Could the End of Roe v. Wade Trigger Arkansas’ 1969 Abortion Ban?

As the United States nears the likely end of Roe v. Wade, abortion providers, advocates, and opponents alike are attempting to navigate a maze of laws stretching back, some more than a century old, that will dictate who is able to obtain an abortion.

And as the Biden administration continues to remain silent on its preparations for potential legal chaos following Roe’s reversal, states across the country are scrambling to come up with a plan.

In some states, officials are trying to intervene: Michigan, Gov. Gretchen Whitmer is desperately trying to repeal the state’s 91-year-old abortion ban, which remains on the books, and in Wisconsin the state’s Democratic attorney general has declared that he will not enforce a near-total ban on abortion that dates back to 1849. Both of the Republicans who seek to unseat him, however, have vowed to do so.

But in states like Arkansas, where a pre-Roe ban with no exceptions for rape, incest, or life of the patient has never been repealed and the state’s so-called “trigger law” has supporters at every level of government, the question of whether that decades-old laws could still be enforced is of major concern for the state’s few abortion providers.

“That potential pre-Roe law provided major conflict for people who were doing terminations to save the life and health of the mother, even in an in-patient or hospital setting,” said Laurie Williams, clinical director of Little Rock Family Planning Services, the only facility in the state that performs surgical abortions. “Obviously, a law like that could have far further-reaching implications.”

The passage of a pair of trigger laws in 2019 and 2021 by the state legislature, both of which would ban the procedure except to save the life of a patient in the event of Roe’s downfall, has only added an additional layer of uncertainty before the Supreme Court’s decision next month.

“If elective abortions are no longer legal because of the most recent trigger law that was passed, then we won’t providing be providing abortions,” Williams said. “If this decision stands as written, then it will be absolutely devastating to care for women in Arkansas. Abortion will be completely inaccessible.”

The Biden administration has promised that its “whole-of-government” response team, helmed by the White House Gender Policy Council in coordination with the Department of Health and Human Services and the Department of Justice, will examine “what legal tools we have to insulate women and providers.”

Like nearly every other component of the White House’s “whole-of-government” response to the looming decision, however, any specific guidances for law enforcement or for those who may seek an abortion remain almost entirely under wraps. Despite state governors and attorneys general across the country pledging to immediately enforce—or immediately ignore—preexisting abortion bans, the administration has avoided providing any explicit information about who may face jail time for performing an abortion, and under what circumstances.

“What we’re looking at here is nearly half the country potentially not having—allowing women to have access to choices about their own bodies and their health care that has been the law of the land for 50 years,” White House press secretary Jen Psaki told reporters on Monday, in response to a question asking why the administration had not communicated what the legal options those seeking abortions might have when Roe falls. “So, we’re taking into account all of that as we look at options.”

Meanwhile, people on all sides of the abortion issue say that legal guidance from the federal government can’t wait for a final decision from the Supreme Court, when confusion will reign.

“There are several pre-Roe abortion bans on the books that are just as restrictive as Arkansas,” said Elizabeth Nash, associate director of state issues at the Guttmacher Institute, a research organization that advocates for abortion access. But, Nash said, “that Arkansas pre-Roe ban might not be the ban that goes into effect.”

Abortion opponents, too, are navigating the tangle of pre-Roe bans, pending legislation targeting abortion access, and so-called “trigger laws” that could immediately bar the procedure in more than a dozen states when Roe is struck down.

“Besides the trigger law that was passed in 2019, we passed a law in 2021 that is an actual prohibition of abortion except for life-of-the-mother cases,” said Rose Mimms, executive director of Arkansas Right to Life. “So I would suspect that that would be the law that would go into effect if Roe v. Wade is overturned, but I can’t say for certain.”

The question is particularly high stakes than in Arkansas, where the pre-Roe ban still on the books is one of the most restrictive in the country, with no exceptions for any abortion performed after “quickening,” when fetal movement is first detected. The state’s first trigger law, which bars all abortions unless to save the life of a patient in a medical emergency, was passed in 2019; a subsequent law signed last year by Gov. Asa Hutchinson would make performing an abortion outside of that scope a felony, punishable by up to 10 years’ imprisonment and a fine of up to $100,000.

“Arkansas never repealed its pre-Roe prohibition. And it is very, very broad,” said Professor Jill Wieber Lens, a leading expert on legal recognition and treatment of stillbirth at the University of Arkansas Law School. “I don’t see any exceptions—rape, incest, or even for the pregnant person’s life.”

Lens said that it was her understanding that the trigger law, and the subsequent law making performing an abortion a felony, would likely trump the original law.

“The two statutes conflict,” Lens said, and thus the newer one controls.”

Keith Ingram, the Democratic minority leader in the Arkansas state senate, told The Daily Beast that no matter which law goes into effect, Arkansas’ abortion bans are “the most restrictive in the country,” and would likely go into immediate effect once the state attorney general determines that Roe has been struck down. Following the leak of the Supreme Court’s draft opinion to Politico last week, the state’s solicitor general, Nicholas Bronni, echoed that prediction, announcing that the most recent laws would go into effect “immediately” following a Roe reversal.

“The ban itself is exactly the same, the confines of the ban is exactly the same, the penalties associated with both bans are exactly the same,” Bronni told reporters in a hastily scheduled press conference following the publication of the Politico story. “They’re essentially the same law.”

But Williams, the director of one of the state’s two remaining abortion providers, told The Daily Beast that providers are still preparing for a legal nightmare as long as the original law is on the books.

“Women who can will need to travel, but we know from what we’re seeing in Texas, that there’s definitely women who will find abortion altogether inaccessible.”

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