August 10, 2020

8th Circuit Court of Appeals Remands Injunction Against Pro-Life Arkansas Laws

On Friday, August 7, a three-judge panel from the 8th Circuit U.S. Court of Appeals vacated a decision by U.S. District Judge Kristine Baker which issued injunctions against four pro-life Arkansas laws. This comes due to stipulations Supreme Court Chief Justice John Roberts gave in his recent concurring opinion for June Medical LLC. v. Russo. Now, the case will go back to the lower courts for reconsideration involving Justice Roberts's ideas.

The June Medical case involved a Louisiana law that required abortionists to maintain admitting privileges at a nearby hospital. The law was overturned in the Supreme Court's 5-4 decision, but Chief Justice John Roberts's opinion, in this case, did not strictly align with the more progressive justices. Justice Roberts agreed with the progressive justices that the Louisiana law's requirement was too burdensome, but he specifically took issue with the cost-benefit method of judicial review that the court system has used when reviewing pro-life legislation in recent years.

The three-judge panel from the 8th Circuit Court of Appeals wrote the following:

Here, the district court—without the benefit of Chief Justice Roberts’s separate opinion in June Medical—applied the Whole Woman’s Health cost-benefit standard to the challenged laws. In addition, the district court relied on Whole Woman’s Health’s “holding that the ‘statement that legislatures, and not courts, must resolve questions of medical uncertainty is . . . inconsistent with this Court’s case law.’’ Chief Justice Roberts, however, emphasized the “wide discretion” that courts must afford to legislatures in areas of medical uncertainty. [Internal citations omitted for clarity]

Rather than subjectively weighing the "costs" and "benefits" of pro-life legislation, judges using Justice Roberts's decision-making philosophy would simply decide whether a law put an "undue burden" on abortion access. While a purely pro-life ruling from the Supreme Court would have been preferable, and "undue burden" might still be somewhat subjective, this development might prove to support many other pro-life laws that were previously blocked by the courts.

The Arkansas legislation affected in the ruling includes the Arkansas Unborn Child Protection from Dismemberment Abortion Act, the Sex Discrimination by Abortion Prohibition Act, an amendment regarding the disposal of fetal remains, and an amendment concerning forensic samples from abortions performed on a minor.

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