Collins to work toward increasing visitation to Arkansas by groups and promoting the state's appeal
A federal judge stilled the heart of state Sen. Jason Rapert's legislation in 2014 that would have made abortion illegal at 12 weeks gestation (the so-called Human Heartbeat Protection Act), ruling that the 12-week limit was unconstitutional. But Judge Susan Webber Wright did not strike down language in the bill that requires pregnant women seeking an abortion to be informed in writing that a fetus has a heartbeat and provided the probability that the fetus will survive to term based on gestational age.
Rapert, R-Conway, has since July been writing the state Health Department and the state Medical Board demanding proof that the heartbeat information is being provided to women seeking an abortion. In the emails, Rapert accuses the state Medical Board of "dragging their feet" writing rules required by the act on heartbeat testing and thereby causing thousands of abortions and asks that the Health Department provide him copies of forms signed by women — their names redacted — seeking an abortion.
There are only three abortion providers in Arkansas, and only one of those performs surgical abortions. Planned Parenthood, with clinics in Little Rock and Fayetteville, offers medicinal abortions.
The law only requires women to sign saying they've been provided information; it does not require the ultimate decision the woman makes after signing the form. Were Rapert to receive the information he requested, he would not be able to determine whether the women decided to have an abortion or not, but only the names of the providers.
Emails provided under the state Freedom of Information Act include one on July 2 from Health Department Director Nate Smith to Rapert saying he'd spoken to staff attorney Robert Brech, chief financial officer for the Health Department, about compliance and would meet with licensing staff to "make sure we have an effective plan in place to enforce compliance" with Act 301.
In August, Rapert emailed Brech and Kevin O'Dwyer, attorney for the Medical Board, that he was concerned the act was going unenforced. (The Health Department licenses clinics and the Medical Board licenses doctors.)
In an Aug. 25 email to Rapert, Brech cited Rapert's previous request for " '10 copies of the written notice to a mother that informed her of the presence of a heartbeat and statistical probability the baby would make it to full term from 2014,' " and that the names could be redacted, that the Health Department did not have possession of the records. "You may not be aware that under Arkansas's FOIA laws, medical records are specifically exempt from disclosure," Brech wrote.
The correspondence quoted in the email was not included in the FOIA'd materials. Brech said it is possible he was quoting a text message.
Rapert quickly responded to Brech's Aug. 25 email:
"My request of the Arkansas Health Department over several months has been for you to give me verification proving that Arkansas abortion providers are complying with the informed consent provisions of the Arkansas Heartbeat Protection Act. Specifically I am concerned they are not providing the written portion of the informed consent provisions to mothers seeking an abortion. To date, your office has failed to provide me any information to confirm that the law is being followed and you have failed to offer actionable advice as to how our state can audit the abortion providers to verify they are following the law. ... I asked if you could simply obtain copies of records and redact the names to verify the law is being complied with. ... Someone must have the authority to verify that abortion clinics in our state that are killing little babies in mother's wombs are following Arkansas law.
"We know for a fact that due to the Arkansas Medical Board purposely dragging their feet, several thousand abortions occurred after March 2014 when Judge Wright issued her ruling upholding the informed consent provisions of the act and November 2014 when the Arkansas Medical Board finally issued rules. ... I want answers. How many babies might have been saved if their mother chose not to proceed with an abortion if they were advised of the presence of a heartbeat of their baby within the womb? ... If the Arkansas Medical Board has been negligent in their duties to enforce the law, we will consider appropriate action."
The email was not sent directly to the Medical Board but was copied to O'Dwyer, as well as Gov. Asa Hutchinson, Attorney General Leslie Rutledge and other legislators.
Brech then replied to Rapert: "I have consistently treated all requests for information as FOIA requests to ensure their timely response from the custodian of the records in question. Are you suggesting that we could go to the clinic, copy their records, and provide them to you under another law? I can assure you that neither I nor the Department has withheld any information in an attempt to keep from you whether Act 301 is being complied with.
O'Dwyer responded Aug. 26 to Rapert's email:
"... First let me say that the Medical Board by no means 'dragged its feet' in passing a regulation. After Judge Wright issued her opinion in 2014, the Board, in August 2014, discussed the opinion and the need for the regulation and the basic outline of the regulation. The Board reviewed a final proposed version during its October meeting and after the December public hearing it was passed. ... With regard to the remaining concerns, I'm not really sure, as I understand there have been previous discussions regarding this issue to which I was not a part, what you're needing from the Medical Board. The Medical Board regulates the practice of physicians in this state. ... To date, we have not had a complaint filed with the Board regarding any issue contemplated by Act 301."
That response got a rise out of Rapert, who replied:
"The fact that the Medical Board had one year to prepare a rule to be in compliance and did not do so is your problem, not mine. The fact that the Medical Board did not have a rule in place does not negate a statute in the state of Arkansas. Are you telling me now that several thousand abortions were conducted in violation of the Arkansas Heartbeat Protection Act? Advise us how the Medical Board verifies that provisions of the Arkansas Heartbeat Protection Act have been complied with and show me proof.
"I urge you to provide this information by the end of the week. I am weary of the shell game — prove to me that abortion clinics are complying with the law and that the Arkansas Medical Board is enforcing the law. I look forward to hearing from you. I am scheduling a hearing before Insurance and Commerce, but I wanted you to have time to be able to answer with confidence before having the Arkansas Medical Board testify in committee."
In response, O'Dwyer emailed Rapert to say, "I have never said or suggested that thousands of abortions were conducted in violation of the Arkansas Heartbeat Protection Act. I have absolutely no evidence that has occurred. The Board has never received a complaint from any source regarding any alleged violation of the Act. I'm not nor have I ever played any games regarding this issue."
O'Dwyer said Monday he believed that was the end of the communication between him and Rapert. The Medical Board was not called to testify.
As to "foot dragging" on the regulations required by the act, O'Dwyer said the Medical Board, which meets only every other month, took the issue up in August 2014 after waiting to see if the attorney general's office would appeal the ruling and implemented the rule by December, which he said was fairly speedy for a regulatory body. (Rutledge has since announced her intention to appeal the 8th Circuit Court of Appeals' ruling upholding Wright to the Supreme Court.)
Brech has since informed Rapert that he had a "chance to review documentation that we had from an abortion provider, because I wanted to ensure that it did comply with Act 301." The form provides patients the statistical probability of having a miscarriage and not the statistical probability of carrying the baby to term. "This may be a technicality, but I thought I should bring it to your attention."
Rapert had not replied to a request for comment from the Arkansas Times by press time on whether he was now satisfied that abortion providers were in compliance with the law.