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The American Civil Liberties Union, Arkansas Civil Liberties Union, and Center for Reproductive Rights filed a lawsuit on behalf of two physicians challenging Arkansas’s pre-viability abortion ban, SB 134, which bans abortion once a fetal heartbeat can be detected with an abdominal ultrasound, generally around 12 weeks of pregnancy, well before viability, which occurs at roughly 24 weeks.

Plaintiffs alleged that the law violates a woman’s constitutional right to decide whether or not to carry a previability pregnancy to term. Plaintiffs sought injunctive relief, arguing that the Supreme Court has held that a state may not ban abortion prior to viability, and that viability is generally not possible until 24 weeks, which is months after the Arkansas ban’s 12 week cut-off.


In May 2013, federal district court judge Susan Webber Wright temporarily blocked enforcement of the ban on the basis that, under Planned Parenthood vs. Casey, a state may not place an undue burden on a woman’s decision to have an abortion before viability.  In March 2014, Judge Wright permanently blocked the ban. The court upheld the provision of the law that requiring women to undergo an abdominal ultrasound and requiring physicians to inform the woman in writing that the fetus possesses a “heartbeat,” and also to tell her the statistical probability of carrying a fetus of that gestational age to term.

On May 27, 2015 in a per curiam opinion, the Eighth Circuit permanently blocked enforcement of the ban:

“[A] State may not prohibit any woman from making the ultimate decision to terminate a pregnancy before viability. 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.”

In doing so, however, the Court made it clear that it would relish the opportunity to revisit the viability issue:

“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.”

Arkansas appealed the ruling to the U.S. Supreme Court which declined to review the case on January 19, 2016. Accordingly, the Eighth Circuit’s decision stands and the law is now permanently blocked.


**last updated March 21, 2016