The U.S. Supreme Court’s decision Tuesday not to take up an interim appeal of a ruling that allows an Arkansas anti-abortion law to take effect is not the final word on the case, legal experts have taken pains to point out.

But …. this analysis by Think Progress, a liberal organization that supports a woman’s right to choose, explains how the case is nonetheless very important and ominous in a broad context. It will encourage judges in lower courts — becoming increasingly anti-choice in the Trump era — to find ways around what has been Supreme Court precedent upholding a woman’s right to choose.

Advertisement

Will the U.S. Supreme Court really, ultimately, condone an outcome that bans a safe abortion procedure in Arkansas while leaving in place only a single surgical abortion provider that the legislature is trying to harass out of business with other regulations? The answer ultimately could boil down to Justice Anthony Kennedy’s retirement.

About Tuesday’s decision in the so-called Jegley case in Arkansas, Think Progress wrote:

Advertisement

As a general rule, it is important to not over-read the significance of the Court’s decision not to hear a case. Often, the justices may turn aside a case for idiosyncratic reasons that have little to do with the merits of the case itself.

In the abortion context, however, anti-abortion lower court judges have a long history of reading the Supreme Court’s precedents creatively in order to limit reproductive freedom. The Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt was widely viewed as the justices’ way of signaling to these lower court judges that they went too far.

Viewed in light of this history, anti-abortion judges are likely to read the Court’s non-decision in Jegley as a signal that they can once again start playing games. Meanwhile, Donald Trump is filling the federal bench with judges who oppose Roe v. Wade. The result is likely to be a quiet rollback of abortion rights as Trump’s judges and their allies feel out just how much leeway the Supreme Court is willing to give them.

So, regardless of what the Court intended to accomplish by turning away Jegley, the practical effect is likely to be serious restrictions on the right to choose.