                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-1891
                         ___________________________

 Louis Jerry Edwards, M.D., on behalf of himself and his patients; Tom Tvedten,
                  M.D., on behalf of himself and his patients

                        lllllllllllllllllllll Plaintiffs - Appellees

                                            v.

  Joseph M. Beck, M.D., President of the Arkansas State Medical Board, and his
    successors in office, in their official capacity; Omar Atiq, M.D., officer and
member of the Arkansas State Medical Board, and his successors in office, in their
   official capacity; Harold B. Betton, M.D., officer and member of the Arkansas
State Medical Board, and his successors in office, in their official capacity; Steven
L. Cathey, M.D., officer and member of the Arkansas State Medical Board, and his
successors in office, in their official capacity; Jim Citty, M.D., officer and member
of the Arkansas State Medical Board, and his successors in office, in their official
 capacity; Bob Cogburn, M.D., officer and member of the Arkansas State Medical
Board, and his successors in office, in their official capacity; William F. Dudding,
      M.D., officer and member of the Arkansas State Medical Board, and his
  successors in office, in their official capacity; Roger Harmon, M.D., officer and
member of the Arkansas State Medical Board, and his successors in office, in their
    official capacity; John E. Hearnsberger, II, M.D., officer and member of the
    Arkansas State Medical Board, and his successors in office, in their official
 capacity; Verly Hodges, D.O., officer and member of the Arkansas State Medical
      Board, and his successors in office, in their official capacity; Scott Pace,
 Pharm.D., J.D., officer and member of the Arkansas State Medical Board, and his
 successors in office, in their official capacity; John H. Scribner, M.D., officer and
member of the Arkansas State Medical Board, and his successors in office, in their
   official capacity; Sylvia D. Simon, M.D., officer and member of the Arkansas
State Medical Board, and her successors in office, in their official capacity; John .
 Weiss, M.D., officer and member of the Arkansas State Medical Board, and his
                  successors in office, in their official capacity

                     lllllllllllllllllllll Defendants - Appellants

                              ------------------------------

  Curtis James Neeley, Jr.; Women Injured by Abortion; An Abortion Survivor;
                 Liberty Council, Inc.; Concepts of Truth, Inc.

                  lllllllllllllllllllllAmici on Behalf of Appellant(s)

  Physicians for Reproductive Health; National Abortion Federation; American
                           Public Health Association

                  lllllllllllllllllllllAmici on Behalf of Appellee(s)
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                            Submitted: January 13, 2015
                               Filed: May 27, 2015
                                   [Published]
                                 ____________

Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
                           ____________

PER CURIAM.

     The Arkansas State Medical Board (the State) appeals from a summary
judgment permanently enjoining certain sections of the Arkansas Human Heartbeat



                                           -2-
Protection Act. Ark. Code Ann. §§ 20-16-1301 to 1307 (2013). Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.

                                           I.
       The Act provides that a licensed physician “shall not perform an abortion on
a pregnant woman before the person tests the pregnant woman to determine whether
the fetus that a pregnant woman is carrying possesses a detectible heartbeat.” Ark.
Code Ann. § 20-16-1303(a) (footnote omitted). Further, a physician “shall not
perform an abortion on a pregnant woman with the specific intent of causing or
abetting the termination of the life of an unborn human individual whose heartbeat
has been detected under § 20-15-1303 and is twelve (12) weeks or greater gestation.”
§ 20-16-1304(a). If a physician violates section 1304, his or her medical license shall
be revoked. § 20-16-1304(b). The Act provides exceptions to protect the life of the
mother, for a pregnancy resulting from rape or incest, or for a medical emergency.
§ 20-16-1305. The Act requires informed disclosures about the existence of a
heartbeat and the probability of bringing the unborn to term. § 20-16-1303(d), (e).

       Two Arkansas physicians, on behalf of themselves and their patients,
challenged the constitutionality of the Act, seeking a permanent injunction. The
district court1 granted a temporary injunction. Edwards v. Beck, 946 F. Supp. 2d 843,
851 (E.D. Ark. 2013). The State moved for partial summary judgment, arguing the
testing and disclosure provisions were valid and severable. The plaintiffs submitted
affidavits that a fetus is generally not viable until 24 weeks’ gestation, is never viable
at 12 weeks, and, in all normally-progressing pregnancies, has a detectable heartbeat
by 12 weeks.




      1
       The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.

                                           -3-
       The State left the plaintiffs’ factual allegations uncontroverted. The only
factual record presented in this case was by plaintiffs, the two-page declaration of Dr.
Janet Cathey. Dr. Cathey stated that “[a]t twelve (12) weeks of pregnancy, a fetus
cannot in any circumstance survive outside the uterus. Thus, a fetus at 12 weeks is
not and cannot be viable.” (Cathey Dec. at 2.) As the district court noted, “the State
offered no competing evidence challenging Dr. Cathey’s testimony or the statistical
data referenced in Plaintiffs’ brief.” (Order at 8.) The district court granted summary
judgment, permanently enjoining sections 20-16-1303(d)(3) and 20-16-1304.
Edwards v. Beck, 8 F. Supp. 3d 1091, 1102 (E.D. Ark. 2014).

      The court granted summary judgment to the State on the rest of the Act, finding
the testing and informed disclosures valid and severable. See Webster v.
Reproductive Health Services, 492 U.S. 490, 519-20 (1989) (upholding Missouri’s
20-week viability testing requirement); Planned Parenthood Minn., N.D., S.D. v.
Rounds, 530 F.3d 724, 734-35 (8th Cir. 2008) (en banc) (“[W]hile the State cannot
compel an individual simply to speak the State’s ideological message, it can use its
regulatory authority to require a physician to provide truthful, non-misleading
information relevant to a patient’s decision to have an abortion, even if that
information might also encourage the patient to choose childbirth over abortion.”).
The State appeals the district court’s grant of summary judgment and permanent
injunction of sections 20-16-1303(d)(3) and 20-16-1304.

      This court reviews summary judgment de novo, and a permanent injunction for
abuse of discretion. Roach v. Stouffer, 560 F.3d 860, 864 (8th Cir. 2009).

      In 1992, the Supreme Court “reaffirm[ed]” the “right of the woman to choose
to have an abortion before viability and to obtain it without undue interference from




                                          -4-
the State.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846
(1992).2 Since then, that principle has been “accepted as controlling” by a majority
of the Court. See Gonzales v. Carhart, 550 U.S. 124, 156 (2007); see also id. at 187
(Ginsburg, J., dissenting) (recognizing that the Court “merely ‘assume[d]’ for the
moment” the “continuing vitality” of the rule and criticizing the Court for not
“retain[ing]” or “reaffirm[ing]” the principle). Like the Court in Gonzales, “[w]e
assume the . . . principles [from Casey] for the purposes of this opinion.” Id. at 146.
A state also retains interests in fostering maternal health and protecting unborn life,
which justify regulations that are not an undue burden on a woman’s ability to
terminate her pregnancy before viability. Casey, 505 U.S. at 877-78. A regulation
is an undue burden if it “has the purpose or effect of placing a substantial obstacle in
the path of a woman seeking an abortion of a nonviable fetus.” Id. at 877.

        The State tries to frame the law as a regulation, not a ban, on pre-viability
abortions because they are available during the first 12 weeks (and thereafter if within
the exceptions). Whether or not “exceptions are made for particular circumstances,
a State may not prohibit any woman from making the ultimate decision to terminate
her pregnancy before viability.” Id. at 879. By banning abortions after 12 weeks’
gestation, the Act prohibits women from making the ultimate decision to terminate
a pregnancy at a point before viability. Because the State made no attempt to refute
the plaintiffs’ assertions of fact, the district court’s summary judgment order must be
affirmed. See Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”) and (e)(2) (“If a party . . . fails to properly




       2
        The other principles “reaffirm[ed]” in Casey include “a confirmation of the
State’s power to restrict abortions after fetal viability, if the law contains exceptions
for pregnancies which endanger the woman’s life or health” and “the State has
legitimate interests from the outset of the pregnancy in protecting the health of the
woman and the life of the fetus that may become a child.” Casey, 505 U.S. at 846.
                                            -5-
address another party’s assertion of fact as required by Rule 56(c), the court may . .
. consider the fact undisputed for purposes of the motion.”). See also Casey, 505 U.S.
at 874.

                                          II.

      As an intermediate court of appeals, this court is bound by the Supreme Court’s
decisions in Casey and the “assum[ption]” of Casey’s “principles” in Gonzales. See
Gonzales, 550 U.S. at 146. However, undeniably, medical and technological
advances along with mankind’s ever increasing knowledge of prenatal life since the
Court decided Roe v. Wade, 410 U.S. 113 (1973) and Casey make application of
Casey’s viability standard more difficult and render more critical the parties’
obligation to assure that the court has the benefit of an adequate scientific record in
cases where the standard is applied.

       “The Supreme Court has recognized that viability varies among pregnancies
and that improvements in medical technology will both push later in pregnancy the
point at which abortion is safer than childbirth and advance earlier in gestation the
point of fetal viability.” Isaacson v. Horne, 716 F.3d 1213, 1224 (9th Cir. 2013)
(citing Casey, 505 U.S. at 860). The viability standard “is clearly on a collision
course with itself.” City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S.
416, 458 (1983) (O’Connor, J., dissenting). “As medical science becomes better able
to provide for the separate existence of the fetus, the point of viability is moved
further back toward conception.” Id. (O’Connor, J., dissenting).

       And we have witnessed in the four decades since the Court decided Roe how
scientific advancements have moved the viability point back. When Roe was decided,
“[v]iability [was] usually placed at about seven months (28 weeks) but [could] occur
earlier, even at 24 weeks.” Roe, 410 U.S. at 160 (footnote omitted). But the joint
opinion in Casey recognized “how time has overtaken some of Roe’s factual


                                         -6-
assumptions,” including that “advances in neonatal care have advanced viability to
a point somewhat earlier.” Casey, 505 U.S. at 860 (citations omitted). And, in the
present case, Dr. Janet Cathey, a board-certified obstetrician and gynecologist,
averred that “viability generally is not possible until at least 24 weeks” but recognized
that the “viability determination varies on an individual basis.” (Emphasis added.)
Indeed, real-life events have proven the individuality of the viability determination
to be true.

      Greater survival rates among pre-term infants born at earlier stages push
      back the viability line. In October, 2006, Amillia Taylor was born at
      twenty-one weeks and six days, and has thus far been resilient in the
      face of minimal odds of survival. This is the youngest fetus to have ever
      survived delivery, raising new questions about where the viability line
      should be drawn.

Kevin J. Mitchell, Guarding the Threshold of Birth, 20 Regent U. L. Rev. 257, 264
n.30 (2008) (citing Pat Wingert, The Baby Who’s Not Supposed to be Alive,
NEWSWEEK, Mar. 5, 2007, at 59, available at
http://www.msnbc.msn.com/id/17304274/site/newsweek); see also Aida Edemariam,
Against All Odds, Guardian (Feb. 20, 2007), available at
http://www.theguardian.com/society/2007/feb/21/health.lifeandhealth (last visited
April 28, 2015) (“There is something otherworldly about the picture that appeared
around the world yesterday: two tiny brown-pink feet, almost translucent, poking
through an adult’s fingers. You had to look twice to be sure that they were indeed
feet. They belong to Amillia Taylor, who was born in Miami last October, 21 weeks
and six days after conception. She weighed less than 10oz at birth-not even as much
as two ordinary bars of soap-and she was just 9 inches long. Amillia, who is expected
to be discharged from hospital in the next couple of days, is officially the most
premature baby ever to have survived.”).




                                          -7-
        “Since Roe was decided in 1973, advances in medical and scientific technology
have greatly expanded our knowledge of prenatal life.” Hamilton v. Scott, 97 So. 3d
728, 742 (Ala. 2012) (Parker, J., concurring specially). The viability standard “is
inherently tied to the state of medical technology that exists whenever particular
litigation ensues.” City of Akron, 462 U.S. at 458 (O’Connor, J., dissenting). As
shown supra, states in the 1970s lacked the power to ban an abortion of a 24-week-
old-fetus because that fetus would have not satisfied the viability standard of that time
period. See Roe, 410 U.S. at 160 (placing viability at “seven months (28 weeks)”).
Today, however, that same fetus would be considered “viable,” and states would have
the “power to restrict [such] abortions.” Casey, 505 U.S. at 846.

        Because a viability determination necessarily calls for a case-by-case
determination and changes over time based on medical advancements, “legislatures
are better suited to make the necessary factual judgments in this area.” City of Akron,
462 U.S. at 458 (O’Connor, J., dissenting). Unfortunately, the viability standard
“forces legislatures, as a matter of constitutional law, to speculate about what
constitutes [viability] at any given time.” Id. (O’Connor, J., dissenting). Courts are
ill-suited to second-guess these legislative judgments. See id. (O’Connor, J.,
dissenting) (“Without the necessary expertise or ability, courts must then pretend to
act as science review boards and examine those legislative judgments.”). To
substitute its own preference to that of the legislature in this area is not the proper role
of a court. See Federalist No. 78 (“It can be of no weight to say that the courts, on the
pretense of a repugnancy, may substitute their own pleasure to the constitutional
intentions of the legislature. This might as well happen in the case of two
contradictory statutes; or it might as well happen in every adjudication upon any
single statute. The courts must declare the sense of the law; and if they should be
disposed to exercise WILL instead of JUDGMENT, the consequence would equally
be the substitution of their pleasure to that of the legislative body. The observation,
if it prove any thing, would prove that there ought to be no judges distinct from that
body.”).


                                            -8-
       This case underscores the importance of the parties, particularly the state,
developing the record in a meaningful way so as to present a real opportunity for the
court to examine viability, case by case, as viability steadily moves back towards
conception.
                                    *******

      The judgment is affirmed.
                     ______________________________




                                         -9-
