Plaintiffs asked a federal judge on Monday for a preliminary injunction to prevent a new Arkansas law banning nearly all abortions from taking effect July 28.
The American Civil Liberties Union of Arkansas, representing Little Rock Family Planning and Planned Parenthood, said it is hopeful for a quick ruling. Last week, the 8th U.S. Circuit Court of Appeals blocked a Missouri law banning abortion after eight weeks of pregnancy because existing Supreme Court precedent prevents abortion bans before viability of the fetus, around 23 weeks. Arkansas' new law bans abortion from conception, though an exception is allowed to save a woman's life.
The Arkansas Unborn Child Protection Act, sponsored by Sen. Jason Rapert, R-Conway, is one of 20 restrictions on abortion passed in Arkansas in 2021, according to the ACLU of Arkansas, which filed the lawsuit May 26 on behalf of Little Rock Family Planning Services, Planned Parenthood Great Plains and Dr. Janet Cathey.
"We know it's meant to be a direct challenge, and why would we do this?" Rapert said the day the lawsuit was filed. "It's because with all the protections we've tried to put into place, we still have 62 million little babies who have been killed in this country."
Defendants named in the case are Prosecuting Attorney Larry Jegley, Arkansas State Medical Board Chairman Dr. Sylvia Simon, the 14 members of the state Medical Board, Arkansas Health Secretary Dr. Jose Romero and the 21 members of the state Board of Health.
The case has been assigned to U.S. District Judge Kristine Baker, who has blocked implementation of a number of laws restricting abortion in Arkansas, including a 2019 law sponsored by Rep. Robin Lundstrum, R-Elm Springs, that would have outlawed abortions after 18 weeks except in cases of rape, incest or to save the life of the mother. Rapert was the Senate sponsor of Lundstrum's bill, which at the time was considered to be one of the most restrictive in the country.
The 8th Circuit Court of Appeals in St. Louis upheld Baker's injunction in January.
State law currently permits abortions to be performed up until the 20th week of pregnancy.
Under the terms of Act 309, performing or attempting to perform an abortion would be an unclassified felony punishable by up to 10 years in prison and a fine of up to $100,000. The law would not penalize women who seek abortions and would not prohibit the sale and use of contraceptives.
The law would provide an affirmative defense if a doctor provided medical services to a pregnant woman that resulted in the accidental death or unintentional physical injury of the fetus.
Meagan Burrows, staff attorney at the ACLU Reproductive Freedom Project, called Act 309 a direct challenge to Roe v. Wade, the landmark 1973 Supreme Court decision that ruled the constitutional right to privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
Rapert has described the legislation as a "trigger" aimed at forcing the U.S. Supreme Court to reconsider its decades-old precedent upholding the right to abortions under the Roe v. Wade decision.
The Roe decision came about from a challenge to a Texas law that outlawed abortion in all instances except to save the life of the mother. At that time, according to Planned Parenthood Federation of America, abortion was illegal in nearly every state except to save a woman's life or for limited reasons such as preserving a woman's health or cases of rape, incest or fetal anomaly.
Rapert said his intent in sponsoring the legislation was to have the law challenged in an effort to force the issue before the Supreme Court.
"Absolutely," he said after the initial lawsuit was filed. "In my view, abortion is a crime against humanity, as it is in the eyes of many others. We've had very strong legislation here in Arkansas and, in fact, we were just named the most pro-life state in the nation just months previous to this bill."
Rapert said the impetus for Act 309 was legislation he sponsored in 2019 that would immediately outlaw abortion in the state if the Supreme Court were to overturn Roe v. Wade. That law, Act 180 of 2019, which passed by large margins mainly along party lines in both the House and Senate, is known as the "trigger bill."
"What I did," Rapert said, referring to Act 309, "I just took that bill, and we flipped the trigger. We simply went ahead and initiated a complete ban on abortion in our state except to save the life of the mother, full stop."
Holly Dickson, executive director of the ACLU of Arkansas, said the new law is a violation of the U.S. Constitution as well as five decades of precedent by the Supreme Court in protecting the right to abortion.
"We look forward to seeing the court block this law from taking effect while our case against it proceeds," Dickson said. "In the meantime, it's important for Arkansans to know that abortion remains legal in Arkansas -- just as it is in all 50 states -- and providers' doors remain open to people seeking abortion care."