Little Rock Family Planning Services v. Rutledge, No. 19-2690 (8th Cir. 2021)
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LRFP challenged the constitutionality (42 U.S.C. 1983) of three 2019 Arkansas statutes: Act 493 bans providers from performing an abortion when the “probable age” of the fetus is “determined to be greater than eighteen weeks’ gestation,” with exceptions for a medical emergency or a pregnancy that results from rape or incest; Act 619 prohibits a provider from intentionally performing an abortion with knowledge that the pregnant woman is seeking the abortion “solely on the basis” of any reason to believe that the fetus has Down syndrome, with exceptions if the abortion is necessary to preserve the woman’s life or health and for rape or incest; and Act 700, providing that a person who performs an abortion must be a licensed physician “board-certified or board-eligible in obstetrics and gynecology” (OBGYN). A provider who violates these statutes commits a Class D felony and is subject to suspension or revocation of his medical license.
The district court preliminarily enjoined enforcement of the Acts. The Eighth Circuit affirmed with respect to Act 493 and Act 619 and dismissed as moot the appeal concerning Act 700 because the plaintiffs were in compliance with the OBGYN requirement. Defendants presented no generally accepted medical evidence that the attainment of viability has shifted; Act 493 effectively prohibits a substantial universe of pre-viability abortions. Act 619 is a complete prohibition of abortions based on the pregnant woman’s reason for exercising the right to terminate her pregnancy before viability.
Court Description: [Loken, Author, with Shepherd and Erickson, Circuit Judges] Civil case - Abortion law. In this challenge to the constitutionality of three Arkansas statues enacted in 2019 regulating abortion, the district court did not err in entering an order granting a preliminary injunction against the enforcement of Act 493 (Ark. Code Ann. Sec. 20-16-2004 which bans providers from performing an abortion when the "probable age" of the fetus is determined to be greater than 18 week) or Act 619 (Ark. Code Ann. Sec. 20-16-2103 which prohibits a provider from intentionally performing an abortion with knowledge that the woman is seeking the abortion "solely on the basis" that the fetus has Down syndrome); the portion of the appeal challenging the preliminary injunction of enforcement of Act 700 (Ark. Code Ann. Sec. 20-16-606 which provides that a person who performs an abortion must be a licensed physician, board-certified or board-eligible in obstetrics and gynecology) is dismissed as moot, and the matter is remanded to the district court with directions to vacate this part of its Preliminary Injunction order; defendant's appeal of the district court's consolidation orders is dismissed, and their request that the case be reassigned on remand is denied; the parties shall bear their own costs on appeal as there is no prevailing party for purposes of 42 U.S.C. Sec. 1988(b). Judge Shepherd, with whom Judge Erickson joins, concurring.
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