Remember Whole Woman’s Health v. Hellerstedt? Well, the Eighth Circuit Court of Appeals doesn’t appear to. As they seemingly ignore Supreme Court precedent, it’s clear just how close an abortion rights challenge is to reaching the Supreme Court. Who sits on the Court when that happens is critical, and if it’s Judge Kavanaugh, he would likely turn the balance of the Supreme Court against women’s constitutional rights, including abortion.
Earlier this week, the Eighth Circuit Court of Appeals vacated a lower court’s preliminary injunction that blocked two Missouri abortion restrictions. The restrictions at issue would require that clinics providing abortion be ambulatory surgical centers and physicians providing abortion have admitting privileges at local hospitals, two burdensome and medically unnecessary requirements that mirror those struck down in Whole Woman’s Health v. Hellerstedt.
The lower court relied on Whole Woman’s Health when it decided to issue the preliminary injunction.
But despite the fact that the requirements were nearly identical to the Texas requirements struck down by the Supreme Court in that case, the Eighth Circuit attempted to distinguish this challenge from the Texas case.
The Eighth Circuit acknowledged that Whole Woman’s Health made clear that the undue burden standard “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” But they also claimed that the lower court had “refused to weigh any evidence of benefits of the provisions” and instructed them to “at the very least, weigh the state’s asserted benefits against the burdens associated with the requirement.” They suggested that there may have been a “unique problem Missouri was responding to” that “may require a different response than what was needed in Texas,” claiming that the restrictions could have been “appropriate given [Missouri’s] legitimate interest in seeing to it that abortion, like any other medical procedure is performed under circumstances that insure maximum safety for the patient.” The Eighth Circuit remanded the case to the district court to “consider the evidence” and then “weigh the asserted benefits against the burdens.”
Not only does it seem like the Eighth Circuit was creating a roadmap for the State of Missouri on how to defend against these clearly unconstitutional restrictions, but they ignore the clearly laid out discussion in Whole Woman’s Health – using national statistics, not Texas-specific ones – of how these facility and staffing restrictions provide no legitimate health benefit. For example, the Supreme Court pointed to the evidence that the lower court used to reach its conclusion that the admitting privileges requirement had no health benefits, such as:
- The rate of abortion complications in the first trimester is less than one-quarter of 1%; and
- Complications rarely require hospital admission, much less immediate transfer to a hospital.
National research continues to confirm the safety of abortion.
So, like the state legislatures that continue to pass restrictions on abortion that claim to benefit women’s health, the Eighth Circuit provides a solution in search of a problem, while ignoring the precedent that it is supposed to follow. In doing so the Eighth Circuit showed its willingness to ignore precedent to undermine Roe v. Wade. And this isn’t the first time – last year they vacated a lower court’s decision to block an Arkansas medication abortion restriction. (Note: the Supreme Court refused to weigh in, which allowed that decision to stand, but later, a lower court blocked the restrictions again, and the challenge continues.)
Monday’s decision is a reminder that the threat to Roe, especially if Judge Kavanaugh is confirmed to the Supreme Court, is not merely hypothetical. We know that Trump promised to appoint justices who would “automatically” overturn Roe, and that Kavanaugh’s own documents show that Kavanaugh doesn’t think Roe is settled law, or that its protections are safe from being overturned. The impact of overturning or gutting Roe would most impact those that already have the most difficult time accessing health care – like women struggling to make ends meet, immigrant women, rural women, and women of color. With at least thirteen cases in the pipeline to the Supreme Court, including this Missouri challenge, we need everyone to speak out against Judge Kavanaugh’s nomination to the Supreme Court. Please join us in opposing his nomination.