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Hostile reporter take second look at decision dissolving temporary injunction of four Arkansas abortion laws

by | Aug 12, 2020

By Dave Andrusko

Last week we wrote about a decision by a three-judge panel of the 8th Circuit Court of Appeals that stunned many observers.

Briefly put, Judges Smith, Wollman, and Grasz vacated a decision by U.S. District Judge Kristine Baker to issue a preliminary injunction against four pro-life passed in 2017 by the Arkansas legislature. They concluded the laws should be reconsidered in light of the concurring opinion issued by Chief Justice John Roberts in the June 29th Supreme Court case of June Medical Services L.L. v. Russo.

We’ll talk about what Chief Justice Roberts wrote in a moment. What’s interesting is what the CBS News reporter– whose beat is “covering abortion access and more”–had to say in revisiting the decision Tuesday.

The “hook”  is that the panel’s decision last Friday means “A handful of first-of-their-kind abortion regulations can be implemented this month in Arkansas.” 

“First-of-their-kind”?

The three laws which received much less attention will protect unborn babies who would be aborted solely because of a prenatal diagnosis of Down syndrome; require forensic samples from abortions performed on a minor; and mandate humane disposal of the aborted baby’s remains. There are no doubt wrinkles that distinguish these laws from those passed in other states (particularly the first and the third),  but I don’t see where they are pathbreakers.

Likewise—even more so—on the 2017 law that bans the dismemberment of living unborn babies. There are now twelve states that have passed bans on the horrific practice of dismembering live unborn babies and, by the end of the week, Nebraska will be the 13th.

I  think her real grievance is found in the second sentence of her lead paragraph: “The decision could further restrict how patients access the procedure in a state that’s been aggressive in legislating abortion.”

To her credit, however, the reporter accurately summarized what Chief Justice Roberts wrote. It was this that the appeals panel court cited as the reason it was “remand[ing] for reconsideration” Judge Baker’s decision:

In their decision reversing the district court’s injunction that had previously blocked the regulations, the Eight Circuit Court of Appeals cited June Medical Services v. Russo, the Supreme Court’s June 29 ruling striking down a Louisiana abortion restriction. Though Chief Justice Roberts sided with the court’s liberal bloc, he offered his own separate opinion. In it, he wrote that states do not have to prove that the benefits of an abortion restriction outweigh the burden on a person’s ability to access the procedure— it just has to show that it does not present a “substantial” obstacle or burden.

“Nothing about [previous Supreme Court precedent] suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts,” Roberts wrote

The reporter went on to add comments from an interview conducted with the state’s AG:

That opinion could give state legislators more leeway to implement abortion restrictions. Arkansas Attorney General Rutledge said the suggestion was a “significant shift” in how abortion regulations will be viewed by the courts.

“This is a bit of a silver lining,” Rutledge said in a telephone interview with CBS News on Tuesday morning, noting she was “sorely disappointed” by the overall decision.

Moving forward, Rutledge said her office planned to use the Eighth Circuit Court’s decision as a “barometer” to judge other upcoming legislation, both in Arkansas and in similarly conservative states across the country.

If you wish to go more into depth into what Chief Justice Roberts wrote (and it is fascinating), please see this prior story.

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