LITTLE ROCK — A federal judge heard arguments Thursday over whether four new abortion laws should be allowed to go into effect.
U.S. District Judge Kristine Baker did not immediately rule on a motion by a Little Rock doctor for an order temporarily blocking abortion laws approved earlier this year by the state Legislature and Gov. Asa Hutchinson.
Lawyers with the American Civil Liberties Union, the ACLU of Arkansas and the New York-based Center for Reproductive Rights filed the suit on behalf of Dr. Frederick Hopkins, who performs abortions at Little Rock Family Planning Services. ACLU lawyer Talcott Camp argued Thursday the laws are unconstitutional and would cause Hopkins and his patients to suffer irreparable harm if allowed to take effect.
State Deputy Solicitor General Nicholas Bronni argued the laws would not harm Hopkins or his patients and said the measures further legitimate state interests.
One of the laws is Act 45, also known as the Unborn Child Protection from Dismemberment Abortion Act, set to take effect July 30. Under the law it would be a felony to perform an abortion procedure in which the patient’s cervix is dilated and the doctor “dismembers the unborn living child.” The law also would allow civil lawsuits to be filed against doctors who perform the procedure.
Camp said all reported second-trimester abortions in Arkansas are done by the procedure, known as dilation and evacuation.
“This law would stop abortions at 14 weeks,” Camp said.
Bronni said Act 45 would not ban all dilation and evacuation procedures, but only those in which the fetus is dismembered while alive. He said it would not bar the procedure if a doctor takes steps “to ensure fetal demise” before removing the fetus from the uterus.
“The statutory text narrowly proscribes only a particularly barbaric and inhumane form of D&E, where a living child, its heart still beating, is ripped limb from limb with the goal of causing it to bleed to death,” he said.
Also at issue in the suit is Act 733, set to go into effect Jan. 1, which would require that before performing an abortion, a doctor make a reasonable effort to obtain medical records related to the patient’s current pregnancy and all past pregnancies.
Camp said the law does not define what a “reasonable” effort is or say how long the effort should take or what the doctor should do with the records. It also includes no exceptions for medical risks associated with delaying an abortion, she said.
Bronni said the law trusts doctors to know what a reasonable effort is and how to use the records in service of the patient’s care.
The lawyers also debated Act 1018, set to take effect July 30, which would require that a doctor who performs an abortion on a child under age 17 provide fetal tissue from the abortion and information about the patient to law enforcement.
Camp said the law would violate patients’ privacy and said it seeks to “stigmatize” abortion. Abortion providers are already required by law to report signs of abuse, she said, and she noted that there are no laws requiring law enforcement to be notified when a minor seeks other medical care related to pregnancy.
Bronni said the law would further the state’s legitimate interest in investigating possible sexual abuse of children. The law would not violate anyone’s privacy because law enforcement officers would be required to keep the information confidential, he said.
Also challenged in the suit is Act 603, set to go into effect July 30, which would require that a dead fetus be disposed of according to the Final Disposition Rights Act of 2009.
The 2009 law allows human remains to be disposed of by burial, cremation, interment or removal from Arkansas; establishes which family members have precedence in controlling disposition; and provides criminal penalties for doctors who fail to assure that remains are disposed of according to the law.
Camp said Act 603 is vague and would treat abortion providers differently from other doctors who handle human tissue. She also said it could be interpreted to apply to a miscarriage at home and to allow a rapist to have a say in the disposition of a fetus conceived through rape.
Bronni said the law provides only that fetal remains be treated like other human remains. It cannot be read to apply to miscarriages at home or to give any rights to rapists, he said.
Baker said she would take the matter under advisement and issue a written ruling later.
The state filed a motion to dismiss the suit Tuesday. Baker did not allow arguments on that motion during Thursday’s hearing.