Upset with abortion precedent

A federal appeals court on Tuesday ruled that Supreme Court precedent didn’t allow it to lift a restraining order against two pro-life laws. Arkansas had passed bills to protect unborn babies from abortion after 18 weeks of gestation or based on a Down syndrome diagnosis. The ruling from the 8th U.S. Circuit Court of Appeals upholds a 2019 decision from U.S. District Court Judge Kristine Baker. But the court’s concurring opinions call on the Supreme Court to reconsider its precedent on the subject.

The 8th Circuit previously ordered Baker to reconsider her ruling against another set of pro-life laws, including a ban on dismemberment abortions and new standards for disposing of aborted baby remains. Pro-lifers hoped that appeals court’s ruling signaled future favorable rulings on other legislation protecting babies from abortion. Baker reconsidered as the court asked but still struck down the laws after they took effect in December.

In the case of the safeguards for babies after 18 weeks of gestation or with Down syndrome, the 8th Circuit panel of judges, all Republican appointees, acknowledged precedent with some regrets.

In the 1992 decision Planned Parenthood v. Casey, the Supreme Court said states cannot restrict abortion before the unborn child reaches viability, the point at which the baby can survive outside of the womb. Eighth Circuit Judge James Loken wrote in the panel opinion that the state of Arkansas lacks sufficient evidence to show that infants are viable at 18 weeks, so the law violates the high court’s standard.

Judges Bobby Shepherd and Ralph Erickson agreed but added in their concurring opinions that the Supreme Court should “reevaluate its jurisprudence” in Casey’s viability standard. Other lower court and Supreme Court opinions have pointed out the limitations of the approach.

“By focusing on viability alone, the court fails to consider circumstances that strike at the core of humanity and pose such a significant threat that the State of Arkansas might rightfully place that threat above the right of a woman to choose to terminate a pregnancy,” Erickson wrote, calling the viability standard “overly simplistic.” He said eugenics, an ideology that fuels Down Syndrome abortions, is one of those threats.

While they don’t have the authority to buck Supreme Court precedent, the circuit judges’ opinions are important. “They don’t have much power,” said Connor Semelsberger, legislative assistant for the Family Research Council. “But with the power they had … they used it to signal to the Supreme Court that they should revisit this issue.”

Lower court opinions are not binding upon the Supreme Court, but the justices closely consider circuit court rulings. This ruling could help guide the high court as it takes up future cases. “[The Supreme Court justices] at least have to acknowledge that the circuit court said that,” Semelsberger said. He added that it may be useful to justices who are skeptical of Casey: “It allows them to refer to the Circuit Court’s opinion and give them even stronger deference.”