LITTLE ROCK —A federal judge has blocked implementation of an Arkansas law banning most abortions after 12 weeks.
U.S. District Judge Susan Webber Wright on Friday issued a preliminary injunction, preventing the law from taking effect until a lawsuit against it is resolved. The law was set to take effect Aug. 16.
Wright issued the ruling from the bench at the end of a two-hour hearing in the lawsuit challenging Act 301 of 2013. She said she thought evidence presented during the hearing suggested that the law was "more than likely" unconstitutional.
"I believe the plaintiffs established this because the Supreme Court has consistently used viability as a standard with respect to any law that regulates abortion," Wright said, noting that the U.S. Supreme Court has described viability "as the ability for the fetus to live outside the womb, and it is clear from (plaintiffs’ written testimony) that a 12-week fetus is not able to sustain itself, even with help, I believe, outside the womb."
She went on to say that the new state law "defines viability as something viability is not."
Wright said she was granting the preliminary injunction because the plaintiffs had shown that allowing the law to take effect would do irreparable harm to doctors who perform abortions and women who seek abortions.
"What we are doing is a balance between a due process right of a pregnant woman to have an abortion before her fetus is viable and the right of the state to protect the lives of the unborn," she said.
Wright also said she does "not disagree with those of you who think abortions should be rare." She also said she did not think some provisions of the new law — requiring a doctor to determine at 12 weeks whether the fetus has a heartbeat, informing the mother of that heart beat and telling her of the statistical probability of carrying the fetus to full term — were unconstitutional.
The American Civil Liberties Union and the Center for Reproductive Rights filed the suit on behalf of Drs. Louis Jerry Edwards and Tom Tvedten, who provide abortion services at a Little Rock clinic.
The suit challenges the constitutionality of Act 301, which 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 prohibits the abortion if a heartbeat is detected, except in cases of rape, incest, a medical emergency 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.
Bettina Brownstein, attorney for the ACLU, argued during the hearing that the law does not, as the state attorney general’s office has maintained, merely regulate abortions.
"It is a ban. It is a prohibition on all abortions (after) 12 weeks, with extremely narrow exceptions," she said.
Assistant Attorney General Colin Jorgensen argued that the U.S. Supreme Court has upheld a law banning a procedure that some know as "partial-birth" abortion, even though the procedure was "routinely occurring prior to viability."
Wright was skeptical of that argument.
"Abortion itself was not banned. It was just this procedure," she said.
After the hearing, both sides claimed victory.
Brownstein said she was pleased with the preliminary injunction and pleased that the judge had indicated she was leaning toward believing the law was unconstitutional.
"From the very beginning when this bill was proposed in the Legislature, we have been saying, and I personally have been saying, that it is unconstitutional, so we’re not surprised and we believe it’s the right ruling," Brownstein said, adding that she thinks that ultimately the statute will be declared unconstitutional.
Rose Mimms, president of Arkansas Right to Life, said she was not surprised by the judge’s decision to grant the preliminary injunction and said she liked the judge’s comments that some sections of the law may be constitutional.
"I was pleased with Judge Wright’s comments about being able to sever the law so that women can be told that their unborn child has a heartbeat at 12 weeks," she said.
Sen. Jason Rapert, R-Conway, who sponsored the legislation that became Act 301, said he had sponsored a bill in 2011 session that would have required doctors to inform women seeking an abortion when they could hear the baby’s heartbeat. That measure won Senate approval but died in a House committee.
"It’s not unheard of when you have a case at this level that an injunction is granted," Rapert said. "I will tell you that the positive that came out of it, which is very, very good, is that the judge basically gave, sort of shaded to the fact, that she may actually allow to stand the provision that would … require a heartbeat to be tested for and also to inform the woman that she does have a fetal heartbeat in her womb."
Wright did not set a trial date.
Reporter John Lyon contributed to this report.