument that the law is constitutional under controlling precedent.” Planned Parenthood Se., Inc., et al., v. Luther Strange, et al., No. 16-11867, at 6 (11th Cir. 2016, July 15, 2016). 110 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 111 of 159

having a contract with a covering physician sued to enjoin the admitting privileges law as applied

to the three clinics. Id. at 1301.

Until December 2014, the clinic in Tuscaloosa complied with Alabama’s “floor of care”

regulation by having a doctor on staff with local admitting privileges. Id. That doctor retired in

December 2014. Id. The Tuscaloosa clinic hired a replacement doctor, but that doctor lacked

local admitting privileges. 120 F. Supp. 3d at 1301. Further, the Tuscaloosa clinic could not find

a covering physician willing to contract with it. As a result, it brought an as applied challenge to

Alabama’s “floor of care” regulation. Id. at 1301-02.

The Tuscaloosa clinic operated for 20 years, providing reproductive health services,

including abortions, birth control, treatment for sexually transmitted infections, pregnancy

counseling, and referral for adoption. Id. at 1302. By 2013, 40% of all abortions in Alabama took

place at the Tuscaloosa clinic, far more than any other clinic in the state. In fact, during that time,

the Tuscaloosa clinic performed almost two and a half times more abortions than the next Alabama

clinic. Id. Further, about 80% of abortion procedures performed there were performed prior to 10

weeks postfertilization, with almost 96% of abortion procedures being performed before 16 weeks

postfertilization. About 4% of abortions were performed mid-second trimester. Id. It was only

one of two clinics in Alabama that performed abortions throughout the first 20 weeks

postfertilization, and it provided around 75% of Alabama’s mid-second-trimester abortions. Id.

During its 20 years of operation, the Tuscaloosa clinic had never been placed on probation,

suspended, or revoked for failure to meet any safety regulation. Id. Further, during the most recent

five year period, less than one-tenth of 1% of its patients were transferred to a hospital for

observation or complication. 120 F. Supp. 3d at 1302. The clinic had never been closed for failing

to treat its patients. Id.

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After its long-time doctor retired, the clinic hired Dr. Parker, a replacement doctor who

was board-certified in obstetrics and gynecology with subspecialty training in family planning,

contraception, and abortion. Id. at 1303. He had over 20 years of experience in women’s health,

was on the faculty of Northwestern School of Medicine, and held admitting privileges there. Id.

He performed abortions in a number of states, including Alabama and Mississippi, and when hired

was providing abortions at the Montgomery clinic. Id. This doctor attempted to obtain admitting

privileges himself in Tuscaloosa. Id. He was unable to do so because the hospital there required

him to perform a number of hysterectomies and laparotomies, but according to the court “the

reality is that, because Dr. Parker is a full-time abortion provider and because complications from

abortions are so rare, he would never be able to do the required amount of procedures.” 120 F.

Supp. 3d at 1303. The record evidence indicated that, of the estimated 10,000 abortions Dr. Parker

performed in the three years prior on women up to 20 weeks postfertilization, only two were

transferred to the hospital, and one was transferred for observation only. Id. Dr. Parker had never

had a patient who needed a hysterectomy from an abortion complication. Id.

Dr. Parker made a good faith effort to work with the hospital board, offering to perform

the requisite number of procedures on other patients; he could not satisfy the requirement by

performing the procedure on his own patients, because his own patients would not need them due

to the low complication rate from abortion. Id. Record evidence indicated that an agreement

appeared to be reached to satisfy the hospital board’s requirement in this way, but that agreement

never materialized and instead quickly fell apart. Id. The hospital board reiterated its demand that

Dr. Parker satisfy the required procedures by performing them on his own patients. Id. As the

court recognized, this was “an impossible task for a full-time abortion provider . . . given the low

number of complications from abortion.” 120 F. Supp. 3d at 1303.

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Dr. Parker and the Tuscaloosa clinic then attempted to contract with a covering physician

instead. Id. at 1304. None of the physicians in the area agreed to contract, some citing anti-

abortion views or the fear of reputational harm. Id. Dr. Parker and the Tuscaloosa clinic then

applied for a waiver, citing Dr. Parker’s safety record and the clinic’s policies and procedures in

place if complications were to arise, including a 24-hour hotline and a protocol for the clinic to

communicate with any treating physicians at emergency rooms. Id. The request for waiver was

denied. Id.

The court enjoined enforcement of Alabama’s “floor of care” regulation as applied to the

Tuscaloosa clinic, concluding that plaintiffs had a substantial likelihood of success on their

argument that the Alabama “floor of care” regulation would have imposed an undue burden on a

woman’s right to choose to have an abortion in violation of the Due Process Clause of the

Fourteenth Amendment. Id. at 1306-07. The court first examined the burdens. 120 F. Supp. 3d

at 1307-12. The court then turned to examine the justifications for the challenged regulation. Id.

at 1312.

Alabama justified the challenged regulation by claiming that the regulation was “meant to

ensure that women who obtain abortions receive adequate complication-related care” and do so

“by authorizing two alternative models for continuity of care.” Id. at 1312. The court then

analyzed the three possible models for continuity-of-care first articulated in Strange III. Id. at

1312-13. Plaintiffs argued that the Tuscaloosa clinic’s protocol was sufficient to ensure adequate

continuity-of-care and that requiring the clinic to contract with a covering physician would not

benefit patient health in any meaningful way. Id. at 1313. Plaintiffs argued this based on Dr.

Parker’s “extraordinary safety record” and the clinic’s emergency-care protocol which it claimed

was as effective at ensuring high-quality continuing of care as the covering physician model. Id.

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The court reaffirmed its determination that “complications from early-term abortions

which are the vast majority of the procedures performed at the [Tuscaloosa clinic] are ‘vanishingly

rare.’” Id. at 1314. The court cited statistics that only 0.89% of first trimester abortions cause any

complication of any kind and that only 0.05% of first trimester abortions cause a complication that

requires hospital-based care. Id. The court concluded that “clinics do not make frequent use of

their covering physicians because the procedures they perform are extremely safe and because,

where possible, the clinics themselves provide complication care.” Id. (citing Strange III, 33 F.

Supp. 3d at 1370 n.23).

Further, the court observed:

Moreover, when a complication requires hospital admission, the regulation itself does not guarantee that a clinic patient would ever be seen by the covering physician, even if the Center were to contract with one. First, the regulation itself does not actually require a clinic to make use of the covering physician in the case of any complication: to comply with the regulation, a clinic need only maintain a contract promising the covering physician’s availability. Second, if a patient who experiences complications lives outside the Tuscaloosa area—as do at least some of the Center’s patients—the fact that the Center might have a contract with a covering physician who could admit her to the Tuscaloosa hospital is unlikely to affect her complication-related care in any way, as she will (and should) seek emergency care closer to home.

Id. (emphasis in original).

In the case of a patient transferred directly from the clinic to the hospital, the clinic was

already required to “alert 911 and the hospital to the pending transfer; to provide the hospital’s

emergency department with necessary information about the patient’s case; and to send a copy of

the patient’s medical records to the hospital along with the patient.” Id. The emergency room

doctor and staff, along with a hospital specialist, might examine the patient. Id. at 1314-15. The

clinic would “communicate directly with the hospital and Dr. Parker would be available for

114 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 115 of 159

consultation with the hospital’s physicians at any time during the patient’s course of treatment.”

120 F. Supp. 3d at 1315.

If a contracted physician relationship existed, the court acknowledged the likely scenario

that Dr. Parker would contact that contracted doctor at the soonest possible point in the process,

that contracted doctor would meet the patient at the hospital to assume care, and that contracted

doctor would in theory have a relationship with Dr. Parker. Id. Although, as the court observed,

because complications from abortion procedures are rare, it is unclear whether Dr. Parker would

be in regular communication or have a relationship with the contracted physician in reality. Id.

The court also noted that, if there were a contracted physician and if that contracted

physician had staff privileges at the hospital nearest to the patient, then Dr. Parker and clinic staff

might notify the contracted physician so that she could admit the patient to the hospital herself.

Id. However, as the court determined, nothing in Alabama’s regulation required Dr. Parker and

the clinic staff to do so. Id.

Even if Dr. Parker and the clinic staff notified the contracted physician, the court

determined that “there is no guarantee that the covering physician will reach the hospital to admit

the patient before the patient is assessed or treated by the emergency-room physicians; that the

covering physician will be any more knowledgeable about the patient or her condition than would

be the hospital physician; or that the covering physician will be any more qualified to treat the

patient than would be the hospital physicians.” Id. Further, the court determined that, because Dr.

Parker and clinic staff continue to advocate for the patient directly with the hospital and provide

consultation as necessary, the patient has an advocate for her care even after a transfer to the

hospital. 120 F. Supp. 3d at 1315.

115 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 116 of 159

The court also concluded the clinic’s policies ensured that patients received adequate

continuity-of-care after discharge from the clinic. Id. The court determined that the current

practice required that Dr. Parker be accessible for at least 72-hours following any procedure. Id.

“[P]atients are provided 24-hour telephone access to the Center’s medical staff.” Id. The court

found that the patient could speak to a nurse or to Dr. Parker. Id. If the patient needed to be

assessed immediately, the court noted that the nurse or Dr. Parker could advise the patient to go to

the nearest hospital. Id. Further, the nurse or Dr. Parker could call the hospital ahead to provide

any pertinent information about the patient or provide his contact information to the patient to

provide to the hospital along with the request that the patient ask the hospital to contact Dr. Parker.

Id. As a result of this benefits analysis, when weighed against the burdens of the regulation, the

court enjoined the regulation as applied to Dr. Parker and the Tuscaloosa clinic. Id. at 1320.

(iii) Examining Louisiana Law

Likewise, in Kliebert I, the district court examined Louisiana’s Act 620 which required

every doctor who performed abortions in Louisiana to have “active admitting privileges” at a

hospital within 30 miles of the facility where the abortions were performed. 158 F. Supp. 3d at

484. The district court, given the controlling law of the Fifth Circuit at that time, applied rational

basis review to determine whether Act 620 was rationally related to a legitimate state interest. Id.

at 485.

In Kliebert I, doctors performing abortions at Louisiana’s abortion clinics could not comply

with the admitting privileges law, despite being given time to attempt to do so. Id. at 506-07. The

court observed that there was no state or federal statute governing the rules for granting or denying

hospital admitting privileges in Louisiana and that the process and rules varied from hospital to

hospital. Id. at 491-92. Further, the court determined there was “no Louisiana statute which

116 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 117 of 159

prohibits a Louisiana hospital or those individuals charged with credentialing responsibilities from

deciding an application for admitting privileges based on the applicant’s status as an abortion

provider,” regardless of the provider’s competency. Id. at 495. In addition, Louisiana had no

maximum time period within which applications had to be acted upon, so a hospital could

effectively deny an application for admitting privileges by failing to act on it, without expressing

the true reasons or any reasons for doing so. 158 F. Supp. 3d. at 533.

Based on record evidence, the court determined that Louisiana’s abortion providers were

not given privileges or given only limited privileges that did not meet the statutory requirement.

See id. at 489. The resulting effect was an undue burden on the right of a large fraction of Louisiana

women to an abortion, based on the record evidence. Id. at 533. As a result, the court determined

Louisiana’s Act 620 was facially unconstitutional. Id.

The Fifth Circuit Court of Appeals granted a stay of the district court’s injunction pending

appeal. 814 F.3d 319 (5th Cir. 2016). The Supreme Court vacated the stay entered by the Fifth

Circuit Court of Appeals, effectively reinstating the district court’s injunction. 136 S. Ct. 1354

(2016). After remand, the district court conducted a bench trial and held that the requirement

placed an undue burden on women’s due process right to choose an abortion, permanently

enjoining enforcement of the active admitting privileges requirement. 250 F. Supp. 3d 27 (M.D.

La. 2017). The Fifth Circuit Court of Appeals determined that the admitting privileges

requirement did not impose a substantial obstacle in the path of a large fraction of all women

seeking abortions in Louisiana. 905 F.3d 787, 815 (5th Cir. 2018). The Supreme Court stayed the

mandate of the Fifth Circuit, pending timely filing and disposition of a petition for a writ of

certiorari. 139 S. Ct. 663 (2019). Petitions for writ of certiorari have been docketed, but the

Supreme Court has not made a determination yet.

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(iv) Examining Mississippi Law

In Jackson Women’s Health Organization v. Currier, 878 F. Supp. 2d 714 (S.D. Miss.

2012), (“Jackson II”), the district court first examined Mississippi’s House Bill 1390 (“H.B.

1390”) in a challenge brought by an abortion clinic and physicians associated with it; H.B. 1390

required physicians to have admitting and staff privileges at a local hospital and to be board-

certified in obstetrics and gynecology. Defendants cite certain of these decisions in its response

to plaintiffs’ current motion. In Jackson, plaintiffs initially sought and obtained a temporary

restraining order to block the effective date of H.B. 1390. Jackson Women’s Health Org. v.

Currier, Case No. 3:12-cv-436-DPJ-FKB, 2012 WL 2510953 (S.D. Miss. July 1, 2012) (“Jackson

I”). Then, the court examined whether to grant a preliminary injunction. 878 F. Supp. 2d at 714.

At the time H.B. 1390 was enacted, only one doctor had admitting and staff privileges, and he had

a regular, private practice and did not provide the majority of abortions. Id. at 715. Instead, the

two doctors who provided the majority of the clinic’s services did not have admitting or staff

privileges, though they had actively been seeking them since the passage of H.B. 1390. Id. The

district court analyzed the relevant factors for granting injunctive relief, and the district court

granted the motion for preliminary injunction in part. The court determined that “if these two

doctors stop performing abortions for non-speculative fear of prosecution, it would create an

‘undue burden’ and irreparable harm.” Id. at 717-18. The district court permitted H.B. 1390 to

take effect but determined that plaintiffs not be subject to the risk of criminal or civil penalties at

the time the injunction issued or in the future for operating without the relevant privileges during

the administrative process. Id. at 720.

After plaintiffs “unsuccessfully exhausted all available avenues to comply with” H.B.

1390, the State of Mississippi indicated that it would revoke the clinic’s license following a

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hearing. 940 F. Supp. 2d 416, 417 (S.D. Miss. 2013) (“Jackson III”), order clarified, 2013 WL

12122002 (S.D. Miss. Aug. 13, 2013), 13 affirmed as modified, 760 F.3d 448 (5th Cir. 2014). The

district court observed that, “[a]t all relevant times,” the plaintiff clinic “has been the only abortion

clinic in the State of Mississippi, and only one of its doctors holds admitting privileges. That

doctor ha[d] a separate, private OB/GYN practice and provide[d] only minimal care at the [c]linic.

The two doctors providing the vast majority of the [c]linic’s abortions lacked admitting or staff

privileges when the Act passed.” Id. at 417-18.

Plaintiffs reported that the two doctors who provided the majority of care at the clinic had

applied for privileges at every local hospital. Id. at 418. “Two hospitals refused to provide

applications, and all others rejected the doctors’ applications because they perform[ed] elective

abortions.” Id. As a result, the State of Mississippi intended to close the clinic, according to the

district court. Id. Plaintiffs requested only that the district court “enjoin all forms of enforcement

of the Admitting Privileges Requirement” of H.B. 1390. Id. The district court granted plaintiffs’

motion and enjoined the Admitting Privileges Requirement of H.B. 1390. Id. at 424.

The Fifth Circuit Court of Appeals affirmed and enjoined the requirement that “[a]ll

physicians associated with the abortion facility must have admitting privileges at a local hospital

and staff privileges to replace local hospital on-staff physicians.” 760 F.3d at 450. Prior to H.B.

1390’s enactment, Mississippi law required that “abortion facilities have only a transfer agreement

with a local hospital, a written agreement for backup care with a physician with admitting

privileges, and at least one affiliated doctor with admitting privileges.” Id. (citation omitted).

13 The district court was asked in a Federal Rule of Civil Procedure 52(b) motion to clarify its preliminary injunction order with respect to a determination regarding whether H.B. 1390 as an “unnecessary” health regulation; the court granted the motion in part to clarify its prior ruling, but as defendants had not argued initially that the regulation was “necessary,” the court offered no analysis on that point. 2013 WL 12122002, at *2 (S.D. Miss., Aug. 13, 2013). 119 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 120 of 159

Because the record evidence supported that the doctors performing abortions at Mississippi’s only

abortion clinic in Jackson could not comply with the admitting privileges law, despite being given

time to attempt to do so, the record indicated the only abortion clinic in Mississippi would close.

Id. at 450-53. The district court, and the Fifth Circuit, determined plaintiffs met the undue burden

requirement in the as-applied challenge and enjoined enforcement of the law. Id. at 455, 459.

According to the Fifth Circuit, both the district court and the Fifth Circuit applied rational basis

review to the proposed regulation as then required by controlling Fifth Circuit; the Supreme Court

in Hellerstedt later rejected that lower level of scrutiny for abortion regulations. Id. at 455, 459.

In 2018, plaintiffs filed an action seeking an order declaring the OB-GYN requirement of

H.B. 1390 facially unconstitutional and requesting clarification of the district court’s prior order

with respect to admitting privileges, seeking to have the district court’s injunction applied

statewide and not only to plaintiffs. Jackson IV, 320 F. Supp. 3d at 832. The district court modified

its injunction to reflect that H.B. 1390’s admitting privileges requirement was enjoined statewide

but denied the request to declare the OB-GYN requirement unconstitutional. Id. at 841-42.

According to the district court,”[t]o make that claim, Plaintiffs must show that the law creates a

substantial obstacle to the right to choose for a large fraction of women for whom the law is

relevant. Yet since the law was enacted, the number of abortions Plaintiffs perform[ed] ha[d]

increased by 17%.” Id. at 832.

For purposes of this Court’s analysis at this stage, the Court focuses on the benefits of the

OB-GYN requirement the Jackson IV district court identified and those it rejected. Id. at 837-38.

The district court, based on the record evidence before it, determined that defendants had “shown

that the ob-gyn requirement provides some benefit to women’s health in that it ensures that

physicians performing abortions in Mississippi abortion clinics are specialists in women’s

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healthcare who are trained to perform abortions or their equivalents.” Id. at 837. However, as the

district court explained, that finding alone did not satisfy the Hellerstedt inquiry. Id. Instead, the

district court was required to assess whether “the new law advance[s the state’s] legitimate interest

in protecting women’s health” “compared to prior law.” Id. (quoting Hellerstedt, 136 S. Ct. at

2311). Further, the district court observed that H.B. 1390 permitted board-eligible physicians to

perform abortions, not just board-certified doctors. Id.

Having examined those factors, the district court concluded that “the ob-gyn requirement

produces no benefit to Mississippi women as compared to prior law.” Id. at 838. Specifically, the

district court explained that, “[u]nder prior Mississippi law, all physicians associated with an

abortion facility must have either ‘completed a residency in family medicine, with strong rotation

through OB/GYN,’ ‘completed a residency in obstetrics and gynecology,’ or had ‘at least one year

of postgraduate training in a training facility with an approved residency program and an additional

year of obstetrics/gynecology residency.’” Id. at 837 (quoting Miss. Code R. § 15-16-1:

44.1.5(24)). Further, based on record evidence “board eligibility requires graduation in good

standing from an ob-gyn residency program, but it does not require the experience necessary to sit

for the American Board of Obstetrics and Gynecology oral exam or actually passing that exam.”

Id. As a result, the district court determined that defendants failed to explain how these board-

eligibility requirements were more effective than pre-existing Mississippi law that already required

substantial training in obstetrics and gynecology. Id. (citing Hellerstedt, 136 S. Ct. at 2314).

The district court then turned to examine the burdens plaintiffs contended H.B. 1390’s

OBGYN requirement imposed and rejected plaintiffs’ arguments. Id. at 838-840. As a result, as

the district court observed, it was “left with a challenged law that provide[d] no demonstrated

benefit compared to prior law, but which place[d] no substantial obstacles in the path of a large

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fraction of women to whom it is relevant.” Id. at 841 & n.9 (discussing difficulties the district

court observed in applying Hellerstedt). As a result, the district court therefore declined to enjoin

the OBGYN requirement. Id. at 841-42.

(v) Arkansas “Floor of Care” Under Act 700

The Court turns now to examine the concept of a “floor of care” with respect to the

challenge to Act 700. Before the enactment of Act 700, the law in Arkansas already required that

only a physician licensed to practice medicine in the State of Arkansas may provide abortion care.

Ark. Code Ann. § 5-61-101(a). Requiring abortion providers to be licensed medical doctors in the

State of Arkansas ensures regulation of the profession by the Arkansas State Medical Board. See

Ark. Admin. Code 0600.00.1-16 (“the Arkansas State Medical Board may revoke or suspend a

license if the practitioner is grossly negligent and becomes physically incompetent to practice

medicine to such an extent as to endanger the public.”). The Arkansas State Medical Board’s

“mission is to protect the public and act as [the public’s] advocate by effectively regulating the

practices of Medical Doctors” and others subject to its rule. See Arkansas State Medical Board,

https://www.armedicalboard.org/About.aspx (Last visited July 23, 2019). Further, to maintain an

active license to practice medicine in the State of Arkansas, there are continuing medical education

requirements that may be enforced through license suspension or revocation. See Ark. Admin.

Code 060.00.1-17 (requiring a person who holds an active license to practice medicine in the State

of Arkansas shall complete 20 credit hours per year of continuing medical education, stating that

“Fifty (50%) percent of said hours shall be in subjects pertaining to the physician’s primary area

of practice. . . .”). Among other requirements, any claim or filing of a lawsuit alleging malpractice

against a physician licensed to practice medicine and surgery in the State of Arkansas must be

reported to the Arkansas State Medical Board within ten days after receipt or notification or the

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licensed physician may face discipline up to and including revocation, suspension, or probation or

monetary fines. See Ark. Admin. Code 060.00.1-23.

In addition, in its findings of fact, the Court found that there are pre-existing rules and

regulations in Arkansas that currently govern abortion providers. To summarize these findings,

by regulation and statute in Arkansas:

• only a physician licensed to practice medicine in the State of Arkansas may provide abortion care under existing law, see Ark. Code Ann. § 5-61-101(a);

• any woman in Arkansas seeking an abortion must be evaluated via a medical history, a physical examination, counseling, and laboratory tests, see Ark. Admin. Code 007.05.2-8(A);

• Arkansas abortion facilities shall have written procedures for emergency transfer of a patient to an acute care facility, see Ark. Admin. Code 007.05.2-8(B);

• Arkansas general abortion facilities, which provide surgical abortions or both medication and surgical abortions, shall be within 30 minutes of a hospital which provides gynecological or surgical services, see Ark. Admin. Code 007.05.2-4(C); Ark. Admin. Code 007.05.2.3(J)(defining general abortion facility);

• Arkansas abortion facilities providing abortions must have various medical devices available to assist in the event of complications, see Ark. Admin. Code 007.05.2-8(C), (E);

• Arkansas abortion facilities must have a certain number of qualified personnel available to provide direct patient care, see Ark. Admin. Code 007.05.2-7; and

• Arkansas abortion facilities must satisfy a variety of ongoing obligations to educate staff about best practices to assess their own services, see Ark. Admin. Code 007.05.1-10; 007.05.2-5; 007.05.2-6(F),(G); 007.05.2-7(D). This list is not exhaustive, given the number of regulations enacted by the State of Arkansas

(Dkt. No. 4, at 18). Further, currently Arkansas abortion facilities providing medication abortions

123 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 124 of 159

must “have a signed contract with a physician who agrees to handle complications” and who has

“active admitting privileges and gynecological/surgical privileges at a hospital designated to

handle any emergencies associated with the use or ingestion of the abortion-inducing drug,” Ark.

Code Ann. § 20-16-1504(d)(1),(2). 14 Section 1504(d) of Arkansas Act 577 was the subject of a

previous constitutional challenge. See Planned Parenthood of Arkansas & Eastern Oklahoma v.

Jegley, Case No. 4:15-cv-00784-KGB, 2016 WL 6211310 (E.D. Ark. March 14, 2016), vacated

and remanded 864 F.3d 953 (8th Cir. 2017), on remand to 2018 WL 3029104 (E.D. Ark. June 18,

2018) (granting renewed motion for temporary restraining order and enjoining the enforcement of

Section 1504(d) of Arkansas Act 577); 2018 WL 3816925 (E.D. Ark. July 2, 2018) (granting

renewed motion for preliminary injunction but permitting defendants to enforce Section 1504(d)

of Arkansas Act 577 against medication abortion providers subject to the Act only to the extent

that abortion providers must make an effort to comply with Section 1504(d) by continuing to seek

a contracted physician, preliminarily enjoining defendants from imposing any civil or criminal

penalties for continuing to perform medication abortion while abortion providers subject to the

Act continue in their efforts to comply with Section 1504(d); and ordering plaintiffs to report to

the Court every 30 days on their efforts to comply with Section 1504(d)). In Jegley, this Court

examined carefully these same types of arguments with respect to Section 1504(d) of Arkansas

Act 577 that required only medication abortion providers to contract with an admitting physician.

14 To the extent defendants argue that the OBGYN sets a “floor of care” for private abortion providers in Arkansas, the Court concludes that there is no record evidence to support that argument. Specifically, there is no record evidence before the Court that any facility or physician—other than the named plaintiffs—provides abortions in Arkansas. Furthermore, even if there were private abortion providers in Arkansas, the Court concludes based upon the record evidence before it that the health and safety of women in Arkansas are not improved by the OBGYN requirement as compared to Arkansas’ pre-existing abortion regulations. 124 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 125 of 159

The Court examined the purported benefit of Section 1504(d) of Arkansas Act 577 and

concluded:

At this point, on the record before it, the Court reaffirms that PPAEO’s existing protocol casts doubt as to any benefit gained from the contracted physician requirement (Dkt. No. 2, de Baca Decl., ¶¶ 7-11). A careful review and balancing of the existing record evidence suggests that the state’s overall interest in the regulation of medication abortions through the contracted physician requirement is low and not compelling. In making this determination, the Court has taken into account the degree to which the restriction is over-inclusive or under-inclusive, see, e.g., Hellerstedt, 136 S. Ct. at 2315, and the existence of alternative, less burdensome means to achieve the state’s goal, including whether the law more effectively advances the state’s interest compared to prior law, see, e.g., id. at 2311, 2314. The Court remains persuaded, for now, that PPAEO and Dr. Ho have established that Section 1504(d)’s contracted physician requirement does little if anything to advance Arkansas’ “legitimate interest in protecting women’s health.” Hellerstedt, 136 S. Ct. 2311.

Jegley, 2018 WL 3816925, at *45 (E.D. Ark. July 2, 2018).

Then, the Court proceeded to analyze the burdens based on record evidence presented at

that stage of the proceedings. Id., at *51-67. In sum, the Court concluded:

Having considered separately the benefits and burdens of Section 1504(d)'s contracted physician requirement, the Court must next resolve the ultimate question of whether Section 1504(d) creates an undue burden. . . .

Plaintiffs have shown that “in a large fraction of the cases in which [the contracted physician requirement] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion.” Casey, 505 U.S. at 895 (majority opinion); see Hellerstedt, 136 S. Ct. at 2318 (striking down an admitting privileges requirement because the law “provides few, if any, health benefits for women” and “poses a substantial obstacle to women seeking abortions”); Jegley, 864 F.3d at 959 (“[I]n order to sustain a facial challenge and grant a preliminary injunction, the district court was required to make a finding that the Act's contract-physician requirement is an undue burden for a large fraction of women seeking medication abortions in Arkansas.”); id. at 690 n.9 (“The question here ... is whether the contract-physician requirement's benefits are substantially outweighed by the burdens it imposes on a large fraction of women seeking medication abortion in Arkansas.”).

125 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 126 of 159

Because Section 1504(d) likely does not “confer[ ] benefits sufficient to justify the burdens upon access [to abortion] that [it] imposes,” Hellerstedt, 136 S. Ct. at 2301, the Court finds that plaintiffs are likely to prevail on the merits of their due process challenge that Section 1504(d) is facially unconstitutional because it places a “substantial obstacle to a woman's choice” to terminate a pregnancy before viability in “a large fraction of the cases in which” it “is relevant.” Hellerstedt, 136 S. Ct. 2313 (quoting Casey, 505 U.S. at 895 (majority opinion)).

Id., at *68-69. This Court did not alter its analysis of the regulation, nor did the Eighth Circuit

Court of Appeals review this Court’s most recent analysis of the regulation or issue an opinion

with respect to the merits of it. Instead, plaintiffs in Jegley submitted a status report indicating

that they complied, and the parties filed a “Joint Motion to Vacate Preliminary Injunction and

Dismiss Appeal,” which the Eighth Circuit granted (Jegley, Case No. 4:15-cv-00784-KGB, Dkt.

No. 171). That is the result of the case, and where the case stands today. To suggest any more or

less with respect to the holding or lessons to be learned from Jegley is disingenuous at best.

As a result of this outcome in Jegley, currently the “floor of care” in Arkansas differs for

medication abortion and surgical abortion as a result of Section 1504(d) of Arkansas Act 577. The

Arkansas legislature did not add the contracted physician requirement to surgical abortion

providers. Instead, the Arkansas legislature enacted Act 700 to require that only physicians who

are board-certified or board-eligible in obstetrics and gynecology perform any abortion—

medication or surgical—in Arkansas.

c. Act 700: Analysis Of Alleged Medical Benefit

Defendants assert two goals are purportedly advanced by Act 700: (1) protecting mothers’

health and safety (Dkt. No. 43, at 47), and (2) ensuring and maintaining professionalism, medical

knowledge, judgment, skill, and a commitment to improving the quality of patient care (Dkt. No.

43, at 48). Again, the relevant question before the Court is whether Act 700’s requirement provides

the asserted benefits as compared to the prior law. See Hellerstedt, 136 S. Ct. at 2311 (“We have

126 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 127 of 159

found nothing in Texas’ record evidence that shows that, compared to the prior law, . . . the new

law advanced Texas’ legitimate interest in protecting women’s health.”); id. at 2314 (“The record

contains nothing to suggest that [the challenged law] would be more effective than pre-existing

Texas law . . . .”) (emphasis added). As a result, the Court analyzes the alleged benefits of Act 700

in comparison to prior Arkansas law and regulation.

Even if this Court were inclined to agree that defendants under the circumstances have

presented the interests they identify, the Court concludes that, on the record evidence before it at

this stage of the proceeding, plaintiffs are likely to prevail on their argument that Act 700 fails to

advance those interests more effectively than pre-existing Arkansas law and regulation because

Act 700 provides no discernable medical benefit in the light of the realities of abortion care,

training, and practice in Arkansas and across the county.

As an initial matter, there is record evidence that the ACOG has recognized that clinicians

from many medical specialties can provide safe abortion care and that requiring board-certification

in OBGYN is “medically unnecessary” and “designed to reduce access to abortion.” (Decl. of

Frederick W. Hopkins, M.D., M.P.H., ¶ 38 n.14; Decl. of Linda W. Prine, M.D., ¶ 21, n.4 (quoting

The Am. Coll. of Obstetricians and Gynecologists, Increasing Access to Abortion (ACOG

Committee Opinion No. 613), available at https://www.ncbi.nlm.nih.gov/pubmed/25437742)).

The President of the American Academy of Family Physicians (“AAFP”) likewise adopted in 2014

a resolution opposing laws that “impose[d] on abortion providers unnecessary requirements that

infringe on the practice of evidence-based medicine.” (Decl. of Linda W. Prine, M.D., ¶ 22

(quoting Am. Acad. of Family Physicians, Resolution No. 10001, Oppose Targeted Regulation

Against Abortion Providers (TRAAP laws),

http://www.aafp.org/about/constituencies/resources/past-ncsc/2014.html)). In November 2014,

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ACOG’s Committee on Health Care for Underserved Women issued a Committee Opinion

emphasizing that “[s]afe, legal abortion is a necessary component of women’s health care.” The

Am. Coll. of Obstetricians and Gynecologists, Increasing Access to Abortion (ACOG Committee

Opinion No. 613), available at https://www.ncbi.nlm.nih.gov/pubmed/25437742. Consistent with

that, the Committee Opinion states that ACOG recommends “expand[ing] the pool of first-

trimester medication and aspiration abortion providers to appropriately trained and credentialed

advanced practice clinicians in accordance with individual state licensing requirements.” Id.

According to publicly available information, ACOG “is the specialty’s premier

professional membership organization dedicated to the improvement of women’s health. With

more than 58,000 members, the College is a 501(c)(6) organization and its activities include

producing the College’s practice guidelines and other educational material.” The Am. Coll. of

Obstetricians and Gynecologists, About Us, https://www.acog.org/About-ACOG/About-Us (last

checked July 23, 2019). According to publicly available information, the AAFP is a national

association of family doctors with over 131,400 physician and student members. Am. Acad. of

Family Physicians, https://www.aafpcareerlink.org/ (last checked July 23, 2019). In determining

whether regulations actually further women’s health, the Supreme Court has repeatedly looked at

the generally accepted standards for medicine set by the nation’s major health organizations. See,

e.g., Simopoulos v. Virginia, 462 U.S. 506, 517 (1983) (considering ACOG and other standards).

The positions taken by the ACOG and the AAFP are consistent with other record evidence before

this Court at this stage of the proceedings, including record evidence regarding recommendations

from the National Abortion Federation, a professional association of abortion providers and the

leading organization offering accredited medical education to healthcare professionals in all

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aspects of abortion care, and the American Public Health Association (Decl. of Linda W. Prine,

M.D., ¶¶ 23, 24).

The Court notes that defendants make no argument in their filings at this stage to refute or

undercut these representations regarding the positions taken by the ACOG, the AAFP, or any of

the other professional associations cited. Dr. Aultman, who offers expert opinions on behalf of

defendants in her declaration but who did not testify at the July 22, 2019 hearing, is a Fellow of

the ACOG (Dkt. No. 49-6, ¶ 2). She does not criticize the ACOG in her declaration. The Court

acknowledges that Dr. Harrison, who offers expert opinions on behalf defendants in her declaration

that seem confined to Act 610 and who did testify at the July 22, 2019, hearing was critical in her

hearing testimony of the ACOG (Dkt. No. 49-7). However, defendants cite the Court to no

contrary consensus evidence specific to abortion care.

Plaintiffs assert that “[t]raining, rather than specialty, determines competence to provide

abortion care. . . .” (Decl. of Linda W. Prine, M.D., ¶ 18-20; Decl. of Frederick W. Hopkins, M.D.,

M.P.H., ¶ 35-37). Record evidence is that, across the nation, roughly one-third of abortion

providers come from specialties other than OBGYN (Decl. of Linda W. Prine, M.D., ¶ 20). Record

evidence is that abortion care is safely provided around the country up to at least 22 weeks LMP

by non-OBGYN providers; record evidence before the Court is that abortion is only available in

Arkansas at LRFP up to 21.6 weeks LMP (Decl. of Linda W. Prine, M.D., ¶ 20; Decl. of Frederick

W. Hopkins, M.D., M.P.H., ¶¶ 35-37). Further, record evidence establishes that medical schools

and teaching hospitals around the country routinely use non-OBGYN faculty members to train

residents and fellows in the provision of abortion care (Decl. of Linda W. Prine, M.D., ¶ 20; Decl.

of Frederick W. Hopkins, M.D., M.P.H., ¶ 35-37). None of the defendants’ expert witnesses refute

129 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 130 of 159

this record evidence regarding medical schools and teaching hospitals using non-OBGYN faculty

members to train residents and fellows in the provision of abortion care. 15

Perhaps more importantly, there is no record evidence that competence in abortion care is

a prerequisite for becoming a board-certified or eligible OBGYN (Decl. of Linda W. Prine, M.D.,

¶ 21, n.4; Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶¶ 35-37). Defendants assert that board

certification in OBGYN currently “requires training” to perform procedures “that are functionally

identical to surgical abortions, such as suction dilation and curettage” (Dkt. No. 43, at 49 (citing

Decl. of Kathi Aultman, M.D.)). However, the record supports that OBGYN residents can opt out

of any abortion training (Decl. of Linda W. Prine, M.D., 21 n.4; Decl. of Frederick W. Hopkins,

M.D., M.P.H., 38 n.14; Decl. of Janet Cathey, M.D., ¶ 13), and many board-certified OBGYNs

have never even observed an abortion (Decl. of Linda W. Prine, M.D., 21 n.4; Decl. of Frederick

W. Hopkins, M.D., M.P.H., 38 n.14; ). Training in OBGYN does not entail training in all aspects

of abortion care; instead, the record evidence is that practitioners must specifically seek out this

training. Further, there is no record evidence that OBGYN board certification requires

demonstrated skill in providing abortion care or requires specific continuing education or

competence in abortion care. At the hearing, Dr. Hopkins stated that OBGYNs are not necessarily

comfortable or competent to provide abortion care. Furthermore, the National Academy

Consensus Study Report, cited by Dr. Prine, states that “trained physicians, OB/GYNs, family

medicine physicians and other physicians and APCs, physician assistants, certified nurse

15 The Court also notes that Dr. Horton was board-eligible for approximately eight years, but he never became board-certified because he never obtained the necessary case list. Dr. Horton states that board eligibility or certification is not relevant to the competent provision of abortion care (Dec. of Thomas Russell Horton, Jr., M.D., ¶ 22). 130 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 131 of 159

midwives, and nurse practitioners, can provide medication and aspiration abortions safely and

effectively.” National Academy Consensus Study report, at 14.

In Jackson IV, the district court in Mississippi noted that Mississippi law at that time

required that “all physicians associated with an abortion facility must have either ‘completed a

residency in family medicine, with strong rotation through OB/GYN,’ ‘completed a residency in

obstetrics and gynecology,’ or had ‘at least one year of postgraduate training in a training facility

with an approved residency program and an additional year of obstetrics/gynecology residency.’”

320 F. Supp. 3d 828 at 837 (quoting Miss. Code R. § 15-16-1: 44.1.5(24)). Those requirements

seem to be related to and a “better fit” with the defendants’ asserted interests here than a board-

certified or board-eligible OBGYN requirement for all abortion providers, especially considering

the record evidence presented.

Based on the record evidence at this stage of the proceeding, the two expert witnesses cited

by defendants in support of this requirement have no experience in teaching abortion practitioners

or training OBGYN residents or fellows themselves. Neither Dr. Aultman nor Dr. Harrison cite

to this type of experience (see Decl. of Kathi Aultman, M.D.; Rebuttal Decl. of Kathi Aultman,

M.D.; Decl. of Donna J. Harrison, M.D.). Instead, Dr. Aultman appears to have reviewed websites

and literature to prepare her declaration, not relied upon her experience. At this stage of the

proceeding, on the record evidence before it, the Court finds this evidence unpersuasive, especially

when compared to the testimonies of Dr. Hopkins, Dr. Prine, Dr. Tvedten, and Dr. Cathey with

respect to teaching abortion practitioners and training OBGYN residents and fellows.

Defendants claim that Arkansas women “deserve better” than doctors with “just a

minimally certified medical license” to perform abortion care (Dkt. No. 43, at 49). Currently,

under Arkansas law, to maintain an active license to practice medicine in the State of Arkansas,

131 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 132 of 159

there are continuing medical education requirements that may be enforced through license

suspension or revocation. See Ark. Admin. Code 060.00.1-17 (requiring a person who holds an

active license to practice medicine in the State of Arkansas shall complete 20 credit hours per year

of continuing medical education, stating that “Fifty (50%) percent of said hours shall be in subjects

pertaining to the physician’s primary area of practice. . . .”). Further, any claim or filing of a

lawsuit alleging malpractice against a physician licensed to practice medicine and surgery in the

State of Arkansas must be reported to the Arkansas State Medical Board within ten days after

receipt or notification or the licensed physician may face discipline up to and including revocation,

suspension, or probation or monetary fines. See Ark. Admin. Code 060.00.1-23. Defendants make

no argument as to why these current requirements are insufficient or why board-eligible or board-

certified OBGYN requirements would be better suited to address defendants’ asserted interests,

especially in the light of the current record evidence.

Further, even if the Court assumes that a board-eligible or board-certified OBGYN will

receive training on procedures such as suction dilation and curettage and that such training is

correlated to the competent provision of surgical abortions, which is the limited argument

defendants make with respect to training that correlated to Act 700, there is no record evidence

that board-eligible or board-certified OBGYNs with such training will be competent to provide

abortion care; plaintiffs’ witnesses uniformly describe the need to seek such training on abortion

care outside of and in addition to most residency programs. Also, there is no record evidence that

such training is relevant to the provision of medication abortion, which is not analogous to “suction

dilation and curettage” identified by defendants. While defendants argue that mediation abortion

is more likely to involve complications than surgical abortion (Dkt. No. 43, at 49-50), the Court is

highly skeptical of such assertions given the record evidence before it and the findings of numerous

132 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 133 of 159

other courts to have examined such statistics. To the extent defendants rely on Dr. Aultman’s

declaration to support this claim, her declaration is a survey of data that is not Arkansas specific,

and does not clearly indicate the protocol used to administer the medication abortion in the case

studies she recites (see Decl. of Kathi Aultman, M.D.; Rebuttal Decl. of Kathi Aultman, M.D.).

The Court examined and rejected, at least at the temporary restraining order and preliminary

injunction stage, similar claims in Jegley. Jegley, 2018 WL 3816925, at *28, *42.

Even if the Court accepts defendants’ contention as true at this point in the litigation,

defendants do not explain how Act 700 would change that or how Act 700 would address that

contention in any more meaningful way than the current contracted physician requirement for

medication abortion providers. Currently, the “floor of care” in Arkansas is different for

medication abortion and surgical abortion as a result of Section 1504(d) of Arkansas Act 577 as

examined in Jegley. The Arkansas legislature did not add the contracted physician requirement to

surgical abortion providers, although the record evidence in Jegley offered by defendants to

support Section 1504(d) of Arkansas Act 577 prompted this Court to question whether the

contracted physician requirement was under-inclusive by failing to do so based on the record

evidence defendants proffered. See, e.g., Jegley, 2018 WL 3816925, at *24 n.4, *43. Instead of

extending the contracted physician requirement, with which Arkansas medication abortion

providers were able to comply, the Arkansas legislature enacted Act 700 to require that only

physicians who are board-certified or board-eligible in OBGYN perform any abortion—

Defendants now claim that “even practitioners who intend to provide only medication

abortion should be competent to perform surgical abortions because, as noted, surgical follow-up

is often necessary to deal with complications.” (Dkt. No. 43, at 50). Dr. Hopkins states that “[a]ny

133 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 134 of 159

clinician with adequate training in abortion care can safely and effectively handle” the most

common abortion complications, even though such complications are rare (Decl. of Frederick W.

Hopkins, M.D., M.P.H., ¶ 38).

In the event a significant complication does arise from an abortion, Dr. Hopkins states that

an abortion provider would transfer or direct the patient to the nearest hospital to receive the

required care (Id., ¶ 39). If the complication is retained tissue following a medication abortion,

Dr. Hopkins states that ACOG Practice Bulletin 143 states that the abortion provider should be

trained in surgical abortion “or should be able to refer to a clinician trained in surgical abortion.”

Defendants again claim “patient abandonment,” (Dkt. No. 43, at 50), a claim this Court

rejected in Jegley given current regulations governing abortion providers in Arkansas and the care

they are required to provide. See, e.g., Jegley, 2018 WL 3816925 at *39-40. Defendants claim

the current contracted physician requirement might result in a contracted physician

“geographically too far away to provide continuity of care” as a reason to support Act 700’s

constitutionality (Dkt. No. 43, at 50). Defendants in fact suggested in questioning that the

contracted physician requirement could be met by a physician who resides out of state. See, e.g.,

Jegley, 2018 WL 3816925, at *37. The Court cited this as one reason, among many, to reject as

medically unnecessary and unconstitutional the current contracted physician requirement for

medication abortion providers. See, e.g., Id., at *37-38. 16

16 Currently, there is record evidence that plaintiffs comply with the contracted physician requirement for medication abortion providers. At the July 22, 2019, hearing, Dr. Tvedten testified that, although LRFP has “a signed contract with a physician who agrees to handle complications” and who has “active admitting privileges and gynecological/surgical privileges at a hospital designated to handle any emergencies associated with the use or ingestion of the abortion-inducing drug.” Ark. Code Ann. § 20-16-1504(d)(1),(2). There is no record evidence that any LRFP patient 134 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 135 of 159

Defendants cite to a study about the value of board certification generally, but the Court

concludes that is of little, if any, value because that study does not focus on abortion care or

advance an argument that the board-eligible or board-certified OBGYN requirement improves

patient care in the abortion setting (Dkt. No. 44-1, at 70-80). This study also does nothing to

address the value of board certification eligibility, which Act 700 permits for abortion providers.

To the extent defendants contend that the OBGYN requirement brings the regulations

governing abortion providers closer to existing regulations for hospitals or birthing centers that are

required to administer medication under the supervision of a licensed pharmacist (Dkt. No. 43, at

50-51 (citing Ark. Admin. Code 0007.05.17-16(E); 007.05.12-11(A)(2)), plaintiffs maintain that

Arkansas law already requires abortion providers to dispense medication abortion under the

supervision of a licensed pharmacist (Dkt. No. 61, at 32-33 (citing Ark. Admin Code 007.05.2-

11(A)(2)). There is no record evidence that OBGYN board certification, or OBGYN board

certification eligibility, advances defendants’ asserted interest in protecting mother’s health and

safety with respect to medication abortion over the existing laws and regulations in Arkansas.

To the extent defendants assert an interest in benefitting “the medical profession by

ensuring that practitioners are accountable” for keeping their professional knowledge and skills up

to date (Dkt. No. 43, at 48), the historical overview offered by defendants is not specific to

Arkansas licensed medical providers, Arkansas abortion care, or the realities of abortion care

training, and education currently as evidenced by this record. Act 700 does not encourage

physicians to “continue to develop their knowledge and skills” (Dkt. No. 43, at 51) because there

is no requirement that an abortion provider continue to develop his or her knowledge or skills with

or doctor has called on the contracted physician at any point nor is there any record evidence that the contracted physician has been involved in providing abortion patient care. 135 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 136 of 159

respect to abortion requirements to maintain OGBYN board certification or board eligibility.

Record evidence supports that most aspects of abortion care are not covered by OBGYN board

certification or board eligibility training. Further, Act 700 permits doctors who are merely eligible

for OBGYN board certification to provide abortion care, but defendants do not explain how

eligibility for OBGYN board certification advances defendants’ claimed interest in having

abortion providers with up-to-date knowledge. Record evidence demonstrates that existing

regulations for Arkansas licensed medical providers and Arkansas abortion facilities and their staff

implement a floor of care as to these requirements. See Ark. Admin. Code 0600.00.1-16; 060.00.1-

17; 060.00.1-23 (regarding Arkansas licensed medical providers); Ark. Admin. Code 007.05.1-10;

007.05.2-5; 007.05.-6(F),(G); 007.05.2-7(D) (regarding Arkansas abortion facilities). In

particular, the Court notes that Arkansas regulations require abortion providers to provide “annual

in-service education programs for professional staff” and provide “current nursing literature and

reference materials.” Ark. Admin. Code. 007.05.2-7(D). Defendants do not explain how Act 700

more effectively advances the state’s interest compared to prior law.

Citing to a “comprehensive meta-analysis of the literature on physician capability over the

course of a career,” as defendants do in this case, does little to persuade the Court when there is

no indication this “meta-analysis” is OBGYN or abortion provider specific and no indication that

this evidence relates specifically to Arkansas (Dkt. No. 43, at 51). Further, even Dr. Harrison, who

is a board-certified OBGYN and has held such certification continuously since 1993, but who has

not practiced medicine in a clinical setting in approximately 20 years, 17 admitted in her testimony

17 During her hearing testimony on July 22, 2019, Dr. Harrison admitted to typographical errors in the opening paragraphs of her Declaration. She completed her residency training in OBGYN between 1986 and 1990, not 2000 (Decl. of Donna J. Harrison, M.D., ¶ 1), and she joined a multispecialty group in an underserved area of Michigan in 1993, not 2003 (Id., ¶ 1). She has not been involved directly with patient care since approximately 2000. Dr. Harrison, like Dr. 136 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 137 of 159

on cross examination at the July 22, 2019, hearing that despite her status as a board-certified

OBGYN she would not attempt to offer abortion care with her current skill set having not recently

provided any care. This type of record evidence from defendants’ own expert witness significantly

undercuts the argument that Act 700 is a “commonsense” method to increase physician

competency as physicians gain more years of practice (Dkt. No. 43, at 51).

Defendants also make an argument that Act 700 imposes specific requirements on abortion

providers “to address the fact that mothers seeking abortions ‘are less likely to litigate medical

malpractice claims.’” (Dkt. No. 43, at 52 (citing Tucson Woman’s Clinic v. Eden, 379 F.3d 531,

545 (9th Cir. 2004)). The Court rejects this argument. In Dr. Aultman’s “rebuttal declaration,”

she raises issues with respect to Dr. Tvedten’s prior conviction for second degree criminal

mischief 18 and a temporary, brief license suspension and suspension of his ability to prescribe

certain medications for a brief period of time in response to an incident (Rebuttal Decl. of Kathi

Aultman, M.D., ¶ 10). As an initial matter, defendants’ efforts to cast doubt on Dr. Tvedten’s

competence as an abortion provider through this type of evidence fall short. There is record

evidence that Dr. Tvedten is a competent, highly skilled practitioner who regularly trains others

and receives referrals from other medical professionals due to his skilled abortion care.

Further, the evidence offered by defendants demonstrates that current regulations exist to

address the concerns they raise; complaints may be lodged with the Arkansas State Medical Board

which has regulatory authority to address such complaints. See Ark. Admin. Code 0600.00.1-16;

Tvedten, settled out of court two lawsuits alleging medical malpractice while she was engaged in patient care. 18 This incident relates to Dr. Tvedten, after requesting that the individual stop photographing without their consent women attempting to enter an abortion clinic, breaking the camera of the individual. Dr. Tvedten relayed that he was required to purchase the individual a new camera. 137 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 138 of 159

060.00.1-17; 060.00.1-23 (regarding Arkansas licensed medical providers). Even malpractice

allegations must be reported to the Arkansas State Medical Board. See Ark. Admin. Code

060.00.1-23. To suggest that patients must have a method outside of a malpractice lawsuit to

ensure competence as a reason to justify Act 700 overlooks the Arkansas licensure requirement

and the role of the Arkansas State Medical Board in that process. Defendants fail to address why

current regulations are insufficient or why a board-certified or board-eligible OBGYN requirement

better serves these claimed interests.

This type of analysis that the Court engages in here goes directly to the degree to which

the restriction is over-inclusive or under-inclusive, see, e.g., Hellerstedt, 136 S. Ct. at 2315, and

the existence of alternative, less burdensome means to achieve the state’s goal, including whether

the law more effectively advances the state’s interest compared to prior law. See, e.g., Hellerstedt,

136 S. Ct. at 2311, 2314.

As a result of the foregoing, this Court concludes at this preliminary stage of the litigation

that plaintiffs are likely to prevail on their argument that “there [is] no significant health-related

problem” Act 700 “help[s] to cure”; nor is it “more effective than pre-existing [state] law” in

advancing defendants’ asserted interests. Hellerstedt, 136 S. Ct. at 2311, 2314.

2. Act 700: Inability To Comply With the OGBYN Requirement

Before turning to analyze the burdens allegedly imposed by the OBGYN requirement, the

Court will first address defendants’ argument that any such burdens are the result of plaintiffs’

own actions or omissions rather than the OBGYN requirement. Casey requires a contextualized

inquiry into how an abortion restriction interacts with facts on the ground, not only on the law’s

direct effects. 505 U.S. at 887-895 (majority opinion); see Planned Parenthood Arizona, Inc. v.

Humble, 753 F.3d 905, 915 (9th Cir. 2014). In Casey, the Supreme Court struck down

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Pennsylvania’s husband notification requirement as creating an undue burden, finding that, due to

the fact that “millions of women in this country . . . are victims of regularly physical and

psychological abuse at the hands of their husbands,” a “significant number of women who fear for

their safety and the safety of their children are likely to be deterred from procuring an abortion as

surely as if the Commonwealth had outlawed abortion in all cases.” 505 U.S. at 894 (majority

opinion). There, the State of Pennsylvania did not cause spousal abuse, but such abuse was the

background context against which the Court measured the burdens created by the husband

notification provision. Accordingly, at this stage of the litigation, the Court rejects defendants’

argument that the Court cannot assess burdens that the State has not directly caused.

Defendants argue that the qualifying OBGYNs who have agreed to provide care at LRFP

and PPAEO Little Rock have chosen “to limit their own availability to perform abortions.” (Dkt.

No. 43, at 56). They argue also that Dr. Cathey, Dr. Hopkins, and Dr. Browne have limited their

own availability, so therefore any burden that accrues to Arkansas women as a result of the

OBGYN requirement is the result of those self-imposed limitations (Id., at 57). Further,

defendants claim that plaintiffs made no attempt to locate alternative providers (Id.). Defendants

point out that plaintiffs are not limited to board-certified or board-eligible OBGYNs in Arkansas

and that there are currently over 51,673 board-certified OBGYNs in the United States who could

obtain a medical license in Arkansas (Id.). Defendants maintain that any incidents of stigma or

harassment relating to abortion care providers are “anecdotal” and, even if such stigma or

harassment makes it more difficult for abortion providers to hire a qualifying practitioner, that this

obstacle is not caused by the State (Id., at 58). Defendants also point out that Dr. Tvedten’s 2015

letter expressed how much he “apparently enjoys being an abortion practitioner” in Arkansas and

that Dr. Tvedten’s letter belies his assertions of “intolerable stigma and harassment.” (Id.

139 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 140 of 159

(emphasis omitted)). Defendants also point out that the economic renumeration of acting as an

abortion provider “will quickly and certainly attract a qualified provider of surgical abortion to the

state.” (Id., at 59).

The weight of the record evidence, at least at this preliminary stage of the litigation, does

not support defendants’ arguments. Dr. Cathey avers that three and a half days of abortion care

per week is the maximum she can provide, given her personal and professional obligations (Decl.

of Janet Cathey, M.D., ¶ 8). She is currently providing three days of care a week for eight to ten

hours a day, so her alleged availability has increased from her current schedule. She alleges that

she has a physical injury that continues to produce physical limitations, and she has other

professional obligations—including Social Security disability consultations and transgender

patients—that prevent her from increasing her provision of abortion care (Id.). The record

evidence also indicates that Dr. Rodgers is semi-retired due in part to health issues that prevent

him from providing patient care for long hours or multiple days a week (Id.). The Court finds that

these representations are credible and do not represent “self-imposed limitations” but are instead

reasonable professional limitations that prevent Dr. Cathey and Dr. Rodgers from providing

additional abortion care.

Similarly, the record evidence shows that Dr. Browne and Dr. Hopkins have not self-

imposed limitations on their ability to provide abortion care in Little Rock. Dr. Browne lives in

the State of Washington and is employed in that state (Decl. of Charlie Browne, M.D., ¶ 1). He

previously provided abortion care at LRFP but ceased doing so because the travel time was

disruptive professionally and due to harassment from protestors he suffered while working at

LRFP (Id., ¶¶ 9-10). Dr. Browne has agreed to provide abortion care for LRFP but only for two

to three days in July 2019 (Id., ¶ 14). He cannot offer more help to LRFP due to his professional

140 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 141 of 159

and personal obligations in Seattle, Washington (Id.). As for Dr. Hopkins, he lives in California

and travels to Arkansas to provide abortion care at LRFP approximately once every two months

for “three to four days every other month.” (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 44).

He states that he is unable to visit Arkansas more frequently due to his clinical and teaching

positions in California and because of the personal danger he believes exists as a result of providing

abortions in Arkansas (Id., ¶¶ 48, 49, 51). As with Dr. Cathey and Dr. Rodgers, the record evidence

here indicates that the limitations preventing Dr. Browne and Dr. Hopkins from providing

additional abortion care are not “self-imposed” but instead are the understandable result of the

logistical difficulties posed by working in Arkansas while living in California or Washington state.

The record evidence also belies any claim that plaintiffs did not attempt to contact

alternative qualifying providers. The fact that there are thousands of board-certified or board-

eligible OBGYNs in the United States is a non sequitur; the OBGYN requirement also requires

that abortion providers be licensed to practice medicine in Arkansas. Additionally, the record

evidence indicates that LRFP sent a letter to each board-certified OBGYN listed on the Arkansas

Medical Board’s licensure list, in which LRFP stated that it was seeking a part-time, board-

certified OBGYN to see patients three days a week (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶

36). The letter also noted that the compensation was “generous.” (Id.). Additionally, Ms. Williams

submitted a request to a national organization that matches abortion providers with clinics, and

through these efforts two physicians expressed preliminary interest, though neither was able to

accept because they are not licensed to practice medicine in Arkansas (Id., ¶ 37). Indeed, Dr.

Browne and Dr. Hopkins have agreed to work for LRFP as a result of these outreach efforts.

Further, as described by Dr. Hopkins, it is understandable that qualifying physicians might have

qualms about moving to Arkansas to provide abortion care, given the number of statutes and

141 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 142 of 159

regulations recently enacted to regulate the provision of abortion care and the uncertainty

surrounding the ability of any provider to offer such care in the future. Based upon this record

evidence, the Court concludes that plaintiffs have made reasonable efforts to comply with the

OBGYN requirement.

The Court also concludes that the record evidence indicates that the harassment and stigma

faced by abortion providers in Arkansas is an obstacle to compliance with the OBGYN

requirement. Like the benefit analysis, the rule articulated in Casey requires the Court to look to

the context of the OBGYN requirement to assess the burdens imposed. Here, multiple abortion

providers have offered evidence regarding their personal experiences with harassment and stigma

in Arkansas: Dr. Browne testified that the harassment and stigma he experienced in Arkansas was

“far more prevalent and aggressive” than any other he had experienced (Decl. of Charlie Browne,

M.D., ¶ 12). Dr. Horton testified that each day protestors block the entrance to LRFP and that he

has been the subject of bomb threats in nearby Memphis, Tennessee (Decl. of Thomas Russell

Horton, Jr., M.D., ¶¶ 26-27). Ms. Williams testified that medical students fear to drive their own

vehicles or wear clothing identifying themselves as medical professionals when they come to

LRFP for medical training (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 39). Ms. Williams also

states that anti-abortion advocates have targeted her personally by sending a letter with her name,

address, and picture to several hundred of her neighbors (Id., ¶ 41). While it is true that defendants

have not caused the harassment described in the record, established precedent requires the Court

to consider the context of the OBGYN requirement while assessing the burdens imposed by it.

Additionally, the Court is not convinced that Dr. Tvedten’s description of the positive

aspects of acting as an abortion provider negates the record evidence relating to the harassment

and stigma faced by abortion providers. While Dr. Tvedten described the positive aspects of

142 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 143 of 159

providing abortion care in a letter designed to encourage medical students to join his practice, the

Court does not view these descriptions as minimizing the risks of performing abortion care in

Arkansas, which include, as demonstrated by the record evidence, risks to the professional

reputation and physical safety of abortion providers

For all these reasons, the Court finds that, based on the record evidence before it at this

stage of the litigation, LRFP and PPAEO Little Rock are likely to prevail on their claim that they

are unable to comply with the OBGYN requirement beyond the extent to which they have already

done so.

3. Act 700: Considering Out-Of-State Doctors And Patients

In Jegley, this Court declined to consider the availability of abortions at out-of-state clinics

when determining if the contracted physician requirement imposes an undue burden on women

seeking medication abortions in Arkansas. Other federal courts have held that States may not

outsource their duty to protect the constitutional rights of their citizens. Jackson Women’s Health

Org. v. Currier, 760 F.3d 448, 457 (5th Cir. 2014), cert denied, 136 S. Ct. 2536 (2016) (holding

that the undue-burden analysis “focuses solely on the effects within the regulating state”); see

Schimel, 806 F.3d at 918 (rejecting argument that the availability of second-trimester abortions in

Chicago could justify the closure of Wisconsin’s only abortion clinic); see also Strange III, 33 F.

Supp. 3d at 1360-61 (even if out-of-state providers were considered, 80 mile distance to out-of-

state clinic means the “threshold difficulties related to losing an abortion clinic in her home city”

still present a burden).

This Court’s reluctance to consider out-of-state abortion providers in this analysis finds

additional support in State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). There, the

Supreme Court held that the University of Missouri law school could not deny Lloyd Gaines

143 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 144 of 159

admission to the school on the basis of his race, even though the University offered him a stipend

to use at a law school in an adjacent state. Id. at 342. The Supreme Court reasoned that:

[T]he obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction . . . . That obligation is imposed by the Constitution upon the States severally as governmental entities,— each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no state can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system.

Id. at 350.

While Gaines was an equal protection case—this is a due process case—the Court finds

that its logic applies here. See Currier, 760 F.3d 448, 457 (citing Gaines for the proposition that

Mississippi could not rely upon neighboring states to reduce the undue burden placed on women

by abortion restrictions). Further, the text of the Due Process Clause is clear: no “State” shall

“deprive any person of life, liberty, or property, without due process of law . . . .” U.S. Const.

amend. XIV, § 1. This constitutional command is directed at the States, and “no State can be

excused from performance by what another state may do or fail to do.” Gaines, 305 U.S. at 350.

The Court acknowledges that the Supreme Court did not explicitly address whether out-of-

state abortion facilities should be considered in the undue burden analysis. See Hellerstedt, 136

S. Ct. at 2304. Prior to the Supreme Court’s ruling in Hellerstedt, the Fifth Circuit reversed the

district court’s finding that abortion restrictions were unconstitutional as-applied to the El Paso

clinic because women in El Paso could and did use abortion providers in nearby New Mexico.

Specifically, the Fifth Circuit noted that, if the El Paso clinic closed, there was an abortion facility

“approximately twelve miles away in Santa Teresa, New Mexico,” and that “independent of the

actions of the State,” “Texas women regularly choose to have an abortion in New Mexico.” See

Cole, 790 F.3d at 596-97 (emphasis in original). Still, rather than upholding the Fifth Circuit’s

144 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 145 of 159

decision, the Supreme Court reversed the Fifth Circuit’s decision and found that the same statute

at issue in Cole was facially unconstitutional because it imposed an undue burden on women

seeking abortions. Hellerstedt, 136 S. Ct. at 2318.

Given the legal authorities reviewed by this Court and the possibility that a neighboring

state might unilaterally alter access to abortion, the Court declines to consider out-of-state abortion

providers in this analysis. This Court infers that, if the availability of an out-of-state abortion

provider within 12 miles of the Texas border was not enough in Hellerstedt to ameliorate the

burdens imposed by Texas’ surgical-center requirement, then the distances at issue in this case to

out-of-state abortion providers will not relieve any undue burden created by the OBGYN

requirement.

4. Act 700: Burdens Imposed By The OBGYN Requirement

The Court will first analyze whether the burdens created by the OBGYN requirement

entitle plaintiffs to facial relief. Plaintiffs argue that they are entitled to facial relief because, if the

OBGYN requirement goes into effect, the number of abortions provided by LRFP and PPAEO

Little Rock will be drastically reduced, preventing women who would have otherwise obtained

abortions at those facilities from obtaining abortions at all. There is record evidence that, if the

OBGYN requirement goes into effect, LRFP and PPAEO Little Rock will be forced to offer fewer

abortions than they can in the absence of the OBGYN requirement. There is also record evidence

that, at this time, PPAEO Fayetteville offers no abortion care, so LRFP and PPAEO Little Rock

are the only abortion providers in the State of Arkansas. In sum, therefore, plaintiffs argue that

since the OBGYN requirement will reduce the number of abortions that can be provided by LRFP

and PPAEO Little Rock, the OBGYN requirement is facially unconstitutional.

145 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 146 of 159

To evaluate the burdens imposed by the OBGYN requirement, the Court must first define

the group of women whose burdens must be analyzed. See Hellerstedt, 136 S. Ct. at 2320 (“[T]he

relevant denominator is ‘those [women] for whom [the provision] is an actual rather than an

irrelevant restriction.’”) (quoting Casey, 505 U.S. at 895 (majority opinion)). In Hellerstedt, the

Supreme Court reaffirmed that a law creates an undue burden when it places a “substantial obstacle

to a woman’s choice” in “a large fraction of the cases in which” it “is relevant.” 136 S. Ct. at 2313

(quoting Casey, 505 U.S. at 895 (majority opinion)). In their original brief-in-support of their

motion for a temporary restraining order/preliminary injunction, plaintiffs appear to argue that the

“relevant denominator” in this case is “women who seek abortion care in Arkansas . . . .” (Dkt.

No. 4, at 42). In their supplemental brief-in-support, plaintiffs also argue that the OBGYN

requirement creates an undue burden on “women who would otherwise seek abortion care in Little

Rock . . . .” (Dkt. No. 37, at 36). Defendants appear to assert that the “relevant denominator” is

“all Arkansas women seeking abortions.” (Dkt. No. 43, at 68). At this preliminary stage of the

proceeding, the Court will consider all Arkansas women seeking abortions as the denominator as

defendants appear to suggest.

The Court next turns to examine the “large fraction” test. The Eighth Circuit has expressed

skepticism that 4.8 to 6.0% is sufficient to qualify as a “large fraction.” Jegley, 864 F.3d at 959

n.8 (citing Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361, 374 (6th Cir. 2006)). The Eighth

Circuit reversed and remanded this Court’s prior preliminary injunction in Jegley, determining

that, “in order to sustain a facial challenge and grant a preliminary injunction,” this Court is

“required to make a finding that the Act’s contract-physician requirement is an undue burden for

a large fraction of women” for whom the Act is relevant. Id. at 959 (emphasis added).

146 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 147 of 159

The Court now turns to analyze and attempt to quantify, based upon the record evidence at

this stage of the proceedings, the burdens imposed by the OBGYN requirement.

5 Act 700: Effective Ban On Surgical Abortions

First, the Court finds that every Arkansas woman in seeking a surgical abortion in Arkansas

faces a burden due to the OBGYN requirement. The record evidence indicates that LRFP is the

only abortion provider in the state that currently provides surgical abortions and that, if LRFP is

forced to close as a result of the OBGYN requirement, no other surgical abortion provider will

exist in Arkansas. The Court also acknowledges record evidence that some women have a strong

preference for surgical abortions “because it requires fewer visits to the clinic, and thus is

associated with a lower burden in terms of funding and time.” (Decl. of Lori Williams, M.S.N.,

A.P.R.N., ¶ 15).

Defendants point to a finding by the Sixth Circuit that “the Supreme Court has not

articulated any rule that would suggest that the right to choose abortion” articulated in Casey

“encompasses the right to choose a particular abortion method.” Planned Parenthood Southwest

Ohio Region v. DeWine, 696 F.3d 490, 516 (6th Cir. 2012) (emphasis in original).

The Court acknowledges that, under the holding in DeWine, the unavailability of a certain

method of abortion does not, by itself, create a substantial obstacle to a woman’s right to have an

abortion if other methods of pre-viability abortion remain available. Regardless, the Court finds

that the record evidence does support an inference that a lack of surgical abortion in Arkansas

would present some burden to those women who prefer surgical abortions over medication

abortions and for whom surgical abortion maybe a better or the only option for reasons supported

by this record. Thus, the Court concludes that, if the OBGYN requirement effectively ends

surgical abortions in Arkansas, the OBGYN requirement burdens those women who are seeking

147 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 148 of 159

surgical abortions in Arkansas. Indeed, given that the record evidence indicates that 2,212 surgical

abortions are currently provided by LRFP, if each of these abortions is no longer available, then a

large fraction of Arkansas women for whom the OBGYN requirement is relevant will face a

substantial obstacle to their right to an abortion.

Even if this burden, by itself, does not render the OBGYN requirement a “substantial

obstacle in the path of a woman’s choice,” Hellerstedt, 136 S. Ct. at 2312 (citing Casey, 505 U.S.

at 877 (plurality opinion)), the Court will not discount it as some evidence of burden. To make

the ultimate “substantial obstacle” determination, the burden imposed by the total or partial

elimination of surgical abortions “must be taken together with other[]” burdens caused by the

OBGYN requirement and weighed against “any health benefit” to determine if an “undue burden”

exists. Id. at 2313.

6. Act 700: Reduction In Abortions Due To The OBGYN Requirement

The record evidence before the Court demonstrates that PPAEO Fayetteville is currently

not offering abortion care. The record evidence also indicates that, currently, LRFP offers both

surgical and medication abortions and that PPAEO Little Rock only offers medication abortions.

Dr. Lindo explains that, currently, 3,167 abortions are performed annually in Arkansas, which

includes Arkansas residents and non-residents (Supp. Decl. of Jason Lindo, Ph.D., ¶ 10). He also

avers that, on average over the past three years, 2,779 Arkansas residents obtain abortions each

year (Id., ¶ 51). The record evidence also indicates that, on average, 1,927 Arkansas women seek

surgical abortions in Arkansas annually (Id., ¶ 61). While there is no direct record evidence

indicating how many Arkansas women sought medication abortions on average over the past three

148 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 149 of 159

years, the Court infers that 852 19 Arkansas residents sought medication abortions on average over

the past three years. Dr. Lindo also explains that the Little Rock clinics perform 2,614 abortions

annually (Id., ¶ 8).

Plaintiffs have presented record evidence that, if the OBGYN requirement goes into effect,

LRFP will either be forced to close or offer far fewer abortions than it currently does. Specifically,

Dr. Lindo avers that, regardless of whether the OBGYN requirement forces LRFP to close, Dr.

Rodgers and Dr. Cathey will be able to provide 956 abortions annually at PPAEO Little Rock (Id.,

¶ 9). Dr. Lindo estimates Dr. Rodgers’ capacity to provide medication abortions based upon the

maximum number of abortions he provided in any given month over the past three years. Dr.

Lindo estimates Dr. Cathey’s capacity similarly and adds 17% to her capacity due to her plan to

expand the number of days she provides services from 3 to 3.5 days per week. Based upon this

data, Dr. Lindo estimates that, if the OBGYN requirement goes into effect, Dr. Rodgers can

provide 480 medication abortions annually and that Dr. Cathey can provide 476 abortions

annually. The Court notes that, since these estimates are based upon the maximum number of

abortions each of these physicians has provided in the past, these estimates likely overestimate

each providers’ capacity due to the assumption that each provider will provide abortion care at his

or her maximum rate over a sustained period.

If LRFP can remain open with the OBGYN requirement in effect, then Dr. Lindo projects

that Dr. Hopkins will be able to provide 252 surgical abortions at LRFP. Dr. Lindo generated this

number based upon the fact that, according to Dr. Lindo, the most women that Dr. Hopkins has

served in any given day at LRFP since 2017 is 21, and therefore Dr. Hopkins will likely serve 42

women every other month, if he spends a business week at LRFP during which he does informed-

19 2,779-1,927=852. 149 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 150 of 159

consent appointments one day a week and provides abortions the other two days (Decl. of Jason

Lindo, Ph.D., ¶ 49). Under Dr. Lindo’s projections, these 252 20 annual surgical abortions will be

the only abortions available at LRFP (Id.).

Defendants argue that plaintiffs “have not supplied any evidence concerning how many

medication abortions they can provide per day.” (Dkt. No. 43, at 69). This is incorrect: as stated

above, Dr. Lindo’s projections are based upon the past numbers of abortions provided by the

physicians at LRFP and PPAEO Little Rock. Defendants also point to Dr. Lindo’s declaration as

proof that “one provider in a single, three-hour period per week could provide at least 624 abortions

per year.” (Id., at 69). But the declaration that defendants point to is specifically referencing Dr.

Paulson’s capacity to provide medication abortions at PPAEO Fayetteville, and in that declaration

Dr. Lindo specifically states that, since he lacks any historical data on Dr. Paulson’s capacity to

provide medication abortions, he is relying on PPAEO Fayetteville’s representation that Dr.

Paulson will be able to provide abortions to a maximum of 12 patients each week (Decl. of Jason

Lindo, Ph.D., ¶ 49(c)). Thus, given that this projection is specific to Dr. Paulson’s particular

situation, the Court declines to assume that all abortion providers could provide up to 624

medication abortions in a given year.

Defendants also argue that plaintiffs have understated Dr. Hopkins’ capacity to perform

surgical abortions; by defendants’ estimate, Dr. Hopkins should be capable of providing 525

surgical abortions annually (Dkt. No. 43, at 69). To reach this conclusion, defendants point to Ms.

Williams’ declaration that LRFP can safely and effectively “provide abortion care up to

approximately 20-25 women per day . . . .” (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 17).

Defendants next argue that, if Dr. Hopkins “continues his practice of providing 25 surgical

20 42*6=252. 150 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 151 of 159

abortions at LRFP an average of 3.5 days a week every-other month, then he will perform 525

surgical abortions a year (25 abortions x 3.5 days x 6 time = 525 abortions per year).” (Id.). 21 Yet

this seemingly simple calculation misrepresents the record: Ms. Williams testified that Dr.

Hopkins has provided only six percent of LRFP’s abortion care, and Dr. Lindo used this data to

calculate Dr. Hopkins’ capacity to provide abortions at 252 per year. Ms. Williams did not aver

that Dr. Hopkins currently provides 25 abortions per day. Further, construing Ms. Williams’

statement reasonably, the Court understands her position to be that LRFP can currently provide 25

abortions a day based upon its current providers. The Court does not understand her statement to

be that one abortion provider can provide 25 abortions a day at LRFP.

With these preliminary points addressed, the Court turns to analyze the number of women

who record evidence at this preliminary stage indicates plaintiffs likely will be able to demonstrate

will be forced to forego an abortion due to the OBGYN requirement. Based upon the record

evidence, if the OBGYN requirement goes into effect and LRFP closes, then plaintiffs likely will

be able to demonstrate the only abortions offered in Arkansas will be medication abortions at

PPAEO Little Rock, and the record evidence indicates that Dr. Rodgers and Dr. Cathey—the only

board-certified OBGYNs providing care at PPAEO Little Rock—can provide up to 956

medication abortions annually (Supp. Decl. of Jason Lindo, Ph.D., ¶ 11). Accordingly, if those

956 medication abortions are the only abortions available in Arkansas, then of the 2,779 Arkansas

21 At the hearing, defendants presented evidence that the maximum number of daily abortions Dr. Hopkins ever provided at LRFP was 28, not 21. Under the formulation suggested by defendants above, if Dr. Hopkins were to provide 28 abortions a day for three and a half days every other month, he would perform a total of 588 surgical abortions annually. The assertion that Dr. Hopkins can perform a total of 28 abortions a day questionable given the other record evidence currently before the Court. Even if the Court were to accept it as true, it does not substantially alter the Court’s calculations, which are detailed below.

151 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 152 of 159

women who seek abortions in Arkansas annually, 1,823 22 (or 66% 23) of all Arkansas women

seeking abortions in Arkansas will be denied an abortion. 24 The Court notes that this calculation

assumes without any record evidence that any woman denied a surgical abortion could instead

receive a medication abortion.

Even if the OBGYN requirement does not force LRFP to close entirely, the record evidence

at this stage shows that Dr. Hopkins will be the only physician capable of providing abortions at

LRFP under the OBGYN requirement. Further, the record evidence at this stage shows that, based

upon his prior ability to provide abortions, Dr. Hopkins will be able to provide only 252 abortions

per year at LRFP. Accordingly, in conjunction with the 956 medication abortions that Dr. Rodgers

and Dr. Cathey will be able to provide, the total number of abortions that will be available in

Arkansas if LRFP remains open is 1,208. 25 Accordingly, of the 2,779 Arkansas women who

annually seek abortions in Arkansas, 1,571 26 (or 57% 27) of them will not be able to obtain an

abortion in Arkansas. 28

22 2,779-956=1,823. 23 1,823/2,779=66%. 24 Alternatively, out of the 2,614 women (including non-residents of Arkansas) who seek abortions in Little Rock annually, 1,658 (or 63%) of them will not be able to receive abortions in Arkansas if LRFP closes. Additionally, out of the 3,167 women who seek abortions in Arkansas annually, 2,211 (or 70%) of those women will not be able to receive abortions if LRFP closes. 25 956+252=1,208. 26 2,779-1,208=1,571. 27 1,571/2,779=57%. 28 Alternatively, of the 2,614 women (including non-residents of Arkansas) who annually seek abortions in Little Rock, 1,406 (or 54%) of them will not be able to obtain an abortion in Arkansas if Dr. Hopkins can provide 252 abortions annually. Furthermore, if only 1,208 women can receive abortions in Little Rock even if LRFP is able to provide some abortions under the 152 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 153 of 159

In sum, using the number of Arkansas women who seek abortions in Arkansas as the

denominator of the large fraction calculation, the record evidence indicates that anywhere from

57-66% of Arkansas women who wish to have an abortion will be unable to obtain an abortion in

Arkansas. Based upon this record evidence, viewed cumulatively, the Court concludes that the

OBGYN requirement places a “substantial obstacle in the path of a woman’s choice.” Hellerstedt,

136 S. Ct. at 2312 (citing Casey, 505 U.S. at 877 (plurality opinion)).

Per Hellerstedt, the Court considers these burdens cumulatively to determine if a large

fraction of Arkansas women seeking abortions in Arkansas face a “substantial obstacle in the path

of [their] choice.” 136 S. Ct. at 2312, 2313 (noting that different burdens—driving distance and

clinic closings—should be considered together). Applying the “large fraction” test from

Hellerstedt, Casey, and Jegley, considering all of the burdens presented in the record evidence at

this stage of the proceedings and the controlling precedents, the Court finds that, for a large fraction

of women seeking abortions in Arkansas, the OBGYN requirement “places a ‘substantial obstacle

in the path of a woman’s choice.’” Hellerstedt, 136 S. Ct. at 2312 (citing Casey, 505 U.S. at 877

(plurality opinion)).

7. Act 700: Weighing The Benefits And Burdens

Having considered separately the benefits and burdens of the OBGYN requirement’s

contracted physician requirement, the Court must next resolve the ultimate question of whether

the OBGYN requirement creates an undue burden. Challenges to statutes affecting abortions may

succeed only if a plaintiff can show that “in a large fraction of the cases in which [the law] is

relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.”

OBGYN requirement, of the 3,167 women who seek abortions anywhere in Arkansas annually, 1,959 (or 62%) of them will not be able to obtain an abortion in Arkansas.

153 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 154 of 159

Casey, 505 U.S. at 895 (majority opinion); see Hellerstedt, 136 S. Ct. at 2318 (striking down an

admitting privileges requirement because the law “provides few, if any, health benefits for women”

and “poses a substantial obstacle to women seeking abortions”); Jegley, 864 F.3d at 959 (“[I]n

order to sustain a facial challenge and grant a preliminary injunction, the district court was required

to make a finding that the Act’s contract-physician requirement is an undue burden for a large

fraction of women seeking medication abortions in Arkansas.”); id. at 690 n. 9 (“The question here

. . . is whether the contract-physician requirement’s benefits are substantially outweighed by the

burdens it imposes on a large fraction of women seeking medication abortion in Arkansas.”).

In regard to the benefit of the OBGYN requirement, analyzing the record evidence

currently before the Court at this stage of the litigation, and binding and persuasive legal

precedents, this Court concludes at this stage that the OBGYN requirement confers little if any

benefit on those women who are affected by it.

In regard to burdens, considered cumulatively, the record evidence at this stage of the

litigation demonstrates that the OBGYN requirement, given plaintiffs’ limited ability to comply

with it, substantially burdens a large fraction of Arkansas women seeking abortions which is the

group for whom the law is relevant. See Casey, 505 U.S. at 895 (majority opinion) (holding that

the undue burden analysis looks “to those for whom [the challenged law] is an actual rather than

an irrelevant restriction.”).

Weighing the benefits and burdens, given the foregoing evidence in the record currently

before the Court at this stage of the litigation and given binding and persuasive legal precedents,

the Court determines that Act 700’s OBGYN requirement, given plaintiffs’ limited ability to

comply with it, imposes substantial burdens on a large fraction of Arkansas women seeking

abortions against a near absence of evidence that the law promotes any state interest or provides

154 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 155 of 159

any benefits to those women. See Hellerstedt, 136 S. Ct. at 2318 (striking down an admitting

privileges requirement because the law “provides few, if any, health benefits for women” and

“poses a substantial obstacle to women seeking abortions”); Van Hollen III, 738 F.3d at 798 (“The

feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of

disproportionate or gratuitous.”) (emphasis added); West Alabama Women’s Ctr. v. Miller, 299 F.

Supp. 3d 1244, 1286 (M.D. Ala. 2017) (noting fetal demise law was passed in pursuit of legitimate

goals, but those goals were not sufficient to justify “such a substantial obstacle to the

constitutionally protected right to terminate a pregnancy before viability”); Planned Parenthood

of Indiana and Kentucky, Inc. v. Comm’r, Indiana State Dep’t of Health, 273 F. Supp. 3d 1013,

1039 (S.D. Ind. 2017) (noting undue burden where law required ultrasound viewing a day before

an abortion rather than the day of the abortion because this change provided little to no benefit

when measured against prior law). In other words, the Court concludes that, based upon the limited

record before it at this stage of the litigation, requiring abortion providers to be board-certified or

board-eligible OBGYNs presents a substantial undue burden for a large fraction of women seeking

abortions in Arkansas, with little to no benefit to those women.

Plaintiffs have shown that “in a large fraction of the cases in which [the OBGYN

requirement] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo

an abortion.” Casey, 505 U.S. at 895 (majority opinion); see Hellerstedt, 136 S. Ct. at 2318

(striking down an admitting privileges requirement because the law “provides few, if any, health

benefits for women” and “poses a substantial obstacle to women seeking abortions”). Because

Act 700’s OBGYN requirement likely does not “confer[] benefits sufficient to justify the burdens

upon access [to abortion] that [it] imposes,” Hellerstedt, 136 S. Ct. at 2301, the Court finds that

plaintiffs are likely to prevail on the merits of their due process challenge that Act 700’s OBGYN

155 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 156 of 159

requirement is unconstitutional as it is applied to LRFP, Dr. Tvedten, and their patients because it

places a “substantial obstacle to a woman’s choice” to terminate a pregnancy before viability in “a

large fraction of the cases in which” it “is relevant.” Hellerstedt, 136 S. Ct. 2313 (quoting Casey,

505 U.S. at 895 (majority opinion)).

8. Equal Protection Challenge To Act 700

For the reasons discussed elsewhere in this Order, the Court finds that plaintiffs are likely

to prevail on their due process claims. Accordingly, the Court will not, at this time, consider

whether plaintiffs are likely to prevail on their claims under the Equal Protection Clause of the

Fourteenth Amendment.

D. Irreparable Harm

A plaintiff seeking a temporary restraining order must establish that the claimant is “likely

to suffer irreparable harm in the absence of preliminary relief.” Winter v. Nat. Res. Def. Council,

Inc., 555 U.S. 7, 20 (2008). The deprivation of constitutional rights “unquestionably constitutes

irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); Planned Parenthood of Minn., Inc.

v. Citizens for Cmty. Action, 558 F.2d 861, 867 (8th Cir. 1977) (same).

Plaintiffs allege that the enactment and enforcement of Acts 493, 619, and 700 will inflict

irreparable, tangible injuries on plaintiffs’ patients by forcing them to delay access to abortion care

or remain pregnant against their will. Plaintiffs also argue that the abortion providers will suffer

irreparable harm to their professional reputations if they are forced to cease providing desired

medical services and that LRFP will be irreparably harmed by being forced to close or reduce its

hours of operations (Dkt. No. 61, at 52-53). Defendants argue that the OBGYN requirement does

not prevent any woman from deciding whether to have an abortion at any stage of pregnancy and

that there is no evidence that Acts 493 or 619 will prevent any women from obtaining an abortion

156 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 157 of 159

(Dkt. No. 43, at 101). Defendants also assert that an injunction would cause irreparable harm to

the State if it is not allowed to enforce the duly elected statutes enacted by the Arkansas legislature

(Id., at 102).

For now, this Court finds, based on the state of the record before the Court at this stage of

the proceeding, that Acts 493, 619, and 700 cause ongoing and imminent irreparable harm to the

plaintiffs and their patients. As detailed above, the record at this stage of the proceeding indicates

that Acts 493 and 619 unconstitutionally ban pre-viability abortions. Additionally, the record at

this stage of the proceeding indicates that Act 700’s OBGYN requirement imposes an undue

burden on the right of women in Arkansas to seek an abortion. The harms to women who are

unable to obtain abortion care as a result of Acts 493, 619, and 700 are irreparable. See Roe, 410

U.S. at 153 (describing “[s]pecific and direct harm” from forced childbirth). Furthermore, the

State has no interest in enforcing laws that are unconstitutional, and therefore, since plaintiffs have

demonstrated at least at this preliminary stage and on the record currently before the Court that

they are likely to prevail on the issue of whether Acts 493, 619, and 700 are unconstitutional, an

injunction preventing the State from enforcing Acts 493, 619, and 700 does not irreparably harm

the State. See Hispanic Interest Coal. of Ala. v. Governor of Ala., 691 F.3d 1236, 1249 (11th Cir.

2012). Since the record at this stage of the proceedings indicates that Arkansas women seeking

abortions face an imminent threat to their constitutional rights, the Court concludes that they will

suffer irreparable harm without injunctive relief.

E. Balance Of Equities And The Public Interest

Plaintiffs argue that they and their patients “unquestionably face far greater irreparable

harm if the challenged requirements take effect” than “Defendants face if the laws’ enforcement

is enjoined . . . .” (Dkt. No. 4, at 65). Plaintiffs point out that if the Court grants injunctive relief,

157 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 158 of 159

the immediate result will be the maintenance of the status quo, i.e., “the availability of safe and

effective abortion care.” (Id.). Defendants, however, argue that the “status quo is that duly enacted

laws take effect without interventions of courts” and that the public interest weighs against

injunctive relief because the public has an interest in seeing the laws enforced and protecting

patient health (Dkt. No. 43, at 102).

The Court must examine this case in the context of the relative injuries to the parties and

to the public. Dataphase, 640 F.2d at 114. The Eighth Circuit has stated that “whether the grant

of a preliminary injunction furthers the public interest . . . is largely dependent on the likelihood

of success on the merits because the protection of constitutional rights is always in the public

interest.” Rounds, 530 F.3d at 752. After balancing the relative injuries and the equities, while

evaluating the limited record before it, the Court finds that the enforcement of Acts 493, 619, and

700 at least at this stage would result in greater irreparable harm to plaintiffs and their patients than

to the State. Accordingly, at this stage of the proceeding, the Court finds that the threat of

irreparable harm to plaintiffs, and the public interest, outweighs the immediate interests and

potential injuries to the defendants.

F. Security

Under Federal Rule of Civil Procedure 65(c), a district court may grant a temporary

restraining order “only if the movant gives security in an amount that the court considers proper

to pay the costs and damages sustained by any party found to have been wrongfully enjoined or

restrained.” Fed. R. Civ. P. 65(c). In these proceedings, defendants have neither requested security

in the event this Court grants a temporary restraining order nor have they presented any evidence

that they will be financially harmed if they are wrongfully enjoined. For these reasons, the Court

declines to require security from plaintiffs.

158 Case 4:19-cv-00449-KGB Document 83 Filed 07/23/19 Page 159 of 159

IV. Conclusion

For the foregoing reasons, the Court determines that plaintiffs have met their initial burden

for the issuance of a temporary restraining order. Therefore, the Court grants plaintiffs’ motion

for a temporary restraining order and/or preliminary injunction, to the extent the motion seeks a

temporary restraining order (Dkt. No. 2). The Court hereby orders that defendants, and all those

acting in concert with them, including their employees, agents, and successors in office, are

temporarily enjoined from enforcing Act 493 of 2019, Act 619 of 2019, and Act 700 of 2019.

Further, defendants are enjoined from failing to notify immediately all state officials responsible

for enforcing the requirements of Act 493 of 2019, Act 619 of 2019, and Act 700 of 2019, about

the existence and requirements of this temporary restraining order. Pursuant to Federal Rule of

Civil Procedure 65(b)(2), this temporary restraining order shall not exceed 14 days from the date

of entry of this Order and shall expire by its own terms on Tuesday, August 6, 2019, at 11:45 p.m.

The Court enters this Order on Tuesday, July 23, 2019, at 11:45 p.m.

_______________________________ Kristine G. Baker United States District Judge