Arkansas Could Give Amy Coney Barrett Her Big Abortion Moment

Originally published in Rewire on December 16, 2020.
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Amy Coney Barrett has been a Supreme Court justice for less than two months, yet Arkansas lawmakers wasted no time introducing an anti-abortion bill aimed squarely at the Court, whose new conservative supermajority puts the future of abortion rights in serious jeopardy.

Advocates have called the Unborn Child Protection Act, introduced in November ahead of Arkansas’ next legislative session, “so egregious”—particularly in light of the COVID-19 pandemic that continues to ravage the country with no federal relief bill in sight.

Arkansas already has a law banning abortion should the Supreme Court overturn Roe v. Wade20 other states have similiar laws in place.

The same lawmaker who sponsored the state’s so-called trigger ban last year, Republican state Sen. Jason Rapert, introduced this latest bill that he said was meant to more directly challenge Roe. He did not return multiple requests for comment.

SB 6 would ban all abortion unless a woman’s life was in danger, and like the trigger ban, it has language unusually directed to the nation’s high court.

“The State of Arkansas urgently pleads with the United States Supreme Court to do the right thing, as they did in one of their greatest cases, Brown v. Board of Education, which overturned a fifty-eight year-old precedent of the United States, and reverse, cancel, overturn, and annul Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey,” the legislation reads.

ACLU of Arkansas Executive Director Holly Dickson issued a statement calling Rapert’s bill “cruel and blatantly unconstitutional.” She urged state lawmakers to shelve the bill and focus on COVID-19 relief.

“Let’s be clear: if passed, this brazenly unconstitutional abortion ban will be struck down in court, and legislators who passed it will have achieved nothing but having wasted taxpayer dollars on an unlawful measure and diverted scarce resources from the urgent needs our communities face in the midst of an ongoing and devastating pandemic,” Dickson said.

Gloria Pedro, Planned Parenthood Great Plains Votes’ regional manager of public policy and organizing for Arkansas and Oklahoma, said the bill is the “equivalent of a demand letter to the Supreme Court, which is not how the Supreme Court works. And there’s already a trigger law passed, which is why this is so egregious.”

Patients can access abortion in Arkansas up to the 20th week postfertilization, or 22 weeks’ gestation. There are two clinics in the state, both in Little Rock, though only one provides procedural abortions.

Advocates for reproductive rights in Arkansas have had their hands full fighting back against anti-choice legislation over the last decade, with some bills landing in multiyear battles in federal court. Conservatives have long eagerly eyed the Eighth Circuit, a federal appellate court with jurisdiction over Arkansas, as a way to bring a challenge against Roe to the U.S Supreme Court. Back in 2015, Eighth Circuit appellate judges recommended the high court “reevaluate its jurisprudence” on abortion, and urged for more state discretion over reproductive decision-making.

One such challenge began in 2017, after Arkansas legislators passed new laws to criminalize doctors who perform dilation and evacuation (the most common second-trimester abortion procedure) and require a patient inform the person who got them pregnant before they could get an abortion. The ACLU of Arkansas and the Center for Reproductive Rights sued over those laws and additional state restrictions, like requiring doctors to notify local law enforcement when patients under 17 years old seek to terminate a pregnancy. The laws were temporarily enjoined.

This past August, a three-person Eighth Circuit panel ruled against the plaintiffs, citing Chief Justice John Roberts’ concurrence in the Supreme Court’s recent June Medical Services v. Russo decision. In that case, the Supreme Court ruled that a Louisiana law placing hospital admission requirements on abortion clinic providers was unconstitutional, echoing its 2016 position in Whole Woman’s Health v. Hellerstedt.

But in his concurring opinion, Roberts argued that while he agreed with his four liberal colleagues that the Louisiana case was virtually identical to Whole Woman’s Health, he believed the “undue burden” standard used to decide that case was wrong, and should not involve weighing costs and benefits of an abortion restriction when judging its legality.

“We don’t agree that one justice’s opinion can change the precedent set by Whole Woman’s Health that clarified the undue burden standard requires this balancing standard,” said Hillary Schneller, a senior staff attorney at the Center for Reproductive Rights, who asked the Eighth Circuit to review the decision en banc. (That means the case will be heard before the entire bench of judges, rather than a three-person panel.)

Schneller said “there’s always a chance” a case like this could wind up at the Supreme Court, but for now they’re just waiting on the Eighth Circuit.

That wait came to an end Tuesday afternoon when the Eighth Circuit summarily rejected the en banc request in a one-page order. Without further court intervention Arkansas’ restrictions could take effect as soon as December 22.

Meanwhile, reproductive rights advocates have also been dealing with harassment related to the pandemic. Arkansas health officials earlier this year sent a cease-and-desist letter to Little Rock Family Planning Services, arguing their procedural abortions were “elective” and should wait until after the public health crisis ends. State officials also tried to force patients to get negative COVID-19 tests within 48 hours of getting an abortion, even though tests were in short supply.

While advocates have successfully fended off some of the worst restrictions, reproductive rights groups concede there are more anti-choice bills passed every legislative session than could possibly be challenged.

“We can’t challenge every single restriction and those restrictions are continuing to stack on the books,” Dickson said. “They join together to create substantial obstacles and burdens for patients.” There was a 30 percent decline in the Arkansas abortion rate between 2014 and 2017, and according to the state’s health department, 2,963 abortions took place in Arkansas in 2019.

Pedro of Planned Parenthood Great Plains Votes noted that Arkansas has the fourth highest maternal mortality rate in the nation and one of the highest infant mortality rates. In 2016, Arkansas had the highest teen pregnancy rate in the country, and public schools in the state still do not provide comprehensive sex education and primarily endorse abstinence-only instruction.

“It’s not just that these bills take away reproductive rights, which is crucial, but they’re also having a real tangible impact in our state, and things are getting worse,” Pedro said.

Pedro and Dickson say the most helpful thing would be for residents to pressure their state representatives to avoid wasting energy and resources on more anti-choice bills.

“Arkansas does not need to fly the trial balloon and be the trendsetter on setting regressive law,” Dickson said. “We have so many other things that we need our state to focus on.”

A Legal War in Arkansas Threatens Abortion Rights Everywhere

Originally published in VICE on September 7, 2017.
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When Donald Trump ran for president, despite his long history of pro-choice positions, he essentially offered evangelical Christians a dealHelp elect me, and I will appoint pro-life, conservative justices to the Supreme Court. Sure enough, less than three months into his presidency, Trump’s first SCOTUS appointee—Neil Gorsuch—was confirmed, and anti-choice advocates seemed to be one step closer to their ultimate goal of overturning Roe v. Wade.

It may take another appointee to truly tilt the scales of justice against reproductive rights in America’s highest court. But in the meantime, conservatives have been eyeing the Eighth Circuit Court of Appeals, based in St. Louis, Missouri, as a vehicle to bring such a challenge. That’s where, in 2015, appellate judges urged the nation’s highest court to revisit existing abortion jurisprudence, and turn matters over to the states, as conservatives have long dreamed.

Now that same federal appeals court, which may be more hostile than any other to abortion rights, is getting a bunch of new opportunities to go after a woman’s right to choose in Arkansas—and maybe even set the stage for the end of Roenationally.

Over the past several years, legislators in Arkansas—one of seven states under the Eighth Circuit’s purview—have passed some of America’s most restrictive abortion laws. Already in 2017, Arkansas passed a statute that would criminalize doctors who perform dilation and evacuation (the most common second-trimester procedure), and also permit husbands to sue to doctors to prevent their wives from obtaining abortions—with no exceptions even for rape or incest.

Set to go into effect on July 30, the law was blocked after the American Civil Liberties Union, the ACLU of Arkansas, and the Center for Reproductive Rights sued over it and three other recently-passed abortion restrictions. Lawyers brought the suit on behalf of a physician working at one of the last two abortion clinics in the state, and argued the laws posed unconstitutional burdens on a woman’s right to choose.

On July 28, federal judge Kristine Baker blocked the laws’ enforcement, and Arkansas Attorney General Leslie Rutledge filed for an appeal two weeks ago. A spokesman for the AG did not return multiple requests for comment.

What should worry abortion-rights advocates is that there’s plenty of reason to suspect the Eighth Circuit will be sympathetic to Rutledge’s challenge. In March 2016, Judge Baker issued another injunction against a 2015 Arkansas lawrequiring physicians who prescribe abortion-inducing drugs to secure contracts with doctors with hospital admitting privileges—a high bar to meet in the increasingly conservative state, and one the American College of Obstetricians and Gynecologists and the American Medical Association said had no medical basis. This past July, the Eighth Circuit lifted Baker’s injunction, ruling she would need to more concretely prove that a sizable number of women will face harm under that law.

In an interview with VICE, Steve Aden, chief legal officer and general counsel for Americans United for Life, said he felt the Eighth Circuit’s request for “some real math” was reasonable. He also defended the admitting privileges requirement as a common-sense measure to protect women’s health, noting that other outpatient surgical procedures generally require it. “If you or I go to a clinic and get Lasik or a colonoscopy, chances are really good that the doctors will have admitting privileges,” he said.

Meanwhile, the US Supreme Court last year heard arguments for Whole Woman’s Health v. Hellerstedt, widely considered to be the most significant reproductive rights case in nearly 25 years. In a 5-3 decision, the justices ruled that a package of Texas abortion restrictions imposed an unconstitutional burden on women seeking to end their pregnancies.

Fatima Goss Graves, the president and CEO of the National Women’s Law Center, told VICE anti-abortion opponents haven’t been much deterred by that outcome. On the contrary, she said, they are eagerly working to put more abortion cases before the Supreme Court as soon as possible. “They are still purposely trying to pass extreme laws that conflict with Whole Women’s Health, with Roe, so they’ll [then] be challenged in court,” she said. “That is the strategy.”

Another Arkansas case that could reach the Supreme Court concerns conservative boogeyman Planned Parenthood. In 2015, following the release of doctored videos purporting to show Planned Parenthood illegally profiting from the sale of fetal tissue, Arkansas Republican Governor Asa Hutchinson announced he would be terminating Medicaid contracts with the women’s health organization. Judge Baker blocked the move that September, but last month, a three-person panel on the Eighth Circuit decided Arkansas could cancel its Medicaid contract with Planned Parenthood—a notable departure from rulings in the Fifth, Seventh and Ninth Circuits. On August 30, the plaintiffs appealed to make their case again before the entire Eighth Circuit.

Aden, of Americans United for Life, thinks this case stands a shot of reaching the Supreme Court given the Eighth Circuit’s first decision diverged so sharply from other Appeals Courts nationwide.

I asked Bonyen Lee-Gilmore, a spokesperson for Planned Parenthood Great Plains (an affiliate overseeing Arkansas, Kansas, Missouri, and Oklahoma), if they would appeal to the Supreme Court, should the full Eighth Circuit uphold the Medicaid ruling. “When it comes to next steps in the legal world, we really play it one step at a time,” she said. “Every time a decision comes down, we’re evaluating all our legal options, and the reality is we could end up in the Supreme Court, but we’re not there yet. Right now we’re just seeing if we can successfully secure an en banc appeal.” (To hear a case ‘en banc’ means before the entire bench of judges, rather than a three-person panel.)

It’s worth noting that even though Arkansas’s governor cancelled state Medicaid contracts with Planned Parenthood over the 2015 fetal tissue videos, three Republican-led congressional investigations and 13 state-level probes—including one by a Texas grand jury—found no evidence of wrongdoing.

Gillian Metzger, the Stanley H. Fuld Professor of Law and vice-dean at Columbia Law School, thinks the Eighth Circuit “has really pushed the envelope” on constitutional retraction of reproductive rights in America. But whether these specific cases make it to the Supreme Court, she said, comes down—as always—to how willing justices are to engage with the abortion issue again. “The bigger question is does the Court have an appetite for this after 2016? And my guess it might wait a little bit to see how the Whole Women’s Health decision plays out,” she said.

In the meantime, President Trump will have the opportunity to fill three vacancies on the Eighth Circuit. If all are confirmed, according to longtime legal writer Rox Laird, only one of the Eighth Circuit’s eleven judges will have been appointed by a Democratic president, making it “the most ideologically lopsided of all the US Court of Appeals.”

Even if pro-choice advocates secure Medicaid funding for Planned Parenthood and defeat this round of abortion restrictions in the Eighth Circuit—by no means a safe bet —advocates aren’t expecting legislators to slow down their anti-abortion efforts any time soon. In mid-August, Planned Parenthood Great Plains and the ACLU argued yet another case in Arkansas federal court, protesting a law mandating the suspension of an abortion provider’s license for any minor error found during an inspection. That rule doesn’t apply to any other licensed health center in the state.

“We’ll be on high alert when the legislature returns in 2019 and continue to fight these extreme attacks on women and their rights,” said Rita Sklar, the executive director of the ACLU of Arkansas. “Often, the only way to get Arkansas politicians out of the exam room is to take them to court.”