State to appeal ruling against abortion ban

Sen. Jason Rapert, R-Bigelow, speaks at a news conference Friday at the state Capitol, where he praised Attorney General Dustin McDaniel’s decision to appeal a ruling that struck down the 12-week abortion ban in the state.
Sen. Jason Rapert, R-Bigelow, speaks at a news conference Friday at the state Capitol, where he praised Attorney General Dustin McDaniel’s decision to appeal a ruling that struck down the 12-week abortion ban in the state.

Arkansas Attorney General Dustin McDaniel filed notice Friday that the state will appeal a federal judge’s March 14 ruling striking down the part of a state law passed last year that would have outlawed most abortions at or after 12 weeks of pregnancy.

In a news release issued after filing the notice, McDaniel said he agreed to appeal only after the law’s sponsor, Sen. Jason Rapert, R-Bigelow, assured him that the Arkansas State Medical Board, the named defendant in a lawsuit challenging the law’s constitutionality, won’t have to pay the litigation costs.

Meanwhile, Holly Dickson, attorney for the Arkansas Civil Liberties Union of Little Rock, which filed the suit on behalf of two Arkansas doctors who perform abortions, said Friday that she didn’t know whether the plaintiffs would file a cross-appeal.

U.S. District Judge Susan Webber Wright’s ruling nullified one-third of the law, Act 301 of 2013, by declaring the 12-week ban “clearly unconstitutional,” but she said the two remaining parts of the law could stand on their own. One part requires women seeking an abortion in Arkansas to undergo an abdominal ultrasound before the procedure to see whether a fetal heartbeat can be detected. If a heartbeat is detected, the other part requires doctors to notify the woman in writing, along with an estimate of how likely the fetus is to survive if not aborted.

“We are going to visit with our clients now that we know what the state’s going to do,” Dickson said Friday, adding that they are “going to be making a decision soon” on whether to appeal the part of the ruling that allowed the unconstitutional section of the law to be severed from the other parts, letting the other parts to stand.

Dickson pointed out that the U.S. Supreme Court recently refused to hear an appeal from the state of Arizona that sought to revive a 2012 state law that prohibited most abortions at or after 20 weeks of pregnancy.

“If they denied [hearing an appeal] on the 20-week ban, they’re not likely to grant it on a 12-week ban,” she said.

The sponsors of the Arizona law argued that fetuses can feel pain at 20 weeks - a claim that has been disputed by major medical groups. A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco declared in May that the law was unconstitutional, citing a line of U.S. Supreme Court precedents beginning with the 1973 Roe v. Wade decision that established a woman’s constitutional right to end a pregnancy before a fetus is viable, or able to live independently outside the womb. The age of viability is generally considered to be at 24 or 25 weeks of pregnancy.

Because of the unlikelihood that Arkansas’ appeal would be successful, McDaniel said, he spoke with Rapert “about the risks and costs associated with an appeal.”

McDaniel, whose office is tasked with defending state laws, said Rapert asked him to appeal, and “I agreed to do so as long as there would be no impact on the budget of the Arkansas State Medical Board … should the state be required to pay attorneys’ fees to the plaintiffs. I have been personally assured by Senate President Pro Tempore-designate [Jonathan] Dismang, [R-Searcy], and House Speaker-designate [Jeremy] Gillam, [R-Judsonia], that the Medical Board budget will not be affected, and that any costs borne from this litigation will be paid through a separate appropriation.”

As a result, he said, “the notice of appeal was filed today and this office will diligently litigate this matter to its conclusion.”

In Wright’s ruling last month, she explained her decision to keep the heartbeat testing and disclosure provisions intact by saying, “The state, from the inception of a pregnancy, maintains its own interest in protecting the life of a fetus that may become a child, and the Supreme Court has recognized that the disclosure of truthful information about fetal development is relevant to a woman’s decision-making process and is rationally related to the state’s interest in protecting the unborn.”

Both sides claimed victory, with the ACLU saying the 12-week provision was “the most serious part” of the law, and Rapert applauding the upholding of the ultrasound and notification provisions. He said they create an opportunity for a woman to“think again” before having an abortion and to “realize that the child has a heartbeat, just like the mother has a heartbeat.”

Along with the New York based Center for Reproductive Rights, the ACLU brought the suit on behalf of Jerry Louis Edwards and Tom Tvedten, physicians in Little Rock who perform abortions and who faced revocation of their medical licenses if they performed abortions at or after 12 weeks of pregnancy, in violation of the law.

The law would have taken effect on Aug. 16, 2013, if Wright hadn’t issued a preliminary injunction on May 17 of that year, preventing the state from enforcing the ban. She made that injunction permanent in her March ruling.

Also known as the Arkansas Human Heartbeat Protection Act, the law prohibited a doctor from performing an abortion if a fetal heartbeat was detected, unless the pregnancy was the result of rape or incest, or the abortion was necessary to save the mother’s life, or if a lethal fetal disorder was diagnosed.

In a March 27 motion, the plaintiffs asked that Wright order the state to pay their legal fees of $76,560 and related costs totaling $3,445.45. In a response dated Wednesday, Assistant Attorney General Colin Jorgensen, on behalf of the state Medical Board, noted that the plaintiffs only prevailed on one part of their lawsuit, and asked that Wright reduce the fee request to $24,075. It didn’t object to the costs request.

Information for this article was contributed by Sean Beherec of the Arkansas Democrat-Gazette.

Front Section, Pages 1 on 04/12/2014

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