March 17, 2014 — A federal judge has overturned an Arkansas law (Act 301) that would ban abortion as early as 12 weeks, saying that the attempt to restrict abortion based on fetal heartbeat rather than on fetal viability is unconstitutional, the United Press International reports (Haynes, United Press International, 3/15).
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.
In April 2013, the American Civil Liberties Union and the Center for Reproductive Rights 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 lacked standing to challenge the law because it had not yet taken effect when the suit was filed. In addition, the state said that the law adheres to the spirit of the Supreme Court precedent because the majority of abortions would still be permitted.
In May 2013, U.S. District Judge Susan Webber issued a preliminary injunction against the ban, ruling that it is "more than likely" unconstitutional (Women's Health Policy Report, 5/20/13).
Webber on Friday ruled that the law is unconstitutional because fetal viability, not fetal heartbeat, determines whether abortion is legal. "The Supreme Court has ... stressed that it is not the proper function of the legislature or the courts to place viability at a specific point in the gestation period," she wrote in her ruling, adding, "The court finds as a matter of law that the twelve-week abortion ban included in (the law) prohibits pre-viability abortions and thus impermissibly infringes on a woman's Fourteenth Amendment right to elect to terminate a pregnancy before viability" (United Press International, 3/15).
However, Webber let stand the part of the law mandating that a woman seeking an abortion receive an ultrasound and be notified by her doctor if the fetus has a heartbeat.
Webber's decision to partially uphold the Arkansas law means that abortion opponents will likely maintain the piecemeal, state-by-state approach to restricting the procedure, the Los Angeles Times' "Nation Now" reports (Serna, "Nation Now," Los Angeles Times, 3/14).
According to "ThinkProgress," North Dakota and about a dozen other states have adopted similar restrictions (Volsky, "ThinkProgress," Center for American Progress, 3/16).
Bettina Brownstein -- a cooperating attorney with ACLU of Arkansas -- said that abortion-rights opponents are "trying to do what they can't do outright," adding, "They can't outright get a ban. They can't, as a matter of fact, say when viability [of a fetus] occurs. They're chipping around the edges here" ("Nation Now," Los Angeles Times, 3/15).
Meanwhile, Matt DeCample, a spokesperson for Gov. Mike Beebe (D) said, "The ruling is what the governor predicted in his veto last year." Beebe last year vetoed the measure, citing its unconstitutionality, but Republicans overrode his veto (AP/Modern Healthcare, 3/15).
State Attorney General Dustin McDaniel (D) said he was not sure whether the state would appeal the ruling. According to Reuters/Columbus Dispatch, McDaniel had "echoed" many of Beebe's concerns last year.
State Sen. Jason Rapert (R), the legislation's primary sponsor, said that while he was "disturbed" by the ruling, it was "not unexpected because of the posture of [U.S.] courts for the last 40 years" (Barnes, Reuters/Columbus Dispatch, 3/16).
However, Rapert added that he was pleased the ultrasound requirement was left intact, saying that it was a "win for the pro-life movement" because "[w]hen people have to face the reality that there's a living heartbeat in their womb, that will make them rethink about taking life away from their baby" (AP/Modern Healthcare, 3/15).
Separately, ACLU of Arkansas President Rita Sklar praised the ruling, saying that the "ban would have inserted politicians into the deeply personal medical decisions of Arkansas women" (Reuters/Columbus Dispatch, 3/16).