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Attorney General Leslie Rutledge's office filed additional arguments Wednesday to support the state's appeal of an injunction keeping three abortion laws from being enforced since they were scheduled to take effect 6½ months ago.

The laws are Act 493, which bans abortions after 18 weeks' gestation, except in a medical emergency or cases of rape or incest; Act 619, which prohibits abortions based solely on the likelihood of fetal Down syndrome; and Act 700, which requires abortion providers to be board-certified or board-eligible in obstetrics and gynecology. All were passed in the 2019 legislative session.

Currently, surgical abortions are available in Arkansas through 21.6 weeks of pregnancy; abortions aren't prohibited based on the reason a woman is seeking one; and any physician licensed in the state may legally perform an abortion.

In response to a lawsuit filed June 26 by the Little Rock Family Planning Clinic and Planned Parenthood challenging the laws' constitutionality, U.S. District Judge Kristine Baker temporarily blocked their enforcement on the eve of their effective date, July 24, and then extended the block with a preliminary injunction issued Aug. 6. The injunction is to remain in place until a trial can be held to determine the laws' constitutionality unless the 8th U.S. Circuit Court of Appeals in St. Louis agrees with the state's request to vacate the injunction.

The state filed a 72-page brief in defense of the laws on Oct. 29, and since then, the plaintiffs have responded by asking the appellate court to uphold the injunction. In November, 17 other states filed an amicus brief in support of the state, and several other amicus briefs have been filed in support of the plaintiffs.

The 8th Circuit has screened the case for oral arguments, but no argument date had been set as of Wednesday.

In the state's latest filing, the attorney general's office complained that the pre-enforcement injunction "prohibited Arkansas from pursuing three goals: reducing brutal, late-term abortions; outlawing discriminatory abortions that devalue people already living with Down Syndrome; and protecting women from incompetent abortion practitioners."

"To justify enjoining Arkansas's requirement that abortion practitioners be board-certified or board-eligible OBGYNs, the district court deferred to Plaintiffs -- the very practitioners from whom women need protection," the state attorneys said. "Practitioners like Plaintiffs will never realistically gauge the benefits of health-and-safety laws like the OBGYN requirement because they believe that 'abortion is safer than carrying a pregnancy to term.'"

Baker has previously ruled that abortion is generally regarded as a safe procedure.

The state argued that the plaintiffs didn't prove they are ultimately likely to succeed in their case. They said the clinics, backed by the American Civil Liberties Union of Arkansas, aren't likely to succeed "because they have not demonstrated that the 'benefits' of the challenged provisions 'are substantially outweighed by the burdens they impose on a large fraction of women.'"

In a 186-page order imposing the injunction, Baker cited extensive testimony and statistics through which she said the plaintiffs showed that the benefits of the requirement are substantially outweighed by the burdens they impose on a large fraction of abortion-seeking women in Arkansas.

The state responded that those burdens "are all self-inflicted."

Elaborating on previous arguments in support of the Down syndrome law, the state attorneys wrote, "In the United States, this pattern of discrimination has led to the abortion of about two-thirds of children diagnosed with Down Syndrome." They added, quoting an article cited in a 1995 Wisconsin case, that "these discriminatory abortions 'demean, devalue and isolate members of our society who currently live with disabilities."

In granting the preliminary injunction, Baker said Act 493, the 18-week ban, is unconstitutional on its face under controlling U.S. Supreme Court precedent. She said the plaintiffs have shown they are likely to prevail on their argument that Act 619, the Down syndrome law, unconstitutionally restricts pre-viability abortions. Viability, the point at which a fetus is likely to survive on its own outside the womb, is generally considered to be at about 24 weeks' gestation.

Baker said the plaintiffs have shown that Act 700, which imposes the OB-GYN rule, "confers little, if any, benefit upon women in the context of abortion care in Arkansas."

NW News on 02/14/2020

Print Headline: State files new briefs in abortion-law suit

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