Judge lets challenge to Arkansas’ abortion ban proceed

A lawsuit challenging the state’s near-total abortion ban is permitted to continue, according to an order issued on Friday, Nov. 6, by Pulaski County Circuit Judge Cara Connors. This order largely denies an attempt by the defense to have the case dismissed. 

Waldorf v. Arkansas was first brought in January by seven plaintiffs, including six patients and one OB-GYN who allege Arkansas’s abortion ban — which passed in 2022 and outlaws all abortions except to spare the life of the mother — violates their constitutional right to life and liberty, among other claims. 

The women in the case were all denied care or received delayed care under the ban, to dangerous effect in some instances. The case’s lead plaintiff, Emily Waldorf of Fayetteville, was left in medical limbo after her water broke 17 weeks into her pregnancy and doctors wavered on whether she was sick enough to obtain an abortion. Waldorf paid out of pocket to take an ambulance across state lines to have the procedure.

Another plaintiff, Leitea Lowrimore, who suffered an ectopic pregnancy, was refused treatment by her doctor, who said he feared “10 years in the poky,” according to the claim. Doctors in Arkansas face fines of up to $100,000, imprisonment of up to ten years, or both, for violating the state’s abortion ban.

Connors first heard oral arguments in late September on the defendants’ motion to dismiss. In Connors’ order, the defense got some but not all of what it wished for: Connors dismissed two defendants from the suit, Gov. Sarah Huckabee Sanders and the state, on grounds that Arkansas cannot be sued in its own courts and Sanders is not responsible for enforcing the challenged law and thus cannot act illegally under the facts of this case. 

But Connors allowed the claim to continue against what the plaintiffs’ lawyers sufficiently argued are the abortion ban’s day-to-day enforcers, namely Attorney General Tim Griffin, who has the power to bring suits against violators of the ban, and the State Medical Board, which can revoke licenses.

Connors also weighed in on whether the plaintiffs sufficiently argued the claims in the case to override the defendants’ motion to dismiss. The case argues that the state’s abortion ban violates patients’ state constitutional rights to life and liberty, due process (as the law is unconstitutionally vague) and equality under the law. Connors will allow all three claims to proceed.

Connors said the plaintiffs sufficiently established that the law may be unconstitutionally vague, leaving doctors to question whether patients are sick enough to provide them with an abortion. 

“Taken as true,” Connors wrote, “these allegations plausibly state that the statute does not tell a physician when a deteriorating condition becomes one in which termination is ‘necessary to preserve the life’ of the patient.”

Does the abortion ban deny pregnant women’s right to life?

When considering the arguments about life, liberty and the pursuit of happiness, the defense’s legal team claimed that Arkansas did not have unfettered access to abortion when its constitution was drafted, and thus the document should be read in light of its framers’ intent. 

But Connors said that the plaintiffs sufficiently argued that, under a plain-language interpretation of the constitution, the abortion ban’s “chilling effect on the medical community” may abridge a woman’s right to life.

Other states, like Kansas, have ruled that abortion restrictions violate the rights of pregnant individuals. Connors, it appears, was moved by such arguments. 

“The Arkansas Constitution may afford greater protection than its federal counterpart,” she wrote.

Amplify Legal, the litigation arm of Abortion in America that brought the plaintiffs’ case, said it is awaiting a ruling on whether the abortion ban will remain in effect as the case winds its way through the courts. In a statement on Monday, a spokesperson wrote: 

“The court has not yet ruled on our request to block enforcement of Arkansas’s dangerous abortion bans, which means patients and providers will remain subject to a law that has delayed and denied care, forced people to travel out of state for treatment, and put doctors at risk of severe criminal penalties for providing necessary, life-saving care. We are confident in the strength of our clients’ claims and await the court’s decision on immediate relief.”

Defendants have 20 days to respond to the underlying lawsuit now that the motion to dismiss has been denied.