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Arkansas’ 18-week abortion ban, two other pro-life laws remain blocked by judge

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August 13, 2019 (LifeSiteNews) -- A federal judge continued to block three pro-life laws in Arkansas from going into effect because they are “unconstitutional” and would cause "irreparable harm” for women seeking abortions.

Judge Kristine Baker of the Eastern District of Arkansas ruled again against an 18-week abortion ban, another law banning abortion based upon a prenatal diagnosis of Down syndrome, and a third law requiring abortionists to have OB/GYN certifications. The 18-week abortion law bans abortion except in cases of rape, incest, and medical emergency.

Baker said in her ruling that the three laws "cause ongoing and imminent irreparable harm to the plaintiffs and their patients," and "the harms to women who are unable to obtain abortion care as a result of (the acts) are irreparable."

The Arkansas chapter of the American Civil Liberties Union (ACLU) and Planned Parenthood had sued Arkansas Attorney General Leslie Rutledge and other state officials in June, arguing that the three measures are unconstitutional.

Baker addressed the 18-week ban in particular in her decision, suggesting she would ultimately rule in favor of the pro-abortion plaintiffs based upon the reasoning that the ban is unconstitutional, CNN reported.

The Supreme Court ruled in 1973 in Roe v. Wade that the Constitution had an implicit right to privacy that included the right for women to obtain an abortion, states could put greater restrictions on abortion after an unborn baby reached viability.

Roe v. Wade defined viability at 28 weeks. However, in 1992's Planned Parenthood v. Casey, this was revised to 24 weeks, given trends in science since Roe had meant later and greater chance of survival for children who are born pre-term.

The standard for viability has continued to trend earlier than 24 weeks since then, and more babies are surviving pre-term birth when given adequate medical attention.

"The Court concludes that, at this stage of the proceedings and on the record evidence currently before the Court, plaintiffs are likely to prevail on their argument that (the ban) unconstitutionally restricts pre-viability abortions and, therefore, is facially unconstitutional," Baker wrote in her decision. 

Baker said the "plaintiffs are likely to prevail" in their argument that deferring to the Arkansas Legislature's factual findings on fetal development would be "inappropriate," because "those findings contradict binding Supreme Court precedent with respect to how viability is to be determined."

Arkansas’ 18-week abortion ban cites fetal development beginning at five to six weeks when the child’s heartbeat can be detected, continuing with developments through 12 weeks’ gestation.

The abortion activist groups are arguing that rushing the 24-week deadline encroaches on the constitutional right to privacy established by Roe.

The three laws had been set to go into effect July 24.

On July 23, Baker had issued a 14-day injunction, saying the laws “cause ongoing and imminent irreparable harm” to patients, and the acts are “unconstitutional.” That injunction was due to expire August 6.

Baker’s new injunction means the pro-life laws won’t take effect as long as legal challenges against them are argued in court.

Rutledge filed an appeal of Baker's temporary block in the Eighth U.S. Circuit Court of Appeals on Tuesday.

"Following the court's adverse ruling, the Attorney General immediately filed an appeal to the Eighth Circuit," Amanda Priest, Rutledge's communications director, said in a statement. "She continues to defend Arkansas law protecting women's health by requiring a board certified or eligible OBGYN to perform an abortion, as well as Arkansas laws that (protect) unborn life by prohibiting abortions after 18 weeks and at any time if based on a Down Syndrome diagnosis."

Arkansas is one of two U.S. states with an 18-week ban. 

Utah passed a similar ban in March, but has agreed to not enforce the law while it’s being challenged in federal court.

Arkansas currently has a 20-week abortion ban, which was enacted in 2013.

The state is also one of a number of states to enact a “trigger law,” which would ban most abortions should the Supreme Court overturn Roe v. Wade.

Several states have laws prohibiting abortion for genetic anomalies, including Down syndrome. However, North Dakota’s is the only one in effect. The others are tied up in court.

Several states have moved to ban abortion based on the unborn child feeling pain during the abortion procedure, and some have also banned abortion based upon detection of the fetal heartbeat.

The ACLU and Planned Parenthood are also challenging Alabama's near-complete abortion ban as well as heartbeat bills in Georgia and Ohio.

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