Arkansas 12-Week Abortion Ban: Legislators Scorn Women, Constitution in a Heartbeat

Last Wednesday, the Arkansas legislature overrode Governor Mike Beebe’s veto to pass a bill that would ban abortions after just twelve weeks of pregnancy. The dubiously named Human Heartbeat Protection Act became the nation’s harshest prohibition on abortion.

The passage of this law is particularly troubling and intriguing, paradoxically because it is so clearly unconstitutional and likely to be overturned. The Republican-led legislature overrode the governor’s veto nonetheless, and in so doing made their priorities clear: personal moral beliefs over responsible government and women’s rights.

The bill is clearly unconstitutional: by depriving a woman of her right to an abortion when the fetus is still unviable (i.e., cannot survive outside of the womb), it flies in the face of Roe v. Wade. The ACLU and the Center for Reproductive Rights have both said that they will challenge the law in court before it is scheduled to go into effect.

This should come as no surprise to the Arkansas house and senate. In Governor Beebe’s veto letter, he cited the bill’s unconstitutionality, and the costs that taxpayers will incur from the inevitable legal challenges to it.  

Of the bill’s constitutionality, he wrote, “In short, because it would impose a ban on a woman's right to choose an elective, non-therapeutic abortion well before viability, Senate Bill 134 blatantly contradicts the United States Constitution, as interpreted by the Supreme Court.”

He continued, “Lawsuits challenging unconstitutional laws also result in the losing party — in this case, the State — being ordered to pay the costs and attorneys' fees incurred by the litigants who successfully challenge the law. Those costs and fees can be significant.” Arkansas lawmakers have essentially charged their taxpayers hundreds of thousands of dollars to finance the legal defense of a law that is sure to be overturned.

So how could the legislature have passed a bill that will at best waste state resources and taxpayer dollars and at worst deny women a constitutionally protected right and a medical service that 1 in 3 women in America will use? The answer may lie in the name of the bill itself.

The Human Heartbeat Protection Act” conjures three ideas, none of which are quite right, but all of which Arkansas lawmakers are doubtless deeply committed to. The first is the idea of a “human,” when what is really being referred to is a fetus. The second is a particular notion of a “heartbeat” that conflates a physiological process with a romantic notion that the beating heart occupies a privileged moral position, over, say, functioning lungs. And the third is the moral concept of “protection,” suggesting both that heartbeats ought to be protected, and that politicians can protect them.

The larger point that the name of this act communicates is that politicians can impose their personal moral beliefs on others. Because some Arkansas politicians personally believe that abortion is wrong, they have entered the medical realm and stipulated the removal of the medical license of doctors who perform abortions after twelve weeks, even though many of these doctors and the women they care for do not share the politicians’ beliefs.

Deconstructing the name of the bill helps to explain the inexplicable and the despicable: how a state legislature could have acted so irresponsibly.

It is only possible to pass a bill like this by radically changing the terms of the abortion discussion — from one that fundamentally concerns women’s health and a woman’s autonomy over her own body (and public health and state welfare more generally) to one that is centered on the fetus. It is only possible when you talk about “humans” instead of embryos; when you talk about genocide instead of a medical service that saves women’s lives, protects their health, and gives them control over their own bodies; when you talk about “unborn children” instead of women; and when you talk about abstinence instead of comprehensive sexual education and sexual health. 

Arkansas politicians have done all of that and more. They refused to acknowledge the real consequences of Bill 134 on women and society, both of which were very clearly spelled out in the Governor’s veto letter. One way or another, Arkansas residents will have to pay the price.