The Supreme Court refused on Monday to hear a challenge to an Arkansas law that could force two of the state’s three abortion clinics to close.
The law concerns medication abortions, which use pills to induce abortions in the first nine weeks of pregnancy. The law, enacted in 2015, requires providers of the procedure to have contracts with doctors who have admitting privileges at a hospital in the state.
The law is quite similar to one in Texas that was struck down by the Supreme Court in 2016.
Writing for the majority in the 5-3 decision, Justice Stephen G. Breyer said the Texas law, which required doctors performing abortions to have admitting privileges at a nearby hospital, placed “a substantial obstacle” in the path of women seeking abortions and amounted to an “undue burden on abortion access” in violation of the Constitution.
Judges considering laws restricting access to abortion, Justice Breyer added, must make a cost-benefit calculation, weighing the burdens a law imposes on abortion access against the benefits it confers.
Judge Kristine G. Baker, of the Federal District Court in Little Rock, blocked the Arkansas law, saying its medical benefits were few at best and outweighed by the burdens it imposed. The law, she wrote, quoting an earlier decision, was “a solution in search of a problem.”
But a unanimous three-judge panel of the United States Court of Appeals for the Eighth Circuit, in St. Louis, vacated that decision, saying that Judge Baker had not specified how many women would be affected.
Arkansas has three abortion clinics. One, in Little Rock, offers both medication and surgical abortions. The others, in Little Rock and Fayetteville, offer only medication abortions.
In its appeal to the Supreme Court, the local Planned Parenthood affiliate said it contacted every qualified doctor it could identify. No one of them, the group said, was willing to enter into the contract required by the law. This was unsurprising, Judge Baker found, as doctors in Arkansas who perform abortions “risk being ostracized from their communities and face harassment and violence toward themselves, their family, and their private practices.”
Arkansas officials told the Supreme Court that Planned Parenthood had not tried hard enough or told the doctors how much it was willing to pay.
If the law were to go into effect, Planned Parenthood said, only surgical abortions would be available in Arkansas. “This will particularly affect women who strongly prefer medication abortion,” the group told the Supreme Court, “including those who find it traumatic to have instruments placed in their vaginas because they are victims of rape, incest, or domestic violence, as well as women for whom medication abortion is medically indicated and safer than surgical abortion.”
In their Supreme Court brief in the case, Planned Parenthood of Arkansas & Eastern Oklahoma v. Jegley, No. 17-935, Arkansas officials responded that “there is no right to choose medication abortion.”
They added that their state’s law was not as onerous as the one from Texas, which required abortion providers to have admitting privileges. “Arkansas law only requires medication abortion providers to have a contractual relationship (to ensure follow-up treatment if needed) with a physician that has admitting privileges,” the officials’ brief said.
The law would effectively require women to travel long distances to obtain even the abortion procedure that remained available, Planned Parenthood told the justices. Women in Fayetteville, for instance, would have to make a 380-mile round-trip journey, twice, as Arkansas law also requires an in-person counseling session 48 hours before an abortion.
“Inability to travel to the sole remaining clinic in the state will lead some women to take desperate measures, such as attempting to self-abort or seeking care from unsafe providers,” Judge Baker wrote.
Medication abortions are considered quite safe. One study found that six of every 10,000 women who used the procedure experienced complications requiring hospitalization.
Since women typically take the second drug in the two-pill regimen at home, which may not be near the clinic, it is not clear that having a doctor on contract would make them safer than simply visiting an emergency room, Judge Baker wrote.
“Emergency room physicians are well qualified to evaluate and treat most complications that can arise after a medication abortion,” she wrote, adding that the relevant medical issues are “identical to those suffered by women experiencing miscarriage, who receive treatments in hospitals every day through emergency physicians.”
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