A partial birth abortion bill passed the Senate Friday with an amendment that could possibly void it.
SB 612 was approved as amended by a 29-4 vote. It now goes to the House of Representatives’ Public Health and Welfare Committee.
One portion of the amendment, Section 3e, states “This act is operative and shall be enforced to the extent permitted by the federal Constitution and laws.” The American Civil Liberties Union (ACLU) believes that is doubletalk.
They are proposing something unconstitutional and then saying nothing here will go unless (the bill is) constitutional,” ACLU Executive Director Rita Spillenger said. “The point is political. They get to say they passed a partial birth abortion bill.”
Spillenger said it’s “political suicide” not to vote for the bill since it has been a highly visible topic during the session.
However, Rep. Jim Hendren, R-Sulphur Springs, said the amendment does not hurt the bill since as written, it does not forbid abortion, but only outlaws a particular procedure.
“This basically ensures (the bill) stays within the contraints of federal interpretation,” Hendren said. “This law only will apply in Arkansas.”
While presenting the bill, Sen. Fay Boozman, R-Rogers, said the bill’s constitutionality is under court consideration. He believes it’s constitutional since other procedures are available for a mother to have an abortion.
One of the amendment’s authors, Sen. Mike Bearden, D-Blytheville, told Senators “the bill will have no effect if it’s in violation of any federal law.”
Spillenger said legal experts will have to look at the bill to determine its constitutionality. If a case can be made and a plaintiff can be found, the proposed law could be taken to court where politics are not as prevalent, she said.
Hendren will try to push the bill through the House before the legislative session ends next Friday. At the earliest, the House could vote on the bill Wednesday if it passes through committee Tuesday.
Boozman was able to get the bill through the Senate’s Public Health and Welfare Committee and onto the floor for a vote in the same day. That worried some senators.
“It’s bad policy to get in here the last week of the session (and bring up the bill),” said Sen. Jodie Mahony, D-El Dorado. “We have no earthly idea what we’re voting on.”
After the bill returned from engrossment, Boozman motioned to suspend the rules for discussion on the Senate floor.
Boozman said the bill defines partial birth abortion in the same manner as federal legislation which passed the U.S. House of Representatives Thursday. It would charge doctors who perform the procedure with a class D felony.
The bill also would allow the state medical board to decide if doctors should be charged. Sen. Mike Everett, D-Marked Tree, said this goes against Amendment 21 of the state constitution, which gives the attorney general the authority to decide which felony crimes should be prosecuted.
“We do not have the power as the legislature to give away power given to the prosecutor by the constitution,” he said. “This legislature can’t override that power.”
Everett said a severability clause in the legislation would keep the proposed law intact even if parts of it were deemed unconstitutional. The bill could also subject doctors to double-jeopardy by charging them with a felony, fining them and removing their medical practitioner’s license, he said.
Some senators were worried about the lack of a provision protecting the mother’s health. According to a U.S. Supreme Court decision (Thornburgh v. ACOG), the state cannont compel a woman to bear an increased medical risk to preserve the life of a fetus.
“Nothing in this procedure is healthy for a woman,” Boozman said. “The only reason for this procedure is the convienience of the physician and a dead baby.”
The procedure turns the fetus inside the mother and then takes its life after it has been delivered except for the head, Boozman said. This has the potential to rupture the uterus and may prevent the mother from having other children, he said. Other procedures could be used to induce labor, he said.
However, ACLU literature, given to Public Health and Welfare Committee members, notes women can have abortions on nonviable fetuses for any reason and by any method. Abortions can be performed on a viable fetus when it is gravely or fatally impaired, or when a woman’s life or health is at risk, according to the literature.
But after the committee meeting, Boozman said there is no justification for taking the fetus’ life by this procedure. Other resources, including adoption, could be found for the child’s care if the mother doesn’t want it. He believes it is healthy to have public debate on the issue.
“We need to have this debate,” Boozman said. “Does a civilized society allow this or not?”
This story appeared on page 1A in the March 22, 1997, issue of The Benton County Daily Record. I scooped the statewide daily Arkansas Democrat-Gazettebecause I spoke about the unclear language of the bill with ACLU lawyer Rita Spillenger, who spoke with the Public Health and Welfare Committee earlier in the day. Spillenger happened to be the ex-wife of one of my editors at The Trucker.