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Home Arkansas Blog What the egregious U.S. Supreme Court has wrought on abortion

What the egregious U.S. Supreme Court has wrought on abortion

In the professed interest of solving disunity created by Roe v. Wade an egregiously dishonest and activist conservative U.S. Supreme Court majority has ended the constitutional right to abortion in the United States and thrown numerous other presumed rights into a stockpile of fuel for a bonfire of judicial lawmaking.

For example: See the Washington Post report on political efforts already underway to come up with laws to prevent women in states like Arkansas from safely seeking medical care in states where abortion remains legal. You’d think court precedent against imposing limits on interstate travel would protect women, but, as someone has noted, is travel mentioned in the Constitution?

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Lame-duck Sen. Jason Rapert isn’t through persecuting women and their supporters in the name of his religion. From the Post article:

While some antiabortion groups aspire to push Congress to pass a national abortion ban, restricting movement across state lines would represent another step in limiting the number of abortions performed in the United States.

These kinds of bills could be proposed even before state legislatures reconvene for their regular 2023 legislative sessions, said Arkansas state Sen. Jason Rapert (R). His home state, he said, may soon address this issue in an already planned special session. Another Arkansas senator, he said, has expressed interest in introducing that legislation.

“Many of us have supported legislation to stop human trafficking,” said Rapert, president of the National Association of Christian Lawmakers. “So why is there a pass on people trafficking women in order to make money off of aborting their babies?”

Only in Rapert World is medical care, sometimes for a health- and life-saving treatment,  trafficking in women. Other attorneys general are talking about prosecuting people who advertise abortion or advertise assistance for women seeking to travel elsewhere. And the Texas vigilante law is certain to be copied for these purposes, giving carte blanche to people who anonymously report people they think might have had an abortion or might have helped someone who did — even with a ride to the airport. The legal and financial threat this places on people of goodwill (and even deep religious belief that abortion is allowable, particularly in the very earliest stages of pregnancy) is incalculable.

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All this in a nation where poll after poll shows majority support for legal abortion, with limits, and huge disapproval of the U.S. Supreme Court ruling.

Disunity indeed, Mr. Justice Samuel “Egregious” Alito.

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Note: A hospital in Missouri stopped then restarted dispensation of Plan B, the morning-after pill to prevent pregnancy, because of ambiguity in Missouri law and that state attorney general’s rabid insistence on prosecuting any and all. Is Plan B OK with Leslie Rutledge? Sarah Huckabee Sanders? If they allow a reporter close enough perhaps one might ask.

The New York Times reports on the growing rift on the law, with some prosecutors saying they’ll refuse to enforce. None has surfaced in Arkansas. Benton County Prosecutor Nathan Smith even did a little grandstanding for the peanut gallery:

Planned Parenthood stopped abortions after the decision took effect. No threat from Smith was necessary. But I wonder: Could he send a letter to Arkansas legislators vowing to prosecute them if they cheat on expense payments. There’s a real and present danger in that.

This is a good point to mention that current court precedent in Arkansas protects a right to privacy from government intrusion, once the linchpin of the Roe v. Wade decision. Here’s one summary by Arkansas lawyer Anton Janik:

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The Constitution of Arkansas (‘the Constitution’) does not contain an explicit guarantee of the right to privacy. However, the Arkansas Supreme Court (‘the Supreme Court’) has found that “Arkansas has a rich and compelling tradition of protecting individual privacy and that a fundamental right to privacy is implicit in the Arkansas Constitution.” Jegley v. Picado, 349 Ark. 600, 632, 80 S.W.3d 332, 350 (2005). Arkansas requires a compelling state interest to override such right. Id.

The Supreme Court’s analysis in Jegley noted that a right to privacy arises throughout several sections of Article 2 of the Constitution. Article 2, Section 29, provides that the rights enumerated in the Constitution must not be construed in such a way as to deny or disparage other rights retained by the people:

‘This enumeration of rights shall not be construed to deny or disparage others retained by the people and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that everything in this article is excepted out of the general powers of the government, and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void.’

Turning to the remaining language, Article 2, Section 2 guarantees Arkansans certain inherent and inalienable rights, including the enjoyment of life and liberty and the pursuit of happiness:

‘All men are created equally free and independent, and have certain inherent and inalienable rights, amongst which are those of enjoying and defending life and liberty; of acquiring, possessing, and protecting property and reputation, and of pursuing their own happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.’

Sections 8 and 21 of Article 2 also ensure that no Arkansan will be deprived of life, liberty, or property without due process of law. Section 15 recognises the right of persons to be secure in the privacy of their own homes:

‘The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.’

The Supreme Court has found that such right to privacy extends to a constitutional right of individuals to be free from unreasonable intrusions into their homes. See, e.g., Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002) (finding an illegal search in violation of Ark. Const. Art. 2, § 15).

The rights granted by the Constitution are guaranteed to all citizens equally. Article 2(3) provides ‘[t]he equality of all persons before the law is recognized, and shall ever remain inviolate; nor shall any citizen ever be deprived of any right, privilege or immunity, nor exempted from any burden or duty, on account of race, color or previous condition.’ Moreover, Article 2(18) of the Constitution provides that ‘[t]he General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.’

Finally, the concept of privacy is mentioned throughout many of the statutes enacted by the Arkansas General Assembly. The Supreme Court in Jegley has recognised that this frequent reference to the right to privacy indicates a public policy of the General Assembly supporting such right.

Many ringing words, all thrown in the trash heap by the Arkansas General Assembly and, likely, by the Arkansas Supreme Court as currently constituted. Jegley v. Picado, struck down the state’s anti-sodomy law. This is but one of many precedents, along with voting rights, same-sex marriage, free speech, travel, interracial marriage, now in jeopardy thanks to the egregious Alito riuling. And don’t believe for a minute the justices who say the Roe reversal was a one-off. They are busy wrecking precedent after precedent — indigenous people’s rights in Oklahoma yesterday; New York’s state’s right to legislate gun safety recently, and, today, government regulation of the environment.

 

 

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