An attorney for the state said Friday that two parts of Arkansas’ newest abortion law should remain in effect despite a federal judge’s declaration that a third part of the law, which bans most abortions after 12 weeks of pregnancy, is clearly unconstitutional.
Assistant Attorney General Colin Jorgensen asked U.S. District Judge Susan Webber Wright in an 18-page filing to issue an order validating the remaining parts of Act 301 of 2013 based on legal arguments alone, without submitting the case to a jury.
Wright issued a preliminary injunction May 17 that prohibited the state from enforcing the law, which was otherwise scheduled to go into effect Aug. 16, at least until she hears the merits of the case. A trial is tentatively scheduled for 2014.
At the time, Wright said the section banning most abortions for women who areat least 12 weeks pregnant is unconstitutional because the landmark 1973 U.S. Supreme Court ruling Roe v. Wade and other cases decided since then have established that a woman cannot be denied an abortion before the fetus is considered viable, or able to live independently outside the womb.
Viability is impossible at 12 weeks of gestation, said the plaintiffs - two abortion doctors, the American Civil Liberties Union and the New York-based Center for Reproductive Rights. Arkansas has for years considered a fetus capable of viability at or after 25 weeks of pregnancy, which is in line with other states’ viability determinations.
In his motion for partial summary judgment, Jorgensen elaborated on the requirements of each section of the law, in an effort to show that they aren’t “interrelated with or dependent upon” each other.
The law requires anywoman who is at least 12 weeks pregnant and 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, if the abortion is necessary to save the woman’s life, or if the child faces a highly lethal fetal disorder.
“The first operative provision, the abdominal ultrasound test for a fetal heartbeat, is completely independent from the second and third provisions,” he wrote. “Likewise, the second operative provision, the informational disclosures, is completely independent from the third operative provision.Neither of the informed consent provisions is interrelated with or dependent upon the twelve-week regulation in Section 1304,” the section that Wright has already said is unconstitutional.
“Act 301 is perfectly coherent even when read without Section 1304,” Jorgensen wrote, noting that without the 12-week-limit section, “Act 301 plainly requires the gathering and disclosure of information to pregnant women to aid their decision, which is a legitimate legislative purpose. Moreover, the nature of the information disclosed to pregnant women when a fetal heartbeat is detected (the presence of a fetal heartbeat and the likelihood of successfully carrying to term) encourages women to choose to carry fetuses to term rather than choose abortion, which furthers the state’s compelling interest in protecting the life of the fetus.”
His filing was a response to the plaintiffs’ brief filed aweek earlier asking that the entire law be outlawed, arguing that the act “serves a single purpose, and each of its provisions is interrelated and dependent upon the others,” so that the parts are not severable from each other.
Northwest Arkansas, Pages 8 on 07/29/2013