by Max Brantley
Gov. Mike Beebe's preliminary assessment is that Sen. Jason Rapert's bill to ban most abortions (after first jamming a probe up an unwilling woman's vagina) is unconstitutional.
This didn't require a room full of Learned Hands to reach such a conclusion. Rapert would make it a crime to provide an abortion to a woman after a fetal hearbeat had been detected, as early as 5.5 weeks.
In 1973, Roe V. Wade barred states from prohibiting abortion before viability of the fetus, then about 28 weeks. Then you had the 1993 ruling in Planned Parenthood v. Casey, which reaffirmed Roe as to, among others,
"a recognition of a woman's right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State, whose previability interests are not strong enough to support an abortion prohibition or the imposition of substantial obstacles to the woman's effective right to elect the procedure;"
This 20-year-old ruling is undisturbed, too, by subsequent court rulings, in this language:
The Roe rule's limitation on state power could not be repudiated without serious inequity to people who, for two decades of economic and social developments, have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain costs of overruling Roe for people who have ordered their thinking and living around that case be dismissed.
Get it? States may not prohibit abortions pre-viability. They also may not impose "substantial obstacles" to that right. A prohibition, as Rapert proposes, fails for sure. Arguably, he fails, too, with his requirement of an unnecessary and unwanted probe of private parts. For Arkansas to try to do otherwise than what the law requires on abortion access would produce "serious inequity."
It is beyond shameful that a mere eight senators could be mustered to vote against this bill, which tramples the clear dictates of law. It is 1957 and interposition all over again, based on a demagogue's wish that abortion could be outlawed. Pass now, pay legal fees later.
ALSO: Gene Lyons suggests, rightly I think, that passage of Rapert's bill also could trigger wrongful death investigations of miscarriages. A miscarriage of a fetus older than six weeks would require the state to find out whether it was induced without required heatbeat test, wouldn't it?