Federal Judge Temporarily Halts Ark. 12-Week Abortion Ban While Lawsuit Proceeds
May 20, 2013 — A federal judge on Friday issued a preliminary injunction that prevents Arkansas from enforcing a ban (Act 301) on most abortions after 12 weeks of pregnancy while a lawsuit challenging the law continues, the New York Times reports. The measure was scheduled to take effect Aug. 16 (Eckholm, New York Times, 5/17).
The law prohibits abortions after 12 weeks if a fetal heartbeat is detectable, with exceptions in cases of rape, incest, to save a woman's life or when the fetus has a fatal disorder.
The American Civil Liberties Union and the Center for Reproductive Rights last month filed a suit arguing that the ban violates Supreme Court precedent affirming that the U.S. Constitution prohibits states from banning abortions prior to fetal viability.
The state countered that ACLU and CRR lack standing to challenge the law because it has not taken effect yet (Women's Health Policy Report, 5/16). During arguments on Friday, state lawyers added that the law adheres to the spirit of Supreme Court precedent because the majority of abortions would still be permitted. The law would encourage women and doctors to seek earlier, "safer and more humane abortions," they said (New York Times, 5/17).
However, ACLU and CRR argued that health care providers -- who stand to lose their medical licenses for violating the law -- should not have to risk liability while waiting until the ban is enforced.
The suit was filed on behalf of two doctors, Louis Jerry Edwards and Tom Tvedten, both of whom are affiliated with Little Rock Family Planning Services (Women's Health Policy Report, 5/16).
In her decision on Friday, U.S. District Judge Susan Webber Wright said that the ban "more than likely" is unconstitutional (Parker, Reuters, 5/17). She agreed with the plaintiffs that the "U.S Supreme Court has held unequivocally that a state may not ban abortion prior to viability" (New York Times, 5/17).
Webber Wright added that the law poses a "threat of irreparable harm" both to doctors, who "could face loss of their licenses," and to patients, who would not be able "to have abortions post 12-weeks but during that pre-viability period."
Webber Wright also suggested in her ruling that some provisions of the law might stand, noting that she did not believe "it would be an undue burden on a woman's right to have an abortion for the doctor to determine whether she has a fetal heartbeat and to tell her when she does" (Nuss, AP/USA Today, 5/17).
State Sen. Jason Rapert (R) -- who sponsored the bill -- said he is "disappointed" about the injunction but optimistic about Webber Wright's statement that she would consider each of the law's provisions individually. "I believe that hopefully she will allow this statute to stand in full, but if not, I will at least take a partial win," he said.
CRR President Nancy Northup said in a statement that Webber Wright's ruling "ensures that the women of Arkansas will remain protected from this blatant unconstitutional assault on their health and fundamental reproductive rights." She added she is hopeful that the court would "ultimately strike down this harmful law permanently" and "uphold women's constitutional right to make their own decisions about their pregnancies" (Smith, Politico, 5/20).