After the governor of Arkansas signed a law last week banning a type of late-term abortion, many people and news outlets became pretty confused about what exactly the law meant — including the governor himself, Asa Hutchinson.
The law itself, called The Arkansas Unborn Child Protection From Dismemberment Abortion Act, makes illegal an abortion procedure often used in later-term abortions or following miscarriages called “dilation and evacuation,” or D&E. It contains no exception for rape or incest and will go into effect later this year.
This procedure is used in the vast majority of second-trimester abortions. Anti-abortion advocates and legislators argued that the procedure causes a fetus pain. Advocates for abortion — such as the Center for Reproductive Rights and the American Civil Liberties Union — said that the law essentially criminalizes abortion in Arkansas after 14 weeks, since the only other procedure that can be used late-term is unsafe. The most strict abortion ban passed yet — in several states — has been after 20 weeks.
Hutchinson's office denied in an email to BuzzFeed News that the law was a "prohibition of abortion in the second, rather it is simply restricting a specific method of abortion in the second trimester.”
“The Governor has always had a pro-life position and opposed abortion except in cases of rape, incest or if the life of the mother is in danger," Hutchinson's office said. "This bill is consistent with his historic view."
ACLU Arkansas officials told BuzzFeed News they believe the law is unconstitutional and said they will challenge it in court before it goes into effect.
What's the confusion?
The confusion — which was shared even by Hutchinson's office — was centered around a specific clause giving spouses and parents the right to sue a doctor who performed, or intended to perform, a D&E procedure.
Some Twitter users and outlets, such as Rachel Zarrell of MTV News (and formerly of BuzzFeed News), activist Jay Franzone, RT, The Independent, and The Mirror, among others, misinterpreted the clause to mean that a husband has the right to sue his wife to prevent her from getting an abortion, even if he got her pregnant through rape. This is untrue.
There is a specific clause in the law preventing any legal action from being taken against a woman (or anyone other than a doctor) who receives or attempts to receive a D&E abortion:
"The following individuals are excluded from liability under this subchapter: (1) A woman who receives or attempts to receive a dismemberment abortion."
This misinterpretation made the rounds on Twitter and Facebook. One of Zarrell's tweets was retweeted more than 16,000 times and used in a number of ensuing articles on the subject, while The Independent's tweet got more than 10,000 likes.
In an emailed statement to BuzzFeed News, Hutchinson's office said that the law includes explicit exceptions for cases in which the husband raped his wife, making it impossible for him to take legal action against the doctor in that case.
"Out of specific concern for a woman who’s the victim of rape, the legislation provides that if the child is a result of rape, then the father cannot pursue any civil damages or injunctive relief," the email read. "He has no remedy—no engagement."
But it seems that even the governor's office is confused. Multiple lawyers contacted by BuzzFeed News said that the clause the governor is referring actually does enable a husband to prevent a doctor from performing an abortion on his wife, even if he got her pregnant through rape, it just prevents him from receiving monetary compensation ("civil damages") as a result:
"Civil damages shall not be awarded to a plaintiff if the pregnancy resulted from the criminal conduct of the plaintiff."
"In other words, if the woman was raped by someone else, the man can sue for an injunction or damages (against the doctor)," Jessie Hill, a professor at Case University law school who specializes in state reproductive legislation, told BuzzFeed News. "If the man raped his wife, he can sue for an injunction to prevent her from getting an abortion," but he will not receive money as a result of the lawsuit.
Haley Smith, legislative policy council at the ACLU, agreed with Hill that the Governor was wrong, but added that she thought the argument was basically moot anyway:
"If this law takes effect no doctor will be performing or attempting to perform abortions that violate this statute," Smith told BuzzFeed News. "No spouse will be suing to stop a doctor from providing this method of abortion to their wife because politicians will have already blocked the doctor from doing so."
So what does the law actually do then?
The law makes the most common procedure for second-trimester abortions illegal to perform in Arkansas, unless the procedure is necessary to preserve the life of the pregnant woman. In 2012 the Center for Disease Control reported that 95% of second-trimester abortions used D&E.
The law enables a husband to sue a doctor before or after the abortion procedure is performed.
If the husband files the suit before the abortion takes place he can prevent it from happening. Arkansas has a mandated 48 hour waiting period between a woman deciding with her doctor to get an abortion and actually getting one, which gives the husband a window to file his complaint.
If he files the lawsuit after the abortion has taken place, he can receive monetary damages from the doctor if the banned procedure was performed.
And if he got her pregnant through rape he can still file a lawsuit to stop the procedure — this could only occur if the wife tells the husband that she will be having a D&E procedure before she goes to get one, and if the husband files the lawsuit on time. In cases of rape the husband can't receive money from the lawsuit.
The woman who received or attempted to receive the abortion is protected from any form of legal punishment.
The ACLU and other abortion rights advocacy organizations told BuzzFeed News that they are worried the confusion and debate over section b) of this clause is distracting from the "extreme damage this bill will actually cause":
A cause of action for injunctive relief against a person who has purposely violated this subchapter may be maintained by:
(A) The woman who receives or attempted to receive a dismemberment abortion in violation of this subchapter;
B) A person who is the spouse, parent, or legal guardian of the woman who receives or attempted to receive a dismemberment abortion in violation of this subchapter
"I've seen lines like this in so many abortion bills during my 23 years in Arkansas, I can't even tell you which or when," executive director of ACLU Arkansas Rita Sklar told BuzzFeed News. She said provisions giving the spouse the ability to sue have always been taken out before the bill becomes law.
"We shouldn’t let it distract us from the true horror of this bill which is that it’s almost a ban on abortion after 14 weeks," Sklar said.
Jaweer Brown, the communications manager for the ACLU national chapter's reproductive rights division, agreed that this clause and the conversation around it was an attempt to distract advocates.
She called the clause "horrific" and "pernicious" and said it reminded her of other pieces of "outrageous" abortion legislation that served to distract from other regulations on abortion. She gave the example of Ohio governor John Kasich vetoing a six-week abortion ban, only to sign a 20-week one.
Sklar and Brown said the law leaves only one other abortion method for women seeking abortions after 14 weeks: induced labor, which can have a negative affect on a woman's health. "I don't know what a woman would do if she was forced to choose that," Sklar said.