Another day, and another couple of state legislatures decide to pass abortion cut-offs that supporters know won’t pass constitutional muster unless the U.S. Supreme Court overturns Roe v. Wade. This time it was Utah and Arkansas lawmakers approving legislation to prohibit abortions after 18 weeks of pregnancy. That’s well below the accepted period for fetal viability, or the period in which a fetus can survive outside the uterus. Medical experts put this between 24 and 28 weeks of gestation. The 18-week cut-off thus puts the bills in direct conflict with the 46-year-old Roe ruling. But for some advocates, that’s the specific intent.
The Utah Senate passed HB136 Wednesday on a party-line vote of 23-6. Last month, the Utah House passed the bill with a few Democrats on board. Soon after Senate passage, both the Planned Parenthood Action Council of Utah and the American Civil Liberties Union of Utah promised the law would be headed for the courts if the governor signs it, as expected.
Benjamin Wood reported that the Alliance for a Better Utah issued a statement saying the ban will mean taxpayers’ dollars will be “burned up in litigation” rather than provide health care and educational efforts to reduce abortions and miscarriages.
But litigation is exactly what at least some of the bill’s advocates desire:
Supporters of HB136 have argued that advancement in medicine allow for children to survive birth at earlier stages. But the bill’s primary sponsor, West Jordan Republican Rep. Cheryl Acton, stated that her intention with the bill is not to establish a new viability standard, but to challenge the concept of fetal viability as the basis for a constitutional right.
Such a challenge is likely to be squelched at the state level or in federal district and appeals courts. Only if judges in those courts were to ignore Roe and green-light the bill would it go to the U.S. Supreme Court for real challenge. That is what at least some forced-birthers hope will happen now with Brett Kavanagh having replaced Justice Anthony Kennedy on the court. Kennedy was a reliable if reluctant supporter of Roe. Whether Kavanagh would vote with the four adamantly anti-abortion justices on the court is not absolutely certain. But reproductive rights activists fear he will help achieve what no-choice advocates have sought for decades: a partial or complete reversal of Roe.
Eight states have passed abortion cut-offs of 18 weeks or less that are currently tied up in litigation or have been permanently blocked by the courts.
In Arkansas, with outrageously solid Democratic support, the 18-week cut-off bill—HB 1439, the Cherish Act—passed the state House of Representatives Wednesday in an 86-1 vote. The state Senate had passed the bill Monday in a 28-6 vote. Arkansas already bans abortions after 20 weeks of pregnancy.
CBS News reported that Republican Gov. Asa Hutchinson believes the 18-week ban will survive any court challenges. “It’s within the second trimester that states are allowed to pass restrictions on, and this, with the science we have today it seems like a very appropriate restriction,” he said.
Hutchinson signed a bill last month that would outlaw almost all abortions in Arkansas if the Supreme Court overturns Roe. That makes Arkansas the fifth state to enact such trigger laws.