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: , , , ,

From the ArkTimes store

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…

  • 'How to decimate a city' — a big freeway

    Reporting from around the U.S. continues to illustrate the folly of the Arkansas highway department and construction boosters like the chamber of commerce and Vice Mayor Lance Hines in advocating ever wider freeways through the heart of Little Rock. Syracuse, N.Y., is looking for a better way in a debate remarkably similar to the debate about widening Interstate 30 in Little Rock.
    • Nov 20, 2015
  • Two plead in fraud of sheriff's office

    A former employee of the Pulaski County sheriff and a North Little Rock woman who sold goods to the sheriff's office have pleaded guilty to mail fraud in a scheme to steal from the sheriff's office, according to a news release from the U.S. attorney's office.
    • May 16, 2017
  • Al Gore remembers Dale Bumpers

    Former Vice President Al Gore, a former U.S. Senate colleague of Dale Bumpers, sent a statement on Bumpers' death Friday:
    • Jan 3, 2016

Most Shared

  • Conspiracy theorists

    Back in 2000, I interviewed Rev. Jerry Falwell on camera in connection with a documentary film of "The Hunting of the President," which Joe Conason and I wrote.
  • The health of a hospital

    The Medicaid expansion helped Baxter County Regional Medical Center survive and thrive, but a federal repeal bill threatens to imperil it and its patients.
  • Virgil, quick come see

    There goes the Robert E. Lee. But the sentiment that built the monument? It's far from gone.
  • Real reform

    Arkansas voters, once perversely skeptical of complicated ballot issues like constitutional amendments, have become almost comical Pollyannas, ratifying the most shocking laws.
  • That modern mercantile: The bARn

    The bARn Mercantile — "the general store for the not so general," its slogan says — will open in the space formerly occupied by Ten Thousand Villages at 301A President Clinton Ave.

Visit Arkansas

Paddling the Fourche Creek Urban Water Trail

Paddling the Fourche Creek Urban Water Trail

Underutilized waterway is a hidden gem in urban Little Rock

Most Recent Comments

Blogroll

Slideshows

 

© 2017 Arkansas Times | 201 East Markham, Suite 200, Little Rock, AR 72201
Powered by Foundation