Federal District Judge Susan Webber Wright last week struck down and declared unconstitutional the Arkansas “human heartbeat protection act,” which was passed in 2013 and would have prohibited abortion after twelve weeks. (Abortion would be prohibited under the Arkansas statute if “the heartbeat is detected and the gestational period is 12 weeks or more.” The prohibition did not apply to abortions for rape or incest or abortions performed in response to a medical emergency.)
This case has significance for those evaluating the wisdom of pursuing similar twelve-week limits or whether an approach that focuses on a mother-child strategy, limiting abortion later in pregnancy based on both the impact of abortion on women’s health and the pain felt by the unborn, should be considered instead.
The judge granted summary judgment to the plaintiffs, which means she concluded that there was “no genuine issue of material fact” and that the plaintiffs were entitled to judgment as a matter of law. This means that no facts (other than the application of the prohibition at a point before viability, for which the judge relied on the affidavit of one physician) were relevant, in her judgment, to the constitutionality of the act, and that the law was clearly unconstitutional as a matter of law.
The outcome of this hearing for summary judgment was foreshadowed by Judge Wright’s granting of a preliminary injunction against the twelve-week prohibition in May 2013 and her conclusion, at that time, that the plaintiffs were “likely to prevail” with their claim that the twelve-week abortion ban was unconstitutional. In fact, the state of Arkansas admitted to the court that it “recognize[d] the court’s determination that the prohibition of abortion after 12 weeks gestation… will be invalidated by the court.”
In the wake of the Ninth Circuit’s invalidation of the Arizona 20 week limit in 2013 in Horne v. Isaacson, and the Supreme Court’s refusal to hear that case in January, 2014, I was interested to see what Judge Wright’s reasoning would be, and what Supreme Court decisions, or other federal court decisions, the judge would quote or disregard.
As it turns out, Judge Wright didn’t mention any Supreme Court abortion decisions (or any other federal court decisions including the Ninth Circuit’s 2012 decision in Horne v. Isaacson) except two: the Court’s 1992 decision in Planned Parenthood v. Casey and the Court’s 1976 decision in Planned Parenthood v. Danforth.
Quoting the Court’s decision in Casey, 505 US 833, 845–846, Judge Wright concluded that “before viability ‘the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.’” The Court concluded that “the line between a woman’s interest in control over her destiny and body and the State’s interest in promoting the life or potential life of the unborn is drawn at viability” (summarizing Planned Parenthood v. Casey, 505 US 833, 845-846).
Judge Wright concluded that “given plaintiff’s uncontroverted evidence, the court finds as a matter of law that the 12 week abortion ban included in Act 301 prohibits pre-viability abortions and thus impermissibly infringes a woman’s 14th amendment right to elect to terminate a pregnancy before viability.” In other words, as the judge viewed it, this was a “slam-dunk.”
Judge Wright made no mention of Gonzales v. Carhart, did not apply the substantial obstacle standard, or the standard that I believe the Supreme Court established in 2007 in Gonzales v. Carhart: whether a prohibition is “a substantial obstacle to a safe abortion.” For Judge Wright, as for the Ninth Circuit in Horne v. Isaacson, the viability line of Roe v. Wade is a “per se” rule that does not permit any prohibition of any abortion before viability. In other words, there is no need to apply the substantial obstacle test to a prohibition before viability because the viability rule prohibits any prohibition before viability.
However, the court upheld some of the rest of the Arkansas statute: the heartbeat testing and the disclosure requirements, finding that they “are independently capable of furthering the stated purpose of act 301, to protect unborn children, and that they are severable from the unconstitutional 12 week ban.”
This matter isn’t over.
The plaintiffs will likely appeal the judge’s upholding of the testing and disclosure provisions. It is not clear whether Arkansas will defend the twelve-week prohibition on appeal to the Eighth Circuit or whether they created an evidentiary record (on, for example, the state’s compelling interest in maternal health in the second trimester, or whether the act actually creates a substantial obstacle to a safe abortion) by which to defend the twelve-week prohibition.
Whatever the outcome of this case, it is clear that legislators across the country have an interest in reining in an abortion industry that operates in the extreme. The U.S. is one of only four nations — along with North Korea, China, and Canada — that allows abortions through all nine months – for any reason at all and sometimes with taxpayer subsidies. Many Americans favor limits on abortion, and legislative efforts to reflect that view will continue to be on the rise.
— Clarke Forsythe is Senior Counsel for AUL and author of Abuse of Discretion: The Inside Story of Roe v. Wade.