8th Circuit Vacates Injunction on Arkansas Abortion Law

An important abortion rights case in Arkansas is headed back to the district court following the 8th Circuit's decision to vacate a preliminary injunction.

The U.S. District Court for the Eastern District of Arkansas granted the injunction in July of 2017 requested by the plaintiff, physician Frederick W. Hopkins.

The decision blocked four state abortion laws from taking effect in 2017 and 2018:

• The Arkansas Unborn Child Protection from Dismemberment Act
• The Sex Discrimination by Abortion Prohibition Act
• An amendment to state law concerning the disposition of fetal remains
• An amendment on how forensic samples from abortions are maintained

Under these statutes, doctors who provided abortion services would face civil, professional, and even criminal penalties.

The Pulaski County Prosecuting Attorney and members of the Arkansas State Medical Board appealed.

Chief Justice Skeptical of Current Rule

The panel based its decision in large part on comments from Supreme Court Chief Justice John Roberts in June Medical Services v. Russo earlier this summer. Although the Chief Justice joined the majority in upholding precedent and invalidating Louisiana's admitting privileges rule, he expressed a continued belief that the previous case was "wrongly decided."

Chief Justice Roberts disagrees with the balancing test discussed in Whole Women's Health v. Hellerstedt, which requires courts to weigh a law's asserted benefits against the burden it imposes on abortion access. Such a test requires judges to weigh factors that are inherently "unweighted," according to the Chief Justice, leading to inconsistent results. He observed that balancing the state's interests in "protecting the potentiality of human life" and women's health against a woman's liberty, if even possible, would lead judges to make decisions best left to legislators.

Instead, the Chief Justice argues that the test should be whether a statute places a "substantial obstacle" in the way of women seeking abortions.

8th Circuit Remands

The 8th Circuit held that because Chief Justice Roberts' vote was necessary in finding the law in June Medical Services unconstitutional, his separate opinion can control in other cases.

The district court issued the injunction using the rule from Whole Women's Health, without the benefit of Roberts' opinion in June Medical Services. And for that reason, the 8th Circuit vacated the preliminary injunction and sent the case back for further consideration.

Related Resources:

Supreme Court Upholds Precedent, Invalidating Louisiana Abortion Law (FindLaw's Supreme Court Blog)

Could Roe v. Wade Be Overturned? (FindLaw's Supreme Court Insights)

SCOTUS Issues Two Big Religious Liberty Rulings. What Do They Mean for Regular Folks? (FindLaw's Law & Daily Life)