A panel of federal appeals judges used Chief Justice John Roberts‘ opinion in the Supreme Court’s recent decision protecting abortion access to allow several Arkansas abortion restrictions to go back into effect — a seemingly counterintuitive outcome that advocates on both sides of the abortion issue had predicted.
Three judges on the Eighth Circuit Court of Appeals opted on Friday to remove a district court’s temporary block on the Arkansas laws “in light of Chief Justice Roberts’s separate opinion in June Medical” and another prior court case. The laws include a restriction on the most common procedure used in second-trimester abortions and a provision that the husband of a woman getting the abortion can sue the doctor to stop his wife’s abortion.
According to procedural rules, the re-instated laws can’t go into effect for 21 days, or until August 28.
Judges Lavenski R. Smith, Roger L. Wollman and L. Steven Grasz noted that while Roberts sided with the court’s four liberals to strike down the Louisiana law in June, he did not sign on their reasoning.
They pointed to how in his concurring opinion, the chief justice addressed the undue burden standard, established in the landmark Supreme Court case Planned Parenthood of Southeastern Pa. v. Casey to determine if a law creates a substantial obstacle in the path of a woman seeking an abortion. Roberts held that “state and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty” in keeping with that decision, the judges noted.
While the lower court in striking down the restrictions held that courts, not legislatures, must resolve questions of medical uncertainty, Roberts in the superseding Supreme Court case, “emphasized the ‘wide discretion’ that courts must afford to legislatures in areas of medical uncertainty,” the judges said.
The granular analysis of Roberts’ opinion in a case that ultimately blocked an abortion restriction to then uphold other restrictions was anticipated by several abortions rights supporters and opponents in light of Roberts’ opinion.
In a footnote, Roberts wrote that the “validity of admitting privileges law depend(s) on numerous factors that may differ from state to state.”
CNN Supreme Court analyst and professor at the University of Texas School of Law Stephen Vladeck said at the time that Roberts suggested that he did not necessarily endorse the analysis of the 2016 decision, which focused as much on whether the restrictions actually provided benefits to pregnant women as on whether they imposed an undue burden.
“In the process,” Vladeck said, “the chief justice’s narrower opinion implies that states making different arguments in different cases might be able to justify similar restrictions going forward. In that respect, the chief justice may have sided with abortion supporters today, but their victory may be short-lived.”
Abortion rights supporters who helped bring the case against the laws slammed the decision and vowed to continue fighting it in court.
“This ruling is a reminder that the fight against these extreme abortion restrictions is far from won,” Holly Dickson, legal director and interim executive director of the ACLU of Arkansas, said in a statement. “We are evaluating our next steps and will continue to fight to ensure these harmful and unconstitutional laws do not take effect.”
Hillary Schneller, staff attorney at the Center for Reproductive Rights, said that “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.”
Opponents to abortion access cheered the ruling.
“Arkansas has taken a strong stance to protect the unborn from inhumane treatment,” Arkansas Attorney General Leslie Rutledge said in a statement, adding that she would “continue to defend our State’s legal right to protect the unborn.”
Carol Tobias, president of National Right to Life, said that her group is confident that “under the standard set forth in the 1992 US Supreme Court decision in Casey v. Planned Parenthood that this law will prevail” and “protect the lives of unborn children.”