The future of abortion under a new Supreme Court? Look to Arkansas
  • Wednesday, February 20, 2019
  • 64°


The future of abortion under a new Supreme Court? Look to Arkansas


    Dr. Stephanie Ho, who had to cancel appointments with patients at Planned Parenthood Great Plains after the state put new regulations in place, on Aug. 9 in Fayetteville, Ark. A challenge to a law in Arkansas is one of 13 abortion cases now before federal courts of appeals. Any could be the first to reach the Supreme Court.


FAYETTEVILLE, Ark. >> When a patient arrived this spring at the only abortion clinic in western Arkansas, the doctor had startling news: A new state law had gone into effect, and clinics could no longer perform abortions via medication in the state.

“Wait — all of Arkansas?” the patient asked her doctor, Stephanie Ho.

“Yes,” Ho remembered replying.

Less than a month later, a judge suspended the law, which is now the focus of a legal fight as Arkansas tries to reinstate it. In the meantime, Ho is working at one of the three remaining abortion clinics in the state, aware that, at any moment, she might have to stop performing abortions again.

The fight in Arkansas could help define the looming legal battle over abortion, 45 years after the Supreme Court made it a constitutional right. There are 14 abortion cases currently before federal appeals courts, including the Arkansas case, and legal experts say any of them could be the first to reach the Supreme Court after Justice Anthony Kennedy’s retirement.

The president’s nomination of Brett Kavanaugh, a conservative federal judge, for the Supreme Court has added urgency to the question of whether Roe v. Wade will survive the Trump administration. In response to questions about abortion during his confirmation hearings this week, Kavanaugh said he understood the significance of the issue and would respect the Supreme Court’s “precedent on precedent.”

But many legal experts say the more likely outcome of the change on the court, at least in the near term, will be less sweeping: States like Arkansas will get their way with smaller cases that reduce — but not eliminate — the right to an abortion.

“The Arkansas case is a bellwether, not because it’s a frontal assault on Roe, but because it’s another nudge in the direction of ever more restrictions on the right that Roe recognized,” said Stephen I. Vladeck, a professor at the University of Texas School of Law in Austin.

When the medication abortion law went into effect in Arkansas, it left only one clinic for a state of 3 million. Now the number of clinics is back up to three. But many other barriers remain: a ban on abortions after 20 weeks; a 48-hour waiting period; parental consent for minors; doctors unable to dispense medication abortion pills remotely by video.

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