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 that there wasn’t enough proof of the law’s impact to justify the preliminary injunction.
Because the district court failed to make factual findings estimating the number of women burdened by the statute, we vacate the preliminary injunction and remand for further proceedings.
When Planned Parenthood sought Supreme Court review by submitting a petition for certiorari, the justices denied the request. No reasons for denial were given, nor were any dissents issued.
Why would the justices who’ve historically protected abortion rights decline to review a state law that so clearly burdens a right and so closely resembles legislation they’ve struck? Why stay silent?
First, denial of cert isn’t the end of the road for Planned Parenthood. The case has just been sent back, or remanded, to the district court where Planned Parenthood can take another shot, addressing the Eighth Circuit’s objections.
The Eighth Circuit’s opinion may be Planned Parenthood’s roadmap to success. In the meantime, it can also ask the district court to re-impose the injunction keeping the law from going into effect until the case is resolved.
The second, trickier reason to turn this case away is political in nature:
Of course, that the denial of cert isn’t apocalyptic doesn’t mean this ruling couldn’t have devastating consequences.
Yet another reason we must retake the judiciary.