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Eighth Takes Heat for Controversial Abortion Rulings

By Casey C. Sullivan, Esq. on August 06, 2015 | Last updated on March 21, 2019

In June, the Eighth Circuit struck down an Arkansas law banning abortion once a fetal heartbeat can be detected. A few weeks later, the circuit tossed a similar law in North Dakota. In both cases, the Eighth Circuit ruled reluctantly, lamenting that it was bound by Supreme Court precedent.

Now, the ridicule has started rolling in, not because of the Court's holding, but because of the opinions themselves. The opinion in the North Dakota case, authored by Judge Bobby Shepherd, has been particularly targeted. Slate described it as "anti-science." The Economist said it read more like "novice high-school debate speech than a ruling by a federal appellate judge." What's all the hubbub about?

The Eighth Circuit Opinions, In Brief

Roe v. Wade protects a woman's right to an abortion before the fetus has reached viability. The Supreme Court reaffirmed this in Planned Parenthood v. Casey. Viability is treated as a medical concept, not a legal one, and is typically pegged to the 24th or 25th week of pregnancy.

Both Arkansas' and North Dakota's law sought to replace viability with the existence of a fetal heartbeat. For that reason, both of them were invalidated by the Eighth Circuit. In both opinions, the Court made it abundantly clear that it would not have struck down the laws if it didn't have to.

In the Arkansas opinion, penned by Judge Lavenski Smith, the court instructed future challengers of Roe to question the scientific accuracy of the viability standard and to argue that viability must be individually determined, fetus by fetus. In the North Dakota opinion, by Judge Shepherd, the Eighth went further, referring to fetuses as "unborn children" and devoting a third of its pages to asking the Supreme Court to renounce the viability standard altogether.

Yes, It Wasn't the World's Greatest Opinion

That Judge Shepherd questioned the wisdom of Supreme Court precedence isn't particularly shocking. Appellate courts often speak up when they think the Court should revisit a particular ruling. The judge's arguments weren't particularly absurd either. In making his case for reconsidering Casey, Judge Shepherd argues that Supreme Court precedent undervalues state interests and has not kept up with scientific developments.

Fine, fine. But then, Judge Shepherd argues that abortion should be reconsidered given the stories of a handful of women who have had abortions, some of whom later regretted them. The abridged version of the opinion, Dahlia Lithwick writes in Slate, goes something like "I know a guy who had a cousin and this happened to her friend."

The Economist did not pull punches, either. There, the magazine notes that Judge Shepherd conflates, at moments, viability with conception and endorses scientific "sophistry." The magazine takes issue with Judge Shepherd's implication that individual anecdotes should determine constitutional rights:

Does a constitutional right exercised imperfectly no longer merit protection? By that odd measure, the free exercise of religion is called into serious question when we discover that some Amish youth sell methamphetamines. Free speech should perhaps be abandoned because dogfight videographers and cross burners abuse it. And the second amendment's right to bear arms should have been shunted to the dustbin right after America's first mass shooting-or at least well before its 71st.

We can't imagine Judges Shepherd or Smith losing sleep over such writing, however. It was clear enough in the opinions that their rulings weren't directed at supporters of abortion rights who, after all, got what they wanted, in deed if not in word.

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