Lawsuit says Arkansas’ near-total ban on abortion violates state’s constitution

Arkansas’ near-total abortion ban faced its first legal challenge Wednesday with a lawsuit from four women and a physician who argue the prohibition should be struck down in its entirety.

The state has banned abortion, with a narrow exception to save a pregnant person’s life, since June 2022 under a law that took effect when the U.S. Supreme Court overturned Roe v. Wade. The lawsuit filed in Pulaski County Circuit Court said the ban violates the state’s constitutional protections for Arkansans.

Doctors told Emily Waldorf, one of the women suing over the ban, that the exception did not apply to her in September 2024 when she was 17 weeks pregnant and it became clear that she could not carry to term, the complaint states. 

“My daughter was four at the time,” Waldorf, a Fayetteville resident, told the Arkansas Advocate in an interview. “I had her at home, who I was fighting to stay alive for, because I knew that I was going to lose the baby that I was pregnant with.”

Arkansas Attorney General Tim Griffin said in a Wednesday statement that the case “on its face it appears to have little legal merit.”

“Protecting the innocent lives of unborn children is enshrined in state law and the Arkansas Constitution, and I will always stand up to defend the rights of the unborn,” Griffin said through a spokesperson.

A copy of the complaint was provided to the Arkansas Advocate ahead of Wednesday’s filing by Amplify Legal, which is representing the plaintiffs challenging Arkansas’ ban.

Waldorf’s condition of cervical insufficiency meant she was at a high risk of going into labor before the fetus was viable, which put her at risk of an infection. Cervical insufficiency is when the cervix dilates during the second or early third trimester of pregnancy.

After waiting five days for care in Northwest Arkansas, Waldorf traveled 240 miles to Kansas to have an abortion via induced labor. She had to travel in an ambulance due to her risk of both infection and early labor.

The experience left her grieving a child she had wanted, on the hook for thousands of dollars in medical bills and hemorrhaging due to the delay in receiving care, according to the complaint.

Two of the other plaintiffs traveled to Illinois to terminate their pregnancies. One of the two had been sexually assaulted, according to the complaint; Arkansas’ abortion ban has no exceptions for rape or incest.

Roughly 2,600 Arkansans traveled to Illinois or Kansas to receive abortion care in 2024, according to data from the Guttmacher Institute, a reproductive rights policy and advocacy group.

The fourth woman continued her pregnancy for seven weeks after learning it was nonviable because doctors denied her an abortion, and she and her husband discussed plans for her funeral if she did not survive the pregnancy, according to the complaint.

The lawsuit’s fifth plaintiff is Dr. Chad Taylor, an obstetrician-gynecologist practicing in Little Rock. He “regularly encounters patients with obstetrical complications where it is unclear to him and his colleagues if the standard of care for that patient — offering termination — is still legal,” the complaint states.

Arkansas law makes it a felony punishable by a maximum prison sentence of 10 years, a maximum fine of $100,000 or both for a medical professional who performs an abortion. The language appears twice in state law: once in a 2019 law that was triggered by the overturning of Roe v. Wade, and once in a 2021 statute that was blocked in federal court until the Roe reversal.

Other Arkansas laws ban abortions at 12, 18 and 20 weeks’ gestation. The lawsuit does not challenge these statutes.

The legal landscape

Arkansas’ constitution states that “enjoying and defending life and liberty [and] pursuing their own happiness” are “inherent and inalienable rights.” The abortion ban flies in the face of this constitutional mandate, said Molly Duane, the lawsuit’s lead attorney and the litigation director of Amplify Legal.

“This law is really causing people to lose their liberties, certainly lose enjoyment of their own lives, protection of their own families, and [it] is really putting lives at risk as well,” Duane said.

The lawsuit is the first filed by Amplify Legal, the litigation arm of Abortion in America, an abortion-rights advocacy group co-founded by former Planned Parenthood President Cecile Richards, who died last year.

The lawsuit faces an uphill battle if it eventually winds up before Arkansas’ Supreme Court, where five of the seven justices have Republican ties. In 2024, the court affirmed the Secretary of State’s decision to disqualify more than 14,000 of the nearly 103,000 signatures from registered voters that supported putting abortion access up to a public vote. The decision kept the Arkansas Abortion Amendment off the November 2024 ballot.

UPDATED: Paperwork errors will keep proposed Arkansas abortion amendment off ballot

The state also has anti-abortion language in its constitution. Arkansas Constitutional Amendment 68 mandates that no public funds shall be used for abortion except to save a pregnant person’s life. Duane said this provision does not override Arkansans’ fundamental rights to life, liberty and the pursuit of happiness.

The amendment also states: “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.”

This anti-abortion language “presents unique challenges” but “does not say anything about the meaning or reach of inalienable rights, which is [a] broad foundational rights provision,” said Diana Kasdan, the legal and policy director at the UCLA Law Center on Reproductive Health, Law and Policy.

Additionally, the inalienable rights clauses in the Utah and North Dakota constitutions led those states’ conservative-leaning Supreme Courts to uphold injunctions on abortion bans. The courts recognized pregnant people’s “fundamental right to obtain abortion care to preserve their life and health,” Kasdan said.

Duane said the plaintiffs have “very strong legal claims.” In addition to the inalienable rights argument, the plaintiffs’ case relies on the constitutional law principle that a criminal law “cannot be so vague that people who have to comply with that law have no notice, no understanding of what is legal and what is not,” Duane said.

Amplify Legal is working on several other abortion-related legal challenges that “will be filed in the coming weeks and months” in other states, Duane said.

Kasdan noted that the 2023 legal challenge to Texas’ abortion ban did not result in the state Supreme Court overturning it but “dramatically increased public attention” on the issue of life-threatening nonviable pregnancies.

“While it’s too early to suggest the trajectory of this case [in Arkansas], I think it is going to be a really important one to follow,” Kasdan said.

‘Totally preventable’

The defendants in the lawsuit are the state of Arkansas, Griffin, Gov. Sarah Huckabee Sanders, Health Secretary Renee Mallory, the Arkansas State Medical Board and the three prosecuting attorneys representing the plaintiffs’ home counties.

Abortion bans have delayed medical care. Experts say this Georgia mother’s death was preventable.

Sanders’ predecessor, Asa Hutchinson, signed the abortion ban into law in 2019. Several other Republican governors in states with Republican-led legislatures signed their own abortion bans into law the same year. Many of those laws also place felony charges on physicians for performing abortions.

One of those states was Georgia, where Amber Thurman died in August 2022 from an infection after doctors denied her care for complications she had from taking abortion medication. The story of Thurman’s death became national news during Waldorf’s five-day hospital stay in September 2024. She said she learned about the situation while on her way to Kansas after being warned away from it previously.

“I remember being in the hospital and getting text messages from close friends saying, ‘Stay off social media right now,’” Waldorf said.

She said she decided to participate in the lawsuit because everything that happened in between learning her pregnancy was nonviable and receiving care in Kansas “was totally preventable.”

“I have a really close-knit group of friends and family that care about me and found me a way out, and so many women don’t have access to that or don’t know what to do,” Waldorf said.

In an Amplify Legal virtual press conference, plaintiff Theresa Van of Fort Smith said she wanted to emphasize that her experience was “not rare.” When she was pregnant in 2023, she learned she did not have any amniotic fluid and the fetus would not survive delivery, according to the complaint.

“It can literally happen to anyone, and my baby was very much wanted,” Van said. “…This is not something that I thought would happen to me.”

The anti-abortion group Americans United for Life has consistently recognized Arkansas for its anti-abortion policies. Sanders spokesperson Sam Dubke mentioned this in a statement Wednesday afternoon.

“Arkansas was named the most pro-life state in the country for the sixth year in a row not just because the Sanders Administration offers complete protection for the unborn, but also because Governor Sanders has made needed investments in foster care and adoption, maternal health, and childhood wellbeing,” Dubke said. “Governor Sanders looks forward to defending Arkansas’ pro-life laws in court.”