12-week abortion ban doesn't limit access, filing says

No court date set for appeal

Friday, July 25, 2014

Arkansas Attorney General Dustin McDaniel's office filed a reply brief Wednesday as part of the state's appeal on behalf of an Arkansas law banning most abortions after 12 weeks.

The brief, filed with the 8th U.S. Circuit Court of Appeals, calls on the court to reverse a lower court decision denying the state's ability to ban abortions after 12 weeks of pregnancy if a fetal heartbeat was detected. The ban had been approved in April 2013 by the state Legislature as part of Arkansas' Act 301 of 2013, though a lawsuit from Arkansas' chapter of the American Civil Liberties Union halted its implementation.

In March, U.S. District Judge Susan Webber Wright struck down a major portion of the law, finding that it unconstitutionally limited a woman's right to seek an abortion as established in 1973's Roe v. Wade case.

On April 11, the state filed a notice that it would appeal the ruling against the 12-week ban. Earlier this month, the ACLU of Arkansas, which is representing two Little Rock Family Planning Services doctors in the case, filed a brief in support of Wright's ruling.

In its reply to the ACLU brief Wednesday, the attorney general's office argued that the 12-week ban does not unfairly limit women's access to abortion before fetal viability.

"Act 301 allows for abortions in pre-viability cases up to the point of both 12 weeks' gestational age and the detection of a fetal heartbeat, which is when the vast majority of abortions occur," Assistant Attorney General Colin Jorgensen wrote in the filing.

"Act 301 neither prohibits nor regulates abortions in the first trimester. ... As medical advances have provided greater information about the developing child, the Supreme Court has recognized the need to balance the woman's right to abortion with the State's interests in protecting the life of the child and the health of the mother," Jorgensen wrote.

Aaron Sadler, a spokesman for the attorney general's office, said Thursday that the office had no further comment and that the brief speaks for itself.

Often referred to as the "fetal heartbeat" law, Act 301 would ban abortions after 12 weeks of gestation when a fetal heartbeat was detected, except in the case of pregnancies resulting from rape or incest, when pregnancy threatens the life of the woman, or the fetus had a lethal disorder. Wright cited precedent set by Roe v. Wade that a woman has the right to seek an abortion up to the point that the fetus is viable, or able to live outside the womb -- until at least 24 weeks, according to a court document referenced in her ruling.

Wright left intact two other parts of the law: a provision mandating an abdominal ultrasound for women seeking an abortion and, in the event a fetal heartbeat is detected, a requirement that a physician inform the woman in writing of the fetus' probability of being brought to term.

Reacting to the attorney general's filing, ACLU of Arkansas Executive Director Rita Sklar said she did not expect the state to succeed in getting the 12-week ban upheld.

"There are no new arguments here and our case is just as strong," Sklar said. "This case is based on 40 years of precedent, and it's an extreme law that we feel has no chance of survival."

Sklar said the next step for the case would be oral arguments before the appeals court in St. Louis, although dates have not been set.

Metro on 07/25/2014