Arkansas is eighth state with fetal pain law; court challenge expected

LITTLE ROCK, Ark. (CNS) — Both houses of the Arkansas Legislature voted to override Gov. Mike Beebe’s veto of a fetal pain bill, outlawing most abortions after 20 weeks of pregnancy.

Medical evidence suggests that the unborn can feel pain beginning around 20 weeks of life.

In a 19-14 vote Feb 28, the state Senate reaffirmed the Pain-Capable Unborn Child Protection Act. The House of Representatives voted 53-28 a day earlier to overturn the veto. Both votes fell largely along party lines with Republicans mostly supporting the override.

Pro-life activists praised passage of the measure, a legislative priority for the Diocese of Little Rock and Arkansas Right to Life.

“It’s a great day in the state of Arkansas,” said Rose Mimms, executive director of Arkansas Right to Life and member of St. Theresa Church in Little Rock. “This law is going to protect many unborn babies from excruciatingly painful deaths by abortion.”

The measure, introduced by Republican Rep. Andy Mayberry , became law immediately. It provides exceptions in cases of rape, incest or to save the mother’s life but does not include any exemption for fetal disorders.

The new law builds upon the state’s Unborn Child Pain Awareness and Prevention Act of 2005 that requires doctors to review printed material discussing fetal pain at least 24 hours before an abortion is performed on women whose pregnancy is 20 weeks or longer.

Few later-term abortions are performed. The Arkansas Department of Health reported that 4,033 abortions occurred in the state in 2011, and 46 of them occurred at 20 weeks and two occurred at 21 weeks or later.

Beebe justified his veto, saying he believed the bill was unconstitutional because it was contrary to the U.S. Supreme Court’s Roe v. Wade decision that legalized abortion. The governor said he wanted to spare the state the cost of defending such a measure.

Arkansas Right to Life representatives met with the governor shortly before his decision, attempting to assuage his concerns over the law’s constitutionality. Mimms said even though Beebe said he was leaning toward veto, she was surprised he ultimately did so.

“I really thought he was going to let it sit on his desk and become law without his signature,” she said. “Instead, the governor came out in favor of abortion on demand, an elective, non-emergency procedure that causes terrible pain to innocent babies.”

Reaction from supporters of legal abortion was swift and all but assured a forthcoming legal challenge. The threats came as no surprise to pro-life activists.

“I doubt that a legal challenge will come quickly, but it will come,” said Patrick Gallaher, executive director of Catholic Charities of Arkansas and a diocesan lobbyist. “I expect the pro-abortion forces will wait until the end of the session and then take the time to set up their case.”

The challenge may be largely a foregone conclusion. While seven states have passed similar laws — two of which are facing legal challenges the case is heard — there exists little legal precedence in the matter.

Mayberry told The Associated Press the law was modeled after similar legislation in Nebraska that has not been challenged in court. Gallaher pointed out that advancements in prenatal science stretch the definition of “viability” upon which Roe v. Wade is based.

“Time marches on and technology marches on,” Gallaher said. “The age of viability was 26 weeks in the 1970s, but there is evidence that it’s probably now 22 weeks, maybe less. If a baby is viable at 22 weeks, then it stands to reason that pain receptors are formed and functioning at 20 weeks. That’s important because that changes when the pregnancy becomes a matter of the state’s interest.”

Additionally, abortion supporters may have to pick their battle or fight a two-front war. They also have vowed to take on the Arkansas Human Heartbeat Protection Act, which is being considered by the legislature and expected on Beebe’s desk soon. That measure would ban most abortions once a heartbeat was detected, which occurs at about 12 weeks. Because the bill shortens the window for abortion, it may be more likely to draw abortion supporters’ fire from the 20-week law.

Arkansas is the eighth state to have passed a fetal pain bills. Laws in Arizona and Georgia are facing court challenges.

– – –

By Dwain Hebda, associate editor of the Arkansas Catholic, newspaper of the Little Rock Diocese.