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, 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. 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provisions of the 1875 law had been repealed by implication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.
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were superseded by or omitted from the Arkansas Code of 1987,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, and
section 41-2560, which guarantees rights of conscience. 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. Thus,
current Arkansas law is based upon a post-Roe codification
of law that substantially revised the pre-Roe laws.
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to a challenge that it has been repealed by implication with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.
Ark. Stat. Ann. § 41-301 (Supp. 1969),
renumbered as § 41-2551 in 1977. See Ark.
Stat. Ann. § 41-2551 (1977).
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.
Smith v. Bentley, 493 F.Supp. 916 (E.D. Ark. 1980).
as Ark. Code Ann. § 5-61-102
as Ark. Code Ann. § 20-16-601(Michie
Code Ann. Tables, Vol. A (1995) at 299 (Act No.
4 of 1875); Vol. B (1995) at 86 (Act No. 61 of 1969).
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.