In a welcome piece of good news, a panel of federal judges for the 8th Circuit Court of Appeals last Friday overturned a previous block placed on several pro-life measures in the state of Arkansas.
The measures include, among other things, a prohibition of the dilation and curettage method of abortion (wherein a women’s cervix is dilated, and the baby dismembered and removed piece by piece), as well as prohibitions against sex-selective abortions and a provision that the remains be disposed of in a respectful manner.
Interestingly, in arguing for their decision, the judges used none other than Justice John Roberts’ concurring decision in the pro-abortion June Medical Services v. Russo. In the original opinion, Roberts wrote that although he concurred with the decision of Justices Breyer, Ginsburg, Sotomayor, and Kagan, he did not agree with their opinion. In his own opinion, Roberts wrote that he was joining in the decision out of respect for what he believed to be the wrongly decided precedent of Whole Woman’s Health vs. Hellerstedt. In the Arkansas case, the judges emphasized that “Chief Justice Roberts also addressed the discretion courts must afford to legislatures. He pointed out that ‘[n]othing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts.’ . . . Instead, he emphasized that, in the abortion context, ‘state and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty.’” Even though Roberts didn’t agree with the other deciding judges, he nonetheless was one of them, and hence his opinion is binding.
Pro-life advocates have reason to rejoice. Even in rulings like June Medical Services, some silver linings may be found—such as the leverage that this particular opinion gave another court to uphold state pro-life laws. And this decision goes hand-in-hand with findings that the abortion rate has continued to drop, in spite of everything the Supreme Court can do about it.
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