The XX Factor

Arkansas Law Will Let Husbands Sue to Prevent Wives From Getting Certain Abortions

Lawmakers in Arkansas have banned doctors from performing an extraordinarily safe, constitutionally protected medical procedure.


A new Arkansas law has established a ban on one specific abortion procedure, dilation and evacuation (D&E), effectively blocking medical practitioners from performing abortions after around 14 weeks gestation.

Gov. Asa Hutchinson signed the poetically named Unborn Child Protection From Dismemberment Abortion Act, into law last week. This act makes it a felony to perform a D&E, by far the most common procedure used in second-trimester abortions, which account for about 11 percent of all terminations in the U.S. The law won’t go into effect until later this year, and the American Civil Liberties Union of Arkansas told the Huffington Post that it plans to challenge the law in court before then.

In a D&E, a medical practitioner dilates the cervix and removes fetal tissue with forceps, a scraping tool, and vacuum suction. The same procedure is often used to remove fetal tissue after a miscarriage. The Supreme Court guaranteed women the right to abortion before fetal viability, which experts put around 22 to 24 weeks gestation. The new Arkansas law denies women their right to access abortions in the two and a half months before their fetuses are viable. It makes no exceptions for mental health disorders or the physical health of the pregnant woman unless there’s a severe risk of death or “substantial and irreversible physical impairment of a major bodily function.”

Dilation and extraction, a procedure formerly used very rarely in late-term abortions, was made illegal in the U.S. with 2003’s Partial Birth Abortion Ban Act. Thus, when doctors are forbidden from performing D&Es, there’s virtually no other way—and certainly no equally safe way—for them to perform abortions after 14 to 16 weeks gestation, depending on the pregnancy.

According to the Guttmacher Institute, West Virginia and Mississippi already have D&E bans in effect. (This is likely the reason why the only remaining abortion clinic in West Virginia doesn’t offer abortions past 16 weeks.) Oklahoma, Louisiana, Kansas, and Alabama have also passed D&E bans, but they’re blocked from taking effect while challenges to the policies trickle through the court systems.

The most disturbing part of the new Arkansas law is a provision that allows the husband or legal guardian of a woman seeking a D&E to stop her from doing so by suing for injunctive relief. This means that a man who rapes his wife or a father who rapes his daughter will be able to prevent her from terminating a resulting pregnancy in the second trimester. A survivor of sexual violence may need an abortion later in her pregnancy because the trauma of assault could make it difficult for her to consider and confront the consequences. If a woman does get a doctor to perform a D&E, under the Arkansas law, her husband could also sue the abortion provider for damages.

These provisions are more symbolic than anything—once a medical procedure is made illegal, health care providers are very unlikely to risk their jobs, freedom, and futures to perform it. Lawmakers in Arkansas just wanted to make a strong statement to shame women for seeking a safe procedure to which they have a constitutional right. In their battle for complete control over women’s bodies, Hutchinson and his right-wing legislators have drafted husbands onto their side.