The Amy Coney Barrett Abortion Arms Race Is On

At least one state is already gearing up to give the conservative darling a chance to take down legalized abortion in the United States.
November 26, 2020, 1:23pm
In this Oct. 26, 2020, file photo Amy Coney Barrett, listens as President Donald Trump speaks before Supreme Court Justice Clarence Thomas administers the Constitutional Oath to Barrett on the South Lawn of the White House in Washington, after she was con
In this Oct. 26, 2020, file photo Amy Coney Barrett, listens as President Donald Trump speaks before Supreme Court Justice Clarence Thomas administers the Constitutional Oath to Barrett on the South Lawn of the White House in Washington, after she was confirmed by the Senate. (AP Photo/Patrick Semansky, File)

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It’s been less than a month since Amy Coney Barrett joined the Supreme Court, but at least one state is already gearing up to give the conservative darling a chance to take down legalized abortion in the United States.

An Arkansas legislator filed a bill last week that would ban almost all abortions in the state, in direct defiance of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide. And he wasn’t even subtle about it.

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“It is time for the United States Supreme Court to redress and correct the grave injustice and the crime against humanity which is being perpetuated by their decisions in Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey,” reads the bill, which was introduced by Republican state Sen. Jason Rapert and name-checked some of the other most consequential Supreme Court abortion cases. “It is the intent of this subchapter to ensure that abortion in Arkansas is abolished and protect the lives of unborn children.”

The bill would ban all abortions, except in cases where they are needed to save the life of a pregnant woman, remove an ectopic pregnancy, remove a miscarried fetus, or “save the life or preserve the health of the unborn child.” There are no exceptions for rape or incest.

If someone performs an abortion or attempts to do so, they could face fines of up to $100,000 or be imprisoned for up to a decade.

“This is the trigger,” Rapert told the Arkansas Democrat-Gazette. “This is a direct response to the 60 million-plus innocent babies who have had their lives taken.”

Barrett’s late-October ascension to the nation’s highest court hands the conservatives on the bench a comfortable 6-3 majority, and as a devout Catholic, she has repeatedly indicated that she personally does not support abortion. While she tried to stress in her Senate confirmation hearing that her personal views wouldn’t impact her judicial rulings, her broad refusal to comment on Supreme Court reproductive rights cases still raised some eyebrows. Barrett even declined to say whether Griswold v. Connecticut, the 1965 Supreme Court case that paved the way for Roe by legalizing birth control for married couples, was correctly decided.

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The Arkansas bill is likely incendiary in other ways: It draws a line between Roe and some of the Supreme Court’s most infamous, racist decisions—Dred Scott v. Sanford and Plessy v. Ferguson, where the justices decided, respectively, that Black Americans weren’t citizens and that “separate but equal” segregation was just fine. These types of comparisons are not uncommon among anti-abortion activists, who have spent decades entwining their ideology with the fight for racial equality.

So far, the Arkansas bill has just one other sponsor. But Rapert has a track record of successfully pushing for abortion restrictions: He championed a law that would ban abortions in Arkansas if and when Roe is overturned, according to the Arkansas Democrat-Gazette. Nine other states have similar “trigger laws” on the books, which would ban abortion in the event of Roe’s fall, according to the Guttmacher Institute, which tracks abortion restrictions. 

“Since 1973, 57 abortion restrictions have been enacted in Arkansas alone, making it one of the most hostile states for abortion rights in the country,” Elizabeth Nash, interim associate director of state issues for the Guttmacher Institute, told VICE News in an email. “Each new attempted restriction is part of this longstanding effort to legislate abortion out of existence and prevent pregnant people from getting care they need and deserve.”

After Justice Brett Kavanaugh was confirmed in 2018, a flurry of states moved to pass bills—since halted by court challenges—that would ban almost all abortions. Now that the conservative majority is even more entrenched, supporters of abortion rights fear that even more states will start taking a hard-line approach to dismantling abortion access. 

Since Barrett’s confirmation, legislators in at least one other state, Texas, have also introduced a bill to ban almost all abortions. Under that bill, someone who performs an abortion could be prosecuted for homicide unless the abortion was performed due to a medical emergency.

But abortion foes might not need to wait for either of these bills to become law and make their way up through the court system to the Supreme Court. Over the last several weeks, the justices have repeatedly planned to discuss whether to formally take up a case about a Mississippi abortion restriction that sought to ban the procedure after just 15 weeks of pregnancy. Although that law is not in effect, it’s a direct challenge to Roe, which legalizes abortion up until the point of fetal viability (generally dated at about 24 weeks of pregnancy). 

The justices, however, have now rescheduled their discussion of the ban seven times. It’s not clear when, or if, the justices will ever actually agree to officially take the case.