Here is link to today’s decision by the Eighth Circuit affirming an injunction prohibiting enforcement of two provisions of Arkansas law restricting abortion. One provision prohibits abortion after 18 weeks and the other provision prohibits abortion after a Down Syndrome diagnosis if the abortion is sought due to that reason.
Two judges (Judges Shepherd and Erickson) concurred but also wrote separately to indicate their dissatisfaction with the Supreme Court’s viability standard. Judge Shepherd stated:
“Today’s opinion is another stark reminder that the viability standard fails to adequately consider the substantial interest of the state in protecting the lives of unborn children as well as the state’s ‘compelling interest in preventing abortion from becoming a tool of modern-day eugenics.’”
The two judges called for the Supreme Court to re-examine Casey.
These two concurring opinions continue a trend of lower court judges expressing disagreement with the Supreme Court’s decisions in Roe and Casey. I have written about this trend in this short article.