Arkansas Attorney General Rejects Abortion Ballot Measure Wording

The Arkansas Attorney General rejected on Tuesday the wording of an effort to place abortion on the ballot in 2024.

Republican state Attorney General Tim Griffin rejected the popular name and ballot title application “due to ambiguities” and called the proposal “tinged with partisan coloring and misleading.”

Arkansans for Limited Government submitted the proposal, called “The Arkansas Reproductive Healthcare Amendment” on Nov. 9. The measure, as written, would have barred the government from “restrict[ing] access to abortion within 18 weeks of conception, or in cases of rape, incest, in the event of a fatal fetal anomaly, or when abortion is needed to protect the pregnant female’s life or health.” 

The rest of the rejected language reads: 

Except for the circumstances enumerated in Section 1, the Arkansas General Assembly may prohibit or restrict access to abortion only when it establishes a compelling government interest achieved by the least restrictive means. The government of the State of Arkansas, its officers, or its political subdivisions shall not penalize an individual for requesting or receiving abortion services nor shall it penalize a person or entity that assists an individual in relation to abortion services. 

A government interest is “compelling” only if it is for the purpose of protecting the health of an individual seeking access, does not infringe on the individual’s decision making, and is consistent with widely accepted clinical standards of practice and evidence-based medicine. 

A fatal fetal anomaly means a fetal condition diagnosed before birth that, in the physician’s good faith medical judgment, is incompatible with life outside the womb and for which medical intervention would be futile.

Griffin listed several aspects of the proposal that disqualified the language from moving on to the signature collection stage, including internal contradictions, redundancy, and the use of the term “access” and the broad term “health.” 

“Is your intent to limit government action regarding abortion itself or regarding access to abortion? Under the Arkansas Supreme Court’s caselaw, the ballot title would need to describe the nature of the restriction you intend to propose. Because of this lack of clarity, I am unable to say that your ballot title is not misleading,” he wrote. 

“Second, the last clause refers to ‘the pregnant female’s life or health’ but does not define what is meant by ‘health.’ Is the term intended to cover physical health only, or also mental health? If the term is limited to physical health, is that intended to be restricted to emergent medical conditions? Or does it the term [sic] also extend to pregnancies that increase the risk of certain medical complications?” he continued.

“Answers to these questions would almost certainly give voters ‘serious ground for reflection.’ Therefore the ballot title would need to inform the potential petitioner or voter about these matters,” he added.  

Griffin also said the proposed popular name is “tinged with partisan coloring and misleading” because the proposal is “solely related to abortion, not ‘reproductive healthcare’ generally.”

Lastly, the attorney general pointed out that the proposal does not describe how the amendment would impact existing constitutional law.

“For example, you make no effort to articulate how your proposal would relate to Amendment 68 to our state constitution,” he said, referencing an amendment enacted in 1988, which 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.”

“It seems plausible that even if your proposal were enacted in its current form, portions of Amendment 68 would remain,” he continued. “Since the Arkansas Supreme Court has declared that voters are entitled to some information on how the proposed measure would change current law, some such information would need to be provided.” 

Griffin further noted that the proposal’s goal to keep abortion legal within “18 weeks of conception” is inconsistent with the broadly used metric of counting weeks from a woman’s last menstrual cycle. 

“This time frame is keyed to fetal age, which begins at conception. But most court cases, medical providers, and most citizens count the weeks of pregnancy using gestational age, which begins from the date of the woman’s last menstrual cycle, not from the date of conception,” he said. 

“When counting from the more standard starting point, the reference to ’18 weeks’ is closer to ’20 weeks.’ This difference in timing could be misleading to voters and would certainly give them serious ground for reflection,” he said. “This is not a basis to reject your proposal as misleading. But if your proposal were at the stage where it could be certified, I would have to substitute language in your ballot title to flag for all voters that the timeframe for government regulation would begin at 20 weeks gestational age.” 

The ballot committee told the Arkansas Democrat-Gazette that it “appreciate[s] the Attorney General’s thorough review of and impartial response to the amendment’s language.”

“Residents want sensible reproductive policy, and Arkansans for Limited Government will begin work immediately with the amendment drafter to craft a revised amendment,” the group said. “We are committed to supporting a ballot proposal that is clear for Arkansas voters.”

Abortion is currently completely outlawed in Arkansas except to save the life of the mother.

According to the Secretary of State’s office, the group would need 90,704 signatures to put the measure on the November 2024 ballot. If a measure with revised language makes it onto the ballot in 2024, it would require a simple majority to pass.

Activists in at least nine other states are working to put abortion amendments on the ballot next year, after a string of state-level pro-abortion victories following the fall of Roe v. Wade — a 1973 Supreme Court decision which had, for 50 years, invented a “right” to abortion.

Katherine Hamilton is a political reporter for Breitbart News. You can follow her on X @thekat_hamilton.