A federal judge on Friday permanently struck down part of a 2013 state law outlawing most abortions at or after 12 weeks of pregnancy but left intact other parts of the law requiring abortion candidates to have an abdominal ultrasound and be told the medical probability of the fetus’ survival if brought to term.
U.S. District Judge Susan Webber Wright’s ruling on the 12-week issue was expected, in keeping with a preliminary injunction she issued May 17 enjoining the state from enforcing the “clearly unconstitutional” ban. She said it contradicted the law of the land stemming from the 1973 Roe v. Wade ruling that establishes a woman’s right to obtain an abortion until the fetus is viable, or capable of living independently outside the womb.
At the same time, Wright had left open the possibility that other sections of the law could stand on their own, even if the unconstitutional part fell. She asked attorneys on both sides of a lawsuit brought by two doctors who perform abortions to address the severability issue in written briefs, leading to Friday’s 17-page writ-ten order.
The sections of Act 301 of 2013 that Wright’s ruling declared intact and enforceable require women seeking an abortion in Arkansas to undergo an abdominal ultrasound to check for a fetal heartbeat, and, if a heartbeat is detected, require a physician to inform the woman in writing of that fact and give her a statistical probability for bringing the fetus to term if it isn’t aborted.
Explaining her decision to keep the heartbeat testing and disclosure requirements intact, Wright said in her order, “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.”
Parties on both sides of the case claimed victory on Friday.
The Arkansas branch of the American Civil Liberties Union emphasized the judge’s order striking down of the 12-week provision, “the most serious part of this law,” as well as a provision that subjected doctors who perform pre-viability abortions to having their medical licenses revoked.
“We’re pleased to see her order, but we have concerns about their ability to do indirectly what they can’t do directly,” said Holly Dickson,staff attorney for the Arkansas branch of the ACLU, referring to legislators and the new regulations now in effect. “They try to regulate away what they can’t outright ban.”
On the other side, state Sen. Jason Rapert, R-Bigelow, the lead sponsor of the legislation, said Friday evening, shortly after learning of Wright’s late afternoon ruling, that he was overjoyed that she left the ultrasound and notification sections intact because he believes they will lead to fewer abortions in Arkansas.
Those requirements, he said, create an opportunity for the woman to “think again” before going through with the procedure, and to “realize that the child has a heartbeat, just like the mother has a heartbeat.”
Women seeking an abortion will, he said, “have the opportunity to decide, do they really want to take away the life of a human being? They will at least know that this is a living human being with a heartbeat in their womb.”
Aaron Sadler, spokesman for Attorney General Dustin McDaniel, said Friday, “Given the judge’s ruling last May regarding the preliminary injunction, today’s decision was not a surprise. We are currently reviewing the decision and have not yet decided on our next steps.”
Rapert said he and other supporters of the legislation “are discussing at this time” whether to appeal Wright’s ruling on the 12-week ban to the 8th U.S. Circuit Court of Appeals in St. Louis.
Dickson said attorneys for the ACLU “will have to visit with our clients to let them decide how to proceed.” But she noted, “If the state appeals the ruling, we’re much more likely to cross-appeal” on the question of whether any sections of the law can stand if part of it is deemed unconstitutional.
The ACLU and the New York-based Center for Reproductive Rights brought the lawsuit on behalf of two Little Rock doctors who perform abortions, Jerry Louis Edwards and Tom Tvedten. The lawsuit complained about a section of the law that required revocation of the medical licenses of any physician who performed an abortion in violation of the law.
The law, officially known as the Arkansas Human Heartbeat Protection Act, prohibited a doctor from performing an abortion if a fetal heartbeat was detected unless the pregnancy was the result of rape or incest, the abortion was necessary to save the life of the mother or in response to a medical emergency with the mother, or if the child faced a lethal fetal disorder.
Both Dickson and Rapert noted that Act 301 was one of the strictest abortion laws passed recently by state legislatures. Though Gov. Mike Beebe vetoed the legislation, legislators overrode his veto in March 2013. The law would have gone into effect automatically on Aug. 16, 2013, if not for the injunction.
“This was one of the most extreme laws passed around the country this year by lawmakers dead-set on taking away a woman’s ability to make the best medical decision for herself and her family,” said Talcott Camp, deputy director of the ACLU Reproductive Freedom Project, in a news release issued Friday evening. “We must ensure that this personal medical decision remains where it belongs: not with elected officials, but with a woman, her family, and her doctor.”
Rapert called Act 301 “the strongest pro-life bill to become law in the United States” until North Dakota passed legislation a month later prohibiting many abortions at six weeks of gestation - a law which was also immediately challenged and deemed unconstitutional.
He said he will do all he can to ensure that the state is properly represented during any appeals, noting as he did last year that a nonprofit, anti-abortion legal group named Liberty Counsel has offered to help the state defend the law.
“That agreement still stands,” he said. “They’d be more than happy to defend the Heartbeat Protection Act all the way to the U.S. Supreme Court.”
Front Section, Pages 1 on 03/15/2014