Rape Victims Must Notify Their Rapist Before Getting an Abortion in Arkansas

The requirement mandates that the "dead fetus" must be disposed of in accordance with the preexisting Final Disposition Rights Act of 2009—meaning that an aborted fetus at any gestational stage must be treated like a deceased family member.

"The Final Disposition Rights Act of 2009 is written to govern what happens when a person dies if that person, while living, didn't specify how he or she wanted their body disposed of," Talcott Camp, the deputy director of the ACLU's Reproductive Freedom Project, explained over the phone.

Under the law, the decision is subject to a hierarchy of people: first the spouse, then surviving children, then surviving parents, then grandparents. As applied to fetal tissue—since a fetus wouldn't have a spouse or children—the law would require the "parents" of the fetus to agree on a method of disposal before the abortion. If a minor is seeking an abortion, the decision would go to her parents (the "grandparents" of the fetus) because a person has to be at least 18 to exercise final disposition rights.

Currently, the only clinic in the state that offers a full range of reproductive services contracts with a vendor that transports the tissue to be incinerated. (A few women currently choose to cremate the tissue, which they arrange independently.) Under the new law, a clinic would be required to contact a patient's sexual partner—and in some cases her parents—and all parties would have to agree on the arrangements. The law makes no exception for rape victims, who would be required to include their rapist in the decision.

"A doctor can't perform an abortion, or miscarriage management, without making a 'reasonable effort' to contact the 'father' of the fetal tissue," Camp said. She notes that the law is a fundamental breach of privacy. "First of all, a woman may not want that person to know anything about her intimate medical information," she said.

The law would also delay care and allow for the "father" of the fetus, or a "grandparent," to essentially block a woman's abortion. For example, if there is a dispute between a woman and her sexual partner about how to deal with the remains, the issue would have to go to court. "That's just nuts," Camp said. "These woman would just be sitting around, waiting."

The ACLU filed a challenge to the law, along with three other anti-abortion laws, in June. The first hearing is on Thursday, where a judge will decide whether or not to grant a preliminary injunction so that the law cannot take effect until after the case is decided. (The law is currently scheduled to take effect on July 30.)

Ultimately, the law could force the two clinics in the state to stop providing abortions: It does not specify how women are supposed to handle fetal tissue that's passed at home, which is what occurs when a patient elects to use the abortion pill. "This law could be read to prohibit medication abortion," Lori Williams, a nurse practitioner at Little Rock Family Planning Services, said in support of the ACLU's preliminary injunction against the law. Little Rock Family Planning Services is currently the only clinic in the state that provides both medication abortions and surgical abortions.

In the ACLU lawsuit, Dr. Fredrick Hopkins, also with Little Rock Family Planning Services, argues that the law is dangerously vague; because providers could face criminal penalties for non-compliance, he says, he "would be forced to stop providing abortion and miscarriage care."

Arkansas has also passed a law banning a procedure called dilation and evacuation, which is most commonly used in second trimester abortions; a law requiring physicians to obtain medical records relating to a patient's pregnancy history before performing an abortion; and a law requiring physicians to inform police when a minor gets an abortion, sending in the fetal tissue as "evidence."

"Enforcement of each of the four challenged laws threatens to block altogether a
woman's constitutionally protected right to access abortion care," Hopkins writes in the suit. "Each would impose delay, which endangers a woman's health and can itself make abortion care impossible for her to obtain."