Analysis of the current status of the pre-Roe statutes is complex. The pre-Roe statutes included an 1875 law that prohibited all abortions except to save the life of the mother,1 and a more recently minted law based upon § 230.3 of the Model Penal Code, which prohibited abortions except when there was “substantial risk that continuance of the pregnancy would threaten the life or gravely impair the health of the . . . woman,” when there was “substantial risk that the child would be born with grave physical or mental defect,” or when the pregnancy resulted from a promptly reported act of rape or incest.2 In 1980, a three-judge federal district court held that the substantive provisions of the 1875 law had been repealed by implication with the enactment of the 1969 law, and then declared unconstitutional and enjoined the provisions of the 1969 law.3
All of the abortion provisions on the books on January 22, 1973 were superseded by or omitted from the Arkansas Code of 1987, except § 41-2553, the first section of 1969 law, which prohibits all abortions,4 and section 41-2560, which guarantees rights of conscience.5 The exceptions in the 1969 law based on the Model Penal Code were deleted from the books with the adoption of the Arkansas Code of 1987, leaving only the section prohibiting abortion.6 Thus, current Arkansas law is based upon a post-Roe codification of law that substantially revised the pre-Roe laws.
The prohibition of abortion embodied in § 5-61-102 may be subject to a challenge that it has been repealed by implication with significant post-1987 legislation regulating abortion. Assuming, however, that § 5-61-102 is not successfully challenged on that basis, abortion would be illegal in Arkansas if Roe v. Wade were overruled, once the injunction issued in Smith v. Bentley is dissolved.7
1 Ark. Stat. Ann. § 41-301 (Supp. 1969), renumbered as § 41-2551 in 1977. See Ark. Stat. Ann. § 41-2551 (1977).
2 Ark. Stat. Ann. §§ 41-303, 41-304. (Supp. 1969), renumbered as §§ 41-2553, 41-2554 in 1977. See Ark. Stat. Ann. §§ 41-2553, 41-2554 (1977). The law imposed other conditions. Abortions could be performed only in licensed, accredited hospitals and two physicians, in addition to the attending physician, had to certify that the procedure was justified by one of the circumstances specified in the statute. Id. §§ 41-306, 41-307, 41-308, renumbered as §§ 41-2557, 41-2558, 41-2559 in 1977. If the abortion was being sought by an unmarried minor or an incompetent, the consent of her parents or guardian was required and, if she was married, the consent of her husband was required. Id. § 41-305, renumbered as § 41-2555 in 1977. There was also a residency requirement. Id. § 41-306, renumbered as § 41-2556 in 1977.
3 See Smith v. Bentley, 493 F.Supp. 916 (E.D. Ark. 1980).
4 Now codified as Ark. Code Ann. § 5-61-102 (Michie 1997).
5 Now codified as Ark. Code Ann. § 20-16-601(Michie 2000).
6 See Ark. Code Ann. Tables, Vol. A (1995) at 299 (Act No. 4 of 1875); Vol. B (1995) at 86 (Act No. 61 of 1969).
7 Section § 2 of a state constitutional amendment adopted on November 8, 1988, provides that “The policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the federal constitution.” Ark. Const. amend. LXVIII, § 2. This language “would empower the General Assembly to prohibit abortion under any circumstances to the extent permitted under the Constitution of the United States.” Arkansas Women’s Political Caucus v. Riviere, 677 S.W.2d 846, 849 (Ark. 1984) (enjoining, on technical grounds, state officials from placing earlier version of Amendment LXVIII on the ballot). However, apart from specific statutory language prohibiting abortion (e.g., § 5-61-102), the constitutional language, by its own terms, does not criminalize or otherwise prohibit abortion. Section 2 “merely expresses the public policy of the state,” and is not self-executing because it “does not provide any means by which [that] policy is to be effectuated.” Knowlton v. Ward, 889 S.W.2d 721, 726 (Ark. 1994). Apart from § 5-61-102, it is unlikely that the Arkansas post-viability statute, see Ark. Code Ann. § 20-16-705(a) (Michie 200), would effectively prohibit post-viability abortions because it allows such abortions to be performed to preserve the pregnant woman’s life or health, health not being defined in the statute. In interpreting the undefined health exception in the pre-Roe District of Columbia abortion statute, the Supreme Court held that “the general usage and modern understanding of the word ‘health’ . . . includes psychological as well as physical well-being.” United States v. Vuitch, 402 U.S. 62, 72 (1971). See also Doe v. Bolton, 410 U.S. 179, 192 (1973) (in determining whether an abortion is medically necessary, “all factors– physical, emotional, psychological, familial, and the woman’s age–relevant to the well-being of the patient” may be considered). There would be few, if any, abortions that could not be justified on psychological or emotional grounds.
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