May 18 (Bloomberg) -- A federal judge temporarily blocked an Arkansas law limiting a woman’s right to an abortion at the 12th week of pregnancy if a fetal heartbeat can be detected.
U.S. District Judge Susan Webber Wright barred enforcement of the state’s Human Heartbeat Protection Act after a hearing yesterday in Arkansas’ capital city, Little Rock.
“Viability is the key here,” she told lawyers for both sides, acknowledging that the state has an interest in protecting the life of a fetus that could survive outside its mother’s womb.
“I find it’s more likely than not that this act violates that premise,” Wright said. “It defines viability as something viability is not.”
The measure known as Act 301 was made law in March over Democratic Governor Mike Beebe’s veto. It allows exceptions for pregnancies resulting from rape or incest, medical emergencies and to save the life of the mother. It was scheduled to take effect on Aug. 16.
Wright’s injunction remains in force until she rules on the constitutionality of the legislation. Yesterday’s hearing before a full courtroom lasted about two hours.
The plaintiffs, Louis Jerry Edwards and Tom Tvedten, are abortion care providers affiliated with Little Rock Family Planning Services.
Act 301 would deny about 20 percent of Arkansas women seeking constitutionally protected, pre-viability abortion care their right to access that care, they said in an April 16 court filing asking Wright to bar enforcement of the law while its legality was being challenged.
Violations of the act are punishable by the revocation of a doctor’s medical license, according to a complaint filed that same day by Little Rock attorney Bettina Brownstein and lawyers with the American Civil Liberties Union and the Center for Reproductive Rights.
Aaron Sadler, a spokesman for Arkansas Attorney General Dustin McDaniel, declined to comment on the ruling after the hearing.
“We’re happy and relieved, but not really surprised,” Brownstein told reporters outside the courthouse after Wright ruled. “We anticipated a favorable ruling and continue to anticipate favorable rulings. The law’s really clear in this area.”
The challengers haven’t yet decided if they’ll file papers asking the court to rule on whether the act passes constitutional muster or go directly to trial. Wright didn’t reach that issue yesterday.
“Act 301 violates 40 years of Supreme Court precedent beginning with Roe v. Wade, which guaranteed the right of women to terminate a pregnancy prior to viability,” Brownstein told Wright in court yesterday.
“We believe this is a straightforward case and per se unconstitutional,” Brownstein said.
In its 1973 Roe v. Wade decision and its 1992 ruling in Planned Parenthood v. Casey, the Supreme Court held women have a constitutional right to an abortion before a fetus is viable outside its mother’s womb.
“There is no evidence that there is a single woman or actual women that will seek an abortion and not be able to get it under Act 301,” an attorney for the state, Colin R. Jorgensen, told the judge yesterday.
McDaniel opposed the bid to block enforcement in papers filed with Wright on May 7, arguing the measure is constitutional.
“Act 301 does not prohibit any woman from terminating her pregnancy in the first trimester, when the vast majority of abortions are performed,” McDaniel said then. He also asked the judge to dismiss the case.
Wright on May 15 denied McDaniel’s request that she throw out the case, finding the doctors adequately pleaded a constitutional challenge and had legal standing to pursue it.
The measure defines viability as that point when a heartbeat is detectable, not when a fetus can survive outside the womb, Wright said in denying the bid for dismissal.
U.S. Supreme Court precedent defines viability as when there’s a realistic chance of being able to keep a fetus alive outside its mother’s womb, she said.
The judge said yesterday she will consider separating from the litigation two parts of Act 301 she said didn’t appear to be unconstitutional. One requires a physician to look for the heartbeat in the fetus carried by a woman seeking an abortion and tell her the results, the other compels the doctor to tell a woman the statistical likelihood of her carrying the fetus to term if she doesn’t abort it.
State Senator Jason Rapert, a Republican and a sponsor of the legislation, attended yesterday’s hearing. He told reporters afterward that while Wright’s ruling was a disappointment, he believed the state was on “good ground.”
The legislator said he supports pregnancy prevention and education. Still, he added, “there’s a point in time when enough is enough. We have to do something.”
The case in Arkansas is Edwards v. Beck, 13-cv-00224, U.S. District Court, Eastern District of Arkansas (Little Rock).
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