State's abortion ban illegal, 3 judges rule

They cite testimony 12 weeks not viable

An 8th U.S. Circuit Court of Appeals panel agreed with U.S. District Judge Susan Webber Wright’s finding that the state “offered no competing evidence” to challenge a doctor’s declaration that a 12-week-old fetus “is not and cannot be viable.”
An 8th U.S. Circuit Court of Appeals panel agreed with U.S. District Judge Susan Webber Wright’s finding that the state “offered no competing evidence” to challenge a doctor’s declaration that a 12-week-old fetus “is not and cannot be viable.”

A federal appeals court panel Wednesday upheld an Arkansas federal judge's ruling last year throwing out as unconstitutional a new state ban on abortions after 12 weeks of pregnancy.

A three-judge panel of the 8th U.S. Circuit Court of Appeals agreed with U.S. District Judge Susan Webber Wright's determination that Act 301 of 2013, also known as the Arkansas Human Heartbeat Protection Act, violated more than 40 years of U.S. Supreme Court precedent by outlawing abortions before viability.

Viability, the point at which a fetus is reasonably expected to be able to live on its own outside the womb, has generally been considered 24 or 25 weeks of pregnancy. Arkansas considered viability to begin at 25 weeks until the Legislature passed the 2013 law that attempted to further restrict abortions.

The ban, which would have allowed abortions at or after 12 weeks of pregnancy only in cases of rape, incest or "a highly lethal fetal disorder," was enacted in March of 2013 after both houses of the Legislature overrode the veto of then-Gov. Mike Beebe.

The law was to take effect in August of 2013, but two Arkansas doctors who perform abortions -- backed by the national Center for Reproductive Rights, the American Civil Liberties Union and the ACLU's Arkansas branch -- filed suit in April of 2013, prompting Wright to issue a preliminary injunction preventing the ban's implementation. The preliminary injunction became permanent on March 14, 2014, when Wright issued a written ruling throwing out the ban as unconstitutional.

The doctors, Louis Jerry Edwards and Tom Tvedten, would have been subject to having their medical licenses revoked under the "Heartbeat Act" if they had performed an abortion on a woman who was at least 12 weeks pregnant after a fetal heartbeat had been detected.

Wright's ruling left intact two other sections of Act 301 of 2013, and they have gone unchallenged. They require a woman seeking an abortion in Arkansas to undergo an abdominal ultrasound to check for a fetal heartbeat and, if a heartbeat is detected, require a doctor to inform the woman in writing and give her a statistical probability for carrying the fetus to term without an abortion.

The three-judge panel -- made up of U.S. Circuit Judges Lavenski Smith of Little Rock, Bobby Shepherd of El Dorado and Duane Benton of Kansas City, Mo. -- heard oral arguments on the case Jan. 13, the same day it also heard oral arguments in an appeal from North Dakota, where a judge outlawed a ban on abortions after six weeks of pregnancy. In that case, which the panel hasn't yet decided, the state contends that viability begins at conception because with in-vitro fertilization, a fertilized egg can survive six days before being implanted in a uterus.

All three judges on the panel were nominated by President George W. Bush.

The panel's nine-page ruling in the Arkansas case, written by Smith, addresses viability at some length. It noted that "the only factual record presented in this case" was the plaintiffs' presentation of a declaration by Dr. Janet Cathey of Little Rock, who said that at 12 weeks of pregnancy, "a fetus cannot in any circumstance survive outside the uterus. Thus, a fetus at 12 weeks is not and cannot be viable."

The panel noted, as did Wright, that the state "offered no competing evidence challenging Dr. Cathey's testimony."

"Because the State made no attempt to refute the plaintiffs' assertions of fact, the district court's summary judgment order must be affirmed," Smith wrote. He went on to say that "as an intermediate court of appeals, this court is bound by the Supreme Court's decisions" in two previous cases, a 1992 case called Planned Parenthood of Southeastern Pennsylvania v. Casey, and Gonzales v. Carhart, decided in 2007.

"However, undeniably, medical and technological advances along with mankind's ever increasing knowledge of prenatal life since the Court decided Roe v. Wade [in 1973] and Casey make application of Casey's viability standard more difficult," Smith wrote. He said that makes the parties' obligation to provide the court with adequate scientific records "more critical."

He said the U.S. Supreme Court "has recognized that viability varies among pregnancies," and cited a 1983 case in which the nation's highest court said, with Justice Sandra Day O'Connor dissenting, that "as medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception."

When Roe was decided, viability was usually placed at 28 weeks (seven months), but as early as 24 weeks (six months), Smith said. He said the Casey case recognized that "advances in neonatal care have advanced viability to a point somewhat earlier."

He then cited a law review article stating that in 2006, a child was born at 21 weeks and six days of pregnancy, "and has thus far been resilient in the face of minimal odds of survival ... raising new questions about where the viability line should be drawn."

Smith wrote that "because a viability determination necessarily calls for a case-by-case determination and changes over time based on medical advancements," the Supreme Court has held that legislatures are better suited than courts at making such judgments.

"This case," Smith wrote, "underscores the importance of the parties, particularly the state, developing the record in a meaningful way so as to present a real opportunity for the court to examine viability, case by case, as viability steadily moves back towards conception."

Wednesday's ruling was praised by the plaintiffs.

"Today's ruling affirms that safely and legally ending a pregnancy remains a protected constitutional right in this country," said Nancy Northrup, president and chief executive officer of the Center for Reproductive Rights. "Women should not have to run to court in state after state, year after year, to protect their constitutional rights from these politically motivated attacks. The Constitution and the courts are clear: A woman's right to decide for herself whether to continue or safely and legally end a pregnancy does not change depending on what state she happens to live in."

Rita Sklar, executive director of the ACLU of Arkansas, said: "We are gratified by the courts affirming the lower court's decision. We think that people should have no doubt about the fact that there is an attempt to ban abortion outright, and that's what this legislation was trying to do."

Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said: "The attorney general is reviewing the opinion from the 8th Circuit and will evaluate how to proceed."

Metro on 05/28/2015

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