Arkansas on Wednesday adopted what is by far the nation's most restrictive ban on abortion -- at 12 weeks of pregnancy, when a fetal heartbeat can typically be detected by abdominal ultrasound.
The law, the sharpest challenge yet to Roe v. Wade, was passed by the newly Republican-controlled legislature over the veto of Gov. Mike Beebe, a Democrat, who called it "blatantly unconstitutional." The state Senate voted Tuesday to override his veto, and the House followed suit Wednesday, with several Democrats joining the Republican majority.
The law contradicts the limit established by Supreme Court decisions, which give women a right to an abortion until the fetus is viable outside the womb, usually around 24 weeks into pregnancy, and abortion rights groups promised a quick lawsuit to block it. Even some anti-abortion leaders called the measure a futile gesture.
Adoption of the law, called the "Human Heartbeat Protection Act," is the first statewide victory for a restless emerging faction within the anti-abortion movement that has lost patience with the incremental whittling away at abortion rights -- a strategy used by groups like National Right to Life and the Roman Catholic Church while they wait for a more sympathetic Supreme Court.
"When is enough enough?" asked the Arkansas bill's sponsor, state Sen. Jason Rapert, a Republican, who compared the more than 50 million abortions in the United States since the 1973 Roe v. Wade decision to the Holocaust and the Rwandan genocide. "It's time to take a stand."
But abortion rights groups and many legal experts, including some in the anti-abortion movement, say the law so deeply contradicts existing constitutional doctrine that it may quickly be voided. "The 12-week ban actually bars abortion within the first trimester," said Nancy Northup, president of the Center for Reproductive Rights in New York. "It has no chance of surviving a court challenge."
The center and the American Civil Liberties Union have vowed to bring a case in federal court, aiming to head off the law before it takes effect, 90 days after the Legislature adjourns in the next month or so.
Mr. Rapert, who cited strong backing for his bill from conservative evangelical groups such as the Arkansas Family Council, hopes that the law will start a groundswell of support. "We crafted a bill that apparently has the ability to stand the test in courts and change abortion policy in our nation coast to coast," he said in an interview this week.
But so far, more radical measures elsewhere have fallen short. In Mississippi, a so-called personhood amendment lost at the polls, while in Ohio, a "fetal heartbeat" bill resembling that in Arkansas was defeated in the Legislature, in part because one of the state's leading anti-abortion groups, Ohio Right to Life, opposed it.
Mr. Rapert originally proposed setting the Arkansas ban even earlier, at about six weeks after a woman's last menstrual period. But the nascent fetal heartbeat can be detected at that point only by using intrusive technology like a trans-vaginal ultrasound. Wary of the national firestorm that erupted last year after Virginia tried to require the intrusive procedure, Mr. Rapert and his allies revised the bill to specify that a fetal heartbeat should be detected by abdominal ultrasound or other external methods, which are not feasible at six weeks.
The strategy of incrementally narrowing abortion rights has yielded results, especially since 2010, when Republicans gained control of many more states. Measures have been adopted by the dozens in the past few years, including waiting periods, parental consent for minors, ultrasound requirements and stringent regulations aimed at making it harder for abortion clinics to operate.
Ten states have pushed time limits for abortions down to 20 weeks into pregnancy on the theory, disputed by most medical experts, that a fetus can feel pain by then. Such laws have wider support in the anti-abortion movement.
The 20-week laws also violate the existing standard of fetal viability and are under legal challenge in Arizona and Georgia, but are in effect in eight other states. Very few abortions take place so late in pregnancy, and those are often for serious medical reasons that may be permitted in any case.
By contrast, a 12-week ban would affect an estimated 12 percent to 15 percent of abortions nationwide, said Elizabeth Nash, state issues manager with the Guttmacher Institute, a research group in Washington that supports abortion rights.