JUDGE BOBBY SHEPHERD: He continues to throw up roadblocks to abortion rights.

Led by an Arkansas judge, the 8th Circuit U.S. Court of Appeals this week sent another ominous signal about the future of Roe v. Wade and the availability of abortion in Arkansas.

Think Progress recounts here a decision by a three-judge panel led by Judge Bobby Shepherd of El Dorado that defied U.S. Supreme Court precedent in overturning a lower court’s injunction in what is known as the Hawley case against a Missouri law that sets difficult facilities rules for surgical abortion clinics and also requires clinic doctors to have hospital privileges at a nearby hospital


The U.S. Supreme Court struck down a virtually identical Texas law as an undue burden on women’s access to abortion. But the Missouri law has a waiver clause, enough for Shepherd to say a challenge of the law isn’t ripe until a waiver is sought and refused. More problematic is the requirement for admitting privileges at a nearby hospital, a requirement ruled unconstitutional in the Hellerstedt case in Texas.

And yet, the panel of three Republican judges all conclude that this provision may stand, at least for now. Judge Shepherd claims this result is justified because “Hellerstedt did not find, as a matter of law, that abortion was inherently safe or that provisions similar to the laws it considered would never be constitutional.” The Supreme Court’s opinion in Hellerstedt determined that abortion was very safe in the state of Texas, but “no such determination about abortion in Missouri was made here.”

It is unclear why, exactly, Shepherd believes that the relative safety of abortion in Texas is likely to be different than that in Missouri. Perhaps Shepherd believes that the human uterus is shaped differently in the state of Texas? Or that Texas doctors receive vastly different medical training than doctors in Missouri?

In any event, the practical impact of Hawley is that abortion clinics must prove anew that requiring abortion doctors to maintain difficult-to-obtain credentials is an undue burden on the right to an abortion. And that they must do so despite the fact that, in Hellerstedt, the lawyer representing Texas was not able to identify “a single instance in which the new requirement would have helped even one woman obtain better treatment.”

This is reminiscent of the proof the 8th Circuit has demanded of an undue burdens on women if it shuts down Planned Parenthood medication abortion services in Little Rock and Fayetteville, leaving only the availability of clinical abortions at a single Arkansas provider in Little Rock. It has demanded numbers and proof of disadvantage. It’s clear to all but the ideologues on the 8th Circuit that the distances women must travel multiple times to get a clinical rather than medication abortion  under already onerous anti-abortion law in the state are unduly burdensome. That’s why the laws were passed: to bring a de facto end to abortion while Roe v. Wade continues to seem to guarantee that abortion remains legal. Only the attorney general of Arkansas would argue the laws are about women’s health.


The 8th Circuit, where all but one judge is a Republican appointee, has become the fiercest foe of women’s medical rights among the circuits.

Think Progress concludes:


.. while Hawley is impossible to square with Hellerstedt, it is likely that Shepherd and his colleagues will get away with their open rebellion against the rule requiring lower court judges to obey Supreme Court decisions.

For the moment, the Supreme Court is split evenly between four pro-choice Democrats and four Republicans who oppose abortion. It takes five justices to reverse Shepherd’s decision in Hawley.

Moreover, in the likely event that Judge Brett Kavanaugh is confirmed to replace retired Justice Anthony Kennedy, the Supreme Court will almost certainly kill what remains of Roe v. Wade. Kavanaugh’s speeches, judicial record, and confirmation hearing testimony leave no doubt that he opposes the right to an abortion.