The constitutionality of two of the nation’s most extreme abortion laws was debated in Missouri on Tuesday, with lawyers for abortion clinic providers and attorneys for the states of North Dakota and Arkansas arguing at which point a woman’s right to an abortion can be taken away.



A three-judge panel of the US court of appeals for the eighth circuit, which sits in St Louis, heard oral arguments on Tuesday over a North Dakota law that would ban abortions as early as six weeks, when a fetal heartbeat can be detected, and a similar law approved in Arkansas outlawing abortions after 12 weeks.

Lawyers representing abortion clinic providers argued that the laws are in contradiction of the landmark US supreme court case Roe v Wade, which guaranteed a woman’s right to an abortion until the point of “viability”, or when a fetus can survive outside the uterus, typically at four months. The states’ laws would ban abortions if a heartbeat is detected, in the case of North Dakota, as early as six weeks.

“The supreme court has said that it doesn’t matter what reason states offer for wanting to ban abortions [before the point of viability], the court has said you can’t,” Janet Crepps of the Center for Reproductive Rights, which sued both states, said after the hearing on Tuesday. She argued on behalf of two Little Rock abortion providers as well as the Red River Women’s Clinic, North Dakota’s sole abortion provider.

“Legislatures may not like the law of the land, but there is just no room here for the states to act in the way they want to,” Crepps said.

In January 2013, the Arkansas legislature approved a bill that would ban abortions at 12 weeks, at which point a heartbeat could be detected. The state’s Democratic governor vetoed the bill, but the conservative, Republican-controlled legislature overrode it. Just weeks after the ruling, North Dakota lawmakers passed a similar bill that went even further, banning abortions as early as six weeks, a point at which the woman may not yet know that she’s pregnant.

Neither law went into effect, however. A federal judge placed a temporary injunction on the Arkansas law before striking it down as unconstitutional in March 2014. The following month, a federal district judge overturned the North Dakota law, saying it couldn’t “withstand a constitutional challenge”.

During oral arguments, the lawyers were asked about the definition of viability, and the flexibility states have in defining it. The threshold for the point of viability is controversial, though the supreme court has said that it is to be determined on a case-by-case basis.

“The definition of viability occurs at the time of conception, based upon IVF technology, advances in medical science,” said Daniel Gaustad, an attorney hired to represent North Dakota, during oral arguments.

The attorneys representing the states challenged the viability standard set by Roe v Wade, arguing that the legal landscape has changed since the decision was reached more than 40 years ago. A spokeswoman for the office of the attorney general for North Dakota said it would not comment. The office of the attorney general could not be reached for comment in time. A new attorney general assumed office on Tuesday.

North Dakota and Arkansas are among the rush of conservative legislatures who have approved sweeping new limits on the procedure. The decided spike in restrictive abortion laws has forced a dramatic reshaping of how, and where, American women can seek abortions in 2014.

This is borne out by a recent report from the Guttmacher Institute, a reproductive rights thinktank, which found that 57% of American women live in a state that is either “hostile” or “extremely hostile” to abortion rights.

Speaking after the oral arguments on Tuesday, Talcott Camp, an attorney with the ACLU who argued on behalf of the Little Rock abortion providers, called the “fetal heartbeat” laws “terrifying”.

“It is the liberty of the woman to decide whether or not she wants to remain pregnant up until the point of viability,” Camp said. “Only at that point can the state take that decision away from her.”