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Federal judges side against pro-life laws in Arkansas, call on Supreme Court to revisit Casey

March for Life
Pro-life demonstrators hold up signs during the 2020 March for Life in Washington, D.C. on Jan. 24, 2020. |

A three-judge panel on a federal appellate court struck down several pro-life laws in Arkansas, and two of the judges have called on the U.S. Supreme Court to revisit its ruling in a major abortion case that upheld Roe v. Wade.

The ruling by three judges on the Eighth Circuit Court of Appeals prevents two pro-life laws passed by the state in 2019 from going into effect. One of the laws prohibits abortions after 18 weeks gestation while the other prohibits abortion of a child based solely on a diagnosis of Down syndrome.

Judge James Loken, the George H.W. Bush appointee who authored the opinion, cited the precedent set in the 1992 Supreme Court case Planned Parenthood v. Casey when upholding a lower court’s ruling blocking the Arkansas laws from going into effect. Casey, which upheld the finding in Roe v. Wade, the 1973 Supreme Court case that legalized abortion nationwide, declared that “the woman’s right to terminate her pregnancy before viability … is a rule of law and a component of liberty that we cannot renounce.”

Loken cited the governing legal principle of Casey, that “before viability the State’s interests are not strong enough to support a prohibition of abortion,” in addition to alleging that there was “no generally accepted medical evidence” that babies are viable at 18 weeks gestation, when affirming the lower court’s ruling.

While the panel unanimously agreed that Supreme Court precedent required them to strike down the Arkansas laws, two of the judges urged the court to reconsider the finding of Casey. One of the judges, George W. Bush appointee Bobby Shepherd, shared his view that “good reasons exist for the (Supreme) Court to reevaluate its jurisprudence” in Casey.

“Today’s opinion is another stark reminder that the viability standard fails to adequately consider the substantial interest of the state in protecting the lives of unborn children,” Shepherd said. He also quoted from Supreme Court Justice Clarence Thomas, who contended that the state had a “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”

“The viability standard does not and cannot contemplate abortions based on an unwanted immutable characteristic of the unborn child. However, because we must apply the ill-fitting and unworkable viability standard to an act aimed at preventing eugenics-based abortions unless and until the Supreme Court dictates otherwise, I concur in the Court’s opinion,” he added.

“There are important reasons for the Supreme Court to revisit its precedent in Planned Parenthood of Southeastern Pennsylvania v. Casey,” wrote Judge Ralph Erickson, a Trump appointee. “Viability as a standard is overly simplistic and overlooks harms that go beyond the state’s interests in a nascent life alone.”

Additionally, Erickson maintained that “by focusing on viability alone, the Court fails to consider circumstances that strike at the core of humanity and pose such a significant threat that the State of Arkansas might rightfully place that threat above the right of a woman to choose to terminate a pregnancy.” He spent the rest of his concurrence objecting to the abortion of babies with Down syndrome.

“The human person has immense creative powers, a range of emotional responses that astound the observant, and a capacity to love and be loved that is at the core of human existence. Each human being possesses a spirit of life that at our finest we have all recognized is the essence of humanity. And each human being is priceless beyond measure. Children with Down syndrome share in each of these fundamental attributes of humanity,” he said.

Erickson described the push to abort babies with Down syndrome as a “new eugenics movement,” stressing that “in Western society, there is currently no more threatened population than children with Down syndrome.”

“While there are still 6,000 children born annually in the United States with Down syndrome, the same is not the case in other western democracies,” he added. 

Erickson cited the adoption of universal prenatal screening in Denmark and the resulting decline in the number of births of Down syndrome babies due to abortion as an example of “dangerous” eugenics. In response to the ruling, Arkansas Attorney General Leslie Rutledge, a Republican, vowed to continue her efforts to lift the injunctions against the pro-life laws.

“Following the 8th Circuit’s decision against Arkansas’ late-term abortion and Down syndrome-selection ban, I plan to seek further review of this decision in order to uphold Arkansas’ laws which protect the lives of the unborn and the health of the mothers,” she said. “The Supreme Court must limit and ultimately overturn Casey and I plan to do everything in my power to see that they do.”

Meanwhile, officials at the ACLU praised the court’s ruling. According to Ruth Harlow, senior staff attorney in the ACLU’s Reproductive Freedom Project: “This order will ensure that essential reproductive health care services will remain available in Arkansas. The laws blocked by the court today do nothing but place roadblock after roadblock in front of patients, in violation of their constitutionally protected rights. Arkansas politicians may continue their relentless attacks on abortion, but we will see them in court every time.”

The Eighth Circuit’s ruling on this pair of abortion laws comes three weeks after the appellate court, in an en banc review, rejected the bid of pro-abortion groups to overturn other pro-life laws in Arkansas that ban dismemberment abortions, require doctors to inform law enforcement when a girl younger than 16 obtains an abortion, prohibit sex-based abortions and regulate the preservation and disposal of unborn babies’ remains. Because of the court’s decision, those laws were allowed to go into effect.

Citing the series of pro-life laws recently passed in Arkansas, the group Americans United for Life recognized Arkansas as the most pro-life state in the U.S. as it released its Life List 2021, an “annual state ranking based on our comprehensive analysis of each state’s law and policy protections for human life from natural conception until natural death.”

Responding to Arkansas’ designation as the most pro-life state, Rutledge said, “Even with this remarkable announcement, our work continues and I promise I will keep fighting wholeheartedly to defend our pro-life laws.”

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