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Governor signs abortion ban

He points to support for Roe challenge by John Moritz | March 10, 2021 at 7:12 a.m.
In this April 10, 2019 file photo, Arkansas Gov. Asa Hutchinson speaks to reporters in his office at the state Capitol in Little Rock. (AP Photo/Andrew DeMillo, File)

Gov. Asa Hutchinson signed Senate Bill 6 on Tuesday, enacting a near-total ban on abortions in Arkansas and prompting immediate promises of a legal challenge by abortion-rights groups seeking to block the law from taking effect.

The legislation signed by the governor creates one of the harshest restrictions on abortion in the nation, allowing the procedure only in instances when the life or health of the mother is in danger.

The bill was passed without exceptions for rape or incest, despite calls from a handful of lawmakers to include those provisions. Doctors caught performing abortions in violation of the law would be subject to felony charges and up to 10 years in prison, while women who receive abortions would not face criminal charges.

The sponsor of SB6, state Sen. Jason Rapert, R-Conway, has described the bill as a "trigger" aimed at forcing the U.S. Supreme Court to reconsider its decades-old precedent upholding the right to abortions under the Roe v. Wade decision.

In announcing his decision to sign the bill, Hutchinson cited the large majorities of support the bill received in the Legislature, as well as his own "long-held pro-life convictions."

"SB6 is in contradiction of binding precedents of the U.S. Supreme Court, but it is the intent of the legislation to set the stage for the Supreme Court overturning current case law," Hutchinson said. "I would have preferred the legislation to include the exceptions for rape and incest, which has been my consistent view, and such exceptions would increase the chances for a review by the U.S. Supreme Court."

Had Hutchinson vetoed the bill, the Legislature could have overridden the veto with a simple majority vote. The governor could also have allowed the bill to become law without his signature.

A similar ban on abortions passed by Alabama lawmakers in 2019 was blocked by a federal judge before it could be put into effect, while a less-restrictive measure in South Carolina was similarly struck down in court earlier this year.

Responding to the news of the governor's decision on Tuesday, American Civil Liberties Union of Arkansas President Holly Dickson released a statement telling Hutchinson, "we'll see you court."

Little Rock Family Planning Services, one of two operating abortion clinics in the state, will continue performing abortions during the period before the law goes into effect 90 says after the end of the session, according to the practice's attorney, Bettina Brownstein. The clinic is the only one in the state that performs surgical abortions in addition to medication abortions.

Planned Parenthood Great Plains, which operates the other clinic in the state offering medication abortions, also in Little Rock, condemned the governor's decision in a Tuesday statement.

"If Arkansas politicians truly cared about the quality of life for people in this state, especially women and children, they would expand access to comprehensive sex education and contraception, and address the dangerously high rates of maternal mortality and infant mortality in the state," said Gloria Pedro, a regional organizer for Planned Parenthood Great Plains in Arkansas and Oklahoma.

"Instead, anti-abortion politicians are wasting taxpayer time and money writing a law that's the equivalent of a demand letter to the Supreme Court. Planned Parenthood is committed to ensuring abortion is safe, legal, and accessible in Arkansas, and we will never back down from this fight."

Opponents of the law said Tuesday that lower federal courts will be required to abide by the current precedent, having no choice but to block the law from taking effect later this summer. Rapert, however, said the decision will largely depend on which U.S. District Court judge is assigned the case.

"I would hope that there is someone on the federal bench, somewhere in our state, who will decide that this is the time to take a stand," Rapert said.

According to the Arkansas Department of Health, there were 2,963 abortions performed in Arkansas in 2019 -- the most recent year for which data is available. State law currently allows the procedure up to the 20th week of pregnancy.

During the debate over SB6, Hutchinson publicly called for lawmakers to include exceptions for rape and incest, while an attorney for the influential National Right to Life Committee wrote a letter to the governor expressing concerns about the bill.

The attorney, James Bopp, said the chances of the Supreme Court overturning Roe are "very small and remote," even with its current conservative majority. A failed attempt to overturn the decision could set the anti-abortion movement back, Bopp wrote.

Responding to the Bopp letter last month, Rapert dismissed its relevance, saying it represented the view of a single attorney. He also pointed to the support for SB6 from local groups, including Arkansas Right to Life, the Family Council and the Catholic Diocese of Little Rock. The National Right to Life Committee did not take a stance on the bill, according to a spokesperson.

As the bill moved swiftly through the Legislature, two anti-abortion senators asked that the bill be amended to include exceptions for rape and incest, but Rapert declined to include the amendment. No attempt was made at amending the bill in the House last week.

Brownstein, the attorney for Little Rock Family Planning Clinic, called the decision not to include rape or incest exceptions "exceptionally cruel."

"There could be a 12-year-old girl who is raped by her father, then what?" Brownstein said. "But it can and it will and it has [happened]."

Rapert, in a statement released Tuesday, thanked Hutchinson and lawmakers who worked on the bill and described the start of a movement to end abortion.

"I pray that millions of people across this nation raise their voices together with us in a righteous moral outcry to stop abortion and begin saving the lives of these precious babies," Rapert said. "It is time to abolish abortion."

Even as the passage of SB6 moved Arkansas closer to banning nearly all abortions, lawmakers have sought to tack on new restrictions.

Legislation filed last week -- and sponsored by Rapert in the Senate -- would amend the definition of "person" in the state's criminal code to include unborn children, potentially subjecting abortion providers to murder charges.

On Tuesday, about an hour after Hutchinson announced his intent to sign SB6, a separate bill barring tax dollars from going to facilities that provide abortions gained the approval of the House Committee on Public Health, Welfare and Labor.

House Bill 1589, by Rep. Harlan Breaux, R-Holiday Island, prohibits city, county and state governments from conducting transactions with abortion providers. Supporters said the bill is a step to bolster Amendment 68 to the state Constitution, which already prevents public dollars from funding abortions. The state also prohibits state grants as well as Medicaid reimbursements from being used for abortions.

The bill was amended to exempt state facilities, including the University of Arkansas for Medical Sciences and Arkansas State Hospital.

Karen Musick, a co-founder of the Arkansas Abortion Support Network, said the bill would make it harder for state social workers helping clients, who may include pregnant children.

Information for this article was contributed by Rachel Herzog of the Arkansas Democrat-Gazette.

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