Lawyers from both sides of the abortion debate have acknowledged that an Arkansas bill that bans terminations after 12 weeks is likely to be struck down in the courts.
A vote by the Republican-dominated Arkansas legislature on Wednesday gave the state the most restrictive abortion laws in the US.
Lawmakers voted by 56 to 33 to override Governor Mike Beebe’s veto of the human heartbeat protection bill, a day after the Senate voted to do the same.
Beebe, a Democrat, has warned that the measure and a similar bill passed earlier that restricts abortion to under 20 weeks, will end up wasting taxpayers’ money because the state will likely opt not to defend them in court.
The American Civil Liberties Union and the Center for Reproductive Rights have already vowed to sue, in order to block the 12-week ban from becoming law. The bill will not take effect until late June at the earliest, whereas the 20 week bill took effect immediately.
Republican supporters of the bill have welcomed a court challenge. The bill’s sponsor, Jason Rapert, a Republican senator who originally proposed setting the ban at six weeks, has said that he believes his amended bill will stand up to a court challenge and could “change abortion policy in our nation from cost to coast”.
Roe v Wade, the 1973 decision by the US supreme court, ruled that a woman has a right to an abortion in all states until a foetus could viably survive outside the womb. A foetus is generally considered viable at 22 to 24 weeks.Lawyers within the anti-abortion movement have said that the Arkansas bill is likely to be struck down by the district court and not make it to appeal, let alone the supreme court, as a 12-week foetus is not viable.
Paul Linton, a lawyer in Illinois who was formerly general counsel to Americans United for Life, described the Arkansas heartbeat bill as “quite misguided”. He said that he would not be surprised if the attorney general in Arkansas, Dustin McDaniel, decided not to defend it.
Linton told the Guardian: “The AG in Arkansas is not sympathetic to efforts like this and he is the one who has the responsibility to defend it. I wouldn’t be surprised if when ACLU or others challenge it, if he went into court and said he can’t defend it.”
McDaniel, who did not immediately respond to a request from the Guardian for comment, last year rejected a proposal by anti-abortion activists to put a “personhood” amendment on the state’s ballot.
Linton said, should the attorney general not defend the bill, there would then be an injunction barring its enforcement. “That would be the end of the case,” said Linton. “There would be no appeals to the court of appeal, let alone the supreme court.”
Linton, who is in favour of banning abortion except in cases where the life of the mother is threatened, said he had sympathy with the legislature but they had picked a bad strategy. “I understand their frustration. But you have to take other steps.”
He said even if the bill survived unchallenged, it would only affect a small percentage of all abortions in Arkansas. “Although I would agree that all life is precious, the suggestion that this will end abortions in Arkansas, even it if it upheld, is a mistake. It would have a very low impact on abortions in Arkansas,” he said.
According to the Centers for Disease Control and Prevention, 91.7% of abortions happen early in the pregnancy – before 13 weeks gestation.
James Bopp, a leading anti-abortion lawyer and general counsel for National Right to Life, told the New York Times that the Arkansas bill was “futile” because the lower courts are likely to affirm existing supreme court rulings.
Talcott Camp, deputy director, ACLU’s reproductive freedom project, told the Guardian: “What if Arkansas had a ban on interracial marriage? We would all be saying, ‘You’ve got to be kidding’, right?”
On Wednesday, a federal judge in Idaho struck down a 2011 state law that banned most abortions after 20 weeks of pregnancy, a decision believed to be the first time a court has ruled that such a measure was unconstitutional.
Asked what impact that decision would have on the Arkansas law, Camp said: “Whether folks are advocating a 20-week ban or a six-week ban, the goal of it is to make an intensely private decision which is between a woman, her family and her doctor, and put it in the hands of politicians.
“As a matter of federal law, you can’t do that. It is very straightforward.”
[Abortion protester via Ryan Rodrick Beiler / Shutterstock]