A new Arkansas law that will go into effect later this year will allow a husband to sue a doctor in order to stop his wife from getting an abortion. Known as the Arkansas Unborn Child Protection from Dismemberment Abortion Act, or “Act 45”, it prohibits a particular type of abortion known as “dismemberment abortion.” The law provides no exemption for spousal rape.
Historically, Father’s Rights were to Prevent Abortions
Fathers historically have no legal rights with regard to their wife or the mother of their child choosing to have an abortion. If a man’s pregnant partner chooses to have an abortion, the father’s consent is not a legal requirement. A woman can choose to abort the pregnancy despite the father’s objections. In fact, the Supreme Court in Planned Parenthood v. Danforth ruled that laws requiring a spouse’s consent to be unconstitutional. The court reasoned that only one partner’s decision on abortion can prevail, and that the balance weighed in the woman’s favor.
Moreover, the Supreme Court concluded in Planned Parenthood v. Casey that the father does not have a legal right to be notified of an abortion. Most women discuss an abortion with their significant other, but those who do not may be in an abusive relationship. Therefore, requiring spousal notification places an undue burden on women who may fear for their safety.
What Kind of Abortion Does the Arkansas Law Stop?
Arkansas Act 45 prohibits a practice known as dilation and evacuation, also known as dismemberment abortion, in which fetal materials are removed from the womb through surgical instruments. It is the safest and most common method of abortion in the second trimester and is used in 95 percent of second-trimester abortions. It occurs after 12 to 14 weeks of pregnancy.
How Will the Arkansas Law Work?
Under the new Arkansas law, a father can sue a doctor to stop an abortion if the wife is in her second trimester and having a dilation and evacuation procedure. This means that the wife is over 12 weeks pregnant. What is controversial about the law is that it allows the father to stop an abortion even if he raped his wife.
Is the Arkansas Law Constitutional?
The American Civil Liberties Union (“ACLU”) of Arkansas argues that it is not. They intend to challenge the new state law as soon as practically possible.
The ACLU argues that the law not only bans what’s considered the safest and most common method of second trimester abortions, but it also does not make any exception for victims of spousal rape. This means that a wife’s rapist husband could sue to prevent an abortion.
Under Roe v. Wade, the Supreme Court established that it is a woman’s right to have an abortion until approximately 22 weeks of pregnancy or when the fetus is considered viable outside the womb. The new law puts a limitation on the woman’s ability to abort before viability, even though it is a guaranteed right. For this reason, it should not be considered constitutional.
Additional Concerns about the Law
While the Arkansas law affords the father more rights, it also strips away rights that have historically been given to the woman. The ACLU is concerned that with the limitation on dilation and extraction abortions, women may opt to use a procedure that is less safe. Such a procedure can put both the unborn fetus and the woman’s life at risk.