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Federal court uses Supreme Court opinion to uphold Arkansas abortion restrictions
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Federal court uses Supreme Court opinion to uphold Arkansas abortion restrictions

A panel of federal judges used a recent Supreme Court opinion to uphold Arkansas abortion restrictions Friday.

The US Court of Appeals for the Eighth Circuit upheld the regulations by deferring to Justice Roberts’ concurring opinion in the recently-decided Supreme Court case, June Medical Services L. L. C. v. Russo. By deferring to Justice Roberts’ concurrence, the court applied a more lenient test than tests from previous Supreme Court cases to decided whether a state regulation on abortion is constitutional. The court observed:

According to Chief Justice Roberts, the appropriate inquiry under Casey is whether the [abortion] law poses “a substantial obstacle” or “substantial burden, not whether benefits outweighed burdens.” To the extent that Casey “discussed the benefits of the regulations,” it did so “in considering the threshold requirement that the State have a ‘legitimate purpose’ and that the law be ‘reasonably related to that goal.’” “So long as that showing is made,” Chief Justice Roberts concluded, “the only question for a court is whether a law has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’”

The judges interpreted this standard to mean that they had to determine if the regulations caused a substantial obstacle before striking them down, but based on Roberts’ concurrence in the Russo case, the Whole Woman’s Health cost-benefit standard is rejected.

By applying the “undue burden” test, the court upheld the Arkansas Unborn Child Protection from Dismemberment Abortion Act, the Sex Discrimination by Abortion Prohibition Act, an amendment concerning the disposition of fetal remains, and an amendment concerning the maintenance of forensic samples from abortions performed on a child.

The court’s application of the “undue burden” test ran counter to the Supreme Court’s decision in Russo, a possibility that some pro-life and pro-choice advocates recognized after the Russo decision.