On Tuesday, Arkansas passed one of the most restrictive abortion bans in the country – a move directly aimed at forcing (or, at the very least, encouraging) the conservative majority in the Supreme Court to reexamine Roe v. Wade.
In signing the legislation, which would ban abortions in all cases “except to save the life of a pregnant woman in a medical emergency” Arkansas Republican Gov. Asa Hutchinson nodded to this broader goal.
“I will sign SB6 because of overwhelming legislative support and my sincere and long-held pro-life convictions,” he said. “SB6 is in contradiction of binding precedents of the U.S. Supreme Court, but it is the intent of the legislation to set the stage for the Supreme Court overturning current case law. I would have preferred the legislation to include the exceptions for rape and incest, which has been my consistent view, and such exceptions would increase the chances for a review by the U.S. Supreme Court.”
The Arkansas bill is the first of its kind to pass in 2021 – although South Carolina enacted a law last month that would ban abortions (except in the cases of rape, incest and the mother’s life being endangered) once a heartbeat was detected via an ultrasound.
According to the Guttmacher Institute, a reproductive rights think tank, 19 state legislatures have introduced a total of 48 pieces of legislation that would lead to all or most abortions being banned in their state. Since 2019 there have been 11 so-called gestational bans passed by state legislatures – although all of them have been blocked by judges as appeals are litigated.
The belief among Arkansas legislators is, clearly, that the near-total ban is just the sort of vehicle that the newly installed 6-3 conservative majority on the Supreme Court could latch on to if they want to re-examine (or even overturn) Roe vs Wade, the landmark legislation in 1973 that made abortion legal in the United States.
Arkansas state Sen. Jason Rapert, one of the lead sponsors of the legislation, framed the issue – and the goal of the total abortion ban – in monumental historical terms last month. Tweeted Rapert:
“The United States was birthed in 1776. But for 87 years slavery was legal in our country. Thank God our nation & Republicans fought to abolish slavery even though the U.S. Supreme Court had upheld it. They finally relented. Today, we in Arkansas proudly stand to #AbolishAbortion.”
It remains unclear whether the Supreme Court is inclined to take up such a direct challenge to Roe and, even if justices were so inclined, whether the Arkansas law would be their preferred vehicle to do so. The court is nearing the end of its period of hearing oral arguments for cases it has already accepted (that period runs from October-April) and will usually wrap up all of its decisions for the term by late June or early July. That means that any sort of abortion challenge would not be heard by the justices until October 2021 – at the earliest.
What is clear is that the addition of Amy Coney Barrett to the court following the death of Ruth Bader Ginsburg means that there is another justice on the bench who personally opposes abortion. As CNN’s Ariane de Vogue wrote during Barrett’s confirmation hearings last fall:
“Barrett as a law professor working at a Catholic university made clear that she was opposed to abortion and as a judge voted twice to revisit her colleagues’ opinions that struck down abortion restrictions. In addition, she had to supplement her record when CNN reported upon undisclosed talks she gave as a law professor to student groups that oppose abortion.”
But despite Senate Democrats’ best efforts, Barrett would not acknowledge that her personal opinions would have any effect on her legal opinions about Roe. “My policy views, my moral convictions, my religious beliefs do not bear on how I decide cases nor should they, it would be in conflict with my judicial oath,” she said.
That said, the Supreme Court in January sided with the outgoing Trump administration in its efforts to reinstate the requirement that those seeking medication that induces abortion early in pregnancy must meet with a medical professional to pick up the drugs. (Concerns about in-person contact amid the Covid-19 pandemic had led to the suspension of the requirement.)
“Because the Biden administration is eight days away, the odds that this FDA rule is on the books that much longer seems pretty slim,” Steve Vladeck, a CNN contributor and law professor, said of the ruling at the time. “The much bigger import of tonight’s ruling is the harbinger it seems to provide of how the new conservative majority is going to approach abortion cases.”
Of course, there’s a big difference between reinstating a policy about access to abortion drugs during a pandemic and overturning a nearly five-decade-old law legalizing abortion in the country.
But make no mistake: Pressuring the court to overturn Roe is at the center of what happened in Arkansas this week. And while it’s the first law of its kind to be enacted in 2021, it’s not likely to be the last.