A proposed constitutional amendment proposing a limited right to abortion in Arkansas needs further revisions before it can appear on the 2024 statewide ballot, Attorney General Tim Griffin wrote in a Thursday opinion.
Griffin rejected a previous version of the proposed amendment in November. The initial proposal said state government entities would not be allowed to “prohibit, penalize, delay or restrict” Arkansans’ access to abortion “within 18 weeks of conception.”
Both rejected proposals would have permitted abortion services in cases of rape, incest, a “fatal fetal anomaly” or to protect a pregnant person’s life or health.
The revised version, which Steven Nichols submitted to the attorney general’s office Dec. 18, replaced the word “conception” with “fertilization” and included a definition of the term, in response to one of Griffin’s concerns about the previous version.
The second draft also specified the health exception to cover only physical health, since Griffin said the first draft’s exception was too vague. The updated exception defined “physical health” as “a physical disorder, physical illness, or physical injury… caused by or arising from the pregnancy itself, or when continuation of the pregnancy will create a serious risk of substantial impairment of a major bodily function.”
Griffin said in Thursday’s opinion that the definition was potentially misleading.
“It defines ‘physical health,’ not as the absence of disorder, illness, or injury, but as the presence of those things,” Griffin wrote. “That is the opposite of the common meaning of ‘health.’… I suspect you intended something like this: to permit ‘abortion services’ when, among other things, they ‘are needed to protect the pregnant female from a physical disorder, physical illness, or physical injury.’”
The second proposal defined the term “abortion services” and used it in place of the term “access” in the first proposal, also in response to Griffin’s November feedback.
Other changes that Nichols, who also submitted the earlier proposal, made in response to the first rejection included:
- Changing the popular name from The Arkansas Reproductive Healthcare Amendment to The Arkansas Abortion Amendment to alleviate Griffin’s concern about “partisan coloring” and misleading language.
- Amending the definition of “fatal fetal anomaly” to attempt to provide clarity.
- Striking a section from the first proposal that said the Arkansas Legislature would be allowed to “prohibit or restrict access to abortion only when it establishes a compelling government interest achieved by the least restrictive means,” since Griffin said this contradicted the amendment’s stated purpose.
- Proposing to alter Amendment 68 of the state Constitution, which currently states that Arkansas policy “is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution” by adding “and the Constitution of the State of Arkansas” at the end.
Abortion is illegal in Arkansas except to save the life of a pregnant person in a “medical emergency.” The U.S. Supreme Court decision that overturned Roe v. Wade in June 2022 activated Arkansas’ “trigger law” regarding abortion.
Arkansans for Limited Government, a ballot question committee advocating for the passage of the amendment, “will work with the drafter to make the singular correction requested in today’s opinion” and “will promptly submit a third draft,” the group said in a statement.
If Griffin approves a proposed amendment, supporters must then collect 90,704 signatures from registered voters by July 5 to qualify for the November ballot.