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Rutledge vows Arkansas abortion ban will go into effect if court overturns Roe

by Dale Ellis | May 4, 2022 at 7:45 a.m.
Arkansas Attorney General Leslie Rutledge holds a press conference Thursday, April 28, 2022, to announce the lawsuit filed against Family Dollar following a rodent infestation at its West Memphis distribution center. (Arkansas Democrat-Gazette/Staci Vandagriff)

Reaction was swift and impassioned Tuesday from Arkansas officials and activists on both sides of the abortion issue after Monday night's disclosure of a draft opinion by the U.S. Supreme Court signaling the possible end of Roe v. Wade.

[JUNE 24 UPDATE: Arkansas attorney general certifies 'trigger law' banning abortions in state » arkansasonline.com/624cert/]

Republican officials in Arkansas roundly condemned the leak of the draft opinion while praising the potential end of legal abortion in the state, with Arkansas Attorney General Leslie Rutledge vowing that as soon as the high court officially overturns Roe v. Wade she will certify a "trigger law" passed in 2019 that would immediately outlaw all abortions in the state except to save the life of the mother.

Supporters of abortion rights rallied Tuesday evening at the State Capitol in support of keeping abortion legal within the state, and warned of further efforts to undermine individual rights.


On Monday, Politico published a story revealing that the leaked draft opinion strongly indicated the 1973 decision that legalized abortion throughout the United States will be overturned by the end of the session in June. The draft opinion, written by Justice Samuel Alito, slammed the decades-old ruling that classified the right to an abortion as constitutionally protected, calling it "egregiously wrong from the start."

"The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision," the draft opinion reads.

"It is time to heed the Constitution and return the issue of abortion to the people's elected representatives," the document reads.

The Supreme Court confirmed the authenticity of the draft opinion Tuesday but issued a statement saying the draft "does not represent a decision by the court or the final position of any member on the issues in the case."

'ACT OF INSURRECTION'

In a tweet Monday night, Arkansas Gov. Asa Hutchinson said he has advocated for the reversal of Roe v. Wade throughout his political career but described the leak of the draft opinion as "reprehensible" and said there should be an investigation into it.


Rutledge compared the leak to the Jan. 6, 2021, riot at the U.S. Capitol in which hundreds of supporters of former President Donald Trump stormed the Capitol building in an attempt to prevent President Joe Biden from being declared the winner of the 2020 presidential election.

"The person who leaked this, or the individuals who leaked this, is no different than those who wished to tear down our Capitol on Jan. 6th," Rutledge said Tuesday. "This is an act of insurrection, ripping at the seams and breaking that confidentiality."

Republican Party of Arkansas Chairwoman Jonelle Fulmer said Republican control of the state is evidence of the will of the people of Arkansas.

"Arkansans are Pro-Life, as is evident by their continued election of Republican legislators," Fulmer said in a prepared statement. "Arkansas is proud to be named the most Pro-Life state in the Union for the last two years in a row by the group Americans United for Life. Moving forward, Arkansas will continue to be a state that protects the life of the unborn."

Holly Dickson, executive director of the ACLU of Arkansas, vowed in a released statement Tuesday to continue the fight to keep abortion legal in Arkansas.

"Attacks on reproductive freedom target people and families who are already some of our most vulnerable Arkansans," the statement read. "If the Supreme Court issues a majority opinion that follows the leaked draft it would deprive half the nation of a fundamental, constitutional right."

Dickson said if the Supreme Court affirms the decision portended in the draft opinion, the burden of the ruling will disproportionately affect Arkansans of modest means.

"People in Arkansas already are facing challenges to reproductive freedom that disproportionately push care out of reach for people of color, immigrants, people who live in rural areas, and people with low incomes," Dickson said in the statement. "Abortion is legal in Arkansas -- just as it is in all 50 states -- and we will continue to fight to keep it that way."

Arkansas' elected officials in Washington, D.C., uniformly praised the draft opinion.

"Overturning Roe would return abortion issues to our democratic process and restore the genius of the framework outlined in our Constitution," U.S. Rep. Rick Crawford said in a released statement. "It would also save countless babies' lives."

U.S. Sen. John Boozman, who is being challenged from the right in this year's GOP primary, called Roe v. Wade "deeply flawed morally and constitutionally.

"The return of authority to the states would be progress we can be proud of, but we will continue until every unborn life is saved," he said in the statement.

U.S. Rep. Bruce Westerman said he was elated to see the justices are headed toward overturning the landmark decision but signaled he will maintain some skepticism until the final ruling is released.

"My personal hope is that we see a lot of innocent lives that are saved," he said in an interview Tuesday.

In a tweet, U.S. Rep. Steve Womack called the leak a "blatant attack on the core tenets of our legal system," and "a dangerous tactic that defies all institutional norms and decorum" while affirming his position supporting the repeal of Roe v. Wade and calling for a full investigation into the matter.

U.S. Sen. Tom Cotton, in an interview on The Hugh Hewitt Show, raised the idea the court could issue a judgment in the case now.

"There is precedent for the court to issue a brief per curiam decision announcing judgment of a case with opinions [to] follow," he said.

Cotton said the court, working with other entities, needs to get to the bottom of the leak, which he called a "breach of trust" by an individual at the Supreme Court. Cotton also said there needs to be consequences for the person behind the leak.

U.S. Rep. French Hill said in a statement he will "always value life [and] support policies that reflect that."

TRIGGER LAW

During a news conference Tuesday, Rutledge said Act 180, passed in 2019 in Arkansas, is a "trigger law" that would ban and bar abortions in any event if the Supreme Court overruled Roe and the accompanying Casey decision.

"Under that law, it will be my responsibility as the attorney general of the state of Arkansas to certify that the United States Supreme Court has overruled Roe and Casey so that way Arkansas can immediately ban abortions, and that will take effect immediately," Rutledge said. "In the event that this decision, this draft that we saw, does in fact become final, it will be my honor and the privilege of my lifetime to do just that."

Nicholas Bronni, the solicitor general for Arkansas, said the certification is the key for a total abortion ban to go into affect.

"The procedure set out in the bill is basically that the attorney general certifies that the core holdings of Roe and Casey have been overruled," Bronni said. "The moment she does that the act becomes effective."

Jerry Cox, founder and president of the Family Council in Arkansas, hailed the news and expressed hope that the final ruling will echo the draft opinion. Cox said his guess is that when the final decision is rendered, Roe v. Wade and Planned Parenthood v. Casey will be overturned.

The 1992 Supreme Court ruling in Planned Parenthood of Southeastern Pennsylvania v. Robert P. Casey established that states may place restrictions on abortion but must stop short of placing an undue burden on women seeking the procedure.

Cox said there are misunderstandings about what might happen next. Chief among them, he said, is a belief that overturning Roe v. Wade would make abortion illegal throughout the country.

"I wish that were the case, but it's not," he said. "It just means that state legislatures all across the country get to make their own laws about abortion the way they did prior to Roe v. Wade."

In Arkansas, Cox said, if Roe v. Wade is overturned a number of laws prohibiting abortion that are currently enjoined from being enforced will likely go into effect. Additionally, Act 180, sponsored by Republican state Sen. Jason Rapert of Conway, was passed in 2019 and is not under any federal or state court action and is set to go into effect the moment Roe v. Wade is overturned.

Arkansas was the fifth state in the nation to pass such a law. Since then, eight additional states have passed trigger laws.

The only exception contained in the trigger law is to save the life of the mother. No provisions for rape or incest are included in the law, which Rapert said was by design.

"We have met many women and also children who have been the product of a rape and they've grown up to have a fruitful life," Rapert said Tuesday. "Our country is waking up to the sanctity of life."

Rapert said the law mirrors the stance of the National Right to Life Committee and was supported by super-majority votes in both the state House and Senate chambers. He said numerous women in Arkansas who have given birth to children who were the product of rape have testified before various legislative committees supporting efforts to ban abortion in the state.

Rapert dismissed arguments in favor of keeping exceptions open for cases of rape or incest as "liberal talking points."

"These are tired old arguments, frankly, that the left has used to try and confuse people on the sanctity of life," he said. "A child is a human being, an unborn child, and that life should be protected."

RIPPLE RULINGS FEARED

Grant Tennille, chairman of the Democratic Party of Arkansas, took issue with Rapert's opinion that rape and incest are not valid exceptions to bans on abortion.

"As the father of young girls, I find that theory reprehensible," Tennille said. "We are talking now about having to confront children who have been raped and impregnated. There's no other way to look at that other than criminal tragedy, and those children and their families ought to have the ability to seek solutions that will work for them without the interference of the government."

Tennille said if the Supreme Court overturns Roe v. Wade and Planned Parenthood v. Casey, the reverberations could go beyond simply returning abortion decisions to the states.

"Because they're striking dead to the heart of the 14th [Amendment], you're talking about marriage equality again," Tennille said. "You're talking about the ability to purchase mainstream contraception, which is what everybody says their next play is."

Tennille vowed to continue opposing efforts to overturn Roe v. Wade and outlaw legal abortion in the state.

"We trust women to make their own health-care decisions about abortion and their bodies," he said. "No effort to strip constitutional rights and individual autonomy from citizens of this country has ever succeeded for long, and this effort will be consigned to that same dustbin.

"Democrats know what freedom and individual responsibility really look like, and we will not rest until those fundamental rights are guaranteed for all. ... We're going to work to elect people who will stand courageously to defend the rights of all Arkansans and put an end to this capricious cruelty."

Supporters of abortion rights rallied on the state Capitol steps Tuesday evening, holding up signs reading "Codify Roe v. Wade," "We're not going back" and "Forced motherhood is female enslavement."

Ali Taylor, co-founder and president of the Arkansas Abortion Support Network, said the draft opinion indicates that the Supreme Court is "more than happy to overturn Roe v. Wade and relegate pregnant people to unhuman status."

"We will not stand for that," she said into the megaphone. "This is only going to get worse. About 10 years ago people in this movement started sounding the alarm and warning everyone that Roe v. Wade would be overturned within a decade or so, and lots and lots of people said, 'Oh stop it, it's established law, that'll never happen. Stop it, you're being silly.' Well, look who's silly now."

She added that such a decision could open the door for attacks on birth control access, marriage equality and other civil rights.

"This is not the last stop," she said. "This is the first stop on dismantling fundamental human rights that people have been fighting in this country for for decades, and if we don't wake up it's going to keep happening. I had an abortion, and I do not regret it. It was one of the best decisions I've made, and it was certainly the best decision at the time, and I don't want anybody to be forced to carry a pregnancy they don't want."

Julie McDonald with the Progressive Arkansas Women PAC urged people to turn their anger into action by donating, getting people to register to vote, having difficult conversations and electing women to office.

"When marginalized voices are added to a discussion, the decisions that are made are improved," she said. "The discussion becomes different."

Quintessa Hathaway, the Democratic nominee for Arkansas' 2nd Congressional District, said the current era is a second civil-rights movement and expressed support for free child care and better treatment of women who give birth while incarcerated.

"These are very sobering times in our country," she said.

Information for this news article was contributed by Ryan Tarinelli, Stephen Simpson and Rachel Herzog of the Arkansas Democrat-Gazette.


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