Federal Court Overturns Arkansas Law Banning Abortions at 12 Weeks

State   Steven Ertelt   May 27, 2015   |   12:21PM    Little Rock, AR

A federal court has issued a ruling overturning a pro-life law in Arkansas that bans abortions at 12 weeks of pregnancy. The ACLU filed a lawsuit seeking to overturn the strongest pro-life law on the books in the nation on behalf of two abortion practitioners.

The law requires a test to detect a fetal heartbeat before an abortion is performed. If one is detected, a woman could not have an abortion, except in cases of rape, incest and if a mother’s life is in danger. The measure bans abortion after 12 weeks of pregnancy, but pro-life groups expected the lawsuit and expected it would be overturned in court as conflicting with Roe v. Wade, which prohibits states from banning abortions.

As NPR reports, the U.S. Court of Appeals for the Eighth Circuit has blocked the law:

The court’s ruling notes: “By banning abortions after 12 weeks’ gestation, the Act prohibits women from making the ultimate decision to terminate a pregnancy at a point before viability. Because the State made no attempt to refute the plaintiffs’ assertions of fact, the district court’s summary judgment order must be affirmed.”

NPR’s Jennifer Ludden reports that: “Arkansas’ law required doctors to test for a fetal heartbeat, then banned abortion after 12 weeks if a heartbeat was present. But the law’s opponents noted that all fetuses at that stage have a heartbeat, yet none is considered viable outside the womb.

“The Eighth Circuit ruling notes that the Supreme Court gives women the right to an abortion up to the point of viability, generally considered to be around 24 weeks. The ruling goes on at length about how technology is pushing the point of viability earlier and earlier. But it says the state of Arkansas presented no evidence that a 12-week-old fetus is ever viable.”

“Arkansas’ law is the second-most restrictive in the country. North Dakota has the most restrictive law, banning abortions after six weeks gestation, but that law too has been blocked by the courts. And both states have backup laws banning abortions after 20 weeks and making them more difficult to obtain. In all, 10 states now have laws banning abortions after 20 weeks.”

The Republican-controlled Arkansas House voted 56-33 in March 2013 to override Democratic Gov. Mike Beebe, who vetoed the bill, after the state Senate voted to do the same thing. The bill arrived on Beebe’s desk after clearing the Senate, 26-8, and the House, 68-20.

When he vetoed the bill, the governor expected the lawsuit.

“Because it would impose a ban on a woman’s right to choose an elective, nontherapeutic abortion well before viability, Senate Bill 134 blatantly contradicts the United States Constitution, as interpreted by the Supreme Court,” Beebe said in a letter vetoing the bill. “When I was sworn in as governor I took an oath to preserve, protect and defend both the Arkansas Constitution and the Constitution of the United States. I take that oath seriously.”

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Sen. Jason Rapert, R-Bigelow is the bill sponsor and he was upset Gov. Beebe said costs to fight the expected court battle led to the veto.

Rapert said he told Beebe, “I have given you an opportunity to save thousands of lives in the future of this state … and you have stated that you would sign a bill to do away with the death penalty in the state of Arkansas for convicted murderers. I believe the same place in your heart in which you would find yourself able to do that should be the same place in your heart that you should be able to protect the lives of unborn innocent children.”

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Some pro-life groups are not on board with the legislation, not because they oppose banning abortions but out of a concern that it will be struck down in court if passed, since the Supreme Court is currently dominated by at least a 5-4 pro-abortion majority. As a result, the legislation would be struck down in court and the ruling would add to the case law that supports Roe vs. Wade. Such groups are working to change the courts so Roe can be overturned and legislation like the Heartbeat bill or others could be approved to provide legal protection for unborn children.

Before vetoing the bill, Beebe told reporters his office was looking into those constitutional concerns.

“I’m waiting on lawyers. I think that’s the big concern right now – does it run afoul of the Supreme Court or constitutional restrictions?” Beebe said. “That’s the first thing we’re looking at.”

“I’m asking you to stand up for life, and I believe when there is a heartbeat, based upon even the standard the Supreme Court has utilized, you cannot have a viable child without a heartbeat,” Sen. Jason Rapert, the bill’s sponsor, told lawmakers before they approved the legislation.

Previously the  Legislature overrode Beebe’s veto of a ban on most abortions starting in the 20th week of pregnancy. That law took effect immediately, but the Heartbeat abortion ban likely won’t stand up in court.

The lawsuit is filed on behalf of two Little Rock-based abortion practitioners, Dr. Louis Jerry Edwards and Dr. Tom Tvedten, against the state medical board.