Lawyers for the American Civil Liberties Union asked Judge Kristine Baker to grant an injunction against four laws passed this year by the General Assembly that would:
* Make abortion after 15 weeks riskier by outlawing what the medical profession considers the safest procedure, dilation and evacuation;
* Require doctors to inform local police when an abortion performed on a teenager age 14-16 absent any indication of abuse and that police create a record of the teenager’s abortion and be provided the fetal remains;
* Require abortion providers to ask women seeking an abortion if they know the sex of the fetus, and, if they do, obtain all of their previous obstetrical records to determine if they have a “history of aborting fetuses” of a certain sex, as the lawyer for the state said today in court.
* Require notification of a woman’s partner — or abuser — that she intends to have an abortion, ostensibly so they can agree on the disposition of the remains of the fetus.
All but the fetal remains bill will go into effect July 30 unless Baker grants an injunction.
The judge urged the ACLU lawyers for the plaintiff, Dr. Frederick Hopkins, and the state to complete their additional filings so she may make a ruling on injunctive relief in a timely fashion.
Act 45, which outlaws the second semester abortion procedure D&E, was sponsored by state Rep. Andy Mayberry and Sen. David Sanders; Mayberry was in court today. Nick Bronni, deputy solicitor general for the state, called the D&E procedure barbaric, “tearing a living unborn child to death from limb to limb,” and told the judge that the state was promoting the respect for life with the bill.
That would be the life of the fetus, not the mother, since D&E is regarded by medical professionals as the safest abortion procedure after 12 weeks gestation. The state argues that there are other ways to abort a fetus at that stage, suggesting in its briefs that an abortion provider could a) inject the chemical digoxin into the woman’s uterus to cause fetal demise; b) inject potassium chloride into the fetal heart or c) sever the umbilical cord. Bronni said that the law should not be enjoined merely because “Dr. Hopkins is unwilling to follow the law.”
ACLU attorney Talcott Camp noted that these procedures are not 100 percent effective, thus opening abortion providers to liability if the fetus is not dead when the fetus is evacuated, are more complicated and take more time. Most importantly, the pose a greater risk to the health of the woman than the D&E procedure: a misplaced shot of potassium chloride could send her into cardiac arrest, Camp noted. Such procedures are done only by doctors who work with high-risk pregnancies after years of special training.
Camp also noted that similar attempts to ban the D&E procedure have been struck down in courts in Kansas, Oklahoma and Alabama.
Act 733, from anti-“sex-selection” legislation sponsored by state Rep. Charlie Collins and Sen. Missy Irvin, would present abortion providers “insurmountable administrative hurdles” by requiring they obtain the obstetrical records — “the entire pregnancy history,” the law says — of a patient who desires an abortion and knows the sex of the fetus. Not only would the law allow the doctor to inquire into a woman’s motives for having an abortion, the records request would notify all who had handled her health records in the past that she was desiring an abortion.
“The bill assumes a woman might lie, and somehow a doctor might discern that” by plowing through records to “ferret out her undefined, nefarious reasoning,” Camp said, and that not only did it create an undue burden — who knows how long it would take to get the records before the abortion could proceed — the law was vague.
Bronni countered that the bill’s only effect would be to prohibit sex-selection and doctors would know how to interpret its language.
Talcott said she was “flummoxed” at the state’s argument that notification of an abuser was not an issue in the tissue disposal bill, now Act 603, the work of Rep. Kim Hammer and others. Bronni had said that rapists have no parental rights under Arkansas law; Talcott noted that he was referring to convicted rapists, not abusers who rarely would have come to trial before the window of time when the abused woman could abort a fetus. “It’s mystifying how this law could serve the state’s interest,” Talcott said.
Act 1018 requires abortion providers to report abortions and turn over fetal tissue to local law enforcement officers when the patient is aged 14, 15 or 16. State law now requires abortion providers to report abortions performed on children 13 and under.
Under state law, Camp said, children 14 and up may legally consent to sex if their partner is around the same age and not a person in authority over the child. The new law requires the reporting of an aborted pregnancy even if abuse is not suspected. The girl would be labeled a victim in local police records and the boy as a suspect, and tissue samples would be provided to police departments. The law is “stigmatizing and punitive,” Camp said.
After the hearing, a reporter told Arkansas ACLU Director Rita Sklar that she’d been told by some lawmakers that they didn’t remember how they voted on the bills or even what was in the bills.
“It is unfortunate,” Sklar said, “that legislators don’t remember how they voted on something so important to a person’s medical decisions. They should take those votes much more seriously. There are unintended consequences. They need to read carefully and understand the ramifications, and understand that [what’s in the bill] isn’t necessarily what they’re told by third parties.”