More than three years after a federal judge in Little Rock blocked the enforcement of four newly enacted laws restricting access to abortion in Arkansas, a federal appeals panel has dissolved the injunction.
On Friday, the panel, led by Chief U.S. Circuit Judge Lavenski Smith of Little Rock, cited a June opinion of the chief justice of the U.S. Supreme Court as justification for requiring the Little Rock judge, Kristine Baker, to evaluate the constitutionality of the laws using a different method than she used in 2017.
According to the American Civil Liberties Union of Arkansas and the national Center for Reproductive Rights, which jointly sued to stop the laws from being enforced, the ruling dissolving the injunction won't take effect for 21 days, which means the laws will remain blocked until Aug. 28.
The laws at issue, all enacted in 2017, are Act 45, which bans a common second-trimester abortion procedure, dilation and evacuation; Act 1018, which requires doctors to notify law enforcement when anyone 16 or younger obtains an abortion; Act 733, which requires doctors to review a woman's medical records if she knows the sex of the fetus she wants to abort, to ensure she isn't using abortion as a means of sex selection; and Act 603, which regulates the disposal of abortion remains, requiring the patient to notify a patient's partner or family -- which opponents say allows the third parties to effectively block the abortion.
Arkansas Attorney General Leslie Rutledge praised the ruling.
"Arkansas has taken a strong stance to protect the unborn from inhumane treatment," she said. "As Arkansas's chief legal officer, I have always advocated for the lives of unborn children and will continue to defend our state's legal right to protect the unborn."
Rutledge, who has announced that she is running for governor, referred to the dilation and evacuation procedure in adding, "No defenseless baby should ever face the unimaginable and horrifying fate of death by dismemberment."
The ACLU and the Center for Reproductive Rights issued a statement saying, "If allowed to take effect, these restrictions would completely block many people from obtaining abortion care, and would eventually leave the state with even more limited abortion care."
Ruth Harlow, senior staff attorney for the ACLU's Reproductive Freedom Project, promised that "we will keep fighting to prevent these egregious laws that Arkansas politicians have tried to impose on people seeking abortion in the state to ban or block them from getting care. All options are on the table to keep the laws blocked after Aug. 28."
Holly Dickson, the Arkansas ACLU's legal director and interim executive director, added, "These onerous restrictions were designed with the singular intent to take away the right to abortion and punish people for seeking care. This ruling is a reminder that the fight against these extreme abortion restrictions is far from won."
Family Council President Jerry Cox issued a statement saying, "This is a very good ruling. It paves the way for enforcement of these good laws."
The council is a conservative education and research organization based in Little Rock.
Cox said the laws "protect women from dangerous surgical abortion procedures, ... help prevent babies' organs from being harvested and sold to researchers, ... expand the reporting requirements for abortions performed on underage girls" and "require abortionists to request part of a woman's medical history before performing some abortions."
Referring to Act 45, in particular, Cox said, "Prohibiting these dismemberment abortions will save the lives of hundreds of babies every year, and it will protect women from an abortion procedure that carries a number of risks."
The abortion rights advocates called the four laws in question "just four of the more than 463 restrictions states have passed on abortion since 2011."
"We will exhaust our legal options to make sure these laws don't take effect," said Hillary Schneller, staff attorney at the Center for Reproductive Rights. "There's no question that these laws will make it harder to access abortion in Arkansas. The Supreme Court just weeks ago reaffirmed that a state cannot pass laws that unduly burden a person's access to abortion, and that is exactly what these laws do."
The opinion released Friday by a panel of the 8th U.S. Circuit Court of Appeals in St. Louis focused on the U.S. Supreme Court's recent decision in a case called June Medical Services v. Russo. The June 29 ruling struck down a Louisiana law that, if upheld, would have forced all but one abortion clinic in that state to close.
The law would have banned doctors from providing abortions unless they had admitting privileges at a hospital within 30 miles. The ruling was the first abortion rights case to be heard under the current makeup of the Supreme Court.
Justice Stephen Breyer wrote the majority opinion, saying that the challenged Louisiana law poses a "substantial obstacle" to a woman seeking an abortion, and offers no significant health-related benefits, thus imposing an "undue burden" on a woman's constitutional right to choose an abortion.
Friday's 8th Circuit opinion was jointly issued by Smith and two other panelists -- U.S. circuit judges Roger Wollman of Sioux Falls, S.D., and L. Steven Grasz of Omaha, Neb.
It followed Rutledge's appeal of Baker's injunction, and oral arguments in December 2018, followed by the submission of supplemental briefs.
The opinion states that in the Louisiana case, "Chief Justice [John] Roberts provided the critical fifth vote in favor of striking down the Louisiana admitting-privileges law. But he concurred in the judgment, not the plurality's reasoning."
The opinion notes that Roberts continued to believe that a 2016 opinion out of Texas, known as Whole Women's Health, which the Louisiana ruling was based on, was "wrongly decided," but that because it was precedent, the justices had to follow it in the Louisiana case.
The 8th Circuit opinion said Roberts "rejected the 'observation' made in Whole Women's Health and again by the plurality that 'the undue burden standard requires courts to weigh the law's asserted benefits against the burdens it imposes on abortion access.'"
The opinion said Roberts criticized that method of inquiry as one that could lead to arbitrary results, and noted that nothing in a 1992 precedent, Planned Parenthood of Southeast Pennsylvania v. Casey, suggested that weighing costs and benefits of an abortion law was "a job for the courts."
The panel noted that according to Roberts, the appropriate inquiry under the Casey case is whether the law in question poses "a substantial obstacle" or "substantial burden, not whether benefits outweighed burdens."
While Roberts said that requirement was a sufficient basis for holding the Louisiana law unconstitutional, he also emphasized the "wide discretion courts must afford legislatures in areas of medical uncertainty," the 8th Circuit judges said in throwing out Baker's injunction and returning it to her.
They instructed her to reconsider it, "in light of Chief Justice Roberts's separate opinion in June Medical, which is controlling, as well as the Supreme Court's decision in" a 2019 opinion, Box v. Planned Parenthood of Indiana and Kentucky.