Rutledge asks justices to overturn decision blocking state abortion law

LITTLE ROCK — Attorney General Leslie Rutledge is asking the U.S. Supreme Court to reverse a decision by the 8th Circuit Court of Appeals that blocked an Arkansas law prohibiting abortions performed solely on the basis of Down syndrome.

In the Jan. 5 opinion, a three-judge panel of the 8th Circuit upheld an Aug. 6 ruling by U.S. District Judge Kristine G. Baker granting a preliminary injunction in the matter of Little Rock Family Planning Services et al v. Arkansas Attorney General Leslie Rutledge et al and preventing Act 619 of 2019 from going into effect.

Codified as Arkansas Code Ann. § 20-16-2103, Act 619 would prohibit a provider from intentionally doing an abortion with knowledge the pregnant woman is seeking the abortion “solely on the basis” of a test indicating Down syndrome or any other reason to believe that the fetus has Down syndrome, with exceptions if the abortion is necessary to save the woman’s life or to preserve her health or if the pregnancy

is the result of rape or incest, according to the 8th Circuit opinion.

Act 619 is “a complete prohibition of abortions based on the pregnant woman’s reason for exercising the right to terminate her pregnancy before viability,” which is medically accepted as 24 weeks, according to the 8th Circuit ruling.

Before viability, a state “may not prohibit any woman from making the ultimate decision to terminate her pregnancy,” according to the 8th Circuit ruling, citing case law. “It also may not impose upon the right an undue burden, which exists if a regulation’s ‘purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’”

Based on undisputed evidence that “post-viability abortions are not performed in Arkansas currently,” Baker concluded that Act 619 “unconstitutionally restricts pre-viability abortions” and preliminarily enjoined the state from Act 619, according to the Eighth Circuit.

Rutledge filed a 292-page petition for a writ of certiorari with the Supreme Court on Friday.

“The Constitution does not require Arkansas to permit discrimination-by-abortion against Americans with Down syndrome,” said Rutledge in a news release Tuesday. “Through my personal friendships, I know that while individuals with Down syndrome may have an extra chromosome, they also have extra love and joy they share unconditionally, and I will not stand by while God’s gifts are exterminated as has been done in other countries.”

According to the news release from Rutledge, the federal court in Little Rock sided with the plaintiffs and “ruled that the Constitution guarantees a right to selectively abort children with Down syndrome.”

“The [8th] Circuit affirmed because it felt bound by prior decisions that have misinterpreted the Supreme Court’s precedent,” according to the release. “Although the [8th] Circuit ultimately ruled against Arkansas, two of the three judges agreed with Arkansas that the Constitution does not guarantee a right to discriminatory, selective abortions. These two judges asked the Supreme Court to correct its precedent.”

Rutledge’s actions are part of a long history of attacking the right to abortion in Arkansas, said Holly Dickson, executive director for ACLU of Arkansas, which is serving as legal counsel for Little Rock Family Planning Services.

“In recent weeks, Arkansas politicians have conducted a dangerous and unlawful attack on essential health care, and the attorney general’s action is no different …” said Dickson.“If this law were to take effect, it would do nothing to address the ableism or discrimination that people with disabilities face in housing, health care, education or the workplace. This is nothing more than an attempt by politicians to exploit the fight for disability rights to further their antiabortion agenda.”