March 8, 2013
NEW YORK (AP) -- By adopting the nation's toughest abortion law in the face of certain legal challenge, Arkansas legislators have exposed sharp tactical divisions within the national anti-abortion movement.
Some activists welcomed the new law -- a ban on most abortions after 12 weeks of pregnancy -- as a bold challenge to the Supreme Court's 1973 Roe v. Wade ruling that established a nationwide right to abortion. Others fear the ban is headed toward emphatic rejection in court and favor more incremental strategies.
"When you pass a law, the end goal is surviving in court," said Michael Gonidakis, president of Ohio Right to Life. He predicted the Arkansas law would be struck down because it contradicted Supreme Court rulings allowing abortions prior to viability -- the stage at about 22 to 24 weeks of pregnancy when a fetus could survive outside the womb.
"It's easy to say, `Let's save all the babies,'" said Gonidakis, an attorney. "But you could pass 100 bills a day, and they'll never go into effect and save one baby's life."
The Arkansas ban, which would make exceptions in cases of rape, incest and certain medical contingencies, is scheduled to go into effect 90 days after the current legislative session adjourns. Democratic Gov. Mike Beebe had vetoed the measure, but was overridden on Wednesday.
Within moments after the override vote in the Arkansas House, the American Civil Liberties Union and the Center for Reproductive Rights announced that they would challenge the ban in federal court.
"I believe the courts will be very quick to strike this down," said Jennifer Dalven, director of ACLU's Reproductive Freedom Project. "This law is blatantly unconstitutional and an extreme intrusion by politicians into the personal decisions of a woman and her family."
Yet regardless of the Arkansas law's fate, abortion-rights lawyers will likely be confronted with a series of other laws posing similarly direct challenges to Roe.
In Oklahoma, a "personhood" bill has been introduced that would ban abortions by defining human life as beginning with conception. In North Dakota, the House of Representatives has passed a bill that would ban doctors from performing an abortion if a fetal heartbeat is detected, which can occur as early as six weeks into pregnancy.
A similar "heartbeat" bill was debated by Ohio lawmakers last year before being blocked by the Senate president. The measure, which could be revived this year, fractured Ohio's anti-abortion movement in a debate over its tactical effectiveness.
Gonidakis was among the anti-abortion leaders opposing the heartbeat bill, saying that if it did reach the Supreme Court, which he considered unlikely, it could backfire by producing an even a stronger ruling in favor of abortion rights.
Instead, Gonidakis prefers the incremental approach that anti-abortion activists have employed recently in many states -- mostly Republican-controlled -- by passing a variety of laws that curtail access to abortion without challenging Roe head-on.
In Ohio, these include a requirement that a woman seeking an abortion meet with a doctor at least 24 hours beforehand to be cautioned about medical risks and informed of alternatives that would lead to childbirth.
One of the groups most active in pushing state anti-abortion bills has been Americans United for Life.
Its spokeswoman, Kristi Hamrick, declined to criticize the Arkansas 12-week ban, but made clear that AUL preferred a less draconian approach taken by 10 states -- prohibiting most abortions after 20 weeks under the disputed premise that a fetus may be capable of feeling pain at that stage.
"That's a good way to go forward," she said. "We believe it has a good chance of surviving legally."
On Wednesday, however, Idaho became the first of those 10 states to have its so-called fetal pain law struck down by a federal court as an unconstitutional violation of Roe v. Wade.
Abortion-rights groups welcomed the Idaho ruling, and so did the National Right to Life Committee, from a different perspective. The committee voiced hope that an appeal would lead the case to the U.S. Supreme Court and produce a ruling upholding the right of states to use fetal pain as a ground for banning abortions after 20 weeks.
It could take at least a year, likely longer, for any legal challenge to reach the Supreme Court, even if the justices did agree to hear an abortion case. And there's no guarantee the court's makeup would be the same; at present, it's generally viewed as representing a 5-4 majority in favor of upholding Roe, with Justice Anthony Kennedy considered a swing vote willing to consider some substantive state-level restrictions.
Steve Aden, who helps oversee abortion issues for the Christian legal group Alliance Defending Freedom, suggested that the 20-week bans had a better chance of reaching the high court than measures such as the heartbeat bill or the new Arkansas ban.
However, he said the entire swath of bills conveyed a common message.
"What they demonstrate," he said, "is that there's a tidal wave of sentiment at the grass-roots level that abortion is unconscionable and that states should do their utmost in restricting it."
From the other side of the debate, Nancy Northup of the Center for Reproductive Rights said she saw some educational value in laws like the Arkansas ban.
"They reveal what the end game is, which is to ban abortions as early as possible," she said. "This isn't chipping away. It's taking a sledgehammer."
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