By Dave Andrusko
Pro-life Arkansas Attorney General Leslie Rutledge has added her voice to the chorus of critics of a January 5th decision by a three judge panel of the 8th Circuit Court of Appeals.
In that 17-page decision, Judges James Loken, Bobby Shepherd and Ralph Erickson upheld U.S. District Judge Kristine Baker’s decision to block a 2019 Arkansas law barring abortionists from performed an abortion “solely on the basis of’ a diagnosis of Down syndrome or any other reason to believe the child has Down syndrome.”
Ironically, two of the judges who upheld the reliably pro-abortion Judge Baker—Judge Shepherd and Judge Erickson—expressed deep unease and could be considered critics of their own decision. They attributed their conclusion to the power of precedent—previous Supreme Court decisions—and called on the justices to revisit the “viability” issue.
“The Constitution does not require Arkansas to permit discrimination-by-abortion against Americans with Down syndrome,” said Attorney General Rutledge. “Through my personal friendships, I know that while individuals with Down syndrome may have an extra chromosome, they also have extra love and joy they share unconditionally, and I will not stand by while God’s gifts are exterminated as has been done in other countries.”
As AG Rutledge noted, “Although the Eighth Circuit ultimately ruled against Arkansas, two of the three judges agreed with Arkansas that the Constitution does not guarantee a right to discriminatory, selective abortions. These two judges asked the Supreme Court to correct its precedent.”
Referring to the trenchant concurring opinion of Justice Clarence Thomas in the 2019 case of Box v. Planned Parenthood of Indiana and Kentucky, Judge Shephard said Justice Thomas believed that the Indiana law
“and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics,” and acknowledged that “with today’s prenatal screening tests and other technologies, abortion can easily be used to eliminate children with unwanted characteristics.”
Judge Shepherd and Judge Erickson said of the opinion that it “is another stark reminder that the viability standard fails to adequately consider the substantial interest of the state in protecting the lives of unborn children as well as the state’s ‘compelling interest in preventing abortion from becoming a tool of modern-day eugenics.’”.
Judge Shepherd wrote separately that “good reasons exist for the Supreme Court to reevaluate its jurisprudence regarding the viability standard.
Judge Erickson asked the High Court to review its viability standard:
I concur in the Court’s opinion and in Judge Shepherd’s concurrence, but write separately to emphasize my belief that there are important reasons for the Supreme
Court to revisit its precedent in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). Viability as a standard is overly simplistic and overlooks harms that go beyond the state’s interest in a nascent life alone.
The great glory of humanity is its diversity. We are, as a species, remarkably variant in our talents, abilities, appearances, strengths, and weaknesses. The human person has immense creative powers, a range of emotional responses that astound the observant, and a capacity to love and be loved that is at the core of human existence. Each human being possesses a spirit of life that at our finest we have all recognized is the essence of humanity. And each human being is priceless beyond measure. Children with Down syndrome share in each of these fundamental attributes of humanity.
Then, arguably the most important statement:
While the state’s interest in nascent life has been recognized to give way to the right of a woman to be free from “unduly burdensome interference with her freedom to decide whether to terminate her pregnancy” id. at 874 (quoting Maher v. Roe, 432 U.S. 464, 473–74(1977)), it is apparent that the right is not, and should not be, absolute. By focusing on viability alone, the Court fails to consider circumstances that strike at the core of humanity and pose such a significant threat that the State of Arkansas might rightfully place that threat above the right of a woman to choose to terminate a pregnancy.