On Tuesday, attorneys for the state of Arkansas asked a federal judge to dismiss a lawsuit challenging the state’s 12-week abortion ban, arguing that the law, which criminalizes most abortions performed after 12 weeks, is in the best interest of women and doctors.
The lawsuit, filed by the American Civil Liberties Union of Arkansas and the Center for Reproductive Rights, challenges the 12-week law, arguing it denies patients “their constitutionally-guaranteed right to decide to end a pre-viability pregnancy” as guaranteed by Roe v. Wade. But attorneys for the state argue that the law is constitutional because it furthers the state’s legitimate interest in “protecting the life and health of the pregnant woman, protecting the life of the fetus that may become a child, and protecting the integrity and ethics of the medical profession.”
This case is the latest to directly challenge the viability standard set out in Roe v. Wade and later in Planned Parenthood v. Casey. The fight over Arizona’s 20-week ban is currently working its way through the federal court of appeals.
What’s emerging from the legal challenges in Arizona and Arkansas is a clearer picture of the legal strategy at work. In both cases, anti-choice legislators passed knowingly unconstitutional bills after first stacking the legislative testimony with junk science, which a court is bound by law to defer to and rely on when faced with the question of whether or not the restriction is constitutional.
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In short, they are trying to game the system, to create no other alternative for the courts but to either upend precedent or endorse laws that do exactly that. Each pre-viability ban that gets passed is another shot, and the more shots they take, the greater the chances are that one of them will hit.