Attorney general rejects name, ballot title for proposed constitutional amendment to overhaul Arkansas’ abortion law

Arkansas Attorney General Tim Griffin addresses the media Feb. 17 during a press conference in Little Rock.(File Photo/Arkansas Democrat-Gazette)
Arkansas Attorney General Tim Griffin addresses the media Feb. 17 during a press conference in Little Rock.(File Photo/Arkansas Democrat-Gazette)


Arkansas Attorney General Tim Griffin on Tuesday rejected a proposed popular name and ballot title for a proposed constitutional amendment that would overhaul the state's restrictive abortion law.

A ballot committee, Arkansans for Limited Government, has proposed a constitutional amendment that would bar the state from restricting access to abortion within 18 weeks of conception, or in cases of rape, incest, in the event of a fatal fetal anomaly, or when abortion is needed to protect the pregnant woman's life or health.

Arkansas' current law bans abortions except to save the life of the mother in a medical emergency.

The ballot committee's proposed constitutional amendment with a proposed popular name and a proposed ballot title was submitted to Griffin's office Nov. 9. The proposed popular name is The Arkansas Reproductive Healthcare Amendment.

The Republican attorney general's options included certifying the popular name and ballot title as submitted, rejecting the entire submission, giving the reasons for the rejection and instructing the sponsor to redesign the measure, or substituting and certifying a more appropriate popular name or ballot title.

Griffin said in the letter to Steven Nichols of Little Rock that, having reviewed the text of the proposed constitutional amendment as well as the proposed popular name and ballot title, "I must reject your popular name and ballot title due to ambiguities in the text of your proposed measure that prevent me from ensuring that the ballot title you have submitted, or any ballot title that I would substitute, is not misleading."

The attorney general cited various issues with four sections of the proposed constitutional amendment and three other additional concerns.

Certifying the proposal's popular name and ballot title would clear the way for the Arkansans for Limited Government ballot committee to begin collecting signatures of registered voters in an effort to qualify the proposed amendment for the 2024 general election ballot.

Sponsors of proposed constitutional amendments are required to submit 90,704 signatures of registered voters to the secretary of state's office by July 5, 2024. The total must include signatures from registered voters in at least 50 counties, according to the secretary of state's office.

The Arkansans for Limited Government committee said Tuesday in a news release, "We appreciate the Attorney General's thorough review of and impartial response to the amendment's language."

"We are also heartened by the overwhelming support we have received from Arkansans across the state, including pledges to sign a future petition in favor of the Arkansas Reproductive Healthcare Amendment," according to the committee chaired by doctor Hershey Garner of Fayetteville.

"Residents want sensible reproductive policy, and Arkansans for Limited Government will begin work immediately with the amendment drafter to craft a revised amendment. We are committed to supporting a ballot proposal that is clear for Arkansas voters," the committee said.

The committee filed a statement of organization with the Arkansas Ethics Commission on Monday, listing Garner as the committee's chairman, and attorney James McHugh of Little Rock as the committee's treasurer. For AR People is listed as a member of the committee. For AR People describes itself as a nonprofit organization that advances a responsible democracy in Arkansas by educating the public about issues that have an impact on Arkansans' daily lives.

In a post Tuesday on X, formerly known as Twitter, For AR People wrote that Griffin's rejection of the first version of the proposed ballot title and popular name for the proposed amendment "is not surprising."

On June 24, 2022, then-Arkansas Attorney General Leslie Rutledge implemented a 2019 state law that bans abortions in Arkansas except to save the life of the mother in a medical emergency, after the U.S. Supreme Court overturned the 1973 landmark ruling that legalized abortion across the country.

[DOCUMENT: Read AG opinion on abortion amendment » arkansasonline.com/1129agopinion/]

Rutledge, a Republican who is now lieutenant governor, certified the U.S. Supreme Court overturned the 1973 Roe v. Wade ruling, in accordance with Act 180 of 2019. That in turn certified Arkansas' trigger law on abortion.

The GOP-dominated Legislature and then-Republican Gov. Asa Hutchinson enacted Act 180 in the 2019 regular session. Act 180, sponsored by then-Sen. Jason Rapert, R-Conway, is called the Arkansas Human Life Protection Act.

Under Section 1 of the Arkansans against Limited Government's proposed constitutional amendment, the government of the state of Arkansas, its officers or its political subdivisions "shall not prohibit, penalize, delay or restrict access to abortion within 18 weeks of conception, or in cases of rape, incest, in the event of a fatal fetal anomaly, or when abortion is needed to protect the pregnant female's life or health."

"Except for the circumstances enumerated in Section 1, the Arkansas General Assembly may prohibit or restrict access to abortion only when it establishes a compelling government interest achieved by the least restrictive means," under the proposal.

Griffin said Section 1 of the proposed constitutional amendment contains at least two issues that prevent him from ensuring the ballot title is not misleading.

One of the issues is that this section may be read in two different ways depending on how the phrase "access to abortion" is being used, he said.

"[On] the one hand, you could intend the phrase 'access to' to modify the word 'restrict,' but not the other items in the list. If that were your intent, the provision would prevent government action that would (1) prohibit abortion, (2) penalize abortion, (3) delay abortion, or (4) restrict access to abortion," Griffin said.

"On the other hand, you might intend the phrase 'access to abortion' to modify the entire list. If that were your intent, then the provision would prevent government action that would (1) prohibit access to abortion, (2) penalize access to abortion, (3) delay access to abortion, (4) or restrict access to abortion," he said. "But based on the other provisions in your proposal, it seems your intent is to prevent any government action that regulates abortion itself (with the exception of certain conditions in section 2 of your proposal. ... Is your intent to limit government action regarding abortion itself or regarding access to abortion? Under the Arkansas Supreme Court's caselaw, the ballot title would need to describe the nature of the restriction you intend to propose. Because of this lack of clarity, I am unable to say that your ballot title is not misleading."

Another issue in Section 1 is that the last clause refers to "the pregnant female's life or health," but does not define what is meant by health, he said.

"Is the term intended to cover physical health only or also mental health? If the term is limited to physical health, is that intended to be restricted to emergent medical conditions? Or does the term also extend to pregnancies that increase the risk of certain medical complications? Answers to these questions would almost certainly give voters 'serious ground for reflection.' Therefore, the ballot title would need to inform the potential petitioner or voter about these matters," Griffin said. "Because the text of your proposed measure is unclear on these matters, I cannot ensure your ballot title is a fair summary."

Among other things, Griffin said the proposed popular name "is tinged with partisan coloring and misleading because your proposal is solely related to abortion, not 'reproductive healthcare' generally.

"Therefore, in the future, if your propos[ed] measure were at the stage where it could be certified, I would have to substitute and certify a different popular name," he said. "I am flagging this for you now so you can provide an alternative if you would like."

Griffin also said, "You have made no attempt to describe your proposal's effect on existing constitutional law."

"For example, you make no effort to articulate how your proposal would relate to Amendment 68 to our constitution," he wrote in his letter to Nichols. "It seems plausible that even if your proposal were enacted in its current form, portions of Amendment 68 would remain. Since the Arkansas Supreme Court has declared that voters are entitled to some information on how the proposed measure would change current law, some such information would need to be provided."

Amendment 68 of the Arkansas Constitution, enacted in 1988, states that Arkansas policy "is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution."

Griffin said Section 1 of the proposed constitutional amendment prohibits government action that would 'prohibit, penalize, delay or restrict access to abortion within 18 weeks of conception," and this timeframe is keyed to fetal age, which begins at conception.

"But most court cases, medical providers, and most citizens count the weeks of pregnancy using gestational age, which begins from the date of the woman's last menstrual cycle, not from the date of conception," he wrote in his letter to Nichols.

"When counting from the more standard starting point, the reference to '18 weeks' is closer to '20 weeks,' " Griffin said. "This difference in timing could be misleading to voters and would certainly give them serious ground for reflection. This is not a basis to reject your proposal as misleading. But if your proposal were at the stage where it could be certified, I would have to substitute language in your ballot title to flag for all voters that the timeframe for government regulation would begin at 20 weeks gestational age."

In a post on X, Rapert wrote Tuesday: "Thank you @AGTimGriffin for ensuring ballot proposals are truthful and not misleading."

Regarding the Arkansans for Limited Government committee's proposed constitutional amendment, Alexa Henning, a spokesperson for Republican Gov. Sarah Huckabee Sanders, said Monday in a written statement, "The Left wants the government to play doctor when it comes to gender science experiments on kids and vaccine mandates but apparently draws the line when government prevents the taking of an innocent human life."

"That's complete hypocrisy -- and disproves their whole claim to stand for 'limited government,'" Henning said. "Governor Sanders is proud that Arkansas is the most pro-life state in the country and intends to keep it that way."

The Arkansans for Limited Government ballot committee responded Monday in a written statement, "Unfortunately, this rhetoric is what happens when we polarize a personal issue like this. We trust Arkansans to know what's best for themselves and their families. The government doesn't need to be involved."

In the regular session earlier this year, the Legislature voted to refer to voters in the 2024 general election a proposed constitutional amendment intended to allow state lottery proceeds to fund or provide scholarships or grants to Arkansans enrolled in vocational-technical schools and technical institutes. House Joint Resolution 1006 by Rep. Robin Lundstrum, R-Elm Springs, is the proposed constitutional amendment.

Amendment 87 to the Arkansas Constitution, approved by voters in 2008, limits lottery-funded scholarships and grants to citizens of the state enrolled in "public and private non-profit two-year and four-year colleges and universities located within the state that are certified according to criteria established by the General Assembly."

Under HJR 1006, the Arkansas Constitution would be changed to allow lottery-funded scholarships and grants to citizens of the state enrolled in a public or private nonprofit two-year or four-year college or university, a public or private vocational-technical school, or a public or private technical institute.

In the regular session this year, the Legislature opted to refer only one proposed constitutional amendment to voters in the 2024 general election, after voters in November 2022 rejected the three proposed constitutional amendments that the Legislature in 2021 referred to voters.