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Arkansas's New Law Makes Pregnant Women Suspects

by Tiffany Thomas

An Arkansas law will soon make interrogation, rather than than medical counseling, part of the required conversation between women and their doctors before any abortion procedure. Arkansas Gov. Asa Hutchinson recently signed legislation that would make it illegal to perform gender-selective abortion — or an abortion based solely on whether a fetus is male or female. Proponents say the new law will help address gender discrimination. But research doesn’t exactly bear that out: studies have shown that sex-selective abortion is incredibly rare in the United States. The more widespread effect of the law is concerning, though: Arkansas will soon become the first state that forces doctors to investigate women’s motives and to interrogate them about past pregnancies before allowing the legal medical procedure to take place. Not only is that a violation of women's privacy, it forces doctors to treat their patients like suspects — and to look at past pregnancies as potential crimes.

HB 1434, or the Arkansas Sex Discrimination by Abortion Prohibition Act, says that prior to performing an abortion, doctors should ask a pregnant patient if she knows the gender of the fetus. If so, the law says the doctor should tell the patient that sex-selective abortion is illegal and request medical records covering the woman’s “entire pregnancy history.” And until the doctor has spent “reasonable time and effort” looking into her medical records, the procedure cannot legally take place.

It’s hard to know where to even begin.

For starters, the science behind the law is shaky at best. The so-called problem of widespread sex-selective abortion is a myth — and a racist myth, at that. A 2014 study by the University of Chicago’s International Human Rights Clinic looked that the research often cited for this kind of legislation, including an often-cited study claiming that foreign-born Chinese, Indian, and Korean families were more likely to give birth to male babies after giving birth to girls, and debunked the gender preference myth because the opposite was true: national data found that those families actually have more girls than white American families do.

The study also found that states that enact laws to guard against sex-selective abortion didn’t actually see any change in the balance of sexes five years after the laws went into effect. So, if the laws are meant to adjust a bias towards male babies, they’re pretty ineffective.

The law also seems to be based on the idea that women who need an abortion tend to get one after the 16-week mark, when doctors are able to reliably tell the gender of a fetus without a blood test. And, here again, the opposite is true: the majority of the 3,771 Arkansas women who got an abortion in 2015 did so in the first trimester, according to state health department data.

And if the racism and misinterpretation of science that drive HB 1434 are disturbing, the impact it would have on private conversations between women and their doctors is downright horrifying.

In a move that goes beyond the garden-variety violations of privacy that some states have put in place when it comes to abortion access, Arkansas legislators have actually attached criminal charges to what doctors find out about their patients during a medical examination. The law says that doctors who fail to dig into patients’ history of pregnancies and births could be found guilty of a Class A misdemeanor and have their licenses to practice suspended or revoked. That makes Arkansas doctors the first in the country forced to investigate their patients’ medical histories or face jail time, the Center for Reproductive Rights told VICE News.

And it means that doctors would potentially see any woman coming to them for medical help to legally and safely end a pregnancy as a criminal. With their careers and livelihoods at stake, doctors would have to dig into their patients' health histories — including past abortions, stillbirths, rapes, and full term pregnancies — with an eye for sinister motives rather than addressing their health needs. And remember, this law is apparently meant to stop women from pursuing abortion to favor one gender of fetus over another, so it's likely that questions about past pregnancies would go far deeper than how many times a woman has been pregnant and probe into why she chose to carry or end her pregnancies. Not only is that overly invasive, it's outright harmful.

In a statement, Lourdes Rivera, senior vice president of U.S. Programs at the Center for Reproductive Rights, agreed that the shift in dynamic between medical professionals and their female patients is potentially dangerous:

Health care providers should never be forced to investigate patients for the reasons behind their personal, private decisions. When a woman has made the decision to end a pregnancy, she needs high-quality health care, not an interrogation.

HB 1434, scheduled to go into effect in January 2018, is one of a spate of highly controversial laws related to reproductive rights to come out of the Arkansas legislature this session. Another law signed earlier this year, the Arkansas Unborn Children Protection From Dismemberment Act, outlaws dilation and extraction procedures despite being considered the safest and most common method of second-trimester abortion. The law also allows husbands to take legal action against wives who pursue abortion, including in cases of rape or incest. Another bill requires doctors to tell patients that abortions are reversible, despite scientific evidence (and common sense).

The ACLU has already stated its intent to challenge both Arkansas laws in court, according to Think Progress. So its unclear whether Arkansas women will be forced to live with these new requirements. But just signing them into law sends a terrifying message: when women aren't valued, private conversations can become public domain. And prior medical choices, no matter how necessary or difficult, can — and apparently will — be treated like crimes.