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New laws in state hold restrictions, loosen some reins

Abortion, transgender limits taking effect, while alcohol rules relaxed by Michael R. Wickline, Rachel Herzog | July 25, 2021 at 3:22 a.m.
House Speaker Matthew Shepherd, R- El Dorado, walks down the steps leading to the House chamber Wednesday April 28, 2021 at the state Capitol. Legislators finished their work early Wednesday morning after coming back for a midnight session. (Arkansas Democrat-Gazette/Staton Breidenthal)

New laws restricting abortion, banning covid-19 mandates and limiting transgender participation in school sports are set to go into effect in Arkansas on Wednesday.

This week, pandemic-inspired allowances for alcohol delivery will become permanent; country music legend Johnny Cash will have a day dedicated in his honor; and qualifying immigrants will be eligible for new professional licensure opportunities.

The laws the Arkansas General Assembly passed during this year's legislative session take effect Wednesday -- 91 days after the session entered an extended recess in late April -- unless they contain an emergency clause allowing them to be implemented immediately, list a specific date for the law to be enacted, or are halted by a court order.

Several laws are the subject of ongoing litigation, and at least two have been blocked from being enforced.

Attorney General Leslie Rutledge "anticipates any laws passed and signed into law to go into effect on July 28th, and she will continue to defend challenges to Arkansas law," spokeswoman Amanda Priest said Friday.

ABORTION

The widest-ranging restriction on abortion passed by Arkansas lawmakers, which is also one of the most stringent abortion laws in the country, will not go into effect on Wednesday, but a number of other laws placing limits on the procedure and facilities that offer it will.

Act 309, by Sen. Jason Rapert, R-Conway, which bans all abortions except those undertaken to save the life of the mother in a medical emergency, was blocked last week from going into effect by a federal judge.

The American Civil Liberties Union of Arkansas, representing the state's two abortion clinics, sued over the law. On Tuesday, U.S. District Judge Kristine Baker issued a preliminary injunction preventing enforcement of the law while she hears the case.

State law allows abortions before 20 weeks into the pregnancy.

The Republican-majority Arkansas Legislature passed 20 new restrictions on abortion, more than any other state did in 2021, according to analysis from the Guttmacher Institute, which counts individual limits rather than separate laws.

Restrictions on abortion that will go into effect Wednesday include Act 498 by Sen. Cecile Bledsoe, R-Rogers, which requires that abortion providers who use ultrasound equipment display the image.

The physician or technician also will be required to provide a simultaneous verbal explanation of what the ultrasound is depicting.

Current state law requires physicians who use ultrasound equipment during an abortion to inform the patient that she has the right to view the ultrasound image before the procedure.

Additionally, government entities will be prohibited from any taxpayer-funded transactions with abortion providers or their affiliates under Act 561 by Rep. Harlan Breaux, R-Holiday Island.

TRANSGENDER ISSUES

Arkansas would have become the first state in the nation to ban gender transition procedures for minors on Wednesday, had a federal judge last week not blocked Act 626 from being enforced.

The law is titled the Save Adolescents From Experimentation, or SAFE, Act, and was sponsored by Rep. Robin Lundstrum, R-Elm Springs, who said the aim is to protect children who she said should wait until they turn 18 to decide to transition.

Physicians who work with transgender young people in Arkansas testified that those treatments are not experimental and in many cases lifesaving care, as struggling with gender dysphoria can lead those children to contemplate or attempt suicide.

Gender transition surgery is not performed on children in Arkansas, though Lundstrum has said the bill draws a "line in the sand." The Gender Spectrum Clinic at Arkansas Children's Hospital in Little Rock, according to its website, provides health care services to young people with gender dysphoria that include cross-sex hormone and puberty suppression therapies.

The American Civil Liberties Union sued the state over the law in May on behalf of four transgender young people and their families, as well as two doctors who provide those treatments, asking the court to enter a judgment declaring that the law is unenforceable because it violates the Constitution.

On Wednesday, U.S. District Judge Jay Moody temporarily blocked the ban from going into effect while the lawsuit proceeds.

Two laws that will restrict the participation of transgender girls and women in sports from kindergarten up to college are set to go into effect Wednesday.

Act 461, titled the Fairness in Women's Sports Act, will give student athletes a private cause of action against the school if they are "deprived of athletic opportunity" by a school not maintaining separate teams for female athletes by allowing participants assigned the male sex at birth to play.

Act 953 will allow the state's attorney general to lodge a cause of action for injunctive relief and any other relief available under the law against a school that knowingly allows athletes assigned the male sex at birth to participate on sports teams expressly designated for girls or women. Its title is the Gender Integrity Reinforcement Legislation for Sports, or GIRLS, Act.

Sen. Missy Irvin, R-Mountain View, sponsored both laws, describing them as proactive measures needed to ensure fair competition, while Democratic lawmakers and health and education groups who objected said they were discriminatory and unnecessary.

A spokesperson for the Arkansas Activities Association, which oversees junior high and high school sports in the state, said Wednesday that the organization was not aware of any situations that could lead to complaints or action under the new laws. The organization did not take a position on the laws.

CONSCIENTIOUS OBJECTOR

Act 462, by Sen. Kim Hammer, R-Benton, allows health care providers to decline to perform procedures or provide services that violate their conscience.

Officially titled the Medical Ethics and Diversity Act, Hammer said the two most probable areas where the law would be applied are abortion and gender transition procedures.

He said Monday that doctors could not selectively target certain populations, and if they decided they did not want to do a certain procedure, they could not opt out in some instances and perform it in others.

"If a physician said, 'I'll not do sex change procedures,' they would have to do it across the board," he said.

Hammer didn't point to a specific instance in Arkansas or in another state where a health care professional was forced to perform a procedure that violated their conscience but said historically it is "something that happens."

Civil-rights groups, including the American Civil Liberties Union of Arkansas and the Human Rights Campaign, opposed the legislation, arguing that it would allow discrimination on the basis of sexual orientation and gender identity by allowing health care institutions and providers to refuse to provide care they say the LGBTQ population needs.

COVID MANDATE BANS

Act 1002, sponsored by Sen. Trent Garner, R-El Dorado, will bar state and local governments or a state or local official from mandating an individual to use a mask, face shield or other face covering.

"The use of a face mask, face shield, or other face covering shall not be a condition for entry, education, or services," under the law.

Act 1002 will not apply to a face covering requirement imposed by a private business; state-owned or state-controlled health care facility; or a facility operated by the Department of Corrections or by the Division of Youth Services of the Department of Human Services.

If a state or local government or official recommends use of a mask or other covering, notice must be provided that the recommendation is not mandatory under the law.

On March 30, Gov. Asa Hutchinson announced that he was lifting the state's mask mandate, which was imposed in 2020 in response to the coronavirus pandemic.

The bill that became Act 1002 had an emergency clause but it failed to be adopted in the Senate, so the law takes effect Wednesday.

Act 1002 was passed when covid cases were on the decline.

But covid cases have been surging in recent weeks, with 2,015 cases added Saturday alone.

Public schools start in mid-August and will be barred from requiring students and school employees to wear masks under Act 1002.

Garner said he considers masks to be an individual choice for a parent and a child.

"I don't think [the masks] are the savior everybody else thinks they are," he said in an interview. "I think they are marginally effective. ... I don't think they are some cure-all they are making them out to be."

The U.S. Centers for Disease Control and Prevention urges unvaccinated people to wear masks. Arkansas ranks 49th in the percentage of its population that's fully vaccinated, with 35.7% of the population in that category.

A dozen Democratic lawmakers on Thursday urged Hutchinson, House and Senate leaders and other lawmakers to support an immediate call for a legislative session "to lift the ban on mask mandates in a manner that respects the will of the Legislature, the health of our people, and the importance of locally informed responses."

Senate Minority Leader Keith Ingram of West Memphis added his voice to the request on Friday.

Hutchinson and legislative leaders said they didn't believe the majority of the Republican-controlled House and Senate favor repealing that law.

Attorney Tom Mars of Rogers has tweeted that he plans to file a lawsuit challenging the constitutionality of Act 1002.

Act 1030, also sponsored by Garner, will ban state and local government from requiring documentation to show that a person has been vaccinated against covid-19.

Under this law, such documentation "shall not be a condition for entry, travel, education or services."

Garner said it's a choice whether to take the vaccine.

"It shouldn't be a mandate for somebody to get in to get a college education," he said.

Most of the new infections in the surge of recent weeks were of unvaccinated people, according to the state Department of Health.

STAND YOUR GROUND

Act 250, sponsored by Sen. Bob Ballinger, R-Ozark, will remove a provision in Arkansas law that requires a person to attempt a retreat if he can do so with "complete safety" before using deadly force in self-defense.

Under the new law, a person who uses or threatens to use physical force in defense of someone does not have a duty to retreat if lawfully present in the location, is not engaged in criminal activity that gives rise to the need to use physical force and is not engaged in any activity in furtherance of a criminal gang, organization or enterprise.

The measure was championed by the National Rifle Association and many lawmakers, who said it would decrease violent crime.

But opponents of the law, including gun-control groups and Black and minority group-activists, countered that the law would encourage armed vigilantes and that its impact would be disproportionately felt in minority communities.

Ballinger said in an interview that the law probably won't have much practical effect other than civilians will be more comfortable defending themselves because a prosecutor won't say they could have run away and didn't do so.

Hutchinson said in a written statement, "There's nothing in the law that would lead to different outcomes in our criminal justice system."

SOVEREIGNTY ACT

Rep. Jeff Wardlaw, R-Hermitage, sponsored the Arkansas Sovereignty Act of 2021, which he said is aimed at protecting Arkansans from overreach by the federal government on the Second Amendment.

"The reality is I am not sure that the bill effectively does that because the state is not allowed to tell the feds what to do," he said. "Essentially, that is what I wanted to do. But I am not sure I can."

Under Act 1012, "All acts, laws, orders, rules and regulations of the United States Government that were enacted on or after January 1, 2021, that infringe on the people's right to bear to arms as guaranteed by the Second Amendment to the United States Constitution and Arkansas Constitution, Article 2, Section 5, are invalid in this state, shall not be recognized by this state, are specifically rejected by this state, and shall be considered null and void and of no effect in this state."

Hutchinson said, "This law only affects federal bans on firearms which go into effect after January 1, 2021.

"If no federal laws are passed which limit the right to bear arms or any other constitutional rights, there should not be any real effect," he said in a written statement.

CLASS PROTECTION

Senate President Pro Tempore Jimmy Hickey, R-Texarkana, championed his Act 681 as "a class protection bill." Some tout it as a hate-crimes law; others disagree.

Act 681 will require offenders to serve at least 80% of their sentence if they committed a serious violent felony against someone because of the victim's "mental, physical, biological, cultural, political, or religious beliefs or characteristics."

The serious violent felony offenses will include first-degree and second-degree murder, first-degree battery, aggravated assault, terroristic threatening, terroristic acts, arson and unlawful discharge of a firearm from a vehicle; an attempt, a solicitation or a conspiracy to commit one of these offenses is included.

The law doesn't refer to specific categories such as race, sexual orientation or gender identity.

The measure was backed by business groups in the state, with the Arkansas State Chamber of Commerce and Springdale-based Tyson Foods endorsing it. But it was opposed by longtime advocates for hate-crimes legislation.

The Anti-Defamation League, which had urged the state to enact a hate-crimes law, has said it won't count Arkansas as having one.

VOTING CHANGES

More than a dozen new laws affecting elections and voting are set to go into effect Wednesday, four of which are the subject of a lawsuit alleging they restrict access to voting.

Entering or remaining in an area within 100 feet of the primary exterior entrance to a building where voting is taking place will become a misdemeanor under Act 728 by Hammer. The law includes an exemption for people entering or leaving for lawful purposes a building where voting is taking place.

The deadline for absentee voters dropping off their ballots in person will be moved up two days, from the day before the election to the Friday before the election. Act 973, which was sponsored by Hammer as well, does not change the deadline for mail-in ballots, which must be postmarked by Election Day.

A voter's signature on an absentee ballot will be required to match the signature on the voter registration application, under Act 736 by Rep. Mark Lowery, R-Maumelle.

Voters without IDs no longer will be able to sign a sworn statement in order to cast their ballots, with Act 249, also sponsored by Lowery, striking a state law provision allowing them to do so.

The laws were part of an "election integrity" package proposed by Republican lawmakers.

Two groups, Arkansas United and the League of Women Voters of Arkansas, have sued over the four laws, asking Pulaski County Circuit Judge Wendell Griffen to block their implementation and claiming the laws' true aim is to restrict access to voting for poor and minority-group residents.

LICENSES FOR IMMIGRANTS

Immigrants and beneficiaries of the federal Deferred Action for Childhood Arrivals policy, or DACA, soon will have new licensure opportunities in Arkansas.

Act 513 by Rep. DeAnn Vaught, R-Horatio, allows DACA recipients who have satisfied the requirements to teach in the state to receive teaching licenses.

Act 746 by Rep. Clint Penzo, R-Springdale, allows immigrants with federal work permits to be granted occupational and professional licenses.

Arkansas is home to nearly 4,500 active DACA recipients, according to the American Immigrant Council. Mireya Reith, head of immigrant-rights group Arkansas United, said there are likely an additional 2,000 to 3,000 people in the state with other types of work permits.

Earlier this month, a federal district court in Texas issued a ruling declaring the DACA program unlawful. Stephen Coger, director and lead attorney at Arkansas Immigrant Defense, said the decision will stop people who don't already have DACA protection from receiving it, but won't affect current beneficiaries.

"The young people who already have DACA will continue to have it and to qualify for those job opportunities," he said.

EDUCATION PROGRAMS

Public schools in Arkansas soon will be permitted to adopt bilingual or dual-immersion programs under Act 663 by Rep. Megan Godfrey, D-Springdale.

That isn't currently allowed under a provision in state law mandating that the basic language of instruction in public schools be English only.

Bilingual education uses a student's native language as the language of instruction and gradually phases in more English, while dual-immersion programs give students of all backgrounds the opportunity to develop proficiency in two languages by offering instruction in both English and another language.

Kim Mundell, director of communications for the Arkansas Department of Education, said Tuesday that the agency was not aware of any schools planning to adopt those programs but will issue guidance this school year and track that information the following school year.

Act 1089, by Rep. Julie Mayberry, R-Hensley, requires each school district to employ a registered nurse -- districts are now required to hire one school nurse per 750 students but the scope of practice is not specified -- and to report the results of a survey on student health needs and on-campus services to the local school board.

Under Act 958 by Rep. Mark Berry, R-Ozark, kindergarten-through-12th-grade schools will be required to broadcast the national anthem at the start of each school-sanctioned sporting event and at least once a week during school hours.

ALCOHOL DELIVERY

Restaurants, liquor stores and breweries will be allowed to deliver alcoholic beverages to customers, thanks to Act 158 and Act 703, both sponsored by Sen. Jane English, R-North Little Rock.

Act 703 also will permit restaurants to sell alcoholic beverages in sealed containers for patrons to take to-go.

Both laws codify temporary rules by the Department of Finance and Administration that were put in place pursuant to an executive order that Hutchinson issued early in the coronavirus pandemic. Hutchinson directed all state agencies to "identify provisions of any regulatory statute, agency order or rule that in any way prevents, hinders, or delays the agency's ability to render maximum assistance to the citizens of this state."

Proponents of the laws said they will allow restaurants, breweries and liquor stores to make delivery a permanent part of their business models.

English said it's typically difficult to get alcohol-related laws through the Legislature, but she believed her colleagues realized "it was a good-for-business thing."

Private clubs in dry counties will be able to create outdoor entertainment districts with the local government's approval, under Act 874 by Rep. Lee Johnson, R-Greenwood.

Johnson said the idea for the law came from constituents in Barling, a city in a dry section of Sebastian County, that wanted to establish an area allowing outdoor drinking near several restaurants in the vicinity of the Arkansas Colleges of Health Education.

In June, the city's Board of Directors approved an ordinance to establish the Chaffee Crossing Entertainment District, effective Aug. 1.

COLLECTIVE-BARGAINING BAN

Act 612, sponsored by Ballinger, will prohibit public employers from recognizing a labor union or public employee association as their bargaining agent. The law also will prohibit the employers from collectively bargaining or entering into any collective-bargaining contract with a labor union or other public employee association or its agents.

But the law will not bar collective bargaining by law enforcement officers and firefighters, nor will it bar it for public transit system employees whose employer received a grant from the Federal Transit Administration.

Under the law, public employers must terminate employees who refuse to perform their duties when acting in concert with other public employees by striking or walking away from the duties, physically obstructing the employer's activity or operations, or physically impeding the operations of the employer.

Print Headline: New laws in state hold restrictions, loosen some reins

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