LITTLE ROCK — A federal judge on Wednesday denied a motion by the state attorney general’s office to dismiss a lawsuit challenging a new state law banning most abortions at 12 weeks.
U.S. District Judge Susan Webber Wright rejected arguments that Act 301 of 2013 does not place an undue burden on a woman’s right to an abortion and that the plaintiffs lack standing to challenge a law that has not yet gone into effect.
The American Civil Liberties Union and the Center for Reproductive Rights filed the lawsuit last month on behalf of Drs. Louis Jerry Edwards and Tom Tvedten, who provide abortion services at a Little Rock clinic. The suit alleges that Act 301 violates established case law by banning abortions before a fetus becomes viable.
Act 301 requires a woman seeking an abortion 12 weeks or later into a pregnancy to receive an abdominal ultrasound to check for a fetal heartbeat, and if a heartbeat is detected the abortion is prohibited except in cases of rape, incest, a threat to the mother’s life or a fetal anomaly that would not allow the child to survive after birth. A doctor found guilty of violating the act would lose his or her medical license.
The U.S. Supreme Court has said states cannot ban abortions before a fetus becomes viable, or able to survive outside the womb, which doctors generally consider to occur about 23 or 24 weeks into a pregnancy.
Gov. Mike Beebe, a Democrat, vetoed the legislation that became Act 301, as well as another measure banning most abortions at 20 weeks, saying he believed they were unconstitutional. But the state Legislature, with its first Republican majority since Reconstruction, easily overrode both vetoes.
In its motion to dismiss the suit, the attorney general’s office argued that the law does not prohibit all abortions before viability because it includes several exceptions. Wright said Wednesday in her order denying the motion that in fact the law does ban all abortions at 12 weeks, with only "certain narrow exceptions."
"The plaintiffs have alleged facts sufficient to state a claim that the provision of Act 301 that prohibits abortions at 12 weeks gestation when a fetal heartbeat is detected impermissibly infringes on a woman’s 14th Amendment right to choose to terminate a pregnancy before viability," Wright said.
The attorney general’s office also argued that the plaintiffs lack standing to bring the suit because Act 301 has not been enforced against them. The law is to take effect 90 days after the end of the legislative session, which is set for formal adjournment Friday.
The plaintiffs argued that the law would ban a service they provide to patients, giving them an untenable choice between ceasing to provide the service or losing their licenses.
Wright said in her order Wednesday that the plaintiffs "have demonstrated a realistic danger of sustaining a direct injury as a result of Act 301’s operation or enforcement, and they have presented a justiceable controversy that is ripe for review."
The plaintiffs have filed a motion for a temporary injunction to block Act 301 from taking effect until its the lawsuit is resolved. A hearing on that motion is set for Friday.
ACLU attorney Bettina Brownstein said Wednesday she was pleased with Wright’s ruling that the lawsuit can proceed, calling it "a thoughtful decision, well written." She also said she believed it was "a good sign" that Wright will grant the temporary injunction.
"It would be quite a surprise if we didn’t prevail" at the hearing, she said.
Spokesmen for Attorney General Dustin McDaniel and Beebe declined to comment on Wednesday’s ruling.
Concepts of Truth Inc. of Wynne, a crisis pregnancy center and counseling service, has asked to intervene in the case to help defend Act 301. Wright has said it will not be allowed to participate in Friday’s hearing because at this time it is not a party to the suit.