Abortion supporters demonstrate at a protest. (Getty Images)
A pair of proposed ballot initiatives have been submitted to the Arkansas secretary of state to enshrine the right to abortion in the Arkansas Constitution.
But that doesn’t mean Arkansans will vote on the measure next year or even be able to sign a petition yet.
Mystery surrounds the initiative petitions, which the Arkansas Advocate obtained Thursday through a public records request.
Not only is it unclear who submitted the documents, it’s unclear why the paperwork was submitted to the secretary of state’s office.
Under a new state law, ballot initiatives in Arkansas must now first have their ballot titles approved by the attorney general’s office before canvassing can begin and petitions can be filed with Secretary of State John Thurston.
A spokesman for the Arkansas attorney general’s office said it had not received any such proposed ballot titles.
Nonetheless, the documents show there is an effort underway to add Arkansas to the list of states where abortion rights will be on the ballot in 2024. Ever since Roe v. Wade was overturned last year, Arkansas has had one of the strictest abortion bans in the country.Amendment Concerning Reproductive Health Care – Received 7-22-2023
The two proposals would create nearly identical constitutional amendments, barring state government from prohibiting, restricting, delaying or penalizing access to abortion in the state to a point.
The only difference lies in when during a pregnancy the government would be prohibited from interfering.
The first would allow abortion up to 18 weeks post-fertilization.
The second would allow abortion up to viability, defined in the measure as the point the patient’s physician determines the fetus could survive outside the womb without extraordinary medical measures. There isn’t consensus around the point of viability, and it can vary based on individual factors, like genetics, sex, size and other factors. Most consider it to be between 23 to 24 weeks into a pregnancy.
Both measures would allow abortions in cases of rape or incest and to protect the health of the mother.
“The government shall not deny or infringe on this right unless justified by a compelling government interest achieved by the least restrictive means,” both proposals read. “The government shall not penalize an individual for exercising this right or a person or entity that assists an individual in exercising this right…
“A government interest is ‘compelling’ only if it is for the purpose of protecting the health of an individual seeking care, does not infringe on the individual’s decision making, and is consistent with widely accepted clinical standards of practice and evidence based medicine.”
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Chris Powell, press secretary for the Arkansas secretary of state, said the office received the initiative petitions on July 22, but it didn’t receive an opinion on the ballot titles and popular names from Attorney General Tim Griffin.
“When we told the person that they had to go through the Attorney General’s office to get their language approved first, they still asked if they could file these samples with us,” Powell said. “Hence, the reason for the ‘Received’ stamp instead of a ‘Filed’ stamp.”
Asked who submitted the documents, Powell said the person’s contact information wasn’t collected because it wasn’t an “official filing.”
No new ballot question committees have registered with the Arkansas Ethics Commission.
Planned Parenthood Great Plains Votes said in a statement it was reviewing the measure’s language. The group is Planned Parenthood’s advocacy arm for Arkansas, Kansas, Missouri and Oklahoma
“We’re reviewing the proposed ballot language and analyzing its real-life implications on abortion care in Arkansas,” said Anamarie Rebori Simmons, a spokesperson for Planned Parenthood Great Plains Votes.
“We remain committed to building meaningful and equitable access for Arkansans suffering under a ban on critical health care,” Simmons said. “A fundamental aspect of restoring access is eliminating arbitrary restrictions that put political limitations on providers’ ability to give every patient the evidence-based care they deserve. As we have long known, it’s not the role of government to interfere in the doctor-patient relationship, and we’re committed to a future in Arkansas where every patient can seek abortion care without fear of their politician being in the exam room.”
Several other local and national abortion groups — including NARAL Pro-Choice America, the Arkansas Abortion Support Network, the ACLU and others — didn’t respond to inquiries from the Advocate or said they were unable to comment on Thursday about whether they were involved in the effort. David Couch, a Little Rock attorney who has worked on a number of Arkansas ballot measures, said he had no comment.
Last election cycle, initiative petitions were first filed with the secretary of state, according to the law at the time. Signatures were then gathered and verified. Finally, the State Board of Election Commissioners determined the sufficiency of the proposed ballot title and popular name.
However, the Arkansas General Assembly changed that process in March with Act 194. The law returned the responsibility of reviewing ballot titles to the attorney general’s office before signature-gathering may begin.
One possible explanation for the proposals being submitted to the secretary of state could be to establish a paper trail for future litigation. Other initiative groups have questioned whether emergency clauses passed during the 2023 legislative session in Arkansas were valid.
Indeed, a circuit judge ruled that the LEARNS Act’s emergency clause was not properly enacted. (Emergency clauses allow legislation to take effect immediately rather than 91 days following the Legislature’s adjournment. This year, that was Aug. 1.)
If that ruling is upheld by the Arkansas Supreme Court, it would set up a similar challenge for Act 194, meaning that the secretary of state’s office may have still been the proper place to submit initiative petitions in July.
If an abortion measure qualified here, 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.
Abortion advocates have been emboldened to attempt ballot efforts — even in red states — following successful reproductive rights initiative campaigns in Kentucky, Kansas, Michigan and Montana last year.
To get a constitutional amendment on the ballot in Arkansas, petitioners must collect signatures from at least 10% of the number of voters in the most recent gubernatorial election by July 5, 2024. For this cycle, that is 90,704 valid signatures.
A new state law has made it more difficult to qualify an initiative for the ballot, increasing the number of counties that signatures must be gathered in from 15 to 50. It has been challenged in an ongoing lawsuit.
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Abortion in Arkansas
Arkansas was one of several states with a “trigger law” that banned abortion in June 2022 almost immediately following the Dobbs v. Jackson Women’s Health decision by the U.S. Supreme Court that overturned Roe v. Wade.
The only exception to the ban is to save the life of the mother in a “medical emergency.” A new law passed this year, Act 848, specifies that abortions performed under this exception are only legal if they are performed in a hospital or emergency room.
Mifepristone, one of the two pills used in medication-induced abortions, remains available across the U.S. through the mail. It is facing a federal lawsuit that is expected to go to the U.S. Supreme Court.
Earlier this year, Democratic state legislators proposed exceptions to Arkansas’ abortion ban for child victims of incest, to protect the health of the mother and to induce labor in cases of fetal abnormalities “incompatible with life.”
The Republican supermajority in the Legislature rejected all three proposals.
Arkansas has the nation’s highest maternal mortality rate and the third-highest infant mortality rate, according to the Arkansas Center for Health Improvement. The state also has the highest teenage pregnancy rate, according to a report from the Annie E. Casey Foundation.
Many Arkansans have sought permanent sterilization or long-acting reversible contraception in light of the Dobbs ruling, the Arkansas Advocate reported in June.
Abortion access groups in Arkansas said they have seen their costs increase since Dobbs, 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.
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