A victory for abortion rights in Arkansas is not all that it seems

Last week, the Eighth Circuit Court of Appeals handed abortion advocates in Arkansas a victory when it upheld a lower court’s ruling blocking four laws that restricted or banned abortion from taking effect. However, the concurrences in the case highlight the fragility of access, providing a roadmap of how to undermine the constitutional right to an abortion.

There are two laws at issue in the case: one that would ban all abortions after 18 weeks and one that would ban the procedure depending on the reason given for seeking an abortion. The Eighth Circuit held that both laws violated the Constitution.

Back in 1992, the Supreme Court decided Planned Parenthood v. Casey. In that case, the court found that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” 

In considering the Arkansas laws, the Eighth Circuit said it relied on “uncontroverted medical testimony” that viability isn’t possible until at least 24 weeks. Because of that, Arkansas’ 18-week ban was unconstitutional. 

The “reason”  ban ran into the same problem, the court found, because it would have prohibited the procedure at any point in a pregnancy, something that is clearly unconstitutional 

Though the Eighth Circuit found itself bound by Casey‘s framework, two of the three judges on the panel wrote concurrences explaining that the Supreme Court should throw out the viability standard, which has been part of how the constitutionality of abortion restrictions have been assessed since Roe v. Wade. 

The concurrence from Justice Bobby Shepherd, a George W. Bush appointee, stated that he believes that “good reasons exist for the [Supreme] Court to reevaluate its jurisprudence” regarding viability. He said the viability standard is “unsatisfactory” because it doesn’t account enough for the “substantial state interest in potential life throughout pregnancy.” 

Moreover, Shepherd contended that state legislatures, not the Supreme Court, should “determine the appropriate interest in protecting unborn children.” 

Judge Ralph Erickson, a Trump appointee, both joined Shepherd’s concurrence and wrote his own, with largely the same underpinning: that the “state’s interest in nascent life” should trump that of the person needing an abortion and that the viability standard should be replaced. 

This idea — that the state Legislature should decide, arbitrarily and in contravention of medical information about viability, as to when an abortion is proper — could be seen as the ultimate slippery slope. It leaves abortion laws with no constitutional underpinning or framework at all, and would let state legislatures ignore medical testimony and the needs of people who need abortions, all in the name of an “appropriate interest.” 

The concurrences in this case serve the same function as that of Chief Justice John Roberts in last summer’s June Medical v. Russo. In that case, Louisiana tried to require doctors to have admitting privileges at local hospitals. There, Roberts grudgingly sided with the majority because the Supreme Court had decided a very similar case only a few years earlier, striking down the admitting privileges law. 

However, Roberts then pivoted to explaining all the types of burdens on abortion that he would be just fine with, including waiting periods, mandatory counseling, and parental consent laws. Lower courts, including the Eighth Circuit, immediately latched on to Roberts’ concurrence to move abortion restrictions forward. 

Here, the concurrences from Judges Shepherd and Erickson do the same thing. They agree with the decision, but only because precedent requires them to do so. Indeed, Judge Erickson wrote that he “deeply regret[s] that precedent forecloses a balancing of the state’s actual interest against the woman’s right to choose.”

What Chief Justice Roberts and these judges are doing is asking both state legislatures and the courts to reevaluate abortion laws in the hopes that restrictive laws will stick. 

With that, abortion rights victories are getting more and more tenuous, and the ever-present specter of an anti-choice majority on the Supreme Court looms over all these cases. The concurrences in this Arkansas case are a plea for the Supreme Court to throw out the viability standard, and it is only a matter of time before that court gets an opportunity to do so.