Ban Banned
Court downs 12-week abortion law
No matter your opinion on legal abortion—and we oppose it in most circumstances—a recent federal appeals court' decision was both inevitable and avoidable.
In 2013, Arkansas' Republican-controlled Legislature passed the second-most restrictive abortion law in the nation.
The measure, called the Arkansas Human Heartbeat Protection Act, banned most abortions after 12 weeks of pregnancy if a fetal heartbeat could be detected.
Only North Dakota's law—banning abortions after six weeks—is more stringent. And it has been blocked by federal court. Now, so has the Arkansas law. Gov. Mike Beebe, a Democrat, vetoed the bill. But the Legislature voted to override that veto.
It was a bad move and we said so at the time. Such a ban could never survive court scrutiny. And it hasn't. So far, twice. Two Little Rock physicians, backed by the American Civil Liberties Union and the Center for Reproductive Rights, challenged the law last year.
U.S. District Judge Susan Webber Wright struck down the law as unconstitutional.
In her ruling, she wrote the ban “impermissibly infringes a woman's Fourteenth Amendment right to elect to terminate a pregnancy before viability.”
The state appealed. And last week a threejudge panel of the U.S. Court of Appeals for the 8th Circuit upheld Wright's ruling.
“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,” the court wrote.
The U.S. Supreme Court has already ruled that a state cannot intervene before viability save for consideration of a mother's health. The court originally held viability as falling outside the first trimester, though now premature infants as young a 21 weeks, 6 days have survived.
But, as the doctors challenging the law pointed out, all fetuses have a heartbeat at 12 weeks, though none are considered viable.
Arkansas has a backup plan, though, with another law that bans abortions after 20 weeks. It imposes a two-day waiting period after a required ultrasound. Congress is mulling a bill imposing a 20-week ban nationwide. Ten other states already have such a ban, though Idaho's law was struck down a few days ago by the U.S. 9th Circuit Court of Appeals.
So 20-week bans will have to be decided, eventually and again, by the nation's highest court. And that's where Arkansas should focus.
The idea of a 12-week restriction on legal abortions was a non-starter from the get-go. Even the lawmakers who voted for the bill knew that. But it made for good politics with the many pro-life voters in the state. It made elected officials look like they were doing something, when in fact they were doing precisely nothing but forcing the state to waste time and money on a law that had no chance whatsoever.
The state may decide to appeal further. That would be a mistake. There is no hope, no prayer for a 12-week ban. Lawmakers and state officials should focus on what is possible.