Friday, March 14, 2014

Federal judge strikes down Arkansas's 12-week abortion ban

Posted By on Fri, Mar 14, 2014 at 5:18 PM

click to enlarge JUDGE SUSAN WEBBER WRIGHT: Strikes down Arkansas's 12-week abortion ban.
  • JUDGE SUSAN WEBBER WRIGHT: Strikes down Arkansas's 12-week abortion ban.
Federal Judge Susan Webber Wright today completed the job she'd started with an earlier injunction: She struck down the 2013 law that prohibited most abortions beginning with the 12th week of pregnancy.

Judge Wright ruled, as she'd indicated she would, that federal law is guided by viability of the fetus. The legislature, by a narrow margin, passed a law that required a fetal heartbeat test and banned most abortions at 12 weeks of pregnancy, several months before a fetus is capable of surviving outside the womb. Wright left intact the portion of the law that required a check for fetal heartbeat for women seeking an abortion and notice to the woman when a heartbeat is detected.

The state is permanently enjoined from enforcing the other parts of the law.

The case was brought by physicians who provide abortions. The judge wrote:

Given Plaintiffs’ uncontroverted evidence, the Court finds as a matter of law that the twelve-week abortion ban included in Act 301 prohibits pre-viability abortions and thus impermissibly infringes a woman’s Fourteenth Amendment right to elect to terminate a pregnancy before viability. Plaintiffs have demonstrated that they will suffer irreparable harm unless the State is permanently enjoined from enforcing the twelve-week abortion ban set forth under Ark. Code Ann. § 20-16-1304(a). Without a permanent injunction, Plaintiffs will face license revocation for performing pre-viability abortions, and the twelve-week ban will prevent a woman’s constitutional right to elect to have an abortion before viability. 

The judge, a Republican appointee, rejected multiple arguments from plaintiffs that the required fetal heartbeat test couldn't be severed from the intent of the act to limit abortion.

After careful consideration, the Court finds that the remaining heartbeat testing and disclosure requirements are independently capable of furthering the stated purpose of Act 301, to protect unborn children, and that they are severable from the unconstitutional twelve-week ban and the requirement of license revocation for a physician who performs an abortion banned under the Act. 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 decisionmaking process and is rationally related to the State’s interest in protecting the unborn/ States may further the “legitimate goal of protecting the life of the unborn” through “legislation aimed at ensuring a decision that is mature and informed, even when in doing so the State expresses a preference for childbirth over abortion.”

Gov. Mike Beebe
had vetoed the legislation on account of its unconstitutionality. The House and Senate overrode the veto, by a one-vote margin in the House.

It's  futile under existing law to appeal, but the legislature knew that when it passed the law.

Said a spokesman for Attorney General Dustin McDaniel: "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."

From a spokesman for Gov. Beebe: "The ruling mirrors what the governor predicted would happen in his veto letter."

The anti-abortion sponsors of the legislation — Jason Rapert was lead sponsor — will want to press the case onward to the U.S. Supreme Court. They've made that clear from the outset.

Here's the full ruling.

The Center for Reproductive Rights, which participated in the lawsuit, hailed the ruling but criticized retention of forced fetal heartbeat tests, which in some cases could mean insertion of vaginal probes. The center said women are "fully capable of weighing their reproductive choices carefully and responsibly in consultation with their doctors." 

The Arkansas ACLU, another participant, said:

This ban would have inserted politicians into the deeply personal medical decisions of Arkansas women,” said Rita Sklar, executive director of the ACLU of Arkansas. “We’re thankful that the court took the right step in striking it down, since this dangerous ban should never have been passed in the first place.”

The ruling let stand a requirement that women undergo an abdominal ultrasound, with the result that women who undergo a vaginal ultrasound will have to have two such procedures..

Said Nancy Northup, president and CEO of the Center for Reproductive Rights:

“Today the court has rightfully reaffirmed what Governor Beebe acknowledged in vetoing this extreme legislation—that state lawmakers cannot take away rights that the U.S. Constitution and Supreme Court have guaranteed.

“We hope today’s decisive ruling will at last put a stop to the efforts of extremist politicians to roll back Arkansas women’s fundamental rights.”

While today’s decision blocks the law’s unconstitutional ban on abortion, U.S. District Judge Susan Webber Wright’s ruling upheld a provision requiring all women seeking an abortion to first undergo an abdominal ultrasound and receive statistical information in writing about carrying pregnancies to term if a fetal heart tone is detected.

“While we are pleased that the court ultimately preserved women’s fundamental right to abortion, Arkansas women are fully capable of weighing their reproductive choices carefully and responsibly in consultation with their doctors - without politicians dictating what medical procedures or information they need,” added Northup.

The Center and the ACLU filed the lawsuit, Edwards v. Beck, in the U.S. District Court for the Eastern District of Arkansas on behalf of two physicians who provide abortion services in Little Rock, arguing that the Arkansas law violates the U.S. Constitution by banning pre-viability abortions.

The physicians are represented by Stephanie Toti, senior staff attorney for the Center for Reproductive Rights, Talcott Camp with the ACLU, and Bettina Brownstein and Holly Dickson with the ACLU of Arkansas.

The Arkansas law was one of the most extreme in the nation, only surpassed by a currently-enjoined North Dakota measure banning the procedure as early as six-weeks of pregnancy, before many women even know they are pregnant. Earlier this year, the US Supreme Court refused to review a decision permanently blocking Arizona’s ban on abortion at 20 weeks of pregnancy, and courts in Idaho and Georgia have also recently blocked similar pre-viability bans.

Harmful restrictions like these underscore the need for the federal Women’s Health Protection Act, a Congressional bill designed to end the recent wave of anti-choice laws preventing women from accessing their constitutional right to an abortion—ensuring a woman’s constitutional rights do not depend on her zip code. The Women’s Health Protection Act would ensure abortion care is not singled out for medically unwarranted restrictions that ultimately harm women by preventing them from accessing safe and legal reproductive health services.


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