The decision on Wednesday by the U.S. Court of Appeals for the Eighth Circuit permanently blocking North Dakota’s so-called heartbeat ban, a law that would ban abortion as early as six weeks post-fertilization, is a win. The North Dakota law is the most extreme anti-abortion ban in the country and attorneys defending it had urged the federal appeals court to use this case as an opportunity to overturn Roe v. Wade and deem that fetal viability begins at conception. The Eighth Circuit didn’t, and for that, reproductive rights advocates should celebrate.
But as the rest of the decision makes clear, the only reason the Eighth Circuit didn’t overturn the lower court’s injunction blocking the law was because, thanks to the power of judicial precedent, it didn’t have the power to. Federal appeals courts generally can’t overturn Supreme Court precedent, but they can use their decisions to call on the Court to do so. And Wednesday’s decision is the second from the Eighth Circuit to do just that: urge the Supreme Court to overturn Roe v. Wade and re-empower states to ban abortions outright.
Gov. Jack Dalrymple signed HB 1456 into law in March 2013. HB 1456 bans abortions as soon as a fetal heartbeat can be detected. The law contains a very narrow exception for when the life or health of the patient is in danger, and subjects any provider who violates it to a felony.
Reproductive rights advocates filed a lawsuit challenging HB 1456 in June 2013 on behalf of the Red River Women’s Clinic, the state’s sole abortion provider. A federal district court judge temporarily blocked the ban in July 2013 and then permanently blocked the law in April 2014, noting “the United States Supreme Court has spoken and has unequivocally said no state may deprive a woman of the choice to terminate her pregnancy at a point prior to viability.”
Roe is gone. The chaos is just beginning.
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That the Supreme Court has spoken “unequivocally” that no state can ban abortion prior to viability did not stop attorneys from North Dakota from arguing to the Eighth Circuit that their state should be allowed to ban abortion whenever lawmakers feel like it—in this case, as soon as a fetal heartbeat is detected. To support that argument, attorneys for the state produced medical evidence in the form of affidavits from anti-choice doctors who state that thanks to advances in medical technology like in vitro fertilization, in which zygotes “live” outside a uterus prior to implantation, fetal viability should begin at conception.
That anti-choice lawmakers and attorneys general in North Dakota are willing to manipulate biomedical science to further their political agenda of banning abortion, while confusing medical terminologies for marking pregnancies like “fertilization” with religious terminology such as “conception,” is a proposition that should concern the public health community writ large. That the federal appeals courts in some jurisdictions are willing to go along with those lawmakers should be downright alarming.
“Although controlling Supreme Court precedent dictates the outcome in this case, good reasons exist for the Court to reevaluate its jurisprudence,” wrote the Eighth Circuit in Wednesday’s decision. “To begin, the Court’s viability standard has proven unsatisfactory because it gives too little consideration to the ‘substantial state interest in potential life throughout pregnancy,'” said the court. In this, it was citing Planned Parenthood v. Casey. In 1992’s Casey, the Court departed from Roe to rule states can impose restrictions on abortions prior to viability, so long as those restrictions ultimately leave the decision to terminate a pregnancy pre-viability in the hands of the patient. In justifying the encroachment, the Court in Casey relied on the “state’s interest” in fetal life and the ability of lawmakers to pass laws that show a preference for continued pregnancy over abortion. Still, it ultimately set viability as the point at which no law may take the ultimate decision to terminate a pregnancy away from a patient.
On Wednesday, the Eighth Circuit relied on Casey for its conclusion that states need more power to regulate pregnancies—and even ban abortions pre-viability—while also critiquing Casey’s re-affirmation of fetal viability as a point the Supreme Court must re-evaluate. “By deeming viability ‘the point at which the balance of interests tips,’ the Court has tied a state’s interest in unborn children to developments in obstetrics, not to developments in the unborn,” Eighth Circuit continued. “This leads to troubling consequences for states seeking to protect unborn children.”
These two sentences are critically important in the context of the campaign against Planned Parenthood right now. For as problematic as Roe and Casey both are in terms of not clearly and firmly articulating a patient’s right to terminate pregnancies as they need, they do fundamentally underscore that science, especially obstetrics, should drive any state regulation of pregnancy. In other words, the decisions set a distinctive point obstetrically at which the state’s interest should never override the interest of the pregnant patient. This limit on state power to regulate pregnancies is unacceptable to the anti-choice movement and to the judges on the Eighth Circuit.
Like the anti-choice lawmakers and political operatives driving the Planned Parenthood attacks, the conservative judges on the Eighth Circuit have an ideological opposition, fundamentally, to science, as demonstrated by their critique, especially with regard to obstetrics, of its ability to limit state power. For the judges on the Eight Circuit, the state has unlimited power to regulate pregnancy because Casey identified the state interest to do so as “significant.” But according to the Eighth Circuit, the promise of Casey has not been realized, because by re-affirming viability as the limiting point on state power to regulate pregnancy, the Roberts Court, and Justice Anthony Kennedy in particular, unfairly tied states’ hands in using medical advancements to “protect” the unborn.
“Here, the North Dakota legislature has determined that the critical point for asserting its interest in potential life is the point at which an unborn child possesses a detectable heartbeat,” the opinion continued. “To substitute its own preference to that of the legislature in this area is not the proper role of a court.”
Like the Fifth Circuit before it in its decisions supporting HB 2, the Eighth Circuit understands its role to be one of rubber-stamping anti-abortion legislation under the guise of judicial restraint and not substituting its judgment for the legislatures. In other words, the court feels its job is not to actually analyze and rule on the constitutionality of abortion restrictions, but to defer to anti-choice lawmakers’ determinations of what is and is not constitutional.
But here’s the kicker. “By taking this decision away from the states, the [Supreme] Court has also removed the states’ ability to account for ‘advances in medical and scientific technology [that] have greatly expanded our knowledge of prenatal life,’” wrote the court.
This is a particularly audacious argument to make in the face of the ongoing and heavily orchestrated smear campaign against Planned Parenthood’s biomedical research. The advances in medical and scientific technology that have “greatly expanded our knowledge of prenatal life”—so that infants born at 23 weeks can sometimes survive, for example—are possible thanks to fetal research like the kind under attack in the anti-Planned Parenthood campaign happening now. If it wasn’t clear that the anti-choice community will happily try and defund Planned Parenthood, and then use the science Planned Parenthood helps support to further its own ends of re-criminalizing abortion, Wednesday’s decision lays that out in clear fashion.
The Eighth Circuit’s decision cites both advances in IVF technology as well as medical journals tracking survival rates of those born around 22 weeks’ pregnancy as grounds for empowering states to assert their interests in protecting “unborn life” and banning abortion outright. In other words, they use advances in medicine as a grounds for denying pregnant patients medical care. If that is not using science as a political football I don’t know what is.
Attorneys for the State of North Dakota have the option of asking the entire Eighth Circuit to review the decision, though it is not at all certain the appeals court will grant that request. The case was heard at the same time as a challenge to a similarly restrictive law out of Arkansas. The Eighth Circuit also upheld the injunction in the Arkansas case and the entire panel of judges recently refused to rehear the Arkansas case. Or, attorneys could take both opinions from the Eighth circuit, and their calls to revisit Roe, to the Roberts Court for consideration.
In the meantime the only abortion clinic in North Dakota can continue to provide safe, legal abortion care as the political storms continue. There will be fresh attacks on abortion rights, both in North Dakota and nationally. We know that to be true. And now we also know there’s at least one federal appeals court willing to get in on the attacks on patients and their access to health care. We don’t know whether that’s enough to prod the Roberts Court to jump in, or if, for now at least, Roe and Casey still provide some level of protection for abortion rights that patients and providers can rely on.