AG Griffin rejects ballot title, cites issues with reproductive freedom proposal; group vows second attempt

Arkansas Attorney General Tim Griffin rejected the ballot title and proposed popular name for a constitutional amendment effort to change the state’s abortion laws on Tuesday (Nov. 28).

Griffin cited a number of language problems with the popular name, the proposal’s effect on existing law, and medical definitions as reasons for his rejection. The group supporting the proposed amendment, Arkansans for Limited Government, vowed to offer another attempt based on Griffin’s recommendations.

“This morning, Arkansans for Limited Government was notified of the Attorney General’s opinion rejecting the proposed Arkansas Reproductive Healthcare Amendment. We appreciate the Attorney General’s thorough review of and impartial response to the amendment’s language,” a statement from the group said.

“We are also heartened by the overwhelming support we have received from Arkansans across the state, including pledges to sign a future petition in favor of the Arkansas Reproductive Healthcare Amendment. Residents want sensible reproductive policy, and Arkansans for Limited Government will begin work immediately with the amendment drafter to craft a revised amendment. We are committed to supporting a ballot proposal that is clear for Arkansas voters,” it added.

The proposed constitutional amendment – The Arkansas Reproductive Healthcare Amendment – would prevent the state from restricting access to abortion up to 18 weeks after conception or in the instance of rape or incest, fatal fetal anomaly, or when abortion is needed to protect the pregnant woman’s life or health.

In a seven page opinion, Griffin cited a number of problematic areas of the amendment’s language, including:

• Popular name. Your proposed popular name is tinged with partisan coloring and misleading because your proposal is solely related to abortion, not “reproductive healthcare” generally. Therefore, in the future, if your proposal measure were at the stage where it could be certified, I would have to substitute and certify a different popular name. I am flagging this for you now so you can provide an alternative if you would like.

• Effect on existing law. You have made no attempt to describe your proposal’s effect on existing constitutional law. For example, you make no effort to articulate how your proposal would relate to Amendment 68 to our state constitution. It seems plausible that even if your proposal were enacted in its current form, portions of Amendment 68 would remain. Since the Arkansas Supreme Court has declared that voters are entitled to some information on how the proposed measure would change current law, some such information would need to be provided.

• Fetal age vs. gestational age. Section 1 of your proposed text prohibits government action that would “prohibit, penalize, delay, or restrict access to abortion within 18 weeks of conception….” This time frame is keyed to fetal age, which begins at conception. But most court cases, medical providers, and most citizens count the weeks of pregnancy using gestational age, which begins from the date of the woman’s last menstrual cycle, not from the date of conception.

When counting from the more standard starting point, the reference to “18 weeks” is closer to “20 weeks.” This difference in timing could be misleading to voters and would certainly give them serious ground for reflection. This is not a basis to reject your proposal as misleading. But if your proposal were at the stage where it could be certified, I would have to substitute language in your ballot title to flag for all voters that the timeframe for government regulation would begin at 20 weeks gestational age.

“Because of the issues identified above, my statutory duty is to reject your proposed popular name and ballot title, stating my reasons therefore, and to instruct you to ‘redesign’ your proposed constitutional amendment, popular name, and ballot title,” Griffin said.