WASHINGTON -- Citing binding U.S. Supreme Court precedent, a U.S. Court of Appeals panel ruled against an Arkansas law shielding fetuses with Down syndrome from abortion.
But in their January ruling, two of the three judges expressed discomfort with their own decision, and they encouraged the nation's highest court to reconsider the issue.
Now, conservative lawmakers and activists are making similar pleas.
Attorney General Leslie Rutledge asked the high court last month to reverse the 8th U.S. Circuit Court of Appeals ruling, which kept in place a preliminary injunction preventing the law's enforcement.
U.S. District Judge Kristine Baker had granted the preliminary injunction, finding that the statute conflicted with existing federal case law.
But last month, the 6th U.S. Circuit Court of Appeals upheld a similar abortion restriction in Ohio.
"We're hopeful that the Supreme Court will take a look at this," said Rose Mimms, executive director of Arkansas Right to Life.
Under Roe v. Wade, the landmark 1973 abortion case, states cannot ban abortions prior to viability. In the 7-2 decision, the court said that "[v]iability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."
Over the years, anti-abortion activists in Arkansas and elsewhere have repeatedly sought laws to prevent abortion prior to 24 weeks, arguing that medical advances have made the 48-year-old standard obsolete.
In a concurrent opinion upholding Baker's ruling, U.S. Circuit Judge Bobby Shepherd of El Dorado said the viability standard is insufficient because it "fails to adequately consider the substantial interest of the state in protecting the lives of unborn children as well as the state's 'compelling interest in preventing abortion from becoming a tool of modern-day eugenics.'"
With the U.S. Supreme Court agreeing Monday to review a ban on abortion at 15 weeks, currently the law in Mississippi, anti-abortion activists hope the nine justices will take a long, hard look at Roe v. Wade.
They're asking the court to consider the Arkansas law as well.
Under Act 619, "A physician shall not intentionally perform or attempt to perform an abortion with the knowledge that a pregnant woman is seeking an abortion solely on the basis of" a test, diagnosis or belief that the fetus has Down syndrome.
The measure, which applies even before viability, passed in the Arkansas Senate on March 20, 2019, by a vote of 29-2 with four senators not voting.
It passed in the House in a 75-11 vote with 12 lawmakers abstaining and two voting "present."
In her brief seeking a Supreme Court review, Rutledge argued that the 8th Circuit ruling "threatens the very existence of people with Down syndrome in this country. And it sends an unmistakable message to people with Down syndrome that the Constitution, as interpreted by this Court, is indifferent to their survival."
Last week, 22 states submitted a friend-of-the-court brief asking the justices to review Leslie Rutledge v. Little Rock Family Planning Services.
States "have a strong interest in protecting their own Down syndrome populations and preventing the extermination of people with Down syndrome from society," it stated.
Seventeen U.S. senators, including Tom Cotton, R-Ark., and John Boozman, R-Ark., have submitted their own friend-of-the-court brief. They were joined by all four U.S. House members from Arkansas and five dozen of their House colleagues.
A variety of other organizations have filed or signed on to similar requests, including the Ethics and Religious Liberty Commission of the Southern Baptist Convention and the National Association of Evangelicals.
Roughly 1 out of every 700 babies in the United States is born with the extra full or partial chromosome that is associated with Down syndrome, according to the U.S. Centers for Disease Control and Prevention.
In their brief, lawmakers argued that Arkansas is attempting to protect people with disabilities from invidious discrimination.
"Performing an abortion on the basis of a disability disregards the dignity of those with disabilities and perpetuates abortion as 'a tool of modern-day eugenics,'" they wrote, quoting from Justice Clarence Thomas' dissent in a 2019 case, Box v. Planned Parenthood of Indiana & Kentucky, Inc.
Bettina Brownstein, an ACLU of Arkansas cooperating attorney, said state officials have been trying for years to strip women of their constitutional right to an abortion.
Every General Assembly proposes new restrictions, she said.
"In 2017, we challenged four laws," she said. "In 2019, we challenged three laws.
"It's been an onslaught, for quite a number of [years], ever since the Legislature flipped to become Republican," she said.
"The goal is to drive abortion out of Arkansas. That's no secret," Brownstein said.
If state officials succeed, then those without means will be disproportionately affected, she said.
Most women seeking abortion already have at least one child, she said.
"Poor women in the Delta, the poor women all over Arkansas, that's who's going to get stuck having another kid," she said.
Rutledge, who had urged the Supreme Court to review the Mississippi law, was pleased to see the justices revisiting the issue.
"The decision in that case will be critical to the protection of the unborn in Arkansas and across America," she said. "I am hopeful that the Court's decision to take the Mississippi case is a sign that the Supreme Court will also grant review of our case in Arkansas to protect the lives of unborn babies with Down syndrome."