The appellants, the Unborn Child Amendment Committee, allege that the University of Arkansas for Medical Sciences (UAMS) is in violation of Amendment 68 of the Arkansas Constitution1 by allowing abortions to be performed at UAMS for reasons other than to save the life of the mother. Appellants maintain that the performance of any abortion at UAMS, whether paid for privately or through third-party providers, involves the expenditure of public funds in violation of Amendment 68. Although the trial court rejected the appellants’ expansive interpretation of Amendment 68, on June 18, 1993, the court issued an order holding that, pursuant to Amendment 68, UAMS could only use public funds to pay for an abortion to save the life of the mother, and could only perform other abortions for patients who paid for their services or who secured payment for their services through a third-party provider. Further, the court issued a permanent injunction prohibiting UAMS from performing abortions other than to save the life of the mother unless the particular patient paid the cost of the abortion in advance or furnished sufficient guarantee of payment by a third-party provider. The order and permanent injunction are appealed here.
Subsequent to the entry of the chancery court’s permanent injunction, an action was filed in the United States District Court, Eastern District of Arkansas, Little Rock Division, captioned Little Rock Family Planning Services et al. v. Thomas Dalton et al., No. LRC-93-803. The plaintiffs in that lawsuit alleged that, as long as the State of Arkansas participated in the Medicaid program, the restrictions of Amendment 68 conflicted with the requirements of the 1994 Hyde Amendment 2, which permits the use of Medicaid funds to pay for an abortion that is required either to save the life of a mother or to terminate a pregnancy resulting from rape or incest.
On July 25, 1994, the United States District Court entered a judgment and a memorandum opinion finding that Amendment 68 was inconsistent with the Hyde Amendment and therefore violates the Supremacy Clause. Little Rock Family Planning Services et al. v. Thomas Dalton et al., 1994 W.L. 386796 at 14 (E.D. Ark.). Further, the court’s order provided: “The enforcement of Amendment 68 is hereby enjoined in its entirety for so long as the State of Arkansas accepts federal funds pursuant to the Medicaid Act.” Id. On July 27, 1994, the district court entered an additional order stating: “Amendment 68 to the Arkansas Constitution directly conflicts with federal law (the 1994 Hyde Amendment) and is, therefore, null, void, and of no effect.”
On August 22, 1994, the appellees filed a motion pursuant to Ark. R. App. P. 8 asking this court to stay the order and permanent injunction of the trial court pending final determination on appeal of the decision issued by the federal district court. Appellees also asked this court to stay further proceedings in this case and to remove the oral argument of this case from this court’s calendar.
The appellants, The Unborn Child Amendment Committee, Jerry Cox, The Christian Civic Foundation, and Larry Page, joined the appellees in their request that we remove oral arguments from the case and stay further proceedings due to the developments in Little Rock Family Planning Services. However, they objected to a stay of the order and permanent injunction entered by the trial court in this matter.
Based on the limited records available at the time, this court denied the parties’ motions that we remove oral argument from our calendar and stay further proceedings in this case and we accepted the case on submission and heard oral arguments on September 19, 1994. Now having heard the arguments concerning the scope and effect of the preliminary injunction issued by the federal district court, and having reviewed fully the record and briefs submitted by the parties as well as the decision of the federal district court, this court believes that the appropriate course of action is for us to reconsider the motions of the parties and reverse our initial decision not to stay further proceedings in this case. In doing so, we also reconsider the appropriateness of the appellees’ motion for a stay of the order and permanent injunction entered by the trial court at this time.
This court recognizes that, until such time as the federal court’s decision is reversed by the appropriate appellate court, the permanent injunction issued by the federal district court will be binding on the State of Arkansas and its instrumentalities, including UAMS. State v. St. Louis-San Francisco Ry. Co., 162 Ark. 443, 451, 258 S.W. 609, 611 (1924). Yet, unless the preliminary injunction issued by the chancery court is stayed, UAMS and the State of Arkansas can only comply with the terms of one injunction by violating the terms of the other injunction. Accordingly, the appellees’ motion to stay the effect of the Pulaski County Chancery Court’s June 18, 1993, order and permanent injunction pending resolution of the appeal of the decision rendered by the federal district court in Little Rock Family Planning Services et al. v. Thomas Dalton and to stay any further proceedings in this appeal is granted.
This court, in reaching this decision, has not considered any of the constitutional issues raised in the case presented to the federal district court and this opinion should not be interpreted as suggesting any agreement on the part of this court with the federal court’s decision that Amendment 68 is unconstitutional. While this court is the final arbiter of issues involving the Arkansas Constitution and its statutes, the constitutionality of Amendment 68 is not an issue before this court.
Appellees’ motion to stay further proceedings, joined in by the appellants, is granted. Appellees’ motion to stay the order' and permanent injunction entered by the trial court is also granted.
Dudley and Newbern, JJ., dissent. Brown, J., not participating.Section 1 of Amendment 68 states as follows: “No public funds will be used to pay for any abortion, except to save the mother’s life.”
Pub. L. No. 103-112, § 509 (1993).