Arkansas can soon force rape victims to notify their assailants before terminating their pregnancy. https://t.co/5wiJwoDMm8
— Slate (@Slate) August 8, 2020
When the stridently anti-abortion, pro-Republican 8th U.S. Circuit Court of Appeals last week reinstated a group of Arkansas anti-abortion laws, it was bad news. But subsequent reporting highlights how bad the decision was not only for women in Arkansas, but across the United States.
When Chief Justice John Roberts joined four liberal justices recently to strike down an abortion-limiting law in Louisiana, it was viewed as a victory. Not really. He honored precedent on a case about an identical law, but in a concurring opinion, aligned with conservatives set a standard, adopted by the 8th Circuit, that will make it easier for courts to approve anti-abortion laws being churned out by anti-choice legislators in Arkansas and other states. How bad can these laws be?
The 8th U.S. Circuit Court of Appeals panel swept away an injunction that had blocked Arkansas from enforcing a slew of abortion restrictions, including a requirement that patients pregnant as a result of rape notify their rapists before terminating their pregnancy. The appellate court’s decision confirms that Chief Justice John Roberts’ controlling opinion in June Medical will serve as a tool to eviscerate abortion rights. Those who briefly heralded him as a champion of reproductive freedom were too caught up in the halftime show to see the game.
Could this be true, a rapist has a say in a woman’s abortion, you ask? Well, yes. A law dictating how fetal remains must be disposed of following abortion requires that both “parents” give consent for those plans.
“The Final Disposition Rights Act of 2009 is written to govern what happens when a person dies if that person, while living, didn’t specify how he or she wanted their body disposed of,” Talcott Camp, the deputy director of the ACLU’s Reproductive Freedom Project, explained over the phone.
Under the law, the decision is subject to a hierarchy of people: first the spouse, then surviving children, then surviving parents, then grandparents. As applied to fetal tissue—since a fetus wouldn’t have a spouse or children—the law would require the “parents” of the fetus to agree on a method of disposal before the abortion. If a minor is seeking an abortion, the decision would go to her parents (the “grandparents” of the fetus) because a person has to be at least 18 to exercise final disposition rights.
Currently, the only clinic in the state that offers a full range of reproductive services contracts with a vendor that transports the tissue to be incinerated. (A few women currently choose to cremate the tissue, which they arrange independently.) Under the new law, a clinic would be required to contact a patient’s sexual partner—and in some cases her parents—and all parties would have to agree on the arrangements. The law makes no exception for rape victims, who would be required to include their rapist in the decision.
There’s more than this. As Lithwick notes:
Friday’s ruling in Hopkins v. Jegley greenlights four Arkansas regulations passed in 2017. The first of these laws requires clinics to report the names of abortion patients under 18 to local law enforcement. These clinics must then preserve the fetal tissue and treat it like criminal evidence. The second law forces abortion providers to spend “reasonable time and effort” acquiring a patient’s medical records for her “entire pregnancy history” before performing the abortion. The third law grants equal rights over fetal remains to both partners, with no exception in cases of rape. A patient must notify her partner before the abortion and ask which method of disposal he prefers. If both partners are minors, the patient’s parents get to decide how fetal remains are disposed of. If the patient is a minor but her partner is an adult, then he—not the patient—makes the choice. These rules effectively prohibit medication abortion, which occurs at home, where the provider cannot control the disposal of fetal remains. The fourth and final law bans the safest and most common procedure for second-trimester abortions.
Remember this assault on women’s rights and privacy every time Attorney General Leslie Rutledge, in defending such cruel laws, says she’s protecting the health of women.
Lithwick explains the game Roberts played.
In the hours and days after June Medical came down, Roberts was celebrated for his apparent newfound wokeness. But there were indications that Roberts’ vote did not grow out of some novel devotion to reproductive freedom, but out of a commitment to the legal principle that lower courts cannot reverse the Supreme Court willy-nilly. It hardly required an act of prophesy to read the words Roberts wrote to mean precisely what he said they meant: that he had “joined the dissent in Whole Woman’s Health” and continued to believe “that the case was wrongly decided,” and also that “absent special circumstances the court must … treat like cases alike.” Whole Woman’s Health and June Medical presented identical facts. He struck down the Louisiana admitting privileges law because to do anything else would have been farcical.
The chief justice, who is very, very good at doing consequential things in invisible ways, used his opinion in June Medical as an engraved invitation to states seeking to enact [anti-abortion] TRAP laws, as long as they didn’t pass something identical to the law struck down in Texas three years earlier. It is an engraved invitation to reviewing courts to ignore the fact that a law that purported to advance women’s health in fact did nothing of the sort. It was on its face an invitation to lower courts to return to the minimal scrutiny of Planned Parenthood v. Casey’s “substantial obstacle” language. And where Whole Woman’s Health had given the judiciary a meaningful role to play in assessing whether an abortion regulation was burdensome, the chief justice made quite plain in June Medical that “state and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Courts, post–June Medical, need to stand down and let states do what they will. And that is precisely what the 8th Circuit did.