How Arkansas used a Supreme Court win for abortion rights to delay abortions

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Chief Justice John Roberts gave a roadmap to lower courts on how to approve a host of abortion restrictions.

When Chief Justice John Roberts joined the liberal wing of the United States Supreme Court in last term's abortion case, June Medical v. Russo, it led to a decision that narrowly preserved some abortion rights. It was a hollow victory though, as Roberts' concurrence gave a roadmap to lower courts to approve a host of abortion restrictions. 

The Eighth Circuit Court of Appeals took advantage of that almost immediately, upholding four Arkansas laws that impose multiple severe abortion restrictions sure to push abortions later in pregnancy. 

Beginning August 28, Arkansas will ban the most common second-trimester abortion procedure. Another new law requires doctors to spend time obtaining complete pregnancy-related medical records of the person seeking an abortion. 

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All of this can happen because of how Chief Justice Roberts ruled in the June Medical case. There, the Supreme Court struck down Louisiana's admitting privileges law, which required abortion providers to have an arrangement with a hospital to admit patients if there were complications. When Roberts joined the majority, it seemed like a win. 

However, as Gretchen Borchelt, vice president for reproductive rights and health at the National Women's Law Center, wrote, Roberts' concurrence in June Medical went "out of its way to find common ground with the dissenters, including disdain for the Supreme Court's most recent precedent." He grudgingly joined the majority only because he felt bound by the Court's decision in Whole Women's Health v. Hellerstedt, decided just four years previously. 

Roberts' opinion was packed with explanations of the types of abortion restrictions he does favor, including waiting periods, parental consent requirements, and forced counseling. Additionally, Roberts only concurred with the liberal wing's bottom-line holding, not the overall opinion. 

Because of that, reasoned the Eighth Circuit — and likely other conservative courts to follow — Roberts' separate, much more restrictive, opinion is the controlling one and can be used to justify burdensome restrictions that create delays or deny access to abortion.

That's because, as Lithwick pointed out, Roberts followed the "substantial obstacle" test rather than balancing the burdens and benefits of abortion restrictions. Under that view, it doesn't matter whether a restriction is burdensome as long as the state makes a vague assertion that the law will protect mothers. 

Arkansas now bans medication abortion, a highly safe procedure and a common early method in addition to banning the most common method of for second-trimester abortions. Finally, Arkansas also has a 22-week ban. Taken together, that makes abortion challenging to obtain at any stage in pregnancy. 

In addition to method bans, other requirements can prove daunting and create delays. The patient is required to find the father, even if the pregnancy was the product of rape. That takes time and might be something the patient is scared or unable to do.

It also takes time for the doctor to obtain the patient's medical records to ensure they are not seeking an abortion for sex selection. The law isn't clear on how much time a doctor is required to spend doing that, nor what happens if the doctor cannot obtain those records. The law imposes criminal penalties and civil money damages on doctors who run afoul of that provision, which may make them very wary of performing abortions if medical records are incomplete or unavailable. 

Finally, prior to these new laws, Arkansas already had a 72-hour waiting period, mandated counseling, and parental consent laws. The Guttmacher Institute, which examines abortion policy, has found that waiting periods contribute to a delay that is longer than merely the waiting period itself. People must make two round trips to a clinic, arranging for child care, days off work, and transportation. A study of Utah's waiting period found that the 72-hour waiting period translated into an average of an eight-day delay between the counseling and the procedure. 

If a patient is not able to obtain an abortion in Arkansas, which looks exceedingly likely, they will have to travel nearly triple the distance they did before. They would have to make arrangements for hotel stays and other travel-related costs in another state. Those costs can be prohibitive, further delaying access to abortion. 

Besides travel-related costs, abortions later in pregnancy cost more. Procedures often cost well over $1,000, or double the cost of abortion before 10 weeks. People with lower incomes can get caught in a vicious cycle: They can't initially afford an abortion, so it takes time to raise the funds for an abortion, which further delays the abortion, making abortion more expensive. 

Arkansas was already a state considered very hostile to abortion. Thanks to John Roberts, it just got a lot more hostile and abortions will be much tougher to get. 

Published with permission of The American Independent Foundation.