Eighth Circuit Court of Appeals decision on abortions recognizes extraordinary authority of the state during public health crisis

By Lindsey Bailey French, AAC Legal Counsel

On 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 of Appeals, asking the court to direct the lower court to lift the TRO, 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 reasonably related to public health and safety, thereby ruling in favor of the state on the first prong of the Jacobson framework.

Next, the court had to determine whether the directive is “beyond all question a plain, palpable invasion” of the right to surgical abortion. The court found that the directive did not operate as an outright ban on all lawful abortions, still allowing abortion by medication which are available up to 10 weeks. Furthermore, it stated that because the Governor’s emergency declaration and its resulting directives could continue no longer than 60 days unless renewed by the Governor, the directive serves as a “delay, not a ban” on surgical abortions, similar to other delays on obtaining abortions that have previously been upheld when serving a legitimate governmental interest. Also, the court recognized the directive’s exception if there is a threat to the patient’s life. Quoting the Fifth Circuit’s decision in Abbott, the Eighth Circuit stated that the ADH directive was a “temporary postponement of all non-essential medical procedures, including abortion, subject to facially broad exceptions,” and that the measure did not serve as an “’outright ban’ on pre-viability abortion.” Therefore, the Court also ruled on the second prong of the Jacobson framework in favor of the state.

Now, circling back around to how this decision is more broad than just the constitutionality of an effective ban on surgical abortions: the court determined that the state was “clearly and indisputably entitled to issuance” of the writ of mandamus to overturn the lower court’s stay on the ADH directive. Again, quoting the Fifth Circuit Court in Abbott, the Court acknowledged that issuance of such a writ “should be exercised only in special cases.” The ADH directive is an exercise of extraordinary authority of the state recognized during special circumstances, not absolute authority. In times of crisis, such as the COVID-19 pandemic, the court acknowledged the century-old power of the state to exercise extraordinary authority by executive action, and that the pandemic justified issuance of the writ in this case. Continuing to quote Abbott, the court stated that “even a minor delay in fully implementing the state’s emergency measures could have major ramifications” to justify issuance of the writ.

There have been numerous rights that U.S. citizens take for granted daily that have been restricted during the COVID-19 pandemic. The court’s ruling could easily be applied to numerous rights that have been restricted across the country; for example, the ability of the state to effectively close restaurants, retail shops, transportation industries, etc. The ruling could be applied to other state executive actions as well, such as broad directives to release certain state prisoners. AAC Risk Management Attorney JaNan Thomas stated, “Although the framework for analysis has actually been in place for more than 100 years, the rarity of the need for extreme measures such as those we have experienced, allowed the Supreme Court precedent in Jacobson ... to go largely unused.” Thomas added that the decision “makes clear that any challenges to a government restriction put in place in response to the COVID-19 pandemic will only be struck down on a constitutional basis if that restriction ‘has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’ That is a very high standard of proof for a plaintiff. I believe the result will be, even in the uncharted waters of the novel coronavirus, that all reasonable restrictions will be upheld as constitutional as long as there is any relationship at all between the restriction and the national, state, and local goal of stopping the spread of COVID-19.”

Conversely, the Sixth and Eleventh Circuits reached the opposite conclusion, overturning effective bans on surgical abortions in Ohio and Alabama, respectively. With split circuits at the appellate level, this issue, and perhaps the Jacobson framework itself, will be ripe for review by the U.S. Supreme Court.

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