Reproductive health care in the state of Arkansas may have just suffered a serious blow after a ruling on Tuesday, May 29. The Supreme Court's Arkansas abortion law ruling could effectively shut down access to all but one of the state's clinics. The law, which until now has not gone into effect, places restrictions on physicians providing medication-based abortion.
The Supreme Court voted on Tuesday to reject a challenge to the case, Planned Parenthood v. Jegley, which means that a 2015 Arkansas law to restrict medical abortions will stay in place. The law requires physicians performing medically induced abortions to have active contracts with physicians who have admitting privileges at a nearby hospital.
The Supreme Court's denial upholds a decision made previously by the lower court which cited a lack of evidence regarding how many women would be affected by the law. In effect, the Arkansas law means that the state would be left with just one clinic at which patients can receive medication abortions.
The prosecution, reproductive health care advocacy group Planned Parenthood Federation of America (PPFA), released a statement Tuesday, saying,
This morning, Planned Parenthood is notifying patients that they can no longer come for their procedures and can no longer access medication abortion at all, even if it's their personal preference or medically indicated. Now, women who would have otherwise been able to have an abortion in Fayetteville will be forced to go out-of-state for an abortion or make a 380-mile round trip (more than 5 hours of travel time) to access an abortion in Little Rock.
PPFA was pushing to have the law rescinded, arguing that it restricted access to abortions in a state with just three clinics to begin with. The group initially sued the state over the law in December 2015, just before it was to go into effect. In the time since, PPFA was successful in getting court-issued injunctions, temporarily preventing the law from taking effect while the case was being argued. Tuesday's decision clears the way for the law to take effect, barring further legal actions.
The decision Tuesday breaks ranks with the court's 2016 decision on Whole Women's Health v. Hellerstedt in which the court struck down a Texas law for having a similar requirement of hospital admitting privileges. As with Planned Parenthood, these requirements have become a lynchpin in abortion laws. Admitting privileges mandate doctors to have a relationship with a hospital and be verified in order to submit a patient. Some argue this is a good thing, but others say it places unnecessary burdens on providers (and, in turn, on patients), given that ERs themselves don't require referrals to treat patients and that medication abortions have low complication rates.
"There's no added benefit for having backup physicians with admitting privileges," Dr. Daniel Grossman, an OB/GYN and professor at the University of California, San Francisco who also served as an expert witness in the Whole Women's Health case, tells me in an interview for Elite Daily.
In what may have come as a surprise to some, even the liberal justices voted not to take up the Arkansas case this week, which, some argue, could have something to do with the makeup of the current court. The Texas law was heard in 2016 after the death of Antonin Scalia, a conservative voter, and before Neil Gorsuch was appointed and confirmed to replace him. Tuesday's decision was heard by a court including Justice Gorsuch, a conservative justice whose views on abortion are a toss-up. As Leah Litman, an assistant professor of law, theorized on Twitter, it might not make sense for liberals to grant a case now, given that the court's makeup moving forward remains uncertain.
Additionally, as University of Texas Law professor Steve Vladeck explained in a tweet, the initial decision about the Arkansas law "was hyper-narrow, and based upon the absence of factual findings that the district court can now make on remand." In other words, the court can send the case back to a lower court with instructions.
The Arkansas law effectively stripped away the convenience of the medication abortion option. According to the Guttmacher Institute, medication abortions accounted for about a third of all non-hospital abortions in the country in 2014. Medication abortions are done using abortion pills — not to be confused with emergency contraceptives like Plan B. (While abortion pills end a pregnancy, morning-after pills prevent a pregnancy from happening in the first place.) Abortion pills typically come in the form of Mifeprex, which alters progesterone levels so that the body cannot continue an existing pregnancy, and misoprostol, which causes the uterus to contract.
A medication abortion can, medically speaking, be administered by someone other than a physician, since the process involves simply taking pills, meaning that patients could forego the costs and logistics of an in-office procedure.
"Women often have a strong preference about whether they want a medical or surgical procedure," says Grossman. "Some women really want the privacy afforded by the medication abortion ... and will do everything they can to try to get their preferred procedure." Medication abortions are fairly safe, Grossman adds, with a complication rate of less than half a percent.
Grossman says the decision is more a result of legal workings than a question about the science itself. "Medical professionals are really quite clear about [medication abortions]," says Grossman. "There aren't unanswered medical questions pertaining to this."
Ironically, the law might not even stop women from receiving the treatment, it would just make it much more difficult to obtain. "That doesn't mean that women in the state can't get it," Grossman points out, "but they'll have to travel much farther to get it, and they'll still be back home in Arkansas when they take it."
Now that the SCOTUS has rejected the challenge, PPFA can return to the lower court to seek further legal action and signaled it would do so, vowing "to move swiftly for emergency relief in the district court."