The 8th Circuit strategy: How abortion foes are lining up cases to challenge Roe

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.” READ MORE