Arkansas Could Give Amy Coney Barrett Her Big Abortion Moment (Updated)

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Analysis Abortion

Arkansas Could Give Amy Coney Barrett Her Big Abortion Moment (Updated)

Rachel Cohen

The "Unborn Child Protection Act" was filed ahead of Arkansas' next legislative session meant to more directly challenge Roe v. Wade.

UPDATE, December 23, 11:15 a.m.: On Tuesday night, a federal judge blocked four anti-abortion laws from taking effect in the state.

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. Wade; 20 other states have similiar laws in place.

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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.

Reproductive rights groups conceded there are more anti-choice bills passed every legislative session than could possibly be challenged.

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.”