A divided Arkansas State Medical Board on Thursday approved the implementation of a state law requiring doctors who perform abortions to first conduct an abdominal ultrasound test and to inform the patient of the probability of the fetus' survival if carried to term.
The 7-6 vote implementing parts of Act 301, the Arkansas Human Heartbeat Protection Act, came after the regulation failed, 6-7, on the first vote.
Board member John Weiss of Fayetteville initially voted against the regulation, then asked for the second vote, saying he wanted to change his vote to yes.
He had wanted the board to approve the regulation "under protest," but was told by the chairman, Joseph Beck of Little Rock, that the board could only vote to approve or reject it.
During a brief debate, some members objected to the regulation as unwarranted interference in the practice of medicine, while others noted that the law required the board's action.
Board member Jim Citty of Searcy spoke in favor of the regulation.
"I think it's not so much a woman issue as an unborn child issue," Citty said. "We're dealing with human life, and I think passing this amendment simply shows these women that are pregnant that there is life on board."
Enacted after legislators overrode Gov. Mike Beebe's veto, Act 301 initially banned most abortions at or after 12 weeks of pregnancy, but that part of the law was struck down in March by U.S. District Judge Susan Webber Wright.
Wright said the ban violated the U.S. Supreme Court's 1973 ruling in Roe v. Wade that establishes a woman's right to obtain an abortion until the fetus is viable, or capable of living independently outside the womb.
But Wright left other parts of the law, including the requirement to test for a heartbeat, intact, noting that the plaintiffs didn't directly challenge those requirements on the grounds that they place "an undue burden on a woman's right to choose or that they require the disclosure of information that is untruthful, misleading or not relevant to the decision to have an abortion."
Representing the medical board, state Attorney General Dustin McDaniel has appealed Wright's ruling striking the 12-week ban.
But the plaintiffs, represented by the American Civil Liberties Union and New York-based Center for Reproductive Rights, have not appealed Wright's decision to leave parts of the law intact.
Kevin O'Dwyer, the board's attorney, said Regulation 36 implements the intact provisions almost "verbatim."
In addition to testing for a heartbeat, those provisions require doctors to determine the "statistical probability of bringing an unborn human individual to term based on the gestational age of the unborn human individual possessing a detectable heartbeat."
If a heartbeat is detected, the doctor must inform the patient of that fact in writing and also give her the information on the probability the child could be brought to term if the abortion is not performed. The patient must sign a form acknowledging she has received the information.
The ultrasound is not required in the case of a medical emergency.
Testifying in support of the regulation, Rose Mimms, executive director of Arkansas Right to Life, told Medical Board members it would help to provide "one more piece of very important information that we feel may make a difference in a mother's decision whether to have a child or whether to end that child's life."
Janet Cathey, an obstetrician and gynecologist who doesn't perform abortions, said the regulation would mandate a "specific test, when a less expensive test can be done."
The regulation also requires doctors to give the information to their patients even if the doctor doesn't think that would be in the patient's interest, she said, and it "forces me to make a prediction about something I can't make a prediction about."
Cathey, who is married to board member Steven Cathey of North Little Rock, said the board should reject the regulation as falling outside the state Medical Practices Act, which authorizes the board to license and regulate the practice of medicine.
Board member Omar Atiq of Pine Bluff called the regulation's requirements "paternalistic" and "condescending."
"For laypeople, though most honorable and elected representatives, to tell the physicians how they should practice medicine, which is what I think this is trying to do, is just something that I just can't swallow," Atiq said.
He added that he would resign from the board if that were necessary to stop the regulation from taking effect.
"To me being a physician is far more important than being on the board," Atiq said.
Weiss questioned how the regulation would affect a doctor's ability to counsel a patient in a case where the child had a fatal birth defect.
"Would you be able to tell the patient that, and overemphasize that the heartbeat is all that makes the fetus viable?" Weiss said.
He also questioned what restrictions might be enacted in the future.
"We can take it back to the cellular level if we want to," Weiss said. "We can take it back to the zygote."
Others pointed to the law's directive to the board.
"The Legislature tells us what to do all the time, like it or not," Beck, the chairman, said.
Board member Scott Pace of Little Rock also noted, "whether we pass a [regulation] or not, the law still stands."
Both votes on the regulation were taken by a show of hands, and individual votes were not recorded.
Atiq, Cathey, Larry D. "Buddy" Lovell of Marked Tree and John Scribner of Salem confirmed that they voted against the regulation.
Citty, Pace, William Dudding of Fort Smith and Veryl Hodges of Jonesboro voted for the regulation.
Sylvia Simon of Monticello, Bob Cogburn of Mountain Home, John Hearnsberger of Nashville and Harold Betton of Little Rock declined to say how they voted.
Beck typically doesn't vote except to break a tie.
In a 1989 case, the Arkansas Supreme Court ruled that of unsigned secret ballots violate the state's Freedom of Information Act. The court said votes should be conducted in a way that allows the public to be "advised of the performance of individual members" of the governing body.
But Robert Steinbuch, a law professor at the University of Arkansas at Little Rock, said it's common for public boards to vote by a show of hands, a voice vote or other methods that don't record the vote of each member.
He said he wasn't aware of any court rulings addressing the legality of those methods.
"At some point, the spirit of the open meetings act tends to get stretched when a meeting that is nonetheless in public is done in a fashion that the public can't actually ascertain how individuals are voting," Steinbuch said. "I think that is a concern."
A section on 12/05/2014