Mirroring a nationwide trend, Arkansas legislators introduced bills during the recently adjourned session that tack a growing number of restrictions onto a woman's ability to legally obtain an abortion.
Altogether, nine bills have become new state laws. All are scheduled to take effect 90 days after the session formally ends, which is expected to be Wednesday.
Collectively, they will -- unless successfully challenged -- make the procedure illegal after 18 weeks of pregnancy; ban it entirely if the U.S. Supreme Court overturns the 1973 decision that legalized it; ban it in the event of a fetal Down syndrome diagnosis; and ban state funding for abortions and abortion-related services for inmates.
They also will make women wait three days, instead of the current two, to have an abortion after visiting the clinic and receiving written information; require doctors performing abortions to be obstetricians/gynecologists; increase the amount of information doctors are required to give abortion patients; increase the providers' reporting requirements; and require any woman whose fetus has a fatal diagnosis to be given information about perinatal palliative care, or available support, should she carry it to term.
Gretchen Borchett, vice president for Reproductive Rights and Health at the National Women's Law Center in Washington, D.C., said that while legislatures across the country have introduced "a huge number" of abortion restrictions each year for the past decade, there has been an "uptick in extreme abortion bans" this year, and Arkansas is among the states in the "extreme" category.
The reason for the uptick, she said, is the more-conservative realignment of the U.S. Supreme Court since the addition in October of Justice Brett Kavanaugh, who was sworn in after a contentious battle to fill the vacancy created by the retirement of Justice Anthony Kennedy.
Many state legislators, Borchett said, "see the new Supreme Court as an opportunity" to keep their more conservative-leaning proposals intact.
As of Friday, state legislatures across the country had introduced 370 abortion-restricting bills, according to Elizabeth Nash, senior state issues manager at the Guttmacher Institute, a research and policy organization that advances reproductive rights.
Under the 1973 landmark Supreme Court decision, Roe v. Wade, states cannot ban abortions before viability, the point at which a fetus is capable of living independently outside the womb. But viability can vary from woman to woman, and different states have set different determinations of viability. Arkansas currently considers a fetus viable after 22 weeks of pregnancy.
Nash said the medical community typically considers viability to occur at 24 to 28 weeks of pregnancy, depending on the woman. She said that under Roe and other rulings that followed and clarified it, if a state sets any post-viability restriction on abortion, there must still be exceptions to protect the life and health of the mother.
According to the Arkansas Department of Health, most abortions at the state's three abortion clinics -- two in Little Rock and one in Fayetteville -- are performed before 16 to 18 weeks of pregnancy. Of the 3,249 abortions the department recorded in 2017, only 173 were performed at 16 weeks or later and just 75 were reported after 18 weeks.
Among the legislation that has been introduced this year across the country are bans on abortion after six weeks of pregnancy. The bans have been proposed in at least nine states, but not in Arkansas.
While groups opposing abortion have praised Arkansas as a strong "pro-life" state, the Arkansas chapter of the American Civil Liberties Union said it will file legal challenges to at least three of Arkansas' new laws. Attorney Bettina Brownstein identified the targeted laws as:
• Act 493, which bans abortions after 18 weeks, except in medical emergencies and in cases of rape or incest.
• Act 619, which bans a post-viability abortion due to a Down syndrome diagnosis, test result or other indication that the fetus has Down syndrome, except in cases of rape or incest.
• Act 700, which requires doctors performing abortions to be board-certified, or eligible for board certification, in obstetrics and gynecology, and amends the definition of viability to include the reasonable likelihood of sustained survival with or without artificial life support.
Brownstein said the ACLU opposes Act 700 because "there are not enough ob/gyns in the state willing to do abortions," so the law is actually a means of preventing many abortions. She said the American College of Obstetrics and Gynecology has said that it isn't necessary for a physician to be an ob/gyn to perform an abortion. Not all doctors who perform abortions at the Arkansas abortion clinics are certified ob/gyns.
Brownstein said the ACLU is "considering" challenging other new abortion laws as well, but didn't name them.
Meanwhile, three federal lawsuits challenging state abortion laws are currently pending in federal court in Little Rock. They are:
• Planned Parenthood v. Gillespie, a 2015 challenge to Gov. Asa Hutchinson's 2014 directive cutting off Medicaid funding for Planned Parenthood services other than abortion. Medicaid funding for abortion itself was already prohibited. The 8th U.S. Circuit Court of Appeals in St. Louis reversed U.S. District Judge Kristine Baker's Sept. 29, 2016, preliminary injunction stopping enforcement of the act, saying the plaintiffs didn't have a right to sue, but Planned Parenthood is now pursuing the case under a different legal theory and the case is tentatively set for trial next year before Baker.
• Planned Parenthood v. Jegley, also filed in 2015, challenges a state law that requires providers of medication abortions to have a signed contract with doctors who have hospital admitting privileges. Baker twice prevented the state from enforcing the law, but the state dropped its appeal of her most recent ruling in November after a qualifying doctor came forward, making the issue moot. The case is currently on hold. However, the plaintiffs amended the lawsuit March 29, contending the law is unconstitutional whether a qualifying doctor is available or not.
• Hopkins v. Jegley, filed in 2017, takes issue with four abortion-restricting laws passed in Arkansas in 2017. Baker enjoined the state from enforcing the laws on July 28, 2017, and the state's appeal of that ruling remains at the 8th Circuit, which heard oral arguments in the case on Dec. 13. The laws being challenged ban a common second-trimester abortion procedure called dilation and extraction, require the woman's family members to consent to disposal of fetal tissue, require doctors to notify law enforcement when a girl younger than 16 receives an abortion, and require doctors to review a woman's medical records if she asks to know the sex of the fetus before seeking an abortion, to try to ascertain whether she previously sought an abortion based on the sex of the fetus.
Another lawsuit, Planned Parenthood v. Smith, was dismissed April 8 by U.S. District Judge James Moody Jr. at the request of the plaintiffs because the state Health Department regulations it opposed aren't currently being enforced detrimentally against abortion clinics. The lawsuit is subject to being refiled at a later date.
A Section on 04/22/2019