“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Eighth Circuit judge Ralph Erickson became the second Trump appellate judge to cast the deciding vote to countermand a district court and allow a state, in this case Arkansas, to ban abortions using the COVID-19 pandemic as an excuse. The April 22, 2020 ruling was in In re Rutledge.
As part of its response to the pandemic, Arkansas issued an April 3 directive that elective surgery that can be “safely postponed” should be “rescheduled.” On April 10, the state sent a specific order to Little Rock Family Planning Services (LRFP), the only surgical abortion provider in the state, directing that “all surgical abortions that are not immediately necessary to protect the life or health of the patient” must be postponed, on penalty of a fine or imprisonment. As federal district court judge Kristine Baker explained, Arkansas law provides that only surgical abortions are legal after ten weeks.
LRFP and others had previously filed a lawsuit challenging Arkansas’ restrictive abortion laws, which was pending before Judge Baker. On April 13, they filed a supplemental complaint and a motion for a temporary restraining order (TRO) against the state’s new ban. The state had been notified the day before that LRFP would seek a TRO, but had not responded as of the court’s comprehensive April 14 decision granting the TRO.
The district court found that LRFP would suffer “irreparable harm” without an injunction, especially since 26 patients were scheduled to receive surgical abortion care during the week of April 14 and the evidence indicated that by forcing patients to delay or forego such procedures, the order would “inflict serious physical, emotional, and psychological injuries” on them. The court also concluded that LRFP was likely to prevail on the merits, and that the TRO would not impair the state’s interest in protecting public health, particularly since LRFP would use its own personal protective equipment and would not “utilize” any state resources, and since the court had found that abortion is “safer and does not burden hospitals” as much as continued pregnancy and childbirth. The court explained that the TRO would last no longer than two weeks, during which time it would hold a preliminary injunction hearing where both sides could fully present evidence and argument on the issue.
The state, however, quickly sought a writ of mandamus from the Eighth Circuit directing the district court to dissolve the TRO, as Texas had done in the Fifth Circuit. Just as Trump judge Kyle Duncan was the deciding judge to grant such an “extraordinary” remedy there, Trump judge Erickson was the deciding vote in favor of Arkansas in the Eighth Circuit. George HW Bush appointee James Loken dissented, although he did not write an opinion.
In large measure, the majority echoed the reasoning of the Fifth Circuit, which has been significantly criticized as reported in this blog. The primary basis for the 2-1 decision was the majority’s view of the dire “public health crisis” facing Arkansas, and the claim that Judge Baker had not followed established Supreme Court precedent in Jacobson v. Massachusetts about government authority to infringe on constitutional rights during such times. But Judge Baker had specifically explained why her ruling was “consistent” with Jacobson, in accord with the decisions of other district courts around the country that have enjoined state attempts to use COVID-19 as an excuse to ban abortions.
In fact, just three hours after the decision, Arkansas Governor Asa Hutchinson “effectively rebutted” the majority’s “dire depiction” of the problems in Arkansas, when he stated that the state has “plenty” of hospital space and protective medical gear and that the number of cases is declining. He also announced that elective surgical procedures can resume as of April 27, 2020, which “should include surgical abortions.” As one Arkansas writer put it: “Bottom line: This anti-abortion court made a political decision and looks fairly stupid given subsequent events.”
Fortunately, the negative effects of the 2-1 decision made possible by Trump judge Erickson will be short-lived. But the case is yet another example of the serious harm to reproductive rights being done by Trump judges.