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Arkansas' tough new abortion law on shaky legal ground, experts say

With a legislative override of the governor's veto, Arkansas has adopted perhaps the toughest abortion law in the country – outlawing abortions after 12 weeks. But legal challenges are coming.

By Staff writer / March 7, 2013

Republican state Sen. Jason Rapert (r.) greets Democratic Sen. Bobby Pierce on the floor of the Senate chamber at the Arkansas state Capitol in Little Rock, Ark. Pierce voted against an override of Gov. Mike Beebe's veto of Mr. Rapert's legislation that would ban most abortions from the 12th week of pregnancy onward.

Danny Johnston/AP

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Arkansas has adopted what have been described as America’s toughest restrictions on abortion, but law experts suggest the legislation has little chance of surviving the legal challenges that look certain to follow.

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The measure makes most abortions illegal after 12 weeks of pregnancy – the shortest such time frame in the country.

Gov. Mike Beebe (D) had rejected the bill, but the state Senate overrode the veto on Tuesday, as did the state House on Wednesday. The bill is set to become law 30 days after the legislative session ends May 6.

Governor Beebe and legal experts agree that the bill will probably be struck down in court. Roe v. Wade, the landmark 1973 decision by the US Supreme Court, legalized abortion nationwide. Limits on when abortions can take place vary by state, but the high court has indicated that the procedure can take place up to when the fetus is viable outside the womb, which is about 24 weeks into pregnancy.

“It is very clear this law is unconstitutional under current doctrine,” says Jonathan Entin, a law professor at Case Western Reserve University in Cleveland. “A 12-week limit is well before viability, and the Supreme Court has consistently said the Constitution protects a right to a pre-viability abortion.”

The bill, Professor Entin says, should be viewed more as a “symbolic statement” by its supporters to create “a way to try to get the Supreme Court to revisit the whole subject of abortion.”

Arkansas state Sen. Jason Rapert (R), a co-sponsor of the bill, told a local television outlet Wednesday: “I’m just happy for the lives that will be saved in Arkansas, and I think America is going to wake up, the conscience of America is going to awaken on this issue.”

But Entin argues that the high court is not yet prepared to revisit Roe and doesn’t have the votes to overturn that decision.

“There is no reason to see a conflict in a lower federal court that the Supreme Court would have to resolve,” he adds.

The fate of the Arkansas bill might have been foreshadowed Wednesday in Idaho, when US district judge B. Lynn Winmill struck down a state law banning abortions after 20 weeks of pregnancy. Idaho is one of a handful of states to pass such a law in 2011, based on the argument that a fetus can feel pain in the first trimester of pregnancy. Judge Winmill ruled the law violates a woman’s constitutional rights and added that the health of the woman and her right to choose supersedes protecting the fetus.

“The state may not rely on its interest in the potential life of the fetus to place a substantial obstacle to abortion before viability in women’s paths,” he wrote.

Advocacy groups for reproductive rights say they plan to mount legal challenges in federal court.

“We intend to make it equally clear that no one’s constitutional rights are subject to revision by lawmakers intent on scoring political points, and that attempts such as this to turn back the clock on reproductive rights will not stand,” said Nancy Northup, president of the Center for Reproductive Rights in New York City.

If legal challenges to the Arkansas legislation are successful, the state will be forced to pay the legal fees of both parties. State Rep. Ann Clemmer (R) says that is a price she is willing to pay considering what is at stake.

“If you look at 12-week abortions and beyond, it’s 800 a year [in Arkansas]. That’s a small town in Arkansas,” she told a local television outlet Wednesday.

In 2011, 20 percent of the 4,033 abortions that took place in Arkansas were at or after 12 weeks of gestation, the state Department of Health reports.

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