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In a divided vote, the state Board of Health approved removing the phrase "death of the unborn child" from proposed regulations implementing abortion-related laws passed by the Arkansas Legislature last year.

Instead, the regulations governing abortion facilities would continue to define abortion as a procedure resulting in the "termination of the pregnancy."

The 12-6 vote, with five other members abstaining, came despite warnings from state Department of Health Director Nate Smith and other department officials that the Legislature likely would reject the wording -- and might even retaliate against the board for what could be perceived as defiance.

Gov. Asa Hutchinson, who would have to approve the regulations before they go the Legislature, said in a statement that he does not support the board's definition.

"My director of the Department of Health advised the board against this, and I think he was providing good counsel," Hutchinson said.

"This change does not seem consistent with the intent of the people of Arkansas, and I would fully expect this change that the Board of Health suggested to be reviewed with a very critical eye and likely be overturned."

The regulations would implement six laws passed by the Legislature last year, as well as the parts of a 2013 law that remained in effect after a federal judge struck down another part that banned most abortions at or after 12 weeks of pregnancy.

A draft of the proposed regulations, prepared by the Health Department staff, echoed language from at least three of the 2015 laws in defining abortion as a procedure meant to terminate a pregnancy with the "knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child."

On Jan. 20, a committee formed by the board to study the regulations unanimously passed a motion objecting to the phrase "death of the unborn child," according to meeting minutes.

The members decided that the full board should consider alternatives to the phrase.

Board member George Harper, who proposed the wording approved by the board on Thursday, said language referring to a death "has gone too far."

"I understand that probably, in part, it was designed to be a deterrent to abortion and make a woman and her doctor feel guilty about what they're doing," said Harper, a retired Health Department official who represents consumers on the board.

But, he said, the board's role is to adopt regulations "in a way that is scientific and that avoids ideology and religion and politics to the extent that that's possible."

"If we're just a rubber stamp [of] exactly what the Legislature does, I don't really see why we need to meet," Harper said.

Board members Gary Bass, Lawrence Braden, Glen "Eddie" Bryant, Beverly Foster, Anthony Hui, Susan Jones, Mary Beth Ringgold, Robbie Thomas Knight, Peggy Walker, Anika Whitfield and James Zini voted along with Harper to support keeping the definition as the "termination of the pregnancy."

Smith, Surgeon General Greg Bledsoe, Terry Yamauchi, Alan Fortenberry, Catherine Tapp and Susan Weinstein voted against Harper's wording.

Board President Jim Lambert abstained, along with Miranda Childs-Beebe, Patricia Bell, Thomas Jones and Lee Johnson.

The board's vote came just over two weeks after the members of the Legislative Council's Administrative Rules and Regulations Subcommittee complained about proposed Arkansas State Medical Board regulations that would replace the terms "unborn human individual" and "unborn child" with the word "fetus."

Kevin O'Dwyer, an attorney for the state Medical Board, said at that meeting that he would take the regulations back to the board and communicate the lawmakers' feedback.

The board likely will take up the issue at its meeting in April, O'Dwyer said.

Smith said he was less worried about the exact wording of the definition in the regulations, which most patients will probably never see anyway, and more concerned about the materials that are distributed to patients.

Language referring to the death of an unborn child is already in consent forms that minors seeking abortions are required to sign under Act 934 of 2015, sponsored by Rep. Justin Harris, R-West Fork. A form created by the Health Department under the law has been available to abortion providers since Jan. 1.

Smith also expressed doubt about whether lawmakers and Hutchinson would agree to any wording besides the wording used by the laws.

"I would certainly advise against playing a game of chicken with the Legislature because it would probably not go well," Smith said.

The other 2015 laws referring to abortion as the death of an unborn child are Act 577, which would add requirements for doctors who provide abortion pills, and Act 1086, which increased the waiting period between a doctor's consultation and an abortion from 24 hours to 48 hours.

In response to lawsuit by Planned Parenthood of the Heartland, U.S. District Judge Kristine Baker has temporarily halted the enforcement of Act 577. The lawsuit contends the law would effectively do away with medication abortions in the state.

Shortly after he took office in January 2015, Hutchinson issued an executive order requiring agencies to submit their rules to his office for approval before sending them to the Legislature for review.

Hutchinson spokesman J.R. Davis said the draft of the Medical Board rules approved by the governor used the term "unborn child" rather than fetus but that the wording was changed before it was submitted to the rules and regulations subcommittee.

Sen. Jason Rapert, R-Bigelow, and sponsor of the 2013 law, called the actions by the Medical Board and the Board of Health "gamesmanship."

"They need to have a refresher course on what their authority is and what they're supposed to be doing," Rapert said.

He said the wording in 2015 laws was meant to counter a "very, very long-term effort to dehumanize abortion."

"Recognizing the child as a child is much different than trying to use clinical terminology that hides the fact that you're dealing with a living human being," Rapert said.

A Section on 01/29/2016

Print Headline: Panel strikes 'death of unborn child'


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Archived Comments

  • LR1955
    January 29, 2016 at 9:31 a.m.

    I thought elected legislatures were to be concerned with law, not a bunch of deacons & elders. Separation of Church & State, it's right there in the Constitution!

  • JakeTidmore
    January 29, 2016 at 9:50 a.m.

    Sen Rapert proving once again that he's the most vindictive, mean-spirited SOB in the legislature. (He's been tweeting angry remarks and veiled threats to the Health board.)

  • Popsmith
    January 29, 2016 at 10:10 a.m.

    It's fascinating to see how it's difficult to dance around the murder of the unborn.

  • BpLrAr
    January 29, 2016 at 11:31 a.m.

    The correct term for "unborn child" is "embryo" or "fetus". The legal definition of “murder” is 'the unlawful premeditated killing of one human being by another'. Abortion cannot correctly be deemed “murder” because abortion is legal. As the father of 4 beautiful children, I have witnessed the miracle and joy of birth in the delivery room. But anyone who attempts to limit or prevent a woman’s access to a safe and legal abortion is committing a crime. Every woman seeking an abortion is doing so for uniquely personal and very private reasons. Some women are just not ready to be, don't ever want to be, or aren't fit to be, mommies. People that want to outlaw abortion need to refocus their time and energy on fixing the real problems: the shortage of foster families for parentless children and child abuse.

  • TheGoodGuy
    January 29, 2016 at 11:31 a.m.

    Hey, Popsmith, if something is "unborn", then how the hell can it be murdered? People that want to dictate to a woman what she can do with HER body just amaze me!! Tell you what, you bible thumping hypocrites, why don't you fix EVERY LAST SIN in your life before you go and tell other people what they can do in their own homes, with their own bodies, or other things that are absolutely NONE OF YOUR BUSINESS.
    If you wanna tell people what to do with their body, I will go tell you what to do with yours! Your penis is too small, go get an enlargement done. Your breasts are ugly, get a boob job. Your gut is much too big, you should go get a surgery to shut your mouth.
    I mean, seriously, who the hell do you think you are telling people what to do with their body? If a woman wants to get an abortion, that is something SHE will have to live with the rest of HER life. It is a traumatic thing. It will leave guilt and worry and all kinds of bad things for that woman for all her life! You act like getting an abortion is something that is just a cake walk to do. You act like it is as easy as filling up your gas tank. Well, guess what, Einstein, it isn't. Shut the hell up in trying to dictate your FLAWED religious views on other people!!!

  • TheGoodGuy
    January 29, 2016 at 11:39 a.m.

    BpLrAr, you are EXACTLY right! And Rapert needs to go ahead and "have a refresher course on what their authority is and what they're supposed to be doing" because he obviously has no idea what he is supposed to be doing. His job is NOT to be dictating fanatical religion rules to the people of this state. He is supposed to be doing the things that the people of his constituency want him to do. He is coming nowhere close to doing anything like that. He wants EVERYONE in this state to be as big of a religious nutjob as he is. He is completely out of touch with reality. He needs to put the bible down for a while.

  • JakeTidmore
    January 29, 2016 at 12:01 p.m.

    Next thing you know, there'll be more wackos on the street with signs saying "Masturbation is Murder!!" Or, "Spermicide is Homicide!!" Or, "The Hand that Plays Is a Hand that Slays!!"

    January 29, 2016 at 2:40 p.m.

    Just maybe by the time another Election comes around, Everyone in Arkansas will have had a Belly Full of these Legislators. Senator Rapert and Others should go to Seminars and take up the Line of Preaching, Maybe they could save a few Souls, There are Reasons Church and State are Separated in America.

  • CarpeNoctis
    January 29, 2016 at 8 p.m.

    @LR1955, Separation of Church and State is NOT in the Constitution but codified by precedent, which means rulings have been made in the past with that phrase in mind and allowed to stand. I think(!) the first case was in the early 1800s. Through the rulings, it is tacitly understood to be the law of the land. Which I am all for, btw. It gets hard to believe that we are in the 21st century and still having to educate people on difference embryos and fetus' and an actual child.
    What I don't get but maybe the dominionists do, is the Roe v Wade is not just about abortion but a woman's access to the Constitution. Voting does not address that. This means that women can have their own credit, their own name, their own mortgages, etc. Remember before Roe v Wade, women had to sign their legal names as Mrs. John Doe. After the ruling, it became Jane Doe. Titles such as Mrs. and Miss were no longer deemed to be necessary or legal.
    If Roe v Wade were overturned, women would no longer be able to keep their own funds but would have to get permission from father or husband as to what she can or cannot do with her money. Basically, it would bring Sharia Law to women in the US. It is the ONLY amendment that specifically addresses women and their rights (access to the Constitution), medical privacy is only a part of that ruling.
    Now, we know there are a lot of men who would like to get control of the women in their lives in all ways. Roe v Wade protects those women at age 18. Would you really want to tell a woman that she has to live with abusive daddy until she gets married because there is no longer a law that protects her? That she can no longer get her own student funding (a whole 'nother conversation) if he decides he doesn't want her to continue her education? Or force her to marry who she doesn't want to? What's to stop him? Maybe just maybe our "christian" legislature would make a law but do you really want to take that chance with the bunch we have in their now? I sure don't.
    Be careful what you wish for, there is always that ugly Law of Unintended Consequences when anyone tries to overturn laws like this.