The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Eighth Circuit Reinstates Arkansas Rule Delaying "Non-Medically-Necessary" Procedures, Including Most Abortions

But the ban might still be blocked as to women who are far enough along in their pregnancies that delaying an abortion would make it illegal.


The Arkansas Department of Health, like agencies in some other states, has issued an order putting on hold all "non-medically-necessary" surgical procedures (defined as ones that are "immediately necessary to protect the life or health of the patient") including surgical abortions; medication abortions appear to still be allowed. The justification for the postponement of the procedures is "a need to preserve existing PPE [personal protective equipment] resources and limit social contact among patients, healthcare providers, and hospital staff."

A district judge blocked the ban as to abortions, but was reversed by today's Eighth Circuit decision in In re Rutledge (written by Judge Bobby Shepherd and joined by Ralph Erickson, with Judge James Loken dissenting without opinion). The opinion largely follows the logic of the Fifth Circuit opinion (In re Abbott) that reached the same result, and particularly sharply condemns the trial court for ignoring Jacobson v. Massachusetts and for reversing the order categorically as to all abortions.

But the opinion leaves open the possibility that there would need to be exceptions from the Department of Health order for those abortions for which postponement wouldn't just be a delay but a denial—those that are near viability. Indeed, in the Fifth Circuit case the trial judge reissued an order protecting those abortions, and the Fifth Circuit has kept it in place, at least at this stage of the litigation. We'll see what happens in the Arkansas case.