As promised, a federal lawsuit was filed today to invalidate the abortion ban approved by the Arkansas legislature.
The law takes effect July 28. It was passed by overwhelming majorities and signed by Governor Hutchinson despite his acknowledgment that it is unconstitutional under court precedent of almost a half-century. There’s time for a federal judge to enjoin the legislation — intentionally at odds with the U.S. Supreme Court precedent that prohibits state abortion bans — while it winds its way through the courts. Arkansas hopes the new conservative Supreme Court majority, which includes dedicated abortion opponents will not only overturn Roe v. Wade but open the door to state abortion bans. Legal experts have differences of opinion on that.
The ACLU and ACLU of Arkansas are working with the plaintiffs, Planned Parenthood and Little Rock Family Planning, the last two providers of abortion in Arkansas, and Dr. Janet Cathey, who provides abortions at Little Rock Family Planning. They are plaintiffs for themselves and patients. Planned Parenthood provides only pharmaceutical abortions. Little Rock Family Planning also provides medical abortions.
Defendants are those who’d be expected to enforce the law — the Pulaski prosecuting attorney and directors and members of the state Medical Board and state Board of Health.
The state law prohibits all abortions at any stage except to save a mother’s life in a “medical emergency.”
Arkansas has previously had a ban on abortions after six weeks of pregnancy struck down. A case in Mississippi banning abortions at 15 weeks of pregnancy, about two months before the date of viability of a fetus, is already underway in the courts. Arkansas has lost previous decisions on abortion-limiting laws at the 8th Circuit Court of Appeals, which has honored Supreme Court precedent though its conservative membership is clearly itching to advance anti-abortion law given leeway by the Supreme Court.
The ACLU release on the lawsuit said the law imposes stiff penalties on those who provide abortion (up to 10 years in prison and a $100,000 fine and loss of medical license), no matter the reason. This could even include completion of a miscarriage. It recounts other anti-choice efforts in Arkansas — to ban abortion at various points in pregnancy, ban the standard method of care after about 14 weeks of pregnancy, ban abortion based on a patient’s reasons, restrict qualified health providers from providing abortion care, and impose extremely burdensome and medically unnecessary requirements on abortion clinics
in an effort to force them to close.
The 2021 legislature passed 20 anti-abortion laws, part of a national effort in more than 500 pieces of state legislation. The release said that tied Louisiana for most restrictions in a single year. It also contends the bans particularly harm the ost vulnerable — people of color, immigrants, rural people and poor people. If abortion is outlawed in Arkansas, those with many may go elsewhere, those without will turn as they have historically to unsafe alternatives.
The release offers comments from participants in the suit:
“This law clearly violates the Constitution and nearly five decades of binding Supreme Court precedent that protects the right to access abortion. Arkansas’ anti-abortion politicians know that Roe v. Wade is still the law of the land, but they passed this abortion ban anyway, which triggers a direct challenge to Roe,” said Meagan Burrows, staff attorney at the ACLU Reproductive Freedom Project. “We are not going to stand by while Arkansas attempts to deny people their constitutional right to abortion care. Abortion remains legal in all 50 states, and we’ll see the state of Arkansas in court to make sure it stays that way.”
“This law is plainly unconstitutional, but that hasn’t stopped Arkansas politicians from continuing their relentless campaign against abortion access,” said Holly Dickson, ACLU of Arkansas executive director. “By outlawing abortion and criminalizing doctors, this law would completely block Arkansans from care and put politicians in charge of our most deeply personal decisions. As long as Arkansas politicians keep trampling on people’s fundamental rights, we’ll continue to challenge these laws in court, in the Capitol, and in communities across the state.”
“During what’s been the worst state legislative session for proposed abortion restrictions since Roe was decided, Planned Parenthood stands ready to fight back against unconstitutional laws that are designed to strip people’s access to essential health care,” said Alexis McGill Johnson, president and CEO, Planned Parenthood Federation of America. “We will never stop working to protect our patients’ access to care — including abortion — in Arkansas and across the country. Our patients deserve better from their lawmakers, who are wasting time passing harmful, cruel laws. Arkansas, we’ll see you in court.”
“Health outcomes in Arkansas are among the worst in the nation. Yet under the ‘leadership’ of anti-abortion politicians, Arkansas continues to focus on banning abortion, rather than addressing the state’s high rates of teen pregnancies, infant and maternal mortality, and sexually transmitted infections and diseases. While ignoring these public health crises, they’re creating more barriers to essential health care,” said Brandon Hill, PhD, president and CEO of Planned Parenthood Great Plains, a plaintiff in the case and one of only two abortion clinics providing care in the state. This law is about grabbing headlines. As Arkansas’s politicians scramble to climb the political ladder, they create an even greater disconnect between
themselves and the people they serve.”
“Year after year, the Arkansas legislature has passed abortion restrictions and bans aimed at making it more difficult for us to provide, and for our patients to access, abortion. This ban is just the latest and clearest example of what the state has been trying to do for years: stop our patients from accessing vital reproductive health care,” said Lori Williams, clinical director at Little Rock Family Planning Services, a plaintiff in the case and one of only two abortion clinics providing care in the state. “Abortion is health care—we know, because we provide it every day. Little Rock Family Planning is proud to be part of this lawsuit to fight on behalf of our physicians, our patients, and our community.”
Attorney General Leslie Rutledge, who’s unsuccessfully defended other unconstitutional laws, will issue a statement about how proud she is to defend the latest. Governor Hutchinson, who knows better, will say he expected the lawsuit. Remember this the next time somebody like the New York Times tries to position him as a voice of moderation. Knowingly flouting the Constitution that he swore to uphold is moderation?
It notes, in response to a familiar legislative talking point about women’s health, that abortion is safer than childbirth and that women have many reasons for seeking it, including health concerns. The law includes no exceptions for rape: Thus a woman raped by her father or other family member is compelled to carry the pregnancy to term. There’s no allowance for fetal anomalies. Said the suit:
Ultimately, the decision to terminate a pregnancy is motivated by a complex constellation of diverse, interrelated, and deeply personal factors that are closely tied to each individual person’s values, culture and religion, health and reproductive history, family situation and support system, educational or career goals, and resources and financial stability.
But the law would ban all abortions in virtually every circumstance. This will disproportionately harm the most vulnerable people, the suit said in seeking to enjoin enforcement of the law for violating a woman’s right to liberty and privacy.
The suit seeks attorney fees.