Proposed Arkansas ballot measure would make abortion access a constitutional right

State government entities would not be allowed to “prohibit, penalize, delay or restrict” Arkansans’ access to abortion up to 18 weeks of pregnancy under the Arkansas Reproductive Healthcare Amendment, which Attorney General Tim Griffin’s office received Nov. 9.

The proposed amendment would also require 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.

Abortion is currently illegal in Arkansas except for a narrow exception to save the pregnant person’s life. The June 2022 U.S. Supreme Court decision that overturned Roe v. Wade activated Arkansas’ 2019 “trigger ban” and put this law in place.

Griffin has until the end of Tuesday to approve or reject the proposed ballot language. If approved, canvassers must collect 90,704 signatures from voters throughout Arkansas before July 5, 2024, to qualify for the ballot.

An Arkansan named Steven Nichols submitted the proposal, said Jeff LeMaster, a spokesman for Griffin’s office. Nichols could not be reached for comment Monday.

Additionally, the democracy-focused nonprofit For AR People announced Monday that it formed the ballot question committee Arkansans for Limited Government (AFLG) in support of the 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.

“When it comes to personal healthcare, Arkansans know what’s best for their families, and the state shouldn’t pretend to play ‘doctor’ or know better,” said physician and attorney Dr. Hershey Garner, the AFLG chairman, in a For AR People news release. “These matters are deeply personal and should be between an individual and their medical provider.”

AFLG is already seeking pledges to sign the petition for the amendment and volunteers to help collect signatures if Griffin approves the ballot language, according to its website.

If the proposal ends up on the 2024 ballot, Arkansas would become the 11th state with an abortion 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.

For AR People Executive Director Gennie Diaz said the success of other states’ measures “demonstrates the power of direct democracy, and we do have a robust history of that in Arkansas.”

Republican members of Arkansas’ executive branch and legislative supermajority have publicly opposed abortion access at any stage of pregnancy, but Arkansas voters likely “hold nuanced views of the issue” that aren’t reflected in the officials they elected to represent them, Diaz said.

Additionally, being able to vote on a specific issue can paint a more thorough picture of voters’ views than voting for candidates with sets of views on a range of issues, she said.

“It feels good to check yes or no next to something and have our minds made up,” Diaz said.

Abortion in post-Roe Arkansas

The proposed Arkansas Reproductive Healthcare Amendment is 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,” and did not specify a certain number of weeks of pregnancy.

Both measures would have allowed abortion in cases of rape, incest and to protect the life or health of the pregnant person but did not mention fatal fetal abnormalities.

Democratic state representatives proposed adding three of these exceptions to Arkansas’ abortion statute earlier this year during the legislative session. Republican-led House committees rejected all three bills.

A bill that did become law, Act 848 of 2023, specifies that abortions performed under the state’s current exception are only legal if they are performed in a hospital or emergency room.

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, the Arkansas Advocate reported in June.

Abortion access groups in Arkansas said they have seen their costs increase since the ruling, while some pregnancy resource centers reported increases in demand for their services over the same time period. Pregnancy resource centers — often referred to as “crisis pregnancy centers” — are often religiously affiliated and discourage abortion while encouraging birth.