Federal Court Rules Arkansas Can Continue Preventing People from Getting Abortion Care During Pandemic

LITTLE ROCK, Ark. — A federal court denied a motion today to block an Arkansas directive that is preventing patients from obtaining abortion care. The ruling comes in response to a request filed last week by the American Civil Liberties Union, the ACLU of Arkansas, Little Rock lawyer Bettina Brownstein, and the law firm of O’Melveny & Myers.

The new directive prevents patients from obtaining a procedural abortion unless they are able to take, and receive negative results from, a COVID-19 test within 48 hours of their abortion. Little Rock Family Planning Services, the only provider of procedural abortion in the state, and its patients have been working diligently to secure such tests — but in many cases are unable to do so, as tests and testing resources are in short supply and results are generally not available within two days. Because of the requirement, patients who were unable to obtain test results within the required 48-hour period have been turned away and unable to obtain abortion care, including patients whose time to obtain a legal abortion in the state expired, leaving these patients with no real options.

“Make no mistake, Arkansas politicians are outright barring people who have decided to have an abortion from getting one and instead forcing them to stay pregnant and have a child against their will,” said Jennifer Dalven, director of the ACLU Reproductive Freedom Project. “A state should never prevent people from making a decision about a pregnancy that is best for themselves and their families. But doing so during the pandemic, when people are losing their jobs and doing everything they can just to keep their families healthy and make ends meet, is beyond cruel. We will continue to do everything we can to ensure that people can get the care they need.”

The ruling today comes in response to a limited request by Little Rock Family Planning to permit patients whose time to get a legal abortion in the state is about to expire to get an abortion even if they have been unable to secure the require negative COVID-19 test. The court denied that limited request meaning that even patients who are at the legal limit for abortion care must be turned away.

“The urgency of the situation in Arkansas cannot be overstated,” said Holly Dickson, interim executive director and legal director at the ACLU of Arkansas. “People cannot pause their pregnancies, and this politically-motivated restriction is already pushing care out of reach. This ruling will extend that harm.”

Last month, the Eighth Circuit Court of Appeals issued an opinion permitting the state of Arkansas to ban procedural abortions during the COVID-19 pandemic. It is the only court to have permitted a state to prevent a person from obtaining an abortion, even if doing so would entirely bar them from receiving care. The ruling reversed an earlier ruling by the District Court for the Eastern District of Arkansas blocking the state’s efforts to use the guise of the public health crisis to prevent abortion services. Medication abortion remains available for patients who are less than 10 weeks pregnant and who have no contraindications.

The restrictions on access to abortion imposed by politicians in Arkansas during the COVID-19 pandemic are the latest in a long list of attempts to push abortion care out of reach for people in the state. The ACLU is currently challenging seven other laws that prevent people from getting the care they need, including a medically unnecessary requirement that would force Little Rock Family Planning, the only provider of abortion care after 10 weeks of pregnancy, to shut down.