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Analysis: Arkansas wants to force the Supreme Court’s hand on Roe v. Wade

State Sen. Jason Rapert, who filed the bill which would only allow abortions in the case of ectopic pregnancies or when the life of the mother was endangered, called the move “the trigger” to begin the process of pushing the nation’s highest court to rule on Roe.

To be clear: Conservative-leaning states — primarily in the South and Midwest/Plains — have worked diligently in recent years to pass legislation that restricts when and where a woman can have an abortion. According to the Guttmacher Institute, a reproductive rights think tank, 15 states “introduced, moved or enacted six-week abortion bans in 2019: Florida, Georgia, Illinois, Kentucky, Louisiana, Maryland, Minnesota, Mississippi, Missouri, New York, Ohio, South Carolina, Tennessee, Texas and West Virginia.”
What’s different with what’s going on in Arkansas right now is that the ideological makeup of the Supreme Court has changed dramatically over the last few months. The death of liberal giant Ruth Bader Ginsburg and the nomination and confirmation of conservative Amy Coney Barrett in her place has shifted the court clearly to the right.

In fact, Barrett’s views on Roe v. Wade were a regular feature of questions lobbed her way by Senate Democrats during her confirmation hearings. Barrett, however, offered little guidance as to how she might vote if a case challenging Roe came before her.

“The debate over the future of abortion is where it was before the hearings began: Barrett as a law professor working at a Catholic university made clear that she was opposed to abortion and as a judge voted twice to revisit her colleagues’ opinions that struck down abortion restrictions. In addition, she had to supplement her record when CNN reported upon undisclosed talks she gave as a law professor to student groups that oppose abortion.. After hours of testimony, however, Barrett never strayed from her mantra: As a judge she would follow the law and leave her personal opinions aside.

“My policy views, my moral convictions, my religious beliefs do not bear on how I decide cases nor should they, it would be in conflict with my judicial oath,’ she said.”

That lack of clarity from Barrett hasn’t stopped Republican lawmakers from drawing conclusions about how she — and the court — may rule if a challenge to legalized abortion eventually came before it.

“I think they’re looking for the opportunity to do that,” Rapert, the Arkansas Republican, said of the court and overturning Roe. “They have to have the right case or the right piece of legislation before them to do that.”
Maybe! And because Barrett has been on the court for less than a month — she was confirmed October 27 — we don’t yet have any similar rulings in which she played a part to analyze.
But it’s also worth remembering that the most recent major decision by the Supreme Court on abortion did not go the way pro-life activists wanted. In a 5-4 ruling in June, the court declared a Louisiana law that banned doctors from performing abortions unless they had admitting privileges at a nearby hospital as unconstitutional. Chief Justice John Roberts, appointed to the court by Republican President George W. Bush, sided with the majority.

In short: Figuring out exactly how each of the nine justices will vote on any given case is no easy task. But as evidenced by Arkansas’ latest efforts, it is becoming clear that we are likely to see some serious challenge to Roe appear before the court in the not-too-distant future.

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