By Dave Andrusko
On August 7th we reported that a three-judge panel of the 8th Circuit Court of Appeals had vacated a decision by U.S. District Judge Kristine Baker to issue a preliminary injunction against four pro-life 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.
On Tuesday, in a huge victory, the full 8th Circuit (“en banc”) decided not to rehear the panel’s decision to dissolve the injunction. As a result the four laws could go into effect as early as December 22.
The measures Judge Baker preliminarily enjoined 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.
The office of pro-life Arkansas Attorney General Leslie Rutledge said she was pleased with Tuesday’s ruling, according to reporter Dale Ellis.
The attorney general applauds [Tuesday’s] decision denying en banc review,” said spokesperson Stephanie Sharp in an email to the Arkansas Democrat-Gazette. “This is another win validating the pro-life laws in Arkansas.”
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.
Dismemberment abortions are every bit as brutal, as inhumane, and dehumanizes the abortionist every bit as much as partial-birth abortions, which are now illegal. This “technique” tears and pulverizes living unborn human beings, rips heads and legs off of tiny torsos as the defenseless child bleeds to death. It is a measure of how trafficking in abortion brutalizes practitioners and defenders alike that a common response is that all “surgery” is “gross.”
In his dissent to the 2000 Stenberg decision, then-Justice Anthony Kennedy observed that in D&E dismemberment abortions, “The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off.”
Justice Kennedy added in the Court’s 2007 Gonzales opinion upholding the federal ban on partial-birth abortion, that D&E abortions are “laden with the power to devalue human life.”
As noted above, the three-judge panel leaned heavily on a concurring opinion written by Chief Justice Roberts in the June Medical Services LLC v. Russo. By a 5-4 vote, the justices struck down a Louisiana law that required abortionists to have admitting privileges at a local hospital in case of emergencies. Chief Justice Roberts’ concurrence represented the deciding 5th vote.
In its seven-page decision, the 8th circuit panel referenced a 1977 Supreme Court decision holding that when “no single rationale explaining the result [of a case] enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds’” (itself quoting from an earlier decision).
In this case, it means the grounds on which Roberts struck down the Louisiana law.
The panel carefully explained that while Roberts agreed with the outcome of the four-justice plurality, he did not agree with their reasoning. Here is the key:
“According to Chief Justice Roberts, the appropriate inquiry under the  Casey [decision] is whether the law poses ‘a substantial obstacle’ or ‘substantial burden, not whether benefits outweighed burdens” [“cost-benefit standard”]. Emphasis added.
Roberts wrote “[i]n this case, Casey’s requirement of finding a substantial obstacle before invalidating an abortion regulation is therefore a sufficient basis for [striking down the Louisiana admitting-privileges law], just as it was in Whole Woman’s Health,” the 2016 decision striking down a Texas law.
That having been established, the appeals court concluded
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]
With that, the case was “remand[ed] for reconsideration in light of Chief Justice Roberts’s separate opinion in June Medical, which is controlling…”