The state's new law restricting abortions to the first 12 weeks is blatantly unconstitutional -- and not that different from what a lot of European nations have in place.
One of the great ironies of American abortion-rights law is that it is one of the few areas of social regulation where America is to the left of Europe. The latest explosion in one of the laboratories of democracy is a piece of legislation in Arkansas outlawing abortion after 12 weeks of pregnancy, which passed this week when the Republican legislature overruled the gubernatorial veto of Democrat Mike Beebe.
Should this clear violation of the viability framework laid out in Roe v. Wade be allowed to stand -- and experts on both sides of the abortion fight predict that it won't be -- it would serve to make Arkansas the most restrictive state in the nation when it comes to the legal availability of abortion. (It may not actually become the hardest state to in which to obtain an abortion; other states already have less functional though more legal access to abortion). It also serves to make Arkansas the one American state to take a direct European-style approach to the regulation of abortion.
It's hard to imagine that's what bill sponsor State Senator Jason Rapert -- who previously gained notoriety for racially charged anti-Obama remarks made at a 2011 Tea Party rally -- was going for.
But it's been the case since their abortion laws were liberalized in the 1970s that many of the European nations have abortion laws not much less strict than the one Arkansas just passed. France permits abortions up until the 14th week of pregnancy (which is counted from the date of the last menstrual period, even though ovulation doesn't usually occur until one to two weeks after that). After that, abortions are only available in exigent circumstances, such as severe fetal deformities, or to save the health or life of the mother. France also has a mandatory one-week waiting period for all abortions (they prefer to describe it as a "cooling-off" period), unless by so waiting the woman would pass the 14-week cut-off, which coincides with the end of the first trimester. Other nations that restrict abortions largely to the first trimester include: Germany (14 weeks), Italy (90 days from the last menstrual period), Spain (14 weeks), and Portugal (10 weeks).
Most women in the United States who seek abortions do so within these early weeks as well; according to the National Abortion Federation, 88 percent of all abortions "are obtained within the first 12-13 weeks after the last menstrual period." A third of those obtained after 12 weeks are sought by teenagers, whose irregular menstrual cycles, lack of knowledge about sex and biology, lack of resources, and complex family dynamics combine to make it harder for them to recognize they are pregnant and seek an abortion in a timely manner. "Fewer that 2 percent" of abortions take place after 21 weeks, or in the third trimester, according to NAF.
"This is a very unique bill," said NARAL Pro-Choice America spokesperson Samantha Gordon, speaking of the Arkansas act. "It's the first one of its kind."
The Arkansas bill is the most stringent anti-abortion measure enacted by a state since South Dakota legislators voted to outlaw abortion entirely in 2006; that law was eventually overturned when subjected to a direct vote by citizens after pro-abortion rights forces organized to put it before them as a ballot initiative.
The Center for Constitutional Rights and the ACLU of Arkansas have announced that they intend to challenge the law, which they call "clearly unconstitutional under four decades of U.S. Supreme Court precedent" and which would not take effect until 90 days after the legislative session ends, in federal court. "Attempts such as this to turn back the clock on reproductive rights will not stand," said Nancy Northup, president and CEO at the Center for Reproductive Rights, in a statement.
James Bopp Jr., the Indiana-based general counsel of National Right to Life, told The New York Times the Arkansas law was pointless, because so likely to be overturned. "As much as we would like to protect the unborn at that point, it is futile and it won't save any babies," he said.
In short, America won't be heading in a European direction on abortion regulation any time soon. What Rapert did next after his law passed helps explain why: He submitted a fresh piece of legislation intended to defund Planned Parenthood in Arkansas. In places like Spain, abortion is regulated through a law that situates it within a complicated weighing of the rights of women and of children, and is part of a comprehensive approach to women's reproductive health care that includes contraception. In the United States, the effort to restrict abortion often goes hand-in-hand with uncompromising efforts to restrict contraception and override the rights of women more generally (for example, the right to bodily autonomy by requiring invasive and medically unnecessary pre-abortion transvaginal ultrasounds, which Rapert pushed before they became controversial). There cannot be any grand European-style compromise on abortion in the United States so long as the goal of abortion opponents is to eliminate all access to abortion, rather than to make it, as a wise man once said, safe, legal, and rare.