An aggressive new law banning all abortions after 12 weeks in Arkansas reveals a key split among abortion opponents that could affect the next wave of state laws that seek to restrict women's access to abortion.
Arkansas state legislators overrode Democratic Gov. Mike Beebe's veto on Wednesday to adopt the strictest anti-abortion law in the country. But what looks like a victory for anti-abortion activists is actually just a futile gesture that will be quickly smacked down by courts, legal experts say.
The bold tactic reveals a split in the anti-abortion movement among those who want to pass laws that incrementally try to make it harder for women to have abortions—such as requiring ultrasounds or waiting periods—and those who want to pass outright bans on the procedure that directly flout the Supreme Court.
The "Arkansas Human Heartbeat Protection Act" ignores the Supreme Court's 1973 Roe v. Wade ruling that the government cannot ban abortions that take place before a fetus can survive outside the womb, considered to be at about 24 weeks. (The question of viability is a matter of debate and has changed as medical technology improves.)
The law will almost certainly be swiftly blocked by the courts. In fact, a federal judge struck down a less restrictive abortion ban in Idaho on Wednesday, saying lawmakers were ignoring Supreme Court precedent by preventing women from having abortions after 20 weeks of pregnancy.
A prominent anti-abortion attorney told Yahoo News such laws are the wrong approach for state lawmakers to take.
"It's certainly a statement, but looking at it in terms of legal effect or saving lives, it won't do that because regrettably it will be enjoined by the courts," said James Bopp Jr., general counsel of National Right to Life.
Bopp said the anti-abortion movement has successfully reduced the number of abortions performed in the United States by working with state lawmakers to enact more and more regulations around the procedure. Daylong waiting periods, parental notification laws and a wave of recent legislation requiring women to undergo ultrasounds before being allowed to receive an abortion are ways to discourage women without directly challenging the Supreme Court's ruling against bans.
"We think that is the appropriate strategy until the court would be willing to consider [overturning] Roe v. Wade, which they are not willing to do," Bopp said.
Justice Anthony Kennedy, the court's swing vote, helped author the court's decision in Planned Parenthood v. Casey. The 1992 decision upheld a woman's right to have an abortion, but also said the government may seek to discourage her from having one by requiring waiting periods and other efforts. As long as these government restrictions do not pose an "undue burden" on a woman's right to an abortion, they are legal, the court ruled.
Since that decision, abortion foes have sought to push the envelope on what constitutes an "undue burden," by stretching out the waiting period for as long as 72 hours, or by requiring women to be informed that fetuses may feel pain, or by requiring doctors to perform an ultrasound and then show the images to women before the abortion.
Such laws have also faced legal challenges from pro-abortion rights groups, but generally have had much better luck in the courts than outright bans. The ultrasound laws in particular may soon end up in front of the Supreme Court, which would then be forced to expand upon what "undue burden" means.
Scott Gaylord, a professor at Elon Law School in North Carolina, said that laws like the one in Arkansas are meant to challenge the very idea that a fetus' viability outside the womb should be the legal marker for when abortions are allowed. In Arkansas, lawmakers are arguing that the existence of a fetal heartbeat should be the marker, while lawmakers in Idaho and seven other states have passed laws that say the line should be drawn when a fetus can feel pain, which they believe occurs at 20 weeks.
But Gaylord said lower courts are all but certain to uphold the Supreme Court's reasoning on this issue, and that it's very unlikely the Supreme Court would agree to take up the Arkansas law or any others that do not recognize existing precedent.
Indeed, a federal judge on Wednesday overturned Idaho's 2011 "fetal pain" law that banned abortions after 20 weeks with a strongly worded rebuke for lawmakers who were flouting the court.
“The State's clear disregard of this controlling Supreme Court precedent and its apparent determination to define viability in a manner specifically and repeatedly condemned by the Supreme Court evinces an intent to place an insurmountable obstacle in the path of women seeking non-therapeutic abortions of a nonviable fetus at and after twenty weeks’ gestation,” wrote U.S. District Judge B. Lynn Winmill.