Is it legal or appropriate to enact a state law that is expressly illegal under federal case law?
I had occasion to ask that the other day of Gov. Asa Hutchinson. I was interviewing him for a forthcoming annual piece I write on the Arkansas political condition for Talk Business and Politics.
Did the governor's being a lawyer give him pause regarding the conservative plan in the forthcoming legislative session to pass a bill simply presuming to outlaw abortion in the state altogether except to save the life of the mother, no matter that Roe v. Wade and Planned Parenthood v. Casey establishing the right to choose abortion remain the law of the land?
This bill, sponsored by Sen. Jason Rapert of Conway and Rep. Mary Bentley of Perryville, dispenses with the relentless marginal assault on the edges of the right to abortion--with time and other restrictions, even a law saying abortion becomes illegal in Arkansas the minute the U.S. Supreme Court removes the federal right.
This bill, Senate Bill 6, simply says a flat-out no to federal law. It tells Roe and Wade that they have no place in Arkansas.
Hutchinson told me his short answer was no, meaning he had no qualm about any such bill becoming state law.
He said there is nothing wrong with trying to undo federal case law. He said legal advocates changed civil-rights case law by a method endorsed by no less than the iconic Thurgood Marshall to find the right case at the right time to implement the right strategy to produce the desired outcome.
He's right that the separate-
but-equal racial segregation of schools of Plessy v. Ferguson would still be in effect if no case had arisen to make transcendent federal case law in Brown v. Board of Education.
Just to be clear: Hutchinson was likening the cause of abortion restriction against women to the cause of equal opportunities for persons regardless of skin color.
I will tell you what is going to happen at the Capitol this winter on Senate Bill 6. And I will tell you what conceivably could happen beyond that.
The American Civil Liberties Union and the dozen or so liberal legislators from Little Rock and Fayetteville will cry that the bill is unconstitutional and will be struck down and the state will have wasted money to defend such folly.
The four-fifths extreme right-wing Arkansas General Assembly will scoff and pass the bill at warp speed. Hutchinson will sign it.
The ACLU and others will promptly proceed to federal district court in Little Rock and win, securing an injunction against the imposition of the law. The state, through its attorney general, will appeal to the 8th U.S. Circuit Court of Appeals, which, being conservative but not being the Supreme Court, presumably would enforce the extant law of Roe v. Wade and Planned Parenthood v. Casey and strike down the intentional state breaking of it.
Then, perhaps, the new Trumpian U.S. Supreme Court, now 6-to-3 Republican-nominated, would accept the Arkansas appeal, overjoying Arkansas conservatives by bestowing on them the historic opportunity to save unborn children, or remove women's rights, depending on how one sees the issue.
Then the U.S. Supreme Court might uphold the Arkansas law and undo Roe v. Wade. Or, Chief Justice John Roberts and one other conservative might find some incremental convolution by which it would do less than that.
Please understand that Arkansas would not be the first state to presume to violate Roe v. Wade entirely in this way. Thus, there's no guarantee Arkansas' lawbreaking would be the eventual Supreme Court case. A ham-fisted full violation might not be the case that Justice Amy Coney Barrett and the rest would desire.
Alabama will always lead in legally suspect conservatism; its ban pends in the federal court system. South Dakota's legislature has twice voted for such an outright ban only to have Planned Parenthood get a public referendum called that repealed the ban, not so much to embrace abortion but to acknowledge that there can be tragic circumstances arising recommending the abortion option beyond saving the life of the mother.
Most likely, overturning Roe v. Wade would simply remove the state obligation to provide the right to abortion, but leave the issue to the choice of states. In that case, Arkansas would already have a trigger law on the books outlawing abortion, a position surely to be shared with surrounding states.
That would mean that Arkansas women seeking abortions would require travel budgets or long-range transportation services, neither currently available to poor women. Illinois might be the closest option.
The surest item in the scenario is that this Legislature will pass the bill, unless the surest thing is that the bill will be sued promptly upon passage.
Actually, though, the surest thing is that raw emotions will rage, as they should.
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John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at [email protected]. Read his @johnbrummett Twitter feed.