Analysis Law and Policy

Arkansas Tells Federal Appeals Court 12-Week Abortion Ban Is Constitutional

Jessica Mason Pieklo

Arkansas is the latest state to claim a law banning abortions after 12 weeks' gestation is not an unconstitutional ban, but simply a "regulation."

Attorneys for the State of Arkansas have laid out their defense of Act 301, the “Arkansas Heartbeat Protection Act,” which bans abortion when a fetal heartbeat has been detected and at 12 weeks or later. In a brief filed with the U.S. Court of Appeals for the Eighth Circuit, attorneys for the state argue that even though the law, if enacted, would ban nearly all abortions after 12 weeks’ gestation, because Act 301 contains narrow exceptions for the life of the pregnant woman, cases of rape or incest, and those that involve a “lethal fetal disorder,” it is not a ban but merely a regulation.

Arkansas’ 12-week ban is considered to be among the strictest abortion restrictions in the nation and has been blocked by a federal judge since March of this year. According to attorneys for the state, Act 301 is not an unconstitutional pre-viability ban because it allows for abortions in all cases up to the point of both 12 weeks’ gestational age and the detection of a fetal heartbeat. From 12 weeks on, the state’s argument goes, the abortions are still available, just in narrow, limited circumstances where the woman’s life is at risk, the pregnancy is a result of rape or incest, or in cases of “lethal fetal deformity.” And because it is a regulation and not a ban, they argue, it leaves undisturbed “the ultimate decision to terminate her pregnancy” as required by both legal precedent and the Constitution.

If the argument that a law that functionally bans abortions after 12 weeks’ gestation and well before fetal viability is not really a ban has your head spinning, you can thank the Roberts Court. In Gonzales v. Carhart, a divided Supreme Court upheld a ban on so-called partial-birth abortions and greatly expanded the power of the state to regulate abortion while simultaneously lowering the constitutional scrutiny anti-abortion regulations would be subject to. The decision may not have the immediate name recognition of either Roe v. Wade or Planned Parenthood v. Casey, but it should because it’s proven to be as significant a piece of abortion rights jurisprudence as either Roe or Casey.

According to anti-choice advocates, the decision in Gonzales means states have virtually unlimited power to restrict access to abortion pre-viability so long as those restrictions don’t impede on the “ultimate decision of a pregnant woman to terminate her pregnancy.” In the case of laws like Act 301 that would ban abortions prior to viability, so long as those laws provide for some exception—like for those cases where the pregnancy would kill the patient—then that ability to make the “ultimate decision” remains intact. Furthermore, they argue, a law like Act 301 should be compared to other restrictions on abortion procedures on the books in states like Nebraska and Texas that have so-called fetal pain bans that ban abortions before viability. The mere existence of these unchallenged 20-week bans, attorneys for Arkansas argue, cuts against any argument that a law that bans abortions before viability remains an automatic violation of constitutional right to reproductive privacy. The Roberts Court has, for now, declined to revisit the issue of viability as a constitutional bright line in limiting abortion rights.

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The fact that conservative anti-choice litigators are relying on Gonzales to defend increasingly restrictive abortion laws should come as no surprise. After all, that is the point of legal precedent, and the anti-choice movement has proven itself dedicated to fighting abortion rights both in the courts and in the streets. But the decision in Gonzales didn’t just signify a jurisprudential shift away from abortion rights and toward increased state power over reproductive privacy, it signified a jurisprudential shift toward accepting abortion restrictions as ultimately a zero-sum game, where so long as this “ultimate” decision to terminate a pregnancy remains intact, women really lose nothing when states restrict abortion access. Attorneys for the State of Arkansas make this argument explicitly when they argue that because Act 301 regulates only physicians and not pregnant women and provides a civil remedy, the revocation of a provider’s medical license, rather than a criminal penalty, it’s doctors, not women, who face any potential rights depravation.

Attorneys in Wisconsin advanced similar arguments recently when they challenged doctors standing to assert constitutional claims on behalf of their patients in a case challenging Wisconsin’s admitting privileges requirement for abortion providers. The U.S. Court of Appeals for the Fifth Circuit took this thinking to new devastating heights when it upheld Texas’ admitting privileges requirement and is poised to do so again in a case that could close the last abortion clinic in Mississippi.

Advocates challenging Arkansas’ 12-week abortion ban have until June 26 to submit their response to the Eighth Circuit. Attorneys for the State of Arkansas said they did not want oral arguments before the federal appeals court. A decision in the case is not expected until the fall.

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