Arkansas 12-Week Abortion Ban is Clearly Unconstitutional

On Wednesday, the Arkansas House joined the Arkansas Senate in overriding Governor Beebe’s veto of the “Human Heartbeat Protection Act," adopting the nation’s strictest restriction on access to abortion care.

Governor Beebe and other critics have called this bill’s law “blatantly unconstitutional," and two lines of legal reasoning prove that they are correct to do so.

The first is viability. Under the U.S. Constitution  a state may ban abortion after viability, as long as an exception is provided for abortions necessary to protect the woman’s life or health, as decided in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). A fetus is viable under the U.S. Constitution when it has a reasonable likelihood of sustained survival with or without artificial support.  As decided in Colautti v. Franklin (1979), “Viability is reached when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus’ sustained survival ... Because this point may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability — be it weeks of gestation or fetal weight or any other single factor — as the determinant.”

It is already clear legal precedent that states must leave the determination of viability up to the physician’s medical judgment. While states can prohibit doctors from performing abortions after they have determined that the fetus is viable according to medical judgment, states cannot make a blanket determination about viability in terms of weeks or a factor like fetal heartbeat. In this bill, these act as single factors, not in congruous, i.e. if a fetal heartbeat is detected via abdominal ultrasound (though this is medically unlikely before 12 weeks), an abortion would be prohibited, or if a pregnant woman reaches 12 weeks since her last menstrual period an abortion is prohibited.

There is no exact week limit after which a fetus becomes viable. Factors that can lead to an increase or decrease in the weeks until viability include: multiple fetuses in the womb (twins, triplets, ect.), genetic or anatomical anomalies, age of the pregnant woman, the health of the pregnant woman, and many more. A baby born pre-term at 24 weeks has a 50% chance of surviving outside the womb; a baby born at 23 weeks has a 35% chance. A fetal heartbeat, detectable at 12 weeks by an abdominal ultrasound and at 6 weeks by a transvaginal ultrasound (not required by the Arkansas law), is clearly not an indicator of viability outside of the womb.

Even after fetal viability the state may not endanger women’s health when regulating abortion. Again, it is up to the doctor to use medical judgment to make the health determination.  

In Doe v. Bolton (1973) the Court decided that “the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient” shall be used to determine risk to a woman’s health. “This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.”

Some may argue that the Court retreated from this defense of women’s health in Gonzales v. Carhart (2007), where the Court states abortion regulation would be unconstitutional if it subjected women to “significant health risks,” or in Casey, where the Court held that a waiting period law that was limited to risks of serious or substantial and permanent impairment of a major bodily function.  

However, both of these rulings dealt with restrictions on abortion, including prohibition of a particular method in Gonzales and a waiting period before abortion in Casey, not bans on abortion like in Doe. This context remains important, as the Court ruled these limited health exceptions were acceptable when delaying abortion, not when foreclosing on the entire opportunity to have an abortion. Also, the Court has never overturned the standards for health exceptions to post-viability abortion bans quoted above in Doe.

The American Civil Liberties Union Foundation, the American Civil Liberties Union of Arkansas and the Center for Reproductive Rights have vowed to various media outlets that they will challenge this law in the courts. Abortion rights supporters have won injunctions to block bans on abortion after 20-weeks in Arizona, Georgia, and Idaho. Arkansas knew this law was unconstitutional when it was passed; a challenge to the law is likely to prevent it from ever going into effect.