FAYETTEVILLE, ARKANSAS — Justice Anthony Kennedy’s retirement has sparked major concern among supporters of abortion access that we could soon live in a world without Roe v. Wade.
In Arkansas, people are already only a few steps away from that reality. There are only three abortion clinics in the entire state, and a law currently tied up in court would leave only one to offer it.
Originally passed in 2015, Act 577 effectively bans medication abortion, more commonly known as the abortion pill, which is commonly used for abortion at or under ten weeks after the first day of a person’s last period. The law requires doctors who offer the abortion pill to have a contract with a backup provider with admitting privileges at a hospital — despite the safety of medication abortion. It makes patients in Northwest Arkansas travel a 380-mile round trip for abortion care in Little Rock Family Planning Services, which provides surgical abortion, to get any abortion care whatsoever.
Act 577 has been through a long legal battle. After it was passed, Planned Parenthood of the Heartland challenged it in court and it was temporarily halted. Last June, the Eighth Circuit Court of Appeals lifted the injunction and Planned Parenthood appealed. The U.S. Supreme Court decided not to hear the case last month, which resulted in the law immediately going into effect. A 14-day injunction again halted the law.
The battle in the courts means that at a key juncture in their lives, Arkansas patients are being referred from one clinic to another, making travel plans, or continuing on with their pregnancy, depending on whatever the latest court order is.
How one abortion clinic responded to the chaos
At the Planned Parenthood Fayetteville Health Center, in Fayetteville, Arkansas, people can get primary care, hormone replacement therapy, STI testing, and medication abortion services, to name a few of the health care options the center provides.
Last week, the U.S. District Judge heard testimony from clinic staff and other experts, and the injunction was extended until there is a final decision on the law’s constitutionality.
Dr. Stephanie Ho of the Fayetteville Planned Parenthood said that during her testimony, the state argued patients could simply leave the state.
“[The state says] ‘They can just go out of state or you know maybe they find a volunteer to take them somewhere’ and I’m sure that certainly happens but we don’t have a reliable volunteer force or anything like that that we can refer a patient to,” she said. “And by doing so the patient would be forced to violate her health care privacy, which she deserves complete control over.”
Abortion clinic staff in Arkansas say they have been doing everything in their power — the Little Rock Family Planning clinic even used financial incentives — to secure a backup provider to comply with Act 577, but there have been challenges. Planned Parenthood and Little Rock Family Planning staff have testified to threats and daily protests and critical articles that wouldn’t make anyone eager to sign on. Dr. Ho said she has struggled to get admitting privileges to a nearby hospital because she works at a clinic that provides abortion.
Bob, a patient at the Fayetteville Planned Parenthood, has been going to see Dr. Ho for a year or more for primary care and STI testing. His wife also goes to Planned Parenthood for primary care and other services. He said he’s worried about abortion access in the state.
“It’s disturbing to me that we’re still fighting these battles and now it seems like we’re starting to go back in the wrong direction.”
“When I grew up here, during high school, Dr. [William] Harrison still had a clinic and was one of the only providers in area where women could go and even then you had the protesters,” he said. “It’s disturbing to me that we’re still fighting these battles and now it seems like we’re starting to go back in the wrong direction. It worries for women not only in Arkansas but in a lot of places. It’s funny because under Roe v. Wade abortion is supposed to be available, but they’re allowing these laws that make it harder and harder, which go against the ruling.”
Dr. Ho said that during the time Act 577 went back into effect, staff had to call patients who were already scheduled for medication abortion to tell them they would have to go to a clinic out of state or change their method of abortion entirely.
“We were really surprised the Supreme Court decided not to hear our case as well as not comment about why they made that decision, which meant the law went into effect immediately and kind of caught everyone off guard,” she said. “We had patients scheduled to take the abortion medication pill. Some patients we got a hold of and we had to explain it to them and they basically turned around and went back home … A lot of women were upset. They were frustrated. Several women were angry.”
Dr. Ho remembered one patient came in because her IUD had failed. The woman went to the emergency room because she had low pelvic pain and was told the IUD failed and that she was pregnant. Although it is standard for doctors to take out the IUD when someone is pregnant, this doctor refused to, Ho said, so the patient went to the center to get it removed and schedule an abortion.
“I had a very, very long conversation with her, saying ‘Yes I am willing to take out the IUD but I did tell her ‘I understand you are planning to terminate this pregnancy, but unfortunately, at this time, medication abortion is banned in Arkansas,’ and her words were ‘All of Arkansas?’” Ho said. “I said ‘Unfortunately, yes’ and she began to tear up. We have taken care of this patient in the past for other needs. She trusted us. She was comfortable coming here. She knew that despite not getting everything out of her visit to the ER, that we could give her that care and unfortunately we had to help her get care at another clinic when we were more than capable of providing that care. It was only the law that prevented us from doing so.”
Margaret Kenny, the officer manager at the Fayetteville Planned Parenthood, said that last summer, the clinic thought the law might go into effect again, so in addition to providing all of the information on how many appointments are required and how the medications work, staff also had to tell patients there was pending litigation and to please understand if their appointment was cancelled.
Kenny began to tear up and her voice became shaky as she described calling one patient who asked her a lot of questions about her options after being informed her medication abortion was going to be cancelled.
“She was so calm and so engaged about it on the phone. She was just so cool about it,” Kenny said. “These are strong people and they’ve made decisions and they’re looking forward to the next chapter in their life. And they ask for abortion by name. And to understand that their state was disrespecting them in that way and saying all the sudden you are not making this decision for yourself because of a little technicality…”
Some patients were absolutely shocked and uncertain if they would move forward with any abortion. When the abortion pill was banned last month, one patient from Fort Smith said if she had to get surgical abortion, she wouldn’t get any abortion at all, Kenny said.
“When I first told her what the laws were and that the laws had changed she said, ‘Let me get my partner on the phone and she said, ‘He is not going to believe that you just said that to me.’ She wasn’t angry. She was just so incredibly surprised. And I remember her saying ‘OK I need to stay calm. There is company over. There is a houseful of kids right now. I will work through this.’”
“I could really hear that stress in her voice.”
“I remember apologizing to her,” Kenny added. “I could really hear that stress in her voice. This was the medical service she wanted and she was adamant that she did not want [a surgical abortion] and that if she was facing that she was going to continue a pregnancy that she did not want because of her preference of medication abortion.”
Planned Parenthood staff said that by the time they had the 14-day temporary restraining order, most of the patients they contacted already made other plans. She said that in addition to Little Rock Family Planning, some patients were referred to the Comprehensive Health Center in Overland Park, Kansas, and Reproductive Services Oklahoma in Tulsa, Oklahoma. They didn’t hear from some patients they reached out to again.
One of the other effects of the law going back into effect was that many patients thought the clinic was closed. Some news outlets reported that the clinics would close as a result, Ho and Kenny said.
“Some patients saw that on the news and said ‘OK well I guess I won’t go for my appointment,’ but we were still open seeing patients for other services,” Ho said. “So during that time we had a lot of patients who didn’t show up for appointments and we can only assume it’s because they understood that the clinic is closed.”
Kenny said she thinks media made the connection because of clinics closing in Texas after similar restrictions went into effect, requiring abortion clinics to have admitting privileges. But comparing abortion clinics that only do surgical abortions to clinics that provide a range of services that include doesn’t make sense, Kenny pointed out. Still, they want to provide the full range of options to patients.
“We also feel that if we turn people away we’re treating people as if their choice to end a pregnancy is wrong or bad or that they’ve done something they shouldn’t and that is not the case,” she said. “Abortion care is mainstream care.”
How the state controls people’s abortion care at every turn
At 1 p.m. on June 28, when abortion patients were scheduled to come in, the Fayetteville clinic waiting room was almost completely filled with patients and their friends and family. Staff said it was a slow day for them.
Arkansas serves as a good case study for what activists in the rest of the country can do, should Roe be overturned.
It’s not just the fate of Act 577 that burdens people seeking abortion in Arkansas. Patients have to contend with a myriad of other state restrictions. The most onerous ones, Ho and Kenny said, are the 48-hour waiting period and the mandated counseling that forces doctors to tell patients about what is often called the “abortion reversal pill.” Ho said she has never met a patient who said the 48-hour waiting period played a crucial factor in their decision, and the information she provides people on the abortion reversal pill isn’t accurate. .
“They can see Dr. Ho and they can talk about what’s real. But to have to present a theory that has no basis is really demeaning too.”
“It’s not scientifically based. That is a theory. And that damages the relationship between patient and doctor,” Kenny said. “They can see Dr. Ho and they can talk about what’s real. But to have to present a theory that has no basis is really demeaning too. That’s really horrible to impose that on someone. It’s absolutely unregulated. People are given progesterone and wishful thinking and that’s really damaging. I know from working with Dr. Ho personally that it made her physically ill to have to describe that to patients.”
If Roe were overturned, Arkansans’ reproductive rights would not be protected as there is no local law protecting abortion access. There are laws pre-dating Roe v. Wade that ban abortion as well as laws that restrict abortions to the maximum extent possible in the case Roe v. Wade is overturned, according to the Guttmacher Institute. It is one of the states most at risk of restricting abortion access further than is now allowed under federal law.
After Justice Kennedy’s resignation announcement, Dr. Ho said she is seeing some local affiliates of Reproaction, a group that advocates for better climate for abortion rights, get mobilized and talk about self-managed abortions. Earlier this year, the group Women Help Women started the Self-managed Abortion, Safe and Supported to provide information on how to get and use the abortion pill and will answer questions through email.
The Arkansas Abortion Support Network received 55 percent more requests each week for funding patients’ abortions when the ban was in effect. For multiple weeks before the ban, the group received zero ride requests, but after the ban, it received three ride requests in a week, said Ali Taylor, co-founder and president of AASN.
“I feel that it’s incredibly wrong to say to a woman, you meet all these requirements to take the medication abortion pill,” Dr. Ho said. She took a long sigh and continued, “And you can do so safely, and this is your choice. And then in one week say, ‘Well the state has decided that you don’t get to make that choice for yourself.’”