by Max Brantley
The law is suspended while the lawsuit by abortion providers, brought by the ACLU and the Center for Reproductive Rights, is tried, but the judge made clear that, based on evidence so far, the state was likely to lose its defense of the law.
The awarding of an injunction is a strong signal of how the case is likely to turn out because one standard is the likelihood of prevailing on the merits.
Sen. Jason Rapert, sponsor of the legislation, was on hand to caterwaul about the murderers and baby killers and plot his next round of talking points on Twitter. The lawyers whose hours will be paid by the state of Arkansas talked to reporters afterward, too. A spokesman for the attorney general had no comment on whether there'd be an appeal of the injunction.
The bill was passed over the veto of Gov. Mike Beebe, a lawyer who can read Supreme Court precedent. Judge Wright noted the precedents in her ruling and the likelihood that the law was unconstitutional. Evidence to the contrary: Jason Rapert says abortions ought to stop. Happily, I don't think he'll qualify as expert testimony.
And why did the judge think the law likely to be unconstitutional in the end? She said: "I believe the plaintiffs established this because the Supreme Court has consistently used viability as a standard with respect to any law that regulates abortion."
Leslie Peacock reports that the judge raised a question about the portion of the law that requires an ultrasound and a report to a woman about the results of that test. She asked whether that portion of the law could be severed from the abortion ban itself and said she was inclined to preserve it. Bettina Brownstein, attorney for the ACLU, objected to severing that portion of the law. The judge said she could submit a brief on the question. The idea about severability was raised in a proposed friend of the court brief submitted by an Arkansas anti-abortion group.
The state argued that the plaintiffs couldn't prove there were woman outside the exceptions allowed by the law who'd want an abortion after 12 weeks but before viability. The judge noted that the state's own data show that a significant number of abortions are performed during that period.
The judge dismissed the state's effort to use a 2007 partial-birth abortion ban case as an avenue to expand a ban before fetal viability. She said that case was about a procedure used post-viability. She sympathized with the tortured arguments raised by the attorney general's office. "I know you're in a tough position," she said.
It really is that simple. As I wrote this morning.
A news release from the Center for Reproductive Rights follows on the jump.
For the case books, the case is styled:
LOUIS JERRY EDWARDS, M.D., on
behalf of himself and his patients, ET
JOSEPH M. BECK, M.D., President of
the Arkansas State Medical Board, and
his successors in office, in their official
capacities, ET AL
More from the hearing:
After the Judge Wright handed down her decision, Brownstein said she believes the state has "a tough row to hoe" to prove that Act 301 is not unconstitutional. Colin Jorgensen from the Attorney General's office surely knew he was on thin ice having to argue, as he did, that he did not necessarily accept that the Arkansas Department of Health's data, figures that show that 20 percent of abortions are performed after the 12th week, are correct and that there is "no evidence that there is a single woman who will choose to have an abortion past 12 weeks" pregnancy, "outside the exceptions," being the life of the mother, rape or fatal fetal anomaly. "Does it matter" what the numbers are? Wright asked Jorgensen. "I'm not going to require the plaintiffs to wait."
When Wright pointed out that the U.S. Supreme Court has said that state legislators can't determine viability, Jorgansen said there "was no reference to viability in the act," a singularly odd statement since the act specifically defines "viability," describing it as a "medical condition that begins with a detectible human heartbeat." The bill does not base its restriction on abortion based on viability, but on the heartbeat, he argued. But if A equals B and B equals C ...?
With Wright repeatedly observing that the Gonzales case applies only to one method of abortion and not to abortion itself, Jorgensen had to struggle mightily to keep drawing parallels between Act 301 and the Supreme Court case, at one point apologizing for "talking in circles."
The judge said she would "concede" that "there has been a nibbling away at Roe, and there is some indication that voters now want to tighten up" abortion laws, but reminded the state that she was only to rule on whether state law passes constitutional muster. "This act defines viability as something that viability is not."
Wright also noted that the language in the bill requiring the woman to undergo and ultrasound and her doctor to make a report to her was clearly "all part of a scheme to limit" abortions (she quickly noted that "scheme" has perjorative connotations and that she should have said "plan"), but that that motivation was not in itself unconstitutional.
Said Nancy Northup, president and CEO at the Center for Reproductive Rights:
“Today’s decision ensures that the women of Arkansas will remain protected from this blatant unconstitutional assault on their health and fundamental reproductive rights.
“Such an extreme ban on abortion would have immediate and devastating consequences for women in Arkansas, especially those who could not afford to travel out of state to access reproductive health care.
“We are confident that the court will continue to uphold women's constitutional right to make their own decisions about their pregnancies and ultimately strike down this harmful law permanently.”
The Center and the ACLU filed the lawsuit, Edwards v. Beck, in the U.S. District Court for the Eastern District of Arkansas on behalf of two physicians who provide abortion services at a Little Rock clinic, arguing that the Arkansas law violates the U.S. Constitution by banning pre-viability abortions.
The physicians are represented by Stephanie Toti, senior staff attorney for the Center for Reproductive Rights, Talcott Camp at the ACLU, and Bettina Brownstein and Holly Dickson with the ACLU of Arkansas.
The Arkansas law banning abortion at 12 weeks is one of the most extreme in the nation, only surpassed by the recently-enacted North Dakota measure banning the procedure as early as six-weeks of pregnancy, before many women even know they are pregnant. The Center for Reproductive Rights has committed to also challenging the North Dakota law before it is scheduled to take effect in August 2013.