In the next couple of weeks, the Supreme Court will experience a bit of déjà vu. The court is set to decide whether to hear arguments on an Arkansas abortion law that is almost identical to a Texas law the court declared unconstitutional in 2016. Supporters of the Arkansas law, which requires abortion providers to obtain admitting privileges from nearby hospitals, say it’s necessary to protect women’s health. But in the Supreme Court’s 2016 majority opinion in Whole Woman’s Health v. Hellerstedt, Justice Stephen Breyer wrote that there was no evidence that the Texas law improved women’s health at all, nor that there was any “significant health-related problem for the new law to cure” in the first place.
And yet, when Planned Parenthood challenged the Arkansas law in court last year, the 8th U.S. Circuit Court of Appeals reversed a lower court’s injunction, saying that the court didn’t prove that a significant number of women seeking medical abortions—the type of abortion affected by the law—would be unable to access abortions under the new law. Currently, there are three facilities that provide abortions in the state: Planned Parenthood clinics in Fayetteville and Little Rock, and Little Rock Family Planning. Only the latter provides surgical and medical abortions; the former two only provide medical abortions, which consist of two sets of pills that can be prescribed up until about 10 weeks of pregnancy. In a lawsuit the organization filed in 2015, Planned Parenthood claimed its doctors had been unable to get admitting privileges at hospitals. If the law stands, both locations will have to cease providing medical abortions, forcing women who live in the Fayetteville area to make two separate 380-mile round-trip journeys to Little Rock to get abortions, since the state also mandates a 48-hour waiting period between a woman’s first appointment and her abortion.
The 8th Circuit’s decision to let the admitting-privileges law stand was just the latest consequence of its troubling disregard for Supreme Court precedent on abortion. In 2015, the 8th Circuit, which covers a swath of seven Midwestern states, blocked a North Dakota law that would have prohibited all abortions performed after fetal pole cardiac activity can be detected—around six weeks’ gestation, before many women find out they’re pregnant. Judge Bobby Shepherd’s opinion states that the law violated the abortion-rights protections enshrined by Roe v. Wade and Planned Parenthood v. Casey, which held that states cannot outlaw abortions before the point of fetal viability, around 22 to 24 weeks’ gestation.
But Shepherd devotes much of the opinion to arguments that the Supreme Court should consider overturning Roe. The viability threshold “has proven unsatisfactory because it gives too little consideration to the ‘substantial state interest in potential life throughout pregnancy,’ ” the opinion reads. It uses anecdotal accounts from a few women who have had abortions to argue that “abortions may cause adverse consequences for the woman’s health and well-being,” which, so can colonoscopies, or being forced to carry an unwanted pregnancy to term, for that matter. It uses the story of a woman whose husband threatened to evict her if she didn’t have an abortion to argue that abortions are regularly coerced, as if abusive men are reason enough to roll back women’s rights to privacy and health care. It also takes at face value statements made by North Dakota’s expert witness, who claimed that abortion can increase risks for breast cancer, a statement vehemently contested by medical authorities and disproved by rigorous study.
The 8th Circuit’s decision to weigh in on medical facts and challenge Supreme Court precedent without including all relevant information worries advocates keeping tabs on the latest anti-abortion legislation out of Iowa. Earlier this month, Gov. Kim Reynolds signed into law the most severe abortion restriction in the country, a ban on abortions performed after a fetal “heartbeat” can be seen in a transvaginal ultrasound. Though the court previously blocked North Dakota’s version of the law, there’s a very real chance it will side with Iowa this time around, given its stated desire for the Supreme Court to re-evaluate Roe. Since Shepherd’s 2015 opinion, Trump has added three judges to the 8th Circuit, none of whom are more likely to protect abortion rights than their predecessors. Anti-abortion activists are pushing aggressively for unconstitutional abortion restrictions in states like North Dakota, Arkansas, and Iowa because they believe the 8th Circuit is their best shot at creating a split between the various circuit courts, which could increase the likelihood that the wholesale right to abortion comes before the Supreme Court.
On a call with reporters on Monday, Helene Krasnoff, Planned Parenthood’s senior director of public policy litigation and law, warned that the 8th Circuit’s lenience toward laws that seem to contravene Supreme Court precedent endangers the system that’s supposed to safeguard civil rights and liberties. “The judicial system plays an essential role in our democracy, designed to serve as a check on legislative power,” she said. “If the fabric of this system is unraveled, where do the threats to our rights and freedoms end?” The Supreme Court refused in 2016 to reconsider the North Dakota “heartbeat” law Shepard reluctantly blocked. If and when Iowa’s version comes up for judgment, the makeup of the court may have shifted enough to give him and the 8th Circuit what they asked for.
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