Arkansas Loses Bid to Reinstate Anti-Abortion Laws at Eighth Circuit

(AP Photo/Rogelio V. Solis, File)

(CN) — The Eighth Circuit on Tuesday blocked Arkansas’ persistent efforts to usher in some of the nation’s most restrictive abortion measures, striking down a pair of laws barring the procedure after 18 weeks of pregnancy and on the basis of a prenatal diagnosis of Down syndrome.

The unanimous three-judge panel decision upholds U.S. District Judge Kristine Baker’s temporary block of the sweeping restrictions in 2019. But while the ruling delivered an immediate win for pro-abortion rights advocates, the court suggested that the constitutionality of the two laws is “obviously subject to change in the future” and should be reevaluate by the Supreme Court. 

In the 17-page opinion issued Tuesday, the St. Louis-based appeals court found that the state’s only surgical abortion clinic, Little Rock Family Planning Services, and physician Thomas Tvedten are likely to succeed on their claim that Supreme Court precedent prevents a state from banning pre-viability abortions, generally considered at 24 weeks.

“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,” U.S. Circuit Judge James Loken, a George H. W. Bush appointee, wrote for the unanimous panel.

It is also unconstitutional to prohibit abortions based on the pregnant woman’s reason to terminate her pregnancy before viability, including indications of Down syndrome in an unborn child, the panel found. The strict measures were passed in the Arkansas Legislature in 2019 and signed by Republican Governor Asa Hutchinson.

Meagan Burrows, a staff attorney at the ACLU Reproductive Freedom Project, told Courthouse News in a statement that the ruling recognizes it is up to each person, not politicians, “to make the ultimate decision of whether and when to have a child.”

“We wish that this were the end of the matter, but unfortunately we know that there is still much work to do to stop the legislature’s relentless attempts to take that right away from patients,” Burrows said. 

But in a concurring opinion, U.S. Circuit Judges Bobby Shepherd and Ralph E. Erickson – appointed by George W. Bush and Donald Trump, respectively – called for the Supreme Court to reexamine the viability standards set in the 1992 case Planned Parenthood of Southeastern Pennsylvania v. Casey.

“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 two judges wrote.

Shepherd wrote separately to reiterate his view that “good reasons exist for the Supreme Court to reevaluate its jurisprudence regarding the viability standard.”

Also on Tuesday, a federal court in Arkansas blocked a set of four anti-abortion laws on the day the temporary restraining order was to expire. The preliminary injunction will keep the laws from taking effect while the litigation continues.

The Eighth Circuit is also expected to hand down a ruling soon on a similar Missouri law banning abortions based on indications that an unborn child has Down Syndrome.

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