Michele Goodwin, Professor of Law, University of California, Irvine
David S. Cohen, Professor of Law, Drexel University
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.