Activists say state’s blanket ban on the safest form of second trimester abortion could be ruled unconstitutional
A pregnant woman’s husband will have the power to stop her from having an abortion, even in cases of spousal rape, under a new law introduced in the US state of Arkansas.
Most second trimester abortions will also be banned by Act 45 – the Unborn Child Protection From Dismemberment Abortion Act – which will make it possible for husbands to sue doctors who carry out abortions for civil damages, or get an injunction to block the termination.
The pro-life law, which was pushed through in just two months by the state’s Republican government, prohibits all dilation and evacuation (D&E) procedures, in which the physician removes the foetus from the womb with surgical tools.
D&E procedures are the safest way for women to end their pregnancies after 14 weeks of gestation, according to the American Medical Association.
But the medical procedure will now become a felony in the southern state, punishable by a $10,000 fine or six years in prison.
This is despite 683 of Arkansas’s 3,771 abortions being D&E in 2015, according to the state’s health department.
A clause in the legislation also states the husband of a woman seeking an abortion, if he is presumed to be the baby’s father, can file a civil lawsuit against the physician for monetary damages or “injunctive relief” ― a court order that would prevent the doctor from going ahead with the procedure.
The woman’s parents or legal guardians can also sue to stop the abortion, if she is a minor.
Although a husband cannot win money in cases of “criminal conduct” against his wife ― namely, spousal rape ― he could still sue to block her from having the abortion.
State Representative Andy Mayberry, who co-sponsored the bill, called D&E a “gruesome, barbaric procedure”, adding that the routine procedure “is one that no civilised society should embrace”.
Mr Mayberry is also the president of Arkansas Right to Life, a subsidiary of America’s largest pro-life organisation, the National Right to Life Committee.
Karen Musick, co-founder of Arkansas Abortion Support Network, told The Daily Beast she could not fathom how the bill had become law.
“There is zero part of me that understands why a rapist or someone who got someone pregnant against their will, maybe incest, would have any right in that decision,” she said. “I cannot wrap my brain around the fact that there would be anyone who thinks otherwise.”
Holly Dickson, legal director for the American Civil Liberties Union of Arkansas, told the Huffington Post the bill might not be constitutional.
“They created a whole new right ― the right of a husband or family member to sue a doctor on behalf of an adult patient,” she said. “I cannot begin to tell you what the intent was, but we have raised concerns about that provision and the entire rest of the bill, which is unconstitutional.”
The ACLU of Arkansas has said it plans to challenge the abortion law in court before it goes into effect later this year.
Six other states have passed nearly identical laws, and in all four states where the law was challenged ― Louisiana, Alabama, Mississippi and West Virginia ― it was struck down by the courts.
The Supreme Court’s 1973 decision in Roe versus Wade protects a woman’s right to have an abortion up until the foetus would be viable outside the womb, around 22 weeks of pregnancy.