Arkansas Legislature Overrides 12-Week Ban Veto—Now What?

The question now is whether the ban will go into effect in June, or if it is enjoined while the legal challenges occur.

Now that the most restrictive abortion ban in the country is about to become law, what happens next? StuSeeger / flickr

See more coverage of the Arkansas heartbeat ban here.

Despite the objections of the governor, the Arkansas legislature has overridden a veto of the country’s earliest abortion ban. The State Senate voted 20 to 14 Tuesday to override Gov. Mike Beebe’s heartbeat ban veto, and the House has now followed suit, as expected. But that doesn’t mean the new 12-week ban will go into effect immediately, or even at all.

The ban itself would not become law for a full 90 days after the legislature adjourns for the year. Depending on when the state’s legislative session ends, the earliest it would go into effect would be late June. The American Civil Liberties Union (ACLU) of Arkansas stated before the vote that it would sue if the veto was overridden, and the group’s executive director appears ready to move. “Our legislature has turned its back on the women of Arkansas by enacting this outrageous ban,” said ACLU of Arkansas Executive Director Rita Sklar in an email statement. “We will fight this law in court to ensure that politicians cannot deny women  the ability to make their own decisions about their own health.”

Talcott Camp, deputy director of the ACLU’s Reproductive Freedom Project, said in a statement following Tuesday’s vote that the ban is “the most restrictive, intrusive abortion regulation in the country.” Camp also urged lawmakers to stop trying to “usurp private medical decisions that a woman needs to make with her family and her doctor.”

Recent remarks from the Center for Reproductive Rights commending Gov. Beebe for vetoing the ban show that the bill is on CRR’s radar as well. Although CRR hasn’t made a public promise to file suit like the ACLU of Arkansas, the group’s previous statements imply that it does not believe the law could withstand a challenge. “Forty years of Supreme Court precedent clearly anchors every woman’s fundamental right to reproductive choice in the U.S. Constitution, which Gov. Beebe has rightfully recognized in vetoing this extreme and dangerous bill,” said CRR President Nancy Northup in an email statement supporting Beebe’s veto. Either group could mount a suit long before the bill would ever be put into practice.

Whichever group does challenge the law will have an as of yet unnamed anti-choice legal group—or at the very least some hefty anti-choice funders—to contend with. When Gov. Beebe vetoed the bill, as well as the 20-week ban, he referred to “outside groups or others” who “might represent the state for free in any litigation.” It’s unclear who these “others” might be, but they likely aren’t from the more mainstream arm of the anti-choice movement. James Bopp, the architect of the “incremental” approach to overturning Roe v. Wade, has already spoken against the more restrictive heartbeat ban that Ohio tried for years to pass, calling it a bill that could potentially reinforce the Supreme Court’s decision. Ohio supporters disagreed, saying their own legal sources believe heartbeat bans are an “invitation” for reviewing previous decisions. Ohio heartbeat ban proponents cited Jay Sekulow, chief counsel at the American Center for Law and Justice, as calling it legally sound, suggesting one group that may be interested in defending the Arkansas bill.

It’s beyond a doubt that this bill will end up in the courts—this was probably one of the key factors in proposing the legislation in the first place. Unlike the 20-week ban, which is a show piece because there are no providers in the state offering terminations at that point, a 12-week abortion ban would affect about one in 10 abortions in the state, as the Washington Post‘s Sarah Kliff reports. As such, it is designed to provoke a suit. Arkansas State Sen. Jason Rapert (R-Conway), however, called a court challenge “a very weak reason not to protect the lives of unborn children.”

So the women of Arkansas have a reprieve from a 12-week abortion ban. The real question is whether the ban will go into effect in June, or if it is enjoined while the legal challenges occur.