2 abortion bills seen as legal tests

From outset, lawsuits expected

— Two bills restricting abortion are hurtling through the Arkansas Legislature, and people on both sides are girding themselves for what they call an inevitable court battle.

That may be why the bills were filed, one former law school dean said Friday.

House Bill 1037 by Rep. Andy Mayberry, R-Hensley, bans abortions after 20 weeks. The bill could go before the Senate on Monday. Senate Bill 134 by Sen. Jason Rapert, R-Bigelow, bans abortion after 12 weeks. It is scheduled for a vote in a House committee Tues-day and could go before the House by the end of the week. Both bills include exemptions for pregnancy caused by rape or incest and allow abortions to save the life of the mother or to prevent her from catastrophic injury.

If already in place, Rapert’s bill would have affected about 20 percent of abortions in Arkansas. Of the 4,033 abortions that occurred in Arkansas in 2011, 815 occurred at or after 12 weeks, according to the Arkansas Department of Health. Mayberry’s bill would have affected 48 abortions, or 1.2 percent of all Arkansas abortions in 2011.



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“It’s pretty clear that given current constitutional law neither of those two bills are constitutional. But I think that is the point. Obviously if the law passes, there will be a lawsuit, and if I’m right that’s the intention,” said John DiPippa, the former dean of the W.H. Bowen School of Law at the University of Arkansas at Little Rock. “From [supporters’] perspective ... the court needs to change its ruling, and this is an opportunity for the court to change its ruling.”

DiPippa said that to hold the bills constitutional, the U.S. Supreme Court would have to reconsider two major decisions: its 1973 decision in Roe v. Wade and its 1992 decision in Planned Parenthood v. Casey.

The Roe v. Wade decision stated that a woman can legally have an abortion until the fetus is viable, or able to live outside the mother, generally around the start of the third trimester. The Planned Parenthood v. Casey case affirmed that states may have an interest in restricting abortion once a fetus is viable. Before viability, the state cannot prohibit abortion.

Mayberry’s 20-week ban is based on the theory from some doctors that a fetus can feel pain beginning at 20 weeks. Rapert’s 12-week ban is based on when a fetal heartbeat can first be detected using an abdominal ultrasound.

DiPippa said both bills work off the same premise: If the fetus exhibits personlike attributes, such as the ability to feel pain or has a heartbeat, then the state could claim that it has an interest in protecting it.

“This isn’t a question of the people saying we don’t understand the law,” DiPippa said. “This is a way to reinterpret what personhood means.”

The House member sponsoring Rapert’s bill, Rep. Ann Clemmer, R-Benton, said courts can reconsider when abortion is acceptable if laws challenging current practice are filed.

“I believe we’re in an era of inconvenience and disposable babies, and I would like to see that window closed down a little bit. If you say you are pro-life, and you are pro-life, you at some point have to do something toward that end. We are pushing the pro-life cause forward,” Clemmer said. “Courts don’t just rule. They don’t just sit in chambers and make rulings. Laws have to be passed, challenges have to be made and then the courts have something to change.”

Mayberry said he didn’t spend a lot of time worrying about lawsuits before filing the bill.

“That’s not an overwhelming issue. The main concern was let’s get good legislation,” he said. “Even under the current Roe v. Wade ruling, I think this holds good, solid ground.”

Bettina Brownstein, an attorney representing the Arkansas chapter of the American Civil Liberties Union, has promised a lawsuit if either bill becomes law.

“If this passes, you might as well write a check to the ACLU and Planned Parenthood because we will feel the necessity to go to court to protect the rights of women. I can guarantee that if passed into law, it will be overturned, and it will be expensive for the state of Arkansas,” she said when testifying against Rapert’s ban on Jan. 30.

The language of both bills addresses the chance of a legal challenge.

Rapert’s 12-week ban has a clause stating that if a state or federal court strikes down the bill as unconstitutional, the law will go into effect if an appeals court rules it constitutional.

Mayberry’s 20-week ban includes two pages of “legislative findings” that lay out a medical argument that a fetus can feel pain.

Arkansas Right to Life general counsel Eric Wewers said he always expects lawsuits over abortion legislation. The bill came from Arkansas Right to Life. Mayberry is a board member.

Litigation would be filed against the state, not an outside advocacy group. Attorney General Dustin McDaniel has spoken with the sponsors about the chance of a lawsuit, his spokesman, Aaron Sadler, said.

Brownstein said Roe v. Wade and Planned Parenthood v. Casey have been very clear: States cannot substantially ban abortion before the fetus is viable. Arkansas code defines viability as 25 weeks into the pregnancy and bans most abortions at that point.

“We will be going to court,” Brownstein said. “They both involve pre-viability bans on abortion.”

Wewers said there’s more to rulings restricting abortion than pre-viability or post-viability.

“If the only standard you’re looking at is viability … I would say you are right” the bill is unconstitutional, Wewers said. “People tend to get locked in on the viability issue as being the only criteria in terms of when you can have abortion and when you can’t.”

Wewers said the Casey ruling shows that the state has a legitimate interest in protecting fetal life, and this bill falls within it.

He said that in the 2007 Gonzales v. Carhart case, the court also looked at the extent of imposition that the state places on abortion, such as making it more difficult or more expensive to get one.

Wewers said Mayberry’s bill places an “incidental” restriction on abortion previablity when a fetus may feel pain from an abortion and the state government has a legitimate interest in protecting fetal life.

“It really doesn’t prevent someone from obtaining an abortion, but it may speed up their decision-making process,” he said. “In the grand scheme of things we’re talking about a three-week window.”

Brownstein called the limit more substantial.

“Clearly banning an abortion pre-viability is about as big as an obstacle as there can be,” she said.

Wewers declined to comment on the constitutionality of the 12-week ban. Arkansas Right to Life has endorsed the 20-week ban, but not the 12-week ban.

Rapert defines viability in his bill as when the fetus has a detectable heartbeat.

Mathew Staver, chairman of a nonprofit, anti-abortion legal group called Liberty Counsel, agreed with Rapert’s viability standard.

“The likelihood of successful birth is very, very high once you reach the 12-week point,” Staver said. “This one addresses viability based on the chances of the child being born alive. I think the state has an interest in protecting the developing life.”

Staver said the bill would pass constitutional scrutiny because it balances exemptions for the mother’s life with the fetus’s chance of being born alive.

“Existing case law allows the state to do that,” he said.

But Brownstein disagreed.

She said the court has ruled that a woman’s right to choose whether to abort is paramount before the fetus is viable and the state’s interest in life is paramount after viability.

“It’s absolutely clear that you cannot ban [abortion] pre-viability,” she said.

Rapert said the viability argument makes no sense.

“That’s the argument that people use when they have no other argument to utilize,” he said.

“We have a very irrational policy in my opinion on abortion in this country. We have legalized an institution of death. We’ve been last in a lot of things in Arkansas, let us be first in life.”

Gov. Mike Beebe, a Democrat, said it would be easy to suggest that Rapert’s bill is unconstitutional, but he has questions about Mayberry’s less-restrictive legislation.

“I don’t necessarily fault anybody for passing a bill that requires some interpretation or that may end up in litigation, and I don’t think you don’t pass [it] because of a threat of litigation, but I think you don’t pass [it] if there is substantial evidence that it violates a constitutional provision,” he said.

Front Section, Pages 1 on 02/17/2013

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