Bloomberg News

Abortion War Renewed as Arkansas Passses Toughest Limits

March 08, 2013

An Idaho ban on abortions after 20 weeks was overturned just as Arkansas lawmakers passed a more restrictive law opponents vowed to fight, intensifying a renewed debate over reproductive rights that has involved at least 10 states.

U.S. District Judge Lynn Winmill in Boise on March 6 granted a mother’s request to strike down the state’s ban and denied a prosecutor’s request to dismiss her challenge, saying the law was an unconstitutional obstacle to women’s rights. In Arkansas on the same day, a near-ban on the procedure from the 12th week of pregnancy onward was approved by legislators who overrode a veto by Governor Mike Beebe, a Democrat. The American Civil Liberties Union pledged to sue to block the law in the coming weeks.

“This has no chance of surviving a careful constitutional challenge,” said Steve Sheppard, associate dean of the University of Arkansas School of Law in Fayetteville, in a phone interview. “Obviously, you have to protect the rights of women, and this does not.”

At least five other U.S. states have faced court challenges over laws tightening abortion restrictions in the past few years. In December, a state judge in Atlanta blocked a Georgia law limiting the availability of mid-term abortions. That same month, Oklahoma’s supreme court struck down laws expanding rules for doctors prescribing pregnancy-ending drugs and requiring women seeking abortions to have ultrasound scans.

Most Restrictive

The ACLU said the Arkansas measure is the most restrictive since Guam tried to ban abortion in 1990. Lawyers for women’s rights groups argued the new law has no chance of being upheld, because it so clearly contravenes legal precedent.

“The chances are zero,” said Stephanie Toti, senior staff attorney for the New York-based Center for Reproductive Rights. “It’s clearly unconstitutional--open and shut--because it violates the rights of a woman in Roe v. Wade. The state can’t ban an abortion prior to viability,” generally recognized as 24 weeks, she said. “Most states have declined” to pass such a law “because it’s so obvious it will be overturned.”

Toti said the second-most stringent law is in Arizona, which imposes a 20-week limit. That law is under legal attack.

Designed by the states, U.S. abortion law has become a web of conflicting statutes, according to data compiled by the Guttmacher Institute of New York, which promotes sexual and reproductive health.

Thirty-nine states require a licensed physician to perform abortions, eight states restrict insurance coverage, 26 states have waiting periods, 38 states require parental involvement for a minor, 46 states allow individual health care providers to refuse to participate, and 17 states require counseling, the data show.

‘Unconstitutional Law’

“The ACLU will challenge this dangerous and unconstitutional law in court to put this private decision back in the hands of a woman and her family,” Elissa Berger, the civil liberties group’s advocacy and policy counsel, said in a statement following the Arkansas legislature’s action.

At least 10 states have sought to ban abortions after the 20th week of pregnancy, around the time women commonly receive ultrasounds to screen for fetal anomalies. A federal appeals court in San Francisco is considering a challenge to the Arizona law.

States including Texas and Indiana have passed laws cutting funding to Planned Parenthood because the group performs abortions in addition to providing health services to women. Those measures have also been challenged in the courts. Mississippi’s last abortion clinic is suing the state over regulations that it contends will force it to close.

Legalized Abortion

In the Idaho case, the judge cited the 1973 U.S. Supreme Court decision in Roe v. Wade, which legalized abortion. He also cited a 1992 decision in which the court found that while a woman’s right to an abortion isn’t absolute, states couldn’t impose an undue burden or a substantial obstacle to a woman seeking an abortion.

“The state’s clear disregard of this controlling supreme court precedent and its apparent determination to define viability in a manner specifically and repeatedly condemned by the supreme court evinces an intent to place an insurmountable obstacle in the path of women seeking non-therapeutic abortions,” Winmill wrote in the decision.

“An outright ban on abortions at or after 20 weeks’ gestation places, not just a substantial obstacle, but an absolute obstacle, in the path of women seeking such abortions,” he said.

Unemployed Mother

Jennie Linn McCormack, an unemployed Idaho mother of three who became pregnant in 2010 while unmarried, was charged under the state law after taking drugs bought off the Internet to abort her fetus. If convicted, she would have faced as long as five years in prison.

She sued to strike down the law, with the U.S. Court of Appeals in San Francisco upholding a lower-court decision that allowed her to do so.

In Arkansas, the state’s Republican-controlled House of Representatives voted 56-33 to override Beebe’s veto of its abortion bill, a day after the Republican-led Senate acted on the law that makes exceptions only in cases of rape, incest, or to save the life of the mother or if there are lethal fetal disorders.

Beebe told lawmakers the measure was unconstitutional, the Associated Press reported. Supporters said that shouldn’t stop them from acting.

“Not the governor, nor anyone else other than the courts, can determine if something is constitutional or unconstitutional,” State Representative Bruce Westerman, a Republican, said in urging his colleagues to override Beebe’s veto, according to AP.

‘Stand Up’

Stacey Hall, spokeswoman for Beebe, didn’t immediately return a voice-mail message yesterday seeking comment on the law.

Bart Hester, a Republican from Cave Springs, Arkansas, and a co-sponsor of the law, said he wasn’t sure it would survive a constitutional challenge.

“As legislators, we have to stand up for what the people of Arkansas want, and the people of Arkansas are overwhelmingly pro-life,” he said in a phone interview.

The case is McCormack v. Hiedeman, 4:11-cv-00433, U.S. District Court, District of Idaho (Boise).

To contact the reporters on this story: Phil Milford in Wilmington, Delaware at pmilford@bloomberg.net; Joe Schneider in Sydney at jschneider5@bloomberg.net;

To contact the editors responsible for this story: Michael Hytha at mhytha@bloomberg.net; Douglas Wong at dwong19@bloomberg.net.


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