Power

No Need to Revisit ‘Roe,’ Advocates Tell Roberts Court

Reproductive rights advocates filed a brief last week telling the Roberts Court to turn away a request to reinstate an Arkansas law that bans abortions at 12 weeks' gestation.

Reproductive rights advocates filed a brief last week telling the Roberts Court to turn away a request to reinstate an Arkansas law that bans abortions at 12 weeks' gestation. GovernorMikeBeebe / YouTube

Attorneys from the Center for Reproductive Rights (CRR) and the American Civil Liberties Union (ACLU) filed a brief with the U.S. Supreme Court last week urging it to turn away a case designed to re-criminalize abortion nationwide.

Arkansas’ SB 134 bans abortion at 12 weeks’ gestation with narrow exceptions in certain cases of rape, incest, and medical emergencies. SB 134 was enacted in March 2013 when Republican anti-choice lawmakers in the state legislature overrode the veto of Gov. Mike Beebe (D).

The CRR, the ACLU, and the ACLU of Arkansas filed suit in April 2013 against the ban on behalf of two physicians who provide abortion care in Little Rock. A federal district judge permanently struck down the ban in March 2014, saying the extreme measure would “prevent a woman’s constitutional right to elect to have an abortion before viability.”

The U.S. Court of Appeals for the Eighth Circuit permanently blocked the ban in May 2015. Arkansas officials then asked the Supreme Court to review the appellate court’s decision earlier this fall.

Attorneys for the State of Arkansas argued at both the trial court and appellate level that even though the law, if enacted, would outlaw nearly all abortions after 12 weeks’ gestation, Act 301—which bans abortion at the point a fetal heartbeat is detected, but not before 12 weeks—was not an unconstitutional pre-viability ban. Instead, because of the narrow exceptions within the act, attorneys said the ban was merely a regulation on the abortion procedure.

Attorneys for the State of Arkansas argued that the presence of safe haven laws, which provide parents a window to abandon newborns without criminal penalty, has removed the burden of undue parenthood and should grant states the power to ban abortions before viability.

A three-judge panel on the Eighth Circuit Court of Appeals rejected those arguments, but not because the judges disagreed with the Arkansas attorneys. Rather, the judges felt their hands were tied by Supreme Court precedents like Roe v. Wade and Planned Parenthood v. Casey, which prevent states from banning abortions prior to viability. They used the appellate opinion as a call on the Supreme Court to rethink its abortion rights jurisprudence.

Reproductive rights advocates responded to that call directly in their brief to the Roberts Court.

“Since this Court first recognized constitutional protection for abortion before the point of viability, two generations of Americans have come of age, depending on constitutional protection for their dignity in making reproductive decisions,” the brief notes.

Advocates responded directly to arguments by attorneys for the State of Arkansas that safe haven laws remove the burden of unwanted parenthood and thus give states the power to ban abortion outright, should lawmakers choose.

“Accordingly, even if abortions were prohibited in Arkansas, no pregnant woman would be forced to endure the burdens of ‘additional offspring’ and ‘a distressful life and future[,]’ or mental and physical health ‘taxed by child care[,]’ or general distress associated with an ‘unwanted child,’ or ‘the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it,'” attorneys for the State of Arkansas argued in their petition to the Roberts Court. “The safe haven statute completely eliminates the pregnant woman’s burden of parenthood.”

Should the Roberts Court accept the argument that safe haven laws grant states the power to outlaw abortion, advocates from CRR and the ACLU argued anti-choice lawmakers will not stop at simply banning abortion.

“Such laws cannot redeem an unconstitutional ban on pre-viability abortions any more than laws allowing a woman to place her infant for adoption,” reproductive rights advocates argued. “[W]ere Petitioners correct that a woman has no constitutional right to prevent unwanted pregnancy, and that any prejudice she may suffer is wholly ‘remedie[d]’ by laws that allow her to avoid unwanted parenthood, then the constitutional right to contraception would be in grave doubt.”

Anti-choice advocates hope the Roberts Court takes up the case, along with a North Dakota request that the Supreme Court take its appeal of a decision blocking its six-week abortion ban. The Eighth Circuit Court of Appeals heard the North Dakota and Arkansas cases together, and while the federal appeals court in both cases upheld lower court decisions striking the bans, both opinions made it clear that the justices would have upheld them if they had some legal vehicle to do so.

The Roberts Court has not scheduled the Arkansas or North Dakota cases for conference, nor decided whether it will take up either challenge. Appellate court decisions blocking those laws from taking effect would remain in effect should the Supreme Court refuse to hear the cases.