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Ark. & N. Dakota Abortion Laws Go Before 8th

ST. LOUIS (CN) - When a fetus becomes viable outside the womb was one of the major debates as the 8th Circuit heard oral arguments Tuesday on two of the strictest abortion laws in the country.

In back-to-back hearings, laws passed in 2013 in Arkansas and North Dakota were debated in front of a three-judge panel.

Arkansas' law would ban abortions after 12 weeks from conception and North Dakota's law would ban abortions 6 weeks after conception.

Both laws were challenged and both were ruled unconstitutional by federal judges. The states appealed to the 8th Circuit.

Colin Jorgensen, from the Arkansas Attorney General's office, argued on behalf of Arkansas.

"I think that the court's description of both the women's right to an abortion in more recent cases and the state's interest in protecting human life have made it clear that the viability standard cannot be the end of the discussion anymore," Jorgensen said.

Talcott Camp, deputy director of the ACLU Reproductive Freedom Project, represented Arkansas' pro-choice interests. She argued that no fetus is viable outside of the womb at 12 weeks and that fetuses are generally considered viable at 24 weeks.

"The Supreme Court has repeatedly held unequivocally that viability is the earliest point in which the state can take away from the women the liberty to decide for herself with her family, her doctor, her pastor, whomever she may include, the ability to decide whether or not to remain pregnant," Camp told Courthouse News after the hearing.

"That's our position, but moreover it's been the Supreme Court's position for decades."

Judges Lavenski Smith, Duane Benton and Bobby Shepherd grilled both sides on case law, particularly Gonzales v. Carhart (2007), which upheld the 2003 Partial-Birth Abortion Ban Act.

Janet Crepps, senior counsel at the Center for Reproductive Rights, argued on behalf of Red River Women's Clinic in North Dakota.

"We feel that those cases are rock solid in our favor, that they make the rules very clear: The state can't ban abortion prior to viability, the state can't set a specific time in pregnancy when viability occurs and all of the arguments that Gonzales or any other cases undermine those are incorrect," Crepps told Courthouse News after the hearing.

Daniel Gaustad, who argued on North Dakota's behalf, had a different view of the precedent.

"We've got volumes of evidence in the record that's not discounted by even the plaintiffs that shows all those cases, the Roe and Casey framework are no longer validated. They didn't put any evidence in to contradict that," Gaustad told Courthouse News.

"We believe that those cases are not binding. We believe the Gonzales case and we've proven up our case that the statute is constitutional."

Viability of the fetus was also a point of contention in the North Dakota hearing.

"The Supreme Court has already taken that into account and said that, yes, viability may occur earlier," Crepps told Courthouse News. "What the state is asking for is a completely different definition. They're basically saying that viability is at the very beginning of pregnancy, regardless of whether a fetus can survive outside the womb and if that were true, then there's no right to an abortion whatsoever and that's clearly not what the Supreme Court meant."

Numerous pro-life advocates filled the courtroom.

Allan Parker, president of The Justice Foundation, wrote an amicus brief on behalf of Arkansas. He claimed to represent more than 3,200 women who have been harmed by having an abortion.

Parker said that Safe Haven laws, which allow mothers to surrender custody of their children with no questions asked, have changed the abortion debate.

"No. 1, we don't minimize pregnancy, but even after viability, the last three months of pregnancy, which are the hardest, you already have to go through pregnancy for the protection of that human life," Parker told Courthouse News. "This just says that in exchange for a few months of pregnancy, we will give you 18 years of child care. The balance is in favor of 18 years of child care by the state."

Myra Jean Myers, with Operation Outcry, attended both hearings to support Arkansas and North Dakota. Myers, who had an abortion, said she suffered emotional and physical consequences from it.

"I feel after 42 years, it is so important to reexamine the truth and the evidence that there are two lives involved in the pregnancy, there is the life of the child and the life of the mother," Myers told Courthouse News. "Nothing wounds you like being responsible for the death of your child. You realize that afterward. If you were ignorant at the time, it doesn't make you innocent and it doesn't make you free of the consequences of the overwhelming grief that you will feel and have to deal with for the rest of your life."

Despite the emotional appeals from pro-life advocates, Camp believes the law and legal precedent support the unconstitutionality of both laws.

"They all make crystal clear the state can't rest this liberty, this authority of the woman to decide for herself until viability," Camp told Courthouse News. "Every case in the Supreme Court has reiterated that without exception. It's unbroken precedent."

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