Proposed Bill Would Allow Prosecution of Women for Abortions

By Jerry Cox, President • Family Council

On Jan. 19, Rep. Richard Womack (R/Arkadelphia) and Sen. Matt McKee (R/Pearcy) filed HB 1174. The bill would change Arkansas’ law concerning fetal homicide. It also would amend the state’s wrongful death law that governs lawsuits people can file when an unborn child is killed. Current law exempts a woman from prosecution or other legal action when her unborn baby is killed. This prevents a woman from being prosecuted or sued for the death of her unborn child — even if the child’s death is caused by an abortion.

HB 1174 would amend Arkansas’ law in such a way that a woman could be prosecuted for having an abortion, and she could be sued if her unborn child dies. The bill contains exceptions for “accidental miscarriage,” and for certain types of medical procedures necessary to save the life of the woman. It is unclear at this time how a court might interpret these exceptions in light of Arkansas’ other laws concerning abortion.

As Family Council has said before, our laws should not punish a woman who has an illegal abortion. Here are four reasons why not:

• Women were not prosecuted for having illegal abortions before Roe. Before 1973, abortion generally was illegal in Arkansas. The Arkansas Legislature enacted the state’s first laws against abortion around 1875. As far as our team can tell, from 1875 to 1973 Arkansas never prosecuted women for having illegal abortions. The abortionist could be prosecuted for breaking the law, but not the woman. The same was true in many other states that prohibited abortion prior to Roe v. Wade. Even though Arkansans recognized that abortion was wrong, they also recognized that there were serious problems with prosecuting a woman who has an abortion.

• Some women are coerced into having an abortion. Over the decades, we have heard countless women say they were pressured into having an abortion against their will. In some cases, it was a parent who told them they had to have an abortion. In other cases, it was an abusive boyfriend. Some pro-lifers have speculated that human traffickers may force their victims to have abortions if they become pregnant. It isn’t right to prosecute a woman who may have been forced to have an abortion against her will.

• How will our state prosecute illegal abortionists if the women face prosecution too? Now that abortion is prohibited in Arkansas, our authorities need to be able to prosecute abortionists who violate the law. In order to do that, they may need testimony from women who have gone to those abortionists for illegal abortion procedures. Will women come forward to testify against abortionists in court if they know that they can also be prosecuted? In the long run, prosecuting women as well as abortionists may make it harder to hold abortionists accountable for breaking the law.

• We don’t have to prosecute women to prevent abortion. Since last June, Arkansas has been able to prohibit abortion and shut down abortion facilities without punishing a single woman. Under our existing pro-life laws, the State of Arkansas can prosecute abortionists and close their abortion facilities. We don’t have to prosecute women in order to prevent abortion in Arkansas.

We appreciate Rep. Womack and Sen. McKee. The Arkansas Legislature is very likely the most pro-life legislature in the nation. After all, Arkansas has been ranked the most pro-life state in America for several years now. We applaud the pro-life spirit demonstrated by our good friends Rep. Womack and Sen. McKee. Their introduction of this bill proves that they care deeply about this issue, and we are grateful for that. Sometimes friends simply agree to disagree on certain policies. We are looking forward to working with both of these great lawmakers on many more good laws during this legislative session.