Under orders from lawmakers, a divided Arkansas State Medical Board voted Thursday to replace the term "fetus" with "unborn child" and "unborn human individual" in proposed regulations implementing abortion-related laws passed by the state Legislature.
The board had presented the wording governing abortion procedures for doctors in January, changing the Legislature's language to "fetus" because its members said that was an accepted medical term, while "unborn child" was not. A subcommittee of the Arkansas Legislative Council sent the proposed rules back to the board with directions to restore the original language. The board did so Thursday on a 9-4 vote.
Several panel members asked board attorney Kevin O'Dwyer if there were any options besides adopting the legislative language.
"Can the Legislature not pass a law without the need for the board to ... act on it?" asked board member Dr. Omar Atiq, who voted against the change. "There has to be a reason for 14 additional people, who are mostly physicians ... for this to come to them. If it was just the Legislature, then they could make any law they want. Why do they force 14 other people to necessarily agree with them?"
O'Dwyer said the board's role in this particular rule-making was to "regurgitate."
Because "unborn human individual" was not a medically defined term, he said the board originally was concerned about the effect of it on physician disciplinary hearings. He said the board could not worry about any potential issues if the language was challenged in circuit court.
"The concern was the difficulty or impossibility of finding a medical expert to testify about the definition of the term of the regulation if that was left in, which would essentially potentially make the regulation unenforceable," he said. "The Legislature said change it back, and that's what we're here for."
Board Chairman Dr. Joseph Beck said a past dispute over a similar rule was challenged in court, and the board spent $90,000 to defend a "regulation that was questionable."
O'Dwyer said legal challenges or administrative appeals over the language change were possible, but it would depend on the complaint before the board.
Rose Mimms, executive director of Arkansas Right to Life, said she was pleased with the board's decision.
"We struggle when we draft legislation to make sure it says and does what we want it to do," Mimms said. "Even if it's just that they consider changing a term to the medical term, it still in our eyes takes away the humanity we wanted to give to the unborn child."
The regulations go next to Gov. Asa Hutchinson under a policy change he implemented when he took office. Hutchinson's office noted that the Medical Board revised the language to say "fetus" after the governor's office reviewed a draft of the proposed rules in January. After Hutchinson's OK, the regulations will be sent to the Arkansas Legislative Council for approval.
The state Board of Health also tried to change language in regulations for abortion-provider facilities regarding the same laws. The board voted to change language defining an abortion as the "death of an unborn child" to the "termination of a pregnancy." Those regulations were returned by the governor's office and will be reconsidered April 28, according to Health Department officials.
Metro on 04/08/2016