Arkansas Abortion Ban Faces First Constitutional Test

Abortion has long been tightly restricted across much of conservative America, where opposition is often framed around moral, religious, and philosophical beliefs about protecting unborn life. In Arkansas, those convictions are reflected in a near total ban on abortion that has been in place since June 2022. The law allows only a narrow exception to save the life of a pregnant person and took effect after the U.S. Supreme Court overturned Roe v. Wade.

That law is now under its first legal challenge. On January 28, four women and a physician filed suit in Pulaski County Circuit Court, asking a judge to strike down Arkansas’ abortion ban in its entirety. The plaintiffs argue that the law violates the Arkansas Constitution and has inflicted serious harm on pregnant people seeking medical care in the state.

Medical Complications and Denied Care

According to the complaint, one of the plaintiffs, Emily Waldorf, was denied abortion care in September 2024 when she was 17 weeks pregnant and doctors determined she could not carry the pregnancy to term. Physicians told Waldorf that the life saving exception in Arkansas law did not apply to her situation.

Waldorf was diagnosed with cervical insufficiency, a condition in which the cervix dilates during the second or early third trimester of pregnancy. The condition placed her at high risk of going into labor before the fetus was viable and increased her risk of infection. After waiting five days for care in Northwest Arkansas, Waldorf traveled 240 miles to Kansas to obtain an abortion through induced labor. The experience left Waldorf grieving a child she had wanted, facing thousands of dollars in medical bills, and suffering hemorrhaging as a result of the delayed care, according to the complaint.

Two of the other women who joined the lawsuit traveled to Illinois to terminate their pregnancies. One of them had been sexually assaulted, the complaint states. Arkansas’ abortion ban does not include exceptions for rape or incest.

The fourth woman carried her pregnancy for seven weeks after learning it was nonviable because doctors denied her an abortion. During that time, she and her husband discussed plans for her funeral in case she did not survive the pregnancy, according to the complaint.

The fifth plaintiff is Dr. Chad Taylor, an obstetrician gynecologist practicing in Little Rock. The complaint states that he regularly encounters patients with serious obstetrical complications where he and his colleagues are unsure whether providing the standard of care, including offering termination, remains legal under Arkansas law.

The lawsuit argues that Arkansas’ abortion ban violates the state Constitution, which declares that enjoying and defending life and liberty and pursuing happiness are inherent and inalienable rights. The plaintiffs contend that the law erodes those core protections.

“This law is really causing people to lose their liberties, certainly lose enjoyment of their own lives, protection of their own families, and it is really putting lives at risk as well,” said Molly Duane, the lawsuit’s lead attorney and the litigation director of Amplify Legal, the litigation arm of Abortion in America, an abortion rights advocacy group.

A Complicated Legal Landscape in Arkansas

The case faces formidable hurdles if it ultimately reaches the Arkansas Supreme Court, where five of the seven justices have Republican ties. In 2024, the court upheld the Secretary of State’s decision to disqualify more than 14,000 of the nearly 103,000 signatures submitted by registered voters seeking to place an abortion access measure on the ballot. That ruling kept the Arkansas Abortion Amendment off the November 2024 ballot.

Arkansas’ Constitution also includes explicit anti abortion language. Constitutional Amendment 68 bars the use of public funds for abortion except to save a pregnant person’s life. Duane said that provision does not override Arkansans’ fundamental rights to life, liberty, and the pursuit of happiness.

The amendment goes on to define state policy as the protection of unborn life from conception until birth, within the limits set by the federal Constitution.

“This presents unique challenges,” said Diana Kasdan, the legal and policy director at the UCLA Law Center on Reproductive Health, Law and Policy. Still, she said the amendment does not define or limit the scope of inalienable rights, which she described as a broad and foundational constitutional guarantee.

Kasdan pointed to similar inalienable rights clauses in the constitutions of Utah and North Dakota, where conservative leaning supreme courts upheld injunctions blocking abortion bans. In those cases, the courts recognized that pregnant people have a fundamental right to obtain abortion care to preserve their life and health.

Duane said the plaintiffs have very strong legal claims. Beyond the inalienable rights argument, the lawsuit contends that Arkansas’ abortion ban is unconstitutionally vague.

“A criminal law cannot be so vague that people who have to comply with that law have no notice, no understanding of what is legal and what is not,” Duane said.

State Response

The lawsuit names the state of Arkansas as a defendant, along with Attorney General Tim Griffin, Gov. Sarah Huckabee Sanders, Health Secretary Renee Mallory, the Arkansas State Medical Board, and the three prosecuting attorneys from the plaintiffs’ home counties.

In a statement released Wednesday afternoon, following the lawsuit filed, Sanders spokesperson Sam Dubke pointed to recognition from Americans United for Life, an anti abortion advocacy group that has consistently praised Arkansas for its abortion policies.

“Arkansas was named the most pro life state in the country for the sixth year in a row not just because the Sanders Administration offers complete protection for the unborn, but also because Governor Sanders has made needed investments in foster care and adoption, maternal health, and childhood wellbeing,” Dubke said. “Governor Sanders looks forward to defending Arkansas’ pro life laws in court.”

Attorney General Griffin, in a separate statement issued Wednesday, said the lawsuit appears to lack legal merit.

“Protecting the innocent lives of unborn children is enshrined in state law and the Arkansas Constitution, and I will always stand up to defend the rights of the unborn,” Griffin said through a spokesperson.

The state has signaled that its legal defense will align closely with longstanding conservative and Christian principles that shape Arkansas’ abortion laws, even as physicians and patients have raised concerns about the practical and medical consequences of the near total ban.

Broader Impact 

In 2024, roughly 2,600 Arkansans traveled to Illinois or Kansas to obtain abortion care, according to data from the Guttmacher Institute, a reproductive rights policy and advocacy group. Some observers say that number could increase. Much of that travel is driven by Arkansas law, which makes performing an abortion a felony punishable by up to 10 years in prison, a fine of up to $100,000, or both. Those penalties are embedded in the state’s medical and criminal statutes, effectively pushing patients and providers to seek care out of state rather than risk prosecution, incarceration, or steep fines.

The punishments appear twice in state law, first in a 2019 trigger statute and again in a 2021 law that remained blocked in federal court until the U.S. Supreme Court overturned Roe v. Wade.

The legal challenge now unfolding in Arkansas faces an uncertain path if it reaches the state Supreme Court. Still, advocates say the case is likely to command significant public attention. Kasdan pointed to a 2023 legal challenge to Texas’ abortion ban that did not overturn the law but nevertheless focused national scrutiny on the risks created by abortion restrictions in cases involving life threatening and nonviable pregnancies.

“While it is too early to suggest the trajectory of this case in Arkansas,” Kasdan said, “I think it is going to be a really important one to follow.”