The Nation's Harshest New Abortion Law Will Not Survive Against Roe v. Wade

This article is from the archive of our partner .

On Wednesday afternoon, despite Governor Mike Beebe's best intentions, the Arkansas House and Senate passed the most restrictive abortion law in the country — indeed, perhaps the greatest legal challenge to Roe v. Wade in its 40 years of existence. But abortion rights groups were waiting right outside the Capitol in Little Rock, ready with promises of an instant lawsuit.

Beebe vetoed proposed legislation on Monday that would ban abortions in the state at 12 weeks into pregnancy. But the House overrode Beebe's veto by a 56-33 margin on Wednesday, something it has the right do if they can gather a simple majority. The state Senate voted 20 to 14 in favor on Tuesday. Under decades worth of U.S. law as established by Roe, women have a constitutionally protected right to abortion services until a medically accepted point of viability, usually considered to be about 24 weeks. That's not just a discrepancy between a landmark Supreme Court decision and the law of one land — that's three months' worth of discrepancy. And that's not going to hold up.

Specifically, Arkansas' "Human Heartbeat Protection Act" bans abortion procedures after 12 weeks if a fetal heartbeat can be detected by an abdominal ultrasound. Senator Jason Rapert, the bill's outspoken sponsor in the House — he compared abortions to the Holocaust — originally wanted the ban to start at six weeks. But Rapert (pictured at left) realized that would require a vaginal ultrasound and would draw ire similar to Virginia's mandatory vaginal ultrasound law. And still, at 12 weeks it is the shortest term in the United States, effectively banning abortions in the first trimester, and Rapert seemed to know full well the implications. "The eyes of this nation [have] been on the Arkansas House of Representatives today. And the eyes of this nation [have] seen that people are ready for change. I've heard from them," Rapert said, according to the Arkansas Democrat-Gazette. "Again, if there's a heartbeat, there's life and we're going to stand up for this law, regardless of who opposes it."

Recommended Reading

And there was plenty of opposition. For Beebe, it was the second time in two weeks the newly elected Republican Senate and House overrode one of his vetoes; last week, they overrode his veto of a bill restricting abortion access after 20 weeks of pregnancy. But the new bill won't become law until the House disbands at some point over the next month, and then there's a 90-day period before it takes effect.

In fact, it probably won't become law for very long — if at all. Pro-rights groups like the Center for Reproductive Rights and the American Civil Liberties Union, members of which were protesting outside, have already promised to take the law to court. Beebe vetoed the bills, besides the whole unconstitutionality part, despite his legislatures wishes because he knew they wouldn't hold up in a court battle and it would only end up costing the state money. The legislatures didn't care. Nancy Northup, the president of the Center for Reproductive Rights in New York, told The New York Times the bill has "no chance of surviving" in court. 

Even some anti-abortion activists agree the bill has no chance at surviving against the Supreme Court's outline from Roe. "As much as we would like to protect the unborn at that point, it is futile and it won’t save any babies," said James Bopp Jr., general counsel of National Right to Life, told the Times. Bopp said that no lower court would defy Roe, and that the Supreme Court is unlikely to take up the abortion cause again. But if the Court should ever need cause to challenge, this would be a historical place to look — should pro-life attorneys get any ideas. In the meantime, there will be a lot of wading through legal fees and proceedings for the 12-week ban to end before it begins. Sorry, Arkansas tax payers. Tell 'em Rapert sent you.

This article is from the archive of our partner The Wire.