02 June 2018



During the 2016 campaign, some never-Trumpers focused on the damage a Trump presidency would do to a woman's right to make her own reproductive health decisions.  But not enough of us paid enough attention to that, and we are now beginning to see the results.

A recent NY Times article described the harsh anti-abortion laws in several South American countries. Women in Chile and El Salvador cannot legally obtain abortions under any circumstances, including risk of death to the mother. The women's response?  They smuggle in safe and inexpensive "Morning After" pills that are readily available from other countries where they are legal. The government's repressive reaction? Police investigate any physician who offers medical assistance to a woman who has suffered a miscarriage, on suspicion it was chemically induced! A convicted physician risks years in prison, and the same is true for the woman. One woman escaped a 40 year prison sentence by fleeing to Denmark.

The legislative leaders of Arkansas obviously think imprisoning physicians is a good plan.  Desperately seeking ways to frustrate the effect of Supreme Court rulings that bar states from imposing an "undue burden” on a woman's Constitutional right to choose, Arkansas has enacted a patchwork of laws to interfere with that freedom.  In addition to the 48-hour rule (requiring two visits to an abortion provider that may be hundreds of miles away), the legislature recently made it a crime for a physician to assist a woman in a medically induced abortion (i.e., pills, not surgery) unless the physician had a contract with another physician who had admitting privileges in a local hospital.

Indisputably, there are zero health benefits to that requirement.  Medical abortions are extremely safe, are widely employed, and only one quarter of one percent result in a hospitalization, which is initiated by a visit to an emergency room. Further statistics are equally startling. In a society where 55% of pregnancies are unintended, medical abortion is fifteen times safer than childbirth.

So what is this all about? Simple. There are only three facilities that provide legal abortions in Arkansas. Two of the three provide only medical abortions, the third, in Little Rock, provides both medical and surgical abortions.  Bottom line: the statute effectively shuts down two of the clinics and dramatically reduces the ability to obtain an abortion, especially for a poor woman.

Well, even if the legislatively-required contracts were medically unnecessary and offered no benefit to the patient, why didn't the Planned Parenthood facilities simply make the required contracts with physicians who had admitting privileges in local hospitals?

Because of the 322 members of the Arkansas chapter of the
American College of Obstetricians and Gynecologists, not one physician who had admitting privileges at a local hospital agreed to sign such a contract. Not one. Why? Because the doctors faced "the risk of being ostracized by their communities and because they faced harassment and violence toward themselves, their families, and their private practice."

That was the ruling of the federal District Court Judge who struck down the statute.

(Sound familiar? See my December, 2017 blog recalling the Oregon case involving the activists who went a bit beyond ostracizing and harassing: they threatened to murder physicians who performed abortions.)

Well, all's well that ends well? Not so fast. The Eighth Circuit appellate court reversed, 3-0, and reimposed the criminal statute. How could that be? In abortion litigation, it is frequently more about abortion politics than abortion law. The appellate court found fault with the decision below because the District judge failed to make "a concrete finding estimating the number of women who would postpone or pass up" the medical abortion.

Huh? The statute effectively closed down two of the three abortion clinics in the state, and required the sole remaining clinic to perform only surgical abortions!  Wasn't that "concrete" enough?  Nope, not for those three judges.

Planned Parenthood did not ask the three-judge panel to reconsider, or ask for an en banc hearing. Instead, it went directly to the Supreme Court and asked them to review and overturn the Circuit Court decision. Slam dunk, right?

Earlier this week, the Supremes denied cert. I.e., they rejected Planned Parenthood's application to appeal the Eighth Circuit ruling. In accordance with its regular practice, the Court issued no explanation for its decision.

The Arkansas law remains in effect. The women are deprived of their liberty rights, and any physician treating a woman who has a miscarriage is at risk.

I am not a Supreme Court expert. There are technical rules that may be involved in the Court's decision not to take up the case at this time, especially given the non-finality of the judgment below. 

Planned Parenthood will now go back to the District Court and try to get the necessary finding. And if they are successful, the case doubtless will go back up to the Eighth Circuit for some more abortion-politics-decision-making, and maybe then back up to the Supremes -- sometime in 2019 or 2020.

But I have an itch. The Arkansas statute is, on its face, a totally bogus and insincere effort to help women.  It is patently designed to accomplish a single purpose: to outlaw as many abortions as it can and still escape the Roe v. Wade ruling.

 It takes only four Justices to grant cert. I think it highly likely the four liberal Justices (and at least some of the conservatives as well?) see the Arkansas statute for what it is, and consider it a manifest violation of Roe and its progeny.  Why didn't the liberals vote to take it up?

Was it a fear on the part of the liberals that if they did grant cert., no matter how "illegal" the Arkansas statute is, they might be on the losing end of a 5-4 decision on the merits, and a number of states would rush to enact similar, and maybe even worse, statutes? 

Is Roe v. Wade in trouble?

A bad sign.

And with three years left in this term of the Trump presidency, that's a long time to hold one's breath.