By: Lyda Ryan
Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock
Earlier this year, in May, Texas Governor Greg Abbott essentially declared open season on women’s reproductive rights. Governor Abbott signed into law a new bill that effectively prohibits any abortions in Texas as early as six weeks gestation. This is often before most women know they are pregnant. Additionally, the bill opens the door for almost any private citizen to sue the abortion providers and others. This new bill was crafted and signed into law with the intent to provide the Supreme Court with a case to overrule Roe v. Wade, which recognized a woman’s constitutional right to terminate her pregnancy.
While many states, including Arkansas, have tried over the years to also implement restrictive laws to contravene and provide grounds to overrule Roe, these laws have all faced legal challenges, stopping them from being implemented. The Texas law, on the other hand, has been implemented. The Supreme Court of the United States heard an emergency petition on the law and issued a decision late on Wednesday night on September 1, 2021, utilizing the “shadow docket”, in which they refused to issue an injunction to prevent the implementation of the law.
Following the decision by the Supreme Court to refuse to issue injunctive relief, the Justice Department sued the state of Texas. Earlier this week, however, on October 14th, the Fifth Circuit Court of Appeals ruled in favor of leaving the law in place, based on the reasoning of the Supreme Court in Whole Woman’s Health. The Washington Post reported that “Justice Department lawyers and constitutional law scholars counter that the federal government must be permitted to take action to prevent an end-run around the judicial system. If the abortion ban in Texas is upheld by the courts, they say, state legislatures throughout the country could craft similar laws that infringe on other constitutional rights — the right to own a gun, for example, or to pray in public.”
This reasoning is equally true for states that have been attempting to implement as restrictive as possible abortion bans since the issuance of Roe v. Wade. By seeing an example of what the courts, for now, are allowing to be implemented and carried out, states will be able to take the Texas law and adopt it in their own states. This is exactly what Senator Jason Rapert wants to do here in Arkansas.
In September, immediately following the Supreme Court’s decision, Senator Rapert announced on Twitter that he ordered a bill to be filed that would be similar to the Texas abortion law. Senator Rapert is a vocal supporter of the pro-life movement. In his time in office he has submitted multiple bills attempting to limit a woman’s right to an abortion. Prior to the Texas law, a law implemented earlier this year in Arkansas, sponsored by Senator Rapert, was the most restrictive abortion law in the country. The law sought to ban all abortions, except to save the life of a pregnant women in the case of an emergency. That law was blocked in July of this year by the U.S. District Judge Kristine Baker.
So what does this mean for Arkansans? Senator Rapert has stated that he intends to introduce his version of the Texas abortion ban bill when the Arkansas legislature reconvenes for a special session on October 25th. If Senator Rapert is able to successfully pass this bill, it will be detrimental to women and their reproductive health all across Arkansas. Approximately 3,154 abortions were reported in Arkansas in 2020. Based on how federal courts have handled the Texas law, it seems likely that the Eighth Circuit may follow a similar path in reviewing a similar law, if passed, in Arkansas. That is, until the Supreme Court revisits the laws surronding abortion themselves when they hear the case of Dobbs v. Jackson Women’s Health Organization at the end of 2021.
Unfortunately, until Senator Rapert introduces his bill in the upcoming weeks, Arkansans will be left in a state of limbo. Stay up to date on the current status of any abortion laws in Arkansas at https://www.acluarkansas.org/.