In a divided vote, the state Board of Health approved removing the phrase "death of the unborn child" from proposed regulations implementing abortion-related laws passed by the Arkansas Legislature last year.
Instead, the regulations governing abortion facilities would continue to define abortion as a procedure resulting in the "termination of the pregnancy."
The 12-6 vote, with five other members abstaining, came despite warnings from state Department of Health Director Nate Smith and other department officials that the Legislature likely would reject the wording -- and might even retaliate against the board for what could be perceived as defiance.
Gov. Asa Hutchinson, who would have to approve the regulations before they go the Legislature, said in a statement that he does not support the board's definition.
"My director of the Department of Health advised the board against this, and I think he was providing good counsel," Hutchinson said.
"This change does not seem consistent with the intent of the people of Arkansas, and I would fully expect this change that the Board of Health suggested to be reviewed with a very critical eye and likely be overturned."
The regulations would implement six laws passed by the Legislature last year, as well as the parts of a 2013 law that remained in effect after a federal judge struck down another part that banned most abortions at or after 12 weeks of pregnancy.
A draft of the proposed regulations, prepared by the Health Department staff, echoed language from at least three of the 2015 laws in defining abortion as a procedure meant to terminate a pregnancy with the "knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child."
On Jan. 20, a committee formed by the board to study the regulations unanimously passed a motion objecting to the phrase "death of the unborn child," according to meeting minutes.
The members decided that the full board should consider alternatives to the phrase.
Board member George Harper, who proposed the wording approved by the board on Thursday, said language referring to a death "has gone too far."
"I understand that probably, in part, it was designed to be a deterrent to abortion and make a woman and her doctor feel guilty about what they're doing," said Harper, a retired Health Department official who represents consumers on the board.
But, he said, the board's role is to adopt regulations "in a way that is scientific and that avoids ideology and religion and politics to the extent that that's possible."
"If we're just a rubber stamp [of] exactly what the Legislature does, I don't really see why we need to meet," Harper said.
Board members Gary Bass, Lawrence Braden, Glen "Eddie" Bryant, Beverly Foster, Anthony Hui, Susan Jones, Mary Beth Ringgold, Robbie Thomas Knight, Peggy Walker, Anika Whitfield and James Zini voted along with Harper to support keeping the definition as the "termination of the pregnancy."
Smith, Surgeon General Greg Bledsoe, Terry Yamauchi, Alan Fortenberry, Catherine Tapp and Susan Weinstein voted against Harper's wording.
Board President Jim Lambert abstained, along with Miranda Childs-Beebe, Patricia Bell, Thomas Jones and Lee Johnson.
The board's vote came just over two weeks after the members of the Legislative Council's Administrative Rules and Regulations Subcommittee complained about proposed Arkansas State Medical Board regulations that would replace the terms "unborn human individual" and "unborn child" with the word "fetus."
Kevin O'Dwyer, an attorney for the state Medical Board, said at that meeting that he would take the regulations back to the board and communicate the lawmakers' feedback.
The board likely will take up the issue at its meeting in April, O'Dwyer said.
Smith said he was less worried about the exact wording of the definition in the regulations, which most patients will probably never see anyway, and more concerned about the materials that are distributed to patients.
Language referring to the death of an unborn child is already in consent forms that minors seeking abortions are required to sign under Act 934 of 2015, sponsored by Rep. Justin Harris, R-West Fork. A form created by the Health Department under the law has been available to abortion providers since Jan. 1.
Smith also expressed doubt about whether lawmakers and Hutchinson would agree to any wording besides the wording used by the laws.
"I would certainly advise against playing a game of chicken with the Legislature because it would probably not go well," Smith said.
The other 2015 laws referring to abortion as the death of an unborn child are Act 577, which would add requirements for doctors who provide abortion pills, and Act 1086, which increased the waiting period between a doctor's consultation and an abortion from 24 hours to 48 hours.
In response to lawsuit by Planned Parenthood of the Heartland, U.S. District Judge Kristine Baker has temporarily halted the enforcement of Act 577. The lawsuit contends the law would effectively do away with medication abortions in the state.
Shortly after he took office in January 2015, Hutchinson issued an executive order requiring agencies to submit their rules to his office for approval before sending them to the Legislature for review.
Hutchinson spokesman J.R. Davis said the draft of the Medical Board rules approved by the governor used the term "unborn child" rather than fetus but that the wording was changed before it was submitted to the rules and regulations subcommittee.
Sen. Jason Rapert, R-Bigelow, and sponsor of the 2013 law, called the actions by the Medical Board and the Board of Health "gamesmanship."
"They need to have a refresher course on what their authority is and what they're supposed to be doing," Rapert said.
He said the wording in 2015 laws was meant to counter a "very, very long-term effort to dehumanize abortion."
"Recognizing the child as a child is much different than trying to use clinical terminology that hides the fact that you're dealing with a living human being," Rapert said.
A Section on 01/29/2016