• Judge blocks Arkansas' tough new abortion law

    U.S. District Court via AP file

    U.S. District Judge Susan Webber Wright said Friday, May 17, that Arkansas' law probably wouldn't pass constitutional muster.

    By M. Alex Johnson, staff writer, NBC News

    A federal judge barred Arkansas from implementing one of the nation's most restrictive abortion laws Friday, calling it "more than likely unconstitutional."

    The law, which the Legislature enacted over Gov. Mike Beebe's veto in March, makes abortions illegal after only 12 weeks of pregnancy. It's scheduled to take effect in August.

    At a hearing Friday in Little Rock, U.S. District Judge Susan Webber Wright granted a temporary injunction sought by the American Civil Liberties Union and the Center for Reproductive Rights, which argued that doctors who provide abortions would suffer "irreparable harm."

    Wright said the 12-week standard criminalizes some abortions before the generally accepted medical standard of viability for a fetus, which is 24 weeks.

    "The Supreme Court has consistently used viability as a standard with respect to any law that regulates abortion," Wright said. "This act defines viability as something viability is not."

    Wright didn't rule on the constitutionality of the new law itself, dubbed the Arkansas Human Heartbeat Protection Act (.pdf).

    But in a clear signal of how she was leaning, she said the 12-week standard criminalizes some abortions before the generally accepted medical standard of viability for a fetus, which is 24 to 28 weeks, while "the Supreme Court has consistently used viability as a standard with respect to any law that regulates abortion."

    "This act defines viability as something viability is not," she said.

    Josh Mesker, a spokesman for the nonprofit Arkansas Family Council, told NBC News the ruling was "disappointing, but it's not unexpected."


    Mesker said the ultimate aim is to get the law before the U.S. Supreme Court, where "we expect to prevail" in a direct challenge to Roe v. Wade, the 1973 ruling that legalized most abortions across the U.S.

    "It's not outside the realm of possibility for the current Supreme Court to readdress Roe v. Wade in a way that leans toward our position," he said.

    Talcott Camp, deputy director of the ACLU's Reproductive Freedom Project, ridiculed the law as "an extreme example of how lawmakers around the country are trying to limit a woman's ability to make the best decision for herself and her family."

    "These laws are designed with one purpose — to eliminate all access to abortion care," Camp said in a statement.

    That was a reference to similar anti-abortion measures recently approved in North Dakota, Kansas and Mississippi. The North Dakota law, which was also passed in March, is the toughest in the U.S., banning abortions after only six weeks.

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    In the Arkansas case, the ACLU and the Center for Reproductive Rights are representing Tom Tvedten, medical director of Little Rock Family Planning Services, which provides abortions, and Louis J. Edwards, a gynecologist at the clinic.

    In the suit, filed last month against the State Medical Board, they argue that the new law "presents physicians in Arkansas with an untenable choice: to face license revocation for continuing to provide abortion care in accordance with their best medical judgment, or to stop providing the critical care their patients seek."

    Wright rejected the state's motion to dismiss the case Wednesday, citing Supreme Court rulings that Roe v. Wade drew a line saying abortions generally could be banned only upon a fetus' "attainment of viability."

    Anticipating just this sort of legal wrangling, Beebe, a Democrat, vetoed the measure in March, saying that defending a "blatantly unconstitutional" law would be crushingly expensive for the state.

    Related:

    Abortion doctor Kermit Gosnell convicted of first-degree murder

    'Fundamental culture change' on abortion: Conservatives make gains on restrictions

    This story was originally published on Fri May 17, 2013 3:04 PM EDT

  • Fetus homicide may be tough to prove in Cleveland kidnapping case, expert says

    Courtesy of Cuyahoga County

    Cleveland kidnapping suspect Ariel Castro in a booking photo, May 8, 2013.

    By Bill Briggs and Maggie Fox, NBC News

    An Ohio prosecutor who on Thursday pledged to seek murder charges against the Cleveland kidnapping suspect for allegedly pummeling the pregnant stomach of one of his reported victims — causing her to frequently miscarry — may ultimately struggle to prove the blows led to those fetuses' deaths, said one former federal prosecutor.

    To secure a guilty verdict for fetal homicide, prosecutors typically have to show that a killer clearly meant to murder the unborn baby by assaulting the mother in a way that would trigger an early end to the pregnancy.

    But proving intent is not the challenge facing the prosecutor in Cuyahoga County, said Heidi Rummel, a law professor at the University of Southern California. 

    "The hardest part, I imagine, would be proving causation — you have to show the actions actually caused the death. And years after the fact that might be somewhat of a challenge," added Rummel, a former federal prosecutor in Washington, D.C. and in Los Angeles. "We don't know how far along (the victim) was. It's hard to know for sure if it was a miscarriage or not. But the intent seems pretty clear based on the facts I've read." 

    Cuyahoga County prosecutor Timothy McGinty has vowed to seek charges against suspect Ariel Castro for each act of sexual violence, rape, kidnapping, assault and “each act of aggravated murder he committed by terminating pregnancies that the offender perpetuated against the hostages during this decade-long ordeal.”

    Castro already is charged with four counts of kidnapping — three for the women he is accused of abducting and one for a baby that one of the women bore in captivity. One of the three women, Michelle Knight, has told investigators that Castro impregnated her at least five times, and that he starved her and punched her repeatedly in the stomach to force her to miscarry, according to a Cleveland police report.

    McGinty specifically cited a provision of Ohio law that defines it as aggravated murder when someone causes, “with prior calculation and design,” the unlawful termination of another person’s pregnancy.

    “This child kidnapper operated a torture chamber and private prison in the heart of our city,” McGinty said. “The horrific brutality and torture that the victims endured for a decade is beyond comprehension.”

    McGinty's decision falls in line with fetal homicide laws on the books in at least 38 states.

    The penalties for killing unborn babies via assaults on the mother vary depending on the location of the crime: in Kansas, any unborn fetus is considered a human following fertilization; in Colorado, offenders can be prosecuted only if they are shown to have known that the mother was pregnant, reports the National Conference of State Legislatures.

    The case in Ohio is unique, but the issue of charging someone with murder for killing an unborn baby has been colored by the abortion rights debate.

    Anti-abortion groups have pushed for laws declaring any fetus to be an unborn human. However, supporters of abortion rights argue that such law would not only make the procedure illegal, but they could make also it possible to prosecute pregnant women for endangering their babies in a variety of ways — and could even put them on trial after suffering a miscarriage.

    Rummel, meanwhile, also has handled the cases of many incarcerated women in California who, she said, were convicted of crimes that stemmed from abusive relationships. Some of those woman later told her that their husbands or boyfriends routinely punched or kicked them in their stomachs after they became pregnant. 

    "It's not an unusual story in intimate-partner battering situations that men do this," Rummel said. "When an intimate partner does it, you never hear about it. But when a stranger does it, the whole county is in a uproar. It's tragic whenever it happens."

     

     

  • Arkansas lawmakers approve toughest abortion limits in nation

    AP Photo/Danny Johnston

    Arkansas Gov. Mike Beebe is interviewed at the Arkansas state Capitol in Little Rock, Ark., on Monday, March 4, 2013, after vetoing legislation that would have banned abortions 12 weeks into a pregnancy.

    By Miranda Leitsinger, Staff Writer, NBC News

    Arkansas' House of Representatives on Wednesday rejected the governor's veto of a controversial bill that would make abortions illegal after 12 weeks of pregnancy, thus setting up the most restrictive ban on the procedure nationwide.

    The House vote of 56-33 followed Senate approval on Tuesday to override Gov. Mike Beebe’s veto of SB 134, or the Arkansas Human Heartbeat Protection Act, which enforces a ban on abortion earlier in pregnancy than any other state now does.

    Moments before the vote, Rep. Ann V. Clemmer, who said she was pro-life, told fellow representatives they should give the right to be born to babies in Arkansas and that life was “to be protected not only by a third party but from the mother herself.”

    The state already has one of the most restrictive abortion laws in the U.S. after the Republican-led Legislature last week overrode Beebe's veto of a similar bill that set the legal abortion threshold at 20 weeks' gestation — two to four weeks earlier than most states.

    That law took effect immediately but the new measure won't until 90 days after the Legislature adjourns in mid-May.

    Under the new measure, a medical professional would be banned from performing an abortion on a woman who is 12 weeks or more pregnant and where a fetal heartbeat has been detected (women seeking an abortion would have to undergo an exam of the fetus to see if there is a detectible heartbeat). Cases of rape, incest or where the mother’s life is endangered, are among those exempt from the law.

    The American Civil Liberties Union said the law imposed the most severe ban in the country and the strictest limit on the procedure since the U.S. territory of Guam tried to halt all abortions in 1990. The group “will challenge this dangerous and unconstitutional law in court,” the group’s executive director, Anthony D. Romero, said in a statement.


    Talcott Camp, deputy director of the ACLU’s Reproductive Freedom Project, said before the vote that it was an “unconstitutional and grotesque invasion” into private medical decisions.

    “It’s a power grab by politicians. They are just looking to intrude on and take away a decision that is really for a woman and her family and her doctor, and that is true as a constitutional matter. It’s also true as a moral matter and as a matter of public health and just what’s right,” she said. “This is not a decision for politicians to make.”

    The Supreme Court has said viability of a fetus has to be left up to doctors, Camp said, adding that it was unconstitutional for state legislatures to set a number of weeks for when abortion could be banned.

    Beebe, a Democrat, said in his veto letter on Monday that the “adoption of blatantly unconstitutional laws can be very costly to the taxpayers of our state,” and that Arkansas’ “interest in protecting fetal life is simply not strong enough at such point to trump the constitutional rights of the mother.”

    Matt DeCample, a spokesman for Beebe, said Wednesday after the vote: "The governor made his case very plainly in his veto letter, laid out the reasons why we feel the bill’s unconstitutional, and now it looks like it will be up to the courts to make the final decision.”

    Women who want to end a pregnancy face a growing number of roadblocks in many parts of the country 40 years after the U.S. Supreme Court struck down many state restrictions on abortion with Roe v. Wade.

    Last year, 19 states enacted a total of 43 provisions limiting access to abortion, according to the Guttmacher Institute, a non-profit that aims to advance reproductive health and abortion rights. While that was half the number that went into effect the previous year, it was the second-highest number since 1985.

    Related:
    Arkansas governor vetoes ban on abortions after 12 weeks
    40 years after Roe v. Wade, more states restricting abortion

    NBC News’ Tracy Connor contributed to this report.

  • Texas begins enforcing strict anti-abortion sonogram law

    In Texas, women must get a sonogram at least 24 hours before they can get an abortion.

    By James Eng, NBC News

    Fewer abortions? Better-informed patients? Insulted women? The impact of a controversial new Texas law that requires women to have a sonogram – and listen to a description of the fetus as well as its heartbeat – at least 24 hours before they can get an abortion is far from clear.

    Texas state health officials began enforcing the sonogram provision – which critics say is the most extreme sonogram-related law in the nation – on Tuesday.

    Reaction has been decidedly mixed.

    Msnbc.com was unable to contact women who have undergone the sonogram this week, but Texas abortion providers say many of their patients felt insulted.

    “The emotions range from confusion to anger to being quite emotionally upset by it. Having to hear the position described of fetal development is not something they are wanting to endure,”  said Rochelle Tafolla, spokesperson for Planned Parenthood Gulf Coast, which has three centers that provide abortions.

    “We haven’t heard of any women who, after going through these steps, are saying, ‘No, I’m changing my mind.’”

    The law requires doctors who perform abortions to conduct a sonogram 24 hours before the procedure, display the images of the fetus and make the heartbeat audible. The woman can decline to view the images and listen to the heartbeat. The doctor must also verbally describe the sonogram result – even if the woman doesn’t want to hear it.

    Read details of Texas sonogram law

    Although the sonogram law technically went into effect last fall, the state didn’t begin enforcing its requirements until Tuesday, when the Texas Department of State Health Services posted guidelines for abortion providers. Facilities that fail to comply face penalties of up to $1,000 per violation per day.

    Department spokeswoman Carrie Williams said Wednesday that the state agency has received “a couple of technical questions” about the law’s requirements since its implementation but hasn’t gotten any significant feedback yet from abortion providers or pregnant women.

    Effect uncertain at this point
    It’s too soon to track the impact of the sonogram law on the number of abortions performed in Texas, which has 39 licensed abortion providers, Williams added.

    About 75,000 abortions were performed in Texas in 2010, the latest year for which statistics are available, according to State Health Services.

    Elizabeth Graham, director of Texas Right to Life, says anecdotal reports she’s received “from our friends who counsel outside of abortion clinics tell us 70 to 80 percent of women will choose life after seeing a sonogram.”

    As for the long-term impact, ”If the clinics are following the law according to its legislative intent, then we think the law could reduce the number of abortions in Texas by at least 30 percent,” she said.

    Tafolla said Planned Parenthood Gulf Coast clinics have not seen a drop-off in the number of abortions performed since the sonogram law went into effect Oct. 1.

    About 15 percent to 17 percent of pregnant women who undergo the ultrasound at Planned Parenthood don’t come back for the abortion, Tafolla says, but that could be for a number of reasons.

    “What we knew by fact is statistically the majority of women who are having abortion are already mothers.  They fully understand what a pregnancy is, so they’re making a very informed decision,” she says.

    'Most extreme ultrasound-related law'
    Julie Rikelman, an attorney with the New York-based Center for Reproductive Rights, which sued unsuccessfully to block the Texas legislation, calls it “the most extreme ultrasound-related law that is being enforced in the United States.”

    (Oklahoma and North Carolina have similar laws, but their enforcement has been held up because sonogram requirements were blocked by the courts, Rikelman says.)

    “I think the experience of providers has been that women just find it offensive because the presumption of the law is somehow women don’t know what they’re doing and need to be forced to consider information even if it’s not relevant to them. It’s very demeaning to them,” she says.

    But Lori DeVillez, executive director of the Austin Pregnancy Resource Center, which provides support services and abortion alternatives to pregnant women, says the sonogram law is “a healthy law.”

    Like any other major medical procedure, she says, patients deserve to know beforehand what an abortion entails before they decide whether to undergo it.

    Devillez doesn’t know whether the law will eventually lower the number of abortions performed in Texas. But she hopes it does. “I hope giving women the opportunity to get the information they need will help them understand decisions they are making for themselves and their babies,” she says.

    Logistical headache for clinics
    Perhaps one of the most significant practical impacts of the Texas law to date is logistics, says Amy Hagstrom Miller, founder of Whole Woman’s Health clinics in Texas. The law’s requirements have caused scheduling headaches because doctors who perform abortions now must also perform a sonogram – on a separate day. They can’t delegate that latter task to, say, an ultrasound technician.

    And they can’t have another doctor do the abortion if they're busy.

    As for patients, many are already mothers and must make separate doctor's visits, often taking an additional day or two off work, Hagstrom Miller said.

    “We’ve had a lot of frustration, a lot of, ‘Why do I have to do this? I know what I want to do,’” she said.

    The five Whole Woman’s Health clinics began complying with the sonogram law in mid-January. Out of the several hundred women who were offered a chance to listen to the fetal heartbeat, only two opted to do so, Hagstrom Miller says.

    Likewise, most women are declining to see their sonogram image, she said.

    “I am not aware of anyone saying, ‘Oh my goodness, I didn’t know what the ultrasound looked like and I’m going to change my pregnancy,'” Hagstrom Miller added.

    More content from msnbc.com and NBC News

     

  • Abortion doctor free on bail after being charged with murder

    By The Associated Press and msnbc.com staff

    Lawyers for a Utah abortion doctor charged with murder for the death of a fetus in Maryland asked a judge Friday to throw out the charges, arguing she is immune from prosecution and that the state is trying to infringe upon a woman's right to terminate a pregnancy.

    Dr. Nicola Riley and her former colleague, Dr. Steven Brigham of New Jersey, were indicted last month under a law that allows murder charges to be brought in the death of a viable fetus. The 2005 law had only been used previously for cases in which defendants were accused of assaulting or killing pregnant women, and prosecutors have acknowledged they are in uncharted territory by using it to charge doctors who perform abortionds. Thirty-seven other states have similar statutes.

    At Riley's bail review hearing Friday in Cecil County Circuit Court in Elkton, Md., attorney Stuart O. Simms argued that prosecutors were attempting to criminalize constitutionally protected medical treatment.

    "Based on their interpretation of the statute, they are now threatening to charge any medical professional in Cecil County with a state crime," Simms told The Associated Press after the hearing.

    Court: No forced abortion for Mass. woman

    In Maryland, licensed physicians can perform abortions before the fetus is deemed capable of surviving outside the womb, and abortions of viable fetuses are permitted to protect the life or health of the mother or if the fetus has serious genetic abnormalities.

    The state's fetal homicide law was approved in 2005 in the wake of the highly publicized slaying of Laci Peterson in Modesto, Calif. Peterson was seven months pregnant, and her husband, Scott Peterson, was convicted of killing both her and their unborn son.

    The law specifically exempts licensed physicians performing abortions. Before the bill was passed, its sponsor, Delegate Charles Boutin, wrote in a letter to a committee chairman that it is "clearly and solely a victim's rights bill. It takes care of the 'Laci Peterson' issue in Maryland, while protecting a woman's right to choose."

    Judge Keith Baynes set bail for Riley at $300,000, the amount requested by Deputy State's Attorney Kerwin Miller, who argued that the evidence against the 46-year-old Salt Lake City resident is strong and characterized her as a flight risk. She was arrested Dec. 28 on a fugitive warrant and was extradited to Maryland on Thursday.

    She is charged with one count each of first- and second-degree murder stemming from an abortion in Elkton, Md.,  16 months ago involving a teenager who was 21 weeks pregnant, according to the Baltimore Sun.

    "It gets no bigger than this," Miller said in reference to Riley's first-degree murder charge, the Cecil Whig of Elkton reported.

    Miller also told the Cecil Whig that the "evidence is overwhelming" in the case, because Riley admitted to performing the procedure to Union Hospital officials, according to a Maryland Board of Physicians report.

    Riley posted bail shortly after the hearing and was released from custody. As a condition of her release, she was ordered not to perform abortions.

    The charges against Riley stem from a botched abortion in August 2010 at Brigham's Elkton clinic. The 18-year-old patient suffered serious injuries, and Riley drove her to a nearby hospital rather than call 911, according to medical regulators. The fetus was 21 weeks old. Doctors generally consider fetuses to be viable outside the womb starting around 23 weeks.

    Brigham, of Voorhees, N.J., has been charged with murder in the death of that fetus and four others. He was released from custody Jan. 6 after posting a $500,000 bond. His attorney has also argued that Brigham has not violated the fetal homicide law.

    Anti-abortion activists have hailed the arrests of Brigham and Riley, saying the charges shed light on the troubling practices of certain abortion doctors. A search of Brigham's Elkton clinic revealed a freezer containing 35 late-term fetuses, including one believed to have been aborted at 36 weeks, according to documents released by medical regulators.

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