We’ve reported before on the pivotal role played by Judge Bobby Shepherd of El Dorado in the conservative 8th Circuit U.S. Court of Appeals’ attack on anti-abortion laws in Arkansas, Missouri
Shepherd has lost before, for example in trying to uphold a North Dakota law banning abortion at six weeks on the debunked anti-choice lobby’s propaganda that there’s a link between abortion and breast cancer. But Anthony Kennedy has retired and the thinking is that Shepherd is crafting rulings and resisting abortion rights in hopes a change is coming at the U.S. Supreme Court. In a recent Missouri case, he upheld, at least temporarily, state laws identical to laws struck down in Texas, with Supreme Court approval.
Shepherd’s decision was “incorrect,” one expert told me. “Unpersuasive,” said several others. But its tension with abortion precedent may be by design: Now, after all, there will be a different Supreme Court grading Shepherd’s papers, and it’s likely to be friendlier to his views. In Kavanaugh’s one major abortion decision, a dissent in a Texas case from this past term, he argues against allowing an undocumented teenager to immediately undergo an abortion and repeats the phrase “abortion on demand” three times. Advocates consider that phrase a dog whistle and the opinion a rejection of precedent. Thus, for the first time in decades, the Supreme Court is poised to narrow abortion rights — and the influential appeals judges one step below the high court smell an opening.
The Missouri case isn’t over yet, but it has already broadcast an important strategy for killing Roe v. Wade without acknowledging its death: Narrow existing Supreme Court precedent until it’s all but meaningless. That is, judges don’t have to say they’re revoking abortion rights if they can just rule them widely inapplicable.
Shepherd is trying to “distinguish something that’s indistinguishable” because he sees a personnel change on the high court, said Heather Shumaker, senior counsel at the National Women’s Law Center. “That threat is not hypothetical. We see a real road map.”
PS: In answer to someone who asked the last time this came up — yes, he is the father of Arkansas House Speaker Matthew Shepherd.
