8th Circuit Court of Appeals, abortion, Act 301, appeal, Arkansas Human Heartbeat Protection Act, Arkansas State Medical Board, constitutionality, Dustin McDaniel, federal court, Judge Susan Webber Wright, Little Rock AR, State of Arkansas, State Sen. Jason Rapert
Little Rock, Ark. — Arkansas Attorney General Dustin McDaniel Friday announced his intent to represent the State of Arkansas in appealing the federal court ruling which struck down a law which would ban most abortions starting at 12 weeks of pregnancy.
The ruling would be appealed to the U.S. 8th Circuit Court of Appeals in St. Louis.
U.S. District Judge Susan Webber Wright March 14 struck down the law. Her judgment prevents the Arkansas State Medical Board from enforcing parts of the
Arkansas Human Heartbeat Protection Act including (1) Ark. Code Ann. § 20-16-1304(a), which prohibits abortions where a fetal heartbeat is detected and the fetus has attained twelve weeks’ gestation; (2) Ark. Code Ann. § 20-16-1304(b), which requires revocation of the medical license of a physician who performs an abortion in violation of Ark. Code Ann. § 20-16-1304(a); and (3) Ark. Code Ann. § 20-16-1303(d)(3),which requires that a physician inform the mother that an abortion is prohibited under Ark. Code Ann. § 20-16-1304(a).
The judge ruled that those provisions of the law are unconstitutional. In her ruling Wright said that viability — or the fetus’ ability to survive outside the womb — was the determining factor in abortion law. Viability is generally expected to around 22 to 24 weeks, she noted.
The law was challenged by the American Civil Liberties Union, the ACLU of Arkansas, and the Center for Reproductive Rights.
McDaniel released a statement Friday after deciding to pursue an appeal of Judge Wright’s ruling in the federal lawsuit over Act 301 of 2013, which was sponsored by Sen. Jason Rapert .
“I have spoken candidly with Sen. Rapert about the risks and costs associated with an appeal,” McDaniel said.
“Sen. Rapert has specifically asked me to appeal. I agreed to do so as long as there would be no impact on the budget of the Arkansas State Medical Board, the defendant in this matter, should the state be required to pay attorneys’ fees to the plaintiffs. I have been personally assured by Senate President Pro Tempore-designate Dismang and House Speaker-designate Gillam that the Medical Board budget will not be affected, and that any costs borne from this litigation will be paid through a separate appropriation.
“Therefore, the notice of appeal was filed today, and this office will diligently litigate this matter to its conclusion.
“I have also committed to Sen. Rapert, Jerry Cox and the Liberty Counsel our continued cooperation and transparency in the course of this litigation,” McDaniel said.
The federal court March 14 allowed to stand provisions of the law mandating that every women seeking an abortion undergo an abdominal ultrasound exam and receive certain disclosures. Judge Wright ruled that constitutionality was not a question in those provisions of the law.
The law was passed in March 2013, when the Arkansas legislature overrode Gov. Mike Beebe’s veto. The ban was set to take effect on Aug. 16, 2013, but was preliminarily enjoined by the court.
To view Judge Wright’s one-page judgment, click AR abortion Judgment.
To view Judge Wright’s 17-page Memorandum and Order — which fully evaluates the ramifications, legality and constitutionality of each provision of the law, click AR abortion Order.
Update: The American Civil Liberties Union of Arkansas (ACLU of Arkansas) July 10 in St. Louis filed a brief in the United States Court of Appeals for the Eighth Circuit that makes clear that the Arkansas ban on abortions starting at 12 weeks is flatly unconstitutional, violating four decades of Supreme Court precedent. Earlier this year, a federal district court struck down this law, which was challenged by the ACLU of Arkansas, the American Civil Liberties Union and the Center for Reproductive Rights.
To view the brief, click ACLU appeals court brief – abortion.
“This law is one more example of extremist politicians willing to go to any length to insert themselves into a woman’s personal, private decision-making by ending access to abortion,” said Rita Sklar, executive director of the ACLU of Arkansas. “It’s clear that the district court made the right decision in striking down this law.”