In a major victory for reproductive rights, the Supreme Court today rejected once and for all an Arkansas bill that would have banned all abortions after 12 weeks of pregnancy if a heartbeat was detected. The bill, known as the Human Heartbeat Protection Act, was passed by Arkansas’ Republican-dominated state legislature in 2013 over the veto of Democratic governor Mike Beebe, and was at the time the most restrictive abortion ban in the nation (though other states have since outdone Arkansas’ restrictions). Within weeks of the initial bill’s passage two doctors challenged its constitutionality, and both an Arkansas district court and the 8th Circuit Court of Appeals ruled in favor of the plaintiffs, preventing the restrictive ban from going into effect. The state, however, appealed the case to the Supreme Court, whose rejection of the ban will hopefully send a message to other states seeking to enact restrictive early abortion bans.
The question of the Human Heartbeat Protection Act’s constitutionality essentially rested on the legal definitions used to define early abortions, and was thus abundantly clear from the outset. The landmark Roe v. Wade case in 1973 established a woman’s right to an abortion up to the end of the second trimester of pregnancy, or about 27 weeks. In 1992, in Planned Parenthood v. Casey, the Supreme Court updated its interpretation to rule that states had a right to ban abortions of fetuses that were medically viable, meaning they could survive outside the womb.
This standard of viability, which usually occurs after about 24 weeks of pregnancy, has remained in effect ever since in spite of a rash of restrictive laws passed in Republican states that seek to redefine the legal standard and ban abortions even earlier. Since 2000, fifteen states have passed so-called “fetal pain” bills, banning abortions after 20 weeks of pregnancy based on the medically incorrect notion promoted by the anti-abortion lobby that a fetus can feel pain beginning at 20 weeks. Even these laws are arguably unconstitutional based on the standard of viability established by the Supreme Court, but the Arkansas ban, in seeking to restrict abortions after 12 weeks – when fetuses certainly can’t feel pain and are far from being viable – went farther than any other restriction.
In asking the Supreme Court to review the case, Arkansas argued that the standard of viability was “outdated,” although the court’s justices – as well as those of the lower courts that have overturned the ban – clearly disagreed, with one 8th Circuit justice adding that the state “offered no competing evidence” on fetal viability or alternate standards. Merely to counter the scare tactics of many Republicans it is worth noting that only about 1% of abortions occur after 20 weeks, and only 3.5% occur after 12 weeks. Nonetheless, women have a clear constitutional right to abortions in these cases, and Republicans’ willingness to trample the constitution they supposedly hold so sacred to restrict those rights is a dangerous portent of further restrictions to come. Abortion rights must therefore be protected at all costs, and the Supreme Court’s ruling today was a major victory in that fight.
James DeVinne is a student at American University in Washington, DC majoring in International Service with a focus on the Middle East and South Asia. He is a founding member of Occupy Baltimore and interns at the Tahrir Institute for Middle East Policy.