In a ruling yesterday, the Eighth Circuit Court of Appeals determined that Arkansas may restrict most surgical abortions as part of its prohibition on elective procedures during the COVID-19 outbreak. Earlier this month, a federal judge had temporarily blocked the policy and ruled that the state could not lawfully restrict abortions as part of its overall order.


The opinion from the Eighth Circuit on Wednesday stated that the federal judge in question had “usurped the functions of the state government by second-guessing the state’s policy choices” and noted that Arkansas was within its rights to limit surgical abortions as part of its broader effort to stop the spread of disease and conserve medical supplies for necessary procedures and emergencies.

As has been the case with many similar state policies enacted since mid March, the Arkansas ban on unnecessary procedures was challenged by an abortion provider, which brought the matter to federal court, seeking an injunction against the policy. Earlier this week, the Fifth Circuit Court of Appeals sided with Texas in one such case, allowing the state’s restriction on unnecessary procedures to include both surgical abortions and medication abortions, the latter of which are performed earlier in pregnancy. In the case of Arkansas, courts have ruled that the prohibition on surgical abortions may stand, but the prohibition on medication abortions may not.

“Medical resources—especially during a pandemic—should be used to preserve life, not end it,” said Arkansas senator Tom Cotton in response to the decision yesterday. “The Eighth Circuit Court upheld the rule of law, rightly supporting Arkansas’s decision to dedicate its health-care system to saving the lives of Arkansans.”