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Array of new Arkansas laws focus on abortion

More restrictions aim of measures by Rachel Herzog | June 6, 2021 at 7:29 a.m.
Sen. Jason Rapert (left), R-Conway, talks with Gov. Asa Hutchinson after passage of SB-6, a bill to abolish abortion in Arkansas, during the House session on Wednesday, March 3, 2021, at the state Capitol in Little Rock. More photos at arkansasonline.com/34bill/ (Arkansas Democrat-Gazette/Thomas Metthe)

Even as Republicans passed bills to ban nearly all abortions in Arkansas in the first half of the 2021 legislative session, at least 10 other laws that add restrictions around the procedure and facilities that provide it were enacted.

Members of the anti-abortion movement and organizations that support abortion rights both believe it was a record year for laws that restrict the procedure in the state.

According to a May analysis from the Guttmacher Institute, a reproductive-rights research and advocacy group, Arkansas enacted 20 additional restrictions on abortion, more than any other state this year. The organization's policy analysis counts individual restrictions rather than laws, because there can be more than one restriction within the same law.

At the forefront of Arkansas' new abortion laws is Act 309 of 2021, which has been called the most restrictive abortion law in the nation and late last month was met with a legal challenge in federal court from reproductive-rights groups.

The legislation originated as Senate Bill 6, by Sen. Jason Rapert, R-Conway, and is titled the "Arkansas Unborn Child Protection Act." It allows the procedure only in instances when the life or health of the mother is in danger.

"In my view, abortion is a crime against humanity, as it is in the eyes of many others. We've had very strong legislation here in Arkansas and, in fact, we were just named the most pro-life state in the nation just months previous to this bill," Rapert told the Arkansas Democrat-Gazette last month, referring to Arkansas' ranking as first on the national advocacy group Americans United for Life's list for 2021.

[ABORTION LAWS: Searchable table not appearing above? Click here » arkansasonline.com/66abortion/]

Rapert describes the law as a "trigger" aimed at forcing the U.S. Supreme Court to reconsider the nearly 50-year-old precedent of upholding a constitutional right to abortion under the Roe v. Wade decision. It's been acknowledged that the nation's high court has moved incrementally rather than in broad strokes when it comes to abortion.

Jerry Cox, executive director of the Arkansas Family Council, said a "pruning" of the Roe v. Wade decision is more likely.

"We're seeing the line move in the pro-life direction, and I expect that we'll see Roe dialed back more over time," Cox said, adding later that it could take years for Act 309 to work its way through the courts, and while that happens, opponents of abortion "felt the need to pass legislation that might not be challenged at all or be upheld by the courts."

The plaintiffs in the lawsuit against Act 309 include the American Civil Liberties Union of Arkansas as well as the state's two abortion clinics.

"We are currently evaluating all of the other abortion restrictions passed this session," Holly Dickson, executive director of the ACLU of Arkansas, said in an email. "All options are on the table to ensure that patients in Arkansas are able to access the abortion care they need."

Several laws restricting abortion passed during the 2017 and 2019 legislative sessions that are the subject of lawsuits have been blocked from going into effect by court injunctions.

Cox said restrictions on abortion generally fall into two camps -- some aim to make abortions more difficult to get, while others aim to make the procedure safer.

"Many will be deterrents, but in a way to slow down the process and provide greater information," he said.

The Family Council, a conservative education and research group, originated or worked on several of the laws that passed this session, according to Cox. Other abortion-related laws came from or got drafting help from anti-abortion groups including Arkansas Right to Life or Americans United for Life; were modeled after laws in other states; or originated from lawmakers.

"Some people think that there must be some entity behind the curtain pulling all the strings," Cox said. "What you have is a true grassroots movement that is at work."

Abortions are legal in Arkansas up to 20 weeks into the pregnancy. Barring enjoinment by the courts, laws passed in the 2021 session that don't have emergency clauses or specify another effective date will go into effect July 28, according to an opinion issued May 20 by Arkansas Attorney General Leslie Rutledge.

The two operating abortion clinics in the state are Little Rock Family Planning Services, which provides both surgical abortions and medication abortions, and Planned Parenthood Great Plains, which offers medication abortions in Little Rock.

Lori Williams, clinical director at Little Rock Family Planning Services, said in a statement about the lawsuit over Act 309 that lawmakers' actions over the years have been aimed at making abortions more difficult to perform and obtain.

"Year after year, the Arkansas legislature has passed abortion restrictions and bans aimed at making it more difficult for us to provide, and for our patients to access, abortion. [Act 309] is just the latest and clearest example of what the state has been trying to do for years: stop our patients from accessing vital reproductive health care," Williams said. "Abortion is health care -- we know, because we provide it every day."

NEW HURDLES

Ali Taylor, co-founder and president of the Arkansas Abortion Support Network, said, "At least for the foreseeable future, SB6 is very unlikely to be implemented," but other laws, including new requirements around abortion facilities, medication abortions, and the reporting of rape and incest, likely will have a greater long-term impact.

She said that while restrictions may not ultimately dissuade someone from getting an abortion or lead to a clinic closing, they "make the process more onerous than it needs to be for the patient and more taxing than it needs to be." The result is that it disproportionately affects low-income and vulnerable people, she said.

"The state needs to stay out of these personal decisions," Taylor said, calling many of the restrictions "condescending" because they imply that "women just don't know what they're doing."

When Act 498 goes into effect July 28, doctors providing abortions must perform an ultrasound and show the image to the patient before the procedure. Under current state law, if physicians use ultrasound equipment while performing abortions, they must inform the patients that they have the right to view the ultrasound images.

The new law requires the doctor to provide a simultaneous verbal explanation and medical description of what the ultrasound is depicting, including the presence and location of the fetus, the number of fetuses depicted, the dimensions of the fetus and the presence of external members and internal organs if present and viewable. The doctor also must document in the patient's medical record that the ultrasound images were displayed.

"This is for her edification, for her knowledge, because there are so many myths and misnomers out there about abortion," Sen. Cecile Bledsoe, R-Rogers, said in March.

The patient has the option to look away, Bledsoe said.

According to the Arkansas Department of Health, 67% of women who received abortions in Arkansas had given birth at least once.

"They know what's going on with the ultrasound," Taylor said.

Twenty-seven states regulate the provision of ultrasound by abortion providers, with five states in addition to Arkansas mandating that doctors perform an ultrasound on each patient seeking an abortion and require them to display and describe the image: Kentucky, Louisiana, Tennessee, Texas and Wisconsin.

Act 90, officially titled the "Every Mom Matters Act," aims to reduce the number of abortions in the state by requiring women seeking an abortion to first call a hotline informing them of services they can receive if they remain pregnant. The requirement goes into effect Jan. 1, 2023.

The legislation mandates that the Health Department establish the hotline, though it doesn't include funding for the agency to do so.

The law's sponsor, Rep. Jim Dotson, R-Bentonville, has estimated the cost of implementing the program at $1.2 million to $1.5 million, based on the figures of similar programs in other states, while Health Department officials told a legislative committee that it would cost $4 million to $5 million.

Dotson said the law was inspired by an organization that does something similar in Texas.

"A lot of times, someone's seeking an abortion as their last resort, they feel like they can't financially afford a child, whatever reason they might particularly have," Dotson said, adding later that "the goal of this legislation is to help women out, help their babies out."

TRAP LAWS

Several bills impose new restrictions and requirements on facilities that provide abortions. Abortion-rights groups call them TRAP laws -- targeted regulation of abortion providers -- that ultimately aim to limit access to the procedure.

Act 787 requires an abortion provider to report a rape or incest to law enforcement officials if a patient attempts to terminate a pregnancy resulting from the crime. It also adds the reporting requirement to sections of the code dealing with exemptions in state law that allow abortions in cases of rape or incest.

"This is not to shame the victims," but rather to hold accountable those who are victimizing someone, the sponsor, Sen. Blake Johnson, R-Corning, told a legislative committee in March. "This helps us in our reporting and data collection."

Speaking against the legislation when it ran in the House in April, House Minority Leader Tippi McCullough, D-Little Rock, said it "disregards victims' personal needs and desires at an especially vulnerable time" and would subject survivors of sexual assault to additional trauma.

Act 949 requires all abortion clinics to be licensed with the Health Department, adjusting the current state law mandating that clinics be licensed if they perform more than 10 abortions per month.

"Essentially, the bill prevents back-alley abortions at small clinics," lead sponsor Sen. Charles Beckham, R-McNeil, told a legislative committee in April.

Cox said he wasn't aware of any clinics or doctors doing abortions that fall outside the state's licensing requirements, though "some people believe that there could be a shadow industry out there." Given the state's current licensing threshold, he noted, a facility could be unlicensed while performing more than 100 abortions a year.

The law also prohibits hospitals from performing abortions unless the procedure is done to "save the life of the pregnant woman in a medical emergency."

Act 740 requires abortion clinics to have written agreements with hospitals to transfer patients with "unforeseen complications" from abortion procedures.

The law's sponsor, Sen. Ben Gilmore, R-Crossett, described the measure as a "continuity of care" bill that ensures patients can be seamlessly admitted to hospitals if the need arises.

Six other states require abortion facilities to have transfer agreements with hospitals, according to a May report from the Guttmacher Institute.

Reproductive-rights groups say abortion is a safe procedure, comparing it to dental surgery or a colonoscopy in terms of risk, and that requirements like Act 740 are medically unnecessary.

"Abortion is very safe and effective and the complication rate is exceedingly low, so what we're really seeing are simply regulations for political purpose rather than anything to do with protecting health care," said Elizabeth Nash, state policy analyst with the Guttmacher Institute.

MEDICATION ABORTIONS

Two new laws deal with medication abortions, in which a pregnancy is terminated after the patient takes two pills up to 48 hours apart. It is available up to 10 weeks into pregnancy in Arkansas at the two Little Rock clinics.

Act 560, officially titled the "Informed Consent for Chemical Abortion Act," requires doctors performing medication abortions to inform patients about the risks of the procedure and about "reversing the effects" if the patient changes her mind.

In the past several years, anti-abortion groups have propagated a disputed claim that a medication abortion can be reversed by administering progesterone before the patient has taken the second pill and say hundreds of babies have been born after that treatment is administered.

The American College of Obstetricians and Gynecologists says in a statement on its website that "claims about abortion 'reversal' treatment are not based in science and do not meet clinical standards," and that the organization does not support prescribing progesterone to stop a medication abortion. As many as half of women who take only the first pill continue their pregnancies, according to the organization.

The law also adds restrictions to medication abortions that are currently applied to surgical abortions under state law, including a 72-hour waiting period before the abortion.

"It is just giving the woman all the information that she needs to know," the law's sponsor, Rep. Robin Lundstrum, R-Elm Springs, said.

Act 562 requires doctors to do an in-person examination of the patient and get her blood type before the abortion pill is provided.

According to the state Health Department, medication abortions made up 55% of the procedures performed in the state in 2020. That percentage has risen sharply as state lawmakers have passed restrictions on other types of abortions, and went up from 42% in 2019.

OTHER MEASURES

At least two other laws passed this session relate tangentially to abortion and providers but don't directly affect access to the procedure.

Act 820, officially titled the "Arkansas Student Protection Act," prohibits public schools from entering into transactions with abortion providers, including accepting free instruction for students.

Proponents of the law said the measure is in line with other laws that have been enacted to bar public entities from contracting with abortion providers, and that representatives from Planned Parenthood have provided sex-education instruction on topics including birth control and sexual orientation in Arkansas schools.

"The truth is that if your main outlet is that you are providing abortions, you're not going to be checking that agenda or those beliefs at the door when you come in," sponsor Rep. Mark Lowery, R-Maumelle, told the Arkansas House in April.

A member of the House Education Committee argued that it would be more harmful to students to take away access to sex education and information about sexually transmitted diseases.

"I don't think when we target organizations, I don't think that's a good thing," Rep. Fred Love, D-Little Rock, said. "There's a lot more that Planned Parenthood offers."

Act 408 allows pharmacists to dispense birth-control pills without a prescription. It includes a provision prohibiting pharmacists from recommending the patient to an abortion provider, which the Family Council drafted. The group was ultimately neutral on the bill, as was Arkansas Right to Life.

Only women over 18 would be able to get the medication directly from a pharmacist. The law's sponsors said it aims to reduce the number of abortions in the state by expanding access to birth control.

"We are the No. 1 most pro-life state based on policy that was passed, but we have the highest birthrates among teenagers," co-sponsor Sen. Breanne Davis, R-Russellville told her colleagues in March. "So at some point, we have to ask ourselves, do our policies align with our actions?"

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