Sen. Jason Rapert's clearly unconstitutional bill to ban abortions when a fetal hearbeat can be detected — it would incidentally force transvaginal probes of unwilling women in the early stages of pregnancy — came out of a Senate committee today on a voice vote.
The U.S. Supreme Court, for now at least, protects a woman's right to obtain an abortion up to the time of viability of the fetus, or about 24 weeks. A fetal heartbeat can be detected some time beginning after about the fifth week after a woman's last menstrual period. Rapert's bill would radically alter the legal abortion landscape should it be adopted and upheld in court.
Most abortions are performed in the first trimester of a pregnancy. Rapert's bill would effectively ban most abortions in Arkansas, except in cases of rape and medical emergencies. Hard-line anti-abortion forces are spoiling to take their efforts to de facto ban abortion by pushing this latest wrinkle into the courts. It seems unlikely that even the Republican Supreme Court is ready to go this far. Rapert's bill would force Arkansas to spend a fortune of money and time in defending the indefensible, though his bill might have a harder time in the House Public Health Committee. It would also be yet another affront to women's medical autonomy, along with any number of other pieces of legislation now pending.
A requirement to test for fetal heartbeat has been a popular law in anti-abortion states. It's meant to dissuade women from getting an abortion. It has no therapeutic value. But Rapert's bill takes the strategy much farther.
A nurse practitioner demonstrated for the Senate committee today the long probe that will be inserted in women's vagina in the earliest stages of pregnancy. Conventional ultrasounds won't detect heartbeats at the earliest stages of pregnancy, but a woman seeking an abortion wouldn't have the option of refusing if she hoped to obtain an abortion. The practitioner promised the committee litigation would follow passage of the law. Senators were unmoved.
The nurse practitioner testified:
It was said that a fetal heartbeat can be detected as early as six and a half weeks, which is true. The test that can detect it at that point is a vaginal probe ultrasound. [She produced the probe for the committee.] This is a vaginal probe ultrasound. This is what we’re asking for a physician to do to every woman considering an abortion, regardless of her age [or] whether this test is necessary. This would require a woman to go through an invasive, medically unnecessary test that has been mandated by the legislature. Decisions about which test a woman needs should be made by a doctor or her medical professional. Not by the legislature. This bill bans abortions as early as six and a half weeks, which is of great concern. This means that it would give a woman approximately two weeks after she has missed her first menstrual period to decide whether or not to end her pregnancy. Even extremely young women who are unsure of their bodies — it gives them such an extraordinarily short time.
Rapert today again dodged — as he'd done with me — questions about the constitutionality of his bill, preferring to deliver an anti-abortion speech.
“That was the same tired argument that was given to the House Committee for Representative Butch Wilkins. We have found that no matter what you do when it comes to protecting life, the ACLU is consistent, they threaten a lawsuit. And you know what, I believe a life is worth fighting for. And I will say this: there was one time in this nation when it was legal to enslave African-Americans. It was Constitutional. There was one time in this nation when women could not vote. It was Constitutional. There is a time when we have to stand up for what is right, and know that we have an illogical approach to abortion in our nation today. 53 million lives doesn’t make any sense to anybody. I believe that the heartbeat bill is an approach and a step the right direction. I believe also that the recognition that without a heartbeat there is no life is key to understanding why it is necessary that we bring this measure before the body at this time.”
UPDATE: A Twitter that said Gov. Mike Beebe was "undecided" on the bill prompted me to inquire of that to the governor's office. I wondered if he'd surrendered his law license. The response clarifies matters:
He has legal concerns about the bill in relation to federal law and rulings, he wants to confer with his counsel and the AG’s office before taking a formal position.
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