Hopkins v. Jegley

Case 4:17-cv-00404-KGB Document 83 Filed 12/22/20 Page 1 of 146

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

FREDERICK W. HOPKINS, M.D., M.P.H.,

and LITTLE ROCK FAMILY PLANNING SERVICES, INC. PLAINTIFFS

v. Case No. 4:17-cv-00404-KGB

LARRY JEGLEY, Prosecuting Attorney for

Pulaski County, SYLVIA D. SIMON, M.D.,

Chair of the Arkansas State Medical Board;

ROBERT BREVING, JR., M.D.; ELIZABETH ANDERSON;

RHYS L. BRANMAN, M.D.; EDWARD GARDNER, M.D.;

VERYL D. HODGES, D.O.; RODNEY GRIFFIN, M.D.;

BETTY GUHMAN; WILLIAM L. RUTLEDGE, M.D.;

JOHN H. SCRIBNER, M.D.; BRIAN T. HYATT, M.D.;

TIMOTHY C. PADEN, M.D.; DON R. PHILLIPS; M.D.;

DAVID STAGGS, M.D., officers and members of

the Arkansas State Medical Board; JOSE ROMERO, M.D.,

the Secretary of the Arkansas Department of Health;

PHILLIP GILMORE, Ph.D.; PERRY AMERINE, O.D.;

MARSHA BOSS, P.D.; LANE CRIDER, P.E.;

BRAD ERNEY, D.M.D.; MELISSA FAULKENBERRY, D.C.;

ANTOHNY N. HUI, M.D.; BALAN NAIR, M.D.;

GREG BLEDSOE, M.D.; STEPHANIE BARNES BEERMAN;

GLEN BRYANT, M.D.; DWAYNE DANIELS, M.D.;

VANESSA FALWELL, A.R.P.N.; DARREN FLAMIK, M.D.;

THOMAS JONES, R.S.; DAVID KIESSLING, D.P.M.;

CARL RIDDELL, M.D.; CLAY WALISKI; TERRY YAMAUCHI, M.D.;

DONALD RAGLAND; CATHERINE TAPP, M.P.H.;

SUSAN WEINSTEIN, D.V.M; JAMES ZINI, D.O.,

officers and members of the Arkansas Department of Health,

and their successors in office, in their official capacity DEFENDANTS

TEMPORARY RESTRAINING ORDER AFTER REMAND

Before the Court is plaintiffs Frederick W. Hopkins, M.D., M.P.H., and Little Rock Family

Planning Services, Inc.’s (“LRFP”) motion for ex parte temporary restraining order (Dkt. No. 69).

Defendants responded in opposition to the motion (Dkt. No. 78). The Court conducted a hearing

Case 4:17-cv-00404-KGB Document 83 Filed 12/22/20 Page 2 of 146

on the motion on December 22, 2020. At this time, the Court considers only the request for

temporary restraining order.

I. Procedural Background

Initially, Dr. Hopkins filed this suit on June 20, 2017, pursuant to 42 U.S.C. § 1983. On

December 22, 2020, Dr. Hopkins amended his complaint and Little Rock Family Planning

Services, Inc. (“LRFP”), joined Dr. Hopkins as a plaintiff in filing suit against defendants Larry

Jegley, Prosecuting Attorney for Pulaski County; Sylvia D. Simon, M.D., Chair of the Arkansas

State Medical Board; Robert Breving, Jr., M.D.; Elizabeth Anderson; Rhys L. Branman, M.D.;

Edward Gardner, M.D.; Veryl D. Hodges, D.O.; Rodney Griffin, M.D.; Betty Guhman; William

L. Rutledge, M.D.; John H. Scribner, M.D.; Brian T. Hyatt, M.D.; Timothy C. Paden, M.D.; Don

R. Phillips, M.D.; David L. Staggs, M.D., as officers and members of the Arkansas State Medical

Board; Jose Romero, M.D., the Secretary of the Arkansas Department of Health; Phillip Gilmore,

Ph.D.; Perry Amerine, O.D.; Marsha Boss, P.D.; Lane Crider, P.E.; Brad Erney, D.M.D.; Melissa

Faulkenberry, D.C.; Anthony N. Hui, M.D.; Balan Nair, M.D.; Greg Bledsoe, M.D.; Stephanie

Barnes Beerman; Glen Bryant, M.D.; Dwayne Daniels, M.D.; Vanessa Falwell, A.R.P.N.; Darren

Flamik, M.D.; Thomas Jones, R.S.; David Kiessling, D.P.M.; Carl Riddell, M.D.; Clay Waliski;

Terry Yamauchi, M.D.; Donald Ragland; Catherine Tapp, M.P.H.;. Susan Weinstein, D.V.M;

James Zini, D.O., officers and members of the Arkansas Department of Health, and their

successors in office, in their official capacities (Dkt. No. 82).

In this suit, Dr. Hopkins and LRFP mount a constitutional challenge to four acts of the 91st

Arkansas General Assembly of 2017, Act 45 (H.B. 1032), codified at Ark. Code Ann. §§ 20-16-

1801 to 1807 (“D&E Mandate”); Act 733 (H.B. 1434), codified at Ark. Code Ann. §§ 20-16-1901

to 1910 (“Medical Records Mandate”); Act 1018 (H.B. 2024), codified at Ark. Code Ann. § 20-

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16-108(a)(1) (“Local Disclosure Mandate”); and Act 603 (H.B. 1566), codified at Ark. Code Ann.

§§ 20-17-801 to 802 (“Tissue Disposal Mandate”). By its terms, H.B. 1434 was to take effect

January 1, 2018. The remaining three laws, H.B. 1032, H.B. 2024, and H.B. 1566, were to take

effect on or about July 30, 2017.

The Court previously enjoined enforcement of these statutes in a preliminary injunction

entered on July 28, 2017 (Dkt. Nos. 35, 36). On August 25, 2017, a notice of appeal of this Court’s

preliminary injunction was filed (Dkt. No. 38). After three years, and based on intervening

decisions issued by the United States Supreme Court, the United States Court of Appeals for the

Eighth Circuit vacated this Court’s preliminary injunction order and remanded “for reconsideration

in light of Chief Justice Roberts’s separate opinion in June Medical, which is controlling, as well

as the Supreme Court’s decision in Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780

(2019) (per curiam).” (Dkt. No. 49, at 7).1

In his initial motion (Dkt. No. 2), Dr. Hopkins sought preliminary injunctive relief based

on the following claims in his complaint: Count I based on the D&E Mandate, Counts III and IV

based on the Medical Records Mandate, Counts VI and VIII based on the Local Disclosure

Mandate, and Counts X and XI based on the Tissue Disposal Mandate. Dr. Hopkins claims that

“[t]hese statutes threaten [him] with criminal penalties and deny and burden [his] patients’

constitutionally protected rights to decide to end a pre-viability pregnancy, to make independent

decisions related to their pregnancy care, and to protect their private medical information.” (Dkt.

No. 1, at 3, ¶ 9). He sought declaratory and injunctive relief “[t]o protect his patients from these

constitutional violations, to enforce his own right to clear legal standards, and to avoid irreparable

1

“June Medical” in the Eighth Circuit opinion is referring to June Medical Services. v.

Russo, 140 S. Ct. 2013, 2020 WL 3492640 (2020)(plurality opinion).

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harm. . . .” (Dkt. No. 1, at 3, ¶ 9). Defendants responded in opposition to the motion (Dkt. No.

23). Dr. Hopkins filed a reply (Dkt. No. 32). Defendants also submitted two notices of

supplemental authority (Dkt. Nos. 31, 34). The Court conducted a hearing on the motion for

preliminary injunction on July 13, 2017. The parties agreed among themselves not to present

additional evidence at the hearing but instead to present only argument, and the Court agreed to

hear only argument. The parties also have briefed and argued these issues before the Eighth

Circuit, including aspects of June Medical and Box. See generally Hopkins v. Jegley, Dkt. No. 17-

2879; see also December 22, 2020, hearing.

On December 18, 2020, Dr. Hopkins and LRFP filed a motion to amend complaint (Dkt.

No. 65), which this Court granted (Dkt. No. 81). Dr. Hopkins and LRFP assert in their amended

complaint legal challenges to the D&E Mandate, the Medical Records Mandate, the Local

Disclosure Mandate, and the Tissue Disposal Mandate that are substantially similar to the

challenges made by Dr. Hopkins in 2017. For the following reasons, after remand, the Court grants

Dr. Hopkins’s motion for temporary restraining order.

II. Mandate Rule

At this time, the Court will consider plaintiffs’ motion for temporary restraining order (Dkt.

No. 69).2 The mandate rule generally requires a district court to comply strictly with the mandate

rendered by the reviewing court. See United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995).

Similarly, under the “mandate rule,” while a district court is “bound to follow the mandate, and

the mandate ‘controls all matters within its scope, . . . a district court on remand is free to pass

upon any issue which was not expressly or impliedly disposed of on appeal.’” Dethmers Mfg. Co.

2

The Court at this time reserves ruling on defendants’ motion to strike plaintiffs’ motion

for a second preliminary injunction and request for expedited consideration (Dkt. No. 75).

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v. Automatic Equip. Mfg. Co., 299 F. Supp. 2d 903, 914 (N.D. Iowa 2004) (citations omitted). The

mandate rule provides that a district court is bound by any decree issued by the appellate court and

“is without power to do anything which is contrary to either the letter or spirit of the mandate

construed in light of the opinion.” Pearson v. Norris, 94 F.3d 406, 409 (8th Cir. 1996) (quoting

Thornton v. Carter, 109 F.2d 316, 320 (8th Cir. 1940)). Even when the mandate rule applies to an

issue, courts have recognized exceptions that allow a matter to be revisited. Those exceptions are

“(1) the availability of new evidence, (2) an intervening change of controlling law, or (3) the need

to correct a clear error or prevent manifest injustice.” Federated Rural Elec. Ins. Corp. v. Arkansas

Elec. Cooperatives, Inc., 896 F. Supp. 912, 914 (E.D. Ark. 1995) (citing Bethea v. Levi Strauss,

916 F.2d 453, 457 (8th Cir.1990); In re Progressive Farmers Ass’n, 829 F.2d 651, 655 (8th Cir.

1987) (on remand lower court required to follow appellate court decision unless new evidence

introduced or decision is clearly erroneous and works manifest injustice)).

III. Findings of Fact

The Court adopts by reference its findings of fact in its prior Order granting Dr. Hopkins’s

request for a preliminary injunction (Dkt. Nos. 35, 36). See Fed. R. Civ. P. 10(c). The Court also

makes the following findings of fact. To the extent the findings of fact in this Order contradict the

findings of fact in the Court’s prior Order, 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; the Court makes the findings of fact addressed in that context as well. The Court has

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

resolved any disputes consistent with the statements in this Order.

1. Dr. Hopkins is a board-certified obstetrician-gynecologist with 25 years of

experience in women’s health. He is licensed to practice medicine in Arkansas, as well as other

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states including California and New Mexico. For over five years, Dr. Hopkins has been both Co-

Director of the Family Planning Training Program at Santa Clara Valley Medical Center in Santa

Clara, California, and Associate Clinical Professor in obstetrics and gynecology at Stanford

University School of Medicine in Palo Alto, California (Dkt. No. 5, ¶ 1).

2. Earlier in 2017, Dr. Hopkins began providing care at LRFP in Little Rock, Arkansas

(Dkt. No. 5, ¶ 1).

3. At LRFP, Dr. Hopkins provides care that includes medication abortion in the early

part of the first trimester and surgical abortion through 21 weeks and six days as measured from

the woman’s last menstrual period (“LMP”), which is referred to as “21.6 weeks LMP” (Dkt. No.

5, ¶ 2; Dkt. No. 6, ¶ 2).

4. Dr. Hopkins provides abortion and miscarriage services for patients from young

teenagers to women in their later reproductive years (Dkt. No. 5, ¶ 2).

5. Dr. Hopkins has performed work in Kenya, Tanzania, and Zimbabwe. As a result

of that work, he has seen firsthand the results of denying women access to safe abortion care (Dkt.

No. 5, ¶ 3).

6. There are only two outpatient providers of abortion care in Arkansas: one that

provides only medication abortion in part of the first trimester in Little Rock and Fayetteville,

although there are no abortions currently being provided at this location, and LRFP which provides

early medication abortion as well as surgical abortions through 21.6 weeks LMP (Dkt. No. 82, ¶

61).

7. If hospitals in Arkansas are providing any abortion care, it is in only rare

circumstances (Dkt. No. 5, ¶ 6).

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8. Under current Arkansas law, a woman must first receive state-mandated

counseling, in person at the clinic, before having an abortion. See Ark. Code Ann. § 20-16-

1703(b)(1), (2). A woman must then wait at least 72 hours after that state-mandated counseling

before she returns to the clinic for her procedure (Dkt. No. 82, ¶ 62).

9. Given the requirements of Arkansas law regarding mandated state counseling, for

patients receiving abortion care up to 18.0 weeks LMP, the law requires at least two trips to the

clinic (Dkt. No. 6, ¶ 7).

10. According to Dr. Hopkins, the state-mandated counseling and waiting period can

result in a delay longer than the state-mandated waiting period for many patients (Dkt. No. 5, ¶ 7).

11. Women must consider whether they have someone to accompany them to the clinic.

The support person’s availability may impact when a woman is able to return, after the mandatory

delay, to receive medical care (Dkt. No. 6, ¶ 7).

12. LRFP provides care to women from throughout Arkansas and from other states

(Dkt. No. 5, at 37; Dkt. No. 6, ¶ 5).

13. Many patients of LRFP are low-income. Approximately 30 to 40% of patients

obtain financial assistance to pay for their abortion care (Dkt. No. 6, ¶ 5).

14. Many patients of LRFP struggle in their lives and in their efforts to access the

medical care they need (Dkt. No. 6, ¶ 5).

15. The time and effort it takes to make the necessary plans to access medical care

cause anxiety and stress and cause financial pressure for women seeking care at LRFP. Women

must arrange for time off work on multiple days, which can be very difficult given that many are

in low-wage jobs and feel that they cannot explain to an employer the reason they need to take

time off. For women who already have children, these women must arrange and often pay for

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childcare. These women also must arrange and pay for transportation. In some cases, these women

also have to arrange and pay for a place to stay for multiple nights (Dkt. No. 6, ¶ 8).

16. Patients of LRFP seek abortions for a variety of personal, medical, financial, and

family reasons, including that the woman has one child but believes she cannot parent another;

that the woman believes she is too young to be ready to carry a pregnancy or to become a parent;

that the woman is pursuing educational or work opportunities; that the woman has a health

condition that makes carrying a pregnancy dangerous; that the woman has received a diagnosis of

fetal abnormality; that the woman is in an abusive relationship; and that the woman is pregnant as

a result of rape or sexual assault (Dkt. No. 6, ¶ 6).

17. Many patients of LRFP are desperate not to disclose the reasons for travel and

appointments to seek abortion care (Dkt. No. 6, ¶ 8).

18. Approximately 30% of all women have an abortion at some point in their lives (Dkt.

No. 4,3 ¶ 7).

19. Abortion in the first and second trimester, utilizing current methods, is safer than

carrying a pregnancy to term, as to both morbidity and mortality (Dkt. No. 4, ¶ 8; Dkt. No. 32-1,

¶ 5).

20. The first trimester of pregnancy goes to approximately 14 weeks LMP (Dkt. No. 5,

¶ 8).

21. Nationwide, as of the time this lawsuit was filed, approximately 90% of abortions

occurred during the first trimester of pregnancy (Dkt. No. 5, ¶ 8).

3

The declaration of Mark D. Nichols, M.D., in support of Dr. Hopkins first motion for

preliminary injunction or in the alternative a temporary restraining order, is reaffirmed in a

declaration attached as Exhibit 3 to Dr. Hopkins and LRFP’s motion for an ex parte temporary

restraining order (Dkt. No. 69-3).

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22. In Arkansas, as of the time this lawsuit was filed, approximately 83% of abortions

occurred during the first trimester of pregnancy (Id.).

23. During the first trimester, there are two methods of abortion (Dkt. No. 4, ¶ 11-12;

Dkt. No. 5, ¶ 9).

24. As for the first method used during the first trimester, a clinician may use

medications to induce an early miscarriage. This method is called early medication abortion. It is

generally available only through part of the first trimester of pregnancy, and it is not available in

the last weeks of the first trimester of pregnancy. In the most common method of early medication

abortion, a woman takes two drugs: first mifepristone and then, the next day, misoprostol. Within

24 to 48 hours of taking the second drug, the woman likely will pass the products of conception,

not in a medical facility but in a location that is most comfortable for her, usually her home (Dkt.

No. 4, ¶ 11-12; Dkt. No. 5, ¶ 9).

25. Dr. Hopkins does not know the exact timing of the most common method of early

medication abortion because he is not with his patient when she passes the products of conception

(Dkt. No. 5, ¶ 9).

26. As for the second method used during the second trimester, a clinician may use

suction to empty the uterus, which is available through the entire first trimester. This method is

called suction or aspiration abortion. The clinician first gently opens the cervix, then inserts a

suction cannula into the uterus, and then suctions out the embryo (until approximately 10 weeks)

or fetus (thereafter) – as well as the placenta, amniotic fluid, and sac, and the other contents of the

uterus (Dkt. No. 4, ¶ 13; Dkt. No. 5, ¶ 10).

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27. In the second trimester of pregnancy, suction alone generally is not sufficient to

complete an abortion, nor is it something physicians can rely on to cause fetal demise to avoid

liability under the D&E Mandate in the second trimester (Dkt. No. 32-1, ¶ 5).

28. In the second trimester of pregnancy, beginning at approximately 14.0 weeks LMP,

there are two principal methods of abortion (Dkt. No. 4, ¶ 14; Dkt. No. 5, ¶ 11).

29. As for the first method used beginning at approximately 14.0 weeks LMP, in

induction abortion, the clinician uses medications to induce labor. This procedure can happen only

in a hospital or hospital-like facility, not in a second-trimester outpatient clinic. This procedure

can take over 24 hours, and for some patients, this procedure may span multiple days. This

procedure entails labor, which can involve pain requiring significant medication or anesthesia and

which may be psychologically challenging for some women. This procedure accounts for a tiny

fraction of second-trimester abortions in the nation (Dkt. No. 4, ¶ 14; Dkt. No. 5, ¶ 12).

30. Because induction involves an in-patient stay, requiring up to three days of

hospitalization, as opposed to an out-patient procedure, there is an enormous cost difference

between induction and the out-patient standard dilation and evacuation (“standard D&E”)

procedure4 (Dkt. No. 4, ¶ 14).

31. In some women, an induction abortion fails, and the woman needs intervention in

the form of D&E for her safety. This is infrequent, but this does occur (Dkt. No. 4, ¶ 15; Dkt. No.

5, ¶ 12).

4

The Court uses the term “standard D&E” to distinguish it from “intact D&E,” sometimes

referred to as “D&X,” which involves dilating the cervix enough to remove the whole fetus intact.

“Intact D&E” is banned under the Federal Partial-Birth Abortion Ban Act of 2003, unless fetal

demise is induced before the procedure. See Gonzales v. Carhart, 550 U.S. 124 (2007) (upholding

the federal partial-birth abortion ban). The Court also uses the term “standard D&E” to refer to

the procedure that does not include induced fetal demise.

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32. In approximately 5% to 10% of induction abortions, the woman must undergo an

additional surgical procedure to remove a retained placenta. Induction abortion also can cause

uterine rupture, which is rare but can be life threatening and can be of particular concern for women

who have had multiple previous cesarean deliveries (Dkt. No. 4, ¶ 15; Dkt. No. 25-4, ¶ 8).

33. Of women who have abortions performed during the second trimester of pregnancy,

95% of those women in this country choose standard D&E (Dkt. No. 4, ¶ 16).

34. In 2015, the latest year for which statistics were available at the time this lawsuit

was filed, there were no induction abortions reported in Arkansas (Dkt. No. 5, ¶ 12).

35. As for the second method used beginning at approximately 14 weeks LMP, because

suction instruments alone are generally no longer sufficient to empty the uterus, doctors can use a

method with instrumentation called standard D&E. This involves two steps: dilating the cervix,

and then evacuating the uterus with instruments such as forceps. There are several ways to dilate

the cervix (Dkt. No. 4, ¶ 17; Dkt. No. 5, ¶ 13).

36. Typically, during the early weeks of the second trimester of pregnancy, a doctor

performing standard D&E uses a combination of medications that open the cervix and manual

dilators; then, the same day, the doctor uses forceps to remove the fetus and other contents of the

uterus. Because the fetus is larger than the opening of the cervix, the fetal tissue generally comes

apart as the physician removes it through the cervix. The reason that the cervical opening is smaller

than the fetal parts is that, in general, the doctor dilates only enough to allow the safe passage of

instruments and fetal tissue through the cervix (Dkt. No. 4, ¶ 17-18; Dkt. No. 5, ¶ 14).

37. In Arkansas and elsewhere, standard D&E typically is a one-day procedure from

14.0 to 17.6 weeks LMP (Dkt. No. 5, ¶ 15; Dkt. No. 6, ¶ 17).

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38. Of 638 D&Es reported in Arkansas in 2015, 407 or 64% took place during these

earliest weeks of the second trimester (Dkt. No. 6, ¶ 17).

39. Dr. Hopkins is aware of no physicians, other than those with whom he practices at

LRFP, who provide second trimester abortion care in the state of Arkansas (Dkt. No. 32-2, ¶ 2).

40. Later in the second trimester, larger instruments require wider cervical dilation.

Although some physicians continue to provide standard D&E as a one-day procedure, starting at

18.0 to 20.0 weeks LMP, it is typical for doctors to add overnight osmotic dilation to the standard

D&E protocol. Osmotic dilators are thin sticks of material that swell when they absorb moisture;

when placed in a woman’s cervix, they absorb moisture from the woman’s body, expand slowly,

and slowly dilate the cervix. Once dilation is sufficient, typically the next day, the doctor proceeds

as in earlier standard D&Es, removing the fetus, generally in pieces because it is larger than the

cervical opening (Dkt. No. 4, ¶ 17; Dkt. No. 5, ¶ 16).

41. For patients of LRFP who have overnight osmotic dilation with the standard D&E

protocol, those patients are required to spend that overnight within 30 minutes of the Clinic so that

the doctor is available in the rare instance in which a patient has any problem (Dkt. No. 6, ¶ 18).

42. Through the second trimester, standard D&E is a safe way to provide abortion in

an outpatient setting, such as a family planning clinic (Dkt. No. 5, ¶ 17).

43. Standard D&E accounted for almost all second-trimester abortions in the United

States at the time this lawsuit was filed (Dkt. No. 4, ¶ 16; Dkt. No. 5, ¶ 17).

44. Standard D&E accounts for 100% of second trimester abortions reported in

Arkansas in 2015 (Dkt. No. 5, ¶ 17).

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45. At the time this lawsuit was filed, each year, LRFP provided approximately 3,000

abortions, of which approximately 600 or 20% occurred during the second trimester (Dkt. No. 6,

¶ 16).

46. Standard D&E procedure has a long-established safety record in this county, with

major complications occurring in less than 1% of standard D&E procedures (Dkt. No. 4, ¶ 19).

47. Richard A. Wyatt, M.D., an expert for defendants, states that “[b]y the 14th week

of pregnancy a living baby has a beating heart and moving limbs, and breathing motions have

begun.” (Dkt. No. 25-4, ¶ 4). At this time, and on the record before it, this Court does not equate

Dr. Wyatt’s use of “living baby” with viability, as the term viability has been used by courts in the

abortion context. See Edwards v. Beck, 8 F.Supp.3d 1091 (E.D. Ark. 2014), aff’d 786 F.3d 1113

(8th Cir. 2015) (examining the term viability in both medical and legal contexts).

48. Given the requirements of Arkansas law regarding mandated state counseling, for

patients receiving abortion care at 18.0 to 21.6 weeks LMP, the law requires at least three trips to

the clinic (Dkt. No. 6, ¶ 7).

49. Starting at 18.0 to 22.0 weeks, some physicians, including Dr. Hopkins, undertake

an additional procedure to try to cause fetal demise before the evacuation phase of a D&E for most

patients, meaning those for whom it is not contraindicated (Dkt. No. 5, ¶ 18).

50. Of the physicians who undertake an additional procedure after 18.0 to 22.0 weeks

LMP, the vast majority of physicians inject the drug digoxin into the fetus if possible or, if not,

then into the amniotic fluid. Injecting digoxin into the amniotic fluid is technically easier, but it is

less effective (Dkt. No. 4, ¶ 21; Dkt. No. 5, ¶ 18).

51. The injections may be through the woman’s abdomen or vaginal wall. These

injections generally use an 18- to 22-gauge spinal needle, passed under ultrasound guidance,

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through the patient’s abdomen, vaginal wall, or vagina and cervix, and then either into the amniotic

fluid or the fetus (Dkt. No. 4, ¶ 21, 25; Dkt. No. 5, ¶ 18).

52. There are some women for whom an injection of digoxin may be difficult or

impossible. For example, women may be very obese; may have anatomical variations of the

uterine and vaginal anatomy, such as fibroids or a long cervix; and may have fetal positioning that

creates issues. Physicians cited by all parties agree upon this (Dkt. No. 4, ¶ 27; Dkt No. 5, ¶ 25a;

Dkt. No. 25-4, ¶ 6; Dkt. No. 32-3, at 35; Dkt. No. 25-4, ¶ 6).

53. These injections also can be dangerous for women with cardiac conditions such as

arrhythmias (Dkt. No. 4, ¶ 27).

54. Even for women who tolerate injections, digoxin will not cause fetal demise in 5%

to 10% of all cases in which it is used; physicians cited by all parties agree upon this (Dkt. No. 4,

¶ 28; Dkt. No. 5, ¶ 25b; Dkt. No. 32-3, at 38).

55. Doctors are not able to know in advance for which women digoxin injection will

fail (Dkt. No. 5, ¶ 25c).

56. The failure rate is higher for intramniotic injections of digoxin. Intramniotic

injection would require a skill level similar to that required for amniocentesis. Intramniotic

injections are associated with higher complication rates than intrafetal injection (Dkt. No. 4, ¶ 25;

Dkt. No. 32-1, ¶ 7).

57. Intrafetal injections of digoxin are more difficult to perform and may be impossible

to perform due to fetal position, uterine anatomy and other factors, especially the size of the fetus.

The smaller the fetus, the more difficult intrafetal injection will be. Intrafetal digoxin injections

require additional skill (Dkt. No. 4, ¶ 28; Dkt. No. 32-1, ¶ 7).

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58. Digoxin works very slowly. Doctors allow 24 hours after the injection for it to

work. Even then, it does not always cause fetal demise (Dkt. No. 5, ¶ 18).

59. The transabdominal injection can be painful and emotionally difficult for the

patient. The injection poses risks, including infection, which can threaten the patient’s health and

future fertility, and accidental absorption of the drug into the patient’s circulation, which can result

in toxicity and changes to the patient’s EKG (Dkt. No. 4, ¶ 25).

60. Like all medical procedures, the digoxin injection creates risks for the patient.

Doctors who use digoxin believe that practical concerns justify using it. The main benefit of using

digoxin in procedures after 18.0 to 22.0 weeks LMP is to establish compliance with the federal

“partial-birth abortion ban” or similar state laws (Dkt. No. 4, ¶ 23; Dkt. No. 5, ¶ 19).

61. The federal “partial-birth abortion ban” has an intent requirement (Dkt. No. 4, ¶

23).

62. At the time this lawsuit was filed, the American Congress of Obstetricians and

Gynecologists (“ACOG”) concluded: “No evidence currently supports the use of induced fetal

demise to increase the safety of second-trimester medical or surgical abortion.” This statement is

consistent with the medical literature (Dkt. No. 4, ¶ 22; Am. Coll. of Obstetricians &

Gynecologists, Practice Bulletin Number 135: Second Trimester Abortion, 121(6) Obstetrics &

Gynecology 1394, 1396, 1406 (2013)).

63. There is no record evidence of any physician attempting digoxin injections earlier

than 18 weeks LMP. Physicians relied upon by both sides agree upon this (Dkt. No. 4, ¶ 26; Dkt.

No. 32-3, at 39).

64. There are virtually no reported studies, and no studies of record, on using digoxin

in the first weeks of the second trimester, when most second trimester abortions are performed.

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Without studies, doctors do not know the risks, complication rates, or effectiveness of such a

procedure. Without this information, doctors cannot counsel patients on the effectiveness or safety

of such a procedure (Dkt. No. 4, ¶ 26; Dkt. No. 32-1, ¶ 6, 9-10; Dkt. No. 32-3, at 39-40).

65. There are no reported studies of record on using a second injection of digoxin, or

multiple, sequential injections of digoxin, after the first dose fails to bring about fetal demise.

Physicians relied upon by both sides agree on this (Dkt. No. 4, ¶ 29; Dkt. No. 23-15, ¶ 6; Dkt. No.

32-3, at 38).

66. Using a second injection of digoxin would, at a minimum, delay the abortion

procedure, require the patient to make another trip to the clinic, and increase the risk of uterine

infection, extramural delivery, or digoxin toxicity (Dkt. No. 4, ¶ 29).

67. In Arkansas, at the time this lawsuit was filed, the standard D&E protocol changed

in two ways starting at 18.0 weeks LMP for almost all patients (Dkt. No. 5, ¶ 20).

68. First, in Arkansas, a woman at 18.0 weeks LMP received overnight dilation. This

means that the abortion procedure takes two days, rather than one (Dkt. No. 5, ¶ 20).

69. Second, in Arkansas, at the time a woman at 18.0 weeks LMP has placed in her

cervix the osmotic dilators, which is the day before the intended evacuation, the woman also

received an injection of digoxin through the vaginal wall. That injection of digoxin is into the

fetus or, if not, into the amniotic fluid. With either method of injection, the digoxin may not work

effectively (Dkt. No. 5, ¶ 20).

70. The next day, in women 18.0 weeks or later LMP, if the digoxin has not caused

fetal demise, Dr. Hopkins currently will take steps with his forceps, such as compressing fetal

parts, to ensure fetal demise and to establish compliance with existing laws. These women would

already be dilated and, therefore, at risk without care (Dkt. No. 5, ¶¶ 21, 25b).

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71. Another substance, potassium chloride (KCl), will cause fetal demise if injected

directly into the fetal heart, which is extremely small (Dkt. No. 4, ¶ 31; Dkt. No. 5, ¶ 22).

72. Injecting potassium chloride has limitations based on gestational age and anatomy

(Dkt. No. 25-4, ¶ 6).

73. The procedure of injecting potassium chloride is very rare, as it carries much more

severe risks for the woman, including death if the doctor places the solution in the wrong place,

and it requires extensive training generally available only to sub-specialists in high-risk obstetrics,

known as maternal-fetal medicine (Dkt. No. 4, ¶ 31; Dkt. No. 5, ¶ 22; Dkt. No. 23-15, ¶ 11; Dkt.

No. 32-2, ¶ 3; Dkt. No. 32-3).5

74. Injecting potassium chloride is usually done in a hospital, not a clinical, setting.

The procedure requires an advanced ultrasound machine that is typically available only in a

hospital setting and too expensive for most clinics to afford (Dkt. No. 4, ¶ 31; Dkt. No. 32-2, ¶ 3;

Dkt. No. 32-3, at 7, at 36-37).

75. There are some women for whom injecting potassium chloride is not medically

appropriate (Dkt. No. 4, ¶ 31).

76. Neither Dr. Hopkins nor to his knowledge any of the physicians with whom he

practices at LRFP have the specialized training in the sub-specialty of high-risk obstetrics

necessary to inject safely potassium chloride (Dkt. No. 5, ¶ 22).

5

The Court rejects the defendants’ expert Richard A. Wyatt, M.D.’s assertion that

potassium chloride injections are “no more difficult than amniocentesis.” (Dkt. No. 25-4, ¶ 6). Dr.

Wyatt professes no expertise in the area of potassium chloride injections (Dkt. No. 25-4, ¶ 1). His

assertion directly contradicts the cross examination testimony of Joseph R. Biggio, Jr., M.D.,

defendants’ other expert, who testified at a hearing in a case involving a similar Alabama law and

who is trained to perform and trains other physicians to perform such highly specialized procedures

(Dkt. No. 32-3, at 30, 35-37).

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77. Umbilical cord transection involves the physician rupturing the membranes,

inserting a suction tube or other instrument such as forceps into the uterus, and grasping the cord,

if possible, to divide it with gentle traction, which will cause demise over the course of up to 5 to

10 minutes (Dkt. No. 4, ¶ 32; Dkt. No. 23-15, ¶ 8).

78. The success and ease of this procedure depends on placement of the umbilical cord.

If the umbilical cord is blocked by the fetus, it would be very difficult and very risky to attempt to

reach it (Dkt. No. 4, ¶ 33).

79. Umbilical cord transection is not widely practiced or researched (Dkt. No. 4, ¶ 32).

80. There has been only one scientific study on the use of cord transection to cause fetal

demise; physicians relied upon by both sides agree on this (Dkt. No. 32-1, ¶ 11; Dkt. No. 32-3, at

42).

81. The one scientific study on the use of cord transection has limitations and does not

support any conclusion about the safety of the procedure (Dkt. No. 32-1, ¶¶ 12-13).

82. Attempting umbilical cord transection before 16.0 weeks LMP is completely

unstudied, and like injections, these procedures are more difficult to perform the earlier in

pregnancy a woman seeks care. Successfully identifying and transecting the cord at early

gestations would take additional time and likely multiple passes with forceps (Dkt. No. 32-1, ¶¶

14-15).

83. There are some women for whom umbilical cord transection is not medically

appropriate; physicians relied upon by both parties agree on this (Dkt. No. 4, ¶ 32; Dkt. No. 23-

15, ¶ 12).

84. Mark D. Nichols, M.D., an expert upon whom Dr. Hopkins relies, does not perform

umbilical cord transection (Dkt. No. 4, ¶¶ 32-35; Dkt. No. 32-1, ¶¶ 11-15).

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85. No physician to which either party cites would require cord transection in their

respective practices (Dkt. No. 4, ¶ 34; Dkt. No. 5, ¶ 25d; Dkt. No. 32-3, at 40).

86. Joseph R. Biggio, Jr., M.D., an expert upon whom defendants rely, admits that he

would not require umbilical cord transection before every abortion because there is no medical

benefit to doing so (Dkt. No. 32-3, at 40).

87. The longer a D&E takes and the more instrument passes into the woman’s uterus

occur, the higher the risks of uterine perforation and other complications; physicians relied upon

by both sides agree on this (Dkt. No. 4, ¶¶ 32-34; Dkt. No. 5, ¶ 25d; Dkt. No. 32-1, ¶¶ 13, 15; Dkt.

No. 23-15, ¶ 8; Dkt. No. 32-3, at 40-41; Dkt. No. 25-4, ¶ 6).

88. Delay can push a woman past the point in pregnancy at which she can receive a

medication abortion, requiring a woman who prefers that method to have a procedure with

instrumentation that she would otherwise not have. Delay can push a woman from a first-trimester

to a second-trimester procedure, or from a one-day to a two-day procedure in the second trimester.

Delay can also push a woman past the point at which she can obtain an abortion at LRFP and in

Arkansas (Dkt. No. 6, ¶ 13).

89. The risks associated with legal abortion utilizing current methods increase as

pregnancy progresses, particularly if that delay pushes a woman from the first trimester to the

second trimester. Studies demonstrate increased risks of complications, such as bleeding and

uterine perforation, associated with abortions performed later in pregnancy (Dkt. No. 4, ¶ 10; see

also Dkt. No. 25-4, ¶ 7).

90. Delay also means that a woman may pay more for the abortion procedure itself

because the procedure becomes more complex as pregnancy advances (Dkt. No. 6, ¶ 14).

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91. At the time this lawsuit was filed, doctors at LRFP requested medical records for

only a “tiny fraction” of patients or approximately 25 patients per year (Dkt. No. 6, ¶ 24).

92. The patients for whom doctors at LRFP request medical records include patients

who have received a diagnosis of fetal anomaly, decided to end the pregnancy, and received a

referral to LRFP and patients for whom the doctor believes the records could be useful because of

a woman’s medical condition (Dkt. No. 6, ¶ 24).

93. For LRFP to obtain a patient’s medical records, the patient must first sign a form

authorizing LRFP to obtain the medical records. That authorization is then sent along with a

request to the health care provider. LRFP staff then follow-up with a phone call to the health care

provider, if necessary (Dkt. No. 6, ¶ 25).

94. Because LRFP typically requests records related to some aspect of the care the

patient will receive, and therefore involve a specific request, not a request for the patient’s full

medical history, there is no fee charged for the records (Dkt. No. 6, ¶ 25).

95. Even with these specific requests for records, it takes time to obtain a patient’s

medical records from another health care provider and may take a few hours or up to several weeks

(Dkt. No. 6, ¶ 26).

96. When making a request for a patient’s complete medical record, a fee usually is

charged for obtaining the records (Dkt. No. 6, ¶ 33).

97. LRFP is a well-known abortion provider. Any request for medical records made

by LRFP, in and of itself, discloses that the patient likely is seeking an abortion. As a result, LRFP

does not request records without a woman’s prior written consent, and some women specifically

request that LRFP not seek records from another health care provider because the women do not

want that provider to know of the pregnancy and abortion decision (Dkt. No. 6, ¶ 27).

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98. Some women have informed LRFP that the women fear hostility or harassment

from the other health care providers for deciding to seek an abortion (Dkt. No. 6, ¶ 28).

99. A few years prior to this lawsuit being filed, LRFP requested a woman’s medical

records from another health care provider and that provider’s wife then reached out to the woman

in an effort to dissuade her from having an abortion (Dkt. No. 6, ¶ 28).

100. At the time this lawsuit was filed, LRFP provided medical care to approximately

3,000 women each year, the majority of whom have had one or more prior pregnancies, during

which the women received medical care from one or more providers or received care for a current

pregnancy (Dkt. No. 6, ¶ 32).

101. Under Arkansas law, a woman under the age of 18 must obtain the consent of one

parent prior to obtaining an abortion or, alternatively, can seek a judicial bypass (Dkt. No. 6, ¶ 36).

See Ark. Code Ann. § 20-16-804.

102. In 2016, LRFP provided abortions to five minors under the age of 14, all five of

whom had parental consent, and 69 minors under the age of 17, all of whom except one had

parental consent with the one exception having received a judicial bypass (Dkt. No. 6, ¶ 36).

103. The numbers from 2016 are typical for LRFP in that the majority of women under

the age of 17 have obtained a parent’s consent to seek medical care at LRFP (Dkt. No. 6, ¶ 36).

104. A few minor patients of LRFP are married, and those patients’ husbands may or

may not be involved in the patients’ decisions to have an abortion (Dkt. No. 6, ¶ 37).

105. Under the Child Maltreatment Act, LRFP reports suspected abuse to the Arkansas

State Police’s Child Abuse Hotline (Dkt. No. 6, ¶ 38). See Ark. Code Ann. § 12-18-402 (providing

that mandated reporters “shall immediately notify the Child Abuse Hotline” if they have

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reasonable cause to suspect child abuse and listing reproductive healthcare facility employees and

volunteers as mandatory reporters).

106. Under Arkansas law, for women who are 13 years old or younger, LRFP must

preserve tissue and have local law enforcement in the jurisdiction in which the minor resides pick

it up. Ark. Code Ann. § 12-18-108(a). LRFP sends a form to local law enforcement with

information identifying the patient to alert local law enforcement to come pick up the tissue (Dkt.

No. 6, ¶ 40); Ark. Code Ann. § 12-18-108(b)(5).

107. Compliance with this law requires, on occasion, LRFP to speak by telephone with

local law enforcement and local law enforcement’s obligation to comply with the law (Dkt. No. 6,

¶ 41).

108. Local law enforcement do not reliably comply with existing law by picking up the

preserved tissue for patients who are 13 or younger ((Dkt. No. 6, ¶ 41).

109. Local law enforcement can be very small, with as few as two officers, and operate

in small communities (Dkt. No. 6, ¶ 45).

110. On occasion, when a LRFP representative has spoken to local law enforcement

about the existing law, personnel lecture the LRFP and “preach[] anti-abortion rhetoric, including

telling [the representative] that the Clinic is taking a life.” (Dkt. No. 6, ¶ 43).

111. LRFP, as a part of its routine counseling, discusses with the woman the age of her

sexual partner (Dkt. No. 6, ¶ 38).

112. In general, when a crime has already been reported, law enforcement are involved

before the minor visits LRFP, and law enforcement call LRFP before the minor patient arrives.

When an investigation is involved, LRFP preserves tissue for law enforcement (Dkt. No. 6, ¶ 39).

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113. For patients who are 13 or younger and reside out of state, LRFP makes the same

efforts to contact the local police department where the minor resides (Dkt. No. 6, ¶ 42).

114. Unlike the State Child Abuse Hotline, which is associated with a unit whose staff

have specialized training in child maltreatment and handling these complicated issues, local law

enforcement does not have the same kind of specialized unit or training (Dkt. No. 6, ¶ 43).

115. Under an Arkansas law enacted in 2015, LRFP obtains each patient’s consent in

writing to having the embryonic or fetal tissue from her abortion disposed of within 48 hours (Dkt.

No. 6, ¶ 50); See Ark. Code Ann. § 20-17-801(b).

116. At the time this lawsuit was filed, LRFP contracted with a vendor that transported

tissue generated at the Clinic out of Arkansas to be disposed of by incineration (Dkt. No. 6, ¶ 49).

117. At the time this lawsuit was filed, a few patients of LRFP each year wished to have

their tissue cremated and made those arrangements themselves (Dkt. No. 6, ¶ 49).

118. At the time this lawsuit was filed, LRFP sent the pregnancy tissue of a few patients

to pathology. This may be done when a physician suspects a molar pregnancy or an abnormal

growth of fetal tissue that can become a tumor or when the patient received a diagnosed fetal

anomaly (Dkt. No. 6, ¶ 53).

119. In a medication abortion, the patient passes the pregnancy tissue at home over a

period of hours or days, but she collects and disposes of it as she would during menstruation (Dkt.

No. 6, ¶ 52).

120. The record includes affidavits from individual women who describe mental distress

resulting from their individual choices to have abortions and an affidavit from one abortion

counselor who claims to have witnessed these reactions in other women with whom she has

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interacted in a post-abortion support group setting (Dkt. No. 25-12; Dkt. No. 25-14; Dkt. No. 25-

15; Dkt. No. 25-16).

121. The American Psychiatric Association rejected the notion that abortion causes

mental distress (Dkt. No. 32-1, ¶ 16).

122. Individual patients may experience a full range of emotional and psychological

responses to having an abortion, but well-designed and rigorous research concludes that there is

no evidence that abortion causes mental health problems (Dkt. No. 32-1, ¶¶ 16-18).

123. In Arkansas, 3,771 abortions were performed in 2015 (Dkt. No. 5, Ex. B). Of those,

581 were medication abortion and 3,190 were not. Of the 3,771 total abortions in 2015 in

Arkansas, 528 were obtained by married women, and 3,234 were obtained by not married women

(Id.). Nine individuals reported “unknown” when asked marital status (Id.). Of the 3,771 total

abortions in 2015 in Arkansas, 141 were obtained by individuals below the age of 18 (Id.).

124. Each of the four Mandates pose an obstacle to current patient care at LRFP, and, if

the Mandates are enforced, LRFP will have to deny care to its patients (Dkt. No. 69-2, at ¶¶ 8-12).

IV. Threshold Matters

In response to Dr. Hopkins’ initial complaint, defendants filed a motion to dismiss, which

first became ripe on July 25, 2017 (Dkt. Nos. 21, 33). With the filing of Dr. Hopkins and LRFP’s

first amended complaint, the Court denied as moot defendants’ motion to dismiss Dr. Hopkins’

initial complaint (Dkt. No. 81).

Given defendants’ past arguments, as it did in July 2017, the Court addresses threshold

matters before turning to the merits of this case. The Court must satisfy itself that the parties and

these disputes are properly before the Court.

A. Article III Standing

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Defendants previously challenged Dr. Hopkins’ standing. “Article III, § 2, of the

Constitution restricts the federal ‘judicial [p]ower’ to the resolution of ‘Cases’ and

‘Controversies.’” Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 273 (2008).

Plaintiffs have the burden of establishing that they have standing. Id. To demonstrate “Article

III” standing, a plaintiff must demonstrate:

(1) [A]n injury in fact (i.e., a “concrete and particularized” invasion of a “legally

protected interest”); (2) causation (i.e., a “‘fairly . . . trace[able]’” connection

between the alleged injury in fact and the alleged conduct of the defendant); and

(3) redressability (i.e., it is “‘likely’” and not “merely ‘speculative’” that the

plaintiff’s injury will be remedied by the relief plaintiff seeks in bringing suit).

Id. at 273-74 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).

In addition to the three “irreducible constitutional minimum” requirements of Article III

standing, Lujan, 504 U.S. at 560, courts weigh other “prudential” considerations in determining

whether plaintiffs have standing. United States v. Windsor, 133 S. Ct. 2675, 2685 (2013)

(explaining the distinction between “the jurisdictional requirements of Article III and the

prudential limits on its exercise”).

Dr. Hopkins is identified in the complaint as “an experienced, highly credentialed and

board-certified obstetrician-gynecologist, and an abortion provider at [LRFP], the only provider

of outpatient, second-trimester abortion care in Arkansas.” (Dkt. No. 82, at 4, ¶ 13). LRFP is

identified as a “limited liability corporation that is licensed to do business in Arkansas. It has

provided high quality reproductive care in Arkansas since 1973. . . . It operates a clinic in Little

Rock that provides both medication and surgical abortion care. . . . LRFP brings this action on

behalf of itself, its patients, its physicians, and staff.” (Id., at 4-5, ¶ 14). Plaintiffs claim that the

statutes they challenge “threaten [them] with criminal penalties and deny and burden [their]

patients’ constitutionally protected rights to decide to end a pre-viability pregnancy, to make

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independent decisions related to their pregnancy care, and to protect their private medical

information.” (Dkt. No. 82, at 3, ¶ 9). Dr. Hopkins and LRFP seek declaratory and injunctive

relief “[t]o protect their patients from these constitutional violations, to enforce their own right to

clear legal standards, and to avoid irreparable harm. . . .” (Dkt. No. 1, at 3, ¶ 9).

In their filings, defendants make several arguments challenging standing in this case. As

an initial matter, 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 Southeastern Pennsylvania v. Casey, 505 U.S. 833, 903-04, 909 (1992) (plurality

opinion); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 62 (1976); Nyberg

v. City of Virginia, 495 F.2d 1342, 1344 (8th Cir. 1974) (stating that Doe is not limited to affording

standing to a physician only when threatened with criminal prosecution); Planned Parenthood of

Wis., Inc. v. Schimel, 806 F.3d 908, 911 (7th Cir. 2015); Planned Parenthood of Greater Tex. Surg.

Health Serv. v. Abbott II, 748 F.3d 583, 598 (5th Cir. 2014) (“Abbott II”); Planned Parenthood of

Wis., Inc. v. Van Hollen, 738 F.3d 786, 794 (7th Cir. 2013). Standing can also derive from a

different, lesser injury, such as a potential financial impact on a physician from an abortion

restriction. See Singleton v. Wulff, 428 U.S. 106, 112-13 (1976) (finding that physicians

“suffer[ed] concrete injury from the operation of the challenged statute” which prevented them

from receiving Medicaid reimbursements if certain requirements about the nature of the procedure

were not met).

Previously, defendants argued that Dr. Hopkins could not establish an “injury in fact,”

meaning “a realistic danger of sustaining a direct injury as a result of the statute’s operation or

enforcement.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).

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Defendants concede that courts have held, in some circumstances, that a party need not expose

himself to arrest or prosecution in order to challenge a criminal statute but that, even there, there

must be “a credible threat of prosecution” before a plaintiff has standing to challenge the provision.

Babbitt, 442 U.S. at 298.

This Court has rejected nearly identical arguments that the injury was “speculative and

conjectural” because the challenged abortion law had not yet been enforced against the plaintiff

physician, including by licensure action. See Edwards v. Beck, 8 F.Supp.3d 1091 (8th Cir. 2014),

aff’d 786 F.3d 1113 (8th Cir. 2015). The law is well-settled that a plaintiff need not “first expose

himself to actual. . . prosecution to be entitled to challenge a statute that he claims deters the

exercise of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459 (1974). Courts have

concurred even in the abortion context. See, e.g., Danforth, 428 U.S. at 62; Doe v. Bolton, 410

U.S. at 188. Here, Dr. Hopkins’s declaration demonstrates the impact and threat of these Mandates

(Dkt. No. 5, ¶¶ 23-62).

Dr. Hopkins and the physicians of LRFP face criminal penalties under the D&E Mandate,

the Medical Records Mandate, and the Tissue Disposal Mandate. Further, the physicians face

licensing penalties under the Medical Records Mandate and the Local Disclosure Mandate, along

with licensing penalties for alleged unprofessional conduct that includes criminal conviction under

statutes such as the D&E Mandate, the Medical Records Mandate, and the Tissue Disposal

Mandate. Thus, physicians face a potential injury or sanction if they do not comply with the

challenged Mandates. See Doe, 410 U.S. at 188; June Med. Servs. v. Russo, 140 S. Ct. 2103, 2119,

2020 WL 3492640, at *10 (2020) (plurality opinion) (stating that the “threatened imposition of

governmental sanctions” for noncompliance eliminates any risk that their claims are abstract or

hypothetical).

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The Court disagrees with any argument that Clapper v. Amnesty International, 133 S. Ct.

1138 (2013), overruled this precedent. In Clapper, the Court determined plaintiffs, who were not

directly targeted by the challenged law, relied upon a “highly attenuated chain of possibilities” and

harm too speculative to satisfy the Article III injury requirement. Id. at 1144-48. The facts

presented here are distinguishable, and Clapper does not control. The Court concludes that, based

on controlling precedent and the claims alleged, Dr. Hopkins faces concrete, imminent injuries

from enforcement of the challenged Mandates.

Defendants also previously challenged Dr. Hopkins’s ability to assert the third-party rights

of his hypothetical future patients. Defendants argued that Dr. Hopkins could not demonstrate a

“close relation” with abortion patients because he is challenging laws that were enacted to protect

the health and safety of those patients. Defendants claim that this presents a conflict of interest

between providers and patients, and third-party standing is forbidden if the interests of the litigant

and the third-party rights-holder are even “potentially in conflict.” Elk Grove Unified Sch. Dist.

v. Newdow, 542 U.S. 1, 15 (2004); see also Kowalski v. Tesmer, 543 U.S. 125, 135 (2004)

(Thomas, J., concurring) (noting that third-party standing is disallowed when the litigants “may

have very different interests from the individuals whose rights they are raising”); Canfield

Aviation, Inc. v. Nat’l Transp. Safety Bd., 854 F.2d 745, 748 (5th Cir. 1988) (“[C]ourts must be

sure. . . that the litigant and the person whose rights he asserts have interests which are aligned.”).

The United States Supreme Court in a plurality opinion in Singleton v. Wulff, 428 U.S. 106

(1976), concluded that “it generally is appropriate to allow a physician to assert the rights of

women patients as against governmental interference with the abortion decision.” Id. at 118.

Generally, a plaintiff may assert the constitutional rights of a third party if the plaintiff has a “close

relationship” to the third party and if there exists some “hindrance to the third party’s ability to

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protect his or her own interests.” Powers v. Ohio, 499 U.S. 400, 411 (1991); see Kowalski, 543

U.S. at 130. Here, the third parties are the patients who are purportedly harmed by the challenged

Mandates that inhibit their right to abortion.

For decades, courts have routinely recognized categorically that abortion and reproductive

health care providers and physicians have third-party standing to assert the rights of their patients.

In Singleton, a plurality of the Supreme Court found that “it is generally appropriate to allow a

physician to assert the rights of women patients as against governmental interference with the

abortion decision.” Singleton, 428 U.S. at 118. Singleton concluded that “[t]he closeness of the

relationship” between a doctor and an abortion patient “is patent” because “[a] woman cannot

safely secure an abortion without the aid of a physician,” and “the constitutionally protected

abortion decision is one in which the physician is intimately involved.” Id. at 117. Singleton also

found that “[a]s to the woman’s assertion of her own rights, there are several obstacles,” including

the desire to protect her privacy, the imminent mootness of her claim once an abortion is no longer

available, as an option. Id.

The Supreme Court has applied this general principle without controversy in numerous

subsequent cases brought by physicians or abortion service providers. See, e.g., Whole Woman’s

Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (adjudicating physicians’ and clinics’ 42 U.S.C. §

1983 action against abortion restrictions on behalf of themselves and their patients); Gonzales v.

Carhart, 550 U.S. 124, 133 (2007); Stenberg v. Carhart, 530 U.S. 914, 922 (2000); Planned

Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 845 (1992). Other courts when confronted with

this argument have rejected it. See Abbott II, 748 F.3d at 589 n.9.

The Supreme Court has never found that, in the abortion context, physicians who challenge

laws restricting abortion have interests that conflict with those of their patients, and the Supreme

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Court did not accept this argument when it was advanced in June Medical. See June Med. Servs.,

140 S. Ct. at 2165-66, 2020 WL 3492640, at *49-50 (Alito, J., dissenting) (endorsing this argument

on behalf of only three Justices). The plurality opinion in June Medical, joined by four Justices,

stated that the Court has “long permitted abortion providers to invoke the rights of their actual or

potential patients in challenges to abortion-related regulations” in finding that physicians who

provided abortion care had standing to challenge a Louisiana statute requiring such physicians to

have admitting privileges at a hospital within 30 miles of the abortion clinic. June Med. Servs.,

140 S. Ct. at 2118, 2020 WL 3492640, at *9 (citing nine different Supreme Court cases in which

healthcare providers have invoked the rights of patients or potential patients in abortion-related

constitutional challenges). A fifth Justice, Chief Justice Roberts, agreed with the plurality’s

standing analysis. 140 S. Ct. at 2139, 2020 WL 3492640 at *26 n.4 (Roberts, C.J., concurring)

(“For the reasons the plurality explains . . . I agree that the abortion providers in this case have

standing to assert the constitutional rights of their patients.”). Thus, it is established that abortion

care physicians have third-party standing to challenge abortion restrictions infringing on their

patients’ constitutional rights.

B. Considerations Under 42 U.S.C. § 1983

Defendants also previously argued that, even if Dr. Hopkins could avoid these alleged

limits on third-party litigation, he still could not assert third-party rights under 42 U.S.C. § 1983

because, defendants claimed, § 1983 extends only to litigants who assert their own rights. Based

on this, defendants contended the third-party claims may proceed only under the implied right of

action established by the Supremacy Clause, and the claims cannot serve as a basis for attorneys’

fees. See Planned Parenthood of Houston & Se. Tex. v. Sanchez, 480 F.3d 734, 739-40 (5th Cir.

2007); Planned Parenthood of Houston & Se. Tex. v. Sanchez, 403 F.3d 324, 333 (5th Cir. 2005).

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There is no language in the statute that supports this argument. See 42 U.S.C. § 1983

(providing in pertinent part, “Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

. . .“). This Court agrees with the reasoning of the Seventh Circuit Court of Appeals on this point

and rejects defendants’ argument regarding standing under § 1983. See Van Hollen, 738 F.3d at

794 ̶ 95. The Supreme Court has repeatedly allowed abortion providers to raise the rights of their

patients in cases brought under § 1983, and this Court will do the same. See e.g., June Med.

Servs., 140 S. Ct. at 2118, 2020 WL 3492640, at *9 (citing nine different Supreme Court cases in

which healthcare providers have invoked the rights of patients or potential patients in abortion-

related constitutional challenges); 140 S. Ct. at 2139, 2020 WL 3492640 at *26 n.4 (Roberts, C.J.,

concurring) (“For the reasons the plurality explains . . . I agree that the abortion providers in this

case have standing to assert the constitutional rights of their patients.”); Whole Woman’s Health,

136 S. Ct. 2292; Gonzales, 550 U.S. 124; Ayotte v. Planned Parenthood of N. New England, 546

U.S. 320, 324-25 (2006) (noting that plaintiffs raised patients’ claims in suit under 42 U.S.C. §

1983); Bellotti, 428 U.S. at 136 (same).

C. The Mandates’ Private Rights of Action

Defendants also claimed that Dr. Hopkins lacked standing to challenge the Mandates’

private rights of action “because any injury to [Dr.] Hopkins is not ‘fairly traceable’ to the

defendants.” (Dkt. No. 22, at 13). Each of the Mandates provide for criminal prosecution and/or

civil licensing enforcement by defendants. The private rights of action present in the D&E

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Mandate and the Local Disclosure Mandate do not deprive this Court of jurisdiction to address the

constitutionality of the laws. See, e.g., Casey, 505 U.S. at 887-88 (noting, as to spousal notification

law the Court struck down, that “[a] physician who performs an abortion” for a married woman

without spousal notice “will have his or her license revoked, and is liable to the husband for

damages”).

D. Sovereign Immunity Under The Eleventh Amendment

Defendants also previously raised claims under the Eleventh Amendment (Dkt. No. 22, at

18). “The Eleventh Amendment confirms the sovereign status of the States by shielding them

from suits by individuals absent their consent.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437

(2004) (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996)). However, “[t]o ensure

the enforcement of federal law . . . the Eleventh Amendment permits suits for prospective

injunctive relief against state officials acting in violation of federal law.” Id. (emphasis added)

(citing Ex parte Young, 209 U.S. 123 (1908)). “A state official is amenable to suit to enjoin the

enforcement of an unconstitutional state statute only if the officer has ‘some connection with the

enforcement of the act.’” Digital Recognition Network, 803 F.3d at 960 (citing Ex Parte Young,

209 U.S. at 157).

To determine whether an action against state officials in their official capacities avoids an

Eleventh Amendment bar to suit, “a court need only conduct a ‘straightforward inquiry into

whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly

characterized as prospective.’” Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 535

U.S. 635, 645 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)

(O’Connor, J., concurring). Plaintiffs’ operative amended complaint “clearly satisfies [the

Court’s] ‘straightforward inquiry.’” Verizon Maryland, Inc., 535 U.S. at 645.

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Furthermore, defendants, who are sued in their official capacities, are amenable to suit in

this action. Defendants can be sued for prospective injunctive and declaratory relief in this action,

as they have “‘some connection with the enforcement of the act.’” Digital Recognition Network,

Inc., 803 F.3d at 960 (citing Ex Parte Young, 209 U.S. at 157).

V. Facial Versus As-Applied Challenges

Dr. Hopkins and LRPF bring both facial and as-applied challenges to certain of these

Mandates. In regard to facial challenges in general, the majority of courts have adopted a definition

of facial challenges as those seeking to have a statute declared unconstitutional in all possible

applications. See, e.g., Sabri v. United States, 541 U.S. 600, 609 (2004); United States v. Salerno,

481 U.S. 739, 745 (1987); Steffel, 415 U.S. at 474. As-applied challenges are construed as an

argument that the statute is unconstitutional as applied to precise plaintiffs. “Each holding carries

an important difference in terms of outcome: If a statute is unconstitutional as applied, the State

may continue to enforce the statute in different circumstances where it is not unconstitutional, but

if a statute is unconstitutional on its face, the State may not enforce the statute under any

circumstances.” See Women’s Medical Professional Corp. v. Voinovich, 130 F.3d 187, 193-94

(6th Cir. 1997), cert. denied, 523 U.S. 1036 (1998).

The Supreme Court has made clear that as-applied challenges are preferred. See Wash.

State Grange v. Wash. State Republican Party, 552 U.S. 442, 448-451 (2008) (discussing the

preference for as-applied challenges as opposed to facial challenges). In Salerno, the Supreme

Court stated that a “facial challenge to a legislative Act is, of course, the most difficult challenge

to mount successfully” and will only succeed if a litigant can “establish that no set of circumstances

exists under which the Act would be valid.” 481 U.S. at 745.

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The standard that controls a facial challenge to an abortion statute is somewhat different

than that applicable to facial challenges in general. The Eighth Circuit Court of Appeals has

recognized that facial challenges to abortion statutes can succeed only if a plaintiff can show that

“in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial

obstacle to a woman’s choice to undergo an abortion.” Casey, 505 U.S. at 895. See also Planned

Parenthood Minn., N.D., S.D. v. Rounds, 653 F.3d 662, 667-68 (8th Cir. 2011), vacated in part on

reh’g en banc sub nom. Planned Parenthood Minn., N.D., S.D. v. Rounds, 662 F.3d 1072 (8th Cir.

2011) and in part on reh’g en banc sub nom. Planned Parenthood Minn., N.D., S.D. v. Rounds,

686 F.3d 889 (8th Cir. 2012); see also Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d

725, 733 n.8 (8th Cir. 2008) (“Rounds cases”). In Whole Woman’s Health, the Supreme Court

clarified that “cases in which the provision at issue is relevant” is a narrower category than “all

women,” “pregnant women,” or even “women seeking abortions identified by the State.” 136 S.

Ct. at 2320 (quoting Casey, 505 U.S. at 895-95). To sustain a facial challenge and grant a

temporary restraining order, this Court must find that the challenged Mandate is an undue burden

for a large fraction of women “for whom the provision is an actual rather than an irrelevant

restriction.” See id. (discussing this as the “relevant denominator”).

The Eighth Circuit Court of Appeals recognizes that “the ‘large fraction’ standard is in

some ways ‘more conceptual than mathematical,’” but this Court is required by controlling

precedent to conduct this fact finding “to determine whether that number constitutes a ‘large

fraction.’” Planned Parenthood of Arkansas & Eastern Oklahoma v. Jegley, 864 F.3d 953, 960

(8th Cir. July 28, 2017) (citing Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361, 374 (6th Cir.

2006)).

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“Traditionally, a plaintiff’s burden in an as-applied challenge is different from that in a

facial challenge. In an as-applied challenge, ‘the plaintiff contends that application of the statute

in the particular context in which he has acted, or in which he proposes to act, would be

unconstitutional.’” Voinovich, 130 F.3d at 193-94 (quoting Ada v. Guam Soc’y of Obstetricians

and Gynecologists, 506 U.S. 1011, 1012 (1992) (Scalia, J., dissenting), denying cert. to 962 F.2d

1366 (9th Cir. 1992)). “Therefore, the constitutional inquiry in an as-applied challenge is limited

to the plaintiff’s particular situation.” Voinovich, 130 F.3d at 193-94.

VI. Request For Temporary Restraining Order

The Court turns to examine the factors set forth in Dataphase Systems, Inc. v. C L Systems,

Inc., as applied to Dr. Hopkins and LRFP’s current request for a temporary restraining order. The

Court concludes that the timing of this proceeding did not allow defendants a sufficient opportunity

to challenge the basis for plaintiffs’ requested relief. Therefore, the Court only considers the

motion for temporary restraining order at this time. See, e.g., Piraino v. JL Hein Serv. Inc., No.

4:14-CV-00267-KGB (E.D. Ark. May 16, 2014) (citing McLeodUSA Telecomms. Servs. v. Qwest

Corp., 361 F. Supp. 2d 912, 918 n.1 (N.D. Iowa 2005)).

When determining whether to grant a motion for a temporary restraining order, this Court

considers: (1) the threat of irreparable harm to the movant; (2) the balance between the harm to

the movant and the injury that granting an injunction would cause other interested parties; (3) the

public interest; and (4) the movant’s likelihood of success on the merits. Kroupa v. Nielsen, 731

F.3d 813, 818 (8th Cir. 2013) (quoting Dataphase Sys. Inc. v. CL Sys., 640 F.2d 109, 114 (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

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that justice requires the court to intervene to preserve the status quo until the merits are

determined.” 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). Thus, “[t]he threshold inquiry is whether the movant

has shown the threat of irreparable injury.” Glenwood Bridge, Inc. v. City of Minneapolis, 940

F.2d 367, 371 (8th Cir. 1991).

The Eighth Circuit modifies the Dataphase test when applied to challenges to laws passed

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

Rounds, 530 F.3d at 732. 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.

From the date this Court entered its preliminary injunction staying enforcement of the four

laws on July 28, 2017, throughout the more than three years the preliminary injunction has been

pending on appeal, at no time have defendants moved this Court or the Eighth Circuit to stay this

Court’s preliminary injunction in an effort to enforce these four laws pending appeal. In other

words, since July 28, 2017, to date, the status quo has been that the laws have not been enforceable

because this Court determined that Dr. Hopkins and LRFP are substantially likely to prevail on

their claims that these laws are unconstitutional for the reasons articulated in this Court’s

preliminary injunction order. After two intervening Supreme Court’s decisions, the Eighth Circuit

has now vacated the preliminary injunction and remanded the case to this Court for reconsideration

in the light of June Medical and Box.

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Dr. Hopkins and LRFP represent that this Court’s findings in its 2017 opinion are as true

today as they were in 2017. Nothing in the Eighth Circuit’s decision casts doubt on those factual

findings at this point. Dr. Hopkins and LRFP move for a temporary restraining order now based

on those same findings and this Court’s legal conclusions (Dkt. No. 69, at 3). Dr. Hopkins and

LRFP engaged in discussions with defendants’ counsel about these matters before filing their

motion for a temporary restraining order (Dkt. No. 69, at 69-1, at 2-9). Defendants’ counsel refuses

to agree to refrain from enforcement of these laws while the parties brief and this Court considers

the merits of the remand (Id.), despite never previously moving to stay enforcement of the

preliminary injunction.

The Court provided notice to defendants’ counsel of the Court’s intent to take up at a

hearing the pending motion for temporary restraining order. The Court conducted a hearing and

heard from defendants’ counsel at that hearing.

Record evidence demonstrates the threat of irreparable harm if defendants are permitted to

enforce these four laws which this Court determines Dr. Hopkins and LFRP are likely to succeed

in proving are unconstitutional under the undue burden standard; women seeking abortion care in

Arkansas with currently scheduled appointments and procedures will be barred from exercising

their constitutional rights due to laws which this Court determines Dr. Hopkins and LFRP are

likely to succeed in proving are unconstitutional under the undue burden standard (Dkt. No. 69;

69-2). For the reasons set forth in this Order, the Court grants Dr. Hopkins and LRFP’s motion

for temporary restraining order and temporarily enjoins the enforcement of these four laws to

preserve the status quo until the merits of Dr. Hopkins and LRFP’s pending motions, and

defendants’ pending motions, are determined. Previously, this Court determined that “[t]he undue

burden analysis requires this Court to ‘consider the burdens a law imposes on abortion access

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together with the benefits those laws confer.’” Whole Woman’s Health, 136 S. Ct. at 2309. Based

on the Court’s findings, the Court determined that, under the Whole Woman’s Health analysis,

each Mandate as challenged has the effect of placing a substantial obstacle in the path of a woman

seeking an abortion of a nonviable fetus for whom the Mandate is relevant. The Eighth Circuit

remanded to this Court for reconsideration in the light of Chief Justice Roberts’s concurring

opinion in June Medical. June Medical” in the Eighth Circuit opinion is referring to June Medical

Services. v. Russo, 140 S. Ct. 2013, 2020 WL 3492640 (2020)(plurality opinion). Based on the

Court’s findings and its reconsideration, the Court determines that each challenged Mandate has

the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a

nonviable fetus for whom the Mandate is relevant under the June Medical analysis. Dr. Hopkins

and LRFP are likely to prevail on the merits of their claims that each challenged Mandate imposes

a substantial and undue burden that is unconstitutional. Pursuant to Federal Rule of Civil

Procedure 65(b)(2), this temporary restraining order shall not exceed 14 days from the date of

entry of this Order and shall expire by its own terms on Tuesday, January 5, 2021, at 5:00 p.m.

unless the Court, for good cause shown, extends it.

VII. Analysis Of The Challenged Mandates

The Eighth Circuit vacated this Court’s preliminary injunction and “remanded for

reconsideration in light of Chief Justice Roberts’s separate opinion in June Medical, which is

controlling, as well as the Supreme Court’s decision in Box v. Planned Parenthood of Ind. & Ky.,

Inc., 139 S. Ct. 1780 (2019) (per curiam).” Hopkins v. Jegley, 968 F.3d 912, 916 (8th Cir. 2020).

The Court will examine Dr. Hopkins and LRFP’s argument for a temporary restraining order with

respect to each of the four challenged laws.

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A. The D&E Mandate (Count 1, H.B. 1032)

The Court examines whether it should temporarily restrain enforcement of the D&E

Mandate, which imposes civil liability and a criminal penalty on physicians who “purposely

perform or attempt to perform a dismemberment abortion and thereby kill an unborn child unless

it is necessary to prevent a serious health risk to the pregnant woman.” Ark. Code Ann. § 20-16-

1803(a). Dr. Hopkins and LRFP seek a temporary restraining order based on count one of their

complaint, which alleges that the D&E Mandate violates the Due Process Clause of the United

States Constitution by placing an undue burden on Dr. Hopkins and LRFP’s patients’ rights to

liberty and privacy. This is a facial challenge.

Under the D&E Mandate, “purposely” is defined as acting “with purpose with respect to a

material element of an offense” when, “[i]f the element involves the nature of the conduct of the

actor or a result of the conduct of the actor, it is the conscious object of the actor to engage in

conduct of that nature or cause such a result,” and “[i]f the element involves the attendant

circumstances, the actor is aware of the existence of such circumstances.” Ark. Code Ann. § 20-

16-1802(5).

“Attempt to perform or induce an abortion” is defined as “an act or omission of a statutorily

required act, that under the circumstances as the actor believes them to be, constitutes a substantial

step in a course of conduct planned to culminate in the performance or induction of an abortion in

this state in violation of this subchapter. . . .” Ark. Code Ann. § 20-16-1802(2).

“Dismemberment abortion” is defined as “an abortion performed with the purpose of

causing the death of an unborn child that purposely dismembers the living unborn child and

extracts one (1) piece at a time from the uterus through the use of clamps, grasping forceps, tongs,

scissors, or similar instruments that, through the convergence of two (2) rigid levers, slice, crush,

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or grasp a portion of the body of the unborn child to cut or tear off a portion of the body of the

unborn child.” Ark. Code Ann. § 20-16-1802(3)(A)(i). It includes “an abortion in which suction

is used to extract the body of the unborn child subsequent to the dismemberment of the unborn

child. . . .” Ark. Code Ann. § 20-16-1802(3)(A)(ii). It does not include “an abortion that uses

suction to dismember the body parts of the unborn child into a collection container.” Ark. Code

Ann. § 20-16-1802(3)(B).

“Unborn child” is defined by the Arkansas legislature as “an individual organism of the

species Homo sapiens from fertilization until live birth. . . .” Ark. Code Ann. § 20-16-1802(7).

“Woman” is defined as “a female human being whether or not she has reached the age of

majority.” Ark. Code Ann. § 20-16-1802(8). “Serious health risk to the pregnant woman” is

defined as “a condition that, in a reasonable medical judgment, complicates the medical condition

of a pregnant woman to such an extent that the abortion of a pregnancy is necessary to avert, either

the death of the pregnant woman or the serious risk of substantial and irreversible impairment of

a major bodily function of the pregnant woman.” Ark. Code Ann. § 20-16-1802(6)(A). It does

not include a psychological or emotional condition or “a medical diagnosis that is based on a claim

of the pregnant woman or on a presumption that the pregnant woman will engage in conduct that

could result in her death or that could cause substantial and irreversible physical impairment of a

major bodily function of the pregnant woman.” Ark. Code Ann. § 20-16-1802(7)(B)(i)-(ii).

If a physician violates the D&E Mandate, the law imposes civil liability, Ark. Code Ann.

§ 20-16-1804, as well as the criminal penalties of a Class D felony under Arkansas law, Ark. Code

Ann. § 20-16-1805.

Dr. Hopkins asserts that, if the State enforces the D&E Mandate, he will stop performing

standard D&E abortions altogether due to ethical and legal concerns regarding compliance with

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the law, thereby rendering abortions essentially unavailable in the State of Arkansas starting at

14.0 weeks LMP. LRFP asserts the same (Dkt. No. 69-2). The most common method of second

trimester abortion is a method with instrumentation called standard D&E. This involves two steps:

dilating the cervix, and then evacuating the uterus with instruments such as forceps. There are

several ways to dilate the cervix (Dkt. No. 4, ¶ 17; Dkt. No. 5, ¶ 13).

Typically, during the early weeks of the second trimester of pregnancy, a doctor performing

standard D&E uses a combination of medications that open the cervix and manual dilators; then,

the same day, the doctor uses forceps to remove the fetus and other contents of the uterus. Because

the fetus is larger than the opening of the cervix, the fetal tissue generally comes apart as the

physician removes it through the cervix. The reason that the cervical opening is smaller than the

fetal parts is that, in general, the doctor dilates only enough to allow the safe passage of instruments

and fetal tissue through the cervix (Dkt. No. 4, ¶ 17-18; Dkt. No. 5, ¶ 14). In Arkansas and

elsewhere, standard D&E typically is a one-day procedure from 14.0 to 17.6 weeks LMP (Dkt.

No. 5, ¶ 15; Dkt. No. 6, ¶ 17). Due to Arkansas’s state mandated counseling laws, this means that

generally a woman would be required to make two trips to the clinic for abortion care from 14.0

to 17.6 weeks LMP.

Later in the second trimester, larger instruments require wider cervical dilation. Although

some physicians continue to provide standard D&E as a one-day procedure, starting at 18.0 to 20.0

weeks LMP, it is typical for doctors to add overnight osmotic dilation to the standard D&E

protocol. In Arkansas, the standard D&E protocol changes in two ways starting at 18.0 weeks

LMP for almost all patients (Dkt. No. 5, ¶ 20). First, in Arkansas, a woman at 18.0 weeks LMP

receives overnight dilation. This means that the abortion procedure takes two days, rather than

one (Dkt. No. 5, ¶ 20). Second, in Arkansas, at the time a woman at 18.0 weeks LMP has placed

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in her cervix the osmotic dilators, which is the day before the intended evacuation, the woman also

receives an injection of digoxin through the vaginal wall. That injection of digoxin is into the fetus

or, if not, into the amniotic fluid. With either method of injection, the digoxin may not work

effectively (Dkt. No. 5, ¶ 20). The next day, in women 18.0 weeks or later LMP, if the digoxin

has not caused fetal demise, Dr. Hopkins currently will take steps with his forceps, such as

compressing fetal parts, to ensure fetal demise and to establish compliance with existing laws (Dkt.

No. 5, ¶ 21).

Osmotic dilators are thin sticks of material that swell when they absorb moisture; when

placed in a woman’s cervix, they absorb moisture from the woman’s body, expand slowly, and

slowly dilate the cervix. Once dilation is sufficient, typically the next day, the doctor proceeds as

in earlier standard D&Es, removing the fetus, generally in pieces because it is larger than the

cervical opening (Dkt. No. 4, ¶ 17; Dkt. No. 5, ¶ 16). For patients of LRFP, they are required to

spend that overnight within 30 minutes of the clinic so that the doctor is available in the rare

instance in which a patient has any problem (Dkt. No. 6, ¶ 18).

Given the requirements of Arkansas law regarding mandated state counseling, for patients

receiving abortion care at 18.0 to 21.6 weeks LMP, the law requires at least three trips to the clinic

(Dkt. No. 6, ¶ 7). Starting at 18.0 to 22.0 weeks LMP, some physicians, including Dr. Hopkins,

undertake an additional procedure to try to cause fetal demise before the evacuation phase of a

D&E for most patients, meaning those for whom it is not contraindicated (Dkt. No. 5, ¶ 18).

Through the second trimester, standard D&E is a safe way to provide abortion in an

outpatient setting, such as a family planning clinic (Dkt. No. 5, ¶ 17). The standard D&E procedure

has a long-established safety record in this county, with major complications occurring in less than

1% of standard D&E procedures (Dkt. No. 4, ¶ 19).

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1. Likelihood Of Success On The Merits

To determine whether Dr. Hopkins and LRFP are likely to succeed on their challenge to

the D&E Mandate, this Court applies the undue burden standard. June Medical Services, 140 S.

Ct. 2103 (plurality opinion); Whole Woman’s Health, 136 S. Ct. at 2309; Casey, 505 U.S. at 877

(plurality opinion).

a. Applicable Law

Federal constitutional protection of reproductive rights is based on the liberty interest

derived from the due process clause of the Fourteenth Amendment. Casey, 505 U.S. at 846

(majority opinion). Dr. Hopkins and LRFP challenge the D&E Mandate on this basis.

Dr. Hopkins and LRFP argue that, as a matter of Supreme Court precedent, defendants

“cannot criminalize the performance of the most common method of abortion (and indeed the only

method in Arkansas) in the second-trimester, pre-viability stage of pregnancy. See Stenberg v.

Carhart, 530 U.S. 914, 945-46 (2000); accord Gonzales, 550 U.S. at 150; Danforth, 428 U.S. at

77-79.” (Dkt. No. 32, at 28). Dr. Hopkins and LRFP further assert that, “[t]his is exactly what the

D&E Ban does, and it is unconstitutional. . . Decades of settled law holds that it is per se

unconstitutional for the State to criminalize ‘the . . . dominant second-trimester abortion method.’

Gonzales, 550 U.S. at 165; see also id. at 150-54; Danforth, 428 U.S. at 77-79.” (Dkt. No. 32, at

28). The Court acknowledges this argument but concludes that, given the circumstances before it

in this matter, an undue burden analysis of the D&E Mandate is warranted.

Whole Woman’s Health directs lower courts to “review legislative ‘factfinding’ under a

deferential standard,” but not to “‘place dispositive weight’ on those ‘findings’ ” because courts

“retai[n] an independent constitutional duty to review factual findings where constitutional rights

are at stake.” 136 S. Ct. at 2310 (quoting Gonzales, 550 U.S. 124, 165 (2007) (noting that courts

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afford legislatures discretion in areas of medical and scientific uncertainty)). If evidence presented

to the court contradicts legislative findings, “uncritical deference. . . is inappropriate.” Whole

Woman’s Health, 136 S. Ct. at 2310 (quoting Gonzales, 550 U.S. at 165). Moreover, when, as

here with respect to the D&E Mandate, the relevant statutes do not set forth legislative findings,

courts should give “significant weight to evidence in the judicial record,” including “expert

evidence, presented in stipulations, depositions, and testimony.” Whole Woman’s Health, 136 S.

Ct. at 2310; see also Whole Woman's Health All. v. Hill, 937 F.3d 864, 876 (7th Cir. 2019), cert.

denied, 2020 WL 3578684, — U.S. — (U.S. July 2, 2020) (“The [Whole Woman’s Health] Court

stated that the undue-burden inquiry requires a holistic, rigorous, and independent judicial

examination of the facts of a case to determine whether the burdens are undue in light of the

benefits the state is permitted to pursue.”). The plurality opinion in June Medical reaffirmed these

principles. 140 S. Ct. at 2120, 2020 WL 3492640, at *10 (plurality opinion).

Generally, the state has the burden of demonstrating a link between the legislation it enacts

and what it contends are the state’s interests. See Akron v. Akron Center for Reproductive Health,

Inc., 462 U.S. 416, 430 (1983), overruled on other grounds by Casey, 505 U.S. 833 (describing

the burden as that of the state). As a part of the Court’s inquiry, the Court may take into account

the degree to which the restriction is over-inclusive or under-inclusive, see, e.g., Whole Woman’s

Health, 136 S. Ct. at 2315 (discussing over- and under-inclusive scope of the provision), and the

existence of alternative, less burdensome means to achieve the state’s goal, including whether the

law more effectively advances the state’s interest compared to prior law, see, e.g., Whole Woman’s

Health, 136 S. Ct. at 2311 (noting that prior state law was sufficient to serve asserted interest); Id.

at 2314 (“The record contains nothing to suggest that [the challenged provisions] would be more

effective than pre-existing [state] law at deterring wrongdoers. . . from criminal behavior.”).

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The benefits of a law are measured against the state’s legitimate interests in this field. First,

“[a]s with any medical procedure, the State may enact regulations to further the health and safety

of a woman seeking an abortion.” Casey, 505 U.S. at 878 (joint op.). Second, the state has a

legitimate interest in preserving a life that may one day become a human being. Id. To promote

that interest, the state may enact measures to ensure the woman’s choice is philosophically and

socially informed and to communicate its preference (if it has one) that the woman carry her

pregnancy to term. Id. at 872 (joint op.). Such measures “must be calculated to inform the

woman’s free choice, not hinder it[,]” and even if so calculated may not present a substantial

obstacle to its exercise. Id. at 877 (joint op.). Third, the state may choose to further the same

interest by enacting measures “‘protecting the integrity and ethics of the medical profession’. . . in

order to promote respect for life,” Gonzales, 550 U.S. 124, 158 (quoting Washington v.

Glucksberg, 521 U.S. 702, 731 (1997)), but such measures equally may not impose undue burdens.

Id.

The burdens of a law are measured by their impacts on women for whom they pose a

relevant restriction on the choice to seek a previability abortion. Whole Woman’s Health, 136 S.

Ct. at 2313; Casey, 505 U.S. at 895 (maj. op.). “The proper focus of constitutional inquiry is the

group for whom the law is a restriction, not the group for whom the law is irrelevant.” Casey, 505

U.S. at 895. If the impacts amount to a substantial obstacle to the abortion decision for a “large

fraction” of that group, the burdens imposed are undue. Whole Woman’s Health, 136 S. Ct. at

2313; Casey, 505 U.S. at 895. In June Medical, the Court rejected an argument that an undue

burden would arise only if it affected every woman seeking an abortion and reaffirmed that the

“large fraction” standard set forth in Whole Woman’s Health governs. June Med. Servs., 140 S.

Ct. at 2132-33, 2020 WL 3492640, at *21 (plurality opinion).

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This Court determines that a restriction can impose an undue burden even if it does not

entirely prevent women from obtaining an abortion of any kind. In Stenberg v. Carhart, 530 U.S.

914 (2000), the plaintiff sought to invalidate a Nebraska law that banned certain “partial-birth

abortion[s]” in part because, even though other methods of abortion would remain available,

significant medical authority supported the proposition that in some circumstances, the abortion

procedure to be banned was the safest procedure. Id. at 931-932, 936-37. In finding that the law

was unconstitutional without an exception for when the procedure is necessary to protect the health

of the mother, the Supreme Court stated that “a State cannot subject women’s health to significant

risks. . . where state regulations force women to use riskier methods of abortion” because “a risk

to a women’s health is the same whether it happens to arise from regulating a particular method of

abortion, or from barring abortion entirely.” Id. at 931, 938.

Dr. Hopkins and LRFP, who challenge the laws, retain the ultimate burden of proving their

unconstitutionality. Mazurek, 520 U.S. at 972 (reversing appellate court for enjoining abortion

restriction where plaintiffs had not proven that the requirement imposed an undue burden); Casey,

505 U.S. at 884 (affirming provision where “there is no evidence on this record” that the restriction

would amount to an undue burden).

For Dr. Hopkins and LRFP’s challenges based on alleged violations of the Due Process

Clause, the Court will begin its analysis of the merits by examining each provision and the asserted

state justification for each provision. The Court will then examine the alleged undue burden of

the provision, and the Court will make findings of fact regarding the fraction of women, if any, for

whom the D&E Mandate imposes an undue burden.

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b. Analysis Of The D&E Mandate

1. State’s Interests

No legislative findings accompany the D&E Mandate. The Court does not have an

explanation from the legislature of the purpose of the law. Defendants argue that the law advances

the interests of regulating medical ethics and promoting respect for the life of an unborn child (Dkt.

No. 22, at 20).6 The Court assumes the legitimacy of these interests. Whole Woman’s Health, 136

S. Ct. at 2310 (assuming that the State had legitimate state interests where the statute did not

contain any legislative findings).

2. Burdens Imposed On Women

Dr. Hopkins and LRFP argue that, although the D&E Mandate does not use recognized

medical terminology, it bans standard D&E because it criminalizes the use of surgical instruments

to cause disarticulation or, in the D&E Mandate’s terms, “dismemberment” of a “living” fetus.

Ark. Code Ann. § 20-16-1802(3) (2017). Dr. Hopkins and LRFP assert that the law would force

Arkansas women seeking pre-viability abortions to undergo medically unnecessary procedures and

subject women to increased health risks. Dr. Hopkins and LRFP also assert that, if the D&E

Mandate goes into effect, standard D&E abortions essentially will become unavailable in the State

of Arkansas starting at 14.0 weeks LMP due to ethical and legal concerns regarding compliance

with the law. There is factual support in the record for this assertion.

They maintain that the D&E Mandate “would constitute a significant step backward. . . .”

(Dkt. No. 3, at 6). Standard D&E was a significant advance over earlier methods of second

6

Defendants do not argue that the D&E Mandate is designed to avoid fetal pain. Based

on record evidence submitted by defendants, according to at least one study defendants submitted,

fetal pain is not a biological possibility until 29 weeks, well beyond the range of standard D&E

procedures (Dkt. No. 23-6, at 3).

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trimester abortion (Dkt. No. 4, ¶ 19). See also City of Akron, 462 U.S. at 435-36, overruled in part

on other grounds by Casey, 505 U.S. 833 (“Since [Roe v. Wade was decided], the safety of second

trimester abortions has increased dramatically. The principal reason is that the D&E procedure is

now widely and successfully used. . . .”) (footnotes omitted).

Starting in the early second trimester, standard D&E is the only procedure that can be

performed on an outpatient, ambulatory basis (Dkt. No. 4, ¶ 14; Dkt. No. 5, ¶ 17). See also City

of Akron, 462 U.S. at 436. This significantly reduces the expense of a second trimester abortion

(Dkt. No. 4, ¶ 14).

The alternative to standard D&E is an induction procedure, in which physicians use

medication to induce labor and delivery of a non-viable fetus (Dkt. No. 4, ¶ 14). Induction must

be performed at a facility such as a hospital, not in an outpatient setting, and the patient may be

kept for an extended stay because an induction may take 5 hours to 3 days to complete, not the 10

to 15 minutes it takes to complete a standard D&E (Dkt. No. 4, ¶ 14; Dkt. No. 5, ¶ 12). Induction

requires a woman to go through labor, which is painful, psychologically challenging for some

women, and medically contraindicated for some women (Dkt. No. 4, ¶ 14, Dkt. No. 5, ¶ 12).

If the D&E Mandate were to be enforced, Dr. Hopkins asserts that he would stop

performing abortions at approximately 14.0 weeks LMP because, after that point, he would not

know whether he would be able to ensure fetal demise before taking actions banned under the

D&E Mandate (Dkt. No. 3, at 7; Dkt. No. 5, ¶¶ 23, 26). LRFP states the same (Dkt. No. 69-2).

Under the D&E Mandate, the only D&E that would be legal is one in which a physician

successfully induces fetal demise through an additional procedure prior to starting the evacuation

phase of D&E (Dkt. No. 3, at 7). Dr. Hopkins claims that, because it is not feasible or safe for him

to induce fetal demise through an additional procedure in every patient prior to starting the

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evacuation phase of D&E, he would not start any D&E because he may not be able to complete

the procedure without violating the D&E Mandate (Dkt. No. 3, at 7).

Defendants respond that fetal demise can be achieved before standard D&E with one of

three procedures: digoxin injections, potassium chloride injections, and umbilical cord

transection.7 The Court’s determination whether the D&E Mandate imposes substantial obstacles

to abortion access depends on the feasibility of defendants’ proposed fetal demise methods. For

the following reasons, the Court rejects each of defendants’ proposed fetal demise methods.

To the extent defendants contend that this Court is barred from evaluating the medical

evidence concerning both the feasibility and safety of defendants’ proposed fetal demise methods,

the Court rejects this argument (Dkt. No. 23, at 45-46). Defendants contend that medical

disagreement or uncertainty over the impact of the D&E Mandate is for resolution by the

legislature alone (Id.). The Court disagrees. As an initial matter, there are no legislative findings

of fact to which this Court could defer. Further, the Court is unconvinced at this stage, based on

the record evidence now before it, that defendants’ evidence creates a medical disagreement or

uncertainty. Even if it does, as the Supreme Court acknowledged in Casey, “[i]t is conventional

constitutional doctrine that where reasonable people disagree the government can adopt one

position or the other. . . . That theorem, however, assumes a state of affairs in which the choice

does not intrude upon a protected liberty.” 505 U.S. at 851. There is a protected liberty interest

at stake here. This Court considers the medical evidence in the record surrounding the safety of

the D&E Mandate’s safety and determines that it presents impermissible, unduly burdensome risks

and substantial obstacles to those seeking an abortion and a D&E prior to viability.

7

Defendants suggest, without evidentiary support in the record, that physicians may rely

on suction to cause fetal demise so as to avoid liability in the second trimester (Dkt. No. 23, at 31).

The Court rejects that assertion based on record evidence (Dkt. No. 32-1, ¶ 5).

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a. Digoxin Injection

When examining digoxin injections, it is important to distinguish between injections before

18.0 weeks LMP and those after 18.0 weeks LMP, based on the record before the Court. Dr.

Hopkins asserts that there is no reasonable or accepted procedure available for a physician

providing standard D&E even to attempt fetal demise in a way that might avoid the ban before

18.0 weeks LMP (Dkt. No. 4, ¶ 36; Dkt. No. 5, ¶ 24). He maintains that all methods proposed by

defendants for inducing fetal demise before standard D&E, including digoxin injection before 18.0

weeks LMP, are virtually untested, have unknown risks and uncertain efficacy, and would be

outside the standard of care (Dkt. No. 4, ¶ 26; Dkt. No. 5, ¶¶ 25-26). Any attempts to cause fetal

demise prior to 18.0 weeks LMP would mean experimentation and imposing risks with no medical

benefit, according to Dr. Hopkins (Dkt. No. 3, at 8).

Starting at 18.0 weeks LMP, during the latter part of the second trimester, a majority of

physicians who attempt to induce fetal demise, including Dr. Hopkins and other physicians at

LRFP, do so by injecting digoxin either transabdominally or transvaginally (Dkt. No. 4, ¶ 21; Dkt.

No. 5, ¶ 25). Usually, physicians using these injections, including Dr. Hopkins, do so to comply

with the federal “partial birth abortion ban” and similar state laws (Dkt. No. 4, ¶ 23; Dkt. No. 5, ¶

19). See 18 U.S.C. 1531; Ark. Code Ann. 20-16-1203 (2009). Doing so confers no medical benefit

for the woman, as the American College of Obstetricians and Gynecologists (“ACOG”) has stated:

“‘No evidence currently supports the use of induced fetal demise to increase the safety of second

trimester medical or surgical abortion.’” (Dkt. No. 4, ¶ 22)(quoting Am. Coll. of Obstetricians &

Gynecologists, Practice Bulletin Number 135: Second Trimester Abortion, 121(6) Obstetrics &

Gynecology 1394, 1396, 1406 (2013)).

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Dr. Hopkins maintains that this practice does not save the D&E Mandate even for those

patients post-18.0 weeks LMP. First, he maintains digoxin injections are not possible for every

patient due to anatomical characteristics which may contraindicate these injections (Dkt. No. 3, at

9). Second, in some cases, digoxin fails to cause fetal demise, and Dr. Hopkins or any other

physician cannot know before starting a procedure the patients in whom it will fail (Dkt. No. 4, ¶

28; Dkt. No. 5, ¶ 25c). Dr. Hopkins maintains the proper course when digoxin fails is to complete

the abortion without additional delay (Dkt. No. 4, ¶ 29; Dkt. No. 5, ¶ 25d).

If digoxin does not result in fetal demise after 24 hours, the D&E Mandate could be read

to compel a physician to attempt a second injection of digoxin, which is untested and contrary to

the standard of care (Dkt. No. 4, ¶ 29; Dkt. No. 5, ¶ 25b). According to Dr. Hopkins, administering

a second dose of digoxin and waiting an undetermined amount of time for fetal demise, rather than

completing the abortion, would put a patient who is already dilated and whose uterus may have

already started to contract at risk of infection or delivery outside the clinic (Dkt. No. 4, ¶ 29; Dkt.

No. 5, ¶ 25b).

Dr. Hopkins would not feel comfortable asserting that those risks, while real and

unacceptable, rise to the very high level of the D&E Mandate’s narrow exception, limited to

circumstances “necessary to avert either. . . death. . . or the serious risk of substantial and

irreversible physical impairment of a majority of bodily function.” Ark. Code Ann. §§ 20-16-

1802(6)(A) - 1803(a). He forms this opinion based on his experience (Dkt. No. 5, ¶ 25f).

In sum, Dr. Hopkins maintains that he would end standard D&E practice if the D&E

Mandate takes effect because, although he is a highly trained and experienced obstetrician-

gynecologist, and can attempt digoxin injections to try to cause fetal demise in most patients

beginning at 18.0 weeks LMP, he will not experiment on patients by attempting injections earlier

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than 18.0 weeks LMP, will not do injections when medically contraindicated, will not do a second

injection if the first one fails, and will not start a procedure when he does not know whether he

will be able to finish it without violating the ban (Dkt. No. 5, ¶ 24). This would end standard D&E

practice starting at 14.0 weeks LMP, which represents 100% of abortion care during that period

reported in Arkansas in 2015 (Dkt. No. 4, ¶ 38; Dkt. No. 5, ¶ 23).

The Court concludes that digoxin injections are not a feasible method of causing fetal

demise before a standard D&E. Digoxin injections are experimental for women before 18.0 weeks

LMP, and most second trimester abortions in Arkansas are performed before 18.0 weeks LMP.

There is no record evidence of any physician attempting digoxin injections earlier than 18.0 weeks

LMP (Dkt. No. 4, ¶ 25). There are virtually no reported studies, and no studies of record, on using

digoxin in the first weeks of the second trimester, when most second trimester abortions are

performed (Dkt. No. 4, ¶ 26; Dkt. No. 32-3, at 39-40). Requiring digoxin injections for every

patient starting at 14.0 weeks LMP would be requiring a physician to experiment on his patient,

without any way to know or counsel her on the effectiveness or safety of the experiment (Dkt. No.

32-1, ¶ 9; Dkt. No. 5, ¶ 24).

Of the physicians who undertake an additional procedure after 18.0 to 22.0 weeks LMP,

the vast majority of physicians inject the drug digoxin into the fetus if possible or, if not, then into

the amniotic fluid. Injecting digoxin into the amniotic fluid is technically easier, but it is less

effective (Dkt. No. 4, ¶ 21; Dkt. No. 5, ¶ 18). The injections may be through the woman’s abdomen

or vaginal wall. These injections generally use an 18- to 22-gauge spinal needle, passed under

ultrasound guidance, through the patient’s abdomen, vaginal wall, or vagina and cervix, and then

either into the amniotic fluid or the fetus (Dkt. No. 4, ¶ 21, 25; Dkt. No. 5, ¶ 18).

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There are some women for whom an injection of digoxin may be difficult or impossible.

For example, woman may be very obese; may have anatomical variations of the uterine and vaginal

anatomy, such as fibroids or a long cervix; and may have fetal positioning that creates issues.

These injections also can be dangerous for women with cardiac conditions such as arrhythmias

(Dkt. No. 4, ¶ 27). Even for women who tolerate injections, digoxin will not cause fetal demise

in 5% to 10% of all cases in which it is used (Dkt. No. 4, ¶ 28).

The failure rate is higher for intramniotic injections. Intramniotic injections are associated

with higher complication rates than intrafetal injection (Dkt. No. 4, ¶ 25). Intrafetal injections are

more difficult to perform and may be impossible to perform due to fetal position, uterine anatomy

and other factors, especially the size of the fetus. The smaller the fetus, the more difficult intrafetal

injection will be (Dkt. No. 4, ¶ 28).

Digoxin works very slowly. Doctors allow 24 hours after the injection for it to work. Even

then, it does not always cause fetal demise (Dkt. No. 5, ¶ 18). There is record evidence that the

transabdominal injection can be painful and emotionally difficult for the patient. The injection

poses risks, including infection, which can threaten the patient’s health and future fertility, and

accidental absorption of the drug into the patient’s circulation, which can result in toxicity and

changes to the patient’s EKG (Dkt. No. 4, ¶ 25).

Like all medical procedures, the digoxin injection creates risks for the patient. Doctors

who use digoxin believe that practical concerns justify using it. The record evidence is that the

main benefit of using digoxin is to establish compliance with the federal “partial-birth abortion

ban” or similar state laws (Dkt. No. 4, ¶ 23; Dkt. No. 5, ¶ 19). The federal “partial-birth abortion

ban” has an intent requirement (Dkt. No. 4, ¶ 23).

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Based on the record before the Court there are no reported studies of record on using a

second injection of digoxin, or multiple, sequential injections of digoxin, after the first dose fails

to bring about fetal demise (Dkt. No. 4, ¶ 29). Using a second injection of digoxin would, at a

minimum, delay the abortion procedure, require the patient to make another trip to the clinic, and

increase the risk of uterine infection, extramural delivery, or digoxin toxicity (Dkt. No. 4, ¶ 29).

Utilizing a digoxin injection to induce fetal-demise would impose additional logistical

obstacles to abortion access. Women undergoing digoxin injections would be required to make an

additional trip to the clinic 24 hours prior to their D&E procedure appointment. See Whole

Woman’s Health, 126 S. Ct. at 1213 (external factors that affect women’s ability to access abortion

care – such as increased driving distance—should be considered as an additional burden when

conducting the undue burden analysis). If digoxin injections were used to induce fetal demise, a

woman seeking an abortion would have to meet with a physician at least three times over a

minimum of four days for a 10 to 15 minute procedure. First, she would have to receive the

counseling mandated by Arkansas law. Second, she would have to return for the digoxin injection.

Third, she would have to return after 24 hours for the physician to determine whether fetal demise

was achieved. If fetal demise was achieved, the D&E could proceed. However, in 5% to 10% of

cases, the first digoxin injection will fail. As a result, additional visits could be required.

The burden of having to make multiple trips for the procedure is especially pronounced for

low-income women. The procedure would become time and cost-prohibitive for some women.

Faced with this financial and logistical burden, some low-income women may delay obtaining an

abortion or not have an abortion at all. Many patients of LRFP are low-income. Approximately

30 to 40% of patients obtain financial assistance to pay for their abortion care (Dkt. No. 6, ¶ 5).

Many patients of LRFP struggle in their lives and in their efforts to access the medical care they

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need (Dkt. No. 6, ¶ 5). The time and effort it takes to make the necessary plans to access medical

care cause anxiety and stress and cause financial pressure for women seeking care at LRFP.

Women must arrange for time off work on multiple days, which can be very difficult given that

many are in low-wage jobs and feel that they cannot explain to an employer the reason they need

to take time off. For women who already have children, these women must arrange and often pay

for childcare. These women also must arrange and pay for transportation. In some cases, these

women also have to arrange and pay for a place to stay for multiple nights (Dkt. No. 6, ¶ 8).

Due to the unreliability of the procedure, unknown risks for women before 18.0 weeks

LMP, unknown risks associated with injection of a second dose of digoxin if the first fails,

increased risks of complications, increased travel burden, and pain and invasiveness of the

procedure, the Court concludes on the record evidence before it that a digoxin injection is not a

feasible method of inducing fetal demise before standard D&E in Arkansas.

b. Potassium Chloride Injection

Another substance, potassium chloride (KCl), will cause fetal demise if injected directly

into the fetal heart, which is extremely small (Dkt. No. 4, ¶ 31; Dkt. No. 5, ¶ 22). The record

evidence is, and there is no credible dispute, that the procedure of injecting potassium chloride is

very rare, as it carries much more severe risks for the woman, including death if the doctor places

the solution in the wrong place (Dkt. No. 4, ¶ 31; Dkt. No. 5, ¶ 22; Dkt. No. 32-2, ¶ 3; Dkt. No.

32-3, at 7, 36-37).

The procedure requires extensive training generally available only to sub-specialists in

high-risk obstetrics, known as maternal-fetal medicine (Dkt. No. 4, ¶ 31; Dkt. No. 5, ¶ 22; Dkt.

No. 32-2, ¶ 3; Dkt. No. 32-3, at 7 , 36-37). Dr. Hopkins and the other doctors with whom he

practices at LRFP, like the vast majority of obstetrician-gynecologists, do not have this specialized

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training (Dkt. No. 4, ¶ 31; Dkt. No. 5, ¶ 22). Contrary to defendants’ suggestion, the Court is

unaware of any authority, including in Gonzales, that requires Dr. Hopkins to undertake years of

training in the subspecialty of maternal fetal medicine to perform abortions (Dkt. No. 23, at 43

(citing Gonzales, 550 U.S. at 163)).

Further, injecting potassium chloride is usually done in a hospital, not a clinical, setting.

The procedure requires an advanced ultrasound machine that is typically available only in a

hospital setting and too expensive for most clinics to afford (Dkt. No. 4, ¶ 31; Dkt. No. 32-2, ¶ 3;

Dkt. No. 32-3, 7, 36-37). Defendants cite no legal or record support for their argument that Dr.

Hopkins or LRFP can be required to obtain, or could obtain, such equipment without unduly

burdening women who seek abortion (Dkt. No. 23, at 43). See Whole Woman’s Health, 136 S. Ct.

at 2318 (examining, in the undue burden context, the costs a current abortion facility would have

to incur to meet the regulation’s requirements). The cost also would be prohibitive for women

who seek abortion. See Causeway Med. Suite v. Foster, 43 F.Supp.2d 604, 612-13 (E.D. La. 1999)

(a ban on “surgical abortion” unless “fetal demise is first induced” imposes an undue burden

because it “may force women seeking abortions to accept riskier or costlier abortion procedures.”).

Further, defendants cite no legal or record support for their suggestion that over 600 patients

seeking a standard D&E each year in Arkansas could go to an Arkansas hospital for a potassium

chloride injection to terminate their second-trimester pregnancies, equating roughly to 12 patients

per week (Dkt. No. 23, at 43).

There also are some women for whom injecting potassium chloride is not medically

appropriate (Dkt. No. 4, ¶ 31). Obesity, fetal and uterine positioning, and presence of uterine

fibroids may complicate or prevent the administration of these injections.

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The Court concludes that potassium chloride injections are not a feasible method of

inducing fetal demise before standard D&E procedures. Injecting potassium chloride takes

specialized training, and Dr. Hopkins lacks that specialized training. The only subspecialists who

are trained to perform the injections are maternal-fetal medicine fellows who go through highly

supervised training to specialize in high-risk pregnancies. Further, Dr. Hopkins and LRFP lack

the costly equipment necessary to perform the procedure on an outpatient basis.

Potassium chloride injections are an unnecessary and potentially harmful medical

procedure with no counterbalancing medical benefit for the patient, based on the record before the

Court. It is a technically challenging procedure that carries serious health risks. For all of these

reasons, on the record before it, the Court determines potassium chloride injections are an

unavailable method for fetal demise for women seeking a standard D&E abortion in the state of

Arkansas.

c. Umbilical Cord Transection8

Umbilical cord transection involves the physician rupturing the membranes, inserting a

suction tube or other instrument such as forceps into the uterus, and grasping the cord, if possible,

to divide it with gentle traction, which will cause demise over the course of up to 10 minutes (Dkt.

No. 4, ¶ 32). The success and ease of this procedure depends on placement of the umbilical cord.

If the umbilical cord is blocked by the fetus, it would be very difficult and very risky to attempt to

reach it (Dkt. No. 4, ¶ 33).

8

Defendants’ expert, Dr. Biggio, has less practical experience and significantly less

expertise than Dr. Hopkins’s experts. Specifically, Dr. Biggio’s testimony on cord transection

“was largely theoretical and not based on experience.” W. Ala. Women’s Ctr., 217 F.Supp.3d at

1339 n.24.

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The record evidence is that umbilical cord transection is not widely practiced or researched

(Dkt. No. 4, ¶ 32). There has been only one scientific study on the use of cord transection to cause

fetal demise; the physicians relied upon by the parties agree on this (Dkt. No. 32-1, ¶ 11; Dkt. No.

32-3, at 42). The one scientific study on the use of cord transection has limitations and does not

support any conclusion about the safety of the procedure (Dkt. No. 32-1, ¶¶ 12-13).

Attempting umbilical cord transection before 16.0 weeks LMP is completely unstudied,

and like injections, these procedures are more difficult to perform the earlier in pregnancy a woman

seeks care. Successfully identifying and transecting the cord at early gestations would take

additional time and likely multiple passes with forceps (Dkt. No. 32-1, ¶¶ 14-15).

Further, this procedure exposes the woman to an increased risk of uterine perforation,

cervical injury, and bleeding, while it unnecessarily prolongs the D&E procedure (Dkt. No. 4, ¶¶

32-34). The record evidence is that the longer a D&E takes and the more instruments passes into

the woman’s uterus occur, the higher the risks of uterine perforation and other complications;

physicians relied upon by both sides agree on this (Dkt. No. 4, ¶¶ 32-34; Dkt. No. 5, ¶ 25d; Dkt.

No. 32-1, ¶¶ 13, 15; Dkt. No. 23-15, ¶ 8; Dkt. No. 32-3, at 40-41; Dkt. No. 25-4, ¶ 6).

There are some women for whom umbilical cord transection is not medically appropriate;

physicians relied upon by both sides agree on this (Dkt. No. 4, ¶ 32; Dkt. No. 23-15, ¶ 12).

In seeking to grasp the umbilical cord, physicians will often have no way to avoid grasping

fetal tissue instead of, or in addition to, the cord. Doing so would violate the D&E Mandate,

according to Dr. Hopkins, and umbilical cord transection provides no way to circumvent the D&E

Mandate (Dkt. No. 4, ¶ 35; Dkt. No. 5, ¶¶ 25d-25e).

Dr. Nichols, an expert upon whom Dr. Hopkins relies, does not perform umbilical cord

transection (Dkt. No. 4, ¶¶ 32-35; Dkt. No. 32-1, ¶¶ 11-15). No physician to which either party

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cites would require cord transection in their respective practices (Dkt. No. 4, ¶ 34; Dkt. No. 5, ¶

25d; Dkt. No. 32-3, at 40).

This essentially is an experimental procedure that provides no medical benefits to the

woman, based on the record evidence. The Court concludes that because this procedure is difficult,

because this procedure has the potential for serious harm, and due to the lack of sufficient research

on the procedure, umbilical cord transection is an unavailable method for fetal demise for women

seeking a standard D&E abortion in the state of Arkansas on the record before the Court.

For all three of these methods – digoxin, potassium chloride injections, and umbilical cord

transection – no evidence currently supports the use of induced fetal demise to increase the safety

of second-trimester medical or surgical abortion. This is consistent with the medical literature

(Dkt. No. 4, ¶ 22; Am. Coll. of Obstetricians & Gynecologists, Practice Bulletin Number 135:

Second Trimester Abortion, 121(6) Obstetrics & Gynecology 1394, 1396, 1406 (2013)).

3. Undue Burden

In its prior Order, this Court applied the then-controlling standard of Whole Woman’s

Health, in which the Supreme Court clarified that the undue burden analysis “requires that courts

consider the burdens a law imposes on abortion access together with the benefits those laws

confer.” 136 S. Ct. at 2309. The Supreme Court has determined that, to prevail, a plaintiff bringing

a facial challenge must demonstrate that “in a large fraction of cases in which [the law] is relevant,

it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Casey, 505

U.S. at 895. The Court assumes the State of Arkansas’s interests are legitimate. The State of

Arkansas maintains that its interests are sufficiently strong to justify the burdens the D&E Mandate

would impose because, even with the Mandate, women would retain the ability to terminate

pregnancy at or after 14.0 weeks LMP.

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Defendants’ argument is premised on it being feasible for Dr. Hopkins and other Arkansas

abortion providers to utilize one of the three fetal-demise methods examined above: digoxin

injection, potassium chloride injection, or umbilical cord transection. For the reasons discussed

above, the Court concludes that on the current record these proposed methods are not feasible for

inducing fetal demise before the standard D&E procedure Dr. Hopkins and other Arkansas

abortion providers perform. Danforth, 428 U.S. at 79 (striking down an abortion method ban

where the alternatives proposed by the state were largely experimental and unavailable to women

in the state). Therefore, the Court concludes the D&E Mandate does not “confer[ ] benefits

sufficient to justify the burdens upon access that [it] imposes.” Whole Woman’s Health, 136 S.

Ct. at 2299.

In its prior decision this Court also stated:

[W]hether this Court weighs the asserted state interests against the effects of the

provisions or examines only the effects of the provisions, Dr. Hopkins has carried

his burden of demonstrating at this stage of the litigation that he is likely to prevail

on the merits and to establish that the challenged D&E Mandate creates an undue

burden for a large fraction of women for whom the D&E Mandate is an actual rather

than an irrelevant restriction. The record includes sufficient evidence from which

Dr. Hopkins satisfies his burden to present evidence of causation that the Mandate’s

requirements will lead to this effect. See Whole Woman’s Health, 136 S. Ct. at

2313.

(Dkt. No. 35, at 56). In other words, the Court also concludes that the D&E Mandate creates a

substantial obstacle based solely on consideration of burdens, not weighing benefits and burdens.

June Medical Services, 140 S. Ct. 2103 (plurality opinion); Whole Woman’s Health, 136 S. Ct. at

2309; Casey, 505 U.S. at 877 (plurality opinion).

Previously, this Court determined that “[t]he undue burden analysis requires this Court to

‘consider the burdens a law imposes on abortion access together with the benefits those laws

confer.’” Whole Woman’s Health, 136 S. Ct. at 2309. Based on the Court’s findings, the Court

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determined that, under the Whole Woman’s Health analysis, the D&E Mandate as challenged has

the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a

nonviable fetus for whom the Mandate is relevant. The Eighth Circuit remanded to this Court for

reconsideration in the light of Chief Justice Roberts’s concurring opinion in June Medical. June

Medical in the Eighth Circuit opinion is referring to June Medical Services. v. Russo, 140 S. Ct.

2013, 2020 WL 3492640 (2020)(plurality opinion). Based on the Court’s findings and its

reconsideration, the Court determines that the D&E Mandate has the effect of placing a substantial

obstacle in the path of a woman seeking an abortion of a nonviable fetus for whom the Mandate is

relevant under the June Medical analysis. Dr. Hopkins and LRFP are likely to prevail on the merits

of their claims that the D&E Mandate imposes a substantial and undue burden that is

unconstitutional.

Further, the Court rejects defendants’ other attempts to salvage the constitutionality of the

D&E Mandate. Specifically, for the following reasons, the Court rejects defendants’ arguments

premised on a scienter requirement in the D&E Mandate and the health exception in the D&E

Mandate.

a. Scienter Requirement

Defendants maintain that there is a scienter requirement in the D&E Mandate, relying on

language that prohibits a person from “purposely performing” a dismemberment abortion,

meaning that it is one’s “conscious object. . . to engage in conduct of that nature.” (Dkt. No. 23, at

9 n.4). Defendants essentially contend that this scienter requirement preserves access to D&E,

thereby rendering the D&E Mandate constitutional. The Court rejects this argument.

There is record evidence that physicians use digoxin to demonstrate a lack of mens rea and

thereby avoid liability under the federal and similar state partial-birth abortion bans. See 18 U.S.C.

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§ 1531(b)(1)(A) (prohibiting a person’s acting “deliberately and intentionally. . . for the purpose

of performing an overt act that the person knows will kill the. . . fetus.”); Ark. Code Ann. §20-16-

1202 (prohibiting a person’s acting “purposely. . . for the purpose of performing an overt act that

the person knows will kill the. . . fetus.”). From this, defendants maintain that Dr. Hopkins could

comply with the D&E Mandate by injecting women with digoxin before 18.0 weeks LMP,

regardless of the effectiveness of those injections because the injection alone would be enough to

negate the scienter requirement of the D&E Mandate.

The Court makes no determination on whether the D&E Mandate includes the type of

scienter requirement defendants claim.9 The Court also makes no determination regarding the

scope or contours of such a requirement.10 Even if the D&E Mandate does include the scienter

requirement defendants advocate there is no record evidence that demonstrates the safety or

reliability of injecting women with digoxin earlier than 18.0 weeks LMP. In other words,

concluding that the D&E Mandate has a scienter requirement would not resolve this dispute

regarding the safety and reliability of using digoxin in D&E procedures before 18.0 weeks LMP.

It also would not resolve the safety and feasibility issues associated with potassium chloride

injections. Those disputes remain and render digoxin injections before 18.0 weeks LMP and

9

The Court observes and agrees with Dr. Hopkins that, at a minimum, defendants’

arguments on this point are inconsistent. Although defendants contend the injection of digoxin

would satisfy the scienter requirement even if ineffective, defendants also argue that before

proceeding with D&E the physician would have to “employ other methods for ensuring the fetal

demise including cutting the umbilical cord.” (Dkt. No. 23, at 42; Dkt. No. 32, at 38-39).

10

The Court observes and agrees with Dr. Hopkins that defendants later argue that the

scienter requirement protects only a physician who proceeds with D&E not realizing that an

attempted demise has failed and not detecting a continuing heartbeat (Dkt. No. 23, at 42; Dkt. No.

32, at 40-41).

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potassium chloride injections not feasible alternatives on the record evidence before the Court,

even with a scienter requirement.

Moreover, such a scienter requirement also would not save the method of umbilical cord

transection for different reasons. Defendants maintain that the scienter requirement allows for

separation of fetal tissue if the physician is using forceps to try to grasp and transect the cord (Dkt.

No. 23, at 44-45). Dr. Hopkins convincingly argues that this ignores the fact that the experts relied

upon by both sides agree that a physician knows that in attempting to reach for the cord, he is

likely to grasp fetal tissue instead of or in addition to the cord (Dkt. No. 4, ¶ 35; Dkt. No. 5, ¶ 25e;

Dkt. No. 32-3, at 21). There is some evidence that the earlier in pregnancy a woman seeks care,

the more likely this is to happen (Dkt. No. 32-1, ¶ 15). Having this knowledge, Dr. Hopkins

maintains a physician cannot proceed to perform a D&E by umbilical transection and credibly

maintain that he did not purposely violate the D&E Mandate, given the law’s defined terms and

the inability to avoid prosecution through willful blindness. This Court, at this stage of the

proceedings, finds Dr. Hopkins arguments on this point persuasive (Dkt. No. 32, at 42-43).

b. Health Exception

The Court rejects defendants’ argument that “women who need [a D&E] for medical

reasons” would still be able to obtain one (Dkt. No. 23, at 45). There is no record evidence to

support this assertion. Instead, the record evidence supports Dr. Hopkins’s argument that the

health exception is narrow and does not justify defendants’ assertion. Dr. Hopkins maintains that

a woman who is already dilated and for whom digoxin has failed needs an abortion “for medical

reasons” but that care is not yet “necessary to avert” her “death” or “serious risk of substantial and

irreversible” physical harm (Dkt. No. 4, ¶ 25f). The D&E Mandate, even with its health exception,

would require that a woman be denied a D&E abortion until her health condition substantially and

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inevitably deteriorated (Dkt. No. 4, ¶ 25f). Further, as Dr. Hopkins argues, the health exception

also does not provide an exception for any woman for whom the other fetal demise methods offered

by defendants are difficult or impossible because of anatomy or medical contraindication (Dkt.

No. 32, at 42). Nothing in the record contradicts Dr. Hopkins on these points. For these reasons,

the health exception does not save the D&E Mandate at this stage of the proceeding.

4. Women Effected

To sustain a facial challenge and grant a preliminary injunction, this Court must find that

the challenged D&E Mandate is an undue burden for a large fraction of women for whom the

provision is an actual, rather than an irrelevant, restriction. The Court makes that finding here and

rejects defendants’ argument that the D&E Mandate is not unconstitutional because it “affects only

a small fraction of abortions” (Dkt. No. 23, at 29). Dr. Hopkins maintains that the D&E Mandate

impacts all D&Es in Arkansas (Dkt. No. 4, ¶¶ 14, 16). Under the D&E Mandate, the only D&E

that would be legal is one in which a physician successfully induces fetal demise through an

additional procedure prior to starting the evacuation phase of D&E (Dkt. No. 3, at 7). Dr. Hopkins

claims that, because it is not feasible or safe to induce fetal demise through an additional procedure

in every patient prior to starting the evacuation phase of D&E, providers would not start any D&E

because they may not be able to complete the procedure without violating the D&E Mandate (Dkt.

No. 3, at 7).

LRFP, along with Dr. Hopkins, provides care to women from throughout Arkansas and

from other states (Dkt. No. 6, ¶ 5). Dr. Hopkins is aware of no physicians, other than those with

whom he practices at LRFP, who provide second trimester abortion care (Dkt. No. 32-2, ¶ 2). In

other words, there are no other providers in Arkansas that could fill this gap in care. There is

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record evidence to support that Dr. Hopkins and LRFP will no longer continue to provide this

abortion care if the D&E Mandate takes effect.

The Court makes the following findings of fact with respect to the fraction of women

effected by the D&E Mandate. LRFP is the only abortion care provider for women seeking

abortion after 10.0 weeks LMP in Arkansas (Dkt. No. 5, ¶ 6; Dkt. No. 6, ¶ 2). Each year, LRFP

provides approximately 3,000 abortions, of which approximately 20% occur during the second

trimester (Dkt. No. 6, ¶ 16). Standard D&E accounts for 100% of second trimester abortions

reported in Arkansas in 2015 (Dkt. No. 5, ¶ 17). Standard D&E accounts for 95% of all second

trimester abortions nationally (Dkt. No. 4, ¶¶ 14-16; Dkt. No. 5, ¶ 17). The vast majority of

standard D&Es currently occur from 14.0 to 18.0 weeks LMP (Dkt. No. 5, ¶¶ 25-26). Of the 638

D&Es reported in Arkansas in 2015, 407 or 64% took place during these earliest weeks of the

second trimester (Dkt. No. 6, ¶ 17).

This Court determines that, if the Court considers the D&E Mandate relevant for Arkansas

women who select standard D&E during the early weeks of the second trimester, it creates an

undue burden for a large fraction of these women. In Arkansas in 2015, 407 women had a standard

D&E from 14.0 to 18.0 weeks LMP. The D&E Mandate would unduly burden 100% of these

women because, if the D&E Mandate goes into effect, standard D&E abortions will no longer be

performed in Arkansas due to ethical and legal concerns regarding compliance with the law,

thereby rendering abortions essentially unavailable in the State of Arkansas starting at 14.0 weeks

LMP.

This Court determines that, even if the Court considers the D&E Mandate relevant for

Arkansas women who select standard D&E throughout the second trimester, it creates an undue

burden for a large fraction of these women. In Arkansas in 2015, 638 women selected standard

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D&E. If the D&E Mandate goes into effect, standard D&E abortions will no longer be performed

in Arkansas due to ethical and legal concerns regarding compliance with the law, thereby rendering

abortions essentially unavailable in the State of Arkansas starting at 14.0 weeks LMP. In that case,

100% or all 638 of these women will experience a substantial obstacle to abortion.11

The Court determines that it is not appropriate to use as the denominator all Arkansas

women who obtained second trimester abortion; the D&E Mandate is only relevant for Arkansas

women who elected to have the standard D&E. Regardless, even if the Court considers the D&E

Mandate relevant for Arkansas women who select abortion throughout the second trimester, these

numbers do not change. In 2015, no Arkansas woman elected to have an induction abortion; all

Arkansas women elected to have a standard D&E. 638 women selected standard D&E. If the

D&E Mandate goes into effect, standard D&E abortions will no longer be performed in Arkansas

due to ethical and legal concerns regarding compliance with the law, thereby rendering abortions

essentially unavailable in the State of Arkansas starting at 14.0 weeks LMP. In that case, 100%

or all 638 of these women will experience a substantial obstacle to abortion.

Many patients of LRFP are low-income. Approximately 30 to 40% of patients obtain

financial assistance to pay for their abortion care (Dkt. No. 6, ¶ 5). Many patients of LRFP struggle

in their lives and in their efforts to access the medical care they need (Dkt. No. 6, ¶ 5). The time

and effort it takes to make the necessary plans to access medical care cause anxiety and stress and

cause financial pressure for women seeking care at LRFP (Dkt. No. 6, ¶ 8). If LRFP no longer

11

Even if this Court were to take the position that the D&E Mandate would impact only

standard D&Es performed from 14.0 to 18.0 weeks LMP, 407 of the 638 women still would be

impacted. 64% of these 638 women would experience a substantial obstacle to abortion. The

Court notes that these figures would apply if there is a scienter requirement in the D&E Mandate;

defendants maintain that, after 18.0 weeks LMP in Arkansas, the digoxin that is administered

would be sufficient to comply with a scienter requirement in the D&E Mandate.

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performed abortions in Arkansas after 14.0 weeks LMP, financial and logistical issues would

burden 30 to 40 % of these women, or 191 to 255, in finding any alternate care out of state. These

findings, coupled with the finding that abortions would essentially be unavailable in the State of

Arkansas starting at 14.0 weeks LMP if the D&E Mandate takes effect, bolster this Court’s

conclusion that if the D&E Mandate takes effect a large fraction of Arkansas women who select

abortion throughout the second trimester would experience a substantial obstacle to abortion.

To the extent defendants maintain induction abortion would be an available abortion option

in Arkansas if the D&E Mandate were to take effect, the only record evidence before the Court is

that there were no induction abortions reported in Arkansas in 2015 (Dkt. No. 5, ¶ 12). Further,

an induction abortion requires a hospital or hospital-like facility; it is not performed in a second-

trimester outpatient clinic. If hospitals in Arkansas are providing any abortion care, it is in only

rare circumstances (Dkt. No. 5, ¶ 6). Induction abortion can take over 24 hours, and for some

patients, this procedure may span multiple days. This procedure entails labor, which can involve

pain requiring significant medication or anesthesia, and which may be psychologically challenging

for some women (Dkt. No. 4, ¶ 14; Dkt. No. 5, ¶ 12). Because induction involves an in-patient

stay, requiring up to three days of hospitalization, as opposed to an out-patient procedure, there is

an enormous cost difference between induction and the out-patient standard D&E procedure (Dkt.

No. 4, ¶ 14). In some women, an induction abortion fails, and the woman needs intervention in

the form of D&E for her safety. This is infrequent, but this does occur (Dkt. No. 4, ¶ 15; Dkt. No.

5, ¶ 12). In approximately 5% to 10% of induction abortions, the woman must undergo an

additional surgical procedure to remove a retained placenta. Induction abortion also can cause

uterine rupture, which is rare but can be life threatening and can be of particular concern for women

who have had multiple previous cesarean deliveries (Dkt. No. 4, ¶ 15; Dkt. No. 25-4, ¶ 8).

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Controlling precedent does not require the Court to consider this method, but even if it did, for

these reasons, the Court rejects induction abortion as a viable alternative second trimester option

in Arkansas.

2. Irreparable Harm

Enforcement of the D&E Mandate will inflict irreparable harm on Dr. Hopkins, LRFP, and

the fraction of women for whom the Mandate is relevant as there is no adequate remedy at law. It

is well-settled that the inability to exercise a constitutional right constitutes irreparable harm. See

Planned Parenthood of Minn., Inc. v. Citizens for Cmty. Action, 558 F.2d 861, 867 (8th Cir. 1977)

(“Planned Parenthood’s showing that the ordinance interfered with the exercise of its constitutional

rights and the rights of its patients supports a finding of irreparable injury.”) (citations omitted);

accord Kirkeby v. Furness, 52 F.3d 772, 775 (8th Cir. 1995) (quoting Elrod v. Burns, 427 U.S.

347, 373 (1976)).

In the absence of a temporary restraining order, the fraction of women for whom the

Mandate is relevant would immediately lose the right to obtain a pre-viability abortion anywhere

in the State of Arkansas after 14.0 weeks LMP. Therefore, the second requirement for an order

temporarily restraining enforcement of the D&E Mandate is satisfied.

3. Balancing Of Harms

In the absence of an injunction, the fraction of women for whom the Mandate is relevant

would immediately lose the right to obtain a pre-viability abortion anywhere in the State of

Arkansas after 14.0 weeks LMP if the D&E Mandate were allowed to take effect. Whereas, if an

injunction issues, a likely unconstitutional law passed by Arkansas legislators will not be enforced.

The threatened harm to Dr. Hopkins and the fraction of women for whom the Mandate is relevant

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clearly outweighs whatever damage or harm a proposed temporary restraining order may cause the

State of Arkansas.

4. Public Interest

It is in the public interest to preserve the status quo and to give the Court an opportunity to

evaluate fully the lawfulness of the D&E Mandate without subjecting Dr. Hopkins, LRFP, or their

patients, or the public to any of the law’s potential harms.

The Court notes that the Eleventh Amendment bars relief against an allegedly

unconstitutional provision if the named state officials do not have the authority to enforce it. U.S.

Const. amend XI; see also Hutchinson, 803 F.3d at 957-58. Therefore, the temporary restraining

order does not extend to the private civil-enforcement provisions under the D&E Mandate.

It is therefore ordered that Dr. Hopkins and LRFP’s motion for a temporary restraining

order is granted, and defendants are temporarily restrained from enforcing the provisions of H.B.

1032 referred to here as the D&E Mandate..

B. Medical Records Mandate (Counts III and IV, H.B. 1434)

Dr. Hopkins and LRFP seek a temporary restraining order based on count three, which

alleges that the Medical Records Mandate violates the Due Process Clause of the United States

Constitution by placing an undue burden on Dr. Hopkins and LRFP’s patients’ right to liberty and

privacy, and count four, which alleges that the Medical Records Mandate violates the Due Process

Clause due to its vagueness.

The Medical Records Mandate subjects physicians to civil liability and criminal penalties

for violating the law. It requires:

(b) Before performing an abortion, the physician or other person who is performing

the abortion shall:

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(1) (A) Ask the pregnant woman if she knows the sex of the unborn

child.

(B) If the pregnant woman knows the sex of the unborn child, the

physician or other person who is performing the abortion shall

inform the pregnant woman of the prohibition of abortion as a

method of sex selection for children; and

(2) (A) Request the medical records of the pregnant woman relating

directly to the entire pregnancy history of the woman.

(B) An abortion shall not be performed until reasonable time and

effort is spent to obtain the medical records of the pregnant woman

as described in subdivision (b)(2)(A) of this section.

(c) If this section is held invalid as applied to the period of pregnancy prior to

viability, then the section shall remain applicable to the period of pregnancy

subsequent to viability.

Ark. Code Ann. § 20-16-1904.

A physician who “knowingly performs or attempts to perform an abortion” prohibited by

this law “is guilty of a Class A misdemeanor” under Arkansas law. Ark. Code Ann. § 20-16-1905.

This includes punishment of up to one year in jail, a fine, or both. Ark. Code Ann. §§ 5-4-201, 5-

4-401. A physician who violates the law also is subject to civil penalties and professional

sanctions, including but not limited to suspension or revocation of his or her medical license for

“unprofessional conduct” by the Arkansas State Medical Board. Ark. Code Ann. § 20-16-1906.

Dr. Hopkins and LRFP do not challenge the requirement that a physician not perform an

abortion knowing that the woman is seeking the abortion solely on the basis of the sex of the

embryo or fetus. Ark. Code Ann. § 20-16-1904(a), (b)(1). Dr. Hopkins is unaware of such a case

in Arkansas (Dkt. No. 5, ¶ 30; Dkt. No. 6, ¶ 22). Defendants do not dispute that this type of

challenge solely to the Medical Records Mandate is permissible.12

12

When confronting a constitutional flaw in a statute, a federal court must “try not to

nullify more of a legislature’s work than is necessary.” Ayotte, 546 U.S. at 329. It is preferable

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1. Likelihood Of Success On The Merits: Due Process Clause

a. Applicable Law

To determine whether Dr. Hopkins and LRFP are likely to succeed on their challenge to

the Medical Records Mandate under the Due Process Clause, this Court applies the undue burden

standard. June Medical Services, 140 S. Ct. 2103 (plurality opinion); Whole Woman’s Health, 136

S. Ct. at 2309; Casey, 505 U.S. at 877 (plurality opinion).

The Supreme Court has determined that, to prevail, a plaintiff bringing a facial challenge

must demonstrate that “in a large fraction of cases in which [the law] is relevant, it will operate as

a substantial obstacle to a woman’s choice to undergo an abortion.” Casey, 505 U.S. at 895. To

sustain a facial challenge and grant a temporary restraining order, this Court must make a finding

that the Medical Records Mandate is an undue burden for a large fraction of women for whom the

law is relevant.

b. Analysis Of The Medical Records Mandate

1. State’s Interest

The Arkansas legislature included “legislative findings and purpose” when enacting this

law. Ark. Code Ann. § 20-16-1902. The purpose of the law is to “[b]an abortions performed

solely for reasons of sex-selection” and to “[p]rotect women from the risks inherent in late-term

“to enjoin only the unconstitutional applications of a statute while leaving other applications in

force, or to sever its problematic portions while leaving the remainder intact.” 546 U.S. at 329

(citations omitted). Severability is a matter of state law. See Russell v. Burris, 146 F.3d 563, 573

(8th Cir. 1998). Under Arkansas law, “an act may be unconstitutional in part and yet be valid as

to the remainder.” Ex Parte Levy, 163 S.W.2d 529 (1942). In determining whether a

constitutionally invalid portion of a legislative enactment is fatal to the entire legislation, the

Supreme Court of Arkansas looks to “(1) whether a single purpose is meant to be accomplished

by the act; and (2) whether the sections of the act are interrelated and dependent upon each other.”

U.S. Term Limits, Inc. v. Hill, 872 S.W.2d 349, 357 (1994). Applying this standard, the Court

satisfies itself that this type of challenge solely to the Medical Records Mandate of the statute is

acceptable.

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abortions.” Ark. Code Ann. § 20-16-1902(b). Dr. Hopkins and LRFP do not seek a temporary

restraining order on or challenge enforcement of the law with respect to the ban on abortions

performed solely for reasons of sex-selection. Dr. Hopkins and LRFP do seek a temporary

restraining order challenging enforcement of the Medical Records Mandate.

With respect to maternal health, the Arkansas legislature made the following findings:

(A) It is undisputed that abortion risks to maternal health increase as gestation increases.

(B) The risk of death for pregnant women at eight (8) weeks’ gestation is one (1) death per

one million (1,000,000) and rises to:

(i) One (1) death per twenty-nine thousand (29,000) abortions between sixteen (16)

and twenty (20) weeks’ gestation, and

(ii) One (1) death per eleven thousand (11,000) abortions at twenty-one (21) weeks’

gestation or later;

(C) A woman is thirty-five (35) times more likely to die from an abortion performed at

twenty (20) weeks’ gestation than she would have been had the abortions been performed

in the first trimester;

(D) A woman is ninety-one (91) times more likely to die from an abortion performed at

twenty-one (21) weeks’ gestation or later than she would have been had the abortion been

performed in the first trimester; and

(E) Because abortions performed solely based on the sex of a child are generally performed

later in pregnancy, women undergoing these abortions are unnecessarily exposed to

increased health risks, including an exponentially higher risk of death.

Ark. Code Ann. § 20-16-1902(a)(2).

2. Burdens Imposed On Women

Defendants maintain that the Medical Records Mandate applies only in “situations where

the woman knows the sex” of the embryo or fetus (Dkt. No. 23, at 48-49). When examining the

meaning of a criminal statute, the Supreme Court of Arkansas applies these principles:

We construe criminal statutes strictly, resolving any doubts in favor of the

defendant. Hagar v. State, 341 Ark. 633 19 S.W.3d 16 (2000). We also adhere to

the basic rule of statutory construction, which is to give effect to the intent of the

legislature. Id. We construe the statute just as it reads, giving the words their

ordinary and usually accepted meaning in common language, and if the language

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of the statute is plain and unambiguous, and conveys a clear and definite meaning,

there is no occasion to resort to rules of statutory interpretation. Id. Additionally,

in construing any statute, we place it beside other statutes relevant to the subject

matter in question and ascribe meaning and effect to be derived from the whole. Id.

Short v. State, 79 S.W.3d 313, 495 (Ark. 2002).

The Supreme Court of Arkansas also explained:

It is a well-settled principle of statutory construction that statutes (will) receive a

common-sense construction, and, where one word has been erroneously used for

another, or a word omitted, and the context affords the means of correction, the

proper word will be deemed substituted or supplied. This is but making the strict

letter of the statute yield to the obvious intent of the Legislature.

Henderson v. Russell, 589 S.W.2d 565, 568 (Ark. 1979) (citations omitted).

The Supreme Court of Arkansas stated:

Statutes will not be defeated on account of mistakes, errors or omissions, provided

the intent of the General Assembly can be collected from the whole statute.

Hazelrigg v. Board of Penitentiary Commissioners, 184 Ark. 154, 40 S.W.2d 998

(1931). We have often held that the title of an act is not controlling in its

construction even though it is a matter to be considered in determining the meaning

of a statute which is otherwise ambiguous. Matthews v. Byrd, 187 Ark. 458, 60

S.W.2d 909 (1933). Likewise, the language used in the title of an act is not

controlling but may play a part in explaining ambiguities in the body of the statute.

City of Conway v. Summers, 176 Ark. 796, 4 S.W.2d 19 (1928). We examine the

title of an act only for the purpose of shedding light on the intent of the General

Assembly. Lyerley v. Manila School District No. 15, 214 Ark. 245, 215 S.W.2d

733 (1948).

Henderson, 589 S.W.2d at 568.

In Henderson, acknowledging that controlling law, the Supreme Court of Arkansas

reviewed language to determine if an emergency had been defined by the Arkansas legislature

such that the emergency clause was effective, accelerating the effective date of the law. The court

examined the following:

Where County Officers must have Deputies and employees necessary to carry out

the essential activities of County Government, it is h

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