I don’t know what’s going on in Arkansas, but they’ve signed one illegal abortion bill into law this week, and the legislature will consider a bill to teach straight creationism (no, not Intelligent Design [ID] and not “scientific creationism) in public schools. These bills are clearly meant to test Roe v. Wade —and the validity of teaching the Bible as science—in the new, extra-conservative Supreme Court.
As you may recall, Roe v. Wade started in Texas, where Norma McCorvey (“Roe”) brought suit against the state for its law prohibiting all abortions except those to save the mother’s life. The case was appealed up to the Supreme Court, where a 7-judge majority ruled that abortion could not be completely prohibited, striking down the Texas law. (McCorvey gave birth before the Supreme Court ruled, and put the baby up for adoption.)
You may also remember that the legality of abortion depended on the trimester. As Wikipedia notes:
The Court settled on the three trimesters of pregnancy as the framework to resolve the problem. During the first trimester, when it was believed that the procedure was safer than childbirth, the Court ruled that the government could place no restriction on a woman’s ability to choose to abort a pregnancy other than minimal medical safeguards such as requiring a licensed physician to perform the procedure. From the second trimester on, the Court ruled that evidence of increasing risks to the mother’s health gave the state a compelling interest, and that it could enact medical regulations on the procedure so long as they were reasonable and “narrowly tailored” to protecting mothers’ health. Since the beginning of the third trimester was normally considered to be the point at which a fetus became viable under the level of medical science available in the early 1970s, the Court ruled that during the third trimester the state had a compelling interest in protecting prenatal life, and could legally prohibit all abortions except where necessary to protect the mother’s life or health.
Well, Arkansas has passed a law identical to the Texas law that was declared unconstitutional. The governor signed it on Tuesday. There are no exceptions for rape or incest.
Click on the screenshot to read the CNN report.
An excerpt:
Arkansas on Tuesday became the first state in 2021 to enact a near-total abortion ban — a bold step by abortion opponents seeking to renew challenges to the Supreme Court’s landmark 1973 Roe v. Wade ruling that legalized the procedure nationally.
The court, which now leans conservative, has shown it is open to considering abortion restrictions, a perceived opportunity that many anti-abortion advocates have pushed lawmakers to pursue.
The Arkansas bill, SB6, bans providers from performing abortions “except to save the life of a pregnant woman in a medical emergency,” and makes no exceptions for instances of rape, incest or fetal anomalies. Those found to violate the law could face a fine of up to $100,000 and up to 10 years in prison.
“I will sign SB6 because of overwhelming legislative support and my sincere and long-held pro-life convictions,” Arkansas Gov. Asa Hutchinson, a Republican, said in a statement. “SB6 is in contradiction of binding precedents of the U.S. Supreme Court, but it is the intent of the legislation to set the stage for the Supreme Court overturning current case law.”
The abortion law is slated to go into effect 91 days after the end of the Arkansas legislative session, which is currently set for May 3, according to Arkansas State Sen. Jason Rapert, who sponsored the Senate bill.
The ACLU and Planned Parenthood plan to challenge the law. Further, Supreme Court already has ample material if it wanted to overrule Roe v. Wade. Perhaps it has no appetite to do so. Can a lawyer weigh in here?
Of the 11 so-called gestational bans — which bar abortions past a certain point in pregnancy — passed since the start of 2019, none have gone into effect after most of them have been blocked by judges. Those include a similar near-total abortion ban passed in Alabama in 2019 and an 18-week bill passed by Arkansas in 2019.
“The Supreme Court has about 20 bills in front of them that they could take up if they wanted to,” said Gloria Pedro, regional manager of public policy and organizing for Arkansas and Oklahoma at Planned Parenthood Great Plains Votes, the group’s advocacy arm. “So writing a bill that’s the equivalent of a demand letter to SCOTUS, it’s just impractical and a waste of time and taxpayers’ money.”
About the rape and incest inclusion, Senator Jason Rapert, sponsor of the bill, said this: “”How could we look at any human baby and say that they are not worthy of life simply because their birth was a result of a violent act.”
They are not clearly thinking about the mother, who, besides being traumatized by a rape or incestuous act, has to carry its fetal result for nine months.
***************
Now about their regressive creationism. . .
The Encyclopedia of Arkansas has a good article on the history of teaching evolution (or not teaching it) in that state. It turns out that the U.S. government’s legal stand on teaching creationism was largely forged by cases in that state.
The Supreme Court case of Epperson v. Arkansas (1968) began when a high-school biology teacher, Susan Epperson, sued for the right to teach evolution in her biology class. That was illegal since Arkansas had a law prohibiting the teaching of evolution (this was in 1968!). The state Supreme Court upheld the law, but the Big Supreme Court overturned it on First Amendment grounds. As the encyclopedia notes, “In issuing the majority opinion, Justice Abe Fortas noted ‘that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma’.”
That brought an end to rules outlawing the teaching of evolution. In another famous it violated the Establishment clause of the First Amendment because “creation science” was not science but religion. I love to quote judge Overton’s final paragraph of that decision:
The application and content of First Amendment principles are not determined by public opinion polls or by a majority vote. Whether the proponents of Act 590 constitute the majority or the minority is quite irrelevant under a constitutional system of government. No group, no matter how large or small, may use the organs of government, of which the public schools are the most conspicuous and influential, to foist its religious beliefs on others.
At that time, “scientific creationism” was the confected way to try sneaking religion into the classroom. Later Intelligent Design became an even sneakier way, for it didn’t mention God, only a “designer.” However, Judge John E. Jones III, presiding in a federal district court in Pennsylvania, saw through this ruse, striking down the Dover Area School District’s requirement that ID be taught alongside true evolution. Again, the decision was based on First Amendment grounds, since Jones deemed ID “not science”, but a religious view.
With that long introduction, here’s the very short bill filed yesterday in the Arkansas legislature. It drops the charade of ID and “scientific creationism” and says that a teach may teach creationism if they want:
Under present federal law, this bill is unconstitutional, as it allows teachers to teach a religious view in public school classrooms. It will be struck down, for I can’t imagine that the Supreme Court, conservative though it is, allowing the teaching of Biblical creationism, much less any religious doctrine, in a public school. If the judges somehow see creationism, ID, or “scientific creationism” as “science” worthy to be taught alongside evolution, they are truly ignorant, nay, stupid.
h/t: Guy
Going to Arkansas is like a trip into the Dark Ages. Hard to believe this was Clinton land. Of course I am in Kansas now and it is HQ of the pro-life idiots. The republican way is we are massively pro life but after you are born, hey, you are on your own. Notice how many of them voted for the covid bill.
They seem to be making the same mistake Trump made. Yes, it’s the most conservative Supreme court in generations, but as the former Liar-in-Chief learned to his cost, it takes precedent extremely seriously. And they are well aware of that 8,000,000 vote discrepancy in the last election, which probably correlates fairly well with attitudes favoring vs. denying freedom of choice in abortion access. Likewise, I can’t see these justices, whatever their private convictions, wanting to wade into the absurdities of teaching a religious doctrine in a science class. My guess is—and I don’t believe it’s just wishful thinking—that the great state of Arkansas is going to find itself shot down on both efforts.
Sorry for the profanity, but my only reaction to this is: “Oh, for fuck’s sake!”
+1
Well said!
The governor signed the abortion ban bill stating explicitly that it is unconstitutional. It is not even provisionally constitutional because you want to create a test case for SCOTUS. But then this is the state where Sarah Huckabee Sanders announced her plan to run for governor, sucking all the political air from the lungs of other contenders. The election campaign will be a contest to see who can be the biggest Trumpster.
On another note, I had an outpatient hospital procedure yesterday and overheard a surgeon in the pre-op area declare he was going to do his patient’s surgery “In the Name of Jesus!” My anesthesiologist assured me we were in the hands of God. So I was in the OR with a state of the art robot and superstition. That’s Arkansas in a nutshell.
“My anesthesiologist assured me we were in the hands of God.”
I take it that, from most any prudent perspective, a patient is in no position to ask the anesthesiologist why his services are needed, eh? 😉
Well, these will be a test for the conservative court.
But also there is the ultra-conservative version of virtue signaling to ones’ constituency. Even if they fail (which is likely), the politicians that are shoveling these piles of dung will smell good to their voter base.
Yep, it’s a twofer; offering up a test case and drumming up popular support while you do it.
I think the creationism bill, OTOH, is probably only or much more about ‘drumming up popular support.’ My own layperson opinion is that the court members haven’t shown much appetite to revisit the creationism-in-schools question. Maybe the new balance of the court is just the opportunity they were waiting for, but I opine they are less likely to take up this legal issue than they are abortion.
Ya beat me to it. It’s about getting re-elected, not about actually changing the social order. Especially the creationism bill, as eric notes. The abortion bill might (also) be a temperature-check to learn how many more right wing nutcase Justices they need to appoint in order to win.
Up here is slightly less insane Michigan, my beloved daughter in law has been working in a Planned Parenthood clinic. They don’t do “the procedure”, but they and the patients have to walk past a few continual protestors. So far, though, the sign wavers have been polite.
I don’t agree, at least not if the First Amendment is to be taken at face value.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
The new law merely says that teachers are allowed to teach creationism (I use “teach” in the loosest possible sense there) if they want to. In fact, the previous law which banned the teaching of creationism arguably fell foul of the First Amendment by preventing “the free exercise thereof”.
On the other hand, I would argue that a teacher who teaches creationism instead of science is a bad teacher and should be fired and if this law prohibits the school from firing bad teachers who are bad on religious grounds, then, yes, it is unconstitutional, in my opinion.
Your understanding of the 1st amendment is apparently the same as most religious folks, who seem to think the religious freedom in this amendment includes the ability to preach whatever they want anywhere they want. Not so. Separation is suppose to mean separation. It is really no different than having the right to abortion. Your religion does not give you the right to force it on everyone else and that is what the creationist believe and are always attempting to do. They are dead wrong.
I’m only talking about what it says in the First Amendment. It doesn’t say anything more explicit about the separation of church and state than the quotation I made above. It says nothing about what teachers may or may not say in the classroom.
I totally agree that religious people should not force their views on others and teaching creationism in a science class is gross misconduct and the teacher’s employer should take appropriate steps to stop it, but, as written, the First Amendment doesn’t make it unconstitutional to actually teach creationism, IMO.
I’m fully aware, by the way, that separation of church and state doesn’t just rely on the words of the constitution: there are centuries of case law accreted on top of it, but I don’t see any reason why one Supreme Court couldn’t override the decision of a previous Supreme Court. Otherwise, nobody would be worried about the threat to Roe v Wade.
You’re only talking about the free exercise clause, but that’s only half of what it says about religion.
The establishment clause is now, and probably has been for 50+ years, been interpreted to mean that the state and it’s agents cannot ‘establish’ religion – i.e. push one religion over others, or over none at all. Public schoolteachers are agents of the state, so they can’t in their job, push one religion over others or over none at all. Part two of this logic is the several legal findings, again probably going back decades, that creationism is indeed religion and not science.
Teachers outside of their job duties are indeed covered by the free exercise clause. So if you meet your teacher at the supermarket or bowling alley, he can proselytize you all he wants. But he can’t do it when on the job.
Jeremy, your comment points out the historical tension between the Establishment Clause and the Free Exercise Clause in the First Amendment. The Supreme Court traditionally gave much weight to the Establishment Clause, but in recent years conservatives have tried to countervail that by emphasizing the Free Exercise Clause. (Witness the sorry story of Kim Davis, a former county clerk in Kentucky.) In this case, though, the verdict is clear. To permit a PUBLIC institution, funded by taxpayers of many and varied beliefs including no belief, to favor one particular belief is a violation of the Establishment Clause.
Your interpretation of the 1A contravenes binding US Supreme Court precedent. See Edwards v. Aguillard.
The Arkansas creationism bill is legally DOA.
Well we all know which religion this bill is supposed to advance, but are you completely confident a good lawyer couldn’t successfully argue it the other way in front of the right Supreme Court?
I’m never completely confident with the make-up of the current Court. But I don’t think there’s been any hint that Edwards v. Aguillard is in danger of being overruled. And, even if there were, I think the new Arkansas bill is much too blunt an instrument for SCOTUS to choose to use to accomplish that task.
I think they’d go with something more subtle, like a law that mandates some opportunity for ID critiques of the ToE.
They’ve argued it twice against the Supreme Court and multiple times in lower courts, and the end result since the ’60s has always been a loss for creationism. Now, does that mean they’ll lose in the Roberts court? Not necessarily. But it does mean that until we get some sort of social signal from Roberts and Gorsuch that they’d like to roll back the law, that the smart money is on precedent holding up. Because Alito might do it, Thomas might do it, and Barrett is an unknown…but that’s pretty much all tho votes the creationists could count on right now.
For the record, here is NCSE’s top ten list of evolution education-related cases. The two SCOTUS ones are Epperson v. Arkansas, 1968, and Edwards v. Aguillard, 1987.
Could be worse, a Texas bill in consideration would mandate the death penalty for any person getting an abortion and any doctor providing one.
One has to wonder if the death penalty would be carried out immediately or would they wait until the baby is born.
Pro-life party? I don’t think so.
If one accepts the anti-abortion position that a fetus is a “person” for constitutional purposes, ontologically indistinguishable from a post-birth human being, then it logically follows that the failure to sanction the death penalty (in states which still employ it) for women who have abortions would violate the Equal Protection clause of the 14th Amendment.
Nice one. However, since we understand that a fetus is not a person “for constitutional purposes” the death penalty stuff does not apply….right?
Right, for now anyway. That’s why the ultimate goal of the anti-abortion-rights movement is a constitutional amendment conferring “personhood” on fetuses.
It also logically follows that IVF centers conduct mass murder.
However, well-off white evangelicals are supporters and users of IVF treatment, so it will be interesting (in a gallows humor sort of way) to watch how they try and keep the fertilized zygotes in IVF clinics counting as ‘not people’ while the fertilized zygotes in wombs counting as people.
Clyde Chambliss of the Alabama state legislature had an answer to that which really put the misogyny right out in the open: “The egg in the lab doesn’t apply…it’s not in a woman.”
That depends on the country. In some places, all fertilized eggs must be implanted.
Some religious types are opposed to IVF, and to birth control (some of which affects fertilized eggs).
Hell, some religious types are against sex, period, unless it’s a quick and dutiful hump in the missionary position, with the lights off, for procreative purposes only. 🙂
“Mandate” isn’t right. The law implies the state can bring murder charges. While in Texas those can lead to the death sentence, it’s certainly not like every murder leads to a death sentence. You’d probably only expect those in cases where the woman is brown or poor.
I believe that this bill was passed explicitly to go before SCOTUS and likely fail. It’s a sort of extreme right wing virtue signaling to prove that everybody picks on the poor Xtians
SCOTUS is going to have to take up the abortion issue again, probably sooner rather than later — if for no other reason, then because there are likely to be conflicts that need to be resolved among the 12 midlevel federal appellate courts, given the numerous restrictive abortion laws that have been enacted recently in red states across the country. There are currently two abortion case on the SCOTUS docket pending certiorari review — Dobbs v. Jackson Women’s Health Organization and Food and Drug Administration v. American College of Obstetricians and Gynecologists. The first involves a challenge to a Mississippi law that bans abortions after 15-weeks’ gestation, except in cases of severe fetal abnormality or medical emergency; the second, a challenge to restrictions on the distribution of Mifepristone, the active drug in the pill used to induce abortions.
If the current Court, with six conservative justices appointed by three Republican presidents, doesn’t overrule Roe v. Wade outright, the religious right will go berserk. Getting rid of Roe has been the raison d’être for evangelicals’ stalwart support for the Republican Party for lo these many decades, including for its Faustian bargain with a dissolute reprobate like Donald Trump (who was in favor of late-term abortion before he was against it).
I’m pretty sure Chief Justice Roberts would prefer to take an incrementalist approach, chipping away at women’s access to abortion until it is all but unavailable. But he’s outflanked on this issue by an arch-conservative five-justice majority. The swing vote on abortion may well turn out to be none other than the human keg-stand himself, Brett Kavanaugh, who (like Justice Neil Gorsuch) received his secondary school education from the Jesuits at Georgetown Prep, but who strikes me as not taking his Catholicism nearly as seriously as the three staunchly Catholic right-wing justices — Amy Coney Barret, Samuel Alito, and Clarence Thomas (or as seriously as Gorsuch, whose religious beliefs seem to lie somewhere in the twilight between Catholicism and evangelical Protestantism).
Overall, the intimations are not propitious for the continued vitality of Roe v. Wade and its progeny, such as Casey v. Planned Parenthood. If Roe is overruled, well-off women will still be able to obtain abortions (at least for the time being) by travelling to blue states where abortion will remain legal. But poor women, lacking that option, will be forced into unwanted childbirth.
Since we are considering a return to the Dark Ages why not skip getting the shots and just let nature take it’s course. Regardless of how any of these robbed ones view their religion I would prefer they shut their bibles and open the damn law books for a change.
I’ve never understood why “no exceptions for incest or rape” is deemed to be more extreme. If one believes that abortion is murder, since in general there are no exceptions for murder, then this is just a logical position. Sure, one might disagree with the concept that abortion is murder, but then it should be allowed with no restrictions (at least at a given time during the pregnancy). Although one might disagree with their basic position, they are not hypocrites.
The alternative is that there is a logically tenable position which says that abortion should be allowed in cases of incest and rape, but should not be under otherwise similar circumstances. Does anyone actually take that point of view? It seems to me that harping on the “no restrictions” clause is supposed to make those who want it look worse than they do, but it doesn’t seem a logical point to make.
There’s no logical basis for carving out an exception for incest or rape. We don’t allow women to murder the children of their rapists or abusers. It’s tout court a compromise meant to make anti-abortion laws more palatable to a wider swath of the American public.
It’s the camel’s nose pushing further into the reproductive-rights tent.
That’s my point: there is no logical basis. But why would it make anti-abortion laws more palatable? Those who think it is murder must think it is murder in such cases as well, else they are hypocrites (which, of course, is possible). Those who don’t think so think that it should be allowed generally, not just in those cases.
Because a fair number of people are ostensibly anti-abortion, but don’t have the stomach for forcing a women to bear the children of their rapists or to bring into the world the product of incestuous fornication.
Consistency, thy name is not “abortion opponent.”
In my experience, the most ardent anti-abortion advocates are quite happy to carve out exceptions for murder when it’s the state exercising capital punishment.
Can someone please explain how one teaches Creationism. Surely once you’ve read out Gen. ch1 you’ve repeated all that the Bible has to say on the subject. Any more and you’re making it up.
There should be two reactions to the SCOTUS overturning Roe v. Wade. (1) The Republican
Party will thereafter bid goodbye to the suburban vote, particularly that of suburban women. (2) The
Democrats—who may, as a result of (1) increase their control of the House and Senate in 2022—will give serious thought to increasing the size of the court, i.e. “packing” it.
The latter consideration, if it is understood by Justice Roberts and some of his colleagues, may be
sufficient to prevent a SCOTUS decision to overturn Roe v. Wade. An earlier case in point is worth
recalling. The House of Lords twice rejected versions of the Great Reform Act—until HM government
made clear that it would pack the House of Lords by creating a host of new peerages if it did
so again. Once that threat was made clear, the Lords quietly allowed the Reform Act to pass.
Arkansas also now has a ‘stand your ground’ law. I feel SOOO much safer!
Going?
From how line 33 is worded, the general assembly apparently needs an English teacher to proof the document.
Is anyone here bothered by the legal abortion of late term fetuses? How about the termination of fetuses for issues like Down Syndrome? Or being the wrong gender? Or being killed after seven, eight, or even nine months of development because your mother changed her mind when another fetus who was wanted is allowed the gift of birth? You want to lump all those decisions under the rubric of reproductive rights? This is a complicated issue fraught with no good decision at times. For more two decades, my ultimate decision on every state level and national candidate was that candidate’s promise to preserve a woman’s right to an abortion, but I respect the position of folks who believe that a fully formed, viable fetus has a right to life. I’m not sensing much respect for the latter belief in this thread. Could be I’m just having a Missing It Friday. Have a great weekend all.
Yes, I tend to agree with you here. If pressed, many abortion supporters will say that it is OK to abort just before birth, or even after birth, even if the fetus is perfectly healthy and there is no danger to the mother.
Like in the woke vs. QAnon debate, the sensible position is not at either extreme.
Then there is the hypocrisy of expecting men to care for their children as much as women, but leave the decision to abort solely with the woman.
Does your final paragraph mean you believe a woman should be required to obtain the consent of the putative “father” before being permitted to terminate her pregnancy?
I think a woman should consult with her partner before getting an abortion — and I think in functioning relationships that’s precisely what women tend to do. But I do not believe a woman should ever be required by law to obtain the consent of another to control her own reproductive system.
Do you think husbands should be required to obtain the consent of their wives in order get a vasectomy?
Something like 98% or 99% of abortions occur within the first 20 weeks of pregnancy. Late-term abortions that aren’t about birth defects or the safety of the mother aren’t a complete non issue, but they’re a practical non-issue. Women having sex and then waiting until month 8 to decide, oh yeah, I have no intention of having this baby, is not IMO a realistic fear or concern.
Abortion (and infanticide) over gender is something I think India and China has had to grapple with, but I don’t know of any actual evidence it’s a problem here in the states. On that one, I’d say don’t fix what ain’t broke (i.e. no need to regulate it now), but let’s remain open to having that social discussion if such behavior does start becoming a significant issue.
True, but with that argument the government could randomly choose one person per year to be publicly drawn and quartered and make money from selling tickets. Who would argue that dying in that matter is so improbable that we shouldn’t disallow it?
Selective abortion is a huge problem in India, China, and other countries. Of course, the woke will cry “reproductive rights” whatever the consequences. Already, there are probably tens of millions, if not more, men who have no chance of ever finding a mate, through absolutely no fault of their own.
Third trimester abortions are very rare and the vast majority or those that are performed are done so under gut-wrenching circumstances — because the fetus is not viable or severely deformed, or because continued pregnancy poses a serious risk to the life or health of the woman, or because the pregnant female is a minor, or mentally handicapped, and either didn’t recognize she was pregnant until late in her term or and was afraid to confide her pregnancy to a parent or guardian.
I doubt there are many women deferring abortion simply so they can enjoy the burden imposed by pregnancy until late in their term or solely as a means of birth control. I trust women and their doctors to make appropriate decisions on such matters.
If I should be proved wrong — if there is evidence that women are seeking, and doctors performing, late-term abortions purely as matter of convenience or as a form of birth-control — then I think it might be appropriate to have regulatory boards for OB/GYNs adopt professional standards regarding when late-term abortions can be performed, and to authorize such boards to mete out professional discipline to doctors who run afoul of those regulations.
But I do not believe abortion, under any circumstances, should be a matter subject to our criminal justice system, or that women who have abortions ought to be punished.
Thought that too until the Dr. Gosnell story came out and other stories followed. Late term abortion is not as rare as I had previously thought. And, when it occurs, the Gosnell saga suggests it can be an horrific procedure. Not kind or civilized for any of the lives involved. I agree with you that criminal prosecution of anyone is the wrong answer to what is essentially a tragedy but late term abortions raise a real ethical dilemma for me. I haven’t gotten past the fact that we allow a mother to kill a late term fetus that, at the same point of gestation, could live outside her body and have a good life if the mother wanted it to live. But I have no good solution to offer for that dilemma other than compassion for all involved.
Given the decision in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612, 1624-25 (2018), a 5-4 majority opinion, written by the then-new Justice Neil Gorsuch to undermine worker rights I wouldn’t be too sure about precedent worrying them.
When all is said and done it gets down to one very important question. Who’s decision should this be. A court? No. A politician. No. A man. No.
How about the woman…hey, that’s an idea. Maybe the person most personally affected by the issue. What a novel idea.
The point is that, from their point of view, the issue is not who chooses, because they see the fetus as a person and abortion as murder. You might not agree with that, but claiming they believe something they don’t is not helping the debate. That’s like saying Bernie Sanders is a communist.
Even the names each side gives to itself indicate that they don’t take the position of the other side seriously. Pro-choice implies that the others are anti-choice. No, that’s not their motivation (see above). And you would presumably not argue that parents have the right to kill their own children because pro-choice is good—-after all, they are the ones affected. Pro-life implies that the others are anti-life, which is a similar caricature.
Just as there needs to be a position between QAnon and wokeness, there needs to be a sensible position on this issue as well. Caricaturing a position you disagree with does not help.
In the end, the idea of freedom and happiness is that you get to make your own choices and do what you think is right. You do not get to decide what is right for everyone else. The prolifers simply do not get it. Your religious freedom is for you and you alone but be sure to know, it means nothing to me.