Opinion

OPINION | BRENDA BLAGG: After overturn of Roe, how will state’s “trigger” law be enforced?

State’s ‘trigger’ law activated by Roe decision

The availability of abortion care for Arkansas women disappeared quickly last week.

It had been severely limited. Now, it's gone.

Attorney General Leslie Rutledge certified the state's "trigger law," making Arkansas one of the first states to once again ban most abortions.

Her action came Friday afternoon, within hours after the U.S. Supreme Court's overturned the Roe v. Wade decision that legalized abortion nearly 50 years ago.

The Supreme Court also overturned a related 1992 case, Planned Parenthood v. Casey, but Roe was the landmark 1973 decision that a majority of today's court said had been "egregiously wrong" from the start.

Five of the court's conservative justices voted to overrule Roe, while six upheld the Mississippi law that was at the center of the case. That law banned most abortions in Mississippi after 15 weeks of pregnancy. The remaining three justices, who constitute the court's liberal bloc, strongly dissented from the decision.

That outcome was anticipated but nonetheless shocked the nation, prompting large demonstrations from both supporters and opponents of the court's reversal.

More Arkansans than not probably welcomed the decision, given the state's Republican majority and history of pro-life legislation.

Arkansas is one of 13 states that had passed laws that would be triggered in anticipation that the court would overrule Roe.

The new Arkansas law makes no exception for victims of rape or incest but allows abortions to save the life of a pregnant woman in a medical emergency.

The 2019 law, Act 180, was sponsored by state Sen. Jason Rapert, R-Conway.

The law bars anyone from purposely performing or attempting to perform an abortion except to save the mother. Conviction of the unclassified felony carries punishment of a fine not to exceed $100,000, imprisonment not to exceed 10 years or both.

Those are stiff penalties.

Among the many questions prompted by the Roe decision is how the state's prosecutors and police will handle enforcement of the new bans on abortion.

They'll be the ones deciding, for example, whether to arrest or charge a provider with performing an illegal abortion.

Maybe the provider believed the woman's life to be at risk and that he or she was acting under the exception to the law.

How soon can a doctor or other provider intervene to save the woman's life without risk of prosecution for aborting the fetus?

Who really should make that judgment?

The Arkansas Legislature left it to the judicial system.

For the record, Arkansans have shown support for making most abortions illegal.

The 2021 Arkansas Poll, an annual survey sponsored by the University of Arkansas, reported late last year that 26 percent of respondents thought abortion should be illegal under any circumstance, while 16 percent thought abortion should be legal under any circumstance.

But the majority -- 51 percent -- said it should be legal only under certain circumstances. The poll didn't specify what circumstances.

Notably, Arkansas is recognized as one of the nation's most pro-life states. The Arkansas Poll, which indicates 77 percent thought that abortion should be illegal or legal only under some circumstances, underscores the point.

The availability of abortion services within the state have been declining anyway. Now, with abortion legally unavailable to most Arkansas women, they will have to travel out of state to get the service, if they can afford the time away from work or family and related costs of travel.

Abortion bans are in place now or soon will be in all the states surrounding Arkansas, which will lengthen the trips for so-called "abortion refugees" from the state.

Among the closest available providers are clinics in Kansas and Illinois, where potential patients may also encounter restricted access even if they make the hours-long trips.

While the question of restricting a woman's ability to go to another state has come up nationally, no effort is under way here to interfere with that choice.

It is, of course, much larger choices that have stirred state and local protests against Roe's reversal. A woman's right to choose whether and when to have a child is at the top of the list.

It remains to be seen how strong and how lasting those voices will be. They must be both if they are going to drive developments in this post-Roe political environment, particularly in this pro-life state.

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