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State's ban on abortions blocked; judge says law’s unconstitutional

by Dale Ellis | July 21, 2021 at 7:22 a.m.

An Arkansas law set to go into effect July 28 that would outlaw virtually all abortions in the state was blocked by U.S. District Judge Kristine G. Baker on Tuesday as she granted a preliminary injunction while she hears a challenge to its constitutionality.

The lawsuit seeks to stop implementation of Act 309 of 2021, which was passed by the General Assembly this year and began the session as Senate Bill 6, sponsored by Sen. Jason Rapert, R-Conway. The ban provides an exception to save the life of the mother but has no exceptions for rape or incest.

At the time the law -- dubbed the Unborn Child Protection Act -- was passed, Rapert said the intent of the law, in addition to putting a near total ban on abortion in the state, was to serve as a direct challenge to the U.S. Supreme Court's landmark 1973 Roe v. Wade decision that legalized abortion throughout the country.

The Roe decision came about from a challenge to a Texas law that outlawed abortion in all instances except to save the life of the mother. At that time, according to Planned Parenthood Federation of America, abortion was illegal in nearly every state except to save a woman's life or for limited reasons such as preserving a woman's health or cases of rape, incest or fetal anomaly.

Just over two months after its passage in a mostly party line vote on both the Senate and House sides of the Capitol the new law was met with an anticipated legal challenge by opponents seeking to prevent it from going into effect. In May, the American Civil Liberties Union and Planned Parenthood filed a challenge to the ban on behalf of Little Rock Family Planning Services and Planned Parenthood's Little Rock health center and Dr. Janet Cathey, a doctor who works at the Planned Parenthood clinic.

Defendants named in the case are Pulaski County Prosecuting Attorney Larry Jegley, Arkansas State Medical Board Chairman Dr. Sylvia Simon, the 14 members of the state Medical Board, Arkansas Health Secretary Dr. Jose Romero and the 21 members of the state Board of Health.

In Tuesday's ruling, Baker said the law is "categorically unconstitutional" because the ban would go into effect before the fetus would be considered viable -- able to live outside of the womb.

If it goes into effect, the law would ban abortion from the time a fetal heartbeat can be detected, which in some cases is as early as eight weeks, a full 16 to 20 weeks before the fetus is considered to be able to live outside the womb.

Baker's ruling said the federal constitutional protection of reproductive rights is based on the liberty interest derived from the due process clause of the Fourteenth Amendment as decided in the 1992 Supreme Court ruling in Planned Parenthood vs. Casey.

"This right is grounded in the right to privacy rooted in the Fourteenth Amendment's concept of personal liberty, which was found to be 'broad enough to encompass a woman's decision whether or not to terminate her pregnancy,'" Baker wrote, citing the Roe vs. Wade ruling.

In the ruling, Baker did not deny that the state may regulate abortion as a valid exercise of its police power, but not to the point where a protected liberty interest is at stake, such as when the state attempts to regulate pre-viability abortions.

Citing the 2016 Whole Woman's Health vs. Hellerstedt Supreme Court decision, Baker said the high court observed fetus viability as the "relevant point at which a State may begin limiting women's access to abortion for reasons unrelated to maternal health," and had acknowledged in Casey "that the state can impose regulations aimed at ensuring a thoughtful and informed choice, but only if such regulations do not unduly burden the right to choose."

Contacted by phone by the Arkansas Democrat-Gazette, Rapert reiterated the intent for the law to serve as a test case on the constitutionality of Roe vs. Wade.

"We will fight to defend SB6 all the way to the Supreme Court," he said. "That's where it's headed and that's where it's intended."

Rapert was sharply critical of Baker's ruling.

"Where is the conscience of the court? Judge Kristine Baker never fails to strike down pro-life laws in Arkansas," Rapert said. "She's basing her decision on the same type of claptrap we always hear which ends up in the killing of unborn babies in our state and in the nation."

Rapert said Baker's ruling goes directly against the wishes of "three million Arkansans represented by the Arkansas legislature and the governor of the state of Arkansas."

Asked if he sees any validity to the arguments of opponents of the ban, Rapert was unequivocal.

"No," Rapert said. "There is no valid viewpoint to kill an unborn child, except to save the life of the mother."

Holly Dickson, executive director of the ACLU of Arkansas, said that public opinion polls on the issue don't reflect that the protections contained in the U.S. Constitution aren't subject to popular opinion.

"Constitutional rights of the people are not subject to majority vote," Dickson said. "The Constitution is to protect against the tyranny of the majority."

Baker wrote in the ruling that the preliminary injunction is to stay in effect "until further order from this Court."

Print Headline: State's ban on abortions blocked

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