by Max Brantley
Plaintiffs allege that, with certain narrow exceptions, Act 301 bans all abortions beginning at twelve weeks gestation, which they assert is a pre-viability point in a pregnancy. Plaintiffs further allege that at the twelve-week mark, a fetus has a detectible heartbeat but is still months away from the point of viability, and in Arkansas, twenty percent of abortions take place at or after twelve weeks. Accepting these allegations as true, as the Court must do at this juncture, the Court finds that Plaintiffs have alleged facts sufficient to state a claim that the provision of Act 301 that prohibits abortions at twelve weeks gestation when a fetal heartbeat is detected impermissibly infringes a woman’s Fourteenth Amendment right to chose to terminate a pregnancy before viability. See Casey, 505 U.S. at 845-846, 112 S.Ct. at 2804 (1992)(holding that an abortion law is unconstitutional on its face if “in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion”)
She will proceed
tomorrow Friday with holding a hearing on a request for an injunction to prevent the law from taking effect while the suit is being decided.
The judge's order, which you can read in full here, rejected a request for dismissal because the suit was brought by doctors. She said the Supreme Court has allowed doctors to sue to protect rights of their patients and they had standing because of potential disciplinary action against them should they perform abortions in the future.. She also said "Plaintiffs have standing to challenge Act 301 on the basis that it imposes an undue burden on their patients’ right to choose."
The state argued that because Act 301 doesn't prohibit ALL abortions at any point before viability (it allows some narrow exceptions) it was not subject to constitutional challenge. The judge also rejected that argument, saying:
In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court reaffirmed the fundamental holdings of Roe v. Wade—including the standard that the line between a woman's interest in control over her destiny and body and the state's interest in promoting the life or potential life of the unborn is drawn at viability—“the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection . . . . ” The Casey Court noted that although the line of viability may come earlier with advances in neonatal care, the attainment of viability continues to serve as the critical factor
Nobody has yet argued that viability is possible at 12 weeks. Arkansas also passed a law this session, not yet challenged but likely to be, that sets a 20-week cutoff for abortions.