Rebecca Pilar Buckwalter Poza @ Daily Kos
The Supreme Court has opted not to hear a challenge to Arkansas’s draconian anti-abortion law despite previously striking similar state legislation. Its denial on Tuesday left a few folks worried. But the challengers stand a better chance of success heading back to federal district court than they do at the Supreme Court as it’s currently composed.
In 2015, Arkansas passed a law that a judge would later refer to as a “solution in search of a problem:” Legislators imposed a requirement that providers of medication abortions contract with physicians who have hospital admitting privileges, purportedly to ensure women’s safety. Why? Because a contract like that’s hard to obtain. Planned Parenthood says it contacted every qualified doctor it could find; none were willing to enter into such a contract.
Planned Parenthood of Arkansas and Eastern Oklahoma asked the federal district court to block the law from going into effect pending litigation over it. Limiting the use of RU-486 could effectively shut down Planned Parenthood’s two clinics, which provide only medication abortions, it argued. The district court agreed that this constituted an “undue burden” on women seeking abortions and granted a preliminary injunction.
The magic phrase “undue burden,” dating to 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey, is the test of constitutionality when it comes to abortion restrictions:
“Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.”
Upon appeal to the Eighth Circuit, which hears federal appeals from not just Arkansas but Iowa, Minnesota, Missouri, Nebraska, and the Dakotas, Planned Parenthood was thwarted. That court found thatthere wasn’t enough proof of the law’s impact to justify the preliminary injunction.