In re Rutledge
| Decision Date | 22 April 2020 |
| Docket Number | No. 20-1791,20-1791 |
| Citation | 956 F.3d 1018 |
| Parties | IN RE: Leslie RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas; Larry Jegley, in his official capacity as Prosecuting Attorney of Pulaski County; Matt Durrett, in his official capacity as Prosecuting Attorney of Washington County; Sylvia D. Simon, M.D., in her official capacity as Chairman of Arkansas State Medical Board ; Robert Breving, M.D., in his official capacity as member of the Arkansas State Medical Board ; Veryl D. Hodges, D.O., in his official capacity as member of the Arkansas State Medical Board ; John H. Scribner, M.D., in his official capacity as member of the Arkansas State Medical Board ; Omar Atiq, M.D., in his official capacity as member of the Arkansas State Medical Board ; Rhys L. Branman, M.D., in his official capacity as member of the Arkansas State Medical Board ; Rodney Griffin, M.D., in his official capacity as member of the Arkansas State Medical Board ; Marie Holder, in her official capacity as member of the Arkansas State Medical Board ; Brian T. Hyatt, M.D., in his official capacity as member of the Arkansas State Medical Board ; Larry D. Lovell, "Buddy" in his official capacity as member of the Arkansas State Medical Board ; Timothy C. Paden, M.D., in his official capacity as member of the Arkansas State Medical Board ; Don R. Phillips, M.D., in his official capacity as member of the Arkansas State Medical Board ; William L. Rutledge, M.D., in his official capacity as member of the Arkansas State Medical Board ; David L. Staggs, M.D., in his official capacity as member of the Arkansas State Medical Board ; Nathan Smith, M.D., M.P.H., in his official capacity as Director and State Health Officer of the Arkansas Department of Health, Petitioners American Academy of Family Physicians, Amicus Curiae State of Alabama, Amicus on Behalf of Petitioner American Academy of Nursing, Amicus Curiae State of Alaska, Amicus on Behalf of Petitioner American Academy of Pediatrics, Amicus Curiae State of Idaho, Amicus on Behalf of Petitioner American College of Osteopathic Obstetricians and Gynecologists, Amicus Curiae State of Indiana, Amicus on Behalf of Petitioner American Psychiatric Association, Amicus Curiae State of Kentucky, Amicus on Behalf of Petitioner American Society for Reproductive Medicine, Amicus Curiae State of Louisiana, Amicus on Behalf of Petitioner North American Society for Pediatric and Adolescent Gynecology, Amicus Curiae State of Mississippi, Amicus on Behalf of Petitioner National Association of Nurse Practitioners in Women's Health, Amicus Curiae State of Missouri, Amicus on Behalf of Petitioner Society of Family Planning, Amicus Curiae State of Montana, Amicus on Behalf of Petitioner Society of Gynecologic Surgeons, Amicus Curiae State of Nebraska, Amicus on Behalf of Petitioner Society of OB/GYN Hospitalists, Amicus Curiae State of Oklahoma; State of Ohio; State of South Dakota; State of South Carolina; State of Tennessee; State of Texas; State of Utah; State of West Virginia; American Center for Law and Justice, Amici on Behalf of Petitioner |
| Court | U.S. Court of Appeals — Eighth Circuit |
Counsel who represented the appellant was Nicholas Jacob Bronni, AAG, of Little Rock, AR, Michael A. Cantrell, AAG, of Little Rock, AR, Dylan L. Jacobs, AAG, of Little Rock, AR, Vincent M. Wagner, AAG, of Little Rock, AR.
The following attorney(s) appeared on the amicus brief of 18 States in support of petitioner: Brett D. Watson of Searcy, AR; J. Scott St. John, Deputy Solicitor General, Louisiana DOJ, Baton Route, LA.
The following attorneys appeared on the amicus brief in support of petitioners filed by The American Center for Law and Justice in support of petitioners; Jay Alan Sekulow, Stuart J. Roth, Jordan Sekulow, Benjamin P. Sisney, Olivia F. Summers and Christian A. Stierhoff all of Washington, DC; and Edward L. White III, and Erik M. Zimmerman of Ann Arbor, MI.
The following attorneys appeared on the amicus brief in opposition filed by the State of New York and 18 other states; Barbara D. Underwood, Anisha S. Dasgupta, Laura Etlinger, Blair J. Greenwald and Letitia James of New York, NY.
The following attorneys appeared on the amicus brief filed by the American College of Obstetricians and Gynecologists, et al., in opposition to the petition: Cleland B. Welson II of Ciudad de Mexico; Kathleen S. Messinger of Los Angeles, CA; Nicole A. Saharsky of Washington, DC and Skye L. Perryman of Washington, DC.
The judge who heard the case in the district court was Honorable Kristine G. Baker. The judgment of the district court was entered on April 15, 2020.
Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
The State of Arkansas1 petitions for a writ of mandamus after the district court entered a temporary restraining order (TRO) enjoining it from enforcing a health directive against a provider of surgical abortions. Having jurisdiction under 28 U.S.C. § 1651(a), we grant the writ of mandamus in part and direct the district court to dissolve the TRO. We deny the pending emergency motion to stay the ex parte TRO and for a temporary administrative stay as moot.
Arkansas, along with the rest of the nation and the world, is in the midst of an unprecedented health crisis occasioned by the worldwide COVID-19 pandemic. Every day, the number of people infected with COVID-19 continues to rise, along with the virus’s death toll. As of April 20, 2020, testing has revealed 746,625 cases in the United States with 39,083 deaths.2 In Arkansas, as of April 20, 2020, 1,853 cases have been confirmed with 41 deaths.3 Experts believe that hospitalizations related to the disease have not yet peaked within the state, and personal protective equipment (PPE) for healthcare workers is in short supply while concerns remain about the demand for ventilators. In response to the COVID-19 pandemic, Arkansas has issued a number of emergency orders and directives in order to slow the spread of the disease and prevent hospitals and other healthcare providers from becoming overwhelmed due to the rising number of patients. These include the closing of schools for the remainder of the academic year, requiring state employees to telework, prohibiting restaurants and bars from offering dine-in service, and requiring healthcare facilities to screen staff and visitors for fever and other symptoms.
One such directive from the Arkansas Department of Health (ADH), issued on April 3, 2020, requires that all non-medically necessary surgeries be postponed. The purpose of this directive is multifold, but it primarily stems from a need to preserve existing PPE resources and limit social contact among patients, healthcare providers, and hospital staff. The directive itself is facially neutral: it applies to all types of surgical procedures. Currently, only those procedures that are deemed to be immediately necessary may take place. If it is safe to postpone an elective surgery, then it must be postponed. However, it is left to a patient’s healthcare provider to determine whether a surgery is immediately necessary or whether it may be safely performed at a later date.
On March 11, 2020, the Governor of Arkansas signed Executive Order 20-03, directing the ADH to "do everything reasonably possible to respond to and recover from the COVID-19 virus." The ADH directive was subsequently promulgated in response to Executive Order 20-03 and pursuant to the ADH’s general authority under Ark. Code Ann. §§ 20-7-109, 20-7-110. Although it has no explicit expiration date, and "while neither the ADH nor [the Governor of Arkansas] have determined how long [the directive] will remain in effect," the current state of emergency declared by the State of Arkansas may not continue "for longer than sixty (60) days unless renewed by the Governor." Ark. Code Ann. § 12-75-107(b)(2). In that the current state of emergency was declared on March 11, 2020, under state law, it may last no longer than May 10, 2020, unless renewed by the Governor of Arkansas.4 The State concedes in its brief that, absent an extension to the current state of emergency, the ADH directive must expire on May 11, 2020.5
Surgical abortions, like other surgical procedures, ordinarily require providers to use PPE to prevent "exposure to blood and other bodily fluids and tissue, and to protect the patient from infection." The relevant PPE in a surgical abortion could include a surgical mask, gloves, gown, and eye protection. Moreover, given the increasing risk of infection, all patients who undergo any type of surgical procedure may themselves need to use PPE in order to avoid contracting COVID-19. Unless deemed immediately medically necessary by a woman’s healthcare provider, surgical abortions are prohibited under the ADH directive. It appears, however, that non-surgical abortions, such as medication abortions, may still continue—again, the directive only prohibits elective or non-emergency surgical procedures.
On April 9, 2020, inspectors from the ADH conducted an unannounced inspection of the Little Rock Family Planning Services (LRFP) facility, which is a provider of surgical abortions in Arkansas. It was found that the facility was still providing surgical abortions that were not deemed immediately necessary. The following day, April 10, 2020, the ADH sent LRFP a cease-and-desist letter stating that LRFP was violating the ADH directive and ordering it to stop performing non-emergency abortion surgeries. That letter stated that surgical abortions, consistent with the ADH directive, may not take place "except where immediately necessary to protect the life or health of the patient."
On April 13, 2020, LRFP challenged the ADH directive in federal district court. However, instead of filing a new action in the district court, it sought leave to file a supplemental complaint in a pending case filed on June 26, 2019. See LittleRock Family Planning Servs. v....
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