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New Arkansas Law Lets Rapists Stop Abortions, Activists Say

People attend an anti-abortion rally at the Arkansas state Capitol in Little Rock on Jan. 18, 2015. (AP Photo/Danny Johnston)

Arkansas Gov. Asa Hutchinson (R) quickly jumped on signing Arkansas Act 45, the “Unborn Child Protection from Dismemberment Abortion Act.”

He had five days to sign the bill. Hutchinson’s name was on it only a few hours after it won legislative approval.

“We are grateful that Governor Asa Hutchinson wasted no time in signing the Arkansas Unborn Child Protection from Dismemberment Act into law,” Rose Mimms, executive director of Arkansas Right to Life, told National Right to Life News Today, “and put an end to this horrific abortion ‘procedure’ in Arkansas.” HB 1032 was Mimms’ organization’s number one priority for 2017.

Soon after Hutchinson’s signature went on the legislation, ACLU of Arkansas president Rita Sklar promised on her group’s Facebook page that they too would “waste no time” in suing to stop the new law.

Proponents said they were trying to stop a “barbaric” procedure and were confident the new law would survive a court test.

“I think this moves us toward a more compassionate society,” the legislation’s co-sponsor, Sen. David Sanders (R), said before the vote. “I think this is a humane bill.”

Arkansas Act 545 is intended to stop a common second-trimester abortion procedure known as dilation and evacuation. It involves using surgical instruments to scrape the pregnant woman’s uterus, and then a vacuum to suck out any fetal remains.

Ninety-five percent of the abortions conducted in the U.S. are classified as D&E.

Two other states — Mississippi and West Virginia — have similar legislation in place. However, similar laws in four other states — Oklahoma, Kansas, Louisiana and Alabama — are being held up by court challenges.

“The D&E method is the most common method of second-trimester abortion in the United States and in the world,” Laura McQuade, president and CEO of Planned Parenthood Great Plains, told the Daily Beast. “It is the method endorsed by the World Health Organization, the American College of Obstetrics and Gynecology, and the American Medical Association.”

None of that matters much to Sen. Sanders.

“You see a baby, an unborn life, a fetus, engaging in fight or flight reaction to the forceps going into the womb, trying to remove an arm, remove a leg,” Sanders said.

Rep. Andy Mayberry (R) called the D&E procedure “gruesome” and “barbaric” when he introduced the legislation in the House.

Mayberry is also the president of Arkansas Right to Life.

But the case being made against Arkansas Act 45 goes beyond the debate over regulating abortion to death. There is a clause in the Arkansas version of the law that really bothers civil rights and pro-life advocates.

They say the law would not only stop D&E abortions in the second trimester, it would also allow a rapist to sue the woman trying to have the D&E abortion.

The law would allow the father of the unborn child to sue the abortion provider for monetary damages or for a court injunction to block the procedure. Opponents say if the pregnancy was the result of spousal rape that would mean the rapist could sue to block the abortion. He could not sue for money but he could go for the court injunction.

Family members, even the pregnant woman’s parents, could also sue if the mother was a minor.

This legislation was a top legislative priority of Right to Life in Arkansas.

Mayberry said there was never any sinister intent in the drafting of that clause.

“We’ve tried to account for all the worst-case scenarios,” he said.

Holly Dickson, legal director for the American Civil Liberties Union of Arkansas, took issue with Mayberry’s explanation.

“They created a whole new right ― the right of a husband or family member to sue a doctor on behalf of an adult patient,” Dickson told the Huffington Post. “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.”

Proponents stress that there are other abortion methods open to women. So, they say the threat of a lawsuit over the D&E procedure should not be seen as allowing a rapist to stop the abortion.

Pro-life advocates argue the 1973 Roe v. Wade decision by the Supreme Court protects a woman’s right to an abortion until the fetus would be “viable” outside the womb, which is somewhere around 22 weeks.

Gov. Hutchinson has said that new medical research is changing the definition of fetal viability, so the definition of pregnancy trimesters could also change.

Still, no matter how medical technology evolves, and no matter what other options are open to women, Sklar is confident Arkansas Act 45 will not survive a court challenge.

And she has promised the ACLU will sue before the law is scheduled to go into effect, sometime this summer.

“The law puts an undue burden on a woman’s constitutional right to obtain a second-trimester abortion,” Sklar told Reuters, “and I think the legislature knows it and doesn’t care.”