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Abortion

Abortion is defined as either a spontaneous early ending of a pregnancy (a.k.a. miscarriage) or an induced early ending of a pregnancy. In Arkansas, amidst changes in abortion’s legal status over the years, women have sought abortions for various reasons, including maternal and fetal health problems, financial concerns, and the stigma of single pregnancy.

Early nineteenth-century Americans confirmed pregnancy and the existence of a human life using “quickening,” a term that referred to a woman feeling fetal movements by pregnancy’s fourth or fifth month. Under the American interpretation of the British common law, abortion’s legality depended on whether it occurred before or after quickening. Before quickening, women could legally end their pregnancies using herbs or other methods. Beginning in 1821, the first wave of American abortion legislation relied upon quickening and sought to regulate potentially deadly substances used as abortifacients. Passed in 1837, Arkansas’s first abortion law stated that with regard to women “pregnant with quick child,” except for lifesaving induced abortion, anyone who administered drugs or instruments “with intent to destroy such child” would be “deemed guilty of manslaughter.” Continued reliance upon abortion’s common law interpretation meant that these early abortion laws were rarely enforced.

In the 1870s, physicians’ drive to professionalize, combined with reaction against feminism and immigration, resulted in the passage of stronger abortion laws. Physicians claimed that only they possessed the knowledge to determine the need for abortion and attacked “quickening” as an indication of life. In his 1874 presidential address to the Arkansas State Medical Association, Dr. Elias R. Duval called for a new state abortion law. Duval insisted that “the idea that there is no life prior to quickening” was false and proclaimed that “any operation or medicine given [to produce abortion] is...willful murder.” Passed in 1875, Arkansas’s stronger abortion law made it “unlawful for any one to administer or prescribe any...drugs to any woman with child, with intent to produce an abortion, or premature delivery of any foetus before the period of quickening, or to produce or attempt to produce an abortion by any other means.” Excepting physicians who performed lifesaving abortions, violators of the law would be punished with a $1,000 fine and imprisonment of up to five years. Knowingly advertising abortifacients carried a $1,000 fine and a maximum twelve-month jail term. In 1882, Arkansas’s first medical malpractice case involved a woman’s death from an abortion.

Despite the law, some women continued to risk infection or death by seeking illegal abortions, whether self-induced or, if they could afford it, obtained from abortionists. In McClure v. State (1948), the Arkansas Supreme Court heard an appeal from Dr. G. R. McClure of Paragould (Greene County), who was convicted of aiding the formerly married, pregnant Allene Janes in obtaining an illegal abortion. Janes obtained her abortion from a physician in Blytheville (Mississippi County) but died at the Paragould hospital as a result of the procedure. The state Supreme Court upheld McClure’s conviction.

Under the 1875 law, some women obtained legal, therapeutic abortions—abortions physicians determined were medically necessary. In the 1950s, hospitals established committees of physicians to regulate therapeutic abortion decisions. The Arkansas Medical School—now the University of Arkansas for Medical Sciences (UAMS)—in Little Rock (Pulaski County) most likely established such a committee. Physician-inspired legal reform of abortion that began nationally in the 1950s affected Arkansas. In 1959, legal reformers of the American Law Institute (ALI) produced a model abortion law that allowed therapeutic abortions in cases of endangerment to life or health, rape, incest, or fetal deformity.

By the 1960s, some began to question the 1875 law. In 1961, Dr. Fred O. Henker, a professor of psychiatry at UAMS, questioned the legality of abortions performed for psychiatric reasons under the state’s law, observing that a pregnant woman’s “threat...to harm herself or the unborn child because of psychiatric conditions” probably did not legally justify abortion. In 1968, the Arkansas Legislative Council (ALC) began revising the 1875 law. That same year, the health committee of Governor Winthrop Rockefeller’s Commission on the Status of Women (CSW) called for state abortion law reform, but it did not prompt the ALC’s action. Passed by the state legislature in 1969 and based upon ALC’s model, Act 61 specified that, although they would not be required to perform abortions or penalized for refusing to do so, doctors could legally perform abortions in cases of life or health endangerment, rape, incest, or fetal deformity. Act 61 required a pregnant woman’s written consent for an abortion, a four-month residency in the state, and reporting to the authorities of an alleged rape or case of incest. The abortion-performing physician and two other doctors, who were not to be engaged in joint private practice, had to provide the hospital with written justification for the procedure.

Although the accessibility and affordability of legal abortions improved little with the 1969 revisions, the Arkansas Gazette reported in 1973 that 793 legal abortions were performed in the state in 1972, mostly on young, white, single women. In the 1960s and 1970s, abortion reform did not satisfy feminists who claimed that access to legal abortion was a reproductive right. In 1971, a lawyer and legal task force director with Governor Dale Bumpers’s CSW indicated that the 1969 revisions were “inadequate to reach the majority of cases.” In January 1973, the U.S. Supreme Court’s decision in Roe v. Wade legalized first-trimester abortion, invalidating both remaining nineteenth-century and revised laws. The Arkansas Gazette noted that Roe “apparently [would]...void in part the application of the [1969] law.” Bumpers’s CSW chair Diane Blair commented that “public opinion polls have shown that this is a decision for a woman or a woman and her husband to make not the states.” Arkansas Catholic leaders immediately denounced Roe, and the Arkansas Baptist Newsmagazine claimed that it “institut[ed] abortion on demand.”

The number of abortions in Arkansas, still mostly obtained by white, single women, rose from 1,694 in 1974 to 6,059 in 1979, although the Hyde Amendment of 1976 banned Medicaid-funded abortions except in certain cases. In the mid-1970s, abortion opponents formed Arkansas Right to Life, a state affiliate of the national antiabortion organization. Describing Little Rock’s antiabortion “March for Life” event in 1979, the Arkansas Gazette noted that “counter demonstrators awaited the ‘prolife’ march on the Capitol grounds holding...signs with slogans such as ‘My body, my choice,’” adding that “there were no incidents between the two groups.”

By the 1980s, many antiabortion conservative Christians had joined other New Right conservatives in the Republican Party. In 1980, many conservative Christians supported Republican Frank White in his successful bid for Arkansas governor, and, in the presidential election, Arkansas’s Electoral College votes went to antiabortion Republican Ronald Reagan. From the 1980s into the twenty-first century, Arkansas, like many other states, has enacted restrictive laws that make obtaining an abortion difficult. Added in 1988, state constitutional Amendment 68 proclaims that the state’s “policy is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.” Physicians providing abortions are required to pay a prohibitively high fee to obtain and renew “abortion facility licenses,” obtain parental consent for minors’ abortions, and inform women of their right to view the ultrasound fetal image and, for fetuses of twenty weeks or more gestation, state-provided information on fetal pain. By law, a twenty-four-hour “waiting period” must occur between counseling—which is designed to discourage abortion—and having an abortion. So-called partial-birth abortions are prohibited. The state health department cannot use state funds to provide abortion referrals or services in public schools.

The legal restrictions and antiabortion violence discouraged many from providing abortions, and, by 2008, ninety-seven percent of Arkansas counties had no abortion provider. The number of abortions in Arkansas dropped from 5,540 in 2000 to 4,710 in 2005 but rose slightly to 4,890 in 2008. Dr. William F. Harrison, an obstetrician, continued to provide abortions at his Women’s Clinic in Fayetteville (Washington County) from 1974 until his death in 2010.

In 2013, Arkansas passed a law, one of the nation’s most restrictive, banning abortions after twelve weeks of pregnancy except in cases of rape, incest, life endangerment, or fatal fetal deformity. In May 2013, a Republican federal judge issued a temporary injunction that prevented the law’s implementation until the resolution of a lawsuit brought by the Center for Reproductive Rights, the national American Civil Liberties Union (ACLU), and the Arkansas ACLU. In March 2014, the judge struck down the 2013 twelve-week abortion ban, but the portion of the law requiring a check for fetal heartbeat for women seeking an abortion, as well as notice to the woman when a heartbeat was detected, was left intact. The Eighth Circuit U.S. Court of Appeals affirmed the lower court ruling in May 2015, and in January 2016, the U.S. Supreme Court rejected the state’s appeal of this ruling.

Under the Affordable Care Act of 2010, in Arkansas, health insurance plans offered in the state exchange cannot offer abortion coverage, excepting only cases of life endangerment, rape, or incest. As of 2014, abortions using medication are provided at Planned Parenthood clinics in Little Rock and Fayetteville; Little Rock Family Planning Services is the only clinic continuing to provide surgical abortions in Arkansas.

In February 2015, Governor Asa Hutchinson signed into law a so-called “telemedicine abortion” ban that requires the physical presence of a physician when a woman takes abortion-inducing medication. The following month, the Arkansas General Assembly passed SB 569, which denies any state funding to Planned Parenthood or any social service agency that refers patients to abortion providers; this includes grants for programs not related to abortion, such as disease prevention programs. Also in the spring 2015 legislative session, the legislature passed a bill that mandates a forty-eight-hour waiting period for women seeking an abortion and a bill that requires doctors to give advice about a supposed abortion reversal that can be implemented during a chemical abortion (advice many experts find to be erroneous and scientifically unsound).

In March 2016, U.S. District Judge Kristine Baker of the Eastern District of Arkansas issued a preliminary injunction against the 2015 law that aimed at ending abortions by medication in Arkansas, holding that the requirements presented such an obstacle to women seeking early-stage abortions that they were unconstitutional; in July 2017, a three-judge panel of the Eighth U.S. Circuit Court of Appeals lifted the injunction against the law. On January 26, 2017, Gov. Hutchinson signed into law a bill banning the dilation and extraction procedure, a common second-trimester abortion procedure; similar laws have been put on hold in other states due to legal challenges. This law, Act 45, also allows the husband of a woman seeking an abortion to sue for “injunctive relief,” a court order stopping the procedure, even if his wife had become pregnant through spousal rape; he is also permitted to sue the physician for monetary damages, though he cannot win any settlement money in the case of criminal conduct against his wife. In March 2017, Gov. Hutchinson signed into law a “wrongful birth” bill that prevents lawyers from suing a doctor whose patient gives birth to a baby with a disability. Many see this as an anti-abortion measure, giving leeway to doctors to avoid properly informing patients about medical problems with a fetus, assuming that women who are given this kind of information will possibly choose abortion. Later that month, he also signed HB 1434, which requires doctors to ask patients if they know the sex of the fetus; if the patient acknowledges this, then the doctor is prevented from performing the abortion “until reasonable time and effort is spent to obtain the medical records of the pregnant woman,” ostensibly for purposes of allowing the doctor to ensure that the abortion sought is not related to the sex of the fetus.

In July 2017, Judge Baker stopped four anti-abortion laws passed by the Arkansas legislature earlier in the year that would have taken effect in 2017, including a requirement that medical records be obtained to determine whether a patient knows the sex of the fetus, a ban on second-trimester abortions, a requirement for girls under seventeen to have their parents notified of an abortion, and a mandate that doctors seek input of sexual partners and family members regarding how to dispose of fetal remains. Arkansas's attorney general announced plans to appeal Baker's injunction to the Eighth Circuit Court of Appeals.

Act 383 of 2017, which requires an immediate penalty for abortion clinics that are found to violate even minor requirements by the Health Department, took effect on August 1, 2017; a federal judge stated later in the month that consideration of the constitutionality of the law would receive priority status.

More than forty years after Roe, abortion remains legal but inaccessible for many women in Arkansas and across the country.

For additional information:
Arkansas Right to Life. http://www.artl.org/ (accessed April 8, 2015).

Center for Reproductive Rights. http://www.reproductiverights.org (accessed April 8, 2015).

Dougan, Michael B. “Dug Up from the Hitherto Dark, Unfathomed Recesses of Nature: Abortion and the Modernization of Arkansas Medicine.” In Contributions to Arkansas Medical History: History of Medicine Associates Research Award Papers, 1986–1987, edited by Edwina Walls Mann. Charlotte, NC: Delmar Print Co., 1990.

Guttmacher Institute. http://guttmacher.org (accessed April 8, 2015).

Little Rock Family Planning Services. http://www.lrfps.com/ (accessed April 8, 2015).

Miller, Brian Stanford. “Car Tags and Cubans: Bill Clinton, Frank White, and Arkansas’ Return to Conservatism.” PhD diss., University of Mississippi, 2006.

Mohr, James C. Abortion in America: The Origins and Evolution of National Policy. Oxford: Oxford University Press, 1978.

National Abortion and Reproductive Rights Action League. http://www.prochoiceamerica.org (accessed April 8, 2014).

Obituary of Dr. William F. Harrison. Arkansas Democrat-Gazette, September 26, 2010, p. 7B.

Peacock, Leslie Newell. “Putting the Fetus First.” Arkansas Times, June 22, 2011. Online at http://www.arktimes.com/arkansas/putting-the-fetus-first/Content?oid=1825590 (accessed April 8, 2015).

Planned Parenthood of the Heartland. http://plannedparenthood.org (accessed April 8, 2015).

Proceedings of the Medical Association of the State of Arkansas. 5th session. Little Rock: Little Rock Printing and Publishing Company, 1874.

Quay, Eugene. “Justifiable Abortion—Medical and Legal Foundations.” Georgetown Law Journal 49 (Spring 1961): 395–538.

Reagan, Leslie J. When Abortion Was a Crime: Women, Medicine and Law in the United States, 1867–1973. Berkeley: University of California Press, 1997.

Sneed, Mary Maynord. “Innocent Blood.” Arkansas Baptist Newsmagazine, February 22, 1973.

Welch, Melanie K. “Politics and Poverty: Women’s Reproductive Rights in Arkansas, 1942–1980.” PhD diss., Auburn University, 2009.

Woods, James M. Mission and Memory: A History of the Catholic Church in Arkansas. Little Rock: August House Publishers, 1993.

Melanie Welch
Mayflower, Arkansas

Last Updated 9/28/2017

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