The U.S. Supreme Court has ruled time and again that
reproductive privacy is “central to personal dignity and autonomy, [which] are
central to the liberty protected by” the Constitution. The Court has made
eminently clear that under the Constitution, the right of a pregnant person to
terminate a pregnancy prior to viability is a right so essential to our freedom
that our government cannot ban or impose an undue burden on its exercise. But
despite the long-standing clarity of this principle, reproductive health and rights
continue to come under blistering, unrelenting attack.
Nowhere is this clearer than with the enactment of record
numbers of outright pre-viability bans on abortion over the past few years. In
enacting these bans and a slew of other devastating restrictions on abortion
access, states such as Alabama, Georgia, Kentucky, Missouri, Ohio, Utah, and
Arkansas have clearly undermined reproductive autonomy in blatant violation of
the Constitution.
Enough is enough. That’s why we, along with our colleagues and fellow scholars in constitutional law, filed a friend of the court brief in the 8th Circuit last week, speaking up against Arkansas’s recent attempts to interfere with the right to reproductive autonomy. Right now, Arkansas is asking the 8th Circuit to overturn a lower court order that blocked a set of abortion bans and restrictions the state passed last year from taking effect. These laws include: a ban on doctors performing abortions prior to viability if the abortion is sought after 18 weeks (18-week ban); a ban on doctors performing abortions prior to viability if the doctor has “knowledge” that the abortion is sought “solely” due to a belief that the fetus may have Down syndrome (reason ban); and a medically unnecessary restriction on the types of physicians who can perform abortion in the state, which would prohibit all qualified providers who are not board-certified or board-eligible in obstetrics and gynecology from continuing to provide the safe, compassionate abortion care they have been providing in Arkansas for years (OBGYN requirement).
Arkansas insists that its two bans on pre-viability abortion
are not actually bans but merely “regulations.” This is nothing but Orwellian
subterfuge. We know a ban when we see one and so do people looking to terminate
their pregnancies. Regulations are laws that control how a right can be
exercised. Bans prohibit a right from being exercised at all. And that is
exactly what the 18-week ban and reason ban would do if permitted to take
effect.
Arkansas has also denied that the Constitution treats the
right to pre-viability abortion, or any other right, as absolute. The
Constitution begs to differ. Within the realm of privacy, states cannot ban
many expressions of liberty and autonomy, including interracial unions,
same-sex marriage, consensual same-sex intercourse, and more.
Arkansas’s OBGYN requirement fares no better under
constitutional scrutiny. With it, Arkansas is attempting to impose an arbitrary
and medically unnecessary restriction on who can provide abortions in the state
with the aim of making abortion even more difficult — if not impossible — to
access. The state defends this restriction as protecting patient health, but
cannot show that current abortion providers who are not OBGYNs — and who have
been providing compassionate abortion care in Arkansas for years — are doing so
unsafely. It also claims that restricting those who can provide abortions to
only board-eligible or –certified OBGYNs would lead to better health outcomes
for patients. What the record does show is that if the law is allowed to go
into effect, an estimated 62 to 70 percent of people wish to have an abortion
in Arkansas will be unable to do so. Arkansas’s medical safety justification is
just another failed post-hoc rationalization for an abortion restriction that
would unduly burden access to vital reproductive health care. Indeed, if
Arkansas were really concerned about maternal health, it would take action to
lessen its fifth-highest in the country maternal mortality rate, a rate that is
dramatically worse for Black women.
Thankfully, a district court saw through Arkansas’s
sophistry and phony justifications and preliminarily enjoined the state’s two bans on abortion prior
to viability
and OBGYN requirement, with a decision rooted in long-standing precedent
and bedrock principles of justice. Let’s hope the Eighth Circuit Court of
Appeals follows our brief and heeds the wisdom of the lower court, preserving
not only that decision but also the civil rights and civil liberties of all
people who want to terminate a pregnancy.