LITTLE ROCK — Arkansas’ new ban on most abortions after 12 weeks is considered the strictest in the nation, and national groups are lining up to either sue or help the state defend the ban.
Arkansas approved two abortion restrictions in the past two weeks. One bans almost all abortions 20 weeks post-conception. The other bans most abortions after 12weeks of gestation, which is calculated from the first day of the woman’s last menstrual cycle.
About a dozen other states have passed laws banning abortions at 20 weeks, and several of those laws are being contested in federal court.
Until Wednesday, no other state legislature had passed an abortion ban as restrictive as 12 weeks.
Senate Bill 134 by Sen.Jason Rapert, R-Bigelow, became Act 301 of 2013 after the Legislature overrode Gov. Mike Beebe’s veto. Beebe vetoed the bill over concerns that it was contrary to 40 years of U.S. Supreme Court precedent.
Act 301 requires a woman seeking an abortion after 12 weeks of pregnancy to get an abdominal ultrasound to determine whether the fetus has a heartbeat. If a heart beat is detected, the woman cannot end the pregnancy except under a few circumstances.
The law allows abortions to save the life of the mother, in cases of rape or incest, if a mother faces a catastrophic health emergency, or when the fetus has a “highly lethal fetal disorder” and likely won’t survive long after birth.
While the bill became law immediately, the law does not go into effect until 90 days after the session ends, which will be either later this month or in mid-April.
Of the 4,033 abortions that occurred in Arkansas in 2011, 815 were at or after 12 weeks, according to the state Department of Health.
North Dakota is considering a similar abortion ban once a heartbeat can be detected. Ohio’s Legislature considered but did not pass a fetal-heartbeat bill last year.
More than 20 states require abortion providers to first do ultrasounds, according to the New York-based reproductive health advocacy group, the Guttmacher Institute. But Arkansas is the only state that bans abortion if the ultrasound finds a heartbeat.
According to the institute, five states require that a woman have the opportunity to view an ultrasound; nine states require that a woman have that opportunity if the doctor performs an ultrasound; six states require a provider to perform an ultrasound and offer to let the woman see it; and two states require the provider to show the image and describe it.
LEGAL CHALLENGE?
Since the 12-week ban was first discussed in committee, American Civil Liberties Union attorney Bettina Brownstein warned legislators to expect a lawsuit if the ban passed.
“You might as well write a check to the ACLU and Planned Parenthood because we will feel the necessity to go to court to protect the rights of women. I can guarantee that if passed into law, it will be overturned, and it will be expensive for the state of Arkansas,” she told the Senate Public Health, Welfare and Labor Committee on Jan. 30.
Brownstein said the Supreme Court’s 1973 decision in Roe v. Wade and its 1992 decision in Planned Parenthood v. Casey have been very clear: States cannot substantially ban abortion before the fetus is viable. Arkansas code defines viability as 25 weeks into pregnancy and bans most abortions at that point.
Brownstein said a federal challenge to the new law is coming within weeks. She said the ACLU is most worried about the 12-week ban because of how many women it will potentially affect.
“We’re concentrating on the 12-week. That’s where our efforts are right now,” she said. “Stay tuned.”
Arkansas Attorney General Dustin McDaniel, a Democrat, said last week that he has tried to be candid about the legal challenges the new laws may face.
“We’ve notified the sponsors of legislation that certainly is likely to be challenged. We’ll be there to defend them,” Mc-Daniel said. “Obviously that’s my job, and we’re prepared to do that when litigation comes.”
Joining the ACLU will be the Center for Reproductive Rights, a New York-based advocacy group that has filed court challenges against abortion restrictions in other states, said Stephanie Toti, the center’s senior staff attorney.
Toti said the center is getting involved because the law is a “blatantly unconstitutional attempt to turn the clock back on reproductive rights by 40 years” and the “most extreme abortion ban in the nation.”
Rapert said he didn’t file the bill to test the U.S.
Supreme Court’s 1973 Roe v. Wade decision.
“My sincere hope is that anyone that has any feelings for human life would see no reason to oppose this legislation, however if that’s what they do, this state has spoken,” he said. “It’s time to stand up for life, and I will personally move heaven and earth if I have to to make sure that a competent and fully funded legal team is there.”
He said several groups and lawyers have said they will help the state defendthe law, including Liberty Counsel, a nonprofit, antiabortion legal group.
That group’s chairman, Mathew Staver, said it will provide resources or other assistance to the state.
“We’re ready and willing to play any role we can,” he said.
He said the law tries to address something new.
“For too long we have ignored the rights of the unborn child,” Staver said. He said his group “believes that [Arkansas’] law strikes the proper balance” between the mother’s rights and the fetus’s rights.
The abortion bill’s House sponsor, Rep. Ann Clemmer, R-Benton, mentioned that balance in her speech tolawmakers Wednesday. She said the law shows “that life is to be protected, not only by a third party, but from the mother herself.” 20-WEEK BAN
Multiple lawsuits challenging bans at 20 weeks have been filed in other states, and the ACLU of Arkansas has said it is waiting for results from those cases before challenging Arkansas’ law.
The Arkansas Legislature overrode Beebe’s veto of House Bill 1037 by Rep. Andy Mayberry, R-Hensley, which bans most abortions after 20 weeks of pregnancy. Beebe said the measure was unconstitutional. That new law includes no exception for when the fetus has little chance of surviving outside the womb.
It is now Act 171. It went into effect immediately.
Of the 4,033 abortions in Arkansas in 2011, 48 took place at or after 20 weeks, according to the Department of Health.
On Wednesday, a federal judge struck down an Idaho 20-week law that is so similar to Arkansas’ that entire passages are the same.
U.S. District Court for the District of Idaho Judge B. Lynn Winmill wrote in his opinion, “The state may not rely on its interest in the potential life of the fetus to place a substantial obstacle to abortion before viability in women’s paths.”
Brownstein said the decision changes nothing from her perspective.
“Every verdict that strikes down a 20-week ban helps. We’re delighted,” Brownstein said. “Sanity, there’s sanity again. Somebody respects the rule of law, somebody respects the U.S. Supreme Court’s opinions.”
Mayberry said the decision disappointed him.
“Any time a similar bill to this one, or a similar law, if a court finds it unconstitutional I’m not pleased with that,” he said.
McDaniel said the ruling shouldn’t affect how Arkansas defends the law.
“I’m sure it will be cited heavily by those who challenge the act. It doesn’t change how the state would go about trying to defend acts of the General Assembly,” he said.
The 9th U.S. Circuit Court of Appeals has deliberated since a federal judge in November upheld Arizona’s 20-week ban. That law has been stayed until the court reaches a decision.
Mayberry said differing decisions means it could be years before the issue is resolved. Arkansas is in the 8th U.S. Circuit Court of Appeals.
“I’m sure that this will continue to play on out in the court system for quite some time,” he said.
Front Section, Pages 1 on 03/10/2013