Saturday, May 18, 2013

Practicing law with Bro. Rapert

Posted By on Sat, May 18, 2013 at 7:42 AM

FINDS ACORN: Lawyer Rapert.
  • FINDS ACORN: Lawyer Rapert.
Sen. Jason Rapert, author of the patently unconstitutional bill to ban most abortions in Arkansas at the 12th week of pregnancy, took heart yesterday at Judge Susan Webber Wright's indication that she was inclined to uphold the part of the law that requires women seeking an abortion in the 12th week of pregnancy or later to have an ultrasound and to be shown the results of that test.

Bettina Brownstein, representing the ACLU, said she didn't think that portion of the law could be severed and kept intact because it was so intertwined with the purpose of the law, to ban abortions. It was noted that the law doesn't have a severability clause.

Bro. Rapert opined that a severability clause was automatic under Arkansas law. Given his generally poor practice as an attorney to date, I thought I'd check the fiddlin' preacher and found, shazam, he's found an acorn. From a manual of the National Conference of State Legislatures on statutory drafting rules of the various states:

Arkansas
6.1 APPLICABILITY.
(e) SEVERABILITY CLAUSE.
A severability clause provides that if a part of a law is declared invalid the remaining part stays in force. A general severability clause is not necessary, and should not be used. Arkansas Code § 1‐2‐117 states that the provisions of the Arkansas Code are severable, and Arkansas Code § 1‐2‐ 205 states:
“...The provisions of each and every act enacted by the General Assembly after July 24, 1973, are declared to be severable and, unless it is otherwise specifically provided in the particular act, the invalidity of any provision of that act shall not affect other provisions of the act which can be given effect without the invalid provision”.
(f) NON‐SEVERABILITY CLAUSE.
If the author does not want the provisions to be severable or does not want specific provisions to be severable, add a section declaring the provision to not be severable. Bills having a statement of non‐severability are rare.
Example:
SECTION 6. The provisions of this act are not severable, and if any provision of this act is declared invalid for any reason, then all provisions of this act shall also be invalid.

This does not fully resolve the question, but it is a strong leg for Rapert to stand on. Courts can rule against severability, however, and have done so. In the famous Malvern school choice case, a federal judge said it was impossible to sever the race-related bar to school transfers, held to be impermissible, from the rest of the act and struck the whole thing down. In that case, you can find the Arkansas Supreme Court guidance on severability.

The Arkansas Supreme Court looks to two considerations to determine severability: “(1) whether a single purpose is meant to be accomplished by the act, and (2) whether the sections of the act are interrelated and dependent upon each other.” In U.S. Term Limits, Inc. v. Hill, the Arkansas Supreme Court provided further guidance, stating “it is important whether the portion of the act remaining is complete in itself and capable of being executed wholly independent of that which was rejected.”

It is laughable, of course, that Jason Rapert would say he'd be happy to testify as to his intent that a part of the law be severable. It'd have no more weight than my aging French bulldog's testimony. Legislative intent in Arkansas is demonstrated solely by the words of the statute itself.

I'm afraid, however, there's a case for arguing that the mandatory ultrasound clause is capable of being executed independently, even if it was included only to create the standard for criminalizing an abortion, which it no longer can do.

A woman seeking an abortion has no need for an ultrasound test in that she plans to terminate the pregnancy. But anti-abortion forces like to require these tests for the emotional influence the test might bring to the decision. The Guttmacher Institute, while noting that an ultrasound is not medically necessary in the first trimester, says that eight states mandate an ultrasound for women seeking abortions.

Tags: , , , ,

Favorite

Speaking of...

Comments (7)

Showing 1-7 of 7

Add a comment

 
Subscribe to this thread:
Showing 1-7 of 7

Add a comment

More by Max Brantley

Readers also liked…

  • The shame of Robert E. Lee/MLK Day in Arkansas

    This morning, I was a student ambassador for Philander Smith College and the Social Justice Institute at a House Committee that discussed Rep. Nate Bell’s proposal to divide a Robert E. Lee and Martin Luther King, Jr. holiday.
    • Feb 11, 2015
  • Mike Maggio pleads guilty to federal bribery charge

    Former Circuit Judge Mike Maggio of Conway pleaded guilty to federal bribery charges on Friday in U.S. District Court. The offense carries a maximum penalty of 10 years in prison and a $250,000 fine.
    • Jan 9, 2015
  • Mike Huckabee pays family $400,000 from his PAC

    Mother Jones exposes Mike Huckabee's PAC as a vehicle — not for supporting other candidates of a conservative bent — but paying his family, fund-raising and supporting the Huckabee network.
    • Jan 20, 2015

Most Shared

  • The South, including Arkansas, is failing poor kids who want to go to college

    The Atlantic has an important perspective on the South's "cycle of failing higher education."  Arkansas stands out for the cost barriers it presents to low-income students.
  • School takeovers erode democracy, target minority communities

    New reporting shows state takeover of schools around the country, including in Little Rock, have disproportionately affected minority communities.
  • Arkansas legislator tied to fatal bus crash in Louisiana

    Republican state Rep. David Wallace of Leachville, a current candidate for state Senate, has been identified as the owner of a company that rounded up a group of workers, apparently undocumented aliens, for flood relief work in Louisiana, including one with a poor driving record who was at the wheel in a fatal bus crash on Interstate 10.
  • The boys on the tracks are back

    A lawsuit filed Thursday in federal court in Little Rock bears notice for its effort to breathe life into the 29-year-old story most familiarly known as the Boys on the Tracks.
  • Dumas: Behind the Obamascare headlines

    Ernest Dumas explains in his Arkansas times column this week how Obamacare's problems can be fixed; why it isn't going away, and, most pertinently, why it's more lucrative for Arkansas to continue to expand the coverage pool, not dream up ways to shrink it.

Most Viewed

  • Arkansas legislator tied to fatal bus crash in Louisiana

    Republican state Rep. David Wallace of Leachville, a current candidate for state Senate, has been identified as the owner of a company that rounded up a group of workers, apparently undocumented aliens, for flood relief work in Louisiana, including one with a poor driving record who was at the wheel in a fatal bus crash on Interstate 10.
  • Legislature subpoenas judge to testify about child custody decisions.

    The Legislative Joint Performance Review Committee has subpoenaed Circuit Judge Patricia James, who handles juvenile cases in Pulaski and Perry County, to testify to explain her child custody decisions. It's another example of a power-mad, out-of-control legislature.
  • Conway Mayor Tab Townsell picked to lead Metroplan

    After interviewing two finalists, the Metroplan board chose one of its long-time members, Conway Mayor Tab Townsell, to become director of the planning agency, succeeding the retiring director Jim McKenzie.
  • UPDATE: Metroplan signs off on waiver for Concrete Gulch

    UPDATE: The Metroplan board has voted with scant opposition to waive the existing six-lane limit on area freeways so that the highway department may build a 10-lane concrete gulch through the heart of Little Rock. Leslie Newell Peacock will be back with more after a while. A grassroots group presented spirited opposition, all ignored.
  • Miss Arkansas pageant to leave Hot Springs for Little Rock

    The Miss Arkansas Pageant will relocate next year to Little Rock after 58 years in Hot Springs.

Most Recent Comments

Blogroll

 

© 2016 Arkansas Times | 201 East Markham, Suite 200, Little Rock, AR 72201
Powered by Foundation