• Viability, as judged by doctor, ruled to be determining factor • Women must still be informed of foetal heartbeat

This article is more than 6 years old

This article is more than 6 years old

A federal judge on Friday struck down Arkansas’s attempt to ban most abortions beginning 12 weeks into a woman’s pregnancy, saying viability, not a heartbeat, remains the key factor in determining whether abortions should be allowed.

US district judge Susan Webber Wright last year stopped enforcement of the law while she reviewed it, and on Friday she declared it was unconstitutional. She cited previous court decisions that said abortions should not be restricted until after a foetus reaches viability, which is typically at 22 to 24 weeks.

“The state presents no evidence that a foetus can live outside the mother’s womb at 12 weeks,” the judge wrote.

By adopting a ban based on a foetal heartbeat, and not the ability to survive, the Arkansas legislature last March adopted the nation’s toughest abortion law. Two weeks later, North Dakota lawmakers passed a bill restricting abortions at six weeks – or before some women would know they are pregnant. That law is on hold.

In her decision on Friday, Wright said only a doctor could determine viability.

“The supreme court has … stressed that it is not the proper function of the legislature or the courts to place viability at a specific point in the gestation period,” Wright wrote.

Wright left in place a portion of the law that requires doctors to check for a foetal heartbeat and to notify the pregnant woman if one is present.

Governor Mike Beebe had vetoed the bill, citing the viability standard. But Republicans, controlling the statehouse for the first time since Reconstruction, overrode him with a simple majority vote.

“The ruling is what the governor predicted in his veto letter last year,” Beebe’s spokesman, Matt DeCample, said.

The state attorney general’s office said it was reviewing possible next steps. “Today’s decision was not a surprise,” a spokesman, Aaron Sadler, said.

Bettina Brownstein, who represented two doctors who perform abortions at a Little Rock clinic, said the 12-week ban was “demeaning to women”.

State senator Jason Rapert, who sponsored the foetal heartbeat bill, said he was encouraged that that portion of the measure was upheld.

“Now, anyone who presents for abortion in our state, they’re going to be given an opportunity to know if there’s a living heartbeat in their womb, and that is a win for the pro-life movement,” Rapert said.

“When people have to face the reality that there’s a living heartbeat in their womb, that will make them rethink about taking the life away from their baby.”