Abortion-law foes file arguments

Plaintiffs: 12-week-ban issues are pure law, no trial needed

The plaintiffs in a federal lawsuit challenging a 2013 state law outlawing most abortions after 12 weeks of pregnancy filed their legal arguments Friday asking for the case to be decided in their favor without a trial.

“The issues in this case are pure matters of law,” Little Rock attorney Bettina Brownstein wrote on behalf of two Little Rock abortion doctors who filed the suit with the American Civil Liberties Union and the Center for Reproductive Rights.

Judges may decide purely legal issues by issuing a summary judgment, but any factual disputes must be decided by a jury.

Brownstein emphasized throughout her pleadings Friday that the plaintiffs believe the entire law - Act 301 - should be outlawed.

That was a response to U.S. District Judge Susan Webber Wright’s remarks in May, upon finding the 12-week ban unconstitutional and issuing an injunction to prohibit the state from enforcing the ban, that she saw no reason why the other two parts of the law couldn’t remain intact unless she was convinced that the unconstitutional part cannot be severed from the other sections.

The law requires any woman who is at least 12 weeks pregnant and is seeking an abortion to undergo an abdominal ultrasound to see if doctors can detect a fetal heartbeat. If a heartbeat is detected, an abortion cannot be performed unless the pregnancy is the result of rape or incest, the abortion is necessary to save the mother’s life or the child faces a highly lethal fetal disorder.

Also, if a heartbeat is detected, the doctor must tell the woman in writing both the results of the heartbeat test and the statistical probability of bringing the fetus to full term.

Those latter components, Wright said, “might make some people think twice” about having an abortion, which doesn’t seem like an undue burden or bad public policy. But she said the absence of a severability clause in the new law made it a “close question” about whether the entire law must fall if one part was found unconstitutional.

The plaintiffs argued that the act “serves a single purpose, and each of its provisions is interrelated and dependent upon the others,” which means the unconstitutional ban “may not be severed from the other provisions. As a result, the Court should enter a permanent injunction against the entire Act.”

The law, passed this spring by the state Legislature, was scheduled to take effect Aug. 16, until Wright issued the injunction May 17 prohibiting the state from enforcing it, at least until she hears the merits of the suit in a trial scheduled for next year.

Brownstein argued that since the U.S. Supreme Court’s 1973 decision in Roe v. Wade that a woman cannot be denied an abortion before a fetus is considered viable, or able to live independently outside the womb, “not a single ban on previability abortion care has survived a constitutional challenge - and that is true whether the ban applied at zero weeks, 12 weeks or 20 weeks.”

In June, the state attorney general’s office, which is tasked with defending the law, asked Wright to allow the state to enforce the two portions of the law that haven’t been deemed unconstitutional. The state argued that the informed consent provisions of the act don’t have the effect of placing a substantial obstacle in the path of a woman seeking a previability abortion and that they also further the state’s legitimate interests.

Arkansas, Pages 15 on 07/20/2013

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