Bench Memos

Law & the Courts

Eighth Circuit Calls for Supreme Court to Reconsider Abortion Precedents

In a decision yesterday (MKB Management Corp. v. Stenehjem), a unanimous Eighth Circuit panel ruled that a North Dakota law that generally prohibits abortion after the point at which the “unborn child the pregnant woman is carrying has a detectable heartbeat” is inconsistent with the rules imposed by the Supreme Court in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). Specifically, “fetal heartbeats are detectable at about 6 weeks”—long before “viability,” as the Court has defined that concept. The panel’s reasoning strikes me as clearly correct.

To their great credit, the panel—consisting of Lavenski R. Smith, William Duane Benton, and Bobby E. Shepherd (all Bush 43 appointees)—did not stop there. Instead, they go on, in pages 9 to 13 of the opinion authored by Shepherd, to observe and explain that “good reasons exist for the Court to reevaluate its [abortion] jurisprudence.” Some excerpts:

To begin, the Court’s viability standard has proven unsatisfactory because it gives too little consideration to the “substantial state interest in potential life throughout pregnancy.” Casey, 505 U.S. at 876 (plurality opinion). By deeming viability “the point at which the balance of interests tips,” id. at 861, the Court has tied a state’s interest in unborn children to developments in obstetrics, not to developments in the unborn. This leads to troubling consequences for states seeking to protect unborn children. For example, although “states in the 1970s lacked the power to ban an abortion of a 24-week-old-fetus because that fetus would not have satisfied the viability standard of that time, [t]oday . . . that same fetus would be considered viable, and states would have the power to restrict [such] abortions.” Edwards, 786 F.3d at 1118 (final alteration in original) (citation and internal quotation marks omitted). How it is consistent with a state’s interest in protecting unborn children that the same fetus would be deserving of state protection in one year but undeserving of state protection in another is not clear. The Supreme Court has posited there are “logical and biological justifications” for choosing viability as the critical point. Roe, 410 U.S. at 163. But this choice is better left to the states, which might find their interest in protecting unborn children better served by a more consistent and certain marker than viability.…

Another reason for the Court to reevaluate its jurisprudence is that the facts underlying Roe and Casey may have changed.… First, “Roe’s assumption that the decision to abort a baby will be made in close consultation with a woman’s private physician is called into question by” declarations from women who have had abortions. [McCorvey v. Hill, 385 F.3d 846, 851 (5th Cir. 2004) (Jones, J., concurring).] … The declaration by Dr. John Thorp, a board-certified obstetrician and gynecologist, further states that “coercion or pressure prior to the termination of pregnancy occurs with frequency.” … The declarations from women who have had abortions also show abortions may cause adverse consequences for the woman’s health and well-being.

Mike Paulsen has compellingly argued that lower-court judges should disregard Supreme Court rulings that they in good faith regard as unconstitutional and instead leave it to the Court “to do its own dirty work” of enforcing its lies about the Constitution. The Eighth Circuit panel doesn’t take that approach, but it does the next best thing.