AAC
LEGAL CORNER
Eighth Circuit Court of Appeals decision on abortions recognizes extraordinary authority of the state during public health crisis
O
n April 22, 2020, the Eighth Circuit Court of Appeals issued a 2-1opinion that, initially, does not appear to have anything to do with your jobs as elected county and district officials. At first glance, you might think the case was about whether surgical abortions were essential medical procedures. However, the partial grant of the state of Arkansas’ petition for a writ of mandamus is about much more than abortion; it is a sweeping statement about the authority of the state’s Executive branch during a pandemic. On March 11, 2020, Gov. Asa Hutchinson signed Executive Order 20-03, declaring a state of emergency due to the COVID-19 pandemic, and directing the Arkansas Department of Health (ADH) to “do everything reasonably possible to respond to and recover from the COVID-19 virus.” Subsequently, on April 3, ADH issued a directive ordering all non-medically necessary procedures, office visits and testing postponed and rescheduled for a future date, unless there was a threat to life, limb, or would contribute to the deterioration of the condition of the patient. In part, it essentially halted all “non-essential surgeries.” The stated purpose of the directive was to “preserve staff, personal protective equipment (PPE), and patient care supplies; ensure staff and patient safety; and expand available hospital capacity during the COVID-19 pandemic.” On April 9, ADH initiated an unannounced inspection of the Little Rock Family Planning Services (LRFP) clinic, which performs surgical abortions as part of its usual business. ADH found that the clinic was still performing surgical abortions, and that it was in violation of the directive halting non-essential surgeries, since the abortions being performed were not immediately medically necessary “to protect the life or health of the patient.” LRFP challenged the directive in federal district court on April 13, asserting that the directive is not motivated by the state’s concern for public health, but rather “the latest effort in the State’s long-running campaign to eliminate women’s access to constitutionally guaranteed health care” and serves as a de facto ban on otherwise lawful surgical abortions. The lower court granted LRFP a temporary restraining order, prohibiting the state from enforcing the directive against LRFP as it relates to surgical abortions. On April 16, the state filed its appeal, in the form of a petition for writ of mandamus to the Eighth Circuit Court 16 cl_Spring_ 2020.indd 16
of Appeals, asking the court to diLINDSEY BAILEY rect the lower court to lift the TRO, General Counsel among other requests for relief. Granting the state’s petition in part, the Eighth Circuit found that the lower court erred in a “clear abuse of discretion” by its failure to apply the proper framework set forth by the U.S. Supreme Court in analyzing ADH’s directive. The framework comes from a 1905 Supreme Court case Jacobson v. Massachusetts, holding that during a public health crisis, under which the COVID-19 pandemic certainly qualifies, the state has the authority to infringe on certain individual rights to “protect itself against an epidemic of disease which threatens the safety of its members ... to be enforced by reasonable regulations, as the safety of the general public may demand.” The court created a two-prong test for analyzing a constitutional challenge to a state action during a public health crisis: either 1) it is an effort to protect the public health, morals or safety, yet has “no real or substantial relation to those objects,” or 2) it is “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” In a similar 2020 appeal from a ban on surgical abortions in Texas, In re Abbott, the Fifth Circuit Court of Appeals applied the same Jacobson framework to analyze emergency state executive action “when faced with a society-threatening epidemic.” The Fifth Circuit Court ruled that “Courts may ask whether the state’s emergency measures lack basic exceptions for ‘extreme cases,’” and whether they are “arbitrary or oppressive.” However, the court in Abbott reiterated that the “courts may not second-guess the wisdom or efficacy of the measures.” Accordingly, regarding Arkansas’s directive, the Eighth Circuit ruled that “[a]side from summarily stating that its conclusion is consistent with Jacobson, the district court failed to apply the requisite framework and, thus, abused its discretion,” resulting in a “patently erroneous result.” The Eighth Circuit Court continued by applying each Jacobson prong separately. It acknowledged the state’s “legitimate interests in protecting or promoting the public’s health and safety during the COVID-19 panic.” The court further recognized that the state’s directive applied to all non-emergency surgeries, not just abortions, and that its stated purpose of conserving PPE and limiting social contact among patients and healthcare providers was COUNTY LINES, SPRING 2020 7/14/20 1:12 PM
