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Eighth Cir. Reluctantly Strikes Down Arkansas' Abortion Ban

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By Casey C. Sullivan, Esq. on June 02, 2015 4:09 PM

The Eighth Circuit became the latest appellate court to strike down a state law banning abortions before viability last week. The court threw out an Arkansas law banning abortions after 12 weeks, reiterating the requirement that states may not unduly burden a woman's right to choose prior to fetal viability.

However, unlike its sister circuit to the west, the Eighth did not emphasis the arbitrary or burdensome nature of those bans. Rather, it lamented the lack of a scientific record in the case which may allow it to move the line of viability forward and, with a heavy wink and nudge to abortion opponents, discussed how scientific developments might reshape abortion law.

We'll Stick With Viability if We Have To

The oddly titled Arkansas Human Heartbeat Protection Act -- is the law meant to protect heartbeats? -- essentially banned abortions after the first trimester. It prohibited doctors from performing abortions without testing for a detectable fetal heartbeat and banned abortions where a heartbeat was detectable and the fetus was 12 weeks into gestation. The doctor was also required to "disclose" the existence of a heartbeat and odds of bringing the pregnancy to term.

The Eighth Circuit found the ban was facially unconstitutional under Planned Parenthood v. Casey. In Casey, the court ruled that states may not place an undue burden on a woman's right to get an abortion before the fetus is viable outside the womb. "The State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability," the Justice O'Connor wrote.

Viability is treated as a medical concept and is typically reached around the 24th or 25th week of pregnancy, allowing states to impose stricter restrictions on abortions only in the third trimester. Arkansas's law moved that line up, significantly. Though it tried to frame the ban as a simple regulation, the court was not convinced.

Why Don't You Try This Next Time

Like the Ninth Circuit's decision filed the same week, the Eighth emphasized that the line for regulation is viability. Though a heartbeat is detectable in most pregnancies after 12 weeks, plaintiffs argued that a fetus is never viable that early on. Since state never contested this, the Eighth Circuit had with no choice but to strike down the law.

However, the Court also indicated that it could be sympathetic to future claims questioning the viability line in light of "mankind's ever increasing knowledge of prenatal life." The court emphasized its desire to have "the benefit of an adequate scientific record" before it. Further, and perhaps somewhat ironically, the Eighth quoted a pre-Casey dissent by Justice O'Connor noting that the viability standard "is clearly on a collision course with itself." It was Justice O'Connor's opinion in Casey ten years later which upheld that standard.

While the Eighth Circuit attempted to outline a future challenge to abortion rights, emphasizing that viability must be an individual determination, it struck down the law, preserving the legal status quo for the time being.

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