By Dave Andrusko
On January 5th, NRL News Today reported on a decision by the 8th Circuit Court of Appeals affirming a lower court’s order that overturned an Arkansas law prohibiting abortions that are performed “solely on the basis of” a diagnosis of Down syndrome.
Arkansas lawmakers overwhelmingly passed Act 619, the Down Syndrome Discrimination by Abortion Prohibition Act, in 2019.
That decision came less than two months after a three-judge panel of the 6th U.S. Circuit Court of Appeals gave the state of Tennessee a big victory. The panel ruled the state could begin enforcing a ban on abortion when the abortionist knows that the woman is seeking the abortion because of the child’s sex or race or if he knows the woman is seeking an abortion because of a diagnosis of Down syndrome.
The 8th Circuit frankly acknowledged it had created a circuit split, which makes for the kind of disagreement the Supreme Court often addresses.
This past week pro-life Arkansas Attorney General Leslie Rutledge filed a reply brief in support of her petition “asking the U.S. Supreme Court to review an erroneous decision holding that the Constitution guarantees a right to abort a child solely on the basis of a Down-syndrome diagnosis,” alluding to the 8th Circuit decision.
Attorney General Rutledge said, “In my personal experiences, I know individuals with Down syndrome have an extra chromosome, but they also have extra love to give and I will fight for these innocent individuals who are a gift from God.” She added, “The Constitution does not sanction killing an unborn child just because that child may have Down syndrome and I will not stand by and allow this practice to happen.”
The state’s 16-page reply brief pulls no punches.
Here are three pithy examples. In each, the internal citations are omitted for clarity.
The day this petition was docketed, a circuit split opened up on the question it presents. The en banc [the entire] Sixth Circuit held States may prohibit knowingly performing Down-syndrome-selective abortions, contrary to the decision below, which held the opposite.
In a different era, Respondents might encourage review of that question. Instead, to avoid it, Respondents hide behind a farrago of illusory, split-denying distinctions, misleading statistics, decontextualized quotations of precedent, and an outlandish claim that Arkansas is estopped from advocating its best reading of this Court’s abortion cases by its response to another party’s rehearing petition in a different case. And nowhere do they acknowledge this Court’s decision to grant certiorari on a closely related question in Dobbs v. Jackson Women’s Health.
None of Respondents’ objections to review hold water. The circuit split is unusually crisp; Arkansas’s reading of precedent is far superior to Respondents’ and at least cert-worthy; Respondents’ vehicular arguments are meritless; and the urgency of review, as illustrated by the true numbers of selective abortions, is manifest.
#2. Rutledge lays out the overriding importance of the issues at hand, what many have called discrimination-based abortions:
But amid the usual sniping about vehicles and splits, one thing should not be lost. This is not a case about just any ambiguity of a vexed abortion jurisprudence. This case is about whether selective abortion may cause a small group of people with disabilities “to wither or disappear.” It’s about whether selective abortion will continue to send people with Down syndrome messages of inferiority that once received may never be forgotten. And it’s about whether the laws of 12 States and counting enacted 2 to prevent these harms, four in the Circuit below, can be given effect. The Court not only needs to decide this case; it needs to decide it now
This echoes the sentiments of Supreme Court Justice Clarence Thomas whose observations on this phase of the abortion discussion we have written at least a half a dozen times. For example, see here; here; here and here which are Justice Thomas’s own words beginning on page 15.
#3. Under the blunt subhead, “The court of appeals’ decision is wrong,” Rutledge writes
This Court [the Supreme Court] has always upheld abortion regulations that reasonably further compelling interests, whether they impose substantial burdens or not. Arkansas’s law directly furthers two undeniably compelling interests: protecting a small group of people with disabilities from elimination, and protecting those who remain from receiving the stigmatic message that their lives aren’t worth living. The court of appeals’ decision, which refused to even consider those interests, conflicts with this Court’s precedent and cannot stand.
To reiterate, the issue at stake could hardly be more important: whether we will sit idly by while eugenic is allowed to again rear its ugly head.