State abor­tion laws ar­gued in U.S. court

Northwest Arkansas Democrat-Gazette - - FRONT PAGE - LINDA SATTER

Abor­tion laws that are on the verge of go­ing into ef­fect in Ar­kan­sas would im­pose “undue bur­dens” on women that out­weigh the state’s in­ter­ests in pro­tect­ing the pop­u­lace, an at­tor­ney for the Amer­i­can Civil Lib­er­ties Union ar­gued Thurs­day be­fore a fed­eral judge in Lit­tle Rock.

But an at­tor­ney for the state said any in­con­ve­niences the laws cre­ate can­not out­weigh the pub­lic’s in­ter­ests in do­ing what is right, es­pe­cially when it comes to “out­law­ing a par­tic­u­larly bar­baric form of abor­tion” that he said in­volves pry­ing a fe­tus from a womb, “us­ing clamps, for­ceps and scis­sors un­til it bleeds to death … leav­ing a tray full of tiny hands, arms and feet.”

U.S. District Judge Kris­tine Baker heard about two hours’ worth of ar­gu­ments from Tal­cott Camp, deputy di­rec­tor of the ACLU’s Re­pro­duc­tive Free­dom Project, and Ni­cholas Bronni, deputy solic­i­tor gen­eral un­der

Ar­kan­sas At­tor­ney Gen­eral Leslie Rut­ledge, on whether to tem­po­rar­ily block the laws from go­ing into ef­fect un­til their con­sti­tu­tion­al­ity can be de­cided.

As is her stan­dard prac­tice, Baker didn’t rule from the bench but took the mat­ter un­der ad­vise­ment, telling at­tor­neys she is well aware of the ap­proach­ing date when three laws will go into ef­fect.

The ACLU con­tends that the three laws would go into ef­fect July 30, but Rut­ledge said in a writ­ten opin­ion that the ef­fec­tive date of the three laws would be Aug. 1. A fourth law takes ef­fect Jan. 1.

The laws be­ing chal­lenged in a June 20 law­suit backed by the ACLU, the ACLU of Ar­kan­sas and the Cen­ter for Re­pro­duc­tive Rights in New York are:

■ Act 45 of 2017, which places re­stric­tions on the di­la­tion and evac­u­a­tion method of abor­tion, which is the most com­mon form per­formed dur­ing the sec­ond trimester, which be­gins at 14 weeks of preg­nancy. It is also the only method avail­able dur­ing the sec­ond trimester in out­pa­tient fa­cil­i­ties in Ar­kan­sas.

■ Act 603 of 2017, which amends an ex­ist­ing law re­quir­ing fe­tal re­mains from sur­gi­cal abor­tions to be dis­posed of in ac­cor­dance with the Ar­kan­sas Fi­nal Dis­po­si­tion Rights Act of 2009. The 2009 law al­ready gov­erned the dis­posal of “a dead body or a fe­tus” but al­lowed any fe­tal tis­sue de­fined as “hu­man tis­sue” to be dis­posed of with­out re­gard to the law. The new law re­moved “fe­tal tis­sue” from the def­i­ni­tion of “hu­man tis­sue.”

The ACLU says the law re­quires no­tice to and con­sent of third par­ties prior to ev­ery abor­tion and can be read to bar med­i­ca­tion abor­tions and pre­vent an in­di­vid­ual from pri­vately dis­pos­ing of fe­tal tis­sue after a mis­car­riage.

■ Act 1018 of 2017, which amended the Child Mal­treat­ment Act to re­quire physi­cians who per­form sur­gi­cal abor­tions on some­one younger than 17 to pre­serve the fe­tal tis­sue and no­tify the law en­force­ment

agency in the area where the girl lives of the abor­tion. The act pre­vi­ously ap­plied to girls age 13 or younger. Only its ap­pli­ca­tion to girls 14, 15 and 16 years old is be­ing chal­lenged in the law­suit.

■ Act 733 of 2017, which un­like the other laws doesn’t take ef­fect un­til Jan. 1. It first re­quires a physi­cian to ask a woman seek­ing an abor­tion if she knows the sex of the fe­tus. If she does, it re­quires the doc­tor to in­form the woman that it is il­le­gal to use abor­tion as a means of sex se­lec­tion, and re­quires the doc­tor to ex­pend “rea­son­able time and ef­fort” to ob­tain the woman’s en­tire preg­nancy his­tory to de­ter­mine whether she is likely be­ing truth­ful or ly­ing. The doc­tor may not per­form the abor­tion if the woman’s abor­tion his­tory in­di­cates she might be us­ing the pro­ce­dure as a sex-se­lec­tion tool.

Camp of New York told Baker on Thurs­day that to read the state’s briefs in op­po­si­tion to an in­junc­tion block­ing the laws’ en­force­ment, one would think the laws would have only mi­nor ef­fects on the sta­tus quo.

But they are all un­con­sti­tu­tional, and for good rea­son, she said, not­ing, “The con­sti­tu­tion does pro­tect against the tyranny of the ma­jor­ity and es­tab­lishes ab­so­lute rights” for the women in­volved and for the plain­tiff, Dr. Frederick Hop­kins, an abor­tion doc­tor at Lit­tle Rock Fam­ily Plan­ning Ser­vices.

To al­low the laws to take ef­fect would be to cause ir­repara­ble harm, she ar­gued.

Camp said she con­sid­ers Act 45 an out­right ban on sec­ond-trimester abor­tions, and told the judge, “This ban would be dev­as­tat­ing.”

While the state con­tends that the law doesn’t out­law all di­la­tion and evac­u­a­tion pro­ce­dures but al­lows some as long as other pro­ce­dures are done first to end the fe­tus’ life, the laws’ op­po­nents con­tend that there are prob­lems with such pro­ce­dures done be­fore di­la­tion and evac­u­a­tion and at least one of them is not avail­able at Lit­tle Rock Fam­ily Plan­ning Ser­vices, the only clinic in the state that per­forms sur­gi­cal abor­tions.

Planned Par­ent­hood clin­ics,

one each in Lit­tle Rock and Fayetteville, are the only other abor­tion clin­ics in the state and pro­vide only med­i­ca­tion abor­tions.

Camp told the judge that the di­la­tion and evac­u­a­tion pro­ce­dure used at the clinic is a “one-day pro­ce­dure” and less ex­pen­sive than the other meth­ods, which re­quire an overnight stay.

Act 45, she said, “would stop all abor­tions at 14 weeks.”

The U.S. Supreme Court has for­bid­den states from in­ter­fer­ing with a woman’s right to have an abor­tion un­til the point of vi­a­bil­ity, or the abil­ity of the fe­tus to sur­vive on its own out­side the womb — which is gen­er­ally re­garded as oc­cur­ring at about 24 weeks of preg­nancy.

Camp ar­gued that some of the other meth­ods the state said would still be avail­able, such as in­ject­ing the fe­tus with potas­sium chlo­ride to stop its heart, or cut­ting the um­bil­i­cal cord, aren’t rec­om­mended in many cases, and can­not be used on some pa­tients, “based on their anatomy.”

Judges have pro­hib­ited sim­i­lar laws in other states, such as Ok­la­homa and Kansas, from tak­ing ef­fect, she noted.

Bronni said the law was de­signed to pre­vent doc­tors from tear­ing a fe­tus out of the womb “limb by limb … while its heart is still beat­ing, which is in­hu­mane.”

“There’s no ques­tion it is within the state’s power to limit this bar­baric pro­ce­dure,” he said. Call­ing the law “nar­rowly” writ­ten, he added, “It’s sim­ply in­ac­cu­rate that a ban on death by dis­mem­ber­ment is a ban on all [di­la­tion and evac­u­a­tion] pro­ce­dures.”

The ACLU ar­gues that the laws are also too vague to en­force, cit­ing, for ex­am­ple, a pro­vi­sion in the sex-se­lec­tion pro­hi­bi­tion, Act 733, that doesn’t de­fine what con­sti­tutes “rea­son­able ef­forts” to ob­tain all of a pa­tient’s med­i­cal his­tory con­cern­ing abor­tions.

Bronni ar­gued, “Com­mon sense tells us physi­cians and their staffs … are able to tell us whether they’ve made rea­son­able ef­forts.”

He also in­sisted that Act 603, the tis­sue dis­posal man­date, im­poses “no such re­quire­ment”

that the fa­ther of the child must be no­ti­fied be­fore the fe­tal tis­sue is dis­posed of, as the ACLU con­tends.

He em­pha­sized, “It does not im­pose an af­fir­ma­tive ac­tion … to no­tify an ab­sent par­ent,” say­ing the fa­ther “au­to­mat­i­cally for­feits his rights re­gard­ing dis­po­si­tion … within five days of the death.”

Bronni added that un­der ex­ist­ing law, “a rapist has ab­so­lutely no parental rights in the state,” though Camp later coun­tered that the state­ment ap­plies only to con­victed rapists.

While the ACLU ob­jected to law en­force­ment of­fi­cers be­ing told about a girl’s abor­tion, which Camp called an in­va­sion of her and her fam­ily’s pri­vacy, Bronni ar­gued that “lo­cal law en­force­ment is much bet­ter sit­u­ated” than a doc­tor or the fam­ily to de­ter­mine whether a girl is a vic­tim of sex­ual abuse, and, ac­cord­ingly, whether the tis­sue is needed to pros­e­cute a case. He also ar­gued that law of­fi­cers are sworn to keep the in­for­ma­tion con­fi­den­tial.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.