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ACLU sues to halt state abortion ban; law to be nation’s most restrictive

by Dale Ellis | May 27, 2021 at 7:07 a.m.
Great Seal of Arkansas in a court room in Washington County. Thursday, June 21, 2018,

An anticipated legal challenge to the most restrictive abortion law in the nation was filed Wednesday in federal court in Little Rock by the American Civil Liberties Union of Arkansas, seeking to prevent the state from implementing Act 309 of 2021, which would ban abortion in all cases except to save the life of the mother.

The Arkansas Unborn Child Protection Act, sponsored by Sen. Jason Rapert, R-Conway, is one of 20 restrictions on abortion passed in Arkansas in 2021, according to the ACLU of Arkansas, which filed the lawsuit on behalf of Little Rock Family Planning Services, Planned Parenthood Great Plains, and Dr. Janet Cathey.

Defendants named in the case are Prosecuting Attorney Larry Jegley, Arkansas State Medical Board Chairman Dr. Sylvia Simon, the 14 members of the state Medical Board, Arkansas Health Secretary Dr. Jose Romero and the 21 members of the state Board of Health.

The case has been assigned to U.S. District Judge Kristine Baker, who has blocked implementation of a number of laws restricting abortion in Arkansas, including a 2019 law sponsored by Rep. Robin Lundstrum, R-Elm Springs, that would have outlawed abortions after 18 weeks except in cases of rape, incest, or to save the life of the mother. Rapert was the Senate sponsor of Lundstrum's bill, which at the time was considered to be one of the most restrictive laws in the country.

The 8th Circuit Court of Appeals in St. Louis upheld Baker's injunction in January.

State law currently permits abortions to be performed up until the 20th week of pregnancy.

Under the terms of Act 309, performing or attempting to perform an abortion would be an unclassified felony punishable by up to 10 years in prison and a fine of up to $100,000. The law would not penalize women who seek abortions and would not prohibit the sale and use of contraceptives.

The law would provide an affirmative defense if a doctor provides medical services to a pregnant woman that results in the accidental death or unintentional physical injury to the fetus.

Originating as Senate Bill 6, Rapert filed the bill Nov. 18. It passed the Senate on Feb. 22, by a vote of 28-7, passed the House by a vote of 76-19 on March 3, then was signed into law by Gov. Asa Hutchinson on March 9. It is set to go into effect July 28 unless blocked by the court. The primary House sponsor for the bill was Rep. Mary Bentley, R-Perryville.

In both chambers the vote fell mainly along party lines, with Republicans primarily voting in favor of the bill and Democrats primarily opposing it.

In a news release, the ACLU called the law "the latest and most direct attack on abortion by anti-abortion politicians in Arkansas," and said it would mostly affect members of minority groups, immigrants, rural residents and low-income Arkansans.

Megan Burrows, staff attorney at the ACLU Reproductive Freedom Project, called Act 309 a direct challenge to Roe v. Wade, the landmark 1973 Supreme Court decision that ruled the constitutional right to privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

Rapert himself 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.

The Roe decision itself came about from a challenge to a Texas law that outlawed abortion in all instances except to save the life of the mother. At that time, according to Planned Parenthood Federation of America, abortion was illegal in nearly every state except to save a woman's life or for limited reasons such as preserving a woman's health or in cases of rape, incest or fetal anomaly.

Rapert said his intent in sponsoring the bill was to have the law challenged in court in an effort to force the issue before the Supreme Court.

"Absolutely," he said. "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 said the impetus for Act 309 was a bill he sponsored in 2019 that would immediately outlaw abortion in the state if the Supreme Court were to overturn Roe v. Wade. That law, Act 180 of 2019, which passed by large margins mainly along party lines in both the House and Senate, is known as the "trigger bill."

"What I did," Rapert said, referring to Act 309, "I just took that bill and we flipped the trigger. We simply went ahead and initiated a complete ban on abortion in our state except to save the life of the mother, full stop.

"We know it's meant to be a direct challenge and why would we do this?" he asked. "It's because with all the protections we've tried to put into place, we still have 62 million little babies who have been killed in this country."

Rapert said the Arkansas General Assembly in 2021 passed 20 bills restricting access to abortion.

"That's the most of any state since Louisiana did it in 1978 in one year," he said.

Sen. Clarke Tucker, D-Little Rock, was one of seven senators -- six Democrats and one Republican -- who voted against the bill. He said much of his opposition to the bill is rooted in his belief that such restrictive measures violate the U.S. Constitution.

"When we're sworn into office we swear an oath to the United States Constitution," Tucker said. "Everybody who voted for that bill voted for a bill that is widely perceived to be unconstitutional. Separate and apart from that, though, I think we need to pass laws in the state of Arkansas that have more respect for women than that bill does.

"A wise person once told me that God placed all of the childbearing and gestational part of humanity with women but humans won't trust women to do what's best for them and for their children."

Tucker said the decision to end a pregnancy is seldom one that is taken lightly.

"That is one of the toughest decisions any woman will ever have to make," he said. "That's why such a decision should be between her, her family, her doctor and her God, and not be made for her by politicians."

According to the Centers for Disease Control and Prevention, abortion in Arkansas has steadily declined since 2014, falling from 4,253 abortions performed in the state in 2014 to 3,069 in 2018. The CDC said in 2018, 7.7% of pregnancies in Arkansas ended in abortion, compared with 15.9% nationally. Abortions performed on out-of-state residents accounted for 10.5% of the total in Arkansas in 2018, the CDC said.

Arkansas ACLU Executive Director Holly Dickson attributed much of the decline to restrictions passed by the Legislature making access to abortion services more and more difficult.

"Each session the state Legislature heaps on to the pile of medically unnecessary restrictions and requirements for providing care and keeping clinic doors open," Dickson said. "All of these restrictions together make it extremely difficult for patients to access care and for providers to provide the care patients need."

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