Why Did SCOTUS Decline to Hear an Arkansas Law that Threatens Access to Abortion?
You might have missed it last week, but on last Tuesday the Supreme Court declined to hear a case out of Arkansas that allows a dangerous and clearly unconstitutional law to take effect. The law – which the notoriously anti-abortion 8th Circuit Court of Appeals upheld – would force two of the three clinics in Arkansas to stop providing abortion and effectively ban medication abortion in the entire state. It does this by forcing abortion providers who provide medication abortion to have medically unnecessary contracts with backup providers who have admitting privileges at a hospital. Unsurprisingly, not a single provider with admitting privileges was willing to enter into the contract due to either their hospital’s restriction on providing abortion or because of their own anti-abortion stance.
What’s that – the admitting privileges requirement sounds familiar? That’s because it is. In 2016, the Supreme Court struck down a Texas law that required providers to have admitting privileges at nearby hospitals. In Whole Woman’s Health v. Hellerstedt, the Court stated that there was no evidence that this requirement led to better treatment but rather was unconstitutional as it “constitute[d] an undue burden on abortion access”
Abortion – including medication abortion – is incredibly safe. Some women prefer medication abortion to other methods: some think it feels more private, for others the procedure is better for an existing medical condition, as well as a host of other reasons. However, if this law goes into effect, Arkansas will be the first state to effectively ban medication abortion, thus forcing many women to travel great distances to the one clinic in the state that offers surgical abortion.
Women have a constitutional right to decide whether to have an abortion under Roe v. Wade, but limited access to abortion with only one Arkansas abortion provider will make this right only theoretical for many women. Arkansas is amongst the states with the greatest number of restrictions on abortion, forcing a woman to jump through hoops which delay and increase the cost of her procedure. Making abortion more difficult to access has a detrimental effect, especially for women of color and those who already face barriers to care. These same concerns were brought to the attention of the Court in Whole Woman’s Health, and were relied on by the majority as evidence of the burdens that would be placed on women if the laws were upheld. Just like the Texas law at issue in Whole Woman’s Health, this restriction will certainly impact access to abortion and cause significant, and in some cases insurmountable, costs that threaten women’s financial well-being, job security, workforce participation, and educational attainment.
The 8th Circuit’s disregard for existing law is troubling, and emboldens politicians to pass more unconstitutional restrictions on abortion. It’s also disappointing that the Supreme Court declined to hear a challenge to a clearly unconstitutional law. But advocates and providers are not backing down from this fight, and the Arkansas clinics impacted by the law in question will continue their legal battle against these unconstitutional burdens in the lower courts.