Rutledge questions viability rule
High court asked to revisit 24-week standard for abortions
The U.S. Supreme Court should revisit the “viability rule,” which holds that abortion is legal until a fetus is able to live independently outside the womb, generally considered to be at 24 to 28 weeks of pregnancy, Attorney General Leslie Rutledge said Monday in a brief filed with the high court.
The brief was a reply to recent arguments from the American Civil Liberties Union and the Center for Reproductive Rights asking the high court to reject Rutledge’s request that it take another look at a 2013 Arkansas law that banned abortion after 12 weeks of pregnancy if a fetal heartbeat was detected. The law also required anyone seeking an abortion after 12 weeks of pregnancy to have an ultrasound to determine if a heartbeat could be detected.
On March 14, 2014, U.S. District Judge Susan Webber Wright agreed with the ACLU and the center that the part of the law outlawing abortions after 12 weeks was unconstitutional, and threw it out. The groups had backed two doctors in Arkansas who provide abortions and who contended that the law, known as the Arkansas Human Heartbeat Protection Act, would put them in danger of losing their licenses to practice.
On May 27, a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis upheld Wright’s ruling, and on July 9, the appellate court denied Rutledge’s requests that the panel or the entire court rehear the matter.
Rutledge announced in October that she had formally submitted arguments asking the U.S. Supreme Court to reconsider its landmark 1973 decision, Roe v. Wade, which first established the standards for fetal viability. Before the passage of Act 301 of 2013, Arkansas law allowed
abortions until the 25th week of pregnancy, in keeping with that precedent.
Rutledge contends that the Arkansas case, known as Edwards v. Beck, “is an ideal vehicle for the Court to revisit its viability jurisprudence.”
In the brief, written by Assistant Attorney General Colin Jorgensen, the state argues that the viability rule is arbitrary and “far beyond what is necessary to protect a woman’s constitutional right to have some freedom to terminate her pregnancy.”
The brief argues that out of respect for the sovereign power of the states and the principles of federalism, the high court “must not interfere with the general police power of a state except as absolutely necessary to protect a constitutional right.” It adds, “Judicial restraint is particularly critical where, as here, a state seeks to advance … a profound interest in protecting the lives of unborn children from conception through birth.”
The state’s brief cites “uncontested national statistics showing that 85-90 percent of abortions occur within the first trimester” for its argument that there can be “no genuine debate
as to whether Arkansas’ statute provides a woman some freedom to terminate her pregnancy.”
The ACLU and the Center for Reproductive Rights argue that there is no reason to take up the Arkansas case because it doesn’t present a disagreement among circuit courts of appeal and because the ruling properly applies Supreme Court precedent. The brief asks the Supreme Court to disregard those arguments.
“Neither of these grounds provides a persuasive justification to prevent the Court from reconsidering a rule that is admittedly arbitrary and constitutionally unnecessary, and that has been called into serious question by judges, states, and legal scholars alike,” the brief states.
It cites the 8th Circuit panel’s affirmation of Wright’s ruling as “the closest possible posture to a circuit split,” despite the lower courts’ requirement to accept the high court’s viability determinations. The brief notes that the panel “sharply and thoughtfully criticized the viability rule as both unworkable and unnecessary judicial interference with state legislative autonomy.”
The panel’s nine-page ruling addressed viability at length, noting that although
it is bound by Supreme Court decisions, “undeniably, medical and technological advances along with mankind’s ever-increasing knowledge of prenatal life” make the viability standard “more difficult.”
The panel consisted of U.S. circuit judges Lavenski Smith of Little Rock, Bobby Shepherd of El Dorado and Duane Benton of Kansas City, Mo., all of whom were nominated by President George W. Bush.
The high court hears very few of the petitions it is asked to consider each year. It is expected to accept or reject Rutledge’s petition sometime before the current term ends in late June.