As expected, the U.S. Supreme Court announced today it would not review lower court rulings striking down the Arkansas ban on most abortions at the 12th week of pregnancy.
It was among dozens of case denied review following consideration last week. The Arkansas law is now permanently blocked from being enforced.l
Taking up the Arkansas case would have been a sharp departure from decades of court precedent that said abortion must remain legal until the point of fetal viability, more than two months later than the 2013 Arkansas law allowed except in some narrow exceptions.
Said the Center for Reproductive Rights:
“Arkansas politicians cannot pick and choose which parts of the Constitution they want to uphold,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “The Supreme Court has never wavered in affirming that every woman has a right to safely and legally end a pregnancy in the U.S—and this extreme abortion ban was a direct affront to that right.
“We now look to the Justices to ensure Texas women are not robbed of their health, dignity, and rights under false pretenses and strike down the state’s deceptive clinic shutdown law currently under review.”
Today’s order comes just over two months after the Supreme Court agreed to review Texas’s clinic shutdown law— a measure that has already shuttered half of the abortion providers in Texas, and is poised to leave the nation’s second-largest state with 10 or fewer abortion clinics.
The U.S. Supreme Court has consistently held—first in Roe v. Wade and again most recently in Planned Parenthood v. Casey—that women have a constitutional right to decide whether to end or continue a pregnancy and states cannot ban abortion prior to viability. The Supreme Court refused to review a decision permanently blocking Arizona’s ban on abortion at 20 weeks of pregnancy in 2013, and courts in Idaho and Georgia have also recently blocked similar pre-viability bans. In late 2015, North Dakota asked the Supreme Court to review a similarly unconstitutional measure which bans abortion as early as six weeks of pregnancy.
“Arkansas cannot veto a woman’s decision to have an abortion, period,” said Talcott Camp, deputy director of the ACLU Reproductive Freedom Project. “This personal, medical decision rests with a woman, her family, and her doctor – not politicians. We are gratified but unsurprised that the Court found nothing worthy of their review in this case.”
Arkansas’ SB 134 bans abortion at 12 weeks of pregnancy with only narrow exceptions in certain cases of rape, incest, and medical emergencies. SB 134 was enacted in March 2013—just two days after Arkansas Governor Mike Beebe vetoed the measure—when both houses in the state legislature voted to override his veto. The Center for Reproductive Rights, the American Civil Liberties Union, and ACLU of Arkansas filed suit in April 2013 against the ban on behalf of two physicians who provide abortions in Little Rock. A federal district judge permanently struck down the ban in March 2014, saying the extreme measure would “prevent a woman’s constitutional right to elect to have an abortion before viability.” The U.S Court of Appeals for the Eighth Circuit permanently blocked the ban in May 2015; Arkansas asked the Supreme Court to review the appellate court’s decision earlier this fall.
Arkansas Attorney General Leslie Rutledge pressed the appeal of the law, sponsored by Sen. Jason Rapert, despite general legal belief her effort would fail. This should add some more costs to those already incurred by Arkansas in defending the unconstitutional legislation.
Rapert has defended the unconstitutional measure by taking comfort that it requires a fetal heartbeat test by women seeking abortions. That part of the law was upheld by federal Judge Susan Webber Wright and remains in place.
The Arkansas case, brought by the ACLU on behalf of doctors who are abortion providers in Arkansas, was among a long list denied Supreme Court review. They are typically denied without comment and that appears to be the case here.
UPDATE: A comment from the attorney general:
“I am disappointed in the Supreme Court’s decision to not grant certiorari,” said Attorney General Rutledge. “The Arkansas Human Heartbeat Protection Act was passed by the elected legislators of this State and was a reasonable way to protect the lives of more unborn children. The Court should have granted certiorari to change its current doctrine that prevents a State from prohibiting abortions until later in pregnancy. Arkansas and other states have a profound interest in defending the life of the unborn and as Attorney General, I had a duty to fully defend this statute.”
The ACLU said the state has spent more than $97,000 on attorney fees and costs of the successful plaintiffs, with more to come on the final appeal. This doesn’t include the amount paid the state staff working on the case.
A statement from Rita Sklar, the ACLU’s leader in Arkansas:
“I am betting that everyone from the bill sponsor to the Governor knew that this law would not stand a chance at the Supreme Court. The court has unfortunately allowed some pretty onerous restrictions on access to abortions—waiting periods, and the like—but nothing that amounts to an outright ban, like this bill did. The Supreme Court has said a woman has a constitutional right to terminate her pregnancy before viability, and everyone knows that 12 weeks is nowhere near viability—further proof that the government should stop trying to practice medicine.”
Mother Jones’ commentary suggests this Arkansas law, with its successful challenge, helps those fighting anti-abortion groups efforts to role back the viability standard.
And then came Rapert in a state distributed by the Senate information office:
This is the response of Senator Jason Rapert to the U.S. Supreme Court decision to deny justice for nearly 60 million innocent babies who have been killed in our nation since 1973. Rapert was the lead Senate co-sponsor of Act 301 of 2013, the Arkansas Human Heartbeat Protection Act:
Today the U.S. Supreme Court denied hearing an appeal of ACT 301, The Arkansas Heartbeat Protection Act. I am very disappointed, but also satisfied.
I am disappointed that at least five of nine individual Supreme Court justices find it so easy to take up cases that destroy the traditions and values of Americans when it is politically expedient, but they hide themselves from true justice when they have within their power the ability to stop our nation from killing 1 million innocent babies every year. They add their names to those who have failed to act when it was in their power to do so and become complicit with the 7 men who unleashed the abortion holocaust on our nation in 1973, which has now killed nearly 60 million little babies.
While I am of course disappointed in this decision to refuse a review of the court’s concept of “viability” and the obvious need to do so with advances in medical technology, I am at least comforted that all of the informed consent provisions we included in the Arkansas Heartbeat Protection Act have been left intact.
I am satisfied that we fought the good fight all the way to the U.S. Supreme Court and can say with confidence that we did all we could do in this battle. On March 6, 2013, Arkansas made history by enacting the strongest pro-life law since the 1973 Roe v. Wade decision legalized abortion on demand. I am grateful for the support of the majority of the Arkansas people, the majority of the Arkansas legislature, Gov. Asa Hutchinson and Attorney General Leslie Rutledge for their unwavering support of the Arkansas Heartbeat Protection Act. Our efforts have not been in vain.
I am but one of tens of millions of people in this nation who believe that the voices of nearly 60 million innocent babies who have been killed in this nation under the guise of “legal abortion” cry out for justice. No other nation in modern history, that I am aware of, has more innocent blood upon its hands than the United States of America concerning abortion. It is a sad legacy that eternity will not easily forgive and history will never forget. I am but one person in this epic battle to reawaken the soul of America to finally face the reality of what we are allowing to happen in our nation.
Sadly, I have no confidence in the current U.S. Supreme Court in light of recent decisions that totally reject the traditions, history and will of the people in our nation. We have a crisis in America that must be addressed and the Courts are part of the problem. Weak leaders have been granted power in this nation by voter apathy. We are experiencing lawlessness in our government by social revolutionaries who are ripping our country apart, and the federal judiciary is ground zero in the war on American values. By God’s grace the people of this nation will awaken and root out every single person who has been responsible for undermining the will of “the people” in our legislative branch, the executive branch and the judicial branch and restore dignity and honor within our government.
We all live to fight the good fight another day. I understand that my family and I have paid a high price for our decision to stand firm on this issue, but the battles have done nothing but make us stronger and more resolved than ever. When I stand before God some day, I will have no regrets on this issue, for I have done the best that I could to give a voice to those who cannot speak for themselves and to beg our nation for mercy.
I will never quit speaking up for the unborn child who is the innocent victim of an immoral society given license to murder by an immoral Court. The abolition of slavery came after many battles and a great struggle. Our nation finally defeated that evil foe, only to adopt a worse one in 1973 with the legalization of the killing of innocent little babies in a mother’s womb. With every new death in Arkansas and America at the hands of an abortionist, the horrible history of the abortion holocaust in our nation worsens. God have mercy on America for what we have allowed to happen for way too long.
I will continue my fight for the unborn at every level, and by every means. Whether at the state level, the federal level or through an Article V constitutional amendment process – I will continue to advocate for the lives of unborn children. When there is a heartbeat, there is life – no matter what any black robed justice may say.
Sen. Jason Rapert (R) – Conway
Arkansas Senate District 35