ST. LOUIS (CN) – At the head of a parade of abortion cases trying to get to the Supreme Court, the Eighth Circuit on Thursday heard Arkansas lawyers argue for reinstatement of a state law banning certain types of abortion.
Arkansas Solicitor General Nicholas Bronni told the three-judge panel that the district court ignored U.S. Supreme Court precedent in imposing the injunction.
“The district court never made an effort to determine exactly how many patients were at risk [of an increased burden],” Bronni said at Thursday morning’s hearing. “They just said some.”
Last year, the Republican-dominated Arkansas Legislature passed four laws regarding abortion procedures.
One of the laws – Act 45, or the “D&E ban” – makes it a felony for a doctor to perform the abortion procedure known as dilation and evacuation, punishable by up to six years in prison and a $10,000 fine.
The other three laws change the standards for the disposal of a dead fetus, require that doctors provide fetal tissue from the abortions of minor patients to law enforcement, and call on doctors to obtain a patient’s entire pregnancy history before performing an abortion.
Planned Parenthood and American Civil Liberties Union filed a complaint challenging the laws on behalf of Dr. Frederick W. Hopkins, an abortion provider at Little Rock Family Planning Services, who claims he will be subject to severe civil, criminal and professional penalties for providing safe and legal abortions.
In July 2017, U.S. District Judge Kristine G. Baker issued the preliminary injunction preventing enforcement of the laws, prompting Arkansas’ appeal to the Eighth Circuit.
Solicitor General Bronni described the psychological harm women suffered after having the fetus’ abdomen ripped open and its skull allegedly crushed during what he called “barbaric abortion practices.”
He argued that more humane methods such as injections of potassium chloride could be used instead.
Bronni said the district court’s decision ignored the state’s arguments and “in doing so they ignored Arkansas’ interests in protecting life and health benefits.”
Susan Talcott Camp, of the ACLU in New York, represented Hopkins and Planned Parenthood.
“The state may promote, but not endanger a woman’s health in enacting regulation,” Camp told the court. “That’s exactly what Arkansas is doing here.”
She argued that over 60 percent of Arkansas’ abortions occur before 18 weeks and that no studies are available about the safety or effectiveness of the medical injection method during that time.
“Doctors can’t even get informed consent because there are no studies on injections inside 18 weeks,” Camp said.
She argued the D&E method is a commonly used,universally safe method for abortions and that even the Supreme Court recognized it as such. She noted that other procedures can leave women at a 5 to 10 percent higher risk for complications such as spontaneous labor, ruptured membranes and uterus infections.
Camp also addressed the other three laws, particularly the law requiring doctors to provide fetal tissue from the abortions of minor patients to law enforcement. She said current law requires such a disclosure in abortions on minors under the age of 13, but the new law would encompass all abortions by women ages 14 to 18, which the attorney called a privacy violation involving consensual intimacy. In Arkansas, girls can get married at age 16 with parental consent.
“Imagine a 16-year-old at an abortion clinic with her husband,” Camp said. “Then the doctor tells them, ‘We’re going to have to call the police to pick up this tissue and identify you as the victim and your husband as the perpetrator.’”
Camp also argued that women who receive abortions have a right to privacy from that information being shared with other health care providers.
During his rebuttal, Bronni argued that the law’s opponents still hadn’t shown that the burdens on women seeking an abortion outweigh the state’s interests.
“The mere fact that it would keep some patients from having an abortion is not a basis for facial validity,” Bronni said.
The panel was comprised of U.S. Circuit Judges Lavenski Smith, Roger Wollman and Steven Grasz, all appointees of Republican presidents.
It is unclear when the Eighth Circuit will issue a decision in the case.