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Little Rock Family Planning Services v. Rutledge

United States District Court, E.D. Arkansas, Western Division

July 23, 2019

LITTLE ROCK FAMILY PLANNING SERVICES, et al., PLAINTIFFS
v.
LESLIE RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas, et al., DEFENDANTS

          TEMPORARY RESTRAINING ORDER

          Kristine G. Baker, United States District Judge

         Before the Court is a motion for a temporary restraining order and/or preliminary injunction filed by separate plaintiffs Little Rock Family Planning Services (“LRFP”) and Thomas Tvedten, M.D., on behalf of himself and his patients.[1] Plaintiffs bring this action seeking declaratory and injunctive relief on behalf of themselves and their patients under the United States Constitution and 42 U.S.C. § 1983 to challenge three Acts passed by the Arkansas General Assembly: (1) Arkansas Act 493 of 2019, which bans abortion “where the pregnancy is determined to be greater than 18 weeks, ” as measured from the first day of a woman's last menstrual period (“LMP”) in nearly all cases (“Act 493”); Arkansas Act 619, which prohibits a physician from intentionally performing or attempting to perform an abortion “with the knowledge” that a pregnant woman is seeking an abortion “solely on the basis” of: a test “indicating” Down syndrome; a prenatal diagnosis of Down syndrome; or “[a]ny other reason to believe” the “unborn child” has Down syndrome (“Act 619”); and (3) Arkansas Act 700 of 2019, which provides that “[a] person shall not perform or induce an abortion unless that person is a physician licensed to practice medicine in the state of Arkansas and is board-certified or board-eligible in obstetrics and gynecology.” (“Act 700” or the “OBGYN requirement”). This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3).

         For the reasons set forth below, the Court grants plaintiffs' motion for a temporary restraining order and has under advisement the request for preliminary injunction (Dkt. No. 2). The Court also denies the pending motions to strike filed by both parties (Dkt. Nos. 75, 76).

         I. Procedural History

         Plaintiffs filed their complaint and motion for a temporary restraining order and/or preliminary injunction on June 26, 2019 (Dkt. Nos. 1, 2). The challenged Acts take effect on July 24, 2019. On July 1, 2019, defendants filed a motion to extend time for defendants to respond to the complaint and motion for a temporary restraining order and/or preliminary injunction (Dkt. No. 19). The Court set July 17, 2019, as the deadline for defendants to file their written response and July 19, 2019, as plaintiffs' deadline to file a written reply (Dkt. No. 31). The Court also set the hearing on plaintiffs' motion for temporary restraining order and/or preliminary injunction for July 22, 2019 (Id.). The Court set the deadline for filing exhibits and witnesses lists in advance of the hearing for July 18, 2019, and the deadline for the filing of rebuttal exhibits and witnesses in advance of the hearing for July 19, 2019 (Id.).

         In response to a motion for expedited prehearing discovery filed by defendants, the Court instructed the parties to meet and confer regarding any outstanding discovery requests and to file a joint status report on July 12, 2019 (Dkt. No. 34). On July 10, 2019, plaintiffs filed a supplemental declaration, and in response defendants sought to strike the supplemental declaration or to extend the time to respond to the motion for temporary restraining order and/or preliminary injunction (Dkt. Nos. 37, 38). Plaintiffs opposed the motion to strike the supplement declaration and the request to extend the time to respond to the motion (Dkt. No. 39). The Court denied the motion to strike or request for additional time to respond to the motion, observing in part that any alleged prejudice would be limited and mitigated if the Court “treats plaintiffs' motion as one for temporary restraining order, then such an order-whether granted or denied-would expire 14 days from the date it is entered, and the Court may permit all parties to address further the merits of this expedited matter prior to a hearing on plaintiffs' request for a preliminary injunction.” (Dkt. No. 41, at 2).

         The parties timely filed their joint status report on July 12, 2019, and reported that they required the Court to resolve three remaining discovery disputes (Dkt. No. 40). In that same status report, the parties represented that certain information would be turned over contingent upon the entry of a protective order that was still being negotiated by the parties. The Court then entered an order denying without prejudice defendants' motion for expedited prehearing discovery, resolving only the three remaining discovery disputes the parties had been unable to resolve at this stage of the proceeding (Dkt. No. 42).

         On July 18, 2019, defendants filed a renewed motion for expedited prehearing discovery (Dkt. No. 56). In that motion, defendants argued that, because plaintiffs insisted upon an “unreasonably broad definition of ‘confidential information, '” the parties could not agree on the terms of a protective order, and therefore defendants had not received agreed-upon discovery (Id., at 1). In response, plaintiffs pointed out that they sent a proposed protective order to defendants on July 10, 2019, but defendants did not respond until July 15, 2019, with a counterproposal (Dkt. No. 60, at 4). Plaintiffs responded on July 16, 2019, rejecting the counterproposal (Id.). Defendants did not file a renewed motion until July 18, 2019, after filing a written response to the motion for temporary restraining order and/or preliminary injunction. On July 19, 2019, the Court denied defendants' renewed motion for expedited prehearing discovery and entered a protective order (Dkt. Nos. 69, 70).

         On Saturday, July 20, 2019, a day after the deadline for disclosing rebuttal exhibits and witnesses had elapsed, defendants filed a new declaration that totaled 272 pages, with attachments; plaintiffs also filed a supplemental rebuttal witness list (Dkt. Nos. 73, 74). Then, on Sunday, July 21, 2019, plaintiffs filed a motion to strike certain declarations introduced by defendants, including the declaration filed on Saturday, July 20, 2019 (Dkt. No. 75). Also on Sunday, July 21, 2019, defendants filed a motion to strike certain declarations introduced by plaintiffs and to strike plaintiffs' reply brief (Dkt. No. 76).

         On July 22, 2019, the Court held a hearing on plaintiffs' motion for temporary restraining order and/or preliminary injunction at which the Court received testimony from certain witnesses and additional documents were discussed and introduced. At the conclusion of the hearing, plaintiffs objected to defendants' request to introduce as a hearing exhibit in this matter the entire record from Planned Parenthood Arkansas and Eastern Oklahoma v. Jegley, No. 4:15-cv-00784-KGB, on the basis that defendants failed to refer to, or move to introduce, any specific portions of that record in response to plaintiffs' motion for temporary restraining order and/or preliminary injunction here. Plaintiffs generally are correct. Defendants have not pointed to any specific evidence in the Jegley record that they wish for the Court to consider. The Court is not obligated to hunt through the record to find evidence that supports defendants' positions. U.S. v. Stuckey, 255 F.3d 528, 531 (8th Cir. 2001) (citing U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). Defendants are directed to cite the Court to specific portions of the Jegley record, if they intend for the Court to consider those portions of the record in ruling on the current motion.

         In ruling on plaintiffs' motion for temporary restraining order and/or preliminary injunction, the Court has considered the record before it as of the conclusion of the July 22, 2019, hearing. Given the voluminous number of last-minute filings, including filings the Court received on July 23, 2019, regarding these issues, the Court concludes that defendants, despite being represented at the hearing through their counsel, have not had a sufficient opportunity to challenge the basis for plaintiffs' requested relief. Therefore, the Court only considers the motion for temporary restraining order at this time. McLeodUSA Telecomms. Servs. v. Qwest Corp., 361 F.Supp.2d 912, 918 n.1 (N.D. Iowa 2005).

         Further, given the limited nature of a temporary restraining order, the Court declines to strike the declarations filed by any party prior to the July 22, 2019, hearing and instead will give them the weight to which they are entitled at this stage of the proceedings. See Wounded Knee Legal Def./Offense Comm. v. Fed. Bureau of Investigation, 507 F.2d 1281, 1286-87 (8th Cir. 1974). For this reason, the Court denies the pending motions to strike (Dkt. Nos. 75, 76).

         II. Findings Of Fact

         The Court makes the following findings of fact. To the extent the findings of fact in this Order contradict the findings of fact made in the Court's prior Orders, the findings of fact in this Order control. Further, the Court will address these and additional factual matters in the context of its discussion of the legal issues; in that context, the Court also makes findings of fact. In making the following findings of fact and conclusions of law, the Court has considered the record as a whole. The Court has observed the demeanor of witnesses and has carefully weighed their testimony and credibility in determining the facts of this case and drawing conclusions from those facts. All findings of fact contained herein that are more appropriately considered conclusions of law are to be so deemed. Likewise, any conclusions of law more appropriately considered a finding of fact shall be so classified. The Court has considered and weighed all the evidence presented in the record at this stage; the Court has resolved any disputes consistent with the statements in this Order.

         1. Charlie Browne, M.D., a board-certified obstetrician-gynecologist (“OBGYN”) offers an affidavit in support of plaintiffs' motion (Dkt. No. 2, at 24-28; Decl. of Charlie Browne, M.D., ¶ 1). Dr. Browne is a Clinical Assistant Professor at the University of Washington Medical Center, Department of Obstetrics and Gynecology in Seattle, Washington, and Clinical Faculty at Pacific Northwest University College of Osteopathic Medicine in Yakima, Washington (Id.). He is also the Medical Director of All Women's Care in Seattle Washington, the Medical Director of All Women's Health in Tacoma, Washington, and the Director of Second-Trimester Services of Planned Parenthood of Greater Washington & Northern Idaho (Id.). In these positions, Dr. Browne provides abortion care and other gynecological services (Id.).

         2. Dr. Browne avers that, based upon his experience and training, a medical provider does not need to be a board-certified or board-eligible OBGYN to have the education, training, and skills necessary to provide safely and competently abortion care (Decl. of Charlie Browne, M.D., ¶ 6). In his experience, there is no difference in the abilities, qualifications, or skills of non-OGBYN practitioners and OBGYNs who have received the necessary training to provide abortion care (Id.).

         3. Dr. Browne further avers that being a board-eligible or board-certified OBGYN does not make an abortion provider any more equipped to handle the “rare complications that may arise from an abortion.” (Id., ¶ 7). Dr. Browne explains that “in the rare event of a serious complication, the patient would need to be transferred to a hospital for emergency care, regardless of whether the physician providing abortion care is a board-certified OGBYN (Id.). In his experience, serious complications arising from either medication or surgical abortions are rare (Decl. of Charlie Browne, M.D., ¶ 7).

         4. From August 2010 to December 2010, Dr. Browne provided abortion care for LRFP approximately once every four to six weeks for two to three days at a time (Id., ¶ 8). Between 2011 and July 2012, he also provided abortion care at LRFP approximately two to three weeks per year (Id.). After 2012, Dr. Browne had to stop providing abortion care at LRFP since it takes him approximately six to seven hours to travel to LRFP from his home and because the time away from his home was disruptive professionally (Id., ¶¶ 9-10).

         5. Dr. Browne also avers that providing abortion care at LRFP was difficult and stressful due to harassment he experienced while working at the clinic (Decl. of Charlie Browne, M.D., ¶ 11). Every time Dr. Browne travelled to LRFP, he encountered protestors attempting to block the entrance to LRFP's parking lot (Id.). He also states that the harassment and stigma he experienced in Arkansas was “far more prevalent and aggressive than any [he had] experienced as an abortion provider elsewhere.” (Id., ¶ 12). For these reasons, Dr. Browne has not returned to LRFP for the past seven years (Id., ¶ 13).

         6. Dr. Browne states that LRFP staff reached out to him in March 2019 to see if he would be willing to provide abortion care at LRFP when the OBGYN requirement is set to take effect (Decl. of Charlie Browne, M.D., ¶ 14). Dr. Browne has agreed to do so but only for two to three days in July 2019 (Id.). He cannot commit to providing care after that time given his professional and personal obligations in Seattle, Washington (Id.).

         7. Janet Cathey, M.D., a board-certified OBGYN licensed to practice medicine in Arkansas and Oklahoma, has presented her declaration in support of plaintiffs' motion (Dkt. No. 2, at 36-41, Decl. of Janet Cathey, M.D.)). Dr. Cathey avers that she provides medical services, including medication abortion, at Planned Parenthood of Arkansas and Eastern Oklahoma's (“PPAEO”) health center in Little Rock, Arkansas (Id., ¶ 1).

         8. In early 2018, Dr. Cathey was asked by PPAEO to provide reproductive health care services at PPAEO's health center in Little Rock (“PPAEO Little Rock”), and in May 2018, she began working at the health center in Little Rock (Id., ¶ 3).

         9. At LRFP's Little Rock health center, Dr. Cathey provides family planning services, transgender care, and medication abortions (Id., ¶ 4). She also has administrative responsibilities, including overseeing clinical staff, teaching medical students, and acting as director of Planned Parenthood Great Plains' transgender care program (Decl. of Janet Cathey, M.D., ¶ 4). Since she started in this position through April 30, 2019, she has provided 229 medication abortions (Id., ¶ 5).

         10. Dr. Cathey is one of only two physicians providing medication abortion at PPAEO's Little Rock health center (Id., ¶ 6). The other physician, Dudley Rodgers, M.D., is a board-certified OBGYN who provides only medication abortion approximately one day per week (Id.). Dr. Rodgers is semi-retired and does not provide medical care anywhere else, due in part to health issues that prevent him from providing patient care for long hours or multiple days a week (Id.).

         11. Dr. Cathey currently provides medical care at PPAEO's Little Rock health center three days per week for approximately eight to ten hours a day (Decl. of Janet Cathey, M.D., ¶ 7). She also works as a medical consultant for Social Security disability reviews and completes PPAEO administrative responsibilities two other days of the week (Id.). Dr. Cathey's administrative responsibilities include providing non-clinical services to her transgender patients, mentoring medical students regarding abortion care, transgender care, and other medical care, including gynecological procedures (Id.). Dr. Cathey also avers that she expects her non-clinical responsibilities to increase (Id.).

         12. Dr. Cathey avers that, during the three days that she provides patient care, her schedule is at capacity (Decl. of Janet Cathey, M.D., ¶ 8). Due to patient demand, Dr. Cathey is planning to add another half day a week to provide patient care, including care to patients seeking medication abortions, transgender care, and family planning (Id.). She states that providing care three and a half days per week “is the absolute maximum amount of time” she can devote to patient care (Id.).

         13. Dr. Cathey also notes that she cannot take on additional hours to provide medical care because of physical limitations resulting from a spinal cord injury she sustained in a 2009 car accident (Id., ¶ 9). Because of her injuries, she originally stopped providing patient care, and though she now practices medicine, she continues to have physical restrictions (Decl. of Janet Cathey, M.D., ¶ 9).

         14. Dr. Cathey also avers that she sees a significant number of transgender and family planning patients and that she is the only physician at PPAEO's Little Rock health center who provides care for these patients (Id., ¶ 10). It is Dr. Cathey's understanding that the only other health center in Arkansas who maintains a dedicated transgender care program is the University of Arkansas for Medical Sciences (“UAMS”) clinic, which provides transgender care “only one half day per week.” (Id.).

         15. In sum, due to her other personal and professional responsibilities, Dr. Cathey cannot see any more medication abortion patients other than those she is able to see in three and a half days per week (Id., ¶ 11).

         16. Dr. Cathey also avers that, based upon her experience, she does not believe that requiring all abortion providers to be board-certified or board-eligible OBGYNs provides “any benefit whatsoever to patients.” (Decl. of Janet Cathey, M.D., ¶ 12). She notes that clinicians from a range of specialties, including family medicine, can become trained to provide abortion care (Id.). She maintains that there is nothing about being a board-certified or board-eligible OBGYN that makes a physician better, safer, or more effective at providing abortion care (Id.).

         17. Dr. Cathey states that many family medicine physicians and other clinicians undergo training to provide safely abortion care (Id., ¶ 13). She further states that family medicine medical students are “just as skilled and qualified to provide abortion care as the OBGYN students.” (Decl. of Janet Cathey, M.D., ¶ 14).

         18. Dr. Cathey states that “restricting the number of clinicians who can provide abortion in the state to only board-certified or board-eligible OBGYNs will actually harm patients, as it can force patients to unnecessarily delay their access to care or prevent them from obtaining an abortion altogether.” (Id., ¶ 15 (emphasis in original)). She notes that, between the years of 2016 and 2018, 48% of the medication abortion patients seen at PPAEO's Little Rock health center had incomes at or below 110% of the federal poverty level (Id.).

         19. Dr. Cathey notes that there are already very few abortion providers in Arkansas, which she attributes to “the intense stigma and harassment that abortion providers face here.” (Id., ¶ 16). When her children were younger and in school, Dr. Cathey did not want to provide abortions because she feared the harassment that her children would likely face (Id.).

         20. Lori Freedman, Ph.D., an associate professor in the Department of Obstetrics, Gynecology and Reproductive Sciences at the University of California, San Francisco, offers her declaration in support of plaintiffs' motion (Dkt. No. 2, at 47-57, Decl. of Lori Freedman, Ph.D.).

         Dr. Freedman's work focuses on qualitative health research, clinician training and practice, medical ethics in reproductive health, and health care practices of religiously affiliated institutions (Id., ¶ 3). She has studied barriers to the provision of abortion care (Id.). In particular, she has researched “why doctors with abortion training do not integrate abortion care into their practice post-residency.” (Id.).

         21. In her opinion, in addition to violence and harassment, the intense stigmatization of abortion providers makes it difficult, if not impossible in certain areas, to find and retain abortion providers (Decl. of Lori Freedman, Ph.D., ¶ 4).

         22. Dr. Freedman explains that “no-abortion” policies in private practice groups, hospital maintenance organization (“HMOs”), and hospitals often prevent physicians from providing abortions (Id., ¶ 11). She also states that physicians are often asked to sign contracts stating that they will not provide abortions at the offices of their practice and that they will not provide abortions offsite (Id.).

         23. Of five doctors who had been asked to be medical directors at an abortion clinic, four of them told Dr. Freedman that they had declined because their own group practices would not permit it (Id.). Additionally, Dr. Freedman states that, in her research, she has encountered situations where senior physicians threatened to ostracize younger physicians who performed abortions (Decl. of Lori Freedman, Ph.D., ¶ 12). She also states that physicians interviewing for post-residency positions have told her that they fear broaching the subject of abortion with potential employers (Id.).

         24. Dr. Freedman also avers that physicians who provide abortions frequently lose referrals from medical providers who oppose abortion, thereby placing their practices in jeopardy (Id., ¶ 13). Additionally, Dr. Freedman notes that doctors may decline to provide abortions because they worry about losing existing patients who are opposed to abortion (Id.).

         25. Furthermore, Dr. Freedman points out that physicians who wish to perform abortions often must choose whether to maintain a general obstetrics and gynecology practice or provide abortions, but not both (Decl. of Lori Freedman, Ph.D., ¶ 14).

         26. Dr. Freedman also notes that abortion providers are routinely ostracized in their communities through acts such as being denied membership to social organizations and the bullying of their children at school (Id., ¶ 15). She also states that physicians cite the effects of picketing by protestors as a reason not to provide abortions (Id.).

         27. Dr. Freedman states that violence against abortion providers is an ongoing concern and that, as recently as 2015, there were three murders and nine attempted murders of abortion clinic staff in the United States (Id., ¶ 18). She states that the threat of violence “significantly deters many physicians from providing abortion and increases physicians' reluctance to associate themselves with abortion clinics and providers in any way.” (Decl. of Lori Freedman, Ph.D., ¶ 19).

         28. Dr. Freedman states that Arkansas “fits the profile of a state hostile to the provision of abortion care where abortion providers are likely to experience the highest levels of stigma and harassment.” (Id., ¶ 20).

         29. Dr. Freedman also states that further evidence she has reviewed indicates that abortion providers in Arkansas experience extreme levels of harassment and effects of stigma, including being forced by their partners to choose between private practice and continuing to provide abortion care, being subjected to picketing and harassment, and being unable to attract qualified OBGYNs or other providers to work at their clinics (Id., ¶ 21).

         30. Dr. Freedman testified that abortion providers are less likely to be able to resist the effects of stigma and harassment in Arkansas cities that lack a professional community that normalizes abortion care (Id., ¶ 23).

         31. Stephanie Ho, M.D., a board-certified family medicine physician, offers her declaration in support of plaintiffs' motion (Dkt. No. 2, at 89-103; Decl. of Stephanie A. Ho, M.D.)).

         32. Dr. Ho states that she cannot become a board-certified or board-eligible OBGYN because she did not complete a residency in obstetrics and gynecology and that she cannot do so now due to the time and resources necessary to conduct a residency at this stage of her career (Id., ¶ 7).

         33. Dr. Ho further states that surgical abortions cannot be performed at PPAEO's Fayetteville health center (“PPAEO Fayetteville”) because it does not meet the state's requirement governing facilities where surgical abortions are performed (Id., ¶ 10).

         34. Dr. Ho explains that Arkansas law requires women who seek abortion care to come to the health center to receive certain state-mandated information in person from a physician and then to wait at least 48 hours before having an abortion (Id., ¶ 14).

         35. Dr. Ho. further explains that a patient seeking medication abortion services must therefore come to the health center for one appointment, and at least 48 hours later, she must return to take a mifepristone pill and be given four misoprostol pills to administer at home (Decl. of Stephanie A. Ho, M.D., ¶ 15). The patient must also make a follow-up appointment for approximately two weeks later (Id.).

         36. Dr. Ho further states that medication abortion is extremely safe and that 97.4% of medication abortion cases are successful under the regimen just described (Id., ¶ 16).

         37. Dr. Ho notes that a woman who takes mifepristone at a PPAEO health center has access to a 24-hour hotline number that she can call with any questions or concerns and that patients are provided with the name and number of a contracted OBGYN physician who has agreed to serve as the collaborative medical doctor to PPAEO abortion providers in Fayetteville and Little Rock (Id., ¶ 17).

         38. Dr. Ho states that most patients who call the hotline “simply need reassurance that their symptoms (like bleeding and cramping) are normal and will subside.” (Decl. of Stephanie A. Ho, M.D., ¶ 18). In the “exceedingly rare case” that the nurse or physician on the hotline believes that immediate medical treatment is necessary, the patient is referred to the nearest emergency room, one of PPAEO's physicians is notified, and health center staff follow up with the patient within 24 hours (Id.).

         39. Dr. Ho notes that, during the course of her medical career, she has performed procedures that are much more complicated and have higher complication rates than medication abortion, including: induced and managed labor, delivery of babies, and tubal ligations (Id., ¶ 20).

         40. Dr. Ho further states that PPAEO drafted a job opening for a board-certified or board-eligible OBGYN to provide abortion care at the Fayetteville health center (Id., ¶ 23). This posting was listed on social media, and a letter was sent to all identified OBGYNs in Arkansas (Decl. of Stephanie A. Ho, M.D., ¶ 24).

         41. PPAEO also took out an ad in the Journal of the Arkansas Medical Society seeking a board-certified or board-eligible OBGYN (Id., ¶ 25). PPAEO staff personally contacted physicians to see if they would provide abortion services (Id.).

         42. In May 2019, Kathleen Paulson, M.D., a board-certified OBGYN, contacted PPAEO to state that she would be willing to provide medication abortion at the Fayetteville health center on a volunteer basis if the OBGYN requirement were to go into effect (Id., ¶ 26).

         43. To date, no other OBGYNS have responded to PPAEO's efforts to locate a board-certified or board-eligible OBGYN willing to provide medication abortion at PPAEO's health centers (Decl. of Stephanie A. Ho, M.D., ¶ 29).

         44. Dr. Ho states that she has experienced stigma as an abortion provider in Arkansas, including being informed by a potential employer that the potential employer was not interested in being associated with an abortion provider (Id.).

         45. Dr. Ho states that, from 2016 to 2018, 61% of the medication abortion patients in Fayetteville had incomes at or below 110% of the federal poverty level (Id., ¶ 35).

         46. Frederick W. Hopkins, M.D., M.P.H., a board-certified OBGYN, offers his declaration in support of plaintiffs' motion (Dkt. No. 2-1, at 119-136; Decl. of Frederick W. Hopkins, M.D., M.P.H.).

         47. Dr. Hopkins points out that, during his OBGYN residency, he did not receive any formal training in abortion care and that “[a]bortion care is not a requirement to complete an OBGYN residency, and most OBGYN residencies did not provide that training.” (Id., ¶ 13).

         48. Dr. Hopkins states that “[l]egal abortion is one of the safest medical procedures in the United States” and that “approximately 1 in 4 women in the U.S. obtains an abortion by the age of 45.” (Id., ¶ 21). Dr. Hopkins further explains that a “majority of women having abortions in the United States already have one child.” (Id.).

         49. Dr. Hopkins further states that there are two types of abortions in the United States: medication abortion and surgical abortion (Id., ¶ 23).

         50. Dr. Hopkins also states that, regardless of the method of abortion, “serious complications are extremely rare, occurring in less than 0.5% of all cases.” (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 26). The types of complications that may occur following an abortion include infection, prolonged heavy bleeding, uterine perforation, cervical laceration, and retained tissue (Id., ¶ 27). Dr. Hopkins states that in the “vast majority of cases” such complications can be handled in an outpatient office setting (Id.).

         51. Dr. Hopkins also explains that a woman's risk of pregnancy-related death is estimated to be 8.8 per 100, 000 live births, whereas less than one woman dies for every 100, 000 abortion procedures (Id., ¶ 28).

         52. Additionally, according to Dr. Hopkins, abortion-related mortality is significantly lower than mortality for other common outpatient procedures, including colonoscopies, plastic surgery, dental procedures, or adult tonsillectomies (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 28).

         53. Dr. Hopkins asserts that “no fetus is viable at 18 weeks LMP.” (Id., ¶ 29). Instead, he notes that “[i]t is commonly accepted in the field of OBGYN that a normally developing fetus will not attain viability until at least 24 weeks LMP, ” and he also explains that not all fetuses attain viability even at that stage (Id.).

         54. Dr. Hopkins states that patients can delay abortions for several reasons, including because they do not realize that they are pregnant until later in their pregnancy, difficulty in obtaining funds for the abortion and related expenses, and Arkansas' mandated waiting period (Id., ¶¶ 30-31).

         55. Additionally, Dr. Hopkins explains that some patients seek abortions at or after 18 weeks LMP because they discover a fetal anomaly, some of which cannot be tested for until 18 to 20 weeks LMP (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 32). In other circumstances, the results from prenatal tests performed at 18 to 20 weeks LMP are inconclusive and require referrals to other medical professionals and additional testing, all of which can lead to further delay (Id.). Finally, some women seek abortions at or after 18 weeks LMP because they have a medical condition that does not become apparent until that time or an existing medical condition that worsens during the course of pregnancy (Id., ¶ 33).

         56. Dr. Hopkins further states that, if Act 493 takes effect, he will be forced to stop providing safe and effective pre-viability abortion care that his patients want and need (Id., ¶ 34). He further states that, as a result of Act 493 taking effect, some of his patients will be forced to delay their abortion care, at risk to their health, while they attempt to obtain an abortion out of state (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 34). He also states that others will be prevented from obtaining an abortion altogether and be forced to carry their pregnancies to term against their will, at the expense of their health (Id.).

         57. Dr. Hopkins states that, if the OBGYN requirement goes into effect, Dr. Tvedten, Dr. Horton, and Dr. Ho will be unable to provide abortions (Id., ¶ 35).

         58. In Dr. Hopkins' experience training non-OBGYNs to provide abortions, “there is no difference in the abilities or skills between non-OBGYN practitioners and OBGYNs who have received the necessary training.” (Id., ¶ 36). Dr. Hopkins points out that the OBGYN requirement would allow a physician with no training in abortion to perform abortions while preventing other qualified clinicians with actual training and competency in abortion from providing such care (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 36).

         59. Dr. Hopkins further states that it is not necessary to be an OBGYN, much less a board-certified or board-eligible OBGYN, to be a competent abortion provider (Id., ¶ 37). According to Dr. Hopkins, the American College of Obstetricians and Gynecologists (“ACOG”), a “highly regarded, reliable, and extensively cited authority in my field, ” recommends expanding the trained pool of non-OBGYN abortion providers, including family physicians and advanced practice physicians (Id.). Dr. Hopkins also notes that board-eligibility and board-certification are not required to practice medicine, and he also notes that “[a]t no point in the OBGYN board-eligibility or board-certification process must a physician demonstrate competence in the performance of abortions.” (Id., ¶ 35 n.13). Dr. Hopkins also states that studies recognize that non-OBGYNs are just as qualified and skilled in abortion care as OBGYNs (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 37).

         60. Dr. Hopkins states that “[a]ny clinician with adequate training in abortion care can safely and effectively handle” the most common abortion complications, even though such complications are rare (Id., ¶ 38).

         61. In the event a significant complication does arise from an abortion, Dr. Hopkins states that an abortion provider would transfer or direct the patient to the nearest hospital to receive the required care (Id., ¶ 39). If the complication is retained tissue following a medication abortion, Dr. Hopkins states that ACOG Practice Bulletin 143 states that the abortion provider should be trained in surgical abortion “or should be able to refer to a clinician trained in surgical abortion.” (Id.).

         62. Dr. Hopkins travels to Arkansas to provide care at LRFP only approximately once every two months (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 42). When he comes to Arkansas, he does so for “three to four days every other month.” (Id., ¶ 44). Since Dr. Hopkins lives in California, each visit to Arkansas requires a day to arrive and to return, so his total duration away from California is five to six days for each visit (Id.).

         63. Due to Arkansas' 48-hour mandated delay for abortion patients, LRFP treats patients only on Wednesdays, Fridays, and Saturdays, so Dr. Hopkins does not see patients for the entire time he in in Arkansas (Id., ¶ 45). Typically, patients will come in one day for the mandated counseling and two days later for the abortion (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 45).

         64. If the 48-hour waiting period is extended to 72-hours, then Dr. Hopkins will attempt to remain in Arkansas for a full five days, versus his regular three to four days (Id., ¶ 47). But, due to his professional obligations in California, he cannot visit Arkansas more frequently than he currently does (Id.). This is because he holds several clinical and teaching positions in California (Id., ¶ 48). He is unable to give up his current positions and relationships with patients who rely upon him in California (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 49).

         65. Additionally, Dr. Hopkins will not relocate to Arkansas because his ability to earn a living in Arkansas would be “extremely uncertain.” (Id., ¶ 50). He predicts that, if he moved to Arkansas, then the Arkansas legislature would pass a new law designed to prevent him from providing abortion care (Id.).

         66. Dr. Hopkins also notes that there are usually protestors outside of LRFP (Id., ¶ 51). He is personally familiar with other abortion providers who have been murdered and attacked (Decl. of Frederick W. Hopkins, M.D., M.P.H., ¶ 51). These dangers are “constantly” on Dr. Hopkins' mind when he travels to Arkansas, and this is another reason he cannot move to Arkansas to provide full-time care at LRFP (Id.).

         67. Thomas Russell Horton, Jr., M.D., a staff physician at LRFP, offers his declaration in support of plaintiffs' motion (Dkt. No. 2-1, at 145-155; Decl. of Thomas Russell Horton, Jr., M.D.).

         68. Dr. Horton completed his residency in obstetrics and gynecology, but he is not board-eligible or board-certified in obstetrics and gynecology (Id., ¶ 5). Dr. Horton will not be able to provide abortion care if the OBGYN requirement goes into effect (Id.).

         69. Dr. Horton began working as a staff physician with LRFP in February 2010 (Id., ¶ 11). Previously, Dr. Horton had provided abortion care in Tennessee up to approximately 15 weeks LMP, so he received training from Dr. Tvedten for performing surgical abortions up to 21.6 weeks LMP (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 11).

         70. As a staff physician for LRFP, Dr. Horton works “one day per week and primarily perform[s] one-day surgical procedures, up to 18 weeks LMP.” (Id., ¶ 12). He also performs multi-day procedures up to 21.6 weeks LMP when he works two or more days per week (Id.).

         71. Dr. Horton has performed thousands of abortions at LRFP “with a very low rate of complications.” (Id., ¶ 13).

         72. Dr. Horton states that becoming a board-certified OBGYN would not make him any more qualified to perform or to handle appropriately the rare complications that may arise following an abortion (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 18). According to Dr. Horton, “training and competence in abortion procedures is not a requirement for either board certification or board eligibility in OBGYN.” (Id.). He also notes that abortion care is not a requirement for completing an OBGYN residency and that many OBGYNs never receive any training for providing abortion care (Id.).

         73. Dr. Horton further explains that, to become a board-eligible or board-certified OBGYN, a physician must first complete his or her residency in obstetrics and gynecology and then pass a written examination known as the American Board of Obstetrics and Gynecology (“ABOG”) Qualifying Examination (Id., ¶ 19).

         74. After a physician becomes board-eligible, the physician has eight years from the date of completing his or her residency to become board-certified (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 20). If the physician does not become board-certified within those eight years, the physician loses his or her board-eligible status and must complete, at a minimum, an additional six months of supervised practice and assessment in a hospital associated with an accredited OBGYN residency program before he or she may become eligible for certification again (Id.).

         75. Further, to become an ABOG board-certified OBGYN, a physician must: (1) be board-eligible; (2) satisfy certain prerequisites to becoming a candidate for certification, which includes preparing a comprehensive case list and obtaining unrestricted hospital privileges; and (3) sit for and pass another oral examination (Id., ¶ 21).

         76. Dr. Horton completed his residency in OBGYN and passed the written examination for ABOG in June 2002 and June 2013, but he never obtained the necessary case list that is required to be a candidate for board certification (Id., ¶ 22). Dr. Horton states that being a board-certified OBGYN is not relevant or necessary to the provision of abortion care, and he also notes that completing the prerequisites for board-certification would have required him to take significant time away from providing care to his patients (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 22).

         77. Since Dr. Horton did not become board-certified within eight years of completing his residency, he is no longer board-eligible; to retain his board eligibility, he would have to complete a minimum of six months of supervised training (Id., ¶ 23). Dr. Horton states that this is not a feasible option for him because he cannot leave his practice for the required six months to complete the training (Id.). He notes that the required training would provide no medical benefits to his patients (Id.).

         78. Dr. Horton states that, if the OBGYN requirement goes into effect, he will no longer be able to provide abortion care in Arkansas since he is not and cannot become either a board-eligible or board-certified OBGYN (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 24).

         79. Dr. Horton also states that he “regularly” experiences harassment due to his work as an abortion provider (Id., ¶ 26). He notes that every day he has worked at LRFP “there have been protestors and picketers attempting to block the entrance to the parking lot.” (Id.). He further notes that the “protestors often shout at me upon arrival and say things such as: ‘Don't kill those babies, Dr. Horton.'” (Id.).

         80. On June 10, 2009, Dr. Horton was the subject of a bomb threat at the Memphis Center for Reproductive Health (“MCRH”) in Memphis, Tennessee (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 27). An individual called MCRH and informed the clinic staff that there was a bomb in Dr. Horton's car (Id.). The clinic staff were forced to evacuate the clinic (Id.).

         81. Dr. Horton's ability to maintain or find a job in private practice have been directly affected by his work as an abortion provider (Id., ¶ 28). Around 2004 and 2005 in Memphis, Dr. Horton applied to several jobs as a generalist in private practice, but he did not receive any job offers and was not able to find other work due to his work as an abortion provider (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 28). In 2005, Dr. Horton was in the final round of interviews for a position in private practice in Richmond, Virginia, when he asked the prospective employer if he would be allowed to continue providing abortion care in Memphis while working in private practice; he did not receive a job offer and never heard from that prospective employer again (Id.). In 2005, while working at the Baptist Memorial Hospital-Crittenden in Arkansas, he was approached by one of the labor-and-delivery nurses at the hospital regarding abortion care (Id.). Afterward, he was informed that his services were no longer needed at that hospital (Id.). He later found out that a different OBGYN resident filled the position Dr. Horton had occupied at that hospital (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 28).

         82. Many of Dr. Horton's patients at LRFP are low-income and have a difficult time paying for an abortion (Id., ¶ 30). His patients may have to borrow money from a friend or a family member for the abortion or to rent a car or pay for a hotel in Little Rock (Id.). His patients often delay their care while they raise the necessary funds and make logistical arrangements (Id.).

         83. Patients who are poor or low-income usually have jobs in which they do not get vacation or sick time, and it is difficult for such patients to take even a half day off work to be seen at LRFP (Id., ¶ 31). Dr. Horton states that, if such patients must take significant time off to travel out of state for a surgical abortion, they may lose their jobs (Decl. of Thomas Russell Horton, Jr., M.D., ¶ 31). Additionally, patients often have difficulty obtaining child care; Dr. Horton states that on several occasions, patients have brought young children with them to their appointments at LRFP (Id., ¶ 32). He also states that, for women who do not want to or cannot bring their children with them to their appointments, finding child care for a whole day or more to travel out of state would be extremely difficult, if not impossible (Id.).

         84. Dr. Horton states that, if the OBGYN requirement goes into effect, then those patients who cannot obtain sufficient funds to travel out of state will be forced to either attempt to self-induce an abortion or carry their pregnancies to term against their will (Id., ¶ 33).

         85. Sheila M. Katz, Ph.D., offers her declaration in support of plaintiffs' motion (Dkt. No. 2-1, at 162-189; Decl. of Sheila M. Katz, Ph.D.). Dr. Katz is an assistant professor of sociology at the University of Houston, in Houston, Texas (Id., ¶ 9). Her research has included qualitative methods and data analysis regarding women's experiences of poverty, and her expertise includes the consequences and social policy determinants of women's poverty nationwide, as well as regional and geographical similarities and differences across the United States (Id.).

         86. The United States Department of Health and Human Services defines the federal poverty guideline as an income of under $12, 490.00 per year for a single person, with $4, 420.00 added per year for each additional member of the household (Id., ¶ 12).

         87. According to 2017 Census Bureau data, Arkansas is the fifth poorest state in the United States, and its official poverty rate was 18.1% statewide (Decl. of Sheila M. Katz, Ph.D., ¶ 14). The poverty rate for women in Arkansas is even higher, at 19.5% (Id.).

         88. The federal poverty guideline, while widely used, is considered by some to be an inadequate measure of poverty in the United States (Id., ¶ 17). Thus, in addition to those who fall below the federal poverty line, most poverty researchers consider individuals and family between 100% and 200% of the federal poverty line to be “low-income.” (Id., ¶ 18).

         89. In Arkansas, 46.8% of families headed by single mothers with dependent children are living at or below 125% of the federal poverty line, and 37.5% are living at less than 100% of the federal poverty line (Decl. of Sheila M. Katz, Ph.D., ¶ 19).

         90. Further, many poor individuals are part of the “working poor, ” which Dr. Katz defines as those working at minimum wage or earning so little that they cannot meet basic needs for themselves or their family (Id., ¶ 20). The Bureau of Labor Statistics defines the “working poor [as] people who spent at least 27 weeks in the labor force . . . but whose incomes still fell below the official poverty level.” (Id.).

         91. According to Dr. Katz, a woman working full-time (40 hours a week) earning minimum wage in Arkansas now has annual earnings of approximately $19, 240.00, which is just above the federal poverty threshold if she has one child in her household and below the poverty line if she has more children (Id., ¶ 21).

         92. Dr. Katz states that the fair market rent, as designated by the United States Department of Housing and Urban Development, is $702.00 for a one-bedroom apartment and $831.00 for a two-bedroom apartment in Little Rock, Arkansas (Decl. of Sheila M. Katz, Ph.D., ¶ 22). If a woman in Little Rock has a full-time job earning the minimum wage, she would pay approximately 44% of her monthly income for a one-bedroom apartment and approximately 52% of her monthly income for a two-bedroom apartment (Id.).

         93. In Arkansas, 17.6% of families headed by single mothers are living in “deep poverty, ” which Dr. Katz characterizes as a household that lives at or below 50% of the federal poverty line (Id., ¶ 24).

         94. In addition, 17 counties in Arkansas suffer from “persistent poverty, ” which Dr. Katz defines as a county where the poverty rate has been at or above 20% for the past 30 years (Id., ¶ 25).

         95. Dr. Katz explains that Arkansas women living in deep or persistent poverty face the greatest logistical, financial, and psychological hurdles to accessing health care services since they are the least likely to have adequate transportation, childcare, and financial resources and support (Decl. of Sheila M. Katz, Ph.D., ¶ 26).

         96. Over two-thirds of women who obtain abortions in Arkansas already have at least one child (Id., ¶ 27).

         97. Dr. Katz states that it is her understanding that women in and around Little Rock who can now obtain both medication and surgical abortion through 21.6 weeks LMP at LRFP may be forced to travel out of state to obtain that care from the next closest provider (Id., ¶ 28). She states that the next-closest abortion provider is in Memphis, Tennessee, which is an approximately 300-mile round trip journey from Little Rock (Id.). Dr. Katz also states that such a journey would have to be made twice, as Tennessee requires “multiple, in person visits to the abortion clinic separated by at least 48 hours before a woman can obtain an abortion (Decl. of Sheila M. Katz, Ph.D., ¶ 28).

         98. Dr. Katz is familiar with the research analyzing the effect of increased travel on women's ability to obtain abortions, and she states that this research shows that increasing the distance that women must travel to access abortion services presents significant logistical and financial hurdles (Id., ¶ 30).

         99. Dr. Katz states that for those women who do not own or have access to vehicles, the only significant intercity transportation between Little Rock and Memphis-other than flying-is a private bus service, such as Greyhound (Id., ¶ 34). A single round-trip Greyhound bus ticket between Little Rock and Memphis costs between $24.00 and $85.00 (Id.). If a woman must bring someone to accompany her in the event a sedative is used, this cost doubles (Decl. of Sheila M. Katz, Ph.D., ¶ 34). Further, a woman travelling by private bus may have to pay for the cost of taxi or bus fares to and from the private bus station in both Little Rock and Memphis (Id.). Moreover, given Tennessee's 48-hour waiting requirement, either two bus trips would be required, or the woman would have to pay for two nights hotel accommodations in Memphis, which Dr. Katz says cost anywhere from $50.00 to $75.00 per night (Id.).

         100. Dr. Katz also points out that many poor and low-income women in Arkansas “likely do not own or have access to cars that are reliable enough to make a trip of the length required.” (Id., ¶ 36). Dr. Katz notes that, even if a low-income woman owns a car, it may be shared among adults, and it may not be reliable enough for intercity trips (Decl. of Sheila M. Katz, Ph.D., ¶ 36). Dr. Katz also points out that the cost of gas for round-trip car travel from Little Rock to Memphis is approximately $23.00 (Id., ¶ 37).

         101. Dr. Katz explains that low-wage workers often have no access to paid time off or sick days and that seeking uncompensated time off can be a struggle for low-wage workers who often have less autonomy in setting their work schedules (Id., ¶ 39). Further, low-wage workers often work unpredictable, varied, or evening jobs (Id.). Dr. Katz states that the additional time off required by travel may make it difficult for a poor or low-income woman to keep her abortion confidential from her supervisor or other employees (Decl. of Sheila M. Katz, Ph.D., ¶ 39).

         102. Also, Dr. Katz points out that intercity travel for an abortion requires a woman to miss work (Id., ¶ 40). In the event a woman can get time off, she is likely to forego wages in addition to paying for transportation and lodging (Id.). At the minimum wage in Arkansas of $9.25, foregoing two eight-hour shifts to travel to and attend abortion counseling and procedure appointments would result in $148.00 in lost wages, which is almost 10% of a woman's monthly income if she works a full-time minimum wage job (Id.). These lost wages are on top of the cost of the abortion and other logistical costs (Decl. of Sheila M. Katz, Ph.D., ¶ 40).

         103. Dr. Katz points out that, for those women seeking an abortion who already have a child, they must either pay the cost of an additional round-trip bus ticket for her child or pay the cost of childcare for the entire time she is travelling (Id., ¶ 41). Alternatively the woman may be able to leave her child with a trusted family member or friend, though this may require that the woman disclose why she is travelling (Id.).

         104. In sum, according to Dr. Katz, the total additional financial burden that a woman in or around Little Rock would have to incur to obtain a surgical abortion if she were forced to travel to Memphis would amount up to approximately $468.00, including lost wages, but not including childcare, food, or the cost of the procedure itself (Id., ¶ 44). For a woman working full-time and making Arkansas minimum wage, this is over a quarter of her monthly salary of $1, 603.00 (Decl. of Sheila M. Katz, Ph.D., ¶ 44).

         105. Dr. Katz also points out that a low-income woman may never have travelled outside the metropolitan or rural area where she lives, so even if she is able to gather the money necessary to make the trip, “the social-psychological hurdles of making multiple trips to an unfamiliar city, where she may know no one, may impede her.” (Id., ¶ 47). Accordingly to Dr. Katz, many of the women she has spoken to in her research indicate that, if a service is not available in their town or within a reasonable distance, “that service might as well not exist.” (Id.).

         106. Dr. Katz points out that poor and low-income women attempt to meet unexpected expenses in three ways: (1) by making sacrifices in other areas, such as by not paying rent or utilities, drastically reducing food budgets, or foregoing needed medical care; (2) by borrowing money through payday loans; and (3) by borrowing money from a boyfriend or partner (Id., ¶¶ 50-52). Dr. Katz explains that in her own interviews with poor and low-income women, such women talk about the economic necessity of relying on or returning to an abusive ex-boyfriend to help make ends meet when faced with an unexpected crisis (Decl. of Sheila M. Katz, Ph.D., ¶ 52).

         107. Dr. Katz is also familiar with studies analyzing the effect of increased travel on women's ability to obtain abortions (Id., ¶ 54). The “Turnaway Study” found that the most common reason women were delayed in accessing abortion care was because of travel and procedure costs (Id., ¶ 55). Furthermore, that study also cited that women reported that they experienced delay as a result of having to get time off work, finding child care, and not having anyone to travel with them (Id.).

         108. Another study found that the most common reason for delay was that it took a long time to make abortion care arrangements and that poverty made women twice as likely to be delayed in making the arrangements to seek an abortion (Decl. of Sheila M. Katz, Ph.D., ¶ 56).

         109. In the “Shelton Study, ” researchers concluded that “the farther a woman has to travel to obtain an abortion, the less likely she is to obtain one.” (Id., ¶ 57). Furthermore, a recent study of Texas women seeking an abortion after the implementation of a law restricting abortion access documented that women were worried that they would suffer stigma if they utilized their social networks to overcome the barriers of travelling long distances to obtain abortion care (Id., ¶ 58).

         110. Dr. Jason Lindo, Ph.D., a professor of economics at Texas A&M University, presents his declaration in support of plaintiffs' motion (Dkt. No. 2-1, at 200-237; Decl. of Jason Lindo, Ph.D.). He has been a research associate at the National Bureau of Economic Research (“NBER”) since 2014 (Id., ¶ 5).

         111. It is Dr. Lindo's understanding that there are three types of abortions currently provided in Arkansas: (1) medication abortions that are available only up to 10 weeks LMP; (2) aspiration surgical procedures that are available until approximately 13 weeks LMP; and (3) dilation and evacuation (“D&E”) surgical procedures, which are performed until 21.6 weeks LMP (Id., ¶ 11).

         112. Dr. Lindo explains that it is his understanding that medication abortions in Arkansas require three trips and that, under a new law set to take effect on July 24, 2019, the mandated delay between the first and second visits will increase to 72 hours (Id., ¶ 12).

         113. As for surgical abortions, Dr. Lindo explains that two trips are required, though a third visit may be necessary for some D&E procedures performed later in the second trimester (Decl. of Jason Lindo, Ph.D., ¶ 13).

         114. Dr. Lindo notes that LRFP is owned and operated by Dr. Tvedten, who provides approximately 61% of the abortion care at LRFP (Id., ¶ 14(a)). Dr. Horton provides approximately 33% of the clinic's abortion care, and the remaining six percent of the clinic's abortion care has been provided by Dr. Hopkins (Id.). Neither Dr. Tvedten nor Dr. Horton are board-certified or board-eligible OBGYNs (Id.).

         115. Dr. Rodgers and Dr. Cathey provide medication abortions at PPAEO's Little Rock health center (Decl. of Jason Lindo, Ph.D., ¶ 14(b)). Through April 2019, Dr. Cathey has provided 229 medication abortions while Dr. Rodgers has provided 199 medication abortions in the same time (Id.).

         116. Between May 1, 2016, and April 30, 2019, LRFP provided 7, 010 abortions, including 6, 128 (or 87%) to Arkansas residents, 483 (or 7%) to Tennessee residents, and 188 (or 2.7%) to Mississippi residents (Decl. of Jason Lindo, Ph.D., ¶ 15).

         117. Between 2016 and 2019, approximately 75.5% of LRFP's procedures were aspiration abortions (5, 291); approximately 19.2% were D&E abortions (1, 346), and approximately 5.3% were medication abortions (376) (Id., ¶ 16).

         118. Dr. Lindo analyzed several academic studies published in peer-reviewed journals that have documented that abortion regulations can have impacts on women's ability to access abortion care (Id., ¶ 21). While there are some differences across these studies in terms of the data that were used and the set of outcomes that were evaluated, all three determined that increases in distance to the nearest clinic caused by regulation-induced clinic closures caused significant reductions in abortions obtained from medical professionals (Id., ¶ 24).

         119. Dr. Lindo also evaluated the effects in Arkansas when the contracted physician requirement eliminated the availability of medication abortion in Arkansas from May 31 through June 18, 2018 (Decl. of Jason Lindo, Ph.D., ¶ 32). Dr. Lindo concludes that the contracted physician requirement reduced the number of abortions obtained from Arkansas providers by Arkansas residents by 17-27% (Id., ¶ 35).

         120. Dr. Lindo also projects that Dr. Hopkins will likely be able to serve 42 women every other month, an estimate based upon the fact that Dr. Hopkins has served, at most, 21 women in any given day in the last three years (Id., ¶ 49(c)).

         121. Dr. Lindo projects that Dr. Paulson will be able to provide abortions to a maximum of 12 patients per week (Id.).

         122. Based upon his past capacity to provide abortions, Dr. Lindo estimates that Dr. Rodgers will be able to provide 480 medication abortions annually (Decl. of Jason Lindo, Ph.D., ¶ 50 (Table 8)). Furthermore, taking into account that Dr. Cathey intends to add a half day to her provision of abortion care, Dr. Lindo estimates that she will be able to provide 476 medication abortions annually (Id.).

         123. Dr. Lindo has examined the likely effects of the OBGYN requirement on Arkansas women's ability to access abortion care (Id., ¶ 41). To do so, Dr. Lindo presents his supplemental declaration (Dkt. No. 37; Supp. Decl. of Jason Lindo, Ph.D.).

         124. Dr. Lindo points out that he has learned that, during the week of July 1, 2019, PPAEO stopped providing medication abortions at its Fayetteville health center (Id., ¶ 2). Accordingly, he has evaluated the likely effects of the OBGYN requirement under the current changed circumstances where PPAEO Little Rock and LRFP are the only providers of abortion care in Arkansas (Id.).

         125. Dr. Lindo evaluates the effects of the OBGYN requirement under these changed circumstances in three different scenarios: (1) no OBGYN requirement; (2) the OBGYN requirement goes into effect and LRFP is forced to close; and (3) the OBGYN requirement goes into effect and LRFP stays open, allowing Dr. Hopkins to provide abortions every other month (Id., ¶ 3).

         126. In order to ensure that he does not conflate the effects of PPAEO Fayetteville not offering abortions with the effects of the OBGYN requirement, Dr. Lindo's supplemental declaration focuses upon women who have historically been served by LRFP and PPAEO Little Rock (Supp. Decl. of Jason Lindo, Ph.D., ¶ 8). In particular, his supplemental declaration focuses “on the 2, 614 women annually served at these two locations over the past three years.” (Id.). Thus, according to Dr. Lindo, he is providing a conservative estimate of the effect of the OBGYN requirement since more than 2, 614 women are likely to seek abortions in Little Rock annually, given that medication abortions are no longer available at PPAEO Fayetteville (Id.).

         127. Dr. Lindo also explains that, based upon an average from 2016 to 2019, 2, 779 Arkansas residents obtain an abortion each year (Decl. of Jason Lindo, Ph.D., ¶ 51). Dr. Lindo's declaration also states that, based upon a three-year average, 1, 927 Arkansas women seek surgical abortions in Arkansas annually (Id., ¶ 61).[2]

         128. Dr. Lindo concludes that, of the 2, 212 women who annually obtain surgical abortions in Arkansas, none of them will be able to do so if the OBGYN requirement goes into effect and LRFP is forced to close (Supp. Decl. of Jason Lindo, Ph.D., ¶ 10). Put another way, of the 2, 614 women who obtain abortions in Little Rock annually, 2, 212 (or 85%) of those women will not be able to obtain the same type of care in Arkansas that they otherwise would, absent the OBGYN requirement (Id., ¶ 10).

         129. Dr. Lindo also performed calculations that assume that some women who would have received surgical abortions will substitute for medication abortions. Dr. Lindo estimates that LRFP and PPAEO Little Rock currently have the capacity to provide up to 4, 664 abortions annually and that, if the OBGYN requirement goes into effect and LRFP is forced to close, that number will fall to 956, [3] which is the sum of Dr. Rodgers and Dr. Cathey's total estimated capacity (Id., ¶ 11). Accordingly, 1, 658 (or 63%) of the 2, 614 women who otherwise would obtain abortion care in Little Rock annually will not be able to access any type of abortion care in Arkansas if the OBGYN requirement goes into effect and LRFP closes (Id.). And 1, 658 (or 52%) of the 3, 167 women who have historically obtained abortion care in Arkansas annually (including at PPAEO Fayetteville) will not be able to access any type of abortion care in Arkansas (Supp. Decl. of Jason Lindo, Ph.D., ¶ 11).

         130. Dr. Lindo also projects that, if the OBGYN requirement goes into effect and LRFP does not close, the availability of surgical abortions at LRFP will increase from 0 to 252 compared to the scenario where LRFP closes (Id., ¶ 12). Accordingly, in this scenario, all but 252 of the women who would otherwise seek surgical abortions would have no provider in Arkansas (Id., ¶ 13). Typically, 2, 212 women have obtained surgical abortions each year in Little Rock (Id., ¶ 12).

         131. As such, according to Dr. Lindo, 1, 960 (or 75%) of the 2, 614 women who obtain abortions in Little Rock annually will not be able to obtain the same type of care in Arkansas that they would otherwise seek, absent the OBGYN requirement (Supp. Decl. of Jason Lindo, Ph.D., ¶ 13). Additionally, these 1, 960 are 62% of the 3, 167 women who would historically have obtained abortion care in Arkansas annually (including PPAEO Fayetteville) but who will not be able to obtain the same type of care in Arkansas that they would have, absent the OBGYN requirement (Id.).

         132. Dr. Lindo does account for the possibility that PPAEO Little Rock could provide up to 956 medication abortions annually for women who would historically have obtained abortion care in Arkansas. In conjunction with the 252 surgical abortions that LRFP could provide it if remains open despite the OBGYN requirement, this means that 1, 406 (or 54%) of the 2, 614 women who otherwise would obtain care in Little Rock annually will not be able to access any type of abortion care in Arkansas (Id., ¶ 14). Furthermore, 1, 406 (or 44%) of the 3, 167 women who have historically obtained abortion care in Arkansas annually (including at PPAEO Fayetteville) will not be able to obtain any type of abortion care in Arkansas (Id.).

         133. Kathleen Paulson, M.D., a board-certified OBGYN licensed to practice medicine in Arkansas, offers her declaration in support of plaintiffs' motion (Dkt. No. 2-1, at 248-250; Decl. of Kathleen Paulson, M.D.). Dr. Paulson provides medical services, including outpatient gynecologic care and women's wellness care, at a medical center in Fayetteville, Arkansas (Id., ¶ 1).

         134. Linda W. Prine, M.D., a board-certified family physician, offers her declaration in support of plaintiffs' motion (Dkt. No. 2-1, at 252-261; Decl. of Linda W. Prine, M.D.). Dr. Prine is a professor of family medicine and community health at the Icahn School of Medicine at Mount Sinai, and she also holds teaching positions at the Harlem Family Medicine Residency Program and the Mount Sinai Downtown Residency in Urban Family Medicine (Id., ¶ 4). She also maintains an active medical practice, including as a clinician at Planned Parenthood of New York City (Id.). Dr. Prine has provided medication and surgical abortion care to women up to sixteen weeks LMP, and over the last eighteen years, she has trained thousands of clinicians to provide abortion care (Id., ¶ 5). She states that those clinicians have come from several specialties, including family medicine, pediatrics, OBGYN, and internal medicine (Decl. of Linda W. Prine, M.D., ¶ 5).

         135. Dr. Prine knows of numerous family medicine practitioners who provide abortion care up to 24 weeks or more LMP (Id., ¶ 7). Furthermore, she has trained advanced practice clinicians, such as nurse practitioners, to provide abortion care (Id., ¶ 8). She states that it is well established that advanced practice clinicians can provide surgical abortion as safely and effectively as physicians (Id.).

         136. Dr. Prine explains that the scope of practice for family medicine practitioners is significantly more complex than abortion care; specifically, she notes that managing a patient's diabetes, heart disease, hypertension, and/or HIV/AIDS, or performing any number of other minor outpatient surgical procedures is more complex than abortion care (Decl. of Linda W. Prine, M.D., ¶ 16). She further notes that family practitioners provide miscarriage management, prenatal care, and delivery to low-risk patients (Id.). Dr. Prine states that miscarriage management involves many of the same skills required for abortion providers and that delivery, even to low-risk patients, has a higher complication rate than providing abortions (Id., ¶ 17).

         137. In Dr. Prine's experience, residents from all specialties can become qualified abortion providers (Id., ¶ 20). According to Dr. Prine, one third of abortion providers in this country come from specialties other than OBGYN and that, based upon her experience, there is no difference in the training of an OBGYN resident and other clinicians in these skills (Decl. of Linda W. Prine, M.D., ¶ 20).

         138. Dr. Prine points out that ACOG characterizes requirements “that clinic physicians be board certified obstetricians-gynecologists despite the fact that clinicians in many medical specialties can provide safe abortion services” as “medically unnecessary requirements designed to reduce access to abortion.” (Id., ¶ 21). Additionally, the American Academy of Family Physicians (“AAFP”) adopted in 2014 a resolution opposing laws that “impose[] on abortion providers unnecessary requirements that infringe on the practice of evidence-based medicine.” (Id., ¶ 22). Dr. Prine opines that the OBGYN requirement is the type of unnecessary requirement to which the AAFP policy refer, as it restricts access to abortion care with no medical benefit to patients (Id.). Dr. Prine also points out that the American Public Health Association likewise recognizes that training, not specialty, determines competence in providing abortion care (Id., ¶ 24).

         139. Dr. Prine cites a comprehensive report by the National Academies of Sciences, Engineering, and Medicine that states that family medicine physicians, among other clinicians, can “safely and effectively” provide medication and surgical abortions (Decl. of Linda W. Prine, M.D., ¶ 26). This report concluded medication and suction aspiration abortions performed by family medicine physicians had high success rates and that “[a]ll complications were minor and managed effectively at rates similar to those in OB/GYN practices and specialty abortion clinics.” (Id., ¶ 27). The report further concluded that “OB/GYNs, family medicine physicians, and other physicians with appropriate training and experience can provide D&E abortions.” (Id.).

         140. Dr. Prine concludes that restricting the provision of abortion care to board-certified or board-eligible OBGYNs is not medically justified and provides no medical benefit (Id., ¶ 29).

         141. Dr. Prine also submits a supplemental declaration in support of plaintiffs' motion (Dkt. No. 62-1; Supp. Decl. of Linda W. Prine, M.D.). Dr. Prine “strongly disagree[s]” with any contention that abortion creates or causes psychological or emotional problems that do not already exist or would have arisen regardless of the procedure (Id., ¶¶ 2-3). Citing reports from the National Academies of Sciences, Engineering and Medicine, the American Psychological Association (“APA”) Task Force on Mental Health and Abortion, and the Academy of Medical Royal Colleges, Dr. Prine states that “the rates of mental health problems for women with an unwanted pregnancy are the same whether they have an abortion or give birth” and that “there is no evidence that abortion gives rise to serious psychological and emotional harms.” (Id., ¶ 5).

         142. Dr. Alison Stuebe, M.D., M.Sc., Fellow of the American College of Obstetrics and Gynecology (“F.A.C.O.G.”), provides her declaration in support of plaintiffs' motion (Dkt. No. 2-1, at 290-301; Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G.). Dr. Stuebe is a board-certified maternal-fetal medicine specialist (“MFM”) and OBGYN (Id., ¶ 1). As an MFM, Dr. Stuebe specializes in the management of high-risk pregnancies; MFMs obtain three additional years of fellowship training, beyond the standard residency period for an OBGYN (Id.).

         143. Dr. Stuebe is an associate professor in the Department of Obstetrics and Gynecology and the Department of Maternal and Child Health at the University of North Carolina (“UNC”) School of Medicine (Id., ¶ 3). She also serves as the Associate Director for Research and Development at the UNC Center for Maternal and Infant Health (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 3). Since 2008, Dr. Stuebe has trained hundreds of medical students, residents, and fellows in OBGYN (Id.).

         144. Dr. Stuebe also maintains an active clinic practice focusing on care for women with high-risk pregnancies (Id., ¶ 5). A substantial part of her clinical work consists of conducting ultrasound and prenatal diagnostic tests and counseling women about fetal abnormalities (Id.).

         145. Since UNC is a state hospital, Dr. Stuebe cares for patients from a wide range of socioeconomic and cultural backgrounds, including women who are undocumented immigrants without health insurance and women who are UNC employees with private insurance (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 6).

         146. While Dr. Stuebe currently does not provide medication or surgical abortions as part of her clinical practice, she does currently assist women in terminating pregnancies involving fetal anomalies through medical induction of labor at the hospital (Id., ¶ 7).

         147. In her MFM practice, Dr. Stuebe regularly treats and counsels with pregnant women about genetic and other fetal anomalies (Id., ¶ 12). Because of her education, training, and clinic work, Dr. Stuebe is very familiar with the genetic anomaly Trisomy 21, which is commonly referred to as Down syndrome (Id., ¶¶ 12-13). While there are various risk factors for Down syndrome, Dr. Stuebe states that there is no way to predict before pregnancy whether a woman will have a fetus with Down syndrome (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 14).

         148. Dr. Stuebe explains that there are a number of screening and diagnostic tests available to determine the presence of certain genetic, chromosomal, and structural anomalies, including Down syndrome (Id., ¶ 17). Screening tests cannot diagnose any anomaly and only indicate a likelihood or probability that one or more anomalies exist (Id., ¶ 18). Screening tests usually screen for a range of anomalies at the same time and may indicate a likelihood of more than one anomaly at once (Id.). Diagnostic tests, on the other hand, determine the existence or non-existence of anomalies with near certainty (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 18).

         149. ACOG and the Society of Maternal Fetal Medicine (“SMFM”) recommend that all women be counseled about prenatal genetic screening and diagnostic testing options as early as possible in pregnancy, ideally at the first prenatal visit (Id., ¶ 19). They also recommend that all women be offered the option of aneuploidy screening or diagnostic testing for fetal genetic disorders and that all women with positive screening test results be offered further counseling and diagnostic testing (Id.). If a genetic disorder or other major structural abnormality is detected prenatally, ACOG recommends that the option of pregnancy termination should be discussed (Id.).

         150. The typical approach to genetic screening in pregnancy includes the assessment for common fetal aneuploidies, i.e., an abnormal number of chromosomes, including Trisomy 21 (Down syndrome), Trisomy 13, and Trisomy 18 (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 20).

         151. There are multiple Down syndrome screening tests used during pregnancy: the fetal cell-free DNA test; nuchal translucency and serum-marker screening tests; maternal serum quadruple marker (“Quad Screening”) tests; and targeted ultrasound examination (Id., ¶ 22).

         152. Cell-free DNA testing can be performed as early as 10-12 weeks LMP, and results are usually available within 7 days (Id., ¶ 22(a)). Cell-free DNA tests detect approximately 99% of pregnancies affected with Down syndrome, though false positive results are higher for low-risk women (Id.). ACOG, therefore, advises that women should not take irreversible action based upon a cell-free DNA test result alone (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 22(a)).

         153. In the first trimester, generally between 10-14 weeks LMP, clinicians specially trained in diagnostic medical sonography can perform nuchal translucency testing (Id., ¶ 22(b)). Nuchal translucency testing is typically done in tandem with serum-marker screening tests, which measure two hormones in the pregnant woman's blood (Id.). These first-trimester screens are less sensitive than the cell-free DNA test, as they detected approximately 82-87% of pregnancies affected with Down syndrome (Id.).

         154. In the second trimester, a quadruple-marker screening test is available that measures the levels of four different hormones in the pregnant woman's blood (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 22(c)). Quad screening detects approximately 81% of pregnancies affected by Down syndrome (Id.).

         155. Another second trimester screening test is the targeted ultrasound examination (Id., ¶ 22(d)). This test examines the fetal anatomy for markers that indicate increased risks of Down syndrome and is typically performed between 18-20 weeks LMP (Id.). These tests are difficult to complete before 18 weeks LMP and associated cardiac anomalies may not be visible until 19-20 weeks LMP (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 22(d)). Accordingly, clinicians do not typically perform targeted ultrasound examinations until at least 18 weeks LMP (Id.).

         156. If a screening test indicates an increased probability of a fetal genetic condition or aneuploidy, Dr. Stuebe offers a diagnostic test to confirm whether the genetic condition indicated by the screening test is present (Id., ¶ 23). There are two techniques for obtaining fetal cells for diagnostic testing: chorionic villus sampling (“CVS”) and amniocentesis (Id., ¶ 24).

         157. CVS analyzes a sample of cells taken from the placenta and is generally performed between 10-14 weeks LMP, though it can be performed earlier (Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 24(a)). CVS carries a slightly higher risk of pregnancy loss compared to amniocentesis, though there is debate among OBGYNs regarding the cause of this higher risk (Id.).

         158. Amniocentesis analyzes fetal skin cells in a sample of amniotic fluid taken from the gestational sac and is generally performed beginning at ...


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