Legal Restrictions
and
Thriving Anyway.
A Guide to Arkansas Law Post-Roe
We are in this together.
We are using the image and medicine of Coyote to help us strategize, adapt and respond to the changing landscape around access to abortion in Arkansas and in the U.S. more broadly.
Coyote is flexible, stealthy, and adaptable.
Coyote works in a group and is playful, even in times of stress.
These are all skills we believe we need to thrive in the world today, and to build a new, just world.
Q: What does overturning Roe do on a national level?
Overturning Roe leaves it up to individual states to decide whether and to what degree to legalize abortions. We can expect some states to continue to allow and even strengthen access to abortions while other states will ban it outright.
Q: Will abortion become illegal at the federal level if Roe is overturned?
No. Overturning Roe will not make abortion federally illegal.
NOTE: While overturning Roe opens up the possibility that Congress could at some point enact a national abortion ban, that possibility is remote. Both chambers of Congress would need to pass such a law, and the president would need to sign it (or Congress would need enough votes to overturn a presidential veto). While it’s understandable that people are talking about a national ban, that is not something that would happen immediately upon Roe being overturned.
Coyote reminds us that all things are sacred and yet nothing is sacred. Rather than spiraling with anxiety over what could be, we strengthen our connections with our communities, to fortify us for whatever arises.
Q: What happens in AR if Roe is overturned?
2019 Trigger law (SB 149) goes into immediate effect.
Q: What does the Arkansas trigger law do?
SB 149 prohibits any person from “purposefully perform[ing] or attempt[ing] to perform an abortion except to save the life of a pregnant woman in a medical emergency.”
Once the law goes into effect, no one may legally perform or attempt to perform an abortion in the state of AR unless it is necessary to save the life of a pregnant person in medical emergency.
NOTE: SB 149 uses the word “woman” throughout, though the state will likely enforce the statute against any pregnant person.
Coyote invites us to laugh at obstacles. Laughter breaks your fall.
Q: What does “medically necessary” mean?
SB 149 defines “medically necessary” as: “a condition in which an abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.”
This language is vague, but it is important to note that to count as “medically necessary” the danger to the pregnant person’s life must be physical (rather than, for example, psychological) in nature.
Q: Are there any other exceptions to the abortion ban?
Yes. SB 149 specifies the following exceptions:
(1) An abortion done with the purpose to “save the life or preserve the health of the unborn child.”
The law uses the word “abortion” in this context, but what they likely mean is induced labor, C-section, or other method of removing the fetus from the womb prematurely in order to keep it alive.
(2) An action done for the purpose of removing “a dead unborn child caused by spontaneous abortion.” A “spontaneous abortion” is the medical term for “miscarriage.”
(3) Removal of an ectopic pregnancy.
SB 149 specifically exempts removal of an ectopic pregnancy from the abortion ban. A future law may outlaw the removal of ectopic pregnancies, but the trigger law does not.
Coyote has found ways to thrive in inhospitable landscapes where other animals have perished. We must find a way to make ourselves at home wherever we find ourselves.
Q: Is there any penalty for violating the Arkansas abortion ban?
Yes. Violation of the prohibition against performing or attempting to perform an abortion is an “unclassified felony” with a fine of up to $100,000 or imprisonment up to 10 years.
Q: Is there any penalty for receiving an abortion under SB 149?
No. SB 149 specifically states that it does not “authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child.”
This is important. SB 149 appears to be specifically aimed at criminalizing abortion providers, NOT people who receive abortions. Prior to Roe, most abortion bans took this route.
Coyote is stealthy and agile;
an escape artist and thief.
Q: What about taking the abortion pill, also known as self-managed abortion?
That’s a little trickier. A doctor who prescribed abortion pills could potentially be prosecuted under SB 149 for “performing” an abortion. It’s less clear what would happen to someone who ordered abortion pills online (from a doctor located in another state or country), had them delivered to Arkansas, and then conducted a self-managed abortion in Arkansas.
Such a situation presents a catch-22: SB 149 criminalizes “any person” who performs an abortion, but also does not authorize the criminalization of the person receiving an abortion. What happens when the person who performs the abortion is also the person receiving the abortion? It’s unclear.
Arkansas Attorney General Leslie Rutledge gave an interview on PBS stating that she believes SB 149 would apply to the use of abortion pills. In theory the state could arrest anyone it believes has violated SB 149 regardless of what the text of the law says. Ultimately, SB 149 does not appear to have been written with the idea of a self-managed medical abortion in mind, and self-managed abortion will either be something that gets sorted out by the courts or the legislature may end up passing laws specifically aimed at self-managed abortions.
Coyote reminds us to let go of sentimental attachments to the status quo. Instead, we activate our radical imagination to find a way forward, over, around or through.
Q: What about contraception?
SB 149 does not authorize any prohibitions against the sale, use, prescription, or administration of any contraceptive measure, drug, or chemical if the contraceptive is administered “before the time when a pregnancy could be determined through conventional medical testing.”
In other words, SB 149 does not prohibit any contraceptive method, including Plan B and IUDs.
Q: Any other Arkansas-specific considerations?
Be aware that just because SB 149 is unclear about things like self-managed abortion, and does not specifically prohibit contraception, does not mean that Arkansas will not pass future laws further restricting access to reproductive rights. SB 149 will define the legal landscape immediately after Roe is overturned, but it is a floor not a ceiling.
Coyote helps us see traps we may be caught in, or ways that we may be fooling ourselves. We have to be canny.
Q: Could someone travel from Arkansas to another state where abortion is legal to get an abortion?
Yes. Currently, many states are taking steps to increase abortion access with the expectation that overturning Roe will lead to more people traveling out-of-state to receive an abortion. In theory, this is still legal. (See the last page of this zine for resources that can assist with travel out of state.)
Q: Could Arkansas prosecute someone for receiving an abortion in a state where abortion is legal?
This is complicated. Some states have proposed laws that would criminalize anyone who travels to another state to receive an abortion, even if abortion is legal in that state. There are a lot of legal issues at play here, and it’s not necessarily clear if states will be allowed to pass such restrictions.
Among other legal considerations is something called the “Dormant Commerce Clause” which is a prohibition implicit in the Commerce Clause of the Constitution against states passing legislation that discriminates against or excessively burdens interstate commerce.
If Arkansas decides to pass a law banning Arkansans from traveling to another state to receive a legal abortion, that could be a violation of the Dormant Commerce Clause. If pregnant people fear traveling from Arkansas to California, that could impact interstate commerce between the two states.
However, it will most likely be up to courts to determine whether such a law would violate the Dormant Commerce Clause, and conservative activist judges are likely to be biased in their rulings.
The Dormant Commerce Clause is not the only legal uncertainty about laws banning out-of-state abortions, but it is a good example of how complex the issue is. It is very likely that we will not know what will happen with these laws until a state has passed one and the issue has gone before a federal court.
At the moment, Arkansas does not have any such law on the books, but it could adopt one going forward.
When hunting, Coyote uses cunning and strength, rather than speed. In our fight for justice, we understand that we are playing the long game, and that we are stronger together.
Key Takeaways
If Roe is overturned, SB 149 will go into immediate effect in Arkansas.
SB 149 criminalizes abortion providers, not the person receiving the abortion.
Narrow exceptions are allowed under SB 149, including an abortion to save the life of the pregnant person if their life is being physically threatened, and the removal of ectopic pregnancies.
It is unclear whether self-managed medical abortion will be allowed under SB 149, but the law does clearly state that it does not authorize the criminalization of any person receiving an abortion.
SB 149 is best viewed as a floor, not a ceiling. It is where Arkansas will start if Roe overturned, but the state could pass additional laws further restricting access.
If Roe is overturned, abortion will still be legal in some states. Currently, it is legal to travel from Arkansas to those states to receive an abortion.