An Arkansas law makes performing the procedure used in 95 percent of second trimesters a felony, with no exception for rape or incest—and allows family members to stop it.
A new Arkansas law bans one of the safest and most common abortion procedures and allows family members to block an abortion by suing the abortion provider.
Arkansas Act 45, signed by Arkansas Gov. Asa Hutchinson last Thursday, bans dilation and evacuation abortions, the most common abortion procedure during the second trimester of pregnancy. Rushed from filing to law in less than two months, the legislation effectively blocks abortions after 14 weeks by making the safest procedure a felony. The earliest current abortion bans block the procedure after 20 weeks.
With no exception for rape or incest, and a clause that allows a woman’s spouse or parent to sue an abortion provider, the law potentially allows the fetus’s father to sue even in cases of spousal rape or incest, abortion rights activists say. The law could go into effect as early as spring.
During dilation and evacuation procedures, surgical instruments are used to remove material from the womb. It’s a common procedure, accounting for 95 percent of all second-trimester abortions (according to a CDC study), and 683 of Arkansas’s 3,771 abortions in 2015, the state’s health department told The Daily Beast. The procedure is also common after miscarriages, when fetal tissue is removed from the womb to prevent infection, and during medical tests, when uterine tissue is removed for testing. Arkansas’s new ban would make the procedure a felony only when used in an abortion.
“The D&E method is the most common method of second-trimester abortion in the United States and in the world,” Laura McQuade, president and CEO of Planned Parenthood Great Plains, told The Daily Beast. “It is the method endorsed by the World Health Organization, the American College of Obstetrics and Gynecology, and the American Medical Association.”
The consensus from the medical community does not appear to matter to state Sen. David Sanders, a co-sponsor of the bill who testified that the procedure is gross to watch.
“You see a baby, an unborn life, a fetus, engaging in fight or flight reaction to the forceps going into the womb, trying to remove an arm, remove a leg,” he said.
The bill’s co-sponsor, Arkansas Rep. Andy Mayberry, called dilation and evacuation a “gruesome, barbaric procedure” during the bill’s introduction, adding that the routine procedure “is one that no civilized society should embrace.”
When not working in the legislature, Mayberry doubles as the president of Arkansas Right to Life, a subsidiary of the National Right to Life Committee. Introducing the bill before the Arkansas House in January, Mayberry announced that the text was “based on model legislation from National Right to Life that has been passed, or similar legislation has been passed in six states.”
Those six states are Alabama, Kansas, Louisiana, Oklahoma, Mississippi, and West Virginia. In all but the latter two, which passed their bills in spring 2016, legal challenges have temporarily blocked the laws from taking effect. As in the other states, the Arkansas legislation takes a hard line against dilation and evacuation procedures, making their use a Class D felony, punishable by a $10,000 fine or six years in prison.
“They’ve been declared unconstitutional in Oklahoma and Kansas already,” McQuade said of the set of bans. The Supreme Court has ruled states’ abortion laws are unconstitutional if they impose an “undue burden” on a woman attempting to terminate a viable fetus.
But one particularly punishing element of Arkansas’s law has not been tested in court, even in Mississippi and West Virginia, where versions of the bans still stand, reproductive rights activists say.
A clause in the Arkansas law allows a woman’s spouse, parent or guardian, or health care provider to sue an abortion provider for civil damages or injunctive relief that could stop the abortion. And because Act 45 does not provide any exceptions for cases of rape or incest, the clause could allow the fetus’s father to sue an abortion provider even in cases of spousal rape or incest.
Asked whether the clause would allow a father to sue in cases of spousal rape or incest, Mayberry told The Daily Beast that the “bill wouldn’t affect a woman seeking an abortion by any other method” than dilation and evacuation, and that the bill prohibited the father from winning monetary damages in the event of rape or incest. The bill would not, however, prevent the father from seeking injunctive relief to stop an abortion under these circumstances.
“We’ve tried to account for all the worst case scenarios,” Mayberry said, adding that the injunctive relief clause “doesn’t have a whole lot of teeth,” as it would block an abortion provider from performing a procedure already barred under the legislation.
Abortion rights activists say the clause gives a woman’s family control over her health decisions.
“There is zero part of me that understands why a rapist or someone who got someone pregnant against their will, maybe incest, would have any right in that decision,” Karen Musick, co-founder of Arkansas Abortion Support Network, told The Daily Beast. “I cannot wrap my brain around the fact that there would be anyone who thinks otherwise.”
“What that’s getting at, really, is the autonomy and decision-making ability of a woman,” McQuade said. “The law itself is a major overstep into the doctor-patient relationship… This is taking it one step further to say that women are incapable of making these decisions on their own and on their own behalf.”
As a result of Republicans’ supermajority in the Arkansas Assembly, the legislation moved from draft to law in less than two months. Filed Dec. 5, read in the Arkansas House for the first time on Jan. 9, and signed into law on Jan. 26, the bill sped through the state’s legislature with few revisions. One of the few dissenting voices came from Will Bond, a Democratic state senator from Little Rock.
“There is an injunctive relief section in the bill that, in my reading of it, would seem to allow litigation among family members,” Bond told The Daily Beast. “If one spouse sought injunctive relief to prevent a certain procedure, or possibly other family members have the possibility for injunctive relief, that was a concern of mine.”
The clause was one of a number of issues Bond had with the bill, including what he described as the legislation’s lack of exceptions for all but the most serious health issues.
“There is an exception for women’s health in the bill, but it required irreparable harm [to the point of] permanent disability of a woman,” Bond said. “The way it was drafted, I had concerns that the women’s health exception is way too narrow, and there’s no exception for rape and incest.”
Reproductive rights experts say the ban on dilation and evacuations is virtually as effective as banning abortions after the first trimester.
Realistically, under the new legislation, “the only option that anyone in Arkansas would have would be to leave the state,” Musick said.
A small percentage of second-trimester abortions occur via medically induced labor, but this less common method is more time-consuming, requires a hospital stay, and often involves more complications.
“How it used to happen decades in the past was that a woman was induced to deliver,” McQuade said. “We do not want to get to that point. That it is not as safe for the patient.” She added that Planned Parenthood would review its options but might refer patients out of state.
And for women seeking an abortion in Arkansas, time is already against them. A 2015 Arkansas law requires a 48-hour waiting period between an in-person abortion consultation and the procedure. In Arkansas, which only has one dilation and evacuation abortion-providing clinic, the law often forces people to take days off work to travel to the clinic, attend the initial meeting, wait 48 hours, and finally obtain a procedure.
“Normally it’s going to be a week later,” after a woman schedules around her work, travel, and family commitments, Musick said. “Every week that goes past in an abortion makes the procedure more expensive and it makes it riskier. The earlier an abortion is performed, the safer it is.”
But the new Arkansas law, the first of its kind passed under the Trump administration, will not go unchallenged, its opponents say. Holly Dickson, legal director of the American Civil Liberties Union of Arkansas, said the group was aiming to make a case similar to those filed against the bills in Alabama, Kansas, Louisiana, and Oklahoma.
“It’s been challenged in those first four and been enjoined in every state where there’s been a challenge,” she told The Daily Beast.
The law takes effect 90 days after the end of Arkansas’s legislative session, which is expected in spring, McQuade said. The bill’s opponents would have to file their suit before the law took effect.
“The ACLU has been open in our intent to challenge this if necessary,” Dickson said. “I’m sure that’s what we’ll do this time around. Again.”