Arkansas Bans Most Abortions in Bid to Challenge Roe v. Wade

The law provides for an “unclassified felony” for anyone who performs an abortion in the state except in a medical emergency, with a fine of up to $100,000, ten years in prison, or both.

An ultrasound of a baby.
An ultrasound of a baby. (photo: Mohd KhairilX / Shutterstock)

LITTLE ROCK, Ark.— Arkansas is the latest state to pass legislation banning almost all abortions, in an effort to prompt the Supreme Court to revisit and overturn Roe v. Wade

Governor Asa Hutchinson on March 9 signed Senate Bill 6, also known as the Arkansas Unborn Child Protection Act, which bans abortions except when medically necessary to save the life of the mother. 

The law provides for an “unclassified felony” for anyone who performs an abortion in the state except in a medical emergency, with a fine of up to $100,000, ten years in prison, or both. 

The new law does not carry charges or convictions for mothers of unlawfully aborted children.

Catherine Phillips, Respect Life Director for the Diocese of Little Rock, noted that the diocese - which covers the whole state of Arkansas - has supported the legislation, and Bishop Anthony Taylor released a statement supporting it last month.

Phillips told CNA SB6 helps move the state in a pro-life direction by protecting the rights of innocent, unborn babies. 

She also noted that the law has received attention for its lack of exception for rape and incest. “Women or children who are victims of these deplorable and violent acts must be given compassionate care and support,” she said, but added that “it is a grave moral evil to kill the child” who was conceived as a result.

The state has already passed a law outlawing abortion if Roe v. Wade were to be overturned, a so-called “trigger ban” that has also been adopted by several other states. Arkansas also already has a 20-week abortion ban, enacted in 2013, which has yet to be challenged in court.

Hutchinson’s office said in a statement that the law he just signed has the explicit goal of challenging Roe v. Wade, the 1973 Supreme Court case that legalized abortion nationwide. 

“[The law] is in contradiction of binding precedents of the US supreme court, but it is the intent of the legislation to set the stage for the supreme court overturning current case law,“ the statement read. 

“I would have preferred the legislation to include the exceptions for rape and incest, which has been my consistent view, and such exceptions would increase the chances for a review by the US Supreme Court.”

Courts have struck down similar laws in other states in recent years. A similar measure in Alabama was struck down by a federal district court during October 2019.

A federal appeals court upheld certain Arkansas state abortion restrictions during August 2020. The Eighth Circuit court briefly allowed a 2017 state law to go into effect, which banned sex-selective abortions and the “dilation and evacuation” abortion method used in the second trimester.

However, in January 2021, the same Eighth Circuit upheld or imposed injunctions on several pro-life laws in the state, including the sex-selective abortion law and the ban on “dilation and evacuation” abortions, by which an unborn baby is dismembered. 

A law banning abortions after 18 weeks of pregnancy, except in cases of rape, incest, and medical emergency was blocked, as well as another that would have prohibited abortions based solely on a Down syndrome diagnosis for the baby.

Those regulations had been set to go into effect July 2019 before injunctions blocked them.

In a separate Jan. 7 ruling, District Court Judge Kristine Baker issued a preliminary injunction against the ban on abortions based solely on the sex of the baby, including requirements that doctors seek the medical records of any woman seeking an abortion who knows the sex of her unborn child.

Another of the enjoined laws regulates the preservation and disposal of tissue from aborted babies, while another requires doctors performing abortions on patients under 16 years old to inform police of the situation.