U.S. District Judge Susan Webber Wright wrote in her opinion on Friday that the standard for abortion restrictions according to Roe v. Wade is whether the child is viable—meaning that he or she can survive outside of the womb—rather than whether the baby has a heartbeat.
“The Court notes that the [state] conveys that viability ‘begins’ with a heartbeat; it does not declare that viability is fully achieved with the adept of a heartbeat,” she wrote. “Such a declaration would undoubtedly contravene the Supreme Court’s determination that viability in a particular case is a matter for medical judgment, and it is attained when, in the judgment of the attending physician on the particular facts of the case at hand, that there is a reasonable likelihood of sustained survival outside the womb.”
As previously reported, just days after passing a late-term abortion ban, legislators in Arkansas voted in March of last year to make the Human Heartbeat Protection Act law, overriding the veto of Democratic Governor Mike Beebe. The Act required that women obtain an ultrasound prior to having an abortion, and if a heartbeat is detected past twelve weeks, the abortion may not proceed. Abortionists who violate the law would have their license revoked.
“When there is a heartbeat, there is life,” bill sponsor Senator Jason Rapert declared. “And it is time in this nation and in our state, when you have 55 million human beings that have been taken, we must have a more rational and a more humane policy on abortion in our nation.”
However, the ACLU of Arkansas soon threatened to file a lawsuit, and in April, it followed through with the threat. It sued the state medical board, asking the court to act quickly to prevent “irreparable harm” to abortionists and abortion-minded mothers.
Wright granted a preliminary injunction to the ACLU the following month, agreeing with its assertions.
“I believe that there is a threat of irreparable harm, because these doctors … could face loss of their licenses,” she wrote. “They also have established that their patients could suffer irreparable harm by not being able to have abortions post 12-weeks but during that pre-viability period.”
On Friday, Wright issued her final opinion in the matter, declaring the law to be unconstitutional.
“The Court finds as a matter of law that the 12-week abortion ban included in Act 301 prohibits pre-viability abortions and thus impermissibly infringes a woman’s 14th Amendment right to elect to terminate a pregnancy before viability,” she wrote. “The state presents no evidence that a fetus can live outside the mother’s womb at twelve weeks.”
However, she left in place the requirement that abortionists check for a heartbeat prior to an abortion and notify the mother if it is present.
Aaron Sadler, spokesman for Attorney General Dustin McDaniel, said that the state is considering its next move.
“Given the judge’s ruling last May regarding the preliminary injunction, today’s decision was not a surprise,” he told Arkansas News. “We are currently reviewing the decision and have not yet decided on our next steps.”