The Corner

Law & the Courts

Eighth Circuit Reinstates Pro-Life Laws in Arkansas

The Eighth Circuit Court of Appeals has vacated a preliminary injunction that a lower court had placed on several pro-life laws in Arkansas, sending the case back to the district judge for reconsideration in light of the Supreme Court’s latest ruling on abortion policy.

The Arkansas provisions in question would prohibit a second-trimester abortion procedure called a dilation & evacuation, in which the unborn child is dismembered, often while still alive, before being removed from his mother. The statutes also mandate respectful disposal of fetal remains and require that abortionists who perform abortions on minors save fetal tissue to aid in law-enforcement investigations as needed.

U.S. district judge Kristine Baker had issued a preliminary injunction against these laws, preventing Arkansas from enforcing them. But a three-judge panel for the Eighth Circuit reversed that decision, arguing that Baker hadn’t given “wide discretion” to the state legislature in “areas where there is medical and scientific uncertainty,” phrases that Chief Justice of the Supreme Court John Roberts used in his concurring opinion in this summer’s June Medical Services v. Russo decision.

In other words, the Eighth Circuit judges argued that in light of Roberts’s reasoning in the Court’s most recent decision involving abortion regulations, the lower court must reevaluate the Arkansas laws using a standard that gives more leeway to the state government. Meanwhile, this is the second time in the last few months that the Eighth Circuit has acknowledged the state’s authority to regulate abortion later in pregnancy; in April, it upheld a temporary state restriction on surgical abortion aimed at limiting the spread of COVID-19.

Arkansas is one of several states that has attempted to establish a ban on dismemberment abortions. Just this week, a similar bill in Nebraska passed the state legislature.


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