Analysis Law and Policy

A Win and a Warning for Abortion Rights in Arkansas

Jessica Mason Pieklo

The decision blocks three anti-abortion measures, including a ban on abortions at 18 weeks, from taking effect in Arkansas. But with Trump's takeover of the federal courts, will the win last?

A federal district court in Arkansas on Wednesday temporarily blocked three anti-choice restrictions from taking effect, declaring unconstitutional a proposed ban on abortions at 18 weeks of pregnancy, a ban on abortion based on a patient’s reason for seeking care, and a law prohibiting qualified physicians from providing abortions.

The decision is clearly good news. The restrictions were slated to go into effect on Wednesday absent of the order and would have severely limited abortion access in Arkansas, where it is already hanging by a thread. The restrictions would have unquestionably affected low-income patients the most in a state with some of the worst health outcomes based on income disparity in the country. And Wednesday’s order keeps the number of federal courts that have upheld a pre-viability abortion ban like Arkansas’ 18-week ban at zero. In this climate, where the attacks on reproductive health care and the rule of law are daily and relentless, the 159-page opinion blocking the restrictions is something to celebrate.

But. There is almost always a “but” when it comes to abortion rights cases, and this time the “but” involves arguments made by attorneys for the State of Arkansas. They argued that the clinics and providers did not have legal standing to challenge the restrictions. My colleague Imani Gandy wrote a great explainer on legal standing, so I won’t get into the details of how it works other than to say there is a long line of precedent that recognizes the legal standing of abortion clinics and providers to challenge abortion restrictions on behalf of patients.

Thankfully the court rejected these attacks on the standing entirely. And—here’s where that “but” I said matters—as of July 11, President Donald Trump has made 128 appointments to the federal bench, placing him third among presidents since Teddy Rosevelt in the total number of judicial appointments. He leads all presidents in appellate court appointments and is fifth in district court appointments. And he’s not even finished with his first term in office.

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Those numbers are the stuff of nightmares for abortion rights advocates because, like his promise to “ban Muslims” or “build a wall”—both of which the president has delivered on thanks in part to the federal courts—Trump campaigned on a promise to appoint judges that would overturn Roe v Wade. He said on the campaign trail that there should be “some kind of punishment” for people who terminate pregnancies, and there’s no reason to doubt the over 100 mostly white conservative men he’s appointed to the federal bench agree with him.

Which is why I worry it is only a matter of time before a federal court accepts arguments like the ones made in Arkansas. Arguments that doctors cannot challenge abortion restrictions on behalf of patients because “‘[w]hen a state enacts regulations to protect the health and safety of abortion patients and to promote dignity and respect for the unborn child, the interests of physicians and patients diverge.’” According to attorneys for the State of Arkansas, when lawmakers pass restrictions to promote the “dignity of the unborn,” it creates a conflict of interest between providers and patients, which makes it impossible for providers to adequately represent those patients’ interests in court when challenging restrictions like the 18-week ban.

As the court on Wednesday rightly noted in rejecting that claim “[t]his argument could be made with respect to any abortion regulation that purports to advance a valid state interest.” And indeed it could, which is why attorneys for the State of Arkansas raised it. If they can get a federal court to bite on limiting who can challenge abortion restrictions, they increase the odds that even blatantly unconstitutional abortion restrictions go unchallenged.

A decision limiting, or removing entirely, the ability of providers and clinics to raise such claims on behalf of current and future patients would have devastating effects on the ability to enforce the constitutional rights of vulnerable patients. The burden would fall on patients seeking an abortion to also seek a court order challenging whatever unconstitutional restriction lawmakers cooked up to try and block that abortion from happening. That places the burden of seeking a lawsuit, both financial and otherwise, on those least able to carry it. So it’s easy to see why anti-choice activists are so eager to attack standing in these cases and how it would be devastating should they succeed.

The arguments made by the State of Arkansas are dangerously appealing to federal judges already opposed to abortion rights. They are framed to appeal both to their inherent dislike of “abortionists” by suggesting a conflict between a patient’s interests and a provider’s interests that does not exist, and to their desire—unspoken or not—to create some kind of punishment for patients who want or need to terminate a pregnancy.

And what better punishment could there be—while abortion is still legal at any rate—than forcing vulnerable people to plead for their reproductive autonomy before a privileged, likely white and male, federal judge.

It is all but certain that Arkansas will appeal Wednesday’s decision to the conservative Eighth Circuit Court of Appeals. The Eighth Circuit has previously refused to reverse rulings blocking unconstitutional pre-viability abortion bans, including an early 12-week ban from Arkansas. If all goes as it should, if the rule of law continues to matter, the Eighth Circuit will do so again here.

But with the Trump takeover of the federal judiciary nearly complete it is increasingly likely these cases will not turn out as they should.

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