Attorney General Leslie Rutledge asked the panel of judges on the Eighth Circuit Court of Appeals for a rehearing of a May 27 ruling that held the law’s narrow exceptions were not enough to make the pre-viability ban constitutional. Act 301, the “Arkansas Heartbeat Protection Act,” bans abortion when a fetal heartbeat has been detected and at 12 weeks post-gestation or later, with narrow exceptions for the life of the pregnant person, cases of rape or incest, and pregnancies that involve a “lethal fetal disorder.”
Attorneys for the state had argued that even though the law, if enacted, would ban nearly all abortions after 12 weeks’ gestation, Act 301 was not a pre-viability ban but merely a regulation because of the narrow exceptions. A three-judge panel on the Eighth Circuit rejected that argument, but held open the possibility that similar restrictions could be upheld should the state offer more evidence.
“By banning abortions after 12 weeks’ gestation, the Act prohibits women from making the ultimate decision to terminate a pregnancy at a point before viability,” the decision said. This case “underscores the importance of the parties, particularly the state, developing the record in a meaningful way so as to present a real opportunity for the court to examine viability, case by case, as viability steadily moves back towards conception.”
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In requesting rehearing, attorneys for the state argue the panel decision is in conflict with Gonzales v. Carhart, a 2007 Supreme Court decision that upheld the federal ban on so-called “partial birth” abortions.
Arkansas attorneys argue the entire Eighth Circuit Court should rehear the case because it presents a question of “exceptional importance,” which is whether a state may constitutionally restrict pre-viability abortions if it has “statutorily eliminated the burden of unwanted parenthood upon a pregnant woman” via safe haven laws. In Arkansas, according to the Department of Human Services, these laws allow “a parent to bring a child, 30 days or younger to an employee at any hospital emergency room or law enforcement
agency anonymously and without facing prosecution for endangering or abandoning the baby.”
The 12-week abortion ban, considered to be among the most radically restrictive in the nation, has been blocked by a federal court since March 2014. The state has spent more than $70,000 defending the bill, according to reports.