The 8th Circuit strategy: How abortion foes are lining up cases to challenge Roe
When the Supreme Court declined to hear a challenge to an Arkansas law effectively banning medication abortions (the “abortion pill”), it sent the case back to the Eighth Circuit Court of Appeals.
When a challenge to Iowa’s newly adopted six-week abortion cutoff makes its way through the federal system, it will likely be heard by that same Eighth Circuit Court of Appeals.
There are also cases involving two Missouri abortion laws pending before the Eighth Circuit, as well as two more from Arkansas and one more from Iowa.
This is not coincidence.
The composition of the Eighth Circuit is the most politically one-sided of the 13 federal appellate circuit courts in the country — with 10 judges appointed by Republican presidents (three of those by Donald Trump) and one by a Democrat. It is also considered one of the most conservative. The Eighth Circuit hears appeals from seven heartland states: Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota. Legislators and lobbyists in those states have been crafting particularly restrictive abortion legislation as part of a strategy to overturn Roe v. Wade, hoping to provoke a challenge that will win a favorable ruling from the Eighth Circuit on the way to the Supreme Court.
“What we’re seeing is the endgame of a 30-to-40-year strategy,” says Daniel Goldberg, the legal director of the Alliance for Justice, which monitors appointments to the federal judiciary, for what it sees as lapses in standards and fairness. “It’s no accident that legislators in the states covered by the Eighth Circuit are feeling empowered. This was the plan, and with the help of some recent fortuitous happenings, there is evidence it is working.”
Agrees Leslie McGorman, the deputy policy director for NARAL, which aims to protect abortion rights: “It has been the long-term strategy of conservatives writ large to remake the courts in their image, and specifically to overturn the right to abortion. But while we have been aware of the strategy for a long time, I don’t think anyone expected the magnitude of what we are seeing right now.”
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The justices of the Supreme Court of the United States have the final word on any case they take. But they only take around 80 cases a year, meaning that much case law is made by the circuit courts, which among them hear upwards of 7,000 cases a year.
“The limited docket of the Supreme Court means circuit court judges have a tremendous influence on people’s lives,” says Harsh Voruganti, a practicing attorney in Arlington, Va., and the founder of the website the Vetting Room, which posts what it describes as nonideological, apolitical summaries of each candidate for a federal judgeship. “Given the power and influence (those courts) have, it’s a shame the average citizen isn’t aware of what’s going on.”
Time was when the Eighth was known as a progressive court. Harry Blackmun of Minnesota sat on its bench before being appointed to the Supreme Court (by Richard Nixon) in 1970, where he went on to author the Roe v. Wade decision that legalized abortion nationwide.
In more recent years, however, the court has moved to the right. By the time Barack Obama took office, there were but two Clinton appointees left alongside seven appointed by George W. Bush, and the rest by George H.W. Bush and Ronald Reagan. The party of the president who appoints a judge is far from a perfect predictor of how that judge will rule, but it is seen as “a crude measure,” says Carl W. Tobias, a professor of constitutional law at the University of Richmond and an expert on the federal court system. And this particular group of mostly Republican appointees had a reputation for being both conservative (second only perhaps to the Fifth Circuit in Texas) and somewhat maverick.
In July 2015, for instance, the Eighth Circuit ruled on a North Dakota “fetal heartbeat” law, which banned abortions after a heartbeat is detected, which for many women is before they know they are pregnant. Circuit court cases are heard by a panel of three judges, and the panel that heard the fetal heartbeat law ruled it unconstitutional, citing the Supreme Court’s ruling in Roe v. Wade that women have the right to abortion up to the point of fetal “viability,” or survival outside the womb, which is now considered about 24 weeks.
But while making that expected ruling, two of the three deciding judges spent five of the 14 pages of their opinion criticizing Roe. The Supreme Court should “re-evaluate its jurisprudence,” they wrote, asserting that the “choice” of how far into a pregnancy to prohibit abortion “is better left to the states which might find their interest in protecting unborn children better served by a more consistent and certain marker than viability.” Fetal heartbeat would be one logical marker, they said, a direct refutation of Roe.
It was arguably a political statement, and it came at a time when the whole of the judicial appointment process was becoming more overtly political. During the last two years of the Obama administration, for instance, the Republican majority in the Senate dramatically slowed the confirmation of that president’s nominees. What got the most attention was the Senate’s refusal to consider Obama’s nomination of Merrick Garland to fill the Supreme Court seat left empty when Antonin Scalia died, but there were similar skirmishes over lower level judgeships. In eight years, 55 Obama nominees were seated on the Federal Courts of Appeal. In just the first year of the Trump administration the Senate approved 21 nominations to the circuit courts.
One of Obama’s successful appointments was to the Eighth Circuit — Jane L. Kelly of Iowa in 2013. But two years later, when Obama appointed Jennifer Puhl to the seat being vacated by Diana Murphy, the only other woman on the Eighth Circuit, Senate Majority leader Mitch McConnell did not allow Puhl’s name to be brought to the full Senate for a vote, despite unanimous approval from the Senate Judiciary Committee.
That seat was still open when Trump took office (as were 140 more federal judgeships.) Then two more Eighth Circuit judges resigned, leaving three seats for the new administration to fill.
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The Arkansas law effectively banning medical abortions predates the most recent Republican tilt on the Eighth Circuit. But the Arkansas legislature was already a decidedly conservative one by 2015 when it voted to prohibit any clinic in that state from providing the two pills used to induce early abortions, unless the clinic had a contract with a doctor with hospital admitting privileges.
Planned Parenthood sought an injunction against the law in U.S. District Court, saying that it had contacted every doctor in the state and none would agree to serve in such a role. The result would be to close two of the three existing Arkansas clinics – the two that offered only medication abortions — effectively leaving surgical abortion at the remaining clinic in Little Rock as the only option for Arkansas women, a situation the plaintiffs described as an undue burden. (In the 1992 case Planned Parenthood v. Casey, the Supreme Court established the “undue burden” standard to evaluate the restrictions states might place on abortion.) The District Court judge granted the injunction, agreeing that the new restrictions were not medically necessary.
The district attorneys of two Arkansas counties appealed that decision to the Eighth Circuit, where a three-judge panel unanimously vacated the injunction. Their opinion held that the District Court judge had failed to enumerate how many women would be harmed by the requirement. In other words, the Eighth Circuit ruled that the restrictions were constitutional.
The next stop was the Supreme Court. By this time, though, that court had already ruled on a seemingly similar case. In June 2016, in Whole Women’s Health v. Hellerstedt, the justices struck down a Texas law that would have required, among other things, that abortion clinic doctors have hospital admitting privileges.
Legal observers say that on its face, the decision in that case should have applied to the Arkansas law as well. By siding with the plaintiffs in Arkansas, the Eighth Circuit, in coordination with the Arkansas legislature, appeared to be engaged in some legal gamesmanship.
“The anti-abortion strategy is to serve up a diet of far-fetched cases,” wrote former journalist Linda Greenhouse who now teaches at Yale Law School and writes books about the Supreme Court. In a New York Times op-ed days before the Supreme Court was expected to decide whether to hear the Arkansas case, she called the Eighth Circuit’s decision a “bold act of judicial defiance” in that it refused “to apply the Supreme Court’s most recent abortion precedent to a situation that is all but indistinguishable.”
“The law is phony,” she continued, of the Arkansas restrictions. “It’s unconstitutional. It’s the Supreme Court’s next test.”
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As the Arkansas law was making its way to the Supreme Court, the Eighth Circuit was seating new judges.
The first Trump appointment to that bench was David Stras, who was nominated to replace Diana Murphy after Jennifer Puhl’s nomination had died in committee. At 43, Stras had already spent seven years on the Minnesota Supreme Court, to which he was appointed after a career that included a stint with the Washington, D.C., law firm Sidley Austin LLP, teaching at both the University of Alabama School of Law and the University of Minnesota School of Law, and clerking for Supreme Court Justice Clarence Thomas.
The first to be nominated, Stras was the last to be confirmed by the Senate mostly because that body spent months deciding whether to abandon long-standing protocol in order to get him through. For generations it was a Senate practice that a nomination to a federal court would not proceed without the blessing of both senators from the nominee’s home state, a process known as “blue slipping” because the senators literally send a blue form to the Judiciary Committee indicating their support.
Early on, however, then Sen. Al Franken refused to return his blue slip. His reasons were many. He and fellow Minnesota Democrat Amy Klobuchar had not been “meaningfully consulted” before the nomination was made, he said. In addition, he was concerned that the Federalist Society, a conservative group created to push for a more conservative judiciary, was submitting lists of acceptable jurists to the new administration, all of whom were said to have passed a so-called “litmus test” and indicating they would work to ban abortion.
Indeed Leonard Leo, vice president of the Federalist Society, had written in a Newsweek commentary that Stras was “a leading conservative intellectual” and that he and other judges appointed with the input of his group would “shape the law for two generations.” Already the society had what Franken saw as too big an influence on the Eighth Circuit; Leo had been instrumental in drawing up the list of candidates Trump would use in selecting a Supreme Court nominee, and two Eighth Circuit judges — Steven Colloton of Des Moines and Raymond W. Gruender of St Louis — were on that list. So was Stras.
Soon Franken resigned, accused of sexual harassment, and his replacement, Tina Smith, also declined to blue slip Stras. In another era that would have ended Stras’s nomination, but this is not another era. Sen. Charles Grassley, R-Iowa, chair of the Judiciary Committee, waived the blue slip rule and Stras became the first federal judge appointed to the bench over the objection of a home state senator in more than 30 years.
In his State of the Union address the night of Stras’s confirmation vote, Trump highlighted the fact that his administration had placed a record 13 federal appeals judges in its first year, noting that those judges were chosen specifically because of their conservative, strict constructionist views. They “will interpret the Constitution as written,” he said.
Next up was Ralph Erickson. A George W. Bush appointee to the U.S. District Court of North Dakota, he had a reputation as a “fair middle of the road judge,” according to the analysis prepared by the Vetting Room, “the kind of nominee Trump should nominate more often: experienced, well-respected, and judicially moderate.”
Erickson was approved with little controversy. Not so the next nominee, L. Steven Grasz.
A graduate of the University of Nebraska College of Law, Grasz spent some time on staff at an Omaha law firm and was soon appointed chief deputy attorney general for the state, where he gained a reputation as a far right conservative. He argued against the right of a woman to adopt the biological child of her lesbian partner, calling that “an end run” around Nebraska’s ban on same-sex marriage, and against allowing employees seeking accommodation for depression under the Americans with Disabilities Act, saying “it’s not a reasonable … for the state to pay them for not getting any work done.” He also refused to approve standards proposed by the Nebraska Board of Education, because “presenting evolution as a fact rather than a theory could violate students’ free exercise rights.”
But mostly he became known for his anti-abortion beliefs. While in the attorney general’s office he defended Nebraska’s late-term abortion law, which was eventually struck down by both the Eighth Circuit and the Supreme Court. After leaving that office he joined the board of the Nebraska Family Alliance, a nonprofit whose mission statement says it “exists to advance Family, Freedom and Life by influencing policy, mobilizing prayer and empowering people.” He also authored a paper urging courts to reject the Supreme Court’s viability rule, the core of Roe v. Wade, and hold that the “partially born” are protected as persons by the 14th Amendment.
Neither of Nebraska’s senators, both Republican, opposed Grasz’s nomination, so there was no blue slip controversy. But another tradition in the judicial nomination process is input by the American Bar Association on whether a nominee is qualified for the job, and that did not go smoothly.
Since the Eisenhower administration, the ABA has conducted a review of prospective federal judges, collecting data by reviewing an individual’s published work and interviewing both the nominee and dozens, or even hundreds, of his or her peers. The resulting recommendation, which is then voted on by a full ABA committee, does not factor in ideology but rather “the professional competence, integrity and judicial temperament of the nominee,” as Pamela A. Bresnahan, chair of the American Bar Association’s Standing Committee on the Federal Judiciary, testified to the Senate Judiciary Committee last fall.
“Not-qualified ratings,” she continued, are “not…a frequent event.”
Unanimous votes on not-qualified ratings are even less common, and Grasz received the first unanimous not-qualified rating since 2006 and only the second since 1989. After interviewing more than 200 people, Bresnahan testified, the ABA concluded that Grasz would not be committed to what is known as “stare decisis” – a ruling based on legal precedent rather than desired outcome. “Mr. Grasz’s professional peers expressed … the view that he would be unable to separate his role as an advocate from that of a judge,” she said.
Grasz was approved by the Senate nonetheless and took his seat on the bench in January of this year.
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Judge shopping is hardly unheard of in the American court system.
“Everyone does it,” says Voruganti. “Under Obama, all DACA cases were brought in the Brownsville division of the Southern District of Texas because Judge [Andrew S.] Hanan was considered sympathetic.”
Using sympathetic courts to get a case to the Supreme Court is also not new. During the ’50s and ’60s, Tobias notes, NAACP lawyers strategically challenged state laws in a way that eventually led to the decision in Brown v. Board of Education outlawing racial segregation in public schools.
What is new, court watchers say, is that now legislators are in effect initiating the process, passing laws so broad and draconian that they invite scrutiny by the Supreme Court, in hopes the justices will overturn a precedent.
“The theory is if they throw enough pasta at the wall something will stick,” says McGorman. “They don’t know what is going to make the Supreme Court bite, so they are trying everything they can think of.”
Ever since the ruling in Roe v. Wade in 1973, abortion opponents have sought to scale back access to abortion by imposing such restrictions as waiting periods, parental permission for minors and mandated sonograms. Since Trump took office, however, there has been a spike in the passage of such antiabortion restrictions nationwide. According to the Guttmacher Institute, which studies abortion access, 19 states passed 63 laws restricting abortion in the first year of this administration, which the institute describes as a “record” pace.
And the scope of the laws has increased as well. Rather than just nibble at the edges, as most previous legislation has done, the recent spate of laws aims to ban abortion outright. In March, Mississippi declared the procedure illegal after 15 weeks’ gestation, with no exceptions for rape, incest or the health of the mother. (That law was stayed by a U.S. district judge.) Louisiana did the same last month. (It will only take effect if the Mississippi law is eventually upheld.) In May, Iowa’s fetal heartbeat bill was signed. Pending in Ohio: nearly two dozen legislators have sponsored a ban on abortion at any time for any reason; it would hold women criminally liable, even if their lives are in danger.
Those who support all these bills see them as seizing a moment. Right now there is a president who campaigned on a pledge to appoint judges who would overturn Roe v. Wade. That president might have the chance to appoint at least one Supreme Court justice in the near future, as 81-year-old Justice Anthony Kennedy is said to be considering retirement. Justice Ruth Bader Ginsburg is 85, and Justice Stephen Breyer is 79. All three have ruled in favor of abortion access.
There is also the possibility that the midterm elections might change the makeup of some state legislatures, making them less anti-abortion. This increases the urgency of getting as many laws on the books as possible so there will be appeals already in the pipeline when and if the Supreme Court gets an anti-abortion majority.
The laws are aimed at the circuits most likely to uphold them. “There are circuits that are seen as more willing to throw precedent out the window,” McGorman said. “It’s clear that the sponsors of these bills have identified which circuits are best positioned to create a split which makes it to the Supreme Court.”
Anti-abortion strategists are forthright that this is in fact the plan. “I believe this bill will be a vehicle that will ultimately provide … the opportunity to overturn Roe v. Wade,” said Iowa state Sen. Rick Bertrand when introducing the six-week fetal heartbeat cutoff in Iowa. “There’s nothing hidden about the agenda.”
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Two weeks ago the Supreme Court refused to hear the Arkansas medical abortion case. As is procedure, when that court turns down a case, the justices gave no reason for their refusal, leaving legal scholars to speculate.
Many theorized that the pro-Roe justices are making the same calculations as the anti-abortion forces and assuming that the Supreme Court might well look different in the relatively near future. In that situation, if the court agrees to hear the case, the votes might not be there to uphold Roe by the time a decision is rendered.
“No one can know what they are thinking,” says Tobias. “But it is quite possible that turning down the case is a protective measure because those who voted in the majority in the similar Texas case are concerned they might not have five votes” to uphold Roe in the Arkansas appeal
Better, perhaps, to send the case back to the courts where there might be a different ending on a second appeals go around?
After the Supreme Court refused to take the case, Planned Parenthood applied for a temporary restraining order with the federal district court, the same one that had issued the original injunction. Because the circuit court’s objection to that injunction was that the district judge did not quantify the burden that would result from the medication ban, the next step would be for Planned Parenthood to submit additional evidence of harm and proceed back up the appeals process. Their injunction request was heard on Friday, and a decision is expected imminently.
In the interim, however, the Supreme Court’s refusal left medication abortion effectively illegal in Arkansas.
The Iowa fetal heartbeat law, in turn, might never come before the circuit court. In an unexpected move, the ACLU, which is partnering with Planned Parenthood in fighting that law, sought relief in Iowa state court because that state’s Constitution includes specific abortion protections while most others in the Eighth District do not.
Those who have spent their careers working to preserve abortion rights agree those rights are in jeopardy, but they disagree as to how far the rollback will go.
“I don’t believe we will ever see a complete reversal of Roe,” Goldberg says. “in that they will never come right out and say Roe v. Wade is no longer law. Instead, I can see death by a thousand cuts, with the (Supreme) Court not taking cases after the circuits uphold new restrictions, meaning access narrows, narrows, narrows. That’s also part of the plan, and it too is working.”
Adds McGorman: “I resist talking like a conspiracy theorist, but there is a big-picture strategy, and all of a sudden it’s worked. There was a lot at stake with that presidential election. This was one of those things.”
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