The Arkansas attorney general rejected a ballot measure proposing a constitutional right to abortion on Tuesday.
Arkansas Attorney General Tim Griffin explained in a seven-page response letter to the proposal that the popular name of the ballot, “The Arkansas Reproductive Healthcare Amendment,” and the ballot title, which offers a summary of the constitutional amendment, were ambiguous and partisan, and therefore likely to mislead voters on the issue.
“Your proposed popular name is tinged with partisan coloring and misleading because your proposal is solely related to abortion, not ‘reproductive healthcare’ generally,” said Griffin.
Griffin’s rejection prevents signature collection to qualify the proposed constitutional amendment for the 2024 ballot.
Abortion is banned in Arkansas, thanks to a trigger law that went into effect following the Supreme Court’s reversal last year of Roe v. Wade.
An Arkansas resident named Steven Nichols submitted the proposed constitutional amendment. On Monday, an entity named “Arkansans for Limited Government” (ALG) tied to the ballot initiative registered with the Arkansas Ethics Commission. ALG is chaired by Hershey Garner, an oncologist.
In a response to the attorney general’s rejection, ALG said it appreciated Griffin’s review and would work on a revised amendment.
ALG is part of the progressive nonprofit For AR People, led by founding director Gennie Diaz and content director Sam Watson. Diaz was the communications director for former Democratic state representative Megan Godfrey until she founded For AR People in 2020.
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“Government overreach is killing Arkansas women,” stated For AR People. “The Arkansas Reproductive Healthcare Amendment will restore personal liberty, permit doctors to properly care for patients, and make our state safer and healthier for everyone.”
Arkansas law allows the attorney general to reject the ballot initiative based on its popular name, should the attorney general determine that the ballot title is misleading or that the proposal is designed in a manner that one’s intended vote yields the opposite effect.
Additionally, Griffin cited Arkansas laws and court rulings requiring the proposal’s popular name to not be misleading or partisan, and must complement the ballot title. Griffin also cited laws and rulings that require the ballot title to offer an impartial and fair understanding of the issues presented; required content includes those essential facts that merit serious reflection, while prohibited terms include those deemed technical and not readily understood by voters.
The proposed constitutional amendment would have banned government from prohibiting, penalizing, delaying, or restricting access to abortion within 18 weeks of conception, or in the cases of rape, incest, fatal fetal anomalies, or the jeopardization of a mother’s life or health. Griffin took issue with the use of the word “access.” He opined that the word had dual meanings as written and was therefore unclear.
“Is your intent to limit government action regarding abortion itself or regarding access to abortion?” wrote Griffin. “Under the Arkansas Supreme Court’s case law, the ballot title would need to describe the nature of the restriction you intend to propose.”
Griffin also took issue with the proposal’s meaning of the word “health,” because the proposal didn’t include a definition. He questioned whether the term encompassed physical health only, or mental and physical health, and whether the term concerned only emergent medical conditions or those pregnancies that increase the risk of certain medical complications.
According to the attorney general, the proposal also contradicted itself in multiple ways.
While the proposal allowed lawmakers to prohibit or restrict abortion access, it prohibited any penalization of individuals who request, receive, or assist with abortion services. And, while the proposal allowed the government to exercise a compelling interest to prohibit or restrict abortion access, it prohibited declaration of compelling interest where an individual’s decision-making would be infringed.
“[A]ll regulations necessarily restrict people’s choices,” stated Griffin.
The attorney general went on to take issue with the proposal’s phrase “incompatible with life outside the womb” to describe a fatal fetal anomaly. Griffin wrote that the phrase lacked further definition, leading voters to speculate its full meaning.
Griffin added in the closing of his rejection letter that the proposal failed to explain its effect on existing constitutional law.