Arkansas: ‘Trendsetter’ for abortion restrictions

The state has passed extremely severe restrictions in the past few years.

Arkansas Gov. Asa Hutchinson (R) waves before speaking at an anti-abortion rally at the Arkansas state Capitol in Little Rock, Ark., Jan. 18, 2015. CREDIT: AP/Danny Johnston
Arkansas Gov. Asa Hutchinson (R) waves before speaking at an anti-abortion rally at the Arkansas state Capitol in Little Rock, Ark., Jan. 18, 2015. CREDIT: AP/Danny Johnston

The ACLU and other groups will have a hearing for a federal lawsuit that challenges strict abortion laws in Arkansas on Thursday.

The laws, which mainly concern disposal of fetal tissue, go into effect later in July and early next year. The ACLU, ACLU of Arkansas, and the Center for Reproductive Rights said the laws are “tantamount to outright abortion bans.”

This includes a law barring dilation and evacuation (D&E), the only remaining legal procedure for abortions in the second trimester that doctors consider safe, and requiring women to notify and get consent from sexual partners or family members on the method of fetal tissue disposal before the procedure. Two other laws ensure that doctors keep more medical records as well as fetal tissue after abortions on minors so that police have it as evidence, the idea being that the minor could have been raped. But pro-choice advocates argue that these extra steps seriously harm a woman’s privacy and even effectively prevent them from getting an abortion.

“That sets up a whole dynamic around knowledge of the abortion, and that is inappropriate,” said Elizabeth Nash, senior state issues manager at the Guttmacher Institute. “Women get to decide who gets to know about any piece of their reproductive health care, be it pregnancy, abortion, or breast cancer, so what this does is take that decision-making away from a woman.”

Rather than pull back from abortion restrictions after a 2016 U.S. Supreme Court decision that rejected an Arkansas abortion law, conservatives in the state become even more dogged in their pursuit to pass restrictions. Nash said Republican lawmakers are determined to close clinics and are trying every legislative path available. In this way, Arkansas has become a state conservatives look to for new, innovative ways to restrict abortion access.

“Within four years, they have completely reshaped the legal landscape for abortion in the state. And in that sense, that moved beyond some of the restrictions people might think of immediately, such as waiting restrictions,” Nash said. “They are looking at being trendsetters in a way by adopting restrictions such as disposing of fetal tissue or abortion methods used after the first 12 weeks of pregnancy.”

In 2016, several states passed fetal tissue disposal laws and laws outlawing D&E, according to a Guttmacher Institute report released in January. Arizona, Louisiana, Indiana, Idaho, Michigan, South Dakota, Florida, and Tennessee enacted measures that limited fetal tissue donation. All those states, with the exception of Michigan, also banned research that involves tissue from an abortion. Indiana and Louisiana passed laws requiring that tissue be cremated or buried. Texas also adopted these requirements through regulations. (Currently, all of the cremation or burial requirements are going through litigation and are not in effect.)

But Arkansas’ approach is still fairly unique, because it requires consent from partners. A clause in the law on D&E allows a husband to sue a woman for getting an abortion, CNN reported. There is no exemption in that law for rape or incest.

“Arkansas has become one of those states that other states look to similarly the way they look to say, Oklahoma or Texas. It has really put its own stamp on abortion restrictions, especially this year,” Nash said.

Arkansas went from being a fairly moderate state on abortion restrictions to being one of the states with the strictest laws in the country. Now that Arkansas’ legislature is controlled by conservatives and a governor that is hostile to abortion rights, the political climate is “very welcoming to abortion restrictions,” Nash said.

“It was like there was there was this pent-up energy over abortion restrictions because the legislature had been very conservative before the change in power,” Nash said. “But the restrictions never gained traction and it was like the floodgates opened.”