Saturday, March 15, 2014
In an opinion in Edwards v. Beck, a federal judge permanently enjoined portions of Arkansas' Act 301, which imposed regulations on the performance of abortions in Arkansas.
Judge Wright considered the Act's three provisions: a heartbeat testing requirement; a disclosure requirement; and a ban on abortions when a fetal heartbeat is detected and the fetus has reached twelve weeks’ gestation.
She found that the 12 week ban prohibits pre-viability abortions and "thus impermissibly infringes a woman’s Fourteenth Amendment right to elect to terminate a pregnancy before viability."
Yet Judge Wright concluded that the disclosure and heartbeat testing could be severed from the unconstitutional 12 week provision, because they are
independently capable of furthering the stated purpose of Act 301, to protect unborn children, and that they are severable from the unconstitutional twelve-week ban and the requirement of license revocation for a physician who performs an abortion banned under the Act. The State, from the inception of a pregnancy, maintains its own interest in protecting the life of a fetus that may become a child, and the Supreme Court has recognized that the disclosure of truthful information about fetal development is relevant to a woman’s decision- making process and is rationally related to the State’s interest in protecting the unborn.
The judge's analysis on the severability issue is relatively slight and she could easily have reached the opposite conclusion under her articulated rationales. But she decided that only the ban on 12 week abortions was declared unconstitutional.