Abortion law’s trial date scrubbed

A lawsuit challenging the constitutionality of a law passed last year by Arkansas legislators to ban most abortions at or after 12 weeks of pregnancy isn’t expected to go to trial March 17, after all.

The trial date, which was tentatively set months ago, was removed from the docket of U.S. District Judge Susan Webber Wright on Wednesday as a “housekeeping” matter.

Court officials said a previous order scheduling a nonjury trial for that date was never finalized, and since then, attorneys have indicated that they believe the judge can decide the matter on written arguments alone, without need for trial testimony.

If Wright decides there are issues remaining that must be debated at a trial, she will set a formal trial date.

Shortly after the lawsuit was filed last spring, Wright held a hearing on a request for a preliminary injunction to stop the state from enforcing the new law - Act 301 of 2013 - and granted the injunction.

She said then that the legislation was a clear violation of a woman’s constitutional right to obtain an abortion until the fetus is deemed “viable,” or capable of living outside the womb.

But Wright said two other sections of the three-part law would likely be permitted to stand if attorneys can show that those sections can be legally severed from the unconstitutional section. One of the other sections requires a woman seeking an abortion at or after 12 weeks of pregnancy to undergo an abdominal ultrasound to see whether doctors can detect a fetal heartbeat. The other requires doctors to tell the woman, in writing, the results of the heartbeat test as well as the statistical probability of bringing the fetus to full term.

Wright said those two sections don’t appear to impose an undue burden on the woman or be unconstitutional. She asked attorneys for the American Civil Liberties Union and the state to file motions arguing their positions on that question, as well as whether those sections can legally be severed from the clearly unconstitutional section of the law, because there is no severability clause in the act.

A state senator who sponsored the legislation contends that severability is now “built into” every piece of legislation, negating the need for a clause specifically allowing sections of a law to be applied if problems arise with any other part of the law. But an attorney for the plaintiffs contends the law must be regarded as a whole, with the entire law deemed unconstitutional.

The Arkansas chapter of the ACLU and the Center for Reproductive Rights in New York brought the lawsuit on behalf of two Little Rock doctors who provide abortions, Jerry Louis Edward and Tom Tvedten.