In a setback for pro-life efforts, federal judges have upheld injunctions or imposed new injunctions against multiple Arkansas prolife laws, including bans on late-term abortion and bans on abortions that target a child with Down syndrome or because of his or her sex.
A three-judge panel of the 8th U.S Circuit Court of Appeals sided with a lower district court’s 2019 ruling blocking the measures. The panel upheld the injunctions against two laws on the grounds that they would create a legal barrier to abortion before the viability of the unborn child, about 24 weeks into pregnancy.
The first law bans abortions after 18 weeks of pregnancy, except in cases of rape, incest, and medical emergency. They would require doctors who perform abortions to be board-certified or eligible in obstetrics and gynecology.
The other law would prohibit abortions based solely on a Down syndrome diagnosis for the baby.
The new regulations had been set to go into effect July 2019 before injunctions blocked them.
The appellate court said the constitutionality of the statute is “obviously subject to change in the future” but “well established in this circuit today.” The court said Jan. 6 that no evidence was presented that viability had moved to 18 weeks, and there was “undisputed evidence” that post-viability abortions are not performed in Arkansas.
Arkansas Attorney General Leslie Rutledge criticized the ruling.
“Following the 8th Circuit’s decision against Arkansas’ late-term abortion ban and Down-syndrome-selection ban, I plan to seek further review of this decision in order to uphold Arkansas’s laws which protect the lives of the unborn and the health of the mothers,” she said.
Rutledge sees the laws as a means to overturn pro-abortion rights precedents like the 1992 Planned Parenthood v. Casey decision.
“The Supreme Court must limit and ultimately overturn Casey and I plan to do everything in my power to see that they do,” she said, according to the Associated Press.
Holly Dickson, executive director of the American Civil Liberties Union of Arkansas, said the ruling is “a victory for all Arkansans and a decisive repudiation of Arkansas politicians’ ongoing crusade to deny people the right to make their own medical decisions and force them to continue pregnancies against their will.”
In August 2019, District Court Judge Kristine Baker of the Eastern District of Arkansas had blocked the two laws pending legal challenges. She said women would “suffer irreparable harm” if the laws were to be enforced. The measures unconstitutionally restrict abortion before an unborn child can survive outside of the womb, she said.
In a separate Jan. 7 ruling, Baker issued a preliminary injunction against four other abortion laws passed in 2017.
These laws include a ban on abortions based solely on the sex of the baby, including requirements that doctors seek the medical records of any woman seeking an abortion who knows the sex of her unborn child.
One of the enjoined laws regulates the preservation and disposal of tissue from aborted babies. Another law requires doctors performing abortions on patients under 16 years old to inform police.
Another enjoined law prohibits a second-trimester abortion method known as “dilation and evacuation,” by which an unborn baby is dismembered. Backers of the procedure say it is common and safe for second-trimester abortions, while foes consider it “dismemberment abortion.”
In Arkansas in 2015, the abortion procedure was used in 638 out of 3,771 abortions, the Arkansas Democrat-Gazette said.
The appeals court dismissed part of the case involving requirements that doctors who perform abortion be board-certified or board-eligible.
Little Rock Family Planning Services, Arkansas’ only surgical abortion clinic, had previously said that it could have to close if the laws were to be enforced. Only one physician at the facility was OB-GYN board certified or eligible, and only rarely worked there at the time the law was passed.
The abortion clinic has since hired a board-certified OB-GYN, and said its objections have been rendered moot. The appellate court dismissed that part of the case and ordered Baker to lift her order blocking the law’s enforcement, the Associated Press reports.
Rutledge previously defended the board certification requirement as being in the interest of women’s health and safety. Critics argued that it was extreme and would limit women’s access to abortion.
Stephanie Sharp, a spokeswoman for the Arkansas attorney general, commented on the actions against the four laws.
“Those regulations protect unborn girls from systematic discrimination, protect children from predators and sex traffickers, require the respectful treatment of human remains, and prohibit a particularly barbaric and inhumane late-term abortion practice,” said Sharp. She voiced confidence that the Eighth Circuit would overturn the injunctions.
In August the Eighth U.S. Circuit Court of Appeals vacated Baker’s 2017 injunction against the laws and asked her to use a different legal standard, the Arkansas Democrat-Gazette reports.
Arkansas currently has a 20-week abortion ban, enacted in 2013, which has yet to be challenged in court.
In February 2019, state Governor Asa Hutchinson signed a “trigger law” which would ban most abortions in the event the Supreme Court overturns the 1973 Roe v. Wade court decision that recognized abortion as a constitutional right in the United States.
