Hopkins v. Jegley

Hopkins v. Jegley is an ongoing legal challenge to four abortion restrictions passed by the Arkansas state legislature in 2017. Unless Roe v. Wade (1973) is overturned before the case is settled, women’s abilities to continue to exercise their right to access legal abortion in Arkansas likely depend on the outcome of this case.

Since the U.S. Supreme Court’s ruling in Roe, opponents of the legal right to abortion have pursued legislation aimed at restricting access to the procedure. As these efforts have escalated since 2011, states have enacted more than 450 new abortion restrictions, which disproportionally impact the lives of young people, people with low incomes, and minorities.

Anti-choice state lawmakers support measures that are designed to ban specific abortion procedures and interfere in the relationship between physicians and their patients. In 2017, the Arkansas General Assembly passed four abortion laws intended to achieve those goals. HB 1032 bans dilation and evacuation, which is the most commonly used method of second trimester abortion. For patients who are younger than seventeen, HB 2024 requires, even if no criminal conduct is implied, that the clinic staff report their abortions to local law enforcement and treat the fetal tissue as criminal evidence.

Imposing a ban on sex-selective abortion, HB 1434 requires physicians to ask their patients if they know the sex of the fetus. If patients respond in the affirmative, physicians, before performing abortions, must spend an undefined amount of “time and effort” obtaining their patients’ medical records relating to their “entire pregnancy history.” The medical records must document all of the patient’s past and present pregnancies.

HB 1566 requires abortion providers to comply with the Arkansas Final Disposition Rights Act of 2009 (FDRA), which governs the right to control deceased persons’ remains. Physicians must notify girls’ or women’s family members of their right to participate in the disposition of fetal remains. (Medication abortion cannot be in compliance with the FDRA because the fetal tissue is passed outside physicians’ offices.) No exceptions are allowed in cases of pregnancy that resulted from rape, which means that a rapist has a right to participate in the final disposition. Conferring disposition rights only upon those persons who are eighteen or older excludes younger teenagers. The right of disposition confers only upon the eighteen-year-old male, for example, if his female sexual partner is seventeen.

In June 2017, the Center for Reproductive Rights (CRR), the American Civil Liberties Union (ACLU), and the Arkansas ACLU, seeking a preliminary injunction to prevent enforcement of the four laws, filed suit in federal district court on behalf of Dr. Frederick W. Hopkins. In 2017, Hopkins, who is an obstetrician/gynecologist, began providing medication and surgical abortion at Little Rock Family Planning Services. Defendant Larry Jegley is the prosecuting attorney for Pulaski County.

Hopkins’s legal team argued that the laws unconstitutionally denied patients’ “rights to decide to end a pre-viability pregnancy, to make independent [pregnancy-related] decisions, and to protect their private medical information.” In July 2017, federal judge Kristine G. Baker granted the injunctive relief. Relying on the U.S. Supreme Court’s Planned Parenthood v. Casey (1992) and Whole Woman’s Health v. Hellerstedt (2016) rulings, Baker determined that the laws, if enforced, constituted an undue burden. Based upon the Casey precedent, which established that states cannot “impose an undue burden” on abortion access, Whole Woman’s Health held that the courts must weigh abortion laws’ asserted benefits against the burdens they impose on access.

In August 2017, the state appealed Baker’s decision in the U.S. Court of Appeals for the Eighth Circuit. In 2020, the Supreme Court’s rulings in Box v. Planned Parenthood of Indiana and Kentucky (2019) and June Medical Services v. Russo (2020) impacted the Hopkins case. The Box decision held that the state has a legitimate interest in the disposition of fetal remains. In June Medical, Chief Justice John Roberts joined the plurality in striking down a Louisiana abortion law as unconstitutional, while overruling the cost/benefit standard established in Whole Woman’s Health. Justice Roberts separately opined that “nothing in Casey commands consideration of a regulation’s benefits.”

In August 2020, following the June Medical and Box rulings, the Eighth Circuit lifted the preliminary injunction and remanded the Hopkins case to the federal district court. On January 5, 2021, upon motion of Hopkins and Little Rock Family Planning Services, Judge Kristine Baker granted a second preliminary injunction, succeeding a fourteen-day temporary restraining order she issued in December 2020. In fall 2021, the case was still proceeding.

For additional information:
“ACLU and Center for Reproductive Rights Win in Federal Court, Blocking Four Anti-Abortion Laws in Arkansas.” Center for Reproductive Rights. https://reproductiverights.org/aclu-and-center-reproductive-rights-win-federal-court-blocking-four-anti-abortion-laws/ (accessed October 22, 2021).

“Complaint—Hopkins v. Jegley.” Center for Reproductive Rights. https://reproductiverights.org/wp-content/uploads/2020/12/2017-06-20-1-AR-Omnibus-Complaint.pdf (accessed October 22, 2021).

Donovan, Megan K. “After the Latest Supreme Court Ruling on Abortion, the Women’s Health Protection Act is More Important than Ever.” Guttmacher Institute Policy Analysis, July 2020. https://www.guttmacher.org/article/2020/07/after-latest-supreme-court-ruling-abortion-womens-health-protection-act-more (accessed October 22, 2021).

Lithwack, Dahlia, and Mark Joseph Stern. “John Roberts’s Stealth Attack on Abortion Rights Just Paid Off.” Slate, August 7, 2020. https://slate.com/news-and-politics/2020/08/john-roberts-8^th-circuit-abortion-rights-arkansas.html (accessed October 22, 2021).

“Preliminary Injunction 2017—Hopkins v. Jegley.” Center for Reproductive Rights. https://reproductiverights.org/wp-content/uploads/2020/12/Arkansas-PI-Order_07-29-2017.pdf (accessed October 22, 2021).

Satter, Linda. “Ruling Dissolves Block on State Abortion Laws.” Arkansas Democrat-Gazette, August 8, 2020, p. 1A.

Ziegler, Mary. “Courts Are Already Cutting-Off Abortion Access—Without Saying a Word about Roe.” Washington Post, August 17, 2020. https://www.washingtonpost.com/outlook/2020/08/17/jegley-undue-burden-roe/ (accessed October 22, 2021).

Melanie K. Welch
Mayflower, Arkansas