Susan Talcott Camp

At the Eighth Circuit argument on January 13, 2015, Arkansas Assistant Attorney General Colin Jorgensen contended that viability standards had changed. Susan Talcott Camp returned to the statute’s twelve-week cutoff. “No fetus can be viable at 12 weeks,” she said.

Camp represented two physicians, Drs. Louis Jerry Edwards and Tom Tvedten, whose medical licenses were at risk if they performed abortions prohibited by Arkansas’s Act 301. The state had offered no evidence that a fetus could survive outside the uterus at the law’s twelve-week cutoff. Camp’s answer rested on the distinction their case had established: detecting cardiac activity did not establish the capacity for sustained life outside the uterus.

What Act 301 Required

Arkansas enacted Act 301 on March 6, 2013, over the governor’s veto, with an effective date of August 16. Its definition of viability described a medical condition beginning with a detectable fetal heartbeat. Under the federal constitutional doctrine then controlling, however, viability depended on the capacity for sustained survival outside the uterus. It marked the point after which a state could prohibit abortion, with protections for the patient’s life and health. Act 301 instead attached a prohibition to cardiac activity and twelve weeks’ gestation.

The law first required a person authorized to perform abortions to test for a heartbeat by abdominal ultrasound, following standard medical practice. The Arkansas State Medical Board would approve the tests and establish the protocol by rule. If cardiac activity appeared, the physician had to give written notice of that finding and the statistical probability of carrying the pregnancy to term. The patient signed an acknowledgment of receipt.

A third required statement announced that abortion was prohibited under section 20-16-1304. That section barred the procedure once a heartbeat had been detected and the pregnancy had reached twelve weeks. A violation required revocation of the physician’s medical license.

Act 301 preserved exceptions for rape, incest, threats to the pregnant patient’s life and defined medical emergencies. It excluded criminal or civil punishment of the patient. A tolling clause suspended the effective date of any provision held unconstitutional until an appellate tribunal upheld it. Those provisions qualified the law, while leaving the twelve-week prohibition applicable to pregnancies outside its exceptions.

The Physicians’ Evidence

Edwards and Tvedten, who provided abortion care at Little Rock Family Planning Services, sued for themselves and their patients on April 16, 2013. Camp worked with Bettina Brownstein, Holly Dickson, Stephanie Toti and other counsel from the ACLU of Arkansas, the ACLU Reproductive Freedom Project and the Center for Reproductive Rights. She obtained permission to appear in the district court, participated in the April scheduling conference and appeared at the May preliminary-injunction hearing.

Their medical evidence came from Dr. Janet Cathey, a board-certified obstetrician and gynecologist. Her declaration explained that abdominal ultrasound could detect cardiac activity at about twelve weeks in a normally progressing pregnancy, while viability generally began at twenty-four weeks or later and varied with the individual pregnancy. At twelve weeks, she stated, a fetus could not survive outside the uterus. The state’s own 2011 figures showed that twenty percent of Arkansas abortions occurred at or after the proposed cutoff.

Arkansas pointed to the availability of abortion before twelve weeks and within the statutory exceptions afterward. It invoked Gonzales v. Carhart and argued that a facial challenge required proof concerning the pregnancies actually burdened. It also contended that medical progress made the viability standard increasingly unstable. Those arguments addressed the legal framework; the state supplied no competing medical evidence at summary judgment.

On May 23, Judge Susan Webber Wright entered a preliminary injunction. The physicians had targeted the prohibition, but the temporary order covered the entire Act while the parties addressed whether some provisions could survive independently. Camp and her co-counsel had secured protection before the August enforcement date. The next stage concerned how much of the statute the final judgment should reach.

The Provisions That Could Stand Alone

Arkansas sought partial summary judgment preserving testing and disclosure. While recognizing that Wright would reject the twelve-week prohibition, the state argued that those other provisions had their own purpose. Under the doctrine then governing, its interest in potential life began at the outset of pregnancy. A heartbeat test and truthful developmental information could serve that interest without taking away the patient’s choice.

The physicians cross-moved for judgment against the whole Act. In their account, testing identified the signal that activated the ban, and disclosure explained why the procedure was prohibited. The provisions served a single legislative objective and could not sensibly be detached from it.

Arkansas severability law asked whether the remaining statute would be complete and capable of carrying out a legislative purpose on its own. Federal remedial principles also favored leaving intact as much of the legislature’s work as the Constitution allowed. Wright therefore had to examine what each command required a physician to do, rather than treating neighboring provisions as inseparable.

On March 14, 2014, Wright entered final summary judgment. The uncontested medical evidence established that the twelve-week prohibition reached pregnancies before viability and violated the rule of Roe and Casey. Her permanent injunction covered three provisions: section 20-16-1304(a), the ban; section 20-16-1304(b), license revocation; and section 20-16-1303(d)(3), the requirement to tell the patient that abortion was prohibited under the enjoined law.

The final provision fell with the legal command it described. Once the prohibition could not be enforced, the physician could not be required to present it to a patient as operative law. Testing and the two other disclosures—cardiac activity and the statistical probability of reaching term—remained in effect, along with the rest of the Act. Camp’s team had secured permanent protection against the twelve-week ban and its licensing sanction while the surviving requirements continued to govern the medical encounter.

The Undisputed Declaration

The state appealed the injunction against those three provisions. Testing and the other disclosures continued in effect, so Camp’s appellate argument concerned the prohibition, its professional sanction and the statement tied to it. The two-page Cathey declaration supplied the medical facts the state had left uncontested.

On May 27, 2015, a unanimous panel of Judges Lavenski Smith, Duane Benton and Bobby Shepherd affirmed. The per curiam opinion treated Casey’s rule against pre-viability prohibitions as controlling. Access before twelve weeks, or afterward within specified exceptions, did not change the fact that the statute barred other patients from obtaining an abortion before viability.

The absence of contrary medical proof had a procedural consequence. Under Rule 56, the court could decide the case as a matter of law when the material facts were undisputed. The panel also examined the variability of viability and advances in medical technology, discussed the role of legislative factfinding and encouraged fuller scientific records in future cases. It nevertheless resolved this appeal on the evidence before it, affirming the physicians’ injunction.

Counsel of Record

The Eighth Circuit denied the state’s requests for panel rehearing and rehearing en banc in July 2015. Arkansas then petitioned the Supreme Court, continuing its challenge to the viability framework and the injunction. Camp served as counsel of record for Edwards and Tvedten; the respondents filed their brief in opposition on December 9.

On January 19, 2016, the Supreme Court denied certiorari. The denial left the appellate judgment in place and ended that route of review. It added no Supreme Court merits holding to the case. The physicians retained the injunction under the law then controlling.

After the Viability Rule

On June 24, 2022, Dobbs v. Jackson Women’s Health Organization overruled Roe and Casey, removed the federal constitutional right to abortion and returned regulatory authority to the political process. The viability rule on which Edwards had depended no longer governed.

Arkansas’s immediate post-Dobbs prohibition came from a separate enactment: Act 180 of 2019, the Human Life Protection Act. The attorney general’s June 24 certification that Roe had been overruled activated that law. It provided an exception to save the life of a pregnant woman in a medical emergency, authorized criminal penalties against providers and excluded prosecution of the pregnant woman. That change in access followed Act 180 and its certification.

On July 1, Arkansas sought relief from the Edwards judgment under Rule 60(b)(5), citing the change in governing law. The physicians opposed the motion on July 15. Camp’s withdrawal was granted on July 18, before the renewed dispute was resolved; successor counsel handled the later proceedings.

Work for the Providers

During twenty-five years at the ACLU, Camp devised strategy and directed and supervised advocacy and litigation for clinicians providing contraception and abortion care. She served most recently as deputy director of the Reproductive Freedom Project, with lead or supervisory responsibility for challenges in multiple states.

In 2020, she moved to the National Abortion Federation as chief legal and strategy officer, after co-chairing a task force concerned with threats to care and providers’ ability to continue working. The role encompassed the organization’s legal activities and the direction of its programs and membership services. It brought her into the leadership of an organization whose members she had represented.

When that appointment was announced, Camp described the people at the center of her work: “Throughout my career, I have worked to protect clinicians who devote their lives to ensuring that individuals can access the abortion care they need.”