ANTI-CHOICE LAWS
Abortion Bans
NEAR-TOTAL
Arkansas has not repealed its pre-Roe abortion ban, which is unconstitutional and unenforceable.
The ban provides that any person who administers or prescribes any medication with the intent to induce an abortion or employs other means to induce an abortion will be fined up to $1000 and imprisoned for one to five years. Ark. Code Ann. §5-61-102 (Enacted 1969; Last Amended 1999). A court held that this ban is unconstitutional as applied to physicians and issued a permanent injunction prohibiting its enforcement against physicians. Smith v. Bentley, 493 F. Supp. 916 (W.D. Ark. 1980).
AFTER 12 WEEKS
Arkansas outlaws a safe second-trimester abortion procedure with no exception to protect a woman's health. Ark. Code Ann. §§20-16-1201 to -1206 (Enacted 2009).
Arkansas' law makes the provision of certain previability, second-trimester abortion procedures a felony, unless necessary to preserve the woman's life. Physicians in violation of the law would also be subject to disciplinary action by the State Medical Board, including fines from $25,000 to $100,000 or more, license suspension for up to one year, or license revocation. In addition, the law allows the parents of the pregnant woman, if she is under age 18, or the husband to bring a civil suit for damages against the physician. Ark. Code Ann. §§20-16-1201 to -1206 (Enacted 2009).
A court held that an earlier version of Arkansas' ban was unconstitutionally overbroad and issued a permanent injunction prohibiting its enforcement. Little Rock Family Planning Servs., P.A. v. Jegley, 192 F.3d 794 (8th Cir. 1999). However, in 2009, the Arkansas legislature enacted an amended, enforceable version of the ban. Ark. Code Ann. §§20-16-1201 to -1206 (Enacted 2009).
There is also a Federal Abortion Ban, which applies nationwide regardless of state law. The federal ban prohibits certain second-trimester abortion procedures and has no exception for a woman's health. In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the court has upheld a ban on a previability abortion procedure. Click here to read more about the Federal Abortion Ban.
Biased Counseling & Mandatory Delay
A woman may not obtain an abortion until the attending physician, referring physician, or physician's agent tells her during a consultation that may be provided by telephone and must be by means other than a tape recording: (1) the medical risks of the proposed procedure; (2) the probable gestational age of the fetus; (3) the medical risks associated with carrying the pregnancy to term; and (4) the name of the physician who will provide the abortion. This information must be given prior to and in no event on the same day as the abortion.
For abortion services provided after the fetus has reached a gestational age of 20 weeks, the physician must tell the woman that anesthesia is available to alleviate possible fetal pain.
In addition, prior to and in no event on the same day as the abortion, the woman must receive a state-mandated lecture by the attending physician, referring physician, or physician's agent, in person or by telephone, which may be provided by a tape recording, that must include: (1) that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care; (2) that the "father" is liable for child support even if he has offered to pay for the abortion; (3) that she has the option to review state-prepared materials, in printed or electronic form, that describe the fetus and list agencies that offer alternatives to abortion; and (4) that if she chooses to view the state-prepared materials in printed form, they shall be mailed to her by a method chosen by her and that if she chooses to view them via the internet, she shall be informed of the internet website address prior to and in no event on the same day as the abortion.
The state-prepared materials must: (1) describe with realistic and appropriate pictures or drawings the probable anatomical and physiological characteristics of the fetus at two-week gestational increments from the time when a woman can be known to be pregnant to full term, including the possibility of survival; (2) provide a comprehensive list of geographically indexed public and private agencies and services, including adoption agencies, to assist women through pregnancy, upon childbirth, and while the child is dependent, including contact information, or include a toll-free 24-hour telephone number that may be called to obtain the list orally; and (3) describe, with objective information, the commonly employed abortion methods, including medical risks, the "possible detrimental psychological effects" of abortion, and the medical risks associated with carrying a pregnancy to term.
Ark. Code Ann. §§ 20-16-901 to -908, -1101 to -1111 (Enacted 2001, Amended 2005).
The state-prepared materials include enlarged color photographs of fetuses. Ark. Dep't Of Health, Abortion, Making A Decision (undated). Arkansas law also requires all abortion providers who use ultrasound equipment in the provision of abortion services to tell women that they may view an ultrasound image of their "unborn child," and to place a signed acceptance or refusal in a woman's medical file for three (3) years. Any physician who fails to inform a woman that she may view the ultrasound may be subject to disciplinary action by the Arkansas State Medical Board. Ark. Code Ann. § 20-16-602 (Enacted 2003).
Insurance Prohibition for Abortion
Certain state employee insurance plans prohibit coverage of abortion unless necessary to preserve a woman's life. Based on Amendment 68 of the Arkansas Constitution, which prohibits the use of public funds to pay for an abortion unless necessary to preserve the woman's life, parties to a lawsuit have reached an agreement that the University of Arkansas's employee group health insurance plan will cover abortions only when necessary to preserve the woman's life. Ark. Const. amend. 68, §1 (Initiative Petition Approved 1988); Foshee v. Sugg, No. E-IJ97-4325 (Ark. Cir. Ct. Feb. 6, 1998) (dismissal).
In addition, based on Amendment 68, a lawsuit was filed seeking to prohibit Pulaski County from continuing to offer employee health insurance coverage for abortion in cases of rape and incest. The county changed insurance policies and now provides coverage only for abortion in cases of life endangerment. The lawsuit was dismissed. Ehlebracht v. Villines, No. IJ2000-2121 (Ark. Cir. Ct. Dec. 4, 2002) (order dismissing without prejudice).
Other Anti-Choice Law
Arkansas has created additional threats to privacy and choice by adding anti-choice language to its state constitution to express its opposition to abortion and its intent to restrict the right to choose to the greatest extent possible.
"The policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution." Ark. Const. amend. 68, § 2 (Enacted by Initiative Petition 1988).
Refusal to Provide Medical Services
ABORTION REFUSAL CLAUSE
Arkansas allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Individuals and hospitals.
What does the refusal clause allow? No person may be required to participate in medical procedures that result in an abortion. No hospital, hospital director, or governing board may be required to permit an abortion within its institution. The refusal to participate or permit may not be a basis for civil liability or other recriminatory action.
Does the law require the refusing individual or entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Ark. Code Ann. § 20-16-601 (Enacted 1969).
CONTRACEPTION REFUSAL CLAUSE
Arkansas allows certain individuals or entities to refuse to provide contraceptive procedures, supplies, or information.
To whom does the refusal clause apply? Physicians, pharmacists, other paramedical personnel, private institutions, and agents or employees of private institutions or physicians, as well as employees of a public institution acting under the direction of a physician.
What does the refusal clause allow? Physicians, pharmacists, or other paramedical personnel may refuse to provide contraceptive procedures, supplies, or information. In addition, private institutions or physicians and agents or employees of such institutions or physicians, as well as employees of a public institution acting under the direction of a physician, may refuse to provide contraceptive procedures, supplies, and information based on religious or conscientious objection. The refusal of an institution, employee, agent, or physician may not be the basis for liability.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for contraceptive procedures, supplies, or information? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Ark. Code Ann. § 20-16-304 (Enacted 1973).
INSURACE COVERAGE FOR CONTRACEPTION REFUSAL CLAUSE
Although Arkansas law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception, certain employers and/or insurers may require that their plans exclude coverage for contraception.
To whom does the refusal clause apply? Religious employers whose religious tenets prohibit use of prescription contraception.
What does the refusal clause allow? A religious employer may require issuers of its health insurance plans to exclude coverage for contraception.
Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? Yes. The law broadly defines the term "religious employer" as a non-profit organization that has as one of its primary purposes the inculcation of religious values and primarily employs persons who share its religious tenets. This exemption allows a broad range of organizations engaged in secular activities to deny women insurance coverage for contraception.
Must the refusal be in writing? No.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause? No.
Ark. Code Ann. §§ 23-79-1101 to -1104 (Enacted 2005).
STERILIZATION REFUSAL CLAUSE
Arkansas allows certain individuals or entities to refuse to perform or participate in sterilization procedures.
To whom does the refusal clause apply? Individuals and hospitals.
What does the refusal clause allow? No person may be required to participate in, and no hospital, hospital director, sterilization committee, or governing board, may be required to permit, a sterilization. The refusal to participate in or to permit a sterilization may not be the basis for civil liability or other recriminatory action.
Does the law require the refusing individual or entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for sterilizing procedures? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Ark. Code Ann. § 20-49-304 (Enacted 1971).
Restrictions on Low-Income Women's Access to Abortion
Arkansas prohibits public funding for abortion for women eligible for state medical assistance for general health care unless the provider obtains prior authorization and the procedure is necessary to preserve the woman's life, or the pregnancy is the result of rape or incest. Ark. Medicaid Physician Provider Manual, Physician/Independent Lab/CRNA/Radiation Therapy Center, Program Coverage, § 251.220 (Rev. Aug. 1, 2004), at http://www.medicaid.state.ar.us/Download/provider/amprcd/searcharea/manuals/physicn/PHYSICN_II.pdf; Division of Medical Servs., Certification Statement for Abortion, DMS -2698 (Rev. Aug. 2004) at http://www.medicaid.state.ar.us/Download/provider/amprcd/forms/DMS-2698.pdf.
An invalid and enjoined provision of the Arkansas Constitution provides that no public funds may be used to pay for an abortion unless necessary to preserve the woman's life. Ark. Const. amend. 68, § 1.
A court held that this provision conflicts with federal law prohibiting participating states from excluding abortion from the Medicaid program in cases of life endangerment, rape, or incest, and has affirmed a lower court's injunction prohibiting its enforcement to the extent that it conflicts with federal law. Little Rock Family Planning Servs., P.A. v. Dalton, 60 F.3d 497 (8th Cir. 1995), rev'd in part, 516 U.S. 474 (1996).
The Arkansas Supreme Court also concluded that this constitutional provision is unenforceable insofar as it conflicts with federal law. Hodges v. Huckabee, 995 S.W.2d 341 (Ark. 1999).
Restrictions on Young Women's Access to Abortion
Arkansas law restricts young women's access to abortion.
Is the law enforceable? Yes.
Who is considered a minor? A young woman under the age of 18 who is under the care, custody, and control of her parents.
What is required - parental consent or parental notice? Consent.
Who must be notified? One parent.
Are there other trusted adults who may be notified instead? No.
What is the process for obtaining consent? A young woman may not obtain an abortion until the physician obtains the written and notarized consent of one of her parents.
May the parental mandate be waived if a young woman is a victim of rape or incest? Yes, if the young woman states by affidavit that she only has one living parent and that parent committed incest with her, raped her, or otherwise sexually abused her, parental consent is not required.
May the parental mandate be waived if a young woman is a victim of child abuse? No.
May the parental mandate be waived if a young woman's health is threatened? Yes, but only if a medical emergency exists. A medical emergency is defined as a medical condition of the young woman that necessitates an immediate abortion to preserve her life or for which a delay will create "serious risk of substantial and irreversible impairment of major bodily function."
May the parental mandate be waived under any other circumstances? Yes, the young woman may try to obtain permission from a judge.
If a young woman must obtain permission from a judge, what is the process? She must secure a court order stating either that she is mature and capable of giving informed consent or that an abortion without parental consent is in her best interests.
Are there other significant requirements under the law? Yes, the consenting parent must appear in person to provide the attending physician with proof of identification.
Has a court considered the constitutionality of this law? No.
Other information about the law: None.
Ark. Code Ann. § 20-16-801 to -810 (Enacted 1989, Last Amended 2005).
Targeted Regulation of Abortion Providers (TRAP)
Arkansas imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including:
Restrictions on Where Abortions May Be Performed
Among the most common TRAP regulations are those restricting the performance of abortions to hospitals or other specialized facilities, which place medically unnecessary and costly requirements on doctors and can decrease the availability of abortion care for women. Arkansas has such regulations, including:
Any facility whose "primary function" is to terminate or abort pregnancies must obtain a state "abortion facility" license. Ark. Code Ann. § 20-9-302(a) (Enacted 1983; Last Amended 1987); Ark. State Bd. of Health, Rules and Regulations for Abortion Facilities § 4. Providers must pay $1000 to obtain a license and $1000 each year to renew the license. Ark. State Bd. of Health, Rules and Regulations for Abortion Facilities §§ 4(C), 4(D).
Arkansas created a separate set of regulations that apply specifically to abortion facilities, which encompasses a variety of administrative, physical plant, recordkeeping, personnel, and patient care requirements. Ark. State Bd. of Health, Rules and Regulations for Abortion Facilities §§ 1-12. The physical plant requirements are in addition to "building, fire, subdivision and zoning codes, ordinances, and regulations of city, county and other state agencies" and include such things as required number of rooms and minimum room dimensions, without reference to medical necessity. Ark. State Bd. of Health, Rules and Regulations for Abortion Facilities §§ 12 (D)(1), (E)(13-17).
The state has extensive warrantless access to providers' facilities. "Any authorized representative of the Arkansas Department of Health shall have the right to enter upon or into the premises of any Abortion Facility at any time in order to make whatever inspection it deems necessary" to ensure compliance with regulations. Ark. State Bd. of Health, Rules and Regulations for Abortion Facilities § 4(I).
Among the most common TRAP regulations are those restricting the performance of abortions to hospitals or other specialized facilities, which require doctors to obtain medically unnecessary additional licenses, needlessly convert their practices to mini-hospitals at great expense, or perform abortions only in hospitals, an impossibility in many parts of the country.
Arkansas requires that any abortion performed after the 20th week of pregnancy be performed in a licensed hospital. Ark. State Bd. of Health, Rules and Regulations for Abortion Facilities, § 3.
Restrictions on Who May Perform Abortions
Arkansas prohibits certain qualified health care professionals from performing abortions.
Only a person licensed to practice medicine in the state may perform an abortion. Ark. Code Ann. § 5-61-101 (Enacted 1983; Last Amended 1999).
PRO-CHOICE LAWS
Contraceptive Equity
Arkansas law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception.
What is required? If a health insurance plan provides coverage for prescription drugs, it must provide coverage for Food and Drug Administration-approved prescription contraceptive drugs and devices, except emergency contraception (EC).
To which insurance plans does the law apply? All individual or group health insurance plans, policies, or contracts issued, delivered, or renewed in the state that provide coverage for prescription drugs.
Does the law contain a refusal clause, allowing certain employers and/or insurers to refuse to provide or pay for contraceptive coverage? Yes.
To whom does the refusal clause apply? Religious employers for whom prescription contraceptive methods are contrary to their religious tenets.
What does the refusal clause allow? A religious employer may purchase a health insurance plan, policy, or contract that excludes coverage for contraception.
Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? Yes. The law broadly defines the term "religious employer" as a non-profit organization that has as one of its primary purposes the inculcation of religious values and primarily employs persons who share its religious tenets. This exemption allows a broad range of organizations engaged in secular activities to deny women insurance coverage for contraception.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause? No.
Ark. Code Ann. § 23-79-1101 (Enacted 2005).
Emergency Contraception
EMERGENCY CONTRACEPTION (EC) FOR SEXUAL ASSAULT VICTIMS
Arkansas law requires that sexual assault victims receive information about emergency contraception (EC) in hospital emergency rooms. The law requires Arkansas hospitals to amend existing protocols to include informing sexual assault victims about the proper use and availability of EC as a means of preventing pregnancy.
This law contains a refusal clause that allows any health care professional to refuse to provide information about EC on the basis of religious or moral objections.
Ark. Code Ann. §§ 20-13-1401 to -1403 (Enacted 2007).
Low-Income Women's Access to Family Planning
Arkansas provides increased access to reproductive health care services through a Section 1115 family planning waiver. The waiver allows the state to cover family planning services for all women of childbearing age with incomes at or below 200% of the federal poverty level, who are not otherwise eligible for state and federal health care programs.
Beneficiaries of family planning coverage available through the waiver are not required to pay premiums or co-payments for covered services. Covered services include: contraceptive education and counseling; contraceptives (includes FDA-approved over-the-counter drugs, injectables, and implants); voluntary sterilization; office visits, examinations in conjunction with a family planning encounter; and laboratory and radiology procedures associated with a family planning encounter.
The waiver will expire on Jan. 31, 2009.
Ark. Family Planning Demonstration Fact Sheet, Ctrs. for Medicare and Medicaid Servs., May 30, 2006 at http://www.cms.hhs.gov/MedicaidStWaivProgDemoPGI/MWDL/itemdetail.asp?filterType=none&filterByDID=-99&sortByDID=2&sortOrder=ascending&itemID=CMS028310&intNumPerPage=2000 (last visited Dec. 5, 2008);
NARAL Pro-Choice America Survey of State Medicaid Offices
OTHER LAWS
Post-Viability Abortion Restriction
Arkansas' post-viability restriction states that no abortion may be provided after viability unless necessary to preserve the woman's life or health or if a minor's pregnancy is the result of rape or incest. A fetus shall be presumed not to be viable prior to the end of the 25th week of pregnancy. The physician must use the available method most likely to preserve the life and health of the fetus unless it poses a greater risk to the woman's life or health than another available method. The physician shall take all reasonable steps to preserve the life and health of the fetus unless they pose an increased risk to the woman's life or health. A second physician must attend a post-viability abortion to provide medical attention to the fetus. Ark. Code Ann. §§ 20-16-701 to -707 (Enacted 1969; Last Amended 1999).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortion, such as Arkansas', that contain adequate exceptions to protect the woman's life and health.
