LITTLE ROCK — Gov. Mike Beebe on Tuesday vetoed a bill that would ban abortions after 20 weeks into pregnancy.
House Bill 1037, if it became law, "would squarely contradict Supreme Court precedent" by imposing a ban on a woman’s right to choose an elective, non-therapeutic abortion before viability, Beebe said in a statement announcing the veto.
The nation’s highest court has ruled that states cannot ban abortions prior to viability, which the court has established at 23-24 weeks.
"When I was sworn in as governor, I took an oath to preserve, protect and defend both the Arkansas Constitution and the Constitution of the United States. I take that oath seriously," the governor said.
He also said defending unconstitutional legislation could be costly for Arkansas taxpayers. Another abortion bill the governor considers constitutionally suspect is just one step from his desk.
Beebe’s veto of HB 1037 is tenuous. Overriding a gubernatorial veto takes a simple majority vote — 51 votes in the House and 18 votes in the Senate, well below the bipartisan margins by which HB 1037 passed in both chambers. Republicans alone have enough votes in each chamber to void Beebe’s veto.
The sponsor, Rep. Andy Mayberry, R-Hensley, said later that he would bring the bill back before the House and Senate later in the session. He said he is confident the governor’s veto will be overridden.
"Certainly I am disappointed that the governor chose to veto it. I had high hopes that perhaps he would sign it or at least allow it to become law without his signature," Mayberry said.
"I haven’t had an opportunity to go around and talk to everybody and poll people or anything like that, but … we had 80 people vote for this bill in the House and 25 down in the Senate, so I’m certainly hopeful that with those kind of numbers that we can get a simple majority in both chambers," he said.
Mayberry said he is confident the bill is constitutional, and that he and an attorney with Arkansas Right to Life met Tuesday morning with Beebe to discuss the bill and answer questions the governor had about its constitutionality.
"I thought we did a great job of laying out why this bill is constitutional," Mayberry said, adding he appreciated the governor’s willingness to discuss the issue.
The lawmaker said the bill is based on a Nebraska law that was passed three years ago and has not been challenged in court. He added that similar laws in other states have been challenged, including in Idaho and Georgia. In Arizona, a similar law was recently found constitutional in U.S. District Court.
"Now, that is on appeal, but that is the only case law we have to base this off of," Mayberry said.
In his statement, Beebe acknowledged talk that outside groups might represent the state for free in any litigation challenging the constitutionality of abortion-limiting litigation that becomes law.
But he said even if that were to happen, it would only lessen the state’s own litigation costs.
"Lawsuits challenging unconstitutional laws also result in the losing party — in this case, the state — having to pay the costs and attorneys’ fees incurred by the litigants who successfully challenge the law," he said. "Those costs and fees can be significant."
He noted that in the last case in which the constitutionality of an Arkansas abortion statute was challenged — one banning partial birth abortions in 1999 — the state was ordered to pay the prevailing plaintiffs and their attorneys nearly $119,000 for work in the trial court, and an additional $28,900 for work on the state’s unsuccessful appeal.
Arkansas taxpayers’ exposure would be significantly greater should HB 1037 become law, the governor said.
Mayberry said he doubted a law resulting from HB 1037 would be challenged in court.
The legislation could already be law. With Beebe out of state Friday, Lt. Gov. Mark Darr offered to sign HB 1037 when he signed into law another bill that exempts the names and ZIP codes of applicants for and holders of concealed-carry handgun permits from the state Freedom of Information Act. Mayberry turned down the overture.
Beebe acknowledged Mayberry’s decision and told reporters he appreciated it.
"It showed a lot of character and class on his part, and I wanted everybody to understand that I think he deserves a shout out and deserves the admiration of everybody … Mr. Mayberry deserves our respect," the governor said.
Senate President Pro Tem Michael Lamoureux, R-Russellville, said Tuesday there likely would be enough votes in the Senate to override the veto. House Speaker Davy Carter. R-Cabot said he did not know how much support there would be in the House for an override, saying that would depend on whether Beebe’s explanation for the veto changed members’ minds about the bill.
Meanwhile, a bill that would ban most abortions at 12 weeks, Senate Bill 134 by Sen. Jason Rapert, R-Conway, has been passed by the Senate and the House and is currently awaiting action in the Senate on a House amendment. Beebe did not officially say Tuesday whether he would veto the bill if it reaches his desk, but he hinted that he would, telling reporters that Rapert’s bill is "even more problematic" than Mayberry’s.
Reporter John Lyon contributed to this report.