ST. LOUIS (CN) — Almost two years after arguments were heard in the case, the Eighth Circuit reinstated four Arkansas laws banning certain kinds of abortion procedures.
The regulations passed by Arkansas’ Republican-dominated Legislature in 2017 impose criminal penalties on doctors who perform dilation-and-evacuation procedures. The laws also alter the standards for proper disposal of dead fetuses.
Doctors must provide fetal tissue from minor patients’ abortions to law enforcement, for instance, and must obtain a patient’s entire pregnancy history before performing an abortion.
Planned Parenthood and the American Civil Liberties Union took to federal court that June to challenge the laws on behalf of a Little Rock abortion provider who argued that doctors risk severe penalties for performing safe and previously legal procedures.
“Enforcement of each of the four challenged laws threatens to block altogether a woman’s constitutionally protected right to access abortion care,” they argued. “Each would impose delay, which endangers a woman’s health and can itself make abortion care impossible for her to obtain.”
U.S. District Judge Kristine Baker issued a preliminary injunction in July 2017 that prevented the state from enforcing the laws. But Friday’s ruling vacated that order.
Arkansas Solicitor General Nicholas Bronni had argued the state’s case before the Eighth Circuit during oral argument on Dec. 13, 2018. He called the dilation-and-evacuation procedure “barbaric” and said the federal district court’s injunction “ignored Arkansas’ interests in protecting life and health benefits.”
Susan Talcott Camp, a New York ACLU attorney, argued that the procedure was safer than other procedures, including ones suggested by the state, and said the regulations therefore endangered women’s health.
The three-judge panel, which submitted its seven-page ruling per curiam and therefore without any one member’s signature, found that Judge Baker failed to afford “wide discretion” to the state’s Legislature in “areas where there is medical and scientific uncertainty” — words that echo Chief Justice John Roberts’ concurring opinion in the June 2020 U.S. Supreme Court case, June Medical Services LLC v. Russo.
In that case, the high court held that a Louisiana law requiring abortion doctors to have admitting privileges at a nearby hospital was unconstitutional. Roberts had provided the necessary fifth vote in favor of striking down Louisiana’s law, but he did not agree with the other judges’ reasoning.
In his concurring opinion, Roberts wrote that while courts cannot allow states to impose undue burdens on women’s ability to have an abortion, they must defer to legislatures’ authority on matters of medical uncertainty.
The three Eighth Circuit judges — Lavenski Smith, a George W. Bush appointee, Roger Wollman, a Ronald Reagan appointee, and L. Steven Grasz, a Donald Trump appointee — cited Roberts approvingly here, and ordered Judge Baker to reconsider her ruling in light of Roberts’ opinion.
During oral argument, the state did not deny that the regulations would keep women from getting abortions.
“The mere fact that it would keep some patients from having an abortion is not a basis for facial validity,” Solicitor General Bronni said.
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