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. On March 9, 2021, the Governor Asa Hutchinson signed into law a bill that outlawed all abortions, with no exception for the termination of pregnancies due to rape or incest, save those performed to save the life of the mother in a medical emergency; this law was designed to set up legal challenges to the U.S. Supreme Court precedent of Roe v. Wade and came two years after the governor had signed a “trigger law” to go in effect should the Supreme Court ever reverse itself on Roe. On June 24, 2022, the U.S. Supreme Court overturned its own precedent in Roe v. Wade, thus immediately making abortion illegal, due to laws at the state level, in thirteen states, including Arkansas.

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. Some of this was in response to the experience of physicians handling patients suffering or dying from attempted abortions. For example, in 1956, two physicians at the University of Arkansas Medical School published in the journal Obstetrics & Gynecology a paper, “Lysol-Induced Criminal Abortion,” in which they recounted the growing use of the cleaning agent Lysol for purposes of abortion. 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. By 2019, abortions using medication were provided at Planned Parenthood clinics in Little Rock and Fayetteville; however, the Fayetteville clinic was closed later that year after struggling to find a new location. 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; not only do many experts find such advice to be erroneous and scientifically unsound, but, as revealed in the January 2020 issue of Obstetrics and Gynecology, an attempted study into the efficacy of so-called “abortion reversal” treatments had to be halted almost immediately due to several study participants experiencing severe hemorrhaging.

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, and the U.S. Supreme Court, on May 29, 2018, rejected a challenge to the law. On July 2, 2018, Judge Baker once again blocked the law with a modified injunction. In November 2018, Planned Parenthood asked that the case be dismissed after announcing that it was able to contract with a physician who has hospital admitting privileges, one of the requirements of Act 577 of 2015.

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. Critics claimed that this was 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 (with no exceptions for rape, so that a woman could be forced into obtaining input from the man who raped her). Arkansas’s attorney general announced planned to appeal Baker’s injunction to the Eighth Circuit Court of Appeals, which dissolved Baker’s injunction in 2020. On August 7, 2020, the Eighth Circuit U.S. Court of Appeals vacated her decision in Hopkins v. Jegley. This decision followed a U.S. Supreme Court decision earlier in the year, June Medical v. Russo, in which Chief Justice John Roberts, despite siding with the majority to overturn a Louisiana abortion restriction, penned a separate opinion giving state and federal governments wider latitude in writing laws restricting abortion. The Eighth Circuit remanded the decision for reconsideration in light of the U.S. Supreme Court case, but on December 22, 2020, Judge Baker issued a temporary restraining order preventing the laws from taking effect.

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.

On February 19, 2019, Governor Hutchinson signed a “trigger” bill that would make abortion automatically illegal in Arkansas should the U.S. Supreme Court ever overturn Roe v. Wade. On March 18, 2019, he signed into law a bill restricting abortion to the first eighteen weeks of pregnancy; the following month, he signed into law a bill requiring women to wait seventy-two hours before having an abortion. On July 23, Judge Baker temporarily blocked three Arkansas laws: the law restricting abortion to the first eighteen weeks of pregnancy, the law requiring doctors performing abortions to be board-certified or board-eligible in obstetrics or gynecology, and the law prohibiting doctors from performing abortions if the reason behind it is a diagnosis of Down syndrome in the fetus. The Eighth Circuit U.S. Court of Appeals, in 2021, upheld the injunction preventing two of these laws from going into effect, but in 2020, after the overturning of Roe (and subsequent outlawing of abortion in Arkansas), the U.S. Supreme Court vacated the order blocking the state’s ban on abortions based upon a diagnosis of Down syndrome.

On March 3, 2021, the Arkansas General Assembly passed a bill that would ban nearly all abortions in the state, making no exceptions for rape or incest. Six days later, Gov. Hutchinson signed the bill into law “because of overwhelming legislative support and my sincere and long-held pro-life convictions,” adding that “it is the intent of the legislation to set the stage for the Supreme Court overturning current case law.” Other abortion restrictions that became law included limitations on medication abortions, including a provision that would require doctors to elucidate alleged risks; requirements that doctors inform their patients falsely about the potential to reverse the medication abortion procedure; mandates that an abortion provider to report a rape to law enforcement if a patient specified rape as the reason for her decision to procure an abortion; a requirement that a doctor perform an ultrasound and show it to the patient prior to an abortion; the implementation of a three-day waiting period after the first visit before a woman may receive medication to induce a miscarriage and a lecture on the complications of such a procedure; and several more. All total, the legislature and governor implemented twenty different restrictions on abortion spread out across ten different laws: Acts 90, 309, 462, 498, 560, 561, 562, 740, 787, 949.

On July 20, 2021, U.S. District Judge Kristine Baker temporarily blocked the implementation of Act 309, the state’s near total ban on abortions, while hearing a lawsuit challenging the constitutionality of the ban. However, the U.S. Supreme Court’s June 2022 ruling in Dobbs v. Jackson Women’s Health Organization overturned the precedent of Roe v. Wade, thus permitting states once again to ban abortion, and triggering state laws making the procedure illegal.

Shortly after Attorney General Leslie Rutledge certified the state’s ban on abortion, two-time Oscar-nominated actor Michael Shannon relocated the production of his directorial debut movie, Eric LaRue, which was set to begin filming in Arkansas, to North Carolina in protest. In the first week of July, the CVS Health pharmacy chain began a policy of asking pharmacists in select states, including Arkansas, to verify that prescriptions they filled will not be used to end a pregnancy, even if the drugs prescribed are regularly used to treat other conditions. However, some major companies added abortions to the procedures covered by their healthcare plans, including Walmart, which announced this change in August 2022. Little Rock Family Planning Services, the last clinic in Arkansas to offer surgical abortions, announced its official closure on September 1, 2022.

The outlawing of abortion in Arkansas did not end the pattern of legislators offering increasingly punitive bills on the matter. On January 19, 2023, Rep. Richard Womack of Arkadelphia (Clark County) filed HB1174 to make it a crime for a person even to advise another person about the means by which an abortion might be obtained. In addition, the bill states that “all unborn children should be protected under the state homicide laws as all other persons,” meaning that performing or obtaining an abortion would be legally equivalent to murder and punished accordingly, perhaps even with the death penalty. Although this bill did not advance, another, SB138, which would repeal the state law allowing the licensure of facilities where an abortion might be performed, and which was sponsored by Sen. Missy Irvin of Mountain View (Stone County), did progress and was signed into law (Act 162) by Gov. Sarah Huckabee Sanders on February 27, 2023.  HB1006, sponsored by Rep. Aaron Pilkington of Knoxville (Johnson County), would have required that companies which cover the costs of their employees seeking abortion care in other states to offer twelve weeks of paid maternity leave, too, but it failed to pass out of Senate committee after passing the House. However, SB307 by Sen. Ken Hammer of Benton (Saline County) was signed into law (Act 310) on March 16, 2023; it requires the secretary of state to arrange for the placement of a monument on the grounds of the Arkansas State Capitol dedicated to so-called “unborn children” from the time when abortion was legal in the state. On March 22, 2023, Rep. Wayne Long of Bradford (White County) filed HB1686 to “prohibit chemical abortions,” apparently a reference to abortion via medication; it had not advanced out of committee by the time the session ended. The following day, Sen. Ben Gilmore of Crossett (Ashley County) filed SB463, modifying the Abortion-Inducing Drugs Safety Act of 2015 to strip the medical license of a healthcare provider who prescribes potentially abortion-inducing drags for off-label uses; it passed both chambers of the legislature and was signed into law as Act 702. On March 23, 2023, Sen. Jim Dotson of Bentonville (Benton County) filed SB466 to prohibit public schools or open-enrollment charter schools from knowingly entering “into any type of transaction with an individual or entity that” offers or provides abortion referrals; state law already made it illegal for such schools to enter into transactions with providers of abortion. This bill also passed both chambers and was signed into law as Act 653. On March 29, 2023, Rep. Pilkington filed HB1786, which would require that those abortions performed to save the life of a pregnant woman be performed exclusively in a hospital or emergency room; it passed both chambers and was signed into law as Act 848.

That same session, Rep. Nicole Clowney, a Democrat of Fayetteville, filed HB1301, which would have amended the law to allow for the abortion “in the case of a fetal abnormality incompatible with life,” but Republicans voted down the bill in committee. Rep. Denise Garner, also a Democrat of Fayetteville, filed HB1684 to allow for abortion when necessary to protect the health of the mother, while Rep. Ashley Hudson of Little Rock filed HB1670, which would have made an exception to the abortion ban in the case of incest; both bills failed to advance from committee.

In July 2023, Attorney General Tim Griffin joined eighteen other state attorneys general in opposing a proposed rule from the U.S. Department of Health and Human Services that would prohibit the disclosure of personal health information in cases where someone from a state that outlaws abortion obtains such medical care in a state where it is permitted. On November 9, 2023, a ballot committee, Arkansans for Limited Government, submitted to Attorney General Griffin a the name and ballot title for a proposed constitutional amendment that would bar the state from restricting access to abortion within eighteen weeks following conception, in addition to protecting the life or health of a woman and cases of rape, incest, and fatal fetal anomalies; on November 28, 2023, Griffin rejected the submission. On December 18, 2023, Arkansans for Limited Government filed an amended draft, but Griffin rejected the revised draft on January 4, 2024, prompting the submission of a third draft on January 8, 2024. Griffin certified this ballot language on January 23, 2024, opening the way for Arkansans for Limited Government to begin collecting signatures.

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———. “Amendment’s Text Revisions Rejected Again.” Arkansas Democrat-Gazette, January 5, 2024, pp. 1A, 6A. Online at https://www.arkansasonline.com/news/2024/jan/04/abortion-amendment-language-again-rejected-by/ (accessed January 5, 2024).

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Melanie Welch
Mayflower, Arkansas