Arkansas Anti-Choice Legislation Threatens Right to Abortion

By Sophie Lovering 

Sophie Lovering is a junior in the College of Arts and Sciences at the University of Pennsylvania majoring in Philosophy, Politics, and Economics (PPE) and minoring in American Sign Language and Deaf Studies.

On March 9, 2021, Arkansas Governor Asa Hutchinson signed into law an extremely restrictive abortion ban, only allowing abortion in cases where “it’s necessary to save the life or preserve the health of the fetus or mother” [1]. Unlike other restrictive abortion laws commonly supported by anti-choice advocates, Senate Bill 6 does not allow any exceptions in situations of rape and incest [1]. Governor Hutchinson himself said he would have preferred the legislation include the exceptions for rape and incest, but stated that the goal of this strict authorship is to bring the fight over abortion back to the Supreme Court [1]. 

On March 9, 2021, Arkansas Governor Asa Hutchinson signed into law an extremely restrictive abortion ban, only allowing abortion in cases where “it’s necessary to save the life or preserve the health of the fetus or mother” [1]. Unlike other restrictive abortion laws commonly supported by anti-choice advocates, Senate Bill 6 does not allow any exceptions in situations of rape and incest [1]. Governor Hutchinson himself said he would have preferred the legislation include the exceptions for rape and incest, but stated that the goal of this strict authorship is to bring the fight over abortion back to the Supreme Court [1]. 

In 1973, the Supreme Court of the United States decided in Roe v. Wade that a woman has the right to terminate her pregnancy by abortion [2]. The plaintiff filed a lawsuit against Henry Wade, the district attorney of Dallas County, Texas, challenging a Texas law which rendered abortion illegal except to save a woman’s life [2]. Three years later, the landmark case was decided by the Supreme Court. Roe successfully alleged that state laws were unconstitutionally vague and abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments [2]. 

The Texas law challenged by Roe v. Wade closely resembles Arkansas Senate Bill 6, which is notably shrouded in propaganda such as “protect the lives of unborn children,” “crime against humanity,” and “ended the lives of unborn children” [3]. Arkansas legislators believe that this near-total ban will create a different outcome than Roe v. Wade in the Supreme Court this time because of the newly installed 6-3 conservative majority on the Supreme Court [4]. Associate Justice Amy Coney Barrett, who replaced Ruth Bader Ginsburg following her death, personally opposes abortion and previously voted twice to revisit opinions that struck down abortion restrictions [4]. While this does not necessarily mean that her personal views will impact her legal decisions, politics, particularly in the case of abortion, is inherently personal. For example, many pro-choice advocates recognize that the bill’s language, “protect the lives of unborn children,” is contradictory, as something unborn necessarily lacks a life. 

It remains unclear whether the Supreme Court is willing to take up a direct challenge to Roe, and whether they will use Senate Bill 6 as their vehicle of doing so [4]. The Court is nearing the end of its period of hearing oral arguments, and usually concludes decisions by early July. This means that the earliest any abortion challenge would be heard by the justices is October of 2021 [4]. 

However, it is important to recognize that the Supreme Court’s conservative majority may suggest a push for anti-choice legislation on the horizon. Other state legislatures and anti-choice advocates may feel emboldened by the apparent success of Arkansas Senate Bill 6, and take action to restrict access to abortion. Women in Arkansas currently face a felony and a fine should they exercise their right to an abortion, but representative Holly Dickinson of the ACLU ensures that “we’ll fight as long as it takes” to keep abortion legal [1]. 

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

References
[1] Diaz, Jaclyn. “Arkansas Passes Near-Total Abortion Ban — And A Possible 'Roe V. Wade' Test.” National Public Radio. March 10, 2021. https://www.npr.org/2021/03/10/975546070/arkansas-passes-near-total-abortion-ban-as-lawmakers-push-for-supreme-court-case.
[2] “Roe v. Wade.” Oyez. https://www.oyez.org/cases/1971/70-18.
[3] “SenateBill 6.” State of Arkansas. March 9, 2021. https://www.arkleg.state.ar.us/Bills/FTPDocument?path=%2FBills%2F2021R%2FPublic%2FSB6.pdf.
[4] Cillizza, Chris. “What the Arkansas abortion ban is really trying to do.” CNN. March 10, 2021. https://www.cnn.com/2021/03/10/politics/arkansas-abortion-ban-hutchinson/index.html.