U.S. justices to weigh revisiting abortion law
Rutledge disputes fetus-viability line
Justices on the U.S. Supreme Court are set to discuss whether to revisit Arkansas’ invalidated 2013 law that prohibited abortions after 12 weeks of pregnancy if a fetal heartbeat was detected.
The court’s calendar shows a conference set for Friday on state Attorney General Leslie Rutledge’s request that the justices revisit the case.
The high court receives about 7,000 requests each year to review cases that have been disposed of by the nation’s appellate courts, and it generally accepts only 100 to 150 of them.
The court could release its decision on whether to accept Rutledge’s petition for a writ of certiorari anytime between Tuesday, the first day decisions on petitions are expected after the conference date, and the end of its current session in June.
The Arkansas law that is the subject of the petition — Act 301 of 2013, known as the Arkansas Human Heartbeat Protection Act — was found unconstitutional March 14, 2014, by U.S. District Judge Susan Webber Wright in Little Rock.
A three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis upheld Wright’s ruling last year, on May 27, and the 8th Circuit later denied Rutledge’s requests for a rehearing by
the panel or the entire 8th Circuit.
Wright found that the law’s ban on abortions after 12 weeks of pregnancy was unconstitutional, citing U.S. Supreme Court precedents dating back to the 1973 case Roe v. Wade, which prohibits abortions only after viability — the point at which a fetus can live independently outside the womb.
Viability is generally considered possible at 24 to 28 weeks of pregnancy. Arkansas law has long allowed abortions until the 25th week of pregnancy, in keeping with the precedents.
In upholding Wright’s ruling, the three-judge 8th Circuit panel discussed the concept of viability at length in its written opinion, noting, as did Wright, that the state had offered no evidence to counter a declaration by a Little Rock physician that at 12 weeks of pregnancy, “a fetus cannot survive outside the uterus. Thus, a fetus at 12 weeks is not and cannot be viable.”
The declaration from Dr. Janet Cathey was submitted in support of the plaintiffs, doctors Louis Jerry Edwards and Tom Tvedten, who perform abortions and complained that the new law could subject them to revocation of their medical licenses.
The 8th Circuit opinion, delivered by a panel consisting of U.S. circuit judges Lavenski Smith of Little Rock, Bobby Shepherd of El Dorado and Duane Benton of Kansas City, Mo. — noted that Wright’s ruling “must be affirmed” because the state “made no attempt to refute the plaintiffs’ assertions of fact.”
The opinion noted that it was bound by U.S. Supreme Court precedent, while asserting that “undeniably, medical and technological advances, along with mankind’s ever-increasing knowledge of prenatal life” make application of the long-held viability standard “more difficult.”
The opinion also said the U.S. Supreme Court “has recognized that viability varies among pregnancies” and cited a 1983 case in which the majority of justices said that “as medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception,” from 28 weeks to 24 weeks of pregnancy.
Rutledge seized on the panel’s mention of “new questions about where the viability line should be drawn” in asking the U.S. Supreme Court to revisit the “viability rule.” She argued that viability standards established in past cases are “arbitrary,” “unconstitutional” and outdated.
The American Civil Liberties Union and the Center for Reproductive Rights, which backed the Arkansas abortion doctors in their lawsuit, have asked the high court to reject Rutledge’s request to review the Arkansas case. They argued the case “was a straightforward application” of well-established precedent and doesn’t present a disagreement among courts of appeal, which is the most common reason the high court agrees to review cases.
Wright’s ruling didn’t find all of Act 301 unconstitutional, leaving intact sections requiring any woman seeking an abortion in Arkansas after 12 weeks of pregnancy to undergo an ultrasound to determine whether a fetal heartbeat can be detected, and, if so, requiring doctors to pass that information on to the woman.
The Supreme Court has also been asked to revisit a case from North Dakota, in which the 8th Circuit upheld a district court’s finding that a new state law on abortion was unconstitutional. The law outlawed virtually all abortions as early as six weeks of pregnancy, which opponents have called “the most extreme ban in the nation.”
The 8th Circuit heard oral arguments on that case at the same time as the Arkansas case.
The high court could hold its decision on whether to take up the Arkansas case until it decides whether to take up the North Dakota case. The court could issue a decision about the North Dakota case as early as Jan. 25.
The high court’s website notes that the dates on which petitions are scheduled to be considered “is subject to change.” The website also states, “In most cases, the disposition of a petition discussed at a particular Conference will be announced in an order that is issued at 9:30 a.m. on the Monday after that Conference,” but next Monday is a federal holiday.