Arkansas picks a pro-life fight

Arkansas Gov. Asa Hutchinson signed a bill into law on Tuesday to protect unborn babies from abortion in all cases except for those that threaten a mother’s life. The bill’s sweeping nature and lack of exceptions for rape and incest make it a ready target for pro-abortion groups looking to sue, meaning court battles will tie up enforcement. That’s part of the plan: The bill could challenge the Supreme Court’s 1973 Roe v. Wade decision legalizing abortion nationwide. But some pro-life leaders have expressed concern that the bill is not an effective way to challenge the ruling.

“SB6 is in contradiction of binding precedents of the U.S. Supreme Court, but it is the intent of the legislation to set the stage for the Supreme Court overturning current case law,” Hutchinson said on Wednesday. He said he regretted that it did not include exceptions for rape and incest, noting “such exceptions would increase the chances for a review by the U.S. Supreme Court.”

In January, Hutchinson received a letter from attorney James Bopp, general counsel for the National Right to Life Committee, mentioning other concerns about the bill. Bopp said it’s unclear whether the Supreme Court has a majority capable of overturning Roe. “Absent such a majority, a case directly challenging Roe risks yet another opinion reaffirming Roe,” he wrote. “In fact, trying to force an overruling of Roe without adequate incremental preparation actually risks pushing justices away from openness to overruling Roe.”

If the Arkansas bill makes it to the Supreme Court and the justices rule against it, the decision could make it harder for other states to implement new pro-life laws, Bopp said. Any ruling against a pro-life law in the nation’s highest court sets a new precedent that could strengthen the perceived right to abortion.

Such concerns likely contributed to Hutchinson’s delay in signing the bill. In February, he declined to commit to signing or vetoing and still had not made a decision when the Arkansas House voted to send it to his desk on March 4. He didn’t state his intentions until the day he signed it.

But not everyone is hesitant about the bill. State pro-life groups including Arkansas Right to Life and the Family Council support the new law as a bold and necessary defense of the unborn. Arkansas made the top of Americans United for Life’s 2021 Life List, and supporters say this law continues the state’s track record. “As the #1 pro-life state we can do no less than pass the strongest law in our nation in defense of the innocent unborn child and pray that this law will lead to an end of legal abortion in our nation by overturning Roe v. Wade,” said Arkansas Right to Life President Rose Mimms via email.

The law cannot take effect until 90 days after the legislative session adjourns in April, but the American Civil Liberties Union has already announced its intentions to challenge it.