ACLU asks full 8th Circuit to hear challenge to four pro-life Arkansas laws upheld by three-judge panel

By Dave Andrusko

On August 7, a three-judge panel of the 8th Circuit Court of Appeals vacated a decision by U.S. District Judge Kristine Baker who had issued a preliminary injunction against four pro-life bills passed in 2017 by the Arkansas legislature. Judges Smith, Wollman, and Grasz said the laws should be reconsidered in light of the concurring opinion issued by Chief Justice John Roberts in the June 29th case of June Medical Services L.L. v. Russo.

Very often, the losing party will ask the full circuit to review the decision, laying out how/where/why the panel allegedly went astray.

And, according to Max Brantley of the Arkansas Times, is exactly what the ACLU did last week in a 23-page brief filed with the 8th Circuit.

The measures Judge Baker issued a preliminary injunction against banned the dismemberment of living unborn babies; protected unborn babies who would be aborted solely because of a prenatal diagnosis of Down syndrome; required forensic samples from abortions performed on a minor; and mandated humane disposal of the aborted baby’s remains.

With the recent addition of Nebraska, there are now thirteen states that have passed bans on the horrific practice of dismembering live unborn babies. Bans on such gruesome practices are a primary emphasis of National Right to Life and its state affiliates.

As Brantley (unintentionally) amusing wrote

The request for rehearing says the three judges “bootstrapped” a concurring opinion by Chief Justice John Roberts in a Louisiana abortion case to effectively overrule the existing precedent that should apply in this case. If precedent is to be overturned, it should be done by the full Supreme Court, the brief argues.

Of course, the appeals court panel didn’t “bootstrap” anything. It carefully explained that while Chief Justice Roberts agreed with the outcome of the four-justice plurality in June Medical Services L.L. v. Russo., he did not agree with their reasoning.

Here is the key: “According to Chief Justice Roberts, the appropriate inquiry under the [1992] Casey [decision] is whether the law poses ‘a substantial obstacle’ or ‘substantial burden, not whether benefits outweighed burdens” [“cost-benefit standard”]. Emphasis added.

Ironically, Kate Smith, CBS News’ very pro-abortion reporter neatly summarized the panel’s [correct] understanding of Roberts’ position:

In their decision reversing the district court’s injunction that had previously blocked the regulations, the Eight Circuit Court of Appeals cited June Medical Services v. Russo, the Supreme Court’s June 29 ruling striking down a Louisiana abortion restriction. Though Chief Justice Roberts sided with the court’s liberal bloc, he offered his own separate opinion. In it, he wrote that states do not have to prove that the benefits of an abortion restriction outweigh the burden on a person’s ability to access the procedure— it just has to show that it does not present a “substantial” obstacle or burden.

“Nothing about [previous Supreme Court precedent] suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts,” Roberts wrote.

That having been established, the appeals court concluded

Here, the district court [meaning Judge Baker]—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]

With that, the case was “remand[ed] for reconsideration in light of Chief Justice Roberts’s separate opinion in June Medical, which is controlling…”

The ACLU wants the full 8th Circuit to revisit what it calls “the panel’s mistaken view.”