United States District Court, E.D. Arkansas, Western Division
PRELIMINARY INJUNCTION
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
(Dkt. No. 2).[1] The Court held a hearing on July 22, 2019,
and entered a temporary restraining order on July 23, 2019
(Dkt. No. 83). In the temporary restraining order, the Court
held plaintiffs' request for a preliminary injunction
under advisement. For the reasons set forth below, the Court
grants plaintiffs' request for a preliminary injunction.
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).
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 were to take effect on July
24, 2019. The Court held the hearing on plaintiffs'
motion for temporary restraining order and/or preliminary
injunction on July 22, 2019 (Dkt. No. 78).
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
from Jason Lindo, Ph.D., 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 supplemental 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 that time
(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 in advance of the
July 22, 2019, hearing 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).
The
hearing was held on July 22, 2019 (Dkt. No. 84). Plaintiffs
called Frederick Hopkins, M.D., Linda Prine, M.D., Lori
Williams, Dr. Lindo, and Thomas Tvedten, M.D. Defendants
called Janet Cathey, M.D., Tumulesh K.S. Solanky, Ph.D.,
Donna Harrison, M.D., and Judy McGruder. Plaintiffs recalled
Dr. Prine for rebuttal, after which defendants did not cross
examine her. Plaintiffs also recalled Dr. Lindo for rebuttal,
and likewise defendants did not cross examine him on his
rebuttal testimony. Neither party identified additional
witnesses they wished to have called. Furthermore, neither
party utilized the full time granted by the Court to question
the witnesses who appeared at that hearing.
The day
after the July 22, 2019, hearing, plaintiffs filed a notice
of correction of the record in which they attached a
supplemental declaration by Dr. Lindo that corrected
duplicate entries within Excel files that had been produced
to defendants (Dkt. No. 79, at 1). Defendants then filed a
motion to strike this declaration, arguing that the Court
should strike the latest declaration and allow defendants
further discovery by deposing Dr. Lindo (Dkt. No. 80). The
Court denied defendants' motion to strike this
declaration and their request to depose Dr. Lindo (Dkt. No.
96).
On July
23, 2019, the Court entered a 14-day temporary restraining
order enjoining the enforcement of Acts 493, 619, and 700. On
July 25, 2019, defendants filed a motion for expedited
preliminary-injunction-proceeding discovery, in which
defendants sought the Court's permission to propound
discovery requests on plaintiffs regarding Planned Parenthood
of Arkansas and Eastern Oklahoma's (“PPAEO”)
ability to provide abortions in Little Rock, PPAEO's
efforts to provide surgical abortions in Arkansas, building
requirements applicable to surgical abortions, and data on
out-of-state abortion clinics (Dkt. No. 86). Defendants also
sought permission to issue a Federal Rule of Civil Procedure
30(b)(6) deposition notice on PPAEO (Id.).
Plaintiffs responded to the motion for expedited discovery
(Dkt. No. 92), and the Court denied defendants' motion
(Dkt. No. 97).
At 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. The Court entered a written
Order recounting the parties' positions with respect to
Jegley and the current case, declining
defendants' oral motion to incorporate the entire record
from Jegley into this matter, and directing the
parties to cite to specific portions of the Jegley
record for the Court's consideration in this matter (Dkt.
No. 94).
Defendants
also requested a second hearing, and the Court denied this
request (Dkt. No. 111). The Court noted, in part, that the
matters defendants wished to raise at a second hearing were
known to defendants at the July 22, 2019, hearing and that
the defendants had an opportunity to cross examine
plaintiffs' witnesses on these matters at that time
(Id.). In ruling on plaintiffs' motion for
preliminary injunction, the Court has considered the record
before it as of August 6, 2019. Further, given the limited
nature of a preliminary injunction order, the Court declines
to strike the declarations filed by any party 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).
II.
Findings Of Fact
The
Court makes the following findings of fact.[2]
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- OBGYN 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 OBGYN.” (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 traveled 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 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'
(“PPGP”) 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 abortions 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 per 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 that 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.).
Dr. Cathey testified at the hearing that, during her time at
UAMS, she observed the training of OBGYN residents, and she
noted that very few of them received training in abortion
care (Dkt. No. 84, at 203:1-2). She also noted that most, but
not all, of the OBGYN residents were able to provide
miscarriage management by the end of their residency
(Id.).
17. Dr.
Cathey states that many family medicine physicians and other
clinicians undergo training to provide safely abortion care
(Decl. of Janet Cathey, M.D., ¶ 13). She further states
that family medicine medical students are “just as
skilled and qualified to provide abortion care as the OBGYN
students.” (Id., ¶ 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)).
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. At
the hearing, defendants' counsel asked Dr. Cathey if she
would perform an abortion if the woman seeking the abortion
indicated that she was seeking an abortion because the fetus
was transgendered or based upon the fetus' race (Dkt. No.
84, at 201:1- 202:9). Defendants did not ask Dr. Cathey about
her capacity to provide abortions for PPAEO or about the
capacity of PPAEO's new facility in Little Rock.
Defendants did not argue that they did not have enough time
to question Dr. Cathey, nor did they ask the Court to direct
Dr. Cathey to answer any questions.
21.
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.).
22. 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).
23. 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.).
24. 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.).
25. 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.).
26.
Furthermore, Dr. Freedman points out that physicians who wish
to perform abortions often must choose whether to maintain a
general obstetrics and gynecology (“OBGYN”)
practice or provide abortions, but not both (Decl. of Lori
Freedman, Ph.D., ¶ 14).
27. 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.).
28. 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 (citing
Nat'l Abortion Fed'n, 2017 Violence and Disruption
Statistics 6 (2017), available at
https://prochoice.org/wp-content/uploads/2017-NAF-Violence-and-Disruption-Statistics.pdf)).
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).
29. 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).
30. 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).
31. Dr.
Freedman avers 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).
32.
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.)).
33. Dr.
Ho states that she cannot become a board-certified or
board-eligible OBGYN because she did not complete a residency
in OBGYN 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).
34. Dr.
Ho further states that, at the time she submitted her
declaration, surgical abortions could not be performed at
PPAEO's Fayetteville health center (“PPAEO
Fayetteville”) because that facility did not meet the
state's requirement governing facilities where surgical
abortions are performed (Id., ¶ 10).
35. 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).
36. 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.).
37. 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
(citing Daniel Grossman et al., Effectiveness and
Acceptability of Medical Abortion Provided Through
Telemedicine, 118 Obstetrics & Gynecology 296, 300
(2011))).
38. 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).
39. 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.).
40. 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). Dr. Ho also states
that the national risk of maternal mortality associated with
live birth is approximately fourteen times higher than that
associated with induced abortions (Id. (citing
Elizabeth G. Raymond & David A. Grimes, The
Comparative Safety of Induced Abortion and Childbirth in the
United States, 119 Obstetrics & Gynecology 215
(2012))). She also notes that, in Arkansas, the maternal
mortality rate is even worse, with Arkansas ranked 44th in
the nation for maternal mortality compared to other states in
2018 (Id. (citing United Health Foundation, 2018
Health of Women and Children Report (2018),
https://www.americashealthrankings.org/lea
rn/reports/2018-health-of-women-and-children-report/state-summaries-arkansas)).
41. 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).
42.
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.).
43. 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).
44. 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).
45. 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.).
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).
As authorities for these statistics, Dr. Hopkins cites the
National Academy Consensus Study prepared by the National
Academy of Sciences, Engineering, and Medicine and reports by
the Guttmacher Institute. See National Academy of
Sciences, Engineering, and Medicine, The Safety and
Quality of Abortion Care in the United States 2018, at
11, 74-75, available at
https://doi.org/10.17226/24950) (hereinafter “National
Academy Consensus Study Report”); The Guttmacher
Institute, Induced Abortion in the United States
(January 2011),
https://www.guttmacher.org/sites/default/files/factsheet/fbinducedabortion.pdf;
The Guttmacher Institute, Abortion is a Common Experience
for U.S. Women, Despite Dramatic Declines in Rates (Oct.
2017),
https:www.guttmacher.org/news-release/2017/abortion-common-experience-us-women-despite-dramatic-declines-rates.
Dr. Hopkins further explains that a “majority of women
having abortions in the United States already have one
child.” (Id. (citing The Guttmacher Institute,
Characteristics of U.S. Abortion Patients in 2014 and
Changes Since 2008 (May 2016),
https://www.guttmacher.org/report/characteristics-us-abortion-patients-2014)).
Testimony consistent with this declaration was offered at the
hearing and was subject to cross-examination.
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 (citing
Upadhyay, Ushma D., et al., Incidence of Emergency
Department Visits and Complications After Abortion, 125
Obstetrics and Gynecology 175 (2015)). 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.). Testimony
consistent with this declaration was offered at the hearing
and was subject to cross-examination.
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 (citing
National Academy Consensus Study Report at Table 2-4, 2-24;
Zane, S., et al., Obstetrics and Gynecology,
Abortion-related mortality in the United States:
1998-2010, at 258-65, available at
http://www.ncbi.nlm.nih.gov/pubmed/26241413; Bartlett, L.A.,
et al., Obstetrics and Gynecology, Risk Factors for legal
induced abortion-related mortality in the United States,
at 729-37, available at
https://www.ncbi.nlm.nih.gov/pubmed/15051566)). Testimony
consistent with this declaration was offered at the hearing
and was subject to cross-examination.
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
(citing National Academy Consensus Study Report, Table 2-4,
2-24)). Testimony consistent with this declaration was
offered at the hearing and was subject to cross-examination.
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). Testimony consistent with this declaration was
offered at the hearing and was subject to cross-examination.
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. (citing Am. Coll. of Obstetricians and
Gynecologists, Committee Op. No. 612 (Nov. 2014),
available at
https://www.acog.org/Clinical-Guidance-and-Publications/Committee-Opinions/Committee-on-Health-Care-for-Underserved-Women/Abortion-Training-and-Education)).
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 (citing
National Academy Consensus Study Report, at 11, 14, 79, 95)).
Testimony consistent with this declaration was offered at the
hearing and was subject to cross-examination.
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).
Testimony consistent with this declaration was offered at the
hearing and was subject to cross-examination.
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.
(citing Am. Coll. of Obstetricians and Gynecologists,
Practice Bulletin 143 (Mar. 2014), available at
https://www.acog.org/-/Practice-Bulletins/Committee-on-Practice-Bulletins----Gynecology/Public/pb143.pdf)
(“ACOG Practice Bulletin No. 143”)). Testimony
consistent with this declaration was offered at the hearing
and was subject to cross-examination.
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.).
Testimony consistent with this declaration was offered at the
hearing and was subject to cross-examination.
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 is 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). At the
hearing, Dr. Hopkins testified that other physicians could
perform patient counseling, but he also testified that the
counseling is one of the reasons he likes seeing patients and
that he does not want to work somewhere where he does not get
to provide counseling to patients (Dkt. No. 84, at 47:1-8).
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 (Decl. of
Frederick W. Hopkins, M.D., M.P.H., ¶ 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
(Id., ¶ 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 (Decl. of Frederick W. Hopkins, M.D.,
M.P.H., ¶ 50). Testimony consistent with this
declaration was offered at the hearing and was subject to
cross-examination. Dr. Hopkins also testified that LRFP has
never offered his more money and that, regardless of how much
money LRFP might offer him, he could not relocate to Arkansas
because that would require him to give up his entire career
in California (Dkt. No. 84, at 37:1-10). Dr. Hopkins
specifically stated that he would not be willing to relocate
to Arkansas and work at LRFP even if they paid him a million
dollars (Id., at 37).
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
and an abortion care provider in Memphis, Tennessee, offers
his declaration in support of plaintiffs' motion (Dkt.
No. 2-1, at 145-155; Decl. of Thomas Russell Horton, Jr.,
M.D.). Dr. Horton did not testify at the July 22, 2019,
hearing.
68. Dr.
Horton completed his residency in OBGYN, but he is not
board-certified or board-eligible in OBGYN (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-certified or
board-eligible OBGYN, a physician must first complete his or
her residency in OBGYN 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-certified or board-eligible 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 traveling 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 two-thirds of 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 traveling (Id., ¶ 41 (citing Tara
C. Jatlaoui et al., Ctrs. for Disease Control and Prevention,
Abortion Surveillance-United States 2015,
67 MMWR Surveill. Summ. 1, at Table 16 (2018)). 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 traveling (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 traveled 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 (citing Upadhyay,
Ushma D., et al., Denial of abortion because of provider
gestational age limits in the United States, 104.9 Am.
J. of Pub. Health 1687, 1697-94 (2014)). 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 traveling long
distances to obtain abortion care (Id., ¶ 58).
110.
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). Dr. Lindo testified at
the July 22, 2019, hearing.
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).[3]
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.).
Testimony consistent with this declaration was offered at the
hearing and was subject to cross-examination.
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).[4]
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, [5] 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). Testimony consistent
with this declaration was offered at the hearing and was
subject to cross examination.
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.
Upon cross examination, Dr. Lindo testified that his
conclusions were based upon information provided to him by
plaintiffs and that, depending upon the assumptions made, his
conclusions could change (Dkt. No. 84, at 144:14-16). Dr.
Lindo also noted during his testimony that the capacity to
provide abortions in his calculations are determined by the
physicians who can provide abortion care (Id., at
150:1-4).
134.
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).
135.
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). Dr. Prine testified at the July 22, 2019, hearing.
136.
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.). Testimony consistent with this
declaration was provided at the hearing and was subject to
cross examination (Dkt. No. 84, at 51:8-12).
137.
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 (citing Raymond & Grimes, supra, at
216-17)).
138. 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
(citing Katharine O'Connell, et al., First-Trimester
Surgical Abortion Practices: A Survey of National Abortion
Federation Members, 79 Contraception 385 (2009);
Katharine O'Connell, et al., Second-Trimester
Surgical Abortion Practices: A Survey of National Abortion
Federation Members, 78 Contraception 492 (2008))).
139.
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 (citing Am. Coll. of Obstetricians and
Gynecologists, Committee Op. No. 613 (Nov. 2014),
https://www.acog.org/Clinical-Guidance-and-Publications/Committee-Opinions/Committee-onhealth-Care-for-Underserved-Women/Increasing-Access-to-Abortion)).
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 (citing Am. Acad.
of Family Physicians, Resolution No. 10001, Oppose
Targeted Regulation Against Abortion Providers (TRAAP
laws) (2014), http://www.aafp.org/about/constit
uencies/past-ncsc/2014.html)). 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 (citing Am. Public Health
Ass'n, Policy Statement: Provision of Abortion Car by
Advanced Practice Nurses and Physician Assistants,
https://www.apha.org/policies-and-advocacy/public-health-policy-statements/policy-database/2014/07/28/16/00/provision-of-abortion-care-by-advanced-practice-nurses-and-physician-assistants)).
140.
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
(citing National Academy Consensus Study Report, at 14)).
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 (citing National Academy Consensus
Study Report, at 105)). The report further concluded that
“OB/GYNs, family medicine physicians, and other
physicians with appropriate training and experience can
provide D&E abortions.” (Id. (citing
National Academy Consensus Study Report, at 14)).
141.
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). At the hearing, Dr. Prine
testified that the National Academy Consensus Study Report
confirmed that competencies do not depend on board
certification but rather on the training and experience of
the individual physician (Dkt. No. 84, at 62:8-12).
142.
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 (citing
Am. Psychological Ass'n, Task Force on Mental Health and
Abortion, Report of the Task Force on Mental
Health and Abortion, at 7-8 (2008), available
at
http://www.apa.org/pi/wpo/mental-health-abortion-report.pdf)).
143.
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.).
144.
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.).
145.
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.).
146.
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).
147.
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).
148. 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).
149.
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).
150.
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).
151.
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) (citing ACOG Practice Bulletin No. 163)).
152. 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).
153.
Dr. Stuebe states that most women do not receive a confirmed
diagnosis of Down syndrome until well into the second
trimester of pregnancy (Id., ¶ 25). Further,
amniocentesis is more widely available than CVS and cannot be
performed until 15 weeks LMP, and test results from
amniocentesis are often unavailable until 17 weeks LMP (Decl.
of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 25).
Furthermore, a clinician performing an ultrasound may not be
able to detect any associated anatomical abnormalities before
approximately 18 weeks LMP (Id.).
154.
Dr. Stuebe states that Act 619 will encourage women to
withhold screening and diagnostic test results from medical
providers the women visit for care, which could have negative
consequences for both the clinician-patient relationship and
women's health, especially since understanding the
meaning and reliability of various screening and diagnostic
tests can be difficult (Id., ¶ 29).
155.
Additionally, Dr. Stuebe states that Act 493 will “make
it extremely difficult, if not impossible, for women to take
the time necessary to confirm a diagnosis of Down syndrome or
another fetal anomaly, and make an informed, autonomous
decision regarding whether to carry to term or terminate the
pregnancy.” (Id., ¶ 30). Specifically,
amniocentesis results are unavailable before 16-17 weeks LMP,
and targeted ultrasound examinations cannot be performed
reliably until approximately 18 weeks LMP, at the earliest
(Decl. of Alison Stuebe, M.D., M.Sc. F.A.C.O.G., ¶ 30).
Dr. Stuebe states that Act 493 creates artificial time
pressure that could lead women and their families to rush
their decision-making process for no medically justified
reason (Id.).
156.
Thomas Tvedten, M.D., the part owner and Medical Director of
LRFP, provides his declaration in support of plaintiffs'
motion (Dkt. No. 2-1, at 371-384; Decl. of Thomas Tvedten,
M.D.). Dr. Tvedten testified at the July 22, 2019, hearing.
157.
Dr. Tvedten first began training to provide abortion care in
1985 at Women's Community Health in Little Rock, a clinic
that used to provide abortion care in Arkansas (Id.,
¶ 5). Dr. Tvedten was trained by an experienced abortion
provider and family medicine physician who had been providing
abortion care in Arkansas since the 1970s (Id.). Dr.
Tvedten began by first learning, and then providing, first
trimester abortion care (Id., ¶ 6). After
speaking to other providers and observing them perform second
trimester procedures, Dr. Tvedten expanded the scope of his
practice to second trimester procedures, eventually
performing procedures up to approximately 21 weeks, 6 days
LMP (Decl. of Thomas Tvedten, M.D., ¶ 7). Dr. Tvedten
has consistently provided abortion care up to 21.6 weeks LMP
for more than 15 years (Id.).
158.
Starting in 2004, after the Federal Drug Administration
(“FDA”) approved Mifeprex for combined use with
misoprostol for early non-surgical abortion, Dr. Tvedten
began providing medication abortion up to 10 weeks LMP
(Id., ¶ 8).
159.
Dr. Tvedten has also trained numerous providers to provide
both medication and surgical abortions (Id., ¶
9). Family planning and OBGYN residents and medical students
regularly come to LRFP to observe Dr. Tvedten performing
abortion procedures and to receive training (Decl. of Thomas
Tvedten, M.D., ¶ 9). Furthermore, many OBGYNs in
Arkansas refer patients to Dr. Tvedten for abortion care that
they are not trained to or are unable to provide
(Id., ¶ 10).
160.
Dr. Tvedten states that, while complications arising from
either medication or surgical abortion are extremely rare, he
is trained to handle effectively and safely any issue that
may arise, either by providing the follow-up care himself or
by referring his patients to a “tertiary care
facility.” (Id., ¶ 11).
161.
Dr. Tvedten takes steps to ensure that he is always up to
date on the latest advances in abortion care (Id.,
¶ 12). For example, he attends yearly conferences on
abortion care to further his education (Decl. of Thomas
Tvedten, M.D., ¶ 12). He also discusses abortion care
and complex abortion cases with other providers, including
his OBGYN colleagues, and he reads practice bulletins issued
by medical authorities such as ACOG (Id.). He also
reviews articles published in peer-reviewed medical journals,
such as Obstetrics & Gynecology, Contraception,
the Journal of the American Medical Association, and
other sources on this topic (Id.).
162. At
LRFP, Dr. Tvedten and two other physicians provide surgical
abortions up to 21.6 weeks LMP and medication abortions up to
10 weeks LMP (Id., ¶ 15). LRFP is one of three
abortion clinics in Arkansas and is the only one that offers
surgical abortions (Decl. of Thomas Tvedten, M.D., ¶
15). Accordingly, LRFP is the only option for women seeking
abortion care after 10 weeks LMP in Arkansas (Id.).
163.
Dr. Tvedten points out that Arkansas law currently requires
that LRFP patients who seek an abortion must make at least
two-in-person trips to the clinic-first for the
state-mandated informed consent process, including a
non-directive discussion regarding their options, and the
second for additional, non-directive counseling and the
abortion itself, after a mandatory delay of at least 48 hours
(Id., ¶ 20). For patients receiving abortion
care at 18 to 21.6 weeks LMP, which is a two-day procedure,
that law results in at least three trips (Id.). Dr.
Tvedten points out that a new law, set to take effect on July
24, 2019, increases the mandatory delay period to at least 72
hours (Decl. of Thomas Tvedten, M.D., ¶ 20 (citing Ark.
Act. 801, to be codified at §§ 20-16-1109,
-1703(b), -1706)).
164.
Dr. Tvedten is not a board-certified or board-eligible OBGYN
(Id., ¶ 23). He cannot become either because he
did not complete an OBGYN residency and cannot feasibly do so
now, given “the extraordinary time and resources that
would be needed to pursue a new specialty at this
stage” of his career (Id. (citing Am. Bd. of
Obstetrics & Gynecology, Candidate Requirements &
General Details, Becoming an ABOG Registered Residency
Graduate,
https://www.abog.org/specialty-certification/general-cert-requirements-and-info#ContentC009Col00)).
If the OBGYN requirement goes into effect, Dr. Tvedten will
be forced to stop providing abortion care to his patients or
risk incurring significant penalties (Id.).
165.
Dr. Tvedten also states that the only other physician
currently providing abortions at LRFP every week is Dr.
Horton, who lives in Memphis, Tennessee, and generally
provides care at LRFP approximately one day a week (Decl. of
Thomas Tvedten, M.D., ¶ 24).
166.
Dr. Tvedten further states that LRFP does not employ on a
full-time basis or receive full-time assistance from any
physicians who are board-certified or board-eligible OBGYNs
(Id., ¶ 25). The only board-certified or
board-eligible OBGYN who provides care at LRFP is Dr.
Hopkins, but he can travel to Arkansas to provide abortion
care at LRFP only approximately once every-other month
(Id., ¶ 26).
167.
Dr. Tvedten states that, over the past four years, LRFP has
undertaken significant efforts to try to find an OBGYN who
would be willing to assist LRFP in continuing to provide
abortion care, including by providing abortions at LRFP or on
a part-time or full-time basis (Id., ¶ 27).
These efforts included renewed efforts after the Arkansas
legislature passed the OBGYN requirement (Decl. of Thomas
Tvedten, M.D., ¶ 27). Despite their efforts, LRFP has
not been able to identify a single board-certified or
board-eligible OBGYN provider who can provide full-time or
near-full-time care at LRFP (Id.).
168. In
Dr. Tvedten's experience, many of the physicians who
provide abortion care in Arkansas permanently reside in other
states and only travel to Arkansas to provide abortion care
because there are no local physicians willing to provide
abortion care here (Id., ¶ 28).
169.
According to Dr. Tvedten, locally-based physicians who do
provide abortion care in Arkansas face stigmatization that
may jeopardize their ability to continue to provide other
care, retain positions or admitting privileges at hospitals,
and protect their families from harassment (Id.,
¶ 29).
170.
Dr. Tvedten states that one of the Arkansas physicians from
whom he first received training in abortion care, Dr. James
Guthrie, was forced to abandon his provision of abortion care
altogether because of the harassment that he and his family
practice partners faced at the hands of the anti-abortion
activists who picketed his family practice clinic and the
homes of the physicians with whom he shared this practice
(Decl. of Thomas Tvedten, M.D., ¶ 30).
171.
Dr. Tvedten agreed to assist Dr. Guthrie in finding a
replacement provider, and he eventually stayed on to provide
abortion care on a permanent basis (Id., ¶ 31).
172.
Dr. Tvedten recalls conversations with his former medical
school classmates, and he relates that “they scoffed at
the idea of providing abortion care in the state, given the
stigma associated with it and the accompanying risk that
providing abortion would harm their ability to maintain the
private practices and positions at hospitals.”
(Id.).
173.
Dr. Tvedten also gave up his family practice in large part
because of his knowledge that the political climate and
stigma surrounding abortion care would make it extremely
difficult, if not impossible, to attract potential partners
and patients to a ...