Arkansas AG rejects proposed ballot measure to make abortion access a constitutional right
A proposed constitutional amendment ensuring a limited right to abortion in Arkansas will not appear on the 2024 statewide ballot, Attorney General Tim Griffin wrote in a Tuesday opinion.
His seven-page letter to Steven Nichols, the Arkansan who submitted the proposal, pointed out several aspects of the ballot language that Griffin said need clarity or other improvements before he can consider it worthy of approval.
Under the proposal, state government entities would not have been allowed to “prohibit, penalize, delay or restrict” Arkansans’ access to abortion “within 18 weeks of conception.” Griffin’s office received the document Nov. 9.
The proposed amendment would also have required access to abortion in cases of rape, incest, “in the event of a fatal fetal anomaly” and to protect the life or health of the pregnant individual.
Griffin wrote in his opinion that he interpreted the proposal to mean “to prevent any government action that regulates abortion itself.” He also took issue with the suggested name of the measure, the Arkansas Reproductive Healthcare Amendment.
“Your proposed popular name is tinged with partisan coloring and misleading because your proposal is solely related to abortion, not ‘reproductive healthcare’ generally,” Griffin wrote.
Abortion is currently illegal in Arkansas except for a narrow exception to save the pregnant person’s life in a “medical emergency.” The June 2022 U.S. Supreme Court decision that overturned Roe v. Wade activated Arkansas’ 2019 “trigger ban” and put this law in place.
Additionally, Amendment 68 of the Arkansas Constitution, enacted in 1988, states that Arkansas policy “is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.”
The proposed Arkansas Reproductive Healthcare Amendment did not mention any potential effect on Amendment 68. Griffin wrote in his opinion that this information was necessary.
It is unclear how the General Assembly ‘may prohibit or restrict access to abortion’ without penalizing those who violate those regulations.
The democracy-focused nonprofit For AR People formed the ballot question committee Arkansans for Limited Government (AFLG) in support of Nichols’ proposed amendment. A ballot question committee is any person or group that receives financial contributions with the goal of supporting or opposing a ballot initiative, according to the Arkansas Ethics Commission.
AFLG expressed appreciation for Griffin’s “thorough review of and impartial response to the amendment’s language” in a statement Tuesday.
“We are also heartened by the overwhelming support we have received from Arkansans across the state, including pledges to sign a future petition in favor of the Arkansas Reproductive Healthcare Amendment,” the committee said in the statement. “Residents want sensible reproductive policy, and Arkansans for Limited Government will begin work immediately with the amendment drafter to craft a revised amendment. We are committed to supporting a ballot proposal that is clear for Arkansas voters.”
Nichols declined to comment on Griffin’s ruling.
One part of the proposed amendment that Griffin said needed more clarity was the provision to allow abortion if a pregnancy risks “the pregnant female’s life or health.”
“Is the term intended to cover physical health only, or also mental health?” Griffin wrote in his opinion. “If the term is limited to physical health, is that intended to be restricted to emergent medical conditions? Or does the term also extend to pregnancies that increase the risk of certain medical complications?”
Lack of clarity about an exception for the pregnant person’s health contributed to the failure of a legislative proposal earlier this year. Rep. Denise Garner, D-Fayetteville, introduced a bill in March that would have broadened the definition of a “medical emergency” in Arkansas’ current abortion law.
A Republican-led committee rejected Garner’s bill as well as another that would have created an exception to the ban on abortions for child victims of incest.
Earlier in March, another committee rejected a proposed exception for cases of fetal abnormalities “incompatible with life.” Nichols’ proposed amendment contained a similar exception.
Griffin wrote that the phrase “incompatible with life outside the womb” is unclear because it “suggests [the measure] may intend to cover more situations” than whether a fetus is capable of surviving outside the uterus.
He also wrote that the proposal to allow abortion within “18 weeks of conception” would be better phrased as “20 weeks gestational age,” since both physicians and legal precedent have counted the weeks of pregnancy “from the date of the woman’s last menstrual cycle, not from the date of conception.”
Nichols’ proposal stated that the Arkansas Legislature “may prohibit or restrict access to abortion only when it establishes a compelling government interest achieved by the least restrictive means.” Griffin wrote that he did not see how this was possible when the proposal also said the government “shall not penalize” anyone who seeks or receives abortion services or assists someone in doing so.
“It is unclear how the General Assembly ‘may prohibit or restrict access to abortion’ without penalizing those who violate those regulations,” Griffin wrote.
State lawmakers introduced a wide range of bills this year related to maternal and reproductive health issues, including abortion, with mixed results. Some abortion-related bills sponsored by Republicans became law; Sen. Missy Irvin, R-Mountain View, said in April that these bills were mostly technical corrections “to clean up code to reflect the current situation.”
Other abortion ballot measures
A proposed constitutional amendment, if approved by the attorney general, needs 90,704 signatures from voters throughout Arkansas before July 5, 2024, to qualify for the ballot.
If an abortion access proposal ends up on the 2024 ballot, Arkansas would become the 11th state with such a ballot initiative effort in 2023 or 2024, joining Florida, Ohio, Missouri, Arizona, Nebraska, Iowa, South Dakota, New York, Pennsylvania and Maryland.
Several efforts to protect abortion access in Republican-led states have succeeded this year and last year, including in Kansas, Kentucky, Montana and most recently Ohio.
The rejected Arkansas proposal was similar to a measure submitted anonymously to the Secretary of State’s office in August, which also sought to enshrine the right to abortion up to 18 weeks of pregnancy in the state Constitution.
Another measure submitted at the same time would have proposed the right to abortion “before viability,” or the fetus’ ability to survive outside the uterus “without extraordinary medical measures.” Both measures would have allowed abortion in cases of rape, incest and to protect the life or health of the pregnant person.
Arkansas has the nation’s highest maternal mortality rate and the third-highest infant mortality rate, and 37 of the state’s 75 counties have no obstetric health care providers, according to the Arkansas Center for Health Improvement.
The state also has the nation’s highest teenage pregnancy rate, according to a June report from the Annie E. Casey Foundation.
Many Arkansans have sought permanent sterilization or long-acting reversible contraception in light of the reversal of Roe v. Wade, and abortion access groups such as the Arkansas Abortion Support Network have said they have seen their costs increase since the ruling.
AASN co-founder and treasurer Karen Musick said in a text message Tuesday that Griffin’s decision to reject the proposed amendment was “infuriating but not a surprise.”
“Blocking any statewide vote won’t matter to the many pregnant people who do need this health care,” Musick said. “Evidently being at the bottom of the barrel in maternal mortality and teenage pregnancies isn’t enough for him. Now he must continue to force people to give birth against their will?”