The right to abortion has always been a polarizing and divisive issue in the United States. State laws restricting access to abortions have existed since the 1900s, and it was not until the 1960s that a number of states began to legalize abortion, but only under specific cases including rape, incest, or cases in which the life of the woman was at risk.2 However, the U.S. Supreme Court recognized abortion as a constitutional right in the landmark decision of Roe v. Wade (1973),3 which employed the right to privacy found in the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution to maintain a person’s right to have an abortion until a fetus becomes viable, or able to live outside of the womb.4 This was highly controversial because it was seen as an example of judicial activism, in which the justices considered the broader societal implications of their decision and made the ruling based on their own political views rather than on precedent. The Court has faced criticism since its ruling along with attempts to revoke its constitutionality, which has increased in recent years. The ideological leanings of the Supreme Court constantly shifts, but at the time of the Roberts Court, it seems to be shifting more and more towards the right, with six conservative justices, including Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.5
The prominence of right-wing ideologies in the 2022 composition of the Court has resulted in challenges to the Roe decision, including the Cover Alabama Human Right Protection Act6 and the Texas Heartbeat Act.7 These are examples of trigger laws, which are laws that are unenforceable attributable to circumstantial conditions, much like Supreme Court precedent in this case, but may be enforceable if the circumstances change. Trigger laws often expressly appeal to change the circumstances to make the law enforceable. An example of this can be seen with a law from March of 2021, in which Arkansas enacted a near-total ban on abortion that violated and challenged the Roe ruling. Act 309, also known as Arkansas Unborn Child Protection Act, bans abortions “except to save the life of a pregnant woman in a medical emergency.”8 This means that it does not make exception for instances of rape, incest or fetal anomalies.9 Because it was in clear violation of Roe v. Wade, the Act was stayed by a federal judge in July of 2021, calling into question whether challenges to Roe v. Wade will ever be successful and whether these trigger laws are useful.10
This Note will first explore the Supreme Court landmark decision of Roe v. Wade and its holding in reference to the Constitution. This Note will then examine the key elements and arguments featured in Arkansas Unborn Child Protection Act, or Act 309, an attempted ban on abortion. It will then review the American Civil Liberties Union’s (ACLU) lawsuit against Act 309 and how it led to the preliminary injunction of the Act. This Note will finally contemplate the future of Roe v. Wade and the success of its trigger laws. This Note will ultimately argue that Act 309 is dangerous, unconstitutional, and in clear defiance of the Supreme Court’s decision in Roe v. Wade, and like other trigger laws, should therefore be repealed.
II. Roe v. Wade
Roe v. Wade was a landmark case in which the Supreme Court ruled to protect a women’s right to have an abortion without excessive government restrictions, which ended up striking down many federal and state abortion laws.11 The ruling revolved around the case of Norma McCorvey, then known under the legal pseudonym “Jane Roe,” who became pregnant with her third child in 1969.12 McCorvey had initially wanted an abortion, but having lived in Texas, where abortion was illegal except for medical emergencies to save the mother’s life, she was unable to go through with the procedure.13 She eventually filed a case against her local district attorney, Henry Wade, arguing that the state laws regarding abortion were unconstitutional.14 After a panel in the District Court for the Northern District of Texas ruled in her favor, Texas appealed directly to the Supreme Court, which eventually ruled in her favor using Fourteenth Amendment analysis.15
A. Roe v. Wade and Privacy in the Penumbras
McCorvey and her attorneys argued that Texas’ ban on abortion violated the Due Process Clause, which is part of the Fourteenth Amendment of the United States Constitution. This clause guarantees due process of law before the government may deprive someone of life, liberty, or property.16 This has been extended to prohibit the government from depriving someone of the substantive rights that come under life, liberty, or property, as seen in the Slaughter-House cases in 1873.17 In this case, Justice Stephen J. Field claimed that the Due Process Clause protected individuals from legislation that infringed upon their “privileges and immunities” under the federal Constitution.18 This developed into the idea of substantive due process, which defends the rights associated with life, liberty, and property that are not explicitly mentioned in the Constitution, like the right to privacy.19 The idea of the right to privacy as a constitutional right was further cemented in Griswold v. Connecticut (1965), which argued that the Constitution guarantees a right to privacy against governmental intrusion through penumbras located in the First, Third, Fourth, Fifth, and Ninth Amendments.20
With these ideas in mind, the Court found that outlawing abortions infringes a pregnant woman’s right to privacy in multiple ways. First, the Court argued that having unwanted children “may force upon the woman a distressful life and future.”21 This could therefore bring imminent psychological harm, while caring for the child may affect the mother’s physical and mental health.22 Further, there would be a general amount of “distress, for all concerned, associated with the unwanted child.”23 The right to privacy therefore protected a woman’s right to terminate her own pregnancy because preventing one from doing so would infringe upon their freedom from being disturbed by other people.
Even then, the Court rejected the right to privacy as absolute. The ruling stated that some state regulation in areas protected by the right to privacy is appropriate, and that “a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.”24 Abortion would be balanced against other government interests, like protecting the potential life of the fetus once it reaches a certain stage.25 States were therefore permitted to impose their own limitations on a pregnant women’s right to have an abortion. A trimester framework was developed to accommodate these two different views, which allowed states to add limits to the access to abortion after the first trimester, however they saw fit.26 Furthermore, state abortion-related legislation would be reviewed under strict scrutiny, which eventually led to criticism and reform as seen with Planned Parenthood v. Casey (1992).
B. Planned Parenthood v. Casey
Planned Parenthood v. Casey partially overruled Roe v. Wade. In this case, Planned Parenthood challenged five provisions of the Pennsylvania Abortion Control Act of 1982 and deemed them unconstitutional under Roe v. Wade.27 During the deliberations of this case, an initial majority of five justices were willing to effectively overturn Roe. However, the Court maintained the essential ruling of Roe and incorporated the idea of liberty in the ruling, like the liberty to plan your family and family life in your own terms and to protect yourself from laws that maintain traditional sex roles.28 However, there were changes to the workings of the ruling. Now, abortion-related legislation would be reviewed based on the undue burden standard instead of the strict scrutiny standard from Roe, so abortion restrictions would only be unconstitutional if they were enacted for “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”29 This replaced the trimester framework with a “fetal viability” framework,30 which essentially allowed states to implement restrictions to abortion during the first trimester of pregnancy. Instead of completely overruling abortion, it made the boundaries of state influence grayer and allowed states to implement more restrictions on the access to abortion. This would help pave the way for trigger laws in various states.
III. Act 309 Overview
Arkansas passed Act 309, referred to as the Arkansas Unborn Child Protection Act, in May 2021. Its legislative intent is both revealing and severe, as it states that the United States Supreme Court should “redress and correct the grave injustice and the crime against humanity which is being perpetuated by its decisions in Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey.”31 The strong language does not just imply disagreement with Roe v. Wade, but directly renounces it as unjust and inhumane, and calls on the Supreme Court to reverse their decision regarding the constitutional protection of abortion. It uses “scientific” evidence to argue that abortion is inhumane and dangerous, stating that since 1973, scientific advances have demonstrated that life begins at the moment of conception and that the fetus in a woman’s womb is a human being.32 Because of this, abortion laws directly withdraw legal protection from “a class of human beings, resulting in severe deprivation of their rights, up to and including death.”33 The Act even goes as far to compare this deprivation of fetal rights to the Dred Scott decision, where the Supreme Court unjustly denied personhood to African Americans.34
The Act also covers the history of Arkansas and abortion law, detailing how Arkansas has always advocated for the lives of the unborn, unless the mother’s life is at risk.35 It then provides statistics regarding how many abortions have taken place in Arkansas due to the existence of Roe v. Wade.36 It pleads with the Supreme Court to “do the right thing” as was said in Brown v. Board of Education and redress the constitutional protection of abortion to protect the lives of the unborn.37 This is once again an example of strong, emotionally charged language, which appeals to the morals and emotions of Supreme Court justices to re-examine the holding in Roe.
Although the Act excludes women from being charged with a criminal offense “in the death of her unborn child,” there are consequences for the medical professionals who perform abortions.38 The Act states that “a person shall not purposely perform or attempt to perform an abortion except to save the life of a pregnant woman in a medical emergency.”39 This makes performing or attempting to perform an abortion “an unclassified felony with a fine not to exceed one hundred thousand dollars ($100,000) or imprisonment not to exceed ten (10) years, or both.”40 Even though it only penalizes the person who performs the abortion, it still completely restricts access to abortion for people living in Arkansas, including victims of rape and incest.
Overall, it is clear that this Act aims to do a lot more than simply restrict access to abortion; the Act is making a call to action directed towards the Supreme Court, urging them to overturn Roe v. Wade so that states can enforce similar acts across the country. It employs “scientific” evidence to prove that aborting a fetus is akin to murder, it compares legalized abortion to systemic racism, and even states that repealing Roe v. Wade would be the “right thing,” or morally correct. This exemplifies the concept of a trigger law as an Act that might be unenforceable but hopes to eventually be enforced and argues for its enforceability.
IV. ACLU Lawsuit Overview
The American Civil Liberties Union (ACLU) filed Little Rock Family Planning Services v. Larry Jegley (2021) in order to help overturn Act 309.41 It cites Roe v. Wade and substantive due process as a large part of the argument against the Act, emphasizing that the Act is unconstitutional in the eyes of the Supreme Court.42 It labels the Act as an “affront to almost half a century of unbroken precedent” holding that the Constitution protects the fundamental right to terminate one’s pregnancy prior to viability.43 Apart from showing the reasons why it should and will be overturned, it also covers the implications the Act would have and why this would be dangerous for the people of Arkansas.
A. Implications of Arkansas’ Ban on Abortion
The ACLU highlights the negative effects that would arise from enforcing Act 309 and overturning Roe v. Wade for women, and specifically for the citizens of Arkansas. It emphasizes how, in general, forcing someone to continue a pregnancy against their will poses a risk to their physical, mental, and emotional health, and even their life, along with the stability and well-being of their family.44 However, it specifies that it is even more dangerous for the people of Arkansas, which is a state with one of the worst maternal mortality rates in the country.45 If access to abortion is only granted in cases where a woman’s life is clearly at risk, it may prevent some women who are not as clearly at risk from making the decision. Act 309 also states that women are allowed to access medical care to empty their uterus in case a miscarriage occurs.46 However, miscarriages are dangerous in itself and can pose a threat to the health and safety of the women. The ACLU mentions that in some cases of miscarriage, cardiac activity persists while the patient is actively miscarrying.47 However, the ban prohibits physicians from conducting abortions on women in the process of miscarrying or who will inevitably lose their pregnancy, because the “medical emergency” aspect of the Act is very narrow.48 This Act can therefore risk the lives and health of women across the state.49
The ACLU also underlines how communities of color will be disproportionately affected by the restrictive Act. In particular, Black Arkansans, in addition to Latinx people with low incomes, will be most affected by being forced to carry a pregnancy to term.50 Black women disproportionately suffer from the severe maternal mortality crisis in Arkansas and are twice as likely as white women to die during pregnancy or shortly after childbirth, mostly due to the inequities in access to medical care.51 However, the Act does not address the inequities and would rather criminalize abortion, leading to many preventable deaths.52
The ACLU generally calls attention to why women undergo abortions and the validity of their choices. Women who undergo abortions choose to do so for a variety of reasons: they may be victims of rape or incest, their health may be at risk, and/or motherhood may make their financial or living situation worse.53 Some women also undergo abortion to due fetal anomalies, which a parent may feel they do not have the financial, medical, educational, or emotional resources to care for.54 Ultimately, the ACLU emphasizes that undergoing an abortion is a personal choice and taking away this choice has severe implications for the pregnant person undergoing, which is why the Act should be repealed and why the precedent of Roe v. Wade should remain.55 Either way, the plaintiffs’ arguments found some success, and a federal judge undertook a Preliminary Injunction to block the Act.
B. Preliminary Injunction to Block Arkansas’ Abortion Ban
In July 2021, the ACLU filed a preliminary injunction to block Arkansas’ abortion ban, employing the precedent of Roe v. Wade and the severe implications of the ban.56 Judge Kristine Baker of the U.S. District Court for the Eastern District of Arkansas ultimately issued said preliminary injunction, which prevented the law from being enforced until a final ruling.57 In response to the challenge brought by advocates of abortion rights, Judge Baker wrote that bans on abortions before a fetus is considered viable are “categorically unconstitutional.”58 This has interesting implications, because the law was not even considered feasible or constitutional on a federal level, let alone by Supreme Court standards. Even though Larry Jegley appealed to the Supreme Court to overturn Roe v. Wade, if such trigger laws are shot down on a federal level, it begs the question of whether states can effectively change Roe’s essential holding.
V. Future of Roe v. Wade and its Trigger Laws
With the complexity of the circumstances surrounding Roe v. Wade, the barrage of trigger laws, the ideological leanings of the Supreme Court, and the arguments made for upholding the essential holding of Roe, it is impossible to ascertain the future of its standing. However, it is easy to predict the fate of these trigger laws in the meantime. Because they are in direct violation of Roe, any similar bill to Act 309 will be unenforceable, and will likely face a blockage through a preliminary injunction, followed by a complete repudiation of the act. However, this does not necessarily indicate whether the trigger law is futile.
At the end of the day, these laws bring more attention to the cause of overturning Roe v. Wade, which is clear with the direct appeal to the Supreme Court to “do the right thing.”59 What will really make a difference is if these appeals can sway the Supreme Court justices or encourage the Court to reassess Roe. If the Court continues to lean toward the right, this may lead to the overturning of Roe v. Wade, which will have severe consequences for women from Arkansas and other states implementing trigger laws that ban abortion. Although Judge Ketanji Brown Jackson was recently confirmed as a Supreme Court justice, the future of Roe and trigger laws still seems uncertain since the political makeup of the Court does not change with Judge Jackson’s confirmation.60 Therefore, the standing of Roe v. Wade and abortion laws around the country depends on the direction the Supreme Court moves in.
Even though abortion is currently held as a constitutional right under Roe v. Wade, its future and security in a conservative Court are in jeopardy. It is important to consider whether Roe v. Wade can be amended or strengthened, either through federal legislation or through a new Court ruling, in any way, but this point is moot if a conservative majority can reject the current arguments for abortion’s constitutional protection and the severe implications of criminalizing abortion. Continuing to strike down trigger laws in the name of constitutionality, like what was done by Judge Baker of the District Court, might be the best or only way to maintain the integrity of the ruling.61 This is vital when these trigger laws directly question the constitutionality of the ruling while appealing to moral and emotional arguments in order to criminalize a necessary procedure and revoke a significant right. The fact that the federal judge recognized the constitutionality of the ruling is a positive sign for its future, as it highlights that these sentiments are shared beyond the Supreme Court. Even though the future of Roe v. Wade remains uncertain, it is important to continually emphasize that abortion is a constitutional and necessary right for the entire country in order to prevent state-level legislation from tearing it down.
Act 309, Arkansas Unborn Child Protection Act, is an attack on the constitutional right to abortion and should be repealed for violating the precedent set by Roe v. Wade. Even though the Act appeals to “scientific advances” to classify fetuses as human beings, thereby referring to abortion as a “severe deprivation of their rights” akin to the Dred Scott decision, it completely dismisses the constitutional protections for abortion established in Roe v. Wade and the negative implications abortion bans have for women.62 As mentioned in Roe v. Wade, the Due Process Clause of the Fourteenth Amendment includes the idea of substantive due process, which defends rights associated with life, liberty, and property that are not explicitly mentioned in the Constitution, like the right to privacy.63 In Roe, the Court found that outlawing abortions infringes upon a pregnant woman’s right to privacy in multiple ways by forcing upon the woman “a distressful life and future” that could bring imminent, psychological harm.64
The Act rejects these ideas as a form of judicial activism and instead purports to protect the life of the fetus which, as the ACLU points out in their subsequent lawsuit, would have drastic implications on pregnant people. The ACLU emphasizes that forcing someone to continue a pregnancy against their will poses a risk to their physical, mental, and emotional health, and even their life.65 It further specifies how it is more dangerous for the people of Arkansas, which has one of the worst maternal mortality rates in the country.66 The ACLU also highlights how women from minority backgrounds disproportionately suffer from the maternal mortality crisis due to inequities in access to medical care.67 However, instead of addressing this inequity, the Act criminalizes abortion services provided by medical professionals and therefore gives rise to preventable deaths.68 The arguments by the ACLU and the clear constitutional violation of the Act led to its blockage by Judge Baker, preventing the law from being enforced until a final ruling. The final ruling should, and likely will, lead to the repeal of the Act completely.
Lawmakers and their opponents expected this, as the Act serves as a trigger law to call for the overturning of Roe v. Wade and the eventual criminalization of abortion in multiple states. However, the efficacy of this strategy is still undetermined. All trigger laws like Arkansas’ will face the same fate of unenforceability thanks to its unconstitutional violation of the precedent set by Roe v. Wade. Furthermore, even though the law directly appeals to the Supreme Court to overturn their previous ruling, the fate of this rests on the ideological leanings of the Supreme Court. The constant attack on the right to abortion that these trigger laws bring about do not effectively contribute to the overturning of Roe v. Wade. Instead, it results in the strengthening and maintenance of the constitutionality of ruling by federal judges and other legal professionals. Even though Roe v. Wade may need reaffirming, as it already gives rise to legislation in states like Arkansas which makes it incredibly difficult to receive an abortion, it is not in danger from these various trigger laws that are more an affront to the Constitution than a dismantling of our rights.
- B.A. Candidate for Communication & Culture and French & Francophone Studies, Fordham College at Rose Hill, Class of 2023. I would like to specially thank Caroline Morris and Reeve Churchill for their invaluable feedback and constant support on this Note. Thank you also to my Senior Editor, Alleyah Ally, and the rest of the Editorial Board for their edits and suggestions throughout the writing process.
- Jordan Larson, The 200-Year Fight for Abortion Access, The Cut (Jan. 17, 2017), https://www.thecut.com/2017/01/timeline-the-200-year-fight-for-abortion-access.html.
- This Note was written, edited, and published during the Spring 2022 semester, before the U.S. Supreme Court handed down a final draft decision on Dobbs v. Jackson Women’s Health Organization (2022). See Josh Gerstein & Alexander Ward, Supreme Court Has Voted to Overturn Abortion Rights, Draft Opinion Shows, Politico (May 2, 2022), https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473.
- Roe v. Wade, 410 U.S. 113 (1973).
- Oriana Gonzalez & Danielle Alberti, The Political Leanings of the Supreme Court Justices, Axios (2022), https://www.axios.com/supreme-court-justices-ideology-52ed3cad-fcff-4467-a336-8bec2e6e36d4.html.
- Leada Gore, Alabama abortion law passes: Read the bill, Al.com (May 16, 2019), https://www.al.com/news/2019/05/alabama-abortion-ban-passes-read-the-bill.html.
- Tex. S.B. 8, 93d Leg., G.S. (2021).
- A.R. Legis. Assemb. Act 309. Reg. Sess. 2021-2022 (2022).
- Bryan Pietsch, U.S. Judge Blocks Arkansas Ban on Nearly All Abortions, Washington Post (2021), https://www.washingtonpost.com/nation/2021/07/21/judge-arkansas-abortion-ban/.
- Roe, 410 U.S. at 166.
- Id. at 124.
- Id. at 117-118.
- Id. at 113.
- Id. at 120.
- U.S. Const. amend. XIV, § 1.
- Slaughter-House Cases, 83 U.S. 36 (1873).
- Due Process, LII/Legal Information Institute (2021), https://www.law.cornell.edu/wex/due_process.
- R. H. Clark, Constitutional Sources of the Penumbral Right to Privacy, 19 Vill. L. Rev. 833, 834 (1974).
- Roe, 410 U.S. at 153.
- Id. at 154.
- Id. at 162.
- Planned Parenthood v. Casey, 505 U.S. 833, 844 (1992).
- Linda Greenhouse and Reva B. Siegel, Before Roe v. Wade (2012); Casey, 505 U.S. at 845-846 (“After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed”).
- Casey, 505 U.S. at 877.
- A.R. Legis. Assemb. Act 309. Reg. Sess. 2021-2022 § 1(a)(1) (2022).
- Id. § 1(a)(6)(B).
- Id. § 1(a)(4).
- Id. § 1(a)(2); Scott v. Sandford, 60 U.S. 393 (1857).
- Id. § 1(a)(7).
- Id. § 1(a)(11).
- Id. § 1(a)(12).
- Id. § (c)(1).
- Id. § (a).
- Id. § (b).
- Little Rock Family Planning Servs. v. Jegley, 549 F. Supp. 3d 922 (E.D. Ark. 2021).
- Verified Complaint for Declaratory and Injunctive Relief at 2, Little Rock Family Planning Services et al. v. Larry Jegley et al., No. 4:21-cv-00453-KGB (E.D. Ark. May 26, 2021).
- Id. at 13.
- Id. at 13-14.
- Id. at 14.
- Id. at 4.
- Id. at 10.
- Id. at 16.
- Preliminary Injunction, Little Rock Family Planning Services et al. v. Larry Jegley et al., No. 4:21-cv-00453-KGB (E.D. Ark. June 20, 2021).
- Pietsch, supra note 9.
- A.R. Legis. Assemb. Act 309. Reg. Sess. 2021-2022 § 1(a)(12).
- Carl Hulse, Two More Republicans Back Jackson as Senate Moves Toward Confirmation, N.Y. Times (Apr. 4, 2022), https://www.nytimes.com/2022/04/04/us/politics/ketanji-brown-jackson-judiciary-committee.html. It is also important to note that justices do not always vote along their party lines.
- Pietsch, supra note 9.
- A.R. Legis. Assemb. Act 309. Reg. Sess. 2021-2022 § 1(a)(4).
- Due Process, supra note 17.
- Roe, 410 U.S. at 153.
- Verified Complaint for Declaratory and Injunctive Relief at 2, Little Rock Family Planning Services et al. v. Larry Jegley et al., No. 4:21-cv-00453-KGB (E.D. Ark. May 26, 2021).
- A.R. Legis. Assemb. Act 309. Reg. Sess. 2021-2022 § 50.
- Id. § 8