Know Your State's Abortion Laws

ARKANSAS

Know Your State’s

Abortion Laws

A Guide for Medical Professionals

Since Roe v. Wade was overturned in June

2022, medical providers across the country

have struggled to understand their state’s

abortion laws, which contain undefined

terms and non-medical language.

Fear and confusion throughout the medical community has led

some hospitals to adopt policies that are overly strict or

burdensome, causing patients to be denied care in emergencies.

While the law remains in flux and some questions have no clear

answers, this document aims to provide clarification, where possible,

of what conduct is still permitted in your state. Know what your

state’s law does and does not require, so you can advocate for

yourself and your patients.

ARKANSAS

Last updated

April

2024

ARKANSAS

Abortion is prohibited under Arkansas law unless the

patient has a “medical emergency,” meaning abortion is

necessary to “preserve the life” of a patient “whose life is

endangered by a physical disorder, physical illness, or

physical injury, including a life-endangering physical

condition caused by or arising from the pregnancy itself.”

Providing information about how to obtain a legal

abortion in another state is legal.

Key Takeaways

Providing contraception, including emergency

contraception, is legal.

Providing

medical care for

ectopic

pregnancies

and

pregnancies with no cardiac activity is legal.

Last updated

April

2024

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ARKANSAS

Definition of Abortion

& Contraception

ABORTION

Arkansas defines “abortion” as “the act of using,

prescribing, procuring, or selling of any instrument,

medicine, drug, or any other substance, device, or

means with the purpose to terminate the pregnancy

of a woman, with knowledge that the termination by

any of those means will with reasonable likelihood

cause the death of the unborn child.”

“Unborn

child” is defined to “mean[] an individual organism

of the species Homo sapiens from fertilization until

live birth.”

The following are explicitly excluded from Arkansas

law’s definition of an abortion: an act “performed

with the purpose to” (1) “[s]ave the life or preserve

the health of the unborn child;” (2) “remove a dead

unborn child caused by spontaneous abortion;” or

(3) “remove an ectopic pregnancy.”

While

undefined in this statutory section, within the

abortion context, the Arkansas legislature has

defined an “infant who is born alive” as exhibiting

“any evidence of life” such as breathing, a heartbeat,

umbilical cord pulsation, and/or “definite

movement of voluntary muscles,” all of which

suggest that “dead” means that there is no

cardiopulmonary activity present in the embryo or

fetus.

This means that treatment for ectopic

pregnancy (including use of methotrexate and

surgical removal), which is also excluded from the

statutory definition of abortion, and treatment for

miscarriage, where there is no cardiac activity

(including medications, D&C, D&E, labor

induction), are not abortions under Arkansas law and

thus are not prohibited by any of the abortion bans.

Miscarriage care is legal, so long as there is no cardiac

activity. With respect to self-managed abortion, it is

legal for providers to give medical care during or

after a self-managed abortion provided there is no

cardiac activity, or if the patient is experiencing a

complication that would qualify as a medical

emergency (see below). A pregnant person cannot be

charged or convicted under the state’s criminal

abortion bans for self-managing their abortion

because the bans, discussed below, explicitly exempt

pregnant people from liability.

CONTRACEPTION

Contraception is not illegal in any state in the

country. Arkansas’s law specifies that it does not

“prohibit the sale, use, prescription, or

administration of a contraceptive measure, drug, or

chemical if the contraceptive measure, drug, or

chemical” if the contraceptive is administered before

a pregnancy is detectable “through conventional

medical testing”, so long as the contraceptive is

“sold, used, prescribed, or administered in

accordance with manufacturer instructions.”

Abortion Bans

Total Bans: Arkansas has two identical abortion

bans currently in effect: a total ban, the “Unborn

Child Protection Act,” and a trigger ban, the

“Arkansas Human Life Protection Act” (collectively

referred to as the “total bans”). Arkansas’s trigger

ban took effect on June 24, 2022. Arkansas’s total

ban, passed in 2021, is also currently in effect, and is

identical to the trigger ban. Both bans prohibit all

abortions as defined above “except to save the life

of a pregnant woman in a medical emergency.”

The

bans carry criminal penalties. Performing or

attempting to perform an abortion is an

“unclassified felony”

punishable by “a fine not to

exceed one hundred thousand dollars ($100,000) or

imprisonment not to exceed ten (10) years, or

both.”

Other Bans and Restrictions: Under Arkansas law,

there are additional gestational age bans and

abortion restrictions currently in effect.

The

gestational age bans prohibit abortions after eighteen

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weeks

and twenty weeks,

except in cases of rape,

incest, and medical emergency.

13,14

Arkansas also ban both dilation and evacuation

(“D&E”) procedures and intact D&E procedures

(sometimes called D&X procedures)

and requires

pregnant people to undergo biased counseling

, a

72-hour waiting period

, and to obtain an

ultrasound

to obtain an abortion. Young people

under 18 and adults who have guardians or

custodians must obtain parental

or judicial

consent to obtain an abortion. The state also

prohibits the use of public funds

and health plans

offered through the Arkansas health insurance

exchange

to cover “elective” abortion procedures.

The use of telemedicine for distributing abortion-

inducing drugs (defined below) is also prohibited.

“Medical Emergency”

Exception to Abortion Bans

There is an exception to Arkansas’s total bans (both

of which ban all abortions at any stage of fetal

development) when a person performs an abortion

“to save the life of a pregnant woman in a medical

emergency.”

Both bans define “medical

emergency” as “a condition in which an abortion is

necessary to preserve the life of a pregnant woman

whose life is endangered by a physical disorder,

physical illness, or physical injury, including a life-

endangering physical condition caused by or arising

from the pregnancy itself.”

An abortion permitted under the total bans must be

performed in a hospital or an emergency room.

Arkansas law only allows physicians licensed to

practice medicine in Arkansas and board-certified or

board-eligible in obstetrics and gynecology to

perform abortions.

Practitioners providing abortions pursuant to the

medical emergency exception are exempted from

compliance with Arkansas’s other abortion

restrictions. Specifically, providers do not need to

comply with Arkansas’s informed consent

counseling and 72-hour waiting period;

informational requirements about medical and social

assistance for prenatal, childbirth, and neonatal care;

counseling about fetal pain; counseling about

abortion reversal; and more.

Additionally, young

people under 18 need not obtain parental or judicial

consent in advance of an abortion in cases of

medical emergency, but if the young person does not

state that they intend to seek a judicial bypass, the

provider is required to notify their parents within 24

hours.

To the extent that the twelve-week ban

referred to above is still in effect, providers are also

not required to test for fetal cardiac activity in the

event of a medical emergency.

If possible,

physicians must inform patients experiencing a

medical emergency “of the medical indications

supporting the physician’s judgment that an

immediate abortion is necessary to avert her death or

that a seventy-two-hour delay will cause substantial

and irreversible impairment of a major bodily

function.”

The physician who performed the

emergency abortion must certify “the nature of the

medical emergency and the circumstances that

necessitated the waiving of the informed consent

requirements” and record this certification in the

physician’s and facility’s permanent records.

Arkansas’s total bans also provide an affirmative

defense to prosecution if “a licensed physician

provides medical treatment to a pregnant woman

which results in the accidental or unintentional injury

or death to an unborn child.”

In contrast to an

exception, which should prevent a person from

being sued or criminally charged in the first place, an

affirmative defense is a defense that a defendant,

who has either already been charged with a crime or

sued civilly, can introduce into evidence that, if

proven, defeats liability or conviction. It is important

to note that an affirmative defense does not mean

that a physician will not be sued or arrested in the

first place. Rather, this affirmative defense may help

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a physician defendant be acquitted of charges under

the abortion ban.

EMTALA

A federal law called the Emergency Medical

Treatment & Labor Act (EMTALA) requires

emergency abortion care in some cases. EMTALA

requires Medicare-participating hospitals with

emergency departments (which is most hospitals), to

provide medical screening

and stabilizing medical

treatment to patients experiencing a medical

emergency condition,

including patients in labor or

with emergency pregnancy complications.

Under

the EMTALA statute, “to stabilize” means to

provide medical treatment necessary to ensure,

“within reasonable medical probability, that no

material deterioration of the condition is likely.”

Patients can be transferred to a different hospital

once they are stable or if certain conditions are met

such as the medical benefits of transfer outweigh the

increased risks to the patient. Where a hospital

transfers a patient without first stabilizing them, the

hospital still must provide “the medical treatment

within its capacity which minimizes the risks to the

individual’s health . . . .”

EMTALA defines medical

emergency to include “acute symptoms of sufficient

severity (including severe pain) such that the absence

of immediate medical attention could reasonably be

expected to result in—(i) placing the health of the

individual (or, with respect to a pregnant woman, the

health of the woman or her unborn child) in serious

jeopardy, (ii) serious impairment to bodily functions,

or (iii) serious dysfunction of any bodily organ or

part.”

For pregnant patients, the U.S. Department

of Health and Human Services (“HHS”) guidance

says that EMTALA includes, but is not limited to:

“ectopic pregnancy, complications of pregnancy

loss, or emergent hypertensive disorders, such as

preeclampsia with severe features.”

HHS issued guidance after Roe v. Wade was

overturned emphasizing that stabilizing treatment

required by EMTALA could include abortion care if

the examining physician or other qualified medical

personnel determines that such treatment is required

to stabilize a patient experiencing an emergency

medical condition, including a condition that is

“likely or certain to become emergent without

stabilizing treatment.”

The guidance reiterates that

if EMTALA requires the provision of abortion care,

then EMTALA trumps any state law prohibiting or

restricting access to abortion.

Litigation is ongoing about the scope of EMTALA

with respect to abortion. A federal district court in

Idaho has held that EMTALA trumps the narrower

state law that only permits abortion if the patient’s

life is in danger, but the U.S. Supreme Court has

blocked that decision while it considers the case, and

a decision is expected in June 2024.

Meanwhile, a

federal appeals court has affirmed a lower court

decision that temporarily blocked federal

enforcement of HHS’ guidance in Texas, but the

practical effect of that ruling in Texas is unclear, as

the medical emergency exception to Texas’s

abortion bans purports to cover the same kind of

patients as those contemplated by the EMTALA

guidance.

Furthermore, HHS recently cited

hospitals in Kansas, Missouri and Florida for

violating EMTALA by failing to provide abortion

care to a patient with preterm premature rupture of

membranes (“PPROM”).

Other Federal Laws &

Professional Guidelines

In addition to EMTALA, hospitals and/or medical

providers are required to abide by the following:

Conditions of Participation in Medicare and

Medicaid (COP): The federal COP regulations

require hospitals that participate in Medicare and

Medicaid to inform patients of their rights in

advance of furnishing or discontinuing care which

include: the right to be informed of their health

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status, be involved in care planning and treatment,

and participate in the development of their plan of

care.

Protection Against Discrimination in

Employment: The federal law known as the Church

Amendments prohibits hospitals that receive certain

federal funds from discriminating against health care

providers who participate or are willing to participate

in abortion care or sterilization procedures.

Medical Malpractice: While this document does

not detail state-specific medical malpractice law,

medical providers should be aware that they risk

liability under state medical malpractice law for

failing to provide pregnant patients with the

standard of care.

Resident Training: The Accreditation Council for

Graduate Medical Education (ACGME) requires

that accredited programs provide access to training

in the provision of abortion.

The federal law

known as the Coats-Snowe Amendment both

protects medical professionals in learning to provide

abortion, and limits the government’s ability to

penalize programs or institutions that fail to comply

with ACGME requirements.

Documentation & Reporting

Generally, state law does not require documentation

of irrelevant or non-medical information in patient

charts. Nor does it explicitly require reporting to law

enforcement patients who receive abortions out of

state or self-manage their own abortion.

Some

hospitals may impose additional documentation

requirements for abortions performed as medical

emergencies, including attestations by multiple

physicians and/or approvals by an ethical review

board. While intended to insulate the hospital from

liability, these are not legal requirements.

The only abortion-specific documentation and

reporting requirements are:

Abortion Reporting: Arkansas law requires that

physicians, healthcare providers, and abortion

facilities “report to the Department of Health the

number of abortions performed to save the life of

the mother.”

Complication Reporting: Arkansas law requires

that physicians electronically report abortion

complications to the Department of Health within

three days of the complications’ diagnosis or

treatment.

Healthcare facilities must likewise

submit a report for each complication “diagnosed or

treated by the healthcare facility not later than the

thirtieth day after the date on which the abortion

complication was diagnosed or treated.”

Accordingly, providers must report: shock; uterine

perforation; cervical laceration; hemorrhage;

aspiration or allergic response; infection; sepsis;

death; incomplete abortion; damage to the uterus;

and any infants “born alive after an abortion

procedure.”

Physicians must also report any “adverse events”

caused by the provision of abortion-inducing drugs

within three days of its occurrence to the United

States Food and Drug Administration via the

MedWatch system and to the Arkansas State Medical

Board.

Arkansas law defines an “adverse event” as

“an undesirable experience associated with the use

of a medical product in a patient, including without

limitation an event that causes: death; threat to life;

hospitalization; disability or permanent damage;

congenital anomaly or birth defect, or both; required

intervention to prevent permanent impairment or

damage; or other serious important medical events,

including without limitation: allergic bronchospasm

requiring treatment in an emergency room; serious

blood dyscrasias; seizures or convulsions that do not

result in hospitalization; and the development of

drug dependence or drug abuse.”

Fetal Death Reporting:

All fetal deaths where the

fetus was 12 weeks’ gestation(LMP) or greater “shall

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be reported within five (5) days after delivery to the

Division of Vital Records or as otherwise directed by

the State Registrar of Vital Records.”

The

definition of fetal death explicitly excludes

abortion.

“When a dead fetus is delivered in an

institution, the person in charge of the institution or

his or her designated representative shall prepare and

file the fetal death certificate.”

“When a dead fetus

is delivered outside an institution, the physician in

attendance at or immediately after delivery shall

prepare and file the fetal death certificate.”

Spontaneous fetal deaths where the fetus was less

than 12 weeks gestation must be reported in the

same manner as abortions.

Other Mandatory Reporting:

All other general

mandatory reporting to the Department of Family

and Protective Services, local law enforcement, etc.,

also applies for abortion patients.

This includes

child maltreatment and adult and long-term care

facility resident maltreatment.

Electronic Medical Records:

Many electronic

medical record systems (EMRs) allow healthcare

providers to securely share patient records across

healthcare institutions.

While EMRs have settings

that allow patients to choose how and when their

records are shared, hospital systems often instead

use their EMR’s default settings that widely share

patient records. Though often done for continuity of

care purposes, these settings may put abortion

providers and patients (or patients obtaining other

sensitive care) at risk, and many patients do not

know their records are shared in this way.

encourage you to discuss alternative settings with

your institution’s compliance officers, counsel,

and/or technology officers, who may be able to

offer customized solutions.

Counseling & Referral

Speech about abortion is legal in Arkansas. Medical

professionals in Arkansas can thus (1) provide

accurate options counseling, including about

abortion; and (2) refer patients to medical providers

in states where abortion is legal. While medical

professionals can lawfully provide counseling and

referrals, practitioners should note that Arkansas

does not provide public funding, including Medicaid,

to providers or affiliates who provide abortion

referrals or “counsel[] in favor of elective

abortions.”

Medication Abortion

Arkansas has additional laws governing the use of

medication abortion, referred to in state law as

“abortion-inducing drugs.” Arkansas law defines

“abortion-inducing drug” to be “a medicine, drug, or

any other substance prescribed or dispensed with the

intent of terminating the clinically diagnosable

pregnancy of woman, with knowledge that the

termination will with reasonable likelihood cause the

death of the unborn child.”

Included within this

definition is the “off-label use of drugs known to

have abortion-inducing properties, which are

prescribed specifically with the intent of causing an

abortion, such as misoprostol, Cytotec, and

methotrexate.”

However, the law does not include

abortifacient drugs “prescribed for other medical

indications such as chemotherapeutic agents or

diagnostic drugs.”

Under Arkansas law, providers are prohibited from

providing “any abortion-inducing drug via courier,

delivery, or mail service.”

To the extent that

medication abortions are still available under

Arkansas’s abortion bans, the physician must

provide the medication in person, the physician must

have a signed emergency agreement with an

associated physician, there must be follow up within

seven to fourteen days of the abortion, and there

must be physician compliance documented in the

patient’s medical chart.

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Disposition of Fetal Tissue

Remains

Arkansas law requires that embryonic and fetal tissue

remains be disposed of consistent with Arkansas’s

other laws pertaining to the disposition of fetal and

human tissue generally, and to final disposition of

human remains.

Violation of this requirement is a

class A misdemeanor.

References

Ark. Code. Ann. §§ 5-61-303(1)(A), 5-61-403(1)(A).

Ark. Code. Ann. §§ 5-61-303(4), 5-61-403(4).

Ark. Code Ann. §§ 5-61-303(1)(B), 5-61-403(1)(B).

Ark. Code Ann. § 20-16-604(a)(3)(A)–(D).

See Ark. Code Ann. §§ 5-61-304(c)(1) (specifying that the law’s prohibition on abortion does not “[a]uthorize the charging

or conviction of a woman with any criminal offense in the death of her own unborn child”), 5-61-404(c)(1), 20-16-1306(1),

20-16-2006(a)(2).

Ark. Code Ann. §§ 5-61-304(c)(2), 5-61-404(c)(2).

Ark. Code Ann. § 5-61-304(a), 5-61-404(a).

Ark. Code Ann. § 5-61-304(b), 5-61-404(a).

Id.

Arkansas also has a twelve-week ban, which is currently enjoined. The twelve-week abortion ban bans all abortions

except in cases of rape, incest, and medical emergency. The twelve-week ban is permanently enjoined, but Arkansas has

asked a federal court to vacate the injunction now that Roe has been overturned. See Edwards v. Beck, 8 F. Supp. 3d 1091

(E.D. Ark. 2014), aff’d, 786 F.3d 1113 (8th Cir. 2015), motion to vacate judgment filed, 4:13-cv-00224-SWW (E.D. Ark. July 1,

2022).

Need legal advice?

This document should not be construed as legal

advice. If you need individualized legal advice, please

contact the Abortion Defense Network, where you

will be matched with a pro bono attorney.

The Abortion Defense Network is managed by the

Lawyering Project in partnership with the American

Civil Liberties Union, Center for Reproductive Rights

(CRR), If/When/How: Lawyering for Reproductive

Justice, National Women’s Law Center (NWLC), and

Resources for Abortion Delivery (RAD).

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Ark. Code Ann. § 20-16-2004.

Ark. Code Ann. § 20-16-1405.

Ark. Code Ann. §§ 20-16-1405(a), 20-16-2004(b).

The statutory definitions of “medical emergency” in the legislation pertaining to the 18-week, 20-week, and total bans.

In the 18-week ban, “medical emergency” means “any condition that on the basis of the physician's good-faith clinical

judgment so complicates the medical condition of a pregnant female that: (A) The immediate abortion of her pregnancy

is necessary to prevent her death; or (B) A delay will create a serious risk of substantial and irreversible impairment of a

major bodily function of the pregnant female.” Ark. Code Ann. § 20-16-2003. The 20-week ban defines “medical

emergency” as “a condition that, in reasonable medical judgment, so complicates the medical condition of the pregnant

woman that it necessitates the immediate abortion of her pregnancy: Without first determining post-fertilization age to

avert the death of the pregnant woman; or (ii) For which the delay necessary to determine post-fertilization age will create

serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or

emotional conditions.” Ark. Code. Ann. § 20-16-1402.

Ark. Code Ann. §§ 20-16-1203, 20-16-1803.

Ark. Code Ann. § 20-16-1703(b)(2).

Ark. Code Ann. § 20-16-1703(b)(1).

Ark. Code Ann. § 20-16-1703(e).

Ark. Code Ann. § 20-16-804.

Ark. Code Ann. § 20-16-809.

Ark. Const. Amend. 68 § 1.

Ark. Code Ann. § 23-79-156(c)(1).

Ark. Code Ann. § 20-16-603(b)(1), 20-16-1703(b)(2).

Ark. Code. Ann. §§ 5-61-304(a), 5-61-404(a).

Ark. Code Ann. §§ 5-61-303(3), 5-61-403(3).

Ark. Code Ann. § 20-9-302(a)(1)(A).

Ark. Code Ann. § 20-16-606(a).

See Ark. Code Ann. § 20-16-1703(b).

Ark. Code Ann. § 20-16-807.

Ark. Code Ann. § 20-16-1303(c)(1)(B) (“Rules adopted under this subsection shall specify that a test for a fetal heartbeat

is not required in the case of a medical emergency.”) (emphasis added).

Ark. Code Ann. § 20-16-1706.

Ark. Code Ann. § 20-16-1703(c)(1)–(2).

Ark. Code. Ann. §§ 5-61-304(d), 5-61-404(d).

EMTALA, 42 USC § 1395dd(c)(1)(A).

EMTALA, 42 USC § 1395dd(b)(1)(A).

EMTALA, 42 USC § 1395dd(e)(1).

EMTALA, 42 U.S.C. § 1395dd(e)(3)(A).

EMTALA, 42 USC § 1395dd(c)(1)(B)-(c)(2)(A).

EMTALA, 42 U.S.C. § 1395dd(e)(1).

CMS, Reinforcement of EMTALA Obligations Specific to Patients who are Pregnant or are Experiencing Pregnancy

Loss (updated July 2022).

CMS, Reinforcement of EMTALA Obligations Specific to Patients who are Pregnant or are Experiencing Pregnancy

Loss (updated July 2022).

State of Idaho v. United States, No. 23-726 (U.S. Jan. 5, 2024).

Texas v. Becerra, No. 23-10246, 2024 WL 20069 (5th Cir. Jan. 2, 2024).

CMS, Freeman Health System—Freeman West, Statement of Deficiencies and Plan of Correction (April 10, 2023);

CMS, University of Kansas Hospital, Statement of Deficiencies and Plan of Correction (April 10, 2023); HHS Secretary

Xavier Becerra Statement on EMTALA Enforcement (May 1, 2023).

42 C.F.R. §§ 482.13(a)(1), (b)(1), (b)(2).

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Know Your Rights: Existing Laws May Protect Health Care Professional Who Provide or Support Abortion from

Discrimination in Employment, NAT’L WOMEN’S LAW CTR. (Feb. 9, 2023), https://nwlc.org/resource/know-your-rights-

existing-laws-may-protect-health-care-professionals-who-provide-or-support-abortion-from-discrimination-in-

employment/.

See generally Ark. Code Ann. §§ 16-114-201–213.

Accreditation Council for Graduate Med. Educ., ACGME Program Requirements for Graduate Medical Education in Obstetrics

and Gynecology, ACCREDITATION COUNCIL FOR GRADUATE MED. EDUC. (Sept. 17, 2022), https://www.acgme.org/

globalassets/pfassets/programrequirements/220_obstetricsandgynecology_9-17-2022_tcc.pdf.

42 U.S.C. § 238n.

There is no reason to report a self-managed abortion to the police. Fact sheets from If/When/How with additional

detail, including some state-specific fact sheets, are available here. If/When/How adds state-specific fact sheets to their

website as they are finalized.

Ark. Code Ann. § 20-16-608.

Ark. Code Ann. § 20-16-605(c)(1)(A) (abortion complication “means any harmful event or adverse outcome with respect

to a patient related to an abortion that is performed on the patient and that is diagnosed or treated by a physician or at a

healthcare facility” and “includes without limitation shock; uterine perforation; cervical laceration; hemorrhage; aspiration

or allergic response; infection; sepsis; death; incomplete abortion; damage to the uterus; and an infant born alive after an

abortion procedure”).

Ark. Code Ann. § 20-16-605(c)(1)(B).

Ark. Code Ann. § 20-16-605(a)(1)(B). Providers are required to report these complications "without limitation,”

suggesting that the complications requiring reporting are included but not limited to those listed here.

Ark. Code Ann. § 20-16-1505(a).

Ark. Code Ann. § 20-16-1503(3).

Ark. Code Ann. § 20-18-603(a)(1).

“’Fetal death’ means death prior to the complete expulsion or extraction from its mother of a product of human

conception irrespective of the duration of pregnancy and which is not an induced termination of pregnancy.” Ark. Code

Ann. § 20-18-102.

Ark. Code Ann. § 20-18-603(a)(1)(B).

Ark. Code Ann. § 20-18-603(a)(1)(C).

Ark. Code Ann. § 20-18-603(a)(2).

Fact sheets from If/When/How with additional detail, including some state-specific fact sheets, are available here.

If/When/How adds state-specific fact sheets to their website as they are finalized.

Ark. Code Ann. §§ 12-18-402 (mandatory reporting of child maltreatment), 12-12-1708 (mandatory reporting of adult

and long-term facility resident maltreatment). The Adult and Long-Term Care Facility Resident Maltreatment Act requires

reporting of observed and suspected incidents of abuse, exploitation, neglect, or sexual abuse of an endangered or impaired

person. Ark. Code Ann. § 12-12-1708. Under the act, an endangered person is an adult, a long-term care facility resident,

or an Arkansas State Hospital resident who is found to be in a situation that poses danger to themselves and demonstrates

“a lack of capacity to comprehend the nature and consequences of remaining in that situation or condition.” Ark. Code

Ann. § 12-12-1703(6). An impaired person is an adult or a long-term care facility resident “who as a result of mental or

physical impairment is unable to protect [themselves] from abuse, sexual abuse, neglect, or exploitation.” Ark. Code Ann.

§ 12-12-1703(10).

For example, one EMR, Epic, uses a tool called Care Everywhere to securely share information between health care

institutions (e.g., from one hospital system to another) and also allows for robust sharing internal to a single institution

(e.g., a Texas hospital treating a patient may be able to see the patient’s records from an Illinois hospital that is part of the

same hospital system).

For example, if a patient travels from a ban state to an access state for abortion care, or obtains an abortion in the ban

state under an exception, then later obtains any type of healthcare at a different provider that uses the same EMR, the

patient’s records may be automatically shared with the second provider. If the second provider believes that the care

violated the state’s abortion ban, they may report it to authorities.

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In the past year, states and the federal government have taken steps to address these vulnerabilities, specifically for

abortion and gender-affirming care. Maryland and California have passed bills that restrict disclosure of abortion-related

records and require EMRs to develop tools to limit or prohibit such disclosure. As these laws are implemented, the

landscape for how electronic abortion records are handled may change.

Ark. Code Ann. § 20-16-1602(b)(1)–(2). Arkansas defines an “abortion referral” as “the act of recommending a pregnant

woman to a doctor, clinic, or other person or entity for the purpose of obtaining or learning about obtaining an abortion.”

Id. at -1601(2).

Ark. Code Ann. § 20-16-1503(2)(A).

Ark. Code Ann. § 20-16-1503(2)(B).

Ark. Code Ann. § 20-16-1503(2)(C).

Ark. Code Ann. § 20-16-1504(b).

Ark. Code Ann. § 20-16-1504(c)–(g).

See Ark. Code Ann. §§ 20-17-802 (requiring physicians to dispose of fetal remains from an abortion in accordance with

law governing the Disposition of Human Tissue, Ark. Code Ann. § 20-17-801, and the Arkansas Final Disposition Rights

Act of 2009, Ark. Code Ann. § 20-17-102).

Ark. Code Ann. § 20-17-802.