Aborted Rights in Arkansas

By Brownie Ledbetter

Vol. 10, No. 6, 1988, pp. 1, 3

In the November elections, Arkansas voters--by a 52 to 48 percent margin--moved the abortion debate to a new level. The issue in Arkansas is no longer whether a woman has the right to have an abortion, but whether she has the right not to have a child.

Under the guise of a constitutional referendum to restrict state funding for abortions, Arkansas voters have approved a measure that in theory requires the state to force women to complete all pregnancies, even in cases of rape or incest.

In the words of some of the proponents of the three-part referendum, rape may indeed be a traumatic experience, but rape or incest victims should deliver and raise any children that might result.

The Arkansas referendum was the third attempt in six years to eliminate all possibility of abortion (a 1984 "Unborn Child Amendment" was removed from the ballot by the state's supreme court on the grounds that the popular name was misleading). In 1988, pro-life forces collected enough petition signatures to have the issue again placed on the ballot, described as an amendment to restrict abortion funding.

The first section of the amendment prohibits public funding of abortions except to "save the life of the mother." The second section calls for the state to "protect the life of every unborn child from conception until birth to the extent permitted by the federal constitution." And, the third section declared that contraceptives would not be affected nor would the state be required to appropriate any funds.

Arkansas does not have public funding of abortions, but most voters were unaware


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of that. Pro-amendment radio ads implied that the issue was whether voters would rather see their tax money go for roads and education or for abortions. In newspaper interviews, some proponents claimed that the amendment would have no effect unless, the U.S. Supreme Court reverses Roe v. Wade, the 1973 decision protecting reproductive choice on the basis of a woman's right to privacy. Throughout the campaign proponents claimed the amendment would have no effect on birth control.

Reproductive health advocates opposed the amendment primarily on the issue of forcing rape and incest victims to complete their pregnancies, and on the issue of government interference in family decisions about such incidents. Opponents aired television ads pointing out that there is no public funding of abortions in Arkansas and demonstrating the potential effect the amendment could have on a rape victim.

However, opponents' concerns about the amendment were even broader. The amendment was opposed for many reasons, most of them difficult to communicate in a culture where reproductive health issues are rarely discussed and where sexuality education is taught in only a few of the state's 330 school districts.

Protection of a woman's private choice about her reproductive life is a major concern as is protection of all forms of birth control. This is particularly significant in Arkansas, which has the second highest teenage birth rate in the nation. Right-to-life advocates have long opposed birth control and now seek to restrict the term "contraceptive" to forms of birth control that are effective prior to conception; all other contraceptives, in their view, are "abortifacients," and are therefore no different from abortions.

Opponents of the amendment saw it as yet another attempt to outlaw many forms of birth control including intrauterine devices and many of the medically safer birth control pills that are effective after fertilization. The "morning after" pill, commonly used for rape victims, was an intended target of the amendment, but the Arkansas Governor's Task Force on Rape has already requested and received an opinion from the state attorney general which declares--for the moment--that the "morning after" pill can continue to be used.

Advocates of such legislation have attempted in many state legislatures and court cases to bestow "personhood," with accompanying legal rights, to fetuses from the "moment of conception." The legal ramifications are of great concern to those who work in reproductive health care, not to mention in other areas of the law such as decedents statutes and statutes that could affect working conditions for women of fertile age.

Ironically, in-vitro fertilization, a procedure which allows some infertile couples to have a child, is clearly outlawed by the language of the amendment since "conception" takes place outside the woman's body, in a laboratory. The legal mandate of protecting a fetus from "conception until birth" rules out such procedures because there can be no practical way of insuring that all ovum fertilized in the laboratory can be placed in a woman's uterus to be "protected" and born.

Other medical procedures such as amniocentesis, research that enables advances for infertile couples, and potential cures for Alzheimers disease, can tee prohibited by this language.

Of particular concern is the fact that the first amendment section prohibiting public (Medicaid) funding of abortions penalizes low-income women. In addition, the language in this amendment is more restrictive than the federal prohibition on Medicaid funding of abortions. The only allowable exception in the Arkansas amendment is "to save the life of the mother" while the exception in the federal statute is in "life-threatening" situations. Many doctors have pointed out that they can prescribe effective procedures for low-income pregnant women whose progressive diseases would threaten their lives, but under the new language, the doctors feel they would have to let a patient's condition degenerate to the point that it could be legally proven the patient would die without an abortion.

No doctor can pick an absolute point in time at which a person will die. Understandably, doctors are also worried about their medical liability in such situations.

Brownie Ledbetter is vice president of public affairs for Planned Parenthood in Arkansas. She is also a member of the Southern Regional Council.