Little Rock Family Planning Services v. Rutledge

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

LITTLE ROCK FAMILY PLAINTIFFS

PLANNING SERVICES, et al.,

v. Case No. 4:19-cv-00449-KGB

LESLIE RUTLEDGE, in her

official capacity as Attorney General

of the State of Arkansas, et al., DEFENDANTS

PRELIMINARY INJUNCTION

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

1

Not all named plaintiffs in this lawsuit join the motion for temporary restraining order

and/or preliminary injunction (Dkt. Nos. 2, 32).

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).

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

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(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

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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, Case 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).

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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-

2

To the extent the findings of fact in this Order contradict the findings of fact made in the

Court’s prior Orders, the findings of fact in this Order control. Further, the Court will address

these and additional factual matters in the context of its discussion of the legal issues; in that

context, the Court also makes findings of fact. In making the following findings of fact and

conclusions of law, the Court has considered the record as a whole. The Court has observed the

demeanor of witnesses and has carefully weighed their testimony and credibility in determining

the facts of this case and drawing conclusions from those facts. All findings of fact contained

herein that are more appropriately considered conclusions of law are to be so deemed. Likewise,

any conclusions of law more appropriately considered a finding of fact shall be so classified. The

Court has considered and weighed all the evidence presented in the record at this stage; the Court

has resolved any disputes consistent with the statements in this Order.

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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).

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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

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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

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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,

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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.).

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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).

12

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).

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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))).

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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)).

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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).

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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/fb_induced_abortion.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)).

17

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.).

18

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

19

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

20

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

21

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.).

22

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.).

23

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

24

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.).

25

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

26

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.).

27

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).

28

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.).

29

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

30

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).

31

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)

32

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).

33

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.,

3

As plaintiffs have demonstrated that the Excel files provided to Dr. Lindo did not include

the merger error from April 2018, and based upon the Court’s review of all record evidence in this

case, the Court finds no reason to doubt the numerical estimates provided by Dr. Lindo.

34

¶ 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

35

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

4

The Court calculates this sum from Table 11 in Dr. Lindo’s declaration. Dr. Lindo states

that 1,134 Arkansans received surgical abortions in Arkansas at less than or equal to 10 weeks

LMP and that 793 Arkansas residents obtained surgical abortions in Arkansas at greater than 10

weeks LMP.

5

480+476=956.

36

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

37

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,

38

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);

39

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-on_health-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

40

“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

41

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).

42

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

43

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

44

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

45

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

46

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#Content_C009_Col00)). 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., ¶

47

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.).

48

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 separate practice while he continues

to provide abortion care (Id., ¶ 33).

174. Dr. Tvedten states that, just a few years ago, anti-abortion activists found out where

his children attend school and distributed flyers at the school grounds with his name, picture, and

home address on them, labelling him as “complicit in murder.” (Decl. of Thomas Tvedten, M.D.,

¶ 34). He and his family have also been subject to picketing at their private residence (Id.).

175. Dr. Tvedten has, in recent years, had conversations with local physicians who,

despite considering themselves pro-choice and supportive of the full range of reproductive health

care, including abortion care, have abandoned any idea of providing abortion care in Arkansas

given the stigma associated with it (Id., ¶ 35).

176. Dr. Tvedten states that, due to LRFP’s inability to attract another full-time provider

who is a board-certified or board-eligible OBGYN, LRFP will almost certainly have to be shut

down entirely, absent some unanticipated development (Id., ¶ 36). He also states that, if LRFP

remains open due to Dr. Hopkins’ provision of care, LRFP would still have to restrict significantly

its provision of abortion care (Decl. of Thomas Tvedten, M.D., ¶ 36).

177. Indeed, in Dr. Tvedten’s opinion, even if LRFP is not forced to close immediately,

if LRFP cannot employ a full-time board-certified or board-eligible OBGYN, then LRFP will be

forced to close eventually (Id., ¶ 37).

178. In the event Act 493 takes effect, Dr. Tvedten and other physicians at LRFP will

stop performing abortions in cases where the pregnancy is determined to be greater than 18 weeks

LMP (Id., ¶ 42).

49

179. Dr. Tvedten is aware that some of LRFP’s patients seek abortions after receiving a

fetal diagnosis, including diagnoses of Down syndrome (Id., ¶ 44). In order to avoid the penalties

set forth in Act 619, Dr. Tvedten states that he and the other physicians at LRFP will have no

choice but to stop performing abortions when they have “knowledge” that the woman is seeking

the abortion “solely” due to a test result indicating Down syndrome (Decl. of Thomas Tvedten,

M.D., ¶ 46).

180. At the hearing, Dr. Tvedten noted that he has twice been sued for medical

malpractice and that both of those cases were settled out of court (Dkt. No. 84, at 173:8-174:11).

Dr. Tvedten also noted that his medical license was once suspended for three months in 1983 (Id.,

at 174:19).

181. Dr. Tvedten also testified that medical students shadow him and that he has lectured

at UAMS (Id., at 176:5-13).

182. Dr. Tvedten also testified that he is not surprised that LRFP has not been able to

find a board-certified or board-eligible physician to work at LRFP (Dkt. No. 84, at 178:13-22). He

testified that the stigma associated with being an abortion provider in Arkansas reaches “way

beyond your medical practice . . . .” (Id.).

183. Lori Williams, M.S.N., A.P.R.N., a nurse practitioner and Clinical Director of

LRFP, offers her declaration in support of plaintiffs’ motion (Dkt. No. 2-1, at 388-403; Decl. of

Lori Williams, M.S.N., A.P.R.N.). Ms. Williams has worked at LRFP since 2004 and has been

the Clinical Director since 2007 (Id.). Since 2010, she has been a part owner of LRFP (Id., ¶ 5).

184. As LRFP’s Clinical Director, Ms. Williams is responsible for all aspects of the day-

to-day operations, including overseeing patient care in coordination with the physicians and other

50

health-care professionals, supervising staff, maintaining policies and procedures, and ensuring that

LRFP complies with all laws and regulations (Id., ¶ 8).

185. Ms. Williams states that “[a]bortion is one of the safest medical procedures

currently available to women in the United States” and that “[i]t is substantially safer than giving

birth . . . .” (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 9 (citing National Academy Consensus

Study Report, at 74-75)).

186. Ms. Williams states that only three physicians currently provide care at LRFP: Dr.

Tvedten, Dr. Horton, and Dr. Hopkins (Id., ¶ 11). She states that all three of these doctors are

extremely experienced in abortion care and that they can handle any complications that may arise,

including by providing treatment at LRFP and by referring patients to a local hospital when

necessary (Id.).

187. LRFP offers medication abortion from the point in pregnancy when an intrauterine

pregnancy can be confirmed (typically 5-6 weeks LMP) to 10 weeks LMP (Id., ¶ 13). LRFP offers

aspiration abortion from approximately 3-4 weeks LMP through approximately 13 weeks LMP

and typically performs a D&E procedure beginning around 14 weeks LMP through 21.6 weeks

LMP (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 14). Ms. Williams notes that aspiration and

D&E abortions do not involve incisions (Id.).

188. Ms. Williams states that it is common for a woman who can choose between a

medication and surgical abortion to have a strong preference for a surgical abortion (Id., ¶ 15).

She states that while there are many reasons for this, “many women prefer the surgical option

because it requires fewer visits to the clinic, and thus is associated with a lower burden in terms of

funding and time.” (Id.).

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189. LRFP currently provides patient care three days per week, and to accommodate the

48-hour mandated waiting period, LRFP typically provides care on three staggered days each week

(Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 17). She also states that LRFP can safely and

effectively “provide abortion care up to approximately 20-25 women each day, depending on the

variables associated with the specific patient-care needs presented on any given day.” (Id.).

190. LRFP operates with substantial fixed costs each month, the most significant of

which is overhead related to LRFP’s 13 full-time staff members (Id., ¶ 19).

191. Ms. Williams states that, in 2018, LRFP provided approximately 170 second

trimester abortions after 18 weeks LMP (Id., ¶ 21).

192. At the hearing, Ms. Williams testified that LRFP has patients who currently receive

abortions that would no longer be able to obtain those services with LRFP if Act 493 goes into

effect (Dkt. No. 84, at 100:16-18).

193. Ms. Williams further states that, if Act 493 takes effect, LRFP will stop providing

abortions after 18 weeks LMP, and she asserts that this will force women to travel out of state for

another abortion care provider (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶¶ 22-23). Ms.

Williams notes that a significant number of LRFP’s patients are poor or low income and receive

financial assistance to cover part of the costs of their abortion care (Id., ¶ 23).

194. Ms. Williams also states that, from conversations with patients, she understands

that the efforts required to make the necessary plans to come to LRFP cause anxiety and stress,

which are exacerbated by travel and logistical arrangements (Id., ¶ 24). She notes that the need to

arrange for time off work on multiple days can be challenging and that many LRFP patients are in

low-wage jobs where they are unlikely to receive vacation or sick days (Id.). She notes that her

52

patients report that they risk their employment and confidentiality by asking for time off (Decl. of

Lori Williams, M.S.N., A.P.R.N., ¶ 24).

195. Furthermore, based upon her counseling with patients, Ms. Williams knows that

making the necessary arrangements and raising funds for travel and other costs associated with

coming to LRFP can force patients to delay seeking care (Id., ¶ 25). She also notes that

transportation presents a major challenge in rural Arkansas, as there are few public-transportation

options and rural residents often live far away from health-care providers (Id.). According to Ms.

Williams, “[n]umerous patients who come to the clinic for abortion care in the second trimester,

including after 18 weeks LMP, have conveyed to me during the counseling process that they would

have preferred to have obtained an abortion sooner but were delayed due to the logistical

challenges described above (Id.).

196. At the hearing, Ms. Williams testified that LRFP knows which of its patients qualify

for financial assistance based on income (Dkt. No. 84, at 82:21-23). According to Ms. Williams,

the NAF provides funding to patients who are at 100 or 110% of the federal poverty line and that

approximately 30% of LRFP’s patients qualify for NAF funding (Id.).

197. Ms. Williams also notes that the risks associated with abortion procedures increase

as the pregnancy progresses and that delay may worsen any maternal health conditions associated

with the pregnancy (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 26).

198. Ms. Williams states that she is “aware that some of our patients seek abortions after

receiving a fetal diagnosis, including Down syndrome.” (Id., ¶ 29). She notes that while LRFP

does ‘not require patients . . . to tell us the reason or reasons they are seeking an abortion, patients

who are seeking an abortion after a fetal diagnosis usually disclose this fact . . . .” (Id.). She also

notes that these patients come to LRFP “from across Arkansas and out-of-state, with many referred

53

. . . from Maternal Fetal Medicine specialists.” (Id.). Ms. Williams avers that, if Act 619 goes into

effect, the physicians at LRFP will stop performing abortions when they know that a patient is

seeking an abortion solely based on a test result indicating Down syndrome, a prenatal diagnosis

of Down syndrome, or any other reason to believe that the fetus has Down syndrome (Decl. of

Lori Williams, M.S.N., A.P.R.N., ¶ 31).

199. Ms. Williams furthers states that, if Act 619 goes into effect, and LRFP is forced to

turn away these patients, all these patients will have to seek abortion care out-of-state, as patients

do not receive a Down syndrome diagnosis until after 10 weeks LMP and thus cannot seek a

medication abortion at another Arkansas provider (Id., ¶ 32). Ms. Williams notes that, by forcing

women to travel out-of-state, Act 619 will cause extreme hardship and delay for many of LRFP’s

patients (Id.). She also notes that many of LRFP’s patients will be prevented from obtaining an

abortion (Id.).

200. Ms. Williams notes that Dr. Hopkins is the only doctor who performs abortion care

at LRFP who is a board-certified or board-eligible OBGYN (Decl. of Lori Williams, M.S.N.,

A.P.R.N., ¶¶ 34-35).

201. On April 2, 2019, LRFP sent a letter to all OBGYNs listed on the Arkansas medical-

board licensure list describing LRFP and soliciting interest in providing care at the clinic (Id., ¶

36). LRFP received no responses (Id.).

202. This letter states that LRFP is looking for a part-time, board-certified OBGYN to

contract with LRFP to provide abortion services (Dkt. No. 2-1, at 404). The letter also states that

LRFP sees patients three days a week, malpractice insurance would be paid by LRFP, and that the

compensation for services is generous and based upon the number of procedures completed per

day (Id.).

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203. Furthermore, Ms. Williams has raised the need for a board-certified or board-

eligible OBGYN with numerous professionals at the National Abortion Federation (“NAF”), and

on April 1, 2019, she submitted a request to a NAF program that matches abortion providers with

clinics around the country (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 37). Through those efforts,

LRFP came into contact with two physicians who expressed preliminary interest in a position at

LRFP, but neither lives in Arkansas or is licensed to practice in Arkansas (Id.).

204. Ms. Williams also notes that there are protestors outside the clinic nearly every day

and that the “harassment and intimidation is immediately apparent to any prospective physician or

staff member (Id., ¶ 39). Furthermore, medical residents who receive abortion training at LRFP

“frequently express concern about driving in their own vehicles to the clinic and wearing scrubs

that identify them as medical providers.” (Id.).

205. Third-party vendors have refused to do business with LRFP because LRFP

provides abortion care (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 40). Ms. Williams relates an

instance where an oxygen supplier ceased to do business with LRFP after anti-abortion activists

informed the supplier that LRFP provides abortion care (Id.).

206. Anti-abortion activists mailed Ms. Williams’ photograph and a letter to 800 of her

neighbors and went door-to-door in her neighborhood, informing members of her community that

she is involved in abortion care (Id., ¶ 41).

207. In addition to LRFP’s efforts to comply with the OBGYN requirement, LRFP has

sent letters to Arkansas OBGYNs on at least two other occasions to solicit interest in assisting

LRFP to provide abortion care or in joining the staff in various capacities (Id., ¶ 42).

208. LRFP sent a letter in early 2015 to all Arkansas OBGYNs listed in the medical-

society directory but received no response except from Dr. Cathey (Decl. of Lori Williams,

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M.S.N., A.P.R.N., ¶ 42; Dkt. No. 2-1, at 405-06). LRFP again sent a letter on January 18, 2016,

to all Arkansas OBGYNs listed on the medical board licensure list, but they received no response

(Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 42; Dkt. No. 2-1, at 407).

209. While Dr. Browne and Dr. Hopkins have agreed to provide limited care at LRFP,

LRFP has not identified any board-certified or board-eligible OBGYN who is available to provide

care between August 12 and October 20, 2019, the next week that Dr. Hopkins can provide care

at LRFP (Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 47).

210. According to Ms. Williams, if Dr. Browne and Dr. Hopkins provide care at LRFP

under the OBGYN requirement, they will spend the first of their three days at the clinic satisfying

the state-manded informed-consent requirements which will need to occur at least 72 hours before

any procedure (Id., ¶ 48). Dr. Tvedten would not be able to continue working at the clinic only to

obtain patient informed consents, as LRFP cannot afford to keep him on staff for such a limited

role (Id., ¶ 48). LRFP cannot charge patients for the initial visit at that visit (Id.). Dr. Browne and

Dr. Hopkins would then need to spend their second and third days at LRFP performing procedures

(Decl. of Lori Williams, M.S.N., A.P.R.N., ¶ 48).

211. Ms. Williams states that LRFP would not be an economically viable medical

practice if it were able to provide patient care only three days a week every-other month, or even

three days a week every month (Id., ¶ 49). Even if LRFP could come up with the funds to pay

staff to provide care only three days every other or each month, Ms. Williams states that this would

keep LRFP from retaining the highly trained and skilled staff that it needs to operate the clinic (Id.,

¶ 50).

212. Plaintiffs present the declaration of Brandon J. Hill, Ph.D., the chief executive

officer of PPGP (Dkt. No. 32; Decl. of Brandon J. Hill, Ph.D.). Dr. Hill states that, due to

56

increasing problems with a landlord, including managing protester presence in the immediate

vicinity of PPAEO Fayetteville’s facility and the resultant concerns about patient and staff safety,

PPAEO has ceased offering abortions at PPAEO Fayetteville (Id., ¶ 4). Dr. Hill states that an anti-

abortion “crisis pregnancy center” organization began parking its van in a lot immediately adjacent

to the one used for the PPAEO Fayetteville health center (Id., ¶ 3). Dr. Hill states that “[s]taff and

patients were alarmed and distressed by the van’s presence, and [they] were also concerned about

medically inaccurate information being directed at patients.” (Id.). Dr. Hill states that they also

feared that increased protester visibility could lead to security issues (Decl. of Brandon J. Hill,

Ph.D., ¶ 3). Dr. Hill further states that the relocation was necessary given the arson at one of

PPGP’s Missouri health centers less than six months ago (Id.). He also notes that PPAEO

Fayetteville’s lease expired at the end of July 2019 (Id.).

213. Dr. Hill states that PPAEO Fayetteville ceased providing abortions in anticipation

of the health center closing so that PPAEO Fayetteville could schedule follow-up visits for all of

its medication abortion patients prior to the health center closing (Id., ¶ 4). He also avers that his

staff is working diligently to find a new location for PPAEO Fayetteville (Decl. of Brandon J. Hill,

Ph.D., ¶ 5). Specifically, he states that, through a realtor, PPGP has contacted dozens of landlords,

management companies, and property owners, but they have been unable to confirm a lease that

is move-in ready or that would require only minor modifications to meet their needs (Id.).

214. Dr. Hill states that there are several “live possibilities” and that he is confident they

will be able to secure a location, but he confirms that there “will be a gap in time when [they] are

unable to provide services.” (Id., ¶ 6).

215. Plaintiffs also present the supplemental declaration of Brandon J. Hill, Ph.D., (Dkt.

No. 62, at 1-3; Supp. Decl. of Brandon J. Hill, Ph.D.). Dr. Hill states that PPGP is currently

57

working to open a new health center in Little Rock in August 2019 (Id., ¶ 2). PPGP is seeking a

new location due to size constraints at its current facility, and PPGP has purchased a property for

its new facility (Id., ¶ 4). PPGP will not, however, be able to provide surgical abortions at the new

facility or provide care for more medication abortion patients due to the “capacities of [its]

providers . . . .” (Id., ¶ 6).

216. Plaintiffs also present the affidavit of Christopher Attig, an individual who lives in

Little Rock, Arkansas, and who has a son with Down syndrome (Dkt. No. 63; Decl. of Christopher

Attig). Mr. Attig opines that Act 619 does “nothing to honor, protect, or help my son and other

people diagnosed with Down syndrome.” (Id., ¶ 5). Instead, Mr. Attig believes that Act 619 “uses

my son and other children diagnosed with Down syndrome as political tools to criminalize and

restrict abortion.” (Id.). He further states that children with Down syndrome require special

support that “can be very expensive and difficult to find,” and in his opinion “the lack of accessible

and affordable medical services and therapies needed to support a child diagnosed with Down

syndrome” is one of the factors that influences a woman’s decision to abort a pregnancy when

Down syndrome is indicated (Id., ¶ 6).

217. Defendants present various declarations from other cases not before the Court. Ms.

Ashleigh Moon filed an affidavit in Planned Parenthood of Indiana and Kentucky, et al. v.

Commissioner, Indiana State Department of Health, et al., 1:16-cv-763-TWP-DML (S.D. Ind.),

and defendants have filed that declaration here (Dkt. No. 45-1, at 53-55). Ms. Moon avers that she

had a difficult pregnancy and that she was advised by her physicians to have an abortion and told

that her child would suffer from genetic abnormalities (Id., ¶¶ 1-14). Ms. Moon states that her

child was born premature, survived, and is “genetically perfect.” (Id., ¶¶ 14-15).

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218. Defendants also present the declaration of Michele Mazelin, which was filed in

Planned Parenthood of Indiana and Kentucky, et al. v. Commissioner, Indiana State Department

of Health, et al., 1:16-cv-763-TWP-DML (S.D. Ind.) (Dkt. No. 45-1, at 57-59). Ms. Mazelin avers

that she was pregnant with twins and that she was pressured by a treating physician to have

amniocentesis (Id., ¶ 5).

219. Defendants present the declaration of Steven E. Calvin, M.D., which was filed in

Planned Parenthood of Indiana and Kentucky, et al. v. Commissioner, Indiana State Department

of Health, et al., 1:16-cv-763-TWP-DML (S.D. Ind.) (Dkt. No. 45-1, at 61-68; Decl. of Steven E

Calvin, M.D.). Dr. Calvin avers that women have described to him that they have felt pressure to

undergo prenatal screening and to have an abortion if Down syndrome is detected (Id., ¶ 20). Dr.

Calvin also states that “[a] fetus at 10 weeks and later has arms, legs, and a head” and is not

confusable with medical material that may be the product of surgery (Id., ¶ 26).

220. Defendants present the affidavit of Ashley K. Fernandes, M.D., Ph.D., which was

filed in Preterm-Cleveland, et al. v. Lance Himes, Director, et al., 1:18-cv-109 (S.D. Ohio) (Dkt.

No. 45-2, at 2-12; Decl. of Ashley K. Fernandes, M.D., Ph.D.). Dr. Fernandes is a physician who

resides and practices medicine in Ohio. Dr. Fernandes avers that genetic counselors and physicians

are biased against “unborn persons with DS . . . .” (Id., ¶ 8).

221. Defendants present the declarations of Kelly Kuhns, Susan Scheid, Susan Gill, and

Jaclyn Keough, which were filed in Preterm-Cleveland, et al. v. Lance Himes, Director, et al.,

1:18-cv-109 (S.D. Ohio) (Dkt. No. 45-2, at 26-40). Each of these individuals has a child with

Down syndrome. These individuals’ affidavits appear to indicate that they live in Ohio, though it

is not entirely clear where Ms. Scheid, Ms. Gill, and Ms. Keough reside.

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222. Defendants present the declaration of Dennis M. Sullivan, M.D., which was filed

in Preterm-Cleveland, et al. v. Lance Himes, Director, et al., 1:18-cv-109 (S.D. Ohio) (Dkt. No.

45-3, at 89-98; Decl. of Dennis M. Sullivan, M.D.). Dr. Sullivan opines that the medical profession

is biased to prefer abortions after a diagnosis of Down syndrome (Id., ¶ 15). Dr. Sullivan is a

professor at Cedarville University, in Cedarville, Ohio (Id., ¶ 1).

223. Defendants present the declaration of Robin Lynn Treptow, Ph.D., which was filed

in Preterm-Cleveland, et al. v. Lance Himes, Director, et al., 1:18-cv-109 (S.D. Ohio) (Dkt. No.

46-1, at 2-4; Decl. of Robin Lynn Treptow, Ph.D.). Dr. Treptow has a son with Down syndrome,

and she states that medical professionals have a bias against individuals with Down syndrome (Id.,

¶¶ 2,6). Dr. Treptow is an adjunct professor in Arlington, Virginia (Id., ¶ 1).

224. Defendants also present the affidavit of Allan Parker, the president of The Justice

Foundation (Dkt. No. 49-1, at 1-3). Attached to Mr. Parker’s declaration are fifteen affidavits from

Arkansas women. Each of these affiants states that she regrets her abortion (Dkt. No. 49-1, at 4-

27). The abortions in question occurred between 1981 and 2003 (Id.).

225. Defendants also present the declaration of Millie Lace, the founder and director of

Concepts of Truth, Inc. (“Concepts”) an organization based in Wynne, Arkansas, with satellite

offices in Ohio and New Jersey (Dkt. No. 49-2; Decl. of Millie Lace). Ms. Lace avers that

Concepts is a non-profit organization that provides counseling for pregnant women (Id., ¶ 3). Ms.

Lace states that she had an abortion in approximately 1979 on the advice of her physician, which

caused her both physical and psychological pain (Id., ¶¶ 6, 8). Ms. Lace further states that

“Concepts informs women of the truth that an abortion terminates the life of a whole living human

being,” and she avers that “[f]ollowing the counseling that Concepts provides, about 85% of all of

the women who originally thought they wanted to have an abortion change their minds or

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otherwise decide to carry their baby to full term and birth.” (Id., ¶ 15). Ms. Lace also states that

Concepts provides counseling to women who have had abortions, and she reports that “between

65% and 75% of the women report that they felt they were misled by the abortion clinic and that

their decisions were uninformed and in many ways pressured or coerced.” (Id., ¶ 16).

226. Defendants present the declaration of Mischa Martin, the Director of the Division

of Children and Family Services (“DCFS”) at the Arkansas Department of Human Services

(“DHS”) (Dkt. No. 49-3; Decl. of Mischa Martin). Ms. Martin states that the Arkansas Safe Haven

law allows a mother to give up custody of any baby up to 30 days told at any hospital emergency

room or law enforcement agency without facing prosecution for endangering or abandoning a child

(Id., ¶ 2). Ms. Martin explains that, once a baby is given up under the Safe Have law, DCFS places

the baby with an “adoptive home.” (Id., ¶ 5). Ms. Martin further explains the process for screening

prospective adoptive parents (Id., ¶ 8).

227. Defendants also present the affidavit of Kristie Hayes, the Program Administrator

for the Income Support Group within the Arkansas Department of Human Services (Dkt. No. 49-

4; Decl. of Kristie Hayes). Ms. Hayes states that DHS provides “Limited Pregnant Women

Medicaid,” “Full Pregnant Women Medicaid,” “Unborn Child Medicaid Coverage,” and

“Newborn Medicaid.” (Id., ¶¶ 2-6). Ms. Hays also explains that the ARKids First Program covers

children in households up to 142% or 211% of the federal poverty level (Id., ¶ 7). Ms. Hayes

states that for families raising a child with Down syndrome, the child is eligible for ARKids and

The Tax Equity and Fiscal Responsibility Act (“TEFRA”) Medicaid program (Id., ¶ 9). She also

points out that families with children who have Down syndrome may be eligible for Supplemental

Security Income (“SSI”) or Developmental Disabilities Services (Decl. of Kristie Hayes, ¶¶ 10-

11).

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228. Defendants also present the declaration of Mary Silfies (Dkt. No. 49-5, at 1-3; Decl.

of Mary Silfies). She is “part of a sidewalk prayer ministry group that often goes” to LRFP on

Wednesdays and Fridays, if LRFP is open (Id., ¶ 1). She states that every participant “is required

to sign a Statement of Peace, outlining the behavior that is expected,” and she further states that

her group does “not engage in any behavior that would be considered harassing.” (Id., ¶¶ 2-3). Ms.

Silfies states that LRFP has installed water sprinklers to discourage her group (Id., ¶ 4).

229. Ms. Silfies states that “[i]t is not unusual to observe ambulances being called” to

LRFP, and she attaches a spreadsheet that she received in response to filing a Freedom of

Information Act request with Little Rock’s ambulance service (Decl. of Mary Silfies, ¶ 5). This

spreadsheet appears to show 64 instances since 1999 when an ambulance has been called to

LRFP’s address (Dkt. No. 49-5, at 4-5). Ms. Silfies states that the three ambulance calls to LRFP

in 2019 were all made on days when Dr. Tvedten was working (Id., ¶ 7). She says that she knows

this because she was on the sidewalk when the ambulances were called, she recognizes Dr.

Tvedten, and she makes “a personal note of who the abortionist is each time I am there.” (Id.).

230. Defendants present the declaration of Kathi Aultman, M.D. (Dkt. No. 49-6, at 1-

24; Decl. of Kathi Aultman, M.D.). Dr. Aultman is a Fellow of the American College of

Obstetricians and Gynecologists (Id., ¶ 1). Dr. Aultman describes the requirements for board

certification for OBGYNs, including a four-year specialized residency (Id., ¶ 12). Dr. Aultman

states that “[p]eer-reviewed studies demonstrate that board certified physicians are better doctors.”

(Id., ¶ 17). She points to studies that purport to show that board-certified physicians are less likely

to be disciplined by state medical boards (Id. (citing Rebecca Lipner, et al., Specialty Certification

Status, Performance Ratings, and Disciplinary Actions of Internal Medicine Residents, 91

Academic Medicine 376 (2016); Michael R. Peabody, et al., The Relationship Between Board

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Certification and Disciplinary Actions Against Board-Eligible Family Physicians, 94 Academic

Medicine 847 (2019) (reviewing the likelihood of discipline for board-certified family physicians);

Neal D. Kohatsu, et al., Characteristics Associated With Physician Discipline: A Case-Control

Study, 164 Arch. Internal Medicine 653 (2004))). She also points to studies that show that

physicians who have been in practice longer may be more likely to provide poor care (Id., ¶ 19

(citing Niteesh Choudry, et al., Systematic review: The relationship between clinical experience

and quality of health care, 142 Annals of Internal Medicine 269 (2005))).

231. Dr. Aultman describes ABOG’s “maintenance of certification” (“MOC”) process,

wherein board-certified physicians engage in continuing professional development (Id., ¶¶ 22-23

(citing Christine K. Cassell, Professionalism And Accountability: The Role of Specialty Board

Certification, 119 Trans. of the Am. Clinical and Climatological Ass’n 295, 297 (2008))).

232. Dr. Aultman also states that medication abortions are riskier than aspiration

abortions, and she states that “medication abortion patients are likely to require surgical follow-up

treatment for retained products or bleeding.” (Id., ¶ 27). 6 She also states that all OBGYNs are

trained to evacuate the uterus in the first and second trimesters (Id., ¶ 28 (citing Jessica Bienstock,

et al., The Obstetrics and Gynecology Milestone Project at iv (2015), available at

http://www.acgme.org/Portals/0/PDFs/Milestones/ObstetricsandGynecologyMilestones.pdf

(noting that the milestones discussed are designed as targets, not as requirements, and that the

graduation decisions are “the purview of the residency program director”))).

233. Dr. Aultman opines that “[c]omplications from abortion are significantly under-

reported.” (Id., ¶ 29). She states that this is because some states do not report their data and because

6

Dr. Aultman’s citation for this proposition is found on a private website that cannot be

accessed without a subscription.

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“women are often ashamed to tell anyone that they had an abortion . . . .” (Id.). Dr. Aultman also

says there is no support for the statement that abortion is less risky than childbirth (Id., ¶ 31 (citing

Byron Calhoun, Systematic Review: The maternal mortality myth in the context of legalized

abortion, 80 The Linacre Quarterly 264 (2013) (arguing that abortion-related deaths are

underreported and positing a connection between abortion and suicide, cancer, and substance

abuse))). She also asserts that the low mortality and morbidity rates for early abortions masks the

risk associated with abortions at 21 weeks LMP or greater (Id., ¶¶ 33-34).

234. Dr. Aultman states that, according to the FDA, there have been 22 deaths

“associated with the administration of Mifepristone.” (Id., ¶ 46).

235. Defendants also present the rebuttal declaration of Dr. Aultman (Dkt. No. 73;

Rebuttal Decl. of Kathi Aultman, M.D.). Dr. Aultman has reviewed the “17 affidavits and

declarations . . . in the record of this case from women who have been hurt by abortion.” (Id., ¶ 3).

Dr. Aultman states that these affidavits and declarations are “consistent with the experiences of

the women I have encountered in my work as a physician and advocate for women and their health

issues.” (Id.).

236. Dr. Aultman relates an incident where she provided gynecologic care to a young

woman, and she states that that the young woman claimed that she suffered adverse psychological

effects after aborting her pregnancy (Id., ¶ 5).

237. Dr. Aultman also states that she provided care to a woman who came to see her “for

continuous spotting and bleeding several months following an abortion.” (Rebuttal Decl. of Kathi

Aultman, M.D., ¶ 6). Dr. Aultman avers that she learned that the young woman “was given vaginal

medication” and “was instructed to sit on the toilet and push.” (Id.). Ms. Aultman states that she

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further learned that the young woman then “delivered a 20+ week baby boy into the toilet” and

that the “baby drowned in the toilet water.” (Id.).

238. Dr. Aultman claims that there is “no mechanism for recording or reporting” medical

or psychological complications of abortions (Id., ¶ 7). She also states that physicians fear being

subjected to litigation for delivering babies with congenital abnormalities and that this is why

“many young women feel pressure to abort babies with the potential for such abnormalities.”

(Rebuttal Decl. of Kathi Aultman, M.D., ¶ 8).

239. Attached to Dr. Aultman’s rebuttal declaration is a certified criminal record for Dr.

Tvedten in the case of State v. Thomas Harold Tvedten (Id., ¶ 10). According to this record, Dr.

Tvedten was convicted of second-degree criminal mischief for an event that occurred on May 22,

1987. At the hearing, Dr. Tvedten testified that this charge was the result of breaking the camera

of an individual who was photographing an abortion clinic (Dkt. No. 84, at 175:19-23).

240. Also attached to Dr. Aultman’s rebuttal declaration is a disciplinary report for Dr.

Tvedten from the Arkansas State Medical Board (Dkt. No. 73, at 270-72). Per this report, Dr.

Tvedten’s medical license was suspended for three months in 1983 and that his Drug Enforcement

Agency registration was suspended for fifteen months, ending in 1984.

241. Defendants present a letter written by Dr. Tvedten to the Arkansas State Medical

Board (Dkt. No. 103-1). In this letter, Dr. Tvedten states that he was pulled over and charged with

“Driving Under the Influence of Alcohol.” (Id., at 1). He also notes that this is the first such charge

that he ever received (Id.). This letter has the year “2008” stamped on it and is addressed to the

Arkansas State Medical Board. The Court finds that this letter has little relevance to any claim or

defense in this case given that Dr. Tvedten continues to practice medicine with the apparent

approval of the Arkansas State Medical Board.

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242. Defendants also present an incident report in which an individual reported that Dr.

Tvedten walked into her office and stated that he was “going to get” the individual’s son and that

the son was “going to lose something.” (Id., at 2). The incident report is dated April 28, 1998, and

there is no record evidence that shows the report ever led to a formal charge against Dr. Tvedten.

The Court finds that this incident report has little relevance to any claim or defense in this case

given that Dr. Tvedten continues to practice medicine with the apparent approval of the Arkansas

State Medical Board.

243. Dr. Aultman also states that “comparing mortality statistics to maternal mortality

statistics is not an apples-to-apples comparison” and that an OBGYN “can handle common

complications of abortion that an ordinary licensed physician cannot, such as life threatening

hemorrhage or injury to internal organs that might require an abdominal surgery to repair.”

(Rebuttal Decl. of Kathi Aultman, M.D., ¶¶ 13-14). The Court also notes that Dr. Aultman did not

testify at the July 22, 2019, hearing.

244. Defendants also present the declaration of Donna J. Harrison, M.D. (Dkt. No. 49-

7, at 1-22; Decl. of Donna J. Harrison, M.D.). Dr. Harrison is certified by the ABOG and is the

Executive Director of the American Association of Pro-Life Obstetricians and Gynecologists

(“AAPLOG”) (Id., ¶ 3).

245. Dr. Harrison explains the efficacy of fetal screening and diagnostic tests. She

explains that, out of 10,000 general population women whose pregnancies are screened using cell-

free DNA screening, 30 of those women will test positive for Down syndrome, while in fact only

10 of them are positive for Down syndrome (Id., ¶ 19 (citing Am. Coll. of Obstetricians and

Gynecologists, Committee Opinion No. 640 (Sept. 2015), https://www.ncbi.nlm.nih.gov/pubmed

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/26287791)). In a high-risk population, out of 10,000 women tested, 119 of those women will test

positive, while in fact only 99 of them are in fact positive for Down syndrome (Id., ¶ 20).

246. Dr. Harrison further asserts that women who receive a false positive on a screening

test “may be pressured to act on the basis of a positive screening test which is wrong.” (Decl. of

Donna J. Harrison, M.D., ¶ 32).

247. Dr. Harrison explains that screening tests, the results of which are not available

until 12 weeks LMP, “do not answer the question” of whether Down syndrome is indicated (Id., ¶

34). Dr. Harrison avers that the diagnostic tests, which occur after a positive screening test, carry

risks of complications (Id., ¶¶ 35-37). Dr. Harrison further avers that amniocentesis “is done

around 18-20 weeks.” (Id., ¶ 38). She avers that, at 22 weeks LMP, “[t]he immediate risk of

maternal mortality from an abortion at 22 weeks is roughly equal to the risk of death from live

birth.” (Decl. of Donna J. Harrison, M.D., ¶ 38 (citing L. Bartlett, Risk factors for legal induced

abortion-related mortality in the United States, 103 Obstetrics & Gynecology 729 (2004) (noting

that abortions performed in the second trimester were significantly riskier than first trimester

abortions))).

248. Dr. Harrison further states that “[t]here is also an increased psychological risk for

mothers who abort.” (Id., ¶ 41 (citing David C. Reardon, The abortion and mental health

controversy: A comprehensive literature review of common ground agreements, disagreements,

actionable recommendations, and research opportunities, 6 SAGE Open Medicine 1, 8 (2018)

(finding that “it is impossible to conduct research in this field in a manner that can definitely

identify the extent of any mental illnesses following abortion, much less than the proportion of

disorders that can be reliably attributed solely to abortion itself.”))).

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249. Dr. Harrison opines that “[t]he grisly reality is that abortion of human beings with

Down syndrome is driven by a sector of society that doesn’t want disabled people to be part of

society.” (Id., ¶ 43).

250. Dr. Harrison further states that “[w]ith specialized medical care some fetuses can

survive outside the womb by 22 weeks with survival rates as high as 40% in some medical centers.”

(Id., ¶ 56).

251. At the July 22, 2019, hearing, Dr. Harrison testified. During her testimony, she

explained that it has been approximately 20 years since she had a clinical OBGYN practice where

she was paid to see and treat patients (Dkt. No. 84, at 240:20-25). She also testified that it has

been a similar amount of time since she performed a gynecological surgery or a dilation and

curettage procedure, which is a procedure that is similar to the procedure used in a first trimester

abortion (Id., at 238:19-25, 239:1-9).

252. Dr. Harrison also testified that she was twice sued for medical malpractice when

she was a practicing OBGYN and that she is still a board-certified OBGYN (Id., at 240:9). She

also stated that she remains a board-certified OBGYN even though she has not had an active

clinical practice for 20 years (Id., at 240:16-20).

253. When asked if she would provide abortion care in Arkansas, Dr. Harrison testified

that, as a board-certified OBGYN, if she were to go back into a surgical practice, she would take

additional surgical training (Dkt. No. 84, at 241:9-21). Specifically, she testified that if she were

to go back into surgical practice, she would spend approximately six months updating her skills

(Id.).

254. Dr. Harrison also testified that, since 2000, she has focused her professional

activities on AAPLOG (Id., at 243:9). Dr. Harrison testified that it is AAPLOG’s position that

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elective abortions are not medical care (Id., at 244:15-17). She also testified that she is a scholar

at the Charlotte Lozier Institute, a part of the Susan B. Anthony List, which she stated is an

organization dedicated to electing candidates and pursuing policies that will reduce and end

abortion (Dkt. No. 84, at 247:1-7).

255. Dr. Harrison also testified that, in her opinion, ACOG is a pro-abortion organization

(Id., at 248:13-17).

256. When questioned about testimony she provided in other cases, Dr. Harrison stated

that she was unaware that other courts had concluded that her opinions were at odds with scientific

evidence (Id., at 252:15-16).

257. Defendants also present the supplemental declaration of Dr. Harrison (Dkt. No.

103-5; Supp. Decl. Donna J. Harrison, M.D.). In her supplemental declaration, Dr. Harrison

attaches a list of 162 studies which report allegedly report the association between induced

abortion and preterm birth in subsequent pregnancies (Id., ¶ 3).

258. Defendants also present the declaration of Tumulesh K.S. Solanky, Ph.D. (Dkt. No.

49-8, at 1-25; Decl. of Tumulesh K.S. Solanky, Ph.D.). Dr. Solanky’s declaration discusses Dr.

Lindo’s conclusions and findings, and Dr. Solanky disagrees with Dr. Lindo’s projections

regarding the likely reduction in abortions resulting from the closing of PPAEO Fayetteville (Id.,

¶¶ 8-17). Dr. Solanky testified at the July 22, 2019, hearing.

259. Dr. Solanky’s declaration does not contest Dr. Lindo’s projections of LRFP and

PPAEO Little Rock’s capacity to provide abortions if the OBGYN requirement goes into effect,

but he does state that Dr. Lindo’s “supplemental declaration has assumed that the maximum

capacity of clinics/physicians is simply the maximum number of abortions performed” and that

“[t]his is a rather biased assumption.” (Id., ¶ 54).

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260. Dr. Solanky does contest Dr. Lindo’s estimate of a “17-27%” reduction in abortions

due to the cessation of medication abortions in Arkansas in 2018 (Id., ¶ 10). Dr. Solanky asserts

that Dr. Lindo incorrectly “assume[s] that if there [was] any reduction in abortions in 2018, then

it must have been caused by [the contracted physician requirement].” (Id., ¶ 39).

261. Dr. Solanky also asserts that “there appears to be no correlation between the

numbers of clinics and abortion rates.” (Id., ¶ 46).

262. Dr. Lindo presents a rebuttal declaration to respond to Dr. Solanky’s assertions

(Dkt. No. 62-2, at 1-6; Rebuttal Decl. of Jason Lindo, Ph.D.). Dr. Lindo takes issue with Dr.

Solanky’s assertion that Dr. Lindo incorrectly calculates the maximum capacity of abortion

providers; according to Dr. Lindo, Dr. Solanky provides no justification for his criticism, and he

argues that Dr. Solanky proposes no alternative capacity-calculation methodology or capacity

estimates (Id., ¶ 3). Further, Dr. Lindo points out that Dr. Solanky does not respond to the fact

that Dr. Lindo’s capacity estimates likely overestimate the abortion providers’ capacity to provide

abortions if the challenged Acts go into effect (Id.).

263. Dr. Lindo also takes issue with defendants’ assertion that Dr. Hopkins can conduct

525 surgical abortions annually (Id., ¶ 6). Dr. Lindo points out that it is unlikely that LRFP will

remain open if Dr. Hopkins is the only abortion provider, and he also points out that it is highly

improbable that Dr. Hopkins could spend three days a week providing abortions, as LRFP cannot

afford to hire a physician for the sole purpose of obtaining patient consents (Rebuttal Decl. of

Jason Lindo, Ph.D., ¶ 6). Dr. Lindo also points out that D&E abortions are often two-day

procedures that are more time-consuming to perform (Id.). Dr. Lindo further explains that he

understands that LRFP can provide 20-25 abortions a day under current conditions, not in a

scenario in which Dr. Hopkins is the only physician providing surgical abortions (Id.). Finally,

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Dr. Lindo points out that defendants assume that all patients who will need surgical abortion care

would be able to obtain that care in the one week when Dr. Hopkins is in Arkansas, which will

occur once every two months (Id.).

264. Defendants also present a supplemental declaration from Dr. Solanky (Dkt. No.

103-8; Supp. Decl. of Tumulesh K. S. Solanky). Dr. Solanky states that he has been provided with

the data that Dr. Lindo used to create his estimates (Id., ¶ 1). Dr. Solanky opines that Dr. Lindo’s

capacity estimates for LRFP and PPAEO Little Rock do “not take into account the trend of

declining number of Arkansas resident abortions.” (Id., ¶ 7). Dr. Solanky further states that

abortions decrease by approximately three percent per year (Id.).

265. To determine to state of residence for each abortion performed from 2016 to 2018,

Dr. Solanky used the county of residence reported in the spreadsheets; Dr. Solanky notes that,

because the names of Arkansas counties are shared by counties in surrounding states, there is the

possibility that his estimate of the number of Arkansas resident abortions in 2018 is incorrect

(Supp. Decl. of Tumulesh K. S. Solanky, ¶ 10 n.3). Dr. Solanky notes that the data indicates that

PPAEO provided 215 out-of-state abortions and 2,272 Arkansas resident abortions; he also notes

that LRFP provided 877 out-of-state abortions and 6,133 Arkansas resident abortions (Id., ¶ 10).

Dr. Solanky concluded that these combined data sets show that 8,405 total Arkansas resident

abortions occurred and that, if divided by three, the average number of Arkansas resident abortions

“comes to 2,802 Arkansas resident abortions per year for the three years.” (Id.). Dr. Solanky noted

that Dr. Lindo’s declaration states that there were 2,779 Arkansas resident abortions on average,

and he also notes that he cannot “determine why this discrepancy in Arkansas resident abortion

exists.” (Id.).

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266. Dr. Solanky’s declaration relied upon data which was filed under seal with the

Court (Dkt. No. 105). This data indicates that the vast majority of abortions in Arkansas were

conducted by PPAEO and LRFP, though less than half a dozen were performed by others.

267. Defendants also present the declaration of Judy McGruder, who lives in Fort Smith,

Arkansas (Dkt. No. 49-10, at 1-3; Decl. of Judy McGruder). Ms. McGruder avers that she aborted

a pregnancy in 2000 at LRFP (Id., ¶ 4). Ms. McGruder previously received amniocentesis and

was informed that her child would have Down syndrome (Id., ¶ 3). Ms. McGruder regrets her

abortion (Id., ¶ 11). Ms. McGruder offered testimony consistent with her affidavit at the July 22,

2019, hearing (Dkt. No. 84, at 273-78).

268. Under Arkansas law, only a physician licensed to practice medicine in the State of

Arkansas may provide abortion care. See Ark. Code Ann. § 5-61-101(a).

269. The Arkansas Medical Practices Act and Regulations expressly state that “[n]o

person shall be granted a license to practice medicine in the State of Arkansas unless he or

she . . . is of good moral character and has not been guilty of acts constituting unprofessional

conduct . . . .” See Ark. Code Ann. § 17-95-403(b).

270. The Arkansas Medical Practices Act and Regulations permit the Arkansas Medical

Board to suspend or revoke a license for immoral or unprofessional conduct. Ark. Code Ann. §

17-99-307(2) (“The Arkansas State Medical Board, after due notice and hearing, may revoke,

suspend, or refuse to renew any license or permit or place on probation or otherwise reprimand a

licensee or permit holder or deny a license to an applicant who . . . is in judgment of the board,

guilty of immoral or unprofessional conduct.”).

271. The Arkansas Medical Board may refuse to grant, impose certain enumerated

penalties, or revoke the medical license of any physician involved in any felony listed under

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[Arkansas Code Annotated] § 17-2-102.” Ark. Code Ann. § 17-95-409. Arkansas Code Annotated

§ 17-2-102, which was enacted in 2019, includes a list of 36 categories of felony offenses and

specifically provides that convictions in Arkansas, other states, and federal court shall be

considered.

272. To maintain an active license to practice medicine in the State of Arkansas, there

are continuing medical education requirements that may be enforced through license suspension

or revocation. See Ark. Code Ann. § 17-80-104 (empowering regulatory boards of the professions

or occupations classified by the law of the State of Arkansas as professions of the healing arts and

for whom the General Assembly has established regulatory boards empowered to license persons

to practice to adopt rules requiring the continuing education of the persons licensed by the board);

Ark. Admin. Code 060.00.1-17 (requiring a person who holds an active license to practice

medicine in the State of Arkansas shall complete 20 credit hours per year of continuing medical

education, stating that “Fifty (50%) percent of said hours shall be in subjects pertaining to the

physician’s primary area of practice . . . .”).

273. Any claim or filing of a lawsuit alleging malpractice against a physician licensed

to practice medicine and surgery in the State of Arkansas must be reported to the Arkansas State

Medical Board within ten days after receipt or notification or the licensed physician may face

discipline up to and including revocation, suspension, or probation or monetary fines. See Ark.

Code Ann. § 17-95-103; Ark. Admin. Code 060.00.1-23.

274. Arkansas licensed physicians are subject to being audited (Dkt. No. 84, at 15:16-

16:5).

275. Any Arkansas physician who performs an abortion must “obtain the correct

informed consent from their patients” or risk sanction by the Arkansas Medical Board. Ark.

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Admin. Code 060.00.1-26 (describing the consent required and the circumstances under which it

is required and permitting the Arkansas Medical Board to revoke or suspend a medical license or

impose other sanctions if the Board determines there has been a violation).

276. Any Arkansas physician who provides an abortion-inducing drug for the purpose

of inducing an abortion is currently required to report any known adverse events associated with

medication abortions. Ark. Code Ann. § 20-16-1505 (“If a physician provides an abortion-

inducing drug . . . and if the physician knows that the woman who uses the abortion-inducing drug

for the purposes of inducing an abortion experiences an adverse event, the physician shall provide

a written report of the adverse event within three (3) days of the event to the United States Food

and Drug Administration . . . and to the Arkansas State Medical Board”); see Ark. Admin. Code

060.00.1-36 (requiring reporting to the Arkansas State Medical Board in the same circumstances).

277. Additionally, any woman in Arkansas seeking an abortion must be evaluated via a

medical history, a physical examination, counseling, and laboratory tests. See Ark. Admin. Code

007.05.2-8(A).

278. Arkansas abortion facilities shall have written procedures for emergency transfer

of a patient to an acute care facility. See Ark. Admin. Code 007.05.2-8(B). Arkansas general

abortion facilities, which provide surgical abortions or both medication and surgical abortions,

shall be within 30 minutes of a hospital which provides gynecological or surgical services. See

Ark. Admin. Code 007.05.2-4(C); Ark. Admin. Code 007-05-2.3(J) (defining general abortion

facility). Arkansas abortion facilities providing abortions must have various medical devices

available to assist in the event of complications. See Ark. Admin. Code 007.05.2-8(C), (E).

Finally, Arkansas abortion facilities must have a certain number of qualified personnel available

to provide direct patient care. See Ark. Admin. Code 007.05.2-7.

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279. Arkansas abortion facilities must satisfy a variety of ongoing obligations to educate

staff about best practices to assess their own services. See Ark. Admin. Code 007.05.2-10;

007.05.2-5; 007.05-6(F),(G); 007.05.2-7(D).

280. Furthermore, “[e]ach induced termination of pregnancy which occurs in [Arkansas]

regardless of the length of gestation shall be reported to the [Division of Vital Records] within five

(5) days by the person in charge of the institute in which the induced termination of pregnancy

was performed.” Ark. Code Ann. § 20-18-603(b)(1). If “the induced termination of pregnancy

was performed outside an institution, the attending physician shall prepare and file the report.”

Ark. Code Ann. § 20-18-603(b)(2).

281. The Court held a hearing on plaintiff’s motion for temporary restraining order

and/or preliminary injunction on July 22, 2019 (Dkt. No. 78). At the hearing, plaintiffs called five

witnesses: Dr. Hopkins, Dr. Prine, Ms. Williams, Dr. Lindo, and Dr. Tvedten. Defendants called

four witnesses: Dr. Cathey, Dr. Harrison, Dr. Solanky, and Ms. McGruder.

III. Conclusions Of Law

When determining whether to grant a motion for a preliminary injunction, this Court

considers: (1) the movant’s likelihood of success on the merits; (2) the threat of irreparable harm

to the movant; (3) the balance between the harm to the movant and the injury that granting an

injunction would cause other interested parties; and (4) the public interest. Kroupa v. Nielsen, 731

F.3d 813, 818 (8th Cir. 2013) (quoting Dataphase Sys. Inc. v. CL Sys., 640 F.2d 109, 113 (8th Cir.

1981)). Preliminary injunctive relief is an extraordinary remedy, and the party seeking such relief

bears the burden of establishing the four Dataphase factors. Watkins Inc. v. Lewis, 346 F.3d 841,

844 (8th Cir. 2003). The focus is on “whether the balance of the equities so favors the movant that

justice requires the court to intervene to preserve the status quo until the merits are determined.”

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Id. “Although no single factor is determinative when balancing the equities,” a lack of irreparable

harm is sufficient ground for denying a temporary restraining order. Aswegan v. Henry, 981 F.2d

313, 314 (8th Cir. 1992).

The Court examines the Dataphase factors as applied to plaintiffs’ request for a preliminary

injunction. See Dataphase, 640 F.2d at 113. Under Dataphase, no one factor is determinative.

Id. The Eighth Circuit revised the Dataphase test when applied to challenges to laws passed

through the democratic process. Those laws are entitled to a “higher degree of deference.”

Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 725, 732 (8th Cir. 2008). In such

cases, it is never sufficient for the moving party to establish that there is a “fair chance” of success.

Instead, the appropriate standard, and threshold showing that must be made by the movant, is

“likely to prevail on the merits.” Id. Only if the movant has demonstrated that it is likely to prevail

on the merits should the Court consider the remaining factors. Id.

A. Analysis Of Standing

Defendants challenge plaintiffs’ standing. For the reasons discussed below, the Court

concludes that, based upon the record evidence before the Court at this stage of the proceeding,

plaintiffs generally have standing on behalf of themselves and their patients, with the exception of

standing to challenge the application of Act 619 to post-viability abortions.

1. Article III Standing

To establish Article III standing, a plaintiff must satisfy three requirements: “First, the

plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is

(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.

Second, there must be a causal connection between the injury and the conduct complained of—the

injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e]

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result [of] the independent action of some third party not before the court. Third, it must be likely,

as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotes and citations omitted).

Defendants assert that plaintiffs cannot assert facial challenges on behalf of their

“hypothetical future patients.” (Dkt. No. 103, at 68). Under a long-established rule, however, it is

“appropriate to allow a physician to assert the rights of women patients as against governmental

interference with the abortion decision.” Singleton v. Wulff, 428 U.S. 106, 118 (1976); see Whole

Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2296 (2016) (deciding physicians’ and clinics’

42 U.S.C. § 1983 action against abortion restrictions on behalf of themselves and their patients).

There are many cases recognizing that an abortion provider may sue to enjoin, as violations of the

United States Constitution or federal law through 42 U.S.C. § 1983, state laws that restrict

abortion. “These cases emphasize not the harm to the abortion clinic of making abortions very

difficult to obtain legally, though that might be an alternative ground for recognizing a clinic’s

standing, but rather ‘the confidential nature of the physician-patient relationship and the difficulty

for patients of directly vindicating their rights without compromising their privacy,’ as a result of

which ‘the Supreme Court has entertained both broad facial challenges and pre-enforcement as-

applied challenges to abortion laws brought by physicians on behalf of their patients.’” Planned

Parenthood of Wisconsin, Inc. v. Schimel, 806 F.3d 908, 910 (7th Cir. 2015) (quoting Isaacson v.

Horne, 716 F.3d 1213, 1221 (9th Cir. 2013)).

Further, the United States Supreme Court held in Doe v. Bolton, 410 U.S. 179, 188 (1973),

that abortion doctors have first-party standing to challenge laws limiting abortion when, as in Doe

and the current case, the doctors are subject to penalties for violation of the laws. See Planned

Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 903-04, 909 (1992) (plurality opinion);

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Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 62 (1976); Schimel, 806 F.3d

at 911.

Defendants point to Kowalski v. Tesmer, 543 U.S. 125, 129 (2004), and assert that this case

stands for the proposition that third-party standing has been approved only when the litigant asserts

rights of known claimants, not hypothetical ones. This argument is unconvincing, as Kowalski

cites Doe and explicitly distinguishes third-party standing in the abortion context. 543 U.S. at 1

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