Emboldened by US president Donald Trump’s recent executive order cutting foreign aid to any family planning organization that provides or advises on abortion options, and his nomination of pro-life judge Neil Gorsuch to fill the vacant seat of the Supreme Court, conservative state governments around the country are starting to move forward with regulations that limit reproductive rights.
The first to take action is Arkansas, which on Jan. 27 passed the Arkansas Unborn Child Protection From Dismemberment Abortion Act (pdf). The act bans “dismemberment abortion” for any reason other than to save a woman’s life; to avoid permanent physical damage to the mother (psychological damage, including risk of self-harm, is not included); or to remove a dead fetus from the body.
Dismemberment abortion is a deliberately graphic name for dilation and evacuation (D&E), a surgical procedure commonly used in the second trimester for miscarriages and therapeutic abortion, most often in cases where tests find serious anomalies in the fetus.
Teddy Wilson, a reporter with Rewire, a nonprofit reproductive rights news service, told Quartz that while the law does not explicitly ban second-trimester abortions, for all intents and purposes it prevents Arkansas women from being able to get a legal second-term abortion, because it outlaws the most common and safe procedure. There is only one other option that can be used from the second trimester onward: induced abortion, a needlessly dangerous procedure that can cause damage to the uterus, excessive bleeding, and infection.
Second- and third-term abortions are rare, and typically only performed in cases where there would be serious health issues for the child. According to the latest data available, 638 of the 3,771 (pdf, p.7) abortions performed in Arkansas in 2015 occurred after week 12, and in every single case, the procedure used was D&E.
Not only does the Arkansas act forbid D&E, but gives a pregnant woman’s husband—whether or not he’s the father—the right to sue whoever he considers responsible for attempting or carrying out the procedure, including the pregnant woman herself. In the case of a minor, a parent or legal guardian can also sue.
Reproductive rights activists say that because law makes no exception for pregnancies that are the result of rape or incest, it could allow a husband or father to sue even when he is the rapist. (The law specifies (pdf, p. 5) that “civil damages shall not be awarded to a plaintiff if the pregnancy resulted from the criminal conduct of the plaintiff.”)
The law classifies a D&E abortion as a type D felony, resulting in a fine of up to $10,000 and six years in prison.
The next question is whether the act will hold up to legal scrutiny. It appears to be at odds with the constitutional provision that abortion is legal at any time up to the point of viability (until the fetus can live outside the woman’s body): though it doesn’t refer to all procedures, the act “is effectively banning abortion prior to viability,” in Arkansas, says Wilson. In addition the Supreme Court has ruled in the past that states cannot make laws that create an “undue burden” on a woman trying to get an abortion before viability.
That means it could end up getting struck down in the court system. That has already happened to similar acts passed in other states. In West Virginia, for instance, a D&E ban was vetoed shortly after it was introduced, and similar bans have been under litigation in Oklahoma and Kansas since 2015.
Arkansas’s new act will almost certainly get taken to court; Holly Dickson, legal director of the American Civil Liberties Union of Arkansas, told the Daily Beast the group intends to challenge the regulation.