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Appeals Court Hears Oral Arguments Over N.D., Ark. Early Abortion Bans

January 14, 2015 — A three-judge panel of the 8th U.S. Circuit Court of Appeals heard back-to-back cases on Tuesday over the constitutionality of a North Dakota law (HB 1456) that banned abortions when a fetal heartbeat can be detected and an Arkansas law (Act 301) that banned the procedures at 12 weeks of pregnancy, the AP/Miami Herald reports (Scher Zagier, AP/Miami Herald, 1/13).

Background on Laws

The Center for Reproductive Rights filed a lawsuit against the North Dakota law, which bans abortions as early as six weeks of pregnancy, in June 2013 on behalf of the Red River Women's Clinic of Fargo (Women's Health Policy Report, 4/17/14). CRR and the American Civil Liberties Union filed suit in April 2013 against the Arkansas law, which 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 (Women's Health Policy Report, 3/17/14).

Federal judges placed temporary injunctions on both laws before they went into effect (Gambino, The Guardian, 1/13).

A federal judge in April 2014 struck down the North Dakota law as an "invalid and unconstitutional" measure that "cannot withstand a constitutional challenge" (Women's Health Policy Report, 4/17/14). Meanwhile, a federal judge struck down part of Arkansas' law in March 2014, ruling that restricting abortion based on fetal heartbeat rather than viability is unconstitutional. However, the judge left in place parts of the law that require physicians to perform an ultrasound and tell a woman if a fetal heartbeat can be detected (Women's Health Policy Report, 3/17/14).

States' Oral Arguments

Lawyers for both states argued that the 8th Circuit should not apply the viability standard set by the 1973 Supreme Court case Roe v. Wade, when the high court found that women have a constitutional right to abortion up to the point that a fetus is able to survive outside of the womb. According to Bloomberg, fetal viability is considered to be about 24 weeks (Harris/Whittington, Bloomberg, 1/13).

North Dakota is asking the court for a bench trial, at which it would present medical findings that a fetus could survive outside the womb for several days with medical help, even during the first trimester (McLure, Reuters, 1/13).

Daniel Gaustad, an attorney for North Dakota, told the judges, "The definition of viability occurs at the time of conception, based upon IVF technology, advances in medical science" (The Guardian, 1/13). He added, "The centuries old standard to show life is a heartbeat."

Judge Duane Benton asked in response, "Has the Supreme Court ever used or mentioned the term 'heartbeat' as a standard?"

Meanwhile, Arkansas Assistant Attorney General Colin Jorgensen argued that "[v]iability standards have changed" as the result of a 2007 Supreme Court ruling that upheld a federal law that banned certain abortion procedures performed later in pregnancy (Bloomberg, 1/13). He also cited Supreme Court rulings upholding mandatory 24-hour delays prior to an abortion and parental consent requirements, adding, "You can't look at those laws under Roe vs. Wade in a vacuum anymore" (AP/Miami Herald, 1/13).

Jorgensen also argued that Arkansas' law would protect women. He said, "All else being equal, it's undisputed it's better for a woman to have an abortion earlier than later. The state would prefer there be no abortions, but we're not allowed to do that at this time" (Reuters, 1/13).

Plaintiffs' Oral Arguments

Meanwhile, the plaintiffs argued in each case that the state laws are unconstitutional and that the Supreme Court had affirmed abortion rights in its post-Roe rulings.

Janet Crepps, senior counsel for CRR, told the panel, "There's a legal framework that's been established" (AP/Miami Herald, 1/13). She said, "What [the plaintiffs are] really simply expressing is they really don't like prior decisions and they'd like the Supreme Court to reconsider them" (Reuters, 1/13).

Crepps said, "The [S]upreme [C]ourt has said that it doesn't matter what reason states offer for wanting to ban abortions (before the point of viability), the court has said you can't." She added, "Legislatures may not like the law of the land, but there is just no room here for the states to act in the way they want to" (The Guardian, 1/13).

Attorneys for the North Dakota abortion clinic argued that the definition of viability should be that a fetus should be reasonably likely to survive for a sustained period outside the womb, regardless of artificial support.

In addition, ACLU attorney Talcott Camp in the hearing on the Arkansas law argued, "No fetus can be viable at 12 weeks."

U.S. Circuit Court Judge Bobby Shepherd said that "viability seems to be a scientific or medical decision, not one for judges to decide" (Bloomberg, 1/13).

The 8th Circuit judges did not indicate when they would rule on the two cases, according to Reuters (Reuters, 1/13).