ACLU preparing legal challenge to abortion ban

Editor’s note: This first of a two-part series on legislation passed during the 2021 Arkansas Legislative Session will focus on Act 309. The second part will focus on Act 626 and other laws that could face legal challenges.

The American Civil Liberties Union (ACLU) is planning lawsuits against two recent laws passed by Arkansas legislators banning abortions and gender affirming medical procedures, while other laws could draw legal challenges from that group and others.

The ACLU will sue in Arkansas’ Eastern District U.S. District Court to block those two laws, said Holly Dickson, ACLU executive director.

“We’ll be filing before the bills go into effect asking that those laws never go into effect,” she said.

Dickson said Little Rock Family Planning Services, an abortion provider, will be a plaintiff in the lawsuit against Act 309, which bans almost all abortions except those necessary to save the life of the mother. Plaintiffs for the lawsuit against Act 626, the Save Adolescents from Experimentation Act, will include affected families whose children will not be able to receive gender transition treatments as a result of that law. (Editor’s note: an earlier version of this story misidentified the clinic that will be the plaintiff in this case. The story now correctly identifies the plaintiff as Little Rock Family Planning Services.)

Dickson said the ACLU will argue that Act 309 violates equal protection and privacy rights that have been in effect since the Roe v. Wade Supreme Court decision of 1973 that legalized abortion nationwide.

“It would take upending longstanding precedent to ban abortion in this nation, so the law is on our side,” she said.

Abortion providers can sue on behalf of patients and have done so in the past.

“Every two years, the Legislature tries to abolish abortion, and every two years we file a lawsuit enjoining their laws,” she said.

SUPREME COURT PLAY
Setting the stage for that lawsuit was the reason the law was passed, as sponsors hoped to create a case that would lead to the U.S. Supreme Court’s overturning of Roe v. Wade. Doing so would allow states to create their own laws regarding abortion.

“If they sue here in Arkansas, as the old saying goes, they play right into our hands,” said Sen. Jason Rapert, R-Conway, the Senate sponsor of Act 309.

Rapert said the U.S. Supreme Court’s current makeup with three appointees by former President Donald Trump is conducive to overturning Roe v. Wade. Meanwhile, he said there is added urgency because President Joe Biden has said he wants to codify Roe into law.

Allan Parker, an attorney with The Justice Foundation, a Texas-based group that opposes abortion, said six of the nine Supreme Court justices may believe that case was wrongly decided. However, that’s not enough to overcome judicial precedent under the principle of stare decisis. In a 1992 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court chose not to overturn Roe v. Wade because women have come to rely on abortion being legally available, he said.

But Parker said the legal climate has changed in that Arkansas, along with all other states, allows new mothers to leave their newborns in the charge of the state without penalty or financial cost. The time period varies by state. Under Arkansas’ “safe haven” law, it’s within 30 days of birth. Babies can be left at hospitals, fire stations, law enforcement offices and other locations.

“They haven’t faced a case like this before,” he said. “They have not decided a case where a state is banning abortion yet willing to take every child that a woman either cannot or will not take care of.”

He said under stare decisis, when science changes, the law changes. In 1973, the Supreme Court said the judiciary could not determine when life begins. But advances with DNA, genetic testing, pregnancy sonograms and in vitro fertilization have demonstrated that life begins at conception, he said.

“When women want a child, they say, ‘I’m having a baby,’” he said. “Not many women say, ‘I’m having a fetus.’ Humans call it a baby, and the science now documents that.”

POSSIBLE COURT RELUCTANCE
Dickson said previous state laws have involved either a “frontal assault” on abortion or an attempt at “regulating care out of reach for patients.” Among the former was a ban on abortion after 12 weeks sponsored by Sen. Rapert in 2013, which led to a successful ACLU lawsuit in the Eighth Circuit Court of Appeals. The U.S. Supreme Court declined to hear the case. After the 12-week abortion ban was resolved, the ACLU was awarded $100,000 by the state for court costs.

“Obviously, we have a more conservative court now,” she said. “However, these are fundamental long-standing protections, and we are definitely going to fight for the fundamental rights at stake here.”

John DiPippa, a professor at the University of Arkansas at Little Rock’s William H. Bowen School of Law, agreed with Parker that six of the Supreme Court justices believe Roe v. Wade was wrongly decided. However, he said, “There’s no indication right now that the Supreme Court is interested in undoing Roe vs. Wade in one fell swoop.” Instead of deciding cases that would ban abortion entirely, it’s his opinion they would prefer hearing cases involving abortion restrictions that could chip away at abortion over time until there’s not much left.

DiPippa said the Supreme Court historically has been reluctant to make decisions that create major social changes unless it has no other options, and it particularly doesn’t want to undo decisions on which people have relied. Chief Justice John Roberts, an appointee of President George W. Bush, has shown he doesn’t want the Supreme Court to be perceived as a political institution now that conservatives have a 6-3 majority, DiPippa said. Justice Brett Kavanaugh, a Trump appointee, might, in the long run, be agreeable to overturning Roe v. Wade, but in the short term is more of an institutionalist who would “want to preserve the institution’s credibility until they had a better context.”

That’s five votes when combined with the Court’s three liberals.

The legal standard regarding abortion laws is that they cannot “unduly burden” a woman’s ability to obtain an abortion, DiPippa said. But the courts have consistently allowed states to enact laws such as waiting periods. This year, among the new laws passed was Act 498, which requires women to be shown an ultrasound of the fetus before obtaining an abortion. She doesn’t have to look.

“Is it burdensome? Yes. Does it prevent her from having an abortion? The answer is no,” DiPippa said.