Jurisprudence

Arkansas’ New Abortion Ban Is a Direct Message to Amy Coney Barrett

Amy Coney Barrett holds up her right hand and takes the oath as her husband looks on
Justice Amy Coney Barrett beside her husband, Jesse Barrett, as she is sworn in at the White House on Oct. 26. Alex Wong/Getty Images

Arkansas Gov. Asa Hutchinson, a Republican, signed a ban on abortion at all stages of pregnancy on Tuesday. Arkansas, which has the fifth highest rate of maternal mortality in the country, joins at least 11 other states that have passed complete or near-total abortion bans over the past two years in anticipation of the Supreme Court overturning Roe v. Wade. The new law is certain to be blocked by the lower courts, which are obligated to adhere to precedent protecting the constitutional right to abortion. But it is clearly designed to test the Supreme Court’s adherence to that precedent now that conservatives hold a supermajority on the bench for the first time in 80 years.

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While the other states also designed their bills as vehicles for SCOTUS to overturn Roe, Arkansas’ new law is even more explicit. The bill doubles as a brief to the justices—specifically, Amy Coney Barrett—urging them to overturn Roe immediately. On Wednesday, I spoke with Florida State University College of Law professor Mary Ziegler, one of the nation’s preeminent scholars on abortion rights, about Arkansas’ crusade against Roe and its odds of success. Our conversation has been edited for length and clarity.

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Mark Joseph Stern: What, exactly, does the new Arkansas law do?

Mary Ziegler: The new law would ban pretty much all abortions, unless a pregnant person’s life is in danger.

So the law includes no exception for rape or incest?

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No. And it’s worth noting that the “life of the mother” exception would probably almost never apply either. I imagine Arkansas lawmakers believe, correctly, that there are not that many cases in which an abortion would be life-saving. This comes pretty close to a flat ban.

When does Arkansas’ ban begin?

The law bans abortion beginning at fertilization. There are some exceptions for contraception—it seems to say they don’t intend to ban IUDs, the morning-after pill, or the birth control pill.

What about fertility treatments, like IVF, that may involve disposal of a fertilized embryo?

There’s no sense that those things would be legal. It seems, logically, that they would not, and there’s no exception for those procedures in the bill.

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What’s the penalty for abortion providers? Can patients be punished for terminating their own pregnancies?

The penalty for performing an abortion is 10 years’ imprisonment. At least, for the moment, the law says Arkansas is not going to punish patients. It’s only going to punish doctors.

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When a woman in Georgia illegally purchased an abortion pill, prosecutors threatened to charge her for possessing a “dangerous drug” without permission. Does Arkansas’ new law prevent prosecutors from charging women who induce their own abortions with a similar crime?

I don’t think the law would preclude prosecutors from doing that, no. In Arkansas, just as in Georgia, there could easily be a loophole if prosecutors wanted to take it. The biggest hurdle to prosecutors doing that sort of thing is that the leaders of the anti-abortion movement have come to a political consensus that it’s suicidal, from a public opinion standpoint, to target patients. The hurdle would be the backlash that abortion opponents expect they would face.

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Do you think this law is primarily designed to get the Supreme Court to overturn Roe v. Wade and its successor, Planned Parenthood v. Casey?

It is almost entirely about that. This law is a letter to the Supreme Court. It is 100 percent about Amy Coney Barrett. I don’t think Arkansas would’ve passed this law without her. After the Supreme Court decided June Medical v. Russo, some conservatives wondered if Chief Justice John Roberts would ever really go all the way to overruling Roe. June Medical didn’t suggest he was a friend to abortion rights, but it did suggest that he was not going to move as quickly as states like Arkansas would like. Amy Coney Barrett struck lawmakers in Arkansas as an insurance policy. Even if Roberts jumped ship, there would still be five justices who would overturn Roe. I don’t necessarily think that’s true, but that’s the bet Arkansas lawmakers are making.

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Why don’t you think that’s necessarily true?

Barrett is an intellectual and professor who takes herself seriously as a jurist. Everyone’s expecting her to overrule Roe the first chance she gets. I don’t know if she wants to fulfill those expectations, or do something kind of Roberts-esque and gradual, to make it seem less partisan and more like a serious intellectual enterprise.

What arguments do Arkansas lawmakers make to try to persuade Barrett and her colleagues?

Their first argument is that Roe should be overruled because it is unsettled. By unsettled, they mean that it’s controversial. Arkansas says: The fact that we’re passing this law and we don’t like Roe means it’s still controversial and not accepted. That allows states like Arkansas to create a self-fulfilling prophecy. They’re upset about Roe, which means Roe is unsettled, which means Roe should be overruled.

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Second, they argue that the science involving fetal life is better than it was in 1973, at the time of Roe, both on the point that life in the womb is “human” and that life begins at fertilization. They say people didn’t really know that as much in 1973. It’s not clear to me if that’s actually true. If you read the briefs in Roe, neonatology was a field, and people knew that life in the womb was genetically human.

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Third, they say nobody really needs abortion anyway because, they say, there’s a culture of adoption that wasn’t present before. There are more people willing to adopt, and adoption is more accepted. There are “safe haven” laws which decriminalized leaving infants with certain people, like at fire stations. So Arkansas looks at those things and concludes that women don’t have to raise children if they don’t want to anymore. So the burden that Roe and Casey were focused on no longer exists.

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Then, in passing, they’re picking up on this argument that abortion harms pregnant people. Therefore, there’s no benefit to having access to abortion to begin with.

Is it true that Roe and Casey only talked about the burden of raising children, not the burden of carrying an unwanted pregnancy to term?

Roe certainly talked about pregnancy, too—the discomforts and health risks associated with pregnancy. And Casey was concerned with the ability to pursue an education or a career, which could be affected by pregnancy as well as by child care. Then there’s the question of how easy it would be for someone who’s been pregnant and given birth to do the kinds of things Arkansas is envisioning. Generally speaking, whenever you see states trying to talk about what it’s like to be a pregnant person in the U.S., they’re ridiculously oversimplifying in ways that are grotesque. Is giving a child up for adoption really a solution? I don’t think it’s that simple of a solution, and I don’t think Arkansas thinks that either. I don’t think that’s really the point. The point is the protection of “fetal rights.”

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Arkansas frames abortion as a matter of states’ rights, too—a state legislature’s right to protect fetuses. But I’m curious if you think that’s the end goal.

It’s not. The short-term answer is getting rid of Roe. The longer-term answer would be getting a conservative Supreme Court to recognize fetal personhood or a “right to life.” That’s the only logically consistent goal. If you believe life begins at conception, how is it OK for abortion to take place in Manhattan or Honolulu? And historically, that was never the goal. The states’ rights approach emerged as a necessary second-best solution after Roe. It has never been the endgame, even for the more sophisticated incrementalist folks. They do not want legal abortion anywhere in America.

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