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LITTLE ROCK, Arkansas, April 20, 2020 (LifeSiteNews) – The United States Court of Appeals for the Eighth Circuit has allowed the state of Arkansas to ban abortions amid the coronavirus pandemic, thus overturning a prior ruling by a federal judge.
United States Circuit Judge Bobby E. Shepherd, a nominee of President George W. Bush, concluded the directive of the Arkansas Department of Health banning abortions “bears a real and substantial relation to the State’s interest in protecting public health in the face of the COVID-19 pandemic.”
At the same time, Shepherd pointed out that the directive “does not operate as an outright ban on all or virtually all pre-viability abortions. First, the directive does not apply to medication abortions, which are available in Arkansas up to 10 weeks.”
“Moreover,” the judge continued, “contrary to the district court’s finding, the directive does not operate as an outright ban on pre-viability abortions for women who are past 10 weeks … or for whom medication abortion is contraindicated.”
He also noted there was an exception to the abortion ban if “there is a threat to the patient’s life if the procedure is not performed.”
Finally, the court pointed out that “the total number of Arkansas residents infected with, and dying from, COVID-19 is growing daily; PPE [personal protective equipment] continues to be used; and state officials remain concerned with continued spread of the disease, supply shortages, and burdens on hospitals and other healthcare facilities.”
Shepherd wrote that with the prior ruling, “the district court committed a serious error in failing to meaningfully apply the Jacobson framework, which resulted in a clear abuse of discretion.”
“The consequence of this error, which effectively ‘bestow[ed] on [surgical] abortion providers a blanket exemption from a generally-applicable emergency public health measure,’ is magnified because of its ‘effect on the [S]tate’s ongoing emergency efforts to slow COVID-19,’” he added.
“Further, we think that in so doing, the district court ‘usurped the power of state authorities bypassing judgment on the wisdom and efficacy of … emergency measures’ in the midst of a public health crisis.”
On April 14, District Judge Kristine G. Baker, who was nominated by President Barack Obama during his first term, had prohibited the authorities from enforcing the state’s provisions “against any providers of surgical abortions in Arkansas to bar all surgical abortions.”
On April 3, the Arkansas Department of Health had issued a directive “on Elective Surgeries.”
“Procedures, testing, and office visits that can be safely postponed shall be rescheduled to an appropriate future date,” the directive stated. Exceptions to this rule were essentially only “a threat to the patient’s life,” as well as “a risk that the patient’s condition will rapidly deteriorate.”
A week later, on April 10, Arkansas Attorney General Leslie Rutledge clarified that the April 3 directive included abortion centers.
“All medically unnecessary surgeries and procedures, including abortions, must be postponed until after this crisis has ended. Those who violate the Department of Health’s directive will be met with decisive action, and my office will forcefully defend the State officials involved in keeping Arkansans safe,” Rutledge said.
Not long after, on April 13, the American Civil Liberties Union (ACLU) announced it was taking “emergency legal action … on behalf of Little Rock Family Planning Services and its patients to prevent the state from using the guise of the COVID-19 crisis to prevent people from obtaining abortion care.”
Within a day, the United States District Court for the Eastern District of Arkansas had agreed with ACLU’s reasoning, arguing that the directive of the state Department of Health appears to “unconstitutionally restrict pre-viability abortions and, therefore, [is] facially unconstitutional.”