Suggestive Wording in Arkansas Abortion Laws

This January, the Arkansas State Board of Health voted against suggestive anti-abortion language in state laws passed in 2015 that referred to abortion as "death of an unborn child" multiple times. The Board voted to change the language to a more neutral and less loaded phrase "termination of pregnancy".  The board's vote was 12-6 in favor of the new language, with five members choosing to abstain based on the controversial nature of the vote. The State Board of Health was warned by several Arkansas department officials that the Legislature would likely reject this new wording, and may even retaliate against the board.

Although the Supreme Court decided in the famous 1973 case Roe v. Wade that abortion was legal under the Due Process Clause, abortion has continued to come under fire by conservatives, most recently with the arguments in Congress over defunding Planned Parenthood, an organization that provides abortions among a slew of other reproductive health care options, such as access to birth control, pap smears, STI testing and treatment, and prenatal health care. But, ultimately the issue comes down to whether or not the suggestive phrasing is constitutional based on the Establishment Clause of the First amendment, which prohibits any sort of establishment of religion. One definition of establishment is "an arranged order or system, especially a legal code".

The phrasing of the law is blatantly ideological in nature. The main religions we know today came well before the scientific knowledge and medical advancements which we have made in recent centuries. This knowledge has led to the ability to perform medically safe abortions. However, many different religious leaders have come forward staunchly opposing abortion based on different ideological arguments from religious texts, especially the Bible. This has created communities and organizations of people who oppose abortion based on religious values. One nuance of this issue is that because of the age of the Bible, it never explicitly says anything about abortion, as it did not exist in a safe medical context when the Bible was written. Yet religious leaders still use religious arguments to defame abortion. Historically, people who are anti-abortion have aligned themselves with Western religion. Therefore, the pro-life movement has developed deeply religious interpretations.

The phrase "death" in the law is extremely leading, and many scientists argue it is actually scientifically untrue (such as Bill Nye). Furthermore, fetuses are not the same thing as "unborn children". Children have the ability to survive outside of a womb, and are fully developed self-sustaining individuals. Fetuses, by definition, are not the same as unborn children. Fetuses go through many stages of development and cannot survive outside of the physical attachment to a human being. This phrasing in a law, which is mainly backed up by religious leaders', attempts to establish religion by writing it into a law, the ultimate establishment of government. Laws essentially create establishments by their very nature, and therefore are not permitted to contain religious overtones such as this phrase.

On the other hand, the phrase "termination of pregnancy" is both true and neutral. There is no bias towards one group or another. "Termination" is simply a conclusion or "to put an end to", and "pregnancy" is an offspring of an animal developing in that animal's body. Whether an individual considers themselves religious or not religious, pro-life or pro-choice, there is little to disagree with in this neutral phrasing. Neither the word termination or pregnancy holds any connotations, positive or negative.

What is most disturbing about this language is its ultimate aim: to shame women who choose to legally have abortions and to shame doctors for providing the service. One member of the board stated that, "I understand that probably, in part, it was designed to be a deterrent to abortion and make a woman and her doctor feel guilty about what they're doing". Women already face enough stigma around abortions as it is, and this is clear anti-abortion sentiment written into a law that is meant to protect women when they choose to use their right drawn out in Roe v. Wade. While the discussion of the morality of abortion is far from over, the courts have decided that abortion is an acceptable procedure. Therefore, this phrasing shames women for utilizing a right that is stamped out in federal documents, which goes over the head of Arkansas state legislature based on the Supremacy Clause.

The pro-life argument in favor of this language is that it works to "humanize" abortion. One senator who sponsored the law claims that "Recognizing the child as a child is much different than trying to use clinical terminology that hides the fact that you're dealing with a living human being". This claim is under debate in the scientific community because of the argument stated above - that a fetus is not the same thing as a living human being. While it is impossible to speak for every person who has had an abortion, as about 40% of women have, no one who is pro-choice will attempt to say that abortions aren't an extremely emotional decision for the women involved. Shaming women in word of law disregards the emotional process that many women who choose to get an abortion go through, in addition to blatantly siding with the religious pro-life movement.

While the issue of abortion is complex and multifaceted, it is legal, and the wording of the law voted on by the Arkansas State Board of Health clearly holds religiously biased overtones which establishes religious views as law, in violation of the Establishment Clause.