EIGHTH CIRCUIT

The 8th Circuit Court of Appeals today upheld preliminary injunctions issued by Judge Kristine Baker against two Arkansas anti-abortion laws.

The 8th Circuit said prevailing precedent clearly prevents a state from banning abortion pre-viability, generally considered at 24 weeks. The opinion prefaced its remarks allowing the injunction this way, however, with my emphasis:

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As the district court recognized, the law governing the constitutionality of two of the three statutes at issue — Act 493 and Act 619 — though obviously subject to change in the future, is well established in this Circuit today

One of the laws, Act 493, banned abortions after 18 weeks of gestation. The other banned abortions for women who learned a fetus tested positive for Down syndrome.

The state argued the viability age might be changing, but the 8th Circuit said:

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As Defendants presented no generally accepted medical evidence that the attainment of viability has shifted to before eighteen weeks after gestation, we must affirm the district court’s order preliminarily enjoining enforcement of Act 493, which effectively prohibits a substantial universe of pre-viability abortions.

The absolute right to pre-viability abortion was central in the injunction against the Down syndrome law, the court said.

In this case, it is undisputed that Act 619 is a substantial obstacle; indeed, it is a complete prohibition of abortions based on the pregnant woman’s reason for exercising the right to terminate her pregnancy before viability. We agree with our sister circuits that it is “inconsistent to hold that a woman’s right of privacy to terminate a pregnancy exists if . . . the State can eliminate this privacy right if [she] wants to terminate her pregnancy for a particular purpose.”

The opinion also allowed Little Rock Family Planning Services, which challenged the laws and is the only medical abortion provider in Arkansas, to withdraw a challenge of a third law that required it to have a board-certified ob/GYN to perform abortions. Judge Baker had also enjoined enforcement of that law, but the clinic said it had since hired a certified physician and the court agreed that part of the ruling was now moot. The court rejected Attorney General Leslie Rutledge’s effort to get a ruling on that law anyway.

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The court chided Rutledge for her effort to get Baker removed from abortion cases.

We also reject as totally without merit Defendants’ disrespectful argument that we direct the case be reassigned because the judge who issued the Preliminary Injunction order “has a long history of unlawfully enjoining Arkansas laws.” In these motion wars, counsel of record for both sides lost sight of their duties to serve as officers of the court as well as vigorous advocates for their clients.

In other words, in this case, Judge Baker was lawful. The state of Arkansas was not.

The reference to the other side was a request from plaintiffs to dismiss the state’s initial appeal of Baker’s order consolidating this case with another challenging other anti-abortion laws. The state didn’t pursue that request in the appeal and the court said the plaintiffs’ motion to dismiss was “time-wasting.”

The decision today comes from a court that has demonstrated repeatedly it is among the most conservative in the country. It is reluctant to overturn anti-abortion laws and appears hopeful that the legal landscape is changing.

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Judge James Loken wrote the opinion and Judges Bobby Shepherd of El
Dorado and Ralph Erickson wrote concurring opinions. In a concurrence written by Shepherd and joined by Erickson, Shepherd wrote:

Because the Court’s opinion applies binding Supreme Court precedent, I join it in full. I write separately, however, to reiterate my view that “good reasons exist for the [Supreme] Court to reevaluate its jurisprudence” regarding the viability standard as announced in Planned Parenthood of Southeastern Pennsylvania v. Casey.

 

In MKB Management Corp., this Court discussed at length the reasons that the viability standard has proven unsatisfactory, including that it “gives too little consideration to the ‘substantial state interest in potential life throughout pregnancy’”  by tying the interests to scientific advancements in obstetrics and “not to developments in the unborn”; that it deprives state legislatures of the opportunities to determine the appropriate interest in protecting unborn children by substituting the Supreme Court’s “own preference to that of the legislature”; and that the factual underpinnings of Roe v. Wadeand Casey may have changed. I continue to believe that these reasons warrant reconsideration of the viability standard. But this case presents yet another reason why the viability standard is unsatisfactory and worthy of reconsideration. Act 619, which prohibits a physician from performing or attempting to perform an abortion based on a diagnosis or suspicion of Down Syndrome involves significant and, as yet, unconsidered issues regarding the balance of interests when the sole reason a woman seeks an abortion is what she deems an unwanted immutable characteristic of the unborn child. And Casey directs that we resolve this inquiry by considering viability alone.

 

… Today’s opinion is another stark reminder that the viability standard fails to adequately consider the substantial interest of the state in protecting the lives of unborn children as well as the state’s “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” The viability standard does not and cannot contemplate abortions based on an unwanted immutable characteristic of the unborn child. However, because we must apply the ill-fitting and unworkable viability standard to an act aimed at preventing eugenics-based abortions unless and until the Supreme Court dictates otherwise, I concur in the Court’s opinion holding Act 619 unconstitutional.

Erickson’s concurrence was similar and said viability alone was an “overly simplistic” standard and he wrote of the “new eugenics movement.”

Recent history demonstrates biases broadly prevalent in the society related to race, gender, sexual orientation, and medical or intellectual infirmities that could in the not-too-distant future be the subject of genetic manipulation, either in the laboratory or by termination of pregnancies. The State of Arkansas could decide that the risk posed by such practices presents a greater risk to humanity than a burden placed on a woman’s right to choose to terminate her pregnancy–but such a decision is foreclosed by our current precedent based on viability alone. The State of Arkansas could decide that addressing social inequalities and disparities is a far more appropriate response to marginalized populations than embracing the neo-eugenics movement.

He noted that pregnancy testing and abortion had led to a sharp decline in Down syndrome births in Denmark.

Last year in 2019, only seven pregnancies proceeded to term after diagnosis of Down syndrome and another 11 infants undiagnosed by the testing were born. That is a total of 18 infants with Down syndrome being born in all of Denmark. The State of Arkansas could decide that this kind of eugenics is dangerous and poses a threat to its citizens. I deeply regret that precedent forecloses a balancing of the state’s actual interest against the woman’s right to choose in enacting Act 619.

 

Comment from

ACLU:

“This ruling is a victory for all Arkansans and a decisive repudiation of Arkansas politicians’ ongoing crusade to deny people the right to make their own medical decisions and force them to continue pregnancies against their will. While today’s ruling affirms that people have a constitutional right to seek abortion care, the broader fight to keep abortion safe and legal is far from over. We will continue to defend the right of every Arkansan to make their own decisions about their lives and their health – free from political interference or punishment.”