Arkansas Ordered to Face Lawsuit Challenging Abortion Law

Two Arkansas abortion providers in Little Rock won a judge’s approval to proceed with a challenge to the constitutionality of a state law making it illegal with some exceptions to abort a pregnancy after 12 weeks.

U.S. District Judge Susan Webber Wright in Little Rock in a ruling yesterday denied a request by the state’s attorney general to dismiss the lawsuit. The judge said the two doctors have standing to sue even though the law hasn’t gone into effect and they have sufficiently alleged the law infringes women’s constitutional rights.

The doctors have presented a “controversy that is ripe for review,” the judge said.

In North Dakota, the Center for Reproductive Rights yesterday sought court permission to challenge a new law mandating abortion providers have hospital admitting privileges.

The measure, scheduled to take effect Aug. 1, requires all doctors who perform abortions to have privileges at a hospital within 30 miles of their facility and permission to perform those same procedures at the hospital.

The Arkansas case was filed April 16 by Louis Jerry Edwards and Tom Tvedten, who are doctors affiliated with Little Rock Family Planning Services in the state’s capital city. Violation of the law could result in a doctor losing his medical license, according to their complaint.

The Arkansas Human Heartbeat Protection Act, known as Act 301, is scheduled to go into effect Aug. 16. It prohibits the abortion of a viable fetus, defined as having a detectable heartbeat, after 12 weeks unless the pregnancy is the result of rape or incest or the mother’s life is in danger.

Detectable Heartbeat

The doctors said that at 12 weeks, a fetus has a detectable heartbeat while still being months away from viability, and that 20 percent of the abortions in Arkansas take place after the 12th week, according to the ruling.

“The court finds that Plaintiffs have alleged facts sufficient to state a claim that the provision of Act 301 that prohibits abortions at 12 weeks gestation when a fetal heartbeat is detected impermissibly infringes a woman’s Fourteenth Amendment right to choose to terminate a pregnancy before viability,” the judge said.

Assistant Attorney General Colin Jorgensen didn’t immediately return a call to his office after regular business hours seeking comment on the ruling.

In North Dakota, the Center for Reproductive Rights already is suing the state on behalf of a Fargo women’s clinic over a rule requiring contracts with back-up doctors.

Yesterday’s request to challenge the new law was filed by lawyers for the Red River Women’s Clinic with Cass County Court Judge Wickham Corwin in Fargo.

“Its purpose is to shut down the clinic, the sole abortion facility in the state,” according to the proposed supplemental complaint filed yesterday with the center’s bid for permission to pursue the claim.

State Attorney General Wayne Stenehjem’s press office didn’t immediately respond to a phone message seeking comment on the filing.

Governor Jack Dalrymple signed the bill March 26.

‘‘The added requirement that the hospital privileges must include allowing abortions to take place in their facility greatly increases the chances that this measure will face a court challenge,’’ Dalrymple said then in a press statement.

‘‘Nevertheless, it is a legitimate and new question for the courts regarding a precise restriction on doctors who perform abortions,’’ the governor said.

That same day, Dalrymple also signed legislation banning almost all abortions after the detection of a fetal heartbeat, potentially as soon as the sixth week of a pregnancy, acknowledging it too would likely face legal challenge.

‘‘This bill is nevertheless a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade,’’ he said, referring to the 1973 U.S. Supreme Court decision establishing a woman’s constitutional right to an abortion before a fetus is able to live outside the womb.

Violation of the heart-beat rule would constitute a felony, while a breach of the hospital admitting privileges rule would be a misdemeanor.

Corwin last month presided over a trial of the clinic’s challenge to the back-up doctor law and other restrictions applied to so-called medication abortions, according to the court’s electronic docket. He hasn’t issued a written decision.

The case in Arkansas is Edwards v. Beck, 13-cv-00224, U.S. District Court, Eastern District of Arkansas (Little Rock).

The North Dakota case is MKB Management Corp., doing business as Red River Women’s Clinic v. Burdick, 09-2011-cv-02205, District Court for the East Central Judicial District, Cass County, North Dakota (Fargo).

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