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Planned Parenthood of Arkansas & Eastern Oklahoma v. Jegley

United States Court of Appeals, Eighth Circuit

July 28, 2017

Planned Parenthood of Arkansas & Eastern Oklahoma, on behalf of itself and its patients, doing business as Planned Parenthood Great Plains; Stephanie Ho, MD, on behalf of herself and her patients Plaintiffs - Appellees
v.
Larry Jegley, Prosecuting Attorney for Pulaski County, in his official capacity, his agents and successors; Matt Durrett, Prosecuting Attorney for Washington County, in his official capacity, his agents and successors Defendants - Appellants American Public Health Association; American College of Obstetricians and Gynecologists Amid on Behalf of Appellee(s)

          Submitted: March 7, 2017

         Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before RILEY, Chief Judge, [1] GRUENDER, Circuit Judge, and GRITZNER, District Judge. [2]

          GRUENDER, Circuit Judge.

         Prosecuting Attorneys for Pulaski County and Washington County, Arkansas ("the State") appeal the district court's grant of a preliminary injunction preventing the enforcement of an Arkansas statute requiring medication-abortion providers to contract with a physician who has hospital admitting privileges. Because the district court failed to make factual findings estimating the number of women burdened by the statute, we vacate the preliminary injunction and remand for further proceedings.

         I. BACKGROUND

         In 2015, Arkansas enacted the Abortion-Inducing Drugs Safety Act ("the Act"). Ark. Code Ann. §§ 20-16-1501-1510. The Arkansas Legislature made findings that abortion-inducing drugs present significant medical risks, including "abdominal pain, cramping, vomiting, headache, fatigue, uterine hemorrhage, viral infections, and pelvic inflammatory disease." Id. § 1502(14). It further determined that medication abortions are "associated with an increased risk of complications relative to surgical abortion[s]" and found that, based on a 2011 United States Food and Drug Administration report, complications included eight deaths attributed to severe bacterial infection, 612 hospitalizations, 339 blood transfusions, and 256 infections. Id. §§ 1502(15)-(17).

         To address these health concerns, the Act created new requirements for physicians providing medication abortions. Section 1504(d) sets forth the "contract-physician requirement, " which is the subject of the current appeal.[3] The provision requires that:

(1) The physician who gives, sells, dispenses, administers, or otherwise provides or prescribes the abortion-inducing drug shall have a signed contract with a physician who agrees to handle complications and be able to produce that signed contract on demand by the patient or by the Department of Health.
(2) The physician who contracts to handle emergencies shall have 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.
(3) Every pregnant woman to whom a physician gives, sells, dispenses, administers, or otherwise provides or prescribes any abortion-inducing drug shall receive the name and phone number of the contracted physician and the hospital at which that physician maintains admitting privileges and which can handle any emergencies.

Id. § 1504(d). The Act imposes civil and criminal penalties for violations of the contract-physician requirement. See id. §§ 1506-1507.

         Planned Parenthood of Arkansas & Eastern Oklahoma ("PPAEO") provides medication abortions in Arkansas at its two facilities, one in Fayetteville and the other in Little Rock. The only other Arkansas abortion provider, Little Rock Family Planning Services ("LRFP"), administers both medication and surgical abortions at its Little Rock facility. PPAEO and one of its physicians, Stephanie Ho, M.D., (collectively "Planned Parenthood") filed suit seeking to enjoin enforcement of the Act days before it was set to take effect, claiming that the contract-physician requirement unduly burdens their patients' right to an abortion.

         Both parties submitted affidavits concerning the medical benefits of the contract-physician requirement and the burdens on abortion access purportedly caused by the requirement. The district court found that Planned Parenthood's protocols provided continuity of care because patients with concerns could call Planned Parenthood's twenty-four-hour hotline to speak with nurses, Planned Parenthood referred patients experiencing complications to clinics or health centers for surgical completion, and Planned Parenthood physicians could consult with emergency-room physicians in the case of serious complications. The district court thus concluded that the contract-physician requirement provided few, if any, tangible medical benefits over Planned Parenthood's continuity-of-care protocols such that "the [S]tate's overall interest in the regulation of ...


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