The Inside Story Of How Arkansas Exploited COVID To Stop Abortions

Under pressure by anti-abortion activists ― including a board of health member ― the state health department became a weapon in the war against abortion.

Illustrations by Mikyung Lee for HuffPost

Above: When coronavirus came to Arkansas, Marsha Boss, a longtime abortion opponent and member of the board of health, got to work.

On the first day of April, Marsha Boss, a 68-year-old Catholic pharmacist, uploaded a photo to Facebook. Snapped on a sunny day, it showed the parking lot outside Little Rock Family Planning Services, one of two abortion clinics left in Arkansas. “We watched three cars from Texas come in, three from Tennessee and one from Alabama all coming to our great state to get an abortion,” she wrote in her post. “How sad is that?”

In private, around the same time, Boss was extending her disapproval to state health officials. Over text messages and in phone calls, she complained that the clinic was violating social distancing guidelines, performing “25 to 30” abortions a day, and warned that out-of-town patients ― many of whom were fleeing abortion bans their states put in place after coronavirus hit ― might spread the infectious disease in Arkansas. She also said she saw someone carrying coveted surgical masks into the clinic, as well as beer.

“The abortion clinic think[s] they are above the laws and certainly above any rules but Now we have Covid 19,” she texted Laura Shue, general counsel of the Arkansas Department of Health (ADH). “I know you are busy Laura and I hate to bother you with all of this but I do think it’s so important.”

Long before coronavirus made its way to Arkansas, Boss was a vigilant observer of the Little Rock clinic, keeping close tabs on its activity. Since 2008, she had organized anti-abortion protests at the clinic, rallying church members to participate in 40 Days for Life campaigns as well as recruiting volunteers to pray outside its doors year-round. Unlike the radical evangelical protesters who carried grisly, blown-up photos of fetuses and called women murderers, her crew had a softer touch, favoring silent prayer and signs like “Before I formed you in the womb, I knew you.” Still, she often intercepted patients as they pulled into the driveway, handing them literature through their car window and imploring them to turn around, according to the clinic security guard, Guy Hooper, who spoke to HuffPost in a phone interview. Sometimes she’d wear a white lab coat or scrubs, Hooper said, perhaps a nod to her pharmacy degree. But since she was not an employee of the clinic, the uniform had the potential to confuse arriving patients. On her LinkedIn page, she describes her profession as an “Ongoing Prayer Warrior at God.”

Arkansas is considered one of the most anti-abortion states in the U.S. Since 2012, when Republicans took control of the state legislature, it has enacted some of the strictest laws in the nation, a handful of which are currently being challenged in court. These days, women seeking abortions must overcome an ever-expanding list of obstacles, from a 72-hour waiting period to mandated counseling on the medically debunked concept of “abortion reversal.” For some, the hurdles are simply too high; 1 in 5 women seeking an abortion will leave the state to obtain it. In 2019, abortion dropped to its lowest level in Arkansas in 42 years.

Shuttering the Little Rock clinic has long been the holy grail of the local anti-abortion movement, as it is the only clinic in the state that provides “surgical abortions.” The term itself is a misnomer, as technically no incisions or general anesthesia are performed. “Surgical abortion” refers to all abortion procedures performed in an office, such as ones that involve suction to empty the uterus. The Little Rock clinic also provides abortion by pill, as does the other remaining clinic in the state. But the medication can only be taken up to the 10th week of pregnancy, so for women in Arkansas whose pregnancies have progressed further, the Little Rock clinic is their only in-state option.

Boss referred to the Little Rock clinic as “the gates of hell” in an interview with the Arkansas Catholic in 2015. “Really, those babies are being crucified there.” In the past, she sent documentation of the clinic’s alleged misdeeds to the Pro-Life Action League, a national anti-abortion organization, and used social media to bolster opposition to the clinic. “Another poor momma went to the hospital today via ambulance from LRFP Abortion Clinic around 2 pm,” she wrote on Facebook at the end of December. “ABORTION HURTS WOMEN!!!” It’s not clear what happened that day or why an ambulance was called ― abortion is one of the safest medical procedures in America ― but Boss’s alarmist post is a common tactic of abortion foes. The goal is to make abortion appear dangerous and unregulated.

Fear was her ammunition, and when the novel coronavirus hit Arkansas in March, Boss was ready to fire. She also had a tactical advantage. In 2018, Boss was appointed to the board of health by the Republican governor of Arkansas, Asa Hutchinson, a staunch supporter of the anti-abortion movement. The board sets all the rules and regulations for licensing health care providers, including abortion clinics. In addition, it has the power to take away licenses that allow clinics to perform abortions.

As a board member, Boss took part in quarterly meetings where she voiced her concerns about the state’s abortion facilities. The meetings were regularly attended by the top health officials in the state, including Health Secretary Nate Smith, who serves in the governor’s Cabinet. And so during the biggest health crisis in a century, Boss had a direct line to those in charge of the pandemic response.

A little over a week after Boss posted about the parking lot at the Little Rock clinic, the facility would be forced to stop providing surgical abortions, setting off a catastrophe in reproductive health care in the state.

In the early months of the pandemic, many states took aggressive steps to contain the virus, ordering residents to stay home and shutting down what were deemed nonessential services. Ostensibly a series of public health calls, these measures were also acutely shaped by political pressure.

From March to May, governors in 12 states determined that abortion was not an essential health care procedure, triggering widespread confusion and some temporary clinic closures. To better understand how states came to decide whether abortion was an essential procedure, HuffPost narrowed in on one state, Arkansas, and reviewed hundreds of pages of internal communications from the state health department in April and May.

What emerged was a story of how a health department, under pressure by anti-abortion legislators and activists ― including a board of health member ― was weaponized in the war against abortion and used to justify the cessation of surgical abortions in the state.

The documents we reviewed were obtained through a Freedom of Information Act request submitted by attorneys for the Little Rock clinic. (HuffPost tried to request documents directly from the department of health but was denied because of out-of-state residence.) We spoke to six people associated with the Little Rock clinic, as well as experts in public health and abortion. Boss declined our request for an interview. So did the department of health, citing ongoing “litigation around this issue.” A spokesperson for Hutchinson noted that the directive used to halt surgical abortions had been litigated and upheld. “Surgical abortions were not entitled to a special exemption from the State’s directive,” a spokesperson for the attorney general, Leslie Rutledge, said in an email.

The consequences of the surgical abortion ban were incalculable. Scores of women had their abortion appointments canceled and had to travel out of state during the pandemic. And in a few known cases, women who wanted abortions were unable to get one before the legal cutoff and remain pregnant against their will today.

Marsha Boss sent many texts to the general counsel for the Arkansas Department of Health, Laura Shue, complaining about the Little Rock clinic. (This graphic is based on copies of the texts obtained via a Freedom of Information Act request.)
Marsha Boss sent many texts to the general counsel for the Arkansas Department of Health, Laura Shue, complaining about the Little Rock clinic. (This graphic is based on copies of the texts obtained via a Freedom of Information Act request.)
HuffPost U.S.

The first case of coronavirus in Arkansas was recorded on March 11. By the beginning of April, almost 600 people had tested positive. Hutchinson closed schools and gyms, banned on-site dining at restaurants and prohibited indoor social gatherings of more than 10 people. But unlike almost every other state, he did not issue a stay-at-home order, leaving it up to residents to determine what was safe, and many retail businesses remained open.

The state did, however, order health facilities to halt procedures that could be “safely postponed” to preserve personal protective equipment for health care professionals. The elective surgery directive, issued by the Arkansas Department of Health on April 3, carved out an exception for urgent care and situations where a condition would progress or worsen if surgery was not performed.

Most governors issued similar directives on elective procedures. However, whether abortion was considered an essential procedure or one that could be safely postponed differed depending on who was giving the orders. In neighboring Texas, an equivalent emergency order was used to shutter clinics despite concerns by medical groups, such as the American College of Obstetricians and Gynecologists, who warned that delaying abortion by days or weeks “may increase the risks or potentially make it completely inaccessible.”

Arkansas’s directive did not include a specific reference to abortion, and in public remarks after its release, Hutchinson and Smith, an infectious disease specialist and the head of the ADH, dodged questions from reporters about how it should be interpreted with respect to abortion. When asked directly on April 6 at a news conference, Smith said the directive was not “intended to replace a physician’s judgment” on whether a procedure could be safely deferred. In other words, the doctor had the final say.

Five miles away from the Little Rock clinic, employees at the state health department were scrambling to make sense of the vague order. A hotline set up to handle questions about the coronavirus was getting repeated calls about abortion, and staffers were unclear how to respond.

“Can we get clarification on whether or not abortion is considered an elective or essential procedure?” Joyce Gorney, a staffer working on the coronavirus hotline on April 6, asked in an email to a department lawyer. The lawyer said they were reviewing the concern and would get back to her. A few days later, she asked again for guidance, adding that “angry callers” were complaining about the Little Rock clinic still operating. It’s not clear if she heard back from the lawyer, but at the same time, other officials were putting together a script for operators. In an email, it was suggested that operators thank the caller “for sharing their personal perspective on the matter.” Operators were encouraged to tell callers that they were reviewing their concerns.

ADH employees were also under persistent pressure from Boss, who, in her role at the board of health, serves as a policy adviser to the department. Since the beginning of April, she had been reaching out to top officials at ADH and other staff regularly to complain about the Little Rock clinic, sending photos of cars parked outside and alleging that the health center was violating social distancing guidelines.

Boss was “very upset/irate at this moment,” an executive assistant to ADH’s chief of staff wrote in an email to department lawyers on April 1. “She wants someone to go to these places and see what’s going on and she wants to know who it will be and when.” Boss also called Smith’s office, according to emails.

On April 7, ADH received another complaint about the Little Rock clinic, this time from a retired nurse whose name was redacted in records reviewed by HuffPost. The complaint echoed many of Boss’s concerns. “There has been a great increase in the number of Women seeking abortions at this Little Rock facility from Texas, Louisiana, and Oklahoma as noted from the license plates in the parking lot,” the person wrote in an email sent directly to Smith. “They are busy busy busy making money and using valuable PPE that could be used in hospital settings to save lives.”

Within hours, Becky Bennett, chief of health facilities services, a division of ADH that handles complaints about medical facilities, sent her staff to investigate. But the scene they encountered stood in stark contrast to the allegations made by the unnamed nurse and Boss. There was only one patient car in the parking lot, and the clinic appeared to have taken measures to ensure social distancing. Screening information was posted on the front door. Inside, the waiting room had signs taped to the chairs requiring social distancing of at least 6 feet. The clinic provided 15 abortions that day, and 12 were scheduled for the following day — a far cry from the “25 to 30” claimed by Boss.

Lori Williams, the clinic’s director, explained to ADH staff that the facility had seen a slight increase in patients from Texas due to its abortion ban. Producing a copy of the April 3 directive, she told investigators that, as she understood the order, abortions qualified under the exception for time-sensitive care. The order allowed procedures if there was a risk of a condition progressing if surgery was not performed. Abortions are considered essential, she added, because any increase in gestational age increases risk to the patient, according to notes in a report written after the visit.

ADH investigators seemed to concur. They wrote that “no deficiencies were cited” and recommended no further action. The following day, ADH crafted a letter to Williams that said the clinic was in compliance with the agency’s rules and regulations. Bennett, the chief of health facilities services, signed it and asked another employee to email the letter directly to Williams. But before that employee had time to do anything, Bennett sent another email: “WAIT.”

The department would not be sending its normal letter this time. Instead, for reasons unknown, Bennett forwarded the findings to two top bosses at ADH: Renee Mallory, deputy director for public health programs, and Connie Melton, director of the Center for Health Protection. Another employee took over the responsibility of drafting the letter and looped in a lawyer in the governor’s office. By the time it came back to Bennett for her signature, the letter was unrecognizable from its original form. According to an email sent by Melton to department lawyers, the “AG modified the draft letter for the complaint investigation.” “AG” refers to Attorney General Leslie Rutledge, according to Bettina Brownstein, one of the lawyers representing the Little Rock clinic.

It was now a cease-and-desist order, directing the clinic to stop providing surgical abortions immediately or lose its license.

Above: As Arkansas stopped providing surgical abortions, other states instituted similar bans, leaving women in the region with very few options.

I talked to Williams, a nurse practitioner and the clinical director of Little Rock Family Planning Services, via a Zoom call in June. Williams, who wore navy scrubs with a light blue trim, was at the clinic, her hair pulled up into a loose ponytail. The bright overhead lights cast small shadows on her face, and she spoke in the clipped but warm tone of an experienced nurse.

“I’m always here,” she said, breaking into a brief smile. Beyond her administrative duties, Williams, who has worked at the clinic since 2004, serves primarily as the clinic’s guardian, protecting it against attacks from legislators, protesters and others intent on seeing the clinic close. In her 16 years at the clinic, she has been involved in 12 lawsuits challenging state attempts to restrict abortion access. Former and present co-workers described her as calm under pressure and professional to a fault.

Williams began her career in labor-and-delivery before going back to school for an advanced degree. After graduation, she responded to an ad in the newspaper for a job at an abortion clinic in Little Rock. Four years later, that clinic closed and she began at Little Rock Family Planning Services. She has never seen her transition from delivering babies to helping women end pregnancies as incongruent. “It wasn’t any different than the other care that I had delivered in the past,” she said. “It’s all health care, helping women in a time of need.”

As soon as the coronavirus outbreak hit Arkansas, Williams said, the clinic’s medical team put measures in place to protect patients and staff, understanding that one wrong step could be used as grounds to close them down. Abortion clinics are highly monitored in Arkansas, subject to 35 pages of rules and regulations issued by the board of health and enforced by the health department. In a sign of its immense power, ADH representatives are authorized to enter clinics without warning at any time, and they may suspend or revoke a clinic license over a single violation.

In order to reduce patient load, the clinic stopped providing basic gynecological care, such as Pap tests and sexually transmitted disease testing, Williams said, remaining open only for abortions. They staggered appointments and asked patients to wait in their cars until a private room was available. Clinic escorts ― volunteers who help patients get into the front door safely, shielding them from protesters ― were told to stay home out of an abundance of caution.

Concerns over the coronavirus did not keep the protesters away, though. Their numbers grew, Williams said, and they did not always wear masks or respect social distancing guidelines. They seemed emboldened by clinic closures in neighboring states, she thought, and eager for Arkansas to join their ranks. Boss was frequently outside, peering through the wooden slats on the security fence to take photos, the clinic’s security guard said. Twice, protesters called the police to allege illegal behavior at the clinic.

Williams was worried that Boss might try to use her power on the board of health to close the clinic, using the coronavirus to her advantage. “That was my concern,” she said. “It seems like an enormous conflict and very unethical for her to intermingle her personal opinions and her professional work.”

In the beginning of April, Williams had two phone calls with ADH in which she explained the measures the clinic was taking. She was not told that abortion was considered nonessential, she said. Nor did anyone tell her that when ADH made an unannounced visit on April 7. So when a health official showed up three days later on Good Friday with a cease-and-desist order, she was surprised.

That day, the clinic was scheduled to provide surgical abortions for eight patients, including one who was 17 weeks pregnant. (Currently, women in Arkansas can get an abortion up to the 20th week; an 18-week ban signed into law by Hutchinson in 2019 is temporarily blocked by a federal judge.)

It was the second visit to the clinic for all of the women, as they were required to come in 72 hours earlier for mandated counseling. Many of them had driven long distances ― twice. Now they were being told they could not get an abortion after all.

Williams’s first concern was helping them find an appointment elsewhere. But many of the surrounding states were struggling with similar abortion bans. “Louisiana and Texas and Tennessee all were unable to provide surgical care at some point during this,” she said. “It was difficult to navigate who was still open to seeing patients and where would be the closest place for them to drive. Air travel wasn’t an option at all.”

As clinic staff counseled frantic women, anti-abortion protesters and state representatives were celebrating outside. Boss arrived at the clinic before ADH staff delivered the letter, according to Hooper, the clinic’s security guard. Standing by the driveway, Republican state Sen. Jason Rapert livestreamed on Facebook. “Right through that door, they enter there and they’re making a decision that will change their lives and will end the lives of little human beings,” he said. “We need to take a stand for human life.” He was not wearing a mask.

On Twitter, another GOP state senator, Trent Garner, applauded the news. “It looks like the enforcement of the directive stopping abortions is starting,” he wrote. (A few weeks earlier, he had pressured the governor to ban abortion in an insensitive tweet: “We shouldn’t expose women to the risk of the Wuhan COVID-19 virus for an unnecessary elective procedure, and we could save the unborn babies lives.”)

In a statement posted online, Rutledge, the attorney general, promised to take decisive action if the directive was violated.

Williams, who has the American Civil Liberties Union on speed dial, called for help.

Marsha Boss advises Laura Shue, general counsel for the Arkansas Department of Health, when to send investigators to the clinic. (This graphic is based on copies of the texts obtained via a Freedom of Information Act request.)
Marsha Boss advises Laura Shue, general counsel for the Arkansas Department of Health, when to send investigators to the clinic. (This graphic is based on copies of the texts obtained via a Freedom of Information Act request.)
HuffPost US

The following Monday, on April 13, the ACLU, along with the law firm of O’Melveny & Myers, sued the state on behalf of the clinic, asking a district court to block the surgical abortion ban. “This was a political decision made by the governor,” Brownstein said. “In my opinion, the Department of Health did not want to do the cease-and-desist order. There was so much political pressure, not just from Marsha Boss but certain anti-choice legislators, and they made so much noise that the governor acquiesced.”

By late Tuesday night, a federal judge issued a temporary restraining order, allowing surgical abortion services to resume. Williams spent all day Wednesday calling patients and rescheduling their appointments. A few women were nearing the legal limit for abortion, and the race was on to get them seen. For three days the clinic was able to perform surgical abortions before the courts stepped in again.

On April 22, the U.S. Court of Appeals for the 8th Circuit reinstated the ban, reversing the lower-court decision. The judges wrote that the ADH directive was really “a delay, not a ban,” because it would expire on May 11 unless the governor renewed the state of emergency.

Once again, the clinic had to stop providing surgical abortions. Williams canceled dozens of appointments at the last minute. By this point, she said, the delays had sown confusion and created a severe bottleneck, with more and more patients desperate for appointments as their pregnancies progressed. “We had at least 40 patients that we helped to find other places to go,” she said. “But there were dozens and dozens of women calling us trying to make appointments who we couldn’t provide care to.”

The clinic was still providing medication abortions, she said, but the two-drug regimen can only be used within the first 10 weeks of pregnancy.

On April 27, the state issued a new elective surgery directive. Under the modified rules, elective surgeries could resume as long as the patient could obtain a negative COVID-19 test within 48 hours of their procedure. Amid a nationwide shortage of coronavirus test kits, patients seeking surgical abortions were now given the hopeless task of tracking down a facility that would test asymptomatic patients and return the results rapidly.

“They kept moving the goal posts on us,” Williams said. “It was extraordinarily difficult.” She called more than 15 hospitals and urgent care facilities to ask about obtaining quick and reliable testing for her patients without luck. That week, the Little Rock clinic had to turn away more than 50 patients who sought care, including 14 who attempted but were unable to obtain COVID-19 testing results in time. Williams emailed ADH asking for assistance in finding a laboratory that could guarantee the short turnaround time but did not receive a response.

On May 1, the Little Rock clinic filed another emergency lawsuit, asking for relief from the testing requirement and warning that there were several women who were days away from the state cut-off for an abortion and who had not been able to obtain a COVID-19 test. This time, the court would not intervene. On May 7, a federal judge denied the clinic’s request, citing the 8th Circuit opinion, which said that when facing a public health crisis, a state may take measures that infringe on constitutional rights.

Then, almost two weeks later, ADH announced it was relaxing the testing requirement. Effective May 18, patients had 72 hours prior to the elective procedure to obtain a test. By that point, Williams said, the clinic was able to develop relationships with some laboratories to facilitate rapid testing, and more tests were available statewide. It still wasn’t easy for their patients, and for some it was an obstacle they couldn’t overcome, but the clinic decided to dismiss the lawsuit.

“We still think the orders are unconstitutional, but we are fighting many battles to keep reproductive choice a reality in this state,” Brownstein said. “There are certainly more to come.”

The full toll of America’s clinic closures during the coronavirus pandemic is still being understood. How many did not have enough money to travel to another state for care? How many today are carrying to term babies they did not want? How many attempted a secret abortion at home?

These are questions without answers, at least not yet.

In Arkansas, the Little Rock clinic saw far fewer patients in April and May than it did last year because of the evolving bans on surgical abortion. Williams wonders what has happened to those women whom the clinic was not able to help. She knows of at least two patients who missed the window for a legal abortion and are still pregnant.

Even the patients who were able to obtain an abortion under the governor’s rules were severely affected by the stress of the experience, she said.

One woman had to drive to Little Rock seven times before she was able to obtain an abortion. “She had a COVID test, and it didn’t come back in time. So then she had to retest, and wait to see if it came back before her appointment, and we just went through this terrible cycle over and over,” Williams said.

The woman almost lost her job because of unexplained absences, Williams said, adding that she called the patient’s boss to explain why she needed so many days off. On top of the financial cost ― lost wages and paying for gas to and from health care facilities ― the woman was traumatized from having to continue an unwanted pregnancy for an additional month. “She felt like she was doing everything she was being asked to do and still being denied an abortion,” William said.

Williams is careful not to blame any one person for what happened to abortion access in Arkansas during the pandemic. “It’s the Department of Health, it’s the governor,” she said. She also suspects that Boss, in her dual position as anti-abortion protester and board of health member, played a significant role. In a statement sent to HuffPost, Hutchinson defended Boss, writing that she was “entitled to express her beliefs” and noting the importance of diverse perspectives on the board of health.

To Williams, it seems like women were denied their constitutional right to obtain an abortion over a callous political stunt.

It didn’t have to be this way, she added.

“In the overwhelming majority of states, there was no interruption of abortion care. They allowed physicians and medical professionals to make judgments on what care is appropriate and how to do it,” she said. “In Arkansas, the ability to seek an abortion has been just truly violated.”

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