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Judge blocks Arkansas' drastic attacks on women's health — for now

The entire judicial process highlights just how tenuous abortion access is in states like Arkansas.

By Lisa Needham - December 23, 2020

On Tuesday, a federal judge in Arkansas blocked four anti-abortion laws only a few hours after they had taken effect. It’s the latest ruling in a case that has stretched on for three years, as the state seeks to impose drastic restrictions on the constitutional right to obtain an abortion. 

The ruling is likely only a temporary respite. Ultimately, this case could end up with the United States Supreme Court, where there’s a strong chance the 6-3 anti-abortion supermajority would approve of the state’s efforts. 

In 2017, Arkansas passed several abortion restrictions. The two most notable are a ban on the most common second-trimester abortion procedure. Another was a ban that forces doctors to interrogate patients about their health care decision, ultimately restricting abortions for reasons the state has deemed impermissible.

The measures pushed by Arkansas are similar to those in states such as Mississippi and Tennessee, which recently passed laws forcing doctors to interrogate patients about why they are seeking an abortion. Bans on the common abortion procedure are also in effect in three other states. 

A federal judge of the U.S. District Court for the Eastern District of Arkansas blocked the Arkansas laws three years ago, but then Chief Justice John Roberts gave anti-abortion advocates a gift — his concurrence in last term’s abortion case, June Medical v. Russo.

Roberts joined the majority in striking down Louisiana’s law requiring that abortion providers have active admitting privileges at local hospitals because the Supreme Court had struck down a Texas law with the same provisions only four years previously. In doing so, however, he provided a laundry list of abortion restrictions he would still approve of.

Further, Roberts only joined the majority opinion’s holding — not the reasoning behind it. This led conservative courts such as the 8th Circuit Court of Appeals, which covers Arkansas, to immediately decide that Roberts’ more restrictive separate holding is the controlling holding from June Medical. With that, the 8th Circuit overruled the lower court and said Arkansas’ restrictions could take effect. 

The case ended up back at the lower court after the ACLU filed an emergency motion asking the district court to issue a temporary restraining order stopping the restrictions. That request was partly because there were already patients set to receive the now-banned dilation and evacuation procedure this week. 

U.S. District Judge Kristine Baker agreed and reiterated her findings from three years ago — that the second-term abortion procedure was an unconstitutional, substantial, and undue burden. Further, she found that enforcing Arkansas’ restrictions would also irreparably harm people seeking an abortion. 

The laws will remain on hold until Jan. 5, when they will go into effect if the order is not extended.

The entire process highlights just how tenuous abortion access is in states like Arkansas. The restrictions were passed by the state, then blocked by the district court, then put into effect by the Supreme Court, then blocked by the district court again.

Now people can obtain a dilation and extraction abortion, and doctors do not have to question them about their motives in seeking an abortion, but only for about two weeks. After that, no one knows what will happen next, and people are left uncertain as to the status of abortion availability in the state. 

Arkansas has made clear its intention to push abortion cases to the Supreme Court in the hope that Roe v. Wade will be overturned. It’s a strategy other states have pursued as well. With Amy Coney Barrett on the bench, they have just the court to grant their wish.

Published with permission of The American Independent Foundation.

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