New state abortion laws challenged
Injunctions sought to stop measures from going into effect
Four laws passed this year by Arkansas legislators “could effectively end abortion care in the state for many women,” abortion-rights advocates said in filing a federal lawsuit Tuesday to challenge the new legislation.
Three of the challenged provisions will take effect in August unless a judge grants a request for a restraining order to halt their implementation until the lawsuit’s claims can be considered. The fourth provision is to take effect Jan. 1.
A second federal lawsuit, also filed Tuesday in Little Rock by Planned Parenthood and Little Rock Family Planning Services on behalf of patients and the clinics that provide abortions, challenges another Arkansas law it says targets abortion providers for unnecessary regulation.
“Arkansas politicians have passed laws that defy decency and reason just to make it difficult or impossible for a woman to get an abortion,” Rita Sklar, executive director
of the American Civil Liberties Union of Arkansas, said in announcing the lawsuits. “They’ve created burdensome bureaucratic hurdles that invade patient privacy.”
Nancy Northup, president and chief executive officer of the Center for Reproductive Rights in New York City, added: “From essentially banning abortion in the second trimester to violating women’s privacy, these measures represent a new low. The Supreme Court made clear one year ago … that politicians can’t stand between women and their constitutional rights. The Center for Reproductive Rights will continue to use the full force of the law to ensure those rights are protected and respected for all women.”
Talbot Camp, deputy director of the ACLU’s Reproductive Freedom Project, said: “Arkansas politicians have passed extreme abortion bans that put their political agenda ahead of women’s health. No more. We’re fighting back.”
Jerry Cox, president of the conservative, anti-abortion group Family Council, called the lawsuits “almost unbelievable.”
“The ACLU is challenging laws designed to do things like help protect underage girls and ensure doctors know a woman’s medical
history before performing an abortion,” he said.
The four legal provisions scheduled to go into effect in August or by the first of the year would, according to the lawsuit:
Ban a safe and medically proven abortion method, making abortion care unavailable to women as a pregnancy progresses.
Require notification of the woman’s partner or other family members and effectively allow them to block her abortion.
Create needless and burdensome requirements to report a young woman’s abortion to police in a way that invades her and her family’s medical privacy.
Force doctors to request a large amount of medical records without medical justification, burdening providers, violating patient-physician confidentiality and delaying or blocking women’s care.
The lawsuit challenging the laws was filed on behalf of Dr. Frederick Hopkins, a board-certified obstetrician-gynecologist who provides abortions at Little Rock Family Planning Services, the only provider of outpatient, second-trimester abortion services in Arkansas.
The suit names as defendants the Pulaski County prosecuting attorney, Larry Jegley, as the designated enforcer of the challenged provisions; and the chairman and members of the Arkansas State Medical Board, which are tasked with imposing licensing penalties under the new legal provisions.
The first challenged law, Act 45, previously known as
House Bill 1032, was titled the Arkansas Unborn Child Protection From Dismemberment Abortion Act. Sponsored by Rep. Andy Mayberry, R-Hensley, and signed into law by Republican Gov. Asa Hutchinson in January, it was the first anti-abortion legislation enacted during the 2017 legislative session — and it immediately prompted the ACLU to promise to sue.
It restricts the use of the dilation and evacuation procedure — which uses medical tools to remove the fetus from the womb — except to protect the life of the mother, creating a felony offense for violators.
The commonly used procedure was the only one used in 638 second-trimester abortions in Arkansas in 2015, according to the state Department of Health. It has also been called the safest method for second-trimester abortions by the American Congress of Obstetricians and Gynecologists.
The law also makes physicians who perform the dilation and evacuation procedure open to civil lawsuits from the patient, her spouse, her parents or legal guardian, or her current or former licensed health care provider, which has raised concerns that it sets a precedent for family members to intervene in a woman’s right to have an abortion.
At the time the law was passed, courts in four of six states with bans against “dismemberment abortion” had blocked the laws from going into effect.
The second legal provision being challenged is Act 733, or
what is known as the Medical Records Mandate, sponsored by Rep. Charlie Collins, R-Fayetteville. It would ban abortions that are sought based on the sex of the fetus.
The law would make it a Class A misdemeanor for any physician to perform an abortion for a woman who knows the fetus’ sex without first telling her that sex-selection abortions are illegal and then obtaining her medical records for her “entire pregnancy history” to see if she has a propensity for seeking sex-selective abortions.
Collins said Tuesday that the idea for the legislation developed out of a discussion he had years ago about women in China abandoning babies that weren’t considered the right sex. He said a participant in the discussion observed that doing so “wouldn’t be illegal in Arkansas,” and he decided then to make it illegal.
“As the world becomes more multicultural … this just clarifies what I think everybody would agree would be good behavior,” Collins said. He said he isn’t aware of anyone in Arkansas aborting a fetus or abandoning a child because it wasn’t the sex she wanted, but, “I think it’s more of a prophylactic effect for the future.”
The third legal provision targeted in the lawsuit is what is known as the Local Disclosure Mandate, or Act 1018, sponsored by Rep. Sonia Barker, R-Smackover.
It requires a physician who performs an abortion on anyone who is age 13 or younger to preserve the fetal tissue extracted during the procedure and to notify police in the area where the girl lives or face potential license revocation or other penalties.
The ACLU asserts that the law violates the girl’s privacy rights by disclosing her name to law enforcement officers.
The fourth target of the Hopkins lawsuit, which was randomly assigned to U.S. District Judge Kristine Baker, is what is known as the Tissue Disposal Mandate, or Act 603, which would force doctors to notify a woman’s family members about their right to participate in the disposition of tissue from her abortion or miscarriage.
The ACLU says the measure, the lead sponsor of which was Rep. Kim Hammer, R-Benton, a Baptist minister, “could effectively ban medication abortion by imposing impossible requirements on women and their health care providers when a woman completes her medication abortion outside of a doctor’s office.”
In addition to seeking a preliminary injunction to stop the laws from taking effect, and eventually a permanent injunction prohibiting their enforcement, the suit seeks a judge’s declaration that the four laws violate the 14th Amendment to the U.S. Constitution and the Patient Protection and Affordable Care Act of 2010.
Planned Parenthood’s separate lawsuit was transferred to Baker as well after the recusal of U.S. District Judge Billy Roy Wilson, who said he was out of town and unable to address the time-sensitive issues.
It names the state Health Department as a defendant and challenges Section 2 of Act 383 of 2017, which it says would violate the clinics and their patients by “singling them out for differential treatment, and impermissibly burdening access to abortion in Arkansas.”
The law, the lead sponsor of which was Rep. Robin Lundstrum, R-Elm Springs, would create more rules for clinics to adhere to and require the state Department of Health to immediately suspend a clinic’s license if the agency discovered a violation.
While Lundstrum has said the bill “cleans up antiquated language,” the clinics have said they already follow the laws and regulations, and that the bill is meant to imperil their existence.
The suit seeks a finding that the suspension and revocation provision of the law is unconstitutional and unenforceable.
Judd Deere, spokesman for Arkansas Attorney General Leslie Rutledge, issued a statement Tuesday saying Rutledge “will continue to wholeheartedly defend laws in Arkansas that are intended to protect both mothers and their babies.”
The ACLU and the Center for Reproductive Rights said in their joint news release that: “Many of these measures could impose significant, if not indefinite, delays on a woman’s ability to access abortion and miscarriage care. In short, these laws could effectively end abortion care in the state for many women.”