The Abortion Debate Continues (But without a heartbeat)

By Natalie Peelish

On Friday, March 14, a federal judge struck down Arkansas’s ban on most abortions beginning 12 weeks into a woman’s pregnancy.  U.S. District Judge Susan Webber Wright argued that viability – not a heartbeat – remains the key factor in determining the constitutionality of abortions.  Judge Wright cited previous court decisions stating that abortions may not be restricted until after the fetus is capable of viable life outside of the womb – typically at 24 weeks. She wrote that the law, “impermissibly infringes on a woman’s 14th Amendment right to elect to terminate a pregnancy before viability.”[1]  The judge maintained that the state presented no evidence that a fetus can live outside the womb at 12 weeks.  According to Judge Wright’s decision, only a doctor could determine viability.  She did leave in place a portion of the law requiring doctors to check for a fetal heartbeat and notify the pregnant woman.

In March 2013, when Arkansas passed this law banning abortion based on fetal heartbeat and not medical viability, it was the toughest ban on abortion to date[2] (North Dakota has since passed a law that is on hold banning abortions after six weeks[3]). Arkansas Governor Mike Beebe vetoed the measure, but was subsequently overruled by the legislature.  The ban did include exemptions for rape, incest, the life of the mother, and highly lethal fetal disorders.  Nonetheless, the Arkansas ban represents another effort by the anti-abortion coalition to chip away at a woman’s right to choose.

In 1973, the Supreme Court held in Roe v. Wade that a Texas statue prohibiting all abortions except to save the life of the mother violates the constitutional right of personal privacy implicit in the 14th Amendment. [4]  In its holding, the Court maintained that it will not decide the philosophical and religious question of whether fetuses are persons, or if and when human life begins in the womb.  The Court thus established the Third Trimester Rule, stating that only in the third trimester after the 24th week of pregnancy when the fetus is capable of “meaningful life outside the mother’s womb,” can states prohibit abortion in order to protect potential life of the fetus, except when abortions are necessary to preserve the life or health of the mother. 

Despite the fact that Roe v. Wade was decided over forty years ago, anti-abortion groups seem to be gaining momentum in their fight to pass more restrictive abortion laws, eventually aiming to outlaw abortion all together.  As recently as Wednesday, a Louisiana House of Representatives committee approved legislation, that if passed, could severely restrict abortions in the state by requiring physicians who perform abortions to have admitting to a hospital that provides obstetrical-gynecological services within thirty miles.  The Supreme Court last fall upheld a similar law in Texas requiring physicians to have admitting privileges, ruling 5-4 to uphold the federal appeals’ court decision to leave such legislation intact.  The Texas legislation prompted at least a dozen clinics to close in Texas.  It is important to note though that the Court was not deciding on the Constitutionality of the legislation, rather the legitimacy of the federal appeals court decision. 

However, such abortion restrictions are not limited to the state level.  In January Republicans in the House of Representatives passed a number of abortion restrictions that would dramatically reduce the number of health insurance plans that cover the procedure.  The No Taxpayer Funding for Abortion Act, sponsored by New Jersey Representative Chris Smith, would ban insurance plans sold in the new health care exchanges from covering abortion and would eliminate tax benefits for small businesses that purchase insurance plans covering abortion[5].  While the bill is unlikely to gain any further traction, it nonetheless represents a move by conservative forces to restrict abortion both at the state and federal level.  

The Arkansas ban, along with a slew of other abortion-restricting legislation, marks a concerted effort by Republicans and anti-abortion groups to erode existing federal legislation and precedent protecting a woman’s right to choose.  The extent to which they succeed both in the democratic process and in the courts remains to be seen.


[1] Serna, Joseph. “Legal attacks on abortion getting some victories but losses too,” The Los Angeles Times. LATimes.com, March 15, 2014. Web. March 20, 2014.
[2] Eckholm, Erik. “Abortion Law in Arkansas Is Blacked by US Judge,” The New York Times. NYTimes.com, May 17, 2013. Web. March 20, 2014.
[3] Ibid
[4] Roe v. Wade, 410 U.S. 228, 1973.
[5] Bassett, Laura. “House Republicans Pass Sweeping Anti-Abortion Bill,” The Huffington Post. Huffingtonpost.com, Jan. 28, 2014. Web. March 20, 2014. 

Photo Credit: Flickr user 37degrees