AAC
reasonably related to public health and safety, thereby ruling in favor of the state on the first prong of the Jacobson framework. Next, the court had to determine whether the directive is
“beyond all question a plain, palpable invasion” of the right to surgical abortion. Te court found that the directive did not operate as an outright ban on all lawful abortions, still allow- ing abortion by medication which are available up to 10 weeks. Furthermore, it stated that because the Governor’s emergency declaration and its resulting directives could continue no lon- ger than 60 days unless renewed by the Governor, the directive serves as a “delay, not a ban” on surgical abortions, similar to other delays on obtaining abortions that have previously been upheld when serving a legitimate governmental interest. Also, the court recognized the directive’s exception if there is a threat to the patient’s life. Quoting the Fifth Circuit’s decision in Ab- bott, the Eighth Circuit stated that the ADH directive was a “temporary postponement of all non-essential medical proce- dures, including abortion, subject to facially broad exceptions,” and that the measure did not serve as an “’outright ban’ on pre- viability abortion.” Terefore, the Court also ruled on the sec- ond prong of the Jacobson framework in favor of the state. Now, circling back around to how this decision is more
broad than just the constitutionality of an effective ban on surgical abortions: the court determined that the state was “clearly and indisputably entitled to issuance” of the writ of mandamus to overturn the lower court’s stay on the ADH directive. Again, quoting the Fifth Circuit Court in Abbott, the Court acknowledged that issuance of such a writ “should be exercised only in special cases.” Te ADH directive is an exercise of extraordinary authority of the state recognized dur- ing special circumstances, not absolute authority. In times of crisis, such as the COVID-19 pandemic, the court acknowl- edged the century-old power of the state to exercise extraor- dinary authority by executive action, and that the pandemic
Automation
tive Office of the Courts (AOC) is making with such limited resources. Tey are striving to become technological innovators, and their innovations will save the state millions of dollars.” E-filing has come a long way since it was introduced, and
the AOC is constantly working to improve the user experi- ence. Since the public health emergency began, AOC has re- ceived multiple requests for e-filing implementation. By the end of the year more than half the counties in the state will be e- filing. Chief Justice Kemp’s goal for e-filing statewide may come true before the year of 2025. E-filing is convenient for your con- stituents and will save your county money and storage space.
COUNTY LINES, SPRING 2020
LEGAL CORNER
justified issuance of the writ in this case. Continuing to quote Abbott, the court stated that “even a minor delay in fully im- plementing the state’s emergency measures could have major ramifications” to justify issuance of the writ. Tere have been numerous rights that U.S. citizens take for granted daily that have been restricted during the COVID-19 pandemic. Te court’s ruling could easily be applied to nu- merous rights that have been restricted across the country; for example, the ability of the state to effectively close restaurants, retail shops, transportation industries, etc. Te ruling could be applied to other state executive actions as well, such as broad directives to release certain state prisoners. AAC Risk Manage- ment Attorney JaNan Tomas stated, “Although the frame- work for analysis has actually been in place for more than 100 years, the rarity of the need for extreme measures such as those we have experienced, allowed the Supreme Court precedent in Jacobson ... to go largely unused.” Tomas added that the deci- sion “makes clear that any challenges to a government restric- tion put in place in response to the COVID-19 pandemic will only be struck down on a constitutional basis if that restriction ‘has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’ Tat is a very high standard of proof for a plaintiff. I believe the result will be, even in the uncharted waters of the novel coronavirus, that all reasonable restrictions will be upheld as constitutional as long as there is any relation- ship at all between the restriction and the national, state, and local goal of stopping the spread of COVID-19.” Conversely, the Sixth and Eleventh Circuits reached the op- posite conclusion, overturning effective bans on surgical abor- tions in Ohio and Alabama, respectively. With split circuits at the appellate level, this issue, and perhaps the Jacobson frame- work itself, will be ripe for review by the U.S. Supreme Court.
Continued From Page 15 <<< “I appreciate the support and forward thinking of my col-
leagues on the Supreme Court during these challenging times,” said Chief Justice Kemp when asked for a comment for this article. “I also appreciate the hard work of the Supreme Court Clerk’s Office and the staff of the Administrative Office of the Courts. Tanks to their efforts and the extraordinary work of the circuit and district judges throughout the state and their staffs and clerks’ offices, we have managed to keep our courts open and operating effectively for the citizens of Arkansas.” Is this the new normal?
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