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Abortion-law foes, state clash in federal court

U.S. judge hears case on halting rules by Linda Satter | July 14, 2017 at 4:30 a.m.

Abortion laws that are on the verge of going into effect in Arkansas would impose "undue burdens" on women that outweigh the state's interests in protecting the populace, an attorney for the American Civil Liberties Union argued Thursday before a federal judge in Little Rock.

But an attorney for the state said any inconveniences the laws create cannot outweigh the public's interests in doing what is right, especially when it comes to "outlawing a particularly barbaric form of abortion" that he said involves prying a fetus from a womb, "using clamps, forceps and scissors until it bleeds to death ... leaving a tray full of tiny hands, arms and feet."

U.S. District Judge Kristine Baker heard about two hours' worth of arguments from Talcott Camp, deputy director of the ACLU's Reproductive Freedom Project, and Nicholas Bronni, deputy solicitor general under Arkansas Attorney General Leslie Rutledge, on whether to temporarily block the laws from going into effect until their constitutionality can be decided.

As is her standard practice, Baker didn't rule from the bench but took the matter under advisement, telling attorneys she is well aware of the approaching date when three laws will go into effect.

The ACLU contends that the three laws would go into effect July 30, but Rutledge said in a written opinion that the effective date of the three laws would be Aug. 1. A fourth law takes effect Jan. 1.

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The laws being challenged in a June 20 lawsuit backed by the ACLU, the ACLU of Arkansas and the Center for Reproductive Rights in New York are:

• Act 45 of 2017, which places restrictions on the dilation and evacuation method of abortion, which is the most common form performed during the second trimester, which begins at 14 weeks of pregnancy. It is also the only method available during the second trimester in outpatient facilities in Arkansas.

• Act 603 of 2017, which amends an existing law requiring fetal remains from surgical abortions to be disposed of in accordance with the Arkansas Final Disposition Rights Act of 2009. The 2009 law already governed the disposal of "a dead body or a fetus" but allowed any fetal tissue defined as "human tissue" to be disposed of without regard to the law. The new law removed "fetal tissue" from the definition of "human tissue."

The ACLU says the law requires notice to and consent of third parties prior to every abortion and can be read to bar medication abortions and prevent an individual from privately disposing of fetal tissue after a miscarriage.

• Act 1018 of 2017, which amended the Child Maltreatment Act to require physicians who perform surgical abortions on someone younger than 17 to preserve the fetal tissue and notify the law enforcement agency in the area where the girl lives of the abortion. The act previously applied to girls age 13 or younger. Only its application to girls 14, 15 and 16 years old is being challenged in the lawsuit.

• Act 733 of 2017, which unlike the other laws doesn't take effect until Jan. 1. It first requires a physician to ask a woman seeking an abortion if she knows the sex of the fetus. If she does, it requires the doctor to inform the woman that it is illegal to use abortion as a means of sex selection, and requires the doctor to expend "reasonable time and effort" to obtain the woman's entire pregnancy history to determine whether she is likely being truthful or lying. The doctor may not perform the abortion if the woman's abortion history indicates she might be using the procedure as a sex-selection tool.

Camp of New York told Baker on Thursday that to read the state's briefs in opposition to an injunction blocking the laws' enforcement, one would think the laws would have only minor effects on the status quo.

But they are all unconstitutional, and for good reason, she said, noting, "The constitution does protect against the tyranny of the majority and establishes absolute rights" for the women involved and for the plaintiff, Dr. Frederick Hopkins, an abortion doctor at Little Rock Family Planning Services.

To allow the laws to take effect would be to cause irreparable harm, she argued.

Camp said she considers Act 45 an outright ban on second-trimester abortions, and told the judge, "This ban would be devastating."

While the state contends that the law doesn't outlaw all dilation and evacuation procedures but allows some as long as other procedures are done first to end the fetus' life, the laws' opponents contend that there are problems with such procedures done before dilation and evacuation and at least one of them is not available at Little Rock Family Planning Services, the only clinic in the state that performs surgical abortions.

Planned Parenthood clinics, one each in Little Rock and Fayetteville, are the only other abortion clinics in the state and provide only medication abortions.

Camp told the judge that the dilation and evacuation procedure used at the clinic is a "one-day procedure" and less expensive than the other methods, which require an overnight stay.

Act 45, she said, "would stop all abortions at 14 weeks."

The U.S. Supreme Court has forbidden states from interfering with a woman's right to have an abortion until the point of viability, or the ability of the fetus to survive on its own outside the womb -- which is generally regarded as occurring at about 24 weeks of pregnancy.

Camp argued that some of the other methods the state said would still be available, such as injecting the fetus with potassium chloride to stop its heart, or cutting the umbilical cord, aren't recommended in many cases, and cannot be used on some patients, "based on their anatomy."

Judges have prohibited similar laws in other states, such as Oklahoma and Kansas, from taking effect, she noted.

Bronni said the law was designed to prevent doctors from tearing a fetus out of the womb "limb by limb ... while its heart is still beating, which is inhumane."

"There's no question it is within the state's power to limit this barbaric procedure," he said. Calling the law "narrowly" written, he added, "It's simply inaccurate that a ban on death by dismemberment is a ban on all [dilation and evacuation] procedures."

The ACLU argues that the laws are also too vague to enforce, citing, for example, a provision in the sex-selection prohibition, Act 733, that doesn't define what constitutes "reasonable efforts" to obtain all of a patient's medical history concerning abortions.

Bronni argued, "Common sense tells us physicians and their staffs ... are able to tell us whether they've made reasonable efforts."

He also insisted that Act 603, the tissue disposal mandate, imposes "no such requirement" that the father of the child must be notified before the fetal tissue is disposed of, as the ACLU contends.

He emphasized, "It does not impose an affirmative action ... to notify an absent parent," saying the father "automatically forfeits his rights regarding disposition ... within five days of the death."

Bronni added that under existing law, "a rapist has absolutely no parental rights in the state," though Camp later countered that the statement applies only to convicted rapists.

While the ACLU objected to law enforcement officers being told about a girl's abortion, which Camp called an invasion of her and her family's privacy, Bronni argued that "local law enforcement is much better situated" than a doctor or the family to determine whether a girl is a victim of sexual abuse, and, accordingly, whether the tissue is needed to prosecute a case. He also argued that law officers are sworn to keep the information confidential.

Metro on 07/14/2017

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