Hopkins v. Jegley

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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

PRELIMINARY INJUNCTION 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 a second preliminary injunction and/or a temporary

restraining order (Dkt. No. 73). Defendants responded in opposition to the motion for a second

preliminary injunction (Dkt. No. 92). Plaintiffs replied (Dkt. No. 93). Also before the Court is

defendants’ motion to strike plaintiffs’ motion for a second preliminary injunction and request for

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expedited consideration (Dkt. No. 75). Plaintiffs responded in opposition to the motion to strike

(Dkt. No. 89). The Court conducted a hearing on the pending motions on January 4, 2021, at

which counsel presented argument only to the Court (Dkt. No. 94).

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

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

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). Neither party asked this Court or the United States

Court of Appeals for the Eighth Circuit for a stay while the appeal was pending (Dkt. No.

91). After three years, and based on intervening decisions issued by the United States Supreme

Court, 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.

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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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

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. In an Order dated July 28, 2017, the Court granted Dr. Hopkins’s motion for

a preliminary injunction (Dkt. Nos. 35, 36)

Prior to the Eighth Circuit’s mandate issuing, Dr. Hopkins and LRFP moved for a

temporary restraining order based on the same findings and this Court’s legal conclusions granting

the 2017 preliminary injunction (Dkt. No. 69, at 3). Defendants responded in opposition (Dkt. No.

78). The Court conducted a hearing (Dkt. No. 91). The Court granted Dr. Hopkins and LRFP’s

motion for temporary restraining order and temporarily enjoined 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 motion to strike, could be determined (Dkt. No. 83).

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

denies defendants’ motion to strike and grants plaintiffs’ motion for a second preliminary

injunction order.

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II. Mandate Rule

Defendants request that this Court strike plaintiffs’ “proffered declarations and the entirety

of the motion [for a second preliminary injunction] that relies on it” arguing they are “an improper

attempt to circumvent the Eighth Circuit’s limited remand by revamping the factual record.” (Dkt.

No. 75, at 1). Defendants cite the mandate rule in support of this argument. Plaintiffs oppose the

motion to strike, asserting that the Eighth Circuit in ruling on an interlocutory appeal of a

preliminary injunction altered the governing undue burden standard based on an intervening

Supreme Court decision issued during the pendency of the interlocutory appeal but did not limit

the scope of further proceedings in this Court (Dkt. No. 89, at 1). Plaintiffs point out that the

Eighth Circuit’s judgment is that “the cause is remanded to the district court for proceedings

consistent with the opinion of this court.” (Id., at 2). Plaintiffs also argue that, “in light of the

Eighth Circuit’s changes to a central legal standard in this case, other intervening legal decisions,

and the still-preliminary stage of the case, it would be fundamentally unfair and improper to limit

Plaintiffs to the evidentiary submissions they made at the very start of the case in 2017.” (Id., at

1).

The mandate rule generally requires a district court to comply strictly with the mandate

rendered by the reviewing court. See In re Tri-State Financial, LLC, 885 F.3d 528, 533 (8th Cir.

2018); Grass v. Reitz, 749 F.3d 738, 741-42 (8th Cir. 2014); 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. 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

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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)).

None of the cases cited by defendants in support of their argument involve remand after

the interlocutory appeal of a preliminary injunction; most involve remand and application of the

mandate rule after final judgments previously entered by the trial court. See Briggs v. Pa. R. Co.,

334 U.S. 304 (1948) (mandate after appeal of judgment after trial); Children’s Broadcasting Corp.

v. Walt Disney Co., 357 F.3d 860, 870 (8th Cir. 2004) (mandate after appeal of judgment after

trial); In re Mid Am. Energy Co., 286 F.3d 483 (8th Cir. 2002) (mandate after appeal of summary

judgment order); Duncan Energy Co. v. U.S. Forest Serv., 109 F.3d 497 (8th Cir. 1997) (mandate

after appeal of summary judgment order); United States v. Bartsh, 69 F.3d 864 (8th Cir. 1995)

(mandate after appeal of judgment and commitment from guilty plea and sentencing); United

States v. Cornelius, 968 F.2d 703 (8th Cir. 1992) (mandate after appeal of judgment and

commitment from conviction at trial and sentencing); Bethea v. Levi Strauss & Co., 916 F.2d 453

(8th Cir. 1990) (mandate after appeal of judgment after trial).

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In regard to the imposition of an injunction that is in the first instance subject to the mandate

rule, courts have determined that, under certain circumstances, the mandate rule does not bar courts

from consideration of the status of the injunction, given the unique nature of injunctive relief and

the equitable considerations that inform it. See Americans United For Separation of Church &

State v. Prison Fellowship Ministries, 555 F. Supp. 2d 988, 991 (S.D. Iowa 2008) (examining

whether the mandate rule barred the lower court from dissolving an injunction, the grant of which

had been ordered or approved of by the appeal); see also Barrett v. Claycomb, 936 F. Supp. 2d

1099, 1101-02 (W.D. Mo. 2013) (after interlocutory appeal vacating preliminary injunction

entered on facial challenge, district court considered motion for preliminary injunction based on

as-applied challenge and offered parties opportunity to present additional evidence). “There is a

fundamental difference. . . between the granting of retrospective relief and the granting of

prospective relief.” Americans United For Separation of Church & State, 555 F. Supp. at 991

(quoting Amado v. Microsoft Corp., 517 F.3d 1353, 1360 (Fed. Cir. 2008)). “Due to the equitable

nature of injunctive relief, district courts have wide discretion to determine under what

circumstances the grant of injunctive relief is appropriate, and under what circumstances the

modification or dissolution of that injunction is warranted.” Id. (internal citations omitted).

The last time this Court examined the facts of this dispute was over three years ago, in July

2017 (Dkt. Nos. 35; 36). Evaluating the propriety of any injunctive relief, but especially this type

of injunctive relief, depends on the facts and circumstances that exist at the time the relief is

requested. Arkansas requires the collection of data regarding abortions performed in the state.

Several more years of data are now available for this Court’s review in resolving this dispute. The

Court is reluctant to foreclose consideration of that data and other facts that have developed and

changed during the three years since this Court last undertook its review.

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The Supreme Court has issued decisions the Eighth Circuit instructs bear directly on these

disputes; those were not controlling law at the time the parties filed this dispute, the parties briefed

this dispute, or the Court ruled on this dispute at the preliminary injunction stage in July 2017. In

addition, many more district courts have examined these issues and permitted parties to develop

factual and legal arguments related to similar disputes in other states since this Court last examined

the merits. Given the language of the Eighth Circuit’s mandate and the preliminary stage of this

litigation, both sides of this dispute should be permitted to present, not foreclosed from presenting,

similar factual and legal arguments to this Court, if they are inclined to do so. For all of these

reasons, the Court will consider the pending motion for a second preliminary injunction and will

consider the new factual materials presented for consideration by plaintiffs and defendants, along

with the changed law. The Court grants defendants’ request for expedited consideration of the

motion; the Court denies defendants’ motion to strike (Dkt. No. 75).2

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 and Order granting temporary restraining order after remand

(Dkt. Nos. 35, 36, 83). 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 Orders, the findings of fact in this Order control. Further, the Court will address these and

additional factual matters in the context of its discussion of the legal issues; the Court makes the

findings of fact addressed in that context as well. In 2017, plaintiffs objected to the Court’s

2

Even if the Court were confined to the factual record presented by the parties in 2017

with respect to reconsideration in the light of June Medical and Box, the Court would reach the

same result and grant preliminary injunctive relief enjoining the enforcement of the four

challenged Mandates. The Court essentially did so in the temporary restraining order entered after

remand in this matter (Dkt. No. 83).

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consideration of several of defendants’ exhibits submitted in 2017 (Dkt. No. 32, at 19-23). In

2020, plaintiffs reassert those objections and raise objections to many of the articles and other

documents defendants attach to their 2020 opposition brief (Dkt. No. 93, at 12-15). The Court

takes plaintiffs’ objection under advisement at this preliminary stage of the litigation. 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

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. Early 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).

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6. Willie J. Parker, M.D., M.P.H., M.Sc., is a board-certified obstetrician-

gynecologist with subspecialty training in family planning, contraception, and abortion (Dkt. No.

73-2, ¶ 1). He has 30 years of experience in obstetrics and gynecology, including as the Director

of the Division of Family Planning and Preventive Services at the Washington Hospital Center in

Washington, D.C.; as the Medical Director of Planned Parenthood of Metropolitan Washington,

overseeing clinical and laboratory services at five health care centers in Maryland, Virginia, and

the District of Columbia; and as an independent abortion provider at outpatient abortion clinics in

Alabama, Arkansas, Georgia, Illinois, Mississippi, Nevada, and Washington (Id.). Dr. Parker

provides a declaration based on his personal knowledge and offers expert opinions as an

obstetrician-gynecologist and abortion provider, based on his education, training, professional

experience, and review of relevant medical literature (Dkt. No. 73-2, ¶ 7).

7. Dr. Parker serves as the interim medical director at LRFP (Dkt. No. 73-2, ¶ 2). He

became licensed to practice in Arkansas in March 2020, began providing abortion services at LRFP

in April 2020, and became interim medical director on August 14, 2020 (Id.). In that role, Dr.

Parker oversees clinical practice, ensures the medical services provided at LRFP comply with the

standard of care, and supervises others in providing a range of reproductive health care services,

including abortion. He is currently the primary provider of abortion at LRFP. He provides

medication abortion up to 10.0 weeks LMP and procedural abortion, also referred to as “surgical

abortion,” up to 21.6 weeks LMP (Id.).3

3

The terms “surgical abortion,” “procedural abortion,” and “abortion procedure” are used

interchangeably in modern medicine. Although many in the medical field still use the term

“surgical abortion” to refer to all abortions that use instruments rather than medications, aspiration

and D&E abortions are more accurately referred to as “procedural abortions” or “abortion

procedures,” because neither entail what is commonly considered to be a “surgery,” i.e., an incision

into bodily membranes. See Am. Coll. Of Obstetrics & Gynecology (“ACOG”), Definition of

“Procedures” Related to Obstetrics and Gynecology, ACOG (Jan. 2018),

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8. Dr. Parker agrees with Dr. Hopkins’ descriptions of abortion care, the restrictions

the challenged Mandates place on abortion practice, and the impact the restrictions would have on

one’s ability to provide safe and confidential abortion care in Arkansas (Dkt. No. 73-2, ¶ 6).

9. There are only two outpatient providers of abortion care in Arkansas: (1) Planned

Parenthood Great Plains provides only medication abortion in part of the first trimester through

10.0 weeks LMP in Little Rock and Fayetteville, although there are no abortions currently being

provided at the Fayetteville location, and (2) LRFP provides early medication abortion through

10.0 weeks LMP as well as procedural abortions through 21.6 weeks LMP (Dkt. Nos. 82, ¶ 61;

73-2, ¶ 9; Dkt. No. 73-2, ¶¶ 10-12).

10. According to Lori Williams, M.S.N., A.P.R.N., who has worked at LRFP since

2004 and has been the Clinical Director at LRFP since 2007, LRFP has operated an abortion clinic

in Little Rock since 1973 and has been licensed by the State of Arkansas as an abortion provider

since licensing began in the mid-1980s (Dkt. No. 73-3, ¶¶ 4, 8). LRFP also offers health care

services that are similar to abortion care for patients whose pregnancies end in miscarriage as well

as basic gynecological care, including pap smears, STD testing, and contraceptive counseling and

services (Dkt. No. 73-3, ¶ 8).

11. As Clinical Director of LRFP, Ms. Williams is responsible for all aspects of day-

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

care professionals, supervising the staff, maintaining policies and procedures, interacting with the

Arkansas Department of Health (“ADH”) licensing personnel when they visit, inspect, or request

https://www.acog.org/clinical-information/policy-and-position-statements/position-

statements/2018/definition-of-procedures-related-to-obstetrics-and-gynecology. (Dkt. No. 73-2,

at 2 n.1). The Court will refer to aspiration and D&E abortions collectively as “procedural

abortions” or “abortion procedures” in this Order, unless specifically quoting source material.

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information, and ensuring that LRFP complies with all laws and regulations. She also interacts

with patients on a daily basis, including by participating in patient counseling (Dkt. No. 73-3, ¶ 6).

12. LRFP is the only entity providing abortions after 10.0 weeks LMP and the only

entity providing procedural abortion in the entire state (Dkt. No. 73-2, ¶ 9; 73-3, ¶ 13).

13. D&E procedural abortions are the only outpatient abortion procedure available

throughout the second trimester in Arkansas (Dkt. No. 73-2, ¶ 4a).

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

circumstances (Dkt. No. 5, ¶ 6).

15. 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).

16. 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; Dkt. No. 73-2, ¶ 11; Dkt. No.

73-3, ¶ 15). In the last few years, the mandatory delay between state-mandated counseling and

care has steadily increased from 24 hours, to 48 hours in 2015, to 72 hours within the last year

(Dkt. No. 73-3, ¶ 15).

17. 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).

18. 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).

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19. 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; Dkt. No. 73-3, ¶ 15). If a patient receives

medication for sedation during the procedure, the patient must consider whether she has someone

to accompany her to the clinic, and sedation is required for almost every patient obtaining an

abortion at LRFP after 13 weeks (Dkt. No. 73-3, ¶ 15).

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

(Dkt. No. 5, at 37; Dkt. No. 6, ¶ 5; Dkt. No. 73-3, ¶ 18).

21. Many patients of LRFP are low-income (Dkt. No. 73-2, ¶ 19; Dkt. No. 73-3, ¶ 18).

22. As of 2017, approximately 30 to 40% of patients obtained financial assistance to

pay for their abortion care (Dkt. No. 6, ¶ 5).

23. According to Ms. Williams, the number of patients needing financial assistance to

cover abortion care or associated costs has increased over time – and increased dramatically over

the last several months – due to the additional financial strain COVID-19 has put on LRFP patients

(Dkt. No. 73-3, ¶ 18).

24. As of late 2020, approximately 60% of LRFP patients met the criteria of being at

or below 110% of the federal poverty guidelines so as to qualify for some funding from the

National Abortion Federation (“NAF”) to cover part of the costs of abortion care (Dkt. No. 73-3,

¶ 18). The current Arkansas federal poverty level for a three-person household is an annual income

of $21,720 (Id.).

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

medical care they need (Dkt. No. 6, ¶ 5; Dkt. No. 73-3, ¶ 21).

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26. 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; women routinely report that they cannot risk their employment and confidentiality by

taking 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. The stress involved is

compounded by the fact that making these arrangements often involves family members or other

individuals, which means the patient risks having to disclose the reasons for her travel and

appointments – a disclosure record evidence indicates many patients are desperate not to make

(Dkt. No. 6, ¶ 8; Dkt. No. 73-2, ¶¶ 19-20; Dkt. No. 73-3, ¶ 19-20).

27. 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; Dkt. No. 73-2, ¶ 28; Dkt. No. 73-3, ¶ 9).

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

appointments to seek abortion care (Dkt. No. 6, ¶ 8; Dkt. No. 73-3, ¶¶ 19-20).

29. Making the necessary arrangements and raising funds for travel and other costs

associated with seeking care at LRFP can also delay patients’ access to care (Dkt. No. 73-3, ¶ 21).

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Ms. Williams regularly has conversations with LRFP patients as they schedule and reschedule

their appointments, as patients try to get time off of work, arrange for childcare, and obtain funds

to cover the costs of abortion care. Many of LRFP patients face logistical delays in obtaining

abortions, including raising the money necessary to pay for a procedure, travel, issues with

unsupportive or abusive partners, and a lack of access to medical care to confirm the pregnancy

(Dkt. No. 73-3, ¶ 21).

30. Arkansas is a relatively large state geographically where transportation can present

a challenge for LRFP patients (Dkt. No. 73-3, ¶ 21). Fayetteville, where many LRFP patients live,

is approximately 400 miles roundtrip from Little Rock (Id.). Arkansas also has rural parts of the

state where there are few public-transportation options and rural residents often live far away from

health care providers (Id.).

31. The 72-hour delay and extra-trip requirement required by current Arkansas law

increases the financial, emotional, and logistical burdens LRFP patients face (Dkt. No. 73-3, ¶ 22).

Compliance with the requirement, according to Ms. Williams, means that LRFP patients may have

to spend more money to stay overnight, travel multiple times back and forth to the clinic, miss

more days of work or school, and/or pay for more childcare (Id.). It also delays patients’

procedures because LRFP and patients must find time for the procedure when schedules match

and when patients can make all the necessary arrangements (Id.).

32. Delaying care results in physical and emotional consequences for patients who have

decided to end a pregnancy, especially for those patients who are sick or experiencing pregnancy

complications (Dkt. No. 73-3, ¶ 23).

33. Delaying care can push a patient past the point in pregnancy at which she can

receive a medication abortion, requiring a patient who prefers that method to have a procedure

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(Dkt. No. 6, ¶ 13; Dkt. No. 73-2, ¶¶ 30-31; Dkt. No. 73-3, ¶ 23). Delay can push a patient from a

first-trimester to a second-trimester procedure or from a one-day procedure in the second trimester

to a two-day procedure. Delay can also push a patient beyond the point at which she can obtain

an abortion at LRFP and, therefore, in Arkansas, which means she may well not be able to access

abortion at all. Because abortion care becomes more complex as pregnancy advances, it also

becomes more expensive. Thus, delay also means that patients pay more for the procedure itself

(Id.).

34. Providers of abortion care, particularly in the second trimester, are scarce,

especially in the American South, and the cost of care, which is already very difficult for current

LRFP patients to meet, rises as pregnancy advances (Dkt. No. 73-2, ¶ 29).

35. For patients unable to access abortion care at LRFP, there are few options, all of

which require substantial travel. While medication abortion is available at another clinic in the

state, without LRFP, a patient seeking abortion care after 10.0 weeks LMP would be forced to

travel out of state. To Ms. Williams’ knowledge, the nearest clinics providing abortion care up to

21.6 weeks LMP is in Granite City, Illinois, and Dallas, Texas, both of which are approximately

600 to 700 miles round trip from Little Rock, Arkansas. To Ms. Williams’ knowledge, the next

nearest clinic currently providing abortion procedures is in Memphis, Tennessee, where abortion

care is available up to 19.6 weeks LMP. Memphis is approximately 300 miles roundtrip from

Little Rock, and 600 miles round trip from Fayetteville, where many current patients of LRFP live.

Some women will be unable to make these substantial trips for an abortion procedure and will be

forced to carry a pregnancy to term against their will (Dkt. No. 73-3, ¶ 25).

36. Delay-related concerns identified by the 2018 National Academies consensus-study

exist in Arkansas, even setting aside the potential for enforcement of the Mandates challenged in

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this lawsuit, because of existing Arkansas laws that require women seeking abortion care to wait

72 hours after receiving state-mandated counseling in-person before returning to the clinic for the

procedure and given that LRFP is the only clinic in Arkansas that provides abortion procedures,

as opposed to medication abortion (Dkt. No. 73-1, ¶ 11).

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

No. 4,4 ¶ 7).

38. 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; Dkt. No. 73-1, ¶ 9).

39. A 2018 consensus-study report by the National Academies of Sciences,

Engineering, and Medicine concluded that the clinical evidence makes clear that legal abortions

in the United States – whether by medication, aspiration, D&E, or induction – are safe and

effective. Serious complications are rare, occurring in fewer than one percent of abortions in the

vast majority of studies (Dkt. No. 73-1, ¶¶ 8-9 (citing National Academy of Sciences, Engineering,

and Medicine, 2018. The safety and quality of abortion care in the United States. Washington,

D.C. The National Academies Press (hereinafter “2018 National Academies consensus-study

report”))).5

4

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). Further, Dr. Nichols reaffirms his June 8, 2017, declaration

(Dkt. No. 4) and July 19, 2017, rebuttal declaration (Dkt. No. 32-1) in his December 10, 2020,

declaration (Dkt. No. 73-1, ¶ 6).

5

According to record evidence, “[t]he three academies work together to ‘provide

independent, objective analysis and advice to the nation. . . to solve complex problems and inform

public policy decisions,” and consensus-study reports like this one “document the evidence-based

consensus on the study’s statement of task by an authoring committee of experts.” (Dkt. No. 73-

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40. Further, according to the record evidence and 2018 National Academies consensus-

study report, “[d]eaths associated with a legal abortion in the United States is an exceedingly rare

event.” (Id.). The abortion-related mortality rate (0.7 per 100,000 procedures) is significantly

lower than that of childbirth (8.8), adult tonsillectomies (2.9 – 6.3), colonoscopies (2.9), plastic

surgery (0.8-1.7), and dental procedures (0-1.7) (Dkt. No. 73-1, ¶ 9).

41. According to the record evidence and 2018 National Academies consensus-study

report, the risk of a serious complication due to abortion increases with weeks’ gestation and,

therefore, “delaying the abortion increases the risk of harm to the woman.” (Dkt. No. 73-1, ¶ 10;

see also 73-2, ¶ 20).

42. Based upon record evidence, the 2018 National Academies consensus-study report

explained that “[s]tate regulations that require women to make multiple in-person visits and wait

multiple days delay the abortion,” and “[i]f the waiting period is required after an in-person

counseling appointment, the delay is exacerbated.” (Dkt. No. 73-1, ¶ 10; see also Dkt. No. 73-2, ¶

20). The 2018 National Academies consensus-study report also explained that “[r]estrictions on

the types of providers. . . also delay care by reducing the availability of care.” (Id.).

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

¶ 8; 73-2, ¶ 10).

44. Nationwide, as of the time this lawsuit was filed in 2017, approximately 90% of

abortions occurred during the first trimester of pregnancy (Dkt. No. 5, ¶ 8). As of late 2020,

nationwide approximately 91% of abortions occurred during the first trimester (Dkt. No. 73-2, ¶

10).

1, ¶ 8). The record indicates the 2018 consensus-study was authored by “a group of neutral and

well-respected scientists.” (Id.).

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45. In Arkansas, as of the time this lawsuit was filed in 2017, approximately 83% of

abortions occurred during the first trimester of pregnancy (Dkt. No. 5, ¶ 8). As of late 2020, in

Arkansas approximately 88% of abortions occurred during the first trimester (Dkt. No. 73-2, ¶ 10).

46. During the first trimester, there are two principal methods of abortion (Dkt. No. 4,

¶ 11-12; Dkt. No. 5, ¶ 9; Dkt. No. 73-2, ¶ 12).

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

medications to induce a process similar to 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 is taken on the first day

and then, misoprostol is taken within approximately 24 to 48 hours later in a location of the

patient’s choosing. After 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; Dkt. No. 73-2, ¶ 12).

48. In Arkansas, medication abortion is available up to 10.0 weeks LMP (Dkt. No. 73-

2, ¶ 12; Dkt. No. 73-3, ¶ 11).

49. 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).

50. As for the second method, 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

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uses suction to evaluate the contents of the uterus (Dkt. No. 4, ¶ 13; Dkt. No. 5, ¶ 10; Dkt. No. 73-

2, ¶ 12).

51. In Arkansas, aspiration abortion is available throughout the first trimester (Dkt. No.

73-2, ¶ 12).

52. LRFP is the only provider of aspiration abortion in Arkansas (Dkt. No. 73-2, ¶ 12).

53. In the second trimester of pregnancy, based on record evidence currently before the

Court, 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; Dkt. No. 73-2, ¶ 26; Dkt. No. 93-1, ¶¶ 3-4, 7).

54. Because suction alone may be insufficient to evacuate the uterus, a physician may

need to use instruments to evacuate the uterus as quickly and safely as possible. As the pregnancy

advances, so does the likelihood that suction will be insufficient to complete the procedure (Dkt.

No. 73-2, ¶ 26; Dkt. No. 93-1, ¶¶ 3-4). As a result, even providers who start second-trimester

procedures with suction are aware that instruments may be necessary to complete any given

procedure, and this likelihood increases later in the second trimester when instruments certainly

will be necessary to complete a procedure, based on record evidence currently before the Court

(Dkt. No. 73-2, ¶ 26; Dkt. No. 93-1, ¶ 4).

55. 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).

56. 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

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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; Dkt. No.

73-2, ¶ 14).

57. 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 D&E procedure (Dkt. No. 4, ¶ 14; Dkt. No. 73-2, ¶ 14).

58. 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).

59. 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).

60. At the time this lawsuit was filed in 2017, of women who have abortions performed

during the second trimester of pregnancy, 95% of those women in this country choose D&E (Dkt.

No. 4, ¶ 16). As of late 2020, nationally, data suggest D&E accounts for almost all second-

trimester abortion procedures in the United States (Dkt. No. 73-2, ¶ 14).

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

was filed in 2017, there were no induction abortions reported in Arkansas (Dkt. No. 5, ¶ 12).

62. 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

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method with instrumentation called D&E.6 This involves two steps: dilating the cervix, and then

evacuating the uterus with a combination of suction and instruments. There are several ways to

dilate the cervix (Dkt. No. 4, ¶ 17; Dkt. No. 5, ¶ 13; Dkt. No. 73-2, ¶ 13).

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

performing 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; Dkt. No. 73-2, ¶ 13).

64. In Arkansas, D&E procedures take place over one to two days, depending on the

medical needs of the patient (Dkt. No. 73-2, ¶ 15; Dkt. No. 73-3, ¶ 29).

65. In Arkansas and elsewhere, D&E typically is a one-day procedure from 14.0 to 17.6

weeks LMP (Dkt. No. 5, ¶ 15; Dkt. No. 6, ¶ 17; Dkt. No. 73-3, ¶ 29).

66. 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).

67. According to Dr. Parker, as of late 2020, for a large majority of LRFP’s second-

trimester abortion patients, a physician will be able to achieve safely sufficient dilation in one day

6

Defendants include as record evidence in support of their opposition to plaintiffs’ motion

only a portion of the transcript from a hearing conducted at the district court level in Carhart v.

Stenberg in 1997. The transcript appears to describe the D&E procedure used by one doctor in

1997. There is no sponsoring witness for this document to explain, among other things, its

relevance to abortion care in Arkansas today or the legal and factual issues contested by the parties

in this case.

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using manual dilators and medication and will evaluate the uterus on the same day (Dkt. No. 73-

2, ¶ 15).

68. The procedure typically takes under ten minutes (Dkt. No. 73-2, ¶ 13).

69. According to Dr. Parker, as of late 2020, a small number of LRFP’s second-

trimester abortion patients undergo overnight dilation where physicians place osmotic dilators that

will expand slowly to achieve gently greater dilation over the course of several hours (Dkt. No.

73-2, ¶ 15).

70. According to Dr. Parker and Ms. Williams, physicians evaluate patient history and

circumstances and use their clinical judgment to determine the best dilation protocol for each

individual patient (Dkt. No. 73-2, ¶ 15; Dkt. No. 73-3, ¶ 30).

71. Ms. Williams confirms that currently for the majority of LRFP’s second-trimester

patients, physicians provide a D&E procedure in one day, meaning the dilation and evacuation

occur on the same day. This is true for essentially all LRFP patients who – when they return to

the clinic after the 72-hour mandatory delay period, are between 14.0 and 17.6 weeks LMP, and

about half of LRFP patients who are 18.0 to 20.0 weeks LMP. A small number of LRFP’s second

-trimester patients undergo overnight dilation, meaning the dilation process takes place over two

days. About half of LRFP’s patients between 19.0 and 20.0 weeks LMP, and almost all patients

between 20.0 and 21.5 weeks LMP, undergo overnight dilation (Dkt. No. 73-3, ¶ 29).

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

Although some physicians continue to provide D&E as a one-day procedure depending on the

patients’ needs, doctors may add overnight osmotic dilation to the 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

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dilation is sufficient, typically the next day, the doctor proceeds as in earlier D&Es, removing the

fetus, generally in pieces because it is larger than the cervical opening (Dkt. No. 4, ¶ 17; Dkt. No.

5, ¶ 16; Dkt. No. 73-2, ¶ 15; Dkt. No. 73-3, ¶ 31).

73. For patients of LRFP who have overnight osmotic dilation with the D&E protocol,

those patients are required to spend that overnight within 30 minutes of LRFP so that the doctor is

available in the rare instance in which a patient has any problem (Dkt. No. 6, ¶ 18; Dkt. No. 73-3,

¶ 31).

74. In Arkansas, from the time this lawsuit was filed in 2017 to late 2020, the D&E

protocol changed (Dkt. No. 5, ¶ 20; Dkt. No. 73-3, ¶ 32). In 2017, in Arkansas, a woman at 18.0

weeks LMP received overnight dilation, which meant that the procedure took two days, rather than

one (Dkt. No. 5, ¶ 20). In 2017, in Arkansas, at the time a woman at 18.0 weeks LMP had placed

in her cervix the osmotic dilators, which was the day before the intended evacuation, the woman

also received an injection of digoxin through the vaginal wall. That injection of digoxin was 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).

75. According to Ms. Williams, since 2017 LRFP updated its protocols to reduce the

number of patients who undergo overnight dilation, meaning more D&E patients have their

procedures in one day, avoiding the need for those patients to make an extra trip to the clinic and

to avoid an extra digoxin injection (Dkt. No. 73-3, ¶ 32).

76. As of late 2020, for some D&E patients, one-day dilation is safe and effective, and

providers are increasingly relying on one-day dilation (Dkt. No. 73-1, ¶ 16).

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77. In cases where the provider does not begin cervical preparation the day before the

procedure, administering a digoxin injection would unnecessarily require the patient to make an

additional trip to the facility (Dkt. No. 73-1, ¶ 16).

78. According to record evidence submitted to the Court in 2017, in women 18.0 weeks

or later LMP, if the digoxin had not caused fetal demise the next day after being administered, Dr.

Hopkins would 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).

79. Based on record evidence submitted in 2020, Dr. Nichols reports on a recent study

that confirms 74% of providers who reported performing D&Es at 18 weeks LMP or greater do

not routinely induce preoperative fetal demise and that, among the minority who do use demise

procedures, 70% do so only for procedures at 20 weeks LMP or greater (Dkt. No. 73-1, ¶ 14).

80. Based on record evidence, physicians who attempt fetal demise before providing a

D&E generally do so to demonstrate compliance with the statue commonly referred to as the

“Partial Birth Abortion Ban,” which prohibits a rarely used abortion method performed later in

pregnancy, “intact D&E,” sometimes referred to as “D&X,” which involves dilating the cervix

enough to remove the whole fetus intact (generally only after 20 to 22 weeks LMP)7 (Dkt. No. 73-

1, ¶ 14). Further, providers who attempt fetal demise before a D&E do so with the knowledge that

7

Throughout this Order, when the Court uses the term “D&E” the Court refers to a

standard D&E as distinguished from an “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).

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they are still able to proceed with the D&E if the demise method fails or if a demise procedure is

contraindicated for a particular patient (Dkt. No. 73-1, ¶ 15).

81. D&E procedures cannot safely begin unless the physicians know that they will be

able to complete timely the procedure because delaying the procedure after a first digoxin injection

and after the uterus has been dilated would increase the risk of uterine infection, extramural

delivery, or digoxin toxicity (Dkt. No. 73-1, ¶ 15).

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

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

83. D&E accounted for almost all second-trimester abortions in the United States at the

time this lawsuit was filed in 2017 (Dkt. No. 4, ¶ 16; Dkt. No. 5, ¶ 17).

84. D&E is the only outpatient abortion method available throughout the second

trimester in Arkansas (Dkt. No. 73-2, ¶ 13).

85. D&E accounts for 100% of second trimester abortions reported in Arkansas in 2015

(Dkt. No. 5, ¶ 17).

86. D&E abortions accounted for 100% of second-trimester abortions reported in

Arkansas in 2019 (Dkt. No. 73-2, ¶ 14).

87. At the time this lawsuit was filed in 2017, each year, LRFP provided approximately

3,000 abortions, of which approximately 600 or 20% occurred during the second trimester (Dkt.

No. 6, ¶ 16; Dkt. No. 73-3, ¶ 28). In 2019, LRFP provided 1,950 abortions, 15% of which occurred

in the second trimester (Dkt. No. 73-3, ¶ 28).

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

complications occurring in less than 1% of D&E procedures (Dkt. No. 4, ¶ 19; Dkt. No. 73-4, ¶

9).

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89. According to Dr. Parker, during the D&E procedure, fetal tissue separation occurs

as tissue is removed from the uterus with forceps (Dkt. No. 73-2, ¶ 21).

90. According to Dr. Parker, there is no safe and reliable way to guarantee fetal demise

prior to the evacuation of the uterus with instruments (Dkt. No. 73-2, ¶ 22).

91. 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).

92. Given the requirements of Arkansas law regarding mandated state counseling, even

setting aside the potential for enforcement of the D&E Mandate challenged in this lawsuit, 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).

93. Starting at 18.0 to 22.0 weeks, some physicians, including Dr. Hopkins as of 2017,

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; Dkt.

No. 73-2, ¶ 16).

94. Of the physicians who undertake an additional procedure, 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; Dkt. No. 73-2, ¶ 16).

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95. 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).

96. 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; Dkt. No. 73-2, ¶ 23c).

97. For some women, other factors such as quickly advancing dilation may make

delaying evacuation by a day too risky for the patient meaning, even after 18 weeks LMP, digoxin

cannot always be safely injected (Dkt. No. 73-2, ¶ 23c).

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

arrhythmias (Dkt. No. 4, ¶ 27).

99. 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).

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

fail (Dkt. No. 5, ¶ 25c; Dkt. No. 73-2, 23d).

101. 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; Dkt. No. 73-1, ¶ 17).

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102. 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; Dkt. No. 73-1, ¶ 17).

103. 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; Dkt. No. 73-2, ¶ 16).

104. According to Dr. Parker, because a physician would not extend the procedure by

an entire day solely to inject digoxin and give it time to cause demise, this additional step is only

taken with the small number of patients for whom overnight dilation is medically appropriate (Dkt.

No. 73-2, ¶ 17).

105. The transabdominal injection required for digoxin 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).

106. 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; Dkt. No. 73-

2, ¶ 16).

107. According to Dr. Parker, if a patient requiring overnight dilation returns the next

day and the digoxin injection has not caused fetal demise, the physician will still evacuate the

patient’s uterus on that same day. At that point, according to Dr. Parker, physicians will take steps

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with their forceps – such as compressing fetal parts – in order to cause demise and otherwise

demonstrate compliance with existing “partial-birth abortion” laws (Dkt. No. 73-2, ¶ 18).

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

23).

109. At the time this lawsuit was filed in 2017, 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)).

110. Dr. Nichols addresses a recent clinical trial that compared routes of digoxin

administration before abortion in a randomized controlled trial (Dkt. No. 73-1, ¶ 19a). Based on

the study, according to Dr. Nichols, even when a physician attempts an intrafetal digoxin injection,

which is more effective in causing fetal demise than intraamniotic injections, it is not uncommon

for the physician to be unable to inject digoxin into the fetus and to resort to a less effective,

intraamniotic injection. Further, the results of the study suggest that in earlier gestational ages,

when intrafetal injection is even more technically difficult due to the size of the fetus, less effective

intraamniotic injections would be used even more frequently, according to Dr. Nichols (Dkt. No.

73-1, ¶ 19a). Dr. Nichols explains that the study reported significant failure rates in that, among

patients who received intraamniotic digoxin, the injection failed to cause fetal demise 20% of the

time and that, although those who actually received an intrafetal injection had a failure rate of less

than 2%, the failure rate for the group randomized to receive intrafetal injection was 5% because

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some patients actually received an intraamniotic injection due to the technical administration

difficulties described in the study (Dkt. No. 73-1, ¶ 19b).

111. There are virtually no reported studies on using digoxin in the first weeks of the

second trimester before 18 weeks LMP, when most second trimester abortions are performed.

Physicians relied upon by both sides agree upon this (Dkt. No. 4, ¶ 26; Dkt. No. 32-3, at 39-40).

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; Dkt. No.

73-2, ¶ 23a).

112. Even if physicians were willing to inject digoxin experimentally early in the second

trimester, doing so would extend the D&E procedure by a day for D&E patients who currently

undergo a one-day procedure (Dkt. No. 73-2, ¶ 23b). Because digoxin takes up to 24 hours to

cause demise, patients would have to make an additional trip to the clinic solely for the purpose of

receiving an experimental digoxin injection and giving it time to work (Dkt. No. 73-2, ¶ 23b).

113. There are virtually no reported studies 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; Dkt. No. 73-1, ¶ 17; Dkt. No. 73-2, ¶ 23d).

114. Attempting a second injection of digoxin, or multiple, sequential injections of

digoxin, after the first dose fails to bring about fetal demise likely would delay the procedure for

yet another 24 hours, given the reported time it takes for digoxin to be effective (Dkt. No. 73-2, ¶

23d).

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115. According to Dr. Nichols, a study documented that, while digoxin toxicity is rare,

it is an extremely serious risk associated with the injection of digoxin at certain levels, resulting in

the study patient being paralyzed and intubated due to respiratory failure after a digoxin injection

(Dkt. No. 73-1, ¶ 19c.).

116. 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; Dkt. No. 73-1, ¶¶ 15, 17).

117. According to Dr. Nichols, it is not currently acceptable medical practice to perform

multiple injections of digoxin and wait even longer for demise (Dkt. No. 73-1, ¶ 17).

118. 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).

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

(Dkt. No. 25-4, ¶ 6).

120. 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; Dkt. No. 73-2, ¶ 24).8

8

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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121. 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).

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

appropriate (Dkt. No. 4, ¶ 31).

123. Neither Dr. Hopkins, Dr. Parker, nor any of the physicians practicing at LRFP have

the specialized training in the sub-specialty of high-risk obstetrics necessary to inject safely

potassium chloride (Dkt. No. 5, ¶ 22; Dkt. No. 73-2, ¶ 24).

124. The specialized training needed to perform this procedure is not a standard part of

training for clinicians who provide abortion care. Rather, certain specialists learn to perform the

procedure through a three-year subspecialist program in high risk obstetrics after completing an

obstetrics-gynecology residency (Dkt. No. 73-2, ¶ 24).

125. According to Dr. Parker, even if he were willing to obtain training to perform

injections of potassium chloride, returning to any fellowship, let along one as highly competitive

as the one required to obtain this training, to learn a single rarely used procedure that is unnecessary

for him to continue his current practice is not feasible or reasonable in his view (Dkt. No. 73-2, ¶

24).

126. Plaintiffs offer the affidavit of Katharine D. Wenstrom, M.D., who is a physician

licensed to practice medicine, Board Certified by the American Board of Obstetrics and

Gynecology in Obstetrics and Gynecology since 1992 and in Maternal-Fetal Medicine since 1994,

and by the American Board of Medical Genetics since 1990 (Dkt. No. 73-9, ¶¶ 1-3). Dr. Wenstrom

details her experience, her service with the Society for Maternal-Fetal Medicine and the American

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College of Obstetricians and Gynecologists, and her peer-reviewed publications, along with her

other qualifications (Id.).

127. Dr. Wenstrom opines, having reviewed the D&E Mandate challenged by plaintiffs,

that based on her training and experience the D&E Mandate as written bans D&E abortion

procedures (Dkt. No. 73-9, ¶ 5).

128. Based on her training and experience, Dr. Wenstrom “adamantly disagrees” with

defendants’ contention that “injection of KCl is a safe and effective means for physicians who

provide abortion care in Arkansas to ensure fetal demise before performing a D&E and thereby

circumvent” the D&E Mandate9 (Dkt. No. 73-9, ¶ 6).

129. Dr. Wenstrom has performed approximately 200 intracardiac potassium chloride

injections, including approximately 50 for patients who were in the second trimester of their

pregnancy at the time of the procedure (Dkt. No. 73-9, ¶ 10).

130. According to Dr. Wenstrom: “some physicians with advanced training are capable

of inducing fetal demise using intracardiac (fetal) administration of KCl via a transabdominal

injection performed with ultrasound guidance. To cause demise, KCl is rapidly injected in the

fetal heart using a 7-to-9-inch needle that must be guided extremely carefully through the patient’s

abdominal and uterine walls, into the uterus and amniotic fluid, and then into the fetal chest and

directly into the fetal heart. Ultrasound is thereafter used to confirm asystole (no cardiac activity).

If there are no complications, the entire procedure, start to finish, typically takes approximately 60

minutes. Due to dilution, KCl will not cause fetal demise when injected into amniotic fluid;

9

The Court uses the abbreviation “KCl” and the phrase “potassium chloride”

interchangeably in this Order.

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injection into the fetal heart is required to safety and effectively perform the procedure.” (Dkt. No.

73-9, ¶ 7).

131. According to Dr. Wenstrom, “[t]he fetal heart is approximately the size of a pea at

14 weeks into a pregnancy [LMP], and roughly the size of an olive at 20 weeks LMP.” (Dkt. No.

73-9, ¶ 8).

132. Dr. Wenstrom explains that these types of injections “are typically used in the

context of selective termination in a multi-fetal pregnancy, i.e., when a person is pregnant with

more than one fetus and wishes to reduce the risk of preterm birth, or when one fetus has an

anomaly. Multifetal pregnancy reduction generally confers medical benefits by reducing the risks

associated with multifetal gestation.” (Dkt. No. 73-9, ¶ 9).

133. Dr. Wenstrom further explains that this “procedure requires a high level of skill,

and is thus almost exclusively performed by OBGYNs who are specialists in maternal-fetal

medicine (“MFM”).” (Dkt. No. 73-9, ¶ 11).

134. According to Dr. Wenstrom, “MFM is an OBGYN sub-specialty involving an

additional three-year training program after residency with extensive, advanced training at a major

medical center and a focus on high-risk pregnancies. Training to perform KCl injections is not

included in OBGYN residency training, and KCl-injection training is included in only a few MFM

programs.” (Dkt. No. 73-9, ¶ 11). Admission to those fellowship programs is “extremely

competitive” and, if admitted, a “full-time obligation.” (Dkt. No. 73-9, ¶ 12). Even then, according

to Dr. Wenstrom, a physician is not guaranteed to receive KCl-injection training (Id.). Instead, the

physician “must seek out specific MFM programs with tertiary Fetal Therapy Centers (e.g., in New

York, Philadelphia, or Texas) if they are interested in obtaining the training necessary to performed

intracardiac KCl injections.” (Id.).

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135. Dr. Wenstrom also clarifies that “training in and competence to perform KCl

injections has become increasingly rare and difficult to obtain in recent years, because the high-

order multifetal pregnancies that were common from the 1980s to the early 2000s have become

less common in view of (among other things) advances in in-vitro fertilization laboratory

techniques.” (Dkt. No. 73-9, ¶ 13).

136. According to Dr. Wenstrom, “[b]efore a physician can be trained to competently

perform KCl injections, the clinician must obtain advanced ultrasound training, which is not

generally available in Family Practice or OBGYN residencies. . . . KCl injections, however,

require a physician to use a two-dimensional ultrasound image to visualize and guide a needle

through three-dimensional maternal and fetal structures, while the fetus is moving.” (Dkt. No. 73-

9, ¶ 14). Dr. Wenstrom received during her MFM fellowship hundreds of hours of highly

specialized ultrasound training that served as a necessary foundation for KCl-injection training

(Id.).

137. Dr. Wenstrom also describes the training she received to do two advanced

ultrasound guided needle procedures that were essential to acquiring the skills required for more

technically difficult KCl injections; those procedures are genetic amniocentesis, of which Dr.

Wenstrom performed approximately 40 to 50 training procedures, and cordocentesis after

achieving mastery of genetic amniocentesis, of which Dr. Wenstrom performed approximately 20

to 30 cordocentesis procedures (Dkt. No. 73-9, ¶ 15). Then, during Dr. Wenstrom’s medical

genetic fellowship she assisted a mentor in performing intracardiac KCl injections before

performing the procedure herself, under her mentor’s supervision (Id.).

138. According to Dr. Wenstrom, “[a] physician who does not have experience

performing many dozens of ultrasound-guided needle procedures (such as the genetic

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amniocentesis and cordocentesis procedures described above) would first need to become expert

in performing prenatal ultrasound exams, and then need to perform at least 30 to 40 KCl injections

under the direct supervision of a trained expert before he or she could be trained to competency

and perform the procedure with confidence that it would not cause additional stress or risk to the

patient or fetus.” (Dkt. No. 73-9, ¶ 16).

139. Dr. Wenstrom offers that, “[i]n view of the relatively low volume of available KCl-

injection procedures, [she has] been able over the course of the last 20 years to train only two

MFM fellows in administering KCl injections, one of whom was not able to participate in enough

procedures to be trained to competency.” (Dkt. No. 73-9, ¶ 17).

140. According to Dr. Wenstrom, she was the only physician trained in the procedure

when she was on faculty from 2009 to 2018 at Women and Infant’s Hospital, which she describes

as a tertiary women’s hospital in Providence, Rhode Island, that does 8,700 deliveries a year; is

not currently aware of any other physicians in Rhode Island who are trained in the procedure; and

is aware of at most only two other physicians in the greater Boston area who are trained in the

procedure (Dkt. No. 73-9, ¶ 17).

141. Dr. Wenstrom identifies additional obstacles to obtaining the necessary training to

perform KCl injections, such as the physician’s need to take significant time off from current

practice; the likely need to move to another part of the country to obtain the training; find a

qualified MFM or medical-genetics OBGYN physician willing to provide the training and who

has a high enough case volume that he or she could train the physician to competency within a

reasonable period of time; and likely need to complete the entire three-year MFM fellowship

program, with no ability to learn solely KCl injections (Dkt. No. 73-9, ¶ 18).

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142. Even with all of that, Dr. Wenstrom opines that, “[n]o matter their level of training,

in [her] experience, certain physicians simply do not have the requisite hand-eye coordination and

skill in ultrasonography necessary for KCl injections.” (Dkt. No. 73-9, ¶ 19).

143. In addition to a trained physician, KCl injections also require the assistance of a

trained and sophisticated ultrasound technician or another physician who can accurately guide the

ultrasound transducer so that the physician performing the injection has – at certain times – both

hands available for the procedure, according to Dr. Wenstrom (Dkt. No. 73-9, ¶ 20). Dr. Wenstrom

explains the reasons for this requirement in relation to the KCl injection procedure and its

requirements (Dkt. No. 73-9, ¶ 21).

144. There are a number of maternal health risks with KCl injections, according to Dr.

Wenstrom (Dkt. No. 73-9, ¶ 22). She provides as examples risks of maternal tissue damage and

severe pain if the KCl is inadvertently injected into the uterine muscle, and maternal cardiac arrest

if the KCl is inadvertently injected into a material blood vessel (Dkt. No. 73-9, ¶ 22a), risks of

infection or chorioamnionitis, a serious condition in which the membranes surrounding the fetus

are infected by bacteria, resulting from transfer of bacteria from the maternal skin surface to the

uterus (Dkt. No. 73-9, ¶ 22b), and although unlikely if performed by a trained physician, an

unsuccessful procedure can result in sepsis or the need for a hysterectomy (Dkt. No. 73-9, ¶ 22c).

145. Dr. Wenstrom explains that KCl injections can be very complicated or even

impossible to perform in women with common conditions such as obesity or uterine fibroids (Dkt.

No. 73-9, ¶ 23). Dr. Wenstrom explains the reasons why these common conditions impact KCl

injections (Id.).

146. According to Dr. Wenstrom, the procedure itself can be an upsetting and

uncomfortable experience for the patient, especially in view of the size of the needle (Dkt. No. 73-

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9, ¶ 24). The patient is awake throughout the procedure and will feel pain as the needle penetrates

the skin and the uterus. Although there are methods to reduce pain at the skin, uterine pain cannot

be prevented, according to Dr. Wenstrom (Id.). Patients’ pain tolerance and anxiety level can

complicate the procedure making it even more difficult, as Dr. Wenstrom explains (Id.).

147. Dr. Wenstrom also avers that “[i]n the event that the initial procedure is

unsuccessful, a second procedure must be performed. Undergoing the procedure twice is

extremely physically and emotionally stressful for the patient, and subjects her to risks all over

again. Continuing a pregnancy after an incomplete KCl injection could be dangerous and thus

medically inappropriate, given the risks to maternal health and likely harm that would result to the

fetus.” (Dkt. No. 73-9, ¶ 25).

148. 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).

149. 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; Dkt. No. 73-2, ¶ 25).

150. The serious risks to which a patient may be exposed during this procedure include

uterine perforation (Dkt. No. 73-2, ¶ 25).

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

152. 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; Dkt. No. 73-1, ¶ 20).

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153. 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). That study

reports on the use of transection for demise in a single setting (Dkt. No. 73-1, ¶ 22).

154. 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).

155. 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).

156. In some cases, the fetus blocks access to the cord, rendering it difficult, if not

impossible, to grasp the cord before using forceps to remove fetal tissue; even if the physician is

ultimately successful, the mechanics of the procedure will increase its duration and risk, such as

by prolonging the patient’s bleeding and increasing the risk of uterine perforation and cervical

injury (Dkt. No. 4, ¶¶ 32-34).

157. Moreover, physicians may grasp and separate fetal tissue instead of or in addition

to transecting the cord, meaning the provider would know that they may be unable to avoid

transecting fetal tissue even if he or she does not intend to do so (Dkt. No. 4, ¶ 35; Dkt. No. 73-2,

¶ 25).

158. 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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159. No physician to whom 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).

160. 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). He also offered testimony about risks from the procedure

under specific circumstances and limited literature he reviewed regarding the procedure (Dkt. No.

32-3, at 40-43).

161. Physicians cannot safely guarantee fetal demise in every case before commencing

a D&E, even under the workarounds suggested by defendants (Dkt. No. 73-1, ¶ 13).10

162. 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).

163. According to Dr. Parker, “[b]ecause there is no way to guarantee fetal demise with

every patient,” the D&E Mandate “prohibits abortion beginning as early as 14 weeks LMP.” (Dkt.

No. 73-2, ¶ 27).

164. According to Dr. Parker, if physicians were required under the D&E Mandate to

attempt a digoxin injection for every patient before 18.0 to 20.0 weeks LMP and half of LRFP’s

patients between 18.0 and 20.0 weeks -- who make up the vast majority of second trimester patients

10

The Court also rejects Dr. Wyatt’s assertion that “there are several ways to cause a

baby’s demise prior to a D&E including injection of medications, injection of potassium chloride,

and severing of the baby’s umbilical cord (umbilical transection).” (Dkt. No. 25-4, ¶ 5). Dr. Wyatt

professes no expertise in the area of abortion care having professed to not performing an elective

abortion since his residency from 1981 to 1985 (Dkt. No. 25-4, ¶ 1). Dr. Wyatt does not base his

assertion on any reported study or medical literature and his opinion is directly contradicted by the

affidavits of plaintiffs’ more qualified experts (Dkt. Nos. 73-1, ¶¶ 13-22; 73-2, ¶¶ 23-26; 73-9).

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at LRFP -- these patients would have to make an additional trip to LRFP because their one day

procedures would become two day procedures. These patients who currently make two trips to

the clinic would have to make three – and spend extra time, overnight, near the clinic (Dkt. No.

73-3, ¶ 34).

165. Requiring the vast majority of LRFP patients to make a further additional trip to

the clinic would impose additional logistical and financial burdens on these patients, who are the

greatest majority of second-trimester patients at LRFP (Dkt. No. 73-3, ¶ 35). Requiring patients

to undergo an additional demise procedure, in addition to the D&E procedure, could also increase

the cost of the procedure, imposing another financial burden on LRFP patients (Dkt. No. 73-3, ¶

35).

166. Because the D&E Mandate has no exception for failed demise attempts, patients

may be forced to undergo multiple demise procedures, which could entail repeat trips to the clinic

or may be denied care altogether (Dkt. No. 73-3, ¶ 34).

167. 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; Dkt. No. 73-2, ¶¶ 30-31).

168. 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; Dkt. No.

73-2, ¶¶ 30-31).

169. Dr. Nichols cites foundational tenents of medical ethics as: that providers respect

patients’ autonomy, including an obligation to act only with patients’ informed consent; that

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providers act in patients’ best interests; that providers avoid unnecessary harm to patients; and that

providers acts in a manner to promote justice for patients and society more generally (Dkt. No. 73-

1, ¶ 23). Dr. Nichols offers the opinion that the D&E Mandate would force Arkansas physicians

who perform D&E procedures to practice medicine in ways that are not compatible with

foundational tenets of medical ethics because forcing physicians to subject every patient to an

additional procedure in an attempt to cause fetal demise – regardless of the fact that in certain

cases, the additional procedure may be contraindicated, experimental, expose the patient to

increased risk, and/or require the patient to make an otherwise unnecessary and burdensome

additional trip to the clinic – or force the patient to seek out-of-state care would violate the

foundational tenets of medical ethics he identifies (Dkt. No. 73-1, ¶¶ 23-24).

170. In support of their response to plaintiffs’ request for preliminary injunctive relief,

defendants include a declaration of Joseph R. Biggio Jr., M.D., prepared in August 2016 and

submitted with specific regard to a proposed Alabama law directed to the performance of D&E in

Alabama in the case of West Alabama Women’s Center v. Strange, No. 2:15-cv-497-MHT (Dkt.

No. 23-15). The Court observes the following.

(1) Plaintiffs include in the record transcripts of testimony given by Dr. Biggio in the

Alabama case (Dkt. No. 32-3); defendants do not. Dr. Biggio has not submitted a

declaration specific to the Arkansas D&E Mandate challenged in this litigation nor

has he appeared to offer testimony at any of the hearings conducted by the Court to

date in this matter. In the Alabama litigation in which Dr. Biggio participated

directly, the district court entered a preliminary and permanent injunction barring

enforcement of the Alabama law directed to the performance of D&E in Alabama,

and the Eleventh Circuit Court of Appeals affirmed the district court’s decision. In

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the both the district court’s opinion granting a preliminary injunction and a

permanent injunction, the district court discounted Dr. Biggio’s opinion. See W.

Alabama Women’s Ctr. v. Miller, 217 F. Supp. 3d 1313, 1339 n.24 (M.D. Ala.

2016); W. Alabama Women's Ctr. v. Miller, 299 F. Supp. 3d 1244, 1279-80 (M.D.

Ala. 2017), aff'd sub nom. W. Alabama Women's Ctr. v. Williamson, 900 F.3d 1310

(11th Cir. 2018). The district court found that Dr. Biggio “has expertise in the

provision of potassium-chloride injections in an academic medical center, but that

he has significantly less expertise than the plaintiffs’ experts on abortion in general,

because he does not in any sense specialize in abortion and has performed far fewer

such procedures. In particular, he did not evince significant knowledge of the

provision of abortion in outpatient-clinic settings or the conditions that exist in

those clinics, and his testimony as to digoxin injection and umbilical-cord

transection was largely theoretical and not based on experience. Accordingly, the

court gave his testimony less weight based on those concerns.” W. Alabama

Women's Ctr. v. Miller, 299 F. Supp. 3d 1244, 1279 (M.D. Ala. 2017), aff'd sub

nom. W. Alabama Women's Ctr. v. Williamson, 900 F.3d 1310 (11th Cir. 2018).

With respect to his opinion that umbilical-cord transection would be feasible, the

district court concluded that Dr. Biggio “did not recognize the differences between

the type of specialized hospital where he practices and the clinics.” Id.

(2) In other words, Dr. Biggio’s declaration, testimony, and other evidence did not

carry the day for the State of Alabama in that case at the trial court level or on

appeal; the challenged Alabama law was enjoined permanently as unconstitutional.

See West Alabama Women’s Center, 209 F.Supp.3d 1244. In the Eleventh Circuit

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opinion, the court observed: “The State's expert, Dr. Joseph Biggio, testified that

digoxin injections would subject women to ‘an approximately 5–10% risk of

spontaneous onset of labor, rupture of the membranes or development of

intrauterine infection,’ and ‘small risks of bleeding, infection, and inadvertent

penetration of the bowel or bladder with the needle.’ He also testified that

potassium chloride subjects women to bleeding, sepsis, bowel or bladder injury,

and cardiac arrest.” W. Alabama Women's Ctr. v. Williamson, 900 F.3d 1310, 1325

n.12 (11th Cir. 2018).

(3) Dr. Biggio avers, with respect to digoxin injection: “whether injected into the

amniotic cavity or directly into the fetus, has been reported to take up to 24 hours

to cause demise when effective. Rates of producing demise following a single

injection of digoxin are approximately 95% in the literature. There are not good

data on the effectiveness or timeframe for the effect of a second injection should

the first not result in demise.” (Dkt. No. 23-15, ¶ 6).

(4) With respect to the injection-based procedures suggested as work arounds to the

Alabama law, Dr. Biggio avers that, “it is [his] expert medical opinion that without

additional training in the performance of these injections-based procedures that [the

board certified OBGYN physicians who regularly perform abortions] would feel

inadequately trained in these techniques, especially intracardiac injection of

potassium chloride.” (Dkt. No. 23-15, ¶ 15). Dr. Biggio also avers that, “[g]iven

the similarity of these procedures to the performance of an amniocentesis, a

procedure which obstetrics and gynecology residents are trained to perform, a

board-certified obstetrician-gynecologist should be able to acquire the requisite

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skills with appropriate training.” (Dkt. No. 23-15, ¶ 11). Dr. Biggio does not offer

information in his declaration regarding what that training would entail

(5) Dr. Biggio provided testimony involving a proposed Alabama law with respect to

the current frequency of the procedure, the training available, and the training

necessary to perform these highly specialized procedures (Dkt. No. 32-3, at 30, 35-

37). In granting a permanent injunction, the district court in the Alabama case

rejected Dr. Biggio’s testimony relating to the plaintiffs’ ability to administer

potassium chloride injections. W. Alabama Women’s Ctr., 299 F. Supp. 3d at 1280.

The district court found that Dr. Biggio’s estimate that it would take only “10-20

procedures for the plaintiffs to learn to inject potassium chloride for purposes of

performing abortions in the outpatient clinics” was “unreasonably low given the

technical difficulty of the procedure, the severity of the potential health risk to the

woman, and the difference in technological and emergency resources between the

academic hospital where the State’s expert works and the plaintiffs’ outpatient

clinics.” Id.

(6) On cross examination at the preliminary injunction hearing in the Alabama case,

Dr. Biggio admitted that he had no idea of the prevalence of any of the specific

methods offered by the State of Alabama to induce fetal demise (Dkt. No. 32-3, at

32); he had no idea of the percentage of physicians performing abortions used any

of the methods the State of Alabama proposed for fetal demise (Id.).

171. Defendants submit an article titled, “What about us? Staff reactions to D&E,” that

states on the first page it was “[p]resented at the 1978 meeting of the Associated of Planned

Parenthood Physicians, San Diego, California, October 26” (Dkt. No. 23-2). There is no

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sponsoring witness for this document to explain, among other things, its relevance to abortion care

in Arkansas today or the legal and factual issues contested by the parties in this case.

172. Defendants submit an article titled, “Perspective on Human Life: Why I No Longer

Do Abortions: Tearing a second-trimester fetus apart simply at a mother’s request is depravity

that should not be permitted,” that is dated September 12, 1991 (Dkt. No. 23-3). There is no

sponsoring witness for this document to explain, among other things, its relevance to abortion care

in Arkansas today or the legal and factual issues contested by the parties in this case.

173. Defendants submit an article titled, “Recent advances in second-trimester abortion:

an evidence-based review,” that is dated April 2009 (Dkt. No. 23-4). There is no sponsoring

witness for this document to explain, among other things, its relevance to abortion care in Arkansas

today or the legal and factual issues contested by the parties in this case.

174. Defendants submit an article titled, “A randomized pilot study on the effectiveness

and side-effect profiles of two doses of digoxin as fetocide when administered intraamniotically

or intrafetally prior to second-trimester surgical abortion,” dated 2010 (Dkt. No. 23-5). Based

upon the abstract, the study design was: “Fifty-two women presenting for elective termination of

pregnancy between 18 and 24 weeks gestation were randomized to one of four digoxin treatment

groups: 1.0 mg intraamniotic (1.0 IA), 1.0 mg intrafetal (1.0 IF), 1.5 mg intraamniotic (1.5 IA) or

1.5 mg intrafetal (1.5 IF).” (Dkt. No. 23-5, at 1). Again, based upon the abstract, the results were:

“Digoxin effectively induced fetal death in 87% of women. The failure rate did not vary by route

of administration (IA or IF) and was not lowered by increasing the dose from 1.0 to 1.5 mg. IF

injections induced fetal death more rapidly than IA injections. Digoxin administration did not

result in increased pain or nausea.” (Dkt. No. 23-5, at 1). There is no sponsoring witness for this

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document to explain, among other things, its relevance to abortion care in Arkansas today or the

legal and factual issues contested by the parties in this case.

175. Defendants submit an article titled, “Induction of fetal demise before abortion,”

dated January 2010 (Dkt. No. 23-6). The abstract makes clear the limited study of the methods of

fetal demise prior to D&E and states, in pertinent part: “Additional randomized trials might

provide clearer evidence upon which to make further recommendations about any role of inducing

demise before surgical abortion. At the current time, the Society of Family Planning recommends

that pharmacokinetic studies followed by randomized controlled trials be conducted to assess the

safety and efficacy of feticidal agents to improve abortion safety.” (Dkt. No. 23-6, at 1). There is

no sponsoring witness for this document to explain, among other things, its relevance to abortion

care in Arkansas today or the legal and factual issues contested by the parties in this case.

176. Defendants submit an article titled, “Potassium Chloride-Induced Fetal Demise: A

Retrospective Cohort Study of Efficacy and Safety,” which is dated 2014 (Dkt. No. 23-7). “The

study was a retrospective cohort analysis of all patients presenting for induction of fetal demise

before termination of pregnancy at Yale New Haven Hospital’s Department of Obstetrics,

Gynecology, and Reproduction Sciences between October 2002 and October 2011. . . . All

procedures were performed by maternal-fetal medicine attending physicians or by fellows directly

supervised by an attending physician. . . . Of the 197 procedures planned from October 2002 to

October 2011, 192 were completed (97.5%). Five procedures were stopped before injections of

KCl. Three of these procedures were stopped before KCl injection because of maternal discomfort.

A fourth procedure was stopped before KCl injection because of a change in the fetal position.

The fifth procedure was stopped because of the onset of a maternal seizure, with placement of the

needle again before injection of the feticidal agent. . . . There was 1 procedure that was considered

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a failed procedure because asystole was not confirmed after injection of KCl. . . . Thus, of the 192

completed procedures of intracardiac KCl-induced fetal demise, 191 were successful (99.5%).”

(Dkt. No. 23-7, at 2-3). There is no sponsoring witness for this document to explain, among other

things, its relevance to abortion care in Arkansas today or the legal and factual issues contested by

the parties in this case.

177. Defendants submit an article titled, “Surgical Abortion in the Second Trimester,”

dated 2008 (Dkt. No. 23-8). This article reviewed, as of 2008, the then-current “surgical methods

used in second trimester abortion, as well as their safety, advantages and disadvantages,

acceptability and associated complications.” (Dkt. No. 23-8, at 1). There is no sponsoring witness

for this document to explain, among other things, its relevance to abortion care in Arkansas today

or the legal and factual issues contested by the parties in this case.

178. Defendants submit an article titled “Intracardiac injection of potassium chloride as

method for feticide: experience from a single UK tertiary centre,” dated November 27, 2007 (Dkt.

No. 23-9). Based upon terms used in the article, the study period was January 2000 to December

2005, examined “239 late terminations of pregnancy performed at a median gestational age of 22+6

weeks (range 20+6 to 36+3 weeks).” (Dkt. No. 23-9, at 1). There is no sponsoring witness for this

document to explain, among other things, its relevance to abortion care in Arkansas today or the

legal and factual issues contested by the parties in this case.

179. Defendants submit an article titled “Effectiveness and safety of digoxin to induce

fetal demise prior to second-trimester abortion,” dated 2008 (Dkt. No. 23-10). Based upon the

abstract, the study design was: “A retrospective cohort analysis of 1795 pregnant women between

17 and 24 weeks’ gestation who received varying doses of digoxin by transabdominal intrafetal or

intra-amniotic injection at the time of laminaria placement was conducted. . . . Digoxin dosages

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started at 1.0 mg for intrafetal and 0.5 mg for intra-amniotic injections and were progressively

decreased based on best clinical judgment.” (Dkt. No. 23-10, at 1). Based on the abstract, the

results were: “The overall rate of failure to achieve fetal demise was 6.6% (95% Cl, 5.507.9).

Failure rates varied according to route of administration and dosage. There were no failures using

a 1.0-mg intrafetal dose, but failures occurred with lower doses. Failure rate were higher with 0.5

mg for intra-amniotic (8.3%) than intrafetal administration. There were no adverse material events

at any of the doses in this study.” (Dkt. No. 23-10, at 1). There is no sponsoring witness for this

document to explain, among other things, its relevance to abortion care in Arkansas today or the

legal and factual issues contested by the parties in this case.

180. Defendants submit an article titled, “Relationship of intraamniotic digoxin to fetal

demise,” dated 2010 (Dkt. No. 23-11). According to the article, the study involved 22 women

with a mean gestational age of 19.0 weeks (range 18 to 22.5 weeks) (Dkt. No. 23-11, at 2). The

study was designed to assess “ultrasonic fetal cardiac assessments 1, 2, 4 and 20 to 24 h after

intraamniotic injection of 1.5 mg of digoxin.” (Dkt. No. 23-11, at 1). There is no sponsoring

witness for this document to explain, among other things, its relevance to abortion care in Arkansas

today or the legal and factual issues contested by the parties in this case.

181. Defendants submit an article titled, “Laminaria, induced fetal demise and

misoprostol in late abortion,” dated April 13, 2001 (Dkt. No. 23-12). This study, based on its

abstract, examined during a nine year period, 1,677 abortions performed on patients whose

pregnancies ranged “from 18 to 34 menstrual weeks in an outpatient facility.” (Dkt. No. 23-12, at

1). The conclusion reached: “Outpatient abortion may be performed safely from 18 through 34

menstrual weeks using combined surgical and medical procedures. Use of intrauterine post-

amniotomy misoprostol was associated with reduced amniotomy-to-procedure time and reduced

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variability in the amniotomy-to-procedure time.” (Dkt. No. 23-12, at 1). There is no sponsoring

witness for this document to explain, among other things, its relevance to abortion care in Arkansas

today or the legal and factual issues contested by the parties in this case.

182. Defendants submit an article titled, “Umbilical cord transection to induce fetal

demise prior to second-trimester D&E abortion,” 2013 (Dkt. No. 23-13). Based on the abstract,

the study design was: “This descriptive report from a single center involves a large case series of

D&Es ranging from 16 to 23 weeks of gestation. Umbilical cord transection (UCT) was attempted

immediately prior to D&E in 407 cases, which were reviewed to determine success, time to fetal

asystole and complications.” (Dkt. No. 23-13, at 1). The center was “a free-standing women’s

surgical center that provides abortion to 22 weeks of gestational age” (Dkt. No. 23-13, at 2). Based

on the abstract, the results were: “Both UCT and asystole were achieved in 100% of cases. . . .

Few patients had minor (4.6%) or major (0.3%) complications; time to asystole was not associated

with complications.” (Dkt. No. 23-13, at 1). Based on language in the article: “During the study

period, 468 patients presented at 16-22 weeks as determined by preoperative ultrasound. Fifteen

cases were excluded from the cohort for clinical reasons (e.g., IUFD, precipitous delivery). An

additional 46 patients were excluded due to incomplete medical records. Thus, 407 cases were

eligible for analysis.” (Dkt. No. 23-13, at 2). There is no sponsoring witness for this document to

explain, among other things, its relevance to abortion care in Arkansas today or the legal and

factual issues contested by the parties in this case.

183. Defendants submit an article titled, “Safety of digoxin for fetal demise before

second-trimester abortion by dilation and evacuation,” dated 2012 (Dkt. No. 23-14). Based on the

abstract, the study design was: “a retrospective cohort study with historical controls at a large

family planning center. We reviewed the records of patients at 18 to 24 weeks’ gestation who

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received digoxin before D&E from May 15, 2007 (date the center initiated digoxin use), through

March 31, 2008. We also reviewed the records of patients who presented for D&E without digoxin

from February 22, 2006, through May 12, 2007. We compared the rates of immediate

complications.” (Dkt. No. 23-14, at 1). Based on the abstract, the results were: “We included 566

digoxin patients and 513 controls. Eleven spontaneous abortions occurred in the digoxin cohort;

none occurred among controls (p˂.001). We found 19 cases of infection in the digoxin and three

among controls (odds ratio 5.91; 95% confidence interval 1.74-20.07). Eleven digoxin patients

were admitted to a hospital after the preoperative visit; no controls were admitted (p˂.001).” (Dkt.

No. 23-14, at 1). There is no sponsoring witness for this document to explain, among other things,

its relevance to abortion care in Arkansas today or the legal and factual issues contested by the

parties in this case.

184. Defendants submit the prescribing information for digoxin, dated 2011 (Dkt. No.

25-1). There is no sponsoring witness for this document to explain, among other things, its

relevance to abortion care in Arkansas today or the legal and factual issues contested by the parties

in this case.

185. Defendants submit a document titled, “Specifications S-21: The Law Enforcement

Code of Ethics,” with no date (Dtk. No. 25-2). There is no sponsoring witness for this document

to explain, among other things, its relevance to abortion care in Arkansas today or the legal and

factual issues contested by the parties in this case.

186. Defendants submit an article titled, “Short and long term mortality rates associated

with first pregnancy outcome: Population register based study for Denmark 1980 – 2004,” dated

2012 (Dkt. No. 25-5). There is no sponsoring witness for this document to explain, among other

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things, its relevance to abortion care in Arkansas today or the legal and factual issues contested by

the parties in this case.

187. Defendants submit an abstract from an article titled, “The comparative safety of

legal induced abortion and childbirth in the United States,” dated 2012 (Dkt. No. 25-6). According

to the abstract, the results were: “The pregnancy-associated mortality rate among women who

delivered live neonates was 8.8 deaths per 100,000 live births. The mortality rate related to

inducted abortion was 0.6 deaths per 100,000 abortions. In the one recent comparative study of

pregnancy morbidity in the United States, pregnancy-related complications were more common

with childbirth than with abortion.” (Dkt. No. 23-6, at 1). The exhibit appears focused on a

comment with respect to the abstract or study. There is no sponsoring witness for this document

to explain, among other things, its relevance to abortion care in Arkansas today or the legal and

factual issues contested by the parties in this case.

188. Defendants submit an article titled, “Detective obtain fetal tissue as part of rape

investigation,” that is dated September 23, 2011, and appears to be from The Spokesman-Review

(Dkt. No. 25-7). It reports on a case from Spokane, Washington (Id.). There is no sponsoring

witness for this document to explain, among other things, its relevance to abortion care in Arkansas

today or the legal and factual issues contested by the parties in this case.

189. Defendants submit an article titled, “Tissue From Aborted Fetus Is Tested In Rape

Case,” dated November 1, 1990, that appears to be from The New York Times (Dkt. No. 25-8). It

reports on a case from Texas (Id.). There is no sponsoring witness for this document to explain,

among other things, its relevance to abortion care in Arkansas today or the legal and factual issues

contested by the parties in this case.

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190. Defendants submit an article titled, “DNA From Pre-Teen’s Late Term Abortion

Matches Milwaukee Suspect,” updated February 9, 2017, that appears to have been printed from

the internet (Dkt. No. 25-9). It reports on a case from Milwaukee, Wisconsin (Id.). There is no

sponsoring witness for this document to explain, among other things, its relevance to abortion care

in Arkansas today or the legal and factual issues contested by the parties in this case.

191. Defendants submit an article titled, “Fetal DNA filed in ’02 leads to guilty plea in

rape of St. Paul girl,” dated March 29, 2012, that appears to be from the Star Tribune (Dkt. No.

25-10). It reports on a case from St. Paul, Minnesota (Id.). There is no sponsoring witness for this

document to explain, among other things, its relevance to abortion care in Arkansas today or the

legal and factual issues contested by the parties in this case.

192. Defendants submit a document titled, “Arkansas DHS Statistical Report The

Division of Children and Family Services SFY 2015,” with information from 2015 (Dkt. No. 25-

11). There is no sponsoring witness for this document to explain, among other things, its relevance

to abortion care in Arkansas today or the legal and factual issues contested by the parties in this

case.

193. Defendants submit a document titled, “Induced Abortion Report 2019,” from the

Center of Health Statistics, Arkansas Department of Health dated June 1, 2020, with information

from 2019 (Dkt. No. 92-16). There is no sponsoring witness for this document to explain, among

other things, its relevance to abortion care in Arkansas today or the legal and factual issues

contested by the parties in this case.

194. Defendants submit an article titled, “Feasibility, effectiveness and safety of

transvaginal digoxin administration prior to dilation and evacuation,” dated 2013 (Dkt. No. 25-

13). Based on the abstract, the study design was: a “descriptive report from a single center

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involves a large case series of dilations and evacuations (D&Es) ranging from 18 to 22 weeks of

gestation. Transvaginal feticidal injection with digoxin was attempted in 1640 cases; intrafetal,

intraamniotic and combined (intrafetal and intraamniotic) injections were administered. Digoxin

dosage ranged from 0.5 to 3.0 mg, with the majority receiving 1.0 mg. Cases were reviewed to

determine feasibility, efficacy and adverse events.” (Dkt. No. 25-13, at 1). According to the

abstract, the results were: “Successful completion of transvaginal injection occurred in 98.5%

(1637/1662) of eligible cases, and 1596 cases were evaluable for fetal demise. Demise occurred

by the time of D&E in 99.4% of all cases; 99.7% of intrafetal injections resulted in fetal demise.

Doses ≥1 mg were equally effective (98.1%-99.6%) regardless of injection site (intraamniotic,

combined intrafetal/intraamniotic or intrafetal). Doses ˂1.0 mg were less successful at inducing

demise if not administered intrafetally (p˂.001). Rates of ruptured membranes (4.1%),

chorioamnionitis (0.49%) and extramural deliveries (0.12%) were low. Patients who experienced

complications were more likely to be of greater gestational age and have had a previous cesarean

section.” (Dkt. No. 25-13, at 1). There is no sponsoring witness for this document to explain,

among other things, its relevance to abortion care in Arkansas today or the legal and factual issues

contested by the parties in this case.

195. Defendants submit an article published May, 1978, titled, “A Randomized Study of

12-mm and 15.9-mm Cannulas in Midtrimester Abortion by Laminaria and Vacuum Curettage”

by Phillip G. Stubblefield, M.D. et al. (Dkt. No. 92-17). The article summarizes findings of a

study that evaluated the use of a 16 mm vacuum cannula and compared it to a 12-mm vacuum

system to “empty the uterus.” (Dkt. No. 92-17, at 1). The article states the study concluded that

the “large-cannula system was able to empty the uterus through 16 weeks, but at 17 and 18 weeks

it offered no advantage over the smaller system and forcepts were always needed.” (Id.). The

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article “caution[s] against forcible cervical dilation to 16 mm and urge[s] the use of laminaria

instead” and stated the “findings together with published reports of the safety of late dilations and

evacuation, would appear to justify wider clinical trials by experienced investigators.” (Id.). There

is no sponsoring witness for this document to explain, among other things, its relevance to abortion

care in Arkansas today or the legal and factual issues contested by the parties in this case.

196. Dr. Nichols states in his rebuttal declaration attached to plaintiffs’ reply that authors

of the Stubblefield study’s “sample size for 15 to 16 weeks LMP is very small, including only 11

patients. Suction was adequate on its own to complete an abortion in only 6 of those 11 cases

(about 50% of the patients). In the remaining 5 cases, fetal tissue lodged at the tip of [the] cannula

and had to be manually removed.” (Dkt. No. 93-1, ¶ 6a). In Dr. Nichols’s opinion, “[b]ecause the

fetus would not be intact in those circumstances, a clinician in similar circumstances would be at

risk of violating a law like the D&E Ban.” (Id.) Dr. Nichols also states that “the study noted that

forceps were required in every instance at 17 weeks LMP.” (Id.).

197. Defendants submit Chapter 11 “Dilation and Evacuation” from Management of

Unintended and Abnormal Pregnancy: Comprehensive Abortion Care, published in 2009 (Dkt.

No. 92-12). Related to “Standard D&E” the authors state that, “[e]arly in the second trimester,

suction may suffice to remove the fetus and placenta without the use of forceps.” (Dkt. No. 92-12,

at 21). The authors further observe that even at 16 weeks “forceps may be needed to extract some

fetal parts such as the calvarium or spine” and that “[a]fter about 16 weeks’ gestation, the 16-mm

suction cannula alone is not sufficient, and forceps extraction is necessary.” (Id.). Defendants offer

no sponsoring witness for this document to explain, among other things, its relevance to abortion

care in Arkansas today or the legal and factual issues contested by the parties in this case.

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198. Dr. Nichols states in his rebuttal declaration attached to plaintiffs’ reply that authors

of the “Dilation and Evacuation” chapter do not rely on any independent analysis or study, but

“relies exclusively” on a “study involving 11 patients for this proposition.” (Dkt. No. 93-1, ¶ 6b).

199. Defendants submit an article titled, “Methods for Induced Abortion” by Phillip G.

Stubblefield, M.D. et al. published July, 2004 (Dkt. No. 92-14). The article states that the “16-

mm cannula system (MedGyn, Lomard, IL) allows evacuation with the vacuum curette alone

through 16 weeks, but at 17 weeks and beyond, even this large-diameter aspiration system is not

adequate by itself. Forceps evacuation becomes the primary method and vacuum the secondary.”

(Dkt. No. 92-14, at 6). There is no sponsoring witness for this document to explain, among other

things, its relevance to abortion care in Arkansas today or the legal and factual issues contested by

the parties in this case.

200. Dr. Nichols states in his rebuttal declaration attached to plaintiffs’ reply that, “[t]his

study again relies solely on the Subblefield, Albrecht, et al. [study] for the proposition that a ‘16-

mm cannula system [] allows evacuation with the vacuum curette alone through 16 weeks.’” (Dkt.

No. 93-1, ¶ 6c). Dr. Nichols states that the study acknowledges that beyond 17 weeks “[f]orceps

evacuation becomes the primary method and vacuum, the secondary.” (Id.).

201. Defendants submit an article entitled, “Manual vacuum aspiration for second-

trimester pregnancy termination” by C.S. Todd, et al. dated May 28, 2003 (Dkt. No. 92-13).

According to the abstract, the objective was to “compare manual and electric vacuum aspiration

for surgical abortions between 14 and 18 weeks of pregnancy.” The results indicated that, “[t]here

was no significant difference in procedure time between the two groups.” (Id.). There is no

sponsoring witness for this document to explain, among other things, its relevance to abortion care

in Arkansas today or the legal and factual issues contested by the parties in this case.

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202. Dr. Nichols states in his rebuttal declaration attached to plaintiffs’ reply that the

Todd article compares the use of two types of vacuum aspiration to “initiate the D&E procedure—

in other words, prior to using forceps to remove fetal tissue.” (Dkt. No. 93-1, ¶ 6d). According to

Dr. Nichols, the study did not “examine, let alone offer any conclusions, about whether and when

suction is sufficient to cause demise prior to the use of forceps.” (Id.). Dr. Nichols states that, “the

study itself acknowledges that the size of the cannula depended on, among other things, ‘the

preference of the surgeon, and the pliability of the cervix.’” (Id.). In Dr. Nichols’s opinion,

“Defendants’ reliance on this study for the conclusion that abortions can be accomplished by

suction ‘up to 18 weeks’ (Defs.’ Br. at 52) is therefore completely unsupported.” (Id.).

203. At the time this lawsuit was filed in 2017, doctors at LRFP requested medical

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

24). In 2020, Ms. Williams avers the same, explaining that a “tiny fraction” of patients is on

average about 20 to 25 patients per year for whom doctors at LRFP request medical records (Dkt.

No. 73-3, ¶ 39).

204. According to Dr. Parker, a patient’s medical records from another health care

provider are almost never relevant to or required for abortion care, and it is exceedingly rare for

him to seek medical records from another clinician prior to providing an abortion (Dkt. No. 73-2,

¶ 34). He does not recall any instance of broadly requesting medical records about a patient’s full

reproductive history, even from a single other health care provider, before performing an abortion

(Dkt. No. 73-2, ¶ 37). In almost all situations, according to Dr. Parker, medical records play no

role in and would not affect abortion health care (Dkt. No. 73-2, ¶¶ 34, 37).

205. Dr. Parker explains that, when he does request medical records for patients, the

records typically relate to a patient’s comorbidities, rather than to pregnancy itself (Dkt. No. 73-2,

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¶ 35). He has on occasion requested records from patients’ other treating physicians, with the

patients’ consent, when patients have bleeding disorders or seizure disorders to determine whether

providing abortion care in an ambulatory setting is appropriate (Dkt. No. 73-2, ¶ 35).

206. Dr. Parker also has had patients come to him with some discrete records or have

such discrete records conveyed along with a referral, if a fetal anomaly has been diagnosed in the

patients’ current pregnancy and if the patient seeks further post-abortion tissue testing related to

that diagnosis (Dkt. No. 73-2, ¶ 36). Consistent with this, 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; Dkt. No.

73-3, ¶ 39).

207. 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; Dkt. No. 73-3, ¶ 40).

208. 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; Dkt. No. 73-3, ¶ 40).

209. 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; Dkt. No. 73-3, ¶ 41).

210. Ms. Williams avers that, for the few patients for whom LRFP requests medical

records, LRFP is generally able to obtain more limited records without delaying abortion care; if

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there is a risk that waiting for a patient’s records could unduly delay her care, it is within the

physician’s judgment whether to continue to wait for the records or proceed with her care (Dkt.

No. 73-3, ¶ 41).

211. In Dr. Parker’s experience, in those rare instances when he has requested an

abortion patient’s records from another clinician or facility, securing the records has not been easy

(Dkt. No. 73-2, ¶ 38).

212. Many of Dr. Parker’s patients typically have no health care “home” that coordinates

care, rely on episodic visits to different providers and facilities as needed, and sporadically receive

other health care, if any, in indigent-care settings largely funded by the government, including free

clinics, walk-in clinics, urgent care, and emergency rooms (Dkt. No. 73-2, ¶ 38).

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

charged for obtaining the records (Dkt. No. 6, ¶ 33). Ms. Williams is aware that some providers

charge a fee for records (Dkt. No. 73-3, ¶¶ 40, 49).

214. In Dr. Parker’s experience, securing even discrete portions of patient records from

physicians who provided care has often required multiple inquiries by his staff such as by phone,

fax, and email to identify where the records may be held, to send the patient’s signed records

release, and then to make several more contacts to obtain the records (Dkt. No. 73-2, ¶ 39; Dkt.

No. 73-3, ¶ 49).

215. Despite pressing for the records urgently given the time-sensitive nature of abortion

care, Dr. Parker’s experience has been that it may take many days to fulfill the request (Dkt. No.

73-2, ¶ 40). If the Medical Records Mandate requires securing records for a patient’s entire

pregnancy history, Dr. Parker anticipates such an effort would easily stretch over days, weeks, or

months and would depend on factors outside of his control (Dkt. No. 73-2, ¶ 42).

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216. The Medical Records Mandate, in Dr. Parker’s opinion, will delay abortion care

(Dkt. No. 73-2, ¶ 62). It provides no exceptions and requires a records search for patients (Id.).

217. The language used in the Medical Records Mandate, in Dr. Parker’s opinion, is

unclear with respect to scope of the record search required (Dkt. No. 73-2, ¶ 33). Records that

might “directly relate” to that “entire pregnancy history” would seem, at a minimum, to encompass

labor and delivery records from hospitals; records regarding any prenatal care from obstetricians

or other physicians; miscarriage records from physicians or emergency rooms; and any records

related to a prior abortion; the language also might include but not be limited to testing and

monitoring records created at laboratories, clinics, or ultrasound facilities; and the language could

include records of care or monitoring necessary for the patient’s own medical conditions

exacerbated during the patient’s current or past pregnancy, according to Dr. Parker (Dkt. No. 73-

2, ¶ 33). Ms. Williams shares these concerns (Dkt. No. 73-3, ¶ 47).

218. The language used in the Medical Records Mandate, in Dr. Parker’s opinion, is

unclear with respect to what constitutes “reasonable time and effort” to obtain the records (Dkt.

No. 73-2, ¶ 41). Ms. Williams shares these concerns (Dkt. No. 73-3, ¶ 46). This lack of clarity

impacts how facilities and physicians can plan abortion care and how patients can schedule their

care (Dkt. No. 73-2, ¶ 41; Dkt. No. 73-3, ¶ 46).

219. At the time this lawsuit was filed in 2017, LRFP provided medical care to

approximately 3,000 women each year, the majority of whom 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). Ms. Williams confirms that, as of 2020, LRFP sees

approximately 2,000 to 3,000 patients each year, the majority of whom have had one or more prior

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pregnancies, during which they received medical care from one or more providers and/or received

care for their current pregnancy (Dkt. No. 73-3, ¶ 48).

220. While LRFP currently seeks records for approximately 20 to 25 patients per year

and seeks only discrete records in most cases, seeking records for more patients if required to do

so under the Medical Records Mandate will create additional administrative and procedural

obstacles to care (Dkt. No. 73-3, ¶ 48-50). Patients likely would be required to sign a separate

form allowing physicians to obtain medical records from each health care provider from whom the

patient received past care; seeking complete pregnancy-related medical records likely would result

in a fee being charged due to the broad-nature of the request, which fee would have to be paid by

the patient or LRFP; and pursuing this type of request from each prior provider likely will require

multiple back-and-forth communications with each to have any chance of receiving records,

meaning additional LRFP staff and resources devoted to this work (Id.). LRFP will then have to

coordinate patient care based on the timing of these tasks (Id.).

221. The language used in the Medical Records Mandate does not tell abortion providers

what, if anything, they are to do with the records obtained (Dkt. No. 73-2, ¶ 44; Dkt. No. 73-3, ¶

54).

222. To the extent that the Medical Records Mandate is intended to be of service in

preventing “Sex Discrimination by Abortion,” according to Dr. Parker, it does not serve that aim

(Dkt. No. 73-2, ¶ 47). The sex of the embryo or fetus cannot be determined during the earliest

stages of pregnancy (Id.). Though testing can determine sex as pregnancy progresses, it is not

common for patients at LRFP to have undergone any testing that would reveal the sex of the

embryo or fetus prior to seeking abortion (Id.).

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223. Although an ultrasound examination is performed as part of routine prenatal care,

it cannot determine the sex of the fetus before the fourteenth week of pregnancy because male and

female fetuses develop physically in the same way up to that point (Dkt. No. 73-2, ¶ 48). Further,

although prenatal ultrasound is used to date the gestational age of pregnancy at LRFP for abortion

patients, that type relies on less powerful ultrasound technology than is used later in pregnancy for

prenatal care and does not include informing the patient of the sex of the embryo or fetus, even if

it might be determinable (Id.; see also Dkt. No. 73-3, ¶ 53).

224. There is also a blood test that can disclose information about the sex of the embryo

or fetus earlier, but that test typically occurs only for the purpose of assessing the risk of

chromosomal abnormalities in wanted pregnancies, is generally available only to those with

private health insurance coverage, and is inaccessible to the vast majority of abortion patients at

LRFP (Dkt. No. 73-2, ¶ 49).

225. Only a small minority of abortion patients come to LRFP knowing the sex of the

fetus, and those patients are almost always seeking abortion only after learning of a fetal diagnosis

(Dkt. No. 73-2, ¶ 50; Dkt. No. 73-3, ¶ 52). Their care decision has nothing to do with sex-selection,

according to Dr. Parker (Dkt. No. 73-2, ¶ 50).

226. The small minority of abortion patients who come to LRFP knowing the sex of the

fetus and seeking abortion care only after learning of a fetal diagnosis necessarily have seen at

least one prior pregnancy related medical provider (Dkt. No. 73-3, ¶ 52). Ms. Williams avers that

compliance with the Medical Records Mandate even for these patients would delay these patients

care at a time when medical risks, costs, and logistical challenges are significantly increasing and

would delay these patients timely access to care (Id.).

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227. Plaintiffs do not challenge the statute’s requirements that abortion providers ask

each patient if she knows the sex of the embryo or fetus and then inform any LRFP patient that

knows the sex “of the prohibition of abortion as a method of sex selection for children.” (Dkt. No.

73-2, ¶ 45).

228. There is no record evidence of any abortions occurring in Arkansas “solely on the

basis of the sex of the unborn child.” (See Dkt. No. 73-2, ¶ 46; Dkt. No. 73-3, ¶ 37).

229. Medical records related to a patient’s pregnancy history, especially if any past

pregnancy resulted in a miscarriage, an ectopic pregnancy, or an abortion, and not a live birth,

would be extremely unlikely to contain any record of the sex of the developing embryo or fetus

(Dkt. No. 73-2, ¶ 51). Sex-identification is not a standard part of the medical record and in many

instances may not even be known at the time of care (Id.). Although possible that historical records

regarding a wanted pregnancy terminated only after a fetal diagnosis might reflect the sex of the

fetus, that notation under such circumstances would not indicate sex selection (Id.). Medical

records are not necessary to determine the sex of past pregnancies carried to term; the abortion

patient can inform the physician of the sex of any children (Dkt. No. 73-2, ¶ 52).

230. Given this, medical records from an abortion patient’s past pregnancy history

would not provide to a physician any information about whether the patient was currently seeking

an abortion “solely on the basis of sex,” according to Dr. Parker (Dkt. No. 73-2, ¶ 53).

231. If the Medical Records Mandate’s requirement applies only to abortion patients

who have demonstrated knowledge of the sex in the current pregnancy, according to Dr. Parker,

there is no need for any medical record search to attempt to determine the same, and physicians

will have made explicit to the patient, as required by the unchallenged provision of the law, that

abortions solely for sex-selection are not permitted (Dkt. No. 73-2, ¶ 56).

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232. LRFP and Dr. Parker are well-known abortion providers. Any request for medical

records made by LRFP or Dr. Parker, in and of itself, discloses that the patient likely is seeking an

abortion (Dkt. No. 73-2, ¶ 58). 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; Dkt. No. 73-3, ¶ 43).

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

from the other health care providers for deciding to seek an abortion; Ms. Williams averts that

patients “routinely” tell her they fear this hostility and that “every week” patients ask to ensure

their current health care provider will not know that they sought abortion care (Dkt. No. 6, ¶ 28;

Dkt. No. 73-3, ¶ 44; see also Dkt. No. 73-2, ¶ 61).

234. 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; Dkt. No. 73-3, ¶ 44).

235. Dr. Parker also avers that virtually all patients are desperate to keep the fact of their

abortion private (Dkt. No. 73-2, ¶ 59). Many patients are tearful in requesting reassurance from

Dr. Parker and his staff that their abortion care will be disclosed to no one, including their other

doctors, and seek reassurance that their other health are providers will not be able to tell that they

have had an abortion from routine gynecological exams or other check-ups in the future (Id.).

236. Confidentiality is a bedrock principle of medical practice because it is foundational

to the physician-patient relationship; patients must be able to share relevant information with the

physician, so that the physician can provide the best care, and trust that the physician will keep

that information confidential (Dkt. No. 73-2, ¶ 60 (citing AMA Code of Medical Ethics Opinion

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3.2.1: Confidentiality, Am. Med. Ass’n, https://www.ama-assn.org/delivering-

care/ethics/confidentiality (last visited Nov. 12, 2020)). These foundational protections extend not

only to adults but also to minors accessing reproductive health care (Id.). Dr. Parker recognizes

that there are limited circumstances not applicable to the Medical Records Mandate that serve as

exceptions to this principle (Id.).

237. Dr. Parker and the staff at LRFP take seriously their obligation as mandatory

reporters of any suspicion of child abuse, whether sexual or otherwise, and recognize that

clinicians’ mandatory reporting of suspicions of child abuse is one of the limited, but important,

exceptions to confidential health care of any kind (Dkt. No. 73-2, ¶ 68).

238. Dr. Parker avers that he and the staff at LRFP strictly adhere to the Arkansas Child

Maltreatment Act (“CMA”) and all the state’s specialized child abuse hotline in any case in which

the CMA’s comprehensive definitions of abuse warrant reporting (Dkt. No. 73-2, ¶ 68-69).

239. Dr. Parker also avers that he and the staff at LRFP have experience cooperating

with law enforcement during active criminal investigations and are well-versed in assisting victims

when criminal allegations have been made (Dkt. No. 73-2, ¶ 70).

240. 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;

Dkt. No. 73-3, ¶ 57). See Ark. Code Ann. § 20-16-804.

241. 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).

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242. In 2019, LRFP provided abortions to five minors under the age of 14, all of five of

whom had parental consent, and 53 minors under the age of 17, all of whom except two had

parental consent with the two exceptions having received a judicial bypass (Dkt. No. 73-3, ¶ 57).

243. The numbers from 2016 and 2019 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; Dkt. No. 73-3, ¶ 57).

244. 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; Dkt. No. 73-

3, ¶ 58).

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

State Police’s Child Abuse Hotline (Dkt. No. 6, ¶ 38; Dkt. No. 73-3, ¶ 59). See Ark. Code Ann.

§ 12-18-402 (providing that mandated reporters “shall immediately notify the Child Abuse

Hotline” if they have reasonable cause to suspect child abuse and listing reproductive healthcare

facility employees and volunteers as mandatory reporters).

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

freeze and preserve the 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

to take the tissue to the Arkansas State Crime Laboratory, where it remains (Dkt. No. 6, ¶ 40; Dkt.

No. 73-3, ¶¶ 59, 61); Ark. Code Ann. § 12-18-108(b)(5).

247. 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; Dkt. No. 73-3, ¶ 62).

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248. In Ms. Williams’ experience, with respect to the requirements for patients who are

13 years old or younger, local law enforcement are rarely familiar with the requirements of the

applicable law and do not reliably comply with existing law by picking up the preserved tissue for

patients who are 13 or younger (Dkt. No. 6, ¶ 41; Dkt. No. 73-3, ¶ 62).

249. Although for most Arkansas patients 13 or younger, local law enforcement

eventually arrive to collect the tissue, in one example from the past year, such tissue has not been

picked up by the Arkansas local law enforcement, despite numerous contact attempts with law

enforcement to explain the requirements (Dkt. No. 73-3, ¶ 64).

250. 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; Dkt. No.

73-3, ¶ 65). Ms. Williams recalls at least two occasions when local out-of-state law enforcement

never came to pick up the tissue (Id.). According to Ms. Williams, “[c]ommunicating with and

involving out-of-state local law enforcement in these situations continues to be a problem. Out-

of-state local law enforcement (like most of the local Arkansas police departments) do not

understand why [Ms. Williams is] calling, or why they should comply with this Arkansas law. . .

.” (Id.).

251. Ms. Williams avers that, since the law that applies to patients who are 13 or younger

has been in effect in Arkansas, LRFP has never been contacted about the use in any active crime

investigation of fetal tissue obtained under the law and stored at the Arkansas State Crime

Laboratory (Dkt. No. 73-3, ¶ 69).

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

in small communities (Dkt. No. 6, ¶ 45; Dkt. No. 73-3, ¶ 68).

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253. Ms. Williams avers that complying with current Arkansas law for patients who are

13 or younger makes her “uncomfortable” because she is “disclosing to people in the patient’s

community – people who may know her and her family – that she has had an abortion.” (Dkt. No.

73-3, ¶ 68). Ms. Williams describes a past incident when a patient’s relative worked for the local

police department to whom Ms. Williams had to make that disclosure (Id.).

254. 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; Dkt. No. 73-3, ¶ 66).

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

sexual partner (Dkt. No. 6, ¶ 38; Dkt. No. 73-3, ¶ 59).

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

before the minor or adult victim visits LRFP, and law enforcement call LRFP before the minor or

adult patient arrives. When an investigation is involved, LRFP preserves tissue for law

enforcement (Dkt. No. 6, ¶ 39; Dkt. No. 73-3, ¶ 60). Under these circumstances, LRFP are not

initiating the process or making phone calls to local law enforcement who are not already involved;

when there is an active investigation, according to Ms. Williams law enforcement is responsive

(Dkt. No. 73-3, ¶ 60).

257. 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; Dkt. No.

73-3, ¶ 67).

258. As a matter of course, physicians do not disclose the fact that a patent has sought

confidential abortion care to any member of the patient’s local community (Dkt. No. 73-2, ¶ 63).

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259. The Local Disclosure Mandate provides parents, who almost always accompany 14

to 16 year old patients, that they have no choice with respect to the Local Disclosure Mandate and

that their name and address will also be disclosed to local police in connection with the abortion

and kept on file at the Arkansas State Crime Laboratory (Dkt. No. 73-2, ¶ 64).

260. The Local Disclosure Mandate has no exception for those few 14 to 16 year old

patients who use judicial bypass to access abortion and do not disclose their abortion to a parent

(Dkt. No. 73-2, ¶ 65; Dkt. No. 73-3, ¶ 70).

261. According to Dr. Parker, based on his many years of experience in providing

abortion care to patients of all ages, including hundreds of 14 to 16 year old patients, he cannot

imagine any 14 to 16 year old who would not be very distressed by the Local Disclosure Mandate

(Dkt. No. 73-2, ¶ 67). Ms. Williams shares this concern (Dkt. No. 73-3, ¶ 70).

262. When initially meeting with patients seeking abortion care, including 14 to 16 year

old patients, Dr. Parker and LRFP describe each step of care that will be provided and answer any

questions the patient may have (Dkt. No. 73-2, ¶ 72; Dkt. No. 73-3, ¶ 70). If the Local Disclosure

Mandate takes effect, Dr. Parker and LRFP will have to describe at that time the required

notification to local police departments, the preservation of tissue as evidence, the information

about their private lives that will go alone with that tissue, and the eventual storage of that tissue

and possible DNA testing at the Arkansas State Crime Laboratory (Id.).

263. In Dr. Parker’s opinion, setting forth the Local Disclosure Mandate’s requirements

for 14 to 16 year old patients will be confusing and troubling to the patients on whose behalf

plaintiffs challenge the Local Disclosure Mandate (Dkt. No. 73-2, ¶ 73). According to Dr. Parker,

“[t]hese required consequences shroud their abortion, and the sexual intercourse that resulted in

their pregnancy, in criminality and condemnation, even though there is no indication of any crime

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and they are in the clinic to obtain constitutionally protected medical care. This law is very likely

to shame and humiliate them.” (Id.).

264. In Dr. Parker’s opinion, the Local Disclosure Mandate’s requirements will also

create ongoing fear in his patients, given that the law “does not merely preserve ‘evidence,’ but

labels that evidence with the patient’s name and requires explicit notice to a local police officer in

communities that may be very small.” (Dkt. No. 73-2, ¶ 74). According to Dr. Parker, this breaches

privacy and “instills fear from the fact that their neighbors in law enforcement will now know of

their abortion, their home address, and perhaps their sexual partner’s name, as requested on the

State’s fetal tissue transmission form.” (Id.). This “forces them to live in fear of further breaches

in perpetuity” because they have chosen abortion and because the Local Disclosure Mandate turns

over their medical care details and the tissue from the procedure to remain in law enforcement

custody indefinitely (Dkt. No. 73-2, ¶ 76). Ms. Williams shares these concerns (Dkt. No. 73-3, ¶

70).

265. In Dr. Parker’s opinion, he anticipates the Local Disclosure Mandate’s

requirements may “be so troubling to some of these young patients that they will delay their care

or be deterred from obtaining an abortion in this state, even though they are clear in their desire

for an abortion.” (Dkt. No. 73-2, ¶ 75). According to Dr. Parker, they “may attempt to abort their

pregnancy on their own, possibly using unsafe methods, or attempt to travel to another state to

receive care without these draconian conditions,” and if they “do eventually come back to LRFP

and proceed with their abortion despite this law’s consequences, the dilemma it creates for them

will have delayed their care as they searched for and did not succeed in finding other options.”

(Id.).

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266. According to Dr. Parker, many 14 to 16 year old patients will have had limited

experience with the health care system prior to their abortion, and he expresses concern that the

Local Disclosure Mandate’s requirements may have a lasting negative impact on the patients’

willingness to seek out health are in the future (Dkt. No. 73-2, ¶ 77).

267. The Local Disclosure Mandate does not specify what happens to the tissue collected

at the Arkansas State Crime Lab or any restrictions on its use (Dkt. No. 73-3, ¶ 71).

268. The Local Disclosure Mandate applies only to patients seeking abortion care; it

does not impose the same requirements on miscarriage or ectopic pregnancy care for young people,

or for obstetrics care, even though the patients are of the same age and their reproductive health

care likewise reveals prior sexual activity (Dkt. No. 73-2, ¶ 78).

269. The Local Disclosure Mandate nowhere specifies that medication abortion is

excluded and can proceed, despite physicians and LRFP’s inability to preserve tissue and given

that the rules implementing the Local Disclosure Mandate refer to abortion by medication (Dkt.

No. 73-2, ¶ 79; Dkt. No. 73-3, ¶ 72).

270. If, as the State of Arkansas argues, the Local Disclosure Mandate does not apply to

medication abortion but instead only to procedural abortion, according to Dr. Parker it “condemns

only those patient’s choosing procedural abortion, or who are later in their pregnancy and cannot

access medication abortion, to the invasion of privacy and humiliation. . . mak[ing] one particular

medical method trigger significant consequences for the patient when another method

accomplishing the same result does not.” (Dkt. No. 73-2, ¶ 80).

271. Defendants submit an article published online on May 13, 2013, titled, “Violence,

Crime, and Abuse Exposure in a National Sample of Children and Youth An Update” (Dkt. No.

92-1). According to the summary, the results were: “Two-fifths (41.2%) of children and youth

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experienced a physical assault in the lat year, and 1 in 10 ( 10.1%) experienced an assault-related

injury. Two percent experienced sexual assault of sexual abuse in the last year, but the rate was

10.7% for girls aged 14 to 17 years. More than 1 in 10 (13.7%) experienced maltreatment by a

caregiver, including 3.7% who experienced physical abuse. Few significant changes could be

detected in rates since an equivalent survey in 2008, but declines were documented in peer

flashing, school bomb threats, juvenile sibling assault, and robbery and total property

victimization.” (Dkt. No. 23-6, at 1). There is no sponsoring witness for this document to explain,

among other things, its relevance to abortion care in Arkansas today or the legal and factual issues

contested by the parties in this case.

272. Defendants submit an article dated August, 2012, titled, “Victimizations Not

Reported to the Police, 2006-2010” (Dkt. No. 92-2). According to the article, “[d]uring the period

from 2006 to 2010, 52% of all violent victimizations, or an annual average of 3,382,200 violent

victimizations, were not reported to police;” “2 in 3 (65%) rape or sexual assault victimizations

were not reported to police from 2016 to 2010;” and “[f]rom 2006 to 2010, victimizations against

youth ages 12 to 17 were more likely to go unreported than victimizations against persons in other

age categories” (Dkt. No. 92-2, at 1, 4). There is no sponsoring witness for this document to

explain, among other things, its relevance to abortion care in Arkansas today or the legal and

factual issues contested by the parties in this case.

273. Defendants submit a report dated March, 2001, titled, “Sex Trafficking of Women

in the United States: International and Domestic Trends” (Dkt. No. 92-3). The report discusses a

study of the sex industry in the United States in the Northeast, Metro New York, Northern Midwest

– Minnesota, Southeast – Atlanta, Georgia, Florida, and Military Bases in North Carolina, and

Metro San Francisco (Dkt. No. 92-3, 32-39). There is no sponsoring witness for this document to

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explain, among other things, its relevance to abortion care in Arkansas today or the legal and

factual issues contested by the parties in this case.

274. Defendants submit an article published online on August 28, 2020, from a Little

Rock, Arkansas, television station titled, “Human trafficking cases increase in Arkansas, but not

convictions” (Dkt. No. 92-4). According to the article, a “Human Trafficking Institute report

showed just two federal convictions in 2019 and one federal conviction in 2018. On a state level,

just one human trafficking case conviction was recorded in the past two years, according to the

Administrative Office of the Courts.” (Dkt. No. 92-4, at 1-2). The article also states that according

to the report, Arkansas ranked “32nd for the number of active criminal human trafficking cases

making their way through federal courts in 2019” which, according to the article, was a slight

decrease from previous years (Dkt. No. 92-4, at 2). There is no sponsoring witness for this

document to explain, among other things, its relevance to abortion care in Arkansas today or the

legal and factual issues contested by the parties in this case.

275. Defendants submit an Arkansas state summary of the “2019 Federal Human

Trafficking Report” which states that “Federal pro

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