Right to Abortion

“Federal District Court Enjoined Oklahoma Governor’s Order Suspending Abortion Services”

S. Wind Women’s Ctr. LLC v. Stitt, No. CIV-20-277-G, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020).

Written By: Logan Tower

In the landmark case, Jacobson v. Commonwealth of Massachusetts, the Supreme Court ruled that in cases of grave dangers to public health, individual constitutional rights may be restrained. Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905). At the same time, the Jacobson court stated that these restraints may not be “unreasonable,” “arbitrary,” or “oppressive.” Id at 27. In another landmark case, Casey v. Planned Parenthood, the Supreme Court reaffirmed the holding of Roe v. Wade that women have a right to an abortion pre-viability and held that the government may not place any undue burden upon pregnant women seeking an abortion. Planned Parenthood v. Casey, 112 S. Ct. 2791, 2820 (1992). In S. Wind Women’s Center v. Stitt, the court struggled to find a balance between these two principles.

In the present case, the Oklahoma Governor issued an executive order, on March 24, 2020, immediately implementing a postponement of all elective surgeries and non-medical/surgical procedures until April 7, 2020. This order included all abortion services not classified as a medical emergency. Under Oklahoma law, a medical emergency abortion occurs when the pregnancy poses a serious risk of death or substantial and irreversible injury to the woman. Public Health and Safety, 63 Okl.St.Ann. §1-756 (2019). This order was later extended through the month of April 2020.

The court held that the government’s order created an undue burden by forcing some women to have a surgical abortion instead of a much less invasive medicine-induced abortion. Medication-induced abortions are only available up to the first forty-nine days from the first day after the woman’s last menstrual cycle. Oklahoma Coalition v. Cline, 441 P.3d 1145, 1150 (Okla. 2019). By delaying when women could obtain an abortion, the Governor’s order made some women no longer eligible for a medicine-inducted abortion.

Further, women willing to undergo a surgical abortion had to wait until the end of April 2020 for an appointment, in compliance with the executive order. Because Oklahoma law prohibits an abortion to be conducted beyond a twenty-week period, any woman who was already in her fourteenth week of pregnancy when the Governor’s order went into place would have her procedure delayed until it was no longer permissible under Oklahoma law. Consequently, the woman’s only choice would be to travel outside of the state of Oklahoma for an abortion. The court found that this, too, created an undue burden on a woman’s right to choose under  Casey v. Planned Parenthood

The Court ordered the Defendants, their employees, agencies and other parties to be restrained from following the Governor’s executive order, removing the undue burden placed upon women seeking an abortion.

Eighth Circuit Court of Appeals Upholds Temporary Restrictions on Surgical Abortions

In re Rutledge, 956 F.3d 1018 (8th Cir., 2020).

Written by: Jamie Lenko

On April 3, 2020, the Arkansas Department of Public Health issued an emergency order in response to the global pandemic of the coronavirus (“COVID-19”). The order postponed all non-medical surgeries, specifically surgical abortions, unless the abortion was declared an emergency. The Arkansas government was concerned that these abortion procedures would divert badly needed personal protective equipment (PPE) from hospital staff treating patients with the virus.

On April 9, 2020 inspectors from the Arkansas Division of Health, (“ADH”) discovered that the Little Rock Family Planning Services Facility (LRFP) was still conducting non-emergent abortions. In re Rutledge, 956 F.3d 1018, 1024 (8th Cir., 2020). The ADH subsequently issued a cease-and-desist letter to LRFP ordering the facility to cease these procedures.

LRFP challenged the directive suspending surgical abortion as part of the “[s]tate’s long-running campaign to eliminate women’s access to constitutionally guaranteed health care” and sought a temporary restraining order (TRO). In re Rutledge, 956 F.3d at 1025. A federal district court granted the TRO and enjoined the State of Arkansas from enforcing this order against surgical abortion providers. Id. In response, the State filed for a writ of mandamus with the Eight Circuit Court of Appeals to dissolve the granted TRO.

In the landmark case, Jacobson v Massachusetts, the Supreme Court ruled“[W]hen faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have . . . some ‘real or substantial relation’ to the public health crisis.” Jacobson v. Massachusetts, 25 S.Ct. 358, 363 (1905)). The Court of Appeals found in favor of the State’s executive order, using the Jacobson justification. The Court vacated the issuance of the TRO. It explained that the ADH emergency order did not unduly burden a woman’s right to choose because it was only an indefinite postponement of non-essential surgical abortions.

The Eighth Circuit thus granted the writ of mandamus to dissolve the TRO granted to LRFP, holding Arkansas was justified in its order to postpone all non-essential surgeries, including abortions.