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Ark. AG Responds to Abortion-Rights Groups' Supreme Court Brief on 12-Week Abortion Ban

December 23, 2015 — Arkansas officials on Monday filed a brief with the U.S. Supreme Court in response to abortion-rights groups' arguments that the high court should not revisit an overturned state law (Act 301) that bans abortion at 12 weeks of pregnancy, the Arkansas Democrat-Gazette reports (Satter, Arkansas Democrat-Gazette, 12/22).

Background

The Center for Reproductive Rights and the American Civil Liberties Union filed suit in April 2013 against the law. The measure bans abortions after 12 weeks of pregnancy, with exceptions in cases of rape, incest, to save a woman's life or when the fetus has a fatal anomaly. In March 2014, a federal judge struck down part of the law, 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.

In May, a three-judge panel of the 8th U.S. Circuit Court of Appeals upheld the lower court's decision, ruling that the Arkansas law's abortion ban is unconstitutional because it violates U.S. Supreme Court precedent that permits women to have an abortion before fetal viability. The court left in place provisions in the law that mandate that physicians tell a woman if a fetal heartbeat can be detected.

Arkansas Attorney General Leslie Rutledge (R) in June asked the full 8th Circuit Court to rehear the case. The Circuit Court rejected the request in July. In October, Rutledge then asked the U.S. Supreme Court to overturn the lower court decision against the ban.

CRR and ACLU filed a response to Rutledge's petition earlier this month, noting that the state has not provided a compelling reason to reexamine whether restrictions on the procedure should be based on fetal viability (Women's Health Policy Report, 12/15). According to the Democrat-Gazette, the groups noted that there is not a circuit court split on the issue and the lower court ruling on the Arkansas law correctly applied Supreme Court precedent.

Brief Details

Rutledge on Monday filed a brief asking the high court to disregard CRR and ACLU's arguments against reviewing the lawsuit. Among other arguments, the brief claims that the fetal viability standard is arbitrary and that many women who access abortion care do so before 12 weeks of pregnancy.

According to the Democrat-Gazette, the Supreme Court likely will come to a decision to accept or reject the state's petition to review the law before the current term ends in June (Arkansas Democrat-Gazette, 12/22).