IN THE UNITED STATES DISTRICT COURT EASTERN …

1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF arkansas WESTERN DIVISION FREDERICK W. HOPKINS, , PLAINTIFF v. Case No. 4:17-cv-00404-KGB LARRY JEGLEY, Prosecuting Attorney for Pulaski County, STEVEN L. CATHEY, , Chair of the arkansas State medical board ; ROBERT BREVING, JR., ; BOB E. COGBURN, ; WILLIAM F. DUDDING, ; OMAR T. ATIQ, ; VERYL D. HODGES, ; MARIE HOLDER; LARRY D. LOVELL; WILLIAM L. RUTLEDGE, ; JOHN H. SCRIBNER, ; SYLVIA D. SIMON, ; DAVID L. STAGGS, ; JOHN B. WEISS, , officers and members of the arkansas State medical board , and their successors in office, in their official capacity, DEFENDANTS PRELIMINARY INJUNCTION ORDER Plaintiff, Frederick W. Hopkins, , , files this suit pursuant to 42 1983 against defendants Larry Jegley, Prosecuting Attorney for Pulaski County; Steven L.

2 Cathey, , Chair of the arkansas State medical board ; and Robert Breving, Jr., ; Bob Cogburn, ; William F. Dudding, ; Omar T. Atiq, ; Veryl D. Hodges, ; Marie Holder, Larry D. Lovell; William L. Rutledge, ; John H. Scribner, ; Sylvia D. Simon, ; David L. Staggs, ; and John B. Weiss, , as officers and members of the arkansas State medical board in their official capacities. Dr. Hopkins mounts a constitutional challenge to four acts of the 91st arkansas General Assembly of 2017, Act 45 ( 1032) ( D&E Mandate ), Act 722 ( 1434) ( medical Records Mandate ), Act 1018 ( 2024) ( Local Disclosure Mandate ), and Act 603 ( 1566) ( Tissue Disposal Mandate ), to be codified at arkansas Code Annotated Case 4:17-cv-00404-KGB Document 35 Filed 07/28/17 Page 1 of 1402 20-16-1801 to 1807, 20-16-1801 to 1810, 20-16-108(a)(1), and 20-17-801 to 802, By its terms, 1434 takes effect January 1, 2018.

3 The remaining three laws, 1032, 2024, and 1566, are set to take effect on or about July 30, 2017. Before the COURT is Dr. Hopkins s motion for preliminary injunction or in the alternative temporary restraining order (Dkt. No. 2). Dr. Hopkins seeks preliminary injunctive relief based on the following claims in his complaint: Count 1 based on the D&E Mandate, Counts III and IV based on the medical Records Mandate, Counts VI and VIII based on the Local Disclosure Mandate, and Counts X and XI based on the Tissue Disposal Mandate. Dr. Hopkins claims that [t]hese statutes threaten [him] with criminal penalties and deny and burden [his] patients constitutionally protected rights to decide to end a pre-viability pregnancy, to make independent decisions related to their pregnancy care, and to protect their private medical information.

4 (Dkt. No. 1, at 3, 9). He seeks declaratory and injunctive relief [t]o protect his patients from these constitutional violations, to enforce his own right to clear legal standards, and to avoid irreparable harm.. (Dkt. No. 1, at 3, 9). Defendants responded in opposition to the motion (Dkt. No. 23). Dr. Hopkins filed a reply (Dkt. No. 32). Defendants also submitted two notices of supplemental authority (Dkt. Nos. 31, 34). The COURT conducted a hearing on the motion on July 13, 2017. The parties agreed among themselves not to present additional evidence at the hearing but instead to present only argument, 1 As Dr. Hopkins points out, 1032 and 1434 amend arkansas Code Title 20, Chapter 16 to add additional subchapters.

5 Each bill numbers its first additional subchapter as 20-16-1801 and continues numbering subchapters consecutively. For clarity, Dr. Hopkins refers to the subchapters as numbered in their respective bills, even though it is anticipated that this is a drafting error and that subchapters in the proposed bills will be added using consecutive, not concurrent, numbering. Case 4:17-cv-00404-KGB Document 35 Filed 07/28/17 Page 2 of 1403 and the COURT agreed to hear only argument. For the following reasons, the COURT grants Dr. Hopkins s motion for preliminary injunction. I. Findings of Fact 1. Dr. Hopkins is a board -certified obstetrician-gynecologist with 25 years of experience in women s health. He is licensed to practice medicine in arkansas , as well as other STATES including California and New Mexico.

6 For over five years, Dr. Hopkins has been both Co-Director of the Family Planning Training Program at Santa Clara Valley medical Center in Santa Clara, California, and Associate Clinical Professor in obstetrics and gynecology at Stanford University School of Medicine in Palo Alto, California (Dkt. No. 5, 1). 2. Earlier in 2017, Dr. Hopkins began providing care at Little Rock Family Planning Services in Little Rock, arkansas (Dkt. No. 5, 1). 3. At Little Rock Family Planning Services, Dr. Hopkins provides care that includes medication abortion in the early part of the first trimester and surgical abortion through 21 weeks and six days as measured from the woman s last menstrual period ( LMP ), which is referred to as weeks LMP (Dkt. No. 5, 2; Dkt.)

7 No. 6, 2). 4. Dr. Hopkins provides abortion and miscarriage services for patients from young teenagers to women in their later reproductive years (Dkt. No. 5, 2). 5. Dr. Hopkins has performed work in Kenya, Tanzania, and Zimbabwe. As a result of that work, he has seen firsthand the results of denying women access to safe abortion care (Dkt. No. 5, 3). 6. There are only two entities providing abortion care in arkansas : Little Rock Family Planning Services, which provides abortions through weeks LMP, and Planned Parenthood Case 4:17-cv-00404-KGB Document 35 Filed 07/28/17 Page 3 of 1404 Great Plains, which provides only medication abortion through 10 weeks LMP in Little Rock and Fayetteville, arkansas (Dkt. No. 5, 6; Dkt. No. 6, 2). 7. If hospitals in arkansas are providing any abortion care, it is in only rare circumstances (Dkt.

8 No. 5, 6). 8. Under current arkansas law, a woman must first receive state-mandated counseling, in person at the clinic before having an abortion. See Ark. Code Ann. 20-16-1703(b)(1), (2). A woman must then wait 48 hours after that state-mandated counseling before she returns to the clinic for her procedure (Dkt. No. 5, 7; Dkt. No. 6, 7). 9. Given the requirements of arkansas law regarding mandated state counseling, for patients receiving abortion care up to weeks LMP, the law requires at least two trips to the clinic (Dkt. No. 6, 7). 10. According to Dr. Hopkins, the state-mandated counseling and 48-hour waiting period can result in a delay longer than 48 hours for many patients (Dkt. No. 5, 7). 11. Women must consider whether they have someone to accompany them to the clinic.

9 The support person s availability may impact when a woman is able to return, after the mandatory delay, to receive medical care (Dkt. No. 6, 7). 12. Little Rock Family Planning Services provides care to women from throughout arkansas and from other STATES (Dkt. No. 5, at 37; Dkt. No. 6, 5). 13. Many patients of Little Rock Family Planning Services are low-income. Approximately 30 to 40% of patients obtain financial assistance to pay for their abortion care (Dkt. No. 6, 5). 14. Many patients of Little Rock Family Planning Services struggle in their lives and in their efforts to access the medical care they need (Dkt. No. 6, 5). Case 4:17-cv-00404-KGB Document 35 Filed 07/28/17 Page 4 of 1405 15. The time and effort it takes to make the necessary plans to access medical care cause anxiety and stress and cause financial pressure for women seeking care at Little Rock Family Planning Services.

10 Women must arrange for time off work on multiple days, which can be very difficult given that many are in low-wage jobs and feel that they cannot explain to an employer the reason they need to take time off. For women who already have children, these women must arrange and often pay for childcare. These women also must arrange and pay for transportation. In some cases, these women also have to arrange and pay for a place to stay for multiple nights (Dkt. No. 6, 8). 16. Patients of Little Rock Family Planning Services seek abortions for a variety of personal, medical , financial, and family reasons, including that the woman has one child but believes she cannot parent another; that the woman believes she is too young to be ready to carry a pregnancy or to become a parent; that the woman is pursuing educational or work opportunities; that the woman has a health condition that makes carrying a pregnancy dangerous; that the woman has received a diagnosis of fetal abnormality; that the woman is in an abusive relationship; and that the woman is pregnant as a result of rape or sexual assault (Dkt.)