On Friday night, a federal judge blocked four recently passed Arkansas abortion restrictions, including one that seemingly could require rape survivors to get input from their rapists before terminating their pregnancies. That law, in addition to a ban on the most common second-trimester abortion procedure and a requirement that doctors report teens’ abortions to the police, would have taken effect on Tuesday. A fourth provision, which would have forced a doctor to obtain and review a patient’s entire pregnancy medical history before providing her abortion care, was set to go into effect at the beginning of 2018. The decision prevents Arkansas from enforcing the laws until a full trial takes place.
The American Civil Liberties Union and the Center for Reproductive Rights filed a suit challenging these laws in June on behalf of Frederick Hopkins, a Little Rock–based doctor who provides the state’s only outpatient second-trimester abortion care. The complaint argues that the ban on dilation and evacuation abortions constitutes a ban on second-trimester abortions, since alternate procedures are far less safe, more expensive, and more time-consuming. D&Es comprise 95 percent of second-trimester abortions in the country and 100 percent of second-trimester abortions performed in Arkansas in 2015. The Supreme Court’s decision in Roe v. Wade held that banning abortions before viability—around 22 to 24 weeks—is unconstitutional. The Arkansas D&E ban would have also allowed husbands and legal guardians to sue for injunctive relief to prevent women from getting D&E abortions.
But the law that caused the most national outrage was the addition of fetuses to an existing Arkansas statute requiring family members to come to agreement on the method of disposal of remains. The law could have forced abortion-seeking Arkansans to notify their sexual partners or parents of their impending abortions to get their input on fetal-tissue disposal. (A grandmother’s recent Facebook comment that she’d “notify [her rapist] with a loaded 45” if the law came into effect made her “Twitter’s newest hero,” according to Bustle.) At worst, it may have given sexual abusers and hostile family members reason to target women with physical, financial, or emotional abuse for terminating their pregnancies. At best, it would have involved other people in women’s private medical decisions and delayed their abortion care, causing her increased risk and expense.
U.S. District Court Judge Kristine Baker, who issued a preliminary injunction against the laws on Friday, wrote that this law “mandates disclosure to a woman's partner or spouse, even if that person is no longer in her life or is a perpetrator of sexual assault.” The fetal tissue law offers no public health benefit, she wrote, and would have undermined the “constitutionally mandated” judicial bypass option for a girl under 18 who can currently get a judge’s permission to obtain an abortion without involving her parents.
Baker also enjoined enforcement of a law that would have required doctors to report every abortion performed on a teenager under 17 to the police, even if there are no signs of abuse or coercion, and save the fetal tissue as medical evidence. (Arkansas doctors must already do this for minors under the age of 14.) The final law Baker blocked would have required abortion providers to spend “reasonable time and effort” obtaining and reviewing the medical records of a patient’s entire pregnancy history to ensure that she wasn’t getting an abortion based on the sex of the fetus. To get her records, the patient would effectively have to disclose to other institutions that she was trying to terminate her pregnancy. This would have caused unnecessary delay and privacy incursions for the sake of preventing sex-selective abortions, which aren’t a real problem to begin with. Such bans encourage racial profiling of patients, especially Asian American women.
Leslie Rutledge, Arkansas’ anti-abortion attorney general, has indicated that she will appeal Baker’s ruling, and the results of that appeal could have far-reaching effects. Several other states, including Oklahoma, Louisiana, Kansas, and Alabama, have passed D&E bans and seen their enforcement similarly blocked by court challenges. These bans are a recent trend in anti-abortion state legislators—the first passed in Kansas just two years ago, and the most recent passed in Texas in June—and reproductive-justice advocates are fighting to halt what they say is an unconstitutional violation of the constitutional right to legal abortion. If any one of these states’ D&E bans meets its permanent end, that would be a promising sign to women in the others.